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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of The Securities Exchange Act of 1934
Date of Report: April 6, 1998
AirTouch Communications, Inc.
Delaware 1-12342 94-3213132
(State or other (Commission File (IRS Employer
jurisdiction of Number) Identification No.)
incorporation)
One California Street, San Francisco, California 94111
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (415) 658-2000
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Item 2. Acquisition or Disposition of Assets.
On April 6, 1998, AirTouch Communications, Inc. ("AirTouch") and U S
WEST Media Group, Inc. ("Media") completed the merger of Media's U.S. cellular
and PCS interests into AirTouch (the "Merger") pursuant to the Agreement and
Plan of Merger dated as of January 29, 1998, among U S WEST, Inc., Media, U S
WEST NewVector Group, Inc. ("NewVector"), U S WEST PCS Holdings, Inc.
("Holdings") and AirTouch (the "Merger Agreement"). A copy of the Merger
Agreement is filed as Exhibit 2.1 to AirTouch's Current Report on Form 8-K,
Date of Report: January 29, 1998 (File No. 1-12342).
The Merger was structured as a tax-free merger in which New Vector,
which holds Media's U.S. Cellular business, and Holdings, which owns an
indirect 25% interest in PrimeCo Personal Communications, L.P., merged into
AirTouch, with AirTouch as the surviving corporation. In the merger, AirTouch
issued approximately 59.5 million shares of common stock valued at $2.9 billion
based on the April 3, 1998 closing price of $49 per share and shares of 5.143%
Class D Cumulative Preferred Stock and 5.143% Class E Cumulative Preferred
Stock having an aggregate face value of $1.65 billion. AirTouch also assumed
$1.35 billion of debt associated with the acquired businesses, which
it refinanced through the issuance of a corresponding amount of commercial
paper. The amount of the consideration was determined based on arm's-length
negotiations between the parties.
AirTouch's earnings per share dilution from the acquisition, primarily
due to the amortization of acquisition intangibles, is expected to peak at
approximately $0.40 per share in the first full year following the transaction
and to decline thereafter. AirTouch plans to pursue cost savings to partially
mitigate this dilution.
Item 7. Financial Statements and Exhibits
(a) Financial Statements.
The financial statements required by this item will be filed not later
than 60 days after the date that this Report must be filed.
(c) Exhibits.
Exhibit 3.1 Certificate of Designation, Preferences and Rights of 5.143%
Class D Cumulative Preferred Stock.
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Exhibit 3.2 Certificate of Designation, Preferences and Rights of 5.143% Class
E Cumulative Preferred Stock
Exhibit 10 Amended and Restated Investment Agreement dated as of April 6,
1998 by and between AirTouch and US WEST, Inc.
Exhibit 99. Press Release dated April 6, 1998.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, the Registrant has duly caused this Report to be signed on its behalf
by the undersigned hereunto duly authorized.
AIRTOUCH COMMUNICATIONS, INC.
By: /s/ MOHAN S. GYANI
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Mohan S. Gyani
Executive Vice President and
Chief Financial Officer
Date: April 13, 1998
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Exhibits Index
Exhibit 3.1 Certificate of Designation, Preferences and Rights of Class D
Cumulative Preferred Stock.
Exhibit 3.2 Certificate of Designation, Preferences and Rights of Class E
Cumulative Preferred Stock.
Exhibit 10 Amended and Restated Investment Agreement dated as of April 6,
1998 by and between AirTouch and U S WEST, Inc.
Exhibit 99. Press Release dated April 6, 1998.
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CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS OF
5.143% CLASS D CUMULATIVE PREFERRED STOCK,
SERIES 1998
OF
AIRTOUCH COMMUNICATIONS, INC.
AIRTOUCH COMMUNICATIONS, INC. (the "Corporation"), a Delaware
corporation governed by the provisions of the General Corporation Law of the
State of Delaware, as amended, hereby certifies that:
1. The Certificate of Incorporation of the Corporation expressly
grants to the Board of Directors of the Corporation the authority to provide
for the issuance of shares of preferred stock in series, and to establish from
time to time the number of shares to be included in each such series and the
qualifications, designation, powers, preferences and rights of the shares of
each such series and the qualifications, limitation and restrictions thereof.
Pursuant to resolutions duly adopted by the Board of Directors in accordance
with Section 141 of the General Corporation Law of the State of Delaware (the
"DGCL") at a meeting held on December 11, 1997, the Board of Directors granted
the authority to the U S WEST Merger Committee (the "Merger Committee") to
establish such terms with respect to preferred stock to be issued in connection
with the transactions pursuant to the Agreement and Plan of Merger among this
Corporation, U S WEST, Inc., U S WEST Media Group, Inc., U S WEST NewVector
Group, Inc. and U S WEST PCS Holdings, Inc.
2. Pursuant to the authority conferred upon the Board of
Directors by the Certificate of Incorporation and upon the Merger Committee by
resolution of the Board of Directors, the Merger Committee, by action duly
taken on April 3, 1998, adopted resolutions that provide for a series of
Preferred Stock as follows:
RESOLVED, that the Committee hereby fixes the amount, preferences and
rights of the shares of the Class D Cumulative Preferred Stock, Series 1998, as
set forth in Schedule A attached hereto, and the proper officers of the
Corporation are hereby authorized to execute and file a Certificate of
Designation, Preferences and Rights containing such provisions with the
Secretary of the State of Delaware and with such other governmental agencies or
authorities as any of such officers may deem appropriate.
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SCHEDULE A
SECTION 1. DESIGNATION AND AMOUNT.
The designation of the series of Preferred Stock created by this Certificate
shall be "5.143% Class D Cumulative Preferred Stock, Series 1998, par value
$0.01 per share" (the "Class D Preferred Stock"), and the number of shares
constituting such series shall be 825,000. Such number of shares may be
increased or decreased by resolution of the Board of Directors, provided that
no decrease shall reduce the number of shares of Class D Preferred Stock to a
number less than that of the shares of Class D Preferred Stock then outstanding
plus the number of shares issuable upon exercise of outstanding rights, options
or warrants or upon conversion of outstanding securities issued by the
Corporation. The Class D Preferred Stock is issuable in whole shares only.
SECTION 2. DEFINITIONS.
"Business Day" shall mean any day other than a Saturday, Sunday, or a
day on which banking institutions in the State of California or the State of
New York are authorized or obligated by law or executive order to close or are
closed because of a banking moratorium or otherwise.
"Class B Preferred Stock" means the Corporation's 6.00% Class B
Mandatorily Convertible Preferred Stock, Series 1996.
"Class C Preferred Stock" means the Corporation's 4.25% Class C
Convertible Preferred Stock, Series 1996.
"Class E Preferred Stock" means the Corporation's 5.143% Class E
Cumulative Preferred Stock, Series 1998.
SECTION 3. DIVIDENDS.
(a) Payment of Dividends. The holders of outstanding shares of Class
D Preferred Stock shall be entitled to receive, when, as and if declared by the
Board of Directors out of funds legally available therefor, cumulative
dividends at the rate per share of Class D Preferred Stock of $51.43 per annum,
as adjusted pursuant hereto, and no more, payable quarterly in arrears on the
15th day of each February, May, August and November, respectively (each such
date being hereinafter referred to as a "Dividend Payment Date"), or, if any
Dividend Payment Date is not a Business Day, then the Dividend Payment Date
shall be the next succeeding Business Day. The first dividend payment shall be
for the period from April 6, 1998 to but excluding the first day of the next
calendar quarter, and will be payable on the first Dividend Payment Date
thereafter. Each quarterly period beginning on January 1, April 1, July 1 and
October 1 in each year and ending on and including the day next preceding the
first day of the next such quarterly period shall be a dividend period.
Dividends (or amounts equal to accrued and unpaid dividends) payable on Class D
Preferred Stock for any period less than a full quarterly dividend period will
be computed on the basis of a 360- day year of twelve 30-day months and the
actual number of days elapsed in any period less than one month. Accumulated
unpaid dividends may be declared and paid at any time, without reference to any
Dividend Payment Date. The Board of Directors may fix a record date for the
determination of holders of Class D Preferred Stock entitled to receive payment
of a dividend declared thereon, which record date shall be no more than 60
calendar days prior to the date fixed for the payment thereof.
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Dividends on the Class D Preferred Stock will accrue, whether or not
there are funds legally available for the payment of such dividends and whether
or not such dividends are declared, on a daily basis from the previous Dividend
Payment Date. Accumulated unpaid dividends shall not bear interest. Dividends
will cease to accrue in respect of shares of Class D Preferred Stock on the
Maturity Date or the date of their earlier redemption. Holders of shares of
Class D Preferred Stock shall not be entitled to any dividends, whether payable
in cash, property, or stock, in excess of cumulative dividends as herein
provided, on the Class D Preferred Stock.
Subject to Section 9(c), the Class D Preferred Stock will rank on a
parity as to payment of dividends with the Class B Preferred Stock, the Class C
Preferred Stock and the Class E Preferred Stock, and with any future preferred
stock issued by the Corporation (the "Parity Preferred Stock") that by its
terms ranks pari passu with the Class D Preferred Stock with respect to payment
of dividends.
The Class D Preferred Stock will be subordinate as to payment of
dividends to any series of preferred stock issued by the Corporation in the
future that by its terms is senior to the Class D Preferred Stock with respect
to the payment of dividends (the "Senior Preferred Stock").
(b) Payment of Dividends on Junior Stock. As long as any shares of
Class D Preferred Stock are outstanding, no dividends or other distributions
for any dividend period (other than dividends payable in shares of, or
warrants, rights or options exercisable for or convertible into shares of,
Common Stock or any other capital stock of the Corporation ranking junior to
the Class D Preferred Stock as to the payment of dividends and distribution of
assets upon liquidation, including the Corporation's Series A Redeemable
Participating Preferred Stock, par value $0.01 per share (collectively, "Junior
Stock"), and cash in lieu of fractional shares of such Junior Stock in
connection with any such dividend) will be paid on any Junior Stock unless: (i)
full dividends on all outstanding shares of Senior Preferred Stock, Parity
Preferred Stock and the Class D Preferred Stock have been paid, or declared and
set aside for payment, for all dividend periods terminating on or prior to the
payment date of such Junior Stock dividend or distribution and for the current
dividend period, to the extent such Senior Preferred Stock, Parity Preferred
Stock or the Class D Preferred Stock dividends are cumulative; (ii) the
Corporation has paid or set aside all amounts, if any, then or theretofore
required to be paid or set aside for all purchase, retirement, and sinking
funds, if any, for any outstanding shares of Senior Preferred Stock, Parity
Preferred Stock or Class D Preferred Stock; and (iii) the Corporation is not in
default on any of its obligations to redeem (or, in the case of the Class D
Preferred Stock, repurchase pursuant to any agreement between the Corporation
and holders of Class D Preferred Stock) any outstanding shares of Senior
Preferred Stock, Parity Preferred Stock or Class D Preferred Stock.
In addition, as long as any shares of Class D Preferred Stock are
outstanding, no shares of any Junior Stock may be purchased, redeemed, or
otherwise acquired by the Corporation or any of its subsidiaries (except in
connection with a reclassification or exchange of any Junior Stock through the
issuance of other Junior Stock (and cash in lieu of fractional shares of such
Junior Stock in connection therewith) or the purchase, redemption, or other
acquisition of any Junior Stock with any Junior Stock (and cash in lieu of
fractional shares of such Junior Stock in connection therewith)) nor may any
funds be set aside or made available for any sinking fund for the purchase or
redemption of any Junior Stock unless: (i) full dividends on all outstanding
shares of Senior Preferred Stock, Parity Preferred Stock and the Class D
Preferred Stock have been paid, or declared and set aside for payment, for all
dividend periods terminating on or prior to the date of such purchase,
redemption or other acquisition and for the current dividend period, to the
extent such Senior Preferred Stock, Parity Preferred Stock or Class D Preferred
Stock dividends are cumulative; (ii) the Corporation has
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paid or set aside all amounts, if any, then or theretofore required to be paid
or set aside for all purchase, retirement, and sinking funds, if any, for any
outstanding shares of Senior Preferred Stock, Parity Preferred Stock or Class D
Preferred Stock; and (iii) the Corporation is not in default on any of its
obligations to redeem (or, in the case of the Class D Preferred Stock,
repurchase pursuant to any agreements between the Corporation and holders of
Class D Preferred Stock) any outstanding shares of Senior Preferred Stock,
Parity Preferred Stock or Class D Preferred Stock; provided that if any moneys
have been deposited in any sinking fund for the purchase or redemption of any
Junior Stock in compliance with this provision, such funds may thereafter be
applied to the purchase or redemption of such Junior Stock in accordance with
the terms of such sinking fund, regardless of whether the conditions set forth
in (i)-(iii) above have been satisfied.
Subject to the provisions described above, such dividends or other
distributions (payable in cash, property, or Junior Stock) as may be determined
from time to time by the Board of Directors may be declared and paid on the
shares of any Junior Stock and from time to time Junior Stock may be purchased,
redeemed or otherwise acquired by the Corporation or any of its subsidiaries.
In the event of the declaration and payment of any such dividends or other
distributions, the holders of such Junior Stock will be entitled, to the
exclusion of holders of any outstanding Senior Preferred Stock, Parity
Preferred Stock or Class D Preferred Stock, to share therein according to their
respective interests.
(c) Payment of Dividends on Parity Preferred Stock. As long as any
shares of Class D Preferred Stock are outstanding, no dividends or other
distributions for any dividend period may be paid on any outstanding shares of
Parity Preferred Stock (other than dividends or other distributions payable in
Junior Stock and cash in lieu of fractional shares of such Junior Stock in
connection therewith), unless either: (a)(i) full dividends on all outstanding
shares of Senior Preferred Stock, Parity Preferred Stock and Class D Preferred
Stock have been paid, or declared and set aside for payment, for all dividend
periods terminating on or prior to the payment date of such Parity Preferred
Stock dividend or distribution and for the current dividend period, to the
extent such Senior Preferred Stock, Parity Preferred Stock or Class D Preferred
Stock dividends are cumulative; (ii) the Corporation has paid or set aside all
amounts, if any, then or theretofore required to be paid or set aside for all
purchase, retirement and sinking funds, if any, for any outstanding shares of
Senior Preferred Stock, Parity Preferred Stock and Class D Preferred Stock; and
(iii) the Corporation is not in default on any of its obligations to redeem
(or, in the case of the Class D Preferred Stock, repurchase pursuant to any
agreements between the Corporation and holders of Class D Preferred Stock) any
outstanding shares of Senior Preferred Stock, Parity Preferred Stock or Class D
Preferred Stock; or (b) any such dividends are declared and paid pro rata so
that the amounts of any dividends declared and paid per share on outstanding
Class D Preferred Stock and each share of such Parity Preferred Stock will in
all cases bear to each other the same ratio that accrued and unpaid dividends
(including any accumulation with respect to unpaid dividends for prior dividend
periods, if such dividends are cumulative) per share of outstanding Class D
Preferred Stock and such outstanding shares of Parity Preferred Stock bear to
each other.
In addition, as long as any shares of Class D Preferred Stock are
outstanding, no shares of Parity Preferred Stock may be purchased, redeemed, or
otherwise acquired by the Corporation or any of its subsidiaries (except in
connection with a reclassification or exchange of any Parity Preferred Stock
through the issuance of other Parity Preferred Stock (and cash in lieu of
fractional shares of such Parity Preferred Stock in connection therewith) or
the purchase redemption or other acquisition of Parity Preferred Stock with any
Junior Stock (and cash in lieu of fractional shares of such Junior Stock in
connection therewith)) nor may any funds be set aside or made available for any
sinking fund for the purchase or redemption of any Parity Preferred Stock
unless: (i) full dividends on all
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outstanding shares of Senior Preferred Stock, Parity Preferred Stock or Class D
Preferred Stock have been paid, or declared and set aside for payment, for all
dividend periods terminating on or prior to the date of such purchase,
redemption or other acquisition and for the current dividend period, to the
extent such Senior Preferred Stock, Parity Preferred Stock or Class D Preferred
Stock dividends are cumulative; (ii) the Corporation has paid or set aside all
amounts, if any, then or theretofore required to be paid or set aside for all
purchase, retirement, and sinking funds, if any, for any outstanding shares of
Senior Preferred Stock and Parity Preferred Stock; and (iii) the Corporation is
not in default of any of its obligations to redeem (or, in the case of the
Class D Preferred Stock, repurchase pursuant to any agreements between the
Corporation and holders of Class D Preferred Stock) any outstanding shares of
Senior Preferred Stock, Parity Preferred Stock or Class D Preferred Stock,
unless all Senior Preferred Stock, Parity Preferred Stock or Class D Preferred
Stock as to which such a default exists is purchased or redeemed on a pro rata
basis; provided that if any moneys have been deposited in any sinking fund for
the purchase or redemption of any Parity Preferred Stock in compliance with
this provision, such funds may thereafter be applied to the purchase or
redemption of such Parity Preferred Stock in accordance with the terms of such
sinking fund, regardless of whether the conditions set forth in (i)-(iii) above
have been satisfied.
(d) Any dividend payment made on the Class D Preferred Stock shall
first be credited against the earliest accrued but unpaid dividend due with
respect to the Class D Preferred Stock.
(e) All dividends paid with respect to the Class D Preferred Stock
shall be paid pro rata to the holders entitled thereto.
