SCHEDULE
13D
CUSIP
No
.
294766100
|
|
|
1
|
NAME
OF REPORTING PERSONS
I.R.S.
IDENTIFICATION NO. OF ABOVE PERSONS (entities only)
MCC
Europe Limited
|
2
|
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See
Instructions) (a) [ ]
(b) [ ]
|
3
|
SEC
USE ONLY
|
4
|
SOURCE
OF FUNDS (See Instructions)
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
Kingdom
|
Number
of Shares
Beneficially
Owned by
Each
Reporting
Person with
|
7
|
SOLE
VOTING POWER
1,273,252
|
8
|
SHARED
VOTING POWER
N/A
|
9
|
SOLE
DISPOSITIVE POWER
1,273,252
|
10
|
SHARED
DISPOSITIVE
POWER
N/A
|
11
|
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,273,252
|
12
|
CHECK
BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See
Instructions)
|
13
|
PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
15.4%
|
14
|
TYPE
OF REPORTING PERSON (See Instructions)
CO
|
SCHEDULE
13D
CUSIP
No
.
294766100
|
|
|
1
|
NAME
OF REPORTING PERSONS
I.R.S.
IDENTIFICATION NO. OF ABOVE PERSONS (entities only)
Moore,
Clayton & Co., Inc.
|
2
|
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See
Instructions) (a) [ ]
(b) [ ]
|
3
|
SEC
USE ONLY
|
4
|
SOURCE
OF FUNDS (See Instructions)
N/A
|
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
1,273,252
|
8
|
SHARED
VOTING POWER
N/A
|
9
|
SOLE
DISPOSITIVE POWER
1,273,252
|
10
|
SHARED
DISPOSITIVE
POWER
N/A
|
11
|
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,273,252
|
12
|
CHECK
BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See
Instructions)
|
13
|
PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
15.4%
|
14
|
TYPE
OF REPORTING PERSON (See Instructions)
CO
|
SCHEDULE
13D
CUSIP
No
.
294766100
|
|
|
1
|
NAME
OF REPORTING PERSONS
I.R.S.
IDENTIFICATION NO. OF ABOVE PERSONS (entities only)
Anthony
R. Moore
|
2
|
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See
Instructions) (a) [ ]
(b) [ ]
|
3
|
SEC
USE ONLY
|
4
|
SOURCE
OF FUNDS (See Instructions)
N/A
|
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
Kingdom and United States of America
|
Number
of Shares
Beneficially
Owned by
Each
Reporting
Person with
|
7
|
SOLE
VOTING POWER
1,273,252
|
8
|
SHARED
VOTING POWER
N/A
|
9
|
SOLE
DISPOSITIVE POWER
1,273,252
|
10
|
SHARED
DISPOSITIVE
POWER
N/A
|
11
|
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,273,252
|
12
|
CHECK
BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See
Instructions)
|
13
|
PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
15.4%
|
14
|
TYPE
OF REPORTING PERSON (See Instructions)
IN
|
SCHEDULE
13D
CUSIP
No
.
294766100
|
|
|
1
|
NAME
OF REPORTING PERSONS
I.R.S.
IDENTIFICATION NO. OF ABOVE PERSONS (entities only)
Sharon
Clayton
|
2
|
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See
Instructions) (a) [ ]
(b) [ ]
|
3
|
SEC
USE ONLY
|
4
|
SOURCE
OF FUNDS (See Instructions)
N/A
|
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 of America
|
Number
of Shares
Beneficially
Owned by
Each
Reporting
Person with
|
7
|
SOLE
VOTING POWER
1,273,252
|
8
|
SHARED
VOTING POWER
N/A
|
9
|
SOLE
DISPOSITIVE POWER
1,273,252
|
10
|
SHARED
DISPOSITIVE
POWER
N/A
|
11
|
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,273,252
|
12
|
CHECK
BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See
Instructions)
|
13
|
PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
15.4%
|
14
|
TYPE
OF REPORTING PERSON (See Instructions)
IN
|
CUSIP
No
.
294766100
|
|
|
1
|
NAME
OF REPORTING PERSONS
I.R.S.
