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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of The Securities Exchange Act of 1934
Date of Report: July 11, 1996
AirTouch Communications, Inc.
Delaware 1-12342 94-3213132
(State or other (Commission File (IRS Employer
jurisdiction of Number) Identification No.)
incorporation)
One California Street, San Francisco, California 94111
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (415) 658-2000
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Item 7. Financial Statements and Exhibits
(c) Exhibits.
Exhibit 1.1 Underwriting Agreement dated July 11, 1996 among AirTouch
Communications, Inc., Lehman Brothers Inc., Merrill Lynch,
Pierce, Fenner & Smith Incorporated, J.P. Morgan Securities
Inc. and Salomon Brothers Inc.
Exhibit 4.1 Second Supplemental Indenture between AirTouch
Communications, Inc. and The First National Bank of Chicago,
as Trustee.
Exhibit 4.2 Form of 7 1/8% Note Due 2001.
Exhibit 4.3 Form of 7 1/2% Note Due 2006.
Exhibit 5.1 Opinion of Counsel.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
AIRTOUCH COMMUNICATIONS, INC.
By: /s/ Mohan S. Gyani
------------------
Mohan S. Gyani
Executive Vice President and
Chief Financial Officer
Date: July 12, 1996
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Exhibit Index
Exhibit 1.1 Underwriting Agreement dated July 11, 1996 among AirTouch
Communications, Inc., Lehman Brothers Inc., Merrill Lynch,
Pierce, Fenner & Smith Incorporated, J.P. Morgan Securities
Inc. and Salomon Brothers Inc.
Exhibit 4.1 Second Supplemental Indenture between AirTouch
Communications, Inc. and The First National Bank of Chicago,
as Trustee.
Exhibit 4.2 Form of 7 1/8% Note Due 2001.
Exhibit 4.3 Form of 7 1/2% Note Due 2006.
Exhibit 5.1 Opinion of Counsel.
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EXHIBIT 1.1
UNDERWRITING AGREEMENT
AirTouch Communications, Inc.
One California Street, 21st Floor
San Francisco, California 94111
Ladies and Gentlemen:
Lehman Brothers Inc., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, J.P. Morgan Securities Inc. and Salomon Brothers Inc, as
representatives (the "Representatives") of the underwriters named in Schedule I
hereto (the "Underwriters"), understand that AirTouch Communications, Inc., a
Delaware corporation ("AirTouch"), proposes to issue and sell to them
$650,000,000 aggregate principal amount of its 7 1/8% Notes Due 2001 (the "7
1/8% Notes") and its 7 1/2% Notes Due 2006 (the "7 1/2% Notes," and, together
with the 7 1/8% Notes, the "Notes").
Subject to the terms and conditions, and in reliance upon the
representations and warranties, set forth or incorporated by reference herein,
AirTouch agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from AirTouch, at a purchase price of
99.251% of the principal amount of the 7 1/8% Notes and 98.775% of the principal
amount of the 7 1/2% Notes, plus, in each case, accrued interest thereon, if
any, from July 15, 1996 to the Closing Date (as defined herein), the principal
amount of 7 1/8% Notes and 7 1/2% Notes set forth opposite such Underwriter's
name in Schedule I hereto.
Delivery of and payment for the Notes shall be made at 10:00 A.M., New
York City time, on July 16, 1996, or such later date (not later than July 23,
1996) as the Representatives shall designate, which date and time may be
postponed by agreement between the Representatives and AirTouch or as provided
in Section 10 of the Standard Provisions (as defined below) incorporated by
reference herein (such date and time of delivery and payment for the Securities
being herein called the "Closing Date"). Delivery of the Notes shall be made to
the Representatives for the respective accounts of the several Underwriters
against payment by the several Underwriters through the Representatives of the
purchase price therefore to or upon the order of AirTouch by certified or
official bank check or checks drawn on or by a New York Clearing House bank and
payable in same day funds or by such other manner of payment as may be agreed
upon by AirTouch and the Representatives. Delivery and release of the Notes
shall be to The Depository Trust Company and payment for such Notes shall be
made at the office of Cleary, Gottlieb, Steen & Hamilton, One Liberty Plaza, New
York, New York 10006.
AirTouch agrees to have the Notes available for inspection and checking
by the Representatives not later than 1:00 P.M. on the business day prior to the
Closing Date.
The Notes shall have the terms set forth in the Indenture to be dated
as of July 16, 1996, as amended, by the First Supplemental Indenture to be dated
as of July 16, 1996, and the Second Supplemental Indenture to be dated as of
July 16, 1996, each being between AirTouch and The First National Bank of
Chicago, as Trustee, the Prospectus dated July 2, 1996, and the Prospectus
Supplement dated July 11, 1996.
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The Notes will be redeemable in whole or in part, at the option of the
Company at any time, at a redemption price equal to the greater of (i) 100% of
their principal amount or (ii) the sum of the present values of the remaining
scheduled payments of principal and interest thereon discounted to the date of
redemption on a semi-annual basis (assuming a 360-day year consisting of twelve
30-day months) at the Treasury Yield plus 10 basis points in the case of the 7
1/8% Notes, and at the Treasury Yield plus 15 basis points, in the case of the 7
1/2% Notes; plus, for each of (i) and (ii) above, accrued interest on the Notes
to the date of redemption.
Except as otherwise provided herein, the provisions contained in the
document entitled "AirTouch Communications, Inc. Debt Securities Underwriting
Agreement Standard Provisions" (the "Standard Provisions"), a copy of which is
attached hereto, are incorporated herein except for Section 8 and Section 12
which are replaced in their entirety by the Sections 8 and 12 below.
8. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Underwriters or the Representatives, as the case may
be, by written notice given to AirTouch prior to delivery of and payment for the
Notes, if prior to such time (i) trading in AirTouch's Common Stock or
securities generally on the New York Stock Exchange shall have been suspended or
materially limited, (ii) a general moratorium on commercial banking activities
in New York shall have been declared by either Federal or New York State
authorities, (iii) there shall have occurred any material outbreak or escalation
of hostilities or other calamity or crisis the effect of which on the financial
markets of the United States is such as to make it, in the reasonable judgment
of such Underwriters or such Representatives, impracticable or inadvisable to
proceed with the offering or delivery of the Notes as contemplated by the
Prospectus and Prospectus Supplement, or (iv) there shall have occurred such a
material adverse change in general economic or financial conditions the effect
of which on the financial markets in the United States is such as to make it
impracticable to proceed with the public offering or delivery of the Notes on
the terms and in the matter contemplated in the Prospectus and the Prospectus
Supplement.
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed to them c/o Lehman Brothers, 3 World Financial Center,
200 Vesey Street, New York, New York 10285, attention of the Legal Department;
or, if sent to AirTouch, will be mailed, delivered, or telefaxed to it at One
California Street, San Francisco, California 94111, attention of the Legal
Department.
Please confirm your agreement by executing a copy of this Underwriting
Agreement in the space set forth below and returning the signed copy to the
Undersigned.
This Underwriting Agreement may be signed in any number of counterparts
with the same effect as if the signatures thereto and hereto were upon the same
instrument.
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Very truly yours,
Lehman Brothers Inc.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
J.P. Morgan Securities Inc.
Salomon Brothers Inc
By: Lehman Brothers, Inc.
By: /s/ Jerome D. Lucas
-------------------------------------
Managing Director
For themselves and the other several
Underwriters named in Schedule I to the
foregoing Agreement.
Accepted:
AIRTOUCH COMMUNICATIONS, INC.
By: /s/ Mohan S. Gyani
-------------------------------
Executive Vice President and
Chief Financial Officer
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SCHEDULE I
<TABLE>
<CAPTION>
Principal Amount Principal Amount
of 7 1/8% Notes of 7 1/2% Notes
Underwriter to be Purchased to be Purchased
- ----------- --------------- ---------------
<S> <C> <C>
Lehman Brothers Inc. .............. $ 62,500,000 $100,000,000
Merrill Lynch, Pierce, Fenner
& Smith Incorporated ........... 62,500,000 100,000,000
J.P. Morgan Securities Inc. ....... 62,500,000 100,000,000
Salomon Brothers Inc ............. 62,500,000 100,000,000
------------ ------------
Total ............................. $250,000,000 $400,000,000
</TABLE>
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EXHIBIT A
[FORM OF OPINION]
[Date]
Underwriter(s)
Gentlemen and Mesdames:
We have acted as counsel to AirTouch Communications, Inc. ("AirTouch")
in connection with your purchase from AirTouch of $000,000,000 of its Securities
(the "Securities"). Such purchase is made pursuant to the Underwriting Agreement
dated _________, 19_ (the "Underwriting Agreement") between AirTouch and you,
the Underwriter[s]. This opinion is furnished pursuant to Section 6(b) of the
Underwriting Agreement. Terms defined in the Indenture have the same meanings
when used in this opinion.
We have examined executed copies of the Securities, the Underwriting
Agreement, the Registration Statement (as hereinafter defined) and the
Prospectus (as hereinafter defined). We have also examined such other documents
and certificates of public officials and representatives of AirTouch as we have
deemed necessary as a basis for the opinions expressed herein. As to questions
of fact material to such opinions, we have, when relevant facts were not
independently established, relied upon certificates of officers or authorized
representatives of AirTouch.
We have assumed the genuineness of all signatures and documents
submitted to us as originals, that all copies submitted to us conform to the
originals, the legal capacity of all natural persons, and as to documents
executed by entities other than AirTouch, that each of such entities has the
power to enter into and perform its respective obligations thereunder, and that
such documents have been duly authorized, executed and delivered by, and are
binding upon and enforceable against, each of such entities.
We express no opinion as to the laws of any jurisdiction other than
California, New York and the general corporate law of Delaware and the Federal
laws of the United States of America, and, with respect to questions of New York
law, we have relied, with your permission, solely upon the opinion of
[_____________].
