Schedule 13D

-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, LRzeJ67CFXWLQyJwbUr/20EE1eAB0u0lTXduK+kqYl6KAQk8BQ4V7hB2k3FAaDOE mCcEvZ9L/kLuELtuwb6m7w== 0001193125-08-055491.txt : 20080313 0001193125-08-055491.hdr.sgml : 20080313 20080313160705 ACCESSION NUMBER: 0001193125-08-055491 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 20080313 DATE AS OF CHANGE: 20080313 GROUP MEMBERS: FULCRUM GP, L.L.C. GROUP MEMBERS: FULCRUM GROWTH PARTNERS II, L.P. GROUP MEMBERS: FULCRUM GROWTH PARTNERS III, L.L.C. GROUP MEMBERS: FULCRUM MICRO-CAP, L.L.C. GROUP MEMBERS: MCCARTHY CAPITAL CORPORATION GROUP MEMBERS: MCCARTHY GROUP, LLC GROUP MEMBERS: MGI HOLDINGS, INC. GROUP MEMBERS: MGL HOLDINGS, LLC SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: CABELAS INC CENTRAL INDEX KEY: 0001267130 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-MISCELLANEOUS SHOPPING GOODS STORES [5940] IRS NUMBER: 200486586 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-80370 FILM NUMBER: 08686293 BUSINESS ADDRESS: STREET 1: ONE CABELA DRIVE CITY: SIDNEY STATE: NE ZIP: 69160 BUSINESS PHONE: 308-254-5505 MAIL ADDRESS: STREET 1: ONE CABELA DRIVE CITY: SIDNEY STATE: NE ZIP: 69160 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: MCCARTHY MICHAEL R CENTRAL INDEX KEY: 0001008544 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 222 S 15TH STREET STREET 2: SUITE 600 N CITY: OMAHA STATE: NE ZIP: 68102 BUSINESS PHONE: 402-932-8600 MAIL ADDRESS: STREET 1: 1601 DODGE ST STREET 2: SUITE 3800 CITY: OMAHA STATE: NE ZIP: 68102 SC 13D 1 dsc13d.htm SCHEDULE 13D Schedule 13D

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

Under the Securities Exchange Act of 1934

(Amendment No. )

CABELA’S INCORPORATED

(Name of Issuer)

Common Stock, $0.01 par value

(Title of Class of Securities)

126804301

(CUSIP Number)

Guy Lawson, Esq.

McGrath North Mullin & Kratz, PC LLO

Suite 3700 First National Tower

1601 Dodge Street

Omaha, Nebraska 68102

(402) 341-3070

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

March 3, 2008

(Date of Event which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), Rule 13d-1(f) or Rule 13d-1(g), check the following box ¨.

CUSIP NO. 126804301


1.	Names of Reporting Person McCarthy Group, LLC
2.	Check the Appropriate Box if a Member of a Group (see instructions) (a) ¨ (b) x
3.	SEC Use Only
4.	Source of Funds OO
5.	Check Box If Disclosure of Legal Proceedings Is Required Pursuant To Items 2(d) or 2(e)	¨
6.	Citizenship or Place of Organization Delaware


Number of Shares Beneficially Owned By Each Reporting Person With:		7. Sole Voting Power 3,589,471
		8. Shared Voting Power -0-
		9. Sole Dispositive Power 3,589,471
		10. Shared Dispositive Power -0-


11.	Aggregate Amount Beneficially Owned By Each Reporting Person 3,691,826*
12.	Check Box If The Aggregate Amount In Row (11) Excludes Certain Shares	¨
13.	Percent of Class Represented By Amount In Row (11) 5.6%
14.	Type Of Reporting Person OO

Includes (i) 91,015 shares of Common Stock held by Michael R. McCarthy; (ii) options currently exercisable (or exercisable within 60 days) to acquire 11,340 shares of Common Stock held by Michael R. McCarthy; (iii) 3,032,016 shares of Common Stock held by MGL Holdings, LLC; and (iv) 557,455 shares of Common Stock held by Fulcrum Micro-Cap, L.L.C. McCarthy Group, LLC expressly disclaims any beneficial ownership of the shares listed in (i) – (ii) above.

CUSIP NO. 126804301


1.	Names of Reporting Person MGL Holdings, LLC
2.	Check the Appropriate Box if a Member of a Group (see instructions) (a) ¨ (b) x
3.	SEC Use Only
4.	Source of Funds OO
5.	Check Box If Disclosure of Legal Proceedings Is Required Pursuant To Items 2(d) or 2(e)	¨
6.	Citizenship or Place of Organization Delaware


Number of Shares Beneficially Owned By Each Reporting Person With:		7. Sole Voting Power 3,032,016
		8. Shared Voting Power -0-
		9. Sole Dispositive Power 3,032,016
		10. Shared Dispositive Power -0-


11.	Aggregate Amount Beneficially Owned By Each Reporting Person 3,691,826*
12.	Check Box If The Aggregate Amount In Row (11) Excludes Certain Shares	¨
13.	Percent of Class Represented By Amount In Row (11) 5.6%
14.	Type Of Reporting Person OO

Includes (i) 91,015 shares of Common Stock held by Michael R. McCarthy; (ii) options currently exercisable (or exercisable within 60 days) to acquire 11,340 shares of Common Stock held by Michael R. McCarthy; (iii) 3,032,016 shares of Common Stock held by MGL Holdings, LLC; and (iv) 557,455 shares of Common Stock held by Fulcrum Micro-Cap, L.L.C. MGL Holdings, LLC expressly disclaims any beneficial ownership of the shares listed in (i) – (ii) and (iv) above.

CUSIP NO. 126804301


1.	Names of Reporting Person MGI Holdings, Inc.
2.	Check the Appropriate Box if a Member of a Group (see instructions) (a) ¨ (b) x
3.	SEC Use Only
4.	Source of Funds OO
5.	Check Box If Disclosure of Legal Proceedings Is Required Pursuant To Items 2(d) or 2(e)	¨
6.	Citizenship or Place of Organization Nebraska


Number of Shares Beneficially Owned By Each Reporting Person With:		7. Sole Voting Power 3,589,471
		8. Shared Voting Power -0-
		9. Sole Dispositive Power 3,589,471
		10. Shared Dispositive Power -0-


11.	Aggregate Amount Beneficially Owned By Each Reporting Person 3,691,826*
12.	Check Box If The Aggregate Amount In Row (11) Excludes Certain Shares	¨
13.	Percent of Class Represented By Amount In Row (11) 5.6%
14.	Type Of Reporting Person CO

Includes (i) 91,015 shares of Common Stock held by Michael R. McCarthy; (ii) options currently exercisable (or exercisable within 60 days) to acquire 11,340 shares of Common Stock held by Michael R. McCarthy; (iii) 3,032,016 shares of Common Stock held by MGL Holdings, LLC; and (iv) 557,455 shares of Common Stock held by Fulcrum Micro-Cap, L.L.C. MGI Holdings, Inc. expressly disclaims any beneficial ownership of the shares listed in (i) – (ii) above.

CUSIP NO. 126804301


1.	Names of Reporting Person McCarthy Capital Corporation
2.	Check the Appropriate Box if a Member of a Group (see instructions) (a) ¨ (b) x
3.	SEC Use Only
4.	Source of Funds OO
5.	Check Box If Disclosure of Legal Proceedings Is Required Pursuant To Items 2(d) or 2(e)	¨
6.	Citizenship or Place of Organization Nebraska


Number of Shares Beneficially Owned By Each Reporting Person With:		7. Sole Voting Power 3,589,471
		8. Shared Voting Power -0-
		9. Sole Dispositive Power 3,589,471
		10. Shared Dispositive Power -0-


11.	Aggregate Amount Beneficially Owned By Each Reporting Person 3,691,826*
12.	Check Box If The Aggregate Amount In Row (11) Excludes Certain Shares	¨
13.	Percent of Class Represented By Amount In Row (11) 5.6%
14.	Type Of Reporting Person IA, CO

Includes (i) 91,015 shares of Common Stock held by Michael R. McCarthy; (ii) options currently exercisable (or exercisable within 60 days) to acquire 11,340 shares of Common Stock held by Michael R. McCarthy; (iii) 3,032,016 shares of Common Stock held by MGL Holdings, LLC; and (iv) 557,455 shares of Common Stock held by Fulcrum Micro-Cap, L.L.C. McCarthy Capital Corporation expressly disclaims any beneficial ownership of the shares listed in (i) – (ii) above.

CUSIP NO. 126804301


1.	Names of Reporting Person Fulcrum Growth Partners II, L.P.
2.	Check the Appropriate Box if a Member of a Group (see instructions) (a) ¨ (b) x
3.	SEC Use Only
4.	Source of Funds OO
5.	Check Box If Disclosure of Legal Proceedings Is Required Pursuant To Items 2(d) or 2(e)	¨
6.	Citizenship or Place of Organization Delaware


Number Of Shares Beneficially Owned By Each Reporting Person With		7. Sole Voting Power -0-
		8. Shared Voting Power -0-
		9. Sole Dispositive Power -0-
		10. Shared Dispositive Power -0-


11.	Aggregate Amount Beneficially Owned By Each Reporting Person 3,691,826*
12.	Check Box If The Aggregate Amount In Row (11) Excludes Certain Shares	¨
13.	Percent of Class Represented By Amount In Row (11) 5.6%
14.	Type Of Reporting Person PN

Includes (i) 91,015 shares of Common Stock held by Michael R. McCarthy; (ii) options currently exercisable (or exercisable within 60 days) to acquire 11,340 shares of Common Stock held by Michael R. McCarthy; (iii) 3,032,016 shares of Common Stock held by MGL Holdings, LLC; and (iv) 557,455 shares of Common Stock held by Fulcrum Micro-Cap, L.L.C. Fulcrum Growth Partners II, L.P. expressly disclaims any beneficial ownership of the shares listed in (i) – (iii) above.

