EXHIBIT 10.2
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT, dated as of ___________, 200__ (this
"Agreement"), is by and among the following:
(i) AirGate PCS, Inc., a Delaware corporation ("Public");
(ii) Blackstone/iPCS L.L.C., a Delaware limited liability company,
Blackstone iPCS Capital Partners L.P., a Delaware limited partnership, and
Blackstone Communications Partners I L.P., a Delaware limited partnership
(collectively and including successors, assigns and Transferees thereof,
"Blackstone");
(iii) TCW/Crescent Mezzanine Partners II, L.P., TCW/Crescent Mezzanine
Trust II, TCW Leveraged Income Trust, L.P., TCW Leveraged Income Trust II, L.P.,
TCW Leveraged Income Trust IV, TCW Shared Opportunity Fund II, Shared
Opportunity Fund IIB, L.L.C. and TCW Shared Opportunity Fund III, L.P.
(collectively and including successors, assigns and Transferees, "TCW");
(iv) Geneseo Communications, Inc., an Illinois corporation ("Geneseo");
(v) Cambridge Telcom, Inc., an Illinois corporation ("Cambridge");
(vi) Cass Communications, Inc., an Illinois corporation ("Cass");
(vii) Technology Group, LLC, an Illinois limited liability company
("Technology");
(viii) Montrose Mutual PCS, Inc., an Illinois corporation ("Montrose");
(ix) Gridley Enterprises, Inc., an Illinois corporation ("Gridley"); and
(x) Xxxxxxx X. Xxxxx, an individual, and Xxxxx X. Xxxxx, an individual
(collectively, the "Yagers").
Blackstone, TCW, Geneseo, Cambridge, Cass, Technology, Montrose, Xxxxxxx
and the Yagers are referred to herein collectively as the "Holders."
WHEREAS, Public is a party to an Agreement and Plan of Merger, dated as of
August 28, 2001 (the "Merger Agreement"), by and between Public and iPCS, Inc.,
a Delaware corporation (the "Company"), which provides for the merger of Merger
Sub with and into the Company (the "Merger");
WHEREAS, pursuant to the Merger Agreement, Merger Sub will merge with and
into the Company with the Company being the surviving corporation (the
"Merger"), and the beneficial owners of shares of common stock, par value $0.01
per share, of the Company (the "Company Common Stock") will receive shares of
Public Common Stock (as defined below) at the effective time of the Merger in
accordance with the terms of the Merger Agreement;
WHEREAS, as a result of the Merger, the Holders will be beneficial owners
of Public Common Stock;
WHEREAS, Public has agreed to provide certain registration rights to the
Holders with respect to their shares of Public Common Stock upon the terms and
subject to the conditions set forth herein.
NOW THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties to this Agreement hereby agree as follows:
1. Definitions. As used in this Agreement, the following terms shall have the
-----------
following respective meanings:
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
or any similar federal statute then in effect, and a reference to a particular
section thereof shall be deemed to include a reference to the comparable
section, if any, of any such similar federal statute.
"Governmental Entity" shall mean any court, department, body, board,
bureau, administrative agency or commission or other governmental authority or
instrumentality.
"Person" shall mean an individual, corporation, limited liability company,
association, partnership, group (as defined in Section 13(d)(3) of the Exchange
Act), trust, joint venture, business trust or unincorporated organization, or a
government or any agency or political subdivision thereof or any other entity of
any nature whatsoever.
"Public Common Stock" shall mean the common shares, par value $0.01 per
share, of Public and any securities issued or distributed in respect thereof, or
in substitution therefor, in connection with any stock split, dividend, spin-off
or combination, or any reclassification, recapitalization, merger,
consolidation, exchange or other similar reorganization or business combination.
"Public Common Stock Equivalents" shall mean any stock, warrants, rights,
calls, options, debt or other securities exchangeable or exercisable for or
convertible into Public Common Stock.
"Public Shelf Registration Statement" shall have the meaning set forth in
the Merger Agreement.
"Registrable Securities" shall mean any shares of Public Common Stock and
any shares of Public Common Stock owned or to be acquired upon conversion,
exercise or exchange of Public Common Stock Equivalents, in each case now or
hereafter owned by the Holders (exclusive of any shares acquired in the open
market or in a bi-lateral transaction involving such Holder and a third-party
(other than another Holder)). As to any particular Registrable Securities, once
issued, such Registrable Securities shall cease to be Registrable Securities
when (i) a registration statement with respect to the sale by the applicable
Holder of such securities has become effective under the Securities Act and such
securities have been disposed of in
2
accordance with such registration statement, (ii) such securities have been
distributed to the public pursuant to Rule 144 (or any successor provision)
under the Securities Act, (iii) with respect to any Holder, all such Registrable
Securities held by such Holder can be resold pursuant to Rule 144(k) (or any
successor provision) under the Securities Act, (iv) such securities have been
otherwise transferred, new certificates for such securities not bearing a legend
restricting further transfer have been delivered by Public and subsequent
disposition of such securities does not require registration or qualification of
such securities under the Securities Act or any state securities or blue sky law
then in force, or (v) such securities have ceased to be outstanding.
"Registration Expenses" shall mean all expenses incident to Public's
performance of or compliance with this Agreement, including, without limitation,
all SEC and stock exchange or National Association of Securities Dealers, Inc.
(the "NASD") registration and filing fees and expenses, fees and expenses of
compliance with securities or blue sky laws (including, without limitation,
reasonable fees and disbursements of counsel for any underwriters in connection
with blue sky qualifications of the Registrable Securities), rating agency fees,
printing expenses, messenger, telephone and delivery expenses, the fees and
expenses incurred in connection with the listing of the securities to be
registered on any securities exchange or national market system, fees and
disbursements of counsel for Public and all independent certified public
accountants (including the expenses of any annual audit, special audit and "cold
comfort" letters required by or incident to such performance and compliance),
securities laws liability insurance (if Public so desires), the fees and
disbursements of underwriters (including, without limitation, all fees and
expenses of any "qualified independent underwriter" required by the rules of the
NASD) customarily paid by issuers or sellers of securities in public equity
offerings (excluding, for the sake of clarity, the fees and expenses of
counsel), the expenses customarily borne by the issuers of securities in a "road
show" presentation to potential investors, the reasonable fees and expenses of
any special experts retained by Public in connection with such registration,
fees and expenses of other persons retained by Public (but not including any
underwriting discounts or commissions (which shall be paid or borne by the
selling Holder) or transfer taxes, if any, attributable to the sale of
Registrable Securities) and other reasonable out-of-pocket expenses of the
Holder.
"S-4 Registration Statement" shall have the meaning set forth in the Merger
Agreement.
"SEC" shall mean the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act or the Exchange Act.
"Securities Act" shall mean the Securities Act of 1933, as amended, or any
similar federal statute then in effect, and a reference to a particular section
thereof shall be deemed to include a reference to the comparable section, if
any, of any such similar federal statute.
"Sprint Warrant" shall mean the warrant to purchase 1,151,938 shares of
Company Common Stock issued to Sprint Spectrum L.P. and assumed by Public
pursuant to Section 1.6 of the Merger Agreement.
