Registration No. 333-
As filed with the Securities and Exchange Commission on June 11, 1998
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
Registration Statement under
the Securities Act of 1933
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AIRTOUCH COMMUNICATIONS, INC.
A DELAWARE CORPORATION
I.R.S. EMPLOYER NUMBER 94-3213132
ATI FINANCING I ATI FINANCING II
A DELAWARE STATUTORY BUSINESS TRUST A DELAWARE STATUTORY BUSINESS TRUST
I.R.S. EMPLOYER NUMBER: 94-6689720 I.R.S. EMPLOYER NUMBER: 94-6689721
(Exact names of registrants as specified in their charters)
ONE CALIFORNIA STREET
SAN FRANCISCO, CALIFORNIA 94111
(415) 658-2000
(Address, including zip code, and telephone numbers, including area code, of
registrant's principal executive offices)
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Margaret G. Gill
Senior Vice President, Legal, External Affairs and Secretary
AirTouch Communications, Inc.
One California Street
San Francisco, California 94111
(415) 658-2000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
<TABLE>
<S> <C> <C>
Sharon A. Le Duy Nathaniel M. Cartmell III Peter H. Darrow
AirTouch Communications, Inc. Katharine A. Martin Cleary, Gottlieb, Steen & Hamilton
One California Street Pillsbury Madison & Sutro LLP One Liberty Plaza
San Francisco, CA 94111 235 Montgomery Street New York, New York 10006-1470
(415) 658-2000 San Francisco, California 94104 (212) 225-2000
(415) 983-1000
</TABLE>
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Approximate date of commencement of proposed sale to the public: From
time to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, please check the following box: [x]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ] __________
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering.
[ ] ----------
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [X]
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Pursuant to Rule 429 under the Securities Act of 1933, as amended, the
Prospectus included in this Registration Statement is a combined prospectus
relating also to the Registrant's Registration Statement on Form S-3 (File No.
33-62787) previously filed under the Securities Act. This Registration Statement
also constitutes post-effective amendment No. 1 to such Registration Statement
No. 33-62787 and such post-effective amendment No. 1 shall hereafter become
effective concurrently with the effectiveness of this Registration Statement and
in accordance with Section 8(c) of the Securities Act.
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<PAGE>
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
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Proposed maximum Proposed maximum
Amount to be aggregate offering aggregate offering Amount of
Title of each class of securities to be registered registered price per unit (1) price(1) registration fee
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<S> <C> <C> <C> <C>
Common Stock, par value $0.01 (2)
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Preferred Stock (3)
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Depositary Shares
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Debt Securities (4)
- ------------------------------------------------------------------------------------------------------------------------------
Warrants (5)
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Stock Purchase Contracts (6)
- ------------------------------------------------------------------------------------------------------------------------------
Stock Purchase Units (7)
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Preferred Securities of ATI Financing I (8)
- ------------------------------------------------------------------------------------------------------------------------------
Preferred Securities of ATI Financing II (8)
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Guarantees of Preferred Securities (9)
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Other Units (10)
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Total $2,500,000,000 (12) 100% (11)(12) $619,500 (12)
==============================================================================================================================
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o).
(2) Subject to note (11) below, there are being registered hereunder an
indeterminate number of shares of Common Stock as may be sold, from time
to time, by the Registrant, including, without limitation, sales upon
exercise of Warrants, Stock Purchase Contracts and Stock Purchase Units.
There are also being registered hereunder an indeterminate number of
shares of Common Stock as shall be issuable upon conversion, redemption or
exchange of Preferred Stock or Debt Securities registered hereby. The
Common Stock being registered includes associated Preferred Stock Purchase
Rights.
(3) Subject to note (11) below, there are registered hereunder an
indeterminate number of shares of Preferred Stock as may be sold, from
time to time, by the Registrant, including sales upon exercise of
Warrants, Stock Purchase Contracts and Stock Purchase Units, and an
indeterminate number of shares of Preferred Stock as shall be issuable
upon conversion, redemption or exchange of Debt Securities registered
hereby.
(4) Subject to note (11) below, there are being registered hereunder an
indeterminate principal amount of Debt Securities as may be sold from time
to time by the Registrant, including sales upon the exercise of Warrants.
If any Debt Securities are being issued at an original issue discount,
then the offering price shall be in such greater principal amount as shall
result in an aggregate initial offering price not to exceed
$2,500,000,000 less the dollar amount of any securities previously issued
hereunder.
(5) Subject to note (11) below, there are being registered hereunder an
indeterminate amount and number of Warrants, representing rights to
purchase Debt Securities, Preferred Stock, Common Stock, or shares of
capital stock or debt of another corporation or entity.
(6) Subject to note (11) below, there are being registered hereunder an
indeterminate amount and number of Stock Purchase Contracts, representing
rights to purchase Preferred Stock or Common Stock.
(7) Subject to note (11) below, there are being registered hereunder an
indeterminate amount and number of Stock Purchase Units, representing
ownership of Stock Purchase Contracts and Debt Securities, or debt
obligations of third parties, including U.S.
Obligations or Preferred Securities.
(8) Subject to note (11) below, there are being registered hereunder an
indeterminate amount of Preferred Securities as may be sold from time to
time, including sales pursuant to Stock Purchase Units.
(9) Subject to note (11) below, there are being registered hereunder an
indeterminate amount of Guarantees of Preferred Securities as may be sold
from time to time, including sales pursuant to Stock Purchase Units. In
addition, this registration is deemed to include the rights of holders of
the Preferred Securities under the Guarantees, the Declaration (including
the tax and expense undertakings), the Subordinated Securities and the
Indenture, together constituting the backup undertakings as described in
this Registration Statement. No separate consideration will be received
for the Guarantees or the backup undertakings.
(10) Subject to note (11) below, there are being registered hereunder an
indeterminate amount of Other Units as may be sold from time to time by
the Registrant. The Other Units may consist of any combination of the
following securities registered hereby: Common Stock, Preferred Stock,
Depositary Shares, Debt Securities, Warrants, Stock Purchase Contracts,
Stock Purchase Units, Preferred Securities of ATI Financing I, Preferred
Securities of ATI Financing II and Guarantees of Preferred Securities.
(11) In no event will the aggregate initial offering price of all securities
issued from time to time pursuant to this Registration Statement exceed
$2,500,000,000. Any Securities registered hereunder may be sold
separately or as units with other securities registered hereunder.
(12) As described elsewhere on the cover page of this Registration Statement,
the total amount to be registered and proposed maximum aggregate offering
price includes $400,000,000 which is being carried forward from the
Registrant's previously filed registration statement on Form S-3, File No.
33-62787, and a filing fee of $121,213.00 was previously paid to register
such securities under such previously filed registration statement.
</TABLE>
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT THAT STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SECTION 8(A), MAY
DETERMINE.
<PAGE>
+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+ +
+ Information contained herein is subject to completion or amendment. A +
+ registration statement relating to these securities has been filed +
+ with the Securities and Exchange Commission. These securities may not +
+ be sold nor may offers to buy be accepted prior to the time the +
+ registration statement becomes effective. This prospectus shall not +
+ constitute an offer to sell or the solicitation of an offer to buy nor +
+ shall there be any sale of these securities in any State in which such +
+ offer, solicitation or sale would be unlawful prior to registration or +
+ qualification under the securities laws of any such State. +
+ +
+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED JUNE 11, 1998
PROSPECTUS
$2,500,000,000
AIRTOUCH COMMUNICATIONS, INC.
COMMON STOCK, PREFERRED STOCK, DEPOSITARY SHARES,
DEBT SECURITIES, COMMON STOCK WARRANTS,
PREFERRED STOCK WARRANTS, THIRD PARTY WARRANTS, DEBT WARRANTS, STOCK PURCHASE
CONTRACTS, STOCK PURCHASE UNITS AND OTHER UNITS
ATI FINANCING I
ATI FINANCING II
PREFERRED SECURITIES, GUARANTEED TO THE EXTENT SET FORTH
HEREIN BY AIRTOUCH COMMUNICATIONS, INC.
AirTouch Communications, Inc. (the "Company" or "AirTouch"), a Delaware
corporation, directly or through agents, dealers or underwriters designated from
time to time, or by third parties ("Third Parties") who have acquired securities
of the Company in private transactions or otherwise, or counterparties with whom
the Company may enter into hedging transactions (the "Counterparties"), may sell
from time to time up to $2,500,000,000 (or, if applicable, the equivalent
thereof in other currencies) in the aggregate, subject to the limitations set
forth below, of (a) shares of common stock, $0.01 par value per share, of the
Company ("Common Stock"), (b) shares of preferred stock, $0.01 par value per
share, of the Company ("Preferred Stock"), in one or more series, (c) depositary
shares of the Company ("Depositary Shares"), (d) unsecured senior or
subordinated debt securities of the Company ("Debt Securities"), (e) options,
warrants and other rights to purchase shares of Common Stock ("Common Stock
Warrants") or shares of Preferred Stock ("Preferred Stock Warrants"), (f)
options, warrants and other rights to purchase shares of capital stock or debt
of another corporation or other entity ("Third Party Warrants"), (g) options,
warrants and other rights to purchase Debt Securities ("Debt Warrants"), (h)
stock purchase contracts ("Stock Purchase Contracts") to purchase Common Stock
or Preferred Stock (i) stock purchase units ("Stock Purchase Units") each
representing ownership of a Stock Purchase Contract and Preferred Stock, Debt
Securities, debt obligations of third parties, including the United States of
America or agencies or instrumentalities thereof ("U.S. Obligations") or
Preferred Securities (as defined below), securing the holder's obligation to
purchase Common Stock or Preferred Stock under the Stock Purchase Contract or
(j) other units ("Other Units"), each of which may represent any combination of
the following: Common Stock, Preferred Stock, Depositary Shares, Debt
Securities, Common Stock Warrants, Preferred Stock Warrants, Third Party
Warrants, Debt Warrants, Stock Purchase Contracts, Stock Purchase Units,
Preferred Securities or Guarantees.
ATI Financing I and ATI Financing II, each of which is a statutory
business trust formed under the laws of the State of Delaware (each a "Financing
Trust"), the Common Securities (as defined herein) of which will be wholly-owned
by the Company at the time of issuance of any preferred securities, may offer
preferred securities representing undivided beneficial interests in the assets
of the respective Financing Trust ("Preferred Securities"). The payment of
periodic cash distributions with respect to Preferred Securities of each of the
Financing Trusts out of moneys held by each of the Financing Trusts, and
payments on liquidation, redemption or otherwise with respect to such Preferred
Securities, will be guaranteed by the Company to the extent described herein
(each a "Guarantee"). See "Description of the Guarantees." The Company's
obligations under the Guarantees are subordinate and junior in right of payment
to all senior liabilities of the Company and rank PARI PASSU with the
obligations of the Company under any similar guarantee agreements issued by the
Company on behalf of holders of Subordinated Debt Securities. In the event a
Financing Trust issues Preferred Securities or Common Securities, the proceeds
to such Financing Trust from such offering will be invested in subordinated Debt
Securities, which will be issued and sold in one or more series by the Company
to such Financing Trust or the trustee of such trust. The subordinated Debt
Securities purchased by a Financing Trust may be subsequently distributed pro
rata to holders of Preferred Securities or Common Securities in connection with
the dissolution of such Financing Trust upon the occurrence of certain events as
may be described in an accompanying Prospectus Supplement.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
ADDITIONAL INFORMATION REGARDING THE SECURITIES IS SET FORTH ON THE
INSIDE FRONT COVER.
FOR A DISCUSSION OF CERTAIN RISKS ASSOCIATED WITH AN INVESTMENT IN THE
SECURITIES, SEE "GENERAL DESCRIPTION OF SECURITIES AND RISK FACTORS" ON PAGE 7.
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE SALES OF SECURITIES
UNLESS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
The date of this Prospectus is __________, 1998
<PAGE>
The Common Stock, Preferred Stock, Depositary Shares, Debt Securities,
Common Stock Warrants, Preferred Stock Warrants, Third Party Warrants, Debt
Warrants, Stock Purchase Contracts, Stock Purchase Units, Preferred Securities,
Guarantees and Other Units are collectively referred to herein as the
"Securities."
The Company, either Financing Trust, Third Parties or Counterparties
may sell the Securities to or through underwriters, dealers or agents or
directly to purchasers. See "Plan of Distribution." The Company and each
Financing Trust each reserve the sole right to accept and, together with their
respective agents from time to time, to reject in whole or in part any proposed
purchase of Securities to be made directly or through agents. The accompanying
Prospectus Supplement sets forth, among other things, the names of any
underwriters, dealers or agents involved in the sale of the Securities in
respect of which this Prospectus is being delivered, and any applicable fee,
commission or discount arrangements with them.
--------------------
All specific terms of the offering and sale of Securities, including
the initial public offering price, aggregate amount, listing on any securities
exchange or quotation system, risk factors and the agents, dealers or
underwriters, if any, to be utilized in connection with the sale of the
Securities, will be set forth in an accompanying Prospectus Supplement
("Prospectus Supplement"). With respect to the Preferred Stock, the related
Prospectus Supplement will set forth, among other things, the specific
designation, rights, preferences, privileges and restrictions thereof, including
dividend rate or rates (or method of ascertaining the same), dividend payment
dates, voting rights, liquidation preference, and any conversion, exchange,
redemption or sinking fund provisions. With respect to the Debt Securities, the
related Prospectus Supplement will set forth, among other things, the specific
designation, rights and restrictions, including whether they are senior or
subordinated, the currencies or currency units in which they are denominated,
the aggregate principal amount, the maturity, rate or rates of interest (or
method of ascertaining the same) and time of payment thereof, and any
conversion, exchange, redemption or sinking fund provisions. With respect to the
Common Stock Warrants, Preferred Stock Warrants, Third Party Warrants and Debt
Warrants, the related Prospectus Supplement will contain, among other things, a
description of the Common Stock, Preferred Stock, capital stock or debt of such
third party and Debt Securities, respectively, for which each warrant will be
exercisable and the exercise price, duration, detachability, call provisions and
other principal terms of such Warrants. With respect to the Stock Purchase
Contracts, the related Prospectus Supplement will set forth, among other things,
the designation and number of shares of Common Stock or Preferred Stock issuable
thereunder, the purchase price of the Common Stock or Preferred Stock, the date
or dates on which the Common Stock or Preferred Stock is required to be
purchased by the holders of the Stock Purchase Contracts, any periodic payments
required to be made by the Company to the holders of the Stock Purchase
Contracts or vice versa, and the terms of the offering and sale thereof. In the
case of Stock Purchase Units, the related Prospectus Supplement will set forth,
among other things, the specific terms of the Stock Purchase Contracts and any
Preferred Stock, Debt Securities or debt obligations of third parties or
Preferred Securities securing the holder's obligation to purchase the Preferred
Stock or Common Stock under the Stock Purchase Contracts, and the terms of the
offering and sale thereof. With respect to the Preferred Securities, the related
Prospectus Supplement will set forth, among other things, the specific
designation, rights, preferences, privileges and restrictions thereof, including
dividend rate or rates (or method of ascertaining the same), dividend payment
dates, voting rights, liquidation preference, and any conversion, exchange,
redemption or sinking fund provisions, the terms upon which the proceeds of the
sale of the Preferred Securities will be used to purchase a specific series of
subordinated Debt Securities of the Company and the terms upon which the
obligations of the relevant Financing Trust to make periodic cash distributions
on the Preferred Securities or make payments upon liquidation or dissolution of
such Financing Trust or upon redemption of the Preferred Securities, to the
extent funds are available therefor, shall be unconditionally guaranteed by
AirTouch. With respect to the Other Units, the related Prospectus Supplement
will set forth, among other things, the specific terms of any Common Stock,
Preferred Stock, Common Stock Warrants, Preferred Stock Warrants, Third Party
Warrants, Debt Warrants, Stock Purchase Contracts, Stock Purchase Units,
Preferred Securities and Guarantees, and the terms of the offering and sale
thereof.
--------------------
CERTAIN PERSONS PARTICIPATING IN THIS OFFERING MAY ENGAGE IN
TRANSACTIONS THAT STABILIZE, MAINTAIN, OR OTHERWISE AFFECT THE PRICE OF THE
SECURITIES AND THE COMMON STOCK OF THE COMPANY. SUCH TRANSACTIONS MAY INCLUDE
STABILIZING TRANSACTIONS, THE PURCHASE OF SECURITIES TO COVER SYNDICATE SHORT
POSITIONS
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<PAGE>
AND THE IMPOSITION OF PENALTY BIDS. FOR A DESCRIPTION OF THESE ACTIVITIES, SEE
"PLAN OF DISTRIBUTION."
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<PAGE>
<TABLE>
INDEX OF TERMS
<CAPTION>
Page on Which Page on Which
Term Term is Defined Term Term is Defined
- ---- --------------- ---- ---------------
<S> <C> <C> <C>
Acquiring Party........................ 9 Preferred Stock............................ 1
AirTouch............................... 1 Preferred Stock Warrants................... 1
Certificate of Incorporation........... 8 Prospectus Supplement...................... 2
Code................................... 31 Property Trustee........................... 7
Commission............................. 5 Redemption Price........................... 9
Common Securities..................... 6 Registration Statement..................... 5
Common Securities Guarantees........... 27 Regular Trustees........................... 7
Common Stock........................... 1 Rights..................................... 9
Common Stock Warrants.................. 1 Rights Plan ............................... 9
Company................................ 1 Securities................................. 2
Counterparties......................... 1 Securities Act............................. 5
Debt Depositary........................ 14 Senior Debt Securities .................... 13
Debt Securities ....................... 1 Senior Indenture........................... 13
Debt Warrant Agent .................... 24 Sponsor.................................... 6
Debt Warrant Agreement................. 24 Stock Purchase Contracts .................. 1
Debt Warrants ......................... 1 Stock Purchase Unit........................ 1
Declaration ........................... 6 Stock Warrant Agent........................ 21
Delaware Trustee ...................... 7 Stock Warrant Agreement ................... 21
Deposit Agreement...................... 11 Stock Warrant Provisions .................. 21
Depositary............................. 11 Stock Warrants............................. 21
Depositary Receipts ................... 11 Subordinated Debt Securities .............. 13
Depositary Shares...................... 11 Subordinated Indenture..................... 13
ERISA.................................. 30 Third Parties.............................. 1
Event of Default....................... 15 Third Party Company........................ 14
Exchange Act........................... 5 Third Party Registration Statement ........ 14
Financing Trust....................... 1 Third Party Securities .................... 14
Financing Trustees..................... 7 Third Party Warrant Agent.................. 22
Global Debt Securities................. 14 Third Party Warrant Agreement.............. 22
Guarantees............................. 1 Third Party Warrants ...................... 1
Guarantee Payments..................... 26 Trust Indenture Act........................ 7
Guarantee Trustee...................... 26 Trust Securities .......................... 6
Indentures............................ 13 U.S. Dollar, Dollar, U.S. $, $............. 4
Mandatory Debt Securities.............. 14 U.S. Obligations........................... 1
Other Units............................ 1 Voluntary Debt Securities.................. 14
Preferred Securities................... 1
</TABLE>
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References herein to "U.S. Dollar," "Dollar," "U.S. $" or "$" are to
the lawful currency of the United States of America.
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<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports and other information with the Securities and
Exchange Commission (the "Commission"). Reports, proxy statements and other
information concerning AirTouch Communications, Inc. can be inspected and copied
at the public reference facilities maintained by the Commission at its offices
at Judiciary Plaza, 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549,
as well as the Regional Offices of the Commission located at Seven World Trade
Center, 13th Floor, New York, New York 10048 and CitiCorp Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such material can
be obtained at prescribed rates from the Public Reference Section of the
Commission at its principal office at Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549. In addition, such reports, proxy statements and other
information may be accessed electronically at the Commission's site on the World
Wide Web at http://www.sec.gov. Such reports, proxy statements and other
information can also be inspected at the offices of the New York Stock Exchange,
Inc., 20 Broad Street, New York, New York 10005 and at the offices of the
Pacific Exchange, 301 Pine Street, San Francisco, California 94104.
The Company and the Financing Trusts have filed with the Commission a
registration statement on Form S-3 (the "Registration Statement") under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to the
Securities. This Prospectus does not contain all of the information set forth in
the Registration Statement and the exhibits and schedules thereto, certain parts
of which are omitted in accordance with the rules and regulations of the
Commission. For further information with respect to the Company, the Financing
Trusts and the Securities being offered hereby, reference is made to the
Registration Statement, which can be inspected at the public reference
facilities at the offices of the Commission set forth above. Any statements
contained herein concerning the provision of any document filed as an exhibit to
the Registration Statement or otherwise filed with the Commission and
incorporated by reference herein are not necessarily complete, and, in each
instance, reference is made to the copy of such document so filed for a more
complete description of the matter involved. Each such reference is qualified in
its entirety by such referenced documents.
No separate financial statements of the Financing Trusts have been
included herein. The Company does not consider that such financial statements
would be material to holders of the Securities because: (i) the Company, a
reporting company under the Exchange Act, owns, directly or indirectly, all of
the voting securities of each Financing Trust, (ii) neither Financing Trust has
any independent operations but exists for the sole purpose of issuing securities
representing undivided beneficial interests in the assets of such Financing
Trust and investing the proceeds thereof in subordinated Debt Securities, and
(iii) the obligations of each Financing Trust to make periodic cash payments on
Preferred Securities and payments upon liquidation or dissolution of such
Financing Trust or upon redemption of the Preferred Securities, to the extent
funds are available therefor, are unconditionally guaranteed by the Company. See
"Description of the Guarantees," "Description of the Preferred Securities" and
"Description of the Debt Securities--Subordinated Debt Securities."
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission by the Company
pursuant to the Exchange Act are incorporated herein by reference:
(a) the Company's Annual Report on Form 10-K for the year ended
December 31, 1997;
(b) the Company's Current Report on Form 8-K dated January 29, 1998;
(c) the Company's Current Report on Form 8-K dated April 6, 1998, as
amended on April 23, 1998;
(d) the Company's Current Report on Form 8-K dated April 27, 1998;
(e) the Company's Current Report on Form 8-K dated April 29, 1998
(filed as of April 29, 1998);
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<PAGE>
(f) the Company's Current Report on Form 8-K dated April 29, 1998
(filed as of May 1, 1998);
(g) the Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1998.
(h) the Company's Current Report on Form 8-K dated May 28, 1998; and
(i) the Company's Current Report on Form 8-K dated May 29, 1998.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act after the effective date of the
Registration Statement shall be deemed to be incorporated by reference in this
Prospectus and to be a part hereof from the date of filing of such documents.
Any statement contained herein or in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom a copy
of this Prospectus has been delivered, and who makes a written or oral request,
a copy of any and all of the information that has been incorporated by reference
in this Prospectus or any Prospectus Supplement, excluding exhibits. Requests
should be directed to: Investor Relations, AirTouch Communications, Inc., One
California Street, San Francisco, California 94111, telephone number: (415)
658-2000.
AIRTOUCH COMMUNICATIONS, INC.
AirTouch Communications, Inc. is one of the world's leading wireless
telecommunications companies, with significant cellular interests in the United
States, Western Europe and Asia. In the United States, the Company controls or
shares control over cellular systems in fifteen of the thirty largest markets:
Los Angeles, Detroit, San Francisco, Atlanta, San Diego, Minneapolis, Phoenix,
Seattle, Denver, Cleveland, Portland (Oregon), San Jose, Kansas City, Cincinnati
and Sacramento. Internationally, the Company holds significant ownership
interests, with board representation and substantial operating influence, in
cellular systems in Belgium, Egypt, India (Madras and Madhya Pradesh), Italy,
Japan, Poland, Portugal, Romania, South Korea, Spain and Sweden. The Company is
also one of the leading providers of paging services in the United States.
The Company's executive offices are located at One California Street,
San Francisco, California, 94111, telephone number: (415) 658-2000.
THE FINANCING TRUSTS
Each of ATI Financing I and ATI Financing II is a statutory business
trust formed under Delaware law pursuant to (i) a separate declaration of trust
executed by the Company, as sponsor for such trust (the "Sponsor") and the
Financing Trustees (as defined herein) of such trust and (ii) the filing of a
certificate of trust with the Secretary of State of the State of Delaware on
September 19, 1995. The declarations will be amended and restated in their
entirety (each, as so amended and restated, a "Declaration") substantially in
the form filed as an exhibit to the Registration Statement of which this
Prospectus is a part and will be qualified as Indentures under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"). Each Financing
Trust exists for the exclusive purposes of (i) issuing the Preferred Securities
and common securities representing undivided beneficial interests in the assets
of the Trust (the "Common Securities" and, together with the Preferred
Securities, the "Trust Securities"), (ii) investing the proceeds received by
such Financing Trust from the sale of the Trust Securities in subordinated Debt
Securities and (iii) engaging in only those other activities necessary or
incidental thereto. All of the Common Securities will be directly or indirectly
owned by the Company. The Common Securities will rank PARI PASSU, and payments
will be made thereon pro rata, with the Preferred Securities, except that, upon
an event of default under a Declaration, the rights of the holders of the Common
Securities to payment in respect of distributions and payments upon liquidation,
redemption and otherwise will be subordinated to the rights of the holders of
the Preferred Securities. The Company will directly or indirectly acquire Common
Securities in an aggregate liquidation amount equal to 3% of the total capital
of each Financing
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<PAGE>
Trust. Each Financing Trust has a term of approximately 55 years but may
terminate earlier, as provided in the relevant Declaration. Each Financing
Trust's business and affairs will be conducted by the trustees (the "Financing
Trustees") appointed by the Company as the direct or indirect holders of all the
Common Securities. The holder of the Common Securities of a Financing Trust will
be entitled to appoint, remove or replace any of, or increase or reduce the
number of, the Financing Trustees therefor. The duties and obligations of the
Financing Trustees shall be governed by the Declaration of such Financing Trust.
A majority of the Financing Trustees of each Financing Trust will be persons who
are employees or officers or who are affiliated with the Company (the "Regular
Trustees"). In certain limited circumstances set forth in a Prospectus
Supplement, the holders of the majority of the Preferred Securities will be
entitled to appoint one additional Regular Trustee who need not be an employee
or officer of or otherwise affiliated with the Company. A financial institution
that is not affiliated with the Company and has combined capital and surplus of
not less than $100,000,000 shall act as property trustee and as indenture
trustee for each Financing Trust for the purposes of the Trust Indenture Act,
pursuant to the terms set forth in a Prospectus Supplement (the "Property
Trustee"). In addition, unless the Property Trustee maintains a principal place
of business in the State of Delaware and otherwise meets the requirements of
applicable law, each Financing Trust will have a trustee which has a principal
place of business or reside in the State of Delaware (the "Delaware Trustee").
The Company will pay all fees and expenses related to the Financing Trusts and
the offering of the Trust Securities.
The office of the Delaware Trustee for each Financing Trust is The Bank
of New York (Delaware), White Clay Center, Route 273, Newark, Delaware. The
address for each Financing Trust is c/o the Company, the Sponsor of each
Financing Trust, at One California Street, San Francisco, California 94111.
USE OF PROCEEDS
Unless otherwise indicated in the applicable Prospectus Supplement, the
net proceeds from the sale of Securities offered hereby will be used for general
corporate purposes.
RATIO OF EARNINGS TO FIXED CHARGES
The following tables set forth the ratio of earnings to combined fixed
charges on historic and pro forma bases from continuing operations of the
Company for the periods indicated. For the purpose of calculating this ratio,
earnings consist of income before income taxes, preferred dividends and fixed
charges included in pre-tax income, adjusted for minority interests in income of
certain consolidated wireless systems and for equity in net losses and
distributed net income of certain less-than-fifty-percent-owned unconsolidated
wireless systems. Fixed charges include interest on indebtedness, the portion of
rental expense representative of the interest factor and preferred stock
dividend requirements.
Historical:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31, THREE MONTHS ENDED MARCH 31,
--------------------------------- ----------------------------
1993 1994 1995 1996 1997 1998
---- ---- ---- ---- ---- ----
<C> <C> <C> <C> <C> <C>
6.0 10.4 7.2 4.0 5.2 5.1
Pro Forma:
<CAPTION>
YEAR ENDED DECEMBER 31, 1997(1) THREE MONTHS ENDED MARCH 31, 1998(2)
---------------------------- ---------------------------------
<C> <C>
2.3 2.1
- --------
1 Ratio of earnings to combined fixed charges and preferred stock dividends from
continuing operations of AirTouch for the period indicated on a pro forma basis,
after giving effect to the merger of U S WEST Media Group, Inc.'s cellular and
PCS business into the Company (the "Merger") as though it had been effective on
January 1, 1997.
2 Ratio of earnings to combined fixed charges and preferred stock dividends from
continuing operations of AirTouch for the period indicated on a pro forma basis,
after giving effect to the Merger as though it had been effective on January 1,
1998.
</TABLE>
-7-
<PAGE>
GENERAL DESCRIPTION OF SECURITIES AND RISK FACTORS
The Company may offer under this Prospectus shares of Common Stock or
Preferred Stock, Depositary Shares, Debt Securities, Common Stock Warrants,
Preferred Stock Warrants, Third Party Warrants, Debt Warrants, Stock Purchase
Contracts, Stock Purchase Units or Other Units or any combination of the
foregoing, either individually or as units consisting of one or more Securities.
Each Financing Trust may offer Preferred Securities under this Prospectus. The
aggregate offering price of Securities offered by the Company or any Financing
Trust under this Prospectus will not exceed $2,500,000,000 (or the equivalent
thereof in other currencies). CERTAIN OF THE SECURITIES TO BE OFFERED HEREBY
THEMSELVES INVOLVE A HIGH DEGREE OF RISK. SUCH RISKS WILL BE SET FORTH IN THE
PROSPECTUS SUPPLEMENT RELATING TO SUCH SECURITY. IN ADDITION, CERTAIN RISK
FACTORS RELATING TO THE COMPANY'S BUSINESS ARE SET FORTH IN THE COMPANY'S ANNUAL
REPORT ON FORM 10-K FOR THE FISCAL YEAR ENDED DECEMBER 31, 1997, BEGINNING ON
PAGE 3 UNDER THE HEADING "INVESTMENT CONSIDERATIONS."
DESCRIPTION OF THE COMMON STOCK
GENERAL
Under the Company's Certificate of Incorporation (the "Certificate of
Incorporation"), the Company is authorized to issue up to 1.1 billion shares of
Common Stock. The Common Stock is not redeemable, does not have any conversion
rights and is not subject to call. Holders of shares of Common Stock have no
preemptive rights to maintain their percentage of ownership in future offerings
or sales of stock of the Company. Holders of shares of Common Stock have one
vote per share in all elections of directors and on all other matters submitted
to a vote of stockholders of the Company. The holders of Common Stock are
entitled to receive dividends, if any, as and when declared from time to time by
the Board of Directors of the Company out of funds legally available therefor.
Upon liquidation, dissolution or winding up of the affairs of the Company, the
holders of Common Stock will be entitled to participate equally and ratably, in
proportion to the number of shares held, in the net assets of the Company
available for distribution to holders of Common Stock. The shares of Common
Stock currently outstanding are fully paid and nonassessable.
CERTAIN CERTIFICATE OF INCORPORATION PROVISIONS
Certain provisions in the Company's Certificate of Incorporation and
Bylaws may have the effect of delaying, deferring or preventing a change in
control of the Company. These provisions require that the Company's Board of
Directors be divided into three classes that are elected for staggered
three-year terms; provide that stockholders may act only at annual or special
meetings and may not act by written consent; do not provide for cumulative
voting in the election of directors; authorize the directors of the Company to
determine the size of the Board of Directors; require a vote of 66-2/3% of the
shares outstanding for the amendment of any of the foregoing provisions; require
that stockholder nominations for directors be made to the Nominating Committee
of the Company prior to a meeting of stockholders or pursuant to timely notice;
provide that special meetings of stockholders may be called only by certain
officers of the Company or by the Board of Directors; and authorize the Board of
Directors to establish one or more series of Preferred Stock, without any
further stockholder approval, having rights, preferences, privileges and
limitations that could impede or discourage the acquisition of control of the
Company.
The Company's Certificate of Incorporation provides that outstanding
shares of the Company's stock are subject to redemption by the Company, by
action of the Board of Directors, if in the judgment of the Board of Directors
such action should be taken pursuant to applicable law to the extent necessary
to prevent the loss or secure the reinstatement of any license or franchise
issued to the Company or any subsidiary by any governmental agency to conduct
any portion of the business of the Company or any subsidiary, which license or
franchise is conditioned upon some or all of the holders of the Company's stock
possessing prescribed qualifications. The redemption price is to be equal to the
fair market value of such shares. The redemption price may be paid in cash,
redemption securities or any combination thereof.
-8-
<PAGE>
RIGHTS AGREEMENT
The Company's Board of Directors has adopted a stockholder rights plan
(the "Rights Plan") that provides for the distribution of rights ("Rights") to
holders of outstanding shares of Common Stock. Except as set forth below, each
Right, when exercisable, entitles the holder thereof to purchase from the
Company one one-hundredth of a share of Series A Preferred Stock at a price of
$80 per share, subject to adjustment. The Rights do not have voting rights.
Initially, the Rights are attached to all Common Stock certificates
representing shares then outstanding, and no separate Rights certificates will
be distributed. The Rights will not separate from the Common Stock and will not
be exercisable until the earlier of either (i) a public announcement that a
person or group of affiliated or associated persons has acquired, or obtained
the right to acquire, beneficial ownership of securities representing 10% or
more of the outstanding shares of Common Stock (an "Acquiring Party") or (ii) 10
days following the commencement of (or a public announcement of an intention to
make) a tender offer or exchange offer which would result in any person or group
of affiliated persons becoming an Acquiring Party. The Rights will expire on the
earliest of (x) September 19, 2004, (y) consummation of a merger transaction
with a person or group acquiring Common Stock pursuant to a Permitted Offer
(defined below), or (z) redemption by the Company, as described below.
In the event that a person has become an Acquiring Party, proper
provision will be made so that each holder of a Right (other than an Acquiring
Party) will thereafter have the right (the "Subscription Right") for a 60-day
period to receive, upon the exercise of the Right by the holder at the then
current exercise price, that number of shares of Common Stock of the Company (or
of Series A Preferred Stock or other common stock equivalents if all Common
Stock has been issued) which would have a market value at the time of such
transaction of two times the exercise price for each Right. This provision of
the Rights Plan does not apply, however, to a tender offer or exchange offer for
all outstanding shares of the Company's Common Stock at a price and on terms
determined by at least a majority of the disinterested members of the Board of
Directors to be in the best interests of the Company and its stockholders (a
"Permitted Offer").
If, after a public announcement has been made that a person has become
an Acquiring Party, either (i) the Company is involved in a merger or other
business combination (other than with a person who acquired shares pursuant to a
Permitted Offer) or (ii) 50% or more of the Company's assets are sold in one or
a series of transactions, proper provision will be made so that each holder of a
Right (other than an Acquiring Party) will thereafter have the right to receive,
upon the exercise of the Right by the holder at the then current exercise price,
that number of shares of Common Stock of the Company or of the acquiring company
(whichever remains as the surviving corporation under the terms of the merger or
consolidation) which would have a market value at the time of such transaction
of two times the exercise price for each Right.
The Board of Directors, at its option, may at any time after a person
becomes an Acquiring Party (but not after the acquisition by such person of 50%
or more of the outstanding Common Stock) exchange on behalf of the Company all
or part of the then outstanding and exercisable Rights for shares of Common
Stock (or Common Stock equivalents), at an exchange ratio of one share of Common
Stock or equivalent for each Right.
At any time prior to the earlier to occur of either (i) a person
becoming an Acquiring Party or (ii) the expiration of the Rights, the Company
may redeem the Rights in whole, but not in part, at a price of $0.01 per Right
(the "Redemption Price"). After a person becomes an Acquiring Party, the Company
may also redeem the Rights in whole, but not in part, at the Redemption Price
(x) if such redemption is incidental to a merger or other business combination
transaction or series of transactions involving the Company but not involving an
Acquiring Party or certain other related parties or (y) following an event
giving rise to, and the expiration of the 60-day exercise period for, the
Subscription Right if and for as long as any Acquiring Party owns less than 10%
of the Company's voting securities.
The Rights Plan may have the effect of delaying, deferring or
preventing a change in control of the Company without further action of the
stockholders and therefore could have a depressive effect on the price of the
Common Stock.
-9-
<PAGE>
LISTING
The Common Stock is listed on the New York Stock Exchange and the
Pacific Exchange under the symbol "ATI."
DESCRIPTION OF THE PREFERRED STOCK
Under the Certificate of Incorporation, the Board of Directors of the
Company may direct the issuance of up to 50 million shares of Preferred Stock in
one or more series and with rights, preferences, privileges and restrictions,
including dividend rights, voting rights, conversion rights, terms of redemption
and liquidation preferences, that may be fixed or designated by the Board of
Directors from time to time pursuant to a certificate of designation without any
further vote or action by the Company's stockholders. The issuance of Preferred
Stock may have the effect of delaying, deferring or preventing a change in
control of the Company. Preferred Stock, upon issuance against full payment of
the purchase price therefor, will be fully paid and nonassessable. The specific
terms of a particular series of Preferred Stock will be described in the
Prospectus Supplement relating to that series. The description of Preferred
Stock set forth below and the description of the terms of a particular series of
Preferred Stock set forth in the related Prospectus Supplement do not purport to
be complete and are qualified in their entirety by reference to the certificate
of designation relating to that series. The related Prospectus Supplement will
contain a description of certain United States Federal income tax consequences
relating to the purchase and ownership of the series of Preferred Stock
described in such Prospectus Supplement.
The rights, preferences, privileges and restrictions of the Preferred
Stock of each series will be fixed by the certificate of designation relating to
such series. A Prospectus Supplement relating to each series will specify the
terms of the Preferred Stock as follows:
(a) The maximum number of shares to constitute the series and
the distinctive designation thereof;
(b) The annual dividend rate, if any, on shares of the series,
whether such rate is fixed or variable or both, the date or dates from
which dividends will begin to accrue or accumulate, the conditions for
payment of dividends, and whether dividends will be cumulative;
(c) The price at and the terms and conditions on which the
shares of the series may be redeemed, including the time during which
shares of the series may be redeemed and any accumulated dividends
thereon that the holders of shares of the series shall be entitled to
receive upon the redemption thereof;
(d) The liquidation preference, if any, and any accumulated
dividends thereon, that the holders of shares of the series shall be
entitled to receive upon the liquidation, dissolution or winding up of
the affairs of the Company;
(e) Whether or not the shares of the series will be subject to
operation of a retirement or sinking fund, and, if so, the extent and
manner in which any such fund shall be applied to the purchase or
redemption of the shares of the series, and the terms and provisions
relating to the operation of such fund;
(f) The terms and conditions, if any, on which the shares of
the series shall be convertible into or exchangeable for shares of any
other class or classes of capital stock of the Company or a third party
or any series of any other class or classes, or of any other series of
the same class, including the price or prices or the rate or rates of
conversion or exchange and the method, if any, of adjusting the same;
(g) The voting rights, if any, on the shares of the series;
and
-10-
<PAGE>
(h) Any or all other preferences and relative, participating,
optional or other special rights or qualifications, limitations or
restrictions thereof.
As described under "Description of the Depositary Shares," the Company
may, at its option, elect to offer Depositary Shares evidenced by depositary
receipts ("Depositary Receipts"), each representing a fractional interest (to be
specified in the Prospectus Supplement relating to the particular series of the
Preferred Stock) in a share of the particular series of the Preferred Stock
issued and deposited with a Depositary (as defined below).
The Company's Certificate of Incorporation provides that outstanding
shares of the Company's stock are subject to redemption by the Company, by
action of the Board of Directors, if in the judgment of the Board of Directors
such action should be taken pursuant to applicable law to the extent necessary
to prevent the loss or secure the reinstatement of any license or franchise
issued to the Company or any subsidiary by any governmental agency to conduct
any portion of the business of the Company or any subsidiary, which license or
franchise is conditioned upon some or all of the holders of the Company's stock
possessing prescribed qualifications. The redemption price is to be equal to the
fair market value of such shares. The redemption price may be paid in cash,
redemption securities or any combination thereof.
DESCRIPTION OF THE DEPOSITARY SHARES
The description set forth below and in the related Prospectus
Supplement of certain provisions of the Deposit Agreement (as defined below) and
of the Depositary Shares and Depositary Receipts does not purport to be complete
and is subject to and qualified in its entirety by reference to the forms of
Deposit Agreement and Depositary Receipts relating to each series of the
Preferred Stock which have been or will be filed with the Commission in
connection with the offering of fractional interests in such series of the
Preferred Stock.
GENERAL
The Company may, at its option, elect to offer fractional interests in
shares of Preferred Stock, rather than shares of Preferred Stock. In the event
such option is exercised, the Company will provide for the issuance by a
Depositary to the public of receipts for Depositary Shares, each of which will
represent a fractional interest as set forth in the Prospectus Supplement
relating to a particular series of the Preferred Stock.
The shares of any series of the Preferred Stock underlying the
Depositary Shares will be deposited under a separate Deposit Agreement (the
"Deposit Agreement") between the Company and a bank or trust company selected by
the Company having its principal office in the United States and having a
combined capital and surplus of at least $100,000,000 (the "Depositary"). The
Prospectus Supplement relating to a series of Depositary Shares will set forth
the name and address of the Depositary. Subject to the terms of the Deposit
Agreement, each owner of a Depositary Share will be entitled, in proportion to
the applicable fractional interest in a share of the Preferred Stock underlying
such Depositary Shares, to all the rights and preferences of the Preferred Stock
underlying such Depositary Shares (including dividend, voting, redemption,
conversion and liquidation rights). The Depositary Shares relating to any series
of Preferred Stock will be evidenced by Depositary Receipts issued pursuant to
the related Deposit Agreement.
Pending the preparation of definitive Depositary Receipts, the
Depositary may, upon the written order of the Company, issue temporary
Depositary Receipts substantially identical to (and entitling the holders
thereof to all the rights pertaining to) the definitive Depositary Receipts but
not in definitive form. Definitive Depositary Receipts will be prepared
thereafter without unreasonable delay, and temporary Depositary Receipts will be
exchangeable for definitive Depositary Receipts at the Company's expense.
Upon surrender of Depositary Receipts at the office of the Depositary
and upon payment of the charges provided in the related Deposit Agreement and
subject to the terms thereof, a holder of Depositary Shares is entitled to have
the Depositary deliver to such holder the whole shares of Preferred Stock
underlying the Depositary Shares evidenced by the surrendered Depositary
Receipts.
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<PAGE>
DIVIDENDS AND OTHER DISTRIBUTIONS
The Depositary will distribute all cash dividends and other cash
distributions received in respect of the Preferred Stock to the record holders
of the Depositary Shares relating to such Preferred Stock in proportion to the
number of such Depositary Shares owned by such holders on the relevant record
date. The Depositary shall distribute only such amount, however, as can be
distributed without attributing to any holder of Depositary Shares a fraction of
one cent, and any balance not so distributed shall be added to and treated as
part of the next sum received by the Depositary for distribution to record
holders of Depositary Shares.
In the event of a distribution other than in cash, the Depositary will
distribute property received by it to the record holders of Depositary Shares
entitled thereto, unless the Depositary determines that it is not feasible to
make such distribution, in which case the Depositary may, with the approval of
the Company, sell such property and distribute the net proceeds from such sale
to such holders.
REDEMPTION OF DEPOSITARY SHARES
If a series of the Preferred Stock underlying the Depositary Shares is
subject to redemption, the Depositary Shares will be redeemed from the proceeds
received by the Depositary resulting from the redemption, in whole or in part,
of such series of the Preferred Stock held by the Depositary. The Depositary
shall mail notice of redemption not less than 30 and not more than 60 days prior
to the date fixed for redemption to the record holders of the Depositary Shares
to be so redeemed at their respective addresses appearing in the Depositary's
books. The redemption price per Depositary Share will be equal to the applicable
fraction of the redemption price per share payable with respect to such series
of the Preferred Stock. Whenever the Company redeems shares of Preferred Stock
held by the Depositary, the Depositary will redeem as of the same redemption
date the number of Depositary Shares relating to shares of Preferred Stock so
redeemed. If less than all of the Depositary Shares are to be redeemed, the
Depositary Shares to be redeemed will be selected by lot or pro rata as may be
determined by the Depositary.
After the date fixed for redemption, the Depositary Shares so called
for redemption will no longer be deemed to be outstanding and all rights of the
holders of the Depositary Shares will cease, except the right to receive the
payments or other property to which the holders of such Depositary Shares are
entitled upon such redemption upon surrender to the Depositary of the Depositary
Receipts evidencing such Depositary Shares.
