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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 37)
CELLULAR COMMUNICATIONS, INC.
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(Name of Issuer)
Series A Common Stock, par value $.01 per share
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(Title of Class of Securities)
150917102
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(CUSIP Number)
Kristina Veaco, Esq. Nathaniel M. Cartmell III
AirTouch Communications, Inc. Pillsbury Madison & Sutro
One California Street Post Office Box 7880
San Francisco, CA 94111 San Francisco, CA 94120-7880
(415) 658-2088 (415) 983-1570
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(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
October 30, 1995
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(Date of Event Which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box / /.
Check the following box if a fee is being paid with this statement / /. (A fee
is not required only if the reporting person: (1) has a previous statement on
file reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of less than five percent of such class.
See Rule 13d-7).
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required in the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
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CUSIP NO. 150917102
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Name of Reporting Person
1. S.S. or I.R.S. Identification No. of Above Person
AIRTOUCH COMMUNICATIONS, INC. 94-3213132
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Check the Appropriate Box if a Member of a Group
2. (a) / / (b) / X /
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SEC Use Only
3.
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Source of Funds
4. WC
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Check Box if Disclosure of Legal Proceedings is Required
Pursuant to Items 2(d) or 2(e) / /
5.
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Citizenship or Place of Organization
6. DELAWARE
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Sole Voting Power
7. 3,450,800
Number of -------------------------------------------------------------
Shares Shared Voting Power
Beneficially 8. -0-
Owned by -------------------------------------------------------------
Each Sole Dispositive Power
Reporting 9. 3,450,800
Person
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With Shared Dispositive Power
10. -0-
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Aggregate Amount Beneficially Owned by Each Reporting Person
11. 3,450,800
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Check if the Aggregate Amount in Row 11 Excludes Certain
Shares* / /
12.
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Percent of Class Represented by Amount in Row 11
13. 26.3%
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Type of Reporting Person
14. CO
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Following is a restatement of the entire text of the Statement on Schedule 13D
filed on February 18, 1992 by PacTel Corporation (the predecessor to AirTouch
Communications, Inc.) and amended from time to time thereafter, including such
amendments as are necessary to reflect the event requiring the filing of this
Amendment No. 37.
Item 1. SECURITY AND ISSUER.
The class of equity securities to which this Statement relates
is the Series A Common Stock, $.01 par value (the "Series A Common Stock"), of
Cellular Communications, Inc., a Delaware corporation (the "Issuer"). The
Issuer's principal executive offices are located at 110 East 59th Street, New
York, NY 10022.
Item 2. IDENTITY AND BACKGROUND.
This Statement is being filed by AirTouch Communications, Inc.,
a Delaware corporation ("AirTouch"), which is the successor to AirTouch
Communications (formerly PacTel Corporation), a California corporation.
AirTouch's principal executive offices are located at One California Street, San
Francisco, CA 94111.
AirTouch is a global wireless communications company, with
interests in cellular, paging, personal communications services, the Globalstar
satellite system and other operations in the United States and Belgium, Canada,
France, Germany, India, Japan, Portugal, South Korea, Spain, Sweden and
Thailand. AirTouch's worldwide cellular interests covered more than 104 million
POPs and served over 2.5 million proportionate subscribers at September 30,
1995. In the United States, AirTouch's cellular interests represent over 35
million POPs and 1.9 million proportionate subscribers. The Company controls or
shares operational control over cellular systems in ten of the thirty largest
markets in the United States, including Los Angeles, San Francisco, San Diego,
Detroit and Atlanta. AirTouch's international cellular ventures represent 68
million POPs and 635,000 proportionate subscribers.
The names, business addresses, and present principal
occupations/titles of each director and executive officer of AirTouch are set
forth in Appendix A hereto, which is incorporated herein by reference. Each such
person is a United States citizen.
During the last five years neither AirTouch nor, to the best of
its knowledge, any of its executive officers or directors, has been convicted in
any criminal proceeding (excluding traffic violations or similar misdemeanors)
or has been a party to a civil proceeding of a judicial or administrative body
of competent jurisdiction and as a result of such proceeding was or is subject
to a judgment, decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to, federal or state securities laws
or finding any violation with respect to such laws.
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Item 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
The amount of funds used to purchase the shares of Series A
Common Stock reported as beneficially owned in Item 5 hereof was approximately
$126,500,000, the source of which was working capital.
Item 4. PURPOSE OF TRANSACTION.
The Merger Agreement. AirTouch, Cellular Communications, Inc., a
predecessor of the Issuer ("Old CCI"), CCI Newco, Inc., a predecessor of the
Issuer ("New CCI"), and CCI Newco Sub, Inc. ("Newco Sub") are parties to an
Amended and Restated Agreement and Plan of Merger and Joint Venture
Organization, dated as of December 14, 1990 (the "Merger Agreement"), which is
attached hereto as Exhibit 1 and incorporated herein by reference.
