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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-B
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REGISTRATION OF SECURITIES OF CERTAIN SUCCESSOR ISSUERS
Filed Pursuant to Section 12(b) or (g) of the
Securities Exchange Act of 1934
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AIRTOUCH COMMUNICATIONS, INC.
(Exact name of registrant as specified in its charter)
Delaware 94-3213132
State or other jurisdiction of (I.R.S. Employer
incorporation or organization Identification No.)
425 Market Street, San Francisco, CA 94105
(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on
to be so registered each class is to be registered
Common Stock, par value $.01 New York Stock Exchange
per share Pacific Stock Exchange
Preferred Stock Purchase New York Stock Exchange
Rights Pacific Stock Exchange
Securities to be registered pursuant to Section 12(g) of the Act:
None
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Item 1. General Information.
(a) AirTouch Communications, Inc. (the "Registrant") was
organized on September 19, 1994 as a corporation under the laws of the State of
Delaware.
(b) The Registrant's fiscal year ends on December 31.
Item 2. Transaction of Succession.
(a) The predecessor of the Registrant which had securities
registered pursuant to Section 12(b) or (g) at the time of the succession was
AirTouch Communications, a California corporation and formerly the Registrant's
sole stockholder (the "Predecessor").
(b) Pursuant to the terms of an Agreement and Plan of Merger
dated as of December 14, 1994 by and among the Registrant, the Predecessor and
ATI Merger Sub, Inc., a Delaware corporation and formerly a wholly owned
subsidiary of the Registrant ("Merger Sub"), Merger Sub merged with and into
the Predecessor effective December 15, 1994 (the "Merger"). As a result of the
Merger, each share of capital stock of the Predecessor was converted into one
share of capital stock of the Registrant, and the Predecessor became a wholly
owned subsidiary of the Registrant. The Merger was effected solely for
purposes of changing the Registrant's domicile and did not effect any other
change in the business and operations of the Registrant.
Pursuant to Rule 12g-3 under the Securities Exchange Act of 1934 (the
"Exchange Act"), the classes of the Registrant's securities being registered
hereby were deemed registered under Section 12(b) of the Exchange Act upon
consummation of the Merger. Accordingly, although the filing of this
Registration Statement may not be required in light of Rule 12g-3, the
Registrant is doing so as a precautionary measure.
Item 3. Securities to be Registered.
(a) Common Stock:
Presently authorized -- 1,100,000,000 shares
Presently issued -- 494,003,123 (at January 24, 1995)
Presently issued which are held by or for the account of the
Registrant -- None
(b) Preferred Stock Purchase Rights:
Presently authorized -- See Item 4 below
Presently issued -- See Item 4 below
Presently issued which are held by or for the account of the
Registrant -- None
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Item 4. Description of Registrant's Securities to be Registered.
The authorized capital stock of the Registrant consists of
1,100,000,000 shares of common stock, $.01 per share ("Common Stock"), and
50,000,000 shares of preferred stock, $.01 par value ("Preferred Stock"). The
following summary description of such capital stock is qualified in its
entirety by reference to the Certificate of Incorporation and the Bylaws of the
Registrant, copies of which have been filed as exhibits to the Registrant's
Current Report on Form 8-K dated December 19, 1994.
COMMON STOCK
Holders of Common Stock are entitled to one vote for each share held
on all matters submitted to a vote of stockholders and, except as described
below, a majority vote is required for all actions taken by stockholders.
Holders of Common Stock do not have cumulative voting rights in the election of
directors and have no preemptive, subscription, redemption, sinking fund or
conversion rights. All outstanding shares of Common Stock are validly issued,
fully paid and nonassessable. Subject to preferences that may be applicable to
holders of any outstanding shares of Preferred Stock, holders of Common Stock
are entitled to such dividends as may be declared by the Board of Directors out
of funds legally available therefor. Upon liquidation, dissolution or
winding-up of the Registrant, the assets legally available for distribution to
stockholders are distributable ratably among the holders of Common Stock at
that time outstanding, subject to prior distribution rights of creditors of the
Registrant and to the preferential rights of any outstanding shares of
Preferred Stock.
PREFERRED STOCK
Of the 50,000,000 authorized shares of Preferred Stock, 6,000,000
have been designated Series A Participating Preferred Stock ("Series A
Preferred Stock"). There are no outstanding shares of Series A Preferred
Stock.
Holders of Series A Preferred Stock are entitled to receive quarterly
dividends, payable in cash each March, June, September and December, equal to
the greater of (i) $2.50 per share or (ii) 100 times the aggregate per share
amount of cash and non-cash dividends or other distributions (other than
dividends payable in the form of Common Stock) declared on the Common Stock.
Dividends generally will begin to accrue on the Series A Preferred Stock as of
the end of the calendar quarter immediately preceding the date of issuance of
such shares and the Registrant is obligated to declare dividends thereon in any
quarter in which Common Stock dividends are declared. If there are arrearages
in the cumulative dividends of the Series A Preferred Stock, no dividends may
be paid on Common Stock.
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Upon any voluntary or involuntary liquidation, dissolution or
winding-up of the Registrant, the holders of the Series A Preferred Stock are
entitled to receive an amount per share equal to the greater of $100 or 100
times any payments to be made per share to Common Stock, plus all accrued but
unpaid dividends thereon to the date fixed for payment of such distributive
amount, before any amount is paid to the holders of the Common Stock. In the
event the assets of the Registrant available for distribution to the Series A
Preferred Stock are insufficient to permit payment in full of such distributive
amount, the assets shall be distributed ratably among the holders of Series A
Preferred Stock and any other Preferred Stock on a parity therewith. The
Series A Preferred Stock will rank junior to all other series of the
Corporation's Preferred Stock as to the payment of dividends and the
distribution of assets, unless the terms of any such series provide otherwise.
