REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is made as of the
26th day of September, 2000, by and among Horizon PCS, Inc., a Delaware
corporation ("Horizon"), and APOLLO INVESTMENT FUND IV, L.P., a Delaware limited
partnership, APOLLO OVERSEAS PARTNERS IV, L.P., a Cayman Islands exempted
limited partnership, and their affiliated assignees (collectively, the "APOLLO
Purchasers") and certain other persons and entities whose names are set forth on
the signature pages hereof (the Apollo Purchasers, such other persons and
entities and any partnership or other entity to which any of the foregoing
assigns any of its interests hereunder are individually a "HOLDER" and
collectively "HOLDERS").
RECITALS:
WHEREAS, the Apollo Purchasers and such other persons and entities and
Horizon have entered into that certain Securities Purchase Agreement (the
"SECURITIES PURCHASE AGREEMENT") dated September 25, 2000 that provides for the
purchase by the Holders of Units (by payment of cash or by conversion of debt)
consisting of up to 10,252,239 shares of Horizon Series A Preferred Stock, par
value $0.0001 per share and 15,834,998 shares of Series A-1 Preferred Stock, par
value $0.0001 per share (as set forth in Schedule I thereto);
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:
ARTICLE I
DEMAND REGISTRATIONS
(a) Demand Requests and Notice Procedure. At any time (i) two (2) years
after the date hereof, (ii) after such time as Horizon has completed an
underwritten initial public offering of shares of Common Stock pursuant to an
effective registration statement under the Securities Act of 1933, as amended
(the "SECURITIES ACT"), as then in effect (or any comparable statement under any
similar federal statute then in force or effect) ("IPO") or (iii) after such
time as Horizon has completed a merger, consolidation, sale, transfer, lease or
other conveyance of all or substantially all of the assets or other similar
business combination transaction with a company listed on the New York Stock
Exchange, the American Stock Exchange or The Nasdaq National Market, 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 cause to be filed, within sixty (60) days of the date of
delivery to Horizon of the Demand Request, a registration statement
covering (subject to Article I(d)) Registrable Shares requested to be
registered by the Requesting Holders and the shares covered by the
other holders of Registrable Securities who request that their
Registrable Securities be registered within 20 days after the mailing
of the Company's notice, providing for the registration under 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; and
(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.
(iii) subject to the Sprint Agreement (as defined herein),
refrain from filing any other Registration Statements, other than
pursuant to 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 such Registration Statement is being filed in connection with a
demand by the Holders for an underwritten public offering until such
date that is the lesser of: (A) one hundred and eighty (180) days or
(B) such lock up period, if any, required by the underwriters pursuant
to an underwritten offering following effectiveness of the
Registration Statement filed in response to the Demand Request or (ii)
if such Registration Statement is being filed in connection with a
demand 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.
"REGISTRABLE SECURITIES" for purposes of this Agreement means any and all
(a) shares of common stock of the Company ("COMMON STOCK") issued or issuable
upon conversion of Series A Preferred Stock and Series A-1 Preferred Stock
(collectively, the "PREFERRED STOCK"), (b) any other shares of Common Stock held
by the Holders or their Affiliates, (c) any shares of Preferred Stock and (d)
any shares of Common Stock issued or issuable directly or indirectly with
respect to the securities referred to in clauses (a) or (b) 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 pursuant to
Rule 144.
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"AFFILIATE" of any specified Person for purposes of this Agreement shall
mean any other Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified Person. For purposes
of this definition, "CONTROL" with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise.
"PERSON" for purposes of this Agreement shall include all natural persons,
corporations, business trusts, associations, companies, partnerships, joint
ventures and other entities and governments and agencies and political
subdivisions.
(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 determines and advises in writing that the
inclusion of all 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 Holder's 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). It is
acknowledged by the parties hereto that pursuant to the foregoing provision, the
securities to be included in a registration requested by the Requesting Holders
pursuant to a Demand Request shall be allocated:
(i) first, to the Holders of Registrable Securities who requested
the registration;
(ii) second, to the other Holders of Registrable Securities;
(iii) third, to Horizon; and
(iv) fourth, to all other requesting securities to be included
therein.
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(e) Limitation on Demand Registrations.
(i) Horizon may delay making a filing of a registration statement
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 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, 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 a Demand Request 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 Demand Request so long as such Valid Business
Reason exists.
(ii) Horizon shall not be required to comply with more than (A)
three (3) Demand Requests 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 Demand
Request.