(f) If, on or prior to December 31, 1999, one or more amendments to
the Internal Revenue Code of 1986, as amended (the "Code"), are enacted that
reduce the percentage of the dividends received deduction (currently 70%), as
specified in Section 243(a)(1) of the Code or any successor provision (the
"Dividends Received Percentage"), the amount of each dividend payable (if
declared) per share of Class D Preferred Stock pursuant to Section 3(a) for
dividend payments made on or after the effective date of such change in the
Code will be adjusted by multiplying the amount of such dividend (before
adjustment) by the following fraction (the "DRD Formula"), and rounding the
result to the nearest cent (with one-half cent rounded up):
1-.35(1-.70)
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1-.35(1-DRP)
For the purposes of the DRD Formula, "DRP" means the Dividends Received
Percentage (expressed as a decimal) applicable to the dividend in question;
provided, however, that if the Dividends Received Percentage applicable to the
dividend in question shall be less than 60%, then the DRP shall equal 0.60. No
amendment to the Code, other than a change in the percentage of the dividends
received deduction set forth in Section 243(a)(1) of the Code or any successor
provision, will give rise to an adjustment. Notwithstanding the foregoing
provisions, if, with respect to any such amendment, the Corporation receives
either an unqualified opinion of nationally recognized independent tax counsel
selected by the Corporation or a private letter ruling or similar form of
authorization from the Internal Revenue Service ("IRS") to the effect that such
amendment does not apply to a dividend payable on the Class D Preferred Stock,
then such amendment will not result in the adjustment provided for pursuant to
the DRD Formula with respect to such dividend.
If any such amendment to the Code is enacted after the dividend
payable on a dividend payment date has been declared, the amount of the
dividend payable on such dividend payment date will not be increased; instead,
additional dividends (the "Post Declaration Date Dividends") equal to
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the excess, if any, of (x) the product of the dividend paid by the Corporation
on such dividend payment date and the DRD Formula (where the DRP used in the
DRD Formula would be equal to the greater of the Dividends Received Percentage
applicable to the dividend in question and 0.60) over (y) the dividend paid by
the Corporation on such dividend payment date, will be payable (if declared) to
holders of Class D Preferred Stock on the record date applicable to the next
succeeding dividend payment date or, if the Class D Preferred Stock is called
for redemption prior to such record date, to holders of Class D Preferred Stock
on the applicable redemption date, as the case may be, in addition to any other
amounts payable on such date, provided, however that if the Corporation has
received the opinion, letter ruling or authorization referred to above with
respect to a Post Declaration Date Dividend, then no such dividends will be
payable.
In addition, if on or prior to December 31, 1999, an amendment to the
Code is enacted that reduces the Dividends Received Reduction to below 70% and
such reduction retroactively applies to a dividend payment date as to which the
Corporation previously paid dividends on the Class D Preferred Stock (each, an
"Affected Dividend Payment Date"), the Corporation will pay (if declared)
additional dividends (the "Retroactive Dividends") to holders of Class D
Preferred Stock on the record date applicable to the next succeeding dividend
payment date (or, if such amendment is enacted after the dividend payable on
such dividend payment date has been declared, to holders of Class D Preferred
Stock on the record date following the date of enactment) or, if the Class D
Preferred Stock is called for redemption prior to such record date, to holders
of Class D Preferred Stock on the applicable redemption date, as the case may
be, in an amount equal to the excess of (x) the product of the dividend paid by
the Corporation on each Affected Dividend Payment Date and the DRD Formula
(where the DRP used in the DRD Formula would be equal to the greater of the
Dividends Received Percentage and 0.60 applied to each Affected Dividend
Payment Date) over (y) the sum of the dividend paid by the Corporation on each
Affected Dividend Payment Date; provided, however that if the Corporation has
received the opinion, letter ruling or authorization referred to above, with
respect to a dividend payable on the Affected Payment Date, then no such
Retroactive Dividends will be payable. Retroactive Dividends will not be paid
in respect of the enactment of any amendment to the Code after December 31,
1999 which retroactively reduces the Dividends Received Percentage to below
70%. The Corporation will only make one payment of Retroactive Dividends.
The Corporation's calculation of the dividends payable, as so adjusted
and as certified accurate as to calculation and reasonable as to method by an
officer of the Corporation, will be final and not subject to review absent
manifest error.
SECTION 4. REDEMPTION.
(a) Mandatory Redemption. On April 6, 2020 (the "Maturity Date"),
the Class D Preferred Stock shall terminate and the holder of each outstanding
share of Class D Preferred Stock shall be entitled to receive an amount in cash
equal to $1,000 per share (the "Liquidation Amount") plus all accrued but
unpaid dividends on such share of Class D Preferred Stock (other than
previously declared dividends payable to a holder of record as of a prior date)
to the Maturity Date, whether or not declared, out of funds legally available
for the payment of dividends, subject to the redemption of the Class D
Preferred Stock prior to the Maturity Date pursuant to Section 4(b). Dividends
on the Class D Preferred Stock shall cease to accrue and such stock shall cease
to be outstanding on the Maturity Date. The Corporation shall make
arrangements substantially similar to those in Sections 4(b)(iii) and (iv) for
the payment of cash in respect of the Liquidation Amount and accrued but unpaid
dividends and shall provide holders of the Class D Preferred Stock with notice
of such
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arrangements. Amounts payable in cash in respect of the Class D Preferred
Stock as of the Maturity Date shall not bear interest.
(b) Redemption at the Option of the Company. (i) The Corporation, at
its option, may redeem shares of Class D Preferred Stock, as a whole or in
part, at any time or from time to time on or after April 7, 2018 at a price per
share equal to the Liquidation Amount, plus accrued but unpaid dividends
thereon (other than previously declared dividends payable to a holder of record
as of a prior date) to the date fixed for redemption (the "Redemption Price").
The public announcement of any call for redemption pursuant to this
Section shall be made prior to, or at the time of, the mailing of the notice of
such call to holders of Class D Preferred Stock as described below. If fewer
than all the outstanding shares of Class D Preferred Stock are to be redeemed,
the shares of Class D Preferred Stock to be redeemed shall be selected by the
Corporation from outstanding shares of Class D Preferred Stock not previously
redeemed by lot or pro rata (as nearly as may be practicable) or by any other
method determined by the Board of Directors in its sole discretion to be
equitable.
(ii) Notice of Redemption. The Corporation shall provide notice of
any redemption of the Class D Preferred Stock pursuant to this Section to
holders of record of Class D Preferred Stock to be called for redemption not
less than 15 nor more than 60 days prior to the date fixed for such redemption.
Such notice shall be provided by mailing notice of such redemption, first class
postage prepaid, to each holder of record of Class D Preferred Stock to be
redeemed, at such holder's address as it appears on the stock register of the
Corporation; provided, however, that neither failure to give such notice nor
any defect therein shall affect the validity of the proceeding for the
redemption of any shares of Class D Preferred Stock to be redeemed except as to
the holders to whom the Corporation has failed to give said notice or whose
notice was defective.
Each such notice shall state, as appropriate, the following and may
contain such other information as the Corporation deems advisable:
(A) the redemption date;
(B) that all outstanding shares of Class D Preferred Stock are to be
redeemed or, in the case of a call for redemption of fewer than all outstanding
shares of Class D Preferred Stock, the number of such shares held by such
holder to be redeemed;
(C) the Liquidation Amount;
(D) the place or places where certificates for such shares are to be
surrendered for redemption; and
(E) that dividends on the Class D Preferred Stock to be redeemed
shall cease to accrue on such redemption date (except as otherwise provided
herein).
(iii) Deposit of Shares and Funds. The Corporation's obligation to
provide funds upon redemption in accordance with this Section 4(b) shall be
deemed fulfilled if, on or before a redemption date, the Corporation shall
irrevocably deposit, with a bank or trust company, or an affiliate of a bank or
trust company, having an office or agency in New York City and having a capital
and surplus of at least $50,000,000, an amount of funds required to be
delivered by the Corporation pursuant to this Section 4(b) upon the occurrence
of the related redemption. Any
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interest accrued on such funds shall be paid to the Corporation from time to
time. Any funds so deposited and unclaimed at the end of two years from such
redemption date shall be repaid and released to the Corporation, after which
the holder or holders of such Class D Preferred Stock so called for redemption
shall look only to the Corporation for delivery of such funds.
(iv) Surrender of Certificates; Status. Each holder of shares of
Class D Preferred Stock to be redeemed shall surrender the certificates
evidencing such shares (properly endorsed or assigned for transfer, if the
Board of Directors shall so require and the notice shall so state) to the
Corporation at the place designated in the notice of such redemption and shall
there upon be entitled to receive any funds payable pursuant to this Section
4(b) following such surrender and following the date of such redemption. In
case fewer than all the shares of Class D Preferred Stock represented by any
such surrendered certificate are called for redemption, a new certificate shall
be issued at the expense of the Corporation representing the unredeemed shares
of Class D Preferred Stock. If such notice of redemption shall have been
given, and if on the date fixed for redemption, funds necessary for the
redemption shall have been irrevocably either set aside by the Corporation
separate and apart from its other funds or assets in trust for the account of
the holders of the shares to be redeemed (and so as to be and continue to be
available therefore) or deposited with a bank or a trust company or an
affiliate thereof as provided herein or the Corporation shall have made other
reasonable provision therefore, then, notwithstanding that the certificates
evidencing any shares of Class D Preferred Stock so called for redemption shall
not have been surrendered, the shares of Class D Preferred Stock represented
thereby so called for redemption shall be deemed no longer outstanding,
dividends with respect to the shares of Class D Preferred Stock so called for
redemption shall cease to accrue on the date fixed for redemption (except that
holders of Class D Preferred Stock at the close of business on a record date
for any payment of dividends shall be entitled to receive the dividend payable
on such shares on the corresponding Dividend Payment Date notwithstanding the
redemption of such shares following such record date and prior to such Dividend
Payment Date) and all rights with respect to the shares of Class D Preferred
Stock so called for redemption shall forthwith after such date cease and
terminate, except for the rights of the holders to receive funds, if any,
payable pursuant to this Section 4(b) without interest upon surrender of their
certificates therefore.
SECTION 5. SHARES TO BE RETIRED.
All shares of Class D Preferred Stock redeemed by the Corporation shall be
retired and canceled and shall be restored to the status of authorized but
unissued shares of Preferred Stock, without designation as to series, and may
thereafter be reissued.
SECTION 6. CONVERSION OR EXCHANGE.
The holders of shares of Class D Preferred Stock shall not have any rights to
convert any such shares into or exchange any such shares for shares of any
other class or series of capital stock of the Corporation.
SECTION 7. LIQUIDATION PREFERENCE.
(a) The Class D Preferred Stock will rank on a parity as to
distribution of assets upon liquidation with the Class B Preferred Stock, the
Class C Preferred Stock, and the Class E Preferred Stock, and with any future
preferred stock issued by the Corporation that by its terms ranks pari passu
with the Class D Preferred Stock, with respect to distribution of assets upon
liquidation.
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(b) In the event of the liquidation, dissolution, or winding up of
the business of the Corporation, whether voluntary or involuntary, the holders
of Class D Preferred Stock then outstanding, after payment or provision for
payment of the debts and other liabilities of the Corporation and the payment
or provision for payment of any distribution on any shares of the Corporation
having a preference and a priority over the Class D Preferred Stock on
liquidation, and before any distribution to holders of any shares of the
Corporation that are junior and subordinate to the Class D Preferred Stock on
liquidation, including the Common Stock and the Series A Participating
Preferred Stock, shall be entitled to be paid out of the assets of the
Corporation available for distribution to its stockholders an amount of cash
per share of Class D Preferred Stock equal to the Liquidation Amount, plus all
accrued and unpaid dividends thereon. In the event the assets of the
Corporation available for distribution to the holders of the Class D Preferred
Stock upon any dissolution, liquidation or winding up of the Corporation shall
be insufficient to pay in full the liquidation payments payable to the holders
of outstanding Class D Preferred Stock and of all other series of preferred
stock that rank on a parity with the Class D Preferred Stock in the event of
liquidation, the holders of the Class D Preferred Stock and of all other series
of such parity preferred stock shall share ratably in such distribution of
assets in proportion to the amount which would be payable on such distribution
if the amounts to which the holders of outstanding Class D Preferred Stock and
the holders of outstanding shares of such parity preferred stock were paid in
full. Except as provided in this Section 5, holders of Class D Preferred Stock
shall not be entitled to any distribution in the event of liquidation,
dissolution or winding up of the affairs of the Corporation.
(c) For the purposes of this Section 5, none of the following shall
be deemed to be a voluntary or involuntary liquidation, dissolution or winding
up of the Corporation:
(i) the sale, lease, transfer or exchange of all or
substantially all of the assets of the Corporation; or
(ii) the consolidation or merger of the Corporation with one
or more other corporations (whether or not the Corporation is the corporation
surviving such consolidation or merger).
SECTION 8. NO PREEMPTIVE RIGHTS.
The holders of Class D Preferred Stock shall have no preemptive
rights, including preemptive rights with respect to any shares of capital stock
or other securities of the Corporation convertible into or carrying rights or
options to purchase any such shares.
SECTION 9. VOTING RIGHTS.
(a) The holders of Class D Preferred Stock shall not have any voting
rights except as required by law and except as set forth below in Section 9(b)
and (c).
(b) If at any time dividends payable on the Class D Preferred Stock
are in arrears and unpaid in an aggregate amount equal to or exceeding the
aggregate amount of dividends payable thereon for six quarterly dividend
periods, the holders of the Class D Preferred Stock, voting separately as a
class with the holders of all other series of Preferred Stock upon which like
voting rights have been conferred and are exercisable, shall have the right to
vote for the election of two directors of the Corporation (the "Preferred Stock
Directors"), such Directors to be in addition to the number of Directors
constituting the Board of Directors immediately prior to the accrual of such
right. At elections for such directors each holder of Class D Preferred Stock
shall be entitled to 20
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votes for each share held (the holders of shares of any other series of
Preferred Stock being entitled to such number of votes, if any, for each share
of stock held as may be granted to them). Such right of the holders of Class D
Preferred Stock to elect (either alone or together with holders of all other
series of Preferred Stock upon which like voting rights have been conferred and
are exercisable) two Preferred Stock Directors shall, when vested, continue
until all dividends in arrears on the Class D Preferred Stock shall have been
paid in full and, when so paid, such right of the holders of Class D Preferred
Stock to elect two Preferred Stock Directors separately as a class (either
alone or together with holders of all other series of Preferred Stock upon
which like voting rights have been conferred and are exercisable) shall cease,
subject always to the same provisions for the vesting of such right of the
holders of the Class D Preferred Stock to elect (either alone or together with
holders of all other series of Preferred Stock upon which like voting rights
have been conferred and are exercisable) two Preferred Stock Directors in the
case of future dividend defaults.
Such voting right may be exercised initially at a special meeting of
the holders of the Preferred Stock having such voting right, called as
hereinafter provided, or at any annual meeting of stockholders held for the
purpose of electing directors, and thereafter at each subsequent annual
meeting; provided that such voting right shall not be exercised unless the
holders of thirty-three and one-third percent (33- 1/3%) in number of shares of
Preferred Stock outstanding shall be present in person or by proxy. The
absence of a quorum of the holders of Common Stock shall not affect the
exercise by the holders of Preferred Stock of such voting rights.
Unless the holders of Preferred Stock shall, during an existing
default period, have previously exercised their right to elect Directors, the
Board of Directors may order, or any stockholder or stockholders owning in the
aggregate not less than ten percent (10%) of the total number of shares of
Preferred Stock outstanding, irrespective of series, may request, the calling
of a special meeting of the holders of Preferred Stock, which meeting shall
thereupon be called by the President, a Vice President or the Secretary of the
Corporation. Notice of such meeting and of any annual meeting at which holders
of Preferred Stock are entitled to vote pursuant to this Section shall be given
to each holder of record of Preferred Stock by mailing a copy of such notice to
him at his last address as the same appears on the books of the corporation.
Such meeting shall be called for a time not earlier than ten days and not later
than 60 days after such order or request or in default of the calling of such
meeting within 60 days after such order or request, such meeting may be called
on similar notice by any stockholder or stockholders owning in the aggregate
not less than ten percent (10%) of the total number of shares of Preferred
Stock outstanding. Notwithstanding the provisions of this Section, no such
special meeting shall be called during the period within 60 days immediately
preceding the date fixed for the next annual meeting of the stockholders.
The term of office of each Director elected pursuant to the preceding
paragraph shall terminate on the earlier of (i) the next annual meeting of
stockholders at which a successor shall have been elected and qualified or (ii)
the termination of the right of the holders of Class D Preferred Stock and such
other series of Preferred Stock to vote for Directors pursuant to the preceding
paragraph. Vacancies on the Board of Directors resulting from the death,
resignation or other cause of any such Director shall be filled exclusively by
no less than two- thirds of the remaining Directors and the Director so elected
shall hold office until a successor is elected and qualified.
(c) For as long as any shares of Class D Preferred Stock or Class E
Preferred Stock remains outstanding, the affirmative vote of the holders of at
least a majority of the Class D Preferred Stock or Class E Preferred Stock
actually voting (voting together as a class) given in person or by proxy at any
annual meeting or special meeting of the stockholders called for such purpose,
shall be necessary
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to create any class or series of stock that shall have preference as to
dividends or distributions of assets over the Class D Preferred Stock and the
Class E Preferred Stock.
(d) For as long as any shares of Class D Preferred Stock remain
outstanding, the affirmative vote of the holders of at least a majority thereof
actually voting (voting separately as a class) given in person or by proxy at
any annual meeting or special meeting of the stockholders called for such
purpose, shall be necessary to (i) amend, alter or repeal, any of the
provisions of the Certificate of Incorporation of the Corporation which would
materially and adversely affect the powers, preferences or special rights of
the holders of the shares of Class D Preferred Stock then outstanding or reduce
the minimum time required for any notice to which holders of shares of Class D
Preferred Stock then outstanding may be entitled or (ii) for the Corporation to
merge into or consolidate with any Person if, as a result of such merger or
consolidation, the Class D Preferred Stock would be converted into, exchanged
for or continue as shares of capital stock of the surviving or continuing
corporation or parent of the surviving or continuing corporation with powers,
preferences or special rights, which materially and adversely differ from the
powers, preferences or other special rights of the shares of Class D Preferred
Stock; provided, however, that any such amendment, alteration or repeal that
would authorize, create or increase the authorized amount of any shares of
stock (whether or not already authorized) ranking junior to, or on a parity
with, the Class D Preferred Stock with respect to payment of dividends or
payment upon liquidation shall be deemed not to materially and adversely affect
such powers, preferences or special rights and shall not be subject to approval
by the holders of Class D Preferred Stock; and provided further that the
holders of the Class D Preferred Stock shall not have any voting rights with
respect to the amendment, alteration or repeal of any provisions of the
Certificate of Incorporation of the Corporation approved at a meeting of the
stockholders the record date of which is prior to the issuance of any shares of
Class D Preferred Stock.