The holders of Series A Preferred Stock are entitled to vote together
with the holders of Common Stock as a single class on all matters that come
before the Registrant's stockholders, with each share of Series A Preferred
Stock entitled to 100 votes. In the event dividends on the Series A Preferred
Stock are in arrears for six consecutive quarters, the holders thereof are
entitled to elect two directors to the Board of Directors until such time as
such arrearage is eliminated. The Registrant has no option to redeem or call
the Series A Preferred Stock, there is no sinking fund for the Series A
Preferred Stock and the holders of such shares are not entitled to any
preemptive rights. The rights of the Series A Preferred Stock as to dividends,
liquidations and voting, and in the event of mergers and consolidations, are
protected by customary antidilution provisions.
The remaining authorized Preferred Stock may be issued in one or more
series, and the Board of Directors is authorized to fix the rights,
preferences, privileges and restrictions, or any of them, and to fix the number
of shares constituting any series and the designation of the series, without
any further vote or action by the stockholders. The issuance of Preferred
Stock may have the effect of delaying, deferring or preventing a change in
control of the Registrant without further action by the stockholders and
therefore could have a depressive effect on the price of the Common Stock. The
issuance of Preferred Stock with voting and conversion rights may adversely
affect the voting power of the holders of Common Stock, and may result in the
loss of voting control to others. There are no shares of Preferred Stock
outstanding, and the Registrant has no present plans to issue any shares of
Preferred Stock other than Series A Preferred Stock that may be issued in
connection with the Registrant's Stockholder Rights Plan. See "Stockholder
Rights Plan" below.
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CERTIFICATE OF INCORPORATION AND BYLAW PROVISIONS
Certain of the provisions of the Certificate of Incorporation and
Bylaws discussed below may have the effect, either alone or in combination with
each other, of making more difficult or discouraging a tender offer or takeover
attempt that is opposed by the Registrant's Board of Directors but that a
stockholder might consider to be in its best interest. Such provisions include
(i) the classification of the Board of Directors into three classes, (ii)
prohibitions against stockholder action by written consent in lieu of a meeting
and (iii) supermajority approval requirements for amendments to the Bylaws and
certain provisions of the Certificate of Incorporation.
The Certificate of Incorporation provides that the liability of the
directors of the Registrant for monetary damages shall be eliminated to the
fullest extent permissible under the Delaware General Corporation Law. The
effect of these provisions is to eliminate the rights of the Registrant and its
stockholders (through derivative suits on behalf of the Registrant) to recover
monetary damages against a director for breach of fiduciary duty as a director
(including breaches resulting from grossly negligent behavior), except for
liability for (i) for any breach of the director's duty of loyalty to the
Registrant or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) in
respect of certain unlawful dividend payments or stock redemptions or
repurchases or (iv) for any transaction from which the director derived an
improper personal benefit. The provisions will not limit the liability of
directors under federal securities laws and have no effect on non-monetary
remedies that may be available to the Registrant or its stockholders.
The following summarizes certain provisions of the Certificate of
Incorporation and Bylaws.
Classification of the Board of Directors. The Certificate of
Incorporation provides for the classification of the Board of Directors into
three classes. The members of each class serve until the third annual meeting
following their election, except that with respect to the three classes of
directors in office at the effective time of the Merger, the directors in Class
I will serve only until the first annual meeting after the Merger and the
directors in Class II will serve only until the second annual meeting after the
Merger.
Amendments. The approval of holders of at least 66 2/3% of the
Common Stock is required to amend the Bylaws and certain provisions of the
Certificate of Incorporation. Provisions requiring 66 2/3% of the stockholders
include those relating to the classification of the Board of Directors, the
monetary liability of directors and the stockholders' power to act by written
consent.
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Limitations on Stockholder Action by Written Consent. The
Certificate of Incorporation also provides that any action required or
permitted to be taken by the stockholders of the Registrant must be taken at an
annual or special meeting of stockholders, and prohibits stockholder action by
written consent.
SECTION 203 OF THE DELAWARE LAW
The Registrant is subject to Section 203 of the Delaware General
Corporation Law ("Section 203"), which prohibits a publicly held Delaware
corporation from engaging in a "business combination" with an "interested
stockholder" for a period of three years following the date that such
stockholder became an interested stockholder, unless (i) prior to such date
either the business combination or the transaction which resulted in the
stockholder's becoming an interested stockholder is approved by the board of
directors of the corporation, (ii) upon consummation of the transaction which
resulted in the stockholder's becoming an interested stockholder, the
interested stockholder owns at least 85% of the voting stock of the corporation
outstanding at the time the transaction commenced (other than certain excluded
shares) or (iii) on or after such date the business combination is approved by
the board and authorized at an annual or special meeting of stockholders, and
not by written consent, by the affirmative vote of at least 66 2/3% of the
outstanding voting stock which is not owned by the interested stockholder. A
"business combination" includes certain mergers, consolidations, asset sales,
transfers and other transactions resulting in a financial benefit to the
stockholder. An "interested stockholder" is a person who, together with
affiliates and associates, owns (or within three years, did own) 15% or more of
the corporation's voting stock, except a person that acquired such interest
prior to December 23, 1987.
STOCKHOLDER RIGHTS PLAN
The Board of Directors has adopted a stockholder rights plan (the
"Rights Plan") that provides for the distribution of rights ("Rights") to
holders of outstanding shares of common stock, $.01 par value (the "Common
Stock"). Except as set forth below, each Right, when exercisable, entitles the
holder thereof to purchase from the Registrant one one-hundredth of a share of
the Registrant's Series A Participating Preferred Stock (the "Series A
Preferred Stock") at a price of $80 per share, subject to adjustment. The
Rights do not have voting rights.