VOTING THE PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of the
Preferred Stock underlying the Depositary Shares are entitled to vote, the
Depositary will mail the information contained in such notice of meeting to the
record holders of such Depositary Shares. Each record holder of such Depositary
Shares on the record date (which will be the same date as the record date for
the Preferred Stock) will be entitled to instruct the Depositary as to the
exercise of the voting rights pertaining to the number of shares of Preferred
Stock underlying such holder's Depositary Shares. The Depositary will endeavor,
insofar as practicable, to vote the number of shares of Preferred Stock
underlying such Depositary Shares in accordance with such instructions, and the
Company will agree to take all action which may be deemed necessary by the
Depositary in order to enable the Depositary to do so. The Depositary will
abstain from voting shares of Preferred Stock to the extent it does not receive
specific instructions from the holders of Depositary Shares relating to such
Preferred Stock.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of Depositary Receipt evidencing the Depositary Shares
relating to any series of Preferred Stock and any provision of the related
Deposit Agreement may at any time be amended by agreement between the Company
and the Depositary named therein. However, any amendment which materially and
adversely alters the rights of the existing holders of Depositary Shares
relating to any series of Preferred Stock will not be effective unless such
amendment has been approved by the record holders of at least a majority of such
Depositary Shares then outstanding. A Deposit Agreement may be terminated by the
Company or the Depositary named therein only if (i) all outstanding Depositary
Shares relating thereto have been redeemed or (ii) there has
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<PAGE>
been a final distribution in respect of the Preferred Stock underlying the
Depositary Shares relating thereto in connection with any liquidation,
dissolution or winding up of the Company and such distribution has been
distributed to the holders of the related Depositary Shares.
CHARGES OF DEPOSITARY
The Company will pay all transfer and other taxes and governmental
charges arising solely from the existence of the depositary arrangements. The
Company will pay charges of the Depositary in connection with the initial
deposit of the Preferred Stock and any redemption of the Preferred Stock.
Holders of Depositary Shares will pay transfer and other taxes and governmental
charges and such other charges as are expressly provided in the related Deposit
Agreement to be for their accounts.
MISCELLANEOUS
The Depositary will forward to the holders of Depositary Shares all
reports and communications from the Company which are delivered to the
Depositary and which the Company is required to furnish to the holders of the
underlying Preferred Stock.
Neither the Depositary nor the Company will be liable if it is
prevented or delayed by law or any circumstance beyond its control from
performing its obligations under the Deposit Agreement. The obligations of the
Company and the Depositary under the Deposit Agreement will be limited to
performance in good faith of their duties thereunder and they will not be
obligated to prosecute or defend any legal proceeding in respect of any
Depositary Shares or underlying Preferred Stock unless satisfactory indemnity is
furnished. They may rely upon written advice of counsel or accountants, on
information provided by persons presenting Preferred Stock for deposit, holders
of Depositary Shares or other persons believed to be competent and on documents
believed to be genuine.
RESIGNATION AND REMOVAL OF DEPOSITARY
The Depositary under a Deposit Agreement may resign at any time by
delivering to the Company notice of its election to do so, and the Company may
at any time with notice remove such Depositary, any such resignation or removal
to take effect upon the appointment of a successor Depositary and its acceptance
of such appointment. Such successor Depositary must be appointed within 90 days
after delivery of the notice of resignation or removal and must be a bank or
trust company having its principal office in the United States and having a
combined capital and surplus of at least $100,000,000.
DESCRIPTION OF THE DEBT SECURITIES
GENERAL
The Company may offer under this Prospectus Senior Debt Securities (as
defined below) or Subordinated Debt Securities (as defined below) or any
combination of the foregoing. The Debt Securities will represent unsecured
general obligations of the Company, and will either (i) rank prior to all
subordinated indebtedness of the Company and PARI PASSU with all other unsecured
indebtedness of the Company (the "Senior Debt Securities") or (ii) be
subordinate in right of payment to certain other debt obligations of the Company
(the "Subordinated Debt Securities"). The Senior Debt Securities and the
Subordinated Debt Securities may be issued under indentures substantially in the
forms filed as exhibits to the Registration Statement. In this Prospectus, the
indenture relating to Senior Debt Securities is referred to as the "Senior
Indenture," the indenture relating to Subordinated Debt Securities is referred
to as the "Subordinated Indenture," and the Senior Indenture and the
Subordinated Indenture are collectively referred to as "Indentures." Neither of
the Indentures will limit the amount of Debt Securities that may be issued
thereunder, and each Indenture will provide that Debt Securities may be issued
thereunder up to an aggregate principal amount authorized from time to time by
the Company and may be payable in any currency or currency unit designated by
the Company or in amounts determined by reference to an index. The following
summaries of certain provisions in the Indentures pursuant to which Debt
Securities are issued and of the Debt Securities, as the case may be, do not
purport to be complete. Such
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<PAGE>
summaries make use of certain terms defined in the Indentures and are qualified
in their entirety by reference to the applicable form of Indenture or Debt
Security, respectively, filed as an exhibit to the Registration Statement.
Reference is made to the applicable Prospectus Supplement for any
series of Debt Securities for the following terms: (i) the designation of such
series of Debt Securities; (ii) the aggregate principal amount of such series of
Debt Securities; (iii) the stated maturity or maturities for payment of
principal of such series of Debt Securities and any sinking fund or analogous
provisions; (iv) the rate or rates at which such series of Debt Securities shall
bear interest or the method of calculating such rate or rates of interest and
the interest payment dates for such series of Debt Securities; (v) the
currencies, currency unit or index in or according to which principal of and
interest and any premium on such series of Debt Securities shall be payable (if
other than U.S. Dollars); (vi) the redemption date or dates, if any, and the
redemption price or prices and other applicable redemption provisions for such
series of Debt Securities; (vii) whether such series of Debt Securities shall be
issued as one or more global debt securities ("Global Debt Securities"), and, if
so, the identity of the depositary (the "Debt Depositary") for such Global Debt
Security or Debt Securities; (viii) if not issued as one or more Global Debt
Securities, the denominations in which such series of Debt Securities shall be
issuable (if other than denominations of $1,000 and any integral multiple
thereof); (ix) the date from which interest on such series of Debt Securities
shall accrue; (x) the basis upon which interest on such series of Debt
Securities shall be computed (if other than on the basis of a 360-day year of
twelve 30-day months); (xi) if other than the principal amount thereof, the
portion of the principal amount of such series of Debt Securities which shall be
payable upon declaration of acceleration of the maturity thereof pursuant to the
Indenture; (xii) if other than the trustee (the "Trustee"), the person or
persons who shall be registrar for such series of Debt Securities; (xiii) the
Record Date; (xiv) the identity of the Trustee; (xv) any covenants of the
Company with respect to a series of Debt Securities; (xvi) whether the Debt
Securities are convertible into or exchangeable for Securities, or other
securities of the Company or Third Party Securities (as herein defined), and the
terms of such conversion or exchange; (xvii) whether the Debt Securities will be
issued at an original issue discount and a description of such discount; and
(xviii) any other term or provision relating to such series of Debt Securities
which is not inconsistent with the provisions of the Indenture.
Except as described in this Prospectus or the accompanying Prospectus
Supplement, the Indentures do not contain any covenants specifically designed to
protect holders of the Debt Securities against a reduction in the
creditworthiness of the Company in the event of a highly leveraged transaction
or to prohibit other transactions which may adversely affect holders of the Debt
Securities.
In the event Debt Securities of any series are to be offered that are
convertible into or exchangeable for securities of third parties ("Third Party
Securities"), the Prospectus Supplement will identify the Third Party
Securities, the issuer of such Third Party Securities (the "Third Party
Company"), all documents filed by the Third Party Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act since the end of such Third Party
Company's last completed fiscal year for which a Form 10-K annual report has
been filed and the document or documents filed under the Securities Act or the
Exchange Act which contain a description of the Third Party Securities being
sold or, if no such document or documents exist, the Prospectus Supplement will
include a description of the Third Party Securities being sold. Third Party
Securities will only be securities of Third Party Companies that are eligible to
use Form S-3 (or any successor form) for primary offerings under the rules and
regulations of the Commission or securities that are registered under Section 12
of the Exchange Act. To the extent the Securities Act requires registration of
the Third Party Securities by the Third Party Company, such as where the Third
Party Company is an affiliate of the Company, in connection with the issuance,
conversion and/or exchange of such Debt Securities, the Company will cause the
Third Party Company to file a third party registration statement ("Third Party
Registration Statement") under the Securities Act. Where the conversion and/or
exchange of the Debt Securities would require an effective Third Party
Registration Statement at the time of such exchange or conversion, the exchange
or conversion will be subject to the effectiveness of such registration
statement. For example, Debt Securities that are convertible into or
exchangeable for Third Party Securities may be convertible or exchangeable by
their terms at the election of the Company or mandatorily at the expiration of a
specified period or at other times under specified circumstances ("Mandatory
Debt Securities") or may be convertible or exchangeable by their terms at the
election of the Debt Holder at any time during a specified period or periods or
on a specified date or dates ("Voluntary Debt Securities"). In the case of both
Mandatory Debt Securities and Voluntary Debt Securities, if the Company is an
affiliate of the Third Party
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Company, the Third Party Securities into which they may be converted or for
which they may be exchanged will be the subject of a registration statement
filed under the Securities Act by the Third Party Company prior to any offer of
such Mandatory or Voluntary Debt Securities, and a Third Party Registration
Statement with respect to such Third Party Securities will have been declared
effective prior to any sale of such Mandatory or Voluntary Debt securities,
except in the case of Voluntary Debt Securities that are not immediately
exercisable or convertible, in which case such a Third Party Registration
Statement would have to be effective, absent an exemption, when the Debt Holder
elects to convert such Voluntary Debt Securities into or exchange them for Third
Party Securities.
EVENTS OF DEFAULT
Each Indenture defines an "Event of Default" with respect to a
particular series of the Debt Securities as being any one of the following
events: (1) default in the payment of interest on any Debt Security of such
series and the continuance of such default for a period of 30 days, or, in the
case of the Subordinated Debt Indenture, for a period of 90 days, (2) default in
the payment of all or any part of the principal of or any premium on any Debt
Security of such series when due whether at maturity, by proceedings for
redemption, by declaration or otherwise, (3) default in the satisfaction of any
sinking fund payment obligation relating to such series of Debt Securities, when
due and payable, (4) failure on the part of the Company to observe or perform in
any material respect any other agreements or covenants contained in the Debt
Securities of such series, the Indenture or any supplemental indenture relating
thereto, specifically contained for the benefit of the Holders of the Debt
Securities of such series, and continuance of the default for a period of 90
days after notice has been given to the Company by the Trustee, or to the
Company and the Trustee by the Holders of not less than 25% in principal amount
of the Debt Securities of such series and all other series so benefited (all
series voting as one class) at the time outstanding under the Indenture, or (5)
certain events of bankruptcy, insolvency or reorganization involving the
Company. An Event of Default with respect to a series of Debt Securities will
not necessarily constitute an Event of Default with respect to any other series
of Debt Securities. Except as may be described in the accompanying Prospectus
Supplement, the Indentures do not contain any Events of Default other than those
referred to herein.
If an Event of Default occurs with respect to the Debt Securities of
one or more series and is continuing, the Trustee, by notice to the Company, or
the Holders of not less than 25% in principal amount of the outstanding Debt
Securities of each such series, by notice in writing to the Company and to the
Trustee, may declare the principal amount (or, if the Debt Securities of any
such series are original issue discount Debt Securities, such portion of the
principal amount as may be specified in the terms of such series) of all the
Debt Securities of such series, together with any accrued interest, to be
immediately due and payable.
The foregoing provisions, however, are subject to the condition that
if, at any time after the principal amount of the Debt Securities of any one or
more series (or of all the Debt Securities, as the case may be) shall have been
so declared due and payable, and before any judgment or decree for the payment
of moneys due shall have been obtained or entered as hereinafter provided, the
Company shall pay or shall deposit with the Trustee a sum sufficient to pay any
matured installments of interest upon all the Debt Securities of such series (or
upon all the Debt Securities, as the case may be) and the principal of any and
all Debt Securities of such series (or of any and all the Debt Securities, as
the case may be) which shall have become due otherwise than by declaration (with
interest on overdue installments of interest to the extent permitted by law and
on such principal at the rate or rates of interest borne by, or prescribed
therefor in, the Debt Securities of such series to the date of such payment or
deposit) and any other amounts then payable to the Trustee under the Indenture,
and any and all defaults under the Indenture with respect to Debt Securities of
such series (or all Debt Securities, as the case may be), other than the
nonpayment of principal of and any accrued interest on Debt Securities of such
series (or any Debt Securities, as the case may be) which shall have become due
by declaration shall have been cured, remedied or waived as provided in the
Indenture, then and in every such case the Holders of a majority in principal
amount of the Debt Securities of such series (or of all the Debt Securities, as
the case may be) then outstanding (all series voting as one class if more than
one series are so entitled), by written notice to the Company and to the
Trustee, may rescind and annul such declaration and its consequences; but no
such rescission and annulment shall extend to or affect any subsequent default,
or impair any right consequent thereon.
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If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy by proceeding at law or in equity to collect the payment of
principal or any premium or interest on the Debt Securities of the series to
which the default relates or to enforce the performance of any provision of such
series of Debt Securities or the Indenture.
The Holders of a majority in principal amount of the outstanding Debt
Securities of any series may waive any past Event of Default with respect of
such series and its consequences, except a continuing default in the payment of
the principal of or any premium or interest on such Debt Securities or in the
satisfaction of any sinking fund obligation relating to such series of Debt
Securities or in respect of a covenant or provision of the Indenture which
cannot be modified or amended without the consent of the Holder of each Debt
Security so affected.
MODIFICATIONS OF THE INDENTURE
Each of the Indentures provides that the Company and the Trustee may
enter into a supplemental indenture to amend the Indenture or the Debt
Securities without the consent of any Debt Holder: (1) to cure any ambiguity,
defect or inconsistency; (2) to permit a successor to assume the Company's
obligations under the Indenture as permitted by the Indenture; (3) to eliminate
or change any provision of the Indenture if such elimination or change does not
adversely affect the rights of any outstanding Debt Holder; (4) to provide for
the issuance and establish the terms and conditions of Debt 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 Debt 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; or (6) to appoint, at
the request of the Trustee, a successor Trustee for a particular series of Debt
Securities to act as such pursuant to the provisions of the Indenture.
Each of the Indentures and the rights and obligations of the Company
and of the Holders of the Debt Securities may be modified or amended at any time
with the consent of the Holders of not less than a majority in aggregate
principal amount of all series of the Debt Securities at the time outstanding
under such Indenture and affected by such modification or amendment (voting as
one class); provided, however, that without the consent of the holder of the
Debt Securities affected, no such modification or amendment shall, among other
things, change the fixed maturity or redemption date thereof, reduce the rate of
interest thereon or alter the method of determining such rate of interest,
extend the time of payment of interest, reduce the principal amount thereof,
reduce any premium payable upon the redemption thereof, change the currency in
which any Debt Securities or the interest thereon are payable or impair the
right to institute suit for the enforcement of any such payment, reduce the
percentage of the Holders of such Debt Securities whose consent is required for
any such modification or amendment or change the time of payment, reduce the
amount of any minimum sinking fund payment, or modify any provisions of the
Indenture relating to the amendment thereof or the creation of a supplemental
indenture (unless the change increases the rights of the Holders).
DEFEASANCE AND DISCHARGE
All liability of the Company in respect to any outstanding Debt
Securities shall cease, terminate and be completely discharged if the Company
shall (a) deposit with the Trustee, in trust, at or before maturity, lawful
money or direct obligations of the United States of America (or, in the case of
Debt Securities denominated in a currency other than U.S. Dollars, of the
government that issued such currency), or obligations the principal of and
interest on which are guaranteed by the United States of America (or, in the
case of Debt Securities denominated in a currency other than U.S. Dollars,
guaranteed by the government that issued such currency), in such amounts and
maturing at such times that the proceeds of such obligations to be received upon
the respective maturities and interest payment dates will provide funds
sufficient to pay the principal of and interest and any premium to maturity or
to the redemption date, as the case may be, with respect to such Debt
Securities, and (b) deliver to the Trustee an opinion of counsel to the effect
that the Holders of such Debt Securities will not recognize income, gain or loss
for federal income tax purposes as a result of such discharge. All obligations
of the Company to comply with certain covenants applicable to any outstanding
Debt Securities shall cease if the Company shall deposit with the Trustee, in
trust, at or before maturity, lawful money or direct obligations of the
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United States of America (or, in the case of Debt Securities denominated in a
currency other than U.S. Dollars, of the government that issued such currency),
or obligations the principal of and interest on which are guaranteed by the
United States of America (or, in the case of Debt Securities denominated in a
currency other than U.S. Dollars, by the government that issued such currency),
in such amounts and maturing at such times that the proceeds of such obligations
to be received upon the respective maturities and interest payment dates will
provide funds sufficient to pay the principal of and interest and any premium to
maturity or to the redemption date, as the case may be, with respect to such
Debt Securities.
CONCERNING THE TRUSTEE
The Trustee for the Senior Debt Securities and the Trustee for the
Subordinated Debt Securities will be identified in the relevant Prospectus
Supplement. In certain instances, the Company or the Holders of a majority of
the then outstanding principal amount of the Debt Securities issued under an
Indenture may remove the Trustee and appoint a successor Trustee. The Trustee
may become the owner or pledgee of any of the Debt Securities with the same
rights it would have if it were not the Trustee. The Trustee and any successor
trustee must be a corporation organized and doing business as a commercial bank
under the laws of the United States or of any state thereof or of the District
of Columbia, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least $100,000,000 and subject to
examination by federal or state or District of Columbia authority. From time to
time and subject to applicable law relating to conflicts of interest, the
Trustee may also serve as Trustee under other indentures relating to Debt
Securities issued by the Company or affiliated companies and may engage in
commercial transactions with the Company and affiliated companies.
SENIOR DEBT SECURITIES
The Senior Debt Securities will be unsecured and will rank equally with
all other unsecured and unsubordinated indebtedness for borrowed money of the
Company.
The following covenants will apply to Senior Debt Securities issued
under the Senior Indenture unless otherwise provided in the Prospectus
Supplement for such Senior Debt Securities:
RESTRICTIONS ON INDEBTEDNESS OF RESTRICTED SUBSIDIARIES
Under the terms of the Senior Indenture, the Company may not permit any
Restricted Subsidiary to create, assume, incur or guarantee any Indebtedness
other than the following: (i) Indebtedness of a Restricted Subsidiary incurred
after the date of the Senior Indenture, provided that immediately after the
incurrence of such Indebtedness the aggregate amount of Indebtedness incurred
and outstanding pursuant to this exception (i) and not otherwise permitted
pursuant to the Senior Indenture does not exceed 5% of Consolidated Net Tangible
Assets; (ii) Indebtedness of any entity (other than a PCS Entity) existing at
the time such entity becomes a Restricted Subsidiary, such entity is merged into
or consolidated with the Company or a Restricted Subsidiary, or the Company or a
Restricted Subsidiary acquires all or substantially all of the assets of such
entity, provided that immediately after the incurrence of such Indebtedness the
aggregate amount of Indebtedness incurred and outstanding pursuant to this
exception (ii) and not otherwise permitted pursuant to the Senior Indenture does
not exceed 5% of Consolidated Net Tangible Assets; (iii) Indebtedness pursuant
to capital leases (including any Japanese leveraged lease or similar
cross-border lease transaction), provided that immediately after the incurrence
of such Indebtedness, the aggregate amount of Indebtedness incurred and
outstanding pursuant to this exception (iii) and not otherwise permitted
pursuant to the Senior Indenture does not exceed 10% of Consolidated Net
Tangible Assets; (iv) Indebtedness owed to the Company or any Subsidiary of the
Company or to any partner or stockholder having at least a 10% ownership
interest in such Restricted Subsidiary; (v) Indebtedness of any Restricted
Subsidiary existing on the date of the Senior Indenture or owing pursuant to the
Zero Coupon Convertible Subordinated Notes due 1999 originally issued by
Cellular Communications, Inc.; (vi) Indebtedness of any PCS Entity existing at
the time such PCS Entity becomes a Restricted Subsidiary, such PCS Entity is
merged into or consolidated with the Company or a Restricted Subsidiary, or the
Company or a Restricted Subsidiary acquires all or substantially all of the
assets of such PCS Entity; or (vii) Indebtedness of any Restricted Subsidiary
constituting any replacement, extension or renewal of any Indebtedness incurred
pursuant to exceptions (i) through (vi) above (to the extent such Indebtedness
is not increased).
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RESTRICTIONS ON LIENS
Under the terms of the Senior Indenture, the Company will not, and will
not permit any Restricted Subsidiary to, incur any Indebtedness secured by a
Lien on any shares of stock, indebtedness or other obligations of a Subsidiary
or any Principal Property of the Company or a Restricted Subsidiary (such stock,
indebtedness and Principal Property being collectively referred to as
"Property"), unless the Company secures or causes such Restricted Subsidiary to
secure the outstanding Senior Debt Securities (together with, if the Company
shall so determine, any other Indebtedness of the Company or such Restricted
Subsidiary then existing or thereafter created ranking equally with the Senior
Debt Securities, including guarantees of indebtedness of others) equally and
ratably with (or prior to) such Indebtedness, so long as such Indebtedness on
Property existing at the time of acquisition thereof or to secure the payment of
all or any part of the purchase price thereof or to secure any Indebtedness
incurred prior to, at the time of or within 180 days after the acquisition of
such Property for the purpose of financing all or any part of purchase price
thereof; (ii) Liens securing Indebtedness owing by a Restricted Subsidiary to
the Company or any Subsidiary of the Company; (iii) Liens on Property of any
entity, or on the stock, indebtedness or other obligations of such entity,
existing at the time (a) such entity becomes a Restricted Subsidiary, (b) such
entity is merged into or consolidated with the Company or a Restricted
Subsidiary or (c) the Company or a Restricted Subsidiary acquires all or
substantially all of the assets of such entity; provided that no such Lien
extends to any other Property and provided that such Indebtedness is otherwise
permitted pursuant to the Senior Indenture; (iv) Liens on Property to secure any
Indebtedness incurred to provide funds for all or any part of the cost of
development of or improvements to such Property; (v) any Lien on Property to
secure Indebtedness or other indebtedness incurred in connection with any
financing undertaken in accordance with Section 103 of the Internal Revenue Code
of 1986, as amended, or any replacement law; (vi) Liens on the property of the
Company or any of its Subsidiaries securing (a) nondelinquent obligations of a
like nature; in each case, incurred in the ordinary course of business; (vii)
Liens securing obligations in respect of capital leases on assets subject to
such leases (including any Japanese leveraged lease or similar cross-border
lease transaction), provided that such Indebtedness is otherwise permitted
pursuant to the Senior Indenture; and provided further that (a) any such Lien
attaches to such property within 180 days after the acquisition thereof and (b)
such Lien attaches solely to the property so acquired; (viii) Liens arising
solely by virtue of any statutory or common law provision relating to banker's
liens, rights of set-off or similar rights and remedies as to deposit account o
r other funds provided that such deposit account is not a dedicated cash
collateral account and is not subject to restrictions against access by the
Company in excess of those set forth by regulations promulgated by the Federal
Reserve Board and such deposit account is not intended by the Company or any
Subsidiary to provide collateral to the depository institution; (ix) Liens on
personal property, other than shares of stock or Indebtedness of any Restricted
Subsidiary, to secure loans maturing not more than one year from the date of the
creation thereof; (x) Liens on the stock indebtedness or other obligations of
any International Subsidiary, provided that such Liens do not secure
Indebtedness of the type described in clause (v) of the definition of
Indebtedness; and (xi) any renewal, extension, or replacement (in whole or in
part) of any Lien permitted pursuant to exceptions (i) through (x) above or of
any Indebtedness secured thereby, provided that such extension, renewal or
replacement Lien shall be limited to all or any part of the same Property that
secured the Lien extended, renewed or replaced (plus improvements on such
Property). Notwithstanding the foregoing restrictions, the Company may, and may
permit any Restricted Subsidiary to, issue, assume or guarantee Indebtedness
secured by Liens on Property which are not otherwise excepted without equally
and ratably securing the Senior Debt Securities, provided that the sum of all
such Indebtedness then being issued, assumed or guaranteed does not exceed 10%
of the Consolidated Net Tangible Assets prior to the time such Indebtedness was
issued, assumed or guaranteed.
RESTRICTIONS ON SALE AND LEASEBACK TRANSACTIONS
Under the terms of the Senior Indenture, the Company will not, and will
not permit any Restricted Subsidiary to, enter into any arrangement (except for
temporary leases for a term of not more than three years, or except for sale or
transfer and leaseback transactions involving the acquisition or improvement of
Principal Properties provided that the amount of consideration received at the
time of sale or transfer by the Company or such Restricted Subsidiary for the
property so sold or transferred shall be applied as described in subsection (ii)
below) with any bank, insurance company or other lender or investor, or to which
any such lender or investor is party, providing for the leasing to the Company
or any Restricted Subsidiary of any Principal Property which has
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been or is to be sold or transferred by the Company or any Restricted Subsidiary
to such lender or investor or to any Person to whom funds have been or are to be
advanced by such lender or investor on the security of such property unless
either (i) the Company or any Restricted Subsidiary could create Indebtedness
secured by a Lien under the provisions related to restrictions on Liens on the
property to be leased without equally and ratably securing the Senior Debt
Securities, or (ii) the Company within the 12 months preceding such sale or
transfer may have been made by the Company or by a Restricted Subsidiary, has
applied or applies an amount equal to the greater of (a) the net proceeds of the
sale of the property leased pursuant to such arrangement or (b) the fair value
of the property so leased at the time of entering into such arrangement (1) to
the voluntary retirement of Indebtedness of the Company or of a Restricted
Subsidiary or Indebtedness of a Subsidiary guaranteed by the Company which debt
matures by its terms more than one year after the date on which it was
originally incurred (collectively herein called "funded debt"); provided that
there shall be credited against the amount required by subsection (ii) to be
applied to the retirement of funded debt an amount equal to (x) the principal
amount of any Senior Debt Securities delivered within the 12 months preceding
such sale or transfer or the 12 months following such sale or transfer to the
Trustee for voluntary retirement and cancellation, plus (y) the principal amount
of funded debt, other than Senior Debt Securities, voluntarily retired by the
Company within 12 months before or after such sale; or (2) to the acquisition,
development or improvement of a Principal Property or Principal Properties.
CORPORATE EXISTENCE OF THE COMPANY; CONSOLIDATION, MERGER, SALE OR TRANSFER
Under the Senior Indenture, so long as any of the Senior Debt
Securities are outstanding, the Company will maintain its corporate existence,
will not dissolve, sell or otherwise dispose of all or substantially all of its
assets and will not consolidate with or merge into another entity or permit one
or more other entities to consolidate with or merge into it; provided that the
Company may, without violating the Senior Indenture, consolidate with or merge
into another entity or permit one or more other entities to consolidate with or
merge into it, or sell or otherwise transfer to another entity all or
substantially all of its assets as an entirety and thereafter dissolve, if the
surviving, resulting or transferee entity, as the case may be, (i) shall be
incorporated and existing under the laws of one of the States of the United
States of America, (ii) assumes, if such entity is not the Company, all of the
obligations of the Company under the Senior Indenture and (iii) is not, after
such transaction, otherwise in default under any provision of the Senior
Indenture.
DEFINITIONS
The following terms have the meanings set forth below when used in this
Prospectus Supplement.
"Attributable Debt" means, when used in connection with a sale and
leaseback transaction, at any date as of which the amount thereof is to be
determined, the lesser of (i) the fair value of the property subject to the
transaction (as determined by the Board of Directors) or (ii) the present value
of rent for the remaining term of the lease. Rent shall be discounted to present
value at the actual percentage rate inherent in such lease as determined in good
faith by the Company, compounded semiannually. Rent is the lesser of (1) rent
for the remaining term of the lease assuming it is not terminated or (2) rent
from the date of determination until the first possible termination date plus
the termination payment then due, if any. The remaining term of a lease includes
any period for which the lease has been extended. Rent does not include (a)
amounts for maintenance, repairs, insurance, taxes, assessments and similar
charges or (b) contingent rent, such as that based on sales. Rent may be reduced
by rent that any sublessee must pay from the date of determination for all or
part of the same property.
"Consolidated Net Tangible Assets" means the consolidated total assets
of the Company and its subsidiaries as reflected in the Company's most recent
balance sheet prepared in accordance with generally accepted accounting
principles, less (i) current liabilities (excluding current maturities of
long-term debt and obligations under capital leases) and (ii) goodwill,
trademarks, patents, and minority interests of others.
"Domestic Cellular Joint Venture" means the partnership or other joint
venture to be formed by the Company and U S WEST, Inc., or their Subsidiaries,
pursuant to the Amended and Restated Joint Venture
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Organization Agreement dated September 30, 1995, as amended from time to time,
for the purposes of owning and operating certain of the parties' assets used in
the provision of Domestic Cellular Service.
"Domestic Cellular Service" means the provision of wireless telephony
service on the 800 MHz bands in the United States.
"Indebtedness" means ,with respect to any Person, the aggregate amount
of, without duplication: (i) all obligations for borrowed money; (ii) all
obligations evidenced by debentures, notes or other similar instruments; (iii)
all obligations to pay the deferred purchase price of property or services,
except trade accounts payable, accrued commissions and other similar accrued
current liabilities in respect of such obligations, in any case not overdue,
arising in the ordinary course of business; (iv) all obligations of such Person
under any lease (or other agreement conveying the right to use) of property by a
Person as lessee or guarantor which would, in conformity with GAAP, be required
to be accounted for as a capital lease on the balance sheet of that Person; (v)
all obligations or liabilities of others secured by a Lien on any asset owned by
such Person or Persons whether or not such obligation or liability is assumed
(the amount of such Indebtedness being deemed to be the lesser of the value of
such property or assets or the amount of the Indebtedness so secured); (vi) all
reimbursement obligations of such Person or Persons in respect of any letters of
credit or bankers' acceptances related to Indebtedness of such Person or another
Person; (vii) all Attributable Debt; (viii) Redeemable Stock and (ix) all
guarantees of Indebtedness of other Persons. The term "Indebtedness" shall not
include any obligations of a Person under a Swap Contract.
"International Subsidiary" means any subsidiary of the Company not
engaged in the provision of Domestic Cellular Service and the principal business
of which is conducted, or the principal assets of which are located, outside of
the United States.
"Lien" means any lien, mortgage, pledge, security interest, charge, or
encumbrance of any kind (including any conditional sale or other title retention
agreement or any lease in the nature thereof) and any agreement to give or
refrain from giving any lien, mortgage, pledge, security interest, charge, or
other encumbrance of any kind.
"PCS Entity" means any Person primarily engaged in the business of
personal communications services, defined as radio communications operating in
the "broadband PCS" bands, namely the 1850-1890 MHz, 1930- 1970 MHz, 2130-2150
MHz, and 2180-2200 MHz bands, including Persons who primarily provide support
services or equipment for personal communications services.
"Principal Property" means land, land improvements, buildings and
associated equipment or property owned or leased pursuant to a capital lease and
used by the Company or a Restricted Subsidiary primarily for providing Domestic
Cellular Service and located within the United States of America and having a
book value in excess of 2% of Consolidated Net Tangible Assets, as of the date
of such determination, but not including any such property financed through the
issuance of tax exempt governmental obligations, or any such property that has
been determined by resolution of the Board of Directors of the Company not to be
of material importance to the respective businesses conducted by the Company and
its Restricted Subsidiaries.
"Redeemable Stock" means, with respect to any Person, any stock that by
its terms matures or is mandatorily redeemable pursuant to a sinking fund
obligation or otherwise.
"Restricted Subsidiary" means (i) any Subsidiary of the Company which
(a) has substantially all of its property in the United States, (b) is primarily
engaged in the business of providing Domestic Cellular Service and (c) is in
existence on the date of the Senior Indenture, or is designated by the Board of
Directors of the Company after such date as a Restricted Subsidiary, and (ii)
the Domestic Cellular Joint Venture and its Subsidiaries.
"Subsidiary" of any specified Person means (i) a corporation, at least
a majority of the outstanding securities of which having ordinary voting power
(other than securities having such power only by reason of the happening of a
contingency) is at such time owned by such Person or by one or more Subsidiaries
of such
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Person; or (ii) a partnership, joint venture, association, or other business
entity, if in accordance with generally accepted accounting principles such
entity is consolidated with such Person for financial statement purposes.
"Swap Contract" means any agreement relating to any transaction that is
a rate swap, basis swap, forward rate transaction, commodity option, equity or
equity index swap or option, bond, note or bill option, interest rate option,
forward transaction, cap, collar or floor transaction, currency swap,
cross-currency rate swap, swaption, currency option or any other similar
transaction (including any option to enter into any of the foregoing) or any
combination of the foregoing, and, unless the context otherwise clearly
requires, any master agreement relating to or governing any or all of the
foregoing, provided that such Swap Contract was entered into for the purpose of
managing risks associated with liabilities, commitments or assets of the Company
or any Subsidiary and not for speculation.
SUBORDINATED DEBT SECURITIES
Subordinated Debt Securities may be issued from time to time in one or
more series under the Subordinated Debt Indenture. The Subordinated Debt
Securities will be subordinated and junior in right of payment to certain other
indebtedness of the Company to the extent set forth in the applicable Prospectus
Supplement.
In the event the Subordinated Debt Securities are issued to a Financing
Trust or the Financing Trustee of such trust in connection with the issuance of
Trust Securities by such Financing Trust, such Subordinated Debt Securities
subsequently may be distributed pro rata to the Holders of such Trust Securities
in connection with the dissolution of such Financing Trust upon the occurrence
of certain events described in the Prospectus Supplement relating to such Trust
Securities. Only one series of Subordinated Debt Securities will be issued to a
Financing Trust or the Financing Trustee of such trust in connection with the
issuance of Trust Securities by such Financing Trust.
Unless otherwise provided in the applicable Prospectus Supplement, if
Subordinated Debt Securities are issued to a Financing Trust or the Financing
Trustee of such trust in connection with the issuance of Trust Securities by
such Financing Trust and (i) there shall have occurred an event that would
constitute an Event of Default with respect to such Subordinated Debt
Securities; (ii) the Company shall be in default with respect to its payment of
any obligations under the related Preferred Securities Guarantee or Common
Securities Guarantee; or (iii) the Company shall have given notice of its
election to defer payments of interest on such Subordinated Debt Securities by
extending the interest payment period as provided in the Indenture and such
period, or any extension thereof, shall be continuing, then (a) the Company
shall not declare or pay any dividend on, make any distributions with respect
to, or redeem, purchase or make a liquidation payment with respect to, any of
its capital stock, and (b) the Company shall not make any payment of interest,
principal or premium, if any, on or repay, repurchase or redeem any Debt
Securities which rank junior to or PARI PASSU with such Subordinated Debt
Securities; PROVIDED that the foregoing restriction does not apply to any stock
dividends paid by the Company where the dividend stock is of the same class as
that of the stock held by the holders receiving the dividend.
DESCRIPTION OF THE WARRANTS TO PURCHASE COMMON STOCK OR PREFERRED STOCK
The following statements with respect to the Common Stock Warrants and
Preferred Stock Warrants (collectively, the "Stock Warrants") are summaries of,
and subject to, the detailed provisions of a warrant agreement ("Stock Warrant
Agreement") to be entered into by the Company and a warrant agent to be selected
at the time of issue (the "Stock Warrant Agent"), which Stock Warrant Agreement
may include or incorporate by reference standard warrant provisions
substantially in the form of the Standard Stock Warrant Provisions (the "Stock
Warrant Provisions") filed as an exhibit to the Registration Statement or other
provisions set forth in the Stock Warrant Agreement which will be filed as an
exhibit to or incorporated by reference in the Registration Statement.
GENERAL
The Stock Warrants may be issued under the Stock Warrant Agreement
independently or together with any other Securities offered by any Prospectus
Supplement and may be attached to or separate from such other
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Securities. If Stock Warrants are offered, the related Prospectus Supplement
will describe the terms of the Stock Warrants, including without limitation the
following: (i) the offering price, if any; (ii) the designation and terms of the
Common Stock or Preferred Stock purchasable upon exercise of the Stock Warrants;
(iii) the number of shares of Common Stock or Preferred Stock purchasable upon
exercise of one Stock Warrant and the initial price at which such shares may be
purchased upon exercise; (iv) the date on which the right to exercise the Stock
Warrants shall commence, the date on which such right shall expire and whether
the Company has the ability to extend the exercise period; (v) federal income
tax consequences; (vi) call provisions, if any; (vii) the currency, currencies
or currency units in which the offering price, if any, and exercise price are
payable; (viii) the antidilution provisions of the Stock Warrants; and (ix) any
other terms of the Stock Warrants. The shares of Common Stock or Preferred Stock
issuable upon exercise of the Stock Warrants will, when issued in accordance
with the Stock Warrant Agreement, be fully paid and nonassessable. If the
Company maintains the ability to reduce the exercise price of any Stock Warrant
and such right is triggered, the Company will comply with the federal securities
laws, including Rule 13e-4 under the Exchange Act, to the extent applicable.
EXERCISE OF STOCK WARRANTS
Stock Warrants may be exercised in the manner set forth in the
applicable Prospectus Supplement. Duly exercised Stock Warrants will be
delivered by the Stock Warrant Agent to the transfer agent for the Common Stock
or the Preferred Stock, as the case may be. Upon receipt thereof, the transfer
agent shall deliver or cause to be delivered, to or upon the written order of
the exercising warrantholder, the number of shares of Common Stock or Preferred
Stock purchased. If fewer than all of the Stock Warrants held by a warrantholder
are exercised, the Stock Warrant Agent shall deliver to the exercising
warrantholder a new Stock Warrant representing the unexercised Stock Warrants.
ANTIDILUTION PROVISIONS
The exercise price payable and the number of shares of Common Stock or
Preferred Stock, as the case may be, purchasable upon the exercise of each Stock
Warrant will be subject to adjustment in certain events, including the issuance
of a stock dividend to holders of Common Stock or Preferred Stock, respectively,
or a combination, subdivision or reclassification of Common Stock or Preferred
Stock, respectively. In lieu of adjusting the number of shares of Common Stock
or Preferred Stock purchasable upon exercise of each Stock Warrant, the Company
may elect to adjust the number of Stock Warrants. No adjustment in the number of
shares purchasable upon exercise of the Stock Warrants will be required until
cumulative adjustments require an adjustment of at least 1% thereof. The Company
may, at its option, reduce the exercise price at any time. No fractional shares
will be issued upon exercise of Stock Warrants, but the Company will pay the
cash value of any fractional shares otherwise issuable. Notwithstanding the
foregoing, in case of any consolidation, merger, or sale or conveyance of the
property of the Company as an entirety or substantially as an entirety, the
holder of each outstanding Stock Warrant shall have the right upon the exercise
thereof to the kind and number of shares of stock and other securities and
property (including cash) receivable by a holder of the number of shares of
Common Stock or Preferred Stock into which such Stock Warrants were exercisable
immediately prior thereto.
NO RIGHTS AS STOCKHOLDERS
Holders of Stock Warrants will not be entitled, by virtue of being such
warrantholders, to vote, to consent, to receive dividends, to receive notice as
stockholders with respect to any meeting of stockholders for the election of
directors of the Company or any other matter, or to exercise any rights
whatsoever as stockholders of the Company.
DESCRIPTION OF THE THIRD PARTY WARRANTS
The following statements with respect to the Third Party Warrants are
summaries of, and subject to, the detailed provisions of a warrant agreement
(the "Third Party Warrant Agreement") to be entered into by the Company and a
warrant agent to be selected at the time of issue (the "Third Party Warrant
Agent"), which Third Party Warrant Agreement may include or incorporate by
reference standard warrant provisions substantially in the form of the Stock
Warrant Provisions or the provisions set forth in the form of the Debt
Securities Warrant
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Agreement filed as an exhibit to the Registration Statement or other provisions
set forth in the Third Party Warrant Agreement which will be filed as an exhibit
to or incorporated by reference in the Registration Statement.
GENERAL
The Third Party Warrants may be issued under the Third Party Warrant
Agreement independently or together with any other Securities offered by any
Prospectus Supplement and may be attached to or separate from such other
Securities. If Third Party Warrants are offered, the related Prospectus
Supplement will describe the terms of the warrants, including without limitation
the following: (i) the offering price, if any; (ii) the designation, aggregate
principal amount and terms of the Third Party Securities purchasable upon
exercise of the warrants; (iii) if applicable, the designation and terms of the
Third Party Securities with which the Third Party Warrants are issued and the
number of Third Party Warrants issued with each such Third Party Security; (iv)
if applicable, the date on and after which the Third Party Warrants and the
related Third Party Securities will be separately transferable; (v) the number
or principal amount of Third Party Securities purchasable upon exercise of one
Third Party Warrant and the price at which such number or principal amount of
Third Party Securities may be purchased upon exercise; (vi) the date on which
the right to exercise the Third Party Warrants shall commence, the date on which
such right shall expire and whether the Company has the ability to extend the
exercise period; (vii) federal income tax consequences; (viii) whether the Third
Party Warrants will be issued in registered or bearer form; (ix) the currency,
currencies or currency units in which the offering price, if any, and exercise
price are payable; (x) the antidilution provisions of the Third Party Warrants;
and (xi) any other terms of the Third Party Warrants. If the Company maintains
the ability to reduce the exercise price of any Third Party Warrant and such
right is triggered, the Company will comply with the federal securities laws,
including Rule 13e-4 under the Exchange Act, to the extent applicable.
The Prospectus Supplement will identify the Third Party Securities, the
Third Party Company, all documents filed by the Third Party Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act since the end of such
Third Party Company's last completed fiscal year for which a Form 10-K annual
report has been filed and the document or documents filed under the Exchange Act
which contain a description of the Third Party Securities being sold or, if no
such document or documents exist, the Prospectus Supplement will include a
description of the Third Party Securities being sold. Third Party Warrants may
be offered only with respect to Third Party Securities of Third Party Companies
that are eligible to use Form S-3 (or any successor form) for primary offerings
under the rules and regulations of the Commission and Third Party Securities
that are registered under Section 12 of the Exchange Act. To the extent the
Securities Act requires registration of the Third Party Securities by the Third
Party Company, such as where the Third Party is an affiliate of the Company, in
connection with the issuance and/or exercise of Third Party Warrants, the
Company will cause the Third Party Company to file a Third Party Registration
Statement under the Securities Act. Where the exercise of Third Party Warrants
would require the Third Party to have an effective Third Party Registration
Statement at the time of exercise, the exercise will be subject to the
effectiveness of such registration statement.
For example, if the Company is an affiliate of the Third Party Company,
the Third Party Securities that can be acquired upon exercise of the Third Party
Warrants will be the subject of a registration statement filed under the
Securities Act by the Third Party Company prior to any offer of such Third Party
Warrants, and a Third Party Registration Statement will have been declared
effective prior to any sale of Third Party Warrants, except in the case of Third
Party Warrants which are not immediately exercisable, in which case such a
registration statement would have to be effective, absent an exemption, when the
holder of any Third Party Warrants elects to exercise them to acquire Third
Party Securities.
Third Party Warrants may be exchanged for new Third Party Warrants of
different denominations and may (if in registered form) be presented for
registration of transfer at the corporate trust office of the Third Party
Warrant Agent, which will be listed in the related Prospectus Supplement, or at
such other office as may be set forth therein. Warrantholders do not have any of
the rights of holders of Third Party Securities (except as may be otherwise set
forth in the Prospectus Supplement).
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EXERCISE OF THIRD PARTY WARRANTS
Third Party Warrants may be exercised in the manner set forth in the
applicable Prospectus Supplement. Upon the exercise of Third Party Warrants, the
Third Party Warrant Agent will, as soon as practicable, deliver the Third Party
Securities in authorized denominations in accordance with the instructions of
the exercising warrantholder and at the sole cost and risk of such holder. If
less than all of the Third Party Warrants held by a warrantholder are exercised,
a new Third Party Warrant will be issued for the remaining amount of Third Party
Warrants.
DESCRIPTION OF THE WARRANTS TO PURCHASE DEBT SECURITIES
The following statements with respect to the Debt Warrants are
summaries of, and subject to, the detailed provisions of a warrant agreement
(the "Debt Warrant Agreement") to be entered into by the Company and a warrant
agent to be selected at the time of issue (the "Debt Warrant Agent"), which Debt
Warrant Agreement may include or incorporate by reference standard warrant
provisions substantially in the form of the Standard Debt Securities Warrant
Provisions filed as an exhibit to the Registration Statement or other provisions
set forth in the Debt Warrant Agreement which will be filed as an exhibit to or
incorporated by reference in the Registration Statement.
GENERAL
The Debt Warrants may be issued under the Debt Warrant Agreement
independently or together with any Debt Securities offered by any Prospectus
Supplement and may be attached to or separate from such Debt Securities.
If Debt Warrants are offered, the related Prospectus Supplement will
describe the terms of the Debt Warrants, including without limitation the
following: (i) the offering price, if any; (ii) the designation, aggregate
principal amount and terms of the Debt Securities purchasable upon exercise of
the Debt Warrants; (iii) the principal amount of Debt Securities purchasable
upon exercise of the Debt Warrants and the price at which such principal amount
of Debt Securities may be purchased upon exercise; (iv) the date or dates on
which the right to exercise the Debt Warrants shall commence, the date on which
such right shall expire and whether the Company has the ability to extend the
exercise period; (v) federal income tax consequences, if any; (vi) the currency,
currencies or currency units in which the offering price, if any, and exercise
price are payable; and (vii) any other terms of the Debt Warrants.