Based upon the foregoing and subject to the qualifications set forth
below, it is our opinion that:
1. Each of AirTouch and each of AirTouch Cellular, a California
corporation, AirTouch Cellular of Nevada, a Nevada corporation, and AirTouch
International, a California corporation (the "Subsidiaries"), has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of the jurisdiction in which it is organized with full corporate power and
authority to own, lease and operate its properties and conduct its business as
described in the prospectus dated July 2, 1996 and the prospectus supplement
dated _____, filed with the Securities and Exchange Commission (the
"Commission") pursuant to Rule 424(b)(2) of Regulation C under the Securities
Act of 1933, as amended (the "Act") (the prospectus and the prospectus
supplement, including the documents incorporated by reference therein, are
herein collectively referred to as the "Prospectus"). Each of AirTouch and the
Subsidiaries is duly
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qualified to do business as a foreign corporation and is in good standing under
the laws of each jurisdiction in which the character of the business conducted
by it or the location of the properties owned or leased by it makes such
qualification necessary, except where the failure to be so qualified or in good
standing would not have a material adverse effect on AirTouch or its
Subsidiaries taken as a whole.
2. All of the outstanding shares of capital stock of each Subsidiary
of AirTouch have been duly and validly authorized and issued and are fully paid
and nonassessable, and, except as otherwise set forth in the Prospectus, are
owned by AirTouch, directly or through wholly-owned subsidiaries, free and clear
of any perfected and, to the best of my knowledge any other, adverse claim.
3. AirTouch's authorized equity capitalization is as set forth in
the prospectus supplement under the heading "Capitalization".
4. The Underwriting Agreement has been duly authorized, executed and
delivered by AirTouch.
5. The Securities have been duly authorized, executed and delivered
by AirTouch and when delivered to and paid for by the Underwriters pursuant to
the Underwriting Agreement will constitute valid and binding obligations of
AirTouch, enforceable in accordance with their respective terms.
6. The Indenture has been duly authorized, executed and delivered,
has been qualified under the Trust Indenture Act of 1939, as amended, and
constitutes a valid and binding obligation of AirTouch, enforceable in
accordance with its terms, and when the Securities have been executed and
authenticated in accordance with the provisions of the Indenture they will be
entitled to the benefits of the Indenture.
7. The Registration Statement on Form S-3 (File No. 33-62787) filed
by AirTouch with the Commission under Rule 415 of the Act on December 13, 1995
(such Registration Statement including the documents incorporated by reference
therein being herein collectively referred to as the "Registration Statement")
has become effective under the Act, and, to the best of our knowledge, no stop
order suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or are pending or
contemplated under the Act, and, except as may be otherwise indicated in the
Prospectus or required by the blue sky or securities laws of jurisdictions in
which the Securities are offered, the offer and sale of the Securities as
described in the Prospectus, and the execution, delivery and performance of the
terms of the Underwriting Agreement, the Indenture and the Securities by
AirTouch will not contravene, result in a breach or violation of, or constitute
a default under, any provision of the Restated Certificate of Incorporation, as
amended, or By-Laws of AirTouch, or to the best of our knowledge any applicable
law or regulation, any judgment, order or decree known to us to be applicable to
AirTouch or any of its Subsidiaries of any court, regulatory body,
administrative agency, governmental body or arbitrator having jurisdiction over
AirTouch or any of its Subsidiaries, or any material agreement or instrument
binding upon AirTouch.
8. No consent, approval, authorization or order of, or filing with,
any governmental agency or body or any federal or state court is required to be
obtained or made by AirTouch for the consummation of the transactions
contemplated by this Agreement in connection with the sale of the Securities,
except (A) such as have been obtained and made under the Act or the
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Securities Exchange Act of 1934, as amended (the "Exchange Act"), or the rules
and regulations thereunder, or the bylaws and rules of the National Association
of Securities Dealers, Inc. and (B) such as may be required under state or
foreign securities laws.
9. To the best of our knowledge, there is no pending or threatened
action, suit or proceeding before any court or governmental agency, authority or
body or any arbitrator involving AirTouch or any of its subsidiaries of a
character required to be disclosed in the Registration Statement which is not
adequately disclosed in the Prospectus; provided that for this purpose we have
not regarded any legal or governmental proceedings to be "threatened" unless the
potential litigant or governmental authority has manifested to the management of
AirTouch a present intention to initiate such proceedings.
10. The Registration Statement and the Prospectus comply as to form in
all material respects with the requirements of the Act and the rules and
regulations of the Commission thereunder; each document filed by AirTouch under
the Exchange Act and incorporated by reference in the Prospectus complied as to
form in all material respects when so filed with the requirements of the
Exchange Act and the rules and regulations of the Commission thereunder.
11. The statements in the prospectus supplement under the heading
"Description of the Notes" and in the prospectus dated July 2, 1996, under the
heading "Description of the Debt Securities" with respect to the terms of the
Securities fairly summarize the terms of such instruments and to the best of our
knowledge there are no other agreements or instruments required to be described
or referred to in the Registration Statement which have not been described or
referred to, as required.
During the course of the preparation of the Registration Statement, we
participated in conferences with officers and other representatives of the
Company at which the contents of the Registration Statement, the Prospectus and
other related matters were discussed. Although we are not passing upon and have
not checked the accuracy or completeness of, or otherwise verified the
information furnished in the Registration Statement or Prospectus, we have
considered the information required to be furnished therein and have generally
reviewed and had discussions with certain officers and employees of AirTouch
concerning the information so furnished, whether or not subject to our checking
and verification, and on the basis of such consideration, review and discussion,
but without independent checking and verification, we have no reason to believe
the Registration Statement, or any amendment thereto at the time the
Registration Statement became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or the Prospectus or
any supplement thereto at the time it was filed pursuant to Rule 424(b) of the
Act, or on the Closing Date, contained any untrue statement of a material fact
or omitted to state any material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances in which they were
made, not misleading; it being understood that with respect to matters covered
by this paragraph, we express no opinion as to the financial statements and
related schedules and other financial or statistical data contained in the
Registration Statement or the Prospectus.
The opinions set forth in the foregoing are subject to the following
qualifications:
Our opinions in paragraph 5 and 6 are subject to and limited
by: (i) the effect of bankruptcy, insolvency, reorganization, receivership,
conservatorship, arrangement, moratorium or other laws affecting or relating to
the rights of creditors generally; (ii) the rules governing the
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availability of specific performance, injunctive relief or other equitable
remedies and general principles of equity, regardless of whether considered in a
proceeding in equity or at law; (iii) to the extent applicable, the effect of
court decisions invoking statutes or principles of equity, which have held that
certain covenants and provisions of agreements are unenforceable where the
breach of such covenants or provisions imposes restrictions or burdens is
necessary for the protection of the creditor, or which have held that the
creditor's enforcement of such covenants or provisions under the circumstances
would have violated the creditor's covenants of good faith and fair dealing
implied under California law, and (iv) to the extent applicable, the effect of
California statutes and rules of law which cannot be waived prospectively by a
borrower.
Whenever a statement herein is qualified by "known to us", "to our
knowledge" or similar phrase, it indicates that in the course of our
representation of AirTouch no information that would give us current actual
knowledge of the inaccuracy of such statement has come to the attention of the
attorneys in this firm who have rendered legal services in connection with this
transaction, including the principal partners of this firm who are familiar with
matters relating to AirTouch. We have not made any independent investigation to
determine the accuracy of such statement, except as expressly described herein.
No inference as to our knowledge of any matters bearing on the accuracy of such
statement should be drawn from the fact of our representation of AirTouch in
other matters in which such attorneys are not involved.
This opinion is rendered by us as counsel for AirTouch solely for your
benefit in connection with the transaction referred to herein and may not be
relied upon by you in connection with any other transaction and may not be
relied upon by any other person without our prior written consent.
Very truly yours,
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AIRTOUCH COMMUNICATIONS, INC.
DEBT SECURITIES
UNDERWRITING AGREEMENT STANDARD PROVISIONS
From time to time, AirTouch Communications, Inc., a Delaware
corporation ("AirTouch"), may enter into one or more underwriting agreements
that provide for the sale of certain debt securities (the "Securities"), to the
purchaser or purchasers named therein (the "Underwriters"). The standard
provisions set forth herein may be incorporated by reference in any such
underwriting agreement (the "Underwriting Agreement"). The Underwriting
Agreement, including the provisions incorporated therein by reference, is herein
referred to as "this Agreement." Unless otherwise defined herein, terms defined
in the Underwriting Agreement are used herein as therein defined. Capitalized
terms not otherwise defined in this Agreement shall have the meaning ascribed
thereto in the Indenture (as hereinafter defined).
The terms governing of the issuance and sale of any particular series
of Securities shall be as provided in the applicable Underwriting Agreement
(with respect to each Underwriting Agreement, such series of Securities are
herein referred to as the "Designated Securities").
1. Issuance of Designated Securities. Sales of the Designated Securities
may be made from time to time to the Underwriters of the Designated Securities.
Any firm or firms designated as the representative or representatives, as the
case may be, of the Underwriters of the Designated Securities in the
Underwriting Agreement relating thereto will act as the representative or
representatives (the "Representative"). The obligation of AirTouch to issue and
sell any of the Designated Securities and the obligation of any Underwriters to
purchase any of the Designated Securities shall be evidenced by the Underwriting
Agreement with respect to the Designated Securities specified therein. Each
Underwriting Agreement shall specify the aggregate principal amount of the
Designated Securities, the public offering price of the Designated Securities,
the purchase price to the Underwriters of the Designated Securities, the names
of the Underwriters of the Designated Securities, the name of the
Representative, if any, of such Underwriters, and the principal amount of the
Designated Securities to be purchased by each Underwriter and shall set forth
the date, time and manner of delivery of the Designated Securities and payment
therefor. The Underwriting Agreement shall also specify, to the extent not set
forth in the Registration Statement and Prospectus (as hereinafter defined) with
respect thereto, the general terms of the Designated Securities. An Underwriting
Agreement shall be in writing (which may be in counterparts), and may be
evidenced by an exchange of facsimile transmissions. The obligations of the
Underwriters under each Underwriting Agreement shall be several and not joint.