Initially, the Rights are attached to all Common Stock certificates
representing shares then outstanding, and no separate Rights certificates will
be distributed. The Rights will not separate from the Common Stock and will
not be exercisable until the earlier of either (i) a public announcement that a
person or group of affiliated or associated persons has
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acquired, or obtained the right to acquire, beneficial ownership of securities
representing 10% or more of the Common Stock of the Registrant (an "Acquiring
Party") or (ii) 10 days following the commencement of (or a public announcement
of an intention to make) a tender offer or exchange offer which would result in
any person or group of affiliated persons becoming an Acquiring Party. The
Rights will expire on the earliest of (x) July 22, 2003, (y) consummation of a
merger transaction with a person or group acquiring Common Stock pursuant to a
Permitted Offer (defined below), or (z) redemption by the Registrant, as
described below.
In the event that a person has become an Acquiring Party, proper
provision will be made so that each holder of a Right (other than an Acquiring
Party) will thereafter have the right (the "Subscription Right") for a 60-day
period to receive, upon the exercise of the Right by the holder at the then
current exercise price, that number of shares of Common Stock of the Registrant
(or of Series A Preferred Stock or other common stock equivalent if all Common
Stock has been issued) which would have a market value at the time of such
transaction of two times the exercise price for each Right. This provision of
the Rights Plan does not apply, however, to a tender offer or exchange offer
for all outstanding shares of the Registrant's Common Stock at a price and on
terms determined by at least a majority of the disinterested members of the
Board of Directors to be in the best interests of the Registrant and its
stockholders (a "Permitted Offer").
If, after a public announcement has been made that a person has
become an Acquiring Party, either (i) the Registrant is involved in a merger or
other business combination (other than with a person who acquired shares
pursuant to a Permitted Offer) or (ii) 50% or more of the Registrant's assets
are sold in one or a series of transactions, proper provision will be made so
that each holder of a Right (other than an Acquiring Party) will thereafter
have the right to receive, upon the exercise of the Right by the holder at the
then current exercise price, that number of shares of Common Stock of the
Registrant or of the acquiring company (whichever remains as the surviving
corporation under the terms of the merger or consolidation) which would have a
market value at the time of such transaction of two times the exercise price
for each Right.
The Board of Directors, at its option, may at any time after a person
becomes an Acquiring Party (but not after the acquisition by such person of 50%
or more of the outstanding Common Stock) exchange on behalf of the Registrant
all or part of the then outstanding and exercisable Rights for shares of Common
Stock (or Common Stock equivalents), at an exchange ratio of one share of
Common Stock or equivalent for each Right.
At any time prior to the earlier to occur of either (i) a person
becoming an Acquiring Party or (ii) the expiration
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of the Rights, the Registrant may redeem the Rights in whole, but not in part,
at a price of $0.01 per Right (the "Redemption Price"). After a person becomes
an Acquiring Party, the Registrant may also redeem the Rights in whole, but not
in part, at the Redemption Price (x) if such redemption is incidental to a
merger or other business combination transaction or series of transactions
involving the Registrant but not involving an Acquiring Party or certain other
related parties or (y) following an event giving rise to, and the expiration of
the 60-day exercise period for, the Subscription Right if and for as long as
any Acquiring Party owns less than 10% of the Registrant's voting securities.
Item 5. Financial Statements and Exhibits.
(a) Financial Statements.
Pursuant to the Instructions as to Financial Statements, no financial
statements are being filed because the capital structure and balance sheet of
the Registrant immediately after the succession were substantially the same as
those of the Predecessor.
(b) Exhibits.
Exhibits identified in parentheses below, on file with the
Commission, are incorporated by reference as exhibits hereto.
2 Agreement and Plan of Merger dated as of December 14, 1994 by and
among the Registrant, the Predecessor, and Merger Sub.
3.1 Certificate of Incorporation of the Registrant, as filed with the
Secretary of State of the State of Delaware on September 19, 1994
(Exhibit 3(i) to Current Report on Form 8-K dated December 15, 1994).
3.2 Certificate of Designation of Series A Participating Preferred Stock
of the Registrant, as filed with the Secretary of State of the State
of Delaware on December 15, 1994.
3.3 Bylaws of the Registrant (Exhibit 3(ii) to Current Report on Form 8-K
dated December 15, 1994).
4 Rights Agreement between the Registrant and The Bank of New York, as
Rights Agent, dated as of September 19, 1994 (Exhibit 4 to Current
Report on Form 8-K dated December 15, 1994).
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the Registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereto duly authorized.
Dated: January 25, 1995.
AIRTOUCH COMMUNICATIONS, INC.
By /s/ MOHAN S. GYANI
---------------------------
Mohan S. Gyani
Vice President, Finance and
Treasurer
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EXHIBIT INDEX
Exhibits identified in parentheses below, on file with the Commission,
are incorporated by reference as exhibits hereto.
2 Agreement and Plan of Merger dated as of Decemeber 14, 1994 by and
among the Registrant, the Predecessor, and Merger Sub.
3.1 Certificate of Incorporation of the Registrant, as filed with the
Secretary of State of the State of Delaware on September 19, 1994
(Exhibit 3(i) to Current Report on Form 8-K dated December 15, 1994).
3.2 Certificate of Designation of Series A Participaitng Preferred Stock
of the Registrant, as filed with the Secretary of State of the State
Delaware on December 15, 1994.
3.3 Bylaws of the Registrant (Exhibit 3(ii) to Current Report on Form 8-K
dated December 15, 1994).
4 Rights Agreement between the Registrant and The Bank of New York, as
Rights Agent, dated as of September 19, 1994 (Exhibit 4 to Current
Report on Form 8-K dated December 15, 1994).
