Exhibit 4.5
REGISTRATION RIGHTS AGREEMENT
Registration Rights Agreement (this "Agreement") dated as of August 7, 2002
between UNITED STATES CELLULAR CORPORATION, a Delaware corporation (the
"Company"), and PRIMECO WIRELESS COMMUNICATIONS LLC, a Delaware limited
liability company, as Holder ("Holder").
RECITALS
WHEREAS, pursuant to that certain Note Purchase Agreement dated the date
hereof, by and among Company and the Holder (the "Note Purchase Agreement"), the
Holder acquired $175,000,000 aggregate principal amount of the Company's 9%
Series A Notes due 2032 (the "Notes") and the Company agreed to provide certain
rights to the Holder to cause the Notes to be registered pursuant to the
Securities Act (as defined herein); and
WHEREAS, the parties hereto hereby desire to set forth the Holder's rights
and the Company's obligations to cause the registration of the Registrable
Securities (as defined herein) pursuant to the Securities Act;
NOW, THEREFORE, in consideration of the acquisition by the Holder of the
Notes pursuant to the Note Purchase Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
Section 1. Definitions and Usage.
As used in this Agreement:
1.1. Definitions.
Affiliate. "Affiliate" of a Person means another Person that, directly or
indirectly, through one or more intermediaries, controls, is controlled by, or
is under common control with, such Person, as further defined under the
Securities Act and the rules and regulations thereunder.
Agent. "Agent" means the principal placement agent on an agented placement
of Registrable Securities.
"commercially reasonable" means a Person's efforts or actions in accordance
with reasonable commercial practices and without the payment of any money to any
third party except the incurrence of reasonable costs and expenses that are not
material in the
context of the commercial objectives to be achieved by the subject efforts or
actions of such Person.
Commission. "Commission" shall mean the Securities and Exchange Commission.
Company Notice Parties. "Company Notice Parties" shall be the notice
parties (including counsel) specified in the Purchase Agreement, except that the
notice specified to be delivered to Xxxxx X. Xxxxxxxxxx shall instead be
delivered to the Vice President and Treasurer of Telephone and Data Systems,
Inc. at the same address specified in the Purchase Agreement.
Continuously Effective. "Continuously Effective", with respect to a
specified registration statement, shall mean that it shall not cease to be
effective and available for Transfers of Registrable Securities thereunder for
longer than either (i) any ten (10) consecutive business days, or (ii) an
aggregate of fifteen (15) business days during the period specified in the
relevant provision of this Agreement.
Demand Registration. "Demand Registration" shall have the meaning set forth
in Section 2.1(i).
Demanding Holders. "Demanding Holders" shall have the meaning set forth in
Section 2.1(i).
Demanding Shelf Holders. "Demanding Shelf Holders" shall have the meaning
set forth in Section 2.2(i).
Demanding Takedown Holders. "Demanding Takedown Holders" shall have the
meaning set forth in Section 2.2(ii).
Exchange Act. "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
Holder. "Holder" and "Holders" shall mean PrimeCo Wireless Communications
LLC and Transferees of such Holder's Registrable Securities with respect to the
rights that such Transferees shall have acquired in accordance with Section 8,
at such times as such Persons shall own Registrable Securities.
Majority Selling Holders. "Majority Selling Holders" means those Selling
Holders whose Registrable Securities included in such registration represent a
majority of the Registrable Securities of all Selling Holders included therein.
Note Purchase Agreement. "Note Purchase Agreement" shall have the meaning
set forth in the Recitals.
Notes. "Notes" shall have the meaning set forth in the Recitals.
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Person. "Person" shall mean any individual, corporation, partnership, joint
venture, association, joint-stock company, limited liability company, trust,
unincorporated organization or government or other agency or political
subdivision thereof or any other entity.
Purchase Agreement. "Purchase Agreement" shall mean the Purchase and Sale
Agreement dated May 9, 2002, as amended as of the date hereof, between the
Company and Holder.
Qualified Purchaser. "Qualified Purchaser" shall mean a purchaser of Notes
who, together with all Affiliates of such purchaser, does not acquire or own
Notes having an aggregate principal amount of $10,000,000 or more.
Register, Registered and Registration. "Register", "registered", and
"registration" shall refer to a registration effected by preparing and filing a
registration statement or similar document in compliance with the Securities
Act, and the declaration or ordering by the Commission of effectiveness of such
registration statement or document.
Registrable Securities. "Registrable Securities" shall mean: (i) the Notes
owned by the Holder on the date hereof, and owned by a Holder on the date of
determination, (ii) any securities distributed with respect to, or in exchange
by the Company for, or in replacement by the Company of, such Notes; and (iii)
any securities issued in exchange for Notes in any merger or reorganization of
the Company; provided, however, that Registrable Securities shall not include
any Notes or securities issued in exchange for Notes which have theretofore been
registered and sold pursuant to the Securities Act or which have been sold to
the public pursuant to Rule 144, Rule 144A or any similar rule promulgated by
the Commission pursuant to the Securities Act, and, provided further, that
Registrable Securities shall not include any pass-through or similar securities
of a trust or other entity that holds any Notes.
Registrable Securities then outstanding. "Registrable Securities then
outstanding" shall mean, with respect to a specified determination date, the
Registrable Securities owned by all Holders on such date.
Registration Expenses. "Registration Expenses" shall have the meaning set
forth in Section 6.
Securities Act. "Securities Act" shall mean the Securities Act of 1933, as
amended.
Selling Holders. "Selling Holders" shall mean, with respect to a specified
registration pursuant to this Agreement, Holders whose Registrable Securities
are included in such registration.
Shelf Prospectus Supplement. "Shelf Prospectus Supplement" shall have the
meaning set forth in Section 2.2(ii).
Shelf Registration. "Shelf Registration" shall have the meaning set forth
in Section 2.2(i).