"Transferee" shall mean any Person to whom any Holder or any Transferee
thereof transfers Registrable Securities.
3
2. Demand Registration.
-------------------
(a) Underwritten Offering. Prior to the date that is 120 days after the
---------------------
Effective Time (as defined in the Merger Agreement), at a time during such
period designated by Blackstone, Public will use its best efforts to effect an
underwritten offering of the Registrable Securities (the "Underwritten
Offering") (which offering may also include, in the sole discretion of the
Holders in consultation with the underwriter of such offering, the number of
equity securities of Public which Public proposes to sell for its own account,
but shall not include any other equity securities of Public held by persons
other than the Holders). Blackstone, the other selling Holders and Public shall
consult with one another prior to, and throughout, the registration and offering
process to coordinate the timing of the proposed offering taking into
consideration, among other things, the existence of any material business
combination discussions that may be ongoing. Public shall have no obligation to
price the Underwritten Offering at any time after the date that is 120 days
after the Effective Time. Adequate procedures shall be used to ensure that all
Holders shall have an opportunity to elect to have shares included in the
Underwritten Offering.
(b) Request for Registration. In addition to the Underwritten Offering, at
------------------------
any time on or after the first anniversary of the Effective Time (as defined in
the Merger Agreement), upon the written demand of Blackstone or, at any time
after Blackstone has sold 75% of the Registrable Securities held by it
immediately after the Effective Time without exercising such right, then upon
the written demand of Geneseo (in either case, the "Requesting Party"),
demanding that Public effect the registration under the Securities Act of all or
part of the Registrable Securities and specifying the intended method of
disposition thereof, Public will use its best efforts to effect the registration
under the Securities Act of such Registrable Securities (which registration
shall also include any Registrable Securities requested by the other Holders to
be included in such registration request made by the Requesting Party). Prior to
making such request, the Requesting Party shall notify the other Holders of its
intent to make such request and afford such other Holders the opportunity to
include Registrable Securities in such request. The Requesting Party, any other
selling Holder and Public shall consult with one another prior to, and
throughout, the registration process to coordinate the timing of the proposed
offering, among other things with respect to the existence of any material
business combination discussions that may be ongoing. Notwithstanding the
foregoing, in no event shall Public have any obligation to effect an
underwritten public offering under this Section 2(b) unless the amount of the
Registrable Securities requested to be included in such offering would result in
initial aggregate proceeds (determined at the time of the time of the initial
filing of the registration statement relating thereto) in excess of $40,000,000.
(c) Registration Statement Form. If any registration requested pursuant to
---------------------------
this Section 2 which is proposed by Public to be effected by the filing of a
registration statement on Form S-3 (or any successor or similar short-form
registration statement) shall be in connection with an underwritten public
offering, and if the managing underwriter shall advise Public in writing that,
in its opinion, the use of the type of disclosure required by another form of
registration statement is of material importance to the success of such proposed
offering, then Public shall cooperate with the managing underwriters to provide
such disclosure as would be required by such other form. Public agrees to
include in any registration statement all
4
information which, in the reasonable opinion of counsel to the underwriters (if
any) or the Requesting Holder, is required to be included.
(d) Effective Registration Statement. A registration requested pursuant to
--------------------------------
this Section 2 shall not be deemed to have been effected:
(i) unless a registration statement with respect thereto has become
effective and remained effective in compliance with the provisions of the
Securities Act until such time as all of such Registrable Securities have been
disposed of in accordance with the intended methods of disposition thereof set
forth in such registration statement, other than primarily as a result of acts
or omissions of any selling Holder or any authorized agent thereof;
(ii) if after it has become effective, such registration is
interfered with by any stop order, injunction or other order or requirement of
the SEC or other Governmental Entity for any reason not attributable to any
selling Holder or any of their Affiliates; or
(iii) if the conditions to closing specified in the underwriting
agreement, if any, entered into in connection with such registration are not
satisfied or waived.
(e) Priority in Requested Registrations. If a requested registration
-----------------------------------
pursuant to this Section 2 involves an underwritten offering (including the
Underwritten Offering) and the managing underwriter (in consultation with the
underwriter appointed by the Requesting Holder pursuant to Section 2(h) below)
advises Public and the Holders in writing that, in its opinion, the number of
equity securities requested to be included in such registration by the Holders
exceeds the largest number of equity securities which can be sold without
reasonably expecting to have an adverse effect on such offering, including the
price at which such equity securities can be sold, the number of such equity
securities to be included in such registration shall be reduced to such extent,
and Public shall include in such registration the number of equity securities as
follows: (i) no less than 75% of the equity securities included in such
registration shall be comprised of Registrable Securities requested to be
included in such registration by Blackstone and TCW and (ii) the Registrable
Securities of each Holder (other than Blackstone and TCW) to be included in such
registration shall equal the lesser of (A) 25% of such Holder's pro rata portion
of the shares owned by all of the Company Stockholders (as defined in the Merger
Agreement) (other than Blackstone and TCW) immediately after the Effective Time,
and (B) the number of Registrable Securities requested to be included in such
registration by such Holder. To the extent that the number of Registrable
Securities which Blackstone, TCW and the other Holders have requested to include
is, in the aggregate, less than the number of equity securities which Public has
been advised can be sold in such offering without having the adverse effect
referred to above, then Public shall be entitled to include that number of
equity securities which result in the underwritten offering not exceeding the
maximum amount of equity securities that would cause the effect referred to
above. After giving effect to the foregoing, any remaining capacity will be
allocated first to Blackstone and TCW and thereafter to the other Holders. If
any Holder advises the managing underwriter of any underwritten offering that
the Registrable Securities and other equity securities covered by the
registration statement cannot be sold in such offering within a price range
acceptable to such Holder, then such Holder shall have the right to exclude its
Registrable Securities from registration. The parties hereto acknowledge that
the
5
holders of any equity securities of Public issued upon exercise of the Sprint
Warrant do not have the right to include equity securities in any such
registration made pursuant to this Section 2.
(f) Limitations on Registration on Request. Notwithstanding anything in
--------------------------------------
this Section 2 to the contrary, the Holders shall be entitled to the
Underwritten Offering pursuant to Section 2(a) and only one requested
registration pursuant to Section 2(b), unless either (i) a registration so
requested is not deemed to have been effected pursuant to Section 2(d) or (ii)
the number of Registrable Securities included by Blackstone in such registration
and sold pursuant thereto is less than 75% of the number of shares of
Registrable Securities sought to be included by Blackstone in such registration.
(g) Expenses. Public will pay all Registration Expenses in connection
--------
with the registrations requested pursuant to this Section 2(e).
(h) Selection of Underwriters. In the Underwritten Offering, and in any
-------------------------
requested registration pursuant to Section 2(b) if the Requesting Holder
requests that such registration shall be in the form of an underwritten
offering, Public, in consultation with the Requesting Holder, shall have the
right to select any investment banker and book-running manager to administer the
offering and the Requesting Holder, in consultation with Public, shall have the
right to select a co- manager (in each case, subject to the approval of the
other party (such approval not to be unreasonably withheld)). Public and all
participating Holders shall enter into an underwriting agreement in customary
form with the underwriter or underwriters selected for such underwriting, as
well as all other documents customary in similar offerings, including, without
limitation, underwriting agreements, custody agreements, powers of attorney, and
indemnification agreements.
