1
EXHIBIT (10)(3)(c)
Second Amendment to Agreement between
MACC, Zions Bancorporation and Zions First
National Bank, dated February 27, 2001
17
2
SECOND AMENDMENT TO AGREEMENT
This Second Amendment to Agreement (this "Second Amendment") is made
this 27th day of February, 2001, among and between Zions Bancorporation, a Utah
corporation ("Bancorporation"), Zions First National Bank, a national banking
association ("Bank" or "Investor"), and MACC Private Equities Inc., a Delaware
corporation ("Parent"). Capitalized terms used but not defined herein shall have
their respective meanings set forth in that certain Agreement, dated May, 13,
1996, between Bancorporation and Parent, as amended by that First Amendment (the
"First Amendment"), dated as of April 29, 1998, among Bancorporation, Bank
and Parent (the "Agreement").
WHEREAS, pursuant to the Agreement, Parent contributed certain assets
to MorAmerica Capital Corporation, a wholly-owned subsidiary of the Parent which
is incorporated under the laws of the State of Iowa and is licensed to operate
as a small business investment company (the "SBIC"), and Bancorporation
purchased 20,000 shares of Common Stock from the Parent;
WHEREAS, Section 10 of the Agreement provides that, without the prior
written approval of Parent's Board of Directors, Investor shall not make any
purchase or other acquisition of Common Stock if after giving effect to such
purchase or other acquisition Investor would own in excess of 35% of Parent's
outstanding common stock;
WHEREAS, as of January 31, 2001, Investor beneficially owned
approximately 658,028 shares of the Common Stock, representing approximately
33.89% of the issued and outstanding shares of Common Stock; and
WHEREAS, Investor, Bancorporation and Parent wish to amend the
Agreement by amending Section 10 of the Agreement, on the terms set forth in
this Second Amendment.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Amendment of Section 10. From and after the date of this Second
------------------------
Amendment, the first sentence of Section 10 of the Agreement shall be removed in
its entirety and replaced with the following:
Investor agrees that, without the prior approval of Parent's
Board of Directors, it will not, directly or indirectly, purchase or
otherwise acquire any Common Stock if: (i) after giving effect to such
purchase or other acquisition, Investor would own 40% or more of
Parent's outstanding Common Stock; or (ii) Parent shall provide written
notice to Investor that such purchase or other acquisition by Investor
would cause the Common Stock not to satisfy any applicable condition
for continued inclusion on any stock market or inter-dealer quotation
system on which shares of the Common Stock are then listed for trading
or are traded, including, without limitation, the National Market
System of The Nasdaq Stock Market, Inc.
18
3
2. Effect on Agreement. Except as otherwise amended in this
--------------------
Second Amendment, all terms and conditions of the Agreement shall continue in
full force and effect.
3. Execution in Counterparts. This Second Amendment may be
--------------------------
executed in counterparts, each of which shall be an original, with the same
effect as if the signatures had been on the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed
by their respective officers thereunto duly authorized, all as of the year and
date first above written.
ZIONS BANCORPORATION
By: /s/ W. Xxxxx Xxxxxxxxx
-----------------------
Name: W. Xxxxx Xxxxxxxxx
Title: Executive Vice President
ZIONS FIRST NATIONAL BANK
By: /s/ W. Xxxxx Xxxxxxxxx
----------------------
Name: W. Xxxxx Xxxxxxxxx
Title: Executive Vice President
MACC PRIVATE EQUITIES INC.
By: /s/ Xxxxx X. Xxxxxxxx
----------------------
Name: Xxxxx X. Xxxxxxxx
Title: President and Secretary
19