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Transfer. "Transfer" shall mean and include the act of selling, giving,
transferring (with or without consideration), distributing, creating a trust
(voting or otherwise), effecting a constructive sale, assigning or otherwise
directly or indirectly disposing of any security, including any transfer or
other disposition upon foreclosure or other exercise of remedies of a secured
creditor after an event of default under or with respect to a pledge,
hypothecation or other transfer as collateral. The term "constructive sale"
means a short sale with respect to a security, entering into or acquiring or
selling a derivative contract with respect to such security, entering into or
acquiring a futures or forward contract to deliver such security, repackaging
and reselling such security through a trust or similar structure or entering
into any transaction that has substantially the same effect as any of the
foregoing.
Transferee. "Transferee" shall mean and include any Person that acquires
securities upon a Transfer.
Underwriters. "Underwriters" shall mean the underwriters of an underwritten
offering.
Underwriters' Representative. "Underwriters' Representative" shall mean the
managing underwriter, or, in the case of a co-managed underwriting, the managing
underwriter designated as the Underwriters' Representative by the co-managers.
Violation. "Violation" shall have the meaning set forth in Section 7.1.
1.2. Usage.
(i) References to a Person are also references to its assigns and
successors in interest (by means of merger, consolidation or sale of all or
substantially all the assets of such Person or otherwise, as the case may be).
(ii) References to Registrable Securities "owned" by a Holder shall include
Registrable Securities beneficially owned by such Person but which are held of
record in the name of a nominee, trustee, custodian, or other agent.
(iii) References to a document are to it as amended, waived and otherwise
modified from time to time and references to a statute or other governmental
rule are to it as amended and otherwise modified from time to time (and
references to any provision thereof shall include references to any successor
provision).
(iv) References to Sections or to Schedules or Exhibits are to sections
hereof or schedules or exhibits hereto, unless the context otherwise requires.
(v) The definitions set forth herein are equally applicable both to the
singular and plural forms and the feminine, masculine and neuter forms of the
terms defined.
(vi) The term "including" and correlative terms shall be deemed to be
followed by "without limitation" whether or not followed by such words or words
of like import.
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(vii) The term "hereof" and similar terms refer to this Agreement as a
whole.
(viii) The "date of" any notice or request given pursuant to this Agreement
shall be determined in accordance with Section 13.2.
Section 2. Demand and Shelf Registration.
2.1. Demand Registration
(i) Subject to Section 2.4, on or after the date of this Agreement, if one
or more Holders that own an aggregate of 51% or more in aggregate principal
amount of the Registrable Securities then outstanding (the "Demanding Holders")
shall make a written request to the Company, the Company (with the cooperation
of the Demanding Holder) shall cause there to be filed with the Commission a
registration statement meeting the requirements of the Securities Act (a "Demand
Registration"), and each Demanding Holder shall be entitled to have included
therein all or such number of such Demanding Holder's Registrable Securities, as
the Demanding Holder shall report in writing; provided, however, that no request
may be made pursuant to this Section 2.1 if within four (4) months prior to the
date of such request (i) a Demand Registration Statement pursuant to this
Section 2.1 or a Shelf Registration Statement under Section 2.2 shall have been
declared effective by the Commission; and provided, further, that no request for
a registration shall be made unless the minimum anticipated offering price of
the Registrable Securities requested to be included in the Demand Registration,
before underwriting discounts and commissions, is $25,000,000, or more. Any
request made pursuant to this Section 2.1 shall be addressed to the attention of
the Company Notice Parties, and shall specify the number of Registrable
Securities to be registered, the intended methods of disposition thereof and
that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) After November 30, 2002, Company shall be entitled to postpone for up
to 120 days the filing of any Demand Registration Statement otherwise required
to be prepared and filed pursuant to this Section 2.1, if the Company determines
in its reasonable judgment that such registration or the Transfer of Registrable
Securities contemplated thereby would interfere with, or require premature
disclosure of, any financing, acquisition, reorganization or other matter
involving the Company or any of its Affiliates and the Company promptly gives
the Demanding Holders notice of such determination. Notwithstanding anything in
this Section 2.1(ii) to the contrary, there shall be no more than two delay
periods pursuant to this Section 2.1(ii) and/or Section 2.2(iii) during any
consecutive 12-month period during the time in which Holders may request a
Demand Registration.
2.2. Shelf Registration
(i) Subject to Section 2.4, on or after the date of this Agreement, if one
or more Holders that own an aggregate of 51% or more in aggregate principal
amount of the Registrable Securities then outstanding (the "Demanding Shelf
Holders"), shall make a written request to the Company to have all or any number
of such Demanding Shelf Holders' Registrable Securities included in a
registration with the Commission in accordance with the Securities Act for an
offering on a delayed or continuous basis pursuant to Rule 415 under the
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Securities Act (a "Shelf Registration"), the Company (with the cooperation of
the Demanding Shelf Holder) shall cause there to be filed with the Commission a
Shelf Registration Statement meeting the requirements of the Securities Act and
each Demanding Shelf Holder shall be entitled to have included therein all or
such number of such Demanding Shelf Holder's Registrable Securities, as the
Demanding Shelf Holder shall report in writing; provided, however, that no
request may be made pursuant to this Section 2.2(i) if within four (4) months
prior to the date of such request a Shelf Registration Statement pursuant to
this Section 2.2(i) or a Demand Registration Statement pursuant to Section 2.1
shall have been declared effective by the Commission; and provided further, that
no request for a registration shall be made unless the minimum anticipated
offering price of the Registrable Securities requested to be included in the
Shelf Registration, before underwriting discounts and commissions, is
$25,000,000, or more. Any request made pursuant to this Section 2.2(i) shall be
addressed to the attention of the Company Notice Parties, and shall specify the
number of Registrable Securities to be registered, the intended methods of
disposition thereof and that the request is for a Shelf Registration pursuant to
this Section 2.2(i). The Company and the Demanding Shelf Holders shall use
commercially reasonable efforts to cause the Shelf Registration filed pursuant
to the first request pursuant to this Section 2.2(i) to be filed within ten (10)
days of the receipt of such request by the Company.