IN WITNESS WHEREOF, AirTouch Communications, Inc., has caused this
certificate to be executed this 6th day of April, 1998.
AIRTOUCH COMMUNICATIONS, INC.
By: /s/ Margaret G. Gill
----------------------------------
Margaret G. Gill
Senior Vice President Legal,
External Affairs and Secretary
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<PAGE> 1
CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS OF
5.143% CLASS E CUMULATIVE PREFERRED STOCK,
SERIES 1998
OF
AIRTOUCH COMMUNICATIONS, INC.
AIRTOUCH COMMUNICATIONS, INC. (the "Corporation"), a Delaware
corporation governed by the provisions of the General Corporation Law of the
State of Delaware, as amended, hereby certifies that:
1. The Certificate of Incorporation of the Corporation expressly
grants to the Board of Directors of the Corporation the authority to provide
for the issuance of shares of preferred stock in series, and to establish from
time to time the number of shares to be included in each such series and the
qualifications, designation, powers, preferences and rights of the shares of
each such series and the qualifications, limitation and restrictions thereof.
Pursuant to resolutions duly adopted by the Board of Directors in accordance
with Section 141 of the General Corporation Law of the State of Delaware (the
"DGCL") at a meeting held on December 11, 1997, the Board of Directors granted
the authority to the U S WEST Merger Committee (the "Merger Committee") to
establish such terms with respect to preferred stock to be issued in connection
with the transactions pursuant to the Agreement and Plan of Merger among this
Corporation, U S WEST, Inc., U S WEST Media Group, Inc., U S WEST NewVector
Group, Inc. and U S WEST PCS Holdings, Inc.
2. Pursuant to the authority conferred upon the Board of
Directors by the Certificate of Incorporation and upon the Merger Committee by
resolution of the Board of Directors, the Merger Committee, by action duly
taken on April 3, 1998, adopted resolutions that provide for a series of
Preferred Stock as follows:
RESOLVED, that the Committee hereby fixes the amount, preferences and
rights of the shares of the Class E Cumulative Preferred Stock, Series 1998, as
set forth in Schedule A attached hereto, and the proper officers of the
Corporation are hereby authorized to execute and file a Certificate of
Designation, Preferences and Rights containing such provisions with the
Secretary of the State of Delaware and with such other governmental agencies or
authorities as any of such officers may deem appropriate.
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<PAGE> 2
SCHEDULE A
SECTION 1. DESIGNATION AND AMOUNT.
The designation of the series of Preferred Stock created by this Certificate
shall be "5.143% Class E Cumulative Preferred Stock, Series 1998, par value
$0.01 per share" (the "Class E Preferred Stock"), and the number of shares
constituting such series shall be 825,000. Such number of shares may be
increased or decreased by resolution of the Board of Directors, provided that
no decrease shall reduce the number of shares of Class E Preferred Stock to a
number less than that of the shares of Class E Preferred Stock then outstanding
plus the number of shares issuable upon exercise of outstanding rights, options
or warrants or upon conversion of outstanding securities issued by the
Corporation. The Class E Preferred Stock is issuable in whole shares only.
SECTION 2. DEFINITIONS.
"Business Day" shall mean any day other than a Saturday, Sunday, or a
day on which banking institutions in the State of California or the State of
New York are authorized or obligated by law or executive order to close or are
closed because of a banking moratorium or otherwise.
"Class B Preferred Stock" means the Corporation's 6.00% Class B
Mandatorily Convertible Preferred Stock, Series 1996.
"Class C Preferred Stock" means the Corporation's 4.25% Class C
Convertible Preferred Stock, Series 1996.
"Class D Preferred Stock" means the Corporation's 5.143% Class D
Cumulative Preferred Stock, Series 1998.
SECTION 3. DIVIDENDS.
(a) Payment of Dividends. The holders of outstanding shares of Class
E Preferred Stock shall be entitled to receive, when, as and if declared by the
Board of Directors out of funds legally available therefor, cumulative
dividends at the rate per share of Class E Preferred Stock of $51.43 per annum,
as adjusted pursuant hereto, and no more, payable quarterly in arrears on the
15th day of each February, May, August and November, respectively (each such
date being hereinafter referred to as a "Dividend Payment Date"), or, if any
Dividend Payment Date is not a Business Day, then the Dividend Payment Date
shall be the next succeeding Business Day. The first dividend payment shall be
for the period from April 6, 1998 to but excluding the first day of the next
calendar quarter, and will be payable on the first Dividend Payment Date
thereafter. Each quarterly period beginning on January 1, April 1, July 1 and
October 1 in each year and ending on and including the day next preceding the
first day of the next such quarterly period shall be a dividend period.
Dividends (or amounts equal to accrued and unpaid dividends) payable on Class E
Preferred Stock for any period less than a full quarterly dividend period will
be computed on the basis of a 360- day year of twelve 30-day months and the
actual number of days elapsed in any period less than one month. Accumulated
unpaid dividends may be declared and paid at any time, without reference to any
Dividend Payment Date. The Board of Directors may fix a record date for the
determination of holders of Class E Preferred Stock entitled to receive payment
of a dividend declared thereon, which record date shall be no more than 60
calendar days prior to the date fixed for the payment thereof.
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<PAGE> 3
Dividends on the Class E Preferred Stock will accrue, whether or not
there are funds legally available for the payment of such dividends and whether
or not such dividends are declared, on a daily basis from the previous Dividend
Payment Date. Accumulated unpaid dividends shall not bear interest. Dividends
will cease to accrue in respect of shares of Class E Preferred Stock on the
Maturity Date. Holders of shares of Class E Preferred Stock shall not be
entitled to any dividends, whether payable in cash, property, or stock, in
excess of cumulative dividends as herein provided, on the Class E Preferred
Stock.
The Class E Preferred Stock will rank on a parity as to payment of
dividends with the Class B Preferred Stock, the Class C Preferred Stock and the
Class D Preferred Stock, and with any future preferred stock issued by the
Corporation (the "Parity Preferred Stock") that by its terms ranks pari passu
with the Class E Preferred Stock with respect to payment of dividends.
Subject to Section 9(c), the Class E Preferred Stock will be
subordinate as to payment of dividends to any series of preferred stock issued
by the Corporation in the future that by its terms is senior to the Class E
Preferred Stock with respect to the payment of dividends (the "Senior Preferred
Stock").
(b) Payment of Dividends on Junior Stock. As long as any shares of
Class E Preferred Stock are outstanding, no dividends or other distributions
for any dividend period (other than dividends payable in shares of, or
warrants, rights or options exercisable for or convertible into shares of,
Common Stock or any other capital stock of the Corporation ranking junior to
the Class E Preferred Stock as to the payment of dividends and distribution of
assets upon liquidation, including the Corporation's Series A Redeemable
Participating Preferred Stock, par value $0.01 per share (collectively, "Junior
Stock"), and cash in lieu of fractional shares of such Junior Stock in
connection with any such dividend) will be paid on any Junior Stock unless: (i)
full dividends on all outstanding shares of Senior Preferred Stock, Parity
Preferred Stock and the Class E Preferred Stock have been paid, or declared and
set aside for payment, for all dividend periods terminating on or prior to the
payment date of such Junior Stock dividend or distribution and for the current
dividend period, to the extent such Senior Preferred Stock, Parity Preferred
Stock or the Class E Preferred Stock dividends are cumulative; (ii) the
Corporation has paid or set aside all amounts, if any, then or theretofore
required to be paid or set aside for all purchase, retirement, and sinking
funds, if any, for any outstanding shares of Senior Preferred Stock, Parity
Preferred Stock or Class E Preferred Stock; and (iii) the Corporation is not in
default on any of its obligations to redeem (or, in the case of the Class E
Preferred Stock, repurchase pursuant to any agreement between the Corporation
and holders of Class E Preferred Stock) any outstanding shares of Senior
Preferred Stock, Parity Preferred Stock or Class E Preferred Stock.
In addition, as long as any shares of Class E Preferred Stock are
outstanding, no shares of any Junior Stock may be purchased, redeemed, or
otherwise acquired by the Corporation or any of its subsidiaries (except in
connection with a reclassification or exchange of any Junior Stock through the
issuance of other Junior Stock (and cash in lieu of fractional shares of such
Junior Stock in connection therewith) or the purchase, redemption, or other
acquisition of any Junior Stock with any Junior Stock (and cash in lieu of
fractional shares of such Junior Stock in connection therewith)) nor may any
funds be set aside or made available for any sinking fund for the purchase or
redemption of any Junior Stock unless: (i) full dividends on all outstanding
shares of Senior Preferred Stock, Parity Preferred Stock and the Class E
Preferred Stock have been paid, or declared and set aside for payment, for all
dividend periods terminating on or prior to the date of such purchase,
redemption or other acquisition and for the current dividend period, to the
extent such Senior Preferred Stock, Parity Preferred Stock or Class E Preferred
Stock dividends are cumulative; (ii) the Corporation has
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paid or set aside all amounts, if any, then or theretofore required to be paid
or set aside for all purchase, retirement, and sinking funds, if any, for any
outstanding shares of Senior Preferred Stock, Parity Preferred Stock or Class E
Preferred Stock; and (iii) the Corporation is not in default on any of its
obligations to redeem (or, in the case of the Class E Preferred Stock,
repurchase pursuant to any agreements between the Corporation and holders of
Class E Preferred Stock) any outstanding shares of Senior Preferred Stock,
Parity Preferred Stock or Class E Preferred Stock; provided that if any moneys
have been deposited in any sinking fund for the purchase or redemption of any
Junior Stock in compliance with this provision, such funds may thereafter be
applied to the purchase or redemption of such Junior Stock in accordance with
the terms of such sinking fund, regardless of whether the conditions set forth
in (i)-(iii) above have been satisfied.
Subject to the provisions described above, such dividends or other
distributions (payable in cash, property, or Junior Stock) as may be determined
from time to time by the Board of Directors may be declared and paid on the
shares of any Junior Stock and from time to time Junior Stock may be purchased,
redeemed or otherwise acquired by the Corporation or any of its subsidiaries.
In the event of the declaration and payment of any such dividends or other
distributions, the holders of such Junior Stock will be entitled, to the
exclusion of holders of any outstanding Senior Preferred Stock, Parity
Preferred Stock or Class E Preferred Stock, to share therein according to their
respective interests.
(c) Payment of Dividends on Parity Preferred Stock. As long as any
shares of Class E Preferred Stock are outstanding, no dividends or other
distributions for any dividend period may be paid on any outstanding shares of
Parity Preferred Stock (other than dividends or other distributions payable in
Junior Stock and cash in lieu of fractional shares of such Junior Stock in
connection therewith), unless either: (a) (i) full dividends on all outstanding
shares of Senior Preferred Stock, Parity Preferred Stock and Class E Preferred
Stock have been paid, or declared and set aside for payment, for all dividend
periods terminating on or prior to the payment date of such Parity Preferred
Stock dividend or distribution and for the current dividend period, to the
extent such Senior Preferred Stock, Parity Preferred Stock or Class E Preferred
Stock dividends are cumulative; (ii) the Corporation has paid or set aside all
amounts, if any, then or theretofore required to be paid or set aside for all
purchase, retirement and sinking funds, if any, for any outstanding shares of
Senior Preferred Stock, Parity Preferred Stock and Class E Preferred Stock; and
(iii) the Corporation is not in default on any of its obligations to redeem
(or, in the case of the Class E Preferred Stock, repurchase pursuant to any
agreements between the Corporation and holders of Class E Preferred Stock) any
outstanding shares of Senior Preferred Stock, Parity Preferred Stock or Class E
Preferred Stock; or (b) any such dividends are declared and paid pro rata so
that the amounts of any dividends declared and paid per share on outstanding
Class E Preferred Stock and each share of such Parity Preferred Stock will in
all cases bear to each other the same ratio that accrued and unpaid dividends
(including any accumulation with respect to unpaid dividends for prior dividend
periods, if such dividends are cumulative) per share of outstanding Class E
Preferred Stock and such outstanding shares of Parity Preferred Stock bear to
each other.
In addition, as long as any shares of Class E Preferred Stock are
outstanding, no shares of Parity Preferred Stock may be purchased, redeemed, or
otherwise acquired by the Corporation or any of its subsidiaries (except in
connection with a reclassification or exchange of any Parity Preferred Stock
through the issuance of other Parity Preferred Stock (and cash in lieu of
fractional shares of such Parity Preferred Stock in connection therewith) or
the purchase redemption or other acquisition of Parity Preferred Stock with any
Junior Stock (and cash in lieu of fractional shares of such Junior Stock in
connection therewith)) nor may any funds be set aside or made available for any
sinking fund for the purchase or redemption of any Parity Preferred Stock
unless: (i) full dividends on all
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outstanding shares of Senior Preferred Stock, Parity Preferred Stock or Class E
Preferred Stock have been paid, or declared and set aside for payment, for all
dividend periods terminating on or prior to the date of such purchase,
redemption or other acquisition and for the current dividend period, to the
extent such Senior Preferred Stock, Parity Preferred Stock or Class E Preferred
Stock dividends are cumulative; (ii) the Corporation has paid or set aside all
amounts, if any, then or theretofore required to be paid or set aside for all
purchase, retirement, and sinking funds, if any, for any outstanding shares of
Senior Preferred Stock and Parity Preferred Stock; and (iii) the Corporation is
not in default of any of its obligations to redeem (or, in the case of the
Class E Preferred Stock, repurchase pursuant to any agreements between the
Corporation and holders of Class E Preferred Stock) any outstanding shares of
Senior Preferred Stock, Parity Preferred Stock or Class E Preferred Stock,
unless all Senior Preferred Stock, Parity Preferred Stock or Class E Preferred
Stock as to which such a default exists is purchased or redeemed on a pro rata
basis; provided that if any moneys have been deposited in any sinking fund for
the purchase or redemption of any Parity Preferred Stock in compliance with
this provision, such funds may thereafter be applied to the purchase or
redemption of such Parity Preferred Stock in accordance with the terms of such
sinking fund, regardless of whether the conditions set forth in (i)-(iii) above
have been satisfied.
(d) Any dividend payment made on the Class E Preferred Stock shall
first be credited against the earliest accrued but unpaid dividend due with
respect to the Class E Preferred Stock.
(e) All dividends paid with respect to the Class E Preferred Stock
shall be paid pro rata to the holders entitled thereto.
(f) If, on or prior to December 31, 1999, one or more amendments to
the Internal Revenue Code of 1986, as amended (the "Code"), are enacted that
reduce the percentage of the dividends received deduction (currently 70%), as
specified in Section 243(a)(1) of the Code or any successor provision (the
"Dividends Received Percentage"), the amount of each dividend payable (if
declared) per share of Class E Preferred Stock pursuant to Section 3(a) for
dividend payments made on or after the effective date of such change in the
Code will be adjusted by multiplying the amount of such dividend (before
adjustment) by the following fraction (the "DRD Formula"), and rounding the
result to the nearest cent (with one-half cent rounded up):
1-.35(1-.70)
----------------
1-.35(1-DRP)
For the purposes of the DRD Formula, "DRP" means the Dividends Received
Percentage (expressed as a decimal) applicable to the dividend in question;
provided, however, that if the Dividends Received Percentage applicable to the
dividend in question shall be less than 60%, then the DRP shall equal 0.60. No
amendment to the Code, other than a change in the percentage of the dividends
received deduction set forth in Section 243(a)(1) of the Code or any successor
provision, will give rise to an adjustment. Notwithstanding the foregoing
provisions, if, with respect to any such amendment, the Corporation receives
either an unqualified opinion of nationally recognized independent tax counsel
selected by the Corporation or a private letter ruling or similar form of
authorization from the Internal Revenue Service ("IRS") to the effect that such
amendment does not apply to a dividend payable on the Class E Preferred Stock,
then such amendment will not result in the adjustment provided for pursuant to
the DRD Formula with respect to such dividend.
If any such amendment to the Code is enacted after the dividend
payable on a dividend payment date has been declared, the amount of the
dividend payable on such dividend payment date will not be increased; instead,
additional dividends (the "Post Declaration Date Dividends") equal to
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the excess, if any, of (x) the product of the dividend paid by the Corporation
on such dividend payment date and the DRD Formula (where the DRP used in the
DRD Formula would be equal to the greater of the Dividends Received Percentage
applicable to the dividend in question and 0.60) over (y) the dividend paid by
the Corporation on such dividend payment date, will be payable (if declared) to
holders of Class E Preferred Stock on the record date applicable to the next
succeeding dividend payment date in addition to any other amounts payable on
such date, provided, however that if the Corporation has received the opinion,
letter ruling or authorization referred to above with respect to a Post
Declaration Date Dividend, then no such dividends will be payable.
In addition, if on or prior to December 31, 1999, an amendment to the
Code is enacted that reduces the Dividends Received Reduction to below 70% and
such reduction retroactively applies to a dividend payment date as to which the
Corporation previously paid dividends on the Class E Preferred Stock (each, an
"Affected Dividend Payment Date"), the Corporation will pay (if declared)
additional dividends (the "Retroactive Dividends") to holders of Class E
Preferred Stock on the record date applicable to the next succeeding dividend
payment date (or, if such amendment is enacted after the dividend payable on
such dividend payment date has been declared, to holders of Class E Preferred
Stock on the record date following the date of enactment) in an amount equal to
the excess of (x) the product of the dividend paid by the Corporation on each
Affected Dividend Payment Date and the DRD Formula (where the DRP used in the
DRD Formula would be equal to the greater of the Dividends Received Percentage
and 0.60 applied to each Affected Dividend Payment Date) over (y) the sum of
the dividend paid by the Corporation on each Affected Dividend Payment Date;
provided, however that if the Corporation has received the opinion, letter
ruling or authorization referred to above, with respect to a dividend payable
on the Affected Payment Date, then no such Retroactive Dividends will be
payable. Retroactive Dividends will not be paid in respect of the enactment of
any amendment to the Code after December 31, 1999 which retroactively reduces
the Dividends Received Percentage to below 70%. The Corporation will only make
one payment of Retroactive Dividends.