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EXHIBIT 2
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER, dated as of December 14, 1994, by and
among AIRTOUCH COMMUNICATIONS, a California corporation ("AirTouch
California"), AIRTOUCH COMMUNICATIONS, INC., a Delaware corporation and a
wholly owned subsidiary of AirTouch California ("AirTouch Delaware"), and ATI
MERGER SUB, INC., a Delaware corporation and a wholly owned subsidiary of
AirTouch Delaware ("Merger Sub"),
W I T N E S S E T H:
WHEREAS, AirTouch California has authorized capital stock consisting of
1,100,000,000 shares of Common Stock, $.01 par value ("California Common
Stock"), of which there were 493,789,980 shares issued and outstanding on
December 13, 1994; and 50,000,000 shares of Preferred Stock, $.01 par value, of
which there are no shares issued and outstanding;
WHEREAS, AirTouch Delaware has authorized capital stock consisting of
1,100,000,000 shares of Common Stock, $.01 par value ("Delaware Common Stock"),
of which there are 1,000 shares issued and outstanding on the date hereof, all
of which are owned by AirTouch California; and 50,000,000 shares of Preferred
Stock, $.01 par value, of which there are no shares issued and outstanding;
WHEREAS, Merger Sub has authorized capital stock consisting of 25,000
shares of common stock, $.01 par value, of which there are 1,000 shares issued
and outstanding on the date hereof, all of which are owned by AirTouch Delaware
("Merger Sub Common Stock");
WHEREAS, the Boards of Directors of AirTouch California, AirTouch
Delaware and Merger Sub have approved a merger (the "Merger") pursuant to which
Merger Sub will be merged with and into AirTouch California, with AirTouch
California being the surviving corporation; and
WHEREAS, Pacific Telesis Group approved the Merger in February 1994, as
sole shareholder of record of AirTouch California entitled to vote thereon, and
AirTouch Delaware has approved the Merger and this Agreement and Plan of Merger
("Agreement"), as sole stockholder of Merger Sub, and AirTouch California, as
sole stockholder of AirTouch Delaware, has approved the Merger and this
Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, AirTouch California, AirTouch Delaware and Merger Sub hereby
agree as follows:
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ARTICLE I
The Merger
1.1. The Merger.
(a) Surviving Corporation. Upon the terms and subject to the
conditions of this Agreement, the Merger shall be effected in accordance with
the provisions of the General Corporation Laws of the states of California and
Delaware (the "California Law" and the "Delaware Law," respectively). As a
result of the Merger, the separate corporate existence of Merger Sub shall
cease, and AirTouch California (sometimes referred to herein as the "Surviving
Corporation") shall continue as the surviving corporation of the Merger and
shall be a wholly owned subsidiary of AirTouch Delaware.
(b) Effective Time. The Merger shall be effective if and when this
Agreement or a properly executed certificate of merger, prepared in accordance
with the California Law and the Delaware Law and incorporating the terms hereof
to the extent required thereby (the "Certificate of Merger"), together with any
other documents required by law to effectuate the Merger, shall be filed with
the Secretary of State of the States of California and Delaware (the "Effective
Time").
1.2. Certificate of Incorporation; By-laws; Officers and Directors.
(a) Certificate of Incorporation. At the Effective Time, the
Articles of Incorporation of AirTouch California, as in effect immediately
prior to the Effective Time, shall become the Articles of Incorporation of the
Surviving Corporation, without change or amendment until thereafter amended.
(b) By-laws. At the Effective Time, the By-laws of AirTouch
California, as in effect immediately prior to the Effective Time, shall become
the Bylaws of the Surviving Corporation, without change or amendment until
thereafter amended.
(c) Officers and Directors. The officers and directors of AirTouch
California in office immediately prior to the Effective Time shall be the
officers and directors of the Surviving Securities and Exchange Commission
Corporation (and the terms of office of the officers and directors of Merger
Sub shall terminate).
1.3. Conversion of Shares.
(a) California Common Stock. At the Effective Time, by virtue of the
Merger and without any action on the part of the holder thereof, each share of
the California Common Stock which is issued and outstanding immediately prior
to the Effective Time shall be changed and converted into (i) one fully paid
and nonassessable share of Delaware Common Stock and (ii) one Right
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issuable pursuant to that certain Rights Agreement dated as of September 19,
1994 by and between AirTouch Delaware and the Rights Agent named therein (the
"Rights Agreement"); and each right to receive from AirTouch California shares
of California Common Stock shall be changed and converted into the right to
receive from AirTouch Delaware, a like number of shares of Delaware Common
Stock.
(b) Delaware Common Stock. At the Effective Time, by virtue of the
Merger and without any action on the part of the holder thereof, the 1,000
shares of Delaware Common Stock issued and outstanding on the date hereof and
owned by AirTouch California shall be canceled without consideration and
retired and shall resume the status of authorized and unissued shares of
Delaware Common Stock; and
(c) Merger Sub Common Stock. At the Effective Time, by virtue of the
Merger and without any action on the part of the holder thereof, the 1,000
shares of Merger Sub Common Stock issued and outstanding on the date hereof and
owned by AirTouch Delaware shall be changed and converted into the number of
shares of California Common Stock equal to the number of shares of California
Common Stock issued and outstanding immediately prior to the Effective Time
and, as a result thereof, AirTouch Delaware shall become the sole holder of
shares of California Common Stock.
(d) Stock Certificates. At and after the Effective Time of the
Merger, all of the outstanding certificates which immediately prior to the
Effective Time of the Merger evidenced shares of California Common Stock shall
be deemed for all purposes to evidence ownership of, and to represent, shares
of Delaware Common Stock into which the shares of California Common Stock
formerly evidenced by such certificates have been converted as herein provided,
and AirTouch Delaware shall treat each holder of record of California Common
Stock immediately prior to the Effective Time as a holder of record of Delaware
Common Stock as of the Effective Time. The registered owner on the books and
records of AirTouch Delaware or its transfer agents of each outstanding
certificate which, immediately prior to the Effective Time of the Merger,
evidenced shares of California Common Stock, shall, until such certificate
shall have been surrendered for transfer or conversion or otherwise accounted
for to AirTouch Delaware or its transfer agents, have and be entitled to
exercise any and all voting and other rights with respect to, and to receive
any and all dividends and other distributions upon, the shares of AirTouch
Delaware of which such person is the owner.
