exv10w12



 




Exhibit 10.12




FORM OF VOTING UNDERTAKING




     THIS VOTING UNDERTAKING (this “Agreement”) is made and entered into as of
October 28, 2003, between Allied Capital Corporation, a Delaware corporation
(the “Acquiror”) and the undersigned stockholder (the “Stockholder”) of Mercury
Air Group, Inc., a Delaware corporation (the “Seller”).




RECITALS




     A.     The Seller, Mercury Air Centers, Inc. (the “Company”) and the Acquiror
have entered
into a Stock Purchase Agreement of even date herewith (the “Purchase Agreement”), which provides
for the sale of all of the Company’s issued and outstanding capital stock
by the Seller to the Acquiror;




     B.     Stockholder is the beneficial owner (as defined in Rule 13d-3 under the
Securities
Exchange Act of 1934, as amended (the “Exchange Act”)) of such number of
shares of common
stock of the Seller, par value of $.01 per share (“Common Stock”); Common
Stock issuable upon
exercise of outstanding options (“Option Stock”) and Series A 8%
Cumulative Convertible Preferred
Stock (“Preferred Stock”) as is indicated on the signature page of this
Agreement;




     C.     Stockholder believes that the terms of the Purchase Agreement are fair
and that it is
in his, her or its best interest, as a shareholder of the Seller that the
transactions contemplated by the
Purchase Agreement be consummated;




     D.     The Acquiror has advised the Seller that the Acquiror is not prepared
to execute the
Purchase Agreement unless the Acquiror believes that it is reasonably
likely that the transactions
contemplated by the Purchase Agreement will be consummated, and therefore
the Acquiror has
required that certain stockholders of the Seller undertake in advance to
vote their Stock (as defined
below) in favor of the transactions contemplated by the Purchase
Agreement; and




     E.     For these reasons, and in consideration of the execution of the
Purchase Agreement
by the Acquiror and to enhance the likelihood that the transactions
contemplated by the Purchase
Agreement will be consummated, the Stockholder, solely in his, her or its
capacity as a stockholder
of the Seller, agrees to vote the Stock and other such shares of capital
stock of the Seller over which
the Stockholder has voting power so as to facilitate consummation of the
transactions contemplated
by the Purchase Agreement.




     NOW, THEREFORE, intending to be legally bound, the parties hereto agree
as follows:




     1.     Certain Definitions. Capitalized terms not defined herein shall have
the meanings ascribed to them in the Purchase Agreement. For purposes of this
Agreement:




             (a)    “Expiration Date” shall mean the earlier to occur of: (i) such date
and time as the Purchase Agreement shall have been terminated pursuant to
Article X thereof; or (ii) such date and time as the transactions contemplated
by the Purchase Agreement shall be consummated in accordance with the terms
and provisions of the Purchase Agreement.





 








 



             (b)    “Person” shall mean any (i) individual, (ii) corporation, limited
liability
company, partnership or other entity, or (iii) governmental authority.




             (c)    “Stock” shall mean: (i) all securities of the Seller (including Common
Stock,
Option Stock and Preferred Stock) owned by the Stockholder as of the date
of this Agreement; and
(ii) all additional securities of the Seller (including all additional
Common Stock, Option Stock and
Preferred Stock) of which the Stockholder acquires ownership during the
period from the date of this
Agreement through the Expiration Date.




             (d)    Transfer. A Person shall be deemed to have effected a “Transfer” of
a
security if such person directly or indirectly: (i) sells, pledges,
encumbers, grants an option with
respect to, transfers or disposes of such security or any interest in such
security; or (ii) enters into an
agreement or commitment providing for the sale of, pledge of, encumbrance
of, grant of an option
with respect to, transfer of or disposition of such security or any
interest therein.




     2.     Transfer of Stock.




             (a)    Transferee of Stock to be Bound by this Agreement. The Stockholder
agrees
that, during the period from the date of this Agreement through the
Expiration Date, the Stockholder
shall not cause or permit any Transfer of Stock to be effected unless each
Person to which any of
such Stock, or any interest in any of such Stock, is or may be transferred
shall have: (i) executed a
counterpart of this Agreement and a proxy in the form attached hereto (the
“Proxy”); and (ii) agreed
in writing to hold such Stock (or interest in such Stock) subject to all
of the terms and provisions of
this Agreement.




             (b)    Transfer of Voting Rights. The Stockholder agrees that, during the
period
from the date of this Agreement through the Expiration Date, the
Stockholder shall not deposit (or
permit the deposit of) any Stock in a voting trust or grant any proxy or
enter into any voting
agreement or similar agreement in contravention of the obligations of the
Stockholder under this
Agreement with respect to any Stock.