The Corporation's calculation of the dividends payable, as so adjusted
and as certified accurate as to calculation and reasonable as to method by an
officer of the Corporation, will be final and not subject to review absent
manifest error.
SECTION 4. REDEMPTION.
(a) On April 7, 2018 (the "Maturity Date"), the Class E Preferred
Stock shall terminate and the holder of each outstanding share of Class E
Preferred Stock shall be entitled to receive an amount in cash equal to $1,000
per share (the "Liquidation Amount") plus all accrued but unpaid dividends on
such share of Class E Preferred Stock (other than previously declared dividends
payable to a holder of record as of a prior date) to the Maturity Date, whether
or not declared, out of funds legally available for the payment of dividends.
Dividends on the Class E Preferred Stock shall cease to accrue and such stock
shall cease to be outstanding on the Maturity Date. Amounts payable in cash in
respect of the Class E Preferred Stock as of the Maturity Date shall not bear
interest. Each holder of shares of Class E Preferred Stock shall surrender the
certificates evidencing such shares to the Corporation at the place designated
in a notice of redemption provided by the Corporation to the holders of record
of shares of Class E Preferred Stock and shall there upon be entitled to
receive any funds payable pursuant to this Section 4 following such surrender
and following the date of such redemption. The Corporation's obligation to
provide funds upon redemption in accordance with this Section 4 shall be deemed
fulfilled if, on or before a redemption date, the Corporation shall irrevocably
deposit, with a bank or trust company, or an affiliate of a bank or trust
company, having an office or agency in New York City and having a capital and
surplus of at least $50,000,000, an
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amount of funds required to be delivered by the Corporation pursuant to this
Section 4 upon the occurrence of the related redemption. Any interest accrued
on such funds shall be paid to the Corporation from time to time. Any funds so
deposited and unclaimed at the end of two years from such redemption date shall
be repaid and released to the Corporation, after which the holder or holders of
such Class E Preferred Stock so called for redemption shall look only to the
Corporation for delivery of such funds.
SECTION 5. SHARES TO BE RETIRED.
All shares of Class E Preferred Stock redeemed by the Corporation shall be
retired and canceled and shall be restored to the status of authorized but
unissued shares of Preferred Stock, without designation as to series, and may
thereafter be reissued.
SECTION 6. CONVERSION OR EXCHANGE.
The holders of shares of Class E Preferred Stock shall not have any rights to
convert any such shares into or exchange any such shares for shares of any
other class or series of capital stock of the Corporation.
SECTION 7. LIQUIDATION PREFERENCE.
(a) The Class E Preferred Stock will rank on a parity as to
distribution of assets upon liquidation with the Class B Preferred Stock, the
Class C Preferred Stock, and the Class D Preferred Stock, and with any future
preferred stock issued by the Corporation that by its terms ranks pari passu
with the Class E Preferred Stock, with respect to distribution of assets upon
liquidation.
(b) In the event of the liquidation, dissolution, or winding up of the
business of the Corporation, whether voluntary or involuntary, the holders of
Class E Preferred Stock then outstanding, after payment or provision for
payment of the debts and other liabilities of the Corporation and the payment
or provision for payment of any distribution on any shares of the Corporation
having a preference and a priority over the Class E Preferred Stock on
liquidation, and before any distribution to holders of any shares of the
Corporation that are junior and subordinate to the Class E Preferred Stock on
liquidation, including the Common Stock and the Series A Participating
Preferred Stock, shall be entitled to be paid out of the assets of the
Corporation available for distribution to its stockholders an amount of cash
per share of Class E Preferred Stock equal to the Liquidation Amount, plus all
accrued and unpaid dividends thereon. In the event the assets of the
Corporation available for distribution to the holders of the Class E Preferred
Stock upon any dissolution, liquidation or winding up of the Corporation shall
be insufficient to pay in full the liquidation payments payable to the holders
of outstanding Class E Preferred Stock and of all other series of preferred
stock that rank on a parity with the Class E Preferred Stock in the event of
liquidation, the holders of the Class E Preferred Stock and of all other series
of such parity preferred stock shall share ratably in such distribution of
assets in proportion to the amount which would be payable on such distribution
if the amounts to which the holders of outstanding Class E Preferred Stock and
the holders of outstanding shares of such parity preferred stock were paid in
full. Except as provided in this Section 5, holders of Class E Preferred Stock
shall not be entitled to any distribution in the event of liquidation,
dissolution or winding up of the affairs of the Corporation.
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<PAGE> 8
(c) For the purposes of this Section 5, none of the following shall be
deemed to be a voluntary or involuntary liquidation, dissolution or winding up
of the Corporation:
(i) the sale, lease, transfer or exchange of all or
substantially all of the assets of the Corporation; or
(ii) the consolidation or merger of the Corporation with one
or more other corporations (whether or not the Corporation is the corporation
surviving such consolidation or merger).
SECTION 8. NO PREEMPTIVE RIGHTS.
The holders of Class E Preferred Stock shall have no preemptive
rights, including preemptive rights with respect to any shares of capital stock
or other securities of the Corporation convertible into or carrying rights or
options to purchase any such shares.
SECTION 9. VOTING RIGHTS.
(a) The holders of Class E Preferred Stock shall not have any voting
rights except as required by law and except as set forth below in Section 9(b)
and (c).
(b) If at any time dividends payable on the Class E Preferred Stock
are in arrears and unpaid in an aggregate amount equal to or exceeding the
aggregate amount of dividends payable thereon for six quarterly dividend
periods, the holders of the Class E Preferred Stock, voting separately as a
class with the holders of all other series of Preferred Stock upon which like
voting rights have been conferred and are exercisable, shall have the right to
vote for the election of two directors of the Corporation (the "Preferred Stock
Directors"), such Directors to be in addition to the number of Directors
constituting the Board of Directors immediately prior to the accrual of such
right. At elections for such directors each holder of Class E Preferred Stock
shall be entitled to 20 votes for each share held (the holders of shares of any
other series of Preferred Stock being entitled to such number of votes, if any,
for each share of stock held as may be granted to them). Such right of the
holders of Class E Preferred Stock to elect (either alone or together with
holders of all other series of Preferred Stock upon which like voting rights
have been conferred and are exercisable) two Preferred Stock Directors shall,
when vested, continue until all dividends in arrears on the Class E Preferred
Stock shall have been paid in full and, when so paid, and any such termination
occurs or has occurred, such right of the holders of Class E Preferred Stock to
elect two Preferred Stock Directors separately as a class (either alone or
together with holders of all other series of Preferred Stock upon which like
voting rights have been conferred and are exercisable) shall cease, subject
always to the same provisions for the vesting of such right of the holders of
the Class E Preferred Stock to elect (either alone or together with holders of
all other series of Preferred Stock upon which like voting rights have been
conferred and are exercisable) two Preferred Stock Directors in the case of
future dividend defaults.
Such voting right may be exercised initially either by written consent
or at a special meeting of the holders of the Preferred Stock having such
voting right, called as hereinafter provided, or at any annual meeting of
stockholders held for the purpose of electing directors, and thereafter at each
subsequent annual meeting; provided that such voting right shall not be
exercised unless the holders of thirty-three and one-third percent (33-1/3%) in
number of shares of Preferred Stock outstanding shall be present in person or
by proxy. The absence of a quorum of the holders of Common Stock shall not
affect the exercise by the holders of Preferred Stock of such voting rights.
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<PAGE> 9
Unless the holders of Preferred Stock shall, during an existing
default period, have previously exercised their right to elect Directors, the
Board of Directors may order, or any stockholder or stockholders owning in the
aggregate not less than ten percent (10%) of the total number of shares of
Preferred Stock outstanding, irrespective of series, may request, the calling
of a special meeting of the holders of Preferred Stock, which meeting shall
thereupon be called by the President, a Vice President or the Secretary of the
Corporation. Notice of such meeting and of any annual meeting at which holders
of Preferred Stock are entitled to vote pursuant to this Section shall be given
to each holder of record of Preferred Stock by mailing a copy of such notice to
him at his last address as the same appears on the books of the corporation.
Such meeting shall be called for a time not earlier than ten days and not later
than 60 days after such order or request or in default of the calling of such
meeting within 60 days after such order or request, such meeting may be called
on similar notice by any stockholder or stockholders owning in the aggregate
not less than ten percent (10%) of the total number of shares of Preferred
Stock outstanding. Notwithstanding the provisions of this Section, no special
meeting shall be called during the period within 60 days immediately preceding
the date fixed for the next annual meeting of the stockholders.
The term of office of each Director elected pursuant to the preceding
paragraph shall terminate on the earlier of (i) the next annual meeting of
stockholders at which a successor shall have been elected and qualified or (ii)
the termination of the right of the holders of Class E Preferred Stock and such
other series of Preferred Stock to vote for Directors pursuant to the preceding
paragraph. Vacancies on the Board of Directors resulting from the death,
resignation or other cause of any such Director shall be filled exclusively by
no less than two-thirds of the remaining Directors and the Director so elected
shall hold office until a successor is elected and qualified.
(c) For as long as any shares of Class E Preferred Stock or Class D
Preferred Stock remains outstanding, the affirmative vote of the holders of at
least a majority of the Class E Preferred Stock or Class D Preferred Stock
actually voting (voting together as a class) given in person or by proxy at any
annual meeting or special meeting of the stockholders called for such purpose
shall be necessary to create any class or series of stock that shall have
preference as to dividends or distributions of assets over the Class E
Preferred Stock and the Class D Preferred Stock.
(d) For as long as any shares of Class E Preferred Stock remain
outstanding, the affirmative vote of the holders of at least a majority thereof
actually voting (voting separately as a class) given in person or by proxy at
any annual meeting or special meeting of the stockholders called for such
purpose shall be necessary to (i) amend, alter or repeal, any of the provisions
of the Certificate of Incorporation of the Corporation which would materially
and adversely affect the powers, preferences or special rights of the holders
of the shares of Class E Preferred Stock then outstanding or reduce the minimum
time required for any notice to which holders of shares of Class E Preferred
Stock then outstanding may be entitled or (ii) for the Corporation to merge
into or consolidate with any Person if, as a result of such merger or
consolidation, the Class E Preferred Stock would be converted into, exchanged
for or continue as shares of capital stock of the surviving or continuing
corporation or parent of the surviving or continuing corporation with powers,
preferences or special rights, which materially and adversely differ from the
powers, preferences or other special rights of the shares of Class E Preferred
Stock; provided, however, that any such amendment, alteration or repeal that
would authorize, create or increase the authorized amount of any shares of
stock (whether or not already authorized) ranking junior to, or on a parity
with, the Class E Preferred Stock with respect to payment of dividends or
payment upon liquidation shall be deemed not to materially and adversely affect
such powers, preferences or special rights and shall not be subject to approval
by the holders of Class E Preferred Stock; and provided further that the
holders of the Class E Preferred Stock shall not have any voting rights with
respect to the amendment, alteration or repeal of any provisions of
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<PAGE> 10
the Certificate of Incorporation of the Corporation approved at a meeting of
the stockholders the record date of which is prior to the issuance of any
shares of Class E Preferred Stock.
IN WITNESS WHEREOF, AirTouch Communications, Inc., has caused this
certificate to be executed this 6th day of April, 1998.
AIRTOUCH COMMUNICATIONS, INC.
By: /s/ Margaret G. Gill
----------------------------
Margaret G. Gill
Senior Vice President Legal,
External Affairs and Secretary
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<PAGE> 1
________________________________________
AMENDED AND RESTATED
INVESTMENT AGREEMENT
dated as of April 6, 1998
by and between
AIRTOUCH COMMUNICATIONS, INC.,
a Delaware corporation,
and
U S WEST, INC.,
a Delaware corporation
________________________________________
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II REPRESENTATIONS AND WARRANTIES OF AIRTOUCH . . . . . . . . . . . . . . . . . 4
2.1 Organization and Qualification . . . . . . . . . . . . . . . . . . . . 4
2.2 Authorization; Enforcement . . . . . . . . . . . . . . . . . . . . . . 4
2.3 No Conflicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE III REPRESENTATIONS AND WARRANTIES OF U S WEST . . . . . . . . . . . . . . . . 5
3.1 Organization and Qualification . . . . . . . . . . . . . . . . . . . . 5
3.2 Authorization; Enforcement . . . . . . . . . . . . . . . . . . . . . . 5
3.3 No Conflicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.4 Ownership of Securities of AirTouch . . . . . . . . . . . . . . . . . 6
ARTICLE IV COVENANTS OF U S WEST . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
4.1 Standstill Provisions . . . . . . . . . . . . . . . . . . . . . . . . 6
4.2 Voting Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.3 Transfers; Tender Offers; Suspension of Transfers . . . . . . . . . . 10
ARTICLE V COOPERATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
5.1 Notice; Consultation . . . . . . . . . . . . . . . . . . . . . . . . . 11
5.2 AirTouch Participation in Marketing Efforts . . . . . . . . . . . . . 12
5.3 U S WEST Market Stand-off . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE VI REGISTRATION RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
6.1 Demand Registration . . . . . . . . . . . . . . . . . . . . . . . . . 14
6.2 Company Registration . . . . . . . . . . . . . . . . . . . . . . . . . 16
6.3 Registration Procedures . . . . . . . . . . . . . . . . . . . . . . . 17
6.4 Conditions to Offerings . . . . . . . . . . . . . . . . . . . . . . . 20
6.5 Additional Conditions . . . . . . . . . . . . . . . . . . . . . . . . 21
6.6 Registration Expenses . . . . . . . . . . . . . . . . . . . . . . . . 23
6.7 Indemnification; Contribution . . . . . . . . . . . . . . . . . . . . 24
6.8 Rule 144 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
6.9 Reorganization, Reclassification, Merger,
Consolidation or Disposition of Assets . . . . . . . . . . . . . . . . 27
ARTICLE VII CERTAIN ADDITIONAL RIGHTS WITH RESPECT TO PREFERRED STOCK . . . . . . . . . 27
7.1 Earnings and Profits Gross-Up . . . . . . . . . . . . . . . . . . . . 27
ARTICLE VIII TERM OF AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE IX MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
9.1 Legend; Removal of Legend . . . . . . . . . . . . . . . . . . . . . . 29
9.2 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
9.3 Specific Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . 29
9.4 Entire Agreement; Amendments . . . . . . . . . . . . . . . . . . . . . 30
9.5 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
9.6 Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
9.7 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
</TABLE>
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<PAGE> 3
<TABLE>
<S> <C> <C>
9.8 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . 31
9.9 No Third Party Beneficiaries . . . . . . . . . . . . . . . . . . . . . 31
9.10 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
9.11 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
9.12 Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
9.13 Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
</TABLE>
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<PAGE> 4
AMENDED AND RESTATED INVESTMENT AGREEMENT
THIS AMENDED AND RESTATED INVESTMENT AGREEMENT (the "Agreement"),
dated as of April 6, 1998, by and among AIRTOUCH COMMUNICATIONS, INC., a
Delaware corporation ("AirTouch"), and U S WEST, INC., a Delaware corporation
("U S WEST").
W I T N E S S E T H:
WHEREAS, pursuant to an Agreement and Plan of Merger, dated as of
January 29, 1998, among U S WEST, U S WEST Media Group, Inc. ("Media"), U S
WEST NewVector Group, Inc., U S WEST PCS Holdings, Inc. and AirTouch (the
"Merger Agreement"), Media, a wholly owned subsidiary of U S WEST, has acquired
on the date hereof 59,446,902 shares of AirTouch's Common Stock (as defined
below), and 825,000 shares of AirTouch's Class D Preferred Stock (as defined
below) and 825,000 shares of AirTouch's Class E Preferred Stock (as defined
below), in each case, subject to adjustment as set forth in the Merger
Agreement; and
WHEREAS, in connection with the foregoing, AirTouch and U S WEST
desire to set forth herein certain terms regarding their relationship after
consummation of the transactions contemplated by the Merger Agreement.
NOW, THEREFORE, AirTouch and U S WEST agree as follows:
ARTICLE I
DEFINITIONS
1.1 Defined Terms. (a) As used in this Agreement, the following
terms shall have the following meanings (unless indicated otherwise, all
Article and Section references are to Articles and Sections of this Agreement):
"Affiliate" shall mean a Person that directly, or indirectly through
one or more intermediaries, controls, is controlled by or is under common
control with the Person specified. For purposes of this definition, the term
"control" (including the terms "controlling," "controlled by" and "under common
control with") of a Person means the possession, direct or indirect, of (i) the
power to vote 50% or more stock or other equity interests the holders of which
are generally entitled to vote for the election of the board of directors or
similar governing body of such Person or (ii) without limiting clause (i)
above, in the case of a partnership, a general partner's interest or other
control of the partnership with respect to actions or matters described in
Article IV hereof.
"AirTouch Change of Control" shall mean (a) the consummation by
AirTouch of any sale, lease, transfer, conveyance or other disposition (other
than by way of merger or
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<PAGE> 5
consolidation), in one or a series of related transactions, of assets (i) that
represent more than 80% of the total fair market value of its assets on a
proportionate basis immediately prior to such disposition, (ii) that generated
more than 80% of its total operating revenues on a proportionate basis in the
preceding fiscal year and (iii) that generated more than 80% of its total net
income from operations on a proportionate basis during the preceding fiscal
year, provided, however, that any such transaction or series of related
transactions shall not be deemed to be an AirTouch Change of Control if a
majority of the value of the consideration received in exchange for the assets
transferred, sold or otherwise disposed of consists of assets (or interests in
assets) of a like kind or nature; (b) the adoption of a plan relating to the
liquidation or dissolution of AirTouch; (c) the consummation of any transaction
(including, without limitation, any merger or consolidation) the result of
which is that any "person" or "group" (as such terms are used in Section
13(d)(3) of the Exchange Act) becomes the "beneficial owner" (as such term is
defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act), directly or
indirectly through one or more intermediaries, of greater than 50% of the
voting power of the outstanding Voting Securities; or (d) when individuals who
at the beginning of any period of two consecutive calendar years constituted
the Board of Directors of AirTouch (together with any new directors whose
election to the Board of Directors or whose nomination for election was
approved by a vote of at least two-thirds of the members of the Board of
Directors at the beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to constitute a
majority of the members of the Board of Directors of AirTouch then in office.