2. Representations and Covenants. AirTouch represents to, and covenants
with, each Underwriter that:
(a) AirTouch meets the requirements for the use of Form S-3
and a registration statement on Form S-3 (Registration No. 33-62787)
including a prospectus, relating to the Securities of AirTouch has been
filed with the Securities and Exchange Commission (the "Commission") in
accordance with applicable regulations of the Commission under the
Securities Act of 1933, as amended (the "Act"), and has been declared
effective under the Act. Such registration statement, as amended to the
date
<PAGE> 10
of this Agreement, is hereinafter referred to as the "Registration
Statement," and such prospectus as proposed to be supplemented by a
prospectus supplement (the "Prospectus Supplement") relating to the
Designated Securities to be filed pursuant to Rule 424 under the Act is
hereinafter referred to as the "Prospectus." Any reference herein to
the Registration Statement or the Prospectus shall be deemed to refer
to and include the documents which were filed under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") on or before the
date of this Agreement, and incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3, excluding any documents or portions of
such documents which are deemed under the rules and regulations of the
Commission under the Act not to be incorporated by reference; and any
reference herein to the terms "amend," "amendment" or "supplement" with
respect to the Registration Statement or the Prospectus shall be deemed
to refer to and include the filing of any document under the Exchange
Act deemed to be incorporated therein by reference after the date of
this Agreement. For purposes of this Agreement, "Effective Time" with
respect to the Registration Statement means (A) if AirTouch has not
advised the Representative that it proposes to amend such registration
statement, the date and time as of which such registration statement,
or the most recent post-effective amendment thereto (if any) filed
prior to the execution and delivery of this Agreement, was declared
effective by the Commission or has become effective upon filing
pursuant to Rule 462(c) under the Act, or (B) if AirTouch has advised
the Representative that it proposes to file an amendment or
post-effective amendment to such registration statement, the date and
time as of which such registration statement, as amended by such
amendment or post-effective amendment, as the case may be, is declared
effective by the Commission. "Effective Date" with respect to the
Registration Statement means the date of the Effective Time thereof.
(b) At the Effective Time, the Registration Statement and
the Prospectus conformed, and any amendments thereof and supplements
thereto relating to the Designated Securities will conform, in all
material respects to the requirements of the Act and the rules and
regulations of the Commission thereunder; each document filed pursuant
to the Exchange Act and incorporated by reference in the Prospectus
complied when so filed as to form with the Exchange Act and the rules
and regulations of the Commission thereunder; the Indenture conforms in
all material respects to the requirements of the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act") and the rules and
regulations of the Commission thereunder; and neither the Registration
Statement on the Effective Date nor the Prospectus as of the date
thereof and on the Closing Date included or will include any untrue
statement of a material fact or omitted or will omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in the case of the Registration Statement, not
misleading, or in the case of the Prospectus, in light of the
circumstances in which they were made, not misleading; provided,
however, that AirTouch makes no representations as to (i) that part of
the Registration Statement which shall constitute a Trustee's Statement
of Eligibility and Qualifications (Form T-1) under the Trust Indenture
Act and (ii) any statements or omissions made in reliance upon and in
conformity with information furnished to AirTouch by or on behalf of
any Underwriter for use in connection with the preparation of such
documents.
(c) Neither AirTouch nor any of its affiliates does
business with the government of Cuba or with any person or affiliate
located in Cuba within the meaning of Section 517.075, Florida
Statutes.
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3. Delivery and Payment. Delivery of and payment for the Designated
Securities shall be made at the offices of counsel for the Underwriters, on the
date and at the time specified in the Underwriting Agreement (the "Closing
Date"), which Closing Date may be postponed by agreement between the
Underwriters, or the Representative, as the case may be, and AirTouch. Delivery
of the Designated Securities shall be made to the Underwriters or, if
appropriate, the Representative for the respective accounts of the Underwriters,
in either case, against payment by the Underwriters directly or through the
Representative of the purchase price thereof to or upon the order of AirTouch by
certified or official bank check or checks payable in same-day funds, unless
otherwise agreed in the Underwriting Agreement. Certificates for the Designated
Securities shall be registered in such names and in such denominations as the
Representative may request in writing not less than one full business day in
advance of the Closing Date.
If so requested by the Underwriters or the Representative, as the case
may be, AirTouch agrees to have the Designated Securities available for
inspection, checking and packaging in New York, New York, at least one business
day prior to the Closing Date.
4. Offering by Underwriters. It is understood that the Underwriters
propose to offer the Designated Securities for sale to the public upon the terms
and conditions set forth in the Prospectus.
5. Agreements. AirTouch agrees with the Underwriters that:
(a) AirTouch will cause the Prospectus Supplement to be
filed pursuant to Rule 424 under the Act and will promptly advise the
Underwriters or the Representative, as the case may be, when the
Prospectus Supplement has been so filed, and prior to the termination
of the offering of the Designated Securities will promptly advise such
Underwriters or Representative (i) when any amendment to the
Registration Statement has been declared effective or has become
effective upon filing pursuant to Rule 462(c) under the Act or any
further supplement to the Prospectus has been filed, (ii) of any
request by the Commission for any amendment of the Registration
Statement or the Prospectus or for any additional information, (iii) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (iv) of the receipt
by AirTouch of any notification with respect to the suspension of the
qualification of the Designated Securities for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose.
AirTouch will use its best efforts to prevent the issuance of any such
stop order and, if issued, to obtain as soon as possible the withdrawal
thereof. AirTouch will not file any amendment to the Registration
Statement or supplement to the Prospectus relating to the Designated
Securities unless it has furnished the Underwriters or the
Representative, as the case may be, a copy prior to filing and will not
file any such proposed amendment or supplement to which such
Underwriters or Representative reasonably objects.
(b) If, at any time when a prospectus relating to the
Designated Securities is required to be delivered under the Act or any
other applicable securities law, any event occurs as a result of which
the Prospectus as then amended or supplemented would include any untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it
shall be necessary to amend or supplement the Prospectus to comply with
the Act or the Exchange Act or the respective rules
<PAGE> 12
thereunder, AirTouch will promptly notify the Underwriters or the
Representative, as the case may be, and will promptly prepare and file
with the Commission, subject to paragraph (a) of this Section 5, an
amendment or supplement which will correct such statement or omission
or an amendment which will effect such compliance.
(c) AirTouch will make generally available to its security
holders and to the Underwriters or the Representative, as the case may
be, as soon as practicable, but not later than 45 days after the end of
the 12-month period beginning at the end of the fiscal quarter of
AirTouch during which the filing of the Prospectus Supplement pursuant
to Rule 424 under the Act first occurs (except not later than 90 days
if such filing date is in the last fiscal quarter), an earnings
statement (which need not be audited) of AirTouch and its consolidated
subsidiaries, covering such 12-month period, which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) AirTouch will furnish to the Underwriters or the
Representative, as the case may be, and counsel for such Underwriters
or for such Representative copies of the Registration Statement
(including, if requested, the exhibits thereto and the documents
incorporated by reference in the Prospectus) and each amendment or
supplement thereto relating to the Designated Securities which is
thereafter filed pursuant to paragraph (a) or (b) of this Section 5 and
to each Underwriter, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act or other applicable
securities laws, as many copies of the Prospectus and any amendments
thereof and supplements thereto, relating to the Designated Securities,
as such Underwriters or such Representative may reasonably request.
(e) AirTouch will pay (i) all expenses incurred by it in
the performance of its obligations under this Agreement, (ii)
reasonable fees charged for rating the Designated Securities and for
preparing a Blue Sky and Legal Investment Memorandum with respect to
the sale of the Designated Securities and (iii) the expenses of
printing or otherwise producing and delivering the Designated
Securities, the documents specified in paragraph (d) of this Section 5
and any Blue Sky and Legal Investment Memorandum.
(f) AirTouch will use its best efforts to arrange and pay
for the qualification of the Designated Securities for sale under the
laws of such jurisdictions as the Underwriters or the Representative,
as the case may be, may designate and to maintain such qualifications
in effect so long as required for the distribution of the Designated
Securities; provided, however, that AirTouch shall not be required to
qualify to do business in any jurisdiction where it is not now
qualified or to take any action which would subject it to general or
unlimited service of process in any jurisdiction where it is not now so
subject.
(g) If the sale of the Designated Securities provided for
in an Underwriting Agreement is not consummated by reason of any
failure, refusal or inability on the part of AirTouch to perform any
agreement on its part to be performed (except for any failure so to
perform on the part of AirTouch engendered by a failure, refusal or
inability on the part of the Underwriters or any Representative to
perform any agreement on their part to be performed) or the failure of
any condition set forth in
<PAGE> 13
Section 6, AirTouch will reimburse the several Underwriters who are
named in such Underwriting Agreement for all reasonable out-of-pocket
disbursements incurred by the Underwriters in connection with their
investigation, marketing and preparing to market the Designated
Securities, and upon such reimbursement AirTouch shall have no further
liability to the Underwriters except as provided in Section 7.
(h) During the period beginning on the date of this
Agreement and terminating on the later of (i) the Closing Date or (ii)
the date of notice to AirTouch by the Representative or the
Underwriters (which shall not exceed forty-five days from the date of
this Agreement), AirTouch will not offer, sell, contract to sell or
otherwise dispose of, in the United States, any long-term debt
securities issued or guaranteed by AirTouch without the prior written
consent of such Representative or such Underwriters.
(i) If AirTouch commences engaging in business with the
government of Cuba or with any person or affiliate located in Cuba
after the date hereof, it will provide the Florida Department of
Banking and Finance (the "Department") notice of such business or
change, as appropriate, in a form acceptable to the Department.
6. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase the Designated Securities shall be subject to the
accuracy of the representations on the part of AirTouch contained herein as of
the date hereof and the Closing Date, to the accuracy of the statements of
AirTouch made in any certificates pursuant to the provisions hereof, to the
performance by AirTouch of its obligations hereunder and to the following
additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted and be pending or threatened as
of the Closing Date;
(b) Pillsbury Madison & Sutro or counsel employed by the
Company, as counsel for AirTouch, shall have furnished to the
Representative their opinion, dated the Closing Date, substantially in
the form attached hereto as Exhibit A;
(c) The Underwriters or the Representative, as the case may
be, shall have received from counsel for the Underwriters such opinion
or opinions, dated the Closing Date, with respect to such matters as
such Underwriters or Representative may reasonably require;
(d) AirTouch shall have furnished to the Underwriters or
the Representative, as the case may be, a certificate, dated the
Closing Date, of AirTouch, signed by one of: the Chairman of the Board,
the Chief Executive Officer, the President, any Vice Chairman, or any
Vice President, and one of: the Chief Financial Officer, the Treasurer
or any Assistant Treasurer of AirTouch, to the effect that the signer
of such certificate has carefully examined the Registration Statement,
the Prospectus and this Agreement and that:
(1) The representations of AirTouch in this Agreement
are true and correct in all material respects on and as of the
Closing Date with the same effect as if made on the Closing
Date, and AirTouch has
<PAGE> 14
complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or
prior to the Closing Date;
(2) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted and are pending or, to his
or her knowledge, threatened as of such date; and
(3) Since the date of the most recent financial
statements included in the Prospectus, there has been no
material adverse change in the condition (financial or
otherwise) of AirTouch and its consolidated subsidiaries,
taken as a whole, nor any material increase in the debt of
AirTouch and its consolidated subsidiaries, except as set
forth in or contemplated by the Prospectus.
(e) The Underwriters or the Representative, as the case may
be, shall have received from Price Waterhouse LLP a letter, dated the
Closing Date, which letter shall be in form as may be agreed upon among
such Underwriters or Representative, AirTouch and Price Waterhouse LLP
and shall cover such matters as may be reasonably requested by such
Underwriters or Representative.
(f) Prior to the Closing Date, AirTouch shall have
furnished to the Underwriters or the Representative, as the case may
be, such further information, certificates and documents as they may
reasonably request.
(g) Subsequent to the date hereof, there shall not have
occurred (i) any change or decrease specified in the letter or letters
referred to in paragraph (e) of this Section 6 or (ii) any change, or
any development involving a prospective change, in or affecting the
business or properties of AirTouch and its subsidiaries considered as a
whole which, in any case referred to in clause (i) or (ii) above, the
Underwriters or the Representative, as the case may be, concludes, in
its judgment, after consultation with AirTouch, materially impairs the
investment quality of the Designated Securities so as to make it
impractical or inadvisable to proceed with the public offering or the
delivery of the Designated Securities as contemplated by the Prospectus
and there shall not have occurred any downgrading, nor shall any notice
have been given of any intended or potential downgrading in the rating
accorded any of AirTouch's securities by any "nationally recognized
statistical rating organization," as such term is defined for purposes
of Rule 436(g)(2) under the Securities Act.
7. Indemnification and Contribution.
(a) AirTouch agrees to indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each
Underwriter, and each person, if any, who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any
and all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the Act, the
Exchange Act or other Federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or the Prospectus, or
<PAGE> 15
in any amendment thereof or supplement thereto relating to the
Designated Securities, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and agrees to reimburse each such indemnified party for any
legal or other expenses reasonably incurred by them, as so incurred, in
connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that AirTouch will not
be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with information
furnished in writing to AirTouch by or on behalf of any Underwriter
through the Representative or the Underwriters, as the case may be, for
use in connection with the preparation thereof. This indemnity
agreement will be in addition to any liability which AirTouch may
otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless AirTouch, each of its directors, each of its officers who
signed the Registration Statement, and each person who controls
AirTouch within the meaning of either the Act or the Exchange Act, to
the same extent as the foregoing indemnity from AirTouch to each
Underwriter, but only with reference to information furnished in
writing to AirTouch by or on behalf of such Underwriter directly or
through any Representative for use in the preparation of the documents
referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability which any Underwriter may otherwise
have.
(c) Promptly after receipt by an indemnified party under
this Section 7 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section 7, notify the
indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party (i) will not relieve the
indemnifying party from any liability which it may have under this
Section 7 except to the extent it has been materially prejudiced by
such omission and (ii) will not relieve the indemnifying party from any
liability which it may have to any indemnified party otherwise than
under this Section 7. In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein, and to the extent that it may elect by written
notice delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the defense
thereof, with counsel satisfactory to such indemnified party; provided,
however, that, any indemnified party may employ separate counsel in any
such action and participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such indemnified
party except as provided below. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to
assume the defense of such action and approval by the indemnified party
of counsel, the indemnifying party will not be liable to such
indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the
defense thereof unless (i) the indemnified party shall have employed
separate counsel in connection with the assertion of legal defenses
which the indemnified party shall have been advised by such counsel may
be available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party (it
being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel, approved by
the representatives representing the indemnified parties who are
parties to such action), (ii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement
of the
<PAGE> 16
action or (iii) the indemnifying party has authorized the employment of
counsel for the indemnified party at the expense of the indemnifying
party; and except that, if clause (i) or (iii) is applicable, such
liability shall be only in respect of the counsel referred to in such
clause (i) or (iii). An indemnifying party will not, without the prior
written consent of each indemnified party, settle or compromise or
consent to the entry of any judgment with respect to any pending or
threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not
the indemnified parties are actual or potential parties to such claim
or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(d) In order to provide for just and equitable contribution
in circumstances in which the indemnification provided for in this
Section 7 is due in accordance with its terms but is for any reason
held by a court to be unavailable from AirTouch or the Underwriters on
grounds of policy or otherwise, AirTouch and the Underwriters shall
contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection
with investigating or defending same) (collectively, the "Losses") to
which AirTouch or one or more of the Underwriters may be subject in
such proportion so that the Underwriters are responsible for that
portion represented by the percentage that the underwriting discount
appearing on the cover page of the Prospectus bears to the public
offering price appearing thereon and AirTouch is responsible for the
balance; provided that (y) in no case shall any Underwriter (except as
may be provided in any agreement among underwriters relating to the
offering of the Designated Securities) be responsible for any amount in
excess of the underwriting discount applicable to the Designated
Securities purchased by such Underwriter hereunder and (z) no person
guilty of fraudulent misrepresentation (within the meaning of Section
11 (f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. If the
allocation provided above is not permitted by applicable law or if the
indemnified party failed to give the notice required under Section 7(c)
hereof, and as a result is not entitled to indemnification thereunder,
AirTouch and the Underwriters shall contribute, in such proportion as
is appropriate to reflect not only the relative proportional benefits
referred to above but also the relative fault of AirTouch on the one
hand and the Underwriters on the other with respect to the statements
or omissions which resulted in such Losses, as well as any other
relevant equitable consideration. The relative fault shall be
determined by reference to whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by AirTouch or the
Underwriters, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such
statement or omission. AirTouch and the Underwriters agree that it
would not be just and equitable if contributions pursuant to this
Section 7(d) were to be determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take into account the
equitable considerations referred to herein. For purposes of this
Section 7, each person who controls an Underwriter within the meaning
of either the Act or the Exchange Act and each director, officer,
employee and agent of an Underwriter shall have the same rights to
contribution as such Underwriter, and each person who controls AirTouch
within the meaning of either the Act or the Exchange Act, each officer
of AirTouch who shall have signed the Registration Statement and each
director of AirTouch shall have the same rights to contribution as
AirTouch, subject in each case to clause (y) of this paragraph (d). Any
party entitled to contribution will, promptly after receipt of notice
of commencement of any action, suit or proceeding against such party in
respect of which a claim for contribution may be made against another
party or parties under this
<PAGE> 17
paragraph (d), notify such party or parties from whom contribution may
be sought, but the omission to so notify in writing such party or
parties shall not relieve the party or parties from whom contribution
may be sought from any other obligation it or they may have hereunder
or otherwise than under this paragraph (d).
8. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Underwriters or the Representative, as the case may
be, written notice given to AirTouch prior to delivery of and payment for the
Designated Securities, if prior t such time (i) trading in AirTouch's Common
Stock or securities generally on the New York Stock Exchange shall have been
suspended or materially limited, (ii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities or, (iii) there shall have occurred any material outbreak or
escalation of hostilities or other calamity or crisis the effect of which on the
financial markets of the United States is such as to make it, in the reasonable
judgment of such Underwriters or such Representative, impracticable or
inadvisable to proceed with the offering or delivery of the Designated
Securities as contemplated by the Prospectus and Prospectus Supplement.
9. Representations and Indemnities to Survive. The respective agreements,
representations, indemnities and other statements of AirTouch, or its officers
and of the Underwriters and/or any Representative set forth in or made pursuant
to this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter, AirTouch or any of the
officers, directors or controlling persons referred to in Section 7 hereof, and
will survive delivery of and payment for the Securities. The provisions of
Sections 5(e) and 7 hereof shall survive the termination or cancellation of this
Agreement.
10. Default by an Underwriter. If any one or more Underwriters shall fail to
purchase and pay for any Designated Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Designated
Securities set forth opposite their names in the appropriate schedule of the
Underwriting Agreement bears to the aggregate amount of Designated Securities
set forth opposite the names of all the remaining Underwriters) the Designated
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Designated Securities which the defaulting Underwriter or Underwriters agreed
but failed to purchase shall exceed 10% of the amount of Designated Securities
set forth in the appropriate schedule of the Underwriting Agreement, the
remaining Underwriters shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Designated Securities, and if such
nondefaulting Underwriters do not purchase all the Designated Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter or
AirTouch. In the event of a default by any Underwriter as set forth in this
Section 10, the Closing Date shall be postponed for such period, not exceeding
seven days, as the Representative or Underwriters, as the case may be, shall
determine in order that the required changes in the Registration Statement and
the Prospectus or in any other documents or arrangements may be effected.