In brief, the Merger Agreement provides for (i) the combination
of certain cellular telephone systems in Ohio and Michigan of Old CCI and
AirTouch in a joint venture (the "Joint Venture"), (ii) an initial investment by
AirTouch in the Issuer and a mechanism whereby AirTouch may (and under certain
circumstances is obligated to) acquire additional interests in the Issuer and
(iii) an appraisal process (the "Appraisal Process"), commencing (unless
deferred) on August 1, 1996, pursuant to which AirTouch may acquire the Issuer,
including its interest in (a) the Joint Venture or (b) the Joint Venture and any
other venture entered into by the Issuer and AirTouch (the "Second Venture") (in
either case, together with such other assets of the Issuer as it and AirTouch
may agree upon), by causing the Issuer to redeem (the "Redemption") each share
of its Redeemable Participating Convertible Preferred Stock, par value $.01 per
share (the "Redeemable Participating Preferred Stock"), and Series A Common
Stock (together with the Redeemable Participating Preferred Stock, the
"Redeemable Stock") not owned by AirTouch at a price reflecting the appraised
private market value of such assets of the Issuer, less certain adjustments to
be determined.
In order to facilitate the transactions called for in the Merger
Agreement, Old CCI was merged with and into Newco Sub, a wholly-owned subsidiary
of New CCI, on August 1, 1991 (the "Closing"). After the Closing, New CCI, which
by virtue of the merger had become the publicly-traded company, changed its name
to Cellular Communications, Inc.
Formation of the Joint Venture. At the Closing, the Issuer
contributed its cellular telephone systems, located primarily in the state of
Ohio, and AirTouch contributed its cellular telephone systems in Ohio and
Michigan, to the Joint Venture, which is owned equally by the Issuer and
AirTouch (subject to certain preferred payment adjustments). The Joint Venture
was organized and is operated in accordance with the terms of the New Par
Partnership Agreement, dated as of August 1, 1991,
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which is attached hereto as Exhibit 2 and incorporated herein by reference. The
Joint Venture is controlled by a four-person partnership committee, with two
members appointed by each of the Issuer and AirTouch.
Initial Equity Purchases by AirTouch. At the Closing, AirTouch
purchased 2,206,410 shares of the Issuer's Class A Preferred Stock, par value
$.01 per share (the "Class A Preferred Stock") and 25,641 shares of the Issuer's
Series C Common Stock, par value $.01 per share (the "Series C Common Stock")
for a purchase price of approximately $87,050,000. Such shares represented
approximately 5% of the Issuer's outstanding capital stock. Neither the Class A
Preferred Stock nor the Series C Common Stock is registered pursuant to section
12 of the Securities Exchange Act of 1934, as amended (the "Exchange Act").
Voting Rights of the Class A Preferred. Each share of Class A
Preferred Stock is entitled to the full voting rights and powers of the Series A
Common Stock and the Series C Common Stock (together, the "Common Stock") on an
as-converted basis. In addition, the Class A Preferred Stock has certain special
rights, described below, to elect directors of the Issuer. In no event, however,
will such special voting rights entitle AirTouch to elect a majority of the
Issuer's directors. Subject to the limitations described below, AirTouch is
entitled to elect one director for each of the following criteria that is
satisfied at such time:
i. The number of shares of Common Stock beneficially owned by
AirTouch, assuming conversion of all then outstanding shares of
preferred stock of the Issuer then owned by AirTouch at the then
applicable conversion rate(s), represents at least 10 percent of the
total number of Fully Diluted Shares (defined below) then outstanding.
ii. (a) The number of shares of Common Stock beneficially owned
by AirTouch, assuming conversion of all then outstanding shares of
preferred stock of the Issuer owned by AirTouch at the then applicable
conversion rate(s), represents at least 30 percent of the total number
of Fully Diluted Shares then outstanding or (b) the value of the
Issuer's assets on a consolidated basis, excluding its interest in the
Joint Venture, exceeds 20 percent of the total value of its assets on a
consolidated basis (including, for this purpose, its interest in the
Joint Venture).
iii. George S. Blumenthal will have ceased to be a director or
to devote a substantial portion of his working time to the business and
affairs of the Issuer (other than as a result of a temporary disability
lasting not in excess of six months).
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iv. J. Barclay Knapp will have ceased to be a director or to
devote a substantial portion of his working time to the business and
affairs of the Issuer (other than as a result of a temporary disability
lasting not in excess of six months).
"Fully Diluted Shares" is defined in the Merger Agreement to mean at any date
the sum of all shares of Common Stock then outstanding and all shares of Common
Stock issuable upon the exercise of all rights, options and warrants to acquire,
and upon the conversion or exchange of all outstanding securities convertible
into or exchangeable for, shares of Common Stock, whether such rights, options,
warrants or securities are outstanding or are issuable upon the exercise of
outstanding rights, options or warrants or upon the conversion or exchange of
outstanding securities, but excluding before the occurrence of a Triggering
Event (as defined in the rights agreement attached hereto as Exhibit 4) any
shares of Redeemable Stock issuable upon the exchange of rights issued pursuant
to such rights agreement.
If at any time the right to elect a director pursuant to (i) or
(ii) above arises and AirTouch elects to exercise such right, the number of
directors constituting the Board of the Issuer will automatically be increased
if necessary to permit AirTouch to exercise such right. The Issuer has the
option of deciding whether any directors added pursuant to (iii) or (iv) above
will fill vacancies or newly created directorships. The Restated Certificate of
Incorporation of the Issuer (the "Restated Charter"), which is attached hereto
as Exhibit 3 and incorporated herein by reference, provides that,
notwithstanding the foregoing, AirTouch shall not have the right to elect more
than two directors prior to the MRO (defined below).