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-1 (solely in connection with Horizon's IPO), Form S-4 or Form S-8 (or
similar or successor forms), 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 this Article II,
Horizon shall include in such registration statement all such Registrable
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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 Public Offering 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 and holders
of registration rights to be granted by Horizon to Sprint Spectrum
L.P., pursuant to Addendum III to the Sprint PCS Management Agreement
dated May 19, 2000, between the Company and Sprint Spectrum L.P. (the
"SPRINT AGREEMENT"), 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 Sprint 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 following an IPO, 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 $2,000,000, 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.
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 (the
"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 upon the
earlier to occur of that date when all Registrable Securities covered by such
registration statement have been sold (but not before the expiration of the
applicable prospectus delivery period) or the anniversary date hereof, 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; provided, that in no event shall Horizon
be obligated to maintain the effectiveness of any registration statements filed
hereunder for an aggregate period which exceeds two hundred seventy (270) days
during any twelve month period; and
(e) Furnish to each seller of Registrable Securities in accordance with
Section 11.1 hereof, such number of copies of such registration statement, each
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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; and
(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 this
subparagraph);
(g) Use its best efforts to obtain all other approvals, covenants,
exemptions or authorizations from such governmental agencies or authorities as
may be necessary to enable the sellers of such Registrable Securities to
consummate the disposition of such Registrable Securities; and
(h) Promptly 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 to state any material fact required to be stated therein
or necessary to make the statements therein not misleading in light of the
circumstances then existing, and subject to Article I(d) hereof, prepare and
file as soon as practicable (but in no event later than ten (10) business days
following notice of the occurrence of such event to each seller of Registrable
Securities in accordance with Section 11.1 hereof) with the SEC and promptly
notify each Holder of Registrable Securities of the filing of, a supplement to
such prospectus or an amendment to the registration statement so that, as
thereafter delivered to the purchasers of such Registrable Securities, such
prospectus will not contain an untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances under which they
were made and in the case of an amendment to the registration statement, use
reasonable best efforts to cause it to become effective as soon as possible;
(i) Promptly notify in writing the Participating Holders, the sales or
placement agent, if any, therefor and the managing underwriter of the securities
being sold of the issuance by the SEC of (A) any stop order issued or threatened
to be issued by the SEC or (B) any notification with respect to the suspension
of the qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose, and Horizon agrees to use its reasonable best
efforts to (x) prevent the issuance of any such stop order, and in the event of
such issuance, to obtain the withdrawal of any such stop order and (y) obtain
the withdrawal of any order suspending or preventing the use of any related
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prospectus or suspending the qualification of any Registrable Securities
included in such registration statement for sale in any jurisdiction at the
earliest practicable date;
(j) If the offering is to be underwritten, enter into any necessary
agreements in connection therewith (including an underwriting agreement
containing customary representations, warranties and agreements);
(k) Obtain a "cold comfort" letter from Horizon's independent public
accountants in customary form and covering such matters of the type customarily
covered by "cold comfort" letters as the managing underwriter may reasonably
request;
(l) Furnish, at the request of any underwriter of Registrable Securities on
the date such securities are delivered to the underwriters for sale pursuant to
such registration, an opinion, dated such date, of counsel representing Horizon
for the purposes of such registration, addressed to the Holders, and the
placement agent or sales agent, if any, thereof and the underwriters, if any,
thereof, covering such legal matters with respect to the registration in respect
of which such opinion is being given as such underw riter may reasonably request
and as are customarily included in such opinions;
(m) Use its reasonable best efforts to comply with all applicable rules and
regulations of the SEC and make available to its shareholders, as soon as
reasonably practicable, but no later than eighteen (18) months after the
effective date of any registration statement, an earnings statement covering a
period of twelve (12) months beginning after the effective date of such
registration statement, in a manner which satisfies the provisions of Section
11(a) of the Securities Act and Rule 158 thereunder;
(n) Provide officers' certificates and other customary closing documents;
(o) NASD. Cooperate with each Participating Holder and each underwriter
participating in the disposition of such Registrable Securities and
underwriters' counsel in connection with any filings required to be made with
the NASD;
(p) Cause appropriate officers as are requested by a managing underwriter
to participate in a "road show" or similar marketing effort being conducted by
such underwriter with respect to an underwritten public offering;
(q) Cause all such Registrable Securities (other than the Preferred Stock)
registered pursuant hereto to be listed on each securities exchange or other
quotation service on which similar securities issued by Horizon are then listed
or if none of Horizon's securities are so listed, then (other than the Preferred
Stock), on any of The New York Stock Exchange, The American Stock Exchange or
The Nasdaq National Market;
(r) Provide a transfer agent and registrar for all Registrable Securities
registered pursuant hereto and a CUSIP number for all such Registrable
Securities, in each case not later than the effective date of such registration;
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(s) Use its reasonable best efforts to take all other actions necessary to
effect the registration of the Registrable Securities contemplated hereby.