(ii) Following the effectiveness of a Shelf Registration Statement, one or
more Holders (the "Demanding Takedown Holders") shall be entitled to request the
Company to file a prospectus or prospectus supplement (a "Shelf Prospectus
Supplement") with respect thereto to effect a takedown for an offering of Notes
registered thereby; provided, however, that after November 30, 2002, no request
may be made pursuant to this Section 2.2(ii) if within four (4) months prior to
the date of such request the Company has filed a Shelf Prospectus Supplement
pursuant to this Section 2.2(ii) or a Demand Registration Statement pursuant to
Section 2.1 shall have been declared effective by the Commission; and provided
further, that no request for a takedown shall be made unless the minimum
anticipated offering price of the Registrable Securities requested to be
included in the Shelf Prospectus Supplement, before underwriting discounts and
commissions, is $25,000,000, or more. Any request made pursuant to this Section
2.2(ii) shall be addressed to the attention of the Company Notice Parties, and
shall specify the number of Registrable Securities to be offered, the intended
methods of disposition thereof and that the request is for a Shelf Prospectus
Supplement pursuant to this Section 2.2(ii).
(iii) After November 30, 2002, the Company shall be entitled to postpone
for up to 120 days the filing of any Shelf Registration Statement otherwise
required to be prepared and filed pursuant to Section 2.2(i), and the filing of
any Shelf Prospectus Supplement for a takedown thereunder required to be
prepared and filed pursuant to Section 2.2(ii), if the Company determines in its
reasonable judgment that such registration or takedown or the Transfer of
Registrable Securities contemplated thereby would interfere with, or require
premature disclosure of, any financing, acquisition, reorganization or other
matter involving the Company or any of its Affiliates and the Company promptly
gives the Demanding Shelf Holders or the Demanding Takedown Holders notice of
such determination. Notwithstanding anything in this Section 2.2(iii) to the
contrary, there shall be no more than two delay periods pursuant to Section
2.1(ii) and/or this Section 2.2(iii) during any consecutive 12-month period
during the time in which Holders may request a Shelf Registration Statement.
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2.3. Following receipt of a request for a Demand Registration or a Shelf
Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as
practicable, and shall use the Company's commercially reasonable efforts to have
the registration declared effective under the Securities Act as soon as
reasonably practicable, in each instance giving due regard to the need to
prepare current financial statements, conduct due diligence and complete other
actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company's commercially reasonable efforts to keep the relevant
registration statement Continuously Effective (x) if a Demand Registration, for
up to 90 days or until such earlier date as of which all the Registrable
Securities under the Demand Registration statement shall have been disposed of
in the manner described in the Registration Statement, and (y) if a Shelf
Registration, for two years and, with respect to any takedown from a Shelf
Registration Statement, the Shelf Prospectus Supplement relating to such
takedown shall be available for use for up to 90 days or until such earlier date
as of which all the Registrable Securities under such Shelf Prospectus
Supplement shall have been disposed of in the manner described therein.
Notwithstanding the foregoing, if for any reason the effectiveness of a
registration pursuant to this Section 2 is suspended or, in the case of a Demand
Registration, postponed as permitted by Section 2.1(ii), the foregoing period
shall be extended by the aggregate number of days of such suspension or
postponement.
2.4. The Company shall be obligated to effect no more than two Demand
Registrations and two Shelf Registrations. For purposes of the preceding
sentence, registration shall not be deemed to have been effected (i) unless a
registration statement with respect thereto has become effective or (ii) if
after such registration statement has become effective, such registration or the
related offer, sale or distribution of Registrable Securities thereunder is
interfered with by any stop order, injunction or other order or requirement of
the Commission or other governmental agency or court for any reason not
attributable to the Selling Holders and such interference is not thereafter
eliminated. If the Company shall have complied with its obligations under this
Agreement, a right to demand a registration pursuant to this Section 2 shall be
deemed to have been satisfied (i) if a Demand Registration, upon the earlier of
(x) the date as of which all of the Registrable Securities included therein
shall have been disposed of pursuant to the Registration Statement, and (y) the
date as of which such Demand Registration shall have been Continuously Effective
for a period of 90 days, and (ii) if a Shelf Registration, upon the effective
date of a Shelf Registration, provided no stop order or similar order, or
proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to Section 2.1 or 2.2 shall be on Form S-3 or
any successor form.
2.6. If any registration pursuant to Section 2 involves an underwritten
offering (whether on a "firm", "best efforts" or "all reasonable efforts" basis
or otherwise), or an agented offering, the Majority Selling Holders shall have
the right to select one or more Underwriters and Underwriters' Representatives
to administer such underwritten offering or the Agents for such agented offering
from the list of investment banking firms listed on Schedule 2.6 hereto, as such
schedule may be amended by the Holders that own an aggregate of 51% or more
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in aggregate principal amount of the Registrable Securities then outstanding, on
the one hand, and the Company, on the other hand. Each such Person so selected
shall be reasonably acceptable to the Company.
Section 3. Other Agreements.
3.1. The Holders agree not to Transfer any Notes except as permitted by
this Agreement. The Holders may Transfer Notes pursuant to this Agreement as
follows:
(i) Pursuant to a Demand Registration Statement or Shelf Registration
Statement as set forth in this Agreement, including in the manner and at the
times set forth in Section 2; or
(ii) At any time in a transaction not involving a public offering, subject
to restrictions on Transfer under the Securities Act, as described in the Notes.
3.2. The Holders further agree:
(i) With respect to any Transfer of the Notes to one or more Persons that
are not Qualified Purchasers, whether or not involving a public offering, prior
to the Transfer of the Notes, such Person (the prospective Transferee) shall
execute and deliver to the Company the agreement attached hereto as Exhibit A to
evidence such Person's agreement to be bound as Holders under the terms of this
Agreement.
