-----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, Jg+HI7cRlWd2IhH1hHj2nHNdwFts3V+mIswDWgsLyRV6uGudohin6WW8QytvTvE0 xWomHjQpph81zvg70vVCdQ== 0000891618-96-000648.txt : 19960525 0000891618-96-000648.hdr.sgml : 19960525 ACCESSION NUMBER: 0000891618-96-000648 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 19960524 SROS: NONE SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: MACC PRIVATE EQUITIES INC CENTRAL INDEX KEY: 0000923808 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 421421406 STATE OF INCORPORATION: DE FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-45963 FILM NUMBER: 96572289 BUSINESS ADDRESS: STREET 1: 101 SECOND ST SE STREET 2: STE 800 CITY: CEDAR RAPIDS STATE: IA ZIP: 52401 BUSINESS PHONE: 3193638249 MAIL ADDRESS: STREET 1: 101 SECOND STREET SE STREET 2: SUITE 800 CITY: CEDAR RAPIDS STATE: IA ZIP: 52401 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: ZIONS BANCORPORATION /UT/ CENTRAL INDEX KEY: 0000109380 STANDARD INDUSTRIAL CLASSIFICATION: NATIONAL COMMERCIAL BANKS [6021] IRS NUMBER: 870227400 STATE OF INCORPORATION: UT FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 1380 KENNECOTT BLDG CITY: SALT LAKE CITY STATE: UT ZIP: 84133 BUSINESS PHONE: 8015244787 MAIL ADDRESS: STREET 1: 1380 KENNECOTT BUILDING CITY: SALT LAKE CITY STATE: UT ZIP: 84133 FORMER COMPANY: FORMER CONFORMED NAME: ZIONS UTAH BANCORPORATION DATE OF NAME CHANGE: 19870615 FORMER COMPANY: FORMER CONFORMED NAME: ZIONS FIRST NATIONAL INVESTMENT CO DATE OF NAME CHANGE: 19660921 SC 13D 1 SCHEDULE 13D 1 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. _____)* MACC Private Equities Inc. - -------------------------------------------------------------------------------- (Name of Issuer) Common Stock, $0.01 par value - -------------------------------------------------------------------------------- (Title of Class of Securities) 552 617 102 -------------------------------------- (CUSIP Number) W. David Hemingway, Zions Bancorporation, 1380 Kennecott Building, Salt Lake City, Utah 84133 (801) 524-4787 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) May 16, 1996 -------------------------------------- (Date of Event which Requires Filing of this Statement) If a 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(b)(3) or (4), check the following box [ ]. Check the following box if a fee is being paid with this statement [ x ]. (A fee is not required only if the reporting person: (1) has a previous statement on file reporting beneficial ownership of more than five percent of the class of securities described in Item 1; and (2) has filed no amendment subsequent thereto reporting beneficial ownership of five percent or less of such class.) (See Rule 13d-7.) NOTE: Six copies of this statement, including all exhibits, should be filed with the Commission. See Rule 13d-1(a) for other parties to whom copies are to be sent. * The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). 2 CUSIP NO. 552 617 102 - --------------------- - -------------------------------------------------------------------------------- 1. NAME OF REPORTING PERSON Zions Bancorporation S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (87-0227400) - -------------------------------------------------------------------------------- 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [ ] - -------------------------------------------------------------------------------- 3. SEC USE ONLY - -------------------------------------------------------------------------------- 4. SOURCE OF FUNDS WC - -------------------------------------------------------------------------------- 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) [ ] - -------------------------------------------------------------------------------- 6. CITIZENSHIP OR PLACE OF ORGANIZATION Utah - -------------------------------------------------------------------------------- 7. SOLE VOTING POWER NUMBER OF 72,565 SHARES -------------------------------------------------------------- BENEFICIALLY 8. SHARED VOTING POWER OWNED BY -0- EACH -------------------------------------------------------------- REPORTING 9. SOLE DISPOSITIVE POWER PERSON 72,565 WITH -------------------------------------------------------------- 10. SHARED DISPOSITIVE POWER -0- - -------------------------------------------------------------------------------- 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 72,565 - -------------------------------------------------------------------------------- 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - -------------------------------------------------------------------------------- 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 7.2% - -------------------------------------------------------------------------------- 14. TYPE OF REPORTING PERSON HC, CO - -------------------------------------------------------------------------------- Page 2 of 21 3 ITEM 1. SECURITY AND ISSUER. This statement relates to the Common Stock, $0.01 par value ("Common Stock"), of MACC Private Equities Inc., a Delaware corporation (the "Company"), the principal executive offices of