Additional Purchases by AirTouch; Restrictions on Certain
Acquisitions. AirTouch has agreed not to acquire prior to the Redemption (or, in
the event the Redemption does not occur, the third anniversary of the date when
AirTouch can no longer cause the Redemption (the "Third Anniversary"))
beneficial ownership of shares of Redeemable Participating Preferred Stock or
Common Stock pursuant to open-market purchases or otherwise (other than in
connection with the MRO or the Appraisal Process, each as described below) if,
as a result of such acquisition, AirTouch and its affiliates would beneficially
own, alone or as a group, more than 49 percent of the Fully Diluted Shares on
the date of such acquisition. However, as described below, AirTouch will, until
the Redemption (or, in the event the Redemption does not occur, the Third
Anniversary), be limited in its ability to vote the Redeemable Participating
Preferred Stock and Common Stock it owns.
Right to Exchange. Pursuant to the Merger Agreement, AirTouch
and any affiliate thereof has the right to request that the Issuer, and the
Issuer upon such request shall take all action necessary to, exchange all or any
portion of the shares of
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Redeemable Stock owned by them for an equal number of shares of Series C Common
Stock.
Permitted Acquisitions in the Event of Certain Third Party
Acquisitions or Proposals. Notwithstanding the restrictions described above, the
Merger Agreement provides that upon the earlier of (i) the date any person other
than AirTouch or any of its affiliates or associates (an "Acquiring Person")
acquires beneficial ownership of 15 percent or more of the Common Stock or (ii)
the commencement of a tender offer or exchange offer by any person (other than
AirTouch or the Issuer or any of its wholly owned subsidiaries) for which
necessary financing is committed (or, in the good faith judgment of AirTouch, is
reasonably capable of being financed) if upon consummation thereof such person
would beneficially own more than 50 percent of the shares of the Redeemable
Participating Preferred Stock and Common Stock (taken as a whole) then
outstanding, AirTouch and its affiliates may acquire in the aggregate up to 51
percent of the Fully Diluted Shares. In the event of a third party tender offer
or exchange offer described above, AirTouch may immediately commence a competing
tender offer or exchange offer but may not purchase shares pursuant to such
offer until such third party is, in AirTouch's reasonable judgment, legally
capable of purchasing shares pursuant to such third party offer.
Preemptive Rights. The Merger Agreement further provides that
until the date AirTouch loses the right to cause the redemption (the "Back End
Termination Date"), AirTouch will (except in connection with certain specified
transactions) have preemptive rights with respect to any issuance of shares of
Series A Common Stock, Redeemable Participating Preferred Stock or securities
convertible or exchangeable into, or exercisable for, Series A Common Stock.
Antitrust Regulation. Certain acquisition transactions may not
be consummated until certain information has been filed with the Federal Trade
Commission and the Department of Justice (the "Agencies") pursuant to the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), and certain waiting period requirements thereunder have been satisfied.
AirTouch and the Issuer made the filings required under the HSR Act in
connection with the MRO and the Redemption on September 21, 1995 and early
termination of the waiting period was granted on October 4, 1995.
Rights Agreement. The Issuer has adopted a rights agreement,
which is attached hereto as Exhibit 4 and incorporated herein by reference, that
would be triggered upon the acquisition by an Acquiring Person of beneficial
ownership of 15 percent or more of the outstanding Redeemable Participating
Preferred Stock and Common Stock (taken as a whole). The Rights Agreement would
provide to stockholders of the Issuer (other than the Acquiring Person) rights
to purchase at a discount shares of the Issuer's Series D Junior Participating
Preferred Stock, par value $1.00 per
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share. Such rights are not redeemable prior to the end of the Appraisal Process
unless the Rights Agreement is amended to provide otherwise with the concurrence
of AirTouch and the approval of holders of a majority of the shares of
Redeemable Participating Preferred Stock and Common Stock (other than AirTouch),
voting together as a single class.
Certain Standstill Agreements of AirTouch; Voting. Pursuant to
the Merger Agreement, until the Redemption (or in the event the Redemption does
not occur, the Third Anniversary), except as otherwise contemplated by the
Merger Agreement, AirTouch and its affiliates will not (i) acquire any
securities or properties of the Issuer or any of its successors or subsidiaries;
(ii) solicit proxies or consents or become a "participant" in a "solicitation"
(as such terms are defined in Regulation 14A of the Exchange Act) with respect
to securities of the Issuer or any of its successors or subsidiaries or initiate
any stockholder proposal with respect to the Issuer or any of its successors or
subsidiaries; (iii) take any action for the purpose of convening a stockholders'
meeting of the Issuer or any of its successors or subsidiaries; (iv) make any
proposal or public announcement relating to a tender or exchange offer for
securities of the Issuer or any of its successors or subsidiaries or a merger,
business combination, sale of assets, liquidation or other extraordinary
corporate transaction relating to the Issuer and any of its successors or its
subsidiaries; (v) form or participate in a "group" (within the meaning of
Section 13(d)(3) of the Exchange Act) for the purpose of acquiring, holding,
voting or disposing of securities of the Issuer or any of its successors or
subsidiaries or taking any other actions restricted under clauses (i) through
(iv) above; (vi) enter into any discussions or understandings with any third
party with respect to any of the foregoing; (vii) disclose any intention, plan
or arrangement inconsistent with the foregoing; or (viii) advise, assist or
encourage any other person in connection with the foregoing; provided, however,
that the foregoing is not deemed to apply to (a) any director of the Issuer
nominated or appointed by AirTouch acting in his or her capacity as such or (b)
the activities of the Joint Venture or the Second Venture or of AirTouch in
connection with the management of the Joint Venture or the Second Venture.
