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EXHIBIT 4.4
REGISTRATION RIGHTS AGREEMENT
THIS
REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is made as of the
1st
day of October, 2004, by and
among Horizon PCS, Inc., a Delaware corporation
("Horizon"), and Apollo
Investment Fund IV, L.P. and Apollo Overseas Partners
IV, L.P., and their
affiliated assignees (collectively, the "APOLLO
HOLDERS")
(the Apollo Holders, and any
person or other entity to which any of the
foregoing assigns any of its
interests hereunder are individually a "HOLDER" and
collectively
"HOLDERS").
RECITALS:
WHEREAS, on
August 15, 2003, the Company and its subsidiaries,
Horizon
Personal Communications, Inc.
and Bright Personal Communications Services, LLC,
filed Chapter 11 bankruptcy
petitions in the United States Bankruptcy Court for
the Southern District of Ohio
(the "Bankruptcy Court") for the purpose of
effecting a
court-administered reorganization;
WHEREAS, on June
27, 2004, the Company filed its plan of reorganization,
as
it may be further amended
(the "Plan of Reorganization"), with the Bankruptcy
Court;
WHEREAS, the
Plan of Reorganization provides, among other things, that
upon
confirmation thereof by the
Bankruptcy Court, certain existing indebtedness of
the Company will be
cancelled, and the holders of such indebtedness will
receive
shares of common stock, par
value $0.001 per share, of the Company (the "Common
Stock") on a pro rata
basis;
WHEREAS,
simultaneously with the execution of this Agreement, the Plan
of
Reorganization and the
transactions contemplated thereby are being consummated;
WHEREAS, as a
result of the consummation of the transactions
contemplated
by the Plan of
Reorganization, the Apollo Holders are receiving newly
issued
shares of Common Stock;
and
WHEREAS, the
Company has agreed to provide the Apollo Holders with
certain
registration rights with
respect to their Registrable Securities (as defined
below), upon the terms and
subject to the conditions set forth herein.
NOW, THEREFORE,
in consideration of the mutual promises, covenants,
representations and
warranties contained herein and of the mutual benefits to
be
derived herefrom, and
intending to be legally bound, the parties hereto agree
as
follows:
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ARTICLE I
DEMAND REGISTRATIONS
(a) Demand
Requests and Notice Procedure. At any time after the
execution
of this Agreement, holders in
the aggregate of at least a majority in interest
of the Registrable Securities
(the "REQUESTING Holders") shall have the right to
request in writing that
Horizon effect a public offering of Registrable
Securities (a "DEMAND
REQUEST"). The Demand Request transmitted by the
Requesting Holders shall (x)
specify the number of Registrable Securities which
each Requesting Holder
intends to sell or dispose of and (y) state the intended
method or methods by which
the Requesting Holder intends to sell or dispose of
such Registrable Securities.
Upon receipt of a Demand Request pursuant to this
Article I, Horizon
shall:
(i) give notice of such requested registration to all other Holders
of
Registrable Securities within
ten days after such Demand Request, and use its
best efforts to cause to be
filed within sixty (60) days (but in any event no
later than seventy-five (75)
days) after the date of delivery to Horizon of the
Demand Request, a
registration statement covering (subject to Article I(e))
the
Registrable Securities
requested to be registered by the Requesting Holders and
the Registrable Securities
requested to be included by any other holders of
Registrable Securities who
request, within 20 days after the mailing of the
Company's notice, that their
Registrable Securities be included in the
registration statement; such
registration statement to provide for the
registration under the
Securities Act of 1933, as amended (the "SECURITIES
ACT")
of such Registrable
Securities to the extent necessary to permit the
disposition
of such Registrable
Securities so to be registered in accordance with the
intended method of
distribution specified in such Demand Request; provided,
however, that in no event
shall Horizon be required to file a registration
statement hereunder prior to
March 22, 2005.