(ii) Holders may Transfer Notes in any other public offering not under a
Demand Registration Statement or Shelf Registration Statement, including, but
not limited to, a public offering of pass-through or similar securities of a
trust that holds the Notes; provided that such Holders notify the Company Notice
Parties in writing at least 20 days prior to the commencement of such offering;
and provided, further, that the Company shall be entitled to require such
Holders to postpone any such offering for up to 120 days after the receipt of
such notice, if the Company determines in its reasonable judgment that such
registration or the Transfer of Registrable Securities contemplated thereby
would interfere with, or require premature disclosure of, any financing,
acquisition, reorganization or other matter involving the Company or any of its
Affiliates and the Company promptly gives such Holders notice of such
determination. Notwithstanding anything to the contrary to this Agreement, the
Company shall have no obligation to register or assist in the registration,
structuring or offering of or to pay any costs or expenses related to any trust
securities or any other securities that are not Registrable Securities.
(iii) In any offering of the Notes, whether a private or public offering,
including without limitation, an offering of pass-through or similar securities
of a trust that holds the Notes or the listing of such securities on an
exchange, the name (including any variation) and logo of the Company or any of
its Affiliates may not be used without the express prior written consent of the
Company or its applicable Affiliate; provided, however, that such consent shall
not be required in connection with any offering pursuant to a Demand
Registration Statement or Shelf Registration Statement filed with the Commission
pursuant to Section 2.1 or 2.2.
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3.3. Holder hereby represents, warrants and covenants with the Company that
the Holder has made its own investment decision and relied on the advice of its
own advisors with respect to all matters relating to the possibility of any
pass-through or similar securities and that neither the Company nor any of its
officers, employees, agents or other representatives has provided advice to the
Holder or any of its Members with respect to any such matters.
Section 4. Registration Procedures. Whenever required under Section 2 or
Section 3 to effect the registration of any Registrable Securities, the Company
shall, as expeditiously as practicable:
4.1. Prepare and file with the Commission a registration statement with
respect to such Registrable Securities and use the Company's commercially
reasonable efforts to cause such registration statement to become effective;
provided, however, that before filing a registration statement or prospectus or
any amendments or supplements thereto, including documents incorporated by
reference after the initial filing of the registration statement and prior to
effectiveness thereof, the Company shall furnish to one firm of counsel for the
Selling Holders (selected by Majority Selling Holders) copies of all such
documents in the form substantially as proposed to be filed with the Commission
at least ten (10) business days prior to filing for review and comment by such
counsel, which opportunity to comment shall include an absolute right to control
or contest disclosure if the applicable Selling Holder reasonably believes that
it may be subject to controlling person liability under applicable securities
laws with respect thereto.
4.2. Prepare and file with the Commission such amendments and supplements
to such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Securities Act, the Exchange Act and rules and regulations thereunder with
respect to the disposition of all securities covered by such registration
statement in accordance with the method of disposition set forth in such
registration statement. If the registration is for an underwritten offering, the
Company shall amend the registration statement or supplement the prospectus
whenever reasonably required by the terms of the underwriting agreement entered
into pursuant to Section 5.2. Subject to Rule 415 under the Securities Act, if
the registration statement is a Shelf Registration, the Company shall amend the
registration statement or supplement the prospectus so that it will remain
current and in compliance with the requirements of the Securities Act for two
years after its effective date. If any event or development occurs as a result
of which a registration statement or prospectus with respect to Registrable
Securities contains a misstatement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, the Company shall promptly notify each Selling Holder,
amend the registration statement or supplement the prospectus so that each will
thereafter comply with the Securities Act and furnish to each Selling Holder of
Registrable Securities such amended or supplemented prospectus, which each such
Selling Holder shall thereafter use in the Transfer of Registrable Securities
covered by such registration statement. Pending such amendment or supplement,
each such Selling Holder shall cease making offers or Transfers of Registrable
Securities pursuant to the prior prospectus. In the event that any Registrable
Securities included in a registration statement subject to, or required by, this
Agreement remain unsold at the end of the period during which the Company is
obligated to use its commercially reasonable efforts to maintain the
effectiveness of such registration statement,
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the Company may file a post-effective amendment to the registration statement
for the purpose of removing such securities from registered status.
4.3. Furnish to each Selling Holder of Registrable Securities such numbers
of copies of the registration statement, any pre-effective or post-effective
amendment thereto, the prospectus, including each preliminary prospectus and any
amendments or supplements thereto, in each case in conformity with the
requirements of the Securities Act and the rules thereunder, and such other
related documents as any such Selling Holder may reasonably request in order to
facilitate the disposition of Registrable Securities owned by such Selling
Holder.
4.4. Use the Company's commercially reasonable efforts (i) to register and
qualify the Registerable Securities covered by such registration statement under
such other securities or Blue Sky laws of such states or U.S. jurisdictions as
shall be reasonably requested by the Underwriters' Representative or Agent (as
applicable, or if inapplicable, the Majority Selling Holders), (ii) to keep such
registration or qualification in effect for so long as such registration
statement remains in effect, and (iii) to obtain the withdrawal of any order
suspending the effectiveness of a registration statement, or the lifting of any
suspension of the qualification (or exemption from qualification) of the offer
and transfer of any of the Registrable Securities in any jurisdiction, at the
earliest possible moment; provided, however, that the Company shall not be
required in connection therewith or as a condition thereto to qualify to do
business or to file a general consent to service of process in any such states
or jurisdictions.
4.5. In the event of any underwritten or agented offering, in connection
any offering pursuant to a Demand Registration Statement or Shelf Registration
Statement filed with the Commission pursuant to Section 2.1 or 2.2, enter into
and perform the Company's obligations under an underwriting or agency agreement
(including indemnification and contribution obligations of underwriters or
agents), in usual and customary form, with the managing underwriter or
underwriters of or agents for such offering, and (i) make such representations
and warranties to the Underwriters' Representative or Agent with respect to the
business of the Company and its subsidiaries, the registration statement or
prospectus, in each case, in form, substance and scope as are customarily made
by issuers to underwriters in underwritten offerings and confirm the same if and
when requested and (ii) deliver such documents and certificates as may be
reasonably requested by the Selling Holder, its counsel, Underwriters'
Representative or Agent, if any, to evidence the continued validity of the
representations and warranties of the Company and its subsidiaries made pursuant
to clause (i) above and to evidence compliance with any customary conditions
contained in the underwriting agreement or similar agreement entered into by the
Company. The foregoing actions shall be taken in connection with each closing
under such underwriting or similar agreement as and to the extent required
thereunder. The Company shall also cooperate with the Majority Selling Holders
and the Underwriters' Representative or Agent for such offering in the marketing
of the Registrable Securities, including making available, on a commercially
reasonable basis, the Company's officers, accountants, counsel, premises, books
and records for such purpose, but the Company shall not be required to incur any
material out-of-pocket expense pursuant to this sentence.
