Exhibit 4.1(d)
RURAL CELLULAR CORPORATION
REGISTRATION RIGHTS AGREEMENT
THIS AGREEMENT is made as of March 31, 2000, between Rural Cellular
Corporation, a Minnesota corporation (the "Company"), and Telephone and Data
Systems, Inc., a Delaware corporation (together with its affiliates, "TDS").
The parties to this Agreement are parties to a Recapitalization Agreement
dated October 31, 1999, as amended effective December 6, 1999, and March 31,
2000 (as amended, the "Recapitalization Agreement"). In order to induce TDS to
enter into the Recapitalization Agreement, the Company has agreed to provide the
registration rights set forth in this Agreement. The execution and delivery of
this Agreement is a condition to the Closing under the Recapitalization
Agreement. Unless otherwise provided in this Agreement, capitalized terms used
herein shall have the meanings set forth in paragraph 8 hereof or in the
Recapitalization Agreement.
The parties hereto agree as follows:
1. DEMAND REGISTRATIONS.
(a) REQUESTS FOR REGISTRATION. At any time after the conversion of
Class T Preferred Stock into shares of Common Stock ("Registrable
Securities", as further defined in Section 8(a) hereof), TDS may request
up to three registrations under the Securities Act of 1933, as amended
(the "Securities Act") of all or any portion of its Registrable
Securities, provided that the aggregate offering value of the Registrable
Securities requested to be registered in any registration under this
paragraph 1(a) (any "Demand Registration") must equal at least $5 million.
All requests for Demand Registrations shall be made by giving
written notice thereof to the Company (a "Demand Notice"). Each Demand
Notice shall specify the number of Registrable Securities requested to be
registered.
(b) DEMAND EXPENSES. The Registration Expenses (as defined in
Section 5(a) hereof) in all Demand Registrations shall be paid by the
Company.
(c) RESTRICTIONS ON DEMAND REGISTRATIONS. The Company shall not be
obligated to effect any Demand Registration within 270 days after the
effective date of a previous Demand Registration or a previous
registration in which TDS was given piggyback rights pursuant to paragraph
2 and in which TDS was able to register and sell at least 60% of the
Registrable Securities requested to be included therein.
The Company may postpone for up to 90 days the filing or the
effectiveness of a registration statement for a Demand Registration if the
Company's board of directors determines in its reasonable good faith
judgment that such Demand Registration could reasonably be expected to
have a material adverse effect on any activities, operations or prospects
of the Company or any of its Subsidiaries (whether or not in the ordinary
course of business); provided that in such event, TDS shall be entitled to
withdraw such
request and, if such request is withdrawn, such Demand Registration shall
not count as one of the permitted Demand Registrations hereunder and the
Company shall pay all Registration Expenses in connection with such
registration. The Company may delay a Demand Registration hereunder only
once in any twelve-month period.
(d) SELECTION OF UNDERWRITERS. TDS shall have the right to select
the investment banker(s) and manager(s) to administer the offering,
subject to the Company's approval, which shall not be unreasonably
withheld or delayed.
2. PIGGYBACK REGISTRATIONS.
(a) RIGHT TO PIGGYBACK. Whenever the Company proposes to register
any of its equity securities under the Securities Act other than pursuant
to a Demand Registration and the registration form to be used may be used
for the registration of Registrable Securities and is not a Form S-4 or
S-8 or a successor form (a "Piggyback Registration"), the Company shall
give prompt written notice to TDS of its intention to effect such a
registration and, subject to the terms of paragraphs 2(c) and 2(d) hereof,
shall include in such registration all Registrable Securities with respect
to which the Company has received a written request for inclusion therein
within 20 days after the receipt of the Company's notice.
(B) PIGGYBACK EXPENSES. The Registration Expenses in all Piggyback
Registrations shall be paid by the Company.
(c) PRIORITY ON PRIMARY REGISTRATIONS. If a Piggyback Registration
is an underwritten primary registration on behalf of the Company, and the
managing underwriters advise the Company in writing that in their opinion
the number of securities requested to be included in such registration
exceeds the number which can be sold in an orderly manner in such offering
within a price range acceptable to the Company, the Company shall include
in such registration (i) first, the securities the Company proposes to
sell, (ii) second, pro rata among the holders of the Registrable
Securities to the extent requested to be included in such registration and
the holders of securities requested to be included in such registration by
persons having registration rights under the Registration Agreement
between the Company and the purchasers of its Class M Redeemable Voting
Convertible Preferred Stock to the extent requested to be included in such
registration and (iii) third, any other securities requested to be
included in such registration, pro rata among the holders of the other
securities on the basis of the number of shares owned by each such holder.