Pursuant to the Merger Agreement, until the Redemption (or, in
the event the Redemption does not occur, the Third Anniversary), AirTouch will
vote the Redeemable Participating Preferred Stock and Common Stock owned by it
in the same proportion as the shares of Redeemable Participating Preferred Stock
and Common Stock, excluding Redeemable Participating Preferred Stock and Common
Stock held by any Acquiring Person; provided, however, that with respect to the
election of directors, it may vote at its option for directors nominated by the
Board of the Issuer. Notwithstanding the preceding sentence, until the Back End
Termination Date, with respect to any matter submitted to a stockholder vote
that relates to and is inconsistent with, among other things, the MRO, the
Appraisal Process, AirTouch's permitted acquisitions
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of additional shares of the Issuer's capital stock, or the restrictions agreed
to by the Issuer with respect to certain of its activities, AirTouch may vote
against such matter, but may not vote to reduce its obligations with respect
thereto.
In the event that within one year after the Back End Termination
Date, a third party makes a tender offer for capital stock of the Issuer,
AirTouch will cause to be tendered therein all shares of Redeemable
Participating Preferred Stock and Common Stock owned by it in the same
proportion as shares of Redeemable Participating Preferred Stock and Common
Stock (other than AirTouch), except that AirTouch may also cause such shares of
Redeemable Participating Preferred Stock and Common Stock to be withdrawn at any
time that such other stockholders have a right to withdraw such shares, in the
same proportion as shares of Redeemable Participating Preferred Stock and Common
Stock (taken as a whole) withdrawn by such stockholders.
Registration Rights. Pursuant to the Merger Agreement, the
Issuer has agreed that after the expiration of certain time periods (not to
exceed two years) following the Back End Termination Date (the exact time to be
determined in accordance with the Merger Agreement) and upon the request of
AirTouch and subject to certain conditions, to file a registration statement
(the "Post-Closing Registration Statement") under the Securities Act of 1933, as
amended (the "Securities Act") as to the number of shares of Common Stock then
held by AirTouch or its affiliates specified in such request (the "Registered
Shares"). The Issuer is not required to file more than three Post-Closing
Registration Statements that become effective and remain effective for a period
(up to three months) sufficient to complete the distribution of the Registered
Shares. The Merger Agreement further requires the Issuer to supplement or amend
any Post-Closing Registration Statement as required by (i) the registration form
utilized by the Issuer for such registration, (ii) the Securities Act or the
rules or regulations thereunder or (iii) AirTouch (or any underwriter for
AirTouch) with respect to the Registered Shares. The Issuer shall bear the
expenses of such registrations, except for filing fees and certain expenses of
AirTouch.
The MRO. At the close of business on October 27, 1995, the
Issuer redeemed 10.04 million shares of Redeemable Participating Preferred Stock
(the "MRO") at $60 per share (the "Mandatory Redemption Price"). In connection
with the MRO, AirTouch purchased (i) 10.04 million newly-issued shares of Series
C Common Stock for $602,400,000 and (ii) an option to purchase 10,700 shares of
Series C Common Stock, at an exercise price of $28.51 per share, for
approximately $337,000. Pursuant to a registration rights agreement, the Issuer
has agreed to register the newly-issued shares purchased by AirTouch in the MRO,
as well as shares of Series C Common Stock purchased by AirTouch (x) upon
exercise of the options referred to in the preceding sentence and the following
paragraph or (y) as described in the following paragraph) under terms that are
intended to provide
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AirTouch with the ability to sell such shares equivalent to that which AirTouch
would have had if the shares were registered at the time of purchase by
AirTouch.
Treatment of Certain Employee Replacement Options and Option
Shares. On January 4, 1996, the Issuer is obligated, to the extent requested by
the holders thereof, to cancel certain options held by directors, officers and
employees of the Issuer ("Employee Replacement Options") and repurchase certain
shares of Redeemable Participating Preferred Stock or Series A Common Stock (the
"Option Shares") (together covering in the aggregate approximately 2.4 million
shares of the Redeemable Stock) issued upon exercise of such options. Each
Employee Replacement Option will be canceled in exchange for a payment of the
Mandatory Redemption Price (as adjusted) per share less the applicable exercise
price for each share subject to such option, and each Option Share will be
repurchased for the Mandatory Redemption Price (as adjusted). AirTouch is
obligated to purchase from the Issuer (i) for an amount equal to the aggregate
consideration paid by the Issuer upon cancellation of such employee options, an
option or options exercisable for that number of shares of Series C Common Stock
equal to the number of shares subject to the canceled Employee Replacement
Options, and (ii) for the Mandatory Redemption Price (as adjusted) per share, a
number of shares of Series C Common Stock equal to the number of Option Shares
repurchased by the Issuer. The exercise price per share of the AirTouch options
will be the weighted average exercise price per share of the corresponding
canceled options.