IDENTIFICATION NO. OF ABOVE PERSONS (entities only)
Kenneth
I. Denos
|
2
|
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See
Instructions) (a) [ ]
(b) [ ]
|
3
|
SEC
USE ONLY
|
4
|
SOURCE
OF FUNDS (See Instructions)
N/A
|
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 of America
|
Number
of Shares
Beneficially
Owned by
Each
Reporting
Person with
|
7
|
SOLE
VOTING POWER
1,273,252
|
8
|
SHARED
VOTING POWER
N/A
|
9
|
SOLE
DISPOSITIVE POWER
1,273,252
|
10
|
SHARED
DISPOSITIVE
POWER
N/A
|
11
|
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,273,252
|
12
|
CHECK
BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See
Instructions)
|
13
|
PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
15.4%
|
14
|
TYPE
OF REPORTING PERSON (See Instructions)
IN
|
INCLUDE
BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING
EXHIBITS) OF THE SCHEDULE AND THE SIGNATURE ATTESTATION.
Item
1. Security
and Issuer
This
statement on Schedule 13D relates to the shares of common stock (the “Common
Stock”) of Equus Total Return, Inc., a Delaware corporation (the
“Fund”). The principal executive offices of the Fund are located at
2727 Allen Parkway, 13
th
Floor,
Houston, TX
77019.
Item
2. Identity
and Background
This
statement is being filed jointly by: MCC Europe Limited (“MCCE”), Moore, Clayton
& Co., Inc. (“MCC”), MCC Global N.V (“MCC Global”) Anthony R. Moore, Sharon
Clayton and Kenneth I. Denos (the “Reporting Persons”).
MCCE
is
organized under the laws of the United Kingdom. Its principal office
is located at 8
th
Floor,
7 Farm St,
London W1J 5RX United Kingdom. MCCE provides business consulting
services in the United Kingdom. MCCE is a wholly-owned subsidiary of
MCC.
MCC
is
organized under of the laws of the state of Delaware and is the parent company
of, among other entities, (a) MCCE and (b) the Fund’s investment manager, Moore,
Clayton Capital Advisors Inc. (“MCCA”). MCC’s principal office is located at
10757 South River Front Pkwy, Suite 125, South Jordan, Utah 84095.
MCC
Global is organized under the laws of The Netherlands and is the parent company
of MCC. MCC Global’s principal office is located at 8
th
Floor,
7 Farm St,
London W1J 5RX United Kingdom. The firm is an international private
equity investment and advisory firm with offices in San Francisco, New York,
London and Amsterdam.
Anthony
R. Moore is the Chairman of the Supervisory Board of MCC Global and owns
16.37%
of the voting equity in MCC Global. Mr. Moore’s business address is
8
th
Floor,
7
Farm St, London W1J 5RX United Kingdom.. Mr. Moore is a citizen of
the United Kingdom and the United States of America.
Sharon
Clayton is Chairman of the Management Board of MCC Global and owns 17.68%
of the
voting equity in MCC Global. Her business address is 10757 South River Front
Pkwy, Suite 125, South Jordan, Utah 84095. Ms. Clayton is a citizen
of the United States of America.
Kenneth
I. Denos is the CEO of MCC Global and the CEO of the Fund and
MCCA. He owns 8.62% of the voting equity in MCC
Global. His business address is 10757 South River Front Pkwy, Suite
125, South Jordan, Utah 84095. Mr. Denos is a citizen of the United
States of America.
Pursuant
to General Instruction C and the instructions to Item 2 of this statement,
set
forth in Exhibit A are the respective names, business addresses, principal
present occupations and citizenships of Mr. Moore, Ms. Clayton, Mr. Denos
and
the other executive officers, directors and control persons of each of MCC
Global, MCCE and MCC.
None
of
the Reporting Persons has, during the last five years, been convicted in
a
criminal proceeding. In addition, none of the Reporting Persons has, during
the
last five years, been 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.
Item
3. Source
and Amount of Funds or Other Consideration
MCCA
issued two promissory notes in the
amount of $1,563,636 collectively to Sam P. Douglass, Trustee of Douglass
Trust IV for the benefit of S. Preston Douglas, Jr. and Trustee of Douglass
Trust IV for the benefit of Brooke Douglass (the “Noteholders”) on October 31,
2005. As security for the promissory notes, MCCA pledged 189,716
shares of the Fund (the “Shares”) held by MCCE. On September 27,
2007, MCCA and the Noteholders entered into a Note Payment and Satisfaction
Agreement (the “Agreement”), attached herewith as Exhibit “C”. MCCA
agreed to transfer the Shares to the Noteholders and issue two new promissory
notes in the aggregate principal amount of $297,280.94.