(d) PRIORITY ON SECONDARY REGISTRATIONS. If a Piggyback Registration
is an underwritten secondary registration on behalf of holders of the
Company's securities, and the managing underwriters advise the Company in
writing that in their opinion the number of securities requested to be
included in such registration exceeds the number which can be sold in an
orderly manner in such offering within a price range acceptable to the
holders initially requesting such registration, the Company shall include
in such registration (i) first, the securities requested to be included
therein by the holders requesting such registration, (ii) second, pro rata
among the holders of the Registrable
2
Securities to the extent requested to be included in such registration and
the holders of securities requested to be included in such registration by
persons having registration rights under the Registration Agreement among
the Company and the purchasers of its Class M Redeemable Voting
Convertible Preferred Stock to the extent requested to be included in such
registration, and (iii) third, any other securities requested to be
included in such registration, pro rata among the holders of such
securities on the basis of the number of shares owned by each such holder.
(e) SELECTION OF UNDERWRITERS. If any Piggyback Registration is an
underwritten primary offering, the selection of investment banker(s) and
manager(s) for the offering shall be made by the Company.
3. HOLDBACK AGREEMENT. TDS shall not effect any public sale or
distribution (including sales pursuant to Rule 144 promulgated under the
Securities Act) of equity securities of the Company, or any securities
convertible into or exchangeable or exercisable for such securities, during (i)
with respect to any underwritten Demand Registration or any underwritten
Piggyback Registration in which Registrable Securities are included, for a
period beginning seven days prior to and ending 90 days after the effective date
of such registration and (ii) upon notice from the Company of the commencement
of an underwritten distribution in connection with any registration pursuant to
Rule 415 under the Securities Act (a "Shelf Registration") for a period
beginning seven days prior to and ending 90 days after the date of commencement
of such distribution, in each case except as part of such underwritten
registration and in each case unless the underwriters managing the registered
public offering otherwise agree.
4. REGISTRATION PROCEDURES. Whenever TDS has requested that any
Registrable Securities be registered pursuant to this Agreement, the Company
shall use commercially reasonable efforts to effect the registration and the
sale of such Registrable Securities in accordance with the intended method of
disposition thereof, and pursuant thereto the Company shall as expeditiously as
practicable:
(a) prepare and file with the Securities and Exchange Commission a
registration statement with respect to such Registrable Securities and use
commercially reasonable efforts to cause such registration statement to
become effective (provided that before filing a registration statement or
prospectus or any amendments or supplements thereto, the Company shall
furnish to the counsel selected by TDS copies of all such documents
proposed to be filed, and the Company shall in good faith consider any
comments of such counsel);
(b) notify TDS of the effectiveness of each registration statement
filed hereunder and prepare and file with the Securities and Exchange
Commission 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
90 days (or, in the case of a Shelf Registration, a period ending on the
earlier of (i) the date on which all Registrable Securities have been sold
pursuant to the Shelf Registration or have otherwise ceased to be
Registrable Securities and (ii) the second anniversary of the effective
date of such Shelf Registration) and comply with the provisions of the
Securities Act with respect to the disposition of all
3
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) furnish to TDS such number of copies of the prospectus included
in such registration statement (including each preliminary prospectus),
each amendment and supplement thereto and such other documents as TDS may
reasonably request in order to facilitate the disposition of the
Registrable Securities;
(d) use commercially reasonable efforts to register or qualify such
Registrable Securities under such other securities or blue sky laws of
such jurisdictions as TDS reasonably requests and to do any and all other
acts and things which may be reasonably necessary or advisable to enable
TDS to consummate the disposition in such jurisdictions of the Registrable
Securities (provided that the Company shall 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 subparagraph, (ii) subject itself to
taxation in any such jurisdiction, or (iii) consent to general service of
process in any such jurisdiction);
(e) notify TDS at any time when a prospectus relating to the
Registrable Securities is required to be delivered under the Securities
Act, of the happening of any event as a result of which the prospectus
included in such registration statement contains an untrue statement of a
material fact or omits any fact necessary to make the statements therein
not misleading, and the Company shall prepare a supplement or amendment to
such prospectus so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus shall not contain an untrue
statement of a material fact or omit to state any fact necessary to make
the statements therein not misleading;
(f) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the
qualification of any common stock included in such registration statement
for sale in any jurisdiction, the Company shall use commercially
reasonable efforts promptly to obtain the withdrawal of such order.