CUSIP NO. 126804301


1.	Names of Reporting Person Fulcrum GP, L.L.C.
2.	Check the Appropriate Box if a Member of a Group (see instructions) (a) ¨ (b) x
3.	SEC Use Only
4.	Source of Funds OO
5.	Check Box If Disclosure of Legal Proceedings Is Required Pursuant To Items 2(d) or 2(e)	¨
6.	Citizenship or Place of Organization Delaware


Number Of Shares Beneficially Owned By Each Reporting Person With		7. Sole Voting Power -0-
		8. Shared Voting Power -0-
		9. Sole Dispositive Power -0-
		10. Shared Dispositive Power -0-


11.	Aggregate Amount Beneficially Owned By Each Reporting Person 3,691,826*
12.	Check Box If The Aggregate Amount In Row (11) Excludes Certain Shares	¨
13.	Percent of Class Represented By Amount In Row (11) 5.6%
14.	Type Of Reporting Person OO

Includes (i) 91,015 shares of Common Stock held by Michael R. McCarthy; (ii) options currently exercisable (or exercisable within 60 days) to acquire 11,340 shares of Common Stock held by Michael R. McCarthy; (iii) 3,032,016 shares of Common Stock held by MGL Holdings, LLC; and (iv) 557,455 shares of Common Stock held by Fulcrum Micro-Cap, L.L.C. Fulcrum GP, L.L.C. expressly disclaims any beneficial ownership of the shares listed in (i) – (iii) above.

CUSIP NO. 126804301


1.	Names of Reporting Person Fulcrum Growth Partners III, L.L.C.
2.	Check the Appropriate Box if a Member of a Group (see instructions) (a) ¨ (b) x
3.	SEC Use Only
4.	Source of Funds OO
5.	Check Box If Disclosure of Legal Proceedings Is Required Pursuant To Items 2(d) or 2(e)	¨
6.	Citizenship or Place of Organization Delaware


Number Of Shares Beneficially Owned By Each Reporting Person With		7. Sole Voting Power -0-
		8. Shared Voting Power -0-
		9. Sole Dispositive Power -0-
		10. Shared Dispositive Power -0-


11.	Aggregate Amount Beneficially Owned By Each Reporting Person 3,691,826*
12.	Check Box If The Aggregate Amount In Row (11) Excludes Certain Shares	¨
13.	Percent of Class Represented By Amount In Row (11) 5.6%
14.	Type Of Reporting Person OO

Includes (i) 91,015 shares of Common Stock held by Michael R. McCarthy; (ii) options currently exercisable (or exercisable within 60 days) to acquire 11,340 shares of Common Stock held by Michael R. McCarthy; (iii) 3,032,016 shares of Common Stock held by MGL Holdings, LLC; and (iv) 557,455 shares of Common Stock held by Fulcrum Micro-Cap, L.L.C. Fulcrum Growth Partners III, L.L.C. expressly disclaims any beneficial ownership of the shares listed in (i) – (iii) above.

CUSIP NO. 126804301


1.	Names of Reporting Person Fulcrum Micro-Cap, L.L.C.
2.	Check the Appropriate Box if a Member of a Group (see instructions) (a) ¨ (b) x
3.	SEC Use Only
4.	Source of Funds WC, BK
5.	Check Box If Disclosure of Legal Proceedings Is Required Pursuant To Items 2(d) or 2(e)	¨
6.	Citizenship or Place of Organization Nebraska


Number Of Shares Beneficially Owned By Each Reporting Person With		7. Sole Voting Power 557,455
		8. Shared Voting Power -0-
		9. Sole Dispositive Power 557,455
		10. Shared Dispositive Power -0-


11.	Aggregate Amount Beneficially Owned By Each Reporting Person 3,691,826*
12.	Check Box If The Aggregate Amount In Row (11) Excludes Certain Shares	¨
13.	Percent of Class Represented By Amount In Row (11) 5.6%
14.	Type Of Reporting Person OO

Includes (i) 91,015 shares of Common Stock held by Michael R. McCarthy; (ii) options currently exercisable (or exercisable within 60 days) to acquire 11,340 shares of Common Stock held by Michael R. McCarthy; (iii) 3,032,016 shares of Common Stock held by MGL Holdings, LLC; and (iv) 557,455 shares of Common Stock held by Fulcrum Micro-Cap, L.L.C. Fulcrum Micro-Cap, L.L.C. expressly disclaims any beneficial ownership of the shares listed in (i) – (iii) above.

CUSIP NO. 126804301


1.	Names of Reporting Person Michael R. McCarthy
2.	Check the Appropriate Box if a Member of a Group (see instructions) (a) ¨ (b) x
3.	SEC Use Only
4.	Source of Funds OO
5.	Check Box If Disclosure of Legal Proceedings Is Required Pursuant To Items 2(d) or 2(e)	¨
6.	Citizenship or Place of Organization United States


Number Of Shares Beneficially Owned By Each Reporting Person With		7. Sole Voting Power 3,691,826
		8. Shared Voting Power -0-
		9. Sole Dispositive Power 3,691,826
		10. Shared Dispositive Power -0-


11.	Aggregate Amount Beneficially Owned By Each Reporting Person 3,691,826*
12.	Check Box If The Aggregate Amount In Row (11) Excludes Certain Shares	¨
13.	Percent of Class Represented By Amount In Row (11) 5.6%
14.	Type Of Reporting Person IN

Includes (i) 91,015 shares of Common Stock held by Michael R. McCarthy; (ii) options currently exercisable (or exercisable within 60 days) to acquire 11,340 shares of Common Stock held by Michael R. McCarthy; (iii) 3,032,016 shares of Common Stock held by MGL Holdings, LLC; and (iv) 557,455 shares of Common Stock held by Fulcrum Micro-Cap, L.L.C. Mr. McCarthy expressly disclaims any beneficial ownership of the shares listed in (iii) – (iv) above except to the extent of his pecuniary interest therein.

Item 1.

Security and Issuer

This statement on Schedule 13D (the “Statement”) relates to the common stock, par value $0.01 per share (the “Common Stock”), of Cabela’s Incorporated, a Delaware corporation (the “Issuer”). The principal executive offices of the Issuer are located at One Cabela Drive, Sidney, Nebraska 69160.

Item 2.

Identity and Background

(a) – (c) This Statement is being jointly filed by McCarthy Group, LLC; MGL Holdings, LLC; MGI Holdings, Inc.; McCarthy Capital Corporation; Fulcrum Growth Partners II, L.P.; Fulcrum GP, L.L.C., Fulcrum Growth Partners III, L.L.C.; Fulcrum Micro-Cap, L.L.C.; and Michael R. McCarthy (each a “Reporting Person” and collectively, the “Reporting Persons”).

As of the date of this filing, the Reporting Persons are the beneficial owners of, in the aggregate, 3,691,826 shares of Common Stock, representing approximately 5.6% of the shares of Common Stock presently outstanding.

As a result of the existing relationships described under this Item 2 and the matters described in Item 4 below, the Reporting Persons may be deemed to constitute a “group” within the meaning of Rule 13d-5(b) under the Securities Exchange Act of 1934 (the “Act”). Each of the Reporting Persons is responsible for the completeness and accuracy of the information concerning him or it contained herein, but is not responsible for the completeness and accuracy of the information concerning the others, except to the extent that he or it knows or has reason to believe that such information is inaccurate. However, neither the present filing nor anything contained herein shall be construed as an admission that all or any of the Reporting Persons constitute a “group” within the meaning of Rule 13d-5(b) under the Act. Each of the Reporting Persons expressly disclaims beneficial ownership of securities held by any person or entity other than, to the extent of any pecuniary interest therein, the various accounts under such Reporting Person’s management and control.

McCarthy Group, LLC, is a Delaware limited liability company. It is a holding company that primarily engages, through its subsidiaries and affiliates, in the business of acquiring, holding and disposing of investments in various companies. The address of the principal business and principal office of McCarthy Group, LLC, is First National Tower, 1601 Dodge Street, Suite 3800, Omaha, Nebraska 68102. Information concerning the name, business address and present principal occupation or employment of the executive officers and directors of McCarthy Group, LLC is attached as Schedule I hereto.

MGL Holdings, LLC, is a Delaware limited liability company. It is a wholly owned subsidiary of McCarthy Group, LLC that primarily engages in the business of acquiring, holding and disposing of investments in various companies. McCarthy Capital Corporation is the manager of MGL Holdings, LLC. The address of the principal business and principal office of MGL Holdings, LLC, is First National Tower, 1601 Dodge Street, Suite 3800, Omaha, Nebraska 68102.

MGI Holdings, Inc., is a Nebraska corporation. It is a wholly owned subsidiary of McCarthy Group, LLC that primarily engages in the business of acquiring, holding and disposing of investments in various companies. The address of the principal business and principal office of MGI Holdings, Inc., is First National Tower, 1601 Dodge Street, Suite 3800, Omaha, Nebraska 68102.

Information concerning the name, business address and present principal occupation or employment of each of the executive officers and directors of MGI Holdings, Inc. is filed as Schedule II hereto.

McCarthy Capital Corporation is a Nebraska corporation. It is a wholly owned subsidiary of MGI Holdings, Inc., and is registered with the Securities and Exchange Commission as an investment adviser. It engages in the business of rendering advice regarding acquiring, holding and disposing of investments in various companies. McCarthy Capital Corporation is the manager of MGL Holdings, LLC, Fulcrum GP, L.L.C. and Fulcrum Micro-Cap, L.L.C. McCarthy Capital Corporation is also the investment advisor to Fulcrum Growth Partners II, L.P. and Fulcrum Growth Partners III, L.L.C. The address of the principal business and principal office of McCarthy Capital Corporation is First National Tower, 1601 Dodge Street, Suite 3800, Omaha, Nebraska 68102. Information concerning the name, business address and present principal occupation or employment of each of the executive officers and directors of McCarthy Capital Corporation is filed as Schedule III hereto.

