Exhibit 4.2(c)
RURAL CELLULAR CORPORATION
REGISTRATION AGREEMENT
THIS REGISTRATION AGREEMENT is made as of April 3, 2000,
between Rural Cellular Corporation, a Minnesota corporation (the "COMPANY"), and
the Investors listed on the SCHEDULE OF INVESTORS attached hereto.
The parties to this Agreement are parties to a Preferred Stock
Purchase Agreement of even date herewith (the "PURCHASE AGREEMENT"). In order to
induce the Investors to enter into the Purchase 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
Purchase Agreement. Unless otherwise provided in this Agreement, capitalized
terms used herein shall have the meanings set forth in paragraph 8 hereof.
The parties hereto agree as follows:
1. DEMAND REGISTRATIONS.
1A. REQUESTS FOR REGISTRATION. At any time after the third
anniversary of the Closing under the Purchase Agreement, the holders of a
majority of the Registrable Securities then outstanding may request up to three
registrations under the Securities Act of all or any portion of their
Registrable Securities on Form S-1 or any similar long-form registration as the
Company may elect ("LONG-FORM REGISTRATIONS"), and the holders of at least
one-third of the Registrable Securities then outstanding may request
registration under the Securities Act of all or any portion of their Registrable
Securities on Form S-3 or any similar short-form registration as the Company may
elect ("SHORT-FORM REGISTRATIONS"), if available; 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 $25 million in any Long-Form Registration and at least $5 million in any
Short-Form Registration.
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.
Within ten business days after receipt of any Demand Notice, the Company shall
give written notice of such requested registration to all other holders of
Registrable Securities and, subject to the terms of paragraph 1(e) hereof, shall
include in such registration all Registrable Securities with respect to which
the Company has received written requests for inclusion therein within 15
business days after the delivery of the Company's notice in accordance with
Section 10(k) hereof.
1B. DEMAND EXPENSES. The Registration Expenses (as defined in
Section 5(a) hereof) in all Demand Registrations shall be paid by the Company.
1C. LONG-FORM REGISTRATIONS. A registration shall not count as
one of the permitted Long-Form Registrations until it has become effective;
PROVIDED THAT in any event the Company shall pay all Registration Expenses in
connection with any registration initiated as a Demand Registration whether or
not it has become effective and whether or not such registration has counted as
one of the permitted Long-Form Registrations, but solely to the extent provided
in Section 5(b) below. All Long-Form Registrations shall be underwritten
registrations unless otherwise requested by the holders of a majority of the
Registrable Securities included in the applicable Long- Form Registration.
1D. SHORT-FORM REGISTRATIONS. Demand Registrations shall be
Short-Form Registrations whenever the Company is permitted to use any applicable
short form and if the managing underwriters (if any) agree to the use of a
Short-Form Registration, and the Company shall use commercially reasonable
efforts to make Short-Form Registrations on Form S-3 available for the sale of
Registrable Securities. The holders of a majority of the Registrable Securities
then outstanding may, in connection with any Demand Registration requested by
such holders that is a Short-Form Registration, require the Company to file such
Short-Form Registration with the Securities and Exchange Commission in
accordance with and pursuant to Rule 415 promulgated under the Securities Act
(or any successor rule then in effect) (a "SHELF REGISTRATION").
1E. PRIORITY ON DEMAND REGISTRATIONS. The Company shall not
include in any Demand Registration any securities which are not Registrable
Securities without the prior written consent of the holders of a majority of the
Registrable Securities included in such registration. If a Demand Registration
is an underwritten offering and the managing underwriters advise the Company in
writing that in their opinion the number of Registrable Securities and, if
permitted hereunder, other securities requested to be included in such offering
exceeds the number of Registrable Securities and other securities, if any, which
can be sold in an orderly manner in such offering within
a price range acceptable to the holders of a majority of the Registrable
Securities requested to be included in such offering, the Company shall include
in such registration prior to the inclusion of any securities which are not
Registrable Securities the number of Registrable Securities requested to be
included which in the opinion of such underwriters can be sold in an orderly
manner within the price range of such offering, pro rata among the respective
holders thereof on the basis of the amount of Registrable Securities owned by
each such holder.
