HORIZON PCS INC, S-1/A, 2000-12-15

HORIZON PCS INC
S-1/A, 2000-12-15
RADIOTELEPHONE COMMUNICATIONS

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As filed with the Securities and Exchange Commission on December 15, 2000
Registration No. 333-51240
--------------------------------------------------------------------------------

SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549

AMENDMENT NO. 1 TO
FORM S-1
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

HORIZON PCS, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<CAPTION>
<S> <C> <C>
Delaware 4812 31-1707839
(State of Incorporation) (Primary Standard Industrial (I.R.S. Employer Identification No.)
Classification Code Number)
</TABLE>

68 East Main Street
Chillicothe, Ohio 45601-0480
(740) 772-8200
(Address, including zip code and telephone
number, including area code, of
registrant's principal executive
offices)

Mr. William A. McKell
President and Chief Executive Officer
Horizon PCS, Inc.
68 East Main Street
Chillicothe, Ohio 45601-0480
(740) 772-8200
(Name, address, including zip code, and telephone number, including area code,
of agent for service)

Copies To:
T. Clark Fitzgerald III, Esq.
Donald I. Hackney, Jr., Esq.
Arnall Golden & Gregory, LLP
2800 One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 30309-3450
(404) 873-8500

Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date of this Registration Statement.

If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [X]

<PAGE>

If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]

If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]

If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]

If delivery of the prospectus is expected to be made pursuant to Rule 434,
check the following box. [_]

The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.

<PAGE>
PART II

INFORMATION NOT REQUIRED IN PROSPECTUS

ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION

The following table sets forth the various expenses and costs (other than
underwriting discounts and commissions) expected to be incurred in connection
with the issuance and distribution of the securities to be registered. All of
the amounts shown are estimated except for the Securities and Exchange
Commission registration fee, the NASD filing fee and the Nasdaq National Market
listing fee.

Securities and Exchange Commission registration fee......... $ 5,908
Nasdaq National Market listing fee.......................... *
Printing and engraving expenses............................. 50,000
Legal fees and expenses..................................... 50,000
Accounting fees and expenses................................ 5,000
Transfer agent and registrar fees........................... 5,000
Miscellaneous expenses...................................... *
---------------

Total.............................................. $ *
===============

-------------------------
* To be supplied by amendment

ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS

The Certificate of Incorporation of Horizon PCS, Inc. ("Horizon PCS") provides
that the liability of the directors of Horizon PCS to Horizon PCS or any of its
stockholders for monetary damages arising from acts or omissions occurring in
their capacity as directors shall be limited to the fullest extent permitted by
the laws of Delaware or any other applicable law. This limitation does not apply
with respect to any action in which a director would be liable under Section 174
of the General Corporation Law of the State of Delaware nor does it apply with
respect to any liability in which a director:

- breached his duty of loyalty to Horizon PCS or its stockholders;

- did not act in good faith or, in failing to act, did not act in good
faith;

- acted in a manner involving intentional misconduct or a knowing
violation of law or, in failing to act, shall have acted in a manner
involving intentional misconduct or a knowing violation of law; or

- derived an improper personal benefit.

Horizon PCS' Certificate of Incorporation provides that Horizon PCS shall
indemnify its directors, officers and employees and former directors, officers
and employees to the fullest extent permitted by the laws of Delaware or any
other applicable law. Pursuant to the provisions of Section 145 of the General
Corporation Law of the State of Delaware, Horizon PCS has the power to indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding (other than an
action by or in the right of Horizon PCS) by reason of the fact that he is or
was a director, officer, employee or agent of Horizon PCS, against any and all
expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred in connection with such action, suit or proceeding. The
power to indemnify applies only if such person acted in good faith and in a
manner he reasonably believed to be in the best interest, or not opposed to the
best interest, of Horizon PCS and with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful.

II-1
<PAGE>

The power to indemnify applies to actions brought by or in the right of
Horizon PCS as well, but only to the extent or defense and settlement expenses
and not to any satisfaction of a judgment or settlement of the claim itself and
with the further limitation that in such actions no indemnification shall be
made in the event of any adjudication of negligence or misconduct unless the
court, in its discretion, believes that in light of all the circumstances
indemnification should apply.