"AirTouch Securities" shall mean the Common Stock, the Class D
Preferred Stock, the Class E Preferred Stock and any other securities of
AirTouch.
"beneficial ownership" shall have the meaning specified in Rule 13d-3
under the Exchange Act, as such rule is currently in effect; provided that, for
purposes of Section 4.3, a Person shall be deemed to be the beneficial owner of
any AirTouch Security which may be acquired upon the conversion or exchange of
a Monetizing Security at such time as such Person becomes the beneficial owner
of such Monetizing Security.
"Business Day" shall mean a day other than a Saturday, Sunday or other
day on which banks located in New York City or San Francisco are authorized or
required by law to close.
"Class D Preferred Stock" shall mean AirTouch's Class D Preferred
Stock, par value $.01 per share.
"Class E Preferred Stock" shall mean AirTouch's Class E Preferred
Stock, par value $.01 per share.
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<PAGE> 6
"Common Stock" shall mean AirTouch's Common Stock, $.01 par value.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any similar federal statute, and the rules and regulations
thereunder, all as the same shall be in effect from time to time.
"Merger Agreement" shall have the meaning set forth in the first
recital of this Agreement.
"Monetizing Securities" shall mean any security which is convertible
into or exchangeable for any AirTouch Security.
"Other Investor" shall mean any Person who, directly or indirectly,
beneficially owns 10% or more of the outstanding Voting Securities.
"Person" shall mean any individual, partnership, limited liability
company, corporation, trust, unincorporated organization or other entity, or a
government or agency or political subdivision thereof.
"Preferred Stock" means the Class D Preferred Stock and the Class E
Preferred Stock.
"Registrable Shares" shall mean any and all of (i) the shares of
Common Stock issued pursuant to the Merger to Media, (ii) the shares of
Preferred Stock issued pursuant to the Merger to Media and (iii) any AirTouch
Securities issuable or issued or distributed in respect of any of the
securities identified in clauses (i) or (ii) by way of stock dividend or stock
split or in connection with a combination of shares, recapitalization,
reorganization, merger, consolidation or otherwise.
"Rights Agreement" shall mean the Rights Agreement between AirTouch
and the Bank of New York, as Rights Agent, dated as of September 19, 1994, as
it may be amended from time to time, or any successor agreement.
"SEC" shall mean the Securities and Exchange Commission or its
successor.
"Securities Act" shall mean the Securities Act of 1933, as amended, or
any similar federal statute, and the rules and regulations thereunder, all as
the same shall be in effect from time to time.
"transfer" shall mean, with respect to any AirTouch Security, a sale,
exchange, transfer or other disposition, whether or not for value, of such
AirTouch Security or any interest therein, or of any direct or indirect right
or option to acquire beneficial ownership of the same, or, without limiting the
foregoing, the issuance of any Monetizing Security.
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<PAGE> 7
"Voting Securities" shall mean any AirTouch Security (unless the
context specifically contemplates another issuer) having the ordinary power to
vote, in the absence of contingencies, in the election of directors of
AirTouch.
(b) Each of the following terms is defined in the Section set forth
opposite such term:
<TABLE>
<CAPTION>
Term Section
---- -------
<S> <C>
AAA 8.12(a)
Acquisition Proposal 4.1(b)
Approved Offer 4.3(b)
Certificates 7.1
Decision 8.12(a)
Disadvantageous Condition 6.5(a)
Inspectors 5.3(f)
Other Shares 6.2(c)
Percentage Limitation 4.1(a)
Records 6.3(f)
Registration Statement 6.1
Unapproved Offer 4.3(b)
U S WEST Response 4.1(b)
</TABLE>
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF AIRTOUCH
AirTouch hereby makes the following representations and warranties to
U S WEST:
2.1 Organization and Qualification. AirTouch is a corporation duly
organized and existing in good standing under the laws of the State of Delaware
and has the corporate power to own its properties and to carry on its business
as now being conducted.
2.2 Authorization; Enforcement. (a) AirTouch has full legal right,
power and authority to enter into and perform this Agreement, (b) the execution
and delivery of this Agreement by AirTouch and the consummation by it of the
transactions contemplated hereby have been duly authorized by it, (c) this
Agreement has been duly authorized, executed and delivered by AirTouch and (d)
this Agreement constitutes a valid and binding obligation of AirTouch
enforceable against AirTouch in accordance with its terms, except that (i) such
enforcement is subject to the effect of any bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar law relating to, or
affecting generally the enforcement of, creditors' rights and remedies and (ii)
the remedies of specific performance and injunctive relief may be subject to
general principles of equity.
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<PAGE> 8
2.3 No Conflicts. The execution, delivery and performance of this
Agreement and the consummation by AirTouch of the transactions contemplated
hereby will not conflict with, or constitute a default (or an event which with
notice or lapse of time or both would become a default) under, or give to
others any rights of termination, amendment, acceleration or cancellation of,
or result in the creation of a lien or other encumbrance on any property or
asset of AirTouch pursuant to any agreement, indenture or instrument to which
AirTouch is a party, or by which any property or asset of AirTouch is bound or
affected, or result in a violation of its Certificate of Incorporation or
By-laws or any law, rule, regulation, order, judgment or decree of any court or
governmental agency applicable to AirTouch or by which any property or asset of
AirTouch is bound or affected. Except for such filings as may be required by
the Exchange Act or as specifically contemplated hereby, no consent,
authorization or order of, or filing or registration with, any court or
governmental agency is required for the execution, delivery and performance of
this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF U S WEST
U S WEST hereby makes the following representations and warranties to
AirTouch:
3.1 Organization and Qualification. U S WEST is a corporation duly
organized and existing in good standing under the laws of the State of Delaware
and has the corporate power to own its properties and to carry on its business
as now being conducted.
3.2 Authorization; Enforcement. (a) U S WEST has full legal right,
power and authority to enter into and perform this Agreement, (b) the execution
and delivery of this Agreement by U S WEST and the consummation by it of the
transactions contemplated hereby have been duly authorized by it, (c) this
Agreement has been duly authorized, executed and delivered by U S WEST and (d)
this Agreement constitutes a valid and binding obligation of U S WEST
enforceable against U S WEST in accordance with its terms, except that (i) such
enforcement is subject to the effect of any bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar law relating to, or
affecting generally the enforcement of, creditors' rights and remedies and (ii)
the remedies of specific performance and injunctive relief may be subject to
general principles of equity.
3.3 No Conflicts. The execution, delivery and performance of this
Agreement and the consummation by U S WEST of the transactions contemplated
hereby will not conflict with, or constitute a default (or an event which with
notice or lapse of time or both would become a default) under, or give to
others
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<PAGE> 9
any rights of termination, amendment, acceleration or cancellation of, or
result in the creation of a lien or other encumbrance on any property or asset
of U S WEST pursuant to any agreement, indenture or instrument to which U S
WEST is a party, or by which any property or asset of U S WEST is bound or
affected, or result in a violation of its Certificate of Incorporation or
By-laws or any law, rule, regulation, order, judgment or decree of any court or
governmental agency applicable to U S WEST or by which any property or asset of
U S WEST is bound or affected. Except for such filings as may be required by
the Exchange Act or as specifically contemplated hereby, no consent,
authorization or order of, or filing or registration with, any court or
governmental agency is required for the execution, delivery and performance of
this Agreement.
3.4 Ownership of Securities of AirTouch. U S WEST and its Affiliates
do not beneficially own any AirTouch Securities, other than the securities U S
WEST acquired pursuant to the Merger Agreement or other agreement of the
parties.
ARTICLE IV
COVENANTS OF U S WEST
4.1 Standstill Provisions.
(a) U S WEST covenants to and agrees with AirTouch that, except as it
may be specifically permitted by this Agreement or unless it is specifically
invited in writing to do so by AirTouch, U S WEST will not, and will cause each
of its Affiliates not to, directly or indirectly:
(i) in any way acquire or agree to acquire beneficial
ownership of any securities or any direct or indirect rights or
options to acquire beneficial ownership of any AirTouch Securities,
except (A) pursuant to the Merger Agreement and (B) thereafter,
through open-market or privately-negotiated purchases from third
parties of Voting Securities, if the aggregate percentage (calculated
by voting power) of the Voting Securities beneficially owned by U S
WEST and its Affiliates after giving effect to such acquisition would
not exceed the aggregate percentage of total voting power of
AirTouch's capital stock represented on the date hereof by the
AirTouch capital stock issued to U S WEST pursuant to the Merger
Agreement (the "Percentage Limitation"); provided that following each
transfer of Voting Securities by U S WEST or its Affiliates to any
person other than an Affiliate of U S WEST, the Percentage Limitation
shall be reduced to the percentage (calculated by voting power) of
outstanding Voting Securities then beneficially owned by U S WEST and
its Affiliates; and provided further that in no event shall U S WEST
and
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its Affiliates be deemed to have exceeded any Percentage Limitation
then in effect solely as a result of a reduction in the outstanding
Voting Securities, including through repurchases of outstanding Voting
Securities by AirTouch, which reduction has the effect of increasing
the percentage (calculated by voting power) of outstanding Voting
Securities beneficially owned by U S WEST and its Affiliates beyond
the Percentage Limitation (provided that any subsequent increase in
the Voting Securities beneficially owned by U S WEST and its
Affiliates, without the prior approval of AirTouch, shall be deemed to
be a violation of the Percentage Limitation);
(ii) make any public announcement with respect to, or
submit to AirTouch or any of its directors, officers, representatives,
employees, attorneys, advisers, agents or Affiliates (whether publicly
or otherwise) any proposal for, the acquisition of Voting Securities
not permitted by paragraph (i) above which would result in U S WEST's
exceeding the Percentage Limitation or for or with respect to any
merger, consolidation or business combination involving AirTouch or
its Affiliates or for or with respect to any purchase of a substantial
portion of the assets of AirTouch or its Affiliates, whether or not
any parties other than U S WEST and its Affiliates are involved and
whether or not such proposal might require the making of a public
announcement by AirTouch;
(iii) make, or in any way participate in, any
"solicitation" of "proxies" to vote any Voting Securities or become a
"participant" in any "election contest" (as such terms are defined or
used in Regulation 14A under the Exchange Act, as such Regulation is
currently in effect);
(iv) propose any matter for submission to a vote of
stockholders of AirTouch;
(v) form, join or in any way participate in a "group"
(within the meaning of Section 13(d)(3) of the Exchange Act) with
respect to any Voting Securities of AirTouch;
(vi) grant any proxy with respect to any Voting Securities
to any Person not approved by AirTouch;
(vii) deposit any Voting Securities in a voting trust or
subject any Voting Securities to any arrangement or agreement with
respect to the voting of such Voting Securities or other agreement
having similar effect;
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(viii) take any action which would be reasonably likely to
require AirTouch to make a public announcement regarding any of the
matters specified in this Section 4.1(a)(i)-(xii);
(ix) enter into any negotiations, arrangements or
understandings with any third party with respect to any of the
foregoing, or any discussions designed to advise, assist or encourage
any third party in connection with any of the foregoing;
(x) disclose publicly any intention, plan or arrangement
inconsistent with the foregoing;
(xi) request AirTouch (or any of its officers, directors,
representatives, employees, attorneys, advisors, agents or Affiliates)
to waive, amend or modify any provisions of Section 4.1(a)(i)-(xii);
or
(xii) otherwise act, alone or in concert with others, to
seek to control or influence the management, Board of Directors or
policies of AirTouch.
(b) Notwithstanding any provision of this Section 4.1 to the
contrary, in the event that (i) AirTouch and any Person or "group" (within the
meaning of Section 13(d)(3) of the Exchange Act) enter into an agreement
pursuant to which (A) such Person or group would acquire a majority (calculated
by voting power) of the then outstanding Voting Securities of AirTouch or the
right to appoint a majority of the directors of AirTouch, or (B) a majority
(calculated by voting power) of the then outstanding Voting Securities of
AirTouch is to be acquired by any Person or group (within the meaning of
Section 13(d)(3) of the Exchange Act) in a merger, consolidation or other
business combination (any such event being an "Acquisition Proposal"), (ii) a
bona fide tender or exchange offer by any Person or group (within the meaning
of Section 13(d)(3) of the Exchange Act) (other than AirTouch or any
wholly-owned Affiliate thereof) which would result, if consummated in
accordance with its terms, in the beneficial ownership by such Person or group
of in excess of 50% (calculated by voting power) of the then outstanding Voting
Securities is approved or recommended by the Board of Directors of AirTouch,
(iii) in connection with the matters discussed in clause (i) or (ii), or a
tender or exchange offer for greater than 40% of the outstanding Voting
Securities which the Board of Directors of AirTouch has not approved or
recommended, the Board of Directors of AirTouch has terminated or amended (or
agreed to terminate or amend) the Rights Agreement or has redeemed (or agreed
to redeem) the Rights issued thereunder, and such action has permitted or will
have permitted the consummation of such Acquisition Proposal or offer, or a
final, non-appealable court order has declared the Rights Agreement invalid or
otherwise required the redemption of the Rights issued thereunder or (iv)
AirTouch and any Person
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enter into an agreement providing for a transaction or series of related
transactions that results in the transfer, sale or other disposition by
AirTouch of assets (A) that represent more than 80% of the total fair market
value of its assets on a proportionate basis immediately prior to such
disposition, (B) that generated more than 80% of its total operating revenues
on a proportionate basis in the preceding fiscal year and (C) that generated
more than 80% of its total net income from operations on a proportionate basis
during the preceding fiscal year (excepting any such transaction or series of
related transactions in which a majority of the value of the consideration
received in exchange for the assets transferred, sold or otherwise disposed of
consists of assets (or interests in assets) of a like kind or nature), this
Section 4.1 shall not prohibit U S WEST (unless acting in concert with such
Person) from making either a competing Acquisition Proposal or a tender or
exchange offer pursuant to which U S WEST or its Affiliates would acquire at
least the same percentage (calculated by voting power) of AirTouch's then
outstanding Voting Securities as would be acquired in such non-U S WEST
Acquisition Proposal or such non-U S WEST tender or exchange offer (a "U S WEST
Response"). U S WEST agrees that any U S WEST Response (including amendments
thereto) will provide for consideration that is no less favorable to AirTouch's
stockholders than that being offered pursuant to such non-U S WEST Acquisition
Proposal or such non-U S WEST tender or exchange offer (taking into account the
form of consideration and the number of shares to be acquired pursuant to such
U S WEST Response). In the event that the transactions contemplated by clauses
(i), (ii), (iii) or (iv) shall have been terminated or abandoned after the U S
WEST Response, U S WEST shall have the ability, subject to the requirements of
the preceding sentence, to amend or modify its response, and to consummate the
transaction contemplated by the U S WEST Response or such amendment or
modification, so long as U S WEST shall not have terminated or abandoned its
initial response other than as a result of such amendment or modification. In
the event that the transactions contemplated by clauses (i), (ii), (iii) or
(iv) shall have been terminated or abandoned prior to the U S WEST Response,
or, if not so terminated or abandoned, in the event thereafter that such
transactions and those contemplated by such U S WEST Response shall have been
terminated or abandoned, all of the restrictions contained in this Section 4.1
shall again be applicable.
(c) Neither U S WEST nor its Affiliates may act in concert with any
Other Investor with respect to any of the activities set forth in this Section
4.1.
4.2 Voting Rights.
(a) U S WEST and its Affiliates shall vote all of the Voting
Securities held by them in favor of the individuals nominated by AirTouch for
election to the Board of Directors of AirTouch; provided that U S WEST's
obligations under this
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Section 4.2(a) shall terminate, and Section 4.2(b) shall become applicable to
the matters set forth in this Section 4.2(a), if Weil, Gotshal & Manges LLP,
Pillsbury Madison & Sutro LLP or other nationally recognized securities counsel
for U S WEST or AirTouch in connection with a transfer of AirTouch Securities
by U S WEST informs U S WEST and AirTouch in writing that, as a result of this
Section 4.2(a), such counsel is unable to deliver an opinion that U S WEST is
not an "affiliate" of AirTouch within the meaning of Rule 144 under the
Securities Act ("Rule 144").
(b) On each matter other than those set forth in Section 4.2(a), U S
WEST and its Affiliates shall vote the Voting Securities held by them in the
same proportions as all other stockholders of AirTouch of the same class of
Voting Security.
4.3 Transfers; Tender Offers; Suspension of Transfers.
(a) U S WEST and its Affiliates will not, at any time, directly or
indirectly, transfer, or offer to transfer, any AirTouch Securities
beneficially owned by them to any Person who, together with its Affiliates and
any "group" (within the meaning of Section 13(d) of the Exchange Act) of which
such Person or any Affiliate is a part, would, to the knowledge of U S WEST
(after due inquiry, other than in the case of a widely distributed public
offering of AirTouch Securities or Monetizing Securities), after such transfer
beneficially own Voting Securities representing in excess of 4.9% of the then
outstanding Voting Securities, other than (i) transfers to any Person that is
eligible with respect to Voting Securities to file a statement on Schedule 13G
pursuant to Rule 13d-1(b)(i) under the Exchange Act, (ii) transfers to any
Affiliate of U S WEST or (iii) subsequent to the issuance of any Monetizing
Security, transfers upon the conversion or exchange of such Monetizing Security
in accordance with the terms thereof.