which are located at 101 Second Street, S.E., Suite 800, Cedar Rapids, Iowa 52401. ITEM 2. IDENTITY AND BACKGROUND. (a)-(c), (f) This statement is being filed by Zions Bancorporation ("Zions"), a Utah corporation registered as a bank holding company under the Bank Holding Company Act of 1956, as amended (the "BHC Act"). The principal business offices of Zions are located at 1380 Kennecott Building, Salt Lake City, Utah 84133. Zions is the second largest bank holding company headquartered in Utah and provides a full range of banking and related services primarily in Utah, Nevada and Arizona. Its principal subsidiaries are banking subsidiaries which include Zions First National Bank ("ZFNB"), Nevada State Bank and National Bank of Arizona. The names of the directors and executive officers of Zions and their respective business addresses, citizenship and present principal occupations or employment, as well as the names, principal businesses and addresses of any corporations or other organizations in which such employment is conducted, are set forth on Schedule I hereto, which Schedule is incorporated herein by reference. (d) Neither Zions nor, to the best of its knowledge, any of the persons listed in Schedule I hereto has during the last five years been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). (e) Neither Zions nor, to the best of its knowledge, any of the persons listed in Schedule I hereto 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 of such laws. Page 3 of 21 4 ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION. The funds required to purchase the 72,565 shares of Common Stock were $728,188.87. These funds were derived from working capital. ITEM 4. PURPOSE OF THE TRANSACTION. (a)-(j) Subject to market conditions and developments with respect to the Company, Zions may purchase up to 25% of the outstanding shares of Common Stock in the open market or in privately negotiated transactions, to the extent permitted by the BHC and federal securities laws. The transaction reported hereunder is intended to assist in the achievement of that purpose. As described under Item 6 below, the Company has agreed to use its reasonable best efforts to cause a nominee of Zions to serve on the Company's board of directors commencing at its annual meeting in 1997. As described under Item 6 below, the Company has agreed with Zions to contribute to MorAmerica Capital Corporation ("MorAmerica Capital"), a wholly owned subsidiary of the Company, additional capital in the amount of approximately $2,500,000 and not to make any investments other than in MorAmerica Capital and other debt and equity investments of the kind and amount eligible for investment by a national bank. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER. (a) Zions currently owns 72,565 shares of Common Stock, which Zions believes represents approximately 7.2% of the outstanding shares of Common Stock. (b) Zions has sole power to vote and sole power to direct the disposition of each share of Common Stock owned by it. (c) Pursuant to the Agreement described in Item 6, on May 16, 1996, Zions purchased from the Company 20,000 newly issued shares of Common Stock at a per share price of $17.70. On May 20, 1996, Zions purchased an additional 3,500 shares of Common Stock on the open market at an average price per share of $9.79. To the best knowledge of Zions, none of the persons listed on Schedule I hereto has effected any transactions in Common Stock during the past 60 days. (d) Not applicable. Page 4 of 21 5 (e) Not applicable. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER. On May 13, 1996, Zions and the Company entered into an agreement (the "Agreement") pursuant to which the Company issued and sold to Zions 20,000 shares of its Common Stock for an aggregate purchase price of $354,000. The following discussion of the material provisions of the Agreement is limited and qualified by the terms of the Agreement, which is included as an exhibit hereof. The Agreement provides for the issuance of 20,000 shares of Common Stock to Zions at a per share price equal to the current net asset value per share as reported in the Company's Quarterly Report on Form 10-Q (the "Form 10-Q") for the three months ended March 31, 1996, which value has been determined to be $17.70 per share. The Form 10-Q was filed with the Securities and Exchange Commission on May 15, 1996. The Agreement also requires the Company to use its reasonable best efforts to cause a nominee of Zions to serve on the Company's board of directors commencing on the date of the Company's Annual Meeting of Shareholders to be held during February, 1997. Provisions of the Agreement also limit the ability of Zions to increase its ownership of Common Stock above 25% of issued and outstanding shares without the prior approval of the Company's Board of Directors. In order to comply with federal regulations applicable to permissible investments by banks and bank holding companies, and to maximize the Company's ability to leverage the capital of MorAmerica Capital, the Agreement requires the Company to contribute