3. Incidental Registration.
-----------------------
(a) Rights to Include Registrable Securities. If Public proposes to
----------------------------------------
register (other than pursuant to Section 2 hereof) any of its equity securities
under the Securities Act (other than a registration on Form X-0, X-0 or any
successor or similar forms), whether or not for sale for its own account, then
Public will each such time, subject to the provisions of Section 3(b) hereof,
give prompt written notice to the Holders of its intention to do so and of
Holders' rights under this Section 3, at least 15 business days prior to the
anticipated filing date of the registration statement relating to such
registration. Such notice shall offer the Holders the opportunity to include in
such registration statement such number of Registrable Securities as each Holder
may request. Upon the written request of any Holder made within 10 business days
after the receipt of Public's notice (which request shall specify the number of
Registrable Securities intended to be disposed of by such Holder), Public shall
use its best efforts to effect the proposed registration under the Securities
Act of all Registrable Securities which Public has been so requested to register
by such Holder to the extent requisite to permit the disposition of the
Registrable Securities so to be registered; provided that (i) if such
registration involves an underwritten offering, any such Holder must sell its
Registrable Securities to the underwriters selected by Public on the same terms
and conditions as apply to Public (except that indemnification obligations of
any such Holder shall be limited to those obligations set forth in Section 7
hereof) and (ii) if, at any time after giving written notice of its intention to
register any securities pursuant to this Section 3(a) and prior to the effective
date of the registration statement filed in
6
connection with such registration, Public shall determine for any reason
not to register such securities, Public shall give written notice to each such
Holder and, thereupon, shall be relieved of its obligation to register any
Registrable Securities in connection with such registration. If a registration
pursuant to this Section 3(a) involves an underwritten public offering, any such
Holder may elect, in writing no less than three days prior to the effective date
of the registration statement filed in connection with such registration, not to
register such securities in connection with such registration. No registration
effected under this Section 3 shall relieve Public of its obligations to effect
registrations upon request under Section 2 hereof. Public will pay all
Registration Expenses in connection with each registration of Registrable
Securities requested pursuant to this Section 3.
(b) Priority in Incidental Registrations.
------------------------------------
(i) If a registration pursuant to this Section 3 involves an
underwritten offering (other than as set forth in Section 3(b)(ii) below) and
the managing underwriter advises Public in writing that, in its opinion, the
number of equity securities (including all Registrable Securities) which Public,
the Holders and any other persons intend to include in such registration exceeds
the largest number of equity securities which can be sold without having an
adverse effect on such offering, including the price at which such equity
securities can be sold, the number of such equity securities to be included in
such registration shall be reduced to such extent, and Public will include in
such registration such maximum number of equity securities as follows: (A)
first, all the equity securities Public proposes to sell for its own account in
such registration and (B) second, to the extent that the number of equity
securities which Public proposes to sell for its own account pursuant to Section
3(a) hereof is less than the number of equity securities which Public has been
advised can be sold in such offering without having the adverse effect referred
to above, Public shall include in such registration the number of equity
securities determined as follows: (i) no less than 75% of the equity securities
included in such registration shall be comprised of Registrable Securities
requested to be included in such registration by Blackstone and TCW and (ii) the
Registrable Securities of each Holder (other than Blackstone and TCW) to be
included in such registration shall equal the lesser of (A) 25% of such Holder's
pro rata portion of the shares owned by all of the Company Stockholders (other
than Blackstone and TCW) immediately after the Effective Time, and (B) the
number of Registrable Securities requested to be included in such registration
by such Holder. To the extent that the number of Registrable Securities which
Blackstone, TCW and the other Holders have requested to include is, in the
aggregate, less than the number of equity securities which Public has been
advised can be sold in such offering without having the adverse effect referred
to above, then the number of such equity securities requested to be included in
such registration by the holders thereof shall be limited to such extent and,
subject to any rights of such holders, shall be allocated pro rata among all
such holders on the basis of the relative number of such equity securities then
held by each such holder; provided, that any such amount thereby allocated to
any such holder that exceeds such holder's request shall be reallocated among
the remaining requesting holders in like manner. After giving effect to the
foregoing, any remaining capacity will be allocated first to Blackstone and TCW
and thereafter to the other Holders.
(ii) If any holder of Public Common Stock, Public Common Stock
Equivalents or other equity securities of the Company other than Blackstone or
Geneseo makes a requested or demand registration (the "Requesting Holder") and
such requested or demand
7
registration involves an underwritten offering and the managing underwriter
advises Public in writing that, in its opinion, the number of equity securities
requested to be included in such registration (including Registrable Securities)
exceeds the largest number of equity securities which can be sold without
reasonably expecting to have an adverse effect on such offering, including the
price at which such equity securities can be sold, the number of such equity
securities to be included in such registration shall be reduced to such extent,
and Public shall include in such registration such maximum number of equity
securities as follows: (A) first, the number of such equity securities requested
to be included in such registration by the Requesting Holder and (B) second, to
the extent that the number of equity securities which the Requesting Holder has
requested to be included in such registration is less than the number of equity
securities which Public has been advised can be sold in such offering without
having the adverse effect referred to above, Public shall include in such
registration the number of equity securities as follows: (i) no less than 75% of
the equity securities included in such registration shall be comprised of
Registrable Securities requested to be included in such registration by
Blackstone and TCW and (ii) the Registrable Securities of each Holder (other
than Blackstone and TCW) to be included in such registration shall equal the
lesser of (A) 25% of such Holder's pro rata portion of the shares owned by all
of the Company Stockholders (other than Blackstone and TCW) immediately after
the Effective Time, and (B) the number of Registrable Securities requested to be
included in such registration by such Holder. To the extent that the number of
Registrable Securities which the Requesting Holder, Blackstone, TCW and the
other Holders have requested to include is, in the aggregate, less than the
number of equity securities which Public has been advised can be sold in such
offering without having the adverse effect referred to above, then the number of
such equity securities requested to be included in such registration by the
holders thereof shall be limited to such extent and, subject to any rights of
such holders, shall be allocated pro rata among all such holders on the basis of
the relative number of such equity securities then held by each such holder;
provided, that any such amount thereby allocated to any such holder that exceeds
such holder's request shall be reallocated among the remaining requesting
holders in like manner. After giving effect to the foregoing, any remaining
capacity will be allocated first to Blackstone and TCW and thereafter to the
other Holders.