5. REGISTRATION EXPENSES.
(a) All expenses incident to the Company's performance of or
compliance with this Agreement, including without limitation all
registration and filing fees, fees and expenses of compliance with
securities or blue sky laws, printing expenses, messenger and delivery
expenses, fees and disbursements of custodians, and fees and disbursements
of counsel for the Company (but not fees and disbursements of counsel for
TDS) and all independent certified public accountants (excluding costs of
accountants retained to conduct any special audits required in connection
with a Demand Registration), underwriters (excluding discounts and
commissions) and other Persons retained by the Company ( and fees and
disbursements of underwriter's counsel if the underwriter is retained by
the Company )(all such expenses being herein called "Registration
Expenses"), shall be borne by the Company as provided in this Agreement,
except that the Company shall, in any event, pay its internal expenses
(including, without limitation,
4
all salaries and expenses of its officers and employees performing legal
or accounting duties), the expense of any annual audit or quarterly
review, the expense of any liability insurance and the expenses and fees
for listing the securities to be registered on each securities exchange on
which similar securities issued by the Company are then listed or on the
Nasdaq Stock Market.
(b) To the extent any expenses relating to a registration hereunder
are not required to be paid by the Company, each holder of securities
included in any registration hereunder shall pay those expenses allocable
to the registration of such holder's securities so included, including the
fees and disbursements of such holder's counsel and any expenses not so
allocable shall be borne by all sellers of securities included in such
registration in proportion to the aggregate selling price of the
securities to be so registered.
(c) Any obligation to pay Registration Expenses or other expenses
provided for in this Agreement shall survive the termination of this
Agreement.
6. INDEMNIFICATION.
(a) The Company agrees to indemnify, to the extent permitted by law,
TDS, its directors, officers, employees, agents, Affiliates, and each
Person who controls TDS (within the meaning of the Securities Act and the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) against
all losses, claims, damages, liabilities, and expenses caused by any
untrue or alleged untrue statement of material fact contained in any
registration statement, prospectus, or preliminary prospectus or any
amendment thereof or supplement thereto or any omission or alleged
omission of a material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as the same are
caused by or contained in any information furnished in writing to the
Company by TDS expressly for use by the Company in such registration
statement or by TDS's failure to deliver a copy of the registration
statement or prospectus or any amendments or supplements thereto after the
Company has furnished TDS with such number of copies of the same as was
previously requested by TDS. In connection with an underwritten offering,
the Company shall indemnify such underwriters, their officers, directors,
employees, agents, and each Person who controls such underwriters (within
the meaning of the Securities Act and the Exchange Act) to substantially
the same extent as provided above with respect to the indemnification of
TDS.
(b) In connection with any registration statement in which TDS is
participating, TDS shall furnish to the Company in writing such
information and affidavits as the Company reasonably requests for use in
connection with any such registration statement or prospectus and, to the
extent permitted by law, shall indemnify the Company, its directors,
officers, employees, agents, Affiliates, and each Person who controls the
Company (within the meaning of the Securities Act and the Exchange Act)
against any losses, claims, damages, liabilities, and expenses caused by
any untrue or alleged untrue statement of material fact contained in the
registration statement, prospectus, or preliminary prospectus or any
amendment thereof or supplement thereto or any omission or alleged
omission of a material fact required to be stated therein or
5
necessary to make the statements therein not misleading, but only to the
extent that such untrue statement or omission is contained in any
information or affidavit so furnished in writing by TDS expressly for use
by the Company in such registration statement; provided that the
obligation to indemnify shall be limited to the net amount of proceeds
received by TDS from the sale of Registrable Securities pursuant to such
registration statement.