Item
4. Purpose
of Transaction
The
purpose of disposal of the Shares
was to settle with the Noteholders. All of the shares disposed of
were originally acquired by MCCE for investment purposes. Except as
set forth in this Statement, the Reporting Persons have no present plans
or
proposals which relate to or could result in any of the matters referred
to in
paragraphs (a) through (j), inclusive, of Item 4 of Schedule 13D (although
they
reserve the right to develop any such plans or proposals).
Item
5. Interests
in Securities of the Issuer
(a)
The
Reporting Persons beneficially own 1,273,252 shares of Common Stock, which
represent approximately 15.4% of the issued and outstanding shares of Common
Stock.
(b)
The
Reporting Persons have the power to vote, or direct the vote, and dispose
of, or
direct the disposition of, 1,273,252 shares of Common Stock, which represent
approximately 15.4% of the outstanding shares of Common Stock.
(c)
During
the past 60 days, the Reporting Person have not purchased any shares of the
Fund.
(d)
No
other
person is known by any Reporting Person to have the right to receive or the
power to direct the receipt of dividends from, or the proceeds from the sale
of,
the Common Stock beneficially owned by any Reporting Person.
(e)
Not
applicable.
Item
6. Contracts,
Arrangements, Understandings or Relationships with respect
to
Securities
of the Issuer.
MCCA
is the investment adviser to the
Fund pursuant to an investment management agreement dated June 30,
2005.
Item
7. Materials
to be filed as Exhibits.
Exhibit
A. Officers
and Directors of MCC and MCCE
Exhibit
B. Joint
Filing Agreement
Exhibit
C. Note
Payment and Satisfaction Agreement
SIGNATURES
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.
MCC
GLOBAL N.V.
By:
/s/
Kenneth I. Denos
*
Name:
Kenneth I. Denos
Title: Chief
Executive Officer
MCC
EUROPE LIMITED
By:
/s/
Kenneth I. Denos
*
Name:
Kenneth I. Denos
Title: Director
MOORE,
CLAYTON & CO., INC.
By:
/s/
Kenneth I. Denos
*
Name:
Kenneth I. Denos
Title: Chief
Executive Officer
ANTHONY
R. MOORE
By:
/s/ Anthony R. Moore*
SHARON
CLAYTON
By:
/s/ Sharon Clayton*
KENNETH
I. DENOS
By:
/s/
Kenneth I. Denos
*
EXHIBIT
A
Officers
and Directors of MCC Global, MCC and MCCE
MCCE
and
MCC are wholly-owned subsidiaries of MCC Global, and therefore MCC Global
ultimately controls MCC and MCCE. The name, business address, present principal
occupation, and citizenship of each director, executive officer and control
person of MCCE, and each executive officer and director of MCC Global, are
set
forth below.
Name
and Business Address
|
Principal
Occupation
and
Name, Principal Business and Address
of
the Employing Organizations
|
Citizenship
|
Anthony
R. Moore
8
th
Floor, 7
Farm St, London W1J 5RX United Kingdom
|
MCC
GLOBAL
Chairman
of the Supervisory Board. Mr. Moore owns 16.37% of the voting
equity in MCC Global. MCC Global is an international private
equity investment and advisory firm. MCC Global’s principal
office is 8
th
Floor, 7
Farm St, London W1J 5RX United Kingdom.
MCC
Chairman
of the Board. MCC is a wholly owned subsidiary of MCC
Global. MCC’s principal office is located at 10757 South River
Front Pkwy, Suite 125, South Jordan, Utah 84095.
MCCE
Chairman
of the Board. MCCE provides business consulting services in the
United Kingdom. MCCE is wholly owned by MCC. MCCE’s
principal office is located at 8
th
Floor, 7
Farm St, London W1J 5RX United Kingdom.
MCCA
Chairman
of the Board and President. MCCA is an SEC-registered
investment adviser, and provides investment management services
to the
Fund. MCCA’s principal office is located at 2727 Allen Parkway,
13th Floor, Houston, TX 77019.
Equus
Total Return, Inc.