Debt Warrants may be exchanged for new Debt Warrants of different
denominations and may be presented for registration of transfer at the corporate
trust office of the Debt Warrant Agent, which will be listed in the related
Prospectus Supplement, or at such other office as may be set forth therein.
Warrantholders do not have any of the rights of holders of Debt Securities and
are not entitled to payments of principal of and interest, if any, on the Debt
Securities.
EXERCISE OF DEBT WARRANTS
Debt Warrants may be exercised in the manner set forth in the
applicable Prospectus Supplement. Upon the exercise of Debt Warrants, the Debt
Warrant Agent will, as soon as practicable, deliver the Debt Securities in
authorized denominations in accordance with the instructions of the exercising
warrantholder and at the sole cost and risk of such warrantholder.
DESCRIPTION OF THE STOCK PURCHASE CONTRACTS AND STOCK PURCHASE UNITS
The Company may issue Stock Purchase Contracts, which are contracts
obligating holders to purchase from the Company, and the Company to sell to the
holders, a specified number of shares of Common Stock or Preferred Stock at a
future date or dates. The price per share of Common Stock or Preferred Stock may
be fixed at the time the Stock Purchase Contracts are issued or may be
determined by reference to a specific formula set forth in the Stock Purchase
Contracts. Any such formula may include antidilution provisions to adjust the
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number of shares issuable pursuant to Stock Purchase Contracts upon certain
events. The Stock Purchase Contracts may be issued separately or as a part of
Stock Purchase Units each representing ownership of a Stock Purchase Contract
and Debt Securities, Preferred Securities or debt obligations of a Third Party
Company, including U.S. Obligations, securing the holders' obligations to
purchase the Common Stock or the Preferred Stock under the Purchase Contracts.
In the case of Stock Purchase Units that include debt obligations of a
Third Party Company, unless a holder of Stock Purchase Units settles its
obligations under the Stock Purchase Contracts early through the delivery of
consideration to the Company or its agent in the manner discussed below, the
principal of such debt obligations, when paid at maturity, will automatically be
applied to satisfy the holder's obligation to purchase Common Stock or Preferred
Stock under the Stock Purchase Contracts.
In the case of Stock Purchase Units that include Debt Securities or
Preferred Securities, in the absence of any such early settlement or the
election by a holder to pay the consideration specified in the Stock Purchase
Contracts prior to the stated settlement date, the Debt Securities or Preferred
Securities will automatically be presented to the applicable Financing Trust for
redemption at 100% of face or liquidation value and such Financing Trust will
present Subordinated Debt Securities in an equal principal amount to the Company
for redemption at 100% of principal amount. Amounts received in respect of such
redemption will automatically be transferred to the Company and applied to
satisfy in full the holder's obligation to purchase Common Stock or Preferred
Stock under the Stock Purchase Contracts. The Stock Purchase Contracts may
require the Company to make periodic payments to the holders of the Stock
Purchase Units or vice versa, and such payments may be unsecured or prefunded on
some basis. The Stock Purchase Contracts may require holders to secure their
obligations thereunder in a specified manner.
Holders of Stock Purchase Units may be entitled to settle the
underlying Stock Purchase Contracts prior to the stated settlement date by
surrendering the certificate evidencing the Stock Purchase Units, accompanied by
the payment due, in such form and calculated pursuant to such formula as may be
prescribed in the Stock Purchase Contracts and described in the applicable
Prospectus Supplement. Upon early settlement, the holder will receive the number
of shares of Common Stock or Preferred Stock deliverable under such Stock
Purchase Contracts, subject to adjustment in certain cases. Holders of Stock
Purchase Units may be entitled to exchange their Stock Purchase Units, together
with appropriate collateral, for separate Stock Purchase Contracts and Preferred
Securities, Debt Securities or debt obligations. In the event of such early
settlement or exchange, the Preferred Securities, Debt Securities or debt
obligations that were pledged as security for the obligation of the holder to
perform under the Stock Purchase Contracts will be transferred to the holder
free and clear of the Company's security interest therein.
The applicable Prospectus Supplement will describe the terms of any
Stock Purchase Contracts or Stock Purchase Units.
DESCRIPTION OF THE PREFERRED SECURITIES
Each Financing Trust may issue only one series of Preferred Securities
having terms described in the Prospectus Supplement relating thereto. The
Declaration of each Financing Trust authorizes the Regular Trustees of each
Financing Trust to issue on behalf of such Financing Trust one series of
Preferred Securities. Each Declaration will be qualified as an indenture under
the Trust Indenture Act. The Preferred Securities will have such terms,
including distributions redemption, voting, liquidation rights and such other
preferred, deferred or other special rights or such restrictions, as shall be
set forth in the Declaration or made part of the Declaration by the Trust
Indenture Act. Reference is made to the Prospectus Supplement relating to the
Preferred Securities for specific terms including: (i) the distinctive
designation of such Preferred Securities; (ii) the number of Preferred
Securities issued; (iii) the annual distribution rate (or method of determining
such rate) for such Preferred Securities and the date or dates upon which such
distributions shall be payable (provided, however, that distributions on such
Preferred Securities shall be payable on a quarterly basis to holders of such
Preferred Securities as of a record date in each quarter during which such
Preferred Securities are outstanding); (iv) whether distributions on Preferred
Securities shall be cumulative, and, in the case of Preferred Securities having
such cumulative distribution rights, the date or dates or method of determining
the date or dates from
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which distributions on Preferred Securities shall be cumulative; (v)
the amount or amounts which shall be paid out of the assets of such Financing
Trust to the holders of Preferred Securities upon voluntary or involuntary
dissolution of such Financing Trust; (vi) the obligation, if any, of such
Financing Trust to purchase or redeem Preferred Securities and the price or
prices at which, the period or periods within which and the terms and conditions
upon which Preferred Securities issued by such Financing Trust shall be
purchased or redeemed, in whole or in part, pursuant to such obligation; (vii)
the voting rights, if any, of Preferred Securities issued by such Financing
Trust in addition to those required by law, including the number of votes per
Preferred Security and any requirement for the approval by the holders of
Preferred Securities, or of Preferred Securities issued by both Financing Trusts
as a condition to specified action or amendments to the Declaration of such
Financing Trust; (viii) whether the Preferred Securities will be issued in the
form of one or more global securities; and (ix) any other relevant rights,
preferences, privileges, limitations or restrictions of Preferred Securities
issued by such Financing Trust consistent with the Declaration of such Financing
Trust or with applicable law. All Preferred Securities offered hereby will be
guaranteed by the Company to the extent set forth below under "Description of
the Guarantees." Certain United States federal income tax considerations
applicable to any offering of Preferred Securities will be described in the
Prospectus Supplement relating thereto.
In connection with the issuance of Preferred Securities, each Financing
Trust will issue one series of Common Securities. The Declaration of each
Financing Trust authorizes the Regular Trustees to issue on behalf of such
Financing Trust one series of Common Securities having such terms including
distributions, redemption, voting, liquidation rights or such restrictions as
shall be set forth therein. The terms of the Common Securities issued by a
Financing Trust will be substantially identical to the terms of the Preferred
Securities issued by such Financing Trust and the Common Securities will rank
PARI PASSU, and payments will be made thereon pro rata, with the Preferred
Securities except that, upon the occurrence and during the continuation of an
event of default under the Declaration, the rights of the holders of the Common
Securities to payment in respect of distributions and payments upon liquidation,
redemption and otherwise will be subordinated to the rights of the holders of
the Preferred Securities. Except in certain limited circumstances the Common
Securities will also carry the right to vote and to appoint, remove or replace
any of the Financing Trustees. All of the Common Securities will be directly or
indirectly owned by the Company.
DESCRIPTION OF THE GUARANTEES
Set forth below is a summary of information concerning the Guarantees
that will be executed and delivered by the Company for the benefit of the
holders, from time to time, of Preferred Securities. Each Preferred Securities
Guarantee Agreement under which Guarantees are issued will be qualified as an
indenture under the Trust Indenture Act. The trustee under each Guarantee (the
"Guarantee Trustee") will be identified in the relevant Prospectus Supplement,
and will be a financial institution not affiliated with the Company that has a
combined capital and surplus of at least $100,000,000. The terms of each
Guarantee will be those set forth in such Guarantee and those made part of such
Guarantee by the Trust Indenture Act. The summary does not purport to be
complete. Such summary makes use of certain terms defined in the Guarantee and
is subject in all respects to the provisions of, and is qualified in its
entirety by reference to, the form of Guarantee, which is filed as an exhibit to
the Registration Statement of which this Prospectus forms a part, and the Trust
Indenture Act. Each Guarantee will be held by the Guarantee Trustee for the
benefit of the holders of the Preferred Securities of the applicable Financing
Trust.
GENERAL
Pursuant to each Guarantee, the Company will unconditionally agree, to
the extent set forth therein, to pay in full to the holders of the Preferred
Securities issued by each Financing Trust, the Guarantee Payments (as defined
herein) (except to the extent paid by such Financing Trust), as and when due,
regardless of any defense, right of set-off or counterclaim which such Financing
Trust may have or assert other than the defense of payment. The following
payments with respect to Preferred Securities issued by each Financing Trust
(the "Guarantee Payments"), to the extent not paid by or on behalf of such
Financing Trust, will be subject to the Guarantee (without duplication): (i) any
accrued and unpaid distributions that are required to be paid on such Preferred
Securities, but if and only to the extent that in each case the Company has made
a payment to the related Property Trustee of interest or principal on the
Subordinated Debt Securities held in such Financing Trust
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as trust assets; (ii) the redemption price, including all accrued and unpaid
distributions (the "Redemption Price"), but if and only to the extent that in
each case the Company has made a payment to the related Property Trustee of
interest or principal on the Subordinated Debt Securities held in such Financing
Trust as trust assets with respect to any Preferred Securities called for
redemption by such Financing Trust; and (iii) upon a voluntary or involuntary
dissolution, winding up or termination of such Financing Trust (other than in
connection with the distribution of Subordinated Debt Securities to the holders
of Preferred Securities or the redemption of all of the Preferred Securities),
the lesser of (a) the aggregate of the liquidation amount and all accrued and
unpaid distributions on such Preferred Securities to the date of payment to the
extent such Financing Trust has funds available therefor or (b) the amount of
assets of such Financing Trust remaining available for distribution to holders
of such Preferred Securities on liquidation of such Financing Trust. The
Company's obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Company to the holders of Preferred
Securities or by causing the applicable Financing Trust to pay such amounts to
such holders.
Each Guarantee will be a guarantee with respect to the Preferred
Securities issued by the applicable Financing Trust from the time of issuance of
such Preferred Securities but will not apply to any payment of distributions
except to the extent the Company has made a payment to the related Property
Trustee of interest or principal on the Subordinated Debt Securities held in
such Financing Trust as trust assets. If the Company does not make interest
payments on the Subordinated Debt Securities purchased by a Financing Trust,
such Financing Trust will not pay distributions on the Preferred Securities
issued by such Financing Trust and will not have funds available therefor and
such payment obligation will therefore not be guaranteed by the Company under
the applicable Guarantee. See "Description of the Preferred Securities" and
"Description of the Debt Securities--Subordinated Debt Securities."
The Company's obligations under the Declaration for each Financing
Trust, the Preferred Securities Guarantee issued with respect to Preferred
Securities issued by such Financing Trust, the Subordinated Debt Securities
purchased by such Financing Trust and the related Subordinated Indenture in the
aggregate will provide a full and unconditional guarantee on a subordinated
basis by the Company of payments due on the Preferred Securities issued by such
Financing Trust.
The Company has also agreed to unconditionally guarantee the
obligations of the Financing Trusts with respect to the Common Securities (the
"Common Securities Guarantees") to the same extent as the Guarantees, except
that, upon an event of default under the Subordinated Indenture, holders of
Preferred Securities under the Guarantees shall have priority over holders of
Common Securities under the Common Securities Guarantee with respect to
distributions and payments on liquidation, redemption or otherwise.
CERTAIN COVENANTS OF THE COMPANY
In each Guarantee, the Company will covenant that, so long as any
Preferred Securities issued by the applicable Financing Trust remain
outstanding, if there shall have occurred any event that would constitute an
event of default under such Guarantee or the Declaration of such Financing
Trust, then (a) the Company shall not declare or pay any dividend on, or make
any distribution with respect to, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of its capital stock and (b) the
Company shall not make any payment of interest, principal or premium, if any, on
or repay, repurchase or redeem any debt securities issued by the Company which
rank junior to or PARI PASSU with such Subordinated Debt Securities. However,
each Guarantee will except from the foregoing any stock dividends paid by the
Company or any of its subsidiaries, where the dividend stock is of the same
class as that on which the dividend is being paid.
MODIFICATION OF THE GUARANTEES; ASSIGNMENT
Except with respect to any changes that do not adversely affect the
rights of holders of Preferred Securities (in which case no vote will be
required), each Guarantee may be amended only with the prior approval of the
holders of not less than a majority in liquidation amount of the outstanding
Preferred Securities issued by the applicable Financing Trust. The manner of
obtaining any such approval of holders of such Preferred Securities will be set
forth in an accompanying Prospectus Supplement. All guarantees and agreements
contained in a Guarantee shall bind the successors, assignees, receivers,
trustees and representatives of the
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Company and shall inure to the benefit of the holders of the Preferred
Securities of the applicable Financing Trust then outstanding.
EVENTS OF DEFAULT
An Event of Default under the Guarantee will occur upon the failure of
the Company to perform any of its payments or other obligations thereunder. The
holders of a majority in liquidation amount of the Preferred Securities to which
a Guarantee relates have the right to (a) waive any past Events of Default and
its consequences, whereupon such event of default shall cease to exist and any
event of default under the Guarantee arising therefrom shall be deemed to have
been cured and (b) direct the time, method and place of conducting any
proceeding for any remedy available to the Guarantee Trustee in respect of the
Guarantee or to direct the exercise of any trust or power conferred upon the
Guarantee Trustee under the Guarantee.
If the Guarantee Trustee fails to enforce such Guarantee, any holder of
Preferred Securities relating to such Guarantee may, after a period of 30 days
has elapsed from such holder's written request to the Guarantee Trustee to
enforce the Guarantee, institute a legal proceeding directly against the Company
to enforce its rights under such Guarantee without first instituting a legal
proceeding against the applicable Financing Trust, the Guarantee Trustee or any
other person or entity.
The Company will be required to provide annually to the Guarantee
Trustee a statement as to the performance by the Company of certain of its
obligations under each of the Guarantees and as to any default in such
performance.
TERMINATION OF THE GUARANTEES
Each Guarantee will terminate as to the Preferred Securities issued by
the applicable Financing Trust upon full payment of all distributions relating
to the Preferred Securities or the Redemption Price of all Preferred Securities
of such Trust, upon distribution of the Subordinated Debt Securities held by
such Financing Trust to the holders of the Preferred Securities of such
Financing Trust or upon full payment of the amounts payable in accordance with
the Declaration of such Financing Trust upon liquidation of such Financing
Trust. Each Guarantee will continue to be effective or will be reinstated, as
the case may be, if at any time any holder of Preferred Securities issued by the
applicable Financing Trust must restore payment of any sums paid under such
Preferred Securities or such Guarantee.
STATUS OF THE GUARANTEES
Each Guarantee will constitute an unsecured obligation of the Company
and will rank (i) subordinate and junior in right of payment to all senior
liabilities of the Company; (ii) PARI PASSU with the obligations of the Company
under any similar guarantee agreements issued by the Company on behalf of
holders of Subordinated Debt Securities; and (iii) senior to the Company's
Common Stock. The terms of the Preferred Securities provide that each holder of
Preferred Securities issued by such Financing Trust by acceptance thereof agrees
to the subordination provisions and other terms of the applicable Guarantee.
The Guarantee Trustee shall enforce the Guarantee on behalf of the
holders of the Preferred Securities issued by the applicable Financing Trust.
The holders of not less than a majority in aggregate liquidation amount of the
Preferred Securities issued by the applicable Financing Trust have the right to
direct the time, method and place of conducting any proceeding for any remedy
available in respect of the related Guarantee, including the giving of
directions of the Guarantee Trustee. If the Guarantee Trustee fails to enforce
such Guarantee, any holder of Preferred Securities relating to such Guarantee
may, after a period of 30 days has elapsed from such holder's written request to
the Guarantee Trustee to enforce the Guarantee, institute a legal proceeding
directly against the Company, as Guarantor, to enforce its rights under such
Guarantee without first instituting a legal proceeding against the applicable
Financing Trust, the Guarantee Trustee or any other person or entity.
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Each Guarantee will constitute a guarantee of payment and not of
collection (that is, the guaranteed party may institute a legal proceeding
directly against the guarantor to enforce its rights under a Guarantee without
instituting a legal proceeding against any other person or entity).
DESCRIPTION OF THE OTHER UNITS
The Company may issue Other Units, which may include Common Stock,
Preferred Stock, Depositary Shares, Debt Securities, Common Stock Warrants,
Preferred Stock Warrants, Third Party Warrants, Debt Warrants, Stock Purchase
Contracts, Stock Purchase Units, Preferred Securities or Guarantees, or any
combination of the foregoing, either individually or as units consisting of one
or more of the foregoing, each on terms to be determined at the time of sale.
The related Prospectus Supplement will describe the terms of any Other
Units and the Securities which comprise such Other Units. See "Description of
the Common Stock," "Description of the Preferred Stock," "Description of the
Depositary Shares," "Description of the Debt Securities," "Description of the
Warrants to Purchase Common or Preferred Stock," "Description of the Third Party
Warrants," "Description of the Warrants to Purchase Debt Securities,"
"Description of Stock Purchase Contracts and Stock Purchase Units," "Description
of the Preferred Securities," and "Description of the Guarantees."
PLAN OF DISTRIBUTION
The Company or any Financing Trust may, from time to time, sell
Securities (1) through underwriters or dealers, (2) directly to one or more
purchasers, (3) through agents or (4) through a combination of any such methods
of sale. A Prospectus Supplement will set forth the terms of the offering of the
Securities offered thereby, including the name or names of any underwriters, the
purchase price of the Securities, and the proceeds to the Company or any
Financing Trust from the sale, any underwriting discounts and other items
constituting underwriters' compensation, any initial public offering price, any
discounts or concessions allowed or reallowed or paid to dealers, and any
securities exchange or market on which the Securities may be listed. Only
underwriters so named in such Prospectus Supplement are deemed to be
underwriters in connection with the Securities offered thereby.
If underwriters are used in the sale, the Securities will be acquired
by the underwriters for their own account and may be resold from time to time in
one or more transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of sale. The
obligations of the underwriters to purchase the Securities will be subject to
certain conditions precedent, and the underwriters will be obligated to purchase
all the Securities of the series offered by the Prospectus Supplement if any of
the Securities are purchased. Any initial public offering price and any
discounts or concessions allowed or reallowed or paid to dealers may be changed
from time to time.
In connection with underwritten offerings of Securities, certain
underwriters and selling group members and their respective affiliates may
engage in transactions that stabilize, maintain or otherwise affect the market
price of the Securities. Such transactions may include stabilization
transactions effected in accordance with Rule 104 of Regulation M under the
Exchange Act, pursuant to which such persons may bid for or purchase Securities
for the purposes of stabilizing their market price. The underwriters also may
create a short position for their respective accounts by selling more Securities
in connection with this offering than they are committed to purchase from the
Company, and in such case may purchase Securities in the open market following
completion of the offering to cover all or a portion of such short position. The
underwriters may also cover all or a portion of such short position, up to a
specified aggregate principal amount or number of Securities, by exercising any
underwriters' over-allotment option that may be applicable with respect to the
particular underwritten offering. In addition, the managing underwriter for the
particular offering, on behalf of the underwriters, may impose "penalty bids"
under contractual arrangements between the underwriters whereby it may reclaim
from an underwriter (or dealer participating in the offering) for the account
of the underwriters, the selling concession with respect to Securities that are
distributed in the relevant offering but subsequently purchased for the account
of the underwriters in the open market. Any of the transactions described in
this paragraph may result in the maintenance of the price of the Securities at a
level above that which might
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otherwise prevail in the open market. None of the transactions described in this
paragraph is required, and, if any are undertaken, they may be discounted at any
time.
Securities may also be sold directly by the Company or a Financing
Trust or through agents designated by the Company or any Financing Trust from
time to time. Any agent involved in the offering and sale of Securities in
respect of which this Prospectus is delivered will be named, and any commissions
payable by the Company or a Financing Trust to such agent will be set forth in
the Prospectus Supplement. Unless otherwise indicated in the related Prospectus
Supplement, any such agent will be acting on a best-efforts basis for the period
of its appointment.
Securities offered other than Common Stock may be a new issue of
securities with no established trading market. Any underwriters to whom such
Securities are sold by the Company or a Financing Trust for public offering and
sale may make a market in such Securities, but such underwriters will not be
obligated to do so and may discontinue any market making at any time without
notice. No assurance can be given as to the liquidity of or the trading markets
for any such Securities.
Agents and underwriters may be entitled under agreements entered into
with the Company or a Financing Trust to indemnification by the Company or such
Financing Trust against certain civil liabilities, including liabilities under
the Securities Act or to contribution with respect to payments which the agents
or underwriters may be required to make in respect thereof. Agents and
underwriters may engage in transactions with, or perform services for, the
Company or any Financing Trust in the ordinary course of business.
Sales of the Securities may be effected by or for the account of one or
more of the Third Parties from time to time in transactions (which may include
block transactions) on any exchange or market on which such Securities are
listed or quoted, as applicable, in negotiated transactions, through a
combination of such methods of sale, or otherwise, at fixed prices that may be
changed, at market prices prevailing at the time of sale, at prices related to
prevailing market prices, or at negotiated prices. The Third Parties may effect
such transactions by selling the Securities directly to purchasers, acting as
principals for their own accounts, or by selling their Securities to or through
broker-dealers acting as agents for the Third Parties, or to broker-dealers who
may purchase Securities as principals and thereafter sell such Securities from
time to time in transactions on any exchange or market on which such Securities
are listed or quoted, as applicable, in negotiated transactions, through a
combination of such methods of sale, or otherwise. In effecting sales,
broker-dealers engaged by Third Parties may arrange for other broker-dealers to
participate. Such broker-dealers, if any, may receive compensation in the form
of discounts, concessions or commissions from the Third Parties and/or the
purchasers of the Securities for whom such broker-dealers may act as agents or
to whom they may sell as principals, or both (which compensation as to a
particular broker-dealer might be in excess of customary commissions).
In connection with distributions of shares of Common Stock or
otherwise, the Company may enter into hedging transactions with Counterparties
in connection with which such Counterparties may sell shares of Common Stock
registered hereunder in the course of hedging the positions they assume with the
Company. Such Counterparties may offer Common Stock through underwriters or
dealers, directly to one or more purchasers, or through agents, and may effect
sales in one or more transactions on the New York Stock Exchange or in
negotiated transactions or a combination of such methods of sale, at market
prices prevailing at the time of sale, at prices related to such prevailing
market prices or at other negotiated prices. The Company will not receive any of
the proceeds from the sale of Common Stock by Counterparties. A Counterparty may
be deemed to be an "underwriter" within the meaning of the Securities Act, and
any commission received by it and any profit on the resale of the Common Stock
purchased by it may be deemed to be underwriting commissions or discounts under
the Securities Act. The Company may agree to bear all expenses of registration
of any Common Stock offered by Counterparties and may indemnify such
Counterparties against certain civil liabilities, including certain liabilities
under the Securities Act.
ERISA AND TAX CONSIDERATIONS
The Employee Retirement Income Security Act of 1974, as amended
("ERISA"), imposes certain restrictions on investments by employee benefit plans
that are subject to ERISA. The Internal Revenue Code of
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1986, as amended (the "Code"), imposes additional restrictions on investments by
tax-exempt retirement plans, individual retirement accounts, and similar
entities. The Code also provides that certain types of income received by
organizations that generally are exempt from federal income tax will
nevertheless be subject to taxation. Retirement plans, tax-exempt organizations
and similar entities should consult their tax and legal advisors and the
applicable Prospectus Supplement before acquiring Securities.
LEGAL MATTERS
The legality of the Securities (other than the Preferred Securities)
offered hereby will be passed upon by Margaret G. Gill, Senior Vice President
Legal, External Affairs and Secretary of the Company, except as set forth in a
Prospectus Supplement. Certain matters of Delaware law regarding the legality of
the Preferred Securities will be passed upon by Morris, Nichols, Arsht &
Tunnell, Delaware, special Delaware counsel for the Financing Trusts. Certain
legal matters will be passed upon for the underwriters by Cleary, Gottlieb,
Steen & Hamilton, New York, New York, except as otherwise set forth in a
Prospectus Supplement.
EXPERTS
The consolidated financial statements of the Company and subsidiaries
incorporated in this Prospectus by reference to the Company's Annual Report on
Form 10-K for the year ended December 31, 1997, have been so incorporated in
reliance on the report of Price Waterhouse LLP, independent accountants, given
on the authority of said firm as experts in auditing and accounting.
With respect to the unaudited consolidated financial information of the
Company for the three-month periods ended March 31, 1998 and 1997, incorporated
by reference herein, Price Waterhouse LLP reported that they have applied
limited procedures in accordance with professional standards for review of such
information. However, their separate report dated May 4, 1998, incorporated by
reference herein, states that they did not audit and they do not express an
opinion on that unaudited consolidated financial information. Price Waterhouse
LLP has not carried out any significant or additional audit tests beyond those
which would have been necessary if their report had not been included.
Accordingly, the degree of reliance on their report on such information should
be restricted in light of the limited nature of the review procedures applied.
Price Waterhouse LLP is not subject to the liability provisions of section 11 of
the Securities Act of 1933 for their report on the unaudited consolidated
financial information because that report is not a "report" or "part" of the
Registration Statement prepared or certified by Price Waterhouse LLP within the
meaning of sections 7 and 11 of the Securities Act.
The consolidated financial statements and schedule of Cellular
Communications, Inc. incorporated by reference in the Company's Annual Report on
Form 10-K for the year ended December 31, 1997, have been audited by Ernst &
Young LLP, independent auditors, as set forth in their report thereon
incorporated by reference therein and incorporated herein by reference. Such
consolidated financial statements are incorporated herein by reference in
reliance upon such report given upon the authority of such firm as experts in
accounting and auditing.
The financial statements of Mannesmann Mobilfunk GmbH as of December
31, 1997 and 1996, and for each of the years in the three-year period ended
December 31, 1997 included in the Company's Annual Report on Form 10-K have been
incorporated by reference herein in reliance upon the report of KPMG Deutsche
Treuhand-Gesellschaft, independent auditors, incorporated by reference herein,
and upon the authority of said firm as experts in accounting and auditing.
The financial statements and schedule of CMT Partners for the years
ended December 31, 1997 and 1996, incorporated by reference from the Company's
Annual Report on Form 10-K for the year ended December 31, 1997, have been
audited by Coopers & Lybrand L.L.P., independent accountants, as set forth in
their report. In that report, the firm states that with respect to Kansas
Combined Cellular, a division of CMT Partners, its opinion is based on the
report of other independent public accountants, namely Arthur Andersen LLP. The
financial statements and schedule of CMT Partners referred to above have been
included herein in reliance upon the authority of those firms as experts in
giving said reports.
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The consolidated financial statements of New Par (A Partnership)
incorporated by reference in the Company's Annual Report on Form 10-K for the
year ended December 31, 1997, have been audited by Ernst & Young LLP,
independent auditors, as set forth in their report thereon incorporated by
reference therein and incorporated herein by reference. Such consolidated
financial statements are incorporated herein by reference in reliance upon such
report given upon the authority of such firm as experts in accounting and
auditing.
The audited consolidated financial statements of U S WEST NewVector
Group, Inc. and Subsidiaries, incorporated by reference in the Company's Form
8-K/A-1 dated April 6, 1998 have been audited by Arthur Andersen LLP,
independent public accountants, as indicated in their report with respect
thereto, and are included herein in reliance upon the authority of said firm as
experts in giving said reports.
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<TABLE>
================================================================= ====================================================
<S> <C>
NO DEALER, SALES REPRESENTATIVE, OR ANY OTHER PERSON HAS BEEN
AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS
IN CONNECTION WITH THIS OFFERING OTHER THAN THOSE CONTAINED IN
THIS PROSPECTUS OR ANY ACCOMPANYING PROSPECTUS SUPPLEMENT AND, IF
GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE
RELIED UPON AS HAVING BEEN AUTHORIZED BY AIRTOUCH COMMUNICATIONS,
INC., ATI FINANCING I OR ATI FINANCING II OR BY ANY AGENT. THIS
PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL, OR A
SOLICITATION OF AN OFFER TO BUY, ANY SECURITIES OTHER THAN THE
SECURITIES TO WHICH IT RELATES OR AN OFFER TO, OR A SOLICITATION
OF, ANY PERSON IN ANY JURISDICTION WHERE SUCH AN OFFER OR
SOLICITATION WOULD BE UNLAWFUL. NEITHER THE DELIVERY OF THIS
PROSPECTUS, ANY ACCOMPANYING PROSPECTUS SUPPLEMENT NOR ANY SALE
MADE HEREUNDER OR THEREUNDER SHALL, UNDER ANY CIRCUMSTANCES,
CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF AIRTOUCH COMMUNICATIONS, INC., ATI FINANCING I OR ATI
FINANCING II OR THAT THE INFORMATION CONTAINED HEREIN OR THEREIN
IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE HEREOF OR
THEREOF. ----------
TABLE OF CONTENTS
PAGE $2,500,000,000
Index of Terms.............................................. 4
Available Information....................................... 5 AIRTOUCH COMMUNICATIONS, INC.
Incorporation of Certain Documents
by Reference............................................. 5 COMMON STOCK
AirTouch Communications, Inc................................ 6 PREFERRED STOCK
The Financing Trusts........................................ 6 DEPOSITARY SHARES
Use of Proceeds............................................. 7 DEBT SECURITIES
Ratio of Earnings to Fixed Charges.......................... 7 COMMON STOCK WARRANTS
General Description of Securities PREFERRED STOCK WARRANTS
and Risk Factors.......................................... 8 THIRD PARTY WARRANTS
Description of the Common Stock............................. 8 DEBT WARRANTS
Description of the Preferred Stock.......................... 10 STOCK PURCHASE CONTRACTS
Description of the Depositary Shares........................ 11 STOCK PURCHASE UNITS
Description of the Debt Securities.......................... 13 OTHER UNITS
Description of the Warrants to Purchase
Common Stock or Preferred Stock.......................... 21
Description of the Third Party Warrants..................... 22 ATI FINANCING I
Description of the Warrants to Purchase ATI FINANCING II
Debt Securities.......................................... 24
Description of the Stock Purchase Contracts
and Stock Purchase Units................................. 24
Description of the Preferred Securities..................... 25
Description of the Guarantees............................... 26 PREFERRED SECURITIES,
Description of the Other Units.............................. 29 GUARANTEED TO THE EXTENT SET FORTH HEREIN BY
Plan of Distribution........................................ 29 AIRTOUCH COMMUNICATIONS, INC.
ERISA and Tax Considerations................................ 30
Legal Matters............................................... 31
Experts..................................................... 31 __________, 1998
================================================================= ====================================================
</TABLE>
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.*
<TABLE>
<S> <C>
Securities and Exchange Commission Registration Fee.............. $619,500
Printing Expenses................................................
Accounting Fees and Expenses.....................................
Legal Fees and Expenses..........................................
Trustee Fees.....................................................
Fees of Rating Agencies..........................................
Blue Sky Fees and Expenses.......................................
Miscellaneous....................................................
----------
TOTAL............................................................ $
==========
* Estimated, except for the Securities and Exchange Commission Registration Fee.
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law (the "Delaware
GCL") permits the Company's Board of Directors to indemnify any person against
expenses (including attorney's fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with
any threatened, pending or completed action, suit or proceeding in which such
person is made a party by reason of his being or having been a director,
officer, employee or agent of the Company, in terms sufficiently broad to permit
such indemnification under certain circumstances for liabilities (including
reimbursement for expenses incurred) arising under the Securities Act of 1933,
as amended (the "Securities Act"). Section 145 provides that indemnification
pursuant to its provisions is not exclusive of other rights of indemnification
to which a person may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors, or otherwise.
Article EIGHTH of the Company's Certificate of Incorporation provides
for indemnification of its directors, officers, employees and other agents to
the maximum extent permitted by the Delaware GCL.
As permitted by Sections 102 and 145 of the Delaware GCL, Article NINTH
of the Company's Certificate of Incorporation eliminates a director's personal
liability for monetary damage to the Company and its stockholders arising from a
breach or alleged breach of a director's fiduciary duty except to the extent not
permitted under the Delaware GCL.
In addition the Company has entered into separate indemnification
agreements with its directors and officers that require the Company, among other
things, to indemnify them against certain liabilities that may arise by reason
of their status or service as directors or officers to the fullest extent not
prohibited by law.
The Declaration of each Financing Trust provides that no Financing
Trustee, affiliate of any Financing Trustee, or any officer, director,
shareholder, member, partner, employee, representative or agent of any Financing
Trustee, or any employee or agent of such Financing Trust or its affiliates
(each an "Indemnified Person"), shall be liable, responsible or accountable in
damages or otherwise to such Financing Trust or any employee or agent of the
trust or its affiliates for any loss, damage or claim incurred by reason of any
act or omission performed or admitted by such Indemnified Person in good faith
on behalf of such Financing Trust and in a manner such Indemnified Person
reasonably believed to be within the scope of the authority conferred on such
Indemnified Person by such Declaration or by law, except that an Indemnified
Person shall be liable for any such loss, damage or claim incurred by reason of
such Indemnified Person's gross negligence (or, in the case of the Property
Trustee, negligence) or willful misconduct with respect to such acts or
omissions. The Declaration of each Financing Trust also provides that to the
fullest extent permitted by applicable law, the Company shall indemnify and hold
harmless each Indemnified Person from and against any loss, damage or claim
incurred by such Indemnified Person by reason of any act or omission performed
or omitted by such Indemnified Person in
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good faith on behalf of such Financing Trust and in a manner such Indemnified
Person reasonably believed to be within the scope of authority conferred on such
Indemnified Person by such Declaration except that no Indemnified Person shall
be entitled to be indemnified in respect of any loss, damage or claim incurred
by such Indemnified Person by reason of gross negligence (or, in the case of the
Property Trustee, negligence) or willful misconduct with respect to such acts or
omissions. The Declaration of each Financing Trust further provides that, to the
fullest extent permitted by applicable law, expenses (including legal fees)
incurred by an Indemnified Person in defending any claim, demand, action, suit
or proceeding shall, from time to time, be advanced by the Company prior to the
final disposition of such claim, demand, action, suit or proceeding upon receipt
by or an undertaking by or on behalf of the Indemnified Person to repay such
amount if it shall be determined that the Indemnified Person is not entitled to
be indemnified for the underlying cause of action as authorized by such
Declaration.
The directors and officers of the Company and the Regular Trustees are
covered by insurance policies indemnifying against certain liabilities,
including certain liabilities arising under the Securities Act, which might be
incurred by them in such capacities and against which they cannot be indemnified
by the Company or Financing Trusts.
Any agents, dealers or underwriters who execute any of the agreements
filed as Exhibit 1 to this registration statement will agree to indemnify the
Company's directors and their officers and the Financing Trustees who signed the
registration statement against certain liabilities that may arise under the
Securities Act with respect to information furnished to the Company or any of
the Financing Trusts by or on behalf of any such indemnifying party.
ITEM 16. EXHIBITS.
Exhibits identified in parentheses below, on file with the Commission,
are incorporated by reference as exhibits hereto.
1.1 Form of Underwriting Agreement (Debt Securities).
1.2 Form of Underwriting Agreement (Equity Securities).
4.1 Certificate of Incorporation of the Company, as filed with the
Secretary of State of the State of Delaware on September 19,
1994 (Exhibit 3.1 to the Company's Current Report on Form 8-K
Date of Report: December 15, 1994, File No. 1-12342 and
incorporated by reference herein).
4.2 Amended By-laws of the Company as of June 13, 1996 (Exhibit 3
to the Company's Quarterly Report on Form 10-Q for the period
ended June 30, 1996, File No. 1-12342 and incorporated by
reference herein).
4.3 Form of Common Stock certificate (Exhibit 4.1 to the Company's
Annual Report on Form 10-K for the year ended December 31,
1994, File No. 1-12342 and incorporated by reference herein).
4.4 Designation, Preferences and Rights of Series A Participating
Preferred Stock of the Company, as filed with the Secretary of
State of the State of Delaware on December 15, 1994 (Exhibit
3.2 to the Company's Form 8-B, File No. 1-12342, filed January
27, 1995 and incorporated by reference herein).
4.5 Certificate of Designation, Preferences and Rights of Class B
Preferred Stock, Series 1996 (Exhibit 4.3 to the Company's
Annual Report on Form 10-K for the year ended December 31,
1996, File No. 1-12342 and incorporated by reference herein).
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4.6 Certificate of Designation, Preferences and Rights of Class C
Preferred Stock, Series 1996 (Exhibit 4.4 to the Company's
Annual Report on Form 10-K for the year ended December 31,
1996, File No. 1-12342 and incorporated by reference herein).
4.7 Certificate of Designation, Preferences and Rights of 5.143%
Class D Cumulative Preferred Stock (Exhibit 3.1 to the
Company's Current Report on Form 8-K, Date of Report: April 6,
1998, File No. 1-12342 and incorporated by reference herein).
4.8 Certificate of Designation, Preferences and Rights of 5.143%
Class E Cumulative Preferred Stock (Exhibit 3.2 to the
Company's Current Report on Form 8-K, Date of Report: April 6,
1998, File No. 1-12342 and incorporated by reference herein).
4.9 Rights Agreement between the Company and The Bank of New York,
Rights Agent, dated as of September 19, 1994 (Exhibit 4 to the
Company's Current Report on Form 8-K - Date of Report:
December 15, 1994, File No. 1-12342 and incorporated by
reference herein).
4.10 Amendment No. 1 to Rights Agreement between the Company and
The Bank of New York, Rights Agent, dated as of January 29,
1998 (Exhibit 4.3 to the Company's Annual Report on Form 10-K
for the year ended December 31, 1997, File No. 1-12342 and
incorporated by reference herein).
4.11 Indenture dated as of July 16, 1996 between the Company and
The First National Bank of Chicago, as trustee (Exhibit 4.1 to
the Company's Quarterly Report on Form 10-Q for the period
ended June 30, 1996, File No. 1-12342 and incorporated by
reference herein).
4.12 First Supplemental Indenture dated as of July 16, 1996 between
the Company and The First National Bank of Chicago, as trustee
(Exhibit 4.1 to the Company's Current Report on Form 8-K, Date
of Report: July 3, 1996, File No. 1-12342 and incorporated by
reference herein).
4.13 Second Supplemental Indenture dated as of July 16, 1996
between the Company and The First National Bank of Chicago, as
trustee (Exhibit 4.1 to the Company's Current Report on Form
8-K, Date of Report: July 11, 1996, File No. 1-12342 and
incorporated by reference herein).
4.14 Third Supplemental Indenture dated as of October 7, 1996
between the Company and The First National Bank of Chicago, as
trustee (Exhibit 4.1 to the Company's Current Report on Form
8-K: Date of Report: October 2, 1996, File No. 1-12342 and
incorporated by reference herein).
4.15 Fourth Supplemental Indenture dated as of May 4, 1998 between
the Company and The First National Bank of Chicago, as trustee
(Exhibit 4.1 to the Company's Current Report on Form 8-K, Date
of Report: April 29, 1998, File No. 1-12342 and incorporated
by reference herein).
4.16 Fifth Supplemental Indenture dated as of June 3, 1998 between
the Company and The First National Bank of Chicago, as trustee
(Exhibit 4.1 to the Company's Current Report on Form 8-K, Date
of Report: May 29, 1998, File No. 1-12342 and incorporated by
reference herein).
4.17 Certificate of Trust of ATI Financing I (Exhibit 4.4 to the
Company's registration statement on Form S-3, File No.
33-62787 and incorporated by reference herein).
4.18 Certificate of Trust of ATI Financing II (Exhibit 4.5 to the
Company's registration statement on Form S-3, File No.
33-62787 and incorporated by reference herein).
4.19 Form of Amended and Restated Declaration of Trust of ATI
Financing I and ATI Financing II (Exhibit 4.6 to the Company's
registration statement on Form S-3, File No. 33-62787 and
incorporated by reference herein).
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4.20 Form of Pledge Agreement (Exhibit 4.7 to the Company's
registration statement on Form S-3, File No. 33-62787 and
incorporated by reference herein).
4.21 Form of Senior Indenture (Exhibit 4.8 to the Company's
registration statement on Form S-3, File No. 33-62787 and
incorporated by reference herein).
4.22 Form of Standard Stock Warrant Provisions (Exhibit 4.9 to the
Company's registration statement on Form S-3, File No.
33-62787 and incorporated by reference herein).
4.23 Form of Debt Securities Warrant Agreement (Exhibit 4.10 to the
Company's registration statement on Form S-3, File No.
33-62787 and incorporated by reference herein).
4.24 Form of Deposit Agreement (Exhibit 4.11 to the Company's
registration statement on Form S- 3, File No. 33-62787 and
incorporated by reference herein).
4.25 Form of Subordinated Indenture (Exhibit 4.12 to the Company's
registration statement on Form S-3, File No. 33-62787 and
incorporated by reference herein).
4.26 Form of Preferred Securities Guarantee Agreement (Exhibit 4.13
to the Company's registration statement on Form S-3, File No.
33-62787 and incorporated by reference herein).
4.27 Form of Stock Purchase Contract Agreement (Exhibit 4.14 to the
Company's registration statement on Form S-3, File No.
33-62787 and incorporated by reference herein).
4.28 Form of Master Unit Agreement.
4.29 Form of Master Unit Pledge Agreement.
4.30 Form of Call Option Agreement.
5.1(a) Opinion of Margaret G. Gill.
5.1(b) Opinion of Morris, Nichols, Arsht & Tunnell (ATI Financing I).
5.1(c) Opinion of Morris, Nichols, Arsht & Tunnell (ATI Financing
II).
12.1 Statement re Computation of Ratios.
15.1 Letter of Price Waterhouse LLP re: Unaudited Interim Financial
Information.
23.1 Consent of Price Waterhouse LLP.
23.2 Consent of Ernst & Young LLP (CCI).
23.3 Consent of KPMG Deutsche Treuhand-Gesellschaft (Mannesmann
Mobilfunk GmbH).
23.4 Consent of Coopers & Lybrand LLP (CMT Partners).
23.5 Consent of Ernst & Young LLP (New Par).
23.6 Consent of Arthur Andersen LLP (Kansas Combined Cellular).
23.7 Consent of Arthur Andersen LLP (US WEST NewVector Group,
Inc.).
23.8 Consent of Margaret G. Gill (included in Exhibit 5.1(a)).
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23.9 Consent of Morris, Nichols, Arsht & Tunnell (included in
Exhibits 5.1(b) and 5.1(c)).
24.1 Power of Attorney (AirTouch Communications, Inc.) (included on
page II-6).
24.2 Power of Attorney (ATI Financing I) (included on page II-8).
24.3 Power of Attorney (ATI Financing II) (included on page II-8).
ITEM 17. UNDERTAKINGS.
AirTouch Communications, Inc., ATI Financing I and ATI Financing II
(the "Registrants") hereby undertake:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high and of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change
in the maximum aggregate offering price set forth in the "Calculation
of Registration Fee" table in the effective Registration Statement.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that paragraphs (i) and (ii) above do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by AirTouch Communications, Inc. pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 that are incorporated by reference
in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
The Registrants hereby undertake that, for purposes of determining any
liability under the Securities Act of 1933, each filing of AirTouch
Communications, Inc.'s annual report pursuant to Section 13(a) or Section 15(d)
of the Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
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ATI Financing I and ATI Financing II each hereby undertakes to provide
to the underwriter at the closing specified in the underwriting agreements,
certificates in such denominations and registered in such names as required by
the underwriter to permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrants pursuant to the provisions described in Item 15 or otherwise,
the Registrants have been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act of 1933 and is, therefore, unenforceable. If a claim for
indemnification against such liabilities (other than the payment by the
Registrants of expenses incurred or paid by a director, officer or controlling
person of the Registrants in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrants, will, unless
in the opinion of counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
The Registrants hereby undertake to file an application for the purpose
of determining the eligibility of the trustee to act under Subsection (a) of
Section 310 of the Trust Indenture Act of 1939 in accordance with the rules and
regulations prescribed by the Commission under Section 305(b)(2) of the Trust
Indenture Act of 1939.
The Registrants hereby undertake that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part of
this Registration Statement in reliance upon Rule 430A and contained in a form
of Prospectus filed by the Registrants pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act of 1933 shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of Prospectus
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
II-6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, hereunto duly
authorized, in the City of San Francisco, State of California, on June 11, 1998.
AIRTOUCH COMMUNICATIONS, INC.
