-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, TLll15x3HrZV7U3BQu+isH2jxOME9cFUI6UtU27VNrz+Bb4VREs65xd1qfJvEbtF bsEK6CGHsKqrBQjMDR4R5A== 0000950008-98-000282.txt : 19980615 0000950008-98-000282.hdr.sgml : 19980615 ACCESSION NUMBER: 0000950008-98-000282 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 18 REFERENCES 429: 033-62787 FILED AS OF DATE: 19980611 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: AIRTOUCH COMMUNICATIONS INC CENTRAL INDEX KEY: 0000904255 STANDARD INDUSTRIAL CLASSIFICATION: RADIO TELEPHONE COMMUNICATIONS [4812] IRS NUMBER: 943213132 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3 SEC ACT: SEC FILE NUMBER: 333-56645 FILM NUMBER: 98646776 BUSINESS ADDRESS: STREET 1: ONE CALIFORNIA ST STREET 2: 21ST FLOOR CITY: SAN FRANCISCO STATE: CA ZIP: 94111 BUSINESS PHONE: 4156582000 MAIL ADDRESS: STREET 1: ONE CALIFORNIA ST STREET 2: 21ST FLOOR CITY: SAN FRANCISCO STATE: CA ZIP: 94111 FORMER COMPANY: FORMER CONFORMED NAME: PACTEL CORP DATE OF NAME CHANGE: 19930512 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ATI FINANCING I CENTRAL INDEX KEY: 0001000739 STANDARD INDUSTRIAL CLASSIFICATION: RADIO TELEPHONE COMMUNICATIONS [4812] STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3 SEC ACT: SEC FILE NUMBER: 333-56645-01 FILM NUMBER: 98646777 BUSINESS ADDRESS: STREET 1: ONE CALIFORNIA ST CITY: SAN FRANCISCO STATE: CA ZIP: 94111 BUSINESS PHONE: 4106582000 MAIL ADDRESS: STREET 1: ONE CALIFORNIA ST CITY: SAN FRANCISCO STATE: CA ZIP: 94111 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ATI FINANCING II CENTRAL INDEX KEY: 0001000748 STANDARD INDUSTRIAL CLASSIFICATION: RADIO TELEPHONE COMMUNICATIONS [4812] STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3 SEC ACT: SEC FILE NUMBER: 333-56645-02 FILM NUMBER: 98646778 BUSINESS ADDRESS: STREET 1: ONE CALIFORNIA ST CITY: SAN FRANCISCO STATE: CA ZIP: 94111 BUSINESS PHONE: 4156582000 MAIL ADDRESS: STREET 1: ONE CALIFORNIA ST CITY: SAN FRANCISCO STATE: CA ZIP: 94111 S-3 1 REGISTRATION ON FORM S-3 Registration No. 333- As filed with the Securities and Exchange Commission on June 11, 1998 =============================================================================== SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 -------------------- FORM S-3 Registration Statement under the Securities Act of 1933 -------------------- AIRTOUCH COMMUNICATIONS, INC. A DELAWARE CORPORATION I.R.S. EMPLOYER NUMBER 94-3213132 ATI FINANCING I ATI FINANCING II A DELAWARE STATUTORY BUSINESS TRUST A DELAWARE STATUTORY BUSINESS TRUST I.R.S. EMPLOYER NUMBER: 94-6689720 I.R.S. EMPLOYER NUMBER: 94-6689721 (Exact names of registrants as specified in their charters) ONE CALIFORNIA STREET SAN FRANCISCO, CALIFORNIA 94111 (415) 658-2000 (Address, including zip code, and telephone numbers, including area code, of registrant's principal executive offices) -------------------- Margaret G. Gill Senior Vice President, Legal, External Affairs and Secretary AirTouch Communications, Inc. One California Street San Francisco, California 94111 (415) 658-2000 (Name, address, including zip code, and telephone number, including area code, of agent for service) Sharon A. Le Duy Nathaniel M. Cartmell III Peter H. Darrow AirTouch Communications, Inc. Katharine A. Martin Cleary, Gottlieb, Steen & Hamilton One California Street Pillsbury Madison & Sutro LLP One Liberty Plaza San Francisco, CA 94111 235 Montgomery Street New York, New York 10006-1470 (415) 658-2000 San Francisco, California 94104 (212) 225-2000 (415) 983-1000
-------------------- Approximate date of commencement of proposed sale to the public: From time to time after this Registration Statement becomes effective. If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box: [ ] If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, please check the following box: [x] If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] __________ If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] ---------- If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. [X] -------------------- Pursuant to Rule 429 under the Securities Act of 1933, as amended, the Prospectus included in this Registration Statement is a combined prospectus relating also to the Registrant's Registration Statement on Form S-3 (File No. 33-62787) previously filed under the Securities Act. This Registration Statement also constitutes post-effective amendment No. 1 to such Registration Statement No. 33-62787 and such post-effective amendment No. 1 shall hereafter become effective concurrently with the effectiveness of this Registration Statement and in accordance with Section 8(c) of the Securities Act. -------------------- CALCULATION OF REGISTRATION FEE
============================================================================================================================== Proposed maximum Proposed maximum Amount to be aggregate offering aggregate offering Amount of Title of each class of securities to be registered registered price per unit (1) price(1) registration fee - ------------------------------------------------------------------------------------------------------------------------------ Common Stock, par value $0.01 (2) - ------------------------------------------------------------------------------------------------------------------------------ Preferred Stock (3) - ------------------------------------------------------------------------------------------------------------------------------ Depositary Shares - ------------------------------------------------------------------------------------------------------------------------------ Debt Securities (4) - ------------------------------------------------------------------------------------------------------------------------------ Warrants (5) - ------------------------------------------------------------------------------------------------------------------------------ Stock Purchase Contracts (6) - ------------------------------------------------------------------------------------------------------------------------------ Stock Purchase Units (7) - ------------------------------------------------------------------------------------------------------------------------------ Preferred Securities of ATI Financing I (8) - ------------------------------------------------------------------------------------------------------------------------------ Preferred Securities of ATI Financing II (8) - ------------------------------------------------------------------------------------------------------------------------------ Guarantees of Preferred Securities (9) - ------------------------------------------------------------------------------------------------------------------------------ Other Units (10) - ------------------------------------------------------------------------------------------------------------------------------ Total $2,500,000,000 (12) 100% (11)(12) $619,500 (12) ============================================================================================================================== (1) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o). (2) Subject to note (11) below, there are being registered hereunder an indeterminate number of shares of Common Stock as may be sold, from time to time, by the Registrant, including, without limitation, sales upon exercise of Warrants, Stock Purchase Contracts and Stock Purchase Units. There are also being registered hereunder an indeterminate number of shares of Common Stock as shall be issuable upon conversion, redemption or exchange of Preferred Stock or Debt Securities registered hereby. The Common Stock being registered includes associated Preferred Stock Purchase Rights. (3) Subject to note (11) below, there are registered hereunder an indeterminate number of shares of Preferred Stock as may be sold, from time to time, by the Registrant, including sales upon exercise of Warrants, Stock Purchase Contracts and Stock Purchase Units, and an indeterminate number of shares of Preferred Stock as shall be issuable upon conversion, redemption or exchange of Debt Securities registered hereby. (4) Subject to note (11) below, there are being registered hereunder an indeterminate principal amount of Debt Securities as may be sold from time to time by the Registrant, including sales upon the exercise of Warrants. If any Debt Securities are being issued at an original issue discount, then the offering price shall be in such greater principal amount as shall result in an aggregate initial offering price not to exceed $2,500,000,000 less the dollar amount of any securities previously issued hereunder. (5) Subject to note (11) below, there are being registered hereunder an indeterminate amount and number of Warrants, representing rights to purchase Debt Securities, Preferred Stock, Common Stock, or shares of capital stock or debt of another corporation or entity. (6) Subject to note (11) below, there are being registered hereunder an indeterminate amount and number of Stock Purchase Contracts, representing rights to purchase Preferred Stock or Common Stock. (7) Subject to note (11) below, there are being registered hereunder an indeterminate amount and number of Stock Purchase Units, representing ownership of Stock Purchase Contracts and Debt Securities, or debt obligations of third parties, including U.S. Obligations or Preferred Securities. (8) Subject to note (11) below, there are being registered hereunder an indeterminate amount of Preferred Securities as may be sold from time to time, including sales pursuant to Stock Purchase Units. (9) Subject to note (11) below, there are being registered hereunder an indeterminate amount of Guarantees of Preferred Securities as may be sold from time to time, including sales pursuant to Stock Purchase Units. In addition, this registration is deemed to include the rights of holders of the Preferred Securities under the Guarantees, the Declaration (including the tax and expense undertakings), the Subordinated Securities and the Indenture, together constituting the backup undertakings as described in this Registration Statement. No separate consideration will be received for the Guarantees or the backup undertakings. (10) Subject to note (11) below, there are being registered hereunder an indeterminate amount of Other Units as may be sold from time to time by the Registrant. The Other Units may consist of any combination of the following securities registered hereby: Common Stock, Preferred Stock, Depositary Shares, Debt Securities, Warrants, Stock Purchase Contracts, Stock Purchase Units, Preferred Securities of ATI Financing I, Preferred Securities of ATI Financing II and Guarantees of Preferred Securities. (11) In no event will the aggregate initial offering price of all securities issued from time to time pursuant to this Registration Statement exceed $2,500,000,000. Any Securities registered hereunder may be sold separately or as units with other securities registered hereunder. (12) As described elsewhere on the cover page of this Registration Statement, the total amount to be registered and proposed maximum aggregate offering price includes $400,000,000 which is being carried forward from the Registrant's previously filed registration statement on Form S-3, File No. 33-62787, and a filing fee of $121,213.00 was previously paid to register such securities under such previously filed registration statement.