4. Holdback Agreements.
-------------------
(a) Restrictions on Public Sale by the Holders. If any registration of
------------------------------------------
Public Common Stock shall be in connection with an underwritten public offering
to which each Holder has a right to include shares pursuant to Section 2 or 3
hereof, each Holder agrees not to effect any sale or distribution, including any
sale pursuant to Rule 144 under the Securities Act, of any Registrable
Securities, and not to effect any such sale or distribution of other equity
securities of Public or of any securities convertible into or exchangeable or
exercisable for any other equity securities of Public (in each case, other than
as part of such underwritten public offering) during the 15 days prior to, and
during such period as the managing underwriter may request (not to exceed 90
days) beginning on, the closing date of the sale of the Public Common Stock
pursuant to an effective registration statement, except as part of such
registration.
8
(b) Restrictions on Public Sale by Public and Others. If any registration
------------------------------------------------
of Public Registrable Securities shall be made in connection with an
underwritten public offering, Public agrees (i) not to effect any public sale or
distribution of any Public Common Stock, Public Common Stock Equivalents or
other equity securities or of any security convertible into or exchangeable or
exercisable for any Public Common Stock, Public Common Stock Equivalents or
other equity securities of Public (other than in connection with an employee
stock option or other benefit plan) during the 15 days prior to, and during the
90-day period beginning on, the closing date of the sale of the Registrable
Securities pursuant to an effective registration statement (except as part of
such registration) and (ii) that any agreement entered into after the date of
this Agreement pursuant to which Public issues or agrees to issue any privately
placed Public Common Stock, Public Common Stock Equivalents or other equity
securities shall contain a provision under which holders of such securities
agree not to effect any sale or distribution of any such securities during the
period referred to in the foregoing clause (i), including any sale pursuant to
Rule 144 under the Securities Act (except as part of such registration, if
permitted).
(c) In the event Blackstone distributes a portion or all of its shares of
Public Common Stock pursuant to Section 7.21(c) of the Merger Agreement, the
distributees of such shares shall not be subject to the restrictions set forth
in this Section 4, nor shall such distributees be entitled to any further
registration rights under this Agreement.
5. Registration Procedures. If and whenever Public is required to use its best
-----------------------
efforts to effect or cause the registration of any Registrable Securities under
the Securities Act as provided in this Agreement, and in connection with the
filing of the Public Shelf Registration Statement as provided in the Merger
Agreement, Public will, as expeditiously as possible:
(a) in the case of a registration as provided in this Agreement, use its
best efforts to prepare and file with the SEC within 30 days after receipt of a
request for registration with respect to such Registrable Securities, a
registration statement on any form for which Public then qualifies or which
counsel for Public shall deem appropriate, and which form shall be available for
the sale of the Registrable Securities in accordance with the intended methods
of distribution thereof, and use its best efforts to cause such registration
statement to become and remain effective as promptly as practicable, subject to
the right of Blackstone to defer Public's request for the acceleration of
effectiveness of any such registration statement as may be necessary to
accommodate the anticipated timetable for such offering; provided that before
filing with the SEC a registration statement or prospectus or any amendments or
supplements thereto, Public will (i) furnish to the selling Holders copies of
the form of preliminary prospectus proposed to be filed and furnish to counsel
of the selling Holders copies of all such documents proposed to be filed, which
documents will be subject to the review of such counsel and shall not be filed
without the approval of such counsel (which approval shall not be unreasonably
withheld) and (ii) notify the selling Holders of any stop order issued or
threatened by the SEC and take all reasonable actions required to prevent the
entry of such stop order or to remove it if entered; and, in the case of the
Public Shelf Registration Statement, in the event that Public was not permitted
by the SEC to include in the S-4 Registration Statement a re-offering prospectus
(which shall include a description of the plan of distribution for the
Registrable Securities) covering the resale from time to time of the Registrable
Securities, then Public shall file such re-offering prospectus as a post-
effective amendment to the S-4 Registration Statement promptly after the
Effective
9
Time (as defined in the Merger Agreement), but in no event later than 15 days
after the Effective Time, and use all reasonable efforts to keep the Public
Shelf Registration Statement (as defined in the Merger Agreement) effective
until the earliest to occur of: (i) such date as all of the Registrable
Securities have been resold, (ii) such time as all of the Registrable Securities
can be resold pursuant to Rule 144(k) under the Securities Act and (iii) the
third anniversary of the Effective Time.
(b) prepare and file with the SEC such amendments and supplements to such
registration statement and the prospectus used in connection therewith as may be
necessary to keep such registration statement effective for a period of not less
than 180 days or such shorter period which will terminate when all Registrable
Securities covered by such registration statement have been sold, and comply
with the provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the sellers thereof set
forth in such registration statement;
(c) promptly furnish to each Holder and each underwriter, if any, of
Registrable Securities covered by such registration statement such number of
copies of such registration statement, each amendment and supplement thereto (in
each case including all financial statements, schedules and exhibits thereto),
the prospectus included in such registration statement (including each
preliminary prospectus), in conformity with the requirements of the Securities
Act, copies of any correspondence with the SEC or its staff relating to the
registration statement and such other documents as any Holder or underwriter may
reasonably request in order to facilitate the disposition of the Registrable
Securities;
(d) use its best efforts to register or qualify such Registrable
Securities under the securities or blue sky laws of such jurisdictions as any
Holder or each underwriter, if any, reasonably requests and do any and all other
acts and things which may be reasonably necessary or advisable to enable such
Holder and each underwriter, if any, to consummate the disposition in such
jurisdictions of the Registrable Securities; provided that Public will not be
required to (i) qualify generally to do business in any jurisdiction where it
would not otherwise be required to qualify but for this paragraph (d), (ii)
subject itself to taxation in any such jurisdiction or (iii) consent to general
service of process in any such jurisdiction;
(e) immediately notify the selling Holders (the facts prompting which
notification the selling Holders shall keep confidential) at any time when a
prospectus relating thereto is required to be delivered under the Securities
Act, of the happening of any event which comes to Public's attention if as a
result of such event the prospectus included in such registration statement
contains an untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading, and Public will promptly prepare and furnish to the selling
Holders a supplement or amendment to such prospectus so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus will
not contain an untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading;
10
(f) use its best efforts to prevent the issuance of and obtain the
withdrawal of any stop order suspending the effectiveness of a registration
statement relating to the Registrable Securities or of any order preventing or
suspending the use of any preliminary or final prospectus at the earliest
practicable moment;
(g) if requested by the managing underwriter or underwriters or any
Holder, immediately incorporate in a prospectus supplement or post-effective
amendment such information as the managing underwriters and each applicable