to MorAmerica Capital additional capital in the amount of approximately $2,500,000. In addition, the Company has agreed with Zions not to make any investments other than in MorAmerica Capital and other debt and equity investments of the kind and amount eligible for investment by a national bank. Together with Zions' existing holdings of Common Stock acquired through open market purchases, after the closing of its purchase under the Agreement on May 16, 1996, Zions owned approximately 72,565 shares, equal to approximately 7.2% of the issued and outstanding shares of Common Stock. The Agreement contemplates that some or all of Zions' total holdings of Common Stock may be transferred to ZFNB or one of ZFNB's operating subsidiaries. Page 5 of 21 6 ITEM 7. MATERIAL TO BE FILED AS EXHIBITS. 1. Agreement, dated as of May 13, 1996, by and between Zions Bancorporation and MACC Private Equities Inc. SIGNATURE After due inquiry and to the best of my knowledge and belief, I hereby certify that the information set forth in this statement is true, complete and correct. Dated: May 23, 1996 ZIONS BANCORPORATION By: /s/ Gary L. Anderson ---------------------------- Name: Gary L. Anderson Title: Senior Vice President, Chief Financial Officer and Secretary Page 6 of 21 7 SCHEDULE I DIRECTORS AND EXECUTIVE OFFICERS OF ZIONS BANCORPORATION The names, business addresses and present principal occupations of the directors and executive officers of Zions Bancorporation ("Zions") are set forth below. If no business address is given, the director's or officer's business address is 1380 Kennecott Building, Salt Lake City, Utah 84133. The business address of each of the directors of Zions is also the business address of such director's employer, if any. All directors and officers listed below are citizens of the United States.
Name Present Principal Occupation or Employment and Address - ---- ------------------------------------------------------ Gary L. Anderson Senior Vice President, Chief Financial Officer and Secretary of Zions. Executive Vice President and Secretary of the Board of Directors of Zions First National Bank. Jerry C. Atkin Director of Zions. Chairman, President and Chief Executive Officer, SkyWest Airlines, 444 S. River Road, St. George, Utah 84770. Danne L. Buchanan Senior Vice President of Zions. President of Zions Data Service Company. Grant R. Caldwell Director of Zions. Retired, former Partner, KPMG Main Hurdman, Salt Lake City, Utah. R. Don Cash Director of Zions. Chairman, President and Chief Executive Officer of Questar Corporation, 180 East 100 South, Salt Lake City, Utah 84111. Director, Zions First National Bank. Gerald J. Dent Senior Vice President of Zions. Executive Vice President of Zions First National Bank. John J. Gisi Senior Vice President of Zions. Chairman and Chief Executive Officer of National Bank of Arizona. Mark B. Hinckley Senior Vice President of Zions. George Hofmann III Senior Vice President of Zions. President and Chief Executive Officer of Nevada State Bank. Richard H. Madsen Director of Zions. President and Chief Executive Officer, ZCMI, 2200 South 900 West, Salt Lake City, Utah 84137. Roger B. Porter Director of Zions. IBM Professor of Business and Government, Harvard University, 79 John F. Kennedy Street, Cambridge, Massachusetts 02138. Robert G. Sarver Director of Zions. Executive Director, Southwest Value Partners and affiliates, 8160 N. Hayden Road, Building J-208, Scottsdale, Arizona 85258. Chairman and Chief Executive Officer, G B Bancorporation. Harris H. Simmons President and Chief Executive Officer of Zions. President, Chief Executive Officer and Director, Zions First National Bank. Director, Questar Corporation.
Page 7 of 21 8
Name Present Principal Occupation or Employment and Address - ---- ------------------------------------------------------ L.E. Simmons Director of Zions. President, SCF Investment Partners and L.E. Simmons & Associates, Inc., 6600 Texas Commerce Tower, Houston, Texas 77002. Roy W. Simmons Chairman of the Board of Directors of Zions. Chairman of the Board of Directors of Zions First National Bank. Member of the Board of Directors of Beneficial Life Insurance Co. Director, Ellison Ranching Co. I.J. Wagner Director of Zions. President, The Keystone Company, 910 Kennecott Building, Salt Lake City, Utah 84133. Dale W. Westergard Director of Zions. Retired former Executive Vice President of Zions. Director, Zions First National Bank.