Fulcrum Growth Partners II, L.P., is a Delaware limited partnership formed to engage in the business of acquiring, holding and disposing of investments in various companies. The address of the principal business and principal office of Fulcrum Growth Partners II, L.P., is First National Tower, 1601 Dodge Street, Suite 3800, Omaha, Nebraska 68102.

The general partner of Fulcrum Growth Partners II, L.P., is Fulcrum GP, L.L.C. Fulcrum GP, L.L.C., is a Delaware limited liability company formed to be the general partner of Fulcrum Growth Partners II, L.P. McCarthy Capital Corporation is the manager of Fulcrum GP, L.L.C. The address of the principal business and principal office of Fulcrum GP, L.L.C., is First National Tower, 1601 Dodge Street, Suite 3800, Omaha, Nebraska 68102.

Fulcrum Growth Partners III, L.L.C., is a Delaware limited liability company formed to engage in the business of acquiring, holding and disposing of investments in various companies. McCarthy Group, LLC, is the managing member of Fulcrum Growth Partners III, L.L.C. The address of the principal business and principal office of Fulcrum Growth Partners III, L.L.C., is First National Tower, 1601 Dodge Street, Suite 3800, Omaha, Nebraska 68102.

Fulcrum Micro-Cap, L.L.C., is a Delaware limited liability company formed to engage in the business of acquiring, holding and disposing of investments in various companies. McCarthy Capital Corporation is the manager of Fulcrum Micro-Cap, L.L.C. Fulcrum Growth Partners II, L.P., and Fulcrum Growth Partners III, L.L.C., each own fifty percent of Fulcrum Micro-Cap, L.L.C. The address of the principal business and principal office of Fulcrum Micro-Cap, L.L.C., is First National Tower, 1601 Dodge Street, Suite 3800, Omaha, Nebraska 68102.

Michael R. McCarthy is the Chairman of McCarthy Group, LLC. As the Chairman of McCarthy Group, LLC, he may be deemed to beneficially own any shares of Common Stock of the Issuer that McCarthy Group, LLC beneficially owns. Mr. McCarthy is also a director of the Issuer. Mr. McCarthy's business address is c/o McCarthy Group, LLC, First National Tower, 1601 Dodge Street, Suite 3800, Omaha, Nebraska 68102.

(d)—(e) During the last five years, none of the Reporting Persons, nor, to their knowledge, any executive officer or director of McCarthy Group, LLC, MGI Holdings, Inc. or McCarthy Capital Corporation, was convicted in a criminal proceeding (excluding traffic violations and similar misdemeanors) or was a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

(f) Each natural person identified in Schedule I, Schedule II and Schedule III hereto is a citizen of the United States.

This Item 2 is qualified in its entirety by reference to Schedule I, Schedule II and Schedule III which are attached hereto and incorporated into this Item 2 by this reference.

Item 3.

Source and Amount of Funds or Other Consideration

The shares of Common Stock acquired by Fulcrum Micro-Cap, L.L.C. were acquired with working capital and loan proceeds received from First National Bank of Omaha pursuant to a revolving credit agreement with First National Bank of Omaha used in the ordinary course of business. All loan proceeds will be repaid using capital contributions in cash received from certain members of Fulcrum Micro-Cap, L.L.C.

Item 4.

Purpose of Transaction

Fulcrum Micro-Cap, L.L.C. acquired 557,455 shares of Common Stock in the ordinary course of business during March 2008 for investment purposes. The shares of Common Stock held by the Reporting Persons that have been previously acquired are also held for investment purposes. The Reporting Persons, depending upon the market price for the Common Stock or other securities of the Issuer, and other factors, in the future may (subject to any then-existing legal or contractual limitations) acquire additional shares of the Common Stock or other securities of the Issuer.

The Reporting Persons intend to monitor the business and affairs of the Issuer closely and to continuously review their investment in the Common Stock, or other securities of the Issuer, and to evaluate various strategies with respect to their investment. Based upon such review, evaluation and other factors the Reporting Persons may deem relevant, the Reporting Persons, as stockholders, may consider various courses of action with respect to their investment, including, but not limited to, making recommendations to the Board of Directors of the Issuer with respect to various business strategies, including mergers, acquisitions, dispositions, sale or transfer of assets or other extraordinary transactions, engaging in discussions with potential financial or strategic investors or other parties and/or communicating with other stockholders of the Issuer. There can be no assurance, however, that the Reporting Persons will take any of the actions set forth above. Additionally, if the Reporting Persons were to make a recommendation to the Board of Directors with respect to any of the actions described above, the Reporting Persons are not aware of how the Board would react and whether the Board would support or take any action with respect to such recommendation.

Additionally, also depending upon the market price for the Issuer’s Common Stock, general market conditions and other factors, the Reporting Persons, in the future, may (subject to any then-existing legal or contractual limitations) dispose of all or a portion of the Common Stock, or other securities of the Issuer, which they currently own or may acquire.

Except as set forth in this Item 4, at this time, the Reporting Persons do not presently have any plans or proposals which relate to or would result in any matters set forth in clauses (a) through (j) of Item 4 of Schedule 13D.

Item 5.

Interest in Securities of the Issuer

(a) – (b)


Reporting Person(s)	Aggregate Number Beneficially Owned		Percentage of Class (1)		Sole Power to Vote or Direct the Vote	Shared Power to Vote or Direct the Vote	Sole Power to Dispose or Direct the Disposition	Shared Power to Dispose or Direct the Disposition
McCarthy Group, LLC	3,691,826	(2)	5.6	%	3,589,471	0	3,589,471	0
MGL Holdings, LLC.	3,691,826	(3)	5.6	%	3,032,016	0	3,032,016	0
MGI Holdings, Inc.	3,691,826	(2)	5.6	%	3,589,471	0	3,589,471	0
McCarthy Capital Corporation	3,691,826	(2)	5.6	%	3,589,471	0	3,589,471	0
Fulcrum Growth Partners II, L.P.	3,691,826	(4)	5.6	%	0	0	0	0
Fulcrum GP, L.L.C.	3,691,826	(4)	5.6	%	0	0	0	0
Fulcrum Growth Partners III, L.L.C.	3,691,826	(4)	5.6	%	0	0	0	0
Fulcrum Micro-Cap, L.L.C.	3,691,826	(4)	5.6	%	557,455	0	557,455	0
Michael R. McCarthy	3,691,826	(5)	5.6	%	3,691,826	0	3,691,826	0

(1)	Based on 65,888,384 shares of Common Stock outstanding as of February 19, 2008 (as reported in the Issuer’s Form 10-K filed on February 27, 2008).

(2)

Includes (i) 91,015 shares of Common Stock held by Michael R. McCarthy; (ii) options currently exercisable (or exercisable within 60 days) to acquire 11,340 shares of Common Stock held by Michael R. McCarthy; (iii) 3,032,016 shares of Common Stock held by MGL Holdings, LLC; and (iv) 557,455 shares of Common Stock held by Fulcrum Micro-Cap, L.L.C. This Reporting Persion expressly disclaims any beneficial ownership of the shares listed in (i) – (ii) above.

(3)

Includes (i) 91,015 shares of Common Stock held by Michael R. McCarthy; (ii) options currently exercisable (or exercisable within 60 days) to acquire 11,340 shares of Common Stock held by Michael R. McCarthy; (iii) 3,032,016 shares of Common Stock held by MGL Holdings, LLC; and (iv) 557,455 shares of Common Stock held by Fulcrum Micro-Cap, L.L.C. This Reporting Person expressly disclaims any beneficial ownership of the shares listed in (i) – (ii) and (iv) above.

(4)

Includes (i) 91,015 shares of Common Stock held by Michael R. McCarthy; (ii) options currently exercisable (or exercisable within 60 days) to acquire 11,340 shares of Common Stock held by Michael R. McCarthy; (iii) 3,032,016 shares of Common Stock held by MGL Holdings, LLC; and (iv) 557,455 shares of Common Stock held by Fulcrum Micro-Cap, L.L.C. This Reporting Person expressly disclaims any beneficial ownership of the shares listed in (i) – (iii) above.

(5)

Includes (i) 91,015 shares of Common Stock held by Michael R. McCarthy; (ii) options currently exercisable (or exercisable within 60 days) to acquire 11,340 shares of Common Stock held by Michael R. McCarthy; (iii) 3,032,016 shares of Common Stock held by MGL Holdings, LLC; and (iv) 557,455 shares of Common Stock held by Fulcrum Micro-Cap, L.L.C. Mr. McCarthy expressly disclaims any beneficial ownership of the shares listed in (iii) – (iv) above except to the extent of his pecuniary interest therein.

(c) The purchases of Common Stock executed by each of the Reporting Persons within the last 60 days are summarized below to report (i) the total amount of shares that were the subject of transactions effected on each day, and (ii) the lowest and highest price per shares at which the transactions were effected:

Fulcrum Micro-Cap, LLC:


Date	Quantity	Low	High
03/03/08	310,000	$13.33	$13.85
03/04/08	117,300	13.52	14.00
03/05/08	101,200	13.83	14.00
03/07/08	28,955	13.99	14.00

All such transactions were effected in the secondary market through broker-dealers or an electronic trading network; there were no sales of Common Stock by any of the Reporting Persons within the last 60 days.

