1
EXHIBIT 4.79
A G R E E M E N T
This Agreement is dated as of December 26, 1996, among Mercury, Inc., a
Louisiana corporation (the "Company"), and the shareholders of the Company who
are signatories hereto or become parties hereto in the manner hereinafter
provided (collectively, the "Shareholders").
The Company and the Shareholders agree as follows:
1. Articles of Incorporation.
(a) Each of the Shareholders hereby approves and accepts, and
will vote his, her or its voting stock of the Company "for" the approval of,
Restated Articles of Incorporation of the Company in the form annexed as
Exhibit A (the "Restated Articles"). The Shareholders will not approve any
amendment to the Restated Articles that restricts the transfer of Class B
Common Stock of the Company beyond the restrictions contained in the Restated
Articles, and will use their best efforts to prevent (or, if they cannot
prevent, then to repeal) any amendment to the By-Laws of the Company that has
that effect, unless such amendment to the Restated Articles or By-Laws is
approved by each of the Shareholders who at the time thereof is a holder of
Class B Common Stock.
(b) If requested by the Company or any Shareholder in any
Offer Notice or Acceptance Notice given pursuant to Article IV(B) of the
Restated Articles, any Acceptance Notice or Withdrawal Notice given by the
Company or any Shareholder shall, in addition to being sent in the manner
required by the Restated Articles, also be sent to a specified fax number
and/or to a specified advisor (including by fax if a number is specified). The
requirements of this Section 1(b) shall be deemed satisfied if the person
giving the Acceptance Notice or Withdrawal Notice, as the case may be, can
demonstrate a good faith attempt to comply with such request.
2. Waiver of Restrictions.
(a) If the restrictions contained in Article IV(B)(7) of the
Restated Articles are waived for any holder of Class B Common Stock, other than
a waiver in accordance with Section 2(b) below, any Shareholder who learns of
such waiver will cause notice of such waiver to be given to all other
Shareholders. The Shareholders will vote their Class B Common Stock in favor
of granting, to any such other Shareholder who requests same within 90 days
after receiving such notice, an equivalent waiver that is subject to the same
terms and conditions, if any.
2
(b) The Shareholders will vote their shares of Class B Common
Stock in favor of granting a waiver of the restrictions contained in Article
IV(B)(7) of the Restated Articles to the Estate of any deceased Shareholder, to
the extent such waiver becomes necessary for the Estate to raise funds to pay
estate and similar taxes due by the Estate. As a condition to such waiver
being granted, the Estate shall be required to agree in writing (i) to conduct
such sales in an orderly fashion so as to minimize disruption of the public
market, and (ii) to make such sale in one registered underwritten offering if:
(A) the Company agrees to file the necessary registration statement, (B) the
number of shares proposed to be sold by the Estate during any period of three
months would exceed 1% of the number of shares of Class A Common Stock at the
time outstanding (excluding from such number of outstanding shares shares
issuable upon conversion or the Class B Common Stock to be sold), (C) the
Company's investment bankers recommend a sale in that manner, and (D) the
Estate is able to find underwriters reasonably acceptable to the Estate and the
Company. The provisions of Sections 3(e) and 3(f) hereof shall apply to any
registration pursuant to this subsection.
3. Piggy-Back Registration Rights. In consideration of the
Shareholders' willingness to accept the transfer restrictions of the Restated
Articles, which will benefit the Company by promoting an orderly trading market
for its shares, the Company grants the Shareholders the following piggy-back
registration rights.
