Exhibit 4.1
AMENDMENT NO. 1 TO THE DEPOSIT AGREEMENT
March 8, 2021
TELEPHONE AND DATA SYSTEMS, INC.,
AS ISSUER,
COMPUTERSHARE INC. AND COMPUTERSHARE TRUST COMPANY, N.A.,
AS DEPOSITARY,
COMPUTERSHARE TRUST COMPANY, N.A.
AS REGISTRAR AND TRANSFER AGENT,
and
COMPUTERSHARE INC.
AS DIVIDEND DISBURSING AGENT AND REDEMPTION AGENT
-and-
THE HOLDERS FROM TIME TO TIME OF RECEIPTS ISSUED HEREUNDER
RELATING TO THE ISSUER’S RECEIPTS, DEPOSITARY SHARES AND RELATED
6.625% CUMULATIVE REDEEMABLE PERPETUAL PREFERRED STOCK, SERIES UU
AMENDMENT NO. 1 TO THE DEPOSIT AGREEMENT
AMENDMENT NO. 1 TO THE DEPOSIT AGREEMENT, dated March 8, 2021 (“Amendment No. 1”), among TELEPHONE AND DATA SYSTEMS, INC., a Delaware corporation (the “Company”), COMPUTERSHARE INC., a Delaware corporation (“Computershare”), and COMPUTERSHARE TRUST COMPANY, N.A., a federally chartered trust company (“Trust Company”), jointly as Depositary, the Trust Company as Registrar and as Transfer Agent, and Computershare as Dividend Disbursing Agent and Redemption Agent, and all holders from time to time of Receipts (as hereinafter defined) issued under the DEPOSIT AGREEMENT, dated March 2, 2021.
WITNESSETH:
WHEREAS, the Company and the Depositary entered into that certain Deposit Agreement dated March 2, 2021, for the deposit of the Company’s Series UU Preferred Stock and for the issuance of Depositary Shares representing a fractional interest in the Series UU Preferred Stock deposited and for the execution and delivery of Receipts evidencing such Depositary Shares;
WHEREAS, the Company and the Depositary desire to amend the Deposit Agreement;
NOW, THEREFORE, the Company and the Depositary hereby agree to amend the Deposit Agreement as follows:
ARTICLE 1
DEFINITIONS
Unless otherwise specified in this Amendment No. 1, all capitalized terms used but not defined herein shall have the meanings given to such terms in the Deposit Agreement.
“Effective Date” shall mean the date set forth above and as of which this Amendment No. 1 shall become effective.
ARTICLE 2
AMENDMENTS TO DEPOSIT AGREEMENT
SECTION 2.01 Deposit Agreement. All references in the Deposit Agreement to the terms “Deposit Agreement” shall, as of the Effective Date, refer to the Deposit Agreement, dated March 2, 2021, as amended by this Amendment No. 1.
SECTION 2.02 Amendment. The first paragraph of Section 2.02 is hereby amended by deleting such section as of the Effective Date and replacing such section with the following:
“SECTION 2.02 Deposit of Series UU Preferred Stock; Execution and Delivery of Receipts in Respect Thereof. The Company has delivered or is delivering to the Depositary a certificate or certificates, registered in the name of the Depositary and evidencing 16,800 Series UU Preferred Stock, properly endorsed or accompanied, if required by the Depositary, by a duly executed instrument of transfer or endorsement, in form satisfactory to the Depositary, together with (i) all such certifications as may be required by the Depositary in accordance with the provisions of the Deposit Agreement, (ii) a written order of the Company directing the Depositary to execute and deliver to, or upon the written order of, the Person or Persons stated in such order a Receipt or Receipts for the Depositary Shares representing such deposited Series UU Preferred Stock registered in such names specified in such written order and (iii) an opinion of counsel to the Company addressed to the Depositary containing opinions, or a letter from counsel to the Company authorizing reliance on such counsel’s opinions delivered to the underwriters named therein, relating to, (A) the existence and good standing of the Company, (B) the due authorization of the Depositary Shares and the status of the Depositary Shares as validly issued, fully paid and non-assessable, and (C) the effectiveness of any registration statement under the Securities Act relating to the Depositary Shares or whether exemption from such registration is applicable. The Depositary acknowledges receipt of the aforementioned 16,800 Series UU Preferred Stock and related documentation and agrees to hold such deposited Series UU Preferred Stock in an account to be established by the Depositary at the Depositary Office or at such other office as the Depositary shall determine. The Company hereby appoints the Trust Company as the Registrar and Transfer Agent and Computershare as the Dividend Disbursing Agent and Redemption Agent for the Series UU Preferred Stock deposited hereunder and the Depositary hereby accepts such appointment and, as such, will reflect changes in the number of shares (including any fractional shares) of deposited Series UU Preferred Stock held by it by notation, book-entry or other appropriate method. With respect to the foregoing appointments of Trust Company as Transfer Agent and Registrar and Computershare as Dividend Disbursing Agent and Redemption Agent, Trust Company and Computershare shall be entitled to the same rights, indemnities, immunities and benefits as the Depositary hereunder as if explicitly named in each such provision.