(ii) use its best efforts to have such registration statement
declared
effective by the Securities
and Exchange Commission (the "SEC") as soon as
practicable thereafter;
and
(iii)
subject to its performance of its obligations under the
Registration Rights Agreement
dated July 19, 2004 (the "NOTES REGISTRATION
RIGHTS AGREEMENT") pertaining
to Horizon's 11?% Senior Notes due 2012 (the
"SENIOR NOTES"), refrain from
filing any other registration statements, other
than a registration statement
on Form S-4 or S-8 (or similar or successor
forms), with respect to any
other securities of Horizon, (i) if a registration
statement is being filed in
connection with a Demand Request by the Holders for
an underwritten public
offering, until such date that is the earlier of: (A)
one
hundred eighty (180) days
following effectiveness of the registration statement
filed in response to the
Demand Request or (B) the lock up period, if any,
required by the underwriters
of the offering, or (ii) if a registration
statement is being filed in
connection with a Demand Request by the Holders for
a public offering that is not
proposed to be underwritten until such date which
is ninety (90) days following
effectiveness of the registration statement filed
in response to the Demand
Request.
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"REGISTRABLE SECURITIES" for
purposes of this Agreement means any and all (a)
shares of COMMON STOCK issued
to the Apollo Holders pursuant to the Plan of
Reorganization and (b) any
shares of Common Stock issued or issuable directly or
indirectly with respect to
the securities referred to in clause (a) by way of
stock dividend or stock split
or in connection with a combination of shares,
recapitalization, merger,
consolidation or other reorganization. As to any
particular shares
constituting Registrable Securities, such shares will cease
to
be Registrable Securities
when they have (x) been effectively registered under
the Securities Act and
disposed of in accordance with a registration statement
covering them, (y) been sold
to the public pursuant to Rule 144 (or by similar
provision under the
Securities Act) or (z) become eligible for sale without
volume or method of sale
limitation pursuant to Rule 144.
(b) Effective
Registration Statement. A registration requested pursuant
to
a Demand Request shall not be
deemed to have been effected unless a registration
statement with respect
thereto has become effective and remained effective in
compliance with the
provisions of the Securities Act with respect to the
disposition of all
Registrable Securities covered by such registration
statement
for the period of time
required hereunder.
(c) Selection of
Underwriters. In the event that Horizon is required to
file a registration statement
covering any Registrable Securities pursuant to
this Article I and the
proposed offering is to be an underwritten public
offering, the managing
underwriter shall be one or more reputable investment
banks selected by a majority
in interest of the Requesting Holders and
reasonably acceptable to
Horizon, which consent shall not be unreasonably
withheld, delayed or
conditioned.
(d) Priority for
Demand Registration. If the managing underwriter of an
underwritten public offering
pursuant to a registration statement filed to
satisfy a Demand Request
determines and advises in writing that the inclusion of
any securities proposed to be
included by Horizon and any other holders of the
Company's securities in the
underwritten public offering would adversely impact
the offering of the
Requesting Holders' Registrable Securities, then Horizon
and
other holders of Registrable
Securities shall not be permitted to include any
securities in excess of the
amount, if any, of securities which the managing
underwriter of such
underwritten public offering shall reasonably and in
good
faith agree in writing to
include in such public offering in addition to the
amount to be registered for
the Requesting Holder(s).
If the managing underwriter of an underwritten public
offering
pursuant to this Article I
shall determine and advise in writing that the
inclusion of all Registrable
Securities requested to be included in such
underwriting would adversely
impact the offering, then the number of Registrable
Securities to be included in
the offering by each Holder shall be reduced on a
proportionate basis, based
upon the amount of Registrable Securities to be
included in such offering, or
upon such other basis as shall be agreed to by a
majority in interest of the
Holders requesting that Registrable Securities be
included in the
underwriting.
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(e) Limitation
on Demand Registrations.
(i) Horizon may delay making a filing of a registration statement
or
an amendment thereof or
supplement thereto or taking action in connection
therewith by not more than
sixty (60) days if Horizon, prior to the time it
would otherwise have been
required to file such registration statement,
amendment or supplement or
take such action pursuant to this Article I in
connection with a Demand
Request determines in good faith that the filing of
such registration statement,
amendment or supplement in the reasonable judgment
of Horizon, would be
seriously detrimental to Horizon or would otherwise
materially adversely affect a
financing, acquisition, disposition, merger or
other material transaction (a
"VALID BUSINESS REASON"); provided, however, that
such right to delay such
filing or other action shall be exercised by Horizon
not more than once in any
twelve (12) month period and Horizon shall only have
the right to delay a such
filing or other action for so long as such Valid
Business Reason exists (but
not more than sixty (60) days); provided that, with
respect to a delay in filing
an amendment or supplement to an effective
registration statement, the
obligations of Horizon with respect to maintaining
such registration statement
current and effective shall be extended by a period
of days equal to the period
said suspension is in effect. Notwithstanding the
foregoing, in no event may
Horizon delay pursuant to this Article I(e) the
filing of a registration
statement requested by Requesting Holders pursuant to
Article I(a) on or before
March 1, 2005 (the "Initial Registration Statement").