Appraisal Process. The Appraisal Process will commence on August
1, 1996 (unless deferred for six months by the Issuer). Pursuant to the
Appraisal Process, AirTouch has the right, by causing the Redemption, to acquire
the Issuer, including its interest in (i) the Joint Venture or (ii) the Joint
Venture and the Second Venture (together in either case with such other
businesses or assets of the Issuer as AirTouch and the Issuer may agree upon
(the "Other Assets")), at a price reflecting the appraised private market value
of such acquired interests determined in accordance with the Merger Agreement.
AirTouch will finance the Redemption by providing to the Issuer any necessary
funds. The price to be paid in the Redemption will be subject to reduction for
certain adjustments.
In the event that any Other Assets are retained, the Redemption
price per share will be increased by an amount based upon the appraised private
market value of such Other Assets retained. Any Other Assets not mutually agreed
to be retained will be sold. The net proceeds from such sale remaining after
reduction for the Issuer's costs, expenses, appropriate escrows and taxes
relating to the sale will be distributed to the Issuer's stockholders.
AirTouch has the opportunity to evaluate up to three different
appraisal values during the Appraisal Process prior to
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determining whether to cause a Redemption. In the event AirTouch rejects the
first two appraisals and thereafter elects to cause a Redemption in the third
appraisal, the Redemption price will be increased by two percent. The final
appraisal may commence between five and six and one-half years following the
Closing.
AirTouch Make Whole Obligation. In the event that AirTouch does
not exercise its right to cause the Redemption, the Issuer is obligated to
promptly commence a process to sell itself (and, under certain circumstances,
AirTouch's interest in the Joint Venture). In the alternative, the Issuer has
the right to purchase AirTouch's interest in the Issuer (or the Issuer and the
Joint Venture, as the case may be) at a price based upon their appraised values
determined in accordance with the Merger Agreement. The Issuer may not exercise
such right to purchase, or elect not to accept certain bids resulting from the
sales process described below, if the effect in either case would be to release
AirTouch from its Make Whole Obligation (defined below), without the approval of
the holders (other than AirTouch) of a majority of the outstanding shares of
Common Stock and Redeemable Participating Preferred Stock voting together as a
class.
If the Issuer or its interest in the Joint Venture (or, if the
Joint Venture has been dissolved, the Joint Venture assets) is sold pursuant to
a Qualifying Third Party Sale (i.e., a sale within certain specified time
periods not to exceed two years) for a Third Party Price Per Share less than the
Gross Make Whole Price Per Share (an amount which is based upon the appraised
private market value of the Issuer's interest in the Joint Venture), AirTouch is
obligated to pay to each stockholder of the Issuer other than AirTouch (the
"Make Whole Obligation") a specified percentage of such shortfall (which
percentage decreases at specified thresholds as such shortfall increases). The
Make Whole Obligation will be reduced by a Total Per Share Adjustment. In the
event the Total Per Share Adjustment exceeds the Make Whole Obligation, the
Issuer is obligated to pay to AirTouch an amount (the "AirTouch Payment") equal
to the aggregate of such excess amounts (increased to compensate AirTouch for
the portion of any such payment indirectly borne by it as a stockholder of the
Issuer). The AirTouch Payment would be made by the Issuer to AirTouch subsequent
to the sale of the Issuer and the receipt of the proceeds therefrom by the
stockholders of the Issuer or the sale of the Issuer's interest in the Joint
Venture (or, if the Joint Venture has been dissolved, the Joint Venture assets)
and the receipt of the proceeds therefrom by the Issuer. If a third party sale
is not consummated upon certain conditions and within certain specified time
periods, the Make Whole Obligation will terminate.
Certain Required Asset Sales; Other Adjustments. In the event
that AirTouch does not cause the Redemption, the Issuer is obligated, no later
than one year after AirTouch loses its right to cause the Redemption, to sell
promptly all of its assets (other than its interest in the Joint Venture). Such
a sale may be in
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conjunction with a Qualifying Third Party Sale. In connection with a sale of the
Issuer (or its interest in the Joint Venture) other than a Qualifying Third
Party Sale, the Issuer is obligated to pay AirTouch (the "Other Sale Payment")
an amount equal to the aggregate Total Per Share Adjustment (increased to
compensate AirTouch for the portion of any such payment indirectly borne by it
as a stockholder of the Issuer). Such payment obligation continues regardless of
when such a sale is made, whether the Make Whole Obligation has expired or
whether AirTouch has ceased to hold an ownership interest in the Issuer or the
Joint Venture. The Other Sale Payment would be made by the Issuer subsequent to
the sale of the Issuer and the receipt of the proceeds therefrom by the Issuer's
stockholders or the sale of the Issuer's interest in the Joint Venture (or, if
the Joint Venture has been dissolved, the Joint Venture assets) and the receipt
of the proceeds therefrom by the Issuer.