To the knowledge of the Reporting Persons, none of the executive officers or directors of MGL Holdings, LLC, MGI Holdings, Inc., or McCarthy Capital Corporation, has engaged in any transaction in any shares of the Issuer’s Common Stock during the sixty days immediately preceding the date hereof.

(d); (e) Not applicable.

Item 6.

Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.

Mr. McCarthy is a director of the Issuer, and has received options to purchase Common Stock as compensation for his services. Mr. McCarthy currently holds fully vested options to acquire 11,340 shares of Common Stock at prices ranging from $18.81 per share to $20 per share. These options were granted to Mr. McCarthy pursuant to the Issuer’s 2004 Stock Plan (see Exhibit 7.02 and 7.03) and expire 10 years from the date of grant. Mr. McCarthy also holds options to acquire 2,000 shares of Common Stock at $22.32 per share which were granted pursuant to the Issuer’s 2004 Stock Plan that vest on May 16, 2008 and expire on May 16, 2017. Mr. McCarthy has no current plans to exercise any options to purchase Common Stock.

Pursuant to the Operating Agreement of MGL Holdings, LLC dated as of August 2, 2007 (see Exhibit 7.04) as amended as of August 3, 2007 (see Exhibit 7.05), McCarthy Capital Corporation serves as the sole manager of MGL Holdings, LLC. As the sole manger of MGL Holdings, LLC, McCarthy Capital Corporation has the right and ability to vote or dispose of the Common Stock of the Issuer held by MGL Holdings, LLC.

Pursuant to the Operating Agreement of Fulcrum Micro-Cap, L.L.C. dated as of November 8, 2005 (see Exhibit 7.06) as amended as of January 1, 2008 (see Exhibit 7.07), McCarthy Capital Corporation serves as the sole manager of Fulcrum Micro-Cap, L.L.C. As the sole manager of Fulcrum Micro-Cap, L.L.C., McCarthy Capital Corporation has the right and ability to vote or dispose of the Common Stock of the Issuer held by Fulcrum Micro-Cap, L.L.C.

The Reporting Persons have not entered into any other formal written agreements with each other with respect to the acquisition or disposition of the shares or other matters reported herein. Although certain Reporting Persons are parties to a number of different operating agreements, partnership agreements and management agreements, each of such agreements were entered into

in advance of the Reporting Persons’ recent acquisitions of the securities of the Issuer, and except as described above in Item 4 and incorporated herein by this reference, the Reporting Persons have no other contracts, agreements, understandings or relationships with respect to the securities of the Issuer.

Item 7.

Material to Be Filed as Exhibits


Exhibit 7.01		Joint Filing Agreement

Exhibit 7.02		Cabela’s Incorporated 2004 Stock Plan (as amended and restated effective May 15, 2007) (incorporated by reference to Exhibit 10 of the Issuer’s Current Report on Form 8-K, filed on May 21, 2007, File No. 001-32227).

Exhibit 7.03		Form of 2004 Stock Plan Non-Employee Director Stock Option Agreement (2006) (incorporated by reference to Exhibit 10.2 of the Issuer’s Current Report on Form 8-K, filed on May 15, 2006, File No. 001-32227)

Exhibit 7.04		Operating Agreement of Fulcrum Financial Holdings, LLC (now known as MGL Holdings, LLC) dated as of August 2, 2007.

Exhibit 7.05		Amendment to Operating Agreement of MGL Holdings, LLC dated as of August 3, 2007

Exhibit 7.06		Operating Agreement of Fulcrum Micro-Cap, L.L.C. dated as of November 8, 2005

Exhibit 7.07		Amendment to Operating Agreement of Fulcrum Micro-Cap, L.L.C. dated as of January 1, 2008

(signature pages follow)

Signature

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Date: March 13, 2008


McCarthy Group, LLC, a Delaware limited liability company		MGI Holdings, Inc., a Nebraska corporation

By:	/s/ Michael R. McCarthy	By:	/s/ Michael R. McCarthy
	Michael R. McCarthy, Chairman		Michael R. McCarthy, Chairman



MGL Holdings, LLC		McCarthy Capital Corporation,
a Delaware limited liability company		a Nebraska corporation

By:	McCarthy Capital Corporation,	By:	/s/ Michael R. McCarthy

Its:	a Nebraska Corporation Manager		Michael R. McCarthy, Chairman

By:

/s/ Michael R. McCarthy

Michael R. McCarthy,

Chairman


Fulcrum Growth Partners II, L.P., a Delaware limited partnership		Fulcrum GP, L.L.C., a Delaware limited liability company

By:	Fulcrum GP, L.L.C., a Delaware limited liability company	By:	McCarthy Capital Corporation, a Nebraska Corporation
Its:	General Partner	Its:	Manager

By:

McCarthy Capital Corporation,

By:

/s/ Michael R. McCarthy

Its:

a Nebraska Corporation

Manager

Michael R. McCarthy,
Chairman

By:

/s/ Michael R. McCarthy

Michael R. McCarthy,

Chairman


Fulcrum Growth Partners III, L.L.C., a Delaware limited liability company						Fulcrum Micro-Cap, L.L.C., a Delaware limited liability company

By:

McCarthy Group, LLC,

a Delaware limited liability company

By:

McCarthy Capital Corporation,

a Nebraska Corporation

Its:

Managing Member

Its:

Manager

By:

/s/ Michael R. McCarthy

By:

/s/ Michael R. McCarthy

Michael R. McCarthy,

Chairman

Michael R. McCarthy,

Chairman

/s/ Michael R. McCarthy

Michael R. McCarthy

SCHEDULE I

Directors and Executive Officers of McCarthy Group, LLC


Name and Position	Principal Occupation	Principal Business Address
Michael R. McCarthy, Chairman and Director	Chairman of McCarthy Group, LLC	First National Tower 1601 Dodge Street, Suite 3800 Omaha, NE 68102

Richard L. Jarvis, Vice Chairman and Director	Chief Investment Officer of McCarthy Group Advisors, LLC	1125 South 103^rd Street, Suite 250 Omaha, NE 68124

Robert D. Bates, Director	Business Consultant	1125 South 103^rd Street, Suite 520 Omaha, NE 68124

Margaret L. Doyle, Director	Managing Member of Lacey Doyle, LLC	3415 N 128th Circle Omaha, NE 68154

John Gottschalk, Director	Chairman of Omaha World-Herald Company	Omaha World-Herald Building 1314 Douglas Street, Suite 1500 Omaha, NE 68102

Howard L. Hawks, Director	Chairman and CEO of Tenaska, Inc.	1044 N. 115^th Street, #400 Omaha, NE 68154

Steven W. Seline, Director	President of Walnut Private Equity Partners	8712 W Dodge Road, Suite 220 Omaha, NE 68144

Gerald H. Timmerman, Director	President of Timmerman & Sons Feeding Co., Inc.	PO Box 367 Springfield, NE 68059

SCHEDULE II

Directors and Executive Officers of MGI Holdings, Inc.

Name and Position

Principal Occupation

Principal Business Address

Michael R. McCarthy, Chairman and Sole Director

Chairman of McCarthy Group, LLC

First National Tower

1601 Dodge Street, Suite 3800

Omaha, NE

SCHEDULE III

Directors and Executive Officers of McCarthy Capital Corporation


Name and Position	Principal Occupation	Principal Business Address
Michael R. McCarthy, Chairman and Sole Director	Chairman of McCarthy Group, LLC	First National Tower 1601 Dodge Street, Suite 3800 Omaha, NE

Dana C. Bradford, President	President of McCarthy Capital Corporation	First National Tower 1601 Dodge Street, Suite 3800 Omaha, NE

EX-7.01 2 dex701.htm JOINT FILING AGREEMENT Joint Filing Agreement

Exhibit 7.01

Joint Filing Agreement

In accordance with Rule 13d-1(k)(1) under the Securities Exchange Act of 1934, as amended, the persons named below agree to the joint filing on behalf of each of them of a Schedule 13D, dated March 3, 2008 (including amendments thereto) with respect to the common shares of Cabela’s Incorporated. This Joint Filing Agreement shall be filed as an Exhibit to such Schedule 13D.

Dated: March 13, 2008


McCarthy Group, LLC, a Delaware limited liability company		MGI Holdings, Inc., a Nebraska corporation

By:	/s/ Michael R. McCarthy	By:	/s/ Michael R. McCarthy
	Michael R. McCarthy, Chairman		Michael R. McCarthy, Chairman



MGL Holdings, LLC		McCarthy Capital Corporation,
a Delaware limited liability company		a Nebraska corporation

By:	McCarthy Capital Corporation,	By:	/s/ Michael R. McCarthy

Its:	a Nebraska Corporation Manager		Michael R. McCarthy, Chairman

By:

/s/ Michael R. McCarthy

Michael R. McCarthy,

Chairman


Fulcrum Growth Partners II, L.P., a Delaware limited partnership		Fulcrum GP, L.L.C., a Delaware limited liability company

By:	Fulcrum GP, L.L.C., a Delaware limited liability company	By:	McCarthy Capital Corporation, a Nebraska Corporation
Its:	General Partner	Its:	Manager

By:

McCarthy Capital Corporation,

By:

/s/ Michael R. McCarthy

Its:

a Nebraska Corporation

Manager

Michael R. McCarthy,
Chairman

By:

/s/ Michael R. McCarthy

Michael R. McCarthy,

Chairman


Fulcrum Growth Partners III, L.L.C., a Delaware limited liability company						Fulcrum Micro-Cap, L.L.C., a Delaware limited liability company

By:

McCarthy Group, LLC,

a Delaware limited liability company

By:

McCarthy Capital Corporation,

a Nebraska Corporation

Its:

Managing Member

Its:

Manager

By:

/s/ Michael R. McCarthy

By:

/s/ Michael R. McCarthy

Michael R. McCarthy,

Chairman

Michael R. McCarthy,

Chairman

/s/ Michael R. McCarthy

Michael R. McCarthy

EX-7.04 3 dex704.htm OPERATING AGREEMENT OF FULCRUM FINANCIAL HOLDINGS, LLC Operating Agreement of Fulcrum Financial Holdings, LLC

Exhibit 7.04

OPERATING AGREEMENT OF

FULCRUM FINANCIAL HOLDINGS, LLC

THIS OPERATING AGREEMENT (this “Agreement”) is made and entered into effective the 2nd day of August, 2007.