1F. RESTRICTIONS ON DEMAND REGISTRATIONS. The Company shall
not be obligated to effect any Demand Registration within 365 days after the
effective date of a previous Demand Registration or a previous registration in
which the holders of Registrable Securities were given piggyback rights pursuant
to paragraph 2 and in which such holders were able to register and sell at least
80% of the Registrable Securities requested to be included therein.
The Company may postpone for up to 180 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, the holders of Registrable Securities initially
requesting such Demand Registration shall be entitled to withdraw such request
and, if such request is withdrawn, such Demand Registration shall not count as
one of the permitted Long-Form 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.
1G. SELECTION OF UNDERWRITERS. The holders of a majority of
the Registrable Securities included in any Demand Registration 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.
1H. OTHER REGISTRATION RIGHTS. The Company represents and
warrants that it is not a party to, or otherwise subject to, any other agreement
granting registration rights to any other Person with respect to any securities
of the Company, except as set forth on the attached SCHEDULE OF OTHER
REGISTRATION RIGHTS. Except as provided in this Agreement, the Company shall not
grant to any Person the right to request the Company to register any equity
securities of the Company, or any securities convertible or exchangeable into or
exercisable for such securities, without the prior written consent of the
holders of a majority of the Registrable Securities; PROVIDED THAT the Company
may grant rights to other Persons to (i) participate in Piggyback Registrations
so long as such rights are subordinate to or pari passu with the rights of the
holders of Registrable Securities with respect to such Piggyback Registrations
as provided in paragraphs 2(c) and 2(d) below and (ii) request registrations so
long as the holders of Registrable Securities are entitled to participate in any
such registrations in the manner described in Section 2 below. Any securities
(other than Registrable Securities) as to which the Company has granted
contractual registration rights shall be referred to as "OTHER SECURITIES."
2. PIGGYBACK REGISTRATIONS.
2A. 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 in Form S-4 or
S-8 or a successor form (a "PIGGYBACK REGISTRATION"), the Company shall give
prompt written notice to all holders of Registrable Securities 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 written requests for inclusion therein
within 20 days after the receipt of the Company's notice.
2B. PIGGYBACK EXPENSES. The Registration Expenses in all
Piggyback Registrations shall be paid by the Company.
2C. 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, and
(ii) second, the Registrable Securities requested to be included in such
registration and the Other Securities requested to be included in such
registration, pro rata among the holders of any such securities on the basis of
the number of shares requested to be included therein by each such holder.
2D. 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, and (ii) second, the Registrable Securities requested to be
included in such registration and the Other Securities requested to be included
in such registration, pro rata among the holders of any such securities on the
basis of the number of shares requested to be included therein by each such
holder.
2E. SELECTION OF UNDERWRITERS. If any Piggyback Registration
is an underwritten offering, the selection of investment banker(s) and
manager(s) for the offering shall be made by the Company after consulting in
good faith with the holders of a majority of the Registrable Securities included
in such Piggyback Registration.
2F. OTHER REGISTRATIONS. If the Company has previously filed a
registration statement with respect to Registrable Securities pursuant to
paragraph 1 or pursuant to this paragraph 2, and if such previous registration
has not been withdrawn or abandoned, the Company shall not file or cause to be
effected any other registration of any of its equity securities or securities
convertible or exchangeable into or exercisable for its equity securities under
the Securities Act (except on Form ▇-▇, ▇▇▇▇ ▇-▇ or any successor form), whether
on its own behalf or at the request of any holder or holders of such securities,
until a period of at least 90 days has elapsed from the effective date of such
previous registration.