(a) If the Company proposes to register under the Securities
Act the sale, for cash through underwriters, of any shares issued by the
Company, including shares that are proposed to be sold by the Company and
shares that the Company may be obligated to register under a demand
registration covenant held by a selling shareholder (collectively, "primary
shares"), other than the Company's initial public offering and other than a
registration filed pursuant to a demand registration covenant hereafter granted
by the Company to a purchaser in connection with the Company's sale of shares
to such purchaser, unless rights of the type accorded by this Section 3 are
permitted in accordance with such demand registration covenant, the Company
will notify the Shareholders (and any other shareholder who may be entitled to
include shares in such registration) of such proposal as soon as is
practicable. Subject to the allocation and limitation provisions below, the
Company will in such notice invite the Shareholders (and any other shareholder
who may be entitled to include shares in such registration) to include in such
registration (if shares of selling shareholders are permitted to be included in
the registration form proposed to be filed by the Company or in any other
registration form that the Company would be permitted to use to register the
primary shares and the use of which would not cause any material additional
expense to the Company) such aggregate number of shares (the "Includable
Shares") as shall be equal to 80% (or, at the Company's option, more) of the
amount of shares that the underwriters determine to be the approximate maximum
number which could be included in such registration without having an adverse
effect on the offering of the primary shares. Such notice (the "Piggy-Back
Notice") shall be sent to each Shareholder at his, her or its address of
record. It shall, to the extent then known or determined, identify the
-2-
3
proposed offering, name the underwriters, and indicate the proposed timing.
Such disclosure shall not prevent the Company from changing those matters at
its discretion. The underwriters may at any time reduce (even to zero) the
"Includable Shares" as may be necessary so that their inclusion does not
adversely affect the offer of the Primary Shares.
(b) Each Shareholder who desires to include shares in the
registration statement shall notify the Company, within 10 days after the
Piggy-Back Notice is sent, of the number of such shares. Such notice (the
"Inclusion Notice") shall constitute the good faith commitment of the
Shareholder to include that number (or any lesser number that occurs by reason
of the allocation and limitation provisions herein) of shares in the Company's
registration statement plus up to 15% thereof to cover any over allotment
option requested by the underwriters. The Inclusion Notice shall state that
the Shareholder desires to include the shares covered by the Inclusion Notice
in the registration for sale through the underwriters as soon as may be
practicable after the effective date of the registration statement, and that
the Shareholder will provide all information and take all actions as may be
required to permit the Company to comply with all applicable legal requirements
and to obtain acceleration of the effective date of the registration statement.
(c) If the number of shares covered by Inclusion Notices
exceeds at any time the number of Includable Shares, the number set forth in
each Inclusion Notice will be proportionately reduced so that the total, as so
reduced, equals the number of Includable Shares. The reduction applicable to
each Inclusion Notice will be that proportion of the total reduction as is
equal to the fraction whose numerator is the number of shares specified in such
Inclusion Notice and whose denominator is the total number of shares specified
in all of the Inclusion Notices. If the number of Includable Shares is
increased, or if shares sought to be included in the registration are not
included, then any addition to the Includable Shares will be allocated,
proportionately in the same manner, among the Shareholders who have timely
given Inclusion Notices. The Company may in its discretion accept untimely
Inclusion Notices but in that event will give each Shareholder who has
previously submitted an Inclusion Notice a reasonable time within which to
revise it.
(d) The Company may at any time, in its sole discretion,
determine to delay or not to file or to withdraw (prior to or following the
effective date) any registration statement to which this Section 3 applies.
(e) The Shareholders whose shares are included in the
registration statement ("Selling Shareholders") will enter into customary
underwriting agreements with the Company and the underwriters, which will
contain the customary indemnifications by each of them. Each of the Selling
Shareholders will, if requested so to do by the underwriters, deposit the
shares to be sold by such Selling Shareholder with an escrow agent.
-3-
4
(f) Each Selling Shareholder shall pay the registration and
NASD filing fees applicable to the shares offered by such Selling Shareholder,
the underwriting discounts and commissions applicable to such shares, the blue
sky fees and expenses applicable thereto, the fees of such Selling
Shareholder's counsel and accountants, and such Selling Shareholder's
proportionate (based on the number of shares included by that Selling
Shareholder divided by the total number of shares included by all such Selling
Shareholders) share of all incremental additional expenses caused by the
inclusion of the shares included by Selling Shareholders. The Company shall
pay all other expenses of preparation, printing and filing the registration
statement.
(g) The Company may exclude from any such registration any
shares which the Shareholder would be permitted to sell in the public market
without any remaining restriction under the Restated Articles and which can be
sold under Rule 144 or any comparable provision.