(t) Use its reasonable best efforts to assist a Holder in facilitating
private sales of Registrable Securities by, among other things, providing
officers' certificates and other customary closing documents.
ARTICLE V
REGISTRATION EXPENSES
All expenses other than underwriting discounts and commissions incurred in
connection with registrations, filings or qualifications, including without
limitation, blue sky, pursuant hereto, including (without limitation) all SEC,
stock exchange, NASD and other registration, filing and qualification fees,
printers' and accounting fees and fees and disbursements of counsel for Horizon,
shall be borne by Horizon; provided, however, that Horizon shall not be required
to pay for any expenses of any registration proceeding begun pursuant to the
registration request is subsequently withdrawn at the request of the Holders of
a majority of the Registrable Securities to be registered (in which case all
Participating Holders shall bear such expenses), unless all Holders agree to
forfeit their right to one Demand Registration pursuant to Article I. Horizon
shall also bear the fees, charges and disbursements of a single counsel to all
of the Holders participating in any offering covered hereunder, not to exceed
$25,000.00 in the aggregate.
ARTICLE VI
UNDERTAKINGS OF THE HOLDERS OF REGISTRABLE SECURITIES
6.1 Suspension of Sales. If any Registrable Securities are included in a
registration statement pursuant to the terms of this Agreement, the Holder
thereof will not (until further notice delivered in accordance with Section 11.1
hereof) effect sales thereof after receipt of written notice from Horizon
pursuant to Article IV(f) and delivered in accordance with Section 11.1 hereof
of the occurrence of an event specified therein in order to permit Horizon to
correct or update the registration statement or prospectus as set forth in this
Agreement (such period not to exceed 60 days), as applicable; provided that the
obligations of Horizon with respect to maintaining any registration statement
current and effective shall be extended by a period of days equal to the period
said suspension is in effect.
6.2 Compliance. If any Registrable Securities are being registered in any
registration pursuant to this Agreement, the Holder thereof will comply with all
anti-stabilization, manipulation and similar provisions of Section 10 of the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), and any rules
promulgated thereunder by the SEC.
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6.3 Termination of Effectiveness. At the end of the period during which
Horizon is obligated to keep a registration statement current and effective as
described herein, each Holder of Registrable Securities included in the
registration statement shall discontinue sales thereof pursuant to such
registration statement, unless such Holder has received written notice from
Horizon delivered in accordance with Section 11.1 hereof of its intention to
continue the effectiveness of such registration statement with respect to any of
such securities which remain unsold.
6.4 Furnish Information. It shall be a condition precedent to the
obligations of Horizon to take any action pursuant to this Agreement with
respect to the Registrable Securities of any selling Holder that such Holder
shall furnish to Horizon such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such securities
as shall reasonably be required to effect the registration of such Holder's
Registrable Securities or as shall otherwise reasonably be requested by Horizon,
which request shall be delivered in accordance with Section 11.1 hereof;
provided, however, that this shall not affect the rights of, or the obligations
of Horizon under this Agreement to, any other Holder.
ARTICLE VII
UNDERWRITTEN REGISTRATIONS
No Holder of Registrable Securities may participate in any registration
hereunder which is underwritten unless such Holder (i) agrees to sell such
Holder's securities on the basis provided in any underwriting arrangements
approved by the Holder or Holders entitled hereunder to approve such
arrangements, and (ii) completes and executes all customary questionnaires,
powers of attorney, indemnities, underwriting agreements, "lock-up" agreements
and other documents reasonably 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 Horizon or the underwriters on account of the registration of
shares owned by such Holder other than representations and warranties regarding
such Holder and such Holder's intended method of distribution. Such Holders of
Registrable Securities to be sold by such underwriters may, at their option,
require that any or all of the representations and warranties by, and the other
agreements on the part of, Horizon to and for the benefit of such underwriters
shall also be made to and for the benefit of such Holders of Registrable
Securities and that any or all of the conditions precedent to the obligations of
such underwriters under such underwriting agreement be conditions precedent to
the obligations of such Holders of Registrable Securities.