(b) (i) In the event that a tender or exchange offer (other than an
"Approved Offer", as defined below) is commenced by any Person or group (within
the meaning of Section 13(d)(3) of the Exchange Act) and such offer would
result, if consummated in accordance with its terms, in the beneficial
ownership by such Person or group of in excess of 50% (calculated by voting
power) of the Voting Securities then outstanding (an "Unapproved Offer"), U S
WEST and its Affiliates will not tender or otherwise transfer any of the
AirTouch Securities then beneficially owned by them to the offerer pursuant to
such offer unless the Board of Directors of U S WEST, upon the advice of legal
counsel and financial advisers, reasonably believes in good faith, taking into
account the conditions of the offer, that such tender offer will result in
shares being purchased (without any extension of the then scheduled expiration
date and without giving effect to shares that might be tendered by U S WEST and
its Affiliates); provided, however, that prior to tendering or offering for
exchange any such AirTouch Securities
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in such Unapproved Offer, U S WEST first shall have offered to AirTouch not
later than 72 hours prior to the expiration of such Unapproved Offer the right
to purchase for the same consideration (or cash equivalent) that number of such
AirTouch Securities which, if tendered or offered for exchange, would be
purchased in such Unapproved Offer, which purchase shall be closed not later
than the second business day following the consummation of such Unapproved
Offer; and provided further, that U S WEST may tender or offer for exchange
such AirTouch Securities in such Unapproved Offer in the event that AirTouch
shall have failed within the later of 48 hours after receipt of such notice or
24 hours prior to the expiration of such Unapproved Offer to provide U S WEST
with reasonable assurance that it shall be ready, willing and able to
consummate such purchase.
(ii) "Approved Offer" shall mean (i) a tender or exchange offer for
AirTouch Securities commenced by AirTouch (or an Affiliate of AirTouch) or (ii)
a tender or exchange offer for AirTouch Securities commenced by a third party,
(x) in connection with which, AirTouch has terminated or amended (or agreed to
terminate or amend) the Rights Agreement or redeemed (or agreed to redeem) the
Rights issued thereunder and such action has permitted or will have permitted
the consummation of such offer, or a final, non-appealable court order has
declared the Rights Agreement invalid or otherwise required the redemption of
the Rights issued thereunder or (y) which AirTouch's Board of Directors has
otherwise approved.
(c) Any transfer of AirTouch Securities in violation of this Section
4.3 shall be null and void and AirTouch shall not give effect, or permit
AirTouch's transfer agent to give effect, to such attempted transfer in its
stock records.
ARTICLE V
COOPERATION
5.1 Notice; Consultation. U S WEST shall not offer for sale or sell
any AirTouch Securities or any Monetizing Securities in a registered public
offering until at least 10 Business Days after delivery of notice thereof to
AirTouch. U S WEST also shall give AirTouch prior notice of any other proposed
sale of AirTouch Securities or any Monetizing Securities, to the extent
practicable. Any such notice shall set forth, among other things: (i) the
proposed terms and conditions of the securities to be issued, (ii) the identify
of the lead manager or placement agent, if any, for the offering, (iii) the
size of the offering, (iv) the proposed plan of distribution for the offering
and (v) the proposed closing date for the offering. In connection with any
public offering (and, to the extent practicable, any private offering) of
AirTouch Securities or Monetizing Securities by U S WEST or its
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Affiliates, U S WEST shall consult with AirTouch regarding the matters set
forth in clauses (i) through (v) of the preceding sentence.
5.2 AirTouch Participation in Marketing Efforts. (a) Upon written
request by U S WEST of AirTouch, AirTouch shall make at least one of its
executive officers (and, if AirTouch designates only one executive officer, at
least one other senior employee reasonably acceptable to U S WEST) available
for a reasonable period of time to participate in a reasonable number of road
show or other investor presentations in connection with any public offering of
AirTouch Securities pursuant to the registration rights set forth in Article VI
or any offering (public or private) of Monetizing Securities by U S WEST or its
Affiliates, which participation shall be of a degree and nature reasonably
acceptable to AirTouch. Subject to the foregoing, AirTouch shall be entitled
to determine the number and identity of its executive officers (or other senior
employees) who shall participate in any such road show or other investor
presentations. U S WEST shall deliver any request under this Section 5.2(a)
for AirTouch participation in road show or other investor presentations
reasonably in advance of such presentations and shall include in such request a
reasonably detailed itinerary for such presentations. The obligations of
AirTouch under this Section 5.2(a) shall be subject to the following
conditions:
(i) The aggregate gross proceeds of the offering shall be no
less than $350 million (in the case of an offering of Common Stock or
Monetizing Securities relating to Common Stock) or $250 million (in
the case of Preferred Stock or Monetizing Securities relating to
Preferred Stock);
(ii) AirTouch shall not be obligated to participate in road
show or other investor presentations in connection with more than
eight offerings of AirTouch Securities or Monetizing Securities
pursuant to this Section 5.2(a);
(iii) AirTouch's obligation to make available at least one of
its executive officers to participate in road show or other investor
presentations shall be subject to the following limitations: (A) in
connection with an offering of Common Stock (or Monetizing Securities
relating to Common Stock) the aggregate gross proceeds of which shall
exceed $500 million, such executive officer participation (including
all related travel time) shall be scheduled to occur within a single
calendar week (i.e., commencing on a Sunday and ending on the
succeeding Saturday) and (B) in connection with any other offering,
such executive officer participation (excluding related travel time)
shall be scheduled to occur on two days within a single calendar week;
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(iv) AirTouch's obligations under this Section 5.2(a) shall
be suspended during AirTouch's own customary disclosure "quiet
periods" (unless U S WEST shall have exercised a demand registration
right under Section 6.1 in connection with such offering and
AirTouch's obligations with respect thereto shall not have been
suspended under Section 6.5(a));
(v) AirTouch shall not be obligated to participate in any
road show or other investor presentation for any offering of AirTouch
Securities or Monetizing Securities pursuant to this Section 5.2(a) if
AirTouch, in its reasonable judgment after consultation with legal
counsel, shall have determined that such participation, in the absence
of AirTouch effecting a registration of AirTouch Securities, would
create a substantial risk of AirTouch not being in compliance with the
Securities Act, provided that AirTouch's obligations shall be
reinstated if U S WEST shall elect to exercise a demand registration
right under Section 6.1 in connection with such offering and AirTouch,
in its reasonable judgment after consultation with legal counsel,
shall determine that as a result of such registration such substantial
risk of AirTouch non-compliance with the Securities Act no longer
exists;
(vi) AirTouch shall not be obligated to participate in road
show or other investor presentations pursuant to this Section 5.2(a)
in connection with more than two completed offerings by U S WEST or
its Affiliates during any 360- day period;
(vii) AirTouch's obligations under this Section 5.2(a) shall
be suspended if AirTouch shall have delivered to U S WEST a
certificate of an executive officer of AirTouch to the effect that
fulfilling such obligations would result in a Disadvantageous
Condition, provided that such suspension right shall be subject to
conditions comparable to the conditions set forth in Sections
6.5(a)(ii) and (iii) (it being understood that AirTouch's exercise of
a suspension right under this Section 5.2(a)(vii) in connection with
any offering (other than an offering registered pursuant to Section
6.1) shall not be deemed an exercise of a suspension right for
purposes of Section 6.5(a)(iii)(C) and shall in no way restrict
AirTouch from exercising its suspension rights under Section 6.5(a));
and
(viii) U S WEST shall reimburse (on an as incurred basis)
AirTouch for all reasonable expenses incurred by AirTouch incident to
the performance of its obligations under this Section 5.2(a);
provided, that if AirTouch suspends its obligations pursuant to
Section 5.2(a)(vii) in the circumstances described in Section
6.5(a)(iii)(A), AirTouch shall reimburse U S WEST for all reasonable
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expenses incurred by U S WEST through the date of such suspension in
marketing the offering.
(b) To the extent practicable, U S WEST shall notify AirTouch
reasonably in advance of all road show or other investor presentations
conducted in connection with any public offering of AirTouch Securities or
Monetizing Securities by U S WEST or its Affiliates as to which U S WEST shall
not have exercised its rights under Section 5.2(a) to request AirTouch
participation. An executive officer or other senior employee designated by
AirTouch shall be entitled to attend any such road show or other investor
presentations (it being understood that U S WEST may require the recusal of
AirTouch's designee from any portion of an investor presentation which does not
relate to AirTouch Securities or Monetizing Securities). At the election of
AirTouch, such executive officer or other senior employee shall also be
entitled to participate in any such road show or other investor presentations,
which participation shall be of a degree and nature reasonably acceptable to U
S WEST.
5.3 U S WEST Market Stand-off. As long as U S WEST and its
Affiliates beneficially own Common Stock representing at least 5% of the
outstanding Common Stock, if requested by AirTouch, U S WEST shall not transfer
any AirTouch Securities or Monetizing Securities during the period following
the effective date of any registration statement of AirTouch filed under the
Securities Act in which AirTouch (under the terms of any underwriting
arrangement by which it is bound) would be subject to customary "holdback" or
"lock-up" provisions; provided that such period shall not exceed 90 days.
ARTICLE VI
REGISTRATION RIGHTS
6.1 Demand Registration. (a) AirTouch agrees that upon the written
request of U S WEST it will file a registration statement under the Securities
Act (a "Registration Statement") as to the number of Registrable Shares held by
U S WEST or its Affiliates specified in such request (it being understood that
any such registration may relate to the sale of such Registrable Shares or
Monetizing Securities relating to such Registrable Shares); provided that
AirTouch shall not be required to file more than eight Registration Statements
(including Shelf Registration Statements (as defined below)) that become
effective and remain effective for the period referred to in Section 6.3(j).
(b) AirTouch agrees that upon the written request of U S WEST it
will prepare and file with the SEC, one or more registration statements under
the Securities Act covering Registrable Shares which may be transferred by U S
WEST to holders of Monetizing Securities upon the exchange or conversion
thereof (a "Shelf Registration"); provided that AirTouch shall
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<PAGE> 18
not be required to file, or maintain the effectiveness of, a Registration
Statement with respect to a Shelf Registration (a "Shelf Registration
Statement") if AirTouch delivers to U S WEST an opinion, in form and substance
reasonably satisfactory to U S WEST and its counsel, to the effect that the
Registrable Shares are freely transferable to such holders of such Monetizing
Securities under Section 4(1) of the Securities Act without regard to any
volume or other restrictions (the "Resale Opinion"). A Shelf Registration
Statement shall be on Form S-3 or other appropriate form permitting
registration of such Registrable Shares for transfer by U S WEST to holders of
Monetizing Securities upon the exchange or conversion thereof. Each Shelf
Registration Statement shall count towards the number of Registration
Statements AirTouch is required to file pursuant to this Section 6.1.
AirTouch's obligations to prepare and file a Shelf Registration Statement under
this Section 6.1(b) shall be subject to the following conditions:
(i) The Registrable Shares covered by such Shelf Registration
Statement shall be transferable by U S WEST to holders of Monetizing
Securities upon the exchange or conversion thereof only during the
three consecutive business day period commencing on each date by which
AirTouch is obligated to file with the SEC a quarterly report on Form
10-Q or an annual report on Form 10-K (the "Exchange Periods");
(ii) AirTouch shall have no obligation under Section 6.3(d),
6.3(j) or otherwise to keep such Shelf Registration Statement
effective or with respect to the accuracy or completeness of the
disclosure contained or incorporated therein at any time other than
during the Exchange Periods;
(iii) AirTouch shall have no obligation under Section 6.3(d),
6.3(j) or otherwise to keep such Shelf Registration effective or with
respect to the accuracy or completeness of the disclosure contained or
incorporated therein during any Exchange Period if, prior to the
commencement of such Exchange Period, AirTouch shall have notified U S
WEST that fulfilling such obligation would result in a Disadvantageous
Condition under Section 6.5(a)(i)(A) or 6.5(a)(i)(C) (it being
understood that AirTouch's delivery of such notice shall not be deemed
an exercise of a suspension right for purposes of Section
6.5(a)(iii)(C) and shall in no way restrict AirTouch from exercising
its suspension rights under Section 6.5(a)).
(c) In connection with any registration of Registrable Shares
pursuant to this Section 6.1 with respect to an underwritten offering of
Registrable Shares (or Monetizing Securities relating to Registrable Shares),
AirTouch will not register securities for sale for the account of any Person
other
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than holders of Registrable Shares, and will not register any securities other
than Registrable Shares, if the representative of the underwriters selected by
U S WEST advises AirTouch in writing that market factors require such a
limitation or that such registration would otherwise reduce the number of
Registrable Shares that U S WEST would be able to sell in such underwriting or
adversely affect U S WEST's offering of Registrable Shares.
6.2 Company Registration.
(a) If AirTouch shall determine to register any Common Stock either
for its own account or the account of a security holder or holders exercising
their respective demand registration rights, other than a registration relating
solely to employee benefit plans, or a registration relating solely to a
transaction described in Rule 145 promulgated under the Securities Act, or a
registration on any registration form that does not permit secondary sales,
AirTouch will:
(i) promptly give to U S WEST written notice thereof; and
(ii) use its best efforts to include in such registration
(and any related qualification under blue sky laws or other
compliance), except as set forth in Section 6.2(b) below, and in any
underwriting involved therein, the number of shares of Common Stock
then held by U S WEST or its Affiliates specified in a written request
made by U S WEST and received by AirTouch within ten business days
after the written notice from AirTouch described in clause (i) above
is mailed or delivered by AirTouch. Such written request may specify
all or a part of the number of shares of Common Stock then held by U S
WEST or its Affiliates.
(b) (i) If the registration of which AirTouch gives notice is for a
registered public offering involving an underwriting, AirTouch shall so advise
U S WEST as a part of the written notice given pursuant to Section 6.2(a)(i).
In such event, the right of U S WEST to registration pursuant to this Section
6.2 shall be conditioned upon U S WEST's participation in such underwriting and
the inclusion of U S WEST's shares of Common Stock in the underwriting to the
extent provided herein. U S WEST shall (together with AirTouch and the other
holders of securities of AirTouch with registration rights to participate
therein distributing their securities through such underwriting) enter into an
underwriting agreement in customary form with the representative of the
underwriters selected by AirTouch. In the event that U S WEST shall include
shares of Common Stock having a fair market value in excess of $100 million in
such underwriting, AirTouch shall consult with U S WEST regarding the selection
of a co-manager for such underwriting.
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(ii) Notwithstanding any other provision of this Section 6.2, if the
representative of the underwriters advises AirTouch in writing that marketing
factors require a limitation on the number of shares to be underwritten or that
the inclusion of U S WEST's shares would reduce the number of shares of Common
Stock that AirTouch would be able to sell in such underwriting or otherwise
adversely affect AirTouch's offering of Common Stock, the representative may
(subject to the limitations set forth below) exclude all of U S WEST's shares
of Common Stock from, or limit the number of U S WEST's shares of Common Stock
to be included in, the registration and underwriting. AirTouch shall so advise
U S WEST, and the number of shares of Common Stock that are entitled to be
included in the registration and underwriting shall be allocated first to
AirTouch for securities being sold for its own account and thereafter as set
forth in Section 6.2(c).
(c) In any circumstance in which all of U S WEST's shares of Common
Stock and other shares of Common Stock with registration rights (the "Other
Shares") requested to be included in a registration on behalf of U S WEST or
other selling stockholders cannot be so included as a result of limitations on
the aggregate number of shares of Common Stock that may be so included, the
number of shares of Common Stock that may be so included shall be allocated
among U S WEST and other selling stockholders requesting inclusion of shares
pro rata on the basis of the number of shares of Common Stock that are held by
U S WEST and other selling stockholders, provided, however, that such
allocation shall not operate to reduce the aggregate number of U S WEST's
shares of Common Stock and Other Shares to be included in such registration.
If U S WEST or any other selling stockholder does not request inclusion of the
maximum number of shares of Common Stock allocated to it pursuant to the
above-described procedure, the remaining portion of its allocation shall be
reallocated among U S WEST and other selling stockholders whose allocations did
not satisfy their requests pro rata on the basis of the number of shares of
Common Stock which are held by U S WEST and other selling stockholders, and
this procedure shall be repeated until all of the shares of Common Stock which
may be included in the registration on behalf of U S WEST and other selling
stockholders have been so allocated.