     3.     Agreement to Vote Stock. At every meeting of the stockholders of the
Seller called,
and at every adjournment thereof, and on every action or approval by
written consent of the
stockholders of the Seller, the Stockholder (solely in its, his or her
capacity as such) shall cause the
Stock to be voted: (a) in favor of the approval of the Purchase Agreement
and the transactions
contemplated by the Purchase Agreement; (b) against any Acquisition
Proposal (as defined in the
Purchase Agreement), other than the Purchase Agreement or the transactions
contemplated thereby;
and (c) against approval or adoption of resolutions or actions which could
reasonably be expected
to result in any of the conditions to the Seller’s obligations under the
Purchase Agreement not being
satisfied.




     4.     No Solicitation. Except as permitted by the Purchase Agreement, the
Stockholder
agrees that between the date of this Agreement and the Expiration Date,
the Stockholder will not
directly or indirectly and solely in its, his or her capacity as a
stockholder of the Seller: (a) solicit,
initiate, encourage or take an action intended to encourage, enter into,
conduct, engage in or continue
any discussions, or enter into any agreement or understanding, with any
other person or entity (other
than any officer, director, controlled affiliate or employee of the Seller
or any of its affiliates or any




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investment banker, attorney or other advisor or representative of the Seller or
any of its affiliates) regarding the transfer, directly or indirectly, of any
capital stock of or any other interest in the Company or its Subsidiaries or
any of their assets (including one or more FBO locations or by way of a
license); or (b) disclose any nonpublic information relating to the Company,
its Subsidiaries or any assets comprising the FBO Business or afford access to
the properties, books or records of the Company or its Subsidiaries to any
other person or entity that may be considering acquiring, or has acquired, an
interest in the Company or its Subsidiaries. The Stockholder will immediately
cease and cause to be terminated any discussions or negotiations between the
Stockholder and any other parties that may be ongoing with respect to the
transfer, directly or indirectly, of any capital stock of or any other interest
in the Company or its Subsidiaries or any of their assets (including one or
more FBO locations or by way of a license). The Stockholder will promptly
advise the Acquiror orally and in writing of any Acquisition Proposal received
by the Stockholder or any request for information with respect to any
Acquisition Proposal received by the Stockholder, the material terms and
conditions of such Acquisition Proposal or request and the identity of the
person making such Acquisition Proposal or request. This Agreement does not
affect or restrict the Stockholder’s actions taken or not taken in his or her
capacity as a director or officer of the Company. The Acquiror agrees that in
the event of any breach or alleged breach of this Section 4 by the Stockholder,
the Acquirer’s sole and exclusive remedy with respect to the Stockholder shall
be to seek specific performance or injunctive relief pursuant to Section 10(d)
hereof, and the Acquiror shall not be entitled to seek monetary damages from
the Stockholder in connection with any such breach or alleged breach of this
Section 4 by the Stockholder; provided, however, that nothing in this Agreement
shall in any way limit the Acquirer’s remedies against the Seller for any
breach of the Purchase Agreement resulting from any such action by the
Stockholder.




     5.     Irrevocable Proxy. Concurrently with the execution of this Agreement,
the Stockholder agrees to deliver to the Acquiror the Proxy, which shall be
irrevocable to the fullest extent permissible by law, with respect to the
Stock.




     6.     Representations and Warranties of the Stockholder. The Stockholder:
(a) is the beneficial owner of the Stock and the options to purchase the Stock
indicated on the signature page of this Agreement, which are free and clear of
any liens, adverse claims, charges or other encumbrances (except such
encumbrances arising under securities laws); (b) does not beneficially own any
securities of the Seller other than the Stock and options to purchase the
Stock indicated on the signature page of this Agreement; and (c) has full
power and authority to make, enter into and carry out the terms of this
Agreement and the Proxy.




     7.     Additional Documents. The Stockholder (in his, her or its capacity as
such) and the
Acquiror hereby covenant and agree to execute and deliver any additional
documents necessary or
desirable, in the reasonable opinion of the Acquiror, to carry out the
intent of this Agreement.




     8.     Legending of Stock. If so requested by the Acquiror, the Stockholder
agrees that the
Stock shall bear a legend stating that they are subject to this Agreement
and to an irrevocable proxy.




     9.     Termination. This Agreement shall terminate and shall have no further
force or effect
as of the Expiration Date.





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     10.     Miscellaneous.