ARTICLE 3
MISCELLANEOUS
SECTION 3.01 New Receipts. All Receipts issued hereunder after the Effective Date shall be substantially in the form of the specimen Receipt attached as Exhibit A hereto. The Depositary is authorized and directed to take any and all actions deemed necessary to effect the foregoing.
SECTION 3.02 Notice of Amendment to Holders of Receipts. The Depositary is hereby directed to send notices informing the Holders of Receipts (i) of the terms of this Amendment No. 1, (ii) of the Effective Date of this Amendment No. 1, (iii) that Holders of Uncertificated Receipts do not need to take any action in connection with this Amendment No. 1, and (iv) that copies of this Amendment No. 1 may be retrieved from the Securities and Exchange Commission’s website at www.sec.gov and may be obtained from the Depositary and the Company upon request.
SECTION 3.03 Indemnification. Each of the Company and the Depositary acknowledges and agrees that the indemnification provisions of Section 5.06 of the Deposit Agreement shall apply to the actions and transactions contemplated herein.
SECTION 3.04 Ratification. Except as expressly amended hereby, the terms, covenants and conditions of the Deposit Agreement as originally executed shall remain in full force and effect.
SECTION 3.05 Counterparts. This Amendment No. 1 may be executed in any number of counterparts, and by each of the parties hereto on separate counterparts, each of which counterparts, when so executed and delivered, shall be deemed an original, but all such counterparts taken together shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Amendment No. 1 by facsimile, PDF or other secure electronic means shall be effective as delivery of a manually executed counterpart of this Amendment No. 1.
SECTION 3.06 Governing Law. This Amendment No. 1 and all rights hereunder and provisions hereof shall be governed by, and construed in accordance with, the law of the State of New York applicable to agreements made and to be performed in said State, without regard to conflicts of laws principles that would result in the application of the law of any state other than the State of New York.
[Signature Page Follows]
IN WITNESS WHEREOF, Telephone and Data Systems, Inc. and Computershare Trust Company, N.A. and Computershare Inc. have duly executed this Amendment No. 1 as of the day and year first set forth above and all holders of Receipts shall become parties hereto by and upon acceptance by them of delivery of Receipts issued in accordance with the terms hereof.
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TELEPHONE AND DATA SYSTEMS, INC.
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By:
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/s/ John M. Toomey
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Name:
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John M. Toomey
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Title:
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Vice President and Treasurer
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By:
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/s/ Peter L. Sereda
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Name:
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Peter L. Sereda
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Title:
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Executive Vice President and Chief Financial Officer
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COMPUTERSHARE TRUST COMPANY, N.A. and COMPUTERSHARE INC., as Depositary,
COMPUTERSHARE TRUST COMPANY, N.A., as Registrar and Transfer Agent, and COMPUTERSHARE INC., as Dividend Disbursing Agent and Redemption Agent
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By:
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/s/ Katherine Anderson
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Name:
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Katherine Anderson
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Title:
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Vice President, Client Services
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Exhibit A
FORM OF RECEIPT
UNLESS THIS RECEIPT IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO TELEPHONE AND DATA SYSTEMS, INC. OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY RECEIPT ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL RECEIPT SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL RECEIPT SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE DEPOSIT AGREEMENT REFERRED TO BELOW.
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH REGISTRAR AND TRANSFER AGENT MAY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.
Certificate Number: [ ]
Number of Depositary Shares: [ ]
CUSIP / ISIN NO.: 879433 787 / US8794337878
TELEPHONE AND DATA SYSTEMS, INC.
