EXHIBIT 10.2
AGREEMENT
---------
This Agreement is dated as of September 24, 1999, among US Unwired 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.
-------------------------
The Shareholders will not approve any amendment to the Articles of
Incorporation ("Articles") of the Company that restricts the transfer of Class B
Common Stock of the Company beyond the restrictions contained in the 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 Articles or By-Laws is approved by each of the
Shareholders who at the time thereof is a holder of Class B Common Stock.
2. Piggy-Back Registration Rights. In consideration of the Shareholders'
------------------------------
willingness to accept the transfer restrictions of the Articles, which will
benefit the Company by promoting an orderly trading market for its shares, the
Company grants the Shareholders the following piggyback 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 2 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 proposed offering, name the underwriters,
and indicate the proposed timing. Such disclosure shall not prevent the Company
from changing those matters at its discretion.
(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 managing underwriter of the primary offering informs the
Company that the number and type of securities requested to be included would
materially affect such offering, then the Company will include in such
registration, to the extent of the number and type that the company is advised
can be sold, FIRST, all Primary Shares, SECOND, the securities to be included
pursuant to this Agreement and pursuant to Section 2.2 of a registration rights
agreement between the Company and the 1818 Fund III, L.P., pro rata among the
groups, on the basis of estimated proceeds from the sale thereof, and THIRD, all
other securities proposed. The number of shares that may be included pursuant
to this Agreement is referred to as the "Includable Shares". If the number of
shares covered by Includable 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 2 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 so by the underwriters, deposit the shares to be sold
by such Selling Shareholder with an escrow agent.
2
(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 Articles and which can be sold under Rule
144 or any comparable provision.
(h) The provisions of this Section 2 shall not apply to any evergreen
shelf registration covering Registrable Securities as that term is used in a
registration rights agreement between the Company and the 1818 Fund III, L.P.
3. 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 Articles.
4. 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 2 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 2 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 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
3
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.
(c) The provisions of Section 2 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 September 24, 1999 to
the Company (which will acknowledge receipt thereof and send a copy of such
acknowledgement to all Shareholders who by then have become parties).
US UNWIRED INC.
By: /s/ Thomas G. Henning
-------------------------------
Authorized Officer
4
SHAREHOLDERS
/s/ William L. Henning, Sr. /s/ William L. Henning, Jr.
- ------------------------------------------- ----------------------------------------
William L. Henning, Sr. William L. Henning, Jr.
/s/ John A. Henning /s/ Thomas G. Henning
- ------------------------------------------- ----------------------------------------
John A. Henning Thomas G. Henning
/s/ Robert Piper /s/ Thomas D. Henning
- ------------------------------------------- ----------------------------------------
Robert Piper Thomas D. Henning
/s/ Joyce P. Spates /s/ James D. Spates
- ------------------------------------------- ----------------------------------------
Joyce P. Spates James D. Spates
/s/ Thomas G. Shearman, Jr. /s/ Ada B. Vincent
- ------------------------------------------- ----------------------------------------
Thomas G. Shearman, Jr. Ada B. Vincent
- ------------------------------------------- ----------------------------------------
Pine Island Oil Company, Scobee Family Limited Partnership,
Authorized Representative Authorized Partner
/s/ Henry Rice Scobee /s/ William L Henning, Jr.
- ------------------------------------------- ----------------------------------------
Henry Rice Scobee Custodian for William L Henning, Jr.
Exempt Class Trust No. 1
/s/ John A. Henning /s/ Thomas G. Henning
- ------------------------------------------- ----------------------------------------
Custodian for John A. Henning Custodian for Thomas G. Henning
Exempt Class Trust No. 1 Exempt Class Trust No. 1
- ------------------------------------------- ----------------------------------------
Henco Partnership, Authorized Shearman Corporation, Authorized
Partner Representative
/s/ William Thomas Henning /s/ Daniel Lovejoy Henning
- ------------------------------------------- ----------------------------------------
William Thomas Henning, II under the Custodian for Daniel Lovejoy Henning
under U.G.M.A., Thomas G. Henning, Custodian the U.G.M.A., Thomas G. Henning,
Custodian
/s/ John Allen Henning /s/ Travis Guy Henning
- ------------------------------------------- ----------------------------------------
John Allen Henning, Jr. under the U.G.M.A., Travis Guy Henning under the
U.G.M.A., Thomas G. Henning, Custodian Thomas G. Henning, Custodian
/s/ Hillary Elizabeth Henning /s/ John David Henning
- ------------------------------------------- ----------------------------------------
Hillary Elizabeth Henning under the John David Henning under the U.G.M.A.,
U.G.M.A., Thomas G. Henning, Custodian Thomas G. Henning, Custodian
/s/ Katherine Anna Henning /s/ Grant Thomas Henning
- ------------------------------------------- ----------------------------------------
Katherine Anna Henning under the Grant Thomas Henning under the U.G.M.A.,
U.G.M.A, William L. Henning, Sr., Custodian William L. Henning, Sr., Custodian