By /s/ Mohan S. Gyani
--------------------------------------
Mohan S. Gyani
Executive Vice President and
Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each of the undersigned hereby
constitutes and appoints Sam Ginn, Margaret G. Gill, Mohan S. Gyani, Arun Sarin
and each of them, his/her attorneys for him/her in his/her stead, in each of
his/her offices and capacities as an officer, director, or both of the Company,
to sign and to file with the Commission such Registration Statements on Form
S-3, and any and all amendments, modifications, or supplements thereto, and any
exhibits thereto, and grants to each of said attorneys full power and authority
to sign and file any and all other documents and to perform and do all and every
act and thing whatsoever requisite and necessary to be done in and about the
premises as fully, to all intents and purposes, as he/she might or could do if
personally present at the doing thereof, and hereby ratifies and confirms all
that said attorneys may or shall lawfully do, or cause to be done, by virtue
hereof in connection with the registration of the aforesaid securities.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons and in the
capacities indicated on the 11th day of June, 1998.
Name Title
---- -----
/s/ Sam Ginn Chairman of the Board and Chief Executive
- ------------------------------ Officer (principal executive officer)
Sam Ginn
/s/ Mohan S. Gyani Executive Vice President and Chief Financial
- ------------------------------ Officer (principal financial officer and
Mohan S. Gyani principal accounting officer)
/s/ Arun Sarin President, Chief Operating Officer and
- ------------------------------ Director
Arun Sarin
/s/ Carol A. Bartz Director
- ------------------------------
Carol A. Bartz
II-7
<PAGE>
Name Title
---- -----
/s/ C. Lee Cox Director
- ------------------------------
C. Lee Cox
/s/ Michael D. Boskin Director
- ------------------------------
Michael D. Boskin
/s/ Donald G. Fisher Director
- ------------------------------
Donald G. Fisher
Director
- ------------------------------
Paul Hazen
/s/ Arthur Rock Director
- ------------------------------
Arthur Rock
Director
- ------------------------------
Charles R. Schwab
/s/ George P. Schultz Director
- ------------------------------
George P. Shultz
/s/ Chang Lin Tien Director
- ------------------------------
Chang Lin Tien
II-8
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of ATI
Financing I and ATI Financing II, certifies that it has reasonable grounds to
believe that it meets all the requirements for filing on Form S-3 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, hereunto duly authorized, in the City of San Francisco, State of
California, on June 11, 1998.
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each of the undersigned hereby
constitutes and appoints Sam Ginn, Mohan S. Gyani, Margaret G. Gill and each of
them, his/her attorneys for him/her in his/her stead, in each of his/her offices
and capacities as an administrator of ATI Financing I and ATI Financing II, to
sign and to file with the Commission such Registration Statements on Form S-3,
and any and all amendments, modifications or supplements thereto, and any
exhibits thereto, and grants to each of said attorneys full power and authority
to sign and file any and all other documents and to perform and do all and every
act and thing whatsoever requisite and necessary to be done in and about the
premises as fully, to all intents and purposes, as he/she might or could do if
personally present at the doing thereof, and hereby ratifies and confirms all
that said attorneys may or shall lawfully do, or cause to be done, by virtue
hereof in connection with the registration of the aforesaid securities.
ATI Financing I
By /s/ Sam Ginn
-------------------------------------
Sam Ginn, Trustee
By /s/ Mohan S. Gyani
-------------------------------------
Mohan S. Gyani, Trustee
By /s/ Margaret G. Gill
-------------------------------------
Margaret G. Gill, Trustee
ATI Financing II
By /s/ Sam Ginn
-------------------------------------
Sam Ginn, Trustee
By /s/ Mohan S. Gyani
-------------------------------------
Mohan S. Gyani, Trustee
By /s/ Margaret G. Gill
-------------------------------------
Margaret G. Gill, Trustee
II-9
<PAGE>
EXHIBIT INDEX
1.1 Form of Underwriting Agreement (Debt Securities).
1.2 Form of Underwriting Agreement (Equity Securities).
4.1 Certificate of Incorporation of the Company, as filed with the
Secretary of State of the State of Delaware on September 19,
1994 (Exhibit 3.1 to the Company's Current Report on Form 8-K
Date of Report: December 15, 1994, File No. 1-12342 and
incorporated by reference herein).
4.2 Amended By-laws of the Company as of June 13, 1996 (Exhibit 3
to the Company's Quarterly Report on Form 10-Q for the period
ended June 30, 1996, File No. 1-12342 and incorporated by
reference herein).
4.3 Form of Common Stock certificate (Exhibit 4.1 to the Company's
Annual Report on Form 10-K for the year ended December 31,
1994, File No. 1-12342 and incorporated by reference herein).
4.4 Designation, Preferences and Rights of Series A Participating
Preferred Stock of the Company, as filed with the Secretary of
State of the State of Delaware on December 15, 1994 (Exhibit
3.2 to the Company's Form 8-B, File No. 1-12342, filed January
27, 1995 and incorporated by reference herein).
4.5 Certificate of Designation, Preferences and Rights of Class B
Preferred Stock, Series 1996 (Exhibit 4.3 to the Company's
Annual Report on Form 10-K for the year ended December 31,
1996, File No. 1-12342 and incorporated by reference herein).
4.6 Certificate of Designation, Preferences and Rights of Class C
Preferred Stock, Series 1996 (Exhibit 4.4 to the Company's
Annual Report on Form 10-K for the year ended December 31,
1996, File No. 1-12342 and incorporated by reference herein).
4.7 Certificate of Designation, Preferences and Rights of 5.143%
Class D Cumulative Preferred Stock (Exhibit 3.1 to the
Company's Current Report on Form 8-K, Date of Report: April 6,
1998, File No. 1-12342 and incorporated by reference herein).
4.8 Certificate of Designation, Preferences and Rights of 5.143%
Class E Cumulative Preferred Stock (Exhibit 3.2 to the
Company's Current Report on Form 8-K, Date of Report: April 6,
1998, File No. 1-12342 and incorporated by reference herein).
4.9 Rights Agreement between the Company and The Bank of New York,
Rights Agent, dated as of September 19, 1994 (Exhibit 4 to the
Company's Current Report on Form 8-K - Date of Report:
December 15, 1994, File No. 1-12342 and incorporated by
reference herein).
4.10 Amendment No. 1 to Rights Agreement between the Company and
The Bank of New York, Rights Agent, dated as of January 29,
1998 (Exhibit 4.3 to the Company's Annual Report on Form 10-K
for the year ended December 31, 1997, File No. 1-12342 and
incorporated by reference herein).
4.11 Indenture dated as of July 16, 1996 between the Company and
The First National Bank of Chicago, as trustee (Exhibit 4.1 to
the Company's Quarterly Report on Form 10-Q for the period
ended June 30, 1996, File No. 1-12342 and incorporated by
reference herein).
II-10
<PAGE>
4.12 First Supplemental Indenture dated as of July 16, 1996 between
the Company and The First National Bank of Chicago, as trustee
(Exhibit 4.1 to the Company's Current Report on Form 8-K, Date
of Report: July 3, 1996, File No. 1-12342 and incorporated by
reference herein).
4.13 Second Supplemental Indenture dated as of July 16, 1996
between the Company and The First National Bank of Chicago, as
trustee (Exhibit 4.1 to the Company's Current Report on Form
8-K, Date of Report: July 11, 1996, File No. 1-12342 and
incorporated by reference herein).
4.14 Third Supplemental Indenture dated as of October 7, 1996
between the Company and The First National Bank of Chicago, as
trustee (Exhibit 4.1 to the Company's Current Report on Form
8-K: Date of Report: October 2, 1996, File No. 1-12342 and
incorporated by reference herein).
4.15 Fourth Supplemental Indenture dated as of May 4, 1998 between
the Company and The First National Bank of Chicago, as trustee
(Exhibit 4.1 to the Company's Current Report on Form 8-K, Date
of Report: April 29, 1998, File No. 1-12342 and incorporated
by reference herein).
4.16 Fifth Supplemental Indenture dated as of June 3, 1998 between
the Company and The First National Bank of Chicago, as trustee
(Exhibit 4.1 to the Company's Current Report on Form 8-K, Date
of Report: May 29, 1998, File No. 1-12342 and incorporated by
reference herein).
4.17 Certificate of Trust of ATI Financing I (Exhibit 4.4 to the
Company's registration statement on Form S-3, File No.
33-62787 and incorporated by reference herein).
4.18 Certificate of Trust of ATI Financing II (Exhibit 4.5 to the
Company's registration statement on Form S-3, File No.
33-62787 and incorporated by reference herein).
4.19 Form of Amended and Restated Declaration of Trust of ATI
Financing I and ATI Financing II (Exhibit 4.6 to the Company's
registration statement on Form S-3, File No. 33-62787 and
incorporated by reference herein).
4.20 Form of Pledge Agreement (Exhibit 4.7 to the Company's
registration statement on Form S-3, File No. 33-62787 and
incorporated by reference herein).
4.21 Form of Senior Indenture (Exhibit 4.8 to the Company's
registration statement on Form S-3, File No. 33-62787 and
incorporated by reference herein).
4.22 Form of Standard Stock Warrant Provisions (Exhibit 4.9 to the
Company's registration statement on Form S-3, File No.
33-62787 and incorporated by reference herein).
4.23 Form of Debt Securities Warrant Agreement (Exhibit 4.10 to the
Company's registration statement on Form S-3, File No.
33-62787 and incorporated by reference herein).
4.24 Form of Deposit Agreement (Exhibit 4.11 to the Company's
registration statement on Form S- 3, File No. 33-62787 and
incorporated by reference herein).
4.25 Form of Subordinated Indenture (Exhibit 4.12 to the Company's
registration statement on Form S-3, File No. 33-62787 and
incorporated by reference herein).
4.26 Form of Preferred Securities Guarantee Agreement (Exhibit 4.13
to the Company's registration statement on Form S-3, File No.
33-62787 and incorporated by reference herein).
4.27 Form of Stock Purchase Contract Agreement (Exhibit 4.14 to the
Company's registration statement on Form S-3, File No.
33-62787 and incorporated by reference herein).
4.28 Form of Master Unit Agreement.
II-11
<PAGE>
4.29 Form of Master Unit Pledge Agreement.
4.30 Form of Call Option Agreement.
5.1(a) Opinion of Margaret G. Gill.
5.1(b) Opinion of Morris, Nichols, Arsht & Tunnell (ATI Financing I).
5.1(c) Opinion of Morris, Nichols, Arsht & Tunnell (ATI Financing
II).
12.1 Statement re Computation of Ratios.
15.1 Letter of Price Waterhouse LLP re: Unaudited Interim Financial
Information.
23.1 Consent of Price Waterhouse LLP.
23.2 Consent of Ernst & Young LLP (CCI).
23.3 Consent of KPMG Deutsche Treuhand-Gesellschaft (Mannesmann
Mobilfunk GmbH).
23.4 Consent of Coopers & Lybrand LLP (CMT Partners).
23.5 Consent of Ernst & Young LLP (New Par).
23.6 Consent of Arthur Andersen LLP (Kansas Combined Cellular).
23.7 Consent of Arthur Andersen LLP (US WEST NewVector Group,
Inc.).
23.8 Consent of Margaret G. Gill (included in Exhibit 5.1(a)).
23.9 Consent of Morris, Nichols, Arsht & Tunnell (included in
Exhibits 5.1(b) and 5.1(c)).
24.1 Power of Attorney (AirTouch Communications, Inc.) (included on
page II-6).
24.2 Power of Attorney (ATI Financing I) (included on page II-8).
24.3 Power of Attorney (ATI Financing II) (included on page II-8).
II-12
EXHIBIT 1.1
================================================================================
AIRTOUCH COMMUNICATIONS, INC.
DEBT SECURITIES
--------------------------
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
================================================================================
<PAGE>
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:
-1-
<PAGE>
(a) AirTouch meets the requirements for the use of Form S-3 and a
registration statement on Form S-3 (Registration No. 333-__________, 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 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
-2-
<PAGE>
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.
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 New York Clearing House
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
-3-
<PAGE>
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 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.
(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,
-4-
<PAGE>
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 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 any debt securities of AirTouch
substantially similar to the Designated Securities covered by this Agreement,
without the prior written consent of such Representative or such Underwriters.
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 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 LLP, 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 any executive officer of AirTouch, to the effect that the
signer of such certificate has carefully examined the Registration Statement,
the Prospectus and this Agreement and that:
-5-
<PAGE>
(i) 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
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;
(ii) 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
(iii) 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 [Ernst &Young 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 [Ernst & Young 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 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 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
been any decrease in the ratings of any of AirTouch's debt securities by any
"nationally recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the 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
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<PAGE>
(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 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, officers, employees and agents, 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 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 that, if the defendants in any such action
include both the indemnified party and the indemnifying party, and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel, to assert such
legal defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. 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
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<PAGE>
have employed separate counsel in connection with the assertion of legal
defenses in accordance with the proviso to the next preceding sentence (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 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) 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. For purposes of this Section 7, each person who controls an
Underwriter within the meaning of either the Act or the Exchange Act 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 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).
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<PAGE>
8. TERMINATION. This Agreement shall be subject to termination in the
absolute discretion of the Underwriters or the Representative, as the case may
be, by written notice given to AirTouch prior to delivery of and payment for the
Designated Securities, 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 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
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<PAGE>
persons referred to in Section 7 hereof, and no other person will have any right
or obligation hereunder.
12. APPLICABLE LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
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<PAGE>
EXHIBIT A
---------
[FORM OF PILLSBURY MADISON & SUTRO LLP OPINION]
[Date]
Underwriter(s)
Ladies and Gentlemen:
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. AirTouch is validly existing and in good standing under the laws of
the State of Delaware and is duly qualified and in good standing to do business
in each other state identified in Attachment I hereto and possesses the
requisite corporate power and authority to own its properties and conduct its
business consistent with any description thereof in the prospectus dated
__________ and the prospectus supplement dated _________, filed with the
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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").
2. The Underwriting Agreement has been duly authorized, executed and
delivered by AirTouch.
3. 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.
4. 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 Designated Securities have been executed
and authenticated in accordance with the provisions of the Indenture they will
be entitled to the benefits of the Indenture.
5. The Registration Statement on Form S-3 (File No. 333-__________)
filed by AirTouch with the Commission under Rule 415 of the Act on ____________,
1998 (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 or Securities or 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 any provision
of the Restated Certificate of Incorporation, as amended, or Bylaws of AirTouch,
any Federal law or regulation or, to the best of our knowledge, any applicable
state law or any material agreement or instrument binding upon AirTouch.
6. 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 Designated
Securities, except (A) such as have been obtained and made under the Act or the
Exchange Act, or the rules and regulations thereunder, 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.
7. 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 arbitration involving AirTouch or any of its subsidiaries of a
character required to be disclosed in the
A-2
<PAGE>
Registration Statement which is not adequately disclosed in the Prospectus or
supplement relating thereto.
8. 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 Securities Exchange Act of 1934, as amended (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; the statements in the Prospectus
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 therein; and while we
have not ourselves checked the accuracy or completeness of, or otherwise
verified the information furnished in the Registration Statement, 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
discussions, but without independent checking or verification, we have no reason
to believe that the Registration Statement or any amendment thereto at the time
the Registration Statement or amendment 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 such 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 the light of the
circumstances in which they were made, not misleading; it being understood that
with respect to the matters covered by this paragraph 8, we express no opinion
as to the financial statements and related schedules and other financial,
statistical or numerical data contained in the Registration Statement or the
Prospectus.
The opinions set forth in the foregoing are subject to the following
qualifications:
(a) Our opinions in paragraph 3 and 4 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 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.
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(b) 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,
A-4
EXHIBIT 1.2
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AIRTOUCH COMMUNICATIONS, INC.
EQUITY SECURITIES
---------------
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
================================================================================
<PAGE>
AIRTOUCH COMMUNICATIONS, INC.
EQUITY 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 equity 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. 333-_____), 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 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 (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
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<PAGE>
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 (i) if AirTouch has not advised the Representative
that is 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 (ii) 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 proposed 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 thereunder; on the Effective
Date neither the Registration Statement 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 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.
3. DELIVERY PAYMENT. Delivery of and payment for the Designated
Securities shall be made at the office, 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 New York Clearing House 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
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<PAGE>
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 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.
(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 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
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<PAGE>
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 any Designated Securities of AirTouch,
or securities convertible into or exchangeable for Designated Securities,
without the prior written consent of such Representative or such Underwriters.
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 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 LLP, 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 any executive officer of AirTouch, to the effect that the
signer of such certificate has carefully examined the Registration Statement,
the Prospectus and this Agreement and that:
(i) 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
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;
(ii) 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
(iii) Since the date of the most recent financial statements
included in or incorporated by reference into 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.
(e) The Underwriters or the Representative, as the case may be, shall
have received from Ernst & Young 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 Ernst & Young 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 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 the Underwriters or the Representative, as the case may be, concludes, in
its judgment, after consultation with
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<PAGE>
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 been any decrease in the ratings of any of AirTouch's
debt securities by any "nationally recognized statistical rating organization"
(as defined for purposes of Rule 436(g) under the 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 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, officers, employees and agents, 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 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 that, if the defendants in any such action
include both the indemnified party and the indemnifying party, and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel, to assert such
legal defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. 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 in accordance with the proviso to the next preceding
sentence (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
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<PAGE>
party to represent the indemnified party within a reasonable time after notice
of commencement of the 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) 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. For purposes of this Section 7, each person who controls an
Underwriter within the meaning of either the Act or the Exchange Act 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 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, by written notice given to AirTouch prior to delivery of and payment for the
Designated Securities, 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 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 S(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
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<PAGE>
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.
12. APPLICABLE LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
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<PAGE>
EXHIBIT A
[FORM OF PILLSBURY MADISON & SUTRO LLP 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. AirTouch is validly existing and in good standing under the laws of
the State of Delaware and is duly qualified and in good standing to do business
in each other state identified in Attachment I hereto and possesses the
requisite corporate power and authority to own its properties and conduct its
business consistent with any description thereof in the prospectus dated _____
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").
2. The Underwriting Agreement has been duly authorized, executed and
delivered by AirTouch.
3. The [Common/Preferred] Stock has been duly authorized and validly
issued, and when paid for in accordance with the terms of the Underwriting
Agreement, will be fully paid and nonassessable and/or the [Securities] have
been duly authorized, executed and delivered by AirTouch and constitute valid
and binding obligations of AirTouch, enforceable in accordance with their terms.
4. The Registration Statement of Form S-3 (File No. _______) filed by
AirTouch with the Commission under Rule 415 of the Act on _________, 1995 (such
Registration Statement including the documents incorporated
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<PAGE>
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 or Securities or 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 any provision
of the Restated Certificate of Incorporation, as amended, or By-Laws of
AirTouch, any Federal law or regulation or, to the best of our knowledge, any
applicable state law or any material agreement or instrument binding upon
AirTouch.
5. 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 Designated
Securities, except (i) such as have been obtained and made under the Act or the
Exchange Act, or the rules and regulations thereunder, the bylaws and rules of
the National Association of Securities Dealers, Inc. and (ii) such as may be
required under state or foreign securities laws.
6. 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 or supplement relating thereto.
7. 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 Securities Exchange Act of 1934, as amended (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; the statements in the Prospectus
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 therein; and while we
have not ourselves checked the accuracy or completeness of, or otherwise
verified the information furnished in the Registration Statement, 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
discussions, but without independent checking or verification, we have no reason
to believe that the Registration Statement or any amendment thereto at the time
the Registration Statement or amendment 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 such 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 the light of the
circumstances in which they were made, not misleading; it being understood that
with respect to the matters covered by this paragraph 7, we express no opinion
as to the financial statements and related schedules and other financial,
statistical or numerical data contained in the Registration Statement or the
Prospectus.
The opinions set forth in the foregoing are subject to the following
qualifications:
(a) Our opinions in paragraph 3 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 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
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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.
(b) 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,
A-3
Exhibit 4.28
================================================================================
AIRTOUCH COMMUNICATIONS, INC.
AND
------------------
as Unit Agent
---------------------
MASTER UNIT AGREEMENT
---------------------
Dated as of ___________, 19__
================================================================================
<PAGE>
TABLE OF CONTENTS
-----------------
Page
----
1. Definitions and Other Provisions of General Application...............1
1.1 Definitions..................................................1
1.2 Compliance Certificates and Opinions.........................8
1.3 Form of Documents Delivered to Unit Agent....................8
1.4 Acts of Holders; Record Dates................................9
1.5 Notices, etc............................................... 10
1.6 Notice to Holders; Waiver.................................. 11
1.7 Effect of Headings and Table of Contents................... 11
1.8 Successors and Assigns..................................... 11
1.9 Separability Clause........................................ 11
1.10 Benefits of Agreement...................................... 11
1.11 Governing Law.............................................. 11
1.12 Legal Holidays............................................. 11
1.13 Counterparts............................................... 12
1.14 Inspection of Agreement.................................... 12
2. Unit Certificate Forms.............................................. 12
2.1 Forms of Unit Certificates Generally....................... 12
2.2 Form of Agent's Certificate of Authentication.............. 13
3. The Units........................................................... 13
3.1 Title and Terms; Denominations............................. 13
3.2 Rights and Obligations Evidenced by the Unit Certificates.. 13
3.3 Execution, Authentication, Delivery and Dating............. 13
3.4 Temporary Unit Certificates................................ 14
3.5 Registration; Registration of Transfer and Exchange........ 14
3.6 Mutilated, Destroyed, Lost and Stolen Unit Certificates.... 16
3.7 Persons Deemed Owners...................................... 17
3.8 Cancellation............................................... 18
3.9 Substitution of Pledged Securities and Creation
of Stripped Units; Units Not Otherwise Separable........... 18
3.10 Payments on the Units...................................... 20
4. The Pledged Securities.............................................. 20
4.1 Payments on the Pledged Securities......................... 20
4.2 Transfer of Pledged Securities Upon Occurrence of
Termination Event.......................................... 21
5. The Purchase Contracts.............................................. 22
5.1 Purchase of Shares of Common Stock......................... 22
5.2 Contract Fees.............................................. 23
5.3 Deferral of Payment Dates For Contract Fee................. 24
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5.4 Payment of Purchase Price.................................. 25
5.5 Issuance of Shares of Common Stock......................... 26
5.6 Adjustment of Settlement Rate.............................. 27
5.7 Notice of Adjustments and Certain Other Events............. 32
5.8 No Fractional Shares....................................... 33
5.9 Charges and Taxes.......................................... 33
5.10 Termination Event; Notice.................................. 34
6. Remedies............................................................ 34
6.1 Unconditional Rights of Holders............................ 34
6.2 Restoration of Rights and Remedies......................... 34
6.3 Rights and Remedies Cumulative............................. 34
6.4 Delay or Omission Not Waiver............................... 34
6.5 Undertaking for Costs...................................... 35
6.6 Waiver of Stay or Extension Laws........................... 35
7. The Unit Agent...................................................... 35
7.1 Certain Duties and Responsibilities........................ 35
7.2 Notice of Default.......................................... 36
7.3 Certain Rights of Unit Agent............................... 36
7.4 Not Responsible for Recitals or Issuance of Units.......... 37
7.5 May Hold Units............................................. 37
7.6 Money Held in Trust........................................ 37
7.7 Compensation and Reimbursement............................. 37
7.8 Corporate Unit Agent Required; Eligibility................. 38
7.9 Resignation and Removal; Appointment of Successor.......... 38
7.10 Acceptance of Appointment by Successor..................... 39
7.11 Merger, Conversion, Consolidation or Succession to
Business................................................... 40
7.13 No Obligations of Unit Agent............................... 40
7.14 Tax Compliance............................................. 41
8. Supplemental Agreements............................................. 41
8.1 Supplemental Agreements Without Consent of Holders......... 41
8.2 Supplemental Agreements with Consent of Holders............ 42
8.3 Execution of Supplemental Agreements....................... 43
8.4 Effect of Supplemental Agreements.......................... 43
8.5 Reference to Supplemental Agreements....................... 43
9. Consolidation, Merger, Sale or Conveyance........................... 43
9.1 Covenant Not to Merge, Consolidate, Sell or Convey
Property Except Under Certain Conditions................... 43
9.2 Rights and Duties of Successor Corporation................. 44
9.3 Opinion of Counsel to Unit Agent........................... 44
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10. Covenants........................................................... 44
10.1 Performance Under Purchase Contracts....................... 44
10.2 Maintenance of Office or Agency............................ 44
10.3 Company to Reserve Common Stock............................ 45
10.4 Covenants as to Common Stock............................... 45
10.5 Statements of Officers of the Company as to Default........ 45
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<PAGE>
MASTER UNIT AGREEMENT
---------------------
THIS MASTER UNIT AGREEMENT, dated as of __________, 199__, between
AIRTOUCH COMMUNICATIONS, INC., a Delaware corporation (the "Company"), and
_________________, a New York banking corporation, acting as unit agent for the
Holders of Units from time to time (the "Unit Agent").
RECITALS
The Company has duly authorized the execution and delivery of this
Agreement and the Unit Certificates evidencing the Units.
All things necessary to make the Company's obligations under the Units,
when the Unit Certificates are executed by the Company and authenticated,
executed on behalf of the Holders and delivered by the Unit Agent, as in this
Agreement provided, the valid obligations of the Company, and to constitute
these presents a valid agreement of the Company, in accordance with its terms,
have been done.
W I T N E S S E T H :
For and in consideration of the premises and the purchase of the Units
by the Holders thereof, it is mutually agreed as follows:
1. DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION.
1.1 DEFINITIONS. For all purposes of this Agreement, except as
otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular; and
(b) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section or other subdivision.
"Act" has the meaning specified in Section 1.4.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
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"Unit Agent" means the Person named as the "Unit Agent" in the first
paragraph of this instrument until a successor Unit Agent shall have become such
pursuant to the applicable provisions of this Agreement, and thereafter "Unit
Agent" shall mean the Person who is then the Unit Agent hereunder.
"Agreement" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more agreements
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Applicable Market Value" has the meaning specified in Section 5.1.
"Board of Directors" means the board of directors of the Company or a
duly authorized committee of that board.
"Board Resolution" means one or more resolutions of the Board of
Directors, a copy of which has been certified by the Secretary or an Assistant
Secretary of the Company to have been duly adopted by the Board of Directors and
to be in full force and effect on the date of such certification and delivered
to the Unit Agent.
"Business Day" means any day that is not a Saturday, Sunday or a day on
which banking institutions or trust companies in The City of New York are
authorized or obligated by law or executive order to be closed.
"Call Option" means an option entitling the Call Option Holder to
acquire the QUIPS or Junior Subordinated Debentures underlying the related
Normal Unit on the terms and subject to the conditions set forth in the Call
Option Agreement.
"Call Option Agreement" means the Call Option Agreement, dated as of
the date hereof, between the Call Option Holder named therein and the Unit
Agent, on its own behalf and as attorney-in-fact for the Holders from time to
time of the Normal Units, the form of which is attached hereto as Exhibit C, as
the same may be amended from time to time in accordance with the terms hereof
and thereof.
"Call Option Holder" means the Person named as the Call Option Holder
in the Call Option Agreement.
"Call Settlement Date" means the date on which the Call Options are
settled pursuant to the Call Option Agreement.
"Closing Price" has the meaning specified in Section 5.1.
"Collateral Agent" means __________________, as Collateral Agent under
the Pledge Agreement, until a successor Collateral Agent shall have become such
pursuant to the applicable provisions of the Pledge Agreement, and thereafter
"Collateral Agent" shall mean the Person who is then the Collateral Agent
thereunder.
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"Common Stock" means the Common Stock, par value $.01 per share, of the
Company.
"Company" means the Person designated as the "Company" in the first
paragraph of this instrument until a successor shall have become such, and
thereafter "Company" shall mean such successor.
"Contract Fee" means, with respect to each Purchase Contract, a fee
payable [TO] [BY] the Company [BY] [TO] the Holder of the related Unit, accruing
on the Stated Amount of such Unit from and including the date of first issuance
of any Units to but excluding the Stock Purchase Date and payable quarterly in
arrears on each Quarterly Payment Date to and including the Stock Purchase Date
at a rate per annum equal to the Contract Fee Rate (and computed on the basis of
a 360-day year of twelve 30-day months), plus any additional fees accrued
thereon pursuant to Section 5.3.
"Contract Fee Rate" means ____%.
"Corporate Trust Office" means the principal office of the Unit Agent
in the Borough of Manhattan, The City of New York, at which at any particular
time its corporate trust business shall be administered, which office at the
date hereof is located at _______________, New York, New York _______.
"Current Market Price" has the meaning specified in Section 5.6(a)(8).
"Declaration" means the Declaration of Trust, dated as of February 10,
1998 and amended and restated as of the date hereof, executed by the Company and
certain trustees of the Trust, as the same may be amended or supplemented from
time to time in accordance with the terms thereof.
"Depositary" means a clearing agency registered under the Exchange Act
that is designated to act as Depositary for the Units as contemplated by Section
3.5.
"Exchange Act" means the Securities Exchange Act of 1934 or any statute
successor thereto, in each case as amended from time to time.
"Excess Treasury Securities" has the meaning specified in Section 4.2.
"Expiration Date" has the meaning specified in Section 1.4.
"Expiration Time" has the meaning specified in Section 5.6(a)(6).
"Global Unit Certificate" means a Unit Certificate that evidences all
or part of the Normal Units or a Unit Certificate that evidences all or a part
of the Stripped Units and is registered in the name of the Depositary or a
nominee thereof.
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"Holder" means a Person in whose name a Unit Certificate is registered
in the Unit Register; "Holder", when used with respect to any particular Unit
Certificate (or Unit), means a Person in whose name such Unit Certificate (or
the Unit Certificate evidencing such Unit) is registered in the relevant Unit
Register.
"Indenture" means the Indenture, dated as of the date hereof, between
the Company and _________________, as Trustee, as the same may be amended or
supplemented from time to time in accordance with the terms thereof.
"Issuer Order" or "Issuer Request" means a written order or request
signed in the name of the Company by its Chairman of the Board, any Vice
Chairman, its President or a Vice President and by its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary, and delivered to the Unit
Agent.
"Junior Subordinated Debenture Put Option" has the meaning specified
for the term "Put Option" in the Indenture.
"Junior Subordinated Debentures" means the ___% Junior Subordinated
Deferrable Interest Debentures due [________________, 2003] of the Company
issued under the Indenture.
"Normal Unit" means the rights to purchase Common Stock under a
Purchase Contract, together with ownership of the QUIPS or other Pledged
Securities pledged to secure the obligations referred to in (a) and (b) below,
subject to (a) the obligations owed to the Company under such Purchase Contract,
(b) for so long as any Call Options remain exercisable, the obligations owed to
the Call Option Holder under a Call Option and (c) the pledge arrangements
securing the foregoing obligations; provided, however, that the term "Normal
Unit" will not include any Stripped Unit.
"NYSE" has the meaning specified in Section 5.1.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, any Vice Chairman, the President or any Vice President and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of
the Company and delivered to the Unit Agent.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel, who may be an employee of or counsel to the Company.
"Outstanding Unit Certificates" means, as of the date of determination,
all Unit Certificates theretofore authenticated, executed and delivered pursuant
to this Agreement, except:
(a) Unit Certificates theretofore canceled by the Unit Agent or
delivered to the Unit Agent for cancellation; and
(b) Unit Certificates in exchange for or in lieu of which other Unit
Certificates have been authenticated, executed on behalf of the Holder and
delivered pursuant to this Agreement, other
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than any such Unit Certificate in respect of which there shall have been
presented to the Unit Agent proof satisfactory to it that such Unit Certificate
is held by a bona fide purchaser in whose hands the Units evidenced by such Unit
Certificate are valid obligations of the Company.
"Outstanding Units" means, as of the date of determination, all Units
evidenced by then Outstanding Unit Certificates, except, if the Termination Date
or Stock Purchase Date has passed, Units for which the underlying Pledged
Securities or the Common Stock purchasable upon settlement of the underlying
Purchase Contracts, as the case may be, have been theretofore deposited with the
Unit Agent in trust for the Holders of such Units; provided, however, that in
determining whether the Holders of the requisite number of Units have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Units owned by the Company or any Affiliate of the Company shall be disregarded
and deemed not to be outstanding, except that, in determining whether the Unit
Agent shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Units which the Unit
Agent knows to be so owned shall be so disregarded. Units so owned which have
been pledged in good faith may be regarded as Outstanding Units if the pledges
establishes to the satisfaction of the Unit Agent the pledgee's right so to act
with respect to such Units and that the pledgee is not the Company or any
Affiliate of the Company.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Pledge" means the pledge of the Pledged Securities under the Pledge
Agreement.
"Pledge Agreement" means the Pledge Agreement, dated as of the date
hereof, among the Company, the Call Option Holder, the Collateral Agent and the
Unit Agent, on its own behalf and as attorney-in-fact for the Holders from time
to time of the Units, the form of which is attached hereto as Exhibit D, as the
same may be amended from time to time in accordance with the terms hereof and
thereof.
"Pledged Securities" means the securities pledged to the Collateral
Agent pursuant to the Pledge and constituting a part of the Units.
"Predecessor Unit Certificate" of any particular Unit Certificate means
every previous Unit Certificate evidencing all or a portion of the rights and
obligations of the Holder under the Units evidenced thereby; and, for the
purposes of this definition, any Unit Certificate authenticated and delivered
under Section 3.6 in exchange for or in lieu of a mutilated, destroyed lost or
stolen Unit Certificate shall be deemed to evidence the same rights and
obligations of the Holder as the mutilated, destroyed, lost or stolen Unit
Certificate.
"Principal Agreements" means this Agreement, the Pledge Agreement and
the Call Option Agreement.
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"Purchase Contract" means a contract obligating-the Company to sell and
the Holder of the related Unit to purchase Common Stock on the terms and subject
to the conditions set forth in Article Five hereof.
"Purchase Contract Settlement Fund" has the meaning specified in
Section 5.5.
"Purchased Shares" has the meaning specified in Section 5.6(a)(6).
"Quarterly Payment Date" means each ___________, ___________,
___________, and ___________, commencing __________, 199__.
"QUIPS"(sm)* means ____% Quarterly Income Preferred Securities of the
Trust issued under the Declaration, which term may refer to a single security or
more than one security as the context may require.
"Record Date", when used with respect to any payment date, means the
Business Day next preceding such payment date; provided, however, that if any
Units are no longer evidenced by a Global Unit Certificate, "Record Date", when
used with respect to any payment date for such Units, means the [FIRST DAY
OF][THE FIFTEENTH DAY OF][THE FIFTEENTH DAY OF THE MONTH PRECEDING] the month in
which such payment date falls; and provided further, that if payments are in
respect of QUIPS or Junior Subordinated Debentures underlying Normal Units,
"Record Date", when used with respect to such payments, means the record date
for such payments determined as provided under the Declaration or the Indenture,
as the case may be.
"Reorganization Event" has the meaning specified in Section 5.6(b).
"Responsible Officer", when used with respect to the Unit Agent, means
any officer of the Unit Agent assigned by the Unit Agent to administer its
corporate trust matters.
"Settlement Rate" has the meaning specified in Section 5.1.
"Stated Amount" means $__________ per Unit.
"Stock Purchase Date" means [___________, 2001.]
"Stripped Unit" means the rights to purchase Common Stock under a
Purchase Contract, together with ownership of the Treasury Securities pledged to
secure the obligations referred to in (a) below, subject to (a) the obligations
owed to the Company under such Purchase Contract and (b) the pledge arrangements
securing the foregoing obligations; provided, however, that the term "Stripped
Unit" will only include Units issued as a result of a Stripped Unit Creation as
contemplated by Section 3.9.
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* QUIPS is a servicemark of Goldman, Sachs & Co.
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"Stripped Unit Creation" has the meaning specified in Section 3.9(a).
"Termination Date" means the date, if any, on which a Termination Event
occurs.
"Termination Event" means the occurrence of any of the following events
at any time on or prior to the Stock Purchase Date: (a) a decree or order of a
court having jurisdiction in the premises shall have been entered adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization of the Company under the United States Bankruptcy Code or
any other similar applicable Federal or State law, and, unless such decree or
order shall have been entered within 60 days prior to the Stock Purchase Date,
such decree or order shall have continued undischarged and unstayed for a period
of 60 days, or (b) a decree or order of a court having jurisdiction in the
premises for the appointment of a receiver or liquidator or trustee or assignee
in bankruptcy or insolvency of the Company or of its property, or for the
winding up or liquidation of its affairs, shall have been entered, and, unless
such decree or order shall have been entered within 60 days prior to the Stock
Purchase Date, such decree or order shall have continued undischarged and
unstated for a period of 60 days, or (c) the Company shall institute proceedings
to be adjudicated a bankrupt, or shall consent to the filing of a bankruptcy
proceeding against it, or shall file a petition or answer or consent seeking
reorganization under the United States Bankruptcy Code or any other similar
applicable Federal or State law, or shall consent to the filing of any such
petition, or shall consent to the appointment of a receiver or liquidator or
trustee or assignee in bankruptcy or insolvency of it or of its property, or
shall make an assignment for the benefit of creditors, or shall admit in writing
its inability to pay its debts generally as they become due.
"Threshold Appreciation Price" has the meaning specified in Section
5.1.
"TIA" means the Trust Indenture Act of 1939 or any statute successor
thereto, in each case as amended from time to time.
"Trading Day" has the meaning specified in Section 5.1.
"Treasury Securities" means United States Treasury Securities.
"Trust" means [ATI FINANCING], a statutory business trust
created under the laws of the State of Delaware.
"Underwriting Agreement" means the Underwriting Agreement dated
__________, 199_ among the Company, the Trust and ___________________________,
as the Underwriters named therein.
"Unit Certificate" means a certificate evidencing the rights and
obligations of a Holder in respect of the number of Normal Units or Stripped
Units, as the case may be, specified on such certificate.
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"Unit Register" and "Unit Registrar" have the respective meanings
specified in Section 3.5.
"Units" means the Normal Units and, if any are issued, the Stripped
Units. The Purchase Contracts, Call Options and/or Pledged Securities
constituting a part of any Units are sometimes referred to herein as
"underlying" such Units and are sometimes herein said to "underlie" such Units.
"Vice President" means any vice president, whether or not designated by
a number or a word or words added before or after the title "vice president."
1.2 COMPLIANCE CERTIFICATES AND OPINIONS. Except as otherwise expressly
provided by this Agreement, upon any application or request by the Company to
the Unit Agent to take any action under any provision of this Agreement, the
Company shall furnish to the Unit Agent an Officers' Certificate stating that
all conditions precedent, if any, provided for in this Agreement relating to the
proposed action have been complied with and an Opinion of Counsel stating that,
in the opinion of such counsel, all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Agreement relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Agreement shall include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein relating
thereto;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
1.3 FORM OF DOCUMENTS DELIVERED TO UNIT AGENT. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
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Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Agreement, they may, but need not, be consolidated and
form one instrument.
1.4 ACTS OF HOLDERS; RECORD DATES.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Agreement to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Unit Agent and, where it is hereby expressly required, to the Company.
Such instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Agreement and (subject to Section 7.1) conclusive in favor of the Unit Agent and
the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Unit Agent deems sufficient.
(c) The ownership of Units shall be proved by the Unit Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Unit shall bind every future Holder of
the same Unit and the Holder of every Unit Certificate evidencing such Unit
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, omitted or suffered to be done by the
Unit Agent or the Company in reliance thereon, whether or not notation of such
action is made upon such Unit Certificate.
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(e) The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Units entitled to give, make or take any
request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Agreement to be given, made or taken by
Holders of Units. If any record date is set pursuant to this paragraph, the
Holders of Outstanding Units on such record date, and no other Holders, shall be
entitled to take the relevant action, whether or not such Holders remain Holders
after such record date; provided that no such action shall be effective
hereunder unless taken on or prior to the applicable Expiration Date by Holders
of the requisite number of Outstanding Units on such record date. Nothing in
this paragraph shall be construed to prevent the Company from setting a new
record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be canceled and of no effect),
and nothing in this paragraph shall be construed to render ineffective any
action taken by Holders of the requisite number of Outstanding Units on the date
such action is taken. Promptly after any record date is set pursuant to this
paragraph, the Company, at its own expense, shall cause notice of such record
date, the proposed action by Holders and the applicable Expiration Date to be
given to the Unit Agent in writing and to each Holder of Units in the manner set
forth in Section 1.6.
With respect to any record date set pursuant to this Section, the
Company may designate any date as the "Expiration Date" and from time to time
may change the Expiration Date to any earlier or later day; provided that no
such change shall be effective unless notice of the proposed new Expiration Date
is given to the Unit Agent in writing, and to each Holder of Units in the manner
set forth in Section 1.6, on or prior to the existing Expiration Date. If an
Expiration Date is not designated with respect to any record date set pursuant
to this Section, the Company shall be deemed to have initially designated the
180th day after such record date as the Expiration Date with respect thereto,
subject to its right to change the Expiration Date as provided in this
paragraph. Notwithstanding the foregoing, no Expiration Date shall be later than
the 180th day after the applicable record date.
1.5 NOTICES, ETC. TO UNIT AGENT AND THE COMPANY. Any request, demand,
authorization, direction, notice, consent, waiver or other Act of Holders or
other document provided or permitted by this Agreement to be made upon, given or
furnished to, or filed with,
(a) the Unit Agent by any Holder or by the Company shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
made, given, furnished or filed in writing and personally delivered or mailed,
first-class postage prepaid, to the Unit Agent at _________________, Attention:
______________, or at any other address previously furnished in writing by the
Unit Agent to the Holders and the Company, or
(b) the Company by the Unit Agent or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
made, given, furnished or filed in writing and personally delivered or mailed,
first-class postage prepaid, to the Company at 201 Mission Street, 28th Floor,
San Francisco, California 94105, Attention: ____________, or at any other
address previously furnished in writing by the Company to the Unit Agent and the
Holders.
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1.6 NOTICE TO HOLDERS; WAIVER. Where this Agreement provides for notice
to Holders of any event, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each Holder affected by such event, at his address as it
appears in the Unit Register, not later than the latest date, and not earlier
than the earliest date, prescribed for the giving of such notice. In any case
where notice to Holders is given by mail, neither the failure to mail such
notice nor any defect in any notice so mailed to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders. Where this
Agreement provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Unit Agent, but such filing shall not
be a condition precedent to the validity of any action taken in reliance upon
such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Unit Agent
shall constitute a sufficient notification for every purpose hereunder.
1.7 EFFECT OF HEADINGS AND TABLE OF CONTENTS. The Article and Section
headings herein and the Table of Contents are for convenience only and shall not
affect the construction hereof.
1.8 SUCCESSORS AND ASSIGNS. All covenants and agreements in this
Agreement by the Company shall bind its successors and assigns, whether so
expressed or not.
1.9 SEPARABILITY CLAUSE. In case any provision in this Agreement or in
the Units shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions hereof and thereof shall not in any
way be affected or impaired thereby.
1.10 BENEFITS OF AGREEMENT. Nothing in this Agreement or in the Unit
Certificates, express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder and the Holders, any benefits or
any legal or equitable right, remedy or claim under this Agreement. The Holders
from time to time shall be beneficiaries of this Agreement and shall be bound by
all of the terms and conditions hereof and of the Units evidenced by their Unit
Certificates by their acceptance of delivery thereof.
1.11 GOVERNING LAW. THIS AGREEMENT AND THE UNITS SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
1.12 LEGAL HOLIDAYS. In any case where any Quarterly Payment Date or
the Stock Purchase Date shall not be a Business Day, then (notwithstanding any
other provision of this Agreement or of the Units) payment in respect of
distributions or interest on or principal of Pledged Securities or Contract Fees
shall not be made, Purchase Contracts shall not be performed and other actions
described herein shall not occur, but such payments shall be made, the Purchase
Contracts shall be performed and such other actions shall occur, as applicable,
on the next
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succeeding Business Day with the same force and effect as if made on such
Quarterly Payment Date or Stock Purchase Date, as the case may be; provided,
that no distributions or interest shall accrue or be payable by the Company or
any Holder for the period from and after any such Quarterly Payment Date or
Stock Purchase Date, as the case may be, to the date of payment or performance;
except that if such next succeeding Business Day is in the next succeeding
calendar year, such payment shall be made or the Purchase Contracts shall be
performed on the immediately preceding Business Day with the same force and
effect as if made on such Quarterly Payment Date or the Stock Purchase Date.
1.13 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which, when so executed, shall be deemed an original, but
all such counterparts shall together constitute one and the same instrument.
1.14 INSPECTION OF AGREEMENT. A copy of this Agreement shall be
available at all reasonable times at the Corporate Trust Office for inspection
by any Holder.
2. UNIT CERTIFICATE FORMS.
2.1 FORMS OF UNIT CERTIFICATES GENERALLY. Unit Certificates evidencing
Normal Units shall be in substantially the form set forth in Exhibit A hereto
and Unit Certificates evidencing the Stripped Units shall be in substantially
the form of Exhibit B hereto, in each case with such letters, numbers or other
marks of identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as may be required by the rules of any
securities exchange on which the Units are listed or Depositary therefor, or as
may, consistently herewith, be determined by the officers of the Company
executing such Unit Certificates, as evidenced by their execution of the Unit
Certificates.