selling Holder agree should be included therein relating to the plan of
distribution with respect to such Registrable Securities, including, without
limitation, information with respect to the number of Registrable Securities
being sold to such underwriters, the purchase price being paid therefor by such
underwriters and with respect to any other terms of the underwritten (or best
efforts underwritten) offering of the Registrable Securities to be sold in such
offering; and make all required filings of such prospectus supplement or post-
effective amendment as soon as notified of the matters to be incorporated in
such prospectus supplement or post-effective amendment;
(h) cooperate with the Holders and the managing underwriters, if any, to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any restrictive legends; and
enable such Registrable Securities to be in such denominations and registered in
such names as the managing underwriters may request prior to any sale of the
Registrable Securities to the underwriters;
(i) use its best efforts to cause all such Registrable Securities to be
listed on a national securities exchange or quotation system, and on each
securities exchange or quotation system on which similar securities issued by
Public are then listed, and enter into such customary agreements including a
listing application and indemnification agreement in customary form, provided
that the applicable listing requirements are satisfied, and to provide a
transfer agent and registrar for such Registrable Securities covered by such
registration statement no later than the effective date of such registration
statement;
(j) enter into such customary agreements (including an underwriting
agreement in customary form) and take all such other actions as a selling Holder
or the underwriters, if any, reasonably request in order to expedite or
facilitate the disposition of such Registrable Securities, including customary
indemnification and supporting Holders' efforts to execute block trades with
institutional buyers, including without limitation, making appropriate members
of senior management of Public available (subject to consulting with them in
advance as to schedule) for customary participation in telephonic, in-person
conferences or "road show" presentations to potential investors;
(k) make available for inspection by the selling Holders, any underwriter
participating in any disposition pursuant to such registration statement, and
any attorney, accountant or other agent retained by any Holder or underwriter
(collectively, the "Inspectors"), all financial and other records, pertinent
corporate documents and properties of Public and its subsidiaries, if any, as
shall be reasonably necessary to enable them to exercise their due diligence
responsibility, and cause Public's and its subsidiaries' officers, directors and
employees to supply all information and respond to all inquiries reasonably
requested by any such Inspector in connection with such registration statement;
11
(l) use its best efforts to obtain (i) an opinion or opinions of counsel
to Public and (ii) a "cold comfort" letter or letters from Public's independent
public accountants in customary form and covering such matters of the type
customarily covered by opinions and "cold comfort" letters as the selling
Holders or the underwriter requests;
(m) otherwise use its best efforts to comply with all applicable rules and
regulations of the SEC, and make available to its security holders, within the
required time periods, an earnings statement covering a period of at least
twelve months, beginning with the first month after the effective date of the
registration statement (as the term "effective date" is defined in Rule 158(c)
under the Securities Act), which earnings statement shall satisfy the provisions
of Section 11(a) of the Securities Act and Rule 158 thereunder or any successor
provisions thereto;
(n) promptly prior to the filing of any document which is to be
incorporated by reference into the registration statement or the prospectus
(after initial filing of the registration statement), provide copies of such
document to counsel to the selling Holders and to the managing underwriters, if
any, make Public's representatives available for discussion of such document and
give due consideration to changes in such document prior to the filing thereof
as counsel for the selling Holders may propose;
(o) promptly notify the selling Holders, counsel for the selling Holders
and the managing underwriter or agent, (i) when the registration statement, or
any post-effective amendment to the registration statement, shall have become
effective, or any supplement to the prospectus or any amendment to the
prospectus shall have been filed, (ii) of the receipt of any comments from the
SEC, (iii) of any request of the SEC to amend the registration statement or
amend or supplement the prospectus or for additional information, and (iv) of
the issuance by the SEC of any stop order suspending the effectiveness of the
registration statement or of any order preventing or suspending the use of any
preliminary prospectus, or of the suspension of the qualification of the
registration statement for offering or sale in any jurisdiction, or of the
institution or threatening of any proceedings for any of such purposes;
(p) cooperate with the selling Holders and each underwriter or agent
participating in the disposition of such Registrable Securities and their
respective counsel in connection with any filings required to be made with or
any other securities exchange and/or the NASD;
(q) in the case of a Public Shelf Registration Statement, upon the
occurrence or any event contemplated by clause (e) above, prepare and file with
the SEC a post-effective amendment to the Public Shelf Registration Statement or
a supplement to the prospectus or any other required document so that, as
thereafter delivered to the purchasers of the securities being sold thereunder,
such prospectus will not contain an untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make
the statements therein not misleading; and
(r) in the case of a Public Shelf Registration Statement, promptly notify
the selling Holders, counsel for the selling Holders and any managing
underwriter or agent and confirm the notice in writing, (i) when the Public
Shelf Registration Statement, or any post-effective amendment to the Public
Shelf Registration Statement, shall have become effective, or any supplement to
the prospectus or any amendment to the prospectus shall have been filed, (ii) of
12
the receipt of any comments from the SEC, (iii) of any request of the SEC to
amend the Public Shelf Registration Statement or amend or supplement the
prospectus or for additional information, (iv) of the issuance by the SEC of any
stop order suspending the effectiveness of the Public Shelf Registration
Statement or of any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the Public Shelf
Registration Statement for offering or sale in any jurisdiction, or of the
institution or threatening of any proceedings for any of such purposes and (v)
of Public's reasonable determination that a post-effective amendment to the
Public Shelf Registration Statement would be appropriate.
It shall be a condition precedent to the obligation of Public to take any
action pursuant to this Agreement in respect of the Registrable Securities which
are to be registered at the request of any Holder that such Holder shall furnish
to Public such information regarding the Registrable Securities held by such
Holder and the intended method of disposition thereof as Public shall reasonably
request in connection with such registration.
Each Holder agrees that, upon receipt of any notice from Public of the
happening of any event of the kind described in Section 5(e) hereof, such Holder
will forthwith discontinue disposition of Registrable Securities pursuant to the
registration statement covering such Registrable Securities until such Holder
receives the copies of the prospectus supplement or amendment contemplated by
Section 5(e) hereof, and, if so directed by Public, such Holder will deliver to
Public (at Public's expense) all copies, other than permanent file copies, then
in such Holder's possession, of the prospectus covering such Registrable
Securities current at the time of receipt of such notice. In the event Public
shall give any such notice, the period mentioned in Section 5(b) hereof shall be
extended by the greater of (i) three months or (ii) the number of days during
the period from and including the date of the giving of such notice pursuant to
Section 5(e) hereof to and including the date when such Holder shall have
received the copies of the prospectus supplement or amendment contemplated by
Section 5(e) hereof.