(ii) In no event shall Horizon be required to file more than
four
registration statements
pursuant to this Article I. In addition, the Holders
agree not to make a Demand
Request until six (6) months after the effective date
of a registration statement
relating to a prior Demand Request.
(f) Liquidated
Damages.
(i) Delay in Effectiveness of Registration Statement.
Notwithstanding
any other provision of this
Agreement, in the event that a registration
statement is not filed with
the SEC within seventy-five (75) days of the date of
delivery to Horizon of the
Demand Request (March 22, 2005 for a request made
prior to January 6, 2005),
for reasons other than the exercise by Horizon of its
rights under Article I(e)
hereof, or is not declared effective within sixty (60)
days following the date of
filing by Horizon of a registration statement with
the SEC pursuant to Article I
(or, in the event of a review of the registration
statement by the SEC, within
one hundred twenty (120) days following the date of
filing by Horizon of a
registration statement with the SEC pursuant to Article
I), the Company shall pay to
the Apollo Holders liquidated damages (in addition
to the rights and remedies
available to the Apollo Holders under applicable law
and this Agreement with
respect to any other breach hereunder) at a rate equal
to $100,000 for every thirty
(30) days after such failure (pro rata for partial
months). Such liquidated
damages shall be payable monthly in cash. The parties
acknowledge that,
notwithstanding anything to the contrary contained
herein,
Horizon does not have the
right, for a Valid Business Reason, to delay the
filing of the Initial
Registration Statement.
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(ii) Lapse in Effectiveness of Registration Statement.
Notwithstanding
any other provision of this
Agreement, if, for reasons other than the exercise
by Horizon of its rights
under Article I(e) hereof, the registration statement
filed pursuant to Article I
and declared effective ceases to be effective or
usable or the prospectus
included in the registration statement ceases to be
usable, in either case, in
connection with resales of Registrable Securities
during the ninety (90) day
period commencing on the date on which the
registration statement is
declared effective, without such lapse being cured
within ten (10) business days
(the "CURE PERIOD"), by a post-effective amendment
to the registration
statement, a supplement to the prospectus or a report
filed
with the SEC pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
that cures such lapse, then
the Company shall pay to the Apollo Holders
liquidated damages (in
addition to the rights and remedies available to the
Apollo Holders under
applicable law and this Agreement with respect to any
other
breach hereunder) for the
period from and including the first day following the
expiration of the Cure Period
until, but excluding, the date on which such
failure is cured, at a rate
equal to $100,000 for every thirty (30) days after
such failure (pro rata for
partial months). Such liquidated damages shall be
payable monthly in cash. The
parties acknowledge that, notwithstanding anything
to the contrary contained
herein, Horizon does not have the right, for a Valid
Business Reason, to suspend
the effectiveness or use of the Initial Registration
Statement.
(iii) Supremacy. In the event of inconsistencies or conflicts
between
the provisions of this
Section (f) of Article I and any other provision of this
Agreement, the provisions of
this Section (f) of Article I shall prevail.
ARTICLE II
PIGGYBACK REGISTRATION
(a) Right to
Include Registrable Securities. Each time that Horizon
proposes for any reason to
register any of its Common Stock under the Securities
Act (a "PROPOSED
REGISTRATION"), other than pursuant to a registration
statement
on Form S-4 or Form S-8 (or
similar or successor forms), or another Form in
connection with a transaction
in which Registrable Securities are not eligible
for inclusion, Horizon shall
promptly give written notice of such Proposed
Registration to all of the
Holders of Registrable Securities (which notice shall
be given not less than thirty
(30) days prior to the expected effective date of
Horizon's registration
statement) and shall offer such Holders the right to
request inclusion of any of
such Holder's Registrable Securities in the Proposed
Registration. No registration
pursuant to this Article II shall relieve Horizon
of its obligation to register
Registrable Securities pursuant to a Demand
Request, as contemplated by
Article I hereof.