The statute further specifically provides that the indemnification
authorized thereby shall not be deemed exclusive of any other rights to which
any such officer or director may be entitled under any bylaws, agreements, vote
of stockholders or disinterested directors, or otherwise.

Horizon PCS has acquired directors' and officers' liability insurance
covering its directors and officers.

Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers or persons controlling Horizon PCS
pursuant to the foregoing provisions, Horizon PCS has been advised that in the
opinion of the Securities and Exchange Commission, such indemnification is
against public policy as expressed in the Securities Act and is therefore
unenforceable.

ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES

During the last three years, the Registrant has sold or issued the
following unregistered securities:

(1) On April 25, 2000, in connection with the incorporation of the
Registrant, the Registrant issued one share of its class B common stock to
Horizon Telcom, Inc. ("Horizon Telcom") in return for the payment of $100.

(2) On June 27, 2000, in connection with the initial capitalization of the
Registrant, the Registrant issued 53,806,200 shares of its class B common stock
to Horizon Telcom in return for Horizon Telcom's contribution to the Registrant
of all the issued and outstanding capital stock of Horizon Personal
Communications, Inc.

(3) On June 27, 2000, in connection with the initial capitalization of the
Registrant, the Registrant issued an aggregate of 4,678,800 shares of its class
B common stock to the former non-Horizon members of Bright Personal
Communication Services, LLC ("Bright PCS"), in return for the contribution by
the former members of approximately 70% of their ownership interest in Bright
PCS.

(4) On June 27, 2000, the Registrant granted incentive stock options to
purchase 3,874,047 shares of the Registrant's class B common stock at an
exercise price of $0.1209 per share, and nonqualified options to purchase
322,837 shares of its class B common stock, at an exercise price of $0.1209 per
share. These options were granted in replacement of stock options which had been
granted by Horizon Personal Communications, Inc. on November 16, 1999, prior to
the incorporation of the Registrant as a holding company for Horizon Personal
Communications, Inc. and Bright PCS.

(5) In connection with Sprint PCS' grant of the Registrant's new markets on
May 19, 2000, the Registrant agreed to grant a warrant to Sprint PCS to acquire
2,510,460 shares of the Registrant's class A common stock at an exercise price
equal to the initial public offering price per share. The warrant will expire on
the 3rd anniversary of the completion of this offering.

(6) On February 15, 2000, Horizon Personal Communications, Inc. borrowed
$13 million from First Union Investors, Inc. in connection with Horizon Personal
Communication, Inc.'s purchase of shares of the outstanding common stock of
Horizon Telcom. In connection with the loan transaction, the Registrant and
First Union Investors, Inc., agreed that, upon the completion of this offering,
the outstanding principal amount, and accrued interest thereon, under the note
to First Union Investors, Inc. would be converted into shares of the
Registrant's class A common stock at a conversion price equal to the initial
public offering price per share.

II-2
<PAGE>

(7) On September 8, 2000, the Registrant effected a 1.1697 for 1 stock
dividend of its issued and outstanding Class B common stock and made
corresponding adjustments to the outstanding options and warrants.

(8) On September 26, 2000, the registrant issued 26,087,237 shares of its
convertible preferred stock at a weighted average purchase price of $5.39 per
share (consisting of 10,252,239 shares of Series A Preferred Stock at $5.88 per
share and 15,834,998 shares of Series A-1 Preferred Stock at $5.07 per share).
The purchasers of the preferred stock and the amount purchased are listed in the
table below.
<TABLE>
<CAPTION>
<S> <C> <C>
NAME OF PURCHASER NUMBER OF SHARES
Series A Series A-1
-------- ----------
Apollo Investment Fund IV, L.P................................ 7,854,719 12,132,161
Apollo Overseas Partners IV, L.P.............................. 436,097 673,582
Ares Leveraged Investment Fund, L.P........................... 467,687 722,375
Ares Leveraged Investment Fund II, L.P........................ 467,687 722,375
First Union Capital Partners, L.P............................. 1,026,049 1,584,505
</TABLE>

(9) On September 26, 2000, the registrant issued 295,000 units ("Units")
consisting of $295,000,000 principal amount of 14% Senior Discount Notes due
2010 and warrants to purchase 3,805,500 shares of class A common stock at an
exercise price of $5.88 per share. The initial purchasers of the Units and the
amount purchased are listed in the table below.