               (a)    Severability. If any term, provision, covenant or restriction of this
Agreement
is held by a court of competent jurisdiction to be invalid, void or
unenforceable, then the remainder
of the terms, provisions, covenants and restrictions of this Agreement
shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.




               (b)    Binding Effect and Assignment. This Agreement and all of the
provisions
hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective
successors and permitted assigns, but, except as otherwise specifically
provided herein, neither this
Agreement nor any of the rights, interests or obligations of the parties
hereto may be assigned by
either of the parties without prior written consent of the other.




               (c)    Amendments and Modification. This Agreement may not be modified,
amended, altered or supplemented except upon the execution and delivery of
a written agreement
executed by the parties hereto.




               (d)    Specific Performance; Injunctive Relief. The parties hereto
acknowledge that
the Seller shall be irreparably harmed and that there shall be no adequate
remedy at law for a
violation of any of the covenants or agreements of the Stockholder set
forth herein. Therefore, it is
agreed that the Seller shall have the right to enforce such covenants and
agreements by specific
performance, injunctive relief or by any other means available to the
Seller at law or in equity.




               (e)    Notices. All notices and other communications pursuant to this
Agreement
shall be in writing and deemed to be sufficient if contained in a written
instrument and shall be
deemed given if delivered personally, telecopied, sent by
nationally-recognized overnight courier or
mailed by registered or certified mail (return receipt requested), postage
prepaid, to the parties at the
following address (or at such other address for a party as shall be
specified by like notice):




	 	 	 
	 	 	
If to the Acquiror:
	 	 	 
	 	 	
Allied Capital Corporation
	 	 	
1919 Pennsylvania Avenue, N.W.
	 	 	
Washington, DC 20006-3434
	 	 	
Fax: (202)659-2053
	 	 	
Attn: G. Cabell Williams
	 	 	 
	 	 	
with a copy to:
	 	 	 
	 	 	
Piper Rudnick LLP
	 	 	
1200 Nineteenth Street, N.W.
	 	 	
Washington, DC 20036-2412
	 	 	
Fax: (202)223-2085
	 	 	
Attn: Anthony H. Rickert, Esq.







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If to the Stockholder:
	 	 	 
	 	 	
To the address for notice set forth on the signature page hereof, with a copy to:
	 	 	 
	 	 	
Mercury Air Group, Inc.
	 	 	
5456 McConnell Avenue
	 	 	
Los Angeles, CA 90066
	 	 	
Fax: (310)827-0650
	 	 	
Attn: Wayne J. Lovett
	 	 	 
	 	 	
and to:
	 	 	 
	 	 	
McBreen & Kopko
	 	 	
20 N. Wacker Drive, Suite 2520
	 	 	
Chicago, IL 60606
	 	 	
Fax: (312)332-2657
	 	 	
Attn: Frederick H. Kopko, Jr.






             (f)    Governing Law. This Agreement shall be governed by the laws of the
State
of Delaware, without reference to rules of conflicts of law.




             (g)    Entire Agreement. This Agreement and the Proxy contain the entire
understanding of the parties in respect of the subject matter hereof, and
supersede all prior
negotiations and understandings between the parties with respect to such
subject matter.




             (h)    Effect of Headings. The section headings are for convenience only and
shall not affect the construction or interpretation of this Agreement.




             (i)    Counterparts. This Agreement may be executed in several counterparts,
each of which shall be an original, but all of which together shall constitute
one and the same agreement.




             (j)    No Obligation to Exercise Options. Notwithstanding any provision of
this Agreement to the contrary, nothing in this Agreement shall obligate the
Stockholder to exercise any option, warrant or other right to acquire Stock.




[Signatures appear on next page]





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     IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on the day and year first above written.




	 	 	 
	ALLIED CAPITAL CORPORATION	 	 
	 	 	


	 	 	
Name of Stockholder
	 	 	 
	By:	 	
By:
	
	 	

	        Signature of Authorized Signatory	 	
        Signature
	 	 	 
	Name:	 	
Name:
	
	 	

	 	 	 
	Title:	 	
Title:
	
	 	

	 	 	 
	 	 	


	 	 	 
	 	 	


	 	 	
Print Address
	 	 	 
	 	 	


	 	 	
Telephone
	 	 	 
	 	 	


	 	 	
Facsimile No.
	 	 	 
	 	 	
Stock beneficially owned:
	 	 	 
	 	 	
________ Common Stock
	 	 	 
	 	 	
________ Option Stock
	 	 	 
	 	 	
________ Preferred Stock






      




      




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