-------------------- THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT THAT STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SECTION 8(A), MAY DETERMINE. +++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ + + + Information contained herein is subject to completion or amendment. A + + registration statement relating to these securities has been filed + + with the Securities and Exchange Commission. These securities may not + + be sold nor may offers to buy be accepted prior to the time the + + registration statement becomes effective. This prospectus shall not + + constitute an offer to sell or the solicitation of an offer to buy nor + + shall there be any sale of these securities in any State in which such + + offer, solicitation or sale would be unlawful prior to registration or + + qualification under the securities laws of any such State. + + + +++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ SUBJECT TO COMPLETION, DATED JUNE 11, 1998 PROSPECTUS $2,500,000,000 AIRTOUCH COMMUNICATIONS, INC. COMMON STOCK, PREFERRED STOCK, DEPOSITARY SHARES, DEBT SECURITIES, COMMON STOCK WARRANTS, PREFERRED STOCK WARRANTS, THIRD PARTY WARRANTS, DEBT WARRANTS, STOCK PURCHASE CONTRACTS, STOCK PURCHASE UNITS AND OTHER UNITS ATI FINANCING I ATI FINANCING II PREFERRED SECURITIES, GUARANTEED TO THE EXTENT SET FORTH HEREIN BY AIRTOUCH COMMUNICATIONS, INC. AirTouch Communications, Inc. (the "Company" or "AirTouch"), a Delaware corporation, directly or through agents, dealers or underwriters designated from time to time, or by third parties ("Third Parties") who have acquired securities of the Company in private transactions or otherwise, or counterparties with whom the Company may enter into hedging transactions (the "Counterparties"), may sell from time to time up to $2,500,000,000 (or, if applicable, the equivalent thereof in other currencies) in the aggregate, subject to the limitations set forth below, of (a) shares of common stock, $0.01 par value per share, of the Company ("Common Stock"), (b) shares of preferred stock, $0.01 par value per share, of the Company ("Preferred Stock"), in one or more series, (c) depositary shares of the Company ("Depositary Shares"), (d) unsecured senior or subordinated debt securities of the Company ("Debt Securities"), (e) options, warrants and other rights to purchase shares of Common Stock ("Common Stock Warrants") or shares of Preferred Stock ("Preferred Stock Warrants"), (f) options, warrants and other rights to purchase shares of capital stock or debt of another corporation or other entity ("Third Party Warrants"), (g) options, warrants and other rights to purchase Debt Securities ("Debt Warrants"), (h) stock purchase contracts ("Stock Purchase Contracts") to purchase Common Stock or Preferred Stock (i) stock purchase units ("Stock Purchase Units") each representing ownership of a Stock Purchase Contract and Preferred Stock, Debt Securities, debt obligations of third parties, including the United States of America or agencies or instrumentalities thereof ("U.S. Obligations") or Preferred Securities (as defined below), securing the holder's obligation to purchase Common Stock or Preferred Stock under the Stock Purchase Contract or (j) other units ("Other Units"), each of which may represent any combination of the following: Common Stock, Preferred Stock, Depositary Shares, Debt Securities, Common Stock Warrants, Preferred Stock Warrants, Third Party Warrants, Debt Warrants, Stock Purchase Contracts, Stock Purchase Units, Preferred Securities or Guarantees. ATI Financing I and ATI Financing II, each of which is a statutory business trust formed under the laws of the State of Delaware (each a "Financing Trust"), the Common Securities (as defined herein) of which will be wholly-owned by the Company at the time of issuance of any preferred securities, may offer preferred securities representing undivided beneficial interests in the assets of the respective Financing Trust ("Preferred Securities"). The payment of periodic cash distributions with respect to Preferred Securities of each of the Financing Trusts out of moneys held by each of the Financing Trusts, and payments on liquidation, redemption or otherwise with respect to such Preferred Securities, will be guaranteed by the Company to the extent described herein (each a "Guarantee"). See "Description of the Guarantees." The Company's obligations under the Guarantees are subordinate and junior in right of payment to all senior liabilities of the Company and rank PARI PASSU with the obligations of the Company under any similar guarantee agreements issued by the Company on behalf of holders of Subordinated Debt Securities. In the event a Financing Trust issues Preferred Securities or Common Securities, the proceeds to such Financing Trust from such offering will be invested in subordinated Debt Securities, which will be issued and sold in one or more series by the Company to such Financing Trust or the trustee of such trust. The subordinated Debt Securities purchased by a Financing Trust may be subsequently distributed pro rata to holders of Preferred Securities or Common Securities in connection with the dissolution of such Financing Trust upon the