The definitive Unit Certificates shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers of the Company executing the Unit Certificates,
consistent with the provisions of this Agreement, as evidenced by their
execution thereof.
Every Global Unit Certificate authenticated, executed on behalf of the
Holders and delivered hereunder shall bear a legend in substantially the
following form:
THIS UNIT CERTIFICATE IS A GLOBAL UNIT CERTIFICATE WITHIN THE MEANING
OF THE MASTER UNIT AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED
IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS UNIT CERTIFICATE
MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A UNIT CERTIFICATE
REGISTERED, AND NO TRANSFER OF THIS UNIT CERTIFICATE IN WHOLE OR IN
PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH
DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE MASTER UNIT AGREEMENT.
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2.2 FORM OF AGENT'S CERTIFICATE OF AUTHENTICATION. The form of the
Agent's certificate of authentication of the Units shall be in substantially the
form set forth on the form of the Unit Certificates.
3. THE UNITS.
3.1 TITLE AND TERMS; DENOMINATIONS. The aggregate number of Units
evidenced by Unit Certificates authenticated, executed on behalf of the Holders
and delivered hereunder is limited to [1,500,000 (SUBJECT TO INCREASE UP TO A
MAXIMUM OF 225,000 TO THE EXTENT THE OVER-ALLOTMENT OPTION OF THE UNDERWRITERS
UNDER THE UNDERWRITING AGREEMENT IS EXERCISED)], except for Unit Certificates
authenticated, executed and delivered upon registration of transfer of, in
exchange for, or in lieu of, other Unit Certificates pursuant to Section 3.4,
3.5, 3.6 or 8.5.
All of the Unit Certificates authenticated, executed and delivered
hereunder shall be Normal Units except for any Unit Certificates evidencing
Stripped Units issued in connection with a Stripped Unit Creation pursuant to
Section 3.9 and Unit Certificates authenticated, executed and delivered upon
registration of transfer of, in exchange for, or in lieu of, other Unit
Certificates evidencing Stripped Units pursuant to Section 3.4, 3.5, 3.6 or 8.5.
Unit Certificates shall be issuable only in registered form and only in
denominations of a single Unit and any integral multiple thereof.
3.2 RIGHTS AND OBLIGATIONS EVIDENCED BY THE UNIT CERTIFICATES. Each
Unit Certificate shall evidence the number of Units specified therein. Prior to
the purchase, if any, of shares of Common Stock under the Purchase Contracts,
the Units shall not entitle the Holders to any of the rights or privileges of a
holder of shares of Common Stock, including, without limitation, the right to
vote or receive any dividends or other distributions or to consent or to receive
notice as stockholders in respect of the meetings of stockholders or for the
election of directors of the Company or for any other matter.
3.3 EXECUTION, AUTHENTICATION, DELIVERY AND DATING. Subject to the
provisions of Section 3.9 hereof, upon the execution and delivery of this
Agreement, and at any time and from time to time thereafter, the Company may
deliver Unit Certificates executed by the Company to the Unit Agent for
authentication, execution on behalf of the Holders and delivery, together with
its Issuer Order for authentication of such Unit Certificates, and the Unit
Agent in accordance with such Issuer Order shall authenticate, execute on behalf
of the Holders and deliver such Unit Certificates.
The Unit Certificates shall be executed on behalf of the Company by its
Chairman of the Board, its Vice Chairman of the Board, its President or one of
its Vice Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Unit Certificates may be manual or facsimile.
Unit Certificates bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such
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individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Unit Certificates or did not hold such
offices at the date of such Unit Certificates.
Each Unit Certificate shall be dated the date of its authentication.
No Purchase Contract or Call Option underlying a Unit evidenced by a
Unit Certificate shall be valid until such Unit Certificate has been executed on
behalf of the Holder by the manual signature of an authorized signatory of the
Unit Agent, as such Holder's attorney-in-fact. Such signature by an authorized
signatory of the Unit Agent shall be conclusive evidence that the Holder of such
Unit Certificate has entered into the Purchase Contracts and Call Options
underlying the Units evidenced by such Unit Certificate.
No Unit Certificate shall be entitled to any benefit under this
Agreement or be valid or obligatory for any purpose unless there appears on such
Unit Certificate a certificate of authentication substantially in the form
provided for herein executed by an authorized signatory of the Unit Agent by
manual signature, and such certificate upon any Unit Certificate shall be
conclusive evidence, and the only evidence, that such Unit Certificate has been
duly authenticated and delivered hereunder.
3.4 TEMPORARY UNIT CERTIFICATES. Pending the preparation of definitive
Unit Certificates, the Company shall execute and deliver to the Unit Agent, and
the Unit Agent shall authenticate, execute on behalf of the Holders, and
deliver, in lieu of such definitive Unit Certificates, temporary Unit
Certificates which are in substantially the form set forth in Exhibit A or
Exhibit B hereto, with such letters, numbers or other marks of identification or
designation and such legends or endorsements printed, lithographed or engraved
thereon as may be required by the rules of any securities exchange on which the
Units are listed or Depositary therefor, or as may, consistently herewith, be
determined by the officers of the Company executing such Unit Certificates, as
evidenced by their execution of the Unit Certificates.
If temporary Unit Certificates are issued, the Company will cause
definitive Unit Certificates to be prepared without unreasonable delay. After
the preparation of definitive Unit Certificates, the temporary Unit Certificates
shall be exchangeable for definitive Unit Certificates upon surrender of the
temporary Unit Certificates at the Corporate Trust Office, at the expense of the
Company and without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Unit Certificates, the Company shall execute and deliver
to the Unit Agent, and the Unit Agent shall authenticate, execute on behalf of
the Holder, and deliver in exchange therefor, one or more definitive Unit
Certificates of authorized denominations and evidencing a like number of Normal
Units or Stripped Units, as the case may be, as the temporary Unit Certificate
or Unit Certificates so surrendered. Until so exchanged, the temporary Unit
Certificates shall in all respects evidence the same benefits and the same
obligations with respect to the Units evidenced thereby as definitive Unit
Certificates.
3.5 REGISTRATION; REGISTRATION OF TRANSFER AND EXCHANGE. The Unit Agent
shall keep at the Corporate Trust Office registers (the registers maintained in
such office being herein referred
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to as the "Unit Registers") in which, subject to such reasonable regulations as
it may prescribe, the Unit Agent shall provide for the registration of Unit
Certificates evidencing the Normal Units and the Stripped Units and of transfers
of Unit Certificates evidencing the Normal Units and the Stripped Units (the
Unit Agent, in such capacity, the "Unit Registrar").
Upon surrender for registration of transfer of any Unit Certificate at
the Corporate Trust Office, the Company shall execute and deliver to the Unit
Agent, and the Unit Agent shall authenticate, execute on behalf of the
designated transferee or transferees, and deliver, in the name of the designated
transferee or transferees, one or more new Unit Certificates evidencing a like
number of Normal Units or Stripped Units, as the case may be.
At the option of the Holder, Unit Certificates may be exchanged for
other Unit Certificates evidencing a like number of Normal Units or Stripped
Units, as the case may be, upon surrender of the Unit Certificates to be
exchanged at the Corporate Trust Office. Whenever any Unit Certificates are so
surrendered for exchange, the Company shall execute and deliver to the Unit
Agent, and the Unit Agent shall authenticate, execute on behalf of the Holder,
and deliver the Unit Certificates which the Holder making the exchange is
entitled to receive.
All Unit Certificates issued upon any registration of transfer or
exchange of a Unit Certificate shall evidence the ownership of the same number
of Normal Units or Stripped Units, as the case may be, and be entitled to the
same benefits and subject to the same obligations, under the Principal
Agreements as the Normal Units or Stripped Units, as the case may be, evidenced
by the Unit Certificate surrendered upon such registration of transfer or
exchange.
Every Unit Certificate presented or surrendered for registration of
transfer or for exchange shall (if so required by the Unit Agent) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Unit Agent duly executed, by the Holder
thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of a Unit Certificate, but the Company and the Unit Agent may require
payment from the Holder of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Unit Certificates (which, for these purposes, includes a
Stripped Unit Creation or a transfer of Pledged Securities as contemplated by
Section 5.4(a)), other than any exchanges pursuant to Sections 3.6 and 8.5 not
involving any transfer.
Notwithstanding the foregoing, the Company shall not be obligated to
execute and deliver to the Unit Agent, and the Unit Agent shall not be obligated
to authenticate, execute on behalf of the Holder and deliver any Unit
Certificate in respect of a Unit Certificate presented or surrendered for
registration of transfer or for exchange on or after the Stock Purchase Date or
the Termination Date. In lieu of delivery of a new Unit Certificate, upon
satisfaction of the applicable conditions specified above in this Section and
receipt of appropriate registration or transfer instructions from such Holder,
the Unit Agent shall (a) if the Stock Purchase Date has occurred, deliver the
shares of Common Stock issuable in respect of the Purchase Contracts
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forming a part of the Units evidenced by such Unit Certificate, or (b) if a
Termination Event shall have occurred on or prior to the Stock Purchase Date,
transfer the liquidation or principal amount of the Pledged Securities evidenced
thereby, in each case subject to the applicable conditions and in accordance
with the applicable provisions of Article Five hereof.
The provisions of Clauses (a), (b), (c) and (d) below shall apply only
to Global Unit Certificates:
(a) Each Global Unit Certificate authenticated and executed on behalf
of the Holders under this Agreement shall be registered in the name of the
Depositary designated for such Global Unit Certificate or a nominee thereof and
delivered to such Depositary or a nominee thereof or custodian therefor, and
each such Global Unit Certificate shall constitute a single Unit Certificate for
all purposes of this Agreement.
(b) Notwithstanding any other provision in this Agreement, no Global
Unit Certificate may be exchanged in whole or in part for Unit Certificates
registered, and no transfer of a Global Unit Certificate in whole or in part may
be registered, in the name of any Person other than the Depositary for such
Global Unit Certificate or a nominee thereof unless (i) such Depositary (x) has
notified the Company that it is unwilling or unable to continue as Depositary
for such Global Unit Certificate or (y) has ceased to be a clearing agency
registered under the Exchange Act or (ii) there shall have occurred and be
continuing a default by the Company in respect of its obligations under one or
more Principal Agreements.
(c) Subject to Clause (b) above, any exchange of a Global Unit
Certificate for other Unit Certificates may be made in whole or in part, and all
Unit Certificates issued in exchange for a Global Unit Certificate or any
portion thereof shall be registered in such names as the Depositary for such
Global Unit Certificate shall direct.
(d) Every Unit Certificate authenticated and delivered upon
registration of transfer of, in exchange for or in lieu of a Global Unit
Certificate or any portion thereof, whether pursuant to this Section, Section
3.4, 3.6 or 8.5 or otherwise, shall be authenticated, executed on behalf of the
Holders and delivered in the form of, and shall be, a Global Unit Certificate,
unless such Unit Certificate is registered in the name of a Person other than
the Depositary for such Global Unit Certificate or a nominee thereof.
3.6 MUTILATED, DESTROYED, LOST AND STOLEN UNIT CERTIFICATES. If any
mutilated Unit Certificate is surrendered to the Unit Agent, the Company shall
execute and deliver to the Unit Agent, and the Unit Agent shall authenticate,
execute on behalf of the Holder, and deliver in exchange therefor, a new Unit
Certificate, evidencing the same number of Normal Units or Stripped Units, as
the case may be, and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Unit Agent (a)
evidence to their satisfaction of the destruction, loss or theft of any Unit
Certificate, and (b) such security or indemnity as may be required by them to
save each of them and any agent of any of them harmless, then, in the absence of
notice to the Company or the Unit Agent that such Unit
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Certificate has been acquired by a bona fide purchaser, the Company shall
execute and deliver to the Unit Agent, and the Unit Agent shall authenticate,
execute on behalf of the Holder, and deliver to the Holder, in lieu of any such
destroyed, lost or stolen Unit Certificate, a new Unit Certificate, evidencing
the same number of Normal Units or Stripped Units, as the case may be, and
bearing a number not contemporaneously outstanding.
Notwithstanding the foregoing, the Company shall not be obligated to
execute and deliver to the Unit Agent, and the Unit Agent shall not be obligated
to authenticate, execute on behalf of the Holder, and deliver to the Holder, on
or after the Stock Purchase Date or the Termination Date, a Unit Certificate in
respect of any mutilated, destroyed, lost or stolen Unit Certificate. In lieu of
delivery of a new Unit Certificate, upon satisfaction of the applicable
conditions specified above in this Section and receipt of appropriate
registration or transfer instructions from such Holder, the Unit Agent shall (a)
if the Stock Purchase Date has occurred, deliver the shares of Common Stock
issuable in respect of the Purchase Contracts forming a part of the Units
evidenced by such Unit Certificate, or (b) if a Termination Event shall have
occurred on or prior to the Stock Purchase Date, transfer the liquidation or
principal amount of the Pledged Securities evidenced thereby, in each case
subject to the applicable conditions and in accordance with the applicable
provisions of Article Five hereof.
Upon the issuance of any new Unit Certificate under this Section, the
Company and the Unit Agent may require the payment by the Holder of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Unit Agent) connected therewith.
Every new Unit Certificate issued pursuant to this Section in lieu of
any destroyed, lost or stolen Unit Certificate shall constitute an original
additional contractual obligation of the Company and of the Holder, whether or
not the destroyed, lost or stolen Unit Certificate shall be at any time
enforceable by anyone, and shall be entitled to all the benefits and be subject
to all the obligations of the Principal Agreements equally and proportionately
with any and all other Unit Certificates delivered hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
settlement of mutilated, destroyed, lost or stolen Unit Certificates.
3.7 PERSONS DEEMED OWNERS. Prior to due presentment of a Unit
Certificate for registration of transfer, the Company and the Unit Agent, and
any agent of the Company or the Unit Agent, may treat the Person in whose name
such Unit Certificate is registered as the owner of the Units evidenced thereby,
for the purpose of receiving payments of distributions or interest on the
Pledged Securities, receiving or making payments of Contract Fees and
performance of the underlying Purchase Contracts and Call Options and for all
other purposes whatsoever, whether or not the payment of distributions or
interest on the Pledged Securities or any Contract Fee payable in respect of the
Purchase Contracts constituting a part of the Units evidenced thereby shall be
overdue and notwithstanding any notice to the contrary, and neither the Company
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nor the Unit Agent, nor any agent of the Company or the Unit Agent, shall be
affected by notice to the contrary.
Notwithstanding the foregoing, with respect to any Global Unit
Certificate, nothing herein shall prevent the Company, the Unit Agent or any
agent of the Company or the Unit Agent, from giving effect to any written
certification, proxy or other authorization furnished by any Depositary (or its
nominee), as a Holder, with respect to such Global Unit Certificate or impair,
as between such Depositary and owners of beneficial interests in such Global
Unit Certificate, the operation of customary practices governing the exercise of
rights of such Depositary (or its nominee) as Holder of such Global Unit
Certificate.
3.8 CANCELLATION. All Unit Certificates surrendered for delivery of
shares of Common Stock on or after the Stock Purchase Date, transfer of Pledged
Securities after the occurrence of a Termination Event or registration of
transfer or exchange shall, if surrendered to any Person other than the Unit
Agent, be delivered to the Unit Agent and, if not already canceled, shall be
promptly canceled by it. The Company may at any time deliver to the Unit Agent
for cancellation any Unit Certificates previously authenticated, executed and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Unit Certificates so delivered shall, upon Issuer Order, be
promptly canceled by the Unit Agent. No Unit Certificates shall be
authenticated, executed on behalf of the Holder and delivered upon transfer of,
in exchange for or in lieu of any Unit Certificates canceled as provided in this
Section, except as expressly permitted by this Agreement. All canceled Unit
Certificates held by the Unit Agent shall be disposed of as directed by Issuer
Order.
If the Company or any Affiliate of the Company shall acquire any Unit
Certificate, such acquisition shall not operate as a cancellation of such Unit
Certificate unless and until such Unit Certificate is delivered to the Unit
Agent canceled or for cancellation.
3.9 SUBSTITUTION OF PLEDGED SECURITIES AND CREATION OF STRIPPED UNITS;
UNITS NOT OTHERWISE SEPARABLE.
(a) A Holder of Normal Units may obtain the release from the Pledge of
such Holder's Pledged Securities underlying such Normal Units, free and clear of
the Company's and the Call Option Holder's security interests therein, and
convert such Normal Units into Stripped Units (collectively, a "Stripped Unit
Creation") at any time after the original issuance of such Normal Units and on
or prior to the second Business Day immediately preceding the Stock Purchase
Date by:
(i) delivering to the Collateral Agent: (w) Treasury
Securities that through their scheduled payments will generate not
later than the Stock Purchase Date an amount of cash that is at least
equal to the aggregate Stated Amount of such Normal Units, (x) if any
Contract Fees are or will be payable by the Holders to the Company,
Treasury Securities that through their scheduled payments will generate
not later than each Quarterly Payment Date falling after the date on
which the requirements for such Stripped Unit Creation contained in
this
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Section 3.9(a) are satisfied and on or before the Stock Purchase Date
an amount of cash that is at least equal to the aggregate Contract Fees
that are scheduled to be payable in respect of the Purchase Contracts
underlying such Normal Units on such Quarterly Payment Date (assuming
for this purpose that no Contract Fees will then have been deferred
under Section 5.3); (y) if there are any deferred Contract Fees payable
by such Holder to the Company on the date on which the requirements for
such Stripped Unit Creation contained in this Section 3.9(a) are
satisfied, an amount of cash equal to (1) the aggregate unpaid amount
of such Contract Fees accrued to such date, if such date is a Quarterly
Payment Date, and (2) the aggregate unpaid amount of such Contract Fees
accrued to the Quarterly Payment Date immediately preceding such date
plus interest thereon at a rate per annum equal to the Contract Fee
Rate for the period from and including such Quarterly Payment Date to
but excluding such date (calculated on the basis of a 360-day year of
twelve 30-day months), if such date is not a Quarterly Payment Date;
and (z) if the Call Options underlying such Normal Units remain
exercisable on the date on which the requirements contained in this
Section 3.9(a) for such Stripped Unit Creation are satisfied, an
instrument from the Call Option Holder releasing its security interest
in the Pledged Securities securing such Call Options and agreeing that
such Call Options no longer underlie such Normal Units (or the Stripped
Units they become); and
(ii) surrendering the Unit Certificate evidencing such Normal
Units, with the form of Request to Create Stripped Units thereon duly
completed and executed, to the Unit Agent, whereupon the Unit Agent
shall promptly request the Collateral Agent to release the Pledged
Securities underlying such Normal Units;
provided, however, that if Treasury Securities are the Pledged Securities
underlying such Normal Units, a Stripped Unit Creation may only be effected with
respect to a number of Normal Units that will result in the release from the
Pledge of Treasury Securities in denominations of $1,000 or integral multiples
thereof.
(b) Upon receipt of the items described in clause (i) of Section 3.9(a)
above and the request from the Unit Agent described in clause (ii) of Section
3.9(a) above, the Collateral Agent will, in accordance with the terms of the
Pledge Agreement, release to the Unit Agent, on behalf of the Holder, from the
Pledge, free and clear of the Company's and the Call Option Holders's security
interests therein, the securities that theretofore had been the Pledged
Securities underlying such Normal Units, and upon receipt thereof the Unit Agent
shall promptly:
(i) cancel the Unit Certificate for such Normal Units;
(ii) transfer such released Pledged Securities to the Holder
or, subject to Section 3.5, the Holder's designee;
(iii) authenticate, execute on behalf of such Holder and
deliver to the Holder or, subject to Section 3.5, the Holder's designee
a Unit Certificate executed
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by the Company in accordance with Section 3.3 evidencing a number of
Stripped Units equal to the number of such Normal Units.
Concurrently with the release of the securities that theretofore had been the
Pledged Securities underlying such Normal Units as contemplated by the preceding
sentence, the Treasury Securities delivered to the Collateral Agent as
contemplated by clause (i) of Section 3.9(a) above shall thereupon be
substituted for such securities as Pledged Securities underlying the Stripped
Units created from such Normal Units.
(c) Except for a Stripped Unit Creation effected in compliance with
this Section 3.9, for so long as the Purchase Contract underlying a Normal Unit
remains in effect such Normal Unit shall not be separable into its constituent
parts, and the rights and obligations of the Holder of such Normal Unit in
respect of the Pledged Securities, Purchase Contract and Call Option underlying
such Normal Unit may be acquired, and may be transferred and exchanged, only as
an integrated Normal Unit. For so long as the Purchase Contract underlying a
Stripped Unit remains in effect such Stripped Unit shall not be separable into
its constituent parts, and the rights and obligations of the Holder of such
Stripped Unit in respect of the Pledged Securities and Purchase Contract
underlying such Stripped Unit may be acquired, and may be transferred and
exchanged, only as an integrated Stripped Unit. Other than a Unit Certificate,
no Holder of a Unit, nor any transferee thereof, shall be entitled to receive a
certificate evidencing the ownership of Pledged Securities or any other rights
or obligations underlying such Unit for so long as the Purchase Contract
underlying such Unit remains in effect.
3.10 PAYMENTS ON THE UNITS. Contract Fees (if any) payable by the
Company to the Holders, and all amounts payable to Holders as required by
Section 4.1 or 5.4(b), will be payable at the office of the Unit Agent in The
City of New York maintained for that purpose or, at the option of the Company,
by check mailed to the address of the Person entitled thereto at such address as
it appears on the relevant Unit Register; provided, however, that for so long as
any Units are evidenced by Global Certificates, the Unit Agent will pay each
such amount payable in respect of such Units by wire transfer in same-day funds,
no later than 2:00 p.m., New York City time, on the Business Day such amount is
received by the Unit Agent (or, if such amount is received by the Unit Agent
after 1:00 p.m., New York City time, on a Business Day or on a day that is not a
Business Day, no later than 10:00 a.m., New York City time, on the next
succeeding Business Day), to the Depositary, to the account or accounts
designated by it for such purpose.
4. THE PLEDGED SECURITIES.
4.1 PAYMENTS ON THE PLEDGED SECURITIES. As provided by the terms of the
Pledge Agreement, on each Quarterly Payment Date, subject to receipt by the
Collateral Agent of the relevant payments in respect of the Pledged Securities
underlying any Holder's Units, (a) the Collateral Agent (i) shall, on behalf of
such Holder, pay to the Company the Contract Fees, if any, then payable by such
Holder to the Company and (ii) shall, subject to Section 5.4(b), remit to the
Unit Agent the amount of such payments remaining after the payment referred to
in clause (i) and (b) the amount referred to in clause (a)(ii) above shall,
subject to receipt thereof by the
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Unit Agent from the Collateral Agent, be paid to the Person in whose name the
Unit Certificate (or one or more Predecessor Unit Certificates) evidencing such
Units is registered at the close of business on the Record Date next preceding
such Quarterly Payment Date.
In addition, in the event that (a) the Call Options are exercised and
the Aggregate Consideration Deliverable on Exercise of the Call Options includes
a cash amount in respect of deferred distributions on the QUIPS or deferred
interest payments on the Junior Subordinated Debentures and (b) the Call
Settlement Date is not a Quarterly Payment Date, pursuant to the Pledge
Agreement the Collateral Agent shall, on behalf of the Holders of the Normal
Units, pay to the Company on the Call Settlement Date an amount equal to the
Contract Fees, if any, then payable by such Holders to the Company.
4.2 TRANSFER OF PLEDGED SECURITIES UPON OCCURRENCE OF TERMINATION
EVENT. Upon the occurrence of a Termination Event and the transfer to the Unit
Agent of the Pledged Securities underlying each Holder's Units pursuant to the
terms of the Pledge Agreement, the Unit Agent shall request transfer
instructions with respect to such Pledged Securities from such Holder by written
request mailed to such Holder at his address as it appears in the relevant Unit
Register. Thereafter, upon surrender to the Unit Agent of a Unit Certificate
evidencing a Holder's Units, with transfer instructions in proper form for
transfer of the underlying Pledged Securities, the Unit Agent shall transfer the
Pledged Securities evidenced by such Unit Certificate to such Holder in
accordance with such instructions; provided, however, that if the Pledged
Securities are to be transferred to a Person other than the Person in whose name
such Unit Certificate is registered, no such transfer shall be made unless the
Person requesting the transfer has paid any transfer and other taxes required by
reason of such transfer to a Person other than the registered Holder of such
Unit Certificate or has established to the satisfaction of the Company that such
tax either has been paid or is not payable. Until the foregoing conditions to
transfer any of the Pledged Securities underlying any Units has been met, the
Unit Agent shall hold such Pledged Securities as custodian for the Holder of
such Units.
If upon a Termination Event any Holder of Units would, after satisfying
the foregoing conditions, otherwise be entitled to receive (or have transferred
to such Holder's designee) Treasury Securities of any series having a principal
amount that is not an integral multiple of $1,000, such Holder shall instead be
entitled to receive (or have transferred to such Holder's designee) Treasury
Securities of such series in a principal amount equal to the next lower integral
multiple of $1,000 plus a portion of the net proceeds from the sale of Treasury
Securities of such series contemplated by the succeeding sentence representing
such Holder's interest therein. As soon as practicable after transfer to the
Unit Agent of the Pledged Securities as provided in the Pledge Agreement, the
Unit Agent shall, on behalf of all Holders who, by virtue of the preceding
sentence, will not be entitled to a portion of the Treasury Securities of any
series to which they would otherwise be entitled aggregate and sell the Treasury
Securities of such series representing such portion to or through one or more
U.S. government securities dealers at then prevailing prices, deduct from the
proceeds of such sales all commissions and other out-of-pocket transaction costs
incurred in connection with such sales and, until the net proceeds therefrom
have been distributed to the Holders entitled thereto or their designees, hold
such proceeds in trust for such Holders.
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5. THE PURCHASE CONTRACTS.
5.1 PURCHASE OF SHARES OF COMMON STOCK. Each Purchase Contract
underlying a Unit shall obligate the Holder of such Unit to purchase, and the
Company to sell, on the Stock Purchase Date, at a price equal to the Stated
Amount, a number of shares of Common Stock equal to the Settlement Rate, unless,
on or prior to the Stock Purchase Date, there shall have occurred a Termination
Event. The "Settlement Rate" is equal to (a) if the Applicable Market Value (as
defined below) is greater than or equal to $________ (the "Threshold
Appreciation Price"), _______________ of a share of Common Stock per Purchase
Contract, (b) if the Applicable Market Value is less than the Threshold
Appreciation Price but is greater than the Stated Amount, a fractional share of
Common Stock per Purchase Contract equal to the Stated Amount divided by the
Applicable Market Value (rounded upward or downward to the nearest 1/10,000th of
a share or, if there is not a nearest 1/10,000th of a share, to the next lower
1/10,000th of a share) and (c) if the Applicable Market Value is less than or
equal to the Stated Amount, one share of Common Stock per Purchase Contract, in
each case subject to adjustment as provided in Section 5.6. As provided in
Section 5.9, no fractional shares of Common Stock will be issued upon settlement
of Purchase Contracts.
The "Applicable Market Value" means the average of the Closing Prices
per share of Common Stock on each of the twenty consecutive Trading Days ending
on the last Trading Day immediately preceding the Stock Purchase Date. The
"Closing Price" of the Common Stock on any date of determination means the
closing sale price (or, if no closing price is reported, the last reported sale
price) of the Common Stock on the New York Stock Exchange (the "NYSE") on such
date or, if the Common Stock is not listed for trading on the NYSE on any such
date, as reported in the composite transactions for the principal United States
securities exchange on which the Common Stock is so listed, or if the Common
Stock is not so listed on a United States national or regional securities
exchange, as reported by The NASDAQ Stock Market, or, if the Common Stock is not
so reported, the last quoted bid price for the Common Stock in the
over-the-counter market as reported by the National Quotation Bureau or similar
organization, or, if such bid price is not available, the market value of the
Common Stock on such date as determined by a nationally recognized investment
banking firm retained for this purpose by the Company. A "Trading Day" means a
day on which the Common Stock (A) is not suspended from trading on any national
or regional securities exchange or association or over-the-counter market at the
close of business and (B) has traded at least once on the national or regional
securities exchange or association or over-the-counter market that is the
primary market for the trading of the Common Stock.
Each Holder of a Unit Certificate evidencing Normal Units, by his
acceptance thereof, irrevocably authorizes the Unit Agent to enter into and
perform the underlying Purchase Contracts and Call Options on his behalf as his
attorney-in-fact, agrees to be bound by the terms and provisions thereof,
covenants and agrees to perform his obligations under such Purchase Contracts
and Call Options, consents to the provisions of the Principal Agreements,
irrevocably authorizes the Unit Agent to enter into and perform the Call Option
Agreement and the Pledge Agreement on his behalf as his attorney-in-fact, and
consents to and agrees to be bound by the Pledge of the Pledged Securities
underlying such Normal Units pursuant to the Pledge
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Agreement. Each Holder of a Unit Certificate evidencing Stripped Units, by his
acceptance thereof, irrevocably authorizes the Unit Agent to enter into and
perform the underlying Purchase Contracts on his behalf as his attorney-in-fact,
agrees to be bound by the terms and provisions thereof, covenants and agrees to
perform his obligations under such Purchase Contracts, consents to the
provisions of the Principal Agreements, irrevocably authorizes the Unit Agent to
perform the Pledge Agreement on his behalf as his attorney-in-fact, and consents
to and agrees to be bound by the Pledge of the Pledged Securities underlying
such Stripped Units pursuant to the Pledge Agreement. Each Holder of Units, by
his acceptance thereof, further irrevocably covenants and agrees that, unless
such Holder satisfies its obligations to the Company under the Purchase
Contracts underlying such Units as provided in Section 5.4(a), then to the
extent and in the manner provided in Section 5.4(b) and the Pledge Agreement,
but subject to the terms thereof, payments in respect of all or a portion of the
principal of or proceeds from the Pledged Securities on the Stock Purchase Date
shall be paid by the Collateral Agent to the Company in satisfaction of such
Holder's obligations under such Purchase Contract and such Holder shall acquire
no right, title or interest in such payments.
Upon registration of transfer of a Unit Certificate, the transferee
shall be bound (without the necessity of any other action on the part of such
transferee) by the terms of the Purchase Contracts and any Call Options
evidenced thereby and by the Pledge Agreement and the transferor shall be
released from all such obligations evidenced by the Unit Certificate so
transferred. The Company covenants and agrees, and each Holder of a Unit
Certificate, by his acceptance thereof, likewise covenants and agrees, to be
bound by the provisions of this paragraph.
5.2 CONTRACT FEES. Subject to Section 5.3, if any Contract Fees are or
will be payable by the Company to the Holders, the Company shall pay, prior to
2:00 p.m., New York City time, on each Quarterly Payment Date to and including
the Stock Purchase Date, the Contract Fees payable in respect of each Purchase
Contract to the Person in whose name the Unit Certificate (or one or more
Predecessor Unit Certificates) evidencing such Purchase Contract is registered
at the close of business on the Record Date next preceding such Quarterly
Payment Date. The Company's obligations with respect to such Contract Fees
[SUBORDINATION LANGUAGE FROM INDENTURE TO BE INSERTED].
Subject to Section 5.3, if any Contract Fees are or will be payable by
the Holders to the Company, the Collateral Agent, on behalf of the Holders,
shall pay, on each Quarterly Payment Date to and including the Stock Purchase
Date, the Contract Fees payable in respect of each Purchase Contract to the
Company. Such payment will be funded out of payments received by the Collateral
Agent in respect of Pledged Securities.
Each Unit Certificate delivered under this Agreement upon registration
of transfer of, in exchange for or in lieu of any other Unit Certificate shall
carry the rights to receive and obligations to pay Contract Fees accrued and
unpaid, and to accrue, which were carried by the Purchase Contracts evidenced by
such other Unit Certificate.
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5.3 DEFERRAL OF PAYMENT DATES FOR CONTRACT FEE. So long as no default
in the Company's obligations under the Principal Agreements has occurred and is
continuing, the Company shall have the right, at any time prior to the Stock
Purchase Date, to defer the payment of any or all of the Contract Fees, if any,
otherwise payable by the Company on any Quarterly Payment Date, but only if the
Company shall give the Holders and the Unit Agent written notice of its election
to defer such payment (specifying the amount to be deferred) at least five
Business Days prior to the earlier of (a) the next succeeding Quarterly Payment
Date or (b) the date the Company is required to give notice of the Record Date
or Quarterly Payment Date with respect to payment of such Contract Fee to the
NYSE or other applicable self-regulatory organization or to Holders, or (c) the
Record Date for such Quarterly Payment Date. Any Contract Fees so deferred shall
bear additional Contract Fees thereon at a rate per annum equal to the Contract
Fee Rate (computed on the basis of a 360-day year of twelve 30-day months),
compounding on each succeeding Quarterly Payment Date, until paid in full.
Deferred Contract Fees (and additional Contract Fees accrued thereon) shall be
due on the next succeeding Quarterly Payment Date except to the extent that
payment is deferred pursuant to this Section. No Contract Fees may be deferred
to a date that is after the Stock Purchase Date.
In the event the Company exercises its option to defer the payment of
Contract Fees (if any) payable by it, then, until all deferred Contract Fees
(including additional Contract Fees accrued thereon) have been paid in full, the
Company shall not (a) declare or pay any dividends or distributions on, or
redeem, purchase, acquire, or make a liquidation payment with respect to, any of
the Company's capital stock, (b) make any payment of principal, interest or
premium, if any, on or repay, repurchase or redeem any debt securities of the
Company that rank part passu with or junior in right of payment to the Contract
Fees or (c) make any guarantee payments with respect to any guarantee by the
Company of any securities of any subsidiary of the Company if such guarantee
ranks pari passu or junior in right of payment to the Contract Fees (other than,
in the case of clauses (a), (b) and (c), (i) dividends or distributions in
shares of, or options, warrants or rights to subscribe for or purchase shares
of, common stock of the Company, (ii) any declaration of a dividend in
connection with the implementation of a stockholder's rights plan, or the
issuance of stock under any such plan in the future, or the redemption or
repurchase of any such rights pursuant thereto, (iii) payments under the
Company's guarantee of the QUIPS, (iv) as a result of a reclassification of the
Company's capital stock solely into shares of one or more classes or series of
the Company's capital stock or the exchange or conversion of one class or series
of the Company's capital stock for another class or series of the Company's
capital stock, (v) the purchase of fractional interests in shares of the
Company's capital stock pursuant to the conversion or exchange provisions of
such capital stock or the securities being converted or exchanged and (vi)
purchases of common stock in connection with the satisfaction by the Company of
its obligations under any of the Company's benefit plans for its and its
subsidiaries' directors, officers or employees or any of the company's dividend
reinvestment plans).
If any Contract Fees are payable by a Holder to the Company and
payments made in respect of Pledged Securities underlying such Holder's Units
are insufficient to cover such Holder's obligation to pay such Contract Fees,
such obligation shall be deferred until the earlier of the date sufficient cash
is available and the Stock Purchase Date. Any such Contract Fees so deferred
shall bear additional Contract Fees thereon at a rate per annum equal to the
Contract Fee
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Rate (computed on the basis of a 360-day year of twelve 30-day months),
compounding on each succeeding Quarterly Payment Date, until paid in full.
5.4 PAYMENT OF PURCHASE PRICE.
(a) A Holder of Units shall, by no later than 10:00 a.m., New York City
time, on the Stock Purchase Date, deliver to the Unit Agent payment of the
purchase price for the shares of Common Stock to be purchased pursuant to the
Purchase Contracts underlying such Units, which payment shall be made in lawful
money of the United States by certified or cashier's check payable to the order
of the Company in immediately available funds in an amount equal to the
aggregate Stated Amount of such Holder's Units, plus, if there are unpaid
Contract Fees accrued and payable by such Holder to the Company on the Stock
Purchase Date and the cash received by the Collateral Agent on such date in
respect of the Pledged Securities underlying such Units is less than the amount
of such unpaid Contract Fees, an amount sufficient to cover such shortfall.
By 11:00 a.m., New York City time, on the Stock Purchase Date, the Unit
Agent shall (i) transfer to the Company all of the payments the Company shall
have received as contemplated by the preceding sentence, (ii) notify the
Collateral Agent and the Company as to the number of Normal Units and the number
of Stripped Units, respectively, with respect to which payment has been received
as aforesaid (such Units being collectively referred to as "Paid Units") and the
number of Normal Units and the number of Stripped Units, respectively, with
respect to which payment has not been received as aforesaid (such Units being
collectively referred to as "Unpaid Units"), and (iii) request the Collateral
Agent to release the Pledged Securities underlying the Paid Units (or, in the
case of Treasury Securities, the cash payments received thereon) from the Pledge
to the Unit Agent (for delivery to the Holders of such Units entitled thereto),
free and clear of the Company's security interest therein.
By 1:00 p.m., New York City time, on the Stock Purchase Date, the
Collateral Agent shall, as provided by the terms of the Pledge Agreement, comply
with the request referred to in clause (iii) of the preceding sentence (subject
to the Company's right to prevent the Collateral Agent from doing so to the
extent the aggregate amount the Company has received as contemplated by clause
(i) of the preceding sentence is less than the aggregate amount payable with
respect to the Units referred to in such request). The Unit Agent shall
thereupon, subject to its receipt from the Collateral Agent of the Pledged
Securities (or cash) referred to in such request and subject to Section 3.5,
transfer such released Pledged Securities (or cash) to the respective Holders
entitled thereto in accordance with the settlement instructions specified in the
form of Settlement Instructions appearing on the Unit Certificates evidencing
the Paid Units; provided, however, that if any such Unit Certificate is not
surrendered to the Unit Agent with the form of Settlement Instructions thereon
duly completed and executed, the Unit Agent shall hold such Pledged Securities
(or cash), and any distributions or interest received on such Pledged
Securities, as custodian for the Holder entitled thereto, to be delivered to
such Holder (without any interest thereon and subject to Section 3.5) upon
surrender of such Unit Certificate to the Unit Agent (with the form of
Settlement Instructions thereon duly completed and executed).
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(b) With respect to each Holder's Unpaid Units, pursuant to the terms
of the Pledge Agreement,
(i) (x) if QUIPS underlie such Unpaid Units, the Collateral
Agent, on behalf of such Holder, shall exercise such Holder's right
under the Declaration to require the Trust to distribute Junior
Subordinated Debentures having an aggregate principal amount equal to
the aggregate liquidation amount of such QUIPS, in exchange for such
QUIPS, and, upon receiving such Junior Subordinated Debentures, shall
thereupon, as Put Agent, exercise the Junior Subordinated Debenture Put
Option with respect thereto and (y) if Junior Subordinated Debentures
underlie such Unpaid Units, the Collateral Agent, on behalf of such
Holder, shall, as Put Agent, exercise the Junior Subordinated Debenture
Put Option with respect thereto;
(ii) the Collateral Agent shall deliver to the Company, out of
the proceeds from the exercise of such Junior Subordinated Debenture
Put Option or, if Treasury Securities underlie such Unpaid Units, the
proceeds from the payment of such Treasury Securities at maturity, an
amount equal to the aggregate Stated Amount of such Unpaid Units plus
the Unpaid Contract Fees, if any, payable by such Holder to the Company
in respect of such Unpaid Units to satisfy in full such Holder's
obligations under such Unpaid Units; and
(iii) the Collateral Agent shall remit to the Unit Agent, on
behalf of such Holder, the remainder of the proceeds, if any, from the
Pledged Securities underlying such Unpaid Units for distribution to
such Holder.
The amount referred to in clause (iii) above shall, subject to receipt thereof
by the Unit Agent from the Collateral Agent, be paid to the Person in whose name
the Unit Certificate (or one or more Predecessor Unit Certificates) evidencing
such Unpaid Units is registered at the close of Business on the Record Date next
preceding the Stock Purchase Date.
(c) Each Holder will be entitled to apply any unpaid amounts owing by
the Company to such Holder as a set-off to reduce, dollar-for-dollar, any
amounts then owing by such Holder to the Company in respect of such Holder's
Units, and such set-off amounts will be treated for all purposes as having been
paid in full by such Holder as required hereby.
(d) The Company shall not be obligated to issue any shares of Common
Stock in respect of a Purchase Contract or deliver any certificates therefor to
the Holder of the related Unit unless the Company shall have received payment in
full of the aggregate purchase price for the shares of Common Stock to be
purchased thereunder in the manner herein set forth (either directly or by
operation of set-off as contemplated by the preceding sentence).
5.5 ISSUANCE OF SHARES OF COMMON STOCK. On the Stock Purchase Date,
upon receipt by the Company of payment in full of the aggregate purchase price
for the shares of Common Stock purchased by the Holders pursuant to the
foregoing provisions of this Article, and subject to
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Section 5.6(b), the Company shall deposit with the Unit Agent, for the benefit
of the Holders of the Units, one or more certificates representing the shares of
Common Stock registered in the name of the Unit Agent (or its nominee) as
custodian for the Holders (such certificates for shares of Common Stock,
together with any dividends or distributions with respect thereto, being
hereinafter referred to as the "Purchase Contract Settlement Fund") to which the
Holders are entitled hereunder. Subject to the foregoing, upon surrender of a
Unit Certificate to the Unit Agent on or after the Stock Purchase Date, with the
form of Settlement Instructions thereon duly completed and executed, the Holder
of such Unit Certificate shall be entitled to receive in exchange therefor a
certificate representing that number of whole shares of Common Stock which such
Holder is entitled to receive pursuant to the provisions of this Article Five
(after taking into account all Units then held by such Holder) together with
cash in lieu of fractional shares as provided in Section 5.9 and any dividends
or distributions with respect to such shares constituting part of the Purchase
Contract Settlement Fund, but without any interest thereon, and the Unit
Certificate so surrendered shall forthwith be cancelled. Such shares shall be
registered in the name of the Holder or the Holder's designee as specified in
the form of Settlement Instructions appearing on the surrendered Unit
Certificate.
If any shares of Common Stock issued in respect of a Purchase Contract
are to be registered to a Person other than the Person in whose name the Unit
Certificate evidencing such Purchase Contract is registered, no such
registration shall be made unless the Person requesting such registration has
paid any transfer and other taxes required by reason of such registration in a
name other than that of the registered Holder of the Unit Certificate evidencing
such Purchase Contract or has established to the satisfaction of the Company
that such tax either has been paid or is not payable.
5.6 ADJUSTMENT OF SETTLEMENT RATE.
(a) Adjustments for Dividends, Distributions, Stock Splits, Etc.
(1) In case the Company shall pay or make a dividend or other
distribution on any class of Common Stock of the Company in Common
Stock, the Settlement Rate in effect at the opening of business on the
day following the date fixed for the determination of stockholders
entitled to receive such dividend or other distribution shall be
increased by dividing such Settlement Rate by a fraction of which the
numerator shall be the number of shares of Common Stock outstanding at
the close of business on the date fixed for such determination and the
denominator shall be the sum of such number of shares and the total
number of shares constituting such dividend or other distribution, such
increase to become effective immediately after the opening of business
on the day following the date fixed for such determination. For the
purposes of this paragraph (1), the number of shares of Common Stock at
any time outstanding shall not include shares held in the treasury of
the Company but shall include shares issuable in respect of scrip
certificates issued in lieu of fractions of shares of Common Stock. The
Company will not pay any dividend or make any distribution on shares of
Common Stock held in the treasury of the Company.
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(2) In case the Company shall issue rights, options or
warrants to all holders of its Common Stock (not being available on an
equivalent basis to Holders of the Units upon settlement of the
Purchase Contracts underlying such Units) entitling them, for a period
expiring within 45 days after the record date for the determination of
stockholders entitled to receive such rights, options or warrants, to
subscribe for or purchase shares of Common Stock at a price per share
less than the Current Market Price per share of the Common Stock on the
date fixed for the determination of stockholders entitled to receive
such rights, options or warrants (other than pursuant to a dividend
reinvestment plan), the Settlement Rate in effect at the opening of
business on the day following the date fixed for such determination
shall be increased by dividing such Settlement Rate by a fraction of
which the numerator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such
determination plus the number of shares of Common Stock which the
aggregate of the offering price of the total number of shares of Common
Stock so offered for subscription or purchase would purchase at such
Current Market Price and the denominator shall be the number of shares
of Common Stock outstanding at the close of business on the date fixed
for such determination plus the number of shares of Common Stock so
offered for subscription or purchase, such increase to become effective
immediately after the opening of business on the day following the date
fixed for such determination. For the purposes of this paragraph (2),
the number of shares of Common Stock at any time outstanding shall not
include shares held in the treasury of the Company but shall include
shares issuable in respect of scrip certificates issued in lieu of
fractions of shares of Common Stock. The Company shall not issue any
such rights, options or warrants in respect of shares of Common Stock
held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be
subdivided into a greater number of shares of Common Stock, the
Settlement Rate in effect at the opening of business on the day
following the day upon which such subdivision becomes effective shall
be proportionately increased, and, conversely, in case outstanding
shares of Common Stock shall each be combined into a smaller number of
shares of Common Stock, the Settlement Rate in effect at the opening of
business on the day following the day upon which such combination
becomes effective shall be proportionately reduced, such increase or
reduction, as the case may be, to become effective immediately after
the opening of business on the day following the day upon which such
subdivision or combination becomes effective.