6. Indemnification.
---------------
(a) Indemnification by Public. In the event of any registration of any
-------------------------
Registrable Securities under the Securities Act pursuant to Section 2 or 3
hereof, and in connection with the registration of Registrable Securities under
the Public Shelf Registration Statement pursuant to the terms of the Merger
Agreement, Public will, and it hereby does, indemnify and hold harmless, to the
full extent permitted by law, each Holder, their directors and officers,
employees, stockholders, general partners, limited partners, members, advisory
directors, managing directors (and directors, officers, stockholders, general
partners, limited partners, members, advisory directors, managing directors and
controlling persons thereof), each other person who participates as an
underwriter in the offering or sale of such securities and each other person, if
any, who controls, is controlled by or is under common control with any Holder
or any such underwriter within the meaning of the Securities Act, against any
and all losses, claims, damages or liabilities, joint or several, and expenses
(including any amounts paid in any settlement effected with Public's consent) to
which such Holder, any such director, or officer, employee, stockholder, general
or limited partner, member, or advisory or managing director or any such
underwriter or controlling person may become subject under the Securities Act,
state securities or blue sky laws, common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions or proceedings in respect
thereof) or expenses arise out of or are based upon
13
(i) any untrue statement or alleged untrue statement of any material fact
contained, on the effective date thereof, in any registration statement under
which such Registrable Securities were registered under the Securities Act, any
preliminary, final or summary prospectus contained therein, or any amendment or
supplement thereto or (ii) any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading (in the case of a prospectus, in light of the
circumstances under which they are made), and Public will reimburse each Holder
and each such director, officer, employee, general partner, limited partner,
advisory director, managing director or underwriter and controlling person for
any legal or any other expenses reasonably incurred by them as such expenses are
incurred in connection with investigating or defending such loss, claim,
liability, action or proceeding; provided that Public shall not be liable in any
such case to the extent that any such loss, claim, damage, liability (or action
or proceeding in respect thereof) or expense arises out of or is based upon any
untrue statement or alleged untrue statement or omission or alleged omission
made in such registration statement or amendment or supplement thereto or in any
such preliminary, final or summary prospectus in reliance upon and in conformity
with written information furnished to Public through an instrument duly executed
by such Holder or any such director, officer, employee, general or limited
partner, managing director or underwriter specifically stating that it is for
use in the preparation thereof; provided, further, however, that Public shall
not be required to indemnify any such indemnified Person if such untrue
statement or omission or alleged untrue statement or omission was contained or
made in any preliminary prospectus and corrected in the final prospectus or any
amendment or supplement thereto and the final prospectus does not contain any
other untrue statement or omission or alleged untrue statement or omission of a
material fact that was the subject matter of the related proceeding and any such
loss, liability, claim, damage or expense suffered or incurred by such
indemnified Person resulted from any action, claim or suit by any Person who
purchased Registrable Securities which are the subject thereof from such
indemnified Person and it is established in the related proceeding that such
indemnified Person failed to deliver or provide a copy of the final prospectus
(as amended or supplemented) to such Person with or prior to the confirmation of
the sale of such Registrable Securities sold to such Person if required by
applicable law, unless such failure to deliver or provide a copy of the final
prospectus (as amended or supplemented) was a result of noncompliance by Public
with this Section 6 or as a result of the failure of Public to provide such
final prospectus.
(b) Indemnification by Holders and Underwriters. Each Holder and any
-------------------------------------------
underwriter will, and they hereby do, indemnify and hold harmless (in the same
manner and to the same extent as set forth in subdivision (a) of this Section 6)
Public and its directors, officers, employees, controlling persons and all other
prospective sellers and their respective directors, officers, general and
limited partners, managing directors, and their respective controlling persons,
against any and all losses, claims, damages or liabilities, joint or several,
and expenses (including any amounts paid in any settlement effected with the
consent of the applicable Holder and any underwriter) to which Public and its
directors, officers, employees, controlling persons or any other prospective
sellers and their respective directors, officers, general and limited partners,
managing directors, and their respective controlling persons may become subject
under the Securities Act, state securities or blue sky laws, common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) or expenses arise out of or are based upon (i)
any untrue statement or alleged untrue statement of any material fact contained,
on the effective date thereof, in any registration statement under which
14
such Registrable Securities were registered under the Securities Act, any
preliminary, final or summary prospectus contained therein, or any amendment or
supplement thereto or (ii) any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading (in the case of a prospectus, in light of the
circumstances under which they are made), and the applicable Holder and any
underwriter will reimburse Public and its directors, officers, employees,
controlling persons and all other prospective sellers and their respective
directors, officers, general and limited partners, managing directors, and their
respective controlling persons for any legal or any other expenses reasonably
incurred by them as such expenses are incurred in connection with investigating
or defending such loss, claim, liability, action or proceeding; provided that
any Holder and any underwriter shall only be liable in any such case if any such
loss, claim, damage, liability (or action or proceeding in respect thereof) or
expense arises out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in such registration statement or
amendment or supplement thereto or in any such preliminary, final or summary
prospectus in reliance upon and in conformity with written information furnished
to Public through an instrument duly executed by such Holder or any such
underwriter specifically stating that it is for use in the preparation thereof;
provided, further, however, that such Holder or underwriter shall not be
required to indemnify Public if such untrue statement or omission or alleged
untrue statement or omission was contained or made in any preliminary prospectus
and corrected in the final prospectus or any amendment or supplement thereto and
the final prospectus does not contain any other untrue statement or omission or
alleged untrue statement or omission of a material fact that was the subject
matter of the related proceeding and any such loss, liability, claim, damage or
expense suffered or incurred by Public resulted from any action, claim or suit
by any Person who purchased Registrable Securities which are the subject thereof
from Public and it is established in the related proceeding that Public failed
to deliver or provide a copy of the final prospectus (as amended or
supplemented) to such Person with or prior to the confirmation of the sale of
such Registrable Securities sold to such Person if required by applicable law,
unless such failure to deliver or provide a copy of the final prospectus (as
amended or supplemented) was a result of noncompliance by the Holder or any
underwriter with this Section 6 or as a result of the failure of the Holder or
any underwriter to provide such final prospectus. Such indemnity shall remain in
full force and effect regardless of any investigation made by or on behalf of
Public or any such director, officer, employee or controlling person. No Holder
shall be liable under this Section 6 for any amounts exceeding the product of
the purchase price per Registrable Security and the number of Registrable
Securities being sold pursuant to such registration statement or prospectus by
such Holder.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified party
----------------------
hereunder of written notice of the commencement of any action or proceeding with
respect to which a claim for indemnification may be made pursuant to this
Section 6, such indemnified party shall, if a claim in respect thereof is to be
made against an indemnifying party, promptly give written notice to the latter
of the commencement of such action; provided that the failure of any indemnified
party to give notice as provided herein shall not relieve the indemnifying party
of its obligations under the preceding subsections of this Section 6, except to
the extent that the indemnifying party is actually materially prejudiced by such
failure to give notice. In case any such action is brought against an
indemnified party, unless in such indemnified party's reasonable judgment a
conflict of interest between such indemnified and indemnifying parties may exist
in respect of such claim, the indemnifying party will be entitled to participate
in and,
15
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, to the extent that it may wish, with counsel reasonably
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such indemnified party for
any legal or other expenses subsequently incurred by the latter in connection
with the defense thereof, unless in such indemnified party's reasonable
judgement a conflict of interest between such indemnified and indemnifying
parties exists or the indemnifying party is not adequately defending such action
or proceeding. An indemnifying party will not be subject to any liability for
any settlement made without its consent (which consent shall not be unreasonably
withheld). No indemnifying party will consent to entry of any judgment or enter
into any settlement of any pending or threatened proceeding which (i) does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to all indemnified parties of a release from all liability in respect to such
claim or litigation, (ii) involves the imposition of equitable remedies or the
imposition of any non-financial obligations on such indemnified party or (iii)
does not otherwise adversely affect such indemnified party, other than as a
result of the imposition of financial obligations for which such indemnified
party will be indemnified hereunder. Notwithstanding anything to the contrary
contained herein, an indemnifying party will not be obligated to pay the fees
and expenses of more than one counsel (together with appropriate local counsel)
for all parties indemnified by such indemnifying party with respect to such
claim.