Nothing contained in this Agreement shall relieve any defaulting Underwriter of
its liability, if any, to AirTouch and any nondefaulting Underwriter for damages
occasioned by its default hereunder.
11. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 7 hereof, and no other
person will have any right or obligation hereunder.
<PAGE> 18
12. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Representatives, will be mailed, delivered
or telefaxed to them, c/o ______________; attention of __________ or, if sent to
AirTouch, will be mailed, delivered, or telefaxed to it at One California
Street, San Francisco, California 94111, attention of the Legal Department.
13. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
<PAGE> 1
Exhibit 4.1
EXECUTION COPY
SECOND SUPPLEMENTAL INDENTURE
Between
AIRTOUCH COMMUNICATIONS, INC.
and
THE FIRST NATIONAL BANK OF CHICAGO
as Trustee
Dated as of July 16, 1996
Supplemental To Indenture Dated as of July 16, 1996
<PAGE> 2
SECOND SUPPLEMENTAL INDENTURE
THIS SECOND SUPPLEMENTAL INDENTURE, dated as of July 16, 1996,
between AIRTOUCH COMMUNICATIONS, INC., a Delaware corporation (the "Company"),
and THE FIRST NATIONAL BANK OF CHICAGO, a national banking association (the
"Trustee"),
WITNESSETH:
WHEREAS, the Company and the Trustee have entered into that certain
Indenture dated as of July 16, 1996, as amended by the First Supplemental
Indenture dated as of July 16, 1996 (the "Original Indenture"), and such
Original Indenture provides that the Company and the Trustee may, at any time
and from time to time, under circumstances set forth in Article 10 thereof,
enter into one or more supplemental indentures without the consent of the
holders of the outstanding Securities for the purpose of supplementing the
provisions of the Original Indenture;
WHEREAS, pursuant to the provisions of Section 2.01 of the Original
Indenture, the Company wishes to establish two Series of Securities to be issued
by the Company under the Original Indenture to be in the aggregate principal
amount of U.S.$650,000,000, bearing interest at the rates and subject to such
other terms and provisions as are hereinafter set forth;
WHEREAS, the Company has duly authorized the execution and delivery
of this Second Supplemental Indenture, and all things necessary have been done
to make this Second Supplemental Indenture a valid agreement of the Company, in
accordance with its terms;
NOW, THEREFORE, THIS SECOND SUPPLEMENTAL INDENTURE
WITNESSETH:
That in order to declare additional terms and conditions upon which
certain Series of Securities may hereafter be issued, authenticated and
delivered, and in consideration of the premises and of the purchase and
acceptance of the Securities by the holders thereof, the Company covenants and
agrees with the Trustee as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.01. CERTAIN TERMS DEFINED. The terms defined in this
Section 1.01 shall, for all purposes of the Original Indenture and this Second
Supplemental Indenture, have the meanings herein specified, unless the context
clearly otherwise requires or unless otherwise indicated:
2
<PAGE> 3
COMPARABLE TREASURY ISSUE
The term "Comparable Treasury Issue" means, with respect to the July
1996 Notes, the United States Treasury security selected by an Independent
Investment Banker as having a maturity comparable to the remaining terms of such
July 1996 Notes to be redeemed that would be utilized, at the time of selection
and in accordance with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the remaining term of the
relevant July 1996 Notes.
COMPARABLE TREASURY PRICE
The term "Comparable Treasury Price" means, with respect to any
Redemption Date for the July 1996 Notes, (i) the average of the bid and asked
prices for the Comparable Treasury Issue (expressed in each case as a percentage
of its principal amount) on the third business day preceding such Redemption
Date, as set forth in the daily statistical release (or any successor release)
published by the Federal Reserve Bank of New York and designated "Composite 3:30
p.m. Quotations for U.S. Government Securities" or (ii) if such release (or any
successor release) is not published or does not contain such prices on such
business day, the Reference Treasury Dealer Quotation for such Redemption Date.
FIRST SUPPLEMENTAL INDENTURE
The term "First Supplemental Indenture" means the First Supplemental
Indenture dated as of July 16, 1996 between the Company and the Trustee.
INDEPENDENT INVESTMENT BANKER
The term "Independent Investment Banker" means Lehman Brothers or,
if such firm is unwilling or unable to select the Comparable Treasury Issue, an
independent investment banking institution of national standing appointed by the
Company and acceptable to the Trustee.
JULY 1996 NOTES
The term "July 1996 Notes" means the 7-1/8 % Notes and the 7-1/2 %
Notes.
LETTER OF REPRESENTATIONS
The term "Letter of Representations" means, with respect to this
Second Supplemental Indenture only, the Letter of Representations relating to
the July 1996 Notes among the Company, the Trustee and The Depository Trust
Company.
3
<PAGE> 4
REFERENCE TREASURY DEALER QUOTATION
The term "Reference Treasury Dealer Quotation" means, with respect
to the Reference Treasury Dealer and any Redemption Date for the July 1996
Notes, the average, as determined by the Trustee, of the bid and asked prices
for the Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Trustee by such Reference Treasury
Dealer at 5:00 p.m. on the third business day preceding such Redemption Date.
REFERENCE TREASURY DEALER
The term "Reference Treasury Dealer" means Lehman Brothers and its
successor; provided, however, that if it shall cease to be a primary U.S.
Government securities dealer in New York City (a "Primary Treasury Dealer"), the
Company shall substitute therefor another Primary Treasury Dealer.
7-1/8% GLOBAL NOTES
The term "7-1/8% Global Notes" means, for the purposes of this
Second Supplemental Indenture only, the Global Notes representing the 7-1/8%
Notes.
7-1/8% NOTES
The term "7-1/8% Notes" means, for the purposes of this Second
Supplemental Indenture Only, the Company's 7-1/8% Notes due 2001, which
constitute a Series of Securities under the Original Indenture.
7-1/2% GLOBAL NOTES
The term "7-1/2% Global Notes" means, for the purposes of this
Second Supplemental Indenture Only, the Global Notes representing the 7-1/2%
Notes.
7-1/2% NOTES
The term "7-1/2% Notes" means, for the purposes of this Second
Supplemental Indenture Only, the Company's 7-1/2% Notes due 2006, which
constitute a Series of Securities under the Original Indenture.
TREASURY YIELD
The term "Treasury Yield" means, with respect to any Redemption Date
for the July 1996 Notes, the rate per annum equal to the semiannual equivalent
yield to maturity of the Comparable Treasury Issue, assuming a price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for such Redemption Date.
4
<PAGE> 5
SECTION 1.02. OTHER DEFINITIONS. All of the terms appearing herein
shall be defined as the same are now defined under the provisions of the
Original Indenture, except when expressly herein otherwise defined.
ARTICLE TWO
TERMS OF THE 7-1/8 % NOTES
SECTION 2.01. TERMS OF THE 7-1/8% NOTES. The 7-1/8% Notes shall have the
following terms:
(a) The 7-1/8% Notes shall be designated as this
Company's 7-1/8% Notes Due 2001, and shall constitute a Series of
Securities under the Original Indenture;
(b) The 7-1/8% Notes shall be in the aggregate principal
amount of Two Hundred and Fifty Million United States Dollars
(US$250,000,000) and shall mature on July 15, 2001;
(c) The 7-1/8% Notes shall bear interest at the rate of
7-1/8% per annum from July 15, 1996, payable semiannually on each
January 15 and July 15, commencing January 15, 1997;
(d) The 7-1/8% Notes shall be issued initially as two
7-1/8% Global Notes, in registered form registered in the name of
the Depository (as hereinafter identified) or its nominee in such
denominations as are required by the Letter of Representations and
shall be in the form attached hereto as Exhibit A;
(e) The Depository for the 7-1/8% Global Notes shall be
The Depository Trust Company;
(f) The 7-1/8% Global Notes shall be exchangeable for
definitive 7-1/8% Notes in registered form substantially the same as
the 7- 1/8% Global Notes in denominations of $1,000 or any integral
multiple thereof upon the terms and in accordance with the
provisions of the Indenture;
(g) The 7-1/8% Notes shall be payable (as to both
principal and interest) when and as the same become due at the
office of the Trustee, as provided in the Indenture, provided that,
as long as the 7-1/8% Notes are in the form of one or more 7-1/8%
Global Notes payments of interest may be made by wire transfer in
accordance with the provisions of the Letter of Representations and
provided further, that upon any exchange of the Global Notes for
7-1/8% Notes in definitive form, the Company elects to
5
<PAGE> 6
exercise its option to have interest payable by check mailed to the
registered owners at such owners' addresses as they appear on the
Register, as kept by the Trustee on each relevant Record Date;
(h) The Record Date for the 7-1/8% Notes shall be the
fifteenth day preceding the relevant interest payment date;
(i) The 7-1/8% Notes will be redeemable in whole or in
part, at the option of the Company at any time, at a redemption
price equal to the greater of (a) 100% of their principal amount or
(b) the sum of the present values of the remaining scheduled
payments of principal and interest thereon discounted to the date of
redemption on a semi-annual basis (assuming a 360-day year
consisting of twelve 30-day months) at the Treasury Yield plus 10
basis points; plus for each of (a) and (b) above, accrued interest
on the 7-1/8% Notes to the date of redemption; and
(j) The 7-1/8% Notes shall be subject to the covenants
set forth in Article II of the First Supplemental Indenture.