Chairman
of the Board and President. Equus Total Return, Inc. is a
closed-end fund, business development company, and is listed on
the New
York Stock Exchange. Equus Total Return’s principal office is
located at 2727 Allen Parkway, 13th Floor, Houston, TX 77019.
|
United
Kingdom and United States of
America
|
Name
and Business Address
|
Principal
Occupation
and
Name, Principal Business and Address
of
the Employing Organizations
|
Citizenship
|
Sharon
Clayton
10757
South River Front Pkwy, Suite 125, South Jordan, Utah
84095
|
MCC
GLOBAL
Chairman
of the Management Board. Ms. Clayton owns 17.68% of the voting
equity in MCC Global. MCC Global is an international private
equity investment and advisory firm. MCC Global’s principal
office is 8
th
Floor, 7
Farm St, London W1J 5RX United Kingdom.
MCC
Director. MCC
is a wholly owned subsidiary of MCC Global. MCC’s principal
office is located at 10757 South River Front Pkwy, Suite 125, South
Jordan, Utah 84095.
MCCE
Director. MCCE
provides business consulting services in the United
Kingdom. MCCE is wholly owned by MCC. MCCE’s
principal office is located at Aurora House, 5-6 Carlos Place,
London W1K
3AP United Kingdom.
MCCA
Director
and Executive Vice-President. MCCA is an SEC-registered
investment adviser, and provides investment management services
to the
Fund. MCCA’s principal office is located at 8
th
Floor, 7
Farm St, London W1J 5RX United Kingdom.
Equus
Total Return, Inc.
Vice
Chairman. Equus Total Return, Inc. is a closed-end fund,
business development company, and is listed on the New York Stock
Exchange. Equus Total Return’s principal office is located at
2727 Allen Parkway, 13th Floor, Houston, TX 77019.
|
United
States of America
|
Name
and Business Address
|
Principal
Occupation
and
Name, Principal Business and Address
of
the Employing Organizations
|
Citizenship
|
Kenneth
I. Denos
10757
South River Front Pkwy, Suite 125, South Jordan, Utah
84095
|
MCC
Global
Chief
Executive Officer and Management Board Director. Mr. Denos owns
8.62% of the voting equity in MCC Global. MCC Global is an
international private equity investment and advisory firm. MCC
Global’s principal office is 8
th
Floor, 7
Farm St, London W1J 5RX United Kingdom.
MCC
Chief
Executive Officer and Director. MCC is a wholly owed subsidiary
of MCC Global. MCC’s principal office is located at 8
th
Floor, 7
Farm St, London W1J 5RX United Kingdom.
MCCE
Director. MCCE
provides business consulting services in the United
Kingdom. MCCE’s principal office is located at 8
th
Floor, 7
Farm St, London W1J 5RX United Kingdom.
MCCA
Chief
Executive Officer and Director. MCCA is an SEC-registered
investment adviser, and provides investment management services
to the
Fund. MCCA’s principal office is located at 2727 Allen Parkway,
13th Floor, Houston, TX 77019.
Equus
Total Return, Inc.
Chief
Executive Officer. Equus Total Return, Inc. is a closed-end
fund, business development company, and is listed on the New York
Stock
Exchange. Equus Total Return’s principal office is located at
2727 Allen Parkway, 13th Floor, Houston, TX 77019.
|
United
States of America
|
EXHIBIT
B
JOINT
FILING AGREEMENT
In
accordance with Rule 13d-1(k) under
the Securities Exchange Act of 1934, the undersigned hereby agree to the
joint
filing with all other persons signatory below of a statement on Schedule
13D or
any amendments thereto, with respect to the common stock of Equus Total Return,
Inc. and that this Agreement be included as an attachment to such
filing.
This
Agreement may be executed in any
number of counterparts each of which shall be deemed an original and all
of
which together shall be deemed to constitute one and the same
Agreement.
IN
WITNESS WHEREOF, the undersigned
hereby execute this Agreement on September 28, 2007.
MCC
GLOBAL N.V.
By:
/s/ Kenneth I. Denos*
Name: Kenneth
I.
Denos
Title: Chief
Executive
Officer
MCC
EUROPE LIMITED
By:
/s/
Kenneth I. Denos
*
Name:
Kenneth I. Denos
Title: Director
MOORE,
CLAYTON & CO., INC.
By:
/s/
Kenneth I. Denos
*
Name:
Kenneth I. Denos
Title: Chief
Executive Officer
ANTHONY
R. MOORE
By:
/s/ Anthony R. Moore*
SHARON
CLAYTON
By:
/s/ Sharon Clayton*
KENNETH
I. DENOS
By:
/s/ Kenneth I. Denos*
Exhibit
C
Note
Payment and Satisfaction Agreement
September
27, 2007
Moore
Clayton Capital Advisers, Inc.