(4) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock evidences of its
indebtedness or assets (including securities, but excluding any rights
or warrants referred to in paragraph (2) of this Section, any dividend
or distribution paid exclusively in cash and any dividend or
distribution referred to in paragraph (1) of this Section), the
Settlement Rate shall be adjusted so that the same shall equal the rate
determined by dividing the Settlement Rate in effect immediately prior
to the close of business on the date
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fixed for the determination of stockholders entitled to receive such
distribution by a fraction of which the numerator shall be the Current
Market Price per share of the Common Stock on the date fixed for such
determination less the then fair market value (as determined by the
Board of Directors, whose determination shall be conclusive and
described in a Board Resolution filed with the Unit Agent) of the
portion of the assets or evidences of indebtedness so distributed
applicable to one share of Common Stock and the denominator shall all
be such Current Market Price per share of the Common Stock, such
adjustment to become effective immediately prior to the opening of
business on the day following the date fixed for the determination of
stockholders entitled to receive such distribution. In any case in
which this paragraph (4) is applicable, paragraph (2) of this Section
shall not be applicable.
(5) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock cash (excluding any cash
that is distributed in a Reorganization Event to which Section 5.6(b)
applies or as part of a distribution referred to in paragraph (4) of
this Section) in an aggregate amount that, combined together with (I)
the aggregate amount of any other distributions to all holders of its
Common Stock made exclusively in cash within the 12 months preceding
the date of payment of such distribution and in respect of which no
adjustment pursuant to this paragraph (5) or paragraph (6) of this
Section has been made and (II) the aggregate of any cash plus the fair
market value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a Board Resolution),
as of the expiration of such tender or exchange offer, of consideration
payable in respect of any tender or exchange offer by the Company or
any of its subsidiaries for all or any portion of the Common Stock
expiring within the 12 months preceding the date of payment of such
distribution and in respect of which no adjustment pursuant to this
paragraph (5) or paragraph (6) of this Section has been made, exceeds
12.5% of the product of the Current Market Price per share of the
Common Stock on the date for the determination of holders of shares of
Common Stock entitled to receive such distribution times the number of
shares of Common Stock outstanding on such date, then, and in each such
case, immediately after the close of business on such date for
determination, the Settlement Rate shall be increased so that the same
shall equal the rate determined by dividing the Settlement Rate in
effect immediately prior to the close of business on the date fixed for
determination of the stockholders entitled to receive such distribution
by a fraction (i) the numerator of which shall be equal to the Current
Market Price peer share of the Common Stock on the date fixed for such
determination less an amount equal to the quotient of (x) the excess of
such combined amount over such 12.5% and (y) the number of shares of
Common Stock outstanding on such date for determination and (ii) the
denominator of which shall be equal to the Current Market Price per
share of the Common Stock on such date for determination.
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(6) In case a tender or exchange offer made by the Company or
any subsidiary of the Company for all or any portion of the Common
Stock shall expire and such tender or exchange offer (as amended upon
the expiration thereof) shall require the payment to stockholders
(based on the acceptance (up to any maximum specified in the terms of
the tender or exchange offer) of Purchased Shares) of an aggregate
consideration having a fair market value (as determined by the Board of
Directors, whose determination shall be conclusive and described in a
Board Resolution) that, combined together with (I) the aggregate of the
cash plus the fair market value (as determined by the Board of
Directors, whose determination shall be conclusive and described in a
Board Resolution), as of the expiration of such tender or exchange
offer, of consideration payable in respect of any other tender or
exchange offer by the Company or any of its subsidiaries for all or any
portion of the Common Stock expiring within the 12 months preceding the
expiration of such tender or exchange offer and in respect of which no
adjustment pursuant to paragraph (5) of this Section or this paragraph
(6) has been made and (II) the aggregate amount of any distributions to
all holders of the Company's Common Stock made exclusively in cash
within 12 months preceding the expiration of such tender or exchange
offer and in respect of which no adjustment pursuant to paragraph (5)
of this Section or this paragraph (6) has been made, exceeds 12.5% of
the product of the Current Market Price per share of the Common Stock
as of the last time (the "Expiration Time") tenders could have been
made pursuant to such tender or exchange offer (as it may be amended)
times the number of shares of Common Stock outstanding (including any
tendered shares) on the Expiration Time, then, and in each such case,
immediately prior to the opening of business on the day after the date
of the Expiration Time, the Settlement Rate shall be adjusted so that
the same shall equal the rate determined by dividing the Settlement
Rate immediately prior to the close of business on the date of the
Expiration Time by a fraction (i) the numerator of which shall be equal
to (A) the product of (I) the Current Market Price per share of the
Common Stock on the date of the Expiration Time and (II) the number of
shares of Common Stock outstanding (including any tendered shares) at
the Expiration Time less (B) the amount of cash plus the fair market
value (determined as aforesaid) of the aggregate consideration payable
to stockholders based on the acceptance (up to any maximum specified in
the terms of the tender or exchange offer) of Purchased Shares, and
(ii) the denominator of which shall be equal to the product of (A) the
Current Market Price per share of the Common Stock as of the Expiration
Time and (B) the number of shares of Common Stock outstanding
(including any tendered shares) as of the Expiration Time less the
number of all shares validly tendered and not withdrawn as of the
Expiration Time (the shares deemed so accepted, up to any such maximum,
being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities
including securities other than Common Stock (other than any
reclassification upon a Reorganization Event to which Section 5.6(b)
applies) shall be deemed to involve (i) a distribution of such
securities other than Common Stock to all holders of
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Common Stock (and the effective date of such reclassification shall be
deemed to be "the date fixed for the determination of stockholders
entitled to receive such distribution" and the "date fixed for such
determination" within the meaning of paragraph (4) of this Section),
and (ii) a subdivision or combination, as the case may be, of the
number of shares of Common Stock outstanding immediately prior to such
reclassification into the number of shares of Common Stock outstanding
immediately thereafter (and the effective date of such reclassification
shall be deemed to be "the day upon which such subdivision becomes
effective" or "the day upon which such combination becomes effective",
as the case may be, and "the day upon which such subdivision or
combination becomes effective" within the meaning of paragraph (3) of
this Section).
(8) The "Current Market Price" per share of Common Stock on
any day means the average of the daily Closing Prices for the 5
consecutive Trading Days selected by the Company commencing not more
than 20 Trading Days before, and ending not later than, the earlier of
the day in question and the day before the "ex" date with respect to
the issuance or distribution requiring such computation. For purposes
of this paragraph, the term "'ex' date," when used with respect to any
issuance or distribution, shall mean the first date on which the Common
Stock trades regular way on such exchange or in such market without the
right to receive such issuance or distribution.
(9) All adjustments to the Settlement Rate shall be calculated
to the nearest 1/10,000th of a share of Common Stock (or, if there is
not a nearest 1/10,000th of a share, to the next lower 1/10,000th of a
share). No adjustment in the Settlement Rate shall be required unless
such adjustment would require an increase or decrease of at least one
percent therein; provided, however, that any adjustments which by
reason of this subparagraph are not required to be made shall be
carried forward and taken into account in any subsequent adjustment. If
an adjustment is made to the Settlement Rate pursuant to paragraph (1),
(2), (3), (4), (5), (6), (7) or (10) of this Section 5.6(a), an
adjustment shall also be made to the Applicable Market Value solely to
determine which of clauses (a), (b) or (c) of the definition of
Settlement Rate in Section 5.1 will apply on the Stock Purchase Date.
Such adjustment shall be made by multiplying the Applicable Market
Value by a fraction of which the numerator shall be the Settlement Rate
immediately after such adjustment pursuant to paragraph (l), (2), (3),
(4), (5), (6), (7) or (10) of this Section 5.6(a) and the denominator
shall be the Settlement Rate immediately before such adjustment.
(10) The Company may make such increases in the Settlement
Rate, in addition to those required by this Section, as it considers to
be advisable in order to avoid or diminish any income tax to any
holders of shares of Common Stock resulting from any dividend or
distribution of stock or issuance of rights or warrants to purchase or
subscribe for stock or from any event treated as such for income tax
purposes or for any other reasons.
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(b) Adjustment for Consolidation, Merger or Other Reorganization Event.
In the event of (i) any consolidation or merger of the Company with or into
another Person (other than a merger or consolidation in which the Company is the
continuing corporation and in which the Common Stock outstanding immediately
prior to the merger or consolidation is not exchanged for cash, securities or
other property of the Company or another corporation), (ii) any sale, transfer,
lease or conveyance to another Person of the property of the Company as an
entirety or substantially as an entirety, (iii) any statutory exchange of
securities of the Company with another Person (other than in connection with a
merger or acquisition) or (iv) any liquidation, dissolution or winding up of the
Company (any such event, a "Reorganization Event"), the Settlement Rate will be
adjusted to provide that each Holder of Units will receive on the Stock Purchase
Date with respect to each Purchase Contract forming a part thereof, the kind and
amount of securities, cash and other property receivable upon such
Reorganization Event by a Holder of the number of shares of Common Stock
issuable on account of each Purchase Contract if the Stock Purchase Date had
occurred immediately prior to such Reorganization Event, assuming such Holder of
Common Stock is not a Person with which the Company consolidated or into which
the Company merged or which merged into the Company or to which such sale or
transfer was made, as the case may be ("constituent Person"), or an Affiliate of
a constituent Person, and failed to exercise his rights of election, if any, as
to the kind or amount of securities, cash and other property receivable upon
such Reorganization Event (provided that if the kind or amount of securities,
cash and other property receivable upon such Reorganization Event is not the
same for each share of Common Stock held immediately prior to such
Reorganization Event by other than a constituent Person or an Affiliate thereof
and in respect of which such rights of election shall not have been exercised
("non-electing share"), then for the purpose of this Section the kind and amount
of securities, cash and other property receivable upon such Reorganization Event
by each non-electing share shall be deemed to be the kind and amount so
receivable per share by a plurality of the non-electing shares). In the event of
such a Reorganization Event, the Person formed by such consolidation, merger or
exchange or the Person which acquires the assets of the Company or, in the event
of a liquidation or dissolution of the Company, the Company or a liquidating
trust created in connection therewith, shall execute and deliver to the Unit
Agent an agreement supplemental hereto providing that the Holders of each
Outstanding Unit shall have the rights provided by this Section 5.6. Such
supplemental agreement shall provide for adjustments which, for events
subsequent to the effective date of such supplemental agreement, shall be as
nearly equivalent as may be practicable to the adjustments provided for in this
Section. The above provisions of this Section shall similarly apply to
successive Reorganization Events.
5.7 NOTICE OF ADJUSTMENTS AND CERTAIN OTHER EVENTS.
(a) Whenever the Settlement Rate is adjusted as herein provided, the
Company shall:
(i) forthwith compute the adjusted Settlement Rate in
accordance with Section 5.6 and prepare and transmit to the Unit Agent
an Officers' Certificate setting forth the Settlement Rate, the method
of calculation thereof in reasonable detail, and the facts requiring
such adjustment and upon which such adjustment is based; and
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(ii) within 10 Business Days following the occurrence of an
event that permits or requires an adjustment to the Settlement Rate
pursuant to Section 5.6 (or if the Company is not aware of such
occurrence, as soon as practicable after becoming so aware), provide a
written notice to the Holders of the Units of the occurrence of such
event and a statement in reasonable detail setting forth the method by
which the adjustment to the Settlement Rate was determined and setting
forth the adjusted Settlement Rate.
(b) The Unit Agent shall not at any time be under any duty or
responsibility to any holder of Units to determine whether any facts exist which
may require any adjustment of the Settlement Rate, or with respect to the nature
or extent or calculation of any such adjustment when made, or with respect to
the method employed in making the same. The Unit Agent shall not be accountable
with respect to the validity or value (or the kind or amount) of any shares of
Common Stock, or of any securities or property, which may at the time be issued
or delivered with respect to any Purchase Contract; and the Unit Agent makes no
representation with respect thereto. The Unit Agent shall not be responsible for
any failure of the Company to issue, transfer or deliver any shares of Common
Stock pursuant to a Purchase Contract or to comply with any of the duties,
responsibilities or covenants of the Company contained in this Article.
5.8 NO FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares of Common Stock shall be issued or delivered upon settlement
on the Stock Purchase Date. If Unit Certificates evidencing more than one
Purchase Contract shall be surrendered for settlement at one time by the same
Holder, the number of full shares of Common Stock which shall be delivered upon
settlement shall be computed on the basis of the aggregate number of Purchase
Contracts evidenced by the Unit Certificates so surrendered. Instead of any
fractional share of Common Stock which would otherwise be deliverable upon
settlement of any Purchase Contracts on the Stock Purchase Date, the Company,
through the Unit Agent, shall make a cash payment in respect of such fractional
interest in an amount equal to such fraction times the Applicable Market Value.
The Company shall provide the Unit Agent from time to time with sufficient funds
to permit the Unit Agent to make all cash payments required by this Section 5.8
in a timely manner.
5.9 CHARGES AND TAXES. The Company will pay all stock transfer and
similar taxes attributable to the initial issuance and delivery of the shares of
Common Stock pursuant to the Purchase Contracts; provided, however, that the
Company shall not be required to pay any such tax or taxes which may be payable
in respect of any exchange of or substitution for a Unit Certificate evidencing
a Purchase Contract or any issuance of a share of Common Stock in a name other
than that of the registered Holder of a Unit Certificate surrendered in respect
of the Purchase Contracts evidenced thereby, other than in the name of the Unit
Agent, as custodian for such Holder, and the Company shall not be required to
issue or deliver such share certificates or Unit Certificates unless or until
the Person or Persons requesting the transfer or issuance thereof shall have
paid to the Company the amount of such tax or shall have established to the
satisfaction of the Company that such tax has been paid.
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5.10 TERMINATION EVENT; NOTICE. The Purchase Contracts and the
obligations and rights of the Company and the Holders thereunder, including,
without limitation, all obligations and rights to pay or receive any accrued or
deferred Contract Fees or to settle such Purchase Contracts pursuant to this
Article Five, shall immediately and automatically terminate, without the
necessity of any notice or action by any Holder, the Unit Agent or the Company,
if, on or prior to the Stock Purchase Date, a Termination Event shall have
occurred. Upon the occurrence of a Termination Event, the Company shall give
written notice to the Unit Agent, the Collateral Agent and the Holders, at their
addresses as they appear in the Unit Registers. Upon and after the occurrence of
a Termination Event, the provisions of this Article Five (other than this
Section 5.10) shall automatically terminate and be of no further force or
effect, and the Unit Certificates shall thereafter represent only the right to
receive the Pledged Securities forming a part of the Units theretofore evidenced
thereby in accordance with the provisions of Section 4.2 and the Pledge
Agreement.
6. REMEDIES.
6.1 UNCONDITIONAL RIGHTS OF HOLDERS. Notwithstanding any other
provision in this Agreement, the Holder of any Unit shall have the right, which
is absolute and unconditional, to purchase Common Stock pursuant to the Purchase
Contract underlying such Unit and to receive payment of Contract Fees, if any,
payable by the Company to such Holder with respect to such Purchase Contract
and, in each such case, to institute suit for the enforcement of any such right,
and such rights shall not be impaired without the consent of such Holder.
6.2 RESTORATION OF RIGHTS AND REMEDIES. If any Holder of Units has
instituted any proceeding to enforce any right or remedy under this Agreement
and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to such Holder, then and in every such case, subject
to any determination in such proceeding, the Company and such Holder shall be
restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of such Holder shall continue as though no
such proceeding had been instituted.
6.3 RIGHTS AND REMEDIES CUMULATIVE. Except as otherwise provided with
respect to the replacement of mutilated, destroyed, lost or stolen Unit
Certificates in the last paragraph of Section 3.6, no right or remedy herein
conferred upon or reserved to the Holders of Units is intended to be exclusive
of any other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
6.4 DELAY OR OMISSION NOT WAIVER. No delay or omission of any Holder to
exercise any right or remedy shall impair any such right or remedy or constitute
a waiver of any such right. Every right and remedy given by this Article or by
law to the Holders may be exercised from time to time, and as often as may be
deemed expedient, by such Holders.
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6.5 UNDERTAKING FOR COSTS. All parties to this Agreement agree, and
each Holder of any Unit by his acceptance of the Unit Certificate evidencing
such Unit shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this
Agreement, or in any suit against the Unit Agent for any action taken, suffered
or omitted by it as Unit Agent, the filing by any party litigant in such suit of
an undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; provided that
the provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Unit Agent, to any suit instituted by any
Holder of Units, or group of Holders, holding in the aggregate more than 10% of
the Outstanding Units, or to any suit instituted by any Holder of Units for the
enforcement of payments due in respect of Pledged Securities or Contract Fees on
Purchase Contracts underlying such Units on or after the respective due dates
therefor, or for enforcement of the right to purchase shares of Common Stock
under the Purchase Contracts constituting a part of such Units.
6.6 WAIVER OF STAY OR EXTENSION LAWS. The Company covenants (to the
extent that it may lawfully do so) that it will not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the performance of this Agreement; and
the Company (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Unit Agent or
the Holders, but will suffer and permit the execution of every such power as
though no such law had been enacted.
7. THE UNIT AGENT.
7.1 CERTAIN DUTIES AND RESPONSIBILITIES.
(a) (i) The Unit Agent undertakes to perform, with respect to
the Units, such duties and only such duties as are specifically set
forth in this Agreement, and no implied covenants or obligations shall
be read into this Agreement against the Unit Agent; and
(ii) in the absence of bad faith or negligence on its part,
the Unit Agent may, with respect to the Units, conclusively rely, as to
the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished to the Unit
Agent and conforming to the requirements of this Agreement, but in the
case of any certificates or opinions which by any provision hereof are
specifically required to be furnished to the Unit Agent, the Unit Agent
shall be under a duty to examine the same to determine whether or not
they conform to the requirements of this Agreement.
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(b) No provision of this Agreement shall be construed to relieve the
Unit Agent from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that
(i) this Subsection shall not be construed to limit the effect
of Subsection (a) of this Section;
(ii) the Unit Agent shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it shall
be proved that the Unit Agent was negligent in ascertaining the
pertinent facts; and
(iii) no provision of this Agreement shall require the Unit
Agent to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to
it.
(c) Whether or not therein expressly so provided, every provision of
this Agreement relating to the conduct or affecting the liability of or
affording protection to the Unit Agent shall be subject to the provisions of
this Section.
7.2 NOTICE OF DEFAULT. Within 90 days after the occurrence of any
default by the Company hereunder, of which a Responsible Officer of the Unit
Agent has actual knowledge, the Unit Agent shall transmit by mail to all Holders
of Units, as their names and addresses appear in the Unit Registers, notice of
such default hereunder, unless such default shall have been cured or waived.
7.3 CERTAIN RIGHTS OF UNIT AGENT. Subject to the provisions of Section
7.1:
(a) the Unit Agent may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by an Officers' Certificate, Issuer Order or Issuer
Request, and any resolution of the Board of Directors of the Company may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Agreement the Unit Agent
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any-action-hereunder, the Unit Agent (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officers' Certificate of the Company;
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(d) the Unit Agent may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Unit Agent shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Unit Agent, in its discretion, may make reasonable further inquiry or
investigation into such facts or matters related to the issuance of the Units
and the execution, delivery and performance of the Purchase Contracts as it may
see fit, and, if the Unit Agent shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and promises
of the Company, personally or by agent or attorney; and
(f) the Unit Agent may execute any of its powers hereunder or perform
any duties hereunder either directly or by or through agents or attorneys and
the Unit Agent shall not be responsible for any misconduct or negligence on the
part of any agent or attorney appointed with due care by it hereunder.
7.4 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF UNITS. The recitals
contained herein and in the Unit Certificates shall be taken as the statements
of the Company and the Unit Agent assumes no responsibility for their
correctness. The Unit Agent makes no representations as to the validity or
sufficiency of this Agreement or of the Units. The Unit Agent shall not be
accountable for the use or application by the Company of the proceeds in respect
of the QUIPS or Purchase Contracts.
7.5 MAY HOLD UNITS. Any Unit Registrar or any other agent of the
Company, or the Unit Agent, in its individual or any other capacity, may become
the owner or pledges of Units and may otherwise deal with the Company with the
same rights it would have if it were not Unit Registrar or such other agent, or
the Unit Agent.
7.6 MONEY HELD IN TRUST. Money held by the Unit Agent in trust
hereunder need not be segregated from the other funds except to the extent
required by law. The Unit Agent shall be under no obligation to invest or pay
interest on any money received by it hereunder except as otherwise agreed with
the Company.
7.7 COMPENSATION AND REIMBURSEMENT. The Company agrees:
(i) to pay to the Unit Agent from time to time reasonable
compensation for all services rendered by it hereunder;
(ii) except as otherwise expressly provided herein, to
reimburse the Unit Agent upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Unit Agent in
accordance with any provision of this Agreement (including the
reasonable compensation and the expenses and
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disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(iii) to indemnify the Unit Agent and any predecessor Unit
Agent for, and to hold each of them harmless against, any loss,
liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or
administration of its duties hereunder, including the costs and
expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder.
7.8 CORPORATE UNIT AGENT REQUIRED; ELIGIBILITY. There shall at all
times be an Unit Agent hereunder which shall be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $50,000,000,
subject to supervision or examination by Federal or State authority and having
its Corporate Trust Office in the Borough of Manhattan, The City of New York, if
there be such a corporation in the Borough of Manhattan, The City of New York
qualified and eligible under this Article and willing to act on reasonable
terms. If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Unit Agent shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
7.9 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Unit Agent and no appointment of a
successor Unit Agent pursuant to this Article shall become effective until the
acceptance of appointment by the successor Unit Agent in accordance with the
applicable requirements of Section 7.10.
(b) The Unit Agent may resign at any time by giving written notice
thereof to the Company 60 days prior to the effective date of such resignation.
If the instrument of acceptance by a successor Unit Agent required by Section
7.10 shall not have been delivered to the Unit Agent within 30 days after the
giving of such notice of resignation, the resigning Unit Agent may petition any
court of competent jurisdiction for the appointment of a successor Unit Agent.
(c) The Unit Agent may be removed at any time by Act of the Holders of
a majority in number of the Outstanding Units delivered to the Unit Agent and
the Company.
(d) If at any time
(i) the Unit Agent fails to comply with Section 3.10(b) of the
TIA, as if the Unit Agent were an indenture trustee under an indenture
qualified under the
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TIA, after written request therefor by the Company or by any Holder who
has been a bona fide Holder of a Unit for at least six months, or
(ii) the Unit Agent shall cease to be eligible under Section
7.8 and shall fail to resign after written request therefor by the
Company or by any such Holder, or
(iii) the Unit Agent shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the Unit Agent or
of its property shall be appointed or any public officer shall take
charge or control of the Unit Agent or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (x) the Company by a Board Resolution may remove the
Unit Agent, or (y) any Holder who has been a bona fide Holder of a Unit for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Unit Agent
and the appointment of a successor Unit Agent.
(e) If the Unit Agent shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Unit Agent for any cause,
the Company, by a Board Resolution, shall promptly appoint a successor Unit
Agent and shall comply with the applicable requirements of Section 7.10. If no
successor Unit Agent shall have been so appointed by the Company and accepted
appointment in the manner required by Section 7.10, any Holder who has been a
bona fide Holder of a Unit for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Unit Agent.
(f) The Company shall give, or shall cause such successor Unit Agent to
give, notice of each resignation and each removal of the Unit Agent and each
appointment of a successor Unit Agent by mailing written notice of such event by
first-class mail, postage prepaid, to all Holders of Units as their names and
addresses appear in the Unit Registers. Each notice shall include the name of
the successor Unit Agent and the address of its Corporate Trust Office.
7.10 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Unit Agent,
every such successor Unit Agent so appointed shall execute, acknowledge and
deliver to the Company and to the retiring Unit Agent an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring Unit
Agent shall become effective and such successor Unit Agent, without any further
act, deed or conveyance, shall become vested with all the rights, powers,
agencies and duties of the retiring Unit Agent; but, on the request of the
Company or the successor Unit Agent, such retiring Unit Agent shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Unit Agent all the rights, powers and trusts of the retiring Unit
Agent and shall duly assign, transfer and deliver to such successor Unit Agent
all property and money held by such retiring Unit Agent hereunder.
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(b) Upon request of any such successor Unit Agent, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Unit Agent all such rights, powers and agencies
referred to in paragraph (a) of this Section.
(c) No successor Unit Agent shall accept its appointment unless at the
time of such acceptance such successor Unit Agent shall be qualified and
eligible under this Article.
7.11 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS. Any
corporation into which the Unit Agent may be merged or converted or with which
it may be consolidated, or any-corporation resulting from any merger, conversion
or consolidation to which the Unit Agent shall be a party, or any corporation
succeeding to all or substantially all the corporate trust business of the Unit
Agent, shall be the successor of the Unit Agent hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Unit Certificates shall have been
authenticated and executed on behalf of the Holders, but not delivered, by the
Unit Agent then in office, any successor by merger, conversion or consolidation
to such Unit Agent may adopt such authentication and execution and deliver the
Unit Certificates so authenticated and executed with the same effect as if such
successor Unit Agent had itself authenticated and executed such Units.
7.12 PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Unit Agent shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders received by the Unit
Agent in its capacity as Unit Registrar.
(b) If three or more Holders (herein referred to as "applicants") apply
in writing to the Unit Agent, and furnish to the Unit Agent reasonable proof
that each such applicant has owned a Unit for a period of at least six months
preceding the date of such application, and such application states that the
applicants desire to communicate with other Holders with respect to their rights
under this Agreement or under the Units and is accompanied by a copy of the form
of proxy or other communication which such applicants propose to transmit, then
the Unit Agent shall, within five Business Days after the receipt of such
application, afford such applicants access to the information preserved at the
time by the Unit Agent in accordance with Section 7.12(a).
(c) Every Holder of Units, by receiving and holding the Unit
Certificates evidencing the same, agrees with the Company and the Unit Agent
that none of the Company, the Unit Agent nor any agent of any of them shall be
held accountable by reason of the disclosure of any such information as to the
names and addresses of the Holders in accordance with Section 7.12(b),
regardless of the source from which such information was derived.
7.13 NO OBLIGATIONS OF UNIT AGENT. Except to the extent otherwise
provided in this Agreement, the Unit Agent assumes no obligations and shall not
be subject to any liability under this Agreement or any Purchase Contract or
Call Option in respect of the obligations of the Holder of any Unit thereunder.
The Company agrees, and each Holder of a Unit Certificate, by
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his acceptance thereof, shall be deemed to have agreed, that the Agent's
execution of the Unit Certificates on behalf of the Holders shall be solely as
agent and attorney-in-fact for the Holders, and that the Unit Agent shall have
no obligation to perform such Purchase Contracts or Call Options on behalf of
the Holders, except to the extent expressly provided in Article Five hereof.
7.14 TAX COMPLIANCE.
(a) The Unit Agent, on its own behalf and on behalf of the Company,
will comply with all applicable certification, information reporting and
withholding (including "backup" withholding) requirements imposed by applicable
tax laws, regulations or administrative practice with respect to (i) any
payments made with respect to the Units or (ii) the issuance, delivery, holding,
transfer, redemption or exercise of rights under the Units. Such compliance
shall include, without limitation, the preparation and timely filing of required
returns and the timely payment of all amounts required to be withheld to the
appropriate taxing authority or its designated agent.
(b) The Unit Agent shall comply with any direction received from the
Company with respect to the application of such requirements to particular
payments or Holders or in other particular circumstances, and may for purposes
of this Agreement rely on any such direction in accordance with the provisions
of Section 7.1(a)(ii) hereof.
(c) The Unit Agent shall maintain all appropriate records documenting
compliance with such requirements, and shall make such records available, on
written request, to the Company or to its authorized representative within a
reasonable period of time after receipt of such request.
8. SUPPLEMENTAL AGREEMENTS.
8.1 SUPPLEMENTAL AGREEMENTS WITHOUT CONSENT OF HOLDERS. Without the
consent of any Holders, the parties to any Principal Agreement, at any time and
from time to time, may enter into one or more agreements supplemental hereto or
thereto, in form satisfactory to such parties, for any of the following
purposes:
(1) to evidence the succession of another Person to any such
party, and the assumption by any such successor of the covenants of
such party herein or therein and under the Units; or
(2) to add to the covenants of the Company for the benefit of
the Holders, or to surrender any right or power herein conferred upon
the Company; or
(3) to evidence and provide for the acceptance of appointment
hereunder by a successor Unit Agent; or
(4) to evidence the succession of another Person to the rights
of the Call Option Holder under the Call Options, in connection with a
transfer of such rights by the Call Option Holder to such Person; or
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(5) to make provision with respect to the rights of Holders
pursuant to the requirements of Section 5.6(b); or
(6) to cure any ambiguity, to correct or supplement any
provisions herein or therein which may be inconsistent with any other
provisions herein or therein, or to make any other provisions with
respect to such matters or questions arising under such Principal
Agreement, provided such action shall not adversely affect the
interests of the Holders.
8.2 SUPPLEMENTAL AGREEMENTS WITH CONSENT OF HOLDERS. With the consent
of the Holders of not less than a majority of the Outstanding Units (or, with
respect to modifications that adversely affect only the Holders of Normal Units
or only the Holders of Stripped Units, with the consent of the Holders of not
less than a majority of the Outstanding Units that comprise Normal Units or
Stripped Units, as the case may be), by Act of said Holders delivered to the
parties to any Principal Agreement, such parties (when authorized, in the case
of the Company, by a Board Resolution) may enter into an agreement or agreements
supplemental to such Principal Agreement for the purpose of modifying in any
manner the terms of the Units, or the provisions of such Principal Agreement or
the rights of the Holders in respect of the Units; provided! however, that no
such supplemental agreement shall, without the consent of the Holder of each
Outstanding Unit affected thereby,
(1) change any payment date;
(2) change the amount or type of Pledged Securities underlying
a Unit, impair the right of the Holder of any Unit to receive
distributions or interest payments on the underlying Pledged Securities
or otherwise adversely affect the Holder's rights in or to such Pledged
Securities (including the rights of Holders of Normal Units to effect a
Stripped Unit Creation);
(3) reduce the Contract Fees, if any, or other amounts
receivable by Holders in respect of Units or increase the Contract
Fees, if any, or other amounts payable by Holders in respect of Units
or change any place where, or the coin or currency in which, any
Contract Fees or other amounts receivable or payable in respect of
Units are payable;
(4) impair the right to institute suit for the enforcement of
any Purchase Contract;
(5) reduce the number of shares of Common Stock to be
purchased pursuant to any Purchase Contract, increase the price to
purchase shares of Common Stock upon settlement of any Purchase
Contract, change the Stock Purchase Date or otherwise adversely affect
the Holder's rights under any Purchase Contract; or
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(6) reduce the amount payable on exercise of any Call Option,
extend the Call Option Execution Date (as defined in the Call Option
Agreement) or otherwise adversely affect any Holder's rights under any
Call Option; or
(7) reduce the percentage of the Outstanding Units the consent
of whose Holders is required for any such supplemental agreement.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental agreement, but it shall
be sufficient if such Act shall approve the substance thereof.
8.3 EXECUTION OF SUPPLEMENTAL AGREEMENTS. In executing, or accepting
the additional agencies created by, any supplemental agreement permitted by this
Article or the modifications thereby of the agencies created by this Agreement,
the Unit Agent shall be entitled to receive and (subject to Section 7.1) shall
be fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental agreement is authorized or permitted by this
Agreement. The Unit Agent may, but shall not be obligated to, enter into any
such supplemental agreement which affects the Agent's own rights, duties or
immunities under this Agreement or otherwise.
8.4 EFFECT OF SUPPLEMENTAL AGREEMENTS. Upon the execution of any
supplemental agreement under this Article, the relevant Principal Agreement
shall be modified in accordance therewith, and such supplemental agreement shall
form a part of such Principal Agreement for all purposes; and every Holder of
Unit Certificates theretofore or thereafter authenticated, executed on behalf of
the Holder and delivered hereunder shall be bound thereby.
8.5 REFERENCE TO SUPPLEMENTAL AGREEMENTS. Unit Certificates
authenticated, executed on behalf of the Holders and delivered after the
execution of any supplemental agreement pursuant to this Article may, and shall
if required by the Unit Agent, bear a notation in form approved by the Unit
Agent as to any matter provided for in such supplemental agreement. If the
Company shall so determine, new Unit Certificates so modified as to conform, in
the opinion of the Unit Agent and the Company, to any such supplemental
agreement may be prepared and executed by the Company and authenticated,
executed on behalf of the Holders and delivered by the Unit Agent in exchange
for Outstanding Unit Certificates evidencing the same number of Normal Units or
Stripped Units, as the case may be.
9. CONSOLIDATION, MERGER, SALE OR CONVEYANCE.
9.1 COVENANT NOT TO MERGE, CONSOLIDATE, SELL OR CONVEY PROPERTY EXCEPT
UNDER CERTAIN CONDITIONS. The Company covenants that it will not merge or
consolidate with any other Person or sell or convey all or substantially all of
its assets to any Person, except that the Company may merge or consolidate with,
or sell or convey all or substantially all of its assets to, any other Person,
provided that (a) the Company shall be the continuing corporation, or the
successor (if other than the Company) shall be a corporation organized and
existing under the laws of the United States of America or a State thereof and
such corporation shall assume the obligations of the Company under the Purchase
Contracts and the Pledge Agreement by one or more
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supplemental agreements in form satisfactory to the Unit Agent and, in the case
of the Pledge Agreement, the Collateral Agent, executed and delivered to the
Unit Agent, and, in the case of the Pledge Agreement, the Collateral Agent by
such corporation, and (b) the Company or such successor corporation, as the case
may be, shall not, immediately after such merger or consolidation, or such sale
or conveyance, be in default in the performance of any covenant or condition
under any Principal Amount or under any of the Units.
9.2 RIGHTS AND DUTIES OF SUCCESSOR CORPORATION. In case of any such
consolidation, merger, sale or conveyance and upon any such assumption by the
successor corporation, such successor corporation shall succeed to and be
substituted for the Company with the same effect as if it had been named herein
as the Company. Such successor corporation thereupon may cause to be signed, and
may issue either in its own name or in the name of AirTouch Communications,
Inc., any or all of the Unit Certificates evidencing Units issuable hereunder
which theretofore shall not have been signed by the Company and delivered to the
Unit Agent; and, upon the order of such successor corporation, instead of the
Company, and subject to all the terms, conditions and limitations in this
Agreement prescribed, the Unit Agent shall authenticate and execute on behalf of
the Holders and deliver any Unit Certificates which previously shall have been
signed and delivered by the officers of the Company to the Unit Agent for
authentication and execution, and any Unit Certificate evidencing Units which
such successor corporation thereafter shall cause to be signed and delivered to
the Unit Agent for that purpose. All the Unit Certificates so issued shall in
all respects have the same legal rank and benefit under this Agreement as the
Unit Certificates theretofore or thereafter issued in accordance with the terms
of this Agreement as though all of such Unit Certificates had been issued at the
date of the execution hereof.
In case of any such consolidation, merger, sale or conveyance such
change in phraseology and form (but not in substance) may be made in the Unit
Certificates evidencing Units thereafter to be issued as may be appropriate.
9.3 OPINION OF COUNSEL TO UNIT AGENT. The Unit Agent, subject to
Sections 7.1 and 7.3, may receive an Opinion of Counsel as conclusive evidence
that any such consolidation, merger, sale or conveyance, and any such
assumption, complies with the provisions of this Article.
10. COVENANTS.
10.1 PERFORMANCE UNDER PURCHASE CONTRACTS. The Company covenants and
agrees for the benefit of the Holders from time to time of the Units that it
will duly and punctually perform its obligations under the Purchase Contracts in
accordance with the terms of the Purchase Contracts and this Agreement.
10.2 MAINTENANCE OF OFFICE OR AGENCY. The Company will maintain in the
Borough of Manhattan, The City of New York an office or agency where Unit
Certificates may be presented or surrendered for acquisition of shares of Common
Stock upon settlement and for transfer of Pledged Securities upon occurrence of
a Termination Event, where Unit Certificates may be surrendered for registration
of transfer or exchange or for effecting Stripped Unit Creations, where payment
of Contract Fees, if any, payable by the Company to the Holders may be made
-44-
<PAGE>
and where notices and demands to or upon the Company in respect of the Units and
this Agreement may be served. The Company will give prompt written notice to the
Unit Agent of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Unit Agent with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office, and the Company hereby appoints the Unit
Agent as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other
offices or agencies where Unit Certificates may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, The City of New York for such purposes. The Company will
give prompt written notice to the Unit Agent of any such designation or
rescission and of any change in the location of any such other office or agency.
The Company hereby designates as the place of payment for the Units the
Corporate Trust Office and appoints the Unit Agent at its Corporate Trust Office
as paying agent in such city.
10.3 COMPANY TO RESERVE COMMON STOCK. The Company shall at all times
prior to the Stock Purchase Date reserve and keep available, free from
preemptive rights, out of its authorized but unissued Common Stock the full
number of shares of Common Stock issuable against tender of payment in respect
of all Purchase Contracts underlying the Units.
10.4 COVENANTS AS TO COMMON STOCK. The Company covenants that all
shares of Common Stock which may be issued against tender of payment in respect
of the Purchase Contracts underlying the Units will, upon issuance, be newly
issued (i.e., not issued out of treasury shares) and be duly authorized, validly
issued, fully paid and nonassessable.
10.5 STATEMENTS OF OFFICERS OF THE COMPANY AS TO DEFAULT. The Company
will deliver to the Unit Agent, within 120 days after the end of each fiscal
year of the Company ending after the date hereof, an Officers' Certificate,
stating whether or not to the best knowledge of the signers thereof the Company
is in default in the performance and observance of any of the terms,
-45-
<PAGE>
provisions and conditions hereof, and if the Company shall be in default,
specifying all such defaults and the nature and status thereof of which they may
have knowledge.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
AIRTOUCH COMMUNICATIONS, INC.
By
--------------------------------------
Title
-----------------------------------
_________________, as Unit Agent
By
--------------------------------------
Title
-----------------------------------
-46-
<PAGE>
EXHIBIT A
FORM OF NORMAL UNIT CERTIFICATE
AIRTOUCH COMMUNICATIONS, INC.
% ADJUSTABLE CONVERSION-RATE EQUITY SECURITY UNITS
(STATED AMOUNT $_______ PER NORMAL UNIT)
No. ____ _______ Normal Units
This Unit Certificate certifies that is the registered Holder of the
number of Normal Units set forth above. Each Normal Unit represents the right to
purchase Common Stock under a Purchase Contract with AirTouch Communications,
Inc., a Delaware corporation (the "Company"), together with ownership of the
QUIPS(sm)* or other Pledged Securities pledged to secure the obligations
referred to in (a) and (b) below, subject to (a) the obligations owed to the
Company under such Purchase Contract, (b) for so long as any Call Options remain
exercisable, the obligations owed to the Call Option Holder under a Call Option
and (c) the pledge arrangements securing the foregoing obligations.
Each Purchase Contract evidenced hereby is governed by a Master Unit
Agreement, dated as of ____________, 199_ (the "Master Unit Agreement"), between
the Company and _________________, as unit agent (herein called the "Unit
Agent"). All terms used herein which are defined in the Master Unit Agreement
have the meanings set forth therein. Each Call Option evidenced hereby is
governed by the Call Option Agreement. The Pledge of the Pledged Securities
evidenced hereby is governed by the Pledge Agreement. Reference is hereby made
to the Master Unit Agreement, the Call Option Agreement and the Pledge
Agreement, and any supplemental agreements thereto, for a description of the
respective rights, limitations of rights, obligations, duties and immunities
thereunder of the Unit Agent, the Company, the Call Option Holder, the
Collateral Agent and the Holders. The summary contained herein is qualified in
its entirety by the provisions of the Principal Agreements, and the Principal
Agreements shall govern the rights of the parties to the extent that there is
any conflict between such summary and such provisions.
Each Purchase Contract evidenced hereby obligates the Holder of this
Unit Certificate to purchase, and the Company to sell, on [__________, 2001]
(the "Stock Purchase Date"), at a price equal to $________ (the "Stated
Amount"), a number of shares of Common Stock, par value $.01 per share ("Common
Stock"), of the Company equal to the Settlement Rate, unless on or prior to the
Stock Purchase Date there shall have occurred a Termination Event. The
"Settlement Rate" is equal to (a) if the Applicable Market Value (as defined in
the Master Unit Agreement) is greater than or equal to $________ (the "Threshold
Appreciation Price"),
- ----------
* QUIPS is a servicemark of Goldman, Sachs & Co.
A-1
<PAGE>
_______________ of a share of Common Stock per Purchase Contract, (b) if the
Applicable Market Value is less than the Threshold Appreciation Price but is
greater than the Stated Amount, a fractional share of Common Stock per Purchase
Contract equal to the Stated Amount divided by the Applicable Market Value
(rounded to the nearest 1/10,000th of a share or, if there is no nearest
1/10,000th of a share, rounded downward to the nearest 1/10,000th of a share)
and (c) if the Applicable Market Amount is less than or equal to the Stated
Amount, one share of Common Stock per Purchase Contract, in each case subject to
adjustment as provided in the Master Purchase Agreement. No fractional shares of
Common Stock will be issued upon settlement of Purchase Contracts. The purchase
price for the shares of Common Stock to be purchased pursuant to each Purchase
Contract evidenced hereby, if not paid by 10:00 a.m., New York City time, on the
Stock Purchase Date, shall be paid by application of payments received by the
Company on the Stock Purchase Date from the Collateral Agent pursuant to the
Pledge Agreement in respect of the Pledged Securities pledged to secure such
Holder's obligations under such Purchase Contract.
The Purchase Contracts and the obligations and rights of the Company
and the Holders thereunder, including, without limitation, the rights and
obligations to receive and pay accrued or deferred Contract Fees, shall
immediately and automatically terminate, without the necessity of any notice or
action by any Holder, the Unit Agent or the Company, if, on or prior to the
Stock Purchase Date, a Termination Event shall have occurred. Upon and after the
occurrence of a Termination Event, the Collateral Agent shall release the
Pledged Securities from the Pledge. The Normal Units shall thereafter represent
the right to receive the Pledged Securities forming a part of such Normal Units
in accordance with the provisions of the Master Unit Agreement and the Pledge
Agreement.
The Call Options evidenced hereby entitle the Call Option Holder to
acquire the QUIPS (or Junior Subordinated Debentures substituted therefor)
evidenced hereby on or before [_________, 2001,] unless prior to the exercise
thereof there shall have occurred a Termination Event. The Call Option Holder
may exercise such Call Options only in whole together with the Call Options
underlying the other Normal Units, by delivering to the Unit Agent a notice of
exercise and delivering to the Collateral Agent the Aggregate Consideration
Deliverable Upon Exercise of Call Options, whereupon the QUIPS or Junior
Subordinated Debentures underlying the Normal Units will be released from the
Pledge and the Treasury Securities constituting all or part of the Aggregate
Consideration Deliverable Upon Exercise of Call Options delivered to the
Collateral Agent will be substituted as the Pledged Securities underlying the
Normal Units.
The [COMPANY] [HOLDER] shall pay, on each ____________, ____________,
and ____________, commencing ________, 199__ (each, a "Quarterly Payment Date"),
in respect of each Purchase Contract evidenced hereby, a fee (the "Contract
Fee") accruing on the Stated Amount of such Unit from and including the date of
first issuance of any Units at a rate per annum equal to ____% (the "Contract
Fee Rate") (computed on the basis of a 360- day year of twelve 30-day months and
subject to deferral as described in the Master Unit Agreement), plus any
additional fees accrued thereon pursuant to Section 5.3 of the Master Unit
Agreement. [THE COMPANY'S OBLIGATIONS WITH RESPECT TO CONTRACT FEES SHALL BE, TO
THE EXTENT PROVIDED IN THE MASTER UNIT AGREEMENT, SUBORDINATE AND
A-2
<PAGE>
SUBJECT IN RIGHT OF PAYMENT TO ALL SENIOR INDEBTEDNESS] [SUCH PAYMENT
WILL BE FUNDED OUT OF PAYMENTS MADE IN RESPECT OF THE PLEDGED
SECURITIES EVIDENCED HEREBY].
Payments due to the Holder in respect of the Normal Units evidenced
hereby will be payable to the Person in whose name this Unit Certificate (or a
Predecessor Unit Certificate) is registered at the close of business on the
Record Date next preceding the relevant payment date.
The transfer of any Unit Certificate will be registered and Unit
Certificates may be exchanged as provided in the Master Unit Agreement. The Unit
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents permitted by the Master Unit Agreement. No
service charge shall be required for any such registration of transfer or
exchange, but the Company and the Unit Agent may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. Except as provided in the Master Unit Agreement in connection with a
Stripped Unit Creation, for so long as the Purchase Contract underlying a Normal
Unit remains in effect, such Normal Unit shall not be separable into its
constituent parts, and the rights and obligations of the Holder of such Normal
Unit in respect of the Pledged Securities and Purchase Contract constituting
such Normal Unit may be transferred and exchanged only as an integrated Normal
Unit.