(c) Any Person entitled to indemnification hereunder shall (i) give
prompt written notice to the indemnifying party of any claim with respect
to which it seeks indemnification (provided that the failure to give
prompt notice shall not impair any Person's right to indemnification
hereunder to the extent such failure has not prejudiced the indemnifying
party) and (ii) unless in such indemnified party's reasonable judgment a
conflict of interest between such indemnified and indemnifying parties may
exist with respect to such claim, permit such indemnifying party to assume
the defense of such claim with counsel reasonably satisfactory to the
indemnified party. The indemnifying party shall not be subject to any
liability for any settlement made by the indemnified party without its
consent. An indemnifying party who is not entitled to, or elects not to,
assume the defense of a claim shall not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable
judgment of any indemnified party a conflict of interest may exist between
such indemnified party and any other of such indemnified parties with
respect to such claim, in which case the indemnifying party shall be
obligated to pay the fees and expenses of counsel for the indemnified
party with whom the conflict of interest exists.
(d) The indemnification provided for under this Agreement shall
remain in full force and effect regardless of any investigation made by or
on behalf of the indemnified party or any officer, director, employee,
agent, Affiliate, or controlling Person of such indemnified party and
shall survive the transfer of securities and the termination of this
Agreement. The Company also agrees to make such provisions as are
reasonably requested by any indemnified party for contribution to such
party in the event the Company's indemnification is unavailable for any
reason.
7. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No Person may participate
in any registration hereunder that is underwritten unless such Person (i) agrees
to sell such Person's securities on the basis provided in any underwriting
arrangements approved by the Person or Persons entitled hereunder to approve
such arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements; provided that TDS shall not
be required to make any representations or warranties to the Company or the
underwriters (other than representations and warranties regarding TDS and its
intended method of distribution) or to undertake any indemnification obligations
to the Company or the underwriters with respect thereto, except as otherwise
provided in paragraph 6 hereof.
6
8. DEFINITIONS.
(a) "Registrable Securities" means (i) any Class A Common Stock or
Class B Common Stock issued or issuable upon the conversion of any Class T
Preferred Stock issued pursuant to the Recapitalization Agreement and (ii)
any Class A Common Stock or Class B Common Stock or other Common Stock
issued or issuable with respect to any Registrable Securities by way of a
stock dividend or stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or other reorganization.
As to any particular Registrable Securities, such securities shall cease
to be Registrable Securities when they have been sold, transferred or
otherwise disposed of pursuant to an offering registered under the
Securities Act, through a broker, dealer, or market maker in compliance
with Rule 144 under the Securities Act (or any similar rule then in
force), or repurchased by the Company or any Subsidiary. For purposes of
this Agreement, TDS shall be deemed to be a holder of Registrable
Securities, and the Registrable Securities shall be deemed to be in
existence, whenever TDS has the right to acquire directly or indirectly
such Registrable Securities (upon conversion or exercise in connection
with a transfer of securities or otherwise, but disregarding any
restrictions or limitations upon the exercise of such right), whether or
not such acquisition has actually been effected, and TDS shall be entitled
to exercise the rights of a holder of Registrable Securities hereunder.
(b) "Affiliate" shall have the meaning set forth in Rule 12b-2 under
the Exchange Act.
(c) "Person" means any individual, corporation, partnership, joint
venture, limited liability company, or other form of business entity or
any government or agency or political subdivision thereof.
(d) Unless otherwise stated, other capitalized terms contained
herein have the meanings set forth in the Recapitalization Agreement.
9. TERMINATION. Except as otherwise provided herein, the rights granted
herein shall terminate whenever TDS and any Affiliate with which it must
aggregate its sales of restricted securities for purposes of Rule 144
promulgated under the Securities Act may sell all of their restricted securities
during a single three-month period pursuant to the provisions of Rule 144.
Except as otherwise provided herein, this Agreement shall terminate at such time
as TDS has no rights hereunder.
10. MISCELLANEOUS.
(a) SUCCESSORS. All covenants and agreements in this Agreement
by or on behalf of any of the parties hereto shall bind and inure to
the benefit of the respective successors of the parties hereto. The
rights of the parties under this Agreement may not be assigned.
Telephone and Data Systems, Inc. shall be the sole party entitled to
exercise the rights of TDS hereunder on behalf of all TDS affiliates.
(b) SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any
7
provision of this Agreement is held to be prohibited by or invalid under
applicable law, such provision shall be ineffective only to the extent of
such prohibition or invalidity, without invalidating the remainder of this
Agreement.