The Termination Agreement. On December 11, 1992, Pacific Telesis
Group ("Telesis") and AirTouch entered into a Termination Agreement (the
"Termination Agreement") with the Issuer and Old CCI. The Termination Agreement,
including all exhibits thereto, is attached hereto as Exhibit 5 and is
incorporated herein by reference. The following discussion is qualified in its
entirety by reference to the Termination Agreement and such exhibits.
The Termination Agreement terminated all of Telesis' obligations
under a letter of responsibility that Telesis entered into in connection with
the Merger Agreement and provided for substitute credit assurance for AirTouch's
obligations to the Issuer in connection with the MRO, the Make Whole Obligation
and the obligation described in the following sentence. Under the Termination
Agreement, AirTouch and the Issuer agreed that AirTouch in certain instances
will have an additional make whole obligation should AirTouch determine not to
exercise its right to cause the Redemption and a Qualifying Third Party Sale is
consummated at a price less than AirTouch would have been required to pay.
In addition, under the Termination Agreement, AirTouch had the
right to exchange each share of the Issuer's Class A Preferred Stock that it
currently owns for one share of the Issuer's Class A Preference Stock, $1 par
value per share (the "Class A Preference Stock"), to be authorized and issued
pursuant to Section 7 of the Termination Agreement. Such right became
exercisable after the Issuer filed in January 1993 a certificate of designation
with the Delaware Secretary of State relating to the Class A Preference Stock
(the "Certificate of Designation"). The Class A Preference Stock is not
registered pursuant to section 12 of the Exchange Act. In September 1993,
AirTouch exercised such right and exchanged its shares of the Issuer's Class A
Preferred Stock for an equal number of shares of the Issuer's Class A Preference
Stock. In connection with the exchange, and pursuant to its rights under the
Certificate of Designation,
<PAGE> 13
AirTouch executed a written consent electing Mr. Cox to the board of directors
of the Issuer effective on September 16, 1993.
AirTouch also agreed, subject to certain conditions, to waive
certain provisions of the Merger Agreement and the Restated Charter to permit
the Issuer to own, operate, manage or maintain a wireless communications
business solely in Puerto Rico (a "PRCo"). The provisions in the Certificate of
Designation relating to AirTouch's special rights as holder of Class A
Preference Stock to elect directors based on percentage ownership of the
Issuer's capital stock exclude PRCo Acquisition Shares (as defined in the
Certificate of Designation) from the calculation of Fully Diluted Shares.
The descriptions of the transactions contemplated by, and the
provisions of, the Merger Agreement and the other agreements or documents
referred to in this Item 4 are qualified in their entirety by reference to such
agreements or documents, which are attached as exhibits hereto and incorporated
herein by reference. For a fuller description of the matters discussed in this
Item 4, reference is made to the complete Proxy Statement/ Prospectus of the
Issuer relating to the transactions contemplated by the Merger Agreement, which
was filed with the Securities and Exchange Commission on December 28, 1990 (SEC
File No. 0-14882).
* * *
AirTouch's purpose in acquiring the shares of Series A Common
Stock reported as beneficially owned in Item 5 of this Statement was to take
advantage of its right to acquire Series A Common Stock in the open market or
otherwise in accordance with the provisions of the Merger Agreement, prior to
the maturation of any rights or obligations to acquire or make payments in
respect to Redeemable Stock pursuant to the Appraisal Process.
Subject to the factors discussed below, AirTouch expects that it
may seek from time to time to acquire additional shares of Series A Common
Stock, through open market purchases, privately negotiated transactions or
otherwise. Any such purchases may be discontinued at any time, possibly for
extended periods of time, and once discontinued may thereafter recommence. The
amount and timing of any such acquisitions will depend upon AirTouch's
evaluation of the market for the Series A Common Stock, the Issuer's business,
prospects and financial condition, other investment opportunities available to
AirTouch, prospects for AirTouch's own business, general economic conditions,
money and stock market conditions and other developments as well as AirTouch's
rights and obligations under the Merger Agreement. Depending on the same
factors, AirTouch may decide to sell all or part of the shares.
Except as set forth in this Item 4, neither AirTouch nor, to the
best of its knowledge, any of its executive officers or directors, has any plans
or proposals with respect to the Issuer
<PAGE> 14
(although each reserves the right to develop such plans or proposals, subject to
AirTouch's obligations under the Merger Agreement) that relate to or would
result in any of the actions specified in clauses (a) through (j) of Item 4 of
Schedule 13D.
Item 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) As of October 31, 1995, AirTouch owned 3,450,800 shares of
Series A Common Stock. According to the Issuer, the number of shares of Series A
Common Stock outstanding as of October 30,1995 was 13,100,822. Based on such
information, the 3,450,800 shares of Series A Common Stock beneficially owned by
AirTouch represent approximately 26.3% of the class. See the Note below. Such
shares represent approximately 8.1% of the Issuer's outstanding capital stock.
Neither AirTouch nor, to the best of its knowledge, any executive officer or
director of AirTouch, beneficially owns any shares of Series A Common Stock.
In addition to the shares of Series A Common Stock as to which
beneficial ownership is being reported herein, AirTouch owns shares of other
classes of securities of the Issuer, which classes are not registered under
Section 12 of the Exchange Act. See Item 4 of this Statement.