Upon registration of transfer of this Unit Certificate, the transferee
shall be bound (without the necessity of any other action on the part of such
transferee) by the terms of the Purchase Contracts and Call Options evidenced
hereby and by the Pledge Agreement, and the transferor shall be released from
such obligations. The Company covenants and agrees, and the Holder, by his
acceptance hereof, likewise covenants and agrees, to be bound by the provisions
of this paragraph.
The Holder of this Unit Certificate, by his acceptance hereof,
irrevocably authorizes the Unit Agent to enter into and perform the related
Purchase Contracts and Call Options evidenced hereby on his behalf as his
attorney-in-fact, agrees to be bound by the terms and provisions thereof,
covenants and agrees to perform his obligations under such Purchase Contracts
and Call Options, consents to the provisions of the Principal Agreements,
irrevocably authorizes the Unit Agent to enter into and perform the Call Option
Agreement and the Pledge Agreement on his behalf as his attorney-in-fact, and
consents to and agrees to be bound by the Pledge of the Pledged Securities
evidenced hereby pursuant to the Pledge Agreement.
Subject to certain exceptions, the provisions of the Principal
Agreements may be amended with the consent of the Holders of at least a majority
of the Outstanding Units or, if the amendment affects only the Holders of the
Normal Units or only the Holders of the Stripped Units, at least a majority of
the Outstanding Units comprising Normal Units or Stripped Units, as the case may
be.
The Purchase Contracts and Call Options shall for all purposes be
governed by, and construed in accordance with, the laws of the State of New
York.
A-3
<PAGE>
The Company, the Unit Agent and any agent of the Company or the Unit
Agent may treat the Person in whose name this Unit Certificate is registered as
the owner of the Normal Units evidenced hereby for the purpose of receiving
payments of distributions or interest on the Pledged Securities, receiving the
rights and performing the obligations under the Purchase Contracts and for all
other purposes whatsoever, whether or not any payments in respect thereof be
overdue and notwithstanding any notice to the contrary, and neither the Company,
the Unit Agent nor any such agent shall be affected by notice to the contrary.
The Purchase Contracts shall not, prior to the settlement thereof,
entitle the Holder to any of the rights of a holder of shares of Common Stock.
Copies of the Principal Agreements are available for inspection at the
offices of the Unit Agent.
Unless the certificate of authentication hereon has been executed by
the Unit Agent by manual signature, this Unit Certificate shall not be entitled
to any benefit under the Principal Agreements or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company and the Holder hereby agree to their
respective obligations under the Purchase Contracts evidenced by this
instrument, and the Holder hereby acknowledges that the Pledged Securities
evidenced by this instrument are subject to the Pledge under the Pledge
Agreement.
AIRTOUCH COMMUNICATIONS, INC.
By
-----------------------------------------
Title
--------------------------------------
HOLDER SPECIFIED ABOVE
By
-----------------------------------------
As Attorney-in-Fact of such Holder
IN WITNESS WHEREOF, the Holder hereby agrees, for the benefit of the
Call Option Holder, to its obligations under any Call Options evidenced by this
instrument, and the Holder
A-4
<PAGE>
hereby acknowledges, for the benefit of the Call Option Holder, that the Pledged
Securities evidenced by this instrument are subject to the Pledge under the
Pledge Agreement.
HOLDER SPECIFIED ABOVE
By
------------------------------------------
As Attorney-in-Fact of such Holder
Dated:
Agent's Certificate of Authentication
This is one of the Unit Certificates referred to in the within
mentioned Master Unit Agreement as Unit Agent.
By
------------------------------------------
By
------------------------------------------
A-5
<PAGE>
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares of Common
Stock deliverable upon settlement on or after the Stock Purchase Date of the
Purchase Contracts underlying the number of Normal Units evidenced by this Unit
Certificate be registered in the name of, and delivered, together with a check
in payment for any fractional share, to the undersigned at the address indicated
below unless a different name and address have been indicated below. If shares
are to be registered in the name of a Person other than the under signed, the
undersigned will pay any transfer tax payable incident thereto.
Dated:__________ _________________________________
Signature
If shares are to be registered in the REGISTERED HOLDER
name of and delivered to a Person
other than the Holder, please print Please print name and address of
such Person's name and address: Registered Holder:
Name Name
Address Address
Social Unit or other Taxpayer
Identification Number, if any
A-6
<PAGE>
REQUEST TO CREATE STRIPPED UNITS
The undersigned Holder directs that (a) the Pledged Securities
underlying the number of Normal Units indicated below (which number does not
exceed the number of Normal Units evidenced by this Unit Certificate) be
released from the Pledge and registered in the name of, and delivered, to the
undersigned at the address indicated below unless a different name and address
have been indicated below and (b) a corresponding number of Stripped Units be
registered in the name of, and delivered, to the undersigned at the address
indicated below unless a difference name and address have been indicated below.
If the released Pledged Securities or the Stripped Units are to be registered in
the name of a Person other than the undersigned, the undersigned will pay any
transfer tax payable incident thereto.
The undersigned confirms that the requisite Treasury Securities, any
required cash and the instrument from the Call Option Holder have been delivered
to the Collateral Agent.
Dated: __________________ ___________________________________
Signature
If released Pledged Securities are to be REGISTERED HOLDER
registered in-the name of and delivered
to a Person other than the Holder, Please print name and address of
please print such Person's name and address:
Registered Holder:
Name Name
Address Address
Social Unit or other Taxpayer
Identification Number, if any
If Stripped Units are to be registered in
the name of and delivered to a Person
other than the Holder, please print
such Person's name and address.
Name
Address
Social Unit or other Taxpayer
Identification Number, if any
A-7
<PAGE>
EXHIBIT B
---------
FORM OF STRIPPED UNIT CERTIFICATE
AirTouch Communications, Inc.
___% ADJUSTABLE CONVERSION-RATE EQUITY SECURITY UNITS
(STATED AMOUNT $_________ PER UNIT)
No. _____ ______ Stripped Units
This Unit Certificate certifies that is the registered Holder of the
number of Stripped Units set forth above. Each Stripped Unit represents the
right to purchase Common Stock under a Purchase Contract with AirTouch
Communications, Inc., a Delaware corporation (the "Company"), together with
ownership of the Treasury Securities pledged to secure the obligations referred
to in (a) below, subject to (a) the obligations owed to the Company under such
Purchase Contract and (b) the pledge arrangements securing the foregoing
obligations.
Each Purchase Contract evidenced hereby is governed by a Master Unit
Agreement, dated as of __________, 199_ (the "Master Unit Agreement"), between
the Company and _________________, as unit agent (herein called the "Unit
Agent"). All terms used herein which are defined in the Master Unit Agreement
have the meanings set forth therein. The Pledge of the Pledged Securities
evidenced hereby is governed by the Pledge Agreement. Reference is hereby made
to the Master Unit Agreement and the Pledge Agreement, and any supplemental
agreements thereto, for a description of the respective rights, limitations of
rights, obligations, duties and immunities thereunder of the Unit Agent, the
Company, the Collateral Agent and the Holders. The summary contained herein is
qualified in its entirety by the provisions of the Principal Agreements, and the
Principal Agreements shall govern the rights of the parties to the extent that
there is any conflict between such summary and such provisions.
Each Purchase Contract evidenced hereby obligates the Holder of this
Unit Certificate to purchase, and the Company to sell, on [___________, 2001]
(the "Stock Purchase Date"), at a price equal to $ (the "Stated Amount"), a
number of shares of Common Stock, par value $.01 per share ("Common Stock"), of
the Company equal to the Settlement Rate, unless on or prior to the Stock
Purchase Date there shall have occurred a Termination Event. The "Settlement
Rate" is equal to (a) if the Applicable Market Value (as defined in the Master
Unit Agreement) is greater than or equal to $_______ (the "Threshold
Appreciation Price"), of a share of Common Stock per Purchase Contract, (b) if
the Applicable Market Value is less than the Threshold Appreciation Price but is
greater than the Stated Amount, a fractional share of Common Stock per Purchase
Contract equal to the Stated Amount divided by the Applicable Market Value
(rounded to the nearest 1/10,000th of a share or, if there is no nearest
1/10,000th of a share, rounded downward to the nearest 1/10,000th of a share)
and (c) if the Applicable Market Amount is less than or equal to the Stated
Amount, one share of Common Stock per Purchase Contract, in each case subject to
adjustment as provided in the Master Purchase Agreement. No fractional
B-1
<PAGE>
shares of Common Stock will be issued upon settlement of Purchase Contracts. The
purchase price for the shares of Common Stock to be purchased pursuant to each
Purchase Contract evidenced hereby, if not paid by 10:00 a.m., New York City
time, on the Stock Purchase Date, shall be paid by application of payments
received by the Company on the Stock Purchase Date from the Collateral Agent
pursuant to the Pledge Agreement in respect of the Pledged Securities pledged to
secure such Holder's obligations under such Purchase Contract.
The Purchase Contracts and the obligations and rights of the Company
and the Holders thereunder, including, without limitation, the rights and
obligations to receive and pay accrued or deferred Contract Fees, shall
immediately and automatically terminate, without the necessity of any notice or
action by any Holder, the Unit Agent or the Company, if, on or prior to the
Stock Purchase Date, a Termination Event shall have occurred. Upon and after the
occurrence of a Termination Event, the Collateral Agent shall release the
Pledged Securities from the Pledge. The Stripped Units shall thereafter
represent the right to receive the Pledged Securities forming a part of such
Stripped Units in accordance with the provisions of the Master Unit Agreement
and the Pledge Agreement.
The [COMPANY] [HOLDER] shall pay, on each ________, ________, and
________, commencing ________, 199__ (each, a "Quarterly Payment Date"), in
respect of each Purchase Contract evidenced hereby, a fee (the "Contract Fee")
accruing on the Stated Amount of such Unit from and including the date of first
issuance of any Units at a rate per annum equal to _____% (the "Contract Fee
Rate") (computed on the basis of a 360- day year of twelve 30-day months and
subject to deferral as described in the Master Unit Agreement), plus any
additional fees accrued thereon pursuant to Section 5.3 of the Master Unit
Agreement. [THE COMPANY'S OBLIGATIONS WITH RESPECT TO CONTRACT FEES SHALL BE, TO
THE EXTENT PROVIDED IN THE MASTER UNIT AGREEMENT, SUBORDINATE AND SUBJECT IN
RIGHT OF PAYMENT TO ALL SENIOR INDEBTEDNESS] [SUCH PAYMENT WILL BE FUNDED OUT OF
PAYMENTS MADE IN RESPECT OF THE PLEDGED SECURITIES EVIDENCED HEREBY].
Payments due to the Holder in respect of the Stripped Units evidenced
hereby will be payable to the Person in whose name this Unit Certificate (or a
Predecessor Unit Certificate) is registered at the close of business on the
Record Date next preceding the relevant payment date.
The transfer of any Unit Certificate will be registered and Unit
Certificates may be exchanged as provided in the Master Unit Agreement. The Unit
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents permitted by the Master Unit Agreement. No
service charge shall be required for any such registration of transfer or
exchange, but the Company and the Unit Agent may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. For so long as the Purchase Contract underlying a Stripped Unit
remains in effect, such Stripped Unit shall not be separable into its
constituent parts, and the rights and obligations of the Holder of such Stripped
Unit in respect of the Pledged Securities and Purchase Contract constituting
such Stripped Unit may be transferred and exchanged only as an integrated
Stripped Unit.
B-2
<PAGE>
Upon registration of transfer of this Unit Certificate, the transferee
shall be bound (without the necessity of any other action on the part of such
transferee) by the terms of the Purchase Contracts evidenced hereby and by the
Pledge Agreement, and the transferor shall be released from such obligations.
The Company covenants and agrees, and the Holder, by his acceptance hereof,
likewise covenants and agrees, to be bound by the provisions of this paragraph.
The Holder of this Unit Certificate, by his acceptance hereof,
irrevocably authorizes the Unit Agent to enter into and perform the related
Purchase Contracts evidenced hereby on his behalf as his attorney-in-fact,
agrees to be bound by the terms and provisions thereof, covenants and agrees to
perform his obligations under such Purchase Contracts, consents to the
provisions of the Principal Agreements, irrevocably authorizes the Unit Agent to
enter into and perform the Pledge Agreement on his behalf as his
attorney-in-fact, and consents to and agrees to be bound by the Pledge of the
Pledged Securities evidenced hereby pursuant to the Pledge Agreement.
Subject to certain exceptions, the provisions of the Principal
Agreements may be amended with the consent of the Holders of at least a majority
of the Outstanding Units or, if the amendment affects only the Holders of the
Normal Units or only the Holders of the Stripped Units, at least a majority of
the Outstanding Units comprising Normal Units or Stripped Units, as the case may
be.
The Purchase Contracts shall for all purposes be governed by, and
construed in accordance with, the laws of the State of New York.
The Company, the Unit Agent and any agent of the Company or the Unit
Agent may treat the Person in whose name this Unit Certificate is registered as
the owner of the Stripped Units evidenced hereby for the purpose of receiving
payments of distributions or interest on the Pledged Securities, receiving the
rights and performing the obligations under the Purchase Contracts and for all
other purposes whatsoever, whether or not any payments in respect thereof be
overdue and notwithstanding any notice to the contrary, and neither the Company,
the Unit Agent nor any such agent shall be affected by notice to the contrary.
The Purchase Contracts shall not, prior to the settlement thereof,
entitle the Holder to any of the rights of a holder of shares of Common Stock.
Copies of the Principal Agreements are available for inspection at the
offices of the Unit Agent.
Unless the certificate of authentication hereon has been executed by
the Unit Agent by manual signature, this Unit Certificate shall not be entitled
to any benefit under the Principal Agreements or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company and the Holder hereby agree to their
respective obligations under the Purchase Contracts evidenced by this
instrument, and the Holder hereby
B-3
<PAGE>
acknowledges that the Pledged Securities evidenced by this instrument are
subject to the Pledge under the Pledge Agreement.
AIRTOUCH COMMUNICATIONS, INC.
By
-------------------------------------------
Title
----------------------------------------
HOLDER SPECIFIED ABOVE
By
-------------------------------------------
as Attorney-in-Fact of such Holder
Dated:
Agent's Certificate of Authentication
This is one of the Unit Certificates referred to in the within
mentioned Master Unit Agreement as Unit Agent
By
By
B-4
<PAGE>
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares of Common
Stock deliverable upon settlement on or after the Stock Purchase Date of the
Purchase Contracts underlying the number of Stripped Units evidenced by this
Unit Certificate be registered in the name of, and delivered, together with a
check in payment for any fractional share, to the undersigned at the address
indicated below unless a different name and address have been indicated below.
If shares are to be registered in the name of a Person other than the under
signed, the undersigned will pay any transfer tax payable incident thereto.
Dated ______________ ________________________________
Signature
If shares are to be registered in the REGISTERED HOLDER
name of and delivered to a Person
other than the Holder, please print Please print name and address of
such Person's name and address: Registered Holder:
Name Name
Address Address
Social Unit or other Taxpayer
Identification Number, if any
B-5
Exhibit 4.29
================================================================================
AIRTOUCH COMMUNICATIONS, INC.
---------------,
as Call Option Holder
----------------
as Collateral Agent
AND
---------------,
as Unit Agent and as Attorney-In-Fact
----------------
PLEDGE AGREEMENT
----------------
Dated as of __________, 199__
================================================================================
<PAGE>
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT, dated as of __________, 199__, is made among
AIRTOUCH COMMUNICATIONS, INC., a Delaware corporation (the "Company," as such
term is more fully defined in the Master Unit Agreement referred to below),
_______________, as Call Option Holder, _______________, as Collateral Agent,
and _______________, as Unit Agent and as attorney-in-fact of the Holders from
time to time of the Units.
RECITALS:
A. The Company and the Unit Agent are parties to the Master Unit
Agreement, dated as of the date hereof (as the same may be supplemented or
amended from time to time in accordance with the terms thereof, the "Master Unit
Agreement"). The Master Unit Agreement contemplates that the QUIPS(sm)*, Junior
Subordinated Debentures and Treasury Securities that from time to time underlie
the Units be pledged to the Collateral Agent to secure the obligations of the
Holders of Units under the Purchase Contracts and Call Options that underlie
such Units.
B. Pursuant to the terms of the Principal Agreements and the Unit
Certificates, the Holders from time to time of the Units irrevocably authorize
the Unit Agent, as attorney-in-fact of such Holders, to execute and deliver this
Agreement on behalf of such Holders and to grant the pledge provided hereby of
the Pledged Securities underlying such Units as provided herein and subject to
the terms hereof.
NOW, THEREFORE, the Company, the Call Option Holder, the Collateral
Agent and the Unit Agent, on its own behalf and as attorney-in-fact of the
Holders from time to time of the Units, agree as follows:
1. DEFINITIONS. For all purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
(a) capitalized terms used herein and not defined are used herein as
defined in the Master Unit Agreement; and
(b) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section or other subdivision.
"Aggregate Consideration Deliverable on Exercise of the Call Options"
has the meaning specified in the Call Option Agreement.
- -------------
* QUIPS is a servicemark of _______________
-1-
<PAGE>
"Agreement" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more agreements
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Applicable Treasury Regulations" means Subpart O-Book-Entry Procedure
of Title 31 of the Code of Federal Regulations (31 CFR section 306.115 et seq.)
and any other regulations of the United States Treasury Department from time to
time applicable to the transfer or pledge of book-entry Treasury Securities.
2. THE PLEDGE. The Holders from time to time of the Units acting
through the Unit Agent, as their attorney-in-fact, hereby pledge to the
Collateral Agent (for the benefit of the Company and the Call Option Holder as
their interests may appear), and grant to the Collateral Agent, the Company and
the Call Option Holder (as their interests may appear) a security interest in
all of the right, title and interest of such Holders in and to, the Pledged
Securities underlying such Units (and proceeds therefrom), as collateral
security to ensure the performance when due by such Holders of their respective
obligations under the Purchase Contracts and Call Options underlying such Units.
Concurrently with the execution of this Agreement, the initial Holders of the
first 1,500,000 Normal Units issued under the Master Unit Agreement, the Unit
Agent and the Collateral Agent are causing 1,500,000 QUIPS to be delivered to,
and registered in the name of, the Collateral Agent, and such QUIPS will
thereupon constitute Pledged Securities forming a part of such Normal Units. As
used in this Section 2, the term "delivery" shall have the meaning ascribed to
it in the Uniform Commercial Code of the State of New York. In the event that
any or all of the additional 225,000 Normal Units that may be issued as a result
of an exercise of the overallotment option of the underwriters under the
Underwriting Agreement are issued pursuant to the Master Unit Agreement at or
after the execution of this Agreement, the initial Holders of such Normal Units,
the Unit Agent and the Collateral Agent shall cause a number of QUIPS equal to
the number of such Normal Units to be delivered to, and registered in the name
of, the Collateral Agent, and such QUIPS will thereupon constitute Pledged
Securities forming a part of such Normal Units. In addition, the execution
hereof by the Unit Agent and the Collateral Agent shall constitute an
acknowledgment by the Collateral Agent (as securities intermediary or otherwise)
of the Pledge and of its holding of such QUIPS or other Pledged Securities
substituted therefor in accordance with the provisions hereof subject to the
Pledge and of its crediting such QUIPS or other Pledged Securities to a separate
account for purposes of perfecting the Pledge under applicable law, including,
to the extent applicable, the Uniform Commercial Code as adopted and in effect
in any applicable jurisdiction and the Applicable Treasury Regulations. Subject
to the Pledge, the Holders from time to time of the Units shall have full
beneficial ownership of the Pledged Securities underlying such Units, and shall
be entitled (directly or through the Collateral Agent) to all of the rights
provided by such Pledged Securities, and the Company and the Call Option Holder
shall have no rights with respect to such Pledged Securities other than their
respective security interests therein.
3. PAYMENTS IN RESPECT OF THE PLEDGED SECURITIES. Any payment received
by the Collateral Agent in respect of the Pledged Securities underlying any
Normal Units or Stripped Units shall be paid by the Collateral Agent, by wire
transfer in same day funds no later than 1:00 p.m., New York City time, on the
date of receipt (or, if such payment is received by the
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<PAGE>
Collateral Agent on a day that is not a Business Day or after noon, New York
City time, on a Business Day, then such payment shall be made by the Collateral
Agent no later than 10:00 a.m., New York City time, on the next succeeding
Business Day), as follows:
(a) in the case of payments not scheduled to fall on the Stock Purchase
Date, (i) first, to the Company, to the account designated by it for such
purpose, in an amount equal to the Contract Fees, if any, then payable to the
Company in respect of such Units, and (ii) second, to the extent of any amount
remaining after the payment (if any) referred to in clause (i) above, to the
Unit Agent, to the account designated by it for payments in respect of Normal
Units or the account designated by it for payments in respect of Stripped Units,
as the case may be; and
(b) in the case of payments scheduled to fall on the Stock Purchase
Date, (i) with respect to payments received in respect of Units which are Paid
Units (as specified in the notice from the Unit Agent referred to in Section 4),
(x) first, to the Company, to the account designated by it for such purpose, in
an amount equal to the unpaid Contract Fees, if any, payable to the Company in
respect of such Paid Units, and (y) second, to the extent of any amount
remaining after the payment (if any) referred to in clause (x) above, to the
Unit Agent, to the account designated by it for payments in respect of Paid
Units which are Normal Units or the account designated by it for payments in
respect of Paid Units which are Stripped Units, as the case may be; and (ii)
with respect to payments received in respect of Units which are Unpaid Units (as
specified in the notice from the Unit Agent referred to in Section 4), (x)
first, to the Company, to the account designated by it for such purpose, in an
amount equal to the unpaid Contract Fees, if any, payable to the Company in
respect of such Unpaid Units, and (y) second, to the extent of any amount
remaining after the payment (if any) referred to in (x) above, to the Unit
Agent, to the account designated by it for payments in respect of Unpaid Units
which are Normal Units; provided, however, that if the Company disputes the
notice from the Unit Agent referred to in Section 4 and notifies the Collateral
Agent, prior to noon, New York City time, on the Stock Purchase Date, that the
number of Paid Units or the number of Unpaid Units (or both) is different than
that indicated in such notice, the foregoing payments with respect to any Paid
Units or Unpaid Units subject to dispute shall not be paid until such dispute is
resolved.
All payments received by the Unit Agent as provided herein shall be
applied by the Unit Agent pursuant to the provisions of the Master Unit
Agreement.
4. NOTICE WITH RESPECT TO NUMBERS OF PAID UNITS AND UNPAID UNITS;
EXERCISE OF JUNIOR SUBORDINATED DEBENTURE PUT OPTIONS WITH RESPECT TO UNPAID
UNITS. By 11:00 a.m., New York City time, on the Stock Purchase Date, the Unit
Agent shall, as provided in the Master Unit Agreement, notify the Company and
the Collateral Agent as to the number of Normal Units and the number of Stripped
Units, respectively, which are Paid Units and the number of Normal Units and the
number of Stripped Units, respectively, which are Unpaid Units. Promptly after
receiving such notification, (a) if QUIPS underlie the Unpaid Units of any
Holder, the Collateral Agent, on behalf of such Holder, shall exercise such
Holder's right under the Declaration to require the Trust to distribute Junior
Subordinated Debentures having an aggregate principal amount equal to the
aggregate liquidation amount of such QUIPS, in exchange for such QUIPS, and,
upon receiving such Junior Subordinated Debentures, shall thereupon, as Put
Agent, exercise the Junior
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Subordinated Debenture Put Option with respect thereto and (b) if Junior
Subordinated Debentures underlie such Unpaid Units, the Collateral Agent, on
behalf of such Holder, shall, as Put Agent, exercise the Junior Subordinated
Debenture Put Option with respect thereto. The payment received by the
Collateral Agent from the exercise of any Junior Subordinated Debenture Put
Option shall then be applied by the Collateral Agent in accordance with Section
3(b).
5. RELEASE AND SUBSTITUTION OF PLEDGED SECURITIES.
(a) Upon notice to the Collateral Agent by the Company or the Unit
Agent that there has occurred a Termination Event, the Collateral Agent shall
release all Pledged Securities from the Pledge and shall transfer such Pledged
Securities, free and clear of any lien, pledge or security interest created
hereby, to the Unit Agent for delivery by the Unit Agent pursuant to the
provisions of the Master Unit Agreement.
(b) Upon notice to the Collateral Agent by the Call Option Holder that
the Call Option Holder is exercising the Call Options in accordance with the
terms of the Call Option Agreement with respect to the QUIPS or Junior
Subordinated Debentures underlying the Normal Units, provided that the
Collateral Agent receives the requisite Aggregate Consideration Deliverable on
Exercise of the Call Options on the Call Settlement Date specified in such
notice, the Collateral Agent shall transfer such QUIPS or Junior Subordinated
Debentures, free and clear of any lien, pledge or security interest created
hereby, to the Call Option Holder or its designee as specified in such notice,
whereupon (i) the Treasury Securities constituting all or a part of the
Aggregate Consideration Deliverable Upon Exercise of the Call Options so
received by the Collateral Agent shall be subject to the Pledge with respect to
the Normal Units and (ii) the Pledge shall cease to constitute a security
interest for the benefit of the Call Option Holder.
(c) In connection with a Stripped Unit Creation, upon request by the
Unit Agent to the Collateral Agent to release the then Pledged Securities
underlying the number of Normal Units indicated in such request, provided that
the Collateral Agent has received (i) the Treasury Securities and cash required
by Section 309(a)(i) of the Master Unit Agreement for a Stripped Unit Creation
relating to such Normal Units and (ii) if the Call Options underlying such
Normal Units remain exercisable on the date of receipt of such instruction, an
instrument from the Call Option Holder releasing its security interest in the
Pledged Securities underlying such Normal Units and agreeing that such Call
Options no longer underlie such Normal Units (or the Stripped Units they
become), the Collateral Agent shall release such Pledged Securities, free and
clear of any lien, pledge or security interest created hereby, to the Unit Agent
for delivery by the Unit Agent pursuant to the provisions of the Master Unit
Agreement, whereupon the Treasury Securities so received by the Collateral Agent
shall be subject to the Pledge and constitute the Pledged Securities underlying
the Stripped Units so created.
(d) In connection with the delivery to the Collateral Agent of Treasury
Securities pursuant to Section 5(b) or (c), such delivery shall be by Federal
Reserve Bank-Wire to the account of the Collateral Agent designated by it for
such purpose, and the Collateral Agent and the Call Option Holder or
transferring Holder of Normal Units, as the case may be, shall take
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<PAGE>
appropriate action (i) so that the applicable Federal Reserve Bank through which
such Treasury Securities have been purchased will reflect such transfer and the
Pledge of such Treasury Securities in accordance with Applicable Treasury
Regulations and (ii) as may be required to perfect the Pledge under Applicable
Treasury Regulations.
(e) In the event the Trust is dissolved while any QUIPS are Pledged
Securities underlying Normal Units, the Junior Subordinated Debentures issued
upon dissolution thereof shall be delivered to the Collateral Agent in exchange
for such QUIPS, whereupon such QUIPS shall cease to constitute Pledged
Securities and the Junior Subordinated Debentures so received by the Collateral
Agent shall be subject to the Pledge and constitute the Pledged Securities
underlying such Normal Units.
(f) On the Stock Purchase Date, the Collateral Agent shall release the
QUIPS or Junior Subordinated Debentures underlying Units which are Paid Units
(as specified in the notice from the Unit Agent referred to in Section 4), free
and clear of any lien, pledge or security interest created hereby, to the Unit
Agent for delivery pursuant to the provisions of the Master Unit Agreement;
provided, however, that if the Company disputes the notice from the Unit Agent
referred to in Section 4 and notifies the Collateral Agent, prior to noon, New
York City time, on the Stock Purchase Date, that the number of Paid Units is
different from that indicated in such notice, the foregoing release with respect
to any Paid Units subject to dispute shall not be made until such dispute is
resolved.
6. RIGHTS AND REMEDIES.
(a) The Collateral Agent shall have all of the rights and remedies with
respect to the Pledged Securities of a secured party under the Uniform
Commercial Code as in effect in the State of New York (the "Code") (whether or
not said Code is in effect in the jurisdiction where the rights and remedies are
asserted) and, with respect to Pledged Securities which are Treasury Securities,
the Applicable Treasury Regulations, and such additional rights and remedies to
which a secured party is entitled under the laws in effect in any jurisdiction
where any rights and remedies hereunder may be asserted.
(b) Without limiting any rights or powers otherwise granted by this
Agreement to the Collateral Agent, in the event the Collateral Agent is unable
to make payments due to the Company pursuant to the Purchase Contracts
underlying any Units, the Collateral Agent shall have and may exercise, with
reference to the Pledged Securities underlying such Units and the obligations of
the Holders of such Units, any and all of the rights and remedies available to a
secured party under the Code and the Applicable Treasury Regulations after
default by a debtor, and as otherwise granted herein or under any other law.
(c) Without limiting any rights or powers otherwise granted by this
Agreement to the Collateral Agent, the Collateral Agent is hereby irrevocably
authorized to receive and collect all payments of principal of or distributions
or interest on the Pledged Securities, in each case subject to the provisions
hereof.
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<PAGE>
(d) The Unit Agent, the Call Option Holder and each Holder of Units
agree that, from time to time, upon the written request of the Collateral Agent,
the Unit Agent, the Call Option Holder or such Holder of Units shall execute and
deliver such further documents and do such other acts and things as the
Collateral Agent may reasonably request in order to maintain the Pledge, and the
perfection and priority thereof, and to confirm the rights of the Collateral
Agent hereunder.
7. THE COLLATERAL AGENT. The Collateral Agent, the Company and the Call
Option Holder hereby agree among themselves as follows (it being understood and
agreed that neither the Unit Agent nor any Holder of Units shall have any rights
under this Section 7):
(a) Appointment, Powers and Immunities. The Collateral Agent shall act
hereunder as agent for the Company and the Call Option Holder, with such powers
as are specifically vested in the Collateral Agent by the terms of this
Agreement, together with such other powers as are reasonably incidental thereto.
The Collateral Agent: (i) shall have no duties or responsibilities except those
expressly set forth in this Agreement and no implied covenants or obligations
shall be inferred from this Agreement against the Collateral Agent, nor shall
the Collateral Agent be bound by the provisions of any agreement by any party
hereto beyond the specific terms hereof; (ii) shall not be responsible to the
Company or the Call Option Holder for any recitals contained in this Agreement,
or in any certificate or other document referred to or provided for in, or
received by it under, this Agreement, the Units, the Master Unit Agreement, or
the Call Option Agreement or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement (other than as
against the Collateral Agent), the Units, the Master Unit Agreement or the Call
Option Agreement or any other document referred to or provided for herein or
therein or for any failure by the Company, the Call Option Holder, or any other
Person (except the Collateral Agent) to perform any of its obligations hereunder
or thereunder; (iii) shall not be required to initiate or conduct any litigation
or collection proceedings hereunder (except pursuant to directions furnished
under Section 7(b) hereof); (iv) shall not be responsible for any action taken
or omitted to be taken by it hereunder or under any other document or instrument
referred to or provided for herein or in connection herewith or therewith,
except for its own negligence; and (v) shall not be required to advise any party
as to selling or retaining, or taking or refraining from taking any action with
respect to, any Units or any property deposited hereunder. Subject to the
foregoing, during the term of this Agreement the Collateral Agent shall take all
reasonable action in connection with the safekeeping and preservation of the
Pledged Securities hereunder.
No provision of this Agreement shall require the Collateral Agent to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder. In no event shall the Collateral
Agent be liable for any amount in excess of the value of the Pledged Securities.
(b) INSTRUCTIONS OF THE COMPANY. The Company (or, with respect to
matters relating to the Call Options, the Call Option Holder) shall have the
right, by one or more instruments in writing executed and delivered to the
Collateral Agent, to direct the time, method and place of conducting any
proceeding for any right or remedy available to the Collateral Agent, or of
exercising any power conferred on the Collateral Agent, or to direct the taking
or refraining from
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<PAGE>
taking of any action authorized by this Agreement; provided, however, that (i)
no Company direction shall in any way adversely affect the rights of the Call
Option Holder hereunder or under the Call Options and no Call Option Holder
direction shall in any way adversely affect the rights of the Company hereunder
or under the Purchase Contracts, (ii) such direction shall not conflict with the
provisions of any law or of this Agreement and (iii) the Collateral Agent shall
be adequately indemnified as provided herein. Nothing in this Section 7(b) shall
impair the right of the Collateral Agent in its discretion to take any action or
omit to take any action which it deems proper and which is not inconsistent with
such direction.
(c) RELIANCE BY COLLATERAL AGENT. The Collateral Agent shall be
entitled to rely upon any certification, order, judgment, opinion, notice or
other communication (including, without limitation, any thereof by telephone,
telecopy, telex, telegram or cable) believed by it to be genuine and correct and
to have been signed or sent by or on behalf of the proper Person or Persons
(without being required to determine the correctness of any fact stated
therein), and upon advice and statements of legal counsel and other experts
selected by the Collateral Agent. As to any matters not expressly provided for
by this Agreement, the Collateral Agent shall in all cases be fully protected in
acting, or in refraining from acting, hereunder in accordance with instructions
given by the Company or the Call Option Holder, as the case may be, in
accordance with this Agreement.
(d) RIGHTS IN OTHER CAPACITIES. The Collateral Agent and its affiliates
may (without having to account therefor to the Company or the Call Option
Holder) accept deposits from, lend money to, make investments in and generally
engage in any kind of banking, trust or other business with the Unit Agent and
any Holder of Units as if it were not acting as the Collateral Agent, and the
Collateral Agent and its affiliates may accept fees and other consideration from
the Unit Agent and any Holder of Units without having to account for the same to
the Company or the Call Option Holder, provided that the Collateral Agent
covenants and agrees with the Company and the Call Option Holder that the
Collateral Agent shall not accept, receive or permit there to be created in its
favor any security interest, lien or other encumbrance of any kind in or upon
the Pledged Securities.
(e) NON-RELIANCE ON COLLATERAL AGENT. The Collateral Agent shall not be
required to keep itself informed as to the performance or observance by the Unit
Agent or any Holder of Units of this Agreement, the Master Unit Agreement, the
Call Option Agreement, the Units or any other document referred to or provided
for herein or therein or to inspect the properties or books of the Unit Agent or
any Holder of Units. The Collateral Agent shall not have any duty or
responsibility to provide the Company or the Call Option Holder with any credit
or other information concerning the affairs, financial condition or business of
the Unit Agent or any Holder of Units that may come into the possession of the
Collateral Agent or any of its affiliates.
(f) COMPENSATION AND INDEMNITY. The Company agrees: (i) to pay the
Collateral Agent from time to time reasonable compensation for all services
rendered by it hereunder and (ii) to indemnify the Collateral Agent for, and to
hold it harmless against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in connection with the
acceptance or administration of its powers and duties under this Agreement,
including the costs
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and expenses of defending itself against any claim or liability in connection
with the exercise or performance of such powers and duties.
(g) FAILURE TO ACT. In the event of any ambiguity in the provisions of
this Agreement or any dispute between or conflicting claims by or among the
undersigned and/or any other person or entity with respect to any funds or
property deposited hereunder, the Collateral Agent shall be entitled, at its
sole option, to refuse to comply with any and all claims, demands or
instructions with respect to such property or funds so long as such dispute or
conflict shall continue, and the Collateral Agent shall not be or become liable
in any way to any of the undersigned for its failure or refusal to comply with
such conflicting claims, demands or instructions. The Collateral Agent shall be
entitled to refuse to act until either (i) such conflicting or adverse claims or
demands shall have been finally determined by a court of competent jurisdiction
or settled by agreement between the conflicting parties as evidenced in a
writing satisfactory to the Collateral Agent or (ii) the Collateral Agent shall
have received security or an indemnity satisfactory to the Collateral Agent
sufficient to save the Collateral Agent harmless from and against any and all
loss, liability or expense which the Collateral Agent may incur by reason of its
acting. The Collateral Agent may in addition elect to commence an interpleaded
action or seek other judicial relief or orders as the Collateral Agent may deem
necessary. Notwithstanding anything contained herein to the contrary, the
Collateral Agent shall not be required to take any action that is in its opinion
contrary to law or to the terms of this Agreement, or which would in its opinion
subject it or any of its officers, employees or directors to liability.
(h) RESIGNATION OF COLLATERAL AGENT. Subject to the appointment and
acceptance of a successor Collateral Agent as provided below, (i) the Collateral
Agent may resign at any time by giving notice thereof to the Company, the Unit
Agent and, if the Call Options are exercisable or have been exercised but not
settled, the Call Option Holder, (ii) the Collateral Agent may be removed at any
time by the Company (provided, that, if the Call Options are exercisable or have
been exercised but not settled, the Call Option Holder shall have consented to
such removal), and (iii) if the Collateral Agent fails to perform any of its
material obligations hereunder in any material respect for a period of not less
than twenty (20) days after receiving notice of such failure by the Unit Agent
and such failure shall be continuing, the Collateral Agent may be removed by the
Unit Agent. The Unit Agent shall promptly notify the Company and, if the Call
Options are exercisable or have been exercised but not settled, the Call Option
Holder of any removal of the Collateral Agent pursuant to clause (iii) of the
immediately preceding sentence. Upon any such resignation or removal, the
Company and, if the Call Options are exercisable or have been exercised but not
settled, the Call Option Holder shall have the right to appoint a successor
Collateral Agent. If no successor Collateral Agent shall have been so appointed
and shall have accepted such appointment within thirty (30) days after the
retiring Collateral Agent's giving of notice of resignation or such removal,
then the retiring Collateral Agent may petition any court of competent
jurisdiction for the appointment of a successor Collateral Agent. The Collateral
Agent shall be a bank which has an office in New York, New York with a combined
capital and surplus of at least 050,000,000. Upon the acceptance of any
appointment as Collateral Agent hereunder by a successor Collateral Agent, such
successor Collateral Agent shall thereupon succeed to and become vested with all
the rights, powers, privileges and duties of the
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retiring Collateral Agent, and the retiring Collateral Agent shall take all
appropriate action to transfer any money and property held by it hereunder
(including the Pledged Securities) to such successor Collateral Agent. The
retiring Collateral Agent shall, upon such succession, be discharged from its
duties and obligations as Collateral Agent hereunder. After any retiring
Collateral Agent's resignation hereunder as Collateral Agent, the provisions of
this Section 6 shall continue in effect for its benefit in respect of an}
actions taken or omitted to be taken by it while it was acting as the Collateral
Agent.
(i) RIGHT TO APPOINT AGENT OR ADVISOR. The Collateral Agent shall have
the right to appoint agents or advisors in connection with any of its duties
hereunder, and the Collateral Agent shall not be liable for any action taken or
omitted by such agents or advisors selected in good faith.
The provisions of this Section 7 shall survive termination of this
Agreement and the resignation or removal of the Collateral Agent.
8. MISCELLANEOUS.
(a) AMENDMENTS. This Agreement may be amended in the manner set forth
in Section 8.1 of the Master Unit Agreement. In executing any amendment
permitted by this Section, the Collateral Agent shall be entitled to receive and
(subject to Section 8(a) hereof) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such amendment is authorized or
permitted by this Agreement.
(b) NO WAIVER. No failure on the part of the Collateral Agent or any of
its agents to exercise, and no course of dealing with respect to, and no delay
in exercising, any right, power or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise by the Collateral Agent or any
of its agents of any right, power or remedy hereunder preclude any other or
further exercise thereof or the exercise of any other right, power or remedy.
The remedies herein are cumulative and are not exclusive of any remedies
provided by law.
(c) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The
Company, the Call Option Holder, the Collateral Agent and the Holders from time
to time of the Units, acting through the Unit Agent as their attorney-in-fact,
hereby submit to the nonexclusive jurisdiction of the United States District
Court for the Southern District of New York and of any New York state court
sitting in New York City for the purposes of all legal proceedings arising out
of or relating to this Agreement or the transactions contemplated hereby. The
Company, the Call Option Holder, the Collateral Agent and the Holders from time
to time of the Units, acting through the Unit Agent as their attorney-in-fact,
irrevocably waive, to the fullest extent permitted by applicable law, any
objection which they may now or hereafter have to the laying of the venue of any
such proceeding brought in such a court and any claim that any such proceeding
brought in such a court has been brought in an inconvenient forum.
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(d) LEGAL HOLIDAYS. In any case where any Quarterly Payment Date or the
Stock Purchase Date shall not be a Business Day, then (notwithstanding any other
provision of this Agreement or of the Units) the actions required by this
Agreement to occur on such date shall not occur on such date, but instead shall
occur on the next succeeding Business Day with the same force and effect as if
they had occurred on such Quarterly Payment Date or Stock Purchase Date, as the
case may be; except that if such next succeeding Business Day is in the next
calendar year, such actions shall occur on the immediately preceding Business
Day with the same force and effect as if made on such Quarterly Payment Date or
Stock Purchase Date.
(e) NOTICES. All notices, requests, consents and other communications
provided for herein (including, without limitation, any modifications of, or
waivers or consents under, this Agreement) shall be given or made in writing
(including, without limitation, by telecopy) delivered to the intended recipient
at the "Address for Notices" specified below its name on the signature pages
hereof or, as to any party, at such other address as shall be designated by such
party in a notice to the other parties. Except as otherwise provided in this
Agreement, all such communications shall be deemed to have been duly given when
transmitted by telecopier or personally delivered or, in the case of a mailed
notice, upon receipt, in each case given or addressed as aforesaid.
(f) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the respective successors and assigns of the Company,
the Call Option Holder, the Collateral Agent and the Unit Agent, and the Holders
from time to time of the Units, by their acceptance of the same, shall be deemed
to have agreed to be bound by the provisions hereof and to have ratified the
agreements of, and the grant of the Pledge hereunder by, the Unit Agent.
(g) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties hereto may execute this Agreement by signing
any such counterpart.
(h) SEVERABILITY. If any provision hereof is invalid or unenforceable
in any jurisdiction, then, to the fullest extent permitted by law, (i) the other
provisions hereof shall remain in full force and effect in such jurisdiction and
shall be liberally construed in order to carry out the intentions of the parties
hereto as nearly as may be possible and (ii) the invalidity or unenforceability
of any provision hereof in any jurisdiction shall not affect the validity or
enforceability of such provision in any other jurisdiction.
(i) EXPENSES, ETC. The Company agrees to reimburse the Collateral Agent
for: (i) all reasonable out-of-pocket costs and expenses of the Collateral Agent
(including, without limitation, the reasonable fees and expenses of counsel to
the Collateral Agent), in connection with (ii) the negotiation, preparation,
execution and delivery or performance of this Agreement and (iii) any
modification, supplement or waiver of any of the terms of this Agreement; (iv)
all reasonable costs and expenses of the Collateral Agent (including, without
limitation, reasonable fees and expenses of counsel) in connection with (A) any
enforcement or proceedings resulting or incurred in connection with causing any
Holder of Units to satisfy its obligations under the Purchase Contracts or Call
Options forming a part of the Units and (B) the enforcement of this
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Section 8(i); and (v) all transfer, stamp, documentary or other similar taxes,
assessments or charges levied by any governmental or revenue authority in
respect of this Agreement or any other document referred to herein and all
costs, expenses, taxes, assessments and other charges incurred in connection
with any filing, registration, recording or perfection of any security interest
contemplated hereby.
(j) SECURITY INTEREST ABSOLUTE. All rights of the Collateral Agent and
security interests hereunder, and all obligations of the Holders from time to
time of the Units here under, shall be absolute and unconditional irrespective
of:
(i) any lack of validity or enforceability of any provision of
the Units or any other agreement or instrument relating thereto;
(ii) any change in the time, manner or place of payment of, or
any other term of, or any increase in the amount of, all or any of the
obligations of Holders of Units under the related Purchase Contracts or
Call Options or any other amendment or waiver of any term of, or any
consent to any departure from any requirement of, the Master Unit
Agreement or any Units or any other agreement or instrument relating
thereto; or
(iii) any other circumstance which might otherwise constitute
a defense available to, or discharge of, borrower, a guarantor or a
pledger.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
AIRTOUCH COMMUNICATIONS, INC.
By
-------------------------------------
Name
-----------------------------------
Title
----------------------------------
Address for Notices:
201 Mission Street, 18th Floor
San Francisco, CA 94105
Attention:_____________________________
Telecopy:______________________________
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[_______________], as Call Option Holder
By
-------------------------------------
Name
-----------------------------------
Title
----------------------------------
Address for Notices:
---------------------------------------
---------------------------------------
---------------------------------------
Attention:
-----------------------------
[_______________], as Collateral Agent
By
--------------------------------------
Name
------------------------------------
Title
-----------------------------------
Address for Notices:
---------------------------------------
---------------------------------------
---------------------------------------
Attention:
-----------------------------
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[_______________], as Unit Agent and as
attorney-in-fact of the Holders from
time to time of the Units
By
--------------------------------------
Name
------------------------------------
Title
-----------------------------------
Address for Notices:
---------------------------------------
---------------------------------------
---------------------------------------
Attention:
-----------------------------
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Exhibit 4.30
===============================================================================
---------------,
as Call Option Holder
AND
---------------,
as Unit Agent and as Attorney-In-Fact
------------------
CALL OPTION AGREEMENT
------------------
Dated as of __________, 199__
===============================================================================
<PAGE>
CALL OPTION AGREEMENT
THIS CALL OPTION AGREEMENT, dated as of __________, 199__, is made
between _______________, as Call Option Holder, and _______________, as Unit
Agent and as attorney-in-fact of the Holders from time to time of the Normal
Units.