occurrence of certain events as may be described in an accompanying Prospectus Supplement. THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. ADDITIONAL INFORMATION REGARDING THE SECURITIES IS SET FORTH ON THE INSIDE FRONT COVER. FOR A DISCUSSION OF CERTAIN RISKS ASSOCIATED WITH AN INVESTMENT IN THE SECURITIES, SEE "GENERAL DESCRIPTION OF SECURITIES AND RISK FACTORS" ON PAGE 7. THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE SALES OF SECURITIES UNLESS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT. The date of this Prospectus is __________, 1998 The Common Stock, Preferred Stock, Depositary Shares, Debt Securities, Common Stock Warrants, Preferred Stock Warrants, Third Party Warrants, Debt Warrants, Stock Purchase Contracts, Stock Purchase Units, Preferred Securities, Guarantees and Other Units are collectively referred to herein as the "Securities." The Company, either Financing Trust, Third Parties or Counterparties may sell the Securities to or through underwriters, dealers or agents or directly to purchasers. See "Plan of Distribution." The Company and each Financing Trust each reserve the sole right to accept and, together with their respective agents from time to time, to reject in whole or in part any proposed purchase of Securities to be made directly or through agents. The accompanying Prospectus Supplement sets forth, among other things, the names of any underwriters, dealers or agents involved in the sale of the Securities in respect of which this Prospectus is being delivered, and any applicable fee, commission or discount arrangements with them. -------------------- All specific terms of the offering and sale of Securities, including the initial public offering price, aggregate amount, listing on any securities exchange or quotation system, risk factors and the agents, dealers or underwriters, if any, to be utilized in connection with the sale of the Securities, will be set forth in an accompanying Prospectus Supplement ("Prospectus Supplement"). With respect to the Preferred Stock, the related Prospectus Supplement will set forth, among other things, the specific designation, rights, preferences, privileges and restrictions thereof, including dividend rate or rates (or method of ascertaining the same), dividend payment dates, voting rights, liquidation preference, and any conversion, exchange, redemption or sinking fund provisions. With respect to the Debt Securities, the related Prospectus Supplement will set forth, among other things, the specific designation, rights and restrictions, including whether they are senior or subordinated, the currencies or currency units in which they are denominated, the aggregate principal amount, the maturity, rate or rates of interest (or method of ascertaining the same) and time of payment thereof, and any conversion, exchange, redemption or sinking fund provisions. With respect to the Common Stock Warrants, Preferred Stock Warrants, Third Party Warrants and Debt Warrants, the related Prospectus Supplement will contain, among other things, a description of the Common Stock, Preferred Stock, capital stock or debt of such third party and Debt Securities, respectively, for which each warrant will be exercisable and the exercise price, duration, detachability, call provisions and other principal terms of such Warrants. With respect to the Stock Purchase Contracts, the related Prospectus Supplement will set forth, among other things, the designation and number of shares of Common Stock or Preferred Stock issuable thereunder, the purchase price of the Common Stock or Preferred Stock, the date or dates on which the Common Stock or Preferred Stock is required to be purchased by the holders of the Stock Purchase Contracts, any periodic payments required to be made by the Company to the holders of the Stock Purchase Contracts or vice versa, and the terms of the offering and sale thereof. In the case of Stock Purchase Units, the related Prospectus Supplement will set forth, among other things, the specific terms of the Stock Purchase Contracts and any Preferred Stock, Debt Securities or debt obligations of third parties or Preferred Securities securing the holder's obligation to purchase the Preferred Stock or Common Stock under the Stock Purchase Contracts, and the terms of the offering and sale thereof. With respect to the Preferred Securities, the related Prospectus Supplement will set forth, among other things, the specific designation, rights, preferences, privileges and restrictions thereof, including dividend rate or rates (or method of ascertaining the same), dividend payment dates, voting rights, liquidation preference, and any conversion, exchange, redemption or sinking fund provisions, the terms upon which the proceeds of the sale of the Preferred Securities will be used to purchase a specific series of subordinated Debt Securities of the Company and the terms upon which the obligations of the relevant Financing Trust to make periodic cash distributions on the Preferred Securities or make payments upon liquidation or dissolution of such Financing Trust or upon redemption of the Preferred Securities, to the extent funds are available therefor, shall be unconditionally