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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