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ARTICLE VIII
ASSIGNMENT OF REGISTRATION RIGHTS
The rights of a Holder of Registrable Securities set forth in this
Agreement (including a Holder who received the Registrable Securities by an
assignment permitted pursuant to this Agreement), including the right to cause
Horizon to register Registrable Securities and pay the Registration Expenses,
incurred in connection therewith, to the extent set forth herein, may be
assigned by such Holder.
ARTICLE IX
INDEMNIFICATION
9.1 Indemnification by Horizon. Horizon shall, notwithstanding termination
of this Agreement indemnify and hold harmless, with respect to any registration
statement filed by it, to the fullest extent permitted by law, each Holder of
Registrable Securities covered by such registration statement, its officers,
directors, employees, agents, affiliates and general or limited partners (and
the directors, officers, employees, affiliates and agents thereof) and each
other person, if any, who controls such Holder within the meaning of the
Securities Act (collectively, the "HOLDER INDEMNIFIED PARTIES") against any and
all losses, claims, damages, liabilities and expenses joint or several
(including without limitation reasonable fees of counsel and any amounts paid in
settlement effected with Horizon's consent, which consent shall not be
unreasonably delayed or withheld) (collectively, "LOSSES") to which any such
Holder Indemnified Party may become subject under the Securities Act, the
Exchange Act, any other federal law, any state or common law, any rule or
regulation promulgated thereunder or otherwise, insofar as such Losses (or
actions or proceedings, whether commenced or threatened, in respect thereof) are
resulting from or arising out of or based upon (i) any untrue statement or
alleged untrue statement of a material fact contained in any registration
statement in which such Registrable Securities were included as contemplated
hereby or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading or (ii) any untrue statement or alleged untrue statement of a
material fact contained in any preliminary, final or summary prospectus,
together with the documents incorporated by reference therein (as amended or
supplemented if Horizon shall have filed with the SEC any amendment thereof or
supplement thereto), or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or (iii) any violation by Horizon of the Securities Act,
the Exchange Act, any other federal law, any state or common law, or any rule or
regulation promulgated thereunder in connection with any such registration; and
in each such case, Horizon shall reimburse each such Holder Indemnified Party
for any reasonable legal or any other Losses incurred by any of them in
connection with investigating or defending any such loss, claim, damage,
liability, expense, action or proceeding (collectively a "CLAIM"); provided,
however, that Horizon shall not be liable to any such Holder Indemnified Party
12
in any such case to the extent that any such Claim (or action or proceeding,
whether commenced or threatened, in respect thereof) arises out of or is based
upon any untrue statement or alleged untrue statement or omission or alleged
omission made in such registration statement or amendment thereof or supplement
thereto or in any such preliminary, final or summary prospectus in reliance upon
and in strict conformity with written information furnished to Horizon by or on
behalf of any such Holder Indemnified Party relating to such Holder Indemnified
Party specifically stating that it is for use in the preparation thereof, and
provided further, that Horizon shall not be liable to any such Holder
Indemnified Party with respect to any preliminary prospectus to the extent that
any such Losses of such Holder Indemnified Party results from the fact that such
Holder Indemnified Party sold Registrable Securities to a person to whom there
was not sent or given, at or before the written confirmation of such sale, a
copy of the prospectus (excluding documents incorporated by reference) or of the
prospectus as then amended or supplemented (excluding documents incorporated by
reference) if Horizon has previously furnished copies thereof to such Holder
Indemnified Party in compliance with this Agreement and the Losses of such
Holder Indemnified Party results from an untrue statement or omission of a
material fact contained in such preliminary prospectus which was corrected in
the prospectus (or the prospectus as then amended or supplemented). Such
indemnity and reimbursement of expenses and obligations shall remain in full
force and effect regardless of any investigation made by or on behalf of the
Holder Indemnified Parties and shall survive the transfer of such securities by
such Holder Indemnified Parties. In connection with an underwritten offering,
Horizon shall indemnify such underwriters, their officers and directors and each
person who controls such underwriters (within the meaning of the Securities Act)
to the same extent as provided above with respect to the indemnification of the
Holders of Registrable Securities.
9.2 Indemnification by Holders. Each Holder of Registrable Securities
participating in any registration hereunder shall severally, and not jointly,
indemnify and hold harmless, to the fullest extent permitted by law, Horizon,
its directors, officers, employees, Affiliates and agents, and each Person who
controls Horizon (within the meaning of the Securities Act) (collectively,
"HORIZON INDEMNIFIED PARTIES") to the same extent as the foregoing indemnity
from Horizon to the Holders as set forth in Section 9.1 (subject to the
exceptions set forth in the foregoing indemnity, the proviso to this sentence
and applicable law), but only with respect to any such information furnished in
writing by such Holder for use therein; provided, however, that the liability of
any Holder under this Section 9.2 shall be limited to the amount of the net
proceeds received by such Holder in the offering giving rise to such liability.