(b) Piggyback
Procedure. Each Holder of Registrable Securities shall
have
twenty (20) days from the
date of mailing of such notice to deliver to Horizon a
written request specifying
the number of Registrable Securities such Holder
intends to sell. Any Holder
shall have the right to withdraw such Holder's
request for inclusion of such
Holder's Registrable Securities in any
registration statement
pursuant to this Article II by giving written notice to
Horizon of such withdrawal.
Subject to subsection (d) below of
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this Article II, Horizon
shall include in such registration statement all such
Registrable Securities so
requested to be included therein; provided, however,
that Horizon may at any time
withdraw or cease proceeding with any such Proposed
Registration if it shall at
the same time withdraw or cease proceeding with the
registration of all other
shares of Common Stock originally proposed to be
registered.
(c) Selection of
Underwriters. The managing underwriter for any Proposed
Registration that involves an
underwritten public offering shall be one or more
reputable investment banks
selected by Horizon.
(d) Priority for
Piggyback Registration. If the managing underwriter of
an
underwritten Proposed
Registration determines and advises in writing that the
inclusion of all Registrable
Securities proposed to be included by the Holders
of Registrable Securities in
the underwritten public offering would adversely
impact the offering of
Horizon's securities, then the Holders of Registrable
Securities shall not be
permitted to include any Registrable Securities in
excess of the amount, if any,
of Registrable Securities which the managing
underwriter of such
underwritten public offering shall reasonably and in
good
faith agree in writing to
include in such public offering in addition to the
amount of securities to be
registered for Horizon. It is acknowledged by the
parties hereto that pursuant
to the foregoing provision, the securities to be
included in a registration
initiated by Horizon shall be allocated:
(i) first, to Horizon;
(ii) second, to the Holders of Registrable Securities, pari passu,
on
a pro rata basis on the
number of Registrable Securities requested to be
included in the
registration;
(iii) third, to holders of registration rights granted other
than
pursuant to this Agreement;
and
(iv) fourth, to all others requesting securities to be
included
therein.
If as a result of the provision of this Article II, a Holder shall
not
be entitled to include all of
its Registrable Securities in a registration that
such Holder has requested to
be so included, such Holder may withdraw such
Holder's request to include
Registrable Securities in such registration
statement.
(e) Underwritten
Registration. In the event that the Proposed
Registration
by Horizon is, in a whole or
in part, an underwritten public offering of
securities of Horizon, any
request under this Article II must specify that the
Registrable Securities be
included in the underwriting on the same terms and
conditions as the shares of
Common Stock, if any, otherwise being sold through
underwriters under such
registration.
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ARTICLE III
REGISTRATION ON FORM S-3
At any time
after Horizon has completed an underwritten initial
public
offering of shares of Common
Stock pursuant to an effective registration
statement under the
Securities Act as then in effect (or any comparable
statement under any similar
federal statute then in force or effect), any Holder
of Registrable Securities
(the "INITIATING FORM S-3 HOLDER") may request that
Horizon file a registration
statement under the Securities Act on Form S-3 (or
similar or successor form)
covering the sale or other distribution of all or any
portion of the Registrable
Securities held by such Initiating Form S-3 Holder
pursuant to Rule 415 under
the Securities Act ("FORM S-3 DEMAND"), if (i) the
reasonably anticipated
aggregate gross proceeds would equal or exceed
$1,000,000, and (ii) Horizon
is a registrant qualified to use Form S-3 (or any
similar or successor form) to
register such Registrable Securities. If such
conditions are met, Horizon
shall use its best efforts to register under the
Securities Act on Form S-3
(or any similar or successor form) at the earliest
practicable date, for sale in
accordance with the method of disposition
specified in the Form S-3
Demand, the number of Registrable Securities specified
in such Form S-3 Demand.
Notwithstanding the foregoing, if Horizon shall furnish
to the Initiating Form S-3
Holders a certificate signed by the Chief Executive
Officer and Chief Financial
Officer of Horizon stating that a Valid Business
Reason exists, Horizon shall
have the right to defer taking action with respect
to such filing for a period
of sixty (60) days after receipt of the Form S-3
Demand. Notwithstanding the
foregoing, Horizon shall not be obligated to file
more than one Form S-3
pursuant to this Article III in any given six month
period and shall only be
required to keep such Form S-3 effective for a period
not to exceed ninety (90)
days.