3. HOLDBACK AGREEMENTS.
3A. HOLDERS OF REGISTRABLE SECURITIES. Each holder of
Registrable Securities 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, the seven days prior to and the
90-day period beginning on the effective date of such registration and (ii) upon
notice from the Company of the commencement of an underwritten distribution in
connection with any Shelf Registration, the seven days prior to and the 90-day
period beginning on 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.
3B. The Company (i) shall not effect any public sale or
distribution of its equity securities, or any securities convertible into or
exchangeable or exercisable for such securities (except pursuant to registration
on Form ▇-▇, ▇▇▇▇ ▇-▇ or any successor form), during (A) with respect to any
underwritten Demand Registration or any underwritten Piggyback Registration in
which Registrable Securities are included, the seven days prior to and the
90-day period beginning on the effective date of such registration and (B) upon
notice from any holder(s) of Registrable Securities subject to a Shelf
Registration that such holder(s) intend to effect a distribution of Registrable
Securities pursuant to such Shelf Registration (upon receipt of which, the
Company will promptly notify all other holders of Registrable Securities of the
date of commencement of such distribution), the seven days prior to and the
90-day period beginning on the date of commencement of such distribution and
(ii) shall cause each holder of its Common Stock, or any securities convertible
into or exchangeable or exercisable for Common Stock, purchased from the Company
at any time after the date of this Agreement (other than in a registered public
offering or pursuant to Rule 144 or pursuant to equity subscription agreements,
stock option agreements, stock appreciation rights, phantom stock plans or
similar rights or plans in effect on the date of this Agreement) to agree not to
effect any public sale or distribution (including sales pursuant to Rule 144) of
any such securities during such period, 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 the holders of
Registrable Securities have 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:
4A. 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 the holders of a
majority of the Registrable Securities covered by such registration statement
copies of all such documents proposed to be filed, and the Company shall in good
faith consider any comments of such counsel);
4B. notify each holder of Registrable Securities 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 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;
4C. furnish to each seller of Registrable Securities 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 such seller may reasonably request in order to
facilitate the disposition of the Registrable Securities owned by such seller;
4D. use commercially reasonable efforts to register or qualify
such Registrable Securities under such other securities or blue sky laws of such
jurisdictions as any seller reasonably requests and to do any and all other acts
and things which may be reasonably necessary or advisable to enable such seller
to consummate the disposition in such jurisdictions of the Registrable
Securities owned by such seller (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);
4E. notify each seller of such Registrable Securities, at any
time when a prospectus relating thereto 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, at the request of any such seller, 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;
4F. cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed and, if not so listed, to be listed on the NASD automated quotation
system and, if listed on the NASD automated quotation system, use commercially
reasonable efforts to secure designation of all such Registrable Securities
covered by such registration statement as a NASDAQ "national market system
security" within the meaning of Rule 11Aa2-1 of the Securities and Exchange
Commission or, failing that, to secure NASDAQ authorization for such Registrable
Securities and, without limiting the generality of the foregoing, to arrange for
at least two market makers to register as such with respect to such Registrable
Securities with the NASD;
4G. provide a transfer agent and registrar for all such
Registrable Securities not later than the effective date of such registration
statement;
4H. enter into such customary agreements (including
underwriting agreements in customary form) and take all such other actions as
the holders of a majority of the Registrable Securities being sold or the
underwriters, if any, reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities (including preparing for and
participating in such number of "road shows" as the underwriters managing such
offering may reasonably request);
4I. make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent retained by
any such seller or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the Company's
officers, directors, employees and independent accountants to supply all
information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement;
4J. otherwise use its best efforts to comply with all
applicable rules and regulations of the Securities and Exchange Commission, and
make available to its security holders, as soon as reasonably practicable, an
earnings statement covering the period of at least twelve months beginning with
the first day of the Company's first full calendar quarter after the effective
date of the registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
4K. permit any holder of Registrable Securities which holder,
in its sole and exclusive judgment, might be deemed to be an underwriter or a
controlling person of the Company, to participate in the preparation of such
registration or comparable statement and to require the insertion therein of
material, furnished to the Company in writing, which in the reasonable judgment
of such holder and its counsel should be included; PROVIDED THAT such holder
shall indemnify and hold harmless the Company from any liability arising from
the inclusion of such material or the receiving or incurring thereof in the
manner and on the term set forth in Section 6(b);
4L. 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;
4M. use commercially reasonable efforts to cause such
Registrable Securities covered by such registration statement to be registered
with or approved by such other governmental agencies or authorities as may be
necessary to enable the sellers thereof to consummate the disposition of such
Registrable Securities; and
4N. in the case of an underwritten offering, and if required
by the underwriting agreement with respect thereto, obtain a cold comfort letter
from the Company's independent public accountant in the form and covering such
matters as may be required by such underwriting agreement.