ARTICLE 1

DEFINITIONS

As used in this Agreement, the following terms shall have the following meanings:

1.1 “Act” shall mean the Delaware Limited Liability Company Act, as it may be amended from time to time, and any successor to such Act.

1.2 “Affiliate” shall mean, when used with reference to a specific Person, any Person directly or indirectly controlling, controlled by or under common control with, such Person.

1.3 “Agreement” shall mean this Operating Agreement, as originally executed or as amended, modified, supplemented or restated from time to time, including Appendix “A” attached hereto and incorporated herein by this reference.

1.4 “Capital Account” shall mean the account of each Member established in accordance with Section 3.3.

1.5 “Capital Account Balance” shall have the meaning ascribed to it in Section 3.3 of this Agreement.

1.6 “Certificate” means the Company’s Certificate of Formation, as originally executed or as amended, modified, supplemented or restated from time to time, or any other instrument or document which is required under the laws of the state of Delaware to be signed and sworn to on behalf of the Company and filed in the appropriate public offices within the state of Delaware (i) to perfect or maintain the Company as a limited liability company under the laws of the state of Delaware, (ii) to effect the admission, withdrawal or substitution of any Member, or (iii) to protect the limited liability of the Members under the laws of the state of Delaware.

1.7 “Code” shall mean the Internal Revenue Code of 1986, as amended from time to time and any successor statute or subsequent codification or recodification of the federal income tax laws of the United States.

1.8 “Company” shall mean Fulcrum Financial Holdings, LLC, a Delaware limited liability company, as such limited liability company may from time to time be constituted.

1.9 “Interest” means the entire ownership interest of a Member in the Company at any particular time, including the right of such Member to any and all benefits to which a Member may be entitled as provided in this Agreement, together with the obligations of such Member to comply with all of the terms and provisions of this Agreement.

1.10 “Liquidator” shall mean the Person (which may be the Manager) designated by the Manager or, if there is no Person so designated at the time in question, such other Person who may be appointed in accordance with applicable law and who shall be responsible for taking all action necessary or appropriate to wind up the affairs and distribute the assets of the Company upon its dissolution.

1.11 “Manager” shall mean a Person appointed to manage the Company as provided in Section 6.1.

1.12 “Member” shall mean any Person who, at the time referenced, is a party to this Agreement.

1.13 “Person” shall mean an individual, a partnership, a joint venture, a corporation, a limited liability company or partnership, a trust, an estate, an unincorporated organization or association, or any other entity or a government or any department or agency thereof.

1.14 “Section” or “Article” shall mean a section or article, as applicable, of this Agreement unless otherwise indicated.

1.15 “Treasury Regulations” shall mean the regulations of the United States Department of the Treasury pertaining to the federal income tax, as from time to time in force.

1.16 “Units” shall mean the units of measurement used to reflect each Member’s equity interest in the Company as reflected in Appendix “A” attached hereto and incorporated herein by this reference.

ARTICLE 2

FORMATION

2.1 Formation. The Company has been organized as a limited liability company under the provisions of the Act by delivering the Certificate to the Secretary of State of the state of Delaware for filing. The Manager may take such further actions as the Manager deems necessary or advisable to permit the Company to conduct business as a limited liability company in any jurisdiction. The rights and liabilities of a Member under this Agreement shall be as provided by the Act, except as otherwise expressly stated in this Agreement.

2.2 Name. The name of the Company shall be Fulcrum Financial Holdings, LLC, or any other name permitted by the Act as the Members holding at least fifty-one percent (51%) of the Units shall afterwards designate by appropriate amendment to the Certificate. All business of the Company shall be conducted under the Company’s name.

2.3 Purposes. The purposes for which the Company is organized is to engage in any and all lawful business for which a limited liability company may be organized under the laws of the State of Delaware.

2.4 Principal Office. The principal office of the Company shall be First National Tower, 1601 Dodge St., Suite 3800, Omaha, Nebraska 68102 or such other place as the Members holding at least fifty-one percent (51%) of the Units may, from time to time, designate by appropriate amendment to the Certificate.

2.5 Registered Agent and Office. The registered agent for service of process and the registered office shall be that Person and location reflected in the Certificate as filed with the Secretary of State of the State of Delaware. The Members holding at least fifty-one percent (51%) of the Units may from time to time change the registered agent or office through appropriate filings with the Secretary of State of the State of Delaware. In the event the registered agent ceases to act as such for any reason or the registered office shall change, the Members holding at least fifty-one percent (51%) of the Units shall promptly designate a replacement agent or file a notice of change of address, as the case may be.

2.6 Names and Addresses of Members. The names and addresses of the Members and the Units owned by each of them shall be set forth from time to time on Appendix “A” to this Agreement. New or additional Members may only be admitted upon such terms and conditions of admission as may be determined by the Members holding at least fifty-one percent (51%) of the Units.

2.7 Fiscal Year. The fiscal year of the Company shall be the calendar year unless some other fiscal period is designated as the fiscal year by the Manager.

ARTICLE 3

CAPITAL CONTRIBUTIONS

3.1 Initial Capital Contributions. A Member’s contribution to capital, either initially or thereafter, may consist of cash, property or services rendered, or a promissory note or other binding obligation to contribute cash or property or to render services. The Members have made the capital contributions to the Company as set forth on Appendix “A”.

3.2 Additional Capital Contributions. Members may make such additional contributions, in the amounts determined by the Members holding at least fifty-one percent (51%) of the Units, to the capital of the Company in addition to the capital contributions set forth on Appendix “A”.

3.3 Capital Account. A capital account shall be established for the Members on the books of the Company and maintained in accordance with Section 1.704-1(b)(2) of the Treasury Regulations. The balance at any given time of a Member’s capital account shall be referred to in this Agreement as the Member’s “Capital Account Balance.” No Member shall be entitled to interest on any capital contribution or on such Member’s Capital Account Balance. No Member shall have any right to receive any funds or property of the Company, except as provided in this Agreement.

3.4 Withdrawal of Capital. The Members shall not receive from the Company property constituting any part of the Member’s contributions to capital unless and until:

a. All liabilities of the Company, except liabilities to Members on account of its/their contributions to capital, have been paid or there remains property in the Company sufficient to pay them; and

b. The Certificate is cancelled or so amended as and if necessary to set forth the result of the withdrawal or reduction.

ARTICLE 4

ALLOCATION AND DISTRIBUTION OF NET PROFITS AND LOSSES

4.1 Allocation of Profits and Losses. The profits and losses of the Company shall be allocated to the Members in accordance with their respective Interests.

4.2 Distributions. The Manager in the Manager’s discretion shall determine whether to retain the profits or distribute to the Members any amount of profits of the Company. Any such distribution may be made in cash or in kind as determined by the Manager.

ARTICLE 5

LIABILITY OF MEMBERS; ACTIONS OF MEMBERS

5.1 Liability to Third Parties. No Member shall be liable for the debts, obligations or liabilities of the Company, including under a judgment decree or order of a court.

5.2 Voting Rights. Except as otherwise provided in this Agreement or as required by law, the affirmative vote, consent or agreement of Members holding at least fifty-one percent (51%) of the Units shall be the act of the Members. All Members shall be entitled to attend meetings of the Members. Members may vote by written proxy.

5.3 Quorum. If any business is to be transacted by all the Members, regardless of their percentage ownership of Units, the presence of Members holding at least fifty-one percent (51%) of the Units shall constitute a quorum for the transaction of business. If a quorum is not present at said meeting, a majority of the Units represented at the meeting may adjourn the meeting from time to time without further notice.

5.4 Action Without a Meeting. Any action required or permitted to be taken by the Members by vote may be taken without a meeting on written consent. The consent shall set forth the actions so taken and shall be signed by Members holding the requisite Interests.

5.5 Meetings of Members. Meetings of Members, for any purpose or purposes appropriate for action by Members, may be called by the Manager or by Members owning, in the aggregate, at least fifty-one percent (51%) of the Units.

5.6 Notice of Meetings. Written notice stating the date, time and place of the meeting and a description of the purpose or purposes for which the meeting is called shall be mailed, unless oral notice is reasonable under the circumstances, not fewer than three (3) or more than thirty (30) calendar days before the date of the meeting, by or at the direction of the Members or Manager who has called the meeting, to each Member. If mailed, such notice is effective when mailed addressed to the Member’s address shown in the Company’s current record of Members, with postage prepaid.

5.7 Telephonic Participation at a Meeting of the Members. Members may participate in a meeting of the Members by means of a conference telephone or similar communications equipment by which all persons participating in the meeting can hear each other at the same time. Participation by such means shall constitute presence in person at the meeting.

5.8 Waiver of Notice. A Member may waive any notice required by this Agreement before or after any meeting by signing a written waiver of the Member’s right to receive notice of

such meeting. A Member’s attendance at a meeting: (a) waives objection to lack of notice or defective notice of the meeting, unless the Member at the beginning of the meeting or promptly upon the Member’s arrival objects to holding the meeting or transacting business at the meeting; (b) waives objection to consideration of a particular matter at the meeting that is not within the purpose or purposes described in the meeting notice, unless the Member objects to considering the matter when it is presented; and (c) results in a presumption that the Member assented to the action taken at such meeting, unless such Member’s dissent shall be entered in the minutes of the meeting or unless such Member shall file its written dissent to such action with the person acting as the secretary of the meeting before the adjournment thereof, or shall personally deliver or forward such written dissent by registered mail to the other Members immediately after the adjournment of the meeting; provided, however, such right to dissent shall not apply to a Member who voted in favor of any action at such meeting.