Such indemnity obligation shall remain in full force and effect regardless of
any investigation made by or on behalf of Horizon Indemnified Parties (except as
provided above) and shall survive the transfer of such securities by such
Holder.
9.3 Conduct of Indemnification Proceedings. Promptly after receipt by an
indemnified party under Section 9.1 or 9.2 above of written notice delivered in
accordance with Section 11.1 hereof of the commencement of any action, suit,
proceeding, investigation or threat thereof with respect to which a claim for
indemnification may be made pursuant to this Section, such indemnified party
13
shall, if a claim in respect thereto is to be made against an indemnifying
party, promptly give written notice delivered in accordance with Section 11.1
hereof to the indemnifying party of the threat or commencement thereof,
provided, however, that the failure to so notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
except to the extent that the indemnifying party is actually prejudiced by such
failure to give notice in accordance with Section 11.1 hereof. If any such claim
or action referred to under Section 9.1 or 9.2 above is brought against any
indemnified party and it then notifies the indemnifying party of the threat or
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it wishes, jointly with any other indemnifying
party similarly notified, to assume the defense thereof with counsel reasonably
satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party). After notice
delivered in accordance with Section 11.1 hereof from the indemnifying party to
such indemnified party of its election so to assume the defense of any such
claim or action, the indemnifying party shall not be liable to such indemnified
party under this Article IX for any legal expenses of counsel or any other
expenses (other than reasonable costs of investigation) subsequently incurred by
such indemnified party in connection with the defense thereof, unless the
indemnifying party has failed to assume the defense of such claim or action or
to employ counsel reasonably satisfactory to such indemnified party.
Notwithstanding the foregoing, the indemnified party shall have the right to
retain its own counsel, with the fees and expenses to be paid by the
indemnifying party, if representation of such indemnified party by the counsel
retained by the indemnifying party would be inappropriate due to actual or
potential differing interests between such indemnified party and any other party
represented by such counsel in such action. The indemnifying party shall not be
required to indemnify the indemnified party with respect to any amounts paid in
settlement of any action, proceeding or investigation entered into without the
written consent of the indemnifying party, which consent shall not be
unreasonably delayed or withheld. No indemnifying party shall consent to the
entry of any judgment or enter into any settlement without the consent of the
indemnified party unless (i) such judgment or settlement does not impose any
obligation or liability upon the indemnified party other than the execution,
delivery or approval thereof, and (ii) such judgment or settlement includes as
an unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a full release and discharge from all liability in respect
of such claim and a full release of all persons that may be entitled to or
obligated to provide indemnification or contribution under this Article.
The obligations of Horizon and the Holders of Registrable Securities under
this Article VIII shall survive the completion of any offering of Registrable
Securities in a registration statement under this Agreement and the termination
of this Agreement.
9.4 Contribution. If the indemnification provided for in this Article IX is
unavailable to or insufficient to hold harmless an indemnified party under
Section 9.1 or 9.2, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of the Losses (or actions
or proceedings in respect thereof) referred to in Section 9.1 or 9.2 in such
14
proportion as is appropriate to reflect the relative fault of the indemnifying
party on the one hand and the indemnified party on the other in connection with
the statements, omissions, actions or inactions which resulted in such losses,
claims, damages, liabilities or expenses. The relative fault of the indemnifying
party and the indemnified party shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the indemnifying party or the indemnified party, any action or
inaction by any such party, and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement, omission,
action or inaction; provided, however, that the liability of any Holder under
this Section 9.4 shall be limited to the amount of net proceeds received by such
Holder in the offering giving rise to such liability. The amount paid or payable
by an indemnified party as a result of the Losses (or actions or proceedings in
respect thereof) pursuant to this Section 11.1 shall be deemed to include any
reasonable legal or other expenses incurred by such indemnified party in
connection with investigating or defending any such action or claim (which shall
be limited as provided in Section 9.3 if the indemnifying party has assumed the
defense of any such action in accordance with the provisions thereof) which is
the subject of this Section 9.4. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. Promptly after receipt by an indemnified party
under this Section 9.4 of written notice delivered in accordance with Section
9.4 hereof of the commencement of any action, suit, proceeding, investigation or
threat thereof with respect to which a claim for contribution may be made
against an indemnifying party under this Section 9.4, such indemnified party
shall, if a claim for contribution in respect thereto is to be made against an
indemnifying party, give written notice in accordance with Section 9.1 hereof to
the indemnifying party of the commencement thereof (if the notice specified in
Section 9.3 has not been given with respect to such action), provided, however,
that the failure to so notify the indemnifying party shall not relieve it from
any obligation to provide contribution which it may have to any indemnified
party under this Section 9.4, except to the extent that the indemnifying party
is actually prejudiced by the failure to give notice in accordance with Section
11.1 hereof. The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 9.4 were determined by pro rata allocation
or by any other method of allocation which does not take account of equitable
considerations referred to in this Section 9.4.