6.3 Registration Procedures. In the case of each registration
involving Registrable Shares pursuant to this Article VI (including the Shelf
Registration), AirTouch will:
(a) furnish to U S WEST, prior to the filing of a Registration
Statement, copies of such Registration Statement as it is proposed to be filed,
and thereafter such number of copies of such Registration Statement, each
amendment and supplement thereto (in each case including all exhibits thereto),
the prospectus included in such Registration Statement (including each
preliminary prospectus) and such other documents in such
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quantities as U S WEST reasonably may request from time to time in order to
facilitate the disposition of such Registrable Shares;
(b) use all reasonable efforts to register or qualify the offer and
sale of such Registrable Shares under such other securities or blue sky laws of
such jurisdiction as U S WEST reasonably requests and do any and all other acts
and things as reasonably may be necessary or advisable to enable U S WEST to
consummate the disposition in such jurisdictions of the Registrable Shares
owned by U S WEST; provided that AirTouch will not be required to (i) qualify
generally to do business in any jurisdiction where it would not otherwise be
required to qualify but for this subsection (b), (ii) subject itself to
taxation in any such jurisdiction or (iii) consent to general service of
process in any such jurisdiction;
(c) use all reasonable efforts to cause such Registrable Shares to be
registered with or approved by such other governmental agencies or authorities
as may be necessary by virtue of the business and operations of AirTouch to
enable U S WEST to consummate the disposition of such Registrable Shares;
(d) notify U S WEST, at any time when a prospectus relating thereto
is required to be delivered under the Securities Act, of the happening of any
event as a result of which the prospectus included in such Registration
Statement or amendment contains an untrue statement of a material fact or omits
to state any material fact required to be stated therein or necessary to make
the statements therein not misleading, and (subject to AirTouch's suspension
rights set forth in Section 6.5(a)) AirTouch will promptly prepare a supplement
or amendment to such prospectus so that, as thereafter delivered to the
purchasers of such Registrable Shares, such prospectus will not contain an
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading;
(e) enter into customary agreements, including an underwriting
agreement in customary form, with customary "holdback" or "lock-up" provisions
(which in no event will apply to AirTouch for a period of longer than 90 days
and which will be subject to customary exceptions), and, subject to the
provisions of Section 5.2, take such other customary actions incidental to the
registration of the Registrable Shares as are reasonably requested by U S WEST;
(f) make available for inspection by U S WEST, any underwriter
participating in any disposition pursuant to such registration, and any
attorney, accountant or other agent retained by U S WEST or any such
underwriter (collectively, the "Inspectors"), all financial and other records,
pertinent corporate documents and properties of AirTouch (collectively, the
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"Records") as shall be reasonably necessary to enable them to exercise their
due diligence responsibility, and cause the officers, directors and employees
of AirTouch to supply all information reasonably requested by any such
Inspector in connection with such registration;
(g) use all reasonable efforts to obtain a legal opinion from counsel
for AirTouch and a comfort letter from the independent public accountants for
AirTouch, in each case, addressed to U S WEST and the underwriters, if any, in
customary form and covering such matters of the type customarily covered by
legal opinions and comfort letters as U S WEST or the underwriters reasonably
request;
(h) otherwise use all reasonable efforts to comply with all
applicable rules and regulations of the SEC, and make generally available to
its security holders, as soon as reasonably practicable, an earnings statement
covering a period of twelve months beginning within three months after the
effective date of such Registration Statement, which earnings statement shall
satisfy the provisions of section 11(a) of the Securities Act and Rule 158
thereunder;
(i) use all reasonable efforts to cause all such Registrable Shares
to be listed on each securities exchange on which similar securities issued by
AirTouch are listed (it being understood that, at the request of U S WEST,
AirTouch shall use all reasonable efforts to list the Class D Preferred Stock
and the Class E Preferred Stock on the New York Stock Exchange); and
(j) use its best efforts (i) to have any registration of the
Registrable Shares declared effective as promptly as practicable after the
filing thereof and (ii) except as set forth in Section 6.1(b) with respect to
the period of effectiveness of the Shelf Registration, to keep such
Registration Statement continuously effective for a period (up to three months)
sufficient to complete the distribution of the Registrable Shares. AirTouch
further agrees to supplement or make amendments to the Registration Statement,
if required by (x) the registration form utilized by AirTouch for such
registration or by the instructions applicable to such registration form, (y)
the Securities Act or the rules and regulations thereunder or (z) U S WEST (or
any underwriter for U S WEST) with respect to information concerning U S WEST
or such underwriter or the plan of distribution to be utilized with respect to
the Registrable Shares. AirTouch agrees to furnish to U S WEST copies of any
such supplement or amendment prior to its being used or filed with the SEC.
6.4 Conditions to Offerings.
(a) The obligations of AirTouch to take the actions contemplated by
Sections 6.1 and 6.3 with respect to an offering
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of Registrable Shares shall be subject to the following conditions:
(i) The aggregate gross proceeds of the offering shall be no
less than $350 million (in the case of Common Stock or Monetizing
Securities relating to Common Stock) or $250 million (in the case of
Preferred Stock or Monetizing Securities relating to Preferred Stock);
(ii) U S WEST shall have the right to select the lead manager
to administer the offering and its counsel, provided that such lead
manager shall be selected from among the investment banking firms set
forth on Exhibit A hereto after consultation with AirTouch, and such
counsel must be reasonably satisfactory to AirTouch;
(iii) AirTouch shall have the right to select the senior
co-manager of the offering (provided that such selection shall be made
after consultation with U S WEST) who shall have greater than
customary co-manager involvement in and access to information
regarding all aspects of the offering and greater than customary
co-manager participation in the economics of the transaction (which
greater than customary participation in the economics of the
transaction shall be determined by U S WEST);
(iv) U S WEST and its lead manager shall use reasonable
efforts to effect a wide distribution of such Registrable Shares;
(v) U S WEST shall provide, and shall cause its lead manager
to provide, to AirTouch such information regarding the distribution of
the Registrable Shares (or related Monetizing Securities) as AirTouch
may from time to time reasonably request (including, without
limitation, all reports and other information regarding the status of
the formation of the "books" of the offering provided to U S WEST
during the offering process (at the same time as such reports and
other information are provided to U S WEST) and the ability to review
the "books" of the offering at the time of pricing of the offering);
(vi) A registration statement filed by AirTouch pursuant to
Section 6.1 shall not have been declared effective within the
immediately preceding six months;
(vii) U S WEST shall conform to all requirements of the
Securities Act and the Exchange Act applicable to it with respect to
the offering and sale of such Registrable Shares and shall advise each
underwriter, broker or dealer through which any of such Registrable
Shares are offered that such Registrable Shares are part of a
distribution
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that is subject to the prospectus delivery requirements of the
Securities Act; and
(viii) U S WEST shall promptly notify AirTouch of the
completion of the distribution of the offering of such Registrable
Shares.
(b) AirTouch's obligations pursuant to Sections 6.1 and 6.3 shall
be suspended during any "holdback" or "lock-up" period (which shall in no event
exceed 90 days) in effect under any underwriting arrangements by which AirTouch
is bound; provided that during such "holdback" or "lock-up" period AirTouch
shall take all reasonable actions in preparation for fulfilling its obligations
pursuant to Sections 6.1 and 6.3 promptly following the expiration thereof.
(c) U S WEST agrees that, upon receipt of any notice from AirTouch
of the happening of any event of the kind described in Section 6.3(d), or the
issuance by the SEC or other regulatory authority of any stop order or other
order suspending or limiting the offer or sale of the Registrable Shares, U S
WEST will forthwith discontinue disposition of Registrable Shares pursuant to
the registration covering such Registrable Shares until U S WEST's receipt of
the copies of the supplemented or amended prospectus contemplated by Sections
6.3(a) and 6.3(d) or AirTouch notifies U S WEST of the lifting of such stop
order or similar order; provided, however, that the effectiveness period
referred to in Section 6.3(j) shall be tolled for the duration of any such
discontinuance and AirTouch shall use its best efforts to have such stop order
or other order promptly lifted.
(d) U S WEST shall, and shall direct each of its underwriters and
other Inspectors to, hold all confidential information made available or
provided hereunder by AirTouch or its officers, directors, employees, agents or
other representatives in strict confidence (unless disclosure of such
information is ordered pursuant to a court or other governmental order).
6.5 Additional Conditions.
(a) (i) AirTouch's obligations pursuant to Sections 6.1 and 6.3
shall be suspended if AirTouch shall deliver to U S WEST a certificate of an
executive officer of AirTouch to the effect that any of the following
conditions (each, a "Disadvantageous Condition") exists: (A) the fulfillment of
such obligations would require AirTouch to make a disclosure that would be
detrimental to AirTouch and premature and AirTouch concludes, as a result, that
it is essential to suspend such obligations, (B) AirTouch has filed or proposes
to file a registration statement with respect to any of its securities to be
distributed in an underwritten public offering and it is advised by its lead or
managing underwriter that an offering by U S WEST of Registrable Shares would
materially adversely affect the distribution of
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such securities, provided that AirTouch is actively employing, or upon such
proposed filing actively employs, all reasonable efforts to cause any such
filed registration statement to become effective, or (C) the fulfillment of
such obligations would require AirTouch to prepare financial statements not
required to be prepared for AirTouch to comply with its obligations under the
Exchange Act at the time that the registration statement is proposed to be
filed.
(ii) AirTouch's obligations under Sections 6.1 and 6.3 shall be
reinstated upon the earlier of (A) 90 days following the delivery of such
certificate or (B) such time as a Disadvantageous Condition no longer exists;
provided that, during the period in which such Disadvantageous Condition
exists, AirTouch shall take reasonable actions in preparation for fulfilling
its obligations pursuant to Sections 6.1 and 6.3 promptly following the
expiration thereof. A Disadvantageous Condition shall be deemed to no longer
exist: (1) in the case of Section 6.5(a)(i)(A) above, upon the making of such
disclosure by AirTouch (or, if earlier, when such disclosure is determined by
AirTouch to be either no longer necessary for the fulfillment of such
obligations or no longer detrimental), (2) in the case of Section 6.5(a)(i)(B)
above, upon the conclusion of any period during which AirTouch would not,
pursuant to the terms of its underwriting arrangements, be permitted to offer
for sale or sell Registrable Shares for its own account (it being understood
that AirTouch shall only agree to customary "holdback" or "lock- up" periods as
part of such underwriting arrangements and (3) in the case of Section
6.5(a)(i)(C) above, as soon as (x) it would no longer be necessary to prepare
such financial statement to comply with the Securities Act or (y) AirTouch
prepares such financial statements.
(iii) Notwithstanding the foregoing, AirTouch shall not be entitled
to suspend its obligations under Sections 6.1 and 6.3:
(A) subsequent to the filing of a registration statement for
Registrable Shares, during the period beginning 15 days prior to, and
ending 35 days following, the date that such registration statement is
declared effective (or expected to be declared effective in the case
of periods prior to such effective date), unless (1) AirTouch's Board
of Directors shall determine, after consultation with legal counsel,
that such suspension is essential in the exercise of its fiduciary
duties as a result of any material development or event not initiated
by AirTouch during such period and (2) AirTouch reimburses U S WEST
for the reasonable expenses incurred by U S WEST through the date of
such suspension in marketing the offering to which such registration
statement relates;
(B) by asserting a Disadvantageous Condition under Section
6.5(a)(i)(B), unless it shall have delivered notice of such
Disadvantageous Condition within 10 business days following
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its receipt of notice of an exercise of U S WEST's demand registration
rights under Section 6.1; or
(C) more than once in any 360-day period.
(iv) The period during which U S WEST is required to sell its
Registrable Shares pursuant to Section 6.3(j) shall be tolled for the duration
of any suspension pursuant to this Section 6.5(a).
(b) The number of Registrable Shares to be registered in any
Registration Statement filed pursuant to Section 6.1 of this Agreement shall be
reduced to the extent that the senior co-manager selected by AirTouch (or, if
no such senior co-manager shall have been selected by AirTouch, an investment
banking firm of national standing) shall have advised AirTouch in writing
setting forth the reasons for such advice in reasonable detail (and provided U
S WEST with a copy of such written advice) that the distribution of all of the
Registrable Shares (or Monetizing Securities relating to such Registrable
Shares, as applicable) requested to be registered by U S WEST in the manner
contemplated by U S WEST would materially and adversely affect the market price
of AirTouch's equity securities. If the number of shares registered is reduced
pursuant to this Section 6.5(b) by more than one-third of the number requested
to be registered by U S WEST, the Registration Statement relating to such
reduced number shall not count as one of the Registration Statements available
to U S WEST under Section 6.1.
6.6 Registration Expenses. All expenses incident to the performance
of or compliance with this Article VI by AirTouch, including, without
limitation, all fees and expenses of compliance with securities or blue sky
laws (including reasonable fees and disbursements of counsel in connection with
blue sky qualifications of the Registrable Shares), printing expenses,
messenger and delivery expenses, internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), the fees and expenses incurred in connection with
the listing of the Registrable Shares to be registered on each securities
exchange on which similar securities issued by AirTouch are then listed (or, in
the case of the Preferred Stock, on the New York Stock Exchange), fees and
disbursements of counsel for AirTouch and its independent certified public
accountants (including the expenses of any comfort letters required by or
incident to such performance), securities acts liability insurance (if AirTouch
elects to obtain such insurance), the reasonable fees and expenses of any
special experts retained by AirTouch in connection with such registration and
the fees and expenses of other Persons retained by AirTouch, will be borne by
AirTouch. Notwithstanding anything in this Section 6.6 to the contrary,
AirTouch will not have any responsibility for any registration or filing fees
payable under any federal or state securities or
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blue sky laws (with respect to Registrable Shares or Monetizing Securities) or,
except as provided in Section 5.2(a)(viii) or 6.5(a)(iii)(A), for any of the
expenses of U S WEST incurred in connection with any registration hereunder
including, without limitation, expenses associated with the issuance of any
Monetizing Securities, underwriting fees, discounts and commissions and
transfer taxes, if any, attributable to the sale of U S WEST's Registrable
Shares, counsel fees of U S WEST and travel costs.
6.7 Indemnification; Contribution.
(a) Indemnification by AirTouch. AirTouch agrees to indemnify, to
the fullest extent permitted by law, U S WEST (and any Affiliate thereof
holding Registrable Shares), each Person, if any, who controls U S WEST or such
Affiliate (within the meaning of either the Securities Act or the Exchange
Act), and their respective directors and officers against any and all losses,
claims, damages, liabilities and expenses (including attorneys' fees) caused by
any untrue or alleged untrue statement of material fact contained in any
Registration Statement, prospectus or preliminary prospectus (each as amended
and/or supplemented, if AirTouch shall have furnished any amendments or
supplements thereto), or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein (in the case of a prospectus, in the light of the circumstances under
which they were made) not misleading; provided that AirTouch shall not be
required to indemnify U S WEST or such Affiliate, such controlling persons or
their respective officers or directors for any losses, claims, damages,
liabilities or expenses resulting from any such untrue statement or omission if
such untrue statement or omission is made in reliance on and conformity with
any information with respect to U S WEST or its Affiliates or the underwriters
furnished to AirTouch by U S WEST or its Affiliates or the underwriters
expressly for use therein; and provided further, that with respect to any
untrue statement or omission or alleged untrue statement or omission made in
any preliminary prospectus, the indemnity agreement contained in this paragraph
shall not inure to the benefit of U S WEST or such Affiliate, if the liability
or expense results from the fact that a copy of the prospectus was not sent or
given to such Person at or prior to the written confirmation of sale of such
Registrable Shares to such Person as required by the Securities Act and if the
untrue statement or omission has been corrected in the prospectus, unless such
failure to deliver the prospectus was a result of noncompliance by AirTouch
with its obligations under Section 6.3(a) hereof.
(b) Indemnification by U S WEST. In connection with any registration
in which U S WEST is participating, U S WEST will furnish to AirTouch in
writing such information with respect to U S WEST and its Affiliates as
AirTouch reasonably requests for use in connection with any such registration,
prospectus, or
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preliminary prospectus and agrees to indemnify, to the fullest extent permitted
by law, AirTouch, each Person, if any, who controls AirTouch (within the
meaning of either the Securities Act or of the Exchange Act), and their
respective directors and officers to the same extent as the foregoing indemnity
from AirTouch to U S WEST, but only with respect to information relating to U S
WEST furnished to AirTouch in writing by U S WEST expressly for use in the
Registration Statement, the prospectus, any amendment or supplement thereto, or
any preliminary prospectus.
(c) Conduct of Indemnification Proceedings. In case any proceeding
(including any governmental investigation) shall be instituted involving any
Person in respect of which indemnity may be sought pursuant to Section 6.7(a)
or Section 6.7(b), such Person (hereinafter called the "indemnified party")
shall promptly notify the person against whom such indemnity may be sought
(hereinafter called the "indemnifying party") in writing and the indemnifying
party, upon request of the indemnified party, shall retain counsel reasonably
satisfactory to the indemnified party to represent the indemnified party and
any others the indemnifying party may designate in such proceeding and shall
pay the fees and disbursements of such counsel related to such proceeding. In
any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and the indemnified party
shall have been advised by counsel that representation of both parties by the
same counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the indemnifying party shall
not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate
firm (in addition to any local counsel) for all such indemnified parties, and
that all such fees and expenses shall be reimbursed as they are incurred. In
the case of any such separate firm for the indemnified parties, such firm shall
be designated in writing by the indemnified parties. The indemnifying party
shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse
the indemnified party for fees and expenses of counsel as contemplated by the
third sentence of this Section 6.7(c), the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more
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than 30 days after receipt by such indemnifying party of the aforesaid request
and (ii) such indemnifying party shall not either have reimbursed the
indemnified party in accordance with such request or reasonably objected in
writing, on the basis of the standards set forth herein, to the propriety of
such reimbursement prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement does not
provide for any injunctive or other non-monetary relief against the indemnified
party and includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding.
(d) Contribution. If the indemnification provided for in this
Section 6.7 from the indemnifying party is unavailable to an indemnified party
hereunder in respect of any losses, claims, damages, liabilities or expenses
referred to in this Section 6.7, then the indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages,
liabilities or expenses in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and indemnified parties in connection
with the actions which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
fault of such indemnifying party and indemnified parties shall be determined by
reference to, among other things, whether any action in question, including any
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact, has been made by, or relates to information
supplied by, such indemnifying party or indemnified parties, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such action. The amount paid or payable by a party as a result of the
losses, claims, damages, liabilities and expenses referred to above shall be
deemed to include, subject to the limitations set forth in Section 6.7(c), any
legal or other fees or expenses reasonably incurred by such party in connection
with any investigation or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 6.7(d) were determined by pro rata
allocation or by any other method of allocation which does not take into
account the equitable considerations referred to in the immediately preceding
paragraph. No Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
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If indemnification is available under this Section 6.7, the
indemnifying parties shall indemnify each indemnified party to the full extent
provided in Sections 6.7(a) and (b) without regard to the relative fault of
said indemnifying party or indemnified party or any other equitable
consideration provided for in this Section 6.7(d).
6.8 Rule 144. AirTouch covenants that it will file the reports
required to be filed by it under the Exchange Act and the rules and regulations
adopted by the SEC thereunder, and it will take such further action as U S WEST
may reasonably request, all to the extent required from time to time to enable
U S WEST to sell AirTouch Securities without registration under the Securities
Act within the limitation of the exemptions provided by Rule 144, as such rule
may be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC. Upon the request of U S WEST, AirTouch will deliver to U S
WEST a written statement as to whether it has complied with such requirements.
6.9 Reorganization, Reclassification, Merger, Consolidation or
Disposition of Assets. In the event that AirTouch shall propose to enter into
an agreement of merger, consolidation or other business combination with any
Person and in connection with such agreement AirTouch will no longer have a
class of equity securities having substantially the same rights as the Common
Stock registered with the SEC pursuant to Section 12(b) or 12(g) of the
Exchange Act, AirTouch hereby covenants and agrees with U S WEST that it will
cause such Person (or the parent of such Person if stockholders of AirTouch
receive shares of the capital stock of such parent in connection with such
transaction) to assume the rights and obligations of AirTouch set forth in this
Article VI and in Article V hereof (provided that all obligations of such
Person and the parent of such Person under Article V shall terminate on the
third anniversary of the date hereof), to the full extent set forth herein (it
being understood that the shares of capital stock of such Person or parent
received by U S WEST in connection with any such transaction shall be
"Registrable Shares" under this Agreement).