5. REGISTRATION EXPENSES.
5A. 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 except
as provided in paragraph (b) not fees and disbursements of counsel for any
holder of Registrable Securities) 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
(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, 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 NASD automated
quotation system.
5B. In connection with (i) each registration initiated as a
Long-Form Registration (whether or not such registration is declared effective
or counts as one of the permitted Long-Form Registrations) until the Company has
consummated a Demand Registration that counts as one of the permitted Long-Form
Registrations hereunder and (ii) the first Demand Registration the Company
consummates that counts as one of the permitted Long-Form Registrations
hereunder, the Company shall reimburse the holders of Registrable Securities
included in such registration for the reasonable fees and disbursements of one
counsel chosen by the holders of a majority of the Registrable Securities
included in such registration. Notwithstanding the foregoing, the Company shall
not be required to reimburse the holders of Registrable Securities for any fees
or disbursements of counsel with respect to any registration terminated by the
holders due to unacceptable pricing or underwriter cutbacks.
5C. 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, 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.
5D. Any obligation to pay Registration Expenses or other
expenses provided for in this Agreement shall survive the termination of the
rights of any particular holder of Registrable Securities and the termination of
this Agreement.
6. INDEMNIFICATION.
6A. The Company agrees to indemnify, to the extent permitted
by law, each holder of Registrable Securities, its officers, directors,
employees, agents, Affiliates and each Person who controls such holder (within
the meaning of the Securities Act and the Securities 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 such holder expressly for use
therein or by such holder's failure to deliver a copy of the registration
statement or prospectus or any amendments or supplements thereto after the
Company has furnished such holder with such number of copies of the same as was
previously requested by such holder. 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 Securities Exchange Act) to
substantially the same extent as provided above with respect to the
indemnification of the holders of Registrable Securities.
6B. In connection with any registration statement in which a
holder of Registrable Securities is participating, each such holder 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
Securities Exchange Act) against any losses, claims, damages, liabilities and
expenses resulting from 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 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 such holder; PROVIDED THAT the obligation to indemnify shall be
individual and ratable, not joint and several, for each holder and shall be
limited to the net amount of proceeds received by such holder from the sale of
Registrable Securities pursuant to such registration statement.
6C. 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. If such defense is assumed,
the indemnifying party shall not be subject to any liability for any settlement
made by the indemnified party without its consent (but such consent shall not be
unreasonably withheld). 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.
6D. 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, the termination of the rights of any particular holder
of Registrable 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 no
holder of Registrable Securities included
in any underwritten registration shall be required to make any representations
or warranties to the Company or the underwriters (other than representations and
warranties regarding such holder, such holder's title to the securities and such
holder's 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.
8. DEFINITIONS.
8A. "REGISTRABLE SECURITIES" means (i) any Class A Common
Stock issued upon the conversion of any Preferred Stock issued pursuant to the
Purchase Agreement and (ii) any Class A 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, including exercising any rights or meeting any
threshold tests hereunder, a Person shall be deemed to hold any Registrable
Securities issuable upon conversion of any Preferred Stock on an as-if-converted
basis, and such Registrable Securities shall be deemed to be in existence
without taking into account any restriction or limitation on the conversion
thereof.