(e) Employee or Director Option and Benefit Plans. Each option or
other right to purchase or otherwise acquire shares of California Common Stock
granted under (A) any employee or director option or benefit plan of AirTouch
California (collectively, the "Plans") or (B) any other employee or director
option or
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benefit plan of any subsidiary or affiliate of AirTouch California for which
AirTouch California has agreed to provide shares of California Common Stock,
which is outstanding immediately prior to the Effective Time shall, by virtue
of the Merger and without any action on the part of the holder thereof, be
converted into and become an option or right to acquire (and AirTouch Delaware
hereby assumes the obligation to deliver) the same number of shares of Delaware
Common Stock at the same price per share, and upon the same terms and subject
to the same conditions, as set forth in each of such plans as in effect at the
Effective Time. The same number of shares of Delaware Common Stock shall be
reserved for purposes of such plans as is equal to the number of shares of
California Common Stock so reserved as of the Effective Time. AirTouch
Delaware hereby assumes, as of the Effective Time, (x) the Plans and all
obligations of AirTouch California under the Plans, including the outstanding
options or awards or portions thereof granted pursuant to the Plans, and (y)
all obligations of AirTouch California under all other employee or director
option or benefit plans in effect as of the Effective Time with respect to
which employee rights or accrued benefits are outstanding as of the Effective
Time.
(f) Warrants and Other Rights. Each warrant or other right to
purchase or otherwise acquire shares of California Common Stock which is
outstanding immediately prior to the Effective Time shall, by virtue of the
Merger and without any action on the part of the holder thereof, be converted
into and become a warrant or right to acquire (and AirTouch Delaware hereby
assumes the obligation to deliver) the same number of shares of Delaware Common
Stock at the same price per share, and upon the same terms and subject to the
same conditions, as set forth in any agreement with respect to such warrant or
other right as in effect at the Effective Time. The same number of shares of
Delaware Common Stock shall be reserved for purposes of such warrants or other
right as is equal to the number of shares of California Common Stock so
reserved as of the Effective Time.
1.4. Certain Effects of the Merger. At the Effective Time, the
separate corporate existence of Merger Sub shall cease, and AirTouch California
shall succeed to Merger Sub in the manner set forth in Section 1107 of the
California Law. Merger Sub is sometimes referred to herein as the
"Disappearing Corporation."
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ARTICLE II
Conditions
2.1. Conditions to the Merger. The consummation of the Merger is
subject to the satisfaction, at or before the Effective Time, of the following
conditions:
(a) No Prohibition. The consummation of the Merger shall not be
prohibited by any order, decree or injunction of a court of competent
jurisdiction (each party agreeing to use all reasonable efforts to have any
such order reversed or injunction lifted), and there shall not have been any
action taken or any statute, rule or regulation enacted, promulgated or deemed
applicable to the Merger by any governmental entity that makes consummation of
the Merger illegal.
(b) Authorizations. All required authorizations, orders, grants,
consents, permissions, approvals and waivers of any governmental entity with
jurisdiction over the Merger shall have been received and shall remain in
effect.
(c) Rights Agreement. The Rights Agreement shall have been amended
only as necessary (i) in order to conform to changes made to the Rights
Agreement dated as of July 22, 1993 (and amended as of July 22, 1994) by and
between AirTouch California and The Bank of New York, as Rights Agent, or (ii)
in order to comply with Delaware law.
ARTICLE III
Miscellaneous
3.1. Further Assurances. From time to time, as and when required by
the Surviving Corporation, or by its successors or assigns, there shall be
executed and delivered on behalf of the Disappearing Corporation such deeds and
other instruments, and there shall be taken or caused to be taken by it all
such further and other action as shall be appropriate or necessary to vest,
perfect, or confirm, of record or otherwise, in the Surviving Corporation the
title to and possession of all property, interests, assets, rights, privileges,
immunities, powers, franchises and authority of the Disappearing Corporation,
and otherwise to carry out the purposes of this Agreement; and the officers and
directors of the Surviving Corporation are fully authorized in the name and on
behalf of the Disappearing Corporation or otherwise, to take any and all such
action and to execute and deliver any and all such deeds and instruments.
3.2. Amendments; Abandonment. Subject to applicable law, this
Agreement may be amended, modified or supplemented by written agreement of the
parties hereto at any time prior to the
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Effective Time with respect to any of the terms contained herein. At any time
prior to the Effective Time, this Agreement may be terminated and the Merger
may be abandoned by the Board of Directors of either AirTouch California or
AirTouch Delaware, or both, in their sole discretion and notwithstanding
approval of this Agreement by the the shareholders of AirTouch California or
the stockholders of AirTouch Delaware or Merger Sub.
3.3. Service of Process. AirTouch California may be served with
process in the State of Delaware in any proceeding for enforcement of any
obligation of Merger Sub, as well as for enforcement of any obligation of
AirTouch California arising out of the Merger, including any suit or other
proceeding to enforce the right of any stockholders as determined in appraisal
proceedings pursuant to the provisions of Section 262 of the General
Corporation Law of the State of Delaware. AirTouch California hereby
irrevocably appoints the Secretary of State of the State of Delaware as its
agent to accept service of process in any such suit or other proceeding. The
address to which a copy of such process shall be mailed by the Secretary of
State of the State of Delaware is One California Street, San Francisco,
California 94111, Attention: Secretary.
3.4. Counterparts. In order to facilitate the filing and recording of
this Agreement, this Agreement may be executed in two or more counterparts,
each of which shall be deemed to be an original and such counterparts shall
together constitute one and the same instrument.
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IN WITNESS WHEREOF, AirTouch California, AirTouch Delaware and Merger Sub
have caused this Agreement to be executed by their respective duly authorized
officers as of the date first above written.