If indemnification is available under this Article IX, the indemnifying
parties shall indemnify each indemnified party to the fullest extent provided in
Sections 9.1 and 9.2 hereof, without regard to the relative fault of said
indemnifying party or indemnified party or any other equitable consideration
provided for in this Section 9.4. The provisions of this Section 9.4 shall be in
addition to any other rights to indemnification or contribution which any
indemnified party may have pursuant to law or contract, shall remain in full
force and effect regardless of any investigation made by or on behalf of any
indemnified party, and shall survive the transfer of securities by any such
party; provided that any indemnification of similar scope entered into pursuant
to an underwriting agreement in connection with an offering contemplated herein
shall supersede this Article IX.
15
9.5 Indemnification and Contribution of Underwriters. In connection with
any underwritten offering contemplated by this Agreement which includes
Registrable Securities, Horizon and all Holders of Registrable Securities
included in any registration statement shall agree to customary provisions for
indemnification and contribution (consistent with the other provisions of this
Article IX) in respect of losses, claims, damages, liabilities and expenses of
the underwriters of such offering.
ARTICLE X
RULE 144; OTHER EXEMPTIONS
With a view to making available to the Holders the benefits of Rule 144 and
144A promulgated under the Securities Act and other rules and regulations of the
SEC that may at any time permit a Holder to sell securities of Horizon to the
public without registration, Horizon covenants that it shall (i) file in at
timely manner all reports and other documents required to be filed by it under
the Securities Act and the Exchange Act and the rules and regulations adopted by
the SEC thereunder and (ii) take such further action as each Holder may
reasonably request (including, but not limited to, providing any information
necessary to comply with Rules 144 and 144A, if available with respect to
resales of the Registrable Securities, under the Securities Act) at any time
after the date which is ninety (90) days following an IPO, all to the extent
required from time to time to enable such Holder to sell Registrable Securities
without registration under the Securities Act within the limitation of the
exemptions provided by (x) Rule 144 or Rule 144A (if available with respect to
resales of the Registrable Securities) under the Securities Act, as such rules
may be amended from time to time or (y) any other rules or regulations now
existing or hereafter adopted by the SEC.
ARTICLE XI
MISCELLANEOUS
11.1 Notices. All notices, requests and other communications hereunder
shall be in writing and will be deemed to have been duly given and received by
any party hereto and any permitted transferees thereof (i) when personally
delivered to the appropriate Notice Person (as defined below), (ii) when sent by
telefax to the appropriate Notice Person at the number listed below for such
Notice Person, (iii) two (2) business days after the day on which the same has
been delivered prepaid to an international courier service for delivery to the
appropriate Notice Person, or (iv) five (5) business days after the deposit in
the United States mail, registered or certified, return receipt requested,
postage prepaid, for delivery to the appropriate Notice Person, in each case
addressed to the following addresses:
16
(i) If to Horizon:
HORIZON PCS, INC.
68 East Main Street
Chillicothe, Ohio 45601
Attention: William McKell
Fax: (740) 993-8289
with a copy to:
Arnall Golden & Gregory, LLP
2800 One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 30309-3450
Attention: Donald I. Hackney, Jr.
Fax: (404) 873-8639
(ii) If to Apollo Purchasers:
Apollo Investment Fund IV, L.P.
c/o Apollo Management IV, L.P.
1301 Avenue of the Americas
38th Floor
New York, New York 10019
Attention: Robert Katz
Fax: (212) 515-3263
with copies to:
Akin, Gump, Strauss, Hauer & Feld, L.L.P.
1333 New Hampshire Avenue, N.W.
Washington, D.C. 20036
Attention: Bruce S. Mendelsohn
Fax: (202) 887-4288
And to:
Akin, Gump, Strauss, Hauer & Feld, L.L.P.