Note: Pursuant to the Restated Charter, a change in beneficial
ownership after January 28, 1992 of shares of Redeemable Participating Preferred
Stock results in the automatic conversion, as of immediately prior to such
change, of such shares into shares of Series A Common Stock. As a result,
although the number of shares of Series A Common Stock outstanding is likely to
increase automatically over time, the amounts of such increases are neither
predictable nor presently ascertainable by AirTouch, since changes in beneficial
ownership can occur other than through trades (whether public or private) or
other changes in record ownership. Similarly, absent purchases of Series A
Common Stock by AirTouch that offset such automatic increases, AirTouch's
percentage beneficial ownership of shares of Series A Common Stock is likely to
decrease, although the exact amounts of such decreases cannot be predicted.
(b) AirTouch has the sole power to vote or to direct the vote
and the sole power to dispose of, or to direct the disposition of, the Shares.
(c) On February 7, 1992, AirTouch purchased 275,000 shares of
Series A Common Stock in an over-the-counter transaction at a price per share of
$35-1/8. Since then, AirTouch has purchased an aggregate of 3,175,800 shares of
Series A Common Stock in over-the-counter and privately negotiated transactions
at the following prices per share:
<PAGE> 15
<TABLE>
<CAPTION>
Price per share (excluding
Date Number of Shares brokerage commissions)
- ---- ---------------- ----------------------
<S> <C> <C>
February 28, 1992 8,000 $ 32.875
1,000 $ 33.000
2,000 $ 33.250
2,000 $ 33.500
45,000 $ 33.4375
March 3, 1992 12,000 $ 34.250
40,000 $ 34.375
March 4, 1992 5,000 $ 35.000
March 5, 1992 5,000 $ 35.000
5,000 $ 35.125
10,000 $ 35.250
March 6, 1992 33,000 $ 35.125
March 11, 1992 100,000 $ 35.875
March 12, 1992 25,000 $ 35.875
March 13, 1992 20,000 $ 35.875
March 17, 1992 20,000 $ 35.875
March 19, 1992 8,000 $ 35.875
March 20, 1992 40,000 $ 35.500
March 23, 1992 15,000 $ 35.375
45,000 $ 35.250
March 24, 1992 25,000 $ 35.250
15,000 $ 35.125
March 25, 1992 30,000 $ 35.250
March 26, 1992 8,000 $ 35.250
March 30, 1992 10,000 $ 35.250
April 2, 1992 20,000 $ 35.375
April 7, 1992 63,000 $ 35.25
April 10, 1992 15,000 $ 34.875
35,000 $ 35.000
April 13, 1992 5,000 $ 34.875
April 14, 1992 40,000 $ 34.875
</TABLE>
<PAGE> 16
<TABLE>
<S> <C> <C>
April 15, 1992 25,000 $ 34.750
April 20, 1992 10,000 $ 34.750
April 29, 1992 9,000 $ 34.000
April 30, 1992 10,000 $ 34.500
May 7, 1992 5,000 $ 35.125
May 8, 1992 37,000 $ 34.875
May 11, 1992 10,000 $ 35.000
May 12, 1992 50,000 $ 35.375
May 14, 1992 35,000 $ 35.375
May 15, 1992 30,000 $ 35.250
May 19, 1992 15,000 $ 35.250
May 20, 1992 60,000 $ 35.375
May 22, 1992 24,000 $ 35.375
May 26, 1992 25,000 $ 35.375
May 28, 1992 300,000 $ 34.875
10,000 $ 35.250
May 29, 1992 10,000 $ 34.875
June 1, 1992 10,000 $ 34.875
June 4, 1992 100,000 $ 34.625
100,000 $ 34.500
June 9, 1992 125,000 $ 34.000
June 10, 1992 50,000 $ 33.625
June 12, 1992 3,500 $ 33.0000
June 17, 1992 23,000 $ 33.0000
June 18, 1992 5,000 $ 33.0000
June 19, 1992 10,000 $ 33.1875
4,000 $ 33.0000
June 22, 1992 85,000 $ 33.0625
62,900 $ 33.0000
</TABLE>
<PAGE> 17
<TABLE>
<S> <C> <C>
June 25, 1992 5,000 $ 33.2500
June 26, 1992 31,000 $ 33.4375
July 1, 1992 19,000 $ 33.3125
5,000 $ 33.2500
July 7, 1992 10,700 $ 34.0625
12,000 $ 33.875
July 8, 1992 100,000 $ 34.0625
July 13, 1992 5,000 $ 34.00
July 14, 1992 40,000 $ 34.00
July 17, 1992 5,000 $ 34.00
July 20, 1992 10,000 $ 34.00
July 21, 1992 30,000 $ 34.125
12,000 $ 34.00
July 22, 1992 50,000 $ 34.00
July 24, 1992 10,000 $ 34.00
July 27, 1992 10,000 $ 34.00
July 28, 1992 10,000 $ 34.00
July 29, 1992 49,000 $ 34.50
August 12, 1992 10,000 $ 36.0625
20,000 $ 36.00
January 29, 1993 6,000 $ 31.875
February 1, 1993 9,000 $ 31.960
4,000 $ 32.500
February 2, 1993 2,200 $ 33.000
14,000 $ 33.125
5,600 $ 33.500
7,000 $ 33.750
February 5, 1993 10,000 $ 34.250
February 8, 1993 17,000 $ 34.375
February 9, 1993 23,000 $ 34.3125
February 12, 1993 20,000 $ 34.875
</TABLE>
<PAGE> 18
<TABLE>
<S> <C> <C>
March 3, 1993 14,000 $ 34.8125
March 5, 1993 11,000 $ 34.75
January 19, 1994 10,000 $ 44.078
January 24, 1994 5,000 $ 44.25
January 26, 1994 2,500 $ 44.50
February 4, 1994 10,000 $ 44.50
February 8, 1994 3,700 $ 44.50
February 16, 1994 2,000 $ 44.75
March 14, 1994 5,000 $ 44.75
March 31, 1994 119,000 $ 44.50
April 4, 1994 12,000 $ 44.50
April 11, 1994 2,700 $ 44.50
April 12, 1994 25,000 $ 44.50
April 13, 1994 5,000 $ 44.50
April 15, 1994 100,000 $ 44.50
April 25, 1994 5,000 $ 44.50
June 20, 1994 50,000 $ 47.25
June 21, 1994 20,000 $ 47.00
25,000 $ 47.00
June 23, 1994 50,000 $ 47.00
16,000 $ 47.00
7,500 $ 47.00
3,500 $ 47.00
20,000 $ 46.875
July 11, 1994 140,000 $ 47.5625
</TABLE>
(d) No person other than AirTouch has the right to receive or
the power to direct the receipt of dividends from, or the proceeds from the sale
of, the Shares.