AIRTOUCH COMMUNICATIONS,
a California corporation
/s/ SAM GINN
-------------------------------
Chairman
/s/ MARGARET G. GILL
-------------------------------
Secretary
AIRTOUCH COMMUNICATIONS, INC.,
a Delaware corporation
/s/ SAM GINN
-------------------------------
Chairman
/s/ MARGARET G. GILL
-------------------------------
Secretary
ATI MERGER SUB, INC.
a Delaware corporation
/s/ KRISTINA VEACO
-------------------------------
President
/s/ LINDA A. KLINE
-------------------------------
Secretary
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<PAGE> 1
EXHIBIT 3.2
CERTIFICATE OF DESIGNATION,
PREFERENCES AND RIGHTS
OF SERIES A PARTICIPATING PREFERRED STOCK
OF
AIRTOUCH COMMUNICATIONS, INC.
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
AirTouch Communications, Inc., a corporation organized and existing under
the General Corporation Law of the State of Delaware (the "Corporation"), does
hereby certify that pursuant to the authority conferred upon the Board of
Directors by Article FIFTH of Certificate of Incorporation of the Corporation,
and in accordance with Section 151 of the General Corporation Law of the State
of Delaware, the said Board of Directors has adopted the following resolution
creating a series of Preferred Stock, designated as Series A Participating
Preferred Stock:
RESOLVED, that pursuant to the authority vested in the Board of Directors
of the Corporation in accordance with the provisions of the Corporation's
Certificate of Incorporation, a series of Preferred Stock of the Corporation
be and it hereby is created, and that the designation and amount thereof and
the powers, preferences and relative, participating, optional and other
special rights of the shares of such series, and the qualifications,
limitations or restrictions thereof are as follows:
1. Designation and Amount. The shares of such series shall be
designated as "Series A Participating Preferred Stock," par value $.01 per
share, and the number of shares constituting such series shall be 6,000,000.
Such number of shares may be increased or decreased by resolution of the
Board of Directors; provided, that no decrease shall reduce the number of
shares of Series A Participating Preferred Stock to a number less than that
of the shares then outstanding plus the number of shares issuable upon exercise
of outstanding rights, options or warrants or upon conversion of outstanding
securities issued by the Corporation.
2. Dividends and Distributions.
(a) Subject to the prior and superior rights of the holders of any
series of Preferred Stock ranking prior and superior to the Series A
Participating Preferred Stock with respect to dividends, the holders of Series
A Participating
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<PAGE> 2
Preferred Stock in preference to the holders of Common Stock of the corporation
and any other junior stock, shall be entitled to receive, when, as and if
declared by the Board of Directors out of funds legally available for the
purpose, quarterly dividends payable in cash on the first day of March, June,
September and December in each year (each such date being referred to herein as
a "Quarterly Dividend Payment Date"), commencing on the first Quarterly
Dividend Payment Date after the first issuance of a share or fraction of a
share of Series A Participating Preferred Stock in an amount per share (rounded
to the nearest cent) equal to the greater of (x) $2.50, or (y) subject to the
provision for adjustment hereinafter set forth, 100 times the aggregate per
share amount of all cash dividends, and 100 times the aggregate per share
amount (payable in kind) of all non-cash dividends or other distributions other
than a dividend payable in shares of Common Stock or a subdivision of the
outstanding shares of Common Stock (by reclassification or otherwise), declared
on the Common Stock, since the immediately preceding Quarterly Dividend Payment
Date, or, with respect to the first Quarterly Dividend Payment Date, since the
first issuance of any share or fraction of a share of Series A Participating
Preferred Stock. In the event the corporation shall at any time after December
31, 1994 (i) declare any dividend on Common Stock payable in shares of Common
Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, by reclassification
or otherwise, then in each such case the amount to which holders of Series A
Participating Preferred Stock were entitled immediately prior to such event
under clause (x) of the preceding sentence shall be adjusted by multiplying
such amount by a fraction the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were outstanding immediately
prior to such event.
(b) The corporation shall declare a dividend or distribution on the
Series A Participating Preferred Stock as provided in paragraph (a) above
immediately after it declares a dividend or distribution on the Common Stock
(other than a dividend payable in shares of Common Stock); provided that, in
the event no dividend or distribution shall have been declared on the Common
Stock during the period between any Quarterly Dividend Payment Date and the
next subsequent Quarterly Dividend Payment Date, a dividend of $2.50 per share
on the Series A Participating Preferred Stock shall nevertheless be payable on
such subsequent Quarterly Dividend Payment Date.
(c) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Participating Preferred Stock from the Quarterly Dividend
Payment Date next preceding the date of issue of such shares of Series A
Participating Preferred Stock, unless the date of issue of such shares is prior
to the record date for the first Quarterly Dividend Payment Date, in which case
dividends on such shares shall begin to accrue from
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<PAGE> 3
the date of issue of such shares, or unless the date of issue is a Quarterly
Dividend Payment Date or is a date after the record date for the determination
of holders of Series A Participating Preferred Stock entitled to receive a
quarterly dividend and before such Quarterly Dividend Payment Date, in either
of which events such dividends shall begin to accrue and be cumulative from
such Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not
bear interest. Dividends paid on the Series A Participating Preferred Stock in
an amount less than the total amount of such dividends at the time accrued and
payable on such shares shall be allocated pro rata on a share-by-share basis
among all such shares at the time outstanding. The Board of Directors may fix
a record date for the determination of holders of Series A Participating
Preferred Stock entitled to receive payment of a dividend or distribution
declared thereon, which record date shall be no more than 30 days prior to the
date fixed for the payment thereof.
3. Voting Rights. The holders of Series A Participating Preferred
Stock shall have the following voting rights:
(a) Subject to the provision for adjustment hereinafter set forth,
each share of Series A Participating Preferred Stock shall entitle the
holder thereof to 100 votes on all matters submitted to a vote of the
stockholders of the corporation. In the event the corporation shall at
any time after December 31, 1994 (i) declare any dividend on Common Stock
payable in shares of Common Stock, (ii) subdivide the outstanding Common
Stock into a greater number of shares, or (iii) combine the outstanding
Common Stock into a smaller number of shares, by reclassification or
otherwise, then in each such case the number of votes per share to which
holders of Series A Participating Preferred Stock were entitled
immediately prior to such event shall be adjusted by multiplying such
number by a fraction the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the denominator
of which is the number of shares of Common Stock outstanding immediately
prior to such event.