ARTICLE 6

MANAGEMENT OF THE COMPANY

6.1 Management. The Company shall be managed by one Manager, to be elected by the Members holding at least fifty-one percent (51%) of the Units, which Manager shall have sole power and authority to conduct the affairs of the Company except to the extent management powers are expressly reserved to the Members by this Agreement, the Certificate or the Act. The initial Manager shall be McCarthy Capital Corporation. The number of Managers may be amended from time to time by vote of the Members holding at least fifty-one percent (51%) of the Units. A Manager will serve until the Manager’s death, resignation or removal, with or without cause, by a vote of the Members holding at least fifty-one percent (51%) of the Units. Upon the removal, death or resignation of any Manager, a successor Manager shall be appointed by a vote of the Members holding at least fifty-one percent (51%) of the Units.

6.2 Specific Authority of the Manager. In addition to and not in limitation of any rights and powers conferred by law or other provisions of this Agreement, and except as limited, restricted or prohibited by the express provisions of this Agreement, the Manager is hereby authorized, for and on behalf of the Company, to:

a. Acquire property deemed by the Manager to be consistent with the business purpose of the Company;

b. Sell, transfer or otherwise dispose of any property owned by the Company;

c. Employ accountants, legal counsel and other experts to perform services for the Company and to compensate them from Company funds;

d. Maintain all books and records of the Company;

e. Execute any and all agreements, contracts, documents, certifications and instruments necessary or convenient in connection with the business of the Company;

f. Admit new Members by the issuance of Units as determined by the Manager; provided, however, the issuance of additional Units must first be approved by the Members holding at least fifty-one percent (51%) of the Units; and

g. Take any and all action deemed appropriate by the Manager in connection with the business of the Company.

6.3 Duties and Obligations of the Manager. The Manager shall:

a. Maintain accounting records in accordance with consistently applied generally accepted accounting principles, as modified by reasonable and customary accounting practices and policies followed by the Company on a reasonably consistent basis, from which a Capital Account Balance, and allocations pursuant to Section 4.1, can be determined for each Member.

b. Execute, file, record or publish all certificates, statements and other documents and do all things appropriate for the formation, qualification and operation of the Company and for the conduct of its business in all appropriate jurisdictions.

c. Retain accountants and/or attorneys to represent the Company when necessary or appropriate in the Manager’s discretion.

d. Use best efforts to maintain the status of the Company as a “limited liability company” under the Act, and as a “partnership” for federal income tax purposes.

6.4 Liability for Certain Acts. The Manager shall perform the Manager’s duties in good faith, in a manner it reasonably believes to be in the best interests of the Company, and with such care as an ordinarily prudent person in a like position would use under similar circumstances. No Manager shall have any liability by reason of being or having been the Manager of the Company. No Manager in any way guarantees the return of the Members’ Capital Contributions or a profit for the Members from the operations of the Company. No Manager shall be liable to the Company or to any Member for any loss or damage sustained by the Company or any Member, unless the loss or damage shall have been the result of fraud, deceit, gross negligence, willful misconduct, breach of this Agreement or a wrongful taking by the Manager.

6.5 Indemnification.

a. To the fullest extent permitted by law, the Company shall indemnify and hold harmless the Manager from and against any and all losses, claims, demands, costs, damages, liabilities, joint and several, expenses (including attorneys’ fees and disbursements), judgments, fines, settlements and other amounts arising from any and all claims, demands, actions, suits or proceedings, civil, criminal, administrative or investigative, in which the Manager may be involved, or threatened to be involved, as a party or otherwise, by reason of his/her/its status as a Manager; provided, however, no such indemnification shall apply unless: (i) the Manager acted in good faith and in a manner the Manager reasonably believed to be in, or not opposed to, the best interests of the Company, and, with respect to any criminal proceeding, had no reasonable cause to believe its conduct was unlawful; (ii) the Manager’s conduct did not constitute fraud, gross negligence or willful or wanton misconduct; and (iii) the Manager’s conduct was not intentionally and knowingly in violation of a material provision of this Agreement. For purposes of this Agreement, any act or omission, if done or omitted to be done in reliance, in whole or in part, upon the advice of independent legal counsel or public accountants selected with reasonable care, will be presumed to have been done or omitted to be done in good faith and not to constitute gross negligence or willful or wanton misconduct.

b. To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by or on behalf of a Manager in defending any claim, demand or action shall be paid by the Company in advance of the final disposition of such proceeding upon the receipt of a written undertaking (which need not be secured) by or on behalf of the Manager to repay such amount if it shall ultimately be determined, by a final, nonappealable judgment by a court of competent jurisdiction, that the Manager is not entitled to be indemnified by the Company as authorized hereunder.

c. The indemnification provided by this Section 6.5 shall be in addition to any other rights to which the Manager may be entitled under any agreement with the Company or vote of the Members holding at least fifty-one percent (51%) of the Units, as a matter of law or otherwise, both as to action or inaction of the Manager in the Manager’s capacity as a Manager, and to action or inaction in another capacity, and shall continue as to a Manager who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns, administrators and personal representatives of the Manager.

d. Any indemnification hereunder shall be satisfied solely out of the assets of the Company, and no Member shall be subject to personal liability by reason of these indemnification provisions.

e. A Manager shall not be denied indemnification in whole or in part hereunder because the Manager had an interest in the transaction with respect to which the indemnification applies if the transaction was not prohibited by the terms of this Agreement.

f. The provisions of this Section 6.5 are for the benefit of each Manager and the heirs, successors, assigns, administrators and personal representatives of each Manager.

6.6 Other Business of Managers or Members. Any Member or Manager may engage independently or with others in other business ventures of every nature and description, including, without limitation, the rendering of advice or services of any kind to other investors and the making or management of other investments, including, without limitation, investments in securities or real property. Neither the Company nor any Member or Manager shall have any right by virtue of this Agreement or the relationship created hereby in or to such other ventures or activities or to the income or proceeds derived therefrom.

ARTICLE 7

RECORDS, FINANCIAL AND TAX REPORTING

7.1 Records and Accounting. The books of account of the Company shall be maintained at the Company’s principal office. The Members or their duly authorized representative shall have access to such books. The Company shall prepare its financial statements using generally accepted accounting principles, consistently applied.

7.2 Tax Returns. The Manager shall cause income and other tax returns for the Company to be prepared and timely filed in accordance with applicable law.

7.3 Tax Elections. The Manager at any time and from time to time, may make such tax elections as the Manager may deem necessary or desirable, in the Manager’s discretion.

7.4 Tax Matters Partner. MGI Holdings, Inc. is hereby appointed and authorized to perform all duties imposed by Sections 6221 and 6232 of the Code as “Tax Matters Partner” of the Company. The Company shall indemnify, to the fullest extent permitted by law, the Tax Matters Partner from and against any damages and losses (including attorneys’ fees) arising out of or incurred in connection with any action taken or omitted to be taken by the Tax Matters Partner, provided such action taken or omitted to be taken does not constitute fraud, gross negligence or willful and wanton misconduct.

ARTICLE 8

TERMINATION AND DISSOLUTION

8.1 Events Requiring Termination and Dissolution. The Company shall be dissolved upon the first to occur of any of the following events:

a. An event which would make unlawful the continuing existence of the Company;

b. The determination of the Members by unanimous vote to dissolve; or

c. A judicial dissolution of the Company pursuant to the Act.

As soon as possible following the occurrence of any of the events provided for in subsections (a), (b) or (c) above, pursuant to which the Company will not be continued, the Company shall prepare and execute a statement of intent to dissolve in such form as shall be prescribed by the Secretary of State of the State of Delaware and the same shall be delivered to that office, or as otherwise required by law.

8.2 Winding Up and Distribution.

a. Upon the dissolution of the Company pursuant to Section 8.1, the Company’s business shall be wound up and its assets liquidated as provided in this Section 8.2 and the net proceeds of such liquidation shall be distributed as follows:

i. To the payment of creditors of the Company other than Members in the order of priority as provided by law, excluding creditors whose obligations will be assumed or otherwise transferred on liquidation of the Company;

ii. To the payment of creditors of the Company who are Members;

iii. To the setting up of reserves which the Manager deems reasonably necessary for liabilities not then due and contingent liabilities of the Company;

iv. To the Members in accordance with their positive Capital Accounts; and

v. To the Members in accordance with their shares of distributions pursuant to Article 4 of this Agreement.

b. No Member shall have the right to demand or receive property other than cash upon the dissolution and termination of the Company. Notwithstanding the foregoing, if the Liquidator shall determine that an immediate sale of part or all of the Company’s assets would cause undue loss to the Members, the Liquidator may, after having given notice to all the Members, to the extent not then prohibited by any applicable law of any jurisdiction in which the Company is then formed or qualified, either (i) defer liquidation of, and withhold from distribution for a reasonable time, any assets of the Company except those necessary to satisfy the Company’s debts and obligations, or (ii) distribute any assets to the Members in kind. If any assets of the Company are to be distributed in kind, such assets shall be distributed on the basis of the fair market value thereof, and any Member entitled to any interest in such assets shall receive such interest therein as a tenant-in-common with all other Members so entitled. The fair market value of such assets shall be determined by an independent appraiser selected by the Liquidator.

c. Each Member shall look solely to the assets of the Company for all distributions to be made by the Company pursuant to this Agreement, including distributions with respect to his, her or its capital contribution thereto and its share of distributable cash, and shall have no recourse therefor, upon dissolution or otherwise, against the Manager or any other Members.

d. The Liquidator shall file all certificates and notices of the dissolution of the Company required by law. Upon the complete liquidation and distribution of the Company assets, the Members shall cease to be Members of the Company, and the Liquidator shall execute, acknowledge and cause to be filed all certificates and notices required by the law to terminate the Company.