Exemption from the registration provisions of the Securities Act for the
transaction described in paragraph 7 above was claimed on the basis that such
transaction did not constitute an "offer," "offer to sell," "sale," or "offer to
buy" under Section 5 of the Securities Act. Exemption from the registration
provisions of the Securities Act for the other transactions described above was
claimed under Section 4(2) of the Securities Act and the rules and regulations
promulgated thereunder on the basis that such transactions did not involve any
public offering, the purchasers were sophisticated with access to the kind of
information registration would provide and that such purchasers acquired such
securities without a view towards distribution thereof. In addition, exemption
from the registration provisions of the Securities Act for the transactions
described in paragraph 4 was claimed under Section 3(b) of the Securities Act on
the basis that such securities were sold pursuant to a written compensatory
benefit plan or pursuant to a written contract relating to compensation and not
for capital raising purposes under Rule 701 of the Securities Act, and exemption
from the registration provisions of the Securities Act for the transactions
described in paragraphs 8 and 9 above was claimed under Rule 144A of the
Securities Act.

II-3
<PAGE>

ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES

(a) Exhibits:

Exhibit
Number Description
-------- -----------
1.1* Purchase Agreement dated September 18, 2000 between Horizon PCS, Inc.
and Donaldson, Lufkin & Jenrette Securities Corporation and First
Union Securities, Inc.

2.1*(1) Asset Purchase Agreement, dated May 19, 2000, by and between Sprint
PCS, Inc. and Horizon Personal Communications, Inc.

2.2*(1) Contribution and Exchange Agreement, as amended, dated May 4, 2000, by
and among Horizon Personal Communications, Inc., Horizon Telcom, Inc.,
the Registrant and those persons listed on the attachment to the
Contribution and Exchange Agreement.

3.1* Amended and Restated Certificate of Incorporation of Horizon PCS.

3.2* Bylaws of Horizon PCS.

4.1* Specimen Common Stock Certificate.

4.2* Indenture dated as of September 26, 2000 between Horizon PCS, Inc. ,
Horizon Personal Communications, Inc., Bright Personal Communications,
Inc. and Wells Fargo Bank Minnesota, National Association.

4.3* A/B Exchange Registration Rights Agreement made as of September 26,
2000 by and among Horizon PCS, Inc. and Donaldson, Lufkin & Jenrette
Securities Corporation and First Union Securities, Inc.

4.4* Form of Registered Note (included in Exhibit 4.2).

4.5* Note Guarantee of Horizon Personal Communications, Inc.

4.6* Note Guarantee of Bright Personal Communications Services, LLC

5.1** Opinion of Arnall Golden & Gregory, LLP regarding legality of the
common stock being issued.

10.1* Form of Employment Agreement, dated September 26, 2000, by and
between Registrant and William A. McKell.

10.2* Form of Employment Agreement, dated September 26, 2000, by and
between Registrant and Peter M. Holland.

10.3*+ Sprint PCS Management Agreement between Sprint Spectrum, L.P.,
SprintCom, Inc. and Horizon Personal Communications, Inc., dated June
8, 1998.

10.3.1* Letter Agreement, dated July 3, 2000, between Sprint Spectrum, L.P.,
SprintCom, Inc. and Horizon Personal Communications, Inc.

10.4*+ Sprint PCS Services Agreement between Sprint Spectrum L.P. and Horizon
Personal Communications, Inc., dated June 8, 1998.

10.5* Sprint Trademark and Service Mark License Agreement between Sprint
Communications Company, L.P. and Horizon Personal Communications,
Inc., dated June 8, 1998.

10.6* Sprint Spectrum Trademark and Service Mark License Agreement between
Sprint Spectrum L.P. and Horizon Personal Communications, Inc., dated
June 8, 1998.

10.7*+ Sprint PCS Management Agreement between Wirelessco, L.P., SprintCom,
Inc., Sprint Spectrum, L.P. and Bright Personal Communications
Services, LLC, dated October 13, 1999.

10.8*+ Sprint PCS Services Agreement between Sprint Spectrum, L.P. and Bright
Personal Communications Services, LLC, dated October 13, 1999.

10.9* Sprint Trademark and Service Mark License Agreement between Sprint
Communications Company, L.P. and Bright Personal Communications
Services, LLC, dated October 13, 1999.