(b) Except as otherwise provided herein or by law, the holders of
Series A Participating Preferred Stock and the holders of Common Stock
shall vote together as one class on all matters submitted to a vote of
stockholders of the corporation.
(c) (i) If at any time dividends on any Series A Participating
Preferred Stock shall be in arrears in an amount equal to six quarterly
dividends thereon, the occurrence of such contingency shall mark the
beginning of a period (herein called a "default period") which shall
extend until such time when all
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<PAGE> 4
accrued and unpaid dividends for all previous quarterly dividend periods
and for the current quarterly dividend period on all shares of Series A
Participating Preferred Stock then outstanding shall have been declared and
paid or set apart for payment. During each default period, all holders of
Preferred Stock (including holders of the Series A Participating Preferred
Stock) with dividends in arrears in an amount equal to six quarterly
dividends thereon, voting as a class, irrespective of series, shall have
the right to elect two Directors.
(ii) During any default period, such voting right of the holders of
Series A Participating Preferred Stock may be exercised initially at a
special meeting called pursuant to subparagraph (iii) of this Section 2(c)
or at any annual meeting of stockholders, and thereafter at annual meetings
of stockholders, provided that such voting right shall not be exercised
unless the holders of thirty-three and one-third percent (33-1/3%) in
number of shares of Preferred Stock outstanding shall be present in person
or by proxy. The absence of a quorum of the holders of Common Stock shall
not affect the exercise by the holders of Preferred Stock of such voting
right. At any meeting at which the holders of Preferred Stock shall
exercise such voting right initially during an existing default period,
they shall have the right, voting as a class, to elect Directors to fill
such vacancies, if any, in the Board of Directors as may then exist up to
two Directors or, if such right is exercised at an annual meeting, to elect
two Directors. After the holders of Preferred Stock shall have exercised
their right to elect Directors in any default period and during the
continuance of such period, the number of Directors shall not be increased
or decreased except pursuant to the rights of any equity securities ranking
senior to or pari passu with the Series A Participating Preferred Stock.
(iii) Unless the holders of Preferred Stock shall, during an existing
default period, have previously exercised their right to elect Directors,
the Board of Directors may order, or any stockholder or stockholders owning
in the aggregate not less than ten percent (10%) of the total number of
shares of Preferred Stock outstanding, irrespective of series, may request,
the calling of a special meeting of the holders of Preferred Stock, which
meeting shall thereupon be called by the President, a Vice President or the
Secretary of the corporation. Notice of such meeting and of any annual
meeting at which holders of Preferred Stock are entitled to vote pursuant
to this paragraph (c)(iii) shall be given to each holder of
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<PAGE> 5
record of Preferred Stock by mailing a copy of such notice to him at his
last address as the same appears on the books of the corporation. Such
meeting shall be called for a time not earlier than ten days and not later
than 60 days after such order or request or in default of the calling of
such meeting within 60 days after such order or request, such meeting may
be called on similar notice by any stockholder or stockholders owning in
the aggregate not less than ten percent (10%) of the total number of shares
of Preferred Stock outstanding. Notwithstanding the provisions of this
paragraph (c)(iii), no such special meeting shall be called during the
period within 60 days immediately preceding the date fixed for the next
annual meeting of the stockholders.
(iv) In any default period, the holders of Common Stock, and other
classes or series of stock of the corporation, if applicable, shall
continue to be entitled to elect the whole number of Directors until the
holders of Preferred Stock shall have exercised their right to elect two
Directors voting as a class, after the exercise of which right (x) the
Directors so elected by the holders of Preferred Stock shall continue in
office until their successors shall have been elected by such holders or
until the expiration of the default period, and (y) any vacancy in the
Board of Directors may (except as provided in paragraph (c)(ii) of this
Section 2) be filled by vote of a majority of the remaining Directors
theretofore elected by the holders of the class of stock which elected the
Director whose office shall have become vacant. References in this
paragraph (c) to Directors elected by the holders of a particular class or
series of stock shall include Directors elected by such Directors to fill
vacancies as provided in clause (y) of the foregoing sentence.
(v) Immediately upon the expiration of a default period, (x) the right
of the holders of Preferred Stock as a class to elect Directors shall
cease, (y) the term of any Directors elected by the holders of Preferred
Stock as a class shall terminate, and (z) the number of Directors shall be
such number as may be provided for in, or pursuant to, this Certificate of
Incorporation or the By-Laws (such number being subject, however, to change
thereafter in any manner provided by law or in this Certificate of
Incorporation or By-Laws). Any vacancies in the Board of Directors
effected by the provisions of clauses (y) and (z) in the preceding sentence
may be filled by a majority of the remaining Directors, even though less
than a quorum.
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<PAGE> 6
(d) Except as set forth herein, holders of Series A Participating
Preferred Stock shall have no special voting rights and their consent
shall not be required (except to the extent they are entitled to vote
with holders of Common Stock as set forth herein) for taking any
corporate action.
4. Certain Restrictions.
(a) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Participating Preferred Stock as provided in Section 1
are in arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Series A Participating
Preferred Stock outstanding shall have been paid in full, the corporation shall
not
(i) declare or pay dividends on, make any other distributions
on, or redeem or purchase or otherwise acquire for consideration any
shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Participating
Preferred Stock;
(ii) declare or pay dividends on or make any other distributions
on any shares of stock ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the Series A
Participating Preferred Stock, except dividends paid ratably on the
Series A Participating Preferred Stock and all such parity stock on which
dividends are payable or in arrears in proportion to the total amounts to
which the holders of all such shares are then entitled;
(iii) except as permitted by paragraph (b) of this Section 4,
redeem or purchase or otherwise acquire for consideration shares of any
stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Participating Preferred
Stock, provided that the corporation may at any time redeem, purchase or
otherwise acquire shares of any such parity stock in exchange for shares
of any stock of the corporation ranking junior (either as to dividends or
upon dissolution, liquidation or winding up) to the Series A
Participating Preferred Stock; or
(iv) purchase or otherwise acquire for consideration any shares of
Series A Participating Preferred Stock or any shares of stock ranking on a
parity (either as to dividends or upon liquidation, dissolution or winding
up) with the Series A Participating Preferred Stock, except in accordance
with a purchase offer made in writing or by publication (as determined
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<PAGE> 7
by the Board of Directors) to all holders of such shares upon such terms
as the Board of Directors, after consideration of the respective annual
dividend rates and other relative rights and preferences of the respective
series and classes, shall determine in good faith will result in fair and
equitable treatment among the respective series or classes.