RECEIPT FOR DEPOSITARY SHARES
Each Representing a 1/1,000th Interest in a Share of
6.625% Cumulative Redeemable Perpetual Preferred Stock, Series UU
(par value $0.01 per share)
(liquidation preference $25,000 per share)
Computershare Inc. (“Computershare”), a Delaware corporation, and Computershare Trust Company, N.A., a federally chartered trust company (“Trust Company”), jointly as Depositary (the “Depositary”), hereby certify that CEDE & CO. is the registered owner of [ ] depositary shares ($ [ ] aggregate liquidation preference) (“Depositary Shares”), each Depositary Share representing a 1/1,000th interest in a share of 6.625% Cumulative Redeemable Perpetual Preferred Stock, Series UU, $0.01 par value per share and liquidation preference of $25,000 per share of Telephone and Data Systems, Inc., a Delaware corporation (the “Company”), on deposit with the Depositary, subject to the terms and entitled to the benefits of the Deposit Agreement, dated March 2, 2021, as amended by Amendment No. 1 to the Deposit Agreement, dated March 8, 2021 (together as so amended, the “Deposit Agreement”), among the Company and Computershare and Trust Company, as Depositary, the Trust Company, as Registrar and Transfer Agent, and Computershare as Dividend Disbursing Agent and Redemption Agent (each term as defined in the Deposit Agreement), and the holders from time to time of Receipts (as defined in the Deposit Agreement) for Depositary Shares. By accepting this Receipt, the holder hereof becomes a party to and agrees to be bound by all the terms and conditions of the Deposit Agreement. This Receipt shall not be valid or obligatory for any purpose or entitled to any benefits under the Deposit Agreement unless it shall have been executed by the Depositary by the manual or facsimile signature of a duly authorized officer or, if a Registrar in respect of the Receipts (other than the Depositary) shall have been appointed, by the manual signature of a duly authorized officer of such Registrar.
Dated:
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Computershare Inc. and Computershare Trust Company, N.A.,
Jointly as Depositary
By: _______________________________
Authorized Officer
Computershare Trust Company, N.A.,
as Registrar
By: _______________________________
Authorized Officer
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[FORM OF REVERSE OF RECEIPT]
The following abbreviations when used in the instructions on the face of this receipt shall be construed as though they were written out in full according to applicable laws or regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants in common
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UNIF GIFT MIN ACT -
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__________
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Custodian
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__________
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(Cust)
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(Minor)
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under Uniform Gifts to
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Minors Act
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_______________
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(State)
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UNIF TRF MIN ACT - __________ Custodian ___________ (until age______)
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(Cust) _____
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under Uniform Transfers to Minors Act(Minor) _______________ (State)
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Additional abbreviations may also be
used though not in the above list.
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ASSIGNMENT
For value received, __________________ hereby sell(s), assign(s) and transfer(s) unto
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PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE, AS APPLICABLE
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PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS
INCLUDING POSTAL ZIP CODE OF ASSIGNEE
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Depositary Shares represented by the within Receipt, and do hereby irrevocably constitute and appoint
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Attorney to transfer the said Depositary Shares on the books of the within named Depositary with full power of substitution in the premises.
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Dated _________________
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NOTICE: The signature to the assignment must correspond with the name as written upon the face of this Receipt in every particular, without alteration or enlargement or any change whatever.
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SIGNATURE GUARANTEED
NOTICE: The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations, and credit unions with membership in an approved signature guarantee medallion program), pursuant to Rule 17Ad-15 under the Securities Exchange Act of 1934.
Exhibit 5.1
March 8, 2021
Telephone and Data Systems, Inc.
30 North LaSalle Street, Suite 4000
Chicago, Illinois 60602
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We refer to the Registration Statement on Form S-3ASR (File No. 333-231181) filed on May 2, 2019, and amended by Post-Effective Amendment No. 1 thereto on February 23, 2021 (the “Amendment”) (as so amended, the “Registration Statement”), by Telephone and Data Systems, Inc., a Delaware corporation (the “Company”), with the Securities and Exchange Commission (the “SEC”) under the Securities Act of 1933, as amended (the “Securities Act”), which Registration Statement and the Amendment each became effective upon filing pursuant to Rule 462(e) under the Securities Act. Pursuant to the Registration Statement, the Company issued 16,000 shares of its 6.625% Series UU Cumulative Redeemable Perpetual Preferred Stock, $0.01 par value per share, with a liquidation preference of $25,000 per share, and 16,000,000 depositary shares, each representing a 1/1,000 interest in a share of the Series UU Preferred Stock and pursuant to the exercise of the Underwriters’ option to purchase additional depositary shares under the Underwriting Agreement, as defined below, is issuing an additional 800 shares of its 6.625% Series UU Cumulative Redeemable Perpetual Preferred Stock, $0.01 par value per share, with a liquidation preference of $25,000 per share (the “Series UU Preferred Stock”), and 800,000 depositary shares (the “Depositary Shares”), each representing a 1/1,000 interest in a share of the Series UU Preferred Stock. The Depositary Shares will be evidenced by depositary receipts (the “Depositary Receipts”) issued pursuant to the Deposit Agreement, dated as of March 2, 2021 and amended March 8, 2021 (as amended, the ”Deposit Agreement”), among the Company, Computershare Inc. and Computershare Trust Company, N.A., as depositary, and the holders from time to time of the Depositary Receipts. The Depositary Shares are to be sold by the Company pursuant to an Underwriting Agreement, dated February 23, 2021 (the “Underwriting Agreement”), between the Company and BofA Securities, Inc., Citigroup Global Markets Inc., Morgan Stanley & Co. LLC, RBC Capital Markets, LLC, UBS Securities LLC and Wells Fargo Securities, LLC, as representative of the several underwriters named in Schedule A thereto.