ARTICLE 9

AMENDMENTS TO AGREEMENT

9.1 Additional Members. Any Person who becomes a Member after the date of this Agreement shall become a signatory of this Agreement by signing such number of counterpart signature pages to this Agreement and such other instrument or instruments, and in such manner, as the Manager shall determine. By so signing, each such Person shall be deemed to have adopted, and to have agreed to be bound by, all the provisions of this Agreement; provided, however, that no such counterpart shall be binding until it shall have been accepted by the Manager.

9.2 Amendments. Amendments may be made to this Agreement from time to time by written consent of all Members.

9.3 Execution of Amendments. If this Agreement shall be amended, the amendment to this Agreement shall be signed by all Members.

9.4 Recording of Amendments. In making any amendments, there shall be prepared and filed for recordation by the Manager such documents and certificates as shall be required to be prepared and filed under the laws of the State of Delaware and/or under the laws of other jurisdictions where the Company is then formed or qualified. In the case of the addition or substitution of a Member, such documents and certificates shall be filed not less than thirty (30) days after the date of such addition or substitution.

ARTICLE 10

MISCELLANEOUS

10.1 Governing Law, Successors, Severability. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware and shall bind and inure to the benefit of the heirs, executors, personal representatives, successors and assigns of the parties hereto. If any provision of this Agreement shall be held to be invalid, the remainder of this Agreement shall not be affected thereby.

10.2 Entire Agreement. This Agreement is the sole operating agreement of the Company.

10.3 Headings, etc. The Article and Section headings in this Agreement are inserted for convenience of reference only and shall not affect interpretation of this Agreement. Whenever the context shall require, each term stated in either the singular or plural shall include the singular and the plural.

10.4 No Waiver. No failure or delay on the part of a Member in exercising any rights under this Agreement, or in insisting on strict performance of any covenant or condition contained in this Agreement, shall operate as a waiver of any of such Member’s rights hereunder.

10.5 Creditors. The provisions of this Agreement shall be deemed to be for the exclusive benefit of the undersigned Members. None of the provisions of this Agreement shall be for the benefit of or enforceable by any third party, including without limitation, any creditor of the Company.

10.6 Rights and Remedies Cumulative. The rights and remedies provided in this Agreement are cumulative, and the use of any one right or remedy by the Company or a Member shall not preclude or waive the right to use any or all other remedies. Such rights and remedies are given in addition to any other rights and remedies the Company or a Member may have under the Act, applicable statutes, ordinances, common law or otherwise.

10.7 Indemnity. The Company shall indemnify each Member against expenses actually and reasonably incurred in connection with the defense of a civil or criminal action, suit, or proceeding in which it is made a party by reason of being or having been a Member except in matters as to which it is adjudged in the action, suit or proceeding to be liable for negligence or misconduct in the performance of duty. In the event of a settlement before or after action or suit, such payment for indemnification shall be provided only in connection with such matters covered by the settlement as to which the Company is advised by counsel that the party seeking indemnity to be indemnified was not guilty of negligence or misconduct. The foregoing right of payment for indemnification shall not exclude other rights to which the Member may be entitled. Without limiting or modifying the foregoing indemnification, the Manager may obtain insurance for the Company with respect to its indemnification obligations contained in this Section 10.7.

10.8 No Preemptive Rights; No Cumulative Voting. Unless otherwise agreed by unanimous vote of the Members, no Member shall be entitled to preemptive rights to acquire additional membership interests of the Company, or to make additional capital contributions to the Company, and no Member shall be entitled to cumulate voting power in the election of the Manager.

IN WITNESS WHEREOF, the undersigned have executed this Agreement effective as of the day and year first above written.


McCARTHY CAPITAL CORPORATION, a Nebraska corporation, Manager

By		/s/ Michael R. McCarthy
		Michael R. McCarthy, Chairman

MGI HOLDINGS, INC., a Nebraska corporation, Sole Member

By		/s/ Michael R. McCarthy
		Michael R. McCarthy, Chairman

EX-7.05 4 dex705.htm AMENDMENT TO OPERATING AGREEMENT OF MGL HOLDINGS, LLC Amendment to Operating Agreement of MGL Holdings, LLC

Exhibit 7.05

AMENDMENT TO OPERATING AGREEMENT OF

FULCRUM FINANCIAL HOLDINGS, LLC

This Amendment to Operating Agreement of Fulcrum Financial Holdings, LLC (this “Amendment”) is made and entered into effective as of the 3rd day of August, 2007 by and between Fulcrum Financial Holdings, LLC, a Delaware limited liability company (“Company”), and MGI Holdings, Inc., a Nebraska corporation (“MGI”) (collectively, the “Parties”).

W I T N E S S E T H :

WHEREAS, MGI, as the sole member of Company, and McCarthy Capital Corporation, a Nebraska corporation, as the Manager of Company, have previously entered into an Operating Agreement of Fulcrum Financial Holdings, LLC, dated effective August 2, 2007 (the “Operating Agreement”);

WHEREAS, in accordance with Sections 2.2, 9.2 and 9.3 of the Operating Agreement, MGI, as the sole member of Company, desires to amend the Operating Agreement to change Company’s name to MGL Holdings, LLC; and

WHEREAS, in furtherance of the foregoing, the Parties now desire to enter into this Amendment.

NOW, THEREFORE, in consideration of the mutual covenants set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto agree as follows:

1. Sections 1.8 and 2.2 of the Operating Agreement are hereby amended to reflect the change in Company’s name by removing all references to “Fulcrum Financial Holdings, LLC” and replacing it with “MGL Holdings, LLC.”

2. An appropriate amendment to Company’s Certificate of Formation reflecting the aforementioned change in name shall be filed with the Secretary of State of the state of Delaware.

3. Except as modified and amended herein, all other terms and conditions of the Operating Agreement shall remain unchanged and in full force and effect. All capitalized terms in this Amendment which are not otherwise defined herein shall have the meaning ascribed to them in the Operating Agreement.

[Remainder of Page Intentionally Left Blank; and Signature Page Follows.]

IN WITNESS WHEREOF, the Parties have executed this Amendment to Operating Agreement effective as of the day and year first above written.


MGI HOLDINGS, INC., a Nebraska corporation, Sole Member

By	/s/ Michael R. McCarthy
	Michael R. McCarthy, Chairman

FULCRUM FINANCIAL HOLDINGS, LLC

By:	McCarthy Capital Corporation, Manager

	By	/s/ Michael R. McCarthy
		Michael R. McCarthy, Chairman

EX-7.06 5 dex706.htm OPERATING AGREEMENT OF FULCRUM MICRO-CAP, L.L.C. Operating Agreement of Fulcrum Micro-Cap, L.L.C.

Exhibit 7.06

OPERATING AGREEMENT OF

FULCRUM MICRO-CAP, L.L.C.

THIS OPERATING AGREEMENT (this “Agreement”) is made and entered into effective the 8th day of November, 2005.

ARTICLE 1

DEFINITIONS

As used in this Agreement, the following terms shall have the following meanings:

1.1 “Act” shall mean the Delaware Limited Liability Company Act, as amended from time to time.

1.2 “Affiliate” shall mean, when used with reference to a specific Person, any Person directly or indirectly controlling, controlled by or under common control with, such Person.

1.4 “Capital Account” shall mean the account of each Member established in accordance with Section 3.3.

1.5 “Capital Account Balance” shall have the meaning ascribed to it in Section 3.3.

1.6 “Certificate” means the Company’s Certificate of Formation or any other instrument or document which is required under the lawEs of the State of Delaware to be signed and sworn to on behalf of the Company and filed in the appropriate public offices within the State of Delaware (i) to perfect or maintain the Company as a limited liability company under the laws of the State of Delaware, (ii) to effect the admission, withdrawal or substitution of any Member of the Company, or (iii) to protect the limited liability of the Members under the laws of the State of Delaware.

1.8 “Company” shall mean Fulcrum Micro-Cap, L.L.C., a Delaware limited liability company, as such limited liability company may from time to time be constituted.

1.11 “Manager” shall mean a Person appointed to manage the Company as provided in Section 6.1.

1.12 “Member” shall mean any Person who, at the time referenced, is a party to this Agreement.

1.14 “Section” or “Article” shall mean a section or article, as applicable, of this Agreement unless otherwise indicated.

1.15 “Treasury Regulations” shall mean the regulations of the United States Department of the Treasury pertaining to the federal income tax, as from time to time in force.

ARTICLE 2

FORMATION

2.1 Formation. The Company has been organized as a limited liability company under the provisions of the Act by delivering the Certificate to the Secretary of State of the State of Delaware for filing. The Manager may take such further actions as the Manager deems necessary or advisable to permit the Company to conduct business as a limited liability company in any jurisdiction. The rights and liabilities of a Member under this Agreement shall be as provided by the Act, except as otherwise expressly stated in this Agreement.

2.2 Name. The name of the Company shall be Fulcrum Micro-Cap, L.L.C., or any other name permitted by the Act as the Members holding at least fifty-one percent (51%) of the Units shall afterwards designate by appropriate amendment to the Certificate. All business of the Company shall be conducted under the Company’s name.