(b) The corporation shall not permit any subsidiary of the corporation
to purchase or otherwise acquire for consideration any shares of stock of the
corporation ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Participating Preferred Stock unless
the corporation could, under paragraph (a) of this Section 4, purchase or
otherwise acquire such shares at such time and in such manner.
5. Reacquired Shares. Any shares of Series A Participating Preferred
Stock purchased or otherwise acquired by the corporation in any manner
whatsoever shall be retired and canceled promptly after the acquisition
thereof. All such shares shall upon their cancellation become authorized but
unissued shares of Preferred Stock and may be reissued as part of a new series
of Preferred Stock to be created by resolution or resolutions of the Board of
Directors, subject to the conditions and restrictions on issuance set forth
herein.
6. Liquidation, Dissolution or Winding Up.
(a) Upon any liquidation (voluntary or otherwise), dissolution or
winding up of the corporation, no distribution shall be made to the holders of
shares of stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Participating Preferred Stock
unless, prior thereto, the holders of Series A Participating Preferred Stock
shall have received per share the greater of (i) $100 or (ii) 100 times the
payment made per share of Common Stock, in each case plus an amount equal to
accrued and unpaid dividends and distributions thereon, whether or not
declared, to the date of such payment (the "Series A Liquidation Preference").
Following the payment of the full amount of the Series A Liquidation
Preference, no additional distributions shall be made to the holders of Series
A Participating Preferred Stock unless, prior thereto, the holders of shares of
Common Stock shall have received an amount per share (the "Common Adjustment")
equal to the quotient obtained by dividing (i) the Series A Liquidation
Preference by (ii) 100 (as appropriately adjusted as set forth in subparagraph
(c) below to reflect such events as stock splits, stock dividends,
reclassifications and recapitalizations with respect to the Common Stock) (such
number in clause (ii), the "Adjustment Number"). Following the payment of the
full amount of the Series A Liquidation Preference and the Common Adjustment in
respect of all outstanding shares of Series A Participating Preferred Stock and
Common Stock,
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<PAGE> 8
respectively, holders of Series A Participating Preferred Stock and holders of
shares of Common Stock shall receive their ratable and proportionate share of
the remaining assets to be distributed in the ratio of the Adjustment Number to
1 with respect to such Preferred Stock and Common Stock, on a per share basis,
respectively.
(b) In the event there are not sufficient assets available to permit
payment in full of the Series A Liquidation Preference and the liquidation
preferences of all other series of Preferred Stock, if any, which rank on a
parity with the Series A Participating Preferred Stock, then such remaining
assets shall be distributed ratably to the holders of such parity shares in
proportion to their respective liquidation preferences. In the event there are
not sufficient assets available to permit payment in full of the Common
Adjustment, then such remaining assets shall be distributed ratably to the
holders of Common Stock.
(c) In the event the corporation shall at any time after December
31, 1994 (i) declare any dividend on Common Stock payable in shares of Common
Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, by reclassification
or otherwise, then in each such case the Adjustment Number in effect
immediately prior to such event shall be adjusted by multiplying such
Adjustment Number by a fraction the numerator of which is the number of shares
of Common Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were outstanding immediately
prior to such event.
7. Consolidation, Merger, etc. In case the corporation shall enter
into any consolidation, merger, combination or other transaction in which the
shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case the shares of
Series A Participating Preferred Stock shall at the same time be similarly
exchanged or changed in an amount per share (subject to the provision for
adjustment hereinafter set forth) equal to 100 times the aggregate amount of
stock, securities, cash and/or any other property (payable in kind), as the
case may be, into which or for which each share of Common Stock is changed or
exchanged. In the event the corporation shall at any time after December 31,
1994 (i) declare any dividend on Common Stock payable in shares of Common
Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, then in each such
case the amount set forth in the preceding sentence with respect to the
exchange or change of shares of Series A Participating Preferred Stock shall be
adjusted by multiplying such amount by a fraction the numerator of which is the
number of shares of Common Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common Stock that are
outstanding immediately prior to such event.
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<PAGE> 9
8. Redemption. The Series A Participating Preferred Stock shall not
be redeemable.
9. Ranking. The Series A Participating Preferred Stock shall rank
junior to all other series of the corporation's Preferred Stock as to the
payment of dividends and the distribution of assets on liquidation, dissolution
or winding up, unless the terms of any such series shall provide otherwise.
10. Amendment. The Certificate of Incorporation of the corporation
shall not be amended in any manner which would materially alter or change the
powers, preferences or special rights of the Series A Participating Preferred
Stock so as to affect them adversely without the affirmative vote of the
holders of at least 66-2/3% of the outstanding Series A Participating Preferred
Stock, voting separately as a class.
11. Fractional Shares. Series A Participating Preferred Stock may be
issued in fractions of a share which shall entitle the holder, in proportion to
such holder's fractional shares, to exercise voting rights, receive dividends,
participate in distributions and to have the benefit of all other rights of
holders of Series A Participating Preferred Stock.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Designation, Preferences and Rights of Series A Participating Preferred Stock to
be duly executed by its Chairman of the Board of Directors and attested to by
its Secretary this 14th day of December, 1994.
/s/ SAM GINN
----------------------------
Chairman
Attest:
/s/ MARGARET G. GILL
-----------------------------
Secretary
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