ARTICLE THREE
TERMS OF THE 7-1/2% NOTES
SECTION 3.01. TERMS OF THE 7-1/2 % NOTES. The 7-1/2% Notes shall have the
following terms:
(a) The 7-1/2% Notes shall be designated as this
Company's 7- 1/2% Notes Due 2006, and shall constitute a Series of
Securities under the Original Indenture;
(b) The 7-1/2% Notes shall be in the aggregate principal
amount of Four Hundred Million United States Dollars
(U.S.$400,000,000) and shall mature on July 15, 2006;
(c) The 7-1/2% Notes shall bear interest at the rate of
7-1/2% per annum from July 15, 1996, payable semiannually on each
January 15 and July 15, commencing January 15, 1997;
(d) The 7-1/2% Notes shall be issued initially as two
7-1/2% Global Notes, in registered form registered in the name of
the Depository (as hereinafter identified) or its nominee in such
denominations as are required by the Letter of Representations and
shall be in the form attached hereto as Exhibit B;
(e) The Depository for the 7-1/2% Global Notes shall be
The Depository Trust Company;
6
<PAGE> 7
(f) The 7-1/2% Global Notes shall be exchangeable for
definitive 7-1/2% Notes in registered form substantially the same as
the 7- 1/2% Global Notes in denominations of $1,000 or any integral
multiple thereof upon the terms and in accordance with the
provisions of the Indenture;
(g) The 7-1/2% Notes shall be payable (as to both
principal and interest) when and as the same become due at the
office of the Trustee, as provided in the Indenture, provided that,
as long as the 7-1/2% Notes are in the form of one or more 7-1/2%
Global Notes payments of interest may be made by wire transfer in
accordance with the provisions of the Letter of Representations and
provided further, that upon any exchange of the 7- 1/2% Global Notes
for 7-1/2% Notes in definitive form, the Company elects to exercise
its option to have interest payable by check mailed to the
registered owners at such owners' addresses as they appear on the
Register, as kept by the Trustee on each relevant Record Date;
(h) The Record Date for the 7-1/2% Notes shall be the
fifteenth day preceding the relevant interest payment date;
(i) The 7-1/2% Notes will be redeemable in whole or in
part, at the option of the Company at any time, at a redemption
price equal to the greater of (a) 100% of their principal amount or
(b) the sum of the present values of the remaining scheduled
payments of principal and interest thereon discounted to the date of
redemption on a semi-annual basis (assuming a 360-day year
consisting of twelve 30-day months) at the Treasury Yield plus 15
basis points; plus for each of (a) and (b) above, accrued interest
on the 7-1/2% Notes to the date of redemption; and
(j) The 7-1/2% Notes shall be subject to the covenants
set forth in Article II of the First Supplemental Indenture.
ARTICLE FOUR
MISCELLANEOUS PROVISIONS
SECTION 4.01. PROVISIONS OF THE ORIGINAL INDENTURE. Except insofar
as herein otherwise expressly provided, all the definitions, provisions, terms
and conditions of the Original Indenture shall be deemed to be incorporated in
and made a part of this Second Supplemental Indenture; and the Original
Indenture, as amended and supplemented by this Second Supplemental Indenture, is
in all respects ratified and confirmed, and the Original Indenture and this
Second Supplemental Indenture shall be read, taken and considered as one and the
same instrument for all purposes and every Holder of July 1996 Notes
authenticated and delivered under the Indenture shall be bound hereby.
7
<PAGE> 8
SECTION 4.02. SEPARABILITY OF INVALID PROVISIONS. In case any one or
more of the provisions contained in this Second Supplemental Indenture should be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions contained in this Second
Supplemental Indenture, and to the extent and only to the extent that any such
provision is invalid, illegal or unenforceable, this Second Supplemental
Indenture shall be construed as if such provision had never been contained
herein.
SECTION 4.03. EXECUTION IN COUNTERPARTS. This Second Supplemental
Indenture may be simultaneously executed and delivered in any number of
counterparts, each of which when so executed and delivered shall be deemed to be
an original; but such counterparts shall together constitute but one and the
same instrument.
8
<PAGE> 9
IN WITNESS WHEREOF, AIRTOUCH COMMUNICATIONS, INC. has
caused this Second Supplemental Indenture to be signed by its Chairman of the
Board or any Vice Chairmen of the Board or one of its Executive Vice Presidents,
Senior Vice Presidents, or Vice Presidents and to be signed and acknowledged by
its Secretary or one of its Assistant Secretaries and THE FIRST NATIONAL BANK OF
CHICAGO has caused this Indenture to be signed and acknowledged by one of its
Vice Presidents and to be signed and acknowledged by one of its Assistant
Secretaries, all as of the day and year first written above.
AIRTOUCH COMMUNICATIONS, INC.
By: ______________________________
Name:
Title:
By: ______________________________
Name:
Title:
THE FIRST NATIONAL BANK OF
CHICAGO, as Trustee
By: ______________________________
Name:
Title:
By: ______________________________
Name:
Title:
9
<PAGE> 1
Exhibit 4.2
BK-_________
No. CUSIP
AIRTOUCH COMMUNICATIONS, INC.
GLOBAL NOTE REPRESENTING
7-1/8% NOTES DUE 2001
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY ("DTC"), TO AIRTOUCH COMMUNICATIONS, INC. OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL, INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY DTC TO A NOMINEE OF
DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR ANY
NOMINEE OF DTC TO A SUCCESSOR DEPOSITARY OR ANY NOMINEE OF SUCH SUCCESSOR
DEPOSITARY.
AIRTOUCH COMMUNICATIONS, INC. (herein referred to as "AirTouch"), a
corporation duly organized and existing under the laws of the State of Delaware,
for value received, hereby promises to pay to Cede & Co., or registered assigns,
the principal sum indicated on Schedule A hereof on July 15, 2001 in lawful
money of the United States of America and to pay interest (computed on the basis
of a 360-day year of twelve 30-day months) thereon in like money from July 15,
1996 or from the most recent Interest Payment Date (hereinafter defined) to
which interest has been paid or duly provided for until payment of such
principal sum, at the rate of 7-1/8% per annum, payable on each January 15 and
July 15, commencing January 15, 1997 (the "Interest Payment Dates"). Any such
interest not so punctually paid or duly provided for on any Interest Payment
Date ("Defaulted Interest") shall forthwith cease to be payable to the
registered Holder on the relevant Record Date and shall be paid as provided in
Section 2.03 of the Indenture (hereinafter defined).
The principal hereof is payable upon presentation and surrender of this
Note at the principal office of The First National Bank of Chicago, as Trustee
(herein called the "Trustee"). Interest on this Note may be payable by check or
draft mailed to the person in whose name this Note is registered at the close of
business of the Record Date for such interest payment at such person's address
as it appears on the registration books of the Trustee. The Record Date for the
Notes is the date which is 15 days prior to the relevant Interest Payment Date.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET FORTH ON THE
REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME
EFFECT AS IF FULLY SET FORTH AT THIS PLACE.
This Note shall not be entitled to any benefit under the Indenture
(hereinafter defined), or become valid or obligatory for any purpose, until the
Certificate of Authentication hereon endorsed shall have been executed by manual
signature by the Trustee.
IN WITNESS WHEREOF, AIRTOUCH COMMUNICATIONS, INC. has caused this Note
to be signed by one of its Vice Presidents manually or in facsimile and its
corporate seal to be imprinted hereon and attested by the manual or facsimile
signature of its Secretary or an Assistant Secretary.
AIRTOUCH COMMUNICATIONS, INC.
By: ___________________________
Vice President
Attest: _________________________
Assistant Secretary
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities, of the Series designated herein, described in the
within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO, as Trustee
By: _____________________________
Authorized Officer
<PAGE> 2
AIRTOUCH COMMUNICATIONS, INC.
GLOBAL NOTE REPRESENTING
7-1/8% NOTES DUE 2001
This Note is one of a duly authorized issue of securities of AirTouch, not
limited in aggregate principal amount, all issued or to be issued in one or more
series of varying dates, numbers, interest rates and other provisions, under an
Indenture dated as of July 16, 1996, as amended by the First Supplemental
Indenture dated as of July 16, 1996 and the Second Supplemental Indenture
dated as of July 16, 1996 (such Indenture as so amended being herein referred to
as the "Indenture"), each being between AirTouch and the Trustee. This Note is
one of a series of Notes designated as its "7-1/8% Notes Due 2001" aggregating
$250,000,000 in principal amount (herein called the "Notes").
Reference is hereby made to the Indenture and all indentures supplemental
thereto for a description of the rights, obligations, duties and immunities
thereunder of AirTouch, the Trustee and the holders of the Notes, to all of the
provisions of which Indenture and resolution the registered owner of this Note,
by acceptance hereof, assents and agrees. The Indenture contains provisions
permitting AirTouch and the Trustee, with the consent of the holders of not less
than a majority in aggregate principal amount of the Securities (which term is
defined in the Indenture as any security or securities of AirTouch,
authenticated and delivered under the Indenture) at the time Outstanding (as
defined in the Indenture) and affected by such supplemental indenture, to
execute one or more supplemental indentures for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Indenture or of any supplemental indenture or of modifying in any manner the
rights of the holders of such Securities; provided, however, that no such
supplemental indenture shall, without the consent of the holder of each
Outstanding Security (including the Notes) affected thereby: (1) change the
fixed maturity or redemption date of any Note, or reduce the rate of interest on
any Note or alter the method of determining such rate of interest or extend the
time of payment of interest, or reduce the principal amount thereof, or reduce
any premium payable on the redemption thereof, or change the coin or currency in
which the Notes or the interest thereon is payable or impair the right to
institute suit for the enforcement of any such payment on or after the maturity
thereof (or, in the case of redemption, on or after the redemption date), (2)
reduce the aforesaid percentage of holders of the Outstanding Securities whose
consent is required for the execution of such supplemental indenture, or the
consent of the holders of which is required for any waiver provided for in the
Indenture, (3) change the time of payment or (4) modify any provisions of the
Indenture relating to the amendment thereof or the creation of a supplemental
indenture (except to increase the rights of the holders). It is also provided in
the Indenture that the holders of a majority in principal amount of the Notes
may waive any past Event of Default with respect to the Notes and its
consequences except a continuing default in the payment of the principal of or
interest on the Notes or in respect of a covenant or provision of the Indenture
which cannot be modified or amended without the consent of the registered owner
of each Note so affected. The Indenture also provides that AirTouch and the
Trustee may enter into one or more supplemental indentures without the consent
of or notice to any holder of Securities: (1) to cure any ambiguity, defect or
inconsistency; (2) to permit a successor to assume AirTouch's obligations under
the Indenture as permitted by the Indenture; (3) to eliminate or change any
provision of the Indenture if such does not adversely affect the rights of any
holder of Outstanding Securities; (4) to provide for the issuance and establish
the terms and conditions of Securities of any series; (5) to add to the
covenants of the Company further covenants, restrictions or conditions for the
protection of the holders of all or any particular series of Securities and to
make the occurrence, or the occurrence and continuance, of a default in any such
additional covenants, restrictions or conditions an Event of Default permitting
the enforcement of all or any of the several remedies provided in the Indenture;
(6) to appoint, at the request of the Trustee, a successor Trustee for a
particular series of Securities to act as such pursuant to the provisions of the
Indenture; or (7) to add or change any of the provisions of the Indenture to
such extent as shall be necessary to facilitate the issuance of Securities in
(i) global form or (ii) bearer form, registerable or not registerable as to
principal or principal and interest, and with or without coupons.