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4.6. In the event of any underwritten or agented offering, in connection
with any offering pursuant to a Demand Registration Statement or Shelf
Registration Statement filed with the Commission pursuant to Section 2.1 or 2.2,
the Company and members of its management (which shall include the Chief
Executive Officer and the Chief Financial Officer or such other members of its
management acceptable to the Underwriters' Representative or Agent, if any)
shall participate in roadshows and other similar selling efforts as the
Underwriters' Representative or Agent, if any, shall reasonably deem to be
necessary; provided, however, the Company and members of its management shall
not be obligated to participate in more than a total of three roadshows or other
similar selling efforts pursuant to this Section 4.6.
4.7. Promptly notify each Selling Holder of any stop order issued or
threatened to be issued by the Commission in connection therewith (and take
commercially reasonable actions required to prevent the entry of such stop order
or to remove it if entered).
4.8. Make generally available to the Company's security holders copies of
all periodic reports, proxy statements, and other information referred to in
Section 10.1 and an earnings statement satisfying the provisions of Section
11(a) of the Securities Act no later than 90 days following the end of the
12-month period beginning with the first month of the Company's first fiscal
quarter commencing after the effective date of each registration statement filed
pursuant to this Agreement.
4.9. Make available for inspection by any Selling Holder, any underwriter
participating in such offering and the representatives of such Selling Holder
and Underwriter (but not more than one firm of counsel to such Selling Holders),
all financial and other information as shall be reasonably requested by them,
and provide the Selling Holder, any Underwriter participating in such offering
and the representatives of such Selling Holder and Underwriter the opportunity,
on a commercially reasonable basis, to discuss the business affairs of the
Company with appropriate officers and independent public accountants who have
certified the audited financial statements included in such registration
statement, in each case all as necessary to enable them to exercise their due
diligence responsibility under the Securities Act; provided, however, that any
records, information or documents that are designated by the Company as
confidential at the time of delivery of such records, information or documents
shall be kept confidential by such Persons unless (i) such records, information
or documents are in the public domain or otherwise publicly available (other
than by reason of breach of this confidentiality provision), (ii) disclosure of
such records, information or documents is required by court or administrative
order or is necessary to respond to inquires of regulatory authorities, or (iii)
disclosure of such records, information or documents, in the reasonable opinion
of counsel to such Person, is otherwise required by law or regulation (including
without limitation pursuant to the requirements of the Securities Act or
regulations promulgated thereunder); provided, however, that in the case of
subsections (ii) and (iii) hereof, prior to making such disclosure the Holder
shall consult with the Company and its counsel as to the necessity of such
disclosure, the timing and content of such disclosure and the nature and wording
of such disclosure and shall use its reasonable best efforts to obtain, at the
Company's expense, confidential treatment of such records, information or
documents, or portions thereof. Also, to the extent possible, the Company shall
be given a reasonable opportunity to intervene with the appropriate authorities
in order to prevent disclosure of such records, information or documents, or
portions thereof.
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4.10. Use the Company's commercially reasonable efforts to obtain a
so-called "comfort letter" from its independent public accountants, and legal
opinions of counsel to the Company addressed to the Selling Holders, or
Underwriters' Representative or Agent, as applicable, in customary form and
covering such matters of the type customarily covered by such letters, and in a
form that shall be reasonably satisfactory to Majority Selling Holders or
Underwriters' Representative or Agent, as applicable. The Company shall furnish
to each Selling Holder a signed counterpart of any such comfort letter or legal
opinion. Delivery of any such opinion or comfort letter shall be subject to the
recipient furnishing such written representations or acknowledgements as are
customarily provided by sellers of securities who receive such comfort letters
or opinions.
4.11. Provide and cause to be maintained (including the payment of fees in
connection therewith) a trustee, transfer agent and registrar for all
Registrable Securities covered by such registration statement from and after a
date not later than the effective date of such registration statement.
4.12. Use commercially reasonable efforts to cause the Registrable
Securities covered by such registration statement (i) to be listed on the New
York Stock Exchange or American Stock Exchange for a reasonable period of time
after the offering, and (ii) to be registered with or approved by such other
United States or state governmental agencies or authorities as may be necessary
by virtue of the business and operations of the Company to enable the Selling
Holders of Registrable Securities to consummate the disposition of such
Registrable Securities.
4.13. Use the Company's commercially reasonable efforts to provide a CUSIP
number for the Registrable Securities prior to the effective date of the first
registration statement including Registrable Securities.
4.14. Use commercially reasonable efforts to cause the Registerable
Securities covered by a registration statement to be rated with the appropriate
rating agencies.
4.15. Take such other actions as are commercially reasonably required in
order to expedite or facilitate the effectiveness of the registration of the
Registrable Securities.
Section 5. Holders' Obligations. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Agreement with
respect to the Registrable Securities of any Selling Holder of Registrable
Securities that such Selling Holder shall:
5.1. Furnish to the Company such information regarding such Selling Holder,
the number of the Registrable Securities owned by it, and the intended method of
disposition of such securities as shall be required to effect the registration
of such Selling Holder's Registrable Securities, and to cooperate with the
Company in preparing such registration; and
5.2. Agree to sell their Registrable Securities to the underwriters at the
same price and on substantially the same terms and conditions as the other
Persons on whose
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behalf the registration statement was being filed have agreed to sell their
securities, and to execute the underwriting agreement agreed to by the Majority
Selling Holders.