ARTICLE IV
REGISTRATION PROCEDURES
Whenever the
Holders of Registrable Securities have requested that
any
Registrable Securities be
registered pursuant to this Agreement, Horizon will
use its reasonable best
efforts to effect the registration and the sale of such
Registrable Securities in
accordance with the intended method of disposition
thereof, and pursuant thereto
Horizon will as expeditiously as possible:
(a) Prepare and file with the SEC a registration statement on any
form
that qualifies, which Horizon
shall deem appropriate and pursuant to which such
offering may be made in
accordance with the intended method of distribution with
respect to such Registrable
Securities and in the case of a registration
pursuant to Article I, use
its best efforts to cause such registration statement
to become effective within
seventy-five (75) days of the date that Horizon
received a request for the
registration of such Registrable Securities from the
Holders in accordance with
the terms of Article I;
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(b) Participation in Preparation. Provide any Holders
participating,
or electing to participate in
an offering of Registrable Securities thereof (the
"PARTICIPATING HOLDERS") of
Registrable Securities, any underwriter
participating in any
disposition pursuant to a registration statement, and
any
attorney, accountant or other
agent retained by any Participating Holder or
underwriter (each an
"INSPECTOR" and, collectively, the "INSPECTORS"), the
opportunity to participate,
including, but not limited to, reviewing, commenting
on and attending all meetings
in the preparation of such registration statement,
each prospectus included
therein or filed with the SEC and each amendment or
supplement
thereto;
(c) Due Diligence. For a reasonable period prior to the filing of
any
registration statement
pursuant to this Agreement, make available for
inspection
and copying by the Inspectors
such financial and other information and books and
records, pertinent corporate
documents and properties of Horizon and its
subsidiaries and cause the
officers, directors, employees, counsel and
independent certified public
accountants of Horizon and its subsidiaries to
respond to such inquiries and
to supply all information reasonably requested by
any such Inspector in
connection with such registration statement, as shall be
reasonably necessary, in the
judgment of the respective counsel referred to in
Article IV(b), to conduct a
reasonable investigation within the meaning of the
Securities Act;
(d) Promptly notify each Holder, the sales or placement agent, if
any,
therefor and the managing
underwriter of the securities being sold, (A) when
such registration statement
or the prospectus included therein or any prospectus
amendment or supplement or
post-effective amendment has been filed, and, with
respect to any such
registration statement or any post-effective amendment,
when
the same has become
effective, (B) of any comments (oral or written) by the
SEC
and by the blue sky or
securities commissioner or regulator of any state with
respect thereto or (C) of any
request by the SEC for any amendments or
supplements to such
registration statement or the prospectus or for
additional
information, and in the case
of a registration pursuant to Article I, prepare
and file with the SEC such
amendments and supplements to such registration
statement and the prospectus
used in connection therewith as may be necessary to
keep such registration
statement effective for a period of not less than ninety
(90) consecutive days, or
such shorter period which will terminate on the date
when all Registrable
Securities covered by such registration statement have
been
sold (but not before the
expiration of the applicable prospectus delivery
period), 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;
(e) Furnish to each seller of Registrable Securities in
accordance
with Section 11.1 hereof,
such number of copies of such registration statement,
each amendment and supplement
thereto, the prospectus included in such
registration statement
(including each preliminary prospectus) and such other
documents as such seller may
reasonably request in order to facilitate the
disposition of the
Registrable Securities owned by such seller;
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(f) Use its best efforts to register or qualify such
Registrable
Securities under such other
securities or blue sky laws of such jurisdictions
within the United States as
the sellers or underwriters shall request, to keep
such registration or
qualification in effect for so long as the registration
statement is in effect and do
any and all other acts and things which may be
reasonably necessary or
advisable to enable such sellers to consummate the
disposition in such
jurisdictions of the Registrable Securities owned by
such
sellers (provided that
Horizon will not be required to qualify generally to do
business or file any general
consent to service of process in any jurisdiction
where it would not otherwise
be required to qualify or file but for
