Sloan Financial Group, Inc. v. Beckett

583 S.E.2d 325, 159 N.C. App. 470, 2003 N.C. App. LEXIS 1505
CourtCourt of Appeals of North Carolina
DecidedAugust 5, 2003
DocketCOA02-396
StatusPublished
Cited by28 cases

This text of 583 S.E.2d 325 (Sloan Financial Group, Inc. v. Beckett) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sloan Financial Group, Inc. v. Beckett, 583 S.E.2d 325, 159 N.C. App. 470, 2003 N.C. App. LEXIS 1505 (N.C. Ct. App. 2003).

Opinions

McCullough, Judge.

This case arises out of a complex set of facts surrounding the formation and alleged mismanagement of an international private equity investment fund.

Maceo K. Sloan (Sloan), a vice president with North Carolina Mutual Life, formed NCM Capital, a wholly owned subsidiary of North Carolina Mutual, as a vehicle for the company to make investments. In 1991, North Carolina Mutual Life wanted to sell off some of its assets, so Sloan formed Sloan Financial Group, Inc. (SFG-N.C. Corporation), which purchased NCM Capital from North Carolina Mutual Life. Under Sloan’s leadership, SFG became the largest African-American owned investment company in the United States, managing over $3 billion by 1994. Sloan became chief executive officer (CEO) of Sloan Financial Group. Prior to the formation of SFG, Sloan had met Justin Beckett, and was impressed by his “drive and determination.” Sloan hired him and Beckett rose to become the executive vice president and a director of SFG, as well as its second largest shareholder.

Beckett was interested in developing business opportunities in southern Africa once sanctions associated with apartheid had lifted. [472]*472He convinced SFG to allow him to oversee investment there. As such, SFG formed New Africa Advisers, Inc. (NAA-Delaware Corporation), for this purpose and Beckett served as CEO and had day-to-day control. NAA traded securities on African stock exchanges.

Next, Beckett proposed that SFG create a private equity fund in southern Africa. Such a fund would act as a venture capital investment fund to make direct investments in the Republic of South Africa and surrounding countries, with Beckett at the helm as manager. This was about 1995.

SFG agreed to the proposal. SFG submitted its proposal, drafted by Beckett, of the multi-million dollar private equity fund to the Overseas Private Investment Corporation (OPIC), an agency of the United States government that funds foreign investment. OPIC was to make an $80 million investment and a group of limited partners would provide capital contributions in the amount of $40 million. OPIC approved the $120 million plan on 4 September 1996, and began work with Beckett to draft the documents of the fund that was to be known as the New Africa Opportunity Fund (NAOF, the Fund-Delaware Limited Partnership).

In addition, Beckett had to find the limited partners willing to invest the $40 million. Sloan, who said in the complaint that he “has a personal commitment to Africa,” assisted Beckett in obtaining limited partners. Together they secured Citicorp, Sun America, Inc., Northwestern Mutual Life Insurance Co., Burden & Co., Waycrosse, Inc., Challenger Capital Management, L.P., Allbrook International, NAF Investment, LLC, and Chancellor Corp. These limited partners and OPIC agreed to back the Fund largely because of the proposed purposes and objectives set forth in the 15 August 1997 Confidential Private Placement Memorandum (PPM). The PPM made Beckett responsible for management. The personal involvement of Beckett, Sloan and SFG was integral in getting investors on board with the project.

The documents for NAOF were soon after completed. Most notable was the Amended and Restated Agreement of Limited Partnership Agreement (partnership agreement) and a Finance Agreement, both dated 15 August 1997. Together with the PPM, the partnership agreement, the Finance Agreement, the commitment and subscriptions of the limited partners formed the NAOF documents that created the Fund and structured its management.

[473]*473Pursuant to these documents, New Africa Investment Management (NAIM-Delaware Limited Liability Company) was formed by SFG. NAIM was installed as the general partner to NAOF as per the partnership agreement. This was its sole purpose. The members involved with NAIM executed a Limited Liability Company Agreement on 15 August 1997. This agreement was made to deal with the creation and inner workings of NAIM. Beckett was the president and manager of NAIM, while Sloan was the vice president, and defendants Mamboleo and Clarke served as members of NAIM.

NAIM was authorized to, among other things, invest the funds of the Fund on the advice of the Investment Committee headed by Sloan, monitor the investments of the Fund, enter into a Finance Agreement with OPIC, maintain the bank accounts of the Fund, make payments on behalf of the Fund, enter into a Management Agreement, and take other actions necessary or convenient to transact the Fund’s business by the partnership agreement of NAOF. An advisory board was also created by the partnership agreement, which included representatives from the limited partners and OPIC that served to review transactions that had potential conflicts of interest.

Sloan Holdings, Inc. (SHI-Delaware Corporation) was formed shortly prior to NAIM by Sloan and Beckett to be the only managing member of NAIM. This was its sole purpose. SHI held the majority stake in NAIM. Sloan served as chairman and CEO and owned two-thirds of the equity in SHI, and Beckett was the president, the manager, and owned the remaining equity.

Sloan executed the partnership agreement, which created the Fund, on behalf of SHI as managing member of NAIM, the partnership’s general partner.

New Africa Management, LLC (NAM-Delaware LLC) was formed by SHI, which wholly owned NAM, to be the manager of the Fund and oversee its investments. This was its sole purpose. SHI installed Beckett as president and CEO of NAM. On 15 August 1997, NAIM entered into a “management agreement” with NAM on behalf of the Fund. Under this agreement, NAM was to provide management services for the Fund for a management fee. Under this management agreement, NAM had duties involving locating potential investments and monitoring the Fund.

All this was done in accordance with the documents involved in the formation of the Fund. To recap, SHI was formed to be the man[474]*474aging member of NAIM, which was formed soon after SHI to be the general partner of the Fund. SHI also formed NAM to be the manager of the Fund.

Beckett had substantial control over the Fund by virtue of his positions in the foregoing entities. He formed a team of advisors that included most of the named defendants. With his personnel in place, it is alleged that he proceeded to ignore Fund guidelines and allegedly misappropriate Fund money. They allegedly falsified information to OPIC and the rest of the overseeing bodies to make these investments appear to be valid. Excessive spending and salaries were implemented. The management fees that were supposed to go to respective plaintiffs were siphoned into this group’s possession.

In addition to mismanagement, Beckett and other defendants allegedly devised another way to steal from the Fund. Beckett formed New Africa Finance Corporation (NAFC — formed in the African nation of Mauritius) under the guise that it would become a portfolio company in early 1999. Under normal operation, the Fund was not to be involved with the day-to-day operations of portfolio companies. However, with NAFC in place, Beckett could exploit portfolio companies in this manner as well. These companies had to keep funding to stay alive, so Beckett allegedly made them pay NAFC for excessive consulting and financing fees to stay within his good graces. Beckett thereby allegedly extorted large amounts of money from portfolio companies in this manner.

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Bluebook (online)
583 S.E.2d 325, 159 N.C. App. 470, 2003 N.C. App. LEXIS 1505, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sloan-financial-group-inc-v-beckett-ncctapp-2003.