Page 8 of 21 9 EXHIBIT INDEX 1. Agreement, dated as of May 13, 1996, by and between Zions Bancorporation and MACC Private Equities Inc. Page 9 of 21 EX-1 2 EXHIBIT 1. AGREEMENT. DATED MAY 13, 1996. 1 EXHIBIT 1 AGREEMENT AGREEMENT between Zions Bancorporation, a Utah corporation ("Investor"), and MACC Private Equities Inc., a Delaware corporation ("Parent"), dated as of May 13, 1996. Recitals A. Investor is a bank holding company registered with the Board of Governors of the Federal Reserve System under the Bank Holding Company Act of 1956, as amended (the "BHC Act"). As of the date hereof, Investor (together with one or more affiliates of Investor) owns 49,065 shares of the issued and outstanding common stock $0.01 par value (the "Common Stock") of Parent. Pursuant to the BHC Act, bank holding companies in general are prohibited from acquiring the voting shares of any nonbanking company in excess of 5% of that company's outstanding voting shares. Under the BHC Act there is an exception from this prohibition to permit bank holding companies to acquire shares which "are of the kinds and amounts eligible for investment" by national banks (BHC Act Section 4(c)(6)). Subject to certain limitations, national banks are permitted to invest in small business investment companies within the meaning of the Small Business Investment Act of 1958, as amended (the "SBI Act"). B. As of the date hereof, (i) there are issued and outstanding 994,813 shares of Common Stock, (ii) Parent owns all of the issued and outstanding stock of MorAmerica Page 10 of 21 2 Capital Corporation, an Iowa corporation (the "SBIC"), which is a small business investment company under the SBI Act and (iii) the only activity in which Parent is engaged is acting as a business development company, principally through the ownership and management of the SBIC. C. Investor is willing to acquire the Shares of Parent pursuant to this Agreement, resulting in its ownership of more than 5% of the issued and outstanding Common Stock of Parent, based upon the representations, warranties and agreements of Parent set forth in this Agreement. D. Parent is willing to sell the Shares of Parent pursuant to this Agreement, based upon the representations, warranties and agreements of Investor set forth in this Agreement. NOW THEREFORE, the parties hereto agree as follows: Section 1. Purchase of Shares. Subject to the terms and conditions contained herein, Investor hereby agrees to purchase (the "Purchase") from Parent, and Parent agrees to sell to Investor, 20,000 shares (the "Shares") of Common Stock for a cash price (the "Purchase Price") per share equal to the net assets per share of the Common Stock as of March 31, 1996 as reported in Parent's Form 10-Q for the period ended as of that date ("Book Value"). Section 2. Conduct Pending the Purchase. During the period from March 31, 1996 to the time of the Purchase, Parent shall (i) conduct its business in the usual, regular Page 11 of 21 3 and ordinary course consistent with past practice and (ii) not adjust, split, combine or reclassify the Common Stock; make, declare or pay any dividend or make any other distribution on, or, except for a price less than Book Value, directly or indirectly redeem, purchase or otherwise acquire any shares of Common Stock; or grant any person any right to acquire Common Stock for less than Book Value. Section 3. Representations and Warranties. (a) Investor represents and warrants that (i) the information with respect to it set forth in the recitals is true and correct, (ii) the execution and delivery of this Agreement have been duly and validly authorized by all necessary corporate action on its part, (iii) this Agreement represents the valid and legally binding obligation of Investor, enforceable against Investor in accordance with its terms, (iv) Investor is an "accredited investor" as defined in Regulation D under the Securities Act of 1933, as amended (an "Accredited Investor"), and (v) subject to the terms of Section 14 hereof, Investor is acquiring the Shares for investment and not with a view to their distribution. (b) Parent represents and warrants that (i) the information with respect to it and the SBIC set forth in the recitals is true and correct, (ii) the execution and delivery of this Agreement have been duly and validly authorized by all necessary corporate action on its part, (iii) this Agreement represents the valid and legally Page 12 of 21 4 binding obligation of Parent, enforceable against Parent in accordance with its terms, (iv) Parent's audited consolidated financial statements as of September 30, 1995 and for the year then ended, a copy of which has been delivered to Investor, fairly present the financial position and results of operation of Parent as of and for the year then ended, (v) other than as disclosed in Parent's Forms 10-Q for the periods ended December 31, 1995 and March 31, 1996, copies of which have been delivered to Investor, since September 30, 1995, there has not been any change in the business, assets, financial condition or results of operations of Parent or the SBIC that, individually, or in the aggregate, would have a material adverse effect on Parent and the SBIC, taken as a whole, (vi) upon payment of the Purchase Price, the Shares will be voting Common Stock, duly authorized, validly issued, fully paid and nonassessable, and (vii) the issuance of the Shares is exempt from registration under the Securities Act of 1933 and the registration or qualification, if required, of the Shares pursuant to applicable state securities laws has been obtained. Section 4. Parent Covenants. In consideration of Investor's purchase of the Shares at a price substantially in excess of their market price, and to induce Investor to