10757
South Riverfront Parkway, Suite 125
South
Jordan, Utah 84095
Gentlemen:
The
undersigned (the “
Noteholders
”) own and hold your two Replacement
Promissory Notes, consecutively numbered 1 and 2, dated October 31, 2005,
payable to the respective Noteholders in the original principal amount of
$1,563,636.36 each (together, the “
Notes
”), which are secured by (i)
189,716 shares (the “
Equus Pledged Shares
”) of common stock of Equus
Total Return, Inc. (“
Equus
”) pledged under an Amended and Restated
Security Agreement dated as of October 31, 2005, between Moore Clayton &
Co., Inc. (“
MCC
”) and the Noteholders (the “
MCC Security
Agreement
”), and (ii) 399,878 shares (the “
Old MCC Pledged
Shares
”) of common stock of MCC pledged by Ken Denos (“
Denos
”)
under a Security Agreement dated as of October 31, 2005, between Denos and
the
Noteholders (the “
Original Denos Security Agreement
”).
This
letter (this “
Agreement
”) sets forth the terms and conditions under
which you and the Noteholders have agreed to the payment and other satisfaction
in full of the Notes and the surrender of the Notes to you.
1.
Payment
and Satisfaction
. On September 27, 2007 (the “(
Payoff
Date
”), in full payment and satisfaction of the Notes, you
will:
(i)
transfer,
assign and convey to the Noteholders, ratably in equal one-half shares, all
of
the Equus Pledged Shares; and
(ii)
issue
and
deliver to the Noteholders two promissory Notes (the “
Shortfall
Notes
”), each in substantially the form of Exhibit A attached hereto, in
the aggregate principal amount of $297,280.94, or $148,640.47 principal amount
each.
2.
Security
for Shortfall Notes
. The Shortfall Notes, together with two
additional promissory notes of even date herewith issued by you to the
Noteholders in a separate but related transaction, aggregating $63,148 in
original principal amount (the “
Dividend Notes
,” and together with the
Shortfall Notes, the “
New Notes
”) shall be ratably secured by (i) a
pledge by MCC of the securities listed on Exhibit B attached hereto (the
“
Pledged Securities
”) under a Security Agreement-Pledge in
substantially the form of Exhibit C attached hereto (the “
New MCC Security
Agreement
”) and (ii) a pledge of 6,973,872 ordinary shares (the “
MCC
Pledged Shares
”) in the share capital of MCC Global, N.V. under a Security
Agreement, in substantially the form of Exhibit D attached hereto, to be
entered
into between Denos and the Noteholders on the Payoff Date (the “
New Denos
Security Agreement
”).
3.
Deliveries
Upon Payoff
. To consummate the payment, satisfaction and
surrender of the Notes, on the Payoff Date:
(i)
you
shall
deliver to the Noteholders all certificates representing the Equus Pledged
Shares (unless they are already in the possession of the Noteholders pursuant
to
the MCC Security Agreement), together with duly executed stock powers, with
signature guaranteed in accordance with all requirements of Equus’ transfer
agent, authorizing transfer thereof to the Noteholders, ratably in equal
one-half shares, on the stock transfer records of Equus and its
transfer agent;
(ii)
you
shall
issue and deliver, or cause to be issued and delivered, the Shortfall Notes,
the
New MCC Security Agreement and the Pledged Securities, accompanied by stock
powers only executed in blank, and the Restated Denos Security
Agreement;
(iii)
the
Noteholders shall surrender and delivery to you the Notes, each marked “Paid and
Satisfied in Full;”
(iv)
the
Noteholders shall surrender and deliver to Denos the Old MCC Shares, and
receive
the New Denos Security Agreement executed by Denos.
4.
Your
Representations
. To induce the Noteholders to enter into this
Agreement and to surrender and deliver the Notes to you, you represent and
warrant to the Noteholders that:
(i)
you
are
the record and beneficial owner of the Equus Pledged Shares, free and clear
of
all liens and security interests other than those securing the
Notes;
(ii)
you
are
the record and beneficial owner of the Pledged Securities, free and clear
of all
liens and security interests other than those securing the Shortfall
Notes;
(iii)
the
transactions contemplated herein have been approved by your board of directors,
and you have the absolute and unconditional right power and authority to
enter
into this Agreement, to transfer the Equus Pledged Shares to the Noteholders
to
issue the Shortfall Notes, the execute and deliver the New MCC Security
Agreement, and to pledge the Pledged Securities as therein
provided;
(iv)
the
Agreement is, and when executed and delivered by you as herein provided,
the
Shortfall Notes and the New MCC Security Agreement will be, legally binding
on
you and enforceable against you in accordance with its terms; and
(v)
neither
the execution, delivery nor performance by you of this Agreement, the Shortfall
Notes or the New MCC Security Agreement will result in a violation or breach
of
any term or provision of, or constitute a default under, your certificate
of
incorporation or bylaws or any mortgage, indenture, deed of trust, loan or
credit agreement, or other contract or agreement to which you are a party
or by
which you are bound, or any order writ injunction or decree of any court
or
other governmental body.