(c) COUNTERPARTS. This Agreement may be executed simultaneously in
two or more counterparts, any one of which need not contain the signatures
of more than one party, but all such counterparts taken together shall
constitute one and the same Agreement.
(d) DESCRIPTIVE HEADINGS. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a substantive part
of this Agreement. Whenever required by the context, any pronoun used in
this Agreement shall include the corresponding masculine, feminine, or
neuter forms, and the singular forms of nouns, pronouns, and verbs shall
include the plural and vice versa. Reference to any agreement, document,
certificate, or instrument means such agreement, document, certificate, or
instrument as the same is amended, waived, or otherwise modified from time
to time in accordance with the terms thereof and, if applicable, hereof.
Except as otherwise provided in this Agreement, words such as "herein,"
"hereunder," "hereof," and the like shall be deemed to refer to this
Agreement as a whole and not to any particular document or article,
Section, paragraph, or other portion of a document. The use of the words
"include" or "including" in this Agreement shall be by way of example
rather than by limitation. The use of the words "or," "either," or "any"
shall not be exclusive.
(e) GOVERNING LAW. The laws of the State of Minnesota shall govern
all issues and questions concerning the construction, validity,
interpretation, and enforcement of this Agreement, without giving effect
to any choice of law or conflict of law rules or provisions.
(f) NOTICES. All notices, demands, or other communications to be
given or delivered under or by reason of the provisions of this Agreement
shall be in writing and shall be deemed to have been given when delivered
personally to the recipient, telecopied to the recipient (with hard copy
sent by overnight courier in the manner provided hereunder) if sent prior
to 5:00 p.m. Minnesota time on a business day (and otherwise, on the
immediately succeeding business day), one business day after being sent to
the recipient by reputable overnight courier service (charges prepaid), or
three business days after being mailed to the recipient by certified or
registered mail, return receipt requested and postage prepaid. Such
notices, demands, and other communications shall be sent to the Company
and TDS at the address indicated below:
If to RCC: Rural Cellular Corporation
0000 Xxxxxx Xxxxxx XX
Xxxxxxxxxx, Xxxxxxxxx 00000
Attention: Chief Executive Officer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
8
with a copy to: Xxxx & Xxxxxxx
4800 Norwest Center
00 Xxxxx 0xx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx
Attention: Xxxxxxx Xxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to TDS: Telephone and Data Systems, Inc.
00 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: XxXxx X. Xxxxxxx, Chairman
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to: Sidley & Austin
Bank Xxx Xxxxx
00 Xxxxx Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. XxXxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending
party.
(g) BUSINESS DAYS. If any time period for giving notice or taking
action hereunder expires on a day which is a Saturday, Sunday, or legal
holiday in the State of Minnesota or the jurisdiction in which the
Company's or TDS's principal office is located, the time period shall
automatically be extended to the business day immediately following such
Saturday, Sunday, or legal holiday.
(h) DELIVERY BY FACSIMILE. This Agreement, the agreements referred
to herein, and each other agreement or instrument entered into in
connection herewith or therewith or contemplated hereby or thereby, and
any amendments hereto or thereto, to the extent signed and delivered by
means of a facsimile machine, shall be treated in all manner and respects
as an original agreement or instrument and shall be considered to have the
same binding legal effect as if it were the original signed version
thereof delivered in person. At the request of any party hereto or to any
such agreement or instrument, each other party hereto or thereto shall
re-execute original forms thereof and deliver them to all other parties.
No party hereto or to any such agreement or instrument shall raise the use
of a facsimile machine to deliver a signature or the fact that any
signature or agreement or instrument was transmitted or communicated
through the use of a facsimile machine as a defense to the formation or
enforceability of a contract and each such party forever waives any such
defense.
9
IN WITNESS WHEREOF, the parties have executed this Registration Agreement
as of the date first written above.
RURAL CELLULAR CORPORATION
By: /s/ Xxx X. Xxxxxxx
Its: Sr. Vice President
TELEPHONE AND DATA SYSTEMS, INC.
By: /s/ XxXxx X. Xxxxxxx
Its: Chairman
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT BETWEEN RURAL CELLULAR
CORPORATION AND TELEPHONE & DATA SYSTEMS, INC.
DATED: March 31, 2000