acquire the Shares, which will cause Investor to own more than 5% of the outstanding Common Stock, and so long as Page 13 of 21 5 Investor owns more than 5% of the Common Stock, Parent agrees that it will not (a) engage in any activities other than holding (i) the equity securities of the SBIC, (ii) any other equity security of the kinds and amounts eligible for investment by a national bank, and (iii) short term investments in short term treasury bills, insured certificates of deposit in principal amounts not to exceed $100,000, U.S. government agency securities backed by the full faith and credit of the federal government with maturities not to exceed one year, commercial paper rated no less than A-1 or P-1 or any equivalent rating, high quality repurchase contracts relating to government backed securities, and money market funds investing primarily in short term U.S. government securities (collectively, "Permitted Investments"), which term shall include, following the transfer of Parent's Common Stock contemplated by Section 14 hereof, (iv) any other investments of the kinds and amounts eligible for investment by national banks pursuant to 12 C.F.R. Section1, and (v) any loan or debt instrument which could be originated or purchased by a national bank, in each case so long as such are consistent with applicable regulatory requirements; and (b) make any investment other than in the SBIC and the short term investments specified in clause (iii), except upon giving not less than 30 days' prior notice to Investor. If Investor notifies Parent during such 30-day period that the Page 14 of 21 6 proposed investment is not a Permitted Investment, Parent agrees that it will not make such investment. Section 5. Investor Covenants. Investor agrees that nothing herein shall preclude Parent from entering into an agreement to merge or consolidate with an entity engaged in activities which are not limited to the holding of Permitted Investments; provided, however, that Parent shall not consummate such merger or consolidation without giving Investor at least 90 days' prior notice. Section 6. Closing. Subject to the terms and conditions contained herein, Investor agrees to deliver the Purchase Price for the Shares to Parent not later than 1:00 p.m. (Central daylight time) on the second business day after filing of Parent's Form 10-Q for the period ended March 31, 1996, which must be filed, at the latest, on May 15, 1996 (the "Closing Date") by wire transfer in immediately available funds to such account as Parent shall specify, against delivery to Investor of one or more certificates representing the Shares, which certificates shall be registered in the name of Investor or Investor's nominee. Section 7. Conditions. (a) The obligation of Investor to purchase the Shares is subject to (i) the accuracy of the representations and warranties on the part of Parent contained herein as of the Closing Date, (ii) the contribution by Parent to the SBIC, subsequent to March 31, Page 15 of 21 7 1996 and on or before the Closing Date, of all cash, short term investments and other investments of Parent other than the cash and short term investments in the amount reasonably estimated by Parent to be necessary (x) for 24 months operating expenses, (y) to purchase up to 50,000 shares of Common Stock from holders of less than 100 such shares pursuant to its previously announced odd-lot purchase program and (z) to fund settlement of pending personal injury litigation against a subsidiary; provided, that the amount of such contribution to the SBIC shall be not less than $2,500,000, (iii) evidence that assets not permitted to be held directly by Parent pursuant to Section 4(i)-(iii) have been contributed to the SBIC and (iv) the performance by Parent in all material respects of its obligations contained herein, which accuracy, contribution and performance shall be confirmed by an officer's certificate of Parent dated the Closing Date. (b) The obligation of Parent to issue and sell the Shares is subject to the accuracy of the representations and warranties on the part of Investor contained herein as of the Closing Date, which shall be confirmed by an officer's certificate of Investor dated the Closing Date. Section 8. Notices. All notices or other communications which are required or permitted hereunder shall be in writing and sufficient if delivered by hand, by facsimile transmission, or by registered or certified mail, Page 16 of 21 8 postage prepaid, to the persons at the addresses or facsimile numbers set forth below (or at such other address or facsimile number as may be provided hereunder), and shall be deemed to have been delivered as of the date so delivered if by hand or by facsimile (in either case with confirmation of receipt) or the date so received if by mail: If to Investor: Zions Bancorporation 1380 Kennecott Building Salt Lake City, Utah 84133 Attention: W. David Hemingway Facsimile: (801) 524-4659 If to Parent: MACC Private Equities, Inc. 101 Second Street S.E., Suite 800 Cedar Rapids, Iowa 52401 Facsimile: 319-363-9683 Attention: Paul M. Bass, Jr., Chairman