2.5 Registered Agent and Office. The registered agent for service of process and the registered office shall be that Person and location reflected in the Articles as filed with the Secretary of State of the State of Delaware. The Members holding at least fifty-one percent (51%) of the Units may from time to time change the registered agent or office through appropriate filings with the Secretary of State of the State of Delaware. In the event the

registered agent ceases to act as such for any reason or the registered office shall change, the Members holding at least fifty-one percent (51%) of the Units shall promptly designate a replacement agent or file a notice of change of address, as the case may be.

2.7 Fiscal Year. The fiscal year of the Company shall be the calendar year unless some other fiscal period is designated as the fiscal year by the Manager.

ARTICLE 3

CAPITAL CONTRIBUTIONS

3.4 Withdrawal of Capital. The Members shall not receive from the Company property constituting any part of the Member’s contributions to capital unless and until:

a. All liabilities of the Company, except liabilities to Members on account of its/their contributions to capital, have been paid or there remains property in the Company sufficient to pay them; and

b. The Certificate is cancelled or so amended as and if necessary to set forth the result of the withdrawal or reduction.

ARTICLE 4

ALLOCATION AND DISTRIBUTION OF NET PROFITS AND LOSSES

4.1 Allocation of Profits and Losses. The profits and losses of the Company shall be allocated to the Members in accordance with their respective Interests.

ARTICLE 5

LIABILITY OF MEMBERS; ACTIONS OF MEMBERS

5.1 Liability to Third Parties. No Member shall be liable for the debts, obligations or liabilities of the Company, including under a judgment decree or order of a court.

5.8 Waiver of Notice. A Member may waive any notice required by this Agreement before or after any meeting by signing a written waiver of the Member’s right to receive notice of

ARTICLE 6

MANAGEMENT OF THE COMPANY

6.1 Management. The Company shall be managed by one Manager, to be elected by the Members holding at least fifty-one percent (51%) of the Units, which Manager shall have sole power and authority to conduct the affairs of the Company except to the extent management powers are expressly reserved to the Members by this Agreement, the Certificate or the Act. The initial Manager shall be McCarthy Capital Corporation. The number of Managers may be amended from time to time by vote of the Members holding at least fifty-one percent (51%) of the Units. A Manager will serve until the Manager’s death, dissolution, resignation or removal, with or without cause, by a vote of the Members holding at least fifty-one percent (51%) of the Units. Upon the removal, death or resignation of any Manager, a successor Manager shall be appointed by a vote of the Members holding at least fifty-one percent (51%) of the Units.

a. Acquire property deemed by the Manager to be consistent with the business purpose of the Company;

b. Sell, transfer or otherwise dispose of any property owned by the Company;

c. Employ accountants, legal counsel and other experts to perform services for the Company and to compensate them from Company funds;

d. Maintain all books and records of the Company;

e. Execute any and all agreements, contracts, documents, certifications and instruments necessary or convenient in connection with the business of the Company;

g. Take any and all action deemed appropriate by the Manager in connection with the business of the Company.

6.3 Duties and Obligations of the Manager. The Manager shall:

c. Retain accountants and/or attorneys to represent the Company when necessary or appropriate in the Manager’s discretion.

d. Use best efforts to maintain the status of the Company as a “limited liability company” under the Act, and as a “partnership” for federal income tax purposes.

6.5 Indemnification.

d. Any indemnification hereunder shall be satisfied solely out of the assets of the Company, and no Member shall be subject to personal liability by reason of these indemnification provisions.

f. The provisions of this Section 6.5 are for the benefit of each Manager and the heirs, successors, assigns, administrators and personal representatives of each Manager.

ARTICLE 7

RECORDS, FINANCIAL AND TAX REPORTING

7.2 Tax Returns. The Manager shall cause income and other tax returns for the Company to be prepared and timely filed in accordance with applicable law.

7.3 Tax Elections. The Manager at any time and from time to time, may make such tax elections as the Manager may deem necessary or desirable, in the Manager’s discretion.

7.4 Tax Matters Partner. Fulcrum Growth Partners, L.L.C. is hereby appointed and authorized to perform all duties imposed by Sections 6221 and 6232 of the Code as “Tax Matters Partner” of the Company. The Company shall indemnify, to the fullest extent permitted by law, the Tax Matters Partner from and against any damages and losses (including attorneys’ fees) arising out of or incurred in connection with any action taken or omitted to be taken by the Tax Matters Partner, provided such action taken or omitted to be taken does not constitute fraud, gross negligence or willful and wanton misconduct.

ARTICLE 8

TERMINATION AND DISSOLUTION

8.1 Events Requiring Termination and Dissolution. The Company shall be dissolved upon the first to occur of any of the following events:

a. An event which would make unlawful the continuing existence of the Company;

b. The determination of the Members by unanimous vote to dissolve; or

c. A judicial dissolution of the Company pursuant to the Act.

8.2 Winding Up and Distribution.

ii. To the payment of creditors of the Company who are Members;

iii. To the setting up of reserves which the Manager deems reasonably necessary for liabilities not then due and contingent liabilities of the Company;

iv. To the Members in accordance with their positive Capital Accounts; and

v. To the Members in accordance with their shares of distributions pursuant to Article 4 of this Agreement.

ARTICLE 9

AMENDMENTS TO AGREEMENT

9.2 Amendments. Amendments may be made to this Agreement from time to time by written consent of all Members.

9.3 Execution of Amendments. If this Agreement shall be amended, the amendment to this Agreement shall be signed by all Members.

ARTICLE 10

MISCELLANEOUS

10.2 Entire Agreement. This Agreement is the sole operating agreement of the Company.

IN WITNESS WHEREOF, the undersigned Members of the Company have executed this Agreement effective as of the day and year first above written.


FULCRUM GROWTH PARTNERS, L.L.C. a Delaware limited liability company, Member

By:	McCarthy Group, Inc.
Its:	Managing Member

	By:	/s/ Michael R. McCarthy
		Michael R. McCarthy
	Its:	Chairman

FULCRUM GROWTH PARTNERS II, L.P. a Delaware limited partnership, Member

By:	Fulcrum GP, LLC
Its:	General Partner

	By:	McCarthy Capital Corporation
	Its:	Managing Member

		By:	/s/ Michael R. McCarthy
			Michael R. McCarthy
		Its:	Chairman

EX-7.07 6 dex707.htm AMENDMENT TO OPERATING AGREEMENT OF FULCRUM MICRO-CAP, L.L.C. Amendment to Operating Agreement of Fulcrum Micro-Cap, L.L.C.

Exhibit 7.07

AMENDMENT TO

OPERATING AGREEMENT

FULCRUM MICRO-CAP, L.L.C.

This Amendment (“Amendment”) is entered into as effective as of January 1, 2008, by and between Fulcrum Micro-Cap, L.L.C., a Delaware limited liability company (the “Company”), Fulcrum Growth Partners, L.L.C., a Delaware limited liability company (“Fulcrum I”), Fulcrum Growth Partners II, L.P., a Delaware limited partnership (“Fulcrum II”) and Fulcrum Growth Partners III, L.L.C., a Delaware limited liability company (“Fulcrum III”).

W I T N E S S E T H:

WHEREAS, Fulcrum I and Fulcrum II have previously entered into an Operating Agreement, dated as of November 8, 2005 (the “Operating Agreement”) as the original Members of the Company;

WHEREAS, Fulcrum I desires to transfer its entire Interest in the Company to Fulcrum III and Fulcrum III desires to accept the transfer of said Interest from Fulcrum I; and

WHEREAS, in furtherance of the foregoing, the parties hereto desire to enter into this Amendment to formalize their agreement regarding the foregoing.

NOW THEREFORE, in consideration of the mutual covenants contained herein and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto agree as follows:

1. Defined Terms. All capitalized terms in this Amendment which are not otherwise defined herein shall have the meanings ascribed to them in the Operating Agreement.

2. Transfer of Interest. Fulcrum I hereby transfers, conveys and assigns its entire Interest in the Company (including without limitation all its Units) to Fulcrum III and Fulcrum III hereby accepts such transfer (the “Transfer”). In consideration of said Transfer, Fulcrum III hereby assumes said Interest and agrees to be bound by the terms and conditions of the Operating Agreement.

3. Consent to Transfer and Admission of Member. Fulcrum II hereby consents to the Transfer and Fulcrum III is hereby admitted as a Member of the Company.

4. Appendix “A”. Appendix “A” is deleted in its entirety and replaced with the new Appendix “A” attached hereto.

5. Effect of Amendment. Except as amended by this Amendment, all other terms and conditions of the Operating Agreement shall remain unchanged and in full force and effect on and after the date of this Amendment.

6. Counterparts. This Amendment may be executed in any number of counterparts, any one of which shall constitute an original and all counterparts constituting one instrument.

[Remainder of this page intentionally left blank; and signature page follows.]

IN WITNESS WHEREOF, the parties have executed this Amendment effective as of the date and year first above written.


FULCRUM MICRO-CAP, L.L.C. a Delaware limited liability company

By:	McCarthy Capital Corporation.
Its:	Manager

	By	/s/ Michael R. McCarthy
		Michael R. McCarthy, Chairman

FULCRUM GROWTH PARTNERS, L.L.C. a Delaware limited liability company

By:	MGI Holdings, Inc.
Its:	Managing Member

	By	/s/ Michael R. McCarthy
		Michael R. McCarthy, Chairman

FULCRUM GROWTH PARTNERS II, L.P. a Delaware limited partnership

By:	Fulcrum GP, LLC
Its:	General Partner

	By:	McCarthy Capital Corporation
	Its:	Manager

		By	/s/ Michael R. McCarthy
			Michael R. McCarthy, Chairman

FULCRUM GROWTH PARTNERS III, L.L.C., a Delaware limited liability company

By:	McCarthy Group, LLC
Its:	Managing Member

	By	/s/ Michael R. McCarthy
		Michael R. McCarthy, Chairman

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