8B. Unless otherwise stated, other capitalized terms contained
herein have the meanings set forth in the Purchase Agreement.
9. TERMINATION. Except as otherwise provided herein, the
rights granted to any particular holder of Registrable Securities herein shall
terminate whenever such holder and any Affiliate with which it must aggregate
its Registrable Securities for purposes of Rule 144 promulgated under the
Securities Act may sell all of their Registrable 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 no holder of
Registrable Securities has any rights hereunder.
10. MISCELLANEOUS.
10A. NO INCONSISTENT AGREEMENTS. The Company shall not
hereafter enter into any agreement with respect to its securities which is
inconsistent with or violates the rights granted to the holders of Registrable
Securities in this Agreement.
10B. CURRENT PUBLIC INFORMATION. The Company shall file all
reports required to be filed by it under the Securities Act and the Securities
Exchange Act and the rules and regulations adopted by the Securities and
Exchange Commission thereunder and shall take such further action as any holder
or holders of Registrable Securities may reasonably request, all to the extent
required to enable such holders to sell Registrable Securities pursuant to Rule
144 adopted by the Securities and Exchange Commission under the Securities Act
(as such rule may be amended from time to time) or any similar rule or
regulation hereafter adopted by the Securities and Exchange Commission. Upon
request, the Company shall deliver to any holder of Registrable Securities a
written statement as to whether it has complied with such requirements. The
Company shall at all times cause the Class A Common Stock into which the
Preferred Stock is convertible to be listed on one or more of the New York Stock
Exchange, the American Stock Exchange or the NASDAQ National Market System.
10C. ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES. Except for
actions taken by the Company or its board of directors in the exercise of their
fiduciary duties and prudent business judgment, the Company shall not take any
action, or permit any change to occur, with respect to its securities which
would materially and adversely affect the ability of the holders of Registrable
Securities to include such Registrable Securities in a registration undertaken
pursuant to this Agreement or which would materially and adversely affect the
marketability of such Registrable Securities in any such registration
(including, without limitation, effecting a stock split or a combination of
shares).
10D. REMEDIES. Any Person having rights under any provision of
this Agreement shall be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that, in addition to any other rights and
remedies existing in its favor, any party shall be entitled to specific
performance and/or other injunctive relief
from any court of law or equity of competent jurisdiction (without posting any
bond or other security) in order to enforce or prevent violation of the
provisions of this Agreement.
10E. CONSENT TO AMENDMENTS. Except as otherwise expressly
provided herein, the provisions of this Agreement may be amended or modified and
the Company may take any action herein prohibited, or omit to perform any act
herein required to be performed by it, only if the Company has obtained the
written consent of the holders of a majority of the Registrable Securities
outstanding at the time the amendment or waiver becomes effective; PROVIDED THAT
if any such amendment, modification or waiver would adversely affect any holder
of Registrable Securities relative to the holders of Registrable Securities
voting in favor of such amendment, modification, or waiver, such amendment,
modification or waiver shall also require the written consent of the holders of
a majority of the outstanding Registrable Securities held by all holders so
adversely affected; PROVIDED FURTHER that if any such amendment, modification or
waiver is to a provision in this Agreement that requires a specific vote to take
an action thereunder or to take an action with respect to the matters described
therein, such amendment, modification or waiver shall not be effective unless
such vote is obtained with respect to such amendment, modification or waiver. No
other course of dealing between the Company and the holder of any Registrable
Securities or any delay in exercising any rights hereunder shall operate as a
waiver of any rights of any such holders. For purposes of this Agreement,
Registrable Securities held by the Company or any Subsidiaries shall not be
deemed to be outstanding.