(d) Contribution. If the indemnification provided for in this Section 6 is
------------
unavailable to an indemnified party under Section 6(a) or Section 6(b) hereof
(other than by reason of exceptions provided in those Sections) in respect of
any losses, claims, damages, liabilities or expenses referred to therein, then
each applicable indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative benefits received by the
indemnifying party on the one hand and the indemnified party on the other, and
the relative fault of the indemnifying party on the one hand and of the
indemnified party on the other in connection with the statements or omissions
which resulted in such losses, claims, damages, liabilities or expenses, as well
as any other relevant equitable considerations. The relative fault of the
indemnifying party on the one hand and of the indemnified party on the other
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the indemnifying
party or by the indemnified party and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The amount paid or payable by a party as a result of the losses,
claims, damages, liabilities and expenses referred to above shall be deemed to
include, subject to the limitations set forth in Sections 6(a) and 6(b), any
legal or other fees or expenses reasonably incurred by such party in connection
with investigating or defending any action or claim.
Public and the Holders agree that it would not be just and equitable if
contribution pursuant to this Section 6(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 6(d), no Holder shall be required
to contribute any amount in excess of the amount by which the total price at
which the Registrable Securities sold by such Holder and distributed to the
public were
16
offered to the public exceeds the amount of any damages which such
Holder has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
(e) Other Indemnification. Indemnification similar to that specified in
---------------------
Sections 6(a) and 6(b) (with appropriate modifications) shall be given by Public
and each Holder with respect to any required registration or other qualification
of securities under any law or with any governmental authority other than as
required by the Securities Act.
(f) Non-Exclusivity. The obligations of the parties under this Section 6
---------------
shall be in addition to any liability which any party may otherwise have to any
other party.
(g) Indemnification Payments. The indemnification and contribution required
------------------------
by Sections 6(a), 6(b) and 6(d) shall be made by periodic payments of the amount
thereof during the course of the investigation or defense, as and when bills are
received or expense, loss, damage or liability is incurred.
7. Information to be Furnished by the Holders. Each Holder shall furnish to
------------------------------------------
Public such information as Public may reasonably request and as shall be
required in connection with the registration and related proceedings referred to
herein.
8. Miscellaneous.
-------------
(a) Remedies. Public and each Holder acknowledge and agree that in the
--------
event of any breach of this Agreement by any of them, the Holders and Public
would be irreparably harmed and could not be made whole by monetary damages.
Each party accordingly agrees to waive the defense in any action for specific
performance that a remedy at law would be adequate and that the parties, in
addition to any other remedy to which they may be entitled at law or in equity,
shall be entitled to compel specific performance of this Agreement.
(b) Entire Agreement. This Agreement and the Stockholders Agreement, dated
----------------
as of the date hereof, among Public and the Holders (the "Stockholders
Agreement") constitutes the entire agreement and understanding of the parties
hereto in respect of the subject matter contained herein, and there are no
restrictions, promises, representations, warranties, covenants, or undertakings
with respect to the subject matter hereof, other than those expressly set forth
or referred to herein. This Agreement supersedes all prior agreements and
understandings among the parties hereto with respect to the subject matter
hereof (other than the Stockholders Agreement).
(c) Notices. Any notice, request, instruction or other document to be given
-------
hereunder by any party hereto to another party hereto shall be in writing, shall
be delivered personally or sent by certified or registered mail, postage
prepaid, return receipt requested, or by Federal Express or other delivery
service, to the address of the party set forth below or to such other address as
the party to whom notice is to be given may provide in a written notice to
Public, a copy of which written notice shall be maintained on file with the
Secretary of Public.
17
(i) If to Public, to:
AirGate PCS, Inc.
Xxxxxx Tower
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxxx
With a copy to:
Winston & Xxxxxx
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Phone:(000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxx
R. Xxxxxx Xxxxxx, Xx.
(ii) If to Blackstone, to:
c/o The Blackstone Group
000 Xxxx Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxx
With a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxx
and
TCW/Crescent Mezzanine, LLC
00000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxxx
18
With a copy to:
O'Melveny & Xxxxx LLP
000 Xxxxx Xxxx Xxxxxx
Xxx Xxxxxxx, XX 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx Xxxxxxx
(iii) If to any of the Holders, to:
c/o Xxxx Xxxxxxxx
000 X. Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
With a copy to:
Xxxxx Xxxxx & Xxxxx
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx Xxxxxx
Xxxxxx X. Wild
(d) Governing Law. This Agreement shall be governed by, construed and
-------------
enforced in accordance with the laws of the State of Delaware, without giving
effect to any choice or conflict of law provision or rule (whether of the State
of Delaware or any other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the State of Delaware. Each of the parties
hereto hereby irrevocably and unconditionally consents to submit to the
exclusive jurisdiction of the courts of the State of Delaware and of the United
States of America located in Wilmington, Delaware (the "Delaware Courts"), for
any litigation arising out of or relating to this Agreement (and agrees not to
commence any litigation relating thereto except in such Delaware Courts),
consents to service of process by notice as provided in Section 9(c) of this
Agreement, waives any objection to the laying of venue of any such litigation in
the Delaware Courts and agrees not to plead or claim in any Delaware Court that
such litigation brought therein has been brought in an inconvenient forum.
(e) MUTUAL WAIVER OF JURY TRIAL. THE PARTIES HERETO WAIVE ALL RIGHT TO
---------------------------
TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING BROUGHT TO ENFORCE OR DEFEND ANY
RIGHTS OR REMEDIES UNDER THIS AGREEMENT.
(f) Severability. The invalidity, illegality or unenforceability of one
------------
or more of the provisions of this Agreement in any jurisdiction shall not affect
the validity, legality or enforceability of the remainder of this Agreement in
such jurisdiction or the validity, legality or enforceability of this Agreement,
including any such provision, in any other jurisdiction, it being intended that
all rights and obligations of the parties hereunder shall be enforceable to the
fullest extent permitted by law.
19
(g) Other Agreements. Nothing contained in this Agreement shall be
----------------
deemed to be a waiver of, or release from, any obligations any party hereto may
have under, or any restrictions on the transfer of Registrable Securities or
other securities of Public imposed by, any other agreement.
(h) Successors; Assigns; Transferees. The provisions of this Agreement
--------------------------------
shall be binding upon and accrue to the benefit of the parties hereto and their
respective heirs, successors and permitted assigns. In addition, and whether or
not any express assignment shall have been made, the provisions of this
Agreement which are for the benefit of the Holders shall also be for the benefit
of and enforceable by any Transferee or subsequent holder of Registrable
Securities, subject to the provisions contained herein.
(i) Amendments, Waivers. This Agreement may not be amended, modified or
-------------------
supplemented and no waivers of or consents to departures from the provisions
hereof may be given unless consented to in writing by Public and each of the
Holders.
(j) Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same Agreement.