Section 6. Expenses of Registration. The Selling Holders shall bear and pay
all expenses incurred in connection with any registration, filing, or
qualification of Registrable Securities with respect to any Demand Registrations
or Shelf Registrations for each Selling Holder, including all registration,
filing and National Association of Securities Dealers, Inc. fees, all rating
agency fees, stock exchange listing fees, all fees and expenses of complying
with securities or blue sky laws (including fees and expenses of underwriters
counsel), all word processing, duplicating and printing expenses, messenger and
delivery expenses, the reasonable fees and disbursements of counsel for the
Selling Holders, and of the Company's independent public accountants, including
the expenses of "cold comfort" letters required by or incident to such
performance and compliance, (the "Registration Expenses"), any fees and
disbursements of underwriters, and including all underwriting discounts and
commissions relating to Registrable Securities (which shall be paid on a pro
rata basis by the Selling Holders), including any expenses of any registration
proceeding begun pursuant to Section 2 if the registration is subsequently
withdrawn at the request of the Majority Selling Holders; provided that the
Company shall pay all costs and expenses that the Company determines to incur on
its own behalf in its sole discretion, including (i) the fees and expenses of
the trustee under the indenture pursuant to which the Notes are issued and
counsel retained by such trustee, (ii) any expenses of the Company incurred to
obtain confidential treatment of records, information or documents pursuant to
Section 4.9, and (iii) the fees and expenses of counsel to the Company.
Section 7. Indemnification; Contribution. If any Registrable Securities are
included in a registration statement under this Agreement:
7.1. To the extent permitted by applicable law, the Company shall indemnify
and hold harmless each Selling Holder, each Person, if any, who controls such
Selling Holder within the meaning of the Securities Act, and each officer,
director, partner, and employee of such Selling Holder and such controlling
Person, against any and all losses, claims, damages, liabilities and reasonable
expenses (joint or several), including reasonable attorneys' fees and
disbursements and expenses of investigation, incurred by such party pursuant to
any actual or threatened action, suit, proceeding or investigation, or to which
any of the foregoing Persons may become subject under the Securities Act, the
Exchange Act or other federal or state laws, insofar as such losses, claims,
damages, liabilities and reasonable expenses arise out of or are based upon any
of the following statements, omissions or violations (collectively a
"Violation"):
(i) Any untrue statement or alleged untrue statement of a material fact
contained in such registration statement, including any preliminary prospectus
or final prospectus contained therein, or any amendments or supplements thereto;
(ii) The omission or alleged omission to state therein a material fact
required to be stated therein, or necessary to make the statements therein not
misleading; or
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(iii) Any violation or alleged violation by the Company of the Securities
Act, the Exchange Act, any applicable state securities law or any rule or
regulation promulgated under the Securities Act, the Exchange Act or any
applicable state securities law;
provided, however, that the indemnification required by this Section 7.1 shall
not apply to amounts paid in settlement of any such loss, claim, damage,
liability or expense if such settlement is effected without the consent of the
Company, nor shall the Company be liable in any such case for any such loss,
claim, damage, liability or expense to the extent that it arises out of or is
based upon a Violation which occurs in reliance upon and in conformity with
written information furnished to the Company by the indemnified party expressly
for use in connection with such registration; provided, further, that the
indemnity agreement contained in this Section 7 shall not apply to any
underwriter to the extent that any such loss is based on or arises out of an
untrue statement or alleged untrue statement of a material fact, or an omission
or alleged omission to state a material fact, contained in or omitted from any
preliminary prospectus if the final prospectus shall correct such untrue
statement or alleged untrue statement, or such omission or alleged omission, and
a copy of the final prospectus has not been sent or given to such Person at or
prior to the confirmation of sale to such Person if such underwriter was under
an obligation to deliver such final prospectus and failed to do so. The Company
shall also indemnify underwriters, selling brokers, dealer managers and similar
securities industry professionals participating in the distribution, their
officers, directors, agents and employees and each Person who controls such
Persons (within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act) to the same extent as provided above with respect to the
indemnification of the Selling Holders.
7.2. To the extent permitted by applicable law, each Selling Holder shall
indemnify and hold harmless the Company, each of its directors, each of its
officers who shall have signed the registration statement, each Person, if any,
who controls the Company within the meaning of the Securities Act, any other
Selling Holder, any controlling Person of any such other Selling Holder and each
officer, director, partner, and employee of such other Selling Holder and such
controlling Person, against any and all losses, claims, damages, liabilities and
reasonable expenses (joint and several), including reasonable attorneys' fees
and disbursements and expenses of investigation, incurred by such party pursuant
to any actual or threatened action, suit, proceeding or investigation, or to
which any of the foregoing Persons may otherwise become subject under the
Securities Act, the Exchange Act or other federal or state laws, insofar as such
losses, claims, damages, liabilities and reasonable expenses arise out of or are
based upon any Violation, in each case to the extent (and only to the extent)
that such Violation occurs in reliance upon and in conformity with written
information furnished by such Selling Holder expressly for use in connection
with such registration; provided, however, that (x) the indemnification required
by this Section 7.2 shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or expense if settlement is effected without the
consent of the relevant Selling Holder of Registrable Securities, and (y) in no
event shall the amount of any indemnity under this Section 7.2 exceed the net
proceeds from the applicable offering received by such Selling Holder.