The Notes will be redeemable in whole or in part, at the option of AirTouch at
any time, at a redemption price equal to the greater of (a) 100% of their
principal amount or (b) the sum of the present values of the remaining scheduled
payments of principal and interest hereon discounted to the date of redemption
on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day
months) at the Treasury Yield plus 10 basis points; plus for each of (a) and (b)
above, accrued interest on the Notes to the date of redemption. As provided in
the Indenture, notice of redemption shall be given to the registered owners of
Notes to be redeemed by mailing a notice of such redemption not less than 30 nor
more than 60 days prior to the date fixed for redemption, to their addresses as
they appear on the register books. If fewer than all the Notes are to be
redeemed, selection of Notes for redemption will be made by the Trustee in any
manner the Trustee deems fair and appropriate and that complies with applicable
legal and securities exchange requirements.
If an Event of Default (as that term is defined in the Indenture) shall occur,
the principal of all Notes and the interest accrued thereon may be declared due
and payable upon the conditions, in the manner and with the effect provided in
the Indenture. The Indenture provides that in certain events such declaration
and its consequences may be waived by the holders of a majority in aggregate
principal amount of the Notes then Outstanding.
The Notes are issuable in registered form in denominations of $1,000 and any
integral multiple thereof. Notes may be exchanged for a like aggregate amount of
Notes of other authorized denominations as provided in the Indenture. This Note
is transferable at the office of the Trustee in New York, New York by the
registered owner hereof in person, or by such registered owner's attorney duly
authorized in writing, on the books of AirTouch at said office, but only in the
manner, subject to the limitations and upon payment of the charges provided in
the Indenture, and upon surrender and cancellation of this Note. Upon such
transfer a new fully registered Note or Notes of authorized denomination or
denominations, for the same aggregate principal amount will be issued to the
transferee in exchange herefor.
<PAGE> 3
AirTouch, the Trustee and any agent of AirTouch or the Trustee and any paying
agent may treat the registered owner hereof as the absolute owner of this Note
(whether or not this Note shall be overdue and notwithstanding any notation of
ownership or other writing hereon made by anyone other than AirTouch or the
Trustee) for the purpose of receiving payment hereof or on account hereof and
for all other purposes, and none of AirTouch, the Trustee or any such agent
shall be affected by notice to the contrary.
THIS NOTE AND THE OBLIGATIONS OF AIRTOUCH IN RESPECT HEREOF ARE GOVERNED BY AND
SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
No recourse shall be had for the payment of the principal of or the interest on
this Note or for any claim based hereon, or otherwise in respect hereof, or
based on or in respect of the Indenture or any indenture supplemental thereto,
against any incorporator, stockholder, officer or director, as such, past,
present or future of AirTouch or of any successor thereof, whether by virtue of
any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issue hereof, expressly waived
and released.
<PAGE> 4
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM --as tenants in common
TEN ENT --as tenants by the entireties
JT TEN --as joint tenants with right of survivorship and not
as tenants in common
UNIF GIFT MIN ACT-- Custodian
-------- ------------
(Cust) (Minor)
under Uniform Gifts to Minors
Act
----------------------
(State)
Additional abbreviations may also be used though not in the above list.
----------------
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
- -------------------------------------------------------------
- -------------------------------------------------------------
- --------------------------------------------------------------------------------
Please print or typewrite name and address including postal zip code of assignee
- --------------------------------------------------------------------------------
- -------------------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably
constituting and appointing attorney to transfer
said Note on the books of AirTouch, with full power of substitution in the
premises.
Dated:
-------------------------
---------------------
NOTICE: The signature to this assignment must correspond with the name
as written upon the face of the within instrument in every particular, without
alteration or enlargement or any change whatever.
<PAGE> 5
SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT
The initial principal amount at maturity of this Note shall be $000,000,000.
The following decreases/increases in the principal amount at maturity of this
Note have been made:
<TABLE>
<CAPTION>
Total Principal Notation
Decrease in Increase in Amount at Made by
Date of Principal Principal Maturity or on
Decrease/ Amount at Amount at Following such Behalf of
Increase Maturity Maturity Decrease/Increase Trustee
- ------------------- ------------------- ------------------ -------------------- ------------------
<S> <C> <C> <C> <C>
- ------------------- ------------------- ------------------ -------------------- ------------------
- ------------------- ------------------- ------------------ -------------------- ------------------
- ------------------- ------------------- ------------------ -------------------- ------------------
- ------------------- ------------------- ------------------ -------------------- ------------------
- ------------------- ------------------- ------------------ -------------------- ------------------
- ------------------- ------------------- ------------------ -------------------- ------------------
- ------------------- ------------------- ------------------ -------------------- ------------------
- ------------------- ------------------- ------------------ -------------------- ------------------
- ------------------- ------------------- ------------------ -------------------- ------------------
- ------------------- ------------------- ------------------ -------------------- ------------------
- ------------------- ------------------- ------------------ -------------------- ------------------
- ------------------- ------------------- ------------------ -------------------- ------------------
- ------------------- ------------------- ------------------ -------------------- ------------------
- ------------------- ------------------- ------------------ -------------------- ------------------
- ------------------- ------------------- ------------------ -------------------- ------------------
- ------------------- ------------------- ------------------ -------------------- ------------------
</TABLE>
<PAGE> 1
Exhibit 4.3
BK-_________
No. CUSIP
AIRTOUCH COMMUNICATIONS, INC.
GLOBAL NOTE REPRESENTING
7-1/2% NOTES DUE 2006
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY ("DTC"), TO AIRTOUCH COMMUNICATIONS, INC. OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL, INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY DTC TO A NOMINEE OF
DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR ANY
NOMINEE OF DTC TO A SUCCESSOR DEPOSITARY OR ANY NOMINEE OF SUCH SUCCESSOR
DEPOSITARY.
AIRTOUCH COMMUNICATIONS, INC. (herein referred to as "AirTouch"), a
corporation duly organized and existing under the laws of the State of Delaware,
for value received, hereby promises to pay to Cede & Co., or registered assigns,
the principal sum indicated on Schedule A hereof on July 15, 2006 in lawful
money of the United States of America and to pay interest (computed on the basis
of a 360-day year of twelve 30-day months) thereon in like money from July 15,
1996 or from the most recent Interest Payment Date (hereinafter defined) to
which interest has been paid or duly provided for until payment of such
principal sum, at the rate of 7-1/2% per annum, payable on each January 15 and
July 15, commencing January 15, 1997 (the "Interest Payment Dates"). Any such
interest not so punctually paid or duly provided for on any Interest Payment
Date ("Defaulted Interest") shall forthwith cease to be payable to the
registered Holder on the relevant Record Date and shall be paid as provided in
Section 2.03 of the Indenture (hereinafter defined).
The principal hereof is payable upon presentation and surrender of this
Note at the principal office of The First National Bank of Chicago, as Trustee
(herein called the "Trustee"). Interest on this Note may be payable by check or
draft mailed to the person in whose name this Note is registered at the close of
business of the Record Date for such interest payment at such person's address
as it appears on the registration books of the Trustee. The Record Date for the
Notes is the date which is 15 days prior to the relevant Interest Payment Date.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET FORTH ON THE
REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME
EFFECT AS IF FULLY SET FORTH AT THIS PLACE.
This Note shall not be entitled to any benefit under the Indenture
(hereinafter defined), or become valid or obligatory for any purpose, until the
Certificate of Authentication hereon endorsed shall have been executed by manual
signature by the Trustee.
IN WITNESS WHEREOF, AIRTOUCH COMMUNICATIONS, INC. has caused this Note
to be signed by one of its Vice Presidents manually or in facsimile and its
corporate seal to be imprinted hereon and attested by the manual or facsimile
signature of its Secretary or an Assistant Secretary.
AIRTOUCH COMMUNICATIONS, INC.
By: ___________________________
Vice President
Attest: _________________________
Assistant Secretary
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities, of the Series designated herein, described in the
within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO, as Trustee
By: _____________________________
Authorized Officer
<PAGE> 2
AIRTOUCH COMMUNICATIONS, INC.