5.
Representations
of
Noteholders
. To induce you to enter into this Agreement and to
pay and satisfy the Notes, the Noteholders represent and warrant to you
that:
(i)
the
trustee of the respective Noteholders, acting on behalf of the
respective Noteholders, has the absolute and unconditional right,
power and authority to enter into this
Agreement
and to accept payment for and satisfaction of the Notes and surrender them
to
you as herein provided and to acquire the Equus Pledged Shares;
(ii)
this
Agreement is legally binding on the Noteholders and enforceable against them
in
accordance with its terms;
(iii)
neither
the execution, delivery nor performance by the Noteholders of this Agreement
will result in a violation or breach of any term or provision of, or constitute
a default under, any trust agreement or instrument creating or governing
a
Noteholder or any mortgage, indenture, deed of trust, loan a credit agreement
or
other contract or agreement to which either Noteholder is a party or by which
either Noteholder is bound, or any order, writ, injunction or decree of any
court or other governmental body.
6.
Prepayment
of Notes.
If any of the 1,177,328 shares (the “
Elliot Pledged
Shares
”) of common stock of Equus owned by MCC or any affiliate of MCC,
including MCC Global, N.V., and pledged to Elliot Advisors, L.P.
(“
Elliot
”), shall be sold, then within three business days of the
consummation of such sale, you shall apply to the ratable prepayment of the
New
Notes an amount (not to exceed the unpaid principal balance of the Shortfall
Notes and accrued interest thereon) equal to the excess of the aggregate
sales
price of the Elliot Pledged Shares over the sum of (i) any brokerage fee
or
commission payable in respect of such sale and (ii) that portion of the sales
proceeds which you, MCC or any affiliate of MCC is contractually obligated
to
pay, or, if less, which is paid, to Elliot to reduce indebtedness to Elliot.
Any
such prepayment shall be applied first to interest accrued on the New Notes
through the date of prepayment, then to principal on the Shortfall Notes,
then
to principal on the Dividend Notes.
7.
Survival
and
Indemnification
. The representations and warranties made in
Sections 4
and 5 of this Agreement shall survive the
consummation of the transactions contemplated in this Agreement. Each
party shall indemnify the other party or parties against all damages, losses,
costs and expenses based on or arising out of any untrue or inaccurate
representation or warranty made herein by such party.
8.
Miscellaneous
.
(a)
Assignment;
Binding Effect
. This Agreement may not be assigned by any of its
parties. Subject to the preceding sentence, this Agreement shall be
binding upon the parties and their respective successors and
assigns.
(b)
Legal
Fees
. You agree to pay one-half of the legal fees incurred by the
Noteholders in connection with the negotiation and preparation of this Agreement
and the consummation of the transactions contemplated herein.
(c)
Counterparts
. This
Agreement may be executed in counterparts which together shall constitute
a
single agreement.
(d)
Governing
Law; Jurisdiction
. This Agreement shall be governed by the
internal laws of the Sate of Texas without regard to its conflict of law
rules. The parties irrevocably consent to the non-exclusive
jurisdiction of the courts of the State of Texas in connection with any dispute
between or among them arising under this Agreement.
If
the
foregoing accurately sets forth our agreement concerning the payment and
satisfaction of the Notes, please so indicate by signing and returning to
the
Noteholders a copy of this letter.
Very
truly yours,
/s/
Sam P.
Douglass
Sam
P.
Douglass, Trustee of Douglass Trust IV for the benefit of S. Preston Douglas,
Jr. and Trustee of Douglass Trust IV for the benefit of Brooke
Douglass
Agreed
to
and Accepted
on
September 27, 2007
Moore
Clayton Capital Advisers, Inc.
By:
/s/ Kenneth I.
Denos
Name:
Kenneth I.
Denos
Title:
Chief Executive
Officer