(k) Limited Liability. Notwithstanding any other provision of this
-----------------
Agreement, neither the members, general partners, limited partners or managing
directors, or any directors or officers of any members, general or limited
partner, advisory director, nor any future members, general partners, limited
partners, advisory director, or managing directors, if any, of any such Holder
shall have any personal liability for performance of any obligation of such
Holder under this Agreement in excess of the respective capital contributions of
such members, general partners, limited partners or managing directors to such
Holder.
(l) Adjustments Affecting Registrable Securities. Public will not take
--------------------------------------------
any action, or permit any change to occur, with respect to the Registrable
Securities which would (i) adversely affect the ability of any Holder to include
such Registrable Securities in a registration undertaken pursuant to this
Agreement or (ii) adversely affect the marketability of such Registrable
Securities in any such registration.
(m) Rule 144. If Public is subject to the requirements of Section 13, 14
--------
or 15(d) of the Exchange Act, Public covenants that it will file any reports
required to be filed by it under the Securities Act and the Exchange Act (or, if
Public is not required to file such reports, it will, upon the request of
Blackstone, make publicly available such information) and it will take such
further action as any Holder may reasonably request, so as to enable such Holder
to sell Registrable Securities without registration under the Securities Act
within the limitation of the exemptions provided by (a) Rule 144 under the
Securities Act, as such Rule may be amended from time to time, or (b) any
similar rule or regulation hereafter adopted by the SEC. Upon the request of any
Holder, Public will deliver to such Holder a written statement as to whether it
has complied with such requirements.
20
(n) Other Registration Rights.
-------------------------
(i) Public covenants that it will not grant any right of
registration under the Securities Act relating to any of its shares of Public
Common Stock or Public Common Stock Equivalents or other equity securities to
any person unless the Holders shall be entitled to have included in any
registration effected (A) pursuant to Section 2 hereof, all Registrable
Securities requested by it to be so included prior to the inclusion of any
securities requested to be registered by the persons entitled to any such other
registration rights pursuant to any provision providing registration rights
comparable to those contained in Section 3 hereof and (B) pursuant to Section 3
hereof, all Registrable Securities requested by such Holder to be so included
(I) prior to the inclusion of any securities requested to be registered by the
persons entitled to any such other registration rights pursuant to any provision
providing incidental registration rights comparable to those contained in
Section 3 hereof and (II) with respect to any Requesting Holder, pro rata with
the inclusion of any securities requested to be registered by such Requesting
Holder as provided for in Section 3(b)(ii).
(ii) If Public at any time grants to any other holders of Public
Common Stock, Public Common Stock Equivalents or other equity securities of
Public any rights to request Public to effect the registration (whether
requested or incidental) under the Securities Act of any such securities on any
terms more favorable to such holders than the terms set forth in this Agreement,
the terms of this Agreement shall, at the request of any Holder, be deemed
amended or supplemented to the extent necessary to provide the Holders such more
favorable rights and benefits.
(iii) Public covenants that it will not enter into, or cause or
permit any of its Subsidiaries to enter into, any agreement which conflicts with
or limits or prohibits the exercise of the rights granted to the Holders in this
Agreement.
(iv) Public covenants that it will not grant any right of
registration under the Securities Act relating to any of its shares of Public
Common Stock or Public Common Stock Equivalents or other equity securities to
any Person pursuant to any provision providing registration rights comparable to
those contained in Section 2 hereof without providing that the exercise of such
rights will only be permitted following the consummation of an underwritten
public offering by Blackstone.
(v) Each Holder acknowledges that, in connection with Public's
issuance of warrants to Lucent Technologies, Inc. ("Lucent"), Public and Lucent
entered into the Warrant Registration Rights Agreement, dated as of August 16,
1999, which provides for, among other things, the right of Lucent to register up
to 90,578 shares issued to it upon exercise of the Warrant. The Holders
acknowledge that such registration rights may, among other things, entitle
Lucent to participate in an offering requested hereby and affect the priority of
registration as set forth herein.
(o) Headings. The headings and captions contained herein are for
--------
convenience of reference only and shall not control or affect the meaning or
construction of any provision hereof.
21
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the date first written above.
AIRGATE PCS, INC.
By:______________________________
Name:
Title:
GENESEO COMMUNICATIONS, INC.
By:______________________________
Name:
Title:
CAMBRIDGE TELCOM, INC.
By:______________________________
Name:
Title:
CASS COMMUNICATIONS, INC.
By:______________________________
Name:
Title:
22
TECHNOLOGY GROUP, LLC
By:_________________________________
Name:
Title:
MONTROSE MUTUAL PCS, INC.
By:_________________________________
Name:
Title:
XXXXXXX ENTERPRISES, INC.
By:_________________________________
Name:
Title:
____________________________________
Xxxxxxx X. Xxxxx
____________________________________
Xxxxx X. Xxxxx
23
BLACKSTONE ices CAPITAL PARTNERS L.P.
By: Blackstone Media Management Associates III,
L.L.C., as its General Partner
By:______________________________________________
Name:
Title:
BLACKSTONE/iPCS L.L.C.
By:______________________________________________
Name:
Title:
BLACKSTONE COMMUNICATIONS PARTNERS I L.P.
By: Blackstone Communications Management
Associates I L.L.C., as its General Partner
By:______________________________________________
Name:
Title:
24
TCW/CRESCENT MEZZANINE PARTNERS II, L.P.,
TCW/CRESCENT MEZZANINE TRUST II
By: TCW/Crescent Mezzanine II L.P., as its
General Partner or Managing Owner
By: TCW/Crescent Mezzanine L.L.C., as its General
Partner
By:_______________________________________________
Name:
Title:
TCW SHARED OPPORTUNITY FUND II, L.P.
By: TCW Investment Management Company, as its
Investment Manager
By:_______________________________________________
Name:
Title:
By:_______________________________________________
Name:
Title:
SHARED OPPORTUNITY ILB, L.L.C.
By: TCW Asset Management Company, as its
Investment Adviser
By:_______________________________________________
Name:
Title:
By:_______________________________________________
Name:
Title:
25
TCW SHARED OPPORTUNITY FUND III, L.P.
By: TCW Asset Management Company, as its
Investment Adviser
By:______________________________________________
Name:
Title:
By:______________________________________________
Name:
Title:
TCW LEVERAGED INCOME TRUST, L.P.
By: TCW Advisers (Bermuda), Ltd., as its General
Partner
By:______________________________________________
Name:
Title:
By: TCW Investment Management Company, as its
Investment Adviser
By:______________________________________________
Name:
Title:
26
TCW LEVERAGED INCOME TRUST II, L.P.
By: TCW (XXXX XX), L.P. as its General Partner
By: TCW Advisers (Bermuda), Ltd., as its General
Partner
By:______________________________________________
Name:
Title:
By: TCW Investment Management Company, as its
Investment Adviser
By:______________________________________________
Name:
Title:
TCW LEVERAGED INCOME TRUST IV, L.P.
By: TCW Asset Management Company, as its
Investment Adviser
By:______________________________________________
Name:
Title:
By: TCW (XXXX XX), L.L.C., as its General Partner
By: TCW Asset Management Company, as its Managing
Partner
By:_______________________________________________
Name:
Title:
By:_______________________________________________
Name:
Title:
27