590 Madison Avenue
New York, New York 10022
Attention: Stephen Older
Fax: (212) 872-1002
(iii) If to the other Holders or entities party to this
Agreement, at the address specified on its respective signature page
hereof.
17
Horizon or any Holder (collectively, the "NOTICE PERSONS") from time to time may
change its or his or her address, telefax number or other information for the
purpose of notices to the specified parties by giving notice specifying such
change to the other Notice Persons.
11.2 Market Stand-Off" Agreement. Each Holder hereby agrees that, during
the period of duration (up to, but not exceeding, 180 days) specified by an
underwriter of common stock or other securities of Horizon, following the date
of the final prospectus distributed in connection with any registration
statement of Horizon filed under the Securities Act with respect to an
underwritten offering, it shall not, to the extent requested by such
underwriter, directly or indirectly sell, offer to sell, contract to sell
(including, without limitation, any short sale), grant any option to purchase or
otherwise transfer or dispose of (other than to donees who agree to be similarly
bound) any securities of Horizon held by it at any time during such period
except common stock included in such registration; provided, however, that
Horizon shall utilize its reasonable best efforts to ensure that all officers
and directors of Horizon (other than HT (as defined herein) and members of the
McKell Family who shall have previously executed a lock-up agreement), all ten
percent security holders, and all other persons with registration rights granted
subsequent to the date hereof enter into similar agreements and provided further
that if the Company or any other holder of securities of the Company who own
more than one percent (1%) of the Common Stock on an "as-converted" basis shall
be subject to a shorter lock-up period, the lock-up period shall be such shorter
period for the Holder. The Company hereby agrees that, during the period of
duration (up to, but not exceeding, 180 days) specified by an underwriter of
common stock or other securities of Horizon, following the date of the final
prospectus distributed in connection with any registration statement of Horizon
filed under the Securities Act with respect to an underwritten offering, it
shall not and shall cause Horizon Telcom, Inc., a Delaware corporation ("HT"),
and the members of the McKell Family to not, to the extent requested by such
underwriter, directly or indirectly sell, offer to sell, contract to sell
(including, without limitation, any short sale), grant any option to purchase or
otherwise transfer or dispose of (other than to donees who agree to be similarly
bound) any securities of Horizon held by it at any time during such period
except common stock included in such registration.
In order to enforce the foregoing covenant, Horizon may impose
stop-transfer instructions with respect to the Registrable Securities of each
Holder (and the shares or securities of every other person subject to the
foregoing restriction) until the end of such period, and each Holder agrees
that, if so requested, such Holder will execute an agreement in the form
provided by the underwriter containing terms which are essentially consistent
with the provisions of this Section 11.2.
Notwithstanding the foregoing, the obligations described in this Section
11.2 shall not apply to a registration relating solely to employee benefit plans
on Form S-8 or similar forms which may be promulgated in the future, or a
registration relating solely to an SEC Rule 145 transaction on Form S-4 or
similar forms which may be promulgated in the future. "MCKELL FAMILY" for
purposes of this Agreement means direct descendants of William Scott McKell,
current spouses of such persons, and trusts or family limited partnerships of
which such persons are either grantors or beneficiaries.
18
11.3 Rights of Holders. Each Holder of Registrable Securities shall have
the absolute right to exercise or refrain from exercising any right or rights
that such Holder may have by reason of this Agreement, including, without
limitation, the right to consent to the waiver or modification of any obligation
under this Agreement, and such Holder shall not incur any liability to any other
Holder of any securities of Horizon as a result of exercising or refraining from
exercising any such right or rights.
11.4 Assignment. Subject to and without limiting the provisions of Article
VIII hereof, neither this Agreement nor any right, interest or obligation
hereunder may be assigned by any party hereto without the prior written consent
of the other parties hereto and any attempt to do so will be void. Subject to
the preceding sentence, this Agreement is binding upon, inures to the benefit
of, and is enforceable by the parties hereto and their respective successors and
permitted assigns.
11.5 Waiver. Any term or condition of this Agreement may be waived at any
time by the party that is entitled to the benefit thereof, but no such waiver
shall be effective unless set forth in a written instrument duly executed by or
on behalf of the party waiving such term or condition. No waiver by any party of
any term or condition of this Agreement, in any one or more instances, shall be
deemed to be or construed as a waiver of the same or any other term or condition
of this Agreement on any future occasion.