7.3. Promptly after receipt by an indemnified party under this Section 7 of
notice of the commencement of any action, suit, proceeding, investigation or
threat thereof made in writing for which such indemnified party may make a claim
under this Section 7, such
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indemnified party shall deliver to the indemnifying party a written notice of
the commencement thereof and the indemnifying party shall have the right to
participate in, and, to the extent the indemnifying party so desires, jointly
with any other indemnifying party similarly noticed, to assume the defense
thereof with counsel mutually satisfactory to the parties; provided, however,
that an indemnified party shall have the right to retain its own counsel, with
the fees and disbursements and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time following the commencement of any
such action, if prejudicial to its ability to defend such action, shall relieve
such indemnifying party of any liability to the indemnified party under this
Section 7 but shall not relieve the indemnifying party of any liability that it
may have to any indemnified party otherwise than pursuant to this Section 7. Any
fees and expenses incurred by the indemnified party (including any fees and
expenses incurred in connection with investigating or preparing to defend such
action or proceeding) shall be paid to the indemnified party, as incurred,
within thirty (30) days of written notice thereof to the indemnifying party;
provided, that such notice is accompanied by an appropriate undertaking to
reimburse the indemnifying party if it is ultimately determined that an
indemnified party is not entitled to indemnification hereunder. Any such
indemnified party shall have the right to employ separate counsel in any such
action, claim or proceeding and to participate in the defense thereof, but the
fees and expenses of such counsel shall be the expenses of such indemnified
party unless (i) the indemnifying party has agreed to pay such fees and expenses
or (ii) the indemnifying party shall have failed to promptly assume the defense
of such action, claim or proceeding or (iii) the named parties to any such
action, claim or proceeding (including any impleaded parties) include both such
indemnified party and the indemnifying party, and such indemnified party shall
have been advised by counsel that there may be one or more legal defenses
available to it which are different from or in addition to those available to
the indemnifying party and that the assertion of such defenses would create a
conflict of interest such that counsel employed by the indemnifying party could
not faithfully represent the indemnified party (in which case, if such
indemnified party notifies the indemnifying party in writing that it elects to
employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such
action, claim or proceeding on behalf of such indemnified party, it being
understood, however, that the indemnifying party shall not, in connection with
any one such action, claim or proceeding or separate but substantially similar
or related actions, claims or proceedings in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for the reasonable
fees and expenses of more than one separate firm of attorneys (together with
appropriate local counsel) at any time for all such indemnified parties, unless
in the reasonable judgment of such indemnified party a conflict of interest may
exist between such indemnified party and any other of such indemnified parties
with respect to such action, claim or proceeding, in which event the
indemnifying party shall be obligated to pay the fees and expenses of such
additional counsel or counsels). No indemnifying party shall be liable to an
indemnified party for any settlement of any action, proceeding or claim without
the written consent of the indemnifying party, which consent shall not be
unreasonably withheld.
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7.4. If the indemnification required by this Section 7 from the
indemnifying party is unavailable to an indemnified party hereunder in respect
of any losses, claims, damages, liabilities or expenses referred to in this
Section 7:
(i) The 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 fault of the indemnifying
party and indemnified parties in connection with the actions which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative fault of such indemnifying party
and indemnified parties shall be determined by reference to, among other things,
whether any Violation has been committed by, or relates to information supplied
by, such indemnifying party or indemnified parties, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such Violation. 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 Section 7.1 and Section 7.2,
any legal or other fees or expenses reasonably incurred by such party in
connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 7.4 were determined by pro rata allocation
or by any other method of allocation which does not take into account the
equitable considerations referred to in Section 7.4(i). 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.
7.5. If indemnification is available under this Section 7, the indemnifying
parties shall indemnify each indemnified party to the full extent provided in
this Section 7 without regard to the relative fault of such indemnifying party
or indemnified party or any other equitable consideration referred to in Section
7.4.
7.6. The obligations of the Company and the Selling Holders of Registrable
Securities under this Section 7 shall survive the completion of any offering of
Registrable Securities pursuant to a registration statement under this
Agreement, and otherwise.
Section 8. Transfer of Registration Rights. Rights with respect to Registrable
Securities may be Transferred by a Holder to any Person in connection with the
Transfer of Registrable Securities to such Person, in all cases, if (x) any such
Transferee that is not a party to this Agreement shall have executed and
delivered to the Company Notice Parties a properly completed agreement
substantially in the form of Exhibit A, and (y) the Transferor shall have
delivered to the Company Notice Parties, no later than 15 days following the
date of the Transfer, written notification of such Transfer setting forth the
name of the Transferor, name and address of the Transferee, and the number of
Registrable Securities which shall have been so Transferred.
Section 9. Holdback. Each Holder entitled pursuant to this Agreement to have
Registrable Securities included in a registration statement prepared pursuant to
this Agreement, if so requested by the Underwriters' Representative or Agent in
connection with an
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offering of any Registrable Securities, shall not effect any public sale or
distribution of Registrable Securities, including a sale pursuant to Rule 144 or
Rule 144A under the Securities Act (except as part of such underwritten or
agented registration), during the five business days prior to, and during the
90-day period beginning on, the date such registration statement is declared
effective under the Securities Act by the Commission, provided that such Holder
is timely notified of such effective date in writing by the Company or such
Underwriters' Representative or Agent. In order to enforce the foregoing
covenant, the Company shall be entitled to impose stop-transfer instructions
with respect to the Registrable Securities of each Holder until the end of such
period.
Section 10. Covenants of the Company. The Company hereby agrees and covenants
as follows:
10.1. The Company shall file as and when applicable, on a timely basis, all
reports required to be filed by it under the Exchange Act. If the Company is not
required to file reports pursuant to the Exchange Act, upon the request of any
Holder of Registrable Securities, the Company shall make publicly available the
information specified in subparagraph (c)(2) of Rule 144 of the Securities Act,
and take such further action as may be reasonably required from time to time and
as may be within the reasonable control of the Company, to enable the Holders to
Transfer Registrable Securities without registration under the Securities Act
within the limitation of the exemptions provided by Rule 144 and Rule 144A under
the Securities Act or any similar rule or regulation hereafter adopted by the
Commission.
10.2. The Company shall not, directly or indirectly, (x) enter into any
merger, consolidation or reorganization in which the Company shall not be the
surviving corporation or (y) Transfer or agree to Transfer all or substantially
all the Company's assets, unless prior to such merger, consolidation,
reorganization or asset Transfer, the surviving corporation or the Transferee,
respectively, shall have agreed in writing to assume the obligations of the
Company under this Agreement, and for that purpose references hereunder to
"Registrable Securities" shall be deemed to include the securities, if any,
which the Holders of Registrable Securities would be entitled to receive in
exchange for Registrable Securities pursuant to any such merger, consolidation
or reorganization.
10.3. The Company shall use its commercially reasonable efforts to cause
the Registrable Securities covered by a registration statement to be rated with
the appropriate rating agencies.
Section 11. Amendment, Modification and Waivers; Further Assurances.