With a copy to: David E. Gardels, Esq. Dixon, Dixon & Jessup Ltd., LLP Suite 1800 One First National Center Omaha, Nebraska 68102-1504 Facsimile: (402) 345-3341 Section 9. Specific Performance. Parent acknowledges and agrees that the failure of Parent to fulfill any of its covenants and agreements contained herein will cause irreparable injury to Investor for which damages, even if available, will not be an adequate remedy. Accordingly, Parent hereby consents to the issuance of injunctive relief Page 17 of 21 9 by any court of competent jurisdiction to compel performance of Parent's obligations and to the granting by any such court of the remedy of specific performance by the Parent of its obligations hereunder. Section 10. Limit on Investment. Investor agrees that, without the prior approval of Parent's board of directors, it will not purchase any Common Stock if, after giving effect to such purchase, Investor would own in excess of 25% of Parent's outstanding Common Stock. Parent agrees to use its reasonable best efforts to cause a nominee of Investor to serve on Parent's board of directors commencing with the annual meeting to be held in 1997. Section 11. Governing Law. This Agreement shall in all respects be governed by, and construed in accordance with, the laws of the State of Delaware. Section 12. Arbitration. Any dispute, controversy or claim arising out of or based upon the terms of this Agreement or any transaction contemplated herein shall be settled exclusively and finally by binding arbitration in Salt Lake City, Utah. Upon written demand for arbitration by any party hereto, the parties to the dispute shall confer and attempt in good faith to agree upon one arbitrator to be selected from panels maintained by the American Arbitration Association (or any successor organization). If the parties have not agreed upon an arbitrator within 30 days after receipt of such written demand, each party to the dispute Page 18 of 21 10 shall appoint one arbitrator and those two arbitrators shall agree upon a third arbitrator. The binding arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association (or any successor organization) and shall be binding upon the parties. Judgment upon an arbitration award may be entered in any court having jurisdiction. The Federal Arbitration Act shall apply to the construction, interpretation and enforcement of this arbitration provision. Section 13. Termination; Survival. On or before the Closing Date, this Agreement may be terminated by the mutual consent of both parties. After the Closing Date, this Agreement may be terminated by mutual consent of the parties or by either party upon 30 days' prior notice to the other; provided, that no such termination by one party shall be effective unless and until Investor owns 5% or less of the Common Stock. The representations and warranties and agreements of the parties set forth herein shall survive the Closing Date. Section 14. Transfer to Bank. Investor will use its reasonable efforts to obtain necessary regulatory approval or non-objection to transfer Parent's Common Stock to Investor's wholly-owned subsidiary, Zions First National Bank, a national banking association ("Bank"), or an operating subsidiary of Bank and will complete such transfer Page 19 of 21 11 within a reasonable time after such approval or non-objection. Promptly after the execution of this Agreement, Bank expects to file an appropriate notice with the Office of the Comptroller of the Currency to permit such transfer. Parent agrees that (a) Investor may transfer its ownership in the Common Stock to Bank (or an operating subsidiary thereof), and (b) following such transfer, Bank shall be, and shall be deemed to be, substituted for Investor hereunder without any further action by the parties hereto (except that Bank shall notify Parent promptly after such transfer occurs). Investor represents, warrants and agrees that Bank or any such operating subsidiary is, or at the time of acquisition of the Shares will be, an Accredited Investor, and that the acquisition by Bank or any such operating subsidiary of the Shares will be for investment and not with a view to their distribution. Section 15. Miscellaneous. (a) This Agreement may be amended only by a writing executed by the parties hereto. (b) This Agreement 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. (c) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, except that, subject to the provisions of Section 14 hereof, neither Page 20 of 21 12 party may assign or otherwise transfer any of its rights or duties under this Agreement without the prior written consent of the other party. IN WITNESS WHEREOF, Investor and Parent have caused this Agreement to be signed by their respective officers thereunto duly authorized, all as of the date first written above. ZIONS BANCORPORATION By: /s/ Gary L. Anderson --------------------------- Gary L. Anderson Senior Vice President MACC PRIVATE EQUITIES INC. By: /s/ Paul M. Bass, Jr. --------------------------- Paul M. Bass, Jr. Chairman Page 21 of 21 -----END PRIVACY-ENHANCED MESSAGE-----