11.6 Amendment. This Agreement may be amended, supplemented or modified
only by a written instrument duly executed by Horizon and Holders of a majority
in interest of the outstanding Registrable Securities.
11.7 Remedies. Each party hereto will be entitled to enforce any right
granted to such party by any provision of this Agreement 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 any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the provisions of this
Agreement.
11.8 Entire Agreement. This Agreement supersedes all prior discussions and
agreements among the parties hereto with respect to the subject matter hereof
and contains the sole and entire agreement among the parties hereto with respect
to the subject matter hereof.
11.9 Captions. The captions used in this Agreement have been inserted for
convenience of reference only and do not define or limit the provisions hereof.
11.10 Exhibits and Schedules. All exhibits and schedules, if any, referred
to in this Agreement, all attachments to such exhibits or schedules, and any
other attachment to this Agreement are hereby incorporated by reference into
this Agreement and hereby are made a part of this Agreement as if set out in
full herein.
19
11.11 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware applicable to a contract
executed and performed in such State, without giving effect to the conflicts of
laws principles thereof.
11.12 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together will constitute one and the same instrument.
11.13 Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction, it being intended and understood that all of the rights and
privileges of the Holders shall be enforceable to the fullest extent permitted
by law.
11.14 No Third Party Beneficiary. This Agreement shall not confer any
rights or remedies upon any person other than the parties hereto and their
respective successors and permitted assigns.
11.15 No more Favorable or Inconsistent Agreement; Other Registration
Rights. Horizon represents and warrants that it has not granted registration
rights and agrees that, from and after the date of this Agreement, it shall not,
without the prior written consent of the Holders of at least a majority of the
then outstanding Registrable Securities, enter into any agreement (or any
amendment or waiver of the provisions of any agreement) with any holder or
prospective holder of any securities of Horizon giving such holder or
prospective holder any registration rights, the terms of which in terms of
piggyback inclusion priority are more favorable than the registration rights
granted to the Holders hereunder.
[signature pages to follow]
20
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
HORIZON PCS, INC., a Delaware corporation
By: /s/ William A. McKell
------------------------------------------
Name: William A. McKell
------------------------------------------
Title: President
------------------------------------------
APOLLO INVESTMENT FUND IV, L.P.,
a Delaware limited partnership
By: Apollo Advisors IV, L.P.
Its General Partner
By: Apollo Capital Management IV, Inc.
Its General Partner
By: /s/ Robert Katz
------------------------------------------
Name: Robert Katz
Title: Vice President
APOLLO OVERSEAS PARTNERS IV, L.P.,
a Cayman Islands exempted limited partnership
By: Apollo Advisors IV, L.P.
Its Managing General Partner
By: Apollo Capital Management IV, Inc.
Its General Partner
By: /s/ Robert Katz
------------------------------------------
Name: Robert Katz
Title: Vice President
ARES LEVERAGED INVESTMENT FUND, L.P.,
a Delaware limited partnership
By: Ares Management, L.P.
Its General Partner
By: /s/ Eric Beckman
------------------------------------------
Name: Eric Beckman
------------------------------------------
Title: Vice President
------------------------------------------
Address for Notices:
Ares Leveraged Investment Fund, L.P.
c/o Ares Management, L.P.
1999 Avenue of the Stars, Suite 1900
Los Angeles, California 90067
Attention: Eric Beckman
Fax: (310) 201-4170
ARES LEVERAGED INVESTMENT FUND II, L.P.,
a Delaware limited partnership
By: Ares Management II, L.P.
Its General Partner
By: /s/ Eric Beckman
------------------------------------------
Name: Eric Beckman
------------------------------------------
Title: Vice President
------------------------------------------
Address for Notices:
Ares Leveraged Investment Fund II, L.P.
c/o Ares Management II, L.P.
1999 Avenue of the Stars, Suite 1900
Los Angeles, California 90067
Attention: Eric Beckman
Fax: (310) 201-4170
FIRST UNION INVESTORS, INC.,
a North Carolina corporation
By: /s/ Pearce Landry
------------------------------------------
Name: Pearce Landry
------------------------------------------
Title: Vice President
------------------------------------------
Address for Notices:
First Union Investors, Inc.
One First Union Center
301 South College Street
5th Floor
Charlotte, North Carolina 28288
Attention: John Burlingame
Fax: (704) 374-3300
with a copy to:
Moore & Van Allen PLLC
100 North Tyron Street, Floor 47
Charlotte, NC 28202
Attention: John S. Chinuntdet
Fax: (704) 378-1950