10.10* Sprint Spectrum Trademark and Service Mark License Agreement between
Sprint Spectrum, L.P. and Bright Personal Communications Services,
LLC, dated October 13, 1999.

10.11** Loan Agreement by and between Horizon Personal Communications, Inc.
and Rural Telephone Finance Cooperative, dated August 29, 1997.

10.12* Horizon Telcom Guaranty, dated August 29, 1997.

10.13* Loan Agreement, by and between Bright Personal Communications
Services, LLC and Rural Telephone Finance Corporation, dated April 28,
2000.

10.14* Loan Agreement dated May 31, 2000 by and between Horizon Personal
Communications, Inc. and Rural Telephone Finance Cooperative.

10.15* Amendment to Loan Agreement dated as of June 27, 2000 by and between
Horizon Personal Communications, Inc. and Rural Telephone Finance
Cooperative.

10.16** Horizon Telcom Guaranty dated June 27, 2000.

10.17* Commitment letter from First Union National Bank with regard to $225
million senior secured credit facility for the Registrant.

10.18* Registration Rights Agreement, dated June 27, 2000, by and among the
Registrant and those persons listed on the attachment to the
Contribution and Exchange Agreement.

10.19*+ Network Services Agreement by and between West Virginia PCS Alliance,
L.C., Virginia PCS Alliance, L.C. and Horizon Personal Communications,
Inc., dated August 12, 1999.

10.20* Assignment and Agreement by and between SprintCom, Inc., Horizon
Personal Communications, Inc., West Virginia PCS Alliance, L.C. and
Virginia PCS Alliance, L.C., dated August 12, 1999.

10.21*+ PCS CDMA Product Supply Contract by and between Motorola, Inc. and
Horizon Personal Communications, Inc.

10.22* Bridge Note Purchase Agreement by and between Horizon Personal
Communications, Inc. and First Union Investors, Inc., dated February
15, 2000.

10.23** 13% Senior Subordinated Promissory Note from Horizon Personal
Communications, Inc. to First Union Investors, Inc., dated February
15, 2000.

10.24** Conversion Agreement, by and between Horizon Personal Communications
and First Union Investors, Inc., dated February 15, 2000.

10.25* Form of Horizon PCS, Inc. 2000 Stock Option Plan.

10.26*+ Site Development Agreement by and between Horizon Personal
Communications, Inc. and SBA Towers, Inc., dated August 17, 1999.

10.27*+ Master Site Agreement by and between SBA Towers, Inc. and Horizon
Personal Communications, Inc., dated July 1999.

10.28*+ Master Design Build Agreement by and between Horizon Personal
Communications, Inc. and SBA Towers, Inc., dated August 17, 1999.

10.29*+ Master Site Agreement by and between SBA Towers, Inc. and Bright
Personal Communications Services, LLC, dated October 1, 1999.

10.30*+ Master Design Build Agreement by and between Bright Personal
Communications Services, LLC and SBA Towers, Inc., dated October 1,
1999.

10.31* Services Agreement, dated May 1, 2000, between Horizon Personal
Communication, Inc. and Horizon Services, Inc.

10.32* Lease Agreement, dated May 1, 2000 between Chillicothe Telephone
Company and Horizon Personal Communications, Inc.

10.33* Services Agreement, dated May 1, 2000 between Horizon Personal
Communications, Inc. and United Communications, Inc.

10.34* Form of Indemnification Agreement.

10.35* Amended and Restated Tax Allocation Agreement dated May 1, 2000 by and
among Horizon Telcom, Inc., Chillicothe Telephone Company, Horizon
Personal Communications, Inc., United Communications, Inc., Horizon
Services, Inc., and Horizon PCS, Inc.

10.35.1* First Amendment to the Amended and Restated Tax Allocation Agreement
dated as of September 26, 2000 by and among Horizon Telcom, Inc.,
Chillicothe Telephone Company, Horizon Personal Communications, Inc.,
United Communications, Inc., Horizon Services, Inc., and Horizon PCS,
Inc.

10.36* Form of Lock-up Agreement.

10.37* Securities Purchase Agreement dated September 26, 2000 by and among
Horizon PCS, Inc. Apollo Investment Fund IV, L.P., Apollo Overseas
Partners IV, L.P., Ares Leveraged Investment Fund, L.P., Ares
Leveraged Investment Fund II, L.P. and First Union Capital Partners,
LLC.