10F. SUCCESSORS AND ASSIGNS. 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 and assigns of the parties hereto
whether so expressed or not. In addition, whether or not any express assignment
has been made, the provisions of this Agreement which are for the benefit of
purchasers or holders of Registrable Securities are also for the benefit of, and
enforceable by, any subsequent holder of Registrable Securities. Notwithstanding
the foregoing, the registration rights granted to the Investors pursuant to this
Agreement may be transferred to a party that is not an Affiliate of such
Investor only if (i) as a result of such transfer such party and its Affiliates
acquire at least 25% of the Registrable Securities held by such Investor as of
the date hereof, (ii) the transfer of the Registrable Securities complies with
all restrictions on the transfer of such securities found in the Purchase
Agreement and any other agreement contemplated thereby and (iii) the Investor
provides written notice to the Company of such assignment no less than ten
business days prior to the transfer of the Registrable Securities.
10G. 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 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.
10H. 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.
10I. 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.
10J. GOVERNING LAW. The corporate law of the State of
Minnesota shall govern all issues and questions concerning the relative rights
of the Company and its stockholders. All other issues and questions concerning
the construction, validity, interpretation and enforcement of this Agreement and
the exhibits and schedules hereto shall be governed by, and construed in
accordance with, the laws of the State of New York, without giving effect to any
choice of law or conflict of law rules or provisions (whether of the State of
New York or any other jurisdiction) that would cause the application of the laws
of any jurisdiction other than the State of New York.
10K. 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 4:00 p.m.
New York 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 each Investor at the address indicated on the SCHEDULE OF
INVESTORS and to the Company at the address indicated below:
Rural Cellular Corporation
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▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: chief executive officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
WITH COPIES TO:
▇▇▇▇ & ▇▇▇▇▇▇▇
4800 Norwest Center
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▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
and
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Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
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.
10L. 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
principal office is located, the time period shall automatically be extended to
the business day immediately following such Saturday, Sunday or legal holiday.
10M. 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 reexecute originals 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.
* * * * *
IN WITNESS WHEREOF, the parties have executed this
Registration Agreement as of the date first written above.
THE COMPANY: RURAL CELLULAR CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Its: Sr. Vice President and CFO
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INVESTORS: MADISON DEARBORN CAPITAL
PARTNERS III, L.P.
By Madison Dearborn Partners III, L.P.,
its General Partner
By Madison Dearborn Partners, LLC,
its General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Its Managing Director
MADISON DEARBORN SPECIAL
EQUITY III, L.P.
By Madison Dearborn Partners III, L.P.,
its General Partner
By Madison Dearborn Partners, LLC,
its General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Its Managing Director
SPECIAL ADVISORS FUND I, LLC
By Madison Dearborn Partners III, L.P.,
its Manager
By Madison Dearborn Partners, LLC,
its General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Its Managing Director
BOSTON VENTURES LIMITED
PARTNERSHIP V
By Boston Ventures Company V, L.L.C.
its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Its: Managing Director
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(Continuation of Signature Page to Registration Agreement)
TORONTO DOMINION INVESTMENTS,
INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Its Vice President
(Continuation of Signature Page to Registration Agreement)
SCHEDULE OF INVESTORS
NAME AND ADDRESS
Madison Dearborn Capital Partners III, L.P.
Three First National Plaza, Suite 3800
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Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Madison Dearborn Special Equity III, L.P.
Three First National Plaza, Suite 3800
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Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Special Advisors Fund I, L.P.
Three First National Plaza, Suite 3800
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Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
EACH WITH A COPY TO:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Boston Ventures Limited Partnership V
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Attention: ▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
TD Investments Inc.
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Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
WITH A COPY TO:
TD Capital
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Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
SCHEDULE OF OTHER REGISTRATION RIGHTS
Registration rights granted to Telephone & Data Systems, Inc. pursuant to that
certain Registration Rights Agreement, dated as of March 31, 2000, by and
between Rural Cellular Corporation, a Minnesota corporation, and Telephone &
Data Systems, Inc., a Delaware corporation.