ARTICLE VII
CERTAIN ADDITIONAL RIGHTS WITH
RESPECT TO PREFERRED STOCK
7.1 Earnings and Profits Gross-Up.
(a) If the aggregate amount of any dividends paid pursuant to
Section 3(a) of the Certificates of Designation, Preferences and Privileges of
the Preferred Stock (the "Certificates") made during any taxable year with
respect to the shares of Preferred Stock exceeds the current and accumulated
earnings and profits of AirTouch as of the end of such taxable year, as
determined for federal income tax purposes, AirTouch shall make a Gross-Up
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Payment (as defined below) to U S WEST with respect to such dividends received
which exceeded AirTouch's current and accumulated earnings and profits (each
such dividend, to the extent such dividend exceeded AirTouch's current and
accumulated earnings and profits and as a result failed to qualify as a
dividend for federal income tax purposes, an "Excess Distribution"). Within 90
days following the end of such taxable year, AirTouch shall deliver a notice to
U S WEST indicating the dividends for such taxable year which were Excess
Distributions and, within 120 days following the end of such taxable year,
distribute to U S WEST an amount equal to the aggregate Gross-Up Payment to be
paid to U S WEST with respect to such taxable year.
(b) A "Gross-Up Payment" shall mean a payment to U S WEST of an
amount which, when taken together with the aggregate Excess Distributions paid
to U S WEST by AirTouch during any taxable year pursuant to Section 3(a) of the
Certificates, would cause the net yield in dollars received by U S WEST on the
Preferred Stock (after taking into effect the federal income tax consequences
to U S WEST of receiving the Excess Distributions and the Gross-Up Payment) to
be equal to the net yield in dollars which would have been received by U S WEST
on the Preferred Stock during such taxable year had none of the dividends paid
on the Preferred Stock to U S WEST during such taxable year constituted Excess
Distributions. Such Gross- Up Payment shall be calculated by treating that
portion of the Excess Distribution that would constitute a return of capital to
U S WEST as capital gain received by U S WEST (assuming that U S WEST will hold
the Preferred Stock for a period of time equal to one half of the period
remaining until maturity), by applying a discount rate equal to the then
current yield on AirTouch's senior, unsecured debt having an equivalent
maturity to such amount in determining its present value, and using the
marginal corporate federal income tax rate applicable to U S WEST during such
taxable year. Within ten Business Days following its receipt from AirTouch of
a notice that Excess Distributions were made with respect to any taxable year,
U S WEST shall provide AirTouch with a calculation (together with such
supporting information as AirTouch may reasonably request) of the marginal
corporate federal income tax rate applicable to U S WEST during such taxable
year and U S WEST's tax basis in the Preferred Stock as of the time of each
Excess Distribution.
ARTICLE VIII
TERM OF AGREEMENT
8.1 Termination of Article IV. Article IV of this Agreement shall
terminate at such time as U S WEST and its Affiliates (a) cease to beneficially
own Voting Securities representing at least 5% (calculated by voting power) of
the then outstanding Voting Securities and (b) upon the occurrence of an
AirTouch Change of Control.
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8.2 Termination of Article V and VI. Articles V and VI of this
Agreement shall terminate (except as to Preferred Stock and Monetizing
Securities related thereto) at such time as the Common Stock beneficially owned
by U S WEST and its Affiliates ceases either (a) to have a fair market value of
at least $600 million or (b) to represent at least 1.5% of the then outstanding
Common Stock.
ARTICLE IX
MISCELLANEOUS
9.1 Legend; Removal of Legend.
(a) All certificates evidencing AirTouch Securities beneficially
owned by U S WEST shall have the following legend, which shall remain on such
certificates until such time as the securities represented by such certificates
are no longer subject to the restrictions of this Agreement:
THE SHARES REPRESENTED HEREBY ARE SUBJECT TO THE PROVISIONS OF AN
INVESTMENT AGREEMENT (INCLUDING THE RESTRICTIONS ON TRANSFER SET FORTH
THEREIN) DATED AS OF APRIL 6, 1998, BETWEEN AIRTOUCH COMMUNICATIONS,
INC. AND U S WEST, INC. AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE
ALIENATED EXCEPT IN ACCORDANCE THEREWITH. A COPY OF SUCH AGREEMENT IS
ON FILE AT THE OFFICE OF THE CORPORATE SECRETARY OF AIRTOUCH.
(b) Any legend endorsed on a certificate pursuant to paragraph (a)
shall be removed if the AirTouch Securities represented by such certificate
shall have been effectively transferred in compliance with Section 4.3 or this
Agreement shall have terminated.
9.2 Severability. If any term, provision, covenant or restriction of
this Agreement is determined to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions of this
Agreement shall remain in full force and effect, unless such action would
substantially impair the benefits to either party of the remaining provisions
of this Agreement.
9.3 Specific Enforcement. The parties hereto acknowledge and agree
that irreparable damage would occur in the event that any of the provisions of
this Agreement were not performed in accordance with their specific terms or
were otherwise breached. It is accordingly agreed that the parties shall be
entitled to an injunction or injunctions to prevent or cure breaches of the
provisions of this Agreement and to enforce specifically the terms and
provisions of this Agreement, this being in addition to any other remedy to
which they may be entitled by law or equity.
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9.4 Entire Agreement; Amendments. Except to the extent that other
agreements are specifically referred to herein, this Agreement between AirTouch
and U S WEST contains the entire understanding of the parties with respect to
the matters covered hereby and thereby and, except as specifically set forth
herein or therein, neither AirTouch nor U S WEST makes any representation,
warranty, covenant or undertaking with respect to such matters. This Agreement
amends and restates in its entirety that certain Amended and Restated
Investment Agreement, dated as of September 30, 1995, between AirTouch and U S
WEST's predecessor, U S WEST, Inc., a Colorado corporation. This Agreement may
be amended only by an agreement in writing executed by the parties hereto. The
parties hereto may amend this Agreement without notice to or the consent of any
third party.
9.5 Notices. Any notice or other communication required or permitted
to be given hereunder shall be in writing and shall be effective (a) when
personally delivered or transmitted by telecopier on a Business Day during
normal business hours where such notice is to be received at the address or
number designated below or (b) on the Business Day following the date of
mailing by overnight courier, fully prepaid, addressed to such address,
whichever shall first occur. The addresses for such communications shall be:
If to AirTouch: AirTouch Communications, Inc.
One California Street
San Francisco, CA 94111
Attention: Margaret G. Gill, Esq.
Senior Vice President, Legal and
External Affairs
Telephone: (415) 658-2000
Telecopy: (415) 658-2551
With a copy to: Pillsbury Madison & Sutro LLP
235 Montgomery Street
San Francisco, CA 94104
Attention: Nathaniel M. Cartmell III
Telephone: (415) 983-1000
Telecopy: (415) 983-1200
If to U S WEST: U S WEST, Inc.
7800 East Orchard Road
Englewood, CO 80111
Attention: General Counsel
Telephone: (303) 793-6500
Telecopy: (303) 793-6707
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With a copy to: Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
Attention: Dennis J. Block, Esq.
Telephone: (212) 310-8000
Telecopy: (212) 310-8007
Any party hereto may from time to time change its address for notices under
this Section 9.5 by giving at least 10 days' notice of such changed address to
the other party hereto.
9.6 Waivers. No waiver by either party of any default with respect
to any provision, condition or requirement of this Agreement shall be deemed to
be a continuing waiver in the future thereof or a waiver of any other
provision, condition or requirement of this Agreement; nor shall any delay or
omission of either party to exercise any right hereunder in any manner impair
the exercise of any such right accruing to it thereafter.
9.7 Headings. The headings herein are for convenience only, do not
constitute a part of this Agreement and shall not be deemed to limit or affect
any of the provisions of this Agreement.
9.8 Successors and Assigns.
(a) This Agreement shall be binding upon and inure to the benefit
of the parties and their successors, legal representatives and permitted
assigns. The parties hereto may amend this Agreement without notice to or the
consent of any third party. Neither AirTouch nor U S WEST shall assign this
Agreement or any rights hereunder without the prior written consent of the
other (which consent may be withheld for any reason in the sole discretion of
the party from whom consent is sought).
(b) Notwithstanding the foregoing, in the event that U S WEST
distributes to its stockholders (by dividend, redemption, exchange, merger of
otherwise) all the outstanding shares of capital stock of MediaCo (as defined
in the Merger Agreement) and following such distribution MediaCo or a wholly
owned subsidiary thereof beneficially owns all of the AirTouch Securities owned
by U S WEST prior to such distribution, (i) U S WEST shall assign all, but not
less than all, of its rights and obligations under this Agreement to MediaCo,
(ii) MediaCo shall agree to be bound by the terms of this Agreement (by
instrument in form and substance reasonably satisfactory to AirTouch) and (iii)
upon assumption by MediaCo of the obligations so assigned, U S WEST shall be
released from its obligations hereunder to AirTouch.
9.9 No Third Party Beneficiaries. This Agreement is intended for the
benefit of the parties hereto and their respective permitted successors and
assigns and is not for the
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benefit of, nor may any provision of this Agreement be enforced by, any other
Person.
9.10 Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Delaware
without regard to the principles of conflicts of laws.
9.11 Counterparts. This Agreement may be executed in separate
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts shall together constitute one and the same
instrument.
9.12 Enforcement. The parties agree that irreparable damage would
occur and that the parties would not have any adequate remedy at law in the
event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any United States federal court
located in the State of Delaware or in Delaware state court, this being in
addition to any other remedy to which they are entitled at law or in equity.
In addition, each of the parties hereto (a) consents to submit itself to the
personal jurisdiction of any United States federal court located in the State
of Delaware or any Delaware state court in the event any dispute arises out of
this Agreement or any of the transactions contemplated by this Agreement, (b)
agrees that only such courts shall have jurisdiction and venue over any such
dispute, (c) agrees that it will not attempt to deny or defeat such personal
jurisdiction by motion or other request for leave from any such court and (d)
agrees that it will not bring any action relating to this Agreement in any
court other than a United States federal court sitting in the State of Delaware
or a Delaware state court.
9.13 Arbitration
(a) General Arbitration Provisions.
(i) The parties hereto agree that all disputes under this
Agreement shall be resolved by binding arbitration, which shall be
administered by the American Arbitration Association ("AAA") in
Phoenix, Arizona, and, except as expressly provided in this Agreement,
shall be conducted in accordance with the Commercial Arbitration Rules
of the American Arbitration Association, as such Rules may be amended
from time to time, with the hearing locale to be Phoenix, Arizona.
(ii) A single neutral arbitrator shall preside over the
arbitration and decide the dispute (the "Decision").
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<PAGE> 36
(iii) The Decision shall be binding, and the prevailing party
may enforce such decision in any court of competent jurisdiction.
(iv) The parties shall cooperate with each other in causing
the arbitration to be held in as efficient and expeditious a manner as
practicable.
(v) The parties have selected arbitration in order to
expedite the resolution of disputes and to reduce the costs and
burdens associated with litigation. The parties agree that the
arbitrator should take these concerns into account when determining
the scope of permissible discovery and other hearing and pre-hearing
procedures.
(vi) Without limiting any other remedies which may be
available under applicable laws, the arbitrator shall have no
authority to award punitive damages.
(vii) The arbitrator shall render a decision within 120 days
after accepting an appointment to serve as arbitrator unless the
parties otherwise agree or the arbitrator makes a finding that a party
has carried the burden of showing good cause for a longer period.
(viii) Notwithstanding anything herein to the contrary, any
party may seek a temporary restraining order or a preliminary
injunction from any court of competent jurisdiction in order to
prevent immediate and irreparable injury, loss or damage pending the
selection of an arbitrator to render a Decision on the ultimate merits
of any dispute.
(b) Selection of the Arbitrator.
(i) The parties hereto shall cooperate in good faith to
select a mutually agreeable arbitrator. If the parties have not
agreed upon an arbitrator within 30 days of the initiation of the
arbitration, then an arbitrator shall be selected pursuant to the
provisions of Section 9.13(b)(ii) of this Agreement.
(ii) If the parties are unable to agree upon an arbitrator
pursuant to the procedures of Section 9.13(b)(i) of this Agreement,
then the American Arbitration Association shall designate an
arbitrator pursuant to its Commercial Arbitration Rules, except that
the list of potential arbitrators from the National Panel of
Commercial Arbitrators submitted to the parties shall be drawn from
throughout the United States other than from the State of Arizona, and
shall have expertise in the subject matter or nature of the dispute.
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(c) Confidentiality. All proceedings and decisions of the arbitrator
shall be maintained in confidence, to the extent legally permissible, and shall
not be made public by any party or any arbitrator without the prior written
consent of all parties to the arbitration, except as may be required by law.
(d) Fees and Costs. Each party shall bear its own costs and
attorneys' fees in connection with any arbitration, and the parties shall
equally bear the fees, costs and expenses of the arbitrator and the arbitration
proceedings; provided, however, that the arbitrator may exercise discretion to
award costs, but not attorneys' fees, to the prevailing party.
(e) Award. Any arbitration award shall be binding and enforceable
against the parties hereto, their successors and assigns, and judgment may be
entered thereon in any court of competent jurisdiction.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the date hereof.
AIRTOUCH COMMUNICATIONS, INC.
By /s/ Mohan Gyani
-----------------------------------
Name: Mohan Gyani
Title: Executive Vice President
and Chief Financial Officer
U S WEST, INC.
By /s/ Charles M. Lillis
-----------------------------------
Name: Charles M. Lillis
Title: Executive Vice President
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<PAGE> 1
Exhibit 99
AIRTOUCH AND MEDIAONE GROUP COMPLETE $6 BILLION MERGER OF U.S. WIRELESS
INTERESTS
- -- AirTouch Becomes Second Largest U.S. Wireless Provider --
- -- MediaOne Group to Focus on Core Broadband Strategy with Strengthened Balance
Sheet --
April 6, 1998, SAN FRANCISCO -- AirTouch Communications, Inc. (NYSE:ATI) and
MediaOne Group (NYSE:UMG), formerly U S WEST Media Group, today announced that
they have completed merging MediaOne Group's U.S. cellular and PCS interests
into AirTouch. The merger became effective April 6. MediaOne Group's
international wireless interests are not included in the transaction.
This acquisition increases AirTouch's U.S. cellular and PCS proportionate
customer base by 56 percent, to 6.9 million, making the company the second
largest wireless provider in the United States based on fourth quarter 1997
proportionate customers. With the transaction, AirTouch adds about $400 million
of 1997 pro-forma proportionate operating cash flow.
The total value of the deal is $5.9 billion. Due to the strong performance of
AirTouch common stock, the transaction's value has increased by about $200
million since the deal was announced on January 29, 1998. MediaOne Group
received approximately $1.6 billion in AirTouch dividend-bearing preferred
stock with a 5.143 percent coupon and 59.5 million shares of AirTouch common
stock valued at $2.9 billion, based on the April 3 closing price of $49 per
share. MediaOne Group transferred approximately $1.4 billion of debt to
AirTouch.
"We've been working toward this strategically important acquisition since 1994,
and we're delighted to reach a successful conclusion," said Sam Ginn, AirTouch
chairman and CEO. "The merger combines the expertise of two industry leaders,
while strengthening AirTouch's competitive position by increasing our scale and
reach. As the demand for wireless soars, we plan to remain in the forefront,
with new products and services to help customers balance their lives."
<PAGE> 2
"The completion of this merger with AirTouch marks a major milestone for
MediaOne Group. We now can focus our resources more closely on our core
businesses -- domestic and international broadband, and international
wireless," said Chuck Lillis, president and CEO of MediaOne Group. "The deal
also strengthens our balance sheet as we prepare to become a standalone
company," Lillis said.
AirTouch has acquired MediaOne Group's U.S. cellular property, U S WEST
NewVector Group, and its interest in PCS provider PrimeCo Personal
Communications. AirTouch now has cellular operations in 19 states including 15
of the top 30 U.S. markets: Los Angeles, Detroit, San Francisco, Atlanta, San
Diego, Minneapolis, Phoenix, Seattle, Denver, Cleveland, Portland (Oregon), San
Jose, Kansas City, Cincinnati, and Sacramento. The transaction increases the
company's ownership in PrimeCo from approximately 25 to 50 percent. AirTouch's
cellular and PCS footprint now covers cities in 25 states, reaching a total of
145 million people -- over half the U.S. population.
AirTouch's earnings per share dilution from the transaction, primarily due to
the amortization of acquisition intangibles, is expected to peak around $0.40
in 1999 and decline thereafter. The company plans to pursue cost savings to
partially mitigate this dilution. The company does not expect a change in its
investment grade credit ratings as a result of the transaction.
AirTouch Communications is a global wireless communications company, with
interests in cellular, paging, and personal communications services in the
United States, Belgium, Germany, India, Italy, Japan, Poland, Portugal,
Romania, South Korea, Spain, and Sweden, as well as an interest in the
Globalstar satellite system. The company, based in San Francisco, serves more
than 13 million proportionate customers worldwide.
MediaOne Group (NYSE:UMG), formerly U S WEST Media Group, one of America's
largest broadband communications companies, is involved in domestic and
international cable and telephone services, international wireless, and
directory and information services. For 1977, the group had proportionate
revenue of $7.8 billion, proforma for the AirTouch merger. MediaOne Group is
one of two major groups owned by parent company U S WEST, Inc. The other major
group is U S WEST Communications, which provides telecommunications services in
14 western and midwestern states. U S WEST has proposed splitting the two
groups into separate public
<PAGE> 3
companies. The split is anticipated by mid-1998, pending shareowner approval.
For a fax copy of this or other AirTouch press releases, please call
1-800-344-7531 or visit the AirTouch web site at www.airtouch.com.