This opinion letter is being delivered in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.
We have examined (i) the Registration Statement, (ii) the Underwriting Agreement, (iii) the Deposit Agreement and the form of Depositary Receipt attached thereto, (iv) the Company’s restated certificate of incorporation and restated by-laws, as amended, each as currently in effect, (v) the Certificate of Designations of the Company relating to the Series UU Preferred Stock, as filed with the Secretary of State of the State of Delaware on March 1, 2021, and (vi) the resolutions adopted by the board of directors of the Company and the pricing committee thereof relating to the Registration Statement, the Underwriting Agreement, the Deposit Agreement and the issuance of the Series UU Preferred Stock and the Depositary Shares. We have also examined originals, or copies of originals certified to our satisfaction, of such agreements, documents, certificates and statements of the Company and other corporate documents and instruments, and have examined such questions of law, as we have considered relevant and necessary as a basis for this opinion letter. We have assumed the authenticity of all documents submitted to us as originals, the genuineness of all signatures, the legal capacity of all persons and the conformity with the original documents of any copies thereof submitted to us for examination. As to facts relevant to the opinions expressed herein, we have relied without independent investigation or verification upon, and assumed the accuracy and completeness of, certificates, letters and oral and written statements and representations of public officials and officers and other representatives of the Company.
Based on and subject to the foregoing and the other limitations, qualifications and assumptions set forth herein, we are of the opinion that:
1. The issuance of 800 shares of Series UU Preferred Stock covered by the Registration Statement has been duly authorized by all necessary corporate action of the Company and, when duly issued and delivered by the Company pursuant to the Underwriting Agreement and the Deposit Agreement against payment of the purchase price for the Depositary Shares as set forth in the Underwriting Agreement, such shares of Series UU Preferred Stock will be validly issued, fully paid and non-assessable.
2. The Depositary Shares, when validly issued and delivered to and paid for by the Underwriters in accordance with the Underwriting Agreement, will be validly issued and entitle the holders thereof to the rights specified in the Deposit Agreement.
Sidley Austin LLP is a limited liability partnership practicing in affiliation with other Sidley Austin partnerships
Our opinions are subject to bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, fraudulent transfer and other similar laws relating to or affecting creditors’ rights generally and to general equitable principles (regardless of whether considered in a proceeding in equity or at law), including concepts of commercial reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief. Our opinion is also subject to (i) provisions of law which may require that a judgment for money damages rendered by a court in the United States of America be expressed only in United States dollars, (ii) requirements that a claim with respect to any obligations that are denominated or payable other than in United States dollars (or a judgment denominated or payable other than in United States dollars in respect of such claim) be converted into United States dollars at a rate of exchange prevailing on a date determined pursuant to applicable law and (iii) governmental authority to limit, delay or prohibit the making of payments outside of the United States of America or in a foreign currency.
With respect to each instrument or agreement referred to in or otherwise relevant to the opinions set forth herein (each, an “Instrument”), we have assumed, to the extent relevant to the opinions set forth herein, that (i) each party to such Instrument (if not a natural person) was duly organized or formed, as the case may be, and was at all relevant times and is validly existing and in good standing under the laws of its jurisdiction of organization or formation, as the case may be, and had at all relevant times and has full right, power and authority to execute, deliver and perform its obligations under such Instrument; (ii) such Instrument has been duly authorized, executed and delivered by each party thereto; and (iii) such Instrument was at all relevant times and is a valid, binding and enforceable agreement or obligation, as the case may be, of, each party thereto, except that we make no such assumption with respect to the Company to the extent expressly covered by our opinions set forth herein.
This opinion letter is limited to the General Corporation Law of the State of Delaware and the laws of the State of New York (excluding the securities laws of the State of New York). We express no opinion as to the laws, rules or regulations of any other jurisdiction, including, without limitation, the federal laws of the United States of America or any state securities or blue sky laws.
The following persons are partners in this Firm: Walter C. D. Carlson, a trustee and beneficiary of a voting trust that controls the Company, the non-executive chairman of the board and member of the board of directors of the Company and a director of a subsidiary of the Company; Stephen P. Fitzell, the General Counsel and Assistant Secretary of the Company and the General Counsel and/or an Assistant Secretary of certain subsidiaries of the Company.
We hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement and to all references to our Firm included in or made a part of the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act.
Very truly yours,
/s/ Sidley Austin LLP