(e) Not applicable.
<PAGE> 19
Item 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER.
See Item 4 above.
Item 7. MATERIAL FILED AS EXHIBITS.
15. Amended and Restated Agreement and Plan of Merger and Joint
Venture Organization by and among AirTouch, Old CCI, New CCI and Newco Sub,
dated as of December 14, 1990.
16. New Par Partnership Agreement, dated as of August 1, 1991.
17. Restated Certificate of Incorporation of the Issuer, filed
with the Secretary of State of the State of Delaware on August 1, 1991.
18. Rights Agreement, dated as of July 31, 1991, between New
CCI, AirTouch, and Continental Stock Transfer & Trust Company.
5. Termination Agreement, dated as of December 11, 1992, by and
among Telesis, AirTouch, the Issuer and Old CCI (including all exhibits).
<PAGE> 20
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
AIRTOUCH COMMUNICATIONS, INC.
By: /s/ C. Lee Cox
-----------------------------------
C. Lee Cox
Vice Chairman and President,
Domestic Wireless Businesses
Dated: November 2, 1995
<PAGE> 21
APPENDIX A
DIRECTORS AND EXECUTIVE OFFICERS
DIRECTORS
<TABLE>
<CAPTION>
Name and Present Principal
Business Address Occupation/Title
- ---------------- ----------------
<S> <C>
Carol A. Bartz Chairman of the Board, President and Chief Executive
111 McInnis Parkway Officer, Autodesk, Inc.
San Rafael, CA 94903
C. Lee Cox Vice Chairman and President, Domestic Wireless
2999 Oak Road, Suite 1000 Businesses, AirTouch Communications, Inc.
Walnut Creek, CA 94596
Donald G. Fisher Chairman of the Board and Chief Executive Officer, The
One Harrison Street Gap, Inc.
San Francisco, CA 94105
Sam Ginn Chairman of the Board and Chief Executive Officer,
One California Street AirTouch Communications, Inc.
San Francisco, CA 94111
James R. Harvey Chairman of the Board, Transamerica Corporation
600 Montgomery Street
San Francisco, CA 94111
Paul Hazen Chairman of the Board and Chief Executive Officer, Wells
420 Montgomery Street Fargo & Co.
San Francisco, CA 94104
Arthur Rock Principal, Arthur Rock & Co.
One Maritime Plaza, Suite 1220
San Francisco, CA 94111
Arun Sarin Vice Chairman, AirTouch Communications, Inc. and
One California Street President, AirTouch International
San Francisco, CA 94111
Charles R. Schwab Chairman of the Board and Chief Executive Officer, The
101 Montgomery Street Charles Schwab Corporation
San Francisco, CA 94104
George P. Shultz Professor, Stanford University Graduate School of Business
The Hoover Institution
Stanford, CA 94305
</TABLE>
<PAGE> 22
EXECUTIVE OFFICERS
<TABLE>
<CAPTION>
Name and Present Principal
Business Address Occupation/Title
- ---------------- ----------------
<S> <C>
Sam Ginn Chairman of the Board and Chief Executive Officer
One California Street
San Francisco, CA 94111
C. Lee Cox Vice Chairman and President, Domestic Wireless Businesses
One California Street
San Francisco, CA 94111
Arun Sarin Vice Chairman and President, AirTouch International
One California Street
San Francisco, CA 94111
Mohan S. Gyani Executive Vice President and Chief Financial Officer
One California Street
San Francisco, CA 94111
Margaret G. Gill Senior Vice President, Legal and External Affairs, and
One California Street Secretary
San Francisco, CA 94111
Dwight Jasmann Vice President, Human Resources
One California Street
San Francisco, CA 94111
</TABLE>