(i) This Agreement shall not be amended or modified except by written
instrument duly executed by each of the parties hereto which, in the case of the
Company, shall require the signature of the Chairman of the Company or other
person so authorized by the Chairman of the Company or the Company's Board of
Directors.
(ii) No waiver of any terms or conditions of this Agreement shall operate
as a waiver of any other breach of such terms and conditions or any other term
or condition, nor shall any failure to enforce any provision hereof operate as a
waiver of such
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provision or of any other provision hereof. No written waiver hereunder, unless
it by its own terms explicitly provides to the contrary, shall be construed to
effect a continuing waiver of the provisions being waived and no such waiver in
any instance shall constitute a waiver in any other instance or for any other
purpose or impair the right of the party against whom such waiver is claimed in
all other instances or for all other purposes to require full compliance with
such provision.
(iii) Each of the parties hereto shall execute all such further instruments
and documents and take all such further action as any other party hereto may
reasonably require in order to effectuate the terms and purposes of this
Agreement.
Section 12. Assignment; Benefit. This Agreement and all of the provisions
hereof shall be binding upon and shall inure to the benefit of the parties
hereto and their respective heirs, assigns, executors, administrators or
successors. A Holder may Transfer its rights hereunder to a successor in
interest to the Registrable Securities owned by such assignor only as permitted
by Section 8.
Section 13. Miscellaneous.
13.1. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING REGARD TO THE
CONFLICT OF LAWS PRINCIPLES THEREOF.
13.2. Notices. All notices and requests given pursuant to this Agreement
shall be in writing and shall be made by hand-delivery, first-class mail
(registered or certified, return receipt requested), confirmed facsimile or
overnight air courier guaranteeing next business day delivery to the relevant
address specified in the Purchase Agreement or in the relevant agreement in the
form of Exhibit A whereby such party became bound by the provisions of this
Agreement. Except as otherwise provided in this Agreement, the date of each such
notice and request shall be deemed to be, and the date on which each such notice
and request shall be deemed given shall be: at the time delivered, if personally
delivered or mailed; when receipt is acknowledged, if sent by facsimile; and the
next business day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next business day delivery.
13.3. Entire Agreement; Integration. This Agreement supersedes all prior
agreements between or among any of the parties hereto with respect to the
subject matter contained herein, and embodies the entire understanding among the
parties relating to such subject matter.
13.4. Injunctive Relief. Each of the parties hereto acknowledges that in
the event of a breach by any of them of any material provision of this
Agreement, the aggrieved party may be without an adequate remedy at law. Each of
the parties therefore agrees that in the event of such a breach hereof the
aggrieved party may elect to institute and prosecute proceedings in any court of
competent jurisdiction to enforce specific performance or to enjoin the
continuing breach hereof. By seeking or obtaining any such relief, the aggrieved
party shall not be precluded from seeking or obtaining any other relief to which
it may be entitled.
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13.5. Section Headings. Section headings are for convenience of reference
only and shall not affect the meaning of any provision of this Agreement.
13.6. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, and all of which shall
together constitute one and the same instrument. All signatures need not be on
the same counterpart.
13.7. Severability. If any provision of this Agreement shall be invalid or
unenforceable, such invalidity or unenforceability shall not affect the validity
and enforceability of the remaining provisions of this Agreement, unless the
result thereof would be unreasonable, in which case the parties hereto shall
negotiate in good faith as to appropriate amendments hereto.
13.8. Consent to Jurisdiction. Each of the Parties hereto (a) consents to
submit itself to the personal jurisdiction of any Federal court located in the
State of Delaware or any Delaware state court in connection with any dispute
that arises out of this Agreement or any of the transactions contemplated by
this Agreement, (b) agrees that it will not attempt to deny or defeat such
personal jurisdiction by motion or other request for leave from any such court
and (c) agrees that it will not bring any action relating to this Agreement or
any of the transactions contemplated by this Agreement in any court other than a
Federal court sitting in the State of Delaware or a Delaware state court unless
venue would not be proper under rules applicable in such courts. Each of the
Parties agrees that service of process by which any action is begun in any court
referred to in this Section 13.8 shall be effective if notice is delivered in
accordance with Section 13.2 and hereby irrevocably and unconditionally waives
any objection to the validity and effectiveness of such service of process.
Nothing contained herein shall affect the right of the Parties to serve process
in any other manner permitted by law.
13.9. Termination. This Agreement may be terminated at any time by a
written instrument signed by the parties hereto. Unless sooner terminated in
accordance with the preceding sentence, this Agreement (other than Section 7
hereof) shall terminate in its entirety on the earlier of (i) four (4) years
after the date hereof or (ii) such date as there shall be no Registrable
Securities outstanding, provided that any Notes previously subject to this
Agreement shall not be Registrable Securities following the sale of any such
Notes in an offering registered pursuant to this Agreement; and provided,
further, that this Agreement shall terminate with respect to any Registrable
Securities that are Transferred to a trust or other entity that issues
pass-through or similar securities.
13.10. Attorneys' Fees. In any action or proceeding brought to enforce any
provision of this Agreement, or where any provision hereof is validly asserted
as a defense, the successful party shall be entitled to recover reasonable
attorneys' fees (including any fees incurred in any appeal) in addition to its
costs and expenses and any other available remedy.
13.11. No Third Party Beneficiaries. Nothing herein expressed or implied is
intended to confer upon any Person, other than the parties hereto or their
respective permitted assigns, successors, heirs and legal representatives, any
rights, remedies, obligations or liabilities under or by reason of this
Agreement.
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IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto as of the date first written above.
UNITED STATES CELLULAR CORPORATION
a Delaware corporation
By: /s/ XxXxx X. Xxxxxxx, Xx.
--------------------------
XxXxx X. Xxxxxxx, Xx.
Chairman
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------
Xxxxxxx X. Xxxxxx
Executive Vice President - Finance
(Chief Financial Officer) and Treasurer
PRIMECO WIRELESS COMMUNICATIONS LLC
By: /s/ Xxxxxx X. Xxxxxx
--------------------------
Xxxxxx X. Xxxxxx
Authorized Representative
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