RECITALS:
A. AirTouch Communications, Inc. and the Unit Agent are parties to the
Master Unit Agreement, dated as the date hereof (as the same may be supplemented
or amended in accordance with the terms thereof, the "Master Unit Agreement").
The Master Unit Agreement contemplates that the Company will issue QUIPS(sm)*
and Junior Subordinated Debentures, and that QUIPS or Junior Subordinated
Debentures will underlie Normal Units outstanding from time to time thereunder.
B. It is intended that the Holders from time to time of the Normal
Units grant Call Options entitling the Call Option Holder to acquire the QUIPS
or Junior Subordinated Debentures underlying the related Normal Units on the
terms and subject to the conditions set forth herein. Pursuant to the terms of
the Principal Agreements and the Unit Certificates for the Normal Units, the
Holders from time to time of the Normal Units irrevocably authorize the Unit
Agent, as attorney-in-fact of such Holders, to enter into such Call Options and
execute and deliver this Agreement on behalf of such Holders.
NOW, THEREFORE, the Call Option Holder and the Unit Agent, on its own
behalf and as attorney-in-fact of the Holders from time to time of the Normal
Units, agree as follows:
1. DEFINITIONS. For all purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
(a) capitalized terms used herein and not defined are used herein as
defined in the Master Unit Agreement; and
(b) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section or other subdivision.
"Aggregate Consideration Deliverable on Exercise of the Call Options"
means consideration comprised of:
(i) Treasury Securities that through their scheduled payments
will generate not later than each Quarterly Payment Date falling after
the Call Settlement Date and on or before the Stock Purchase Date an
amount of cash that is at least equal
- ------------
* QUIPS is a servicemark of _______________.
-1-
<PAGE>
to the aggregate distributions or interest payments that are scheduled
to be payable in respect of the QUIPS or Junior Subordinated Debentures
underlying the Normal Units on such Quarterly Payment Date (assuming
for this purpose that no distributions or payments will then have been
deferred);
(ii) Treasury Securities that through their scheduled payments
will generate not later than the Stock Purchase Date an amount of cash
equal to the aggregate Liquidation Amount of the QUIPS or principal
amount of the Junior Subordinated Debentures underlying the Normal
Units; and
(iii) if the Company is, at the Call Settlement Date,
deferring distributions on the QUIPS or interest payments on the Junior
Subordinated Debentures, an amount in cash equal to (A) the aggregate
deferred distributions on the QUIPS or deferred interest payments on
the Junior Subordinated Debentures underlying the Normal Units accrued
to the Call Settlement Date, if the Call Settlement Date is a Quarterly
Payment Date, and (B) the aggregate deferred distributions on the QUIPS
or deferred interest payments on the Junior Subordinated Debentures
underlying the Normal Units accrued to the Quarterly Payment Date
immediately preceding the Call Settlement Date plus interest thereon at
the QUIPS Distribution Rate for the period from and including such
Quarterly Payment Date to but excluding such Call Settlement Date
(computed on the basis of a three hundred sixty (360) day year of
twelve (12) thirty (30) day months), if the Call Settlement Date is not
a Quarterly Payment Date.
"Call Option Expiration Date" means [________, 2001] (or, if such date
is not a Business Day, the next succeeding Business Day).
2. CALL OPTION.
2.1 GRANT. The Unit Agent, on behalf of and as attorney-in-fact for the
Holders from time to time of the Normal Units, hereby grants the Call Options to
the Call Option Holder on the terms and subject to the conditions set forth
herein.
2.2 CONSIDERATION. As consideration for such Call Options, concurrently
with the execution hereof, the Call Option Holder is paying to the underwriters
under the Underwriting Agreement (who are acting in this regard on behalf of the
initial investors in the Normal Units) an amount equal to $________ per Call
Option.
2.3 EXPIRATION OR TERMINATION OF CALL OPTIONS. The Call Options shall
be irrevocable, but the Call Options and the rights of the Call Option Holder
and the obligations of the Holders of Normal Units thereunder shall (a) expire
on the Call Option Expiration Date if the Call Settlement Date has not occurred
on or prior to such date and (b) automatically terminate upon the occurrence of
a Termination Event.
-2-
<PAGE>
3. EXERCISE OF CALL OPTIONS.
3.1 EXERCISE MECHANICS.
(a) The Call Option Holder may exercise all (but not less than all) the
Call Options by (i) delivering to the Unit Agent and the Collateral Agent, on or
prior to the Call Option Settlement Date, a notice, substantially in the form
set forth in Annex A attached hereto, stating that the Call Option Holder is
exercising its Call Options and specifying the Call Settlement Date therefor
(which may not be after the Call Option Expiration Date) and (ii) delivering to
the Collateral Agent, by Noon, New York City time, on the Call Settlement Date,
the Aggregate Consideration Deliverable on Exercise of the Call Options.
(b) Pursuant to the Pledge Agreement, upon receipt by the Collateral
Agent of the Aggregate Consideration Deliverable on Exercise of the Call Options
in the manner contemplated hereby and by the Pledge Agreement, the Collateral
Agent shall transfer the QUIPS or Junior Subordinated Debentures underlying the
Normal Units, free and clear of any lien, pledge or security interest created by
the Pledge Agreement, to the Call Option Holder or its designee as specified in
the notice referred to in Section 3.1(a) above.
(c) The Unit Agent shall, not later than three (3) Business Days
following the Call Settlement Date, mail notice of the exercise of the Call
Options to the Holders in the manner prescribed by the Master Unit Agreement.
4. MISCELLANEOUS.
4.1 AMENDMENTS. This Agreement may be amended in the manner set forth
in Section 801 of the Master Unit Agreement.
4.2 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The Call Option Holder, the
Unit Agent and the Holders from time to time of the Normal Units, acting through
the Unit Agent as their attorney-in-fact, hereby submit to the nonexclusive
jurisdiction of the United States District Court for the Southern District of
New York and of any New York state court sitting in New York City for the
purposes of all legal proceedings arising out of or relating to this Agreement
or the transactions contemplated hereby. The Call Option Holder, the Unit Agent
and the Holders from time to time of the Normal Units, acting through the Unit
Agent as their attorney-in-fact, irrevocably waive, to the fullest extent
permitted by applicable law, any objection which they may now or hereafter have
to the laying of the venue of any such proceeding brought in such a court and
any claim that any such proceeding brought in such a court has been brought in
an inconvenient forum.
4.3 NOTICES. All notices, requests, consents and other communications
provided for herein (including, without limitation, any modifications of, or
waivers or consents under, this Agreement) shall be given or made in writing
(including, without limitation, by telecopy) delivered to the intended recipient
at the "Address for Notices" specified below its name on the
-3-
<PAGE>
signature pages hereof or, as to any party, at such other address as shall be
designated by such party in a notice to the other party. Except as otherwise
provided in this Agreement, all such communications shall be deemed to have been
duly given when transmitted by telecopier or personally delivered or, in the
case of a mailed notice, upon receipt, in each case given or addressed as
aforesaid.
4.4 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the respective successors and assigns of the Call Option
Holder and the Unit Agent, and the Holders from time to time of the Normal
Units, by their acceptance of the same, shall be deemed to have agreed to be
bound by the provisions hereof and to have ratified the agreements of, and the
grant of the Call Options hereunder by, the Unit Agent.
4.5 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties hereto may execute this Agreement by signing
any such counterpart.
4.6 SEVERABILITY. If any provision hereof is invalid or unenforceable
in any jurisdiction, then, to the fullest extent permitted by law, (a) the other
provisions hereof shall remain in full force and effect in such jurisdiction and
shall be liberally construed in order to carry out the intentions of the parties
hereto as nearly as may be possible and (b) the invalidity or unenforceability
of any provision hereof in any jurisdiction shall not affect the validity or
enforceability of such provision in any other jurisdiction.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
[_______________]
By
--------------------------------------
Name
------------------------------------
Title
-----------------------------------
Address for Notices:
----------------------------------------
----------------------------------------
----------------------------------------
Attention:
------------------------------
-4-
<PAGE>
[_______________]
By
--------------------------------------
Name
------------------------------------
Title
-----------------------------------
Address for Notices:
----------------------------------------
----------------------------------------
----------------------------------------
Attention:
------------------------------
-5-
<PAGE>
ANNEX I
-------
EXERCISE NOTICE
---------------
Reference is made to the Call Option Agreement, dated as of __________,
199_ (the "Call Option Agreement"), between _______________, as Call Option
Holder, and _______________, as Unit Agent and attorney-in-fact of the Holders
from time to time of the Normal Units. Capitalized terms used herein but not
defined are used herein as defined in the Call Option Agreement.
The undersigned hereby exercises all of the Call Options underlying the
Normal Units and specifies __________________ as the Call Settlement Date.
Certificates representing the QUIPS or Junior Subordinated Debentures underlying
the Normal Units should be registered in the name of and delivered to [insert
address].
Dated: __________, 199__
[_______________]
By
--------------------------------------
Name
------------------------------------
Title
-----------------------------------
I-1
[Letterhead of AirTouch Communications, Inc.]
(415) 658-2000
June 11, 1998
AirTouch Communications, Inc.
One California Street
San Francisco, CA 94111
Ladies and Gentlemen:
This opinion is being delivered in connection with the proposed
issuance and sale by AirTouch Communications, Inc., a Delaware corporation
("AirTouch"), of (a) shares of its common stock, $0.01 par value per share
("Common Stock"), (b) shares of its preferred stock, $0.01 par value per share
("Preferred Stock"), in one or more series, (c) depositary shares evidenced by
depositary receipts, each representing fractional interests in Preferred Stock
("Depositary Shares"), (d) unsecured senior or subordinated debt securities of
AirTouch ("Debt Securities"), (e) options, warrants and other rights to purchase
shares of Common Stock ("Common Stock Warrants") or shares of Preferred Stock
("Preferred Stock Warrants"), (f) options, warrants and other rights to purchase
shares of capital stock or debt of another corporation or entity ("Third Party
Warrants"), (g) options, warrants and other rights to purchase Debt Securities
("Debt Warrants"), (h) stock purchase contracts ("Stock Purchase Contracts") to
purchase Common Stock or Preferred Stock, (i) stock purchase units ("Stock
Purchase Units") each representing ownership of a Stock Purchase Contract and
Preferred Stock, Debt Securities, debt obligations of third parties, including
the United States of America or agencies or instrumentalities thereof or
Preferred Securities (as defined below), securing the holder's obligation to
purchase Common Stock or Preferred Stock under the Stock Purchase Contract, (j)
guarantees ("Guarantees") on payments of periodic cash distributions and
payments on liquidation, redemption or otherwise with respect to preferred
securities offered from time to time by ATI Financing I and ATI Financing II,
each a statutory business trust formed under the laws of the State of Delaware
(each an "AirTouch Trust"), the Common Securities of which will be wholly-owned
by AirTouch, representing undivided beneficial
<PAGE>
AirTouch Communications, Inc.
June 11, 1998
Page 2
interests in the assets of the applicable AirTouch Trust ("Preferred
Securities"), out of moneys held by each of the AirTouch Trusts or (k) other
units ("Other Units"), each of which may represent any combination of the
foregoing, each on terms to be determined at the time of sale (the Common Stock,
Preferred Stock, Depositary Shares, Debt Securities, Common Stock Warrants,
Preferred Stock Warrants, Third Party Warrants, Debt Warrants, Stock Purchase
Units, Preferred Securities, Guarantees or Other Units are collectively referred
to herein as, the "Securities"), having an aggregate initial public offering
price of up to U.S.$2,500,000,000 or the equivalent thereof. The Securities are
to be issued pursuant to a Registration Statement on Form S-3 ("Registration
Statement") filed by AirTouch, ATI Financing I and ATI Financing II with the
Securities and Exchange Commission on June 11, 1998 under the Securities Act of
1933, as amended.
I am familiar with proceedings to date by AirTouch with respect to the
issuance and sale of the Securities and have examined such records, documents
and matters of law as I have deemed necessary for purposes of this opinion.
Based upon the foregoing, I am of the opinion that:
1. AirTouch is a corporation duly organized and validly
existing under the laws of the State of Delaware.
2. With respect to the Common Stock, when (a) the Board of Directors of
AirTouch or a duly authorized committee of the Board (such Board of Directors or
committee being referred to herein as the "Board"), has taken all necessary
corporate action to approve the issuance of and establish the terms of the
offering of the Common Stock and related matters and (b) issued, sold and
delivered in the manner and for the consideration (not less than the par value
of the Common Stock) stated in the applicable definitive purchase, underwriting
or similar agreement or upon conversion, exchange or exercise of any other
Security in accordance with the terms of such Security or the instrument
governing such Security providing for such conversion, exchange or exercise as
approved by the Board, for the consideration approved by the Board (not less
than the par value of the Common Stock), the Common Stock will be duly
authorized, validly issued, fully paid and nonassessable.
<PAGE>
AirTouch Communications, Inc.
June 11, 1998
Page 3
3. With respect to the Preferred Stock, when (a) the Board has taken
all necessary corporate action to approve the issuance of and establish the
terms of any particular series of Preferred Stock, the offering thereof and
related matters, including the filing of a statement of designation conforming
to the Delaware General Corporation Law regarding the Preferred Stock with the
Secretary of State of the State of Delaware, and (c) the Preferred Stock has
been issued, sold and delivered in the manner and for the consideration (not
less than the par value of the Preferred Stock) stated in the applicable
definitive purchase, underwriting or similar agreement or upon conversion,
exchange or exercise of any other Security in accordance with the terms of such
Security or the instrument governing such Security providing for such
conversion, exchange or exercise as approved by the Board, for the consideration
approved by the Board (not less than the par value of the Preferred Stock), the
Preferred Stock will be duly authorized, validly issued, fully paid and
nonassessable.
4. With respect to the Depositary Shares, when (a) the Board has taken
all necessary corporate action to approve the issuance of and establish the
terms of any particular series of Preferred Stock, the offering thereof and
related matters, including the filing of a statement of designation conforming
to the Delaware General Corporation Law regarding the Preferred Stock with the
Secretary of State of the State of Delaware, (c) the Preferred Stock has been
deposited with a bank or trust company (which meets the requirements set forth
in the Registration Statement or any amendment or prospectus supplement relating
thereto) under one or more deposit agreements (substantially in the form of the
Deposit Agreement filed as Exhibit 4.24 to the Registration Statement or with
such other provisions as are contained in a document which will be filed as an
exhibit to or incorporated by reference in the Registration Statement, which
have been duly authorized and validly executed) and (d) Depositary Shares,
evidenced by depositary receipts, are issued, sold and delivered in the manner
and for the consideration stated in the applicable definitive purchase,
underwriting or similar agreement approved by the Board, and in accordance with
the appropriate depositary agreement, upon payment of the consideration provided
for therein the Depositary Shares will be duly and validly issued, fully paid
and nonassessable.
<PAGE>
AirTouch Communications, Inc.
June 11, 1998
Page 4
5. With respect to the Debt Securities to be issued under the Senior
Debt Indenture filed as Exhibit 4.21 to the Registration Statement, when (a) the
Senior Debt Indenture has been duly qualified under the Trust Indenture Act of
1939, as amended, (b) the Board has taken all necessary corporate action to
approve the issuance of and establish the terms of such Debt Securities, the
terms of the offering and related matters, (c) the Debt Securities have been
executed and authenticated in accordance with the terms of the Senior Debt
Indenture and (d) the Debt Securities have been issued, sold and delivered in
the manner and for the consideration stated in the applicable definitive
purchase, underwriting or similar agreement approved by the Board, upon payment
of the consideration provided for therein, or upon exercise of any other
Security in accordance with the terms of such Security or the instrument
governing such Security providing for such conversion, exchange or exercise as
approved by the Board, and the Senior Debt Indenture, the Debt Securities to be
issued under the Senior Debt Indenture will be legal, valid and binding
obligations of AirTouch, enforceable against AirTouch in accordance with their
terms, except that enforcement thereof 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).
6. With respect to the Debt Securities to be issued under the
Subordinated Debt Indenture filed as Exhibit 4.25 to the Registration Statement,
when (a) the Subordinated Debt Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended, (b) the Board has taken all necessary
corporate action to approve the issuance of and establish the terms of such Debt
Securities, the terms of the offering and related matters, (c) the Debt
Securities have been executed and authenticated in accordance with the terms of
the Subordinated Debt Indenture and (d) the Debt Securities have been issued,
sold and delivered in the manner and for the consideration stated in the
applicable definitive purchase, underwriting or similar agreement approved by
the Board, upon payment of the consideration therefor provided for therein, or
upon exercise of any other Security in accordance with the terms of such
Security or the instrument governing such Security providing for such
conversion, exchange or exercise as approved by the Board, and the Subordinated
Debt Indenture, the
<PAGE>
AirTouch Communications, Inc.
June 11, 1998
Page 5
Debt Securities to be issued under the Subordinated Debt Indenture will be
legal, valid and binding obligations of AirTouch, enforceable against AirTouch
in accordance with their terms, except that enforcement thereof 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).
7. With respect to the Common Stock Warrants and the Preferred Stock
Warrants (collectively, the "Stock Warrants"), when (a) one or more agreements
(incorporating the form of Standard Stock Warrant Provisions filed as Exhibit
4.22 to the Registration Statement or such other provisions as are contained in
a document which will be filed as an exhibit to or incorporated by reference in
the Registration Statement,) have been duly executed and delivered by AirTouch
and a warrant agent, (b) the Board has taken all necessary corporate action to
approve the terms of the Stock Warrants, (c) the Stock Warrant certificates have
been executed and authenticated in accordance with the terms of the appropriate
agreement and (d) the Stock Warrants have been issued, sold and delivered in the
manner and for the consideration stated in the applicable definitive purchase,
underwriting or similar agreement approved by the Board, upon payment of the
consideration therefor provided for therein, and the appropriate Third Party
Warrant agreement, the Third Party Warrants will be legal, valid and binding
obligations of AirTouch, enforceable against AirTouch in accordance with their
terms, except as 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).
8. With respect to the Third Party Warrants, when (a) one or more
agreements (incorporating the form of Standard Stock Warrant Provisions filed as
Exhibit 4.22 to the Registration Statement or such other provisions as are
contained in a document which will be filed as an exhibit to or incorporated by
reference in the Registration Statement) have been duly executed and delivered
by AirTouch and a warrant agent, (b) the Board has taken all necessary corporate
action to approve the terms of the Third Party Warrants, (c) the Third Party
Warrant certificates
<PAGE>
AirTouch Communications, Inc.
June 11, 1998
Page 6
have been executed and authenticated in accordance with the terms of the
appropriate agreement and (d) the Third Party Warrants have been issued, sold
and delivered in the manner and for the consideration stated in the applicable
definitive purchase, underwriting or similar agreement approved by the Board,
upon payment of the consideration therefor provided for therein, and the
appropriate Third Party Warrant agreement, the Third Party Warrants will be
legal, valid and binding obligations of AirTouch, enforceable against AirTouch
in accordance with their terms, except as 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).
9. With respect to the Debt Warrants, when (a) one or more agreements
(incorporating the form of Debt Securities Warrant Agreement filed as Exhibit
4.23 to the Registration Statement or such other provisions as are contained in
a document which will be filed as an exhibit to or incorporated by reference in
the Registration Statement) have been duly executed and delivered by AirTouch
and a warrant agent, (b) the Board has taken all necessary corporate action to
approve the terms of the Debt Warrants, (c) the Debt Warrant certificates have
been executed and authenticated in accordance with the terms of the appropriate
agreement and (d) the Debt Warrants have been issued, sold and delivered in the
manner and for the consideration stated in the applicable definitive purchase,
underwriting or similar agreement approved by the Board, upon payment of the
consideration therefor provided for therein, and the appropriate Debt Warrant
agreement, the Debt Warrants will be legal, valid and binding obligations of
AirTouch, enforceable against AirTouch in accordance with their terms, except as
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).
10. With respect to the Stock Purchase Contracts, when (a) one or more
agreements (incorporating the form of Stock Purchase Contract Agreement filed as
Exhibit 4.27 to the Registration Statement or such other agreement which will be
filed as an exhibit to or incorporated by reference in the Registration
Statement) have duly executed and delivered by AirTouch and a
<PAGE>
AirTouch Communications, Inc.
June 11, 1998
Page 7
stock purchase contract agent, (b) the Board has taken all necessary corporate
action to approve the terms of the Stock Purchase Contracts, (c) the Stock
Purchase Contracts have been executed and authenticated in accordance with the
terms of the appropriate Stock Purchase Contract agreement and (d) the Stock
Purchase Contracts have been issued, sold and delivered in the manner and for
the consideration stated in the applicable definitive purchase, underwriting or
similar agreement approved by the Board, upon payment of the consideration
therefor provided for therein, and the appropriate Stock Purchase Contract
agreement, the Stock Purchase Contracts will be legal, valid and binding
obligations of AirTouch, enforceable against AirTouch in accordance with their
terms, except as may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights and by
equitable principles of general application (whether applied at law or in
equity).
11. With respect to the Stock Purchase Units, when (a) one or more
agreements (incorporating the form of Stock Purchase Contract Agreement filed as
Exhibit 4.27 to the Registration Statement or such other agreement which will be
filed as an exhibit to or incorporated by reference in the Registration
Statement) have been duly executed and delivered by AirTouch and a stock
purchase unit agent, (b) the Board has taken all necessary corporate action to
approve and establish the terms of the Stock Purchase Units, (c) the Stock
Purchase Units have been executed and authenticated in accordance with the terms
of the appropriate agreement and (d) the Stock Purchase Units have been issued,
sold and delivered in the manner and for the consideration stated in the
applicable definitive purchase, underwriting or similar agreement approved by
the Board, upon payment of the consideration therefor provided for therein, and
the appropriate Stock Purchase Unit agreement, the Stock Purchase Units will be
legal, valid and binding obligations of AirTouch, enforceable against AirTouch
in accordance with their terms, except as 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>
AirTouch Communications, Inc.
June 11, 1998
Page 8
12. With respect to the Guarantees, when (a) one or more agreements
(incorporating the form of Preferred Securities Guarantee Agreement filed as
Exhibit 4.26 to the Registration Statement) have been duly executed and
delivered by AirTouch and a Preferred Securities Guarantee trustee, (b) the
Board has taken all necessary corporate action to approve and establish the
terms of the Guarantee, (c) the Preferred Securities Guarantee Agreement has
been executed and authenticated in accordance with the terms of the appropriate
agreement and (d) the Guarantee has been issued, and delivered in the manner and
for the consideration stated in the applicable agreement, the Guarantee will be
a legal, valid and binding obligation of AirTouch, enforceable against AirTouch
in accordance with its terms, except as 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).
In connection with the opinions expressed above, I have assumed that,
at or prior to the time of the delivery of any such Security, the Registration
Statement, and any amendments thereto (including post-effective amendments) will
have been declared effective, a Prospectus Supplement will have been prepared
and filed with the Commission describing the Securities offered thereby, the
authorization of the Securities applicable to such Security will not have been
modified or rescinded by the Board and there will not have occurred any change
in law affecting the validity or enforceability of such Security. I have also
assumed that none of the terms of any Security to be established subsequent to
the date hereof nor the issuance and delivery of such Security, nor the
compliance by AirTouch with the terms of such Security, will violate any
applicable federal or state law or will result in a violation of any provision
of any instrument or agreement then binding upon AirTouch or any restriction
imposed by any court or governmental body having jurisdiction over AirTouch.
I am a member of the Bar of the State of California and the foregoing
opinion is limited to the laws of the State of California, the federal laws of
the United States of America and the General Corporation Law of the State of
Delaware.
<PAGE>
AirTouch Communications, Inc.
June 11, 1998
Page 9
I hereby consent to the filing of this opinion with the Securities and
Exchange Commission in connection with the filing of the Registration Statement
referred to above. I also consent to the use of my name in the related
prospectus and prospectus supplement under the heading "Legal Matters."
Very truly yours,
/s/ Margaret G. Gill
Margaret G. Gill
Senior Vice President, Legal,
External Affairs and Secretary
[Letterhead of Morris, Nichols, Arsht and Tunnell]
June 11, 1998
ATI Financing I
c/o AirTouch Communications, Inc.
One California Street
San Francisco, California 94111
Re: ATI Financing I
Ladies and Gentlemen:
We have acted as special Delaware counsel to ATI Financing I, a Delaware
statutory business trust (the "Trust"), in connection with certain matters
relating to the organization of the Trust and the proposed issuance of Preferred
Securities to beneficial owners pursuant to and as described in the Registration
Statement (and the prospectus forming a part thereof (the "Prospectus")) on Form
S-3 filed by AirTouch Communications, Inc., ATI Financing II and the Trust with
the Securities and Exchange Commission (the "Commission") on or about the date
hereof (the "Registration Statement"). Capitalized terms used herein and not
otherwise herein defined are used as defined in the Amended and Restated
Declaration of Trust of the Trust in the form attached as Exhibit 4.19 to the
Registration Statement (the "Governing Instrument").
In rendering this opinion, we have examined copies of the following documents
in the forms provided to us: the Certificate of Trust of the Trust as filed in
the Office of the Secretary of State of the State of Delaware (the "State
Office") on September 19, 1995 (the "Certificate"); a Declaration of Trust of
the Trust dated as of September 19, 1995 (the "Original Governing Instrument");
the Governing Instrument; the Registration Statement; and a certification of
good standing of the Trust obtained as of a recent date from the State Office.
In such examinations, we have assumed the genuineness of all signatures, the
conformity to original documents of all documents submitted to us as drafts or
copies or forms of documents to be executed and the legal capacity of natural
persons to complete the execution of documents. We have further assumed for
purposes of this opinion: (i) the due formation or organization, valid existence
and good standing of each entity (other than the Trust) that is a party to any
of the documents reviewed by us under the laws of the jurisdiction of its
respective formation or organization; (ii) the due authorization, execution and
delivery by, or on behalf of, each of the parties thereto of the
above-referenced documents (including, without limitation, the due execution and
delivery of the Governing Instrument and the underwriting agreement and the
pricing agreement relating to the Preferred Securities (which underwriting
agreement and pricing agreement will have terms
<PAGE>
ATI Financing I
June 11, 1998
Page 2
consistent with the requirement of the Governing Instrument) (respectively, the
"Underwriting Agreement" and the "Pricing Agreement") prior to the first
issuance of Preferred Securities); (iii) that no event has occurred subsequent
to the filing of the Certificate, or will occur prior to the issuance of the
Preferred Securities, that would cause a dissolution or liquidation of the Trust
under the Original Governing Instrument or the Governing Instrument, as
applicable; (iv) that the activities of the Trust have been and will be
conducted in accordance with the Original Governing Instrument or the Governing
Instrument, as applicable, and the Delaware Business Trust Act, 12 Del. C.
sections 3801 et seq. (the "Delaware Act"); (v) that each Holder of a Preferred
Security will make payment of the required consideration therefor and will have
a Preferred Security or Preferred Securities registered in the name of such
Holder in the Register in consideration thereof, all in accordance with the
terms and conditions of the Governing Instrument, the Registration Statement,
the Underwriting Agreement and the Pricing Agreement; (vi) that the Preferred
Securities are issued and sold to the Preferred Securities Holders in accordance
with the terms, conditions, requirements and procedures set forth in the
Governing Instrument, the Registration Statement, the Underwriting Agreement and
the Pricing Agreement; and (vii) that the documents examined by us are in full
force and effect (or, as applicable, will be in full force and effect prior to
the issuance of the Preferred Securities), express the entire understanding of
the parties thereto with respect to the subject matter thereof and have not been
(or, as applicable, at the time of issuance of the Preferred Securities will not
have been) modified, supplemented or otherwise amended, except as herein
referenced. No opinion is expressed with respect to the requirements of, or
compliance with, federal or state securities or blue sky laws. We have not
participated in the preparation of the Registration Statement or any other
offering materials relating to the Preferred Securities and we assume no
responsibility for their contents. As to any fact material to our opinion, other
than those assumed, we have relied without independent investigation on the
above-referenced documents and on the accuracy, as of the date hereof, of the
matters therein contained.
Based on and subject to the foregoing (and the further assumptions set forth
below), and limited in all respects to matters of Delaware law, it is our
opinion that:
1. The Trust is a duly organized and validly existing business trust in good
standing under the laws of the State of Delaware.
2. The Preferred Securities, upon issuance, will constitute validly issued
and, subject to the qualifications set forth in paragraph 3 below, fully paid
and nonassessable beneficial interests in the trust.
3. Under the Delaware Act and the terms of the Governing Instrument, each
Preferred Security Holder of the Trust, in such capacity, will be entitled to
the same limitation of personal liability as that extended to stockholders of
private corporations for profit organized under the General Corporation Law of
the State of Delaware; provided,
<PAGE>
ATI Financing I
June 11, 1998
Page 3
however, we express no opinion with respect to the liability of any Preferred
Security Holder who is, was or may become a named Trustee of the Trust.
Notwithstanding the foregoing, we note that pursuant to the Governing
Instrument, the Trust may withhold amounts otherwise distributable to a Holder
and pay over such amounts to the applicable jurisdictions in accordance with
federal, state and local law and any amount withheld will be deemed to have been
distributed to such Holder and that, pursuant to the Governing Instrument,
Preferred Security Holders may be obligated to make payments or provide
indemnity or security under the circumstances set forth therein.
In connection with the foregoing opinions, we have assumed that at or prior to
the time of the issuance and delivery of any applicable Preferred Securities,
the registration Statement and any amendments thereto (including post-effective
amendments) will have been delivered and remain effective, a prospectus
supplement will have been prepared and filed with the commission describing the
Preferred Securities offered thereby (the terms of which will be consistent with
the requirements of the Governing Instrument), all required approvals for the
issuance of such Preferred Securities under the Governing Instrument, the
Underwriting Agreement and the Pricing Agreement will be in full force and
effect and will not have been modified or rescinded and there shall not have
occurred any change in law affecting the validity or enforceability of such
Preferred Securities. We have also assumed that none of the terms of any
Preferred Security to be established subsequent to the date hereof nor the
issuance and delivery of such Preferred Security, nor the compliance by the
Trust with the terms of such Preferred Security, will violate any applicable
federal or state law or will result in a violation of any provision of any
instrument or agreement then binding on the Trust or any restriction imposed by
any court or governmental body having jurisdiction over the Trust.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name under the heading "LEGAL
MATTERS" in the Prospectus and the prospectus supplement relating to the
issuance of Preferred Securities. In giving this consent, we do not thereby
admit that we come within the category of person whose consent is required under
section 7 of the Securities Act of 1933, as amended, or the rules and
regulations of the Commission thereunder. This opinion speaks only as of the
date hereof and is based on our understandings or assumptions as to present
facts, and on our review of the above-referenced documents and the application
of Delaware law as the same exist as of the date hereof, and we undertake no
obligation to update or supplement this opinion after the date hereof for the
benefit of any person or entity with respect to any facts or circumstances that
may hereafter come to our attention or any changes in facts or law that may
hereafter occur or take effect. This opinion is intended solely for the benefit
of the
<PAGE>
ATI Financing I
June 11, 1998
Page 4
addressee hereof in connection with the matters contemplated hereby and may not
be relied on by any other person or entity or for any other purpose without our
prior written consent.
Very truly yours,
/s/ MORRIS, NICHOLS, ARSHT & TUNNELL
[Letterhead of Morris, Nichols, Arsht and Tunnell]
June 11, 1998
ATI Financing II
c/o AirTouch Communications, Inc.
One California Street
San Francisco, California 94111
Re: ATI Financing II
Ladies and Gentlemen:
We have acted as special Delaware counsel to ATI Financing II, a Delaware
statutory business trust (the "Trust"), in connection with certain matters
relating to the organization of the Trust and the proposed issuance of Preferred
Securities to beneficial owners pursuant to and as described in the Registration
Statement (and the prospectus forming a part thereof (the "Prospectus")) on Form
S-3 filed by AirTouch Communications, Inc., ATI Financing I and the Trust with
the Securities and Exchange Commission (the "Commission") on or about the date
hereof (the "Registration Statement"). Capitalized terms used herein and not
otherwise herein defined are used as defined in the Amended and Restated
Declaration of Trust of the Trust in the form attached as Exhibit 4.19 to the
Registration Statement (the "Governing Instrument").
In rendering this opinion, we have examined copies of the following documents
in the forms provided to us: the Certificate of Trust of the Trust as filed in
the Office of the Secretary of State of the State of Delaware (the "State
Office") on September 19, 1995 (the "Certificate"); a Declaration of Trust of
the Trust dated as of September 19, 1995 (the "Original Governing Instrument");
the Governing Instrument; the Registration Statement; and a certification of
good standing of the Trust obtained as of a recent date from the State Office.
In such examinations, we have assumed the genuineness of all signatures, the
conformity to original documents of all documents submitted to us as drafts or
copies or forms of documents to be executed and the legal capacity of natural
persons to complete the execution of documents. We have further assumed for
purposes of this opinion: (i) the due formation or organization, valid existence
and good standing of each entity (other than the Trust) that is a party to any
of the documents reviewed by us under the laws of the jurisdiction of its
respective formation or organization; (ii) the due authorization, execution and
delivery by, or on behalf of, each of the parties thereto of the
above-referenced documents (including, without limitation, the due execution and
delivery of the Governing Instrument and the underwriting agreement and the
pricing agreement relating to the Preferred Securities (which underwriting
agreement and pricing agreement will have terms
<PAGE>
ATI Financing II
June 11, 1998
Page 2
consistent with the requirement of the Governing Instrument) (respectively, the
"Underwriting Agreement" and the "Pricing Agreement") prior to the first
issuance of Preferred Securities); (iii) that no event has occurred subsequent
to the filing of the Certificate, or will occur prior to the issuance of the
Preferred Securities, that would cause a dissolution or liquidation of the Trust
under the Original Governing Instrument or the Governing Instrument, as
applicable; (iv) that the activities of the Trust have been and will be
conducted in accordance with the Original Governing Instrument or the Governing
Instrument, as applicable, and the Delaware Business Trust Act, 12 Del. C.
sections 3801 et seq. (the "Delaware Act"); (v) that each Holder of a Preferred
Security will make payment of the required consideration therefor and will have
a Preferred Security or Preferred Securities registered in the name of such
Holder in the Register in consideration thereof, all in accordance with the
terms and conditions of the Governing Instrument, the Registration Statement,
the Underwriting Agreement and the Pricing Agreement; (vi) that the Preferred
Securities are issued and sold to the Preferred Securities Holders in accordance
with the terms, conditions, requirements and procedures set forth in the
Governing Instrument, the Registration Statement, the Underwriting Agreement and
the Pricing Agreement; and (vii) that the documents examined by us are in full
force and effect (or, as applicable, will be in full force and effect prior to
the issuance of the Preferred Securities), express the entire understanding of
the parties thereto with respect to the subject matter thereof and have not been
(or, as applicable, at the time of issuance of the Preferred Securities will not
have been) modified, supplemented or otherwise amended, except as herein
referenced. No opinion is expressed with respect to the requirements of, or
compliance with, federal or state securities or blue sky laws. We have not
participated in the preparation of the Registration Statement or any other
offering materials relating to the Preferred Securities and we assume no
responsibility for their contents. As to any fact material to our opinion, other
than those assumed, we have relied without independent investigation on the
above-referenced documents and on the accuracy, as of the date hereof, of the
matters therein contained.
Based on and subject to the foregoing (and the further assumptions set forth
below), and limited in all respects to matters of Delaware law, it is our
opinion that:
1. The Trust is a duly organized and validly existing business trust in good
standing under the laws of the State of Delaware.
2. The Preferred Securities, upon issuance, will constitute validly issued
and, subject to the qualifications set forth in paragraph 3 below, fully paid
and nonassessable beneficial interests in the trust.
3. Under the Delaware Act and the terms of the Governing Instrument, each
Preferred Security Holder of the Trust, in such capacity, will be entitled to
the same limitation of personal liability as that extended to stockholders of
private corporations for profit organized under the General Corporation Law of
the State of Delaware; provided,
<PAGE>
ATI Financing II
June 11, 1998
Page 3
however, we express no opinion with respect to the liability of any Preferred
Security Holder who is, was or may become a named Trustee of the Trust.
Notwithstanding the foregoing, we note that pursuant to the Governing
Instrument, the Trust may withhold amounts otherwise distributable to a Holder
and pay over such amounts to the applicable jurisdictions in accordance with
federal, state and local law and any amount withheld will be deemed to have been
distributed to such Holder and that, pursuant to the Governing Instrument,
Preferred Security Holders may be obligated to make payments or provide
indemnity or security under the circumstances set forth therein.
In connection with the foregoing opinions, we have assumed that at or prior to
the time of the issuance and delivery of any applicable Preferred Securities,
the registration Statement and any amendments thereto (including post-effective
amendments) will have been delivered and remain effective, a prospectus
supplement will have been prepared and filed with the commission describing the
Preferred Securities offered thereby (the terms of which will be consistent with
the requirements of the Governing Instrument), all required approvals for the
issuance of such Preferred Securities under the Governing Instrument, the
Underwriting Agreement and the Pricing Agreement will be in full force and
effect and will not have been modified or rescinded and there shall not have
occurred any change in law affecting the validity or enforceability of such
Preferred Securities. We have also assumed that none of the terms of any
Preferred Security to be established subsequent to the date hereof nor the
issuance and delivery of such Preferred Security, nor the compliance by the
Trust with the terms of such Preferred Security, will violate any applicable
federal or state law or will result in a violation of any provision of any
instrument or agreement then binding on the Trust or any restriction imposed by
any court or governmental body having jurisdiction over the Trust.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name under the heading "LEGAL
MATTERS" in the Prospectus and the prospectus supplement relating to the
issuance of Preferred Securities. In giving this consent, we do not thereby
admit that we come within the category of person whose consent is required under
section 7 of the Securities Act of 1933, as amended, or the rules and
regulations of the Commission thereunder. This opinion speaks only as of the
date hereof and is based on our understandings or assumptions as to present
facts, and on our review of the above-referenced documents and the application
of Delaware law as the same exist as of the date hereof, and we undertake no
obligation to update or supplement this opinion after the date hereof for the
benefit of any person or entity with respect to any facts or circumstances that
may hereafter come to our attention or any changes in facts or law that may
hereafter occur or take effect. This opinion is intended solely for the benefit
of the
<PAGE>
ATI Financing II
June 11, 1998
Page 4
addressee hereof in connection with the matters contemplated hereby and may not
be relied on by any other person or entity or for any other purpose without our
prior written consent.
Very truly yours,
/s/ MORRIS, NICHOLS, ARSHT & TUNNELL
EXHIBIT 12.1
<TABLE>
AIRTOUCH COMMUNICATIONS, INC.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(Dollars in millions)
<CAPTION>
Quarter Ended
March 31, Ended December 31
--------------- ------------------------------------------------------
1998 1997 1996 1995 1994 1993
--------------- ---------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
EARNINGS
Pre-tax income $ 246 $ 714 $ 348 $ 245 $ 206 $ 108
Add back:
Minority interests in net income of
consolidated wireless systems 42 119 95 36 16 46
Equity in net (income) loss of less-than-
fifty-percent-owned unconsolidated
wireless systems ( 51) ( 93) 56 28 11 30
Distributed income of less-than-fifty-percent-
owned unconsolidated wireless systems 2 284 1 2 1 9
Fixed charges included in reported pre-tax income 27 120 80 33 25 34
-------------- ---------- --------- --------- --------- ---------
Total $ 266 $ 1,144 $ 580 $ 344 $ 259 $ 227
======== ====== ===== ===== ===== =====
FIXED CHARGES
Total interest on debt $ 24 $ 103 $ 83 $ 28 $ 11 $ 26
1/3 operating rental expense 8 30 28 20 14 12
Preferred stock dividends (1) 20 85 35 -- -- --
-------------- ---------- --------- --------- --------- ---------
Total fixed charges $ 52 $ 218 $ 146 $ 48 $ 25 $ 38
======== ====== ===== ===== ===== =====
RATIO OF EARNINGS TO FIXED CHARGES 5.1 5.2 4.0 7.2 10.4 6.0
======== ====== ===== ===== ===== =====
(1) Preferred stock dividends were increased to amounts of pre-tax earnings
that would be required to cover such dividends based on the effective
income tax rates for the periods presented. These after-tax dividend
amounts were $14 million for the quarter ended March 31, 1998, $54 million
for the year ended December 31, 1997, and $20 million for the year ended
December 31, 1996.
</TABLE>
EXHIBIT 15.1
June 11, 1998
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
We are aware that AirTouch Communications, Inc. has incorporated by reference
our report dated May 4, 1998 (issued pursuant to the provisions of Statement on
Auditing Standards No. 71) in the Prospectus constituting part of its
Registration Statement on Form S-3 to be filed on or about June 11, 1998. We are
also aware of our responsibilities under the Securities Act of 1933.
Yours very truly,
/s/ PRICE WATERHOUSE LLP
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report dated
March 2, 1998 which appears on page 29 of the 1997 Annual Report to Stockholders
of AirTouch Communications, Inc., which is incorporated by reference in AirTouch
Communications, Inc.'s Annual Report on Form 10-K for the year ended December
31, 1997. We also consent to the incorporation by reference of our report on the
Financial Statement Schedule, which appears on page X-1 of such Annual Report on
Form 10-K. We also consent to the reference to us under the heading "Experts" in
such Propectus.
/s/ PRICE WATERHOUSE LLP
San Francisco, California
June 11, 1998
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference of our firm under caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of AirTouch
Communications, Inc., ATI Financing I, and ATI Financing II for the registration
of Common Stock, Preferred Stock, Depositary Shares, Debt Securities, Common
Stock Warrants, Preferred Stock Warrants, Third Party Warrants, Debt Warrants,
Stock Purchase Contracts, Stock Purchase Units and Other Units and to the
incorporation by reference of our report dated February 16, 1996 with respect to
the consolidated financial statements and schedule of Cellular Communications,
Inc. incorporated by reference in AirTouch Communications, Inc.'s Annual Report
(Form 10-K) for the year ended December 31, 1997.
/s/ Ernst & Young LLP
New York, New York
June 9, 1998
EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the registration statement on
Form S-3 of AirTouch Communications, Inc., ATI Financing I, and ATI Financing II
of our report, dated February 16, 1998 relating to the financial statements of
Mannesman Mobilfunk GmbH included in AirTouch Communications, Inc.'s Annual
Report on Form 10-K for the year ended December 31, 1997.
Dusseldorf, Germany, June 11, 1998
KPMG Deutsche Treuhand-Gesellschaft
Aktiengesellschaft
Wirtschaftsprufungsgesellschaft
/s/ Scheffler /s/ Haas
Wirtschaftsprufer Wirtschaftsprufer
EXHIBIT 23.4
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference, in the Registration Statement on
Form S-3 of AirTouch Communications, Inc. of our report dated February 23, 1998,
on our audits of the consolidated financial statements and financial statement
schedule of CMT Partners as of December 31, 1997, 1996, and 1995, which report
is included in AirTouch Communications, Inc.'s 1997 Annual Report on Form 10-K.
We also consent to the reference to our firm under the caption "Experts."
/s/ Coopers & Lybrand L.L.P.
San Francisco, California
June 11, 1998
EXHIBIT 23.5
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference of our firm under caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of AirTouch
Communications, Inc., ATI Financing I, and ATI Financing II for the registration
of Common Stock, Preferred Stock, Depositary Shares, Debt Securities, Common
Stock Warrants, Preferred Stock Warrants, Third Party Warrants, Debt Warrants,
Stock Purchase Contracts, Stock Purchase Units and Other Units and to the
incorporation by reference of our report dated February 16, 1996 with respect to
the consolidated financial statements and schedule of NewPar, (a Partnership),
incorporated by reference in the Annual Report (Form 10-K) of AirTouch
Communications, Inc. for the year ended December 31, 1997.
/s/ Ernst & Young LLP
Columbus, Ohio
June 11, 1998
EXHIBIT 23.6
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-3 of our report dated January
24, 1997, on the financial statements of Kansas Combined Cellular incorporated
by reference in the Annual Report on Form 10-K of AirTouch Communications, Inc.
for the year ended December 31, 1997 and to all references to our firm included
in this Registration Statement.
/s/ Arthur Andersen LLP
Kansas City, Missouri,
June 11, 1998
EXHIBIT 23.7
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated February 12, 1998,
as it relates to U S WEST NewVector Group, Inc. and Subsidiaries, included in
AirTouch Communications, Inc.'s Form 8-K/A-1, date of report: April 6, 1998, as
amended, and to all references to our Firm included in this registration
statement. It should be noted that we have not audited any financial statements
of the Company subsequent to December 31, 1997, or performed any audit
procedures subsequent to the date of our report.
/s/ Arthur Andersen LLP
Denver, Colorado
June 9, 1998