4. Transfer Assistance. The Company will, and will request that its
transfer agent, render reasonable assistance so as to promote the efficiency of
(a) the transfer of shares sold by a Shareholder under Rule 144 or 145 under
the Securities Act, and (b) the issuance of certificates representing shares of
Class A Common Stock into which shares of Class B Common Stock of a Shareholder
have been converted in accordance with the Restated Articles.
5. Miscellaneous.
(a) This Agreement constitutes the entire agreement of the
parties with respect to its subject matter, but it does not supersede any prior
written agreements of the parties except to any extent it is inconsistent with
them. Shares registered for sale under the provisions of Section 3 shall be
relieved of any restriction on transfer that arises under, or was imposed to
implement the provisions of, Rule 144 or 145 under the Securities Act, if such
registration eliminates the legal requirement for such restriction. Otherwise,
the provisions of Section 3 shall not relieve any Shareholder of any
restriction on transfer of capital stock of the Company.
(b) This Agreement binds and inures to the benefit of the
Company and its legal successors by merger or consolidation, the respective
Shareholders, the Estates of the Shareholders who are individuals, and the
legal successors by merger or consolidation of those who are not. The rights
and obligations under this Agreement may not be assigned or transferred and are
not heritable except in any such case to a Qualified Holder (as such term is
used in the Restated Articles) who acquires shares of Class B Common Stock from
a Shareholder (including by inheritance) but in that event this Agreement will,
unless such Qualified Holder is then a party to this Agreement as a
Shareholder, apply only to the shares of Class B Common Stock so acquired and
only if such Qualified Holder, promptly upon request at any time by the
Company, agrees in writing to be bound by all provisions of this Agreement
applicable to the acquired shares.
-4-
5
(c) The provisions of Section 3 shall terminate six years
after the date of this Agreement unless extended by the vote of a majority of
the shares of Class B Common Stock held by the Shareholders at the time of such
extension. The remaining provisions of this Agreement shall terminate 25
years after the date of this Agreement unless so extended. No such termination
shall terminate rights and obligations already accrued at the time of such
termination.
(d) Certificates representing shares subject to the provisions
of this Agreement shall be appropriately legended.
(e) Notices shall be given to the Company at its Louisiana
registered office, Attention: President, and to each Shareholder at the address
of record of such Shareholder.
(f) This Agreement shall be governed by the internal laws of
Louisiana. It may be executed in one or more counterparts.
IN WITNESS WHEREOF, the Company and the Shareholders whose names are
subscribed hereto have become parties to this Agreement as of the date first
above written; other shareholders of the Company may become parties by
executing and returning a counterpart signature page on or before January 13,
1997 to the Company (which will acknowledge receipt thereof and send a copy of
such acknowledgment to all Shareholders who by then have become parties).
MERCURY, INC.
By:
----------------------------------
Authorized Officer
-5-
6
SHAREHOLDERS
-------------------------------------- ---------------------------------
Xxxxxxx X. Xxxxxxx, Xx. Xxxx X. Xxxxxxx
-------------------------------------- ---------------------------------
Xxxxxxx X. Xxxxxxx, Xx. Xxxx X. Xxxxxxx
-------------------------------------- ---------------------------------
Xxxxxx X. Xxxxxxx Xxxxxx Xxxxx Xxxxxx
-------------------------------------- ---------------------------------
Xxxxx Xxxxxx Xxxxx Xxxxxx Xxxxxxxx
-------------------------------------- ---------------------------------
Xxxxx Xxxx Xxxxxx Xxxxxx Xxxxx
-------------------------------------- ---------------------------------
Xxxxxx X. Xxxxxxx, as trustee Xxxxxx X. Xxxxxxx, as trustee
of the Xxxxxxx X. Xxxxxxx, Xx. of the Xxxx X. Xxxxxxx
Exempt Class Trust No. I, U/A Exempt Class Trust No. I,U/A
9-20-96 9-20-96
-------------------------------------- ---------------------------------
Xxxxxx X. Xxxxxxx, as trustee
of the Xxxxxx X. Xxxxxxx
Exempt Class Trust No. I, U/A
9-20-96
-6-
