EXHIBIT 10.3
AGREEMENT AND WAIVER OF RIGHTS
UNDER SECTION 203 OF THE DELAWARE GENERAL CORPORATION LAW
AGREEMENT AND WAIVER OF RIGHTS
UNDER SECTION 203 OF THE DELAWARE GENERAL CORPORATION LAW
THIS AGREEMENT AND WAIVER OF RIGHTS UNDER SECTION 203 OF THE DELAWARE
GENERAL CORPORATION LAW ("Agreement") is made effective as of the ___ day of
July, 2003, by and among Zions First National Bank ("Zions"), Atlas Management
Partners LLC ("Atlas") and MACC Private Equities Inc. ("Company").
WHEREAS, Zions beneficially owns approximately 34.5% of the issued and
outstanding shares of common stock of the Company (the "Shares") and desires to
liquidate its investment in the Company;
WHEREAS, Section 203 of the Delaware General Business Corporation Law
("Section 203") contains restrictions on any business combination (as such term
is defined therein, hereinafter referenced as a "Business Combinations") with
interested shareholders (as such term is defined therein); and
WHEREAS, Atlas and its affiliated persons (as that term is defined in
the Investment Company Act of 1940, hereinafter "Affiliates") may currently own
shares of the Company and has expressed an interest in purchasing the Shares
owned by Zions and both Zions and Atlas have requested that the Company waive
the protections of Section 203 prior to any consummation of any such purchase;
NOW, THEREFORE, in consideration of the mutual promises contained
herein, the parties mutually agree as follows:
1. Waiver. Subject to the condition set forth in Section 2 of
this Agreement, the Company hereby approves the anticipated purchase of the
Shares by Atlas and its Affiliates (the "Purchase") and waives the restrictions
of Section 203 with respect to the Purchase. The approval and waiver contained
in this Agreement are provided in accordance with the action of the Company's
Board of Directors at a meeting held July 10, 2003. This Agreement constitutes
conditional approval of the Purchase for purposes of Section 203 and represents
action intended ensure that the restrictions on Business Combinations set forth
in Section 203 do not and will not apply to Atlas by reason of the execution or
delivery of this Agreement or the consummation of the Purchase.
2. Condition. The waiver described above is granted on the
condition that for a period of three years from the date of the Purchase, Atlas
and its Affiliates shall not enter into any Business Combination with the
Company unless it first obtains the approval of no less than a majority of the
Company's disinterested directors. For purposes of this Agreement, a director
shall be considered disinterested only if the director and each of his or her
Affiliates, and each member of the family (spouse, parent, parent-in-law
sibling, sibling-in-law, child, step-child, grandchild or step-grandchild or
person with a similar relationship) of such director or Affiliate has no direct
or indirect interest in the Business Combination being considered (other than as
a director of the Company or as a shareholder of the Company beneficially owning
less than 10%
of the Company stock outstanding). Atlas and Zions each agree that all Shares
which are transferred upon consummation of the Purchase shall be transferred
subject to the restriction described in this Section 2. Any attempted Business
Combination effected without the prior consent required by this Section 2 shall
be null and void. From and after the date of any such attempted Business
Combination, the Shares shall be subject to the restrictions of Section 203
without regard to this Agreement.
3. Release. In order to induce the Company to enter into this
Agreement, Atlas and Zions hereby release the Company, its officers and
directors, from any and all liabilities and claims relating to the waiver
described in this Agreement or relating to any other acts or omissions of the
Company or its agents occurring on or prior to the date of this Agreement.
4. Applicable Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Delaware.
5. Binding Provisions The covenants and agreements contained
herein shall be binding upon, and inure to the benefit of and be enforceable by
the parties and their respective successors and assigns. Any assignee or
transferee of the Shares who may become an interested shareholder of the Company
under Section 203 shall not be considered a beneficiary of this Agreement and
shall be subject to the restrictions of Section 203 without regard to this
Agreement.
6. Counterparts This Agreement may be executed in several
counterparts, all of which together shall constitute one agreement binding on
all parties hereto, notwithstanding that all the parties have not signed the
same counterpart. A facsimile transmission by a party of a signed signature page
hereof shall have the same effect as delivery by such party of a manually
executed original counterpart hereof.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement effective as of the date first above written.
MACC PRIVATE EQUITIES, INC. ZIONS FIRST NATIONAL BANK
By: /s/ Xxxx X. Xxxx, Xx. By: /s/ W. Xxxxx Xxxxxxxxx
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Xxxx X. Xxxx, Xx.
Chairman, Board of Directors Executive Vice President
(title)
ATLAS MANAGEMENT PARTNERS LLC
By: /s/ Xxxx Xxxxxx
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Managing Member
(title)