GLOBAL NOTE REPRESENTING
7-1/2% NOTES DUE 2006
This Note is one of a duly authorized issue of securities of AirTouch, not
limited in aggregate principal amount, all issued or to be issued in one or more
series of varying dates, numbers, interest rates and other provisions, under an
Indenture dated as of July 16, 1996, as amended by the First Supplemental
Indenture dated as of July 16, 1996 and the Second Supplemental Indenture dated
as of July 16, 1996 (such Indenture as so amended being herein referred to as
the "Indenture"), each being between AirTouch and the Trustee. This Note is one
of a series of Notes designated as its "7-1/2% Notes Due 2006" aggregating
$400,000,000 in principal amount (herein called the "Notes").
Reference is hereby made to the Indenture and all indentures supplemental
thereto for a description of the rights, obligations, duties and immunities
thereunder of AirTouch, the Trustee and the holders of the Notes, to all of the
provisions of which Indenture and resolution the registered owner of this Note,
by acceptance hereof, assents and agrees. The Indenture contains provisions
permitting AirTouch and the Trustee, with the consent of the holders of not less
than a majority in aggregate principal amount of the Securities (which term is
defined in the Indenture as any security or securities of AirTouch,
authenticated and delivered under the Indenture) at the time Outstanding (as
defined in the Indenture) and affected by such supplemental indenture, to
execute one or more supplemental indentures for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Indenture or of any supplemental indenture or of modifying in any manner the
rights of the holders of such Securities; provided, however, that no such
supplemental indenture shall, without the consent of the holder of each
Outstanding Security (including the Notes) affected thereby: (1) change the
fixed maturity or redemption date of any Note, or reduce the rate of interest on
any Note or alter the method of determining such rate of interest or extend the
time of payment of interest, or reduce the principal amount thereof, or reduce
any premium payable on the redemption thereof, or change the coin or currency in
which the Notes or the interest thereon is payable or impair the right to
institute suit for the enforcement of any such payment on or after the maturity
thereof (or, in the case of redemption, on or after the redemption date), (2)
reduce the aforesaid percentage of holders of the Outstanding Securities whose
consent is required for the execution of such supplemental indenture, or the
consent of the holders of which is required for any waiver provided for in the
Indenture, (3) change the time of payment or (4) modify any provisions of the
Indenture relating to the amendment thereof or the creation of a supplemental
indenture (except to increase the rights of the holders). It is also provided in
the Indenture that the holders of a majority in principal amount of the Notes
may waive any past Event of Default with respect to the Notes and its
consequences except a continuing default in the payment of the principal of or
interest on the Notes or in respect of a covenant or provision of the Indenture
which cannot be modified or amended without the consent of the registered owner
of each Note so affected. The Indenture also provides that AirTouch and the
Trustee may enter into one or more supplemental indentures without the consent
of or notice to any holder of Securities: (1) to cure any ambiguity, defect or
inconsistency; (2) to permit a successor to assume AirTouch's obligations under
the Indenture as permitted by the Indenture; (3) to eliminate or change any
provision of the Indenture if such does not adversely affect the rights of any
holder of Outstanding Securities; (4) to provide for the issuance and establish
the terms and conditions of Securities of any series; (5) to add to the
covenants of the Company further covenants, restrictions or conditions for the
protection of the holders of all or any particular series of Securities and to
make the occurrence, or the occurrence and continuance, of a default in any such
additional covenants, restrictions or conditions an Event of Default permitting
the enforcement of all or any of the several remedies provided in the Indenture;
(6) to appoint, at the request of the Trustee, a successor Trustee for a
particular series of Securities to act as such pursuant to the provisions of the
Indenture; or (7) to add or change any of the provisions of the Indenture to
such extent as shall be necessary to facilitate the issuance of Securities in
(i) global form or (ii) bearer form, registerable or not registerable as to
principal or principal and interest, and with or without coupons.
The Notes will be redeemable in whole or in part, at the option of AirTouch at
any time, at a redemption price equal to the greater of (a) 100% of their
principal amount or (b) the sum of the present values of the remaining scheduled
payments of principal and interest hereon discounted to the date of redemption
on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day
months) at the Treasury Yield plus 15 basis points; plus for each of (a) and (b)
above, accrued interest on the Notes to the date of redemption. As provided in
the Indenture, notice of redemption shall be given to the registered owners of
Notes to be redeemed by mailing a notice of such redemption not less than 30 nor
more than 60 days prior to the date fixed for redemption, to their addresses as
they appear on the register books. If fewer than all the Notes are to be
redeemed, selection of Notes for redemption will be made by the Trustee in any
manner the Trustee deems fair and appropriate and that complies with applicable
legal and securities exchange requirements.
If an Event of Default (as that term is defined in the Indenture) shall occur,
the principal of all Notes and the interest accrued thereon may be declared due
and payable upon the conditions, in the manner and with the effect provided in
the Indenture. The Indenture provides that in certain events such declaration
and its consequences may be waived by the holders of a majority in aggregate
principal amount of the Notes then Outstanding.
The Notes are issuable in registered form in denominations of $1,000 and any
integral multiple thereof. Notes may be exchanged for a like aggregate amount of
Notes of other authorized denominations as provided in the Indenture. This Note
is transferable at the office of the Trustee in New York, New York by the
registered owner hereof in person, or by such registered owner's attorney duly
authorized in writing, on the books of AirTouch at said office, but only in the
manner, subject to the limitations and upon payment of the charges provided in
the Indenture, and upon surrender and cancellation of this Note. Upon such
transfer a new fully registered Note or Notes of authorized denomination or
denominations, for the same aggregate principal amount will be issued to the
transferee in exchange herefor.
<PAGE> 3
AirTouch, the Trustee and any agent of AirTouch or the Trustee and any paying
agent may treat the registered owner hereof as the absolute owner of this Note
(whether or not this Note shall be overdue and notwithstanding any notation of
ownership or other writing hereon made by anyone other than AirTouch or the
Trustee) for the purpose of receiving payment hereof or on account hereof and
for all other purposes, and none of AirTouch, the Trustee or any such agent
shall be affected by notice to the contrary.
THIS NOTE AND THE OBLIGATIONS OF AIRTOUCH IN RESPECT HEREOF ARE GOVERNED BY AND
SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
No recourse shall be had for the payment of the principal of or the interest on
this Note or for any claim based hereon, or otherwise in respect hereof, or
based on or in respect of the Indenture or any indenture supplemental thereto,
against any incorporator, stockholder, officer or director, as such, past,
present or future of AirTouch or of any successor thereof, whether by virtue of
any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issue hereof, expressly waived
and released.
<PAGE> 4
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM --as tenants in common
TEN ENT --as tenants by the entireties
JT TEN --as joint tenants with right of survivorship and not
as tenants in common
UNIF GIFT MIN ACT-- Custodian
-------- ------------
(Cust) (Minor)
under Uniform Gifts to Minors
Act
----------------------
(State)
Additional abbreviations may also be used though not in the above list.
----------------
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
- -------------------------------------------------------------
- -------------------------------------------------------------
- --------------------------------------------------------------------------------
Please print or typewrite name and address including postal zip code of assignee
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably
constituting and appointing attorney to transfer
said Note on the books of AirTouch, with full power of substitution in the
premises.
Dated:
-------------------------
---------------------
NOTICE: The signature to this assignment must correspond with the name
as written upon the face of the within instrument in every particular, without
alteration or enlargement or any change whatever.
<PAGE> 5
SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT
The initial principal amount at maturity of this Note shall be $000,000,000.
The following decreases/increases in the principal amount at maturity of this
Note have been made:
<TABLE>
<CAPTION>
Total Principal Notation
Decrease in Increase in Amount at Made by
Date of Principal Principal Maturity or on
Decrease/ Amount at Amount at Following such Behalf of
Increase Maturity Maturity Decrease/Increase Trustee
- ------------------- ------------------- ------------------ -------------------- ------------------
<S> <C> <C> <C> <C>
- ------------------- ------------------- ------------------ -------------------- ------------------
- ------------------- ------------------- ------------------ -------------------- ------------------
- ------------------- ------------------- ------------------ -------------------- ------------------
- ------------------- ------------------- ------------------ -------------------- ------------------
- ------------------- ------------------- ------------------ -------------------- ------------------
- ------------------- ------------------- ------------------ -------------------- ------------------
- ------------------- ------------------- ------------------ -------------------- ------------------
- ------------------- ------------------- ------------------ -------------------- ------------------
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</TABLE>
<PAGE> 1
EXHIBIT 5.1
[PILLSBURY MADISON & SUTRO LLP LETTERHEAD]
July 11, 1996
AirTouch Communications, Inc.
One California Street
San Francisco, CA 94111
Re: AirTouch Communications, Inc.
Registration Statement on Form S-3 (File No. 33-62787)
Ladies and Gentlemen:
In connection with the sale by AirTouch Communications, Inc. (the
"Company") of $650,000,000 aggregate principal amount of the Company's 7-1/8%
Notes Due 2001 and 7-1/2% Notes Due 2006 (the "Notes") pursuant to the
above-referenced registration statement (the "Registration Statement"), we
advise you that in our opinion:
The issuance and sale of the Notes have been duly authorized by the
Board of Directors of the Company. When the Notes have been executed and
authenticated in accordance with the terms of the Indenture to be dated as of
July 16, 1996, as amended by the First Supplemental Indenture and the Second
Supplemental Indenture each to be dated as of July 16, 1996, each between the
Company and The First National Bank of Chicago, as Trustee, and have been
issued, sold and delivered in the manner and for the consideration stated in
the Underwriting Agreement dated July 11, 1996 relating to the sale of the
Notes, the Notes will be the legal, valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms, except
as enforcement may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting generally the enforcement of creditors' rights and
by equitable principles of general application (whether applied at law or in
equity).
<PAGE> 2
AirTouch Communications, Inc.
July 11, 1996
Page 2
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission in connection with the Registration Statement and to the
references to our firm under the caption "Legal Matters" in the related
Prospectus dated July 2, 1996 and under the caption "Legal Opinions" in the
related Prospectus Supplement dated July 11, 1996.
Very truly yours,
/s/ PILLSBURY MADISON & SUTRO LLP
[01331]