10.38* Investors Rights and Voting Agreement dated September 26, 2000 by and
among Horizon PCS, Inc. Apollo Investment Fund IV, L.P., Apollo
Overseas Partners IV, L.P., Ares Leveraged Investment Fund, L.P., Ares
Leveraged Investment Fund II, L.P. and First Union Capital Partners,
LLC.

10.39* Registration Rights Agreement dated September 26, 2000 by and among
Horizon PCS, Inc. Apollo Investment Fund IV, L.P., Apollo Overseas
Partners IV, L.P., Ares Leveraged Investment Fund, L.P., Ares
Leveraged Investment Fund II, L.P. and First Union Capital Partners,
LLC.

10.40* Credit Agreement, dated as of September 26, 2000, by and among Horizon
Personal Communications, Inc., and Bright Personal Communications
Services, LLC, Horizon PCS, Inc. (the "Parent") and certain
Subsidiaries of the Parent, the several banks and other financial
institutions as may from time to time become parties to this
Agreement, First Union National Bank, as Administrative Agent,
Westdeutsche Landesbank Girozentrale, as Syndication Agent and
Arranger and Fortis Capital Corp., as Documentation Agent.

10.41* Warrant Agreement dated as of September 26, 2000 between Horizon PCS,
Inc. and Wells Fargo Bank Minnesota, National Association.

10.42* Warrant Registration Rights Agreement made as of September 26, 2000 by
and among Horizon PCS, Inc. and Donaldson, Lufkin & Jenrette
Securities Corporation and First Union Securities, Inc.

21.1* Subsidiaries of Horizon.

23.1*** Consent of Arthur Andersen, LLP.

23.2** Consent of Arnall Golden & Gregory, LLP (contained in legal opinion
filed as Exhibit 5.1).

24.1*** Powers of Attorney (set forth on the signature page hereto).

27.1*** Financial Data Schedule (for SEC use only).

27.2*** Financial Data Schedule (for SEC use only).

27.3*** Financial Data Schedule (for SEC use only).

--------------------
* incorporated by reference to the exhibit with the same number in the
Registrant's Registration Statement on Form S-4 (File No. 333-51238)
** to be filed by amendment.
(1) In accordance with Item 601(b)(2) of Regulation S-K, the schedules
have been omitted and a list briefly describing the schedules is
at the end of the Exhibit. The Registrant will furnish
supplementally a copy of any omitted schedule to the commission
upon request.
+ The Registrant has requested confidential treatment for certain
portions of this exhibit pursuant to Rule 406 of the Securities
Act of 1933, as amended.
*** previously filed.

(b) Financial Statement Schedules:

The following is the schedule filed a s apart of the registration statement -
Schedule II - Valuation and Qualifying Accounts.
<PAGE>

SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this Amendment to Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Chillicothe, State of Ohio, on the 15th day of December, 2000.

HORIZON PCS, INC.

By: /s/ William A. McKell
----------------------------------------
William A. McKell
Chairman of the Board, President,
and Chief Executive Officer

Pursuant to the requirements of the Securities Act of 1933, this
Amendment to Registration Statement has been signed by the following person in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
<S> <C> <C>

Name Title Date

/s/ William A. McKell Chairman of the Board, President and December 15, 2000
------------------------------------
William A. McKell Chief Executive Officer (Principal
Executive Officer)

/s/ Peter M. Holland Chief Financial Officer; Director December 15, 2000
------------------------------------
Peter M. Holland (Principal Financial and Accounting
Officer)

/s/ Thomas McKell* Director December 15, 2000
------------------------------------
Thomas McKell

/s/ Phoebe H. McKell* Director December 15, 2000
------------------------------------
Phoebe H. McKell

/s/ Lonnie D. Pedersen* Director December 15, 2000
------------------------------------
Lonnie D. Pedersen

/s/ Robert A. Katz* Director December 15, 2000
------------------------------------
Robert A. Katz

/s/ Marc J. Rowan* Director December 15, 2000
------------------------------------
Marc J. Rowan

</TABLE>

*By: /s/ Peter M. Holland
-------------------------------
Peter M. Holland
Attorney in Fact

<PAGE>

INDEX TO EXHIBITS