guaranteed by AirTouch. With respect to the Other Units, the related Prospectus Supplement will set forth, among other things, the specific terms of any Common Stock, Preferred Stock, Common Stock Warrants, Preferred Stock Warrants, Third Party Warrants, Debt Warrants, Stock Purchase Contracts, Stock Purchase Units, Preferred Securities and Guarantees, and the terms of the offering and sale thereof. -------------------- CERTAIN PERSONS PARTICIPATING IN THIS OFFERING MAY ENGAGE IN TRANSACTIONS THAT STABILIZE, MAINTAIN, OR OTHERWISE AFFECT THE PRICE OF THE SECURITIES AND THE COMMON STOCK OF THE COMPANY. SUCH TRANSACTIONS MAY INCLUDE STABILIZING TRANSACTIONS, THE PURCHASE OF SECURITIES TO COVER SYNDICATE SHORT POSITIONS -2- AND THE IMPOSITION OF PENALTY BIDS. FOR A DESCRIPTION OF THESE ACTIVITIES, SEE "PLAN OF DISTRIBUTION." -3- INDEX OF TERMS
Page on Which Page on Which Term Term is Defined Term Term is Defined - ---- --------------- ---- --------------- Acquiring Party........................ 9 Preferred Stock............................ 1 AirTouch............................... 1 Preferred Stock Warrants................... 1 Certificate of Incorporation........... 8 Prospectus Supplement...................... 2 Code................................... 31 Property Trustee........................... 7 Commission............................. 5 Redemption Price........................... 9 Common Securities..................... 6 Registration Statement..................... 5 Common Securities Guarantees........... 27 Regular Trustees........................... 7 Common Stock........................... 1 Rights..................................... 9 Common Stock Warrants.................. 1 Rights Plan ............................... 9 Company................................ 1 Securities................................. 2 Counterparties......................... 1 Securities Act............................. 5 Debt Depositary........................ 14 Senior Debt Securities .................... 13 Debt Securities ....................... 1 Senior Indenture........................... 13 Debt Warrant Agent .................... 24 Sponsor.................................... 6 Debt Warrant Agreement................. 24 Stock Purchase Contracts .................. 1 Debt Warrants ......................... 1 Stock Purchase Unit........................ 1 Declaration ........................... 6 Stock Warrant Agent........................ 21 Delaware Trustee ...................... 7 Stock Warrant Agreement ................... 21 Deposit Agreement...................... 11 Stock Warrant Provisions .................. 21 Depositary............................. 11 Stock Warrants............................. 21 Depositary Receipts ................... 11 Subordinated Debt Securities .............. 13 Depositary Shares...................... 11 Subordinated Indenture..................... 13 ERISA.................................. 30 Third Parties.............................. 1 Event of Default....................... 15 Third Party Company........................ 14 Exchange Act........................... 5 Third Party Registration Statement ........ 14 Financing Trust....................... 1 Third Party Securities .................... 14 Financing Trustees..................... 7 Third Party Warrant Agent.................. 22 Global Debt Securities................. 14 Third Party Warrant Agreement.............. 22 Guarantees............................. 1 Third Party Warrants ...................... 1 Guarantee Payments..................... 26 Trust Indenture Act........................ 7 Guarantee Trustee...................... 26 Trust Securities .......................... 6 Indentures............................ 13 U.S. Dollar, Dollar, U.S. $, $............. 4 Mandatory Debt Securities.............. 14 U.S. Obligations........................... 1 Other Units............................ 1 Voluntary Debt Securities.................. 14 Preferred Securities................... 1
-------------------- References herein to "U.S. Dollar," "Dollar," "U.S. $" or "$" are to the lawful currency of the United States of America. -4- AVAILABLE INFORMATION The Company is subject to the informational requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance therewith files reports and other information with the Securities and Exchange Commission (the "Commission"). Reports, proxy statements and other information concerning AirTouch Communications, Inc. can be inspected and copied at the public reference facilities maintained by the Commission at its offices at Judiciary Plaza, 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549, as well as the Regional Offices of the Commission located at Seven World Trade Center, 13th Floor, New York, New York 10048 and CitiCorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such material can be obtained at prescribed rates from the Public Reference Section of the Commission at its principal office at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549. In addition, such reports, proxy statements and other information may be accessed electronically at the Commission's site on the World Wide Web at http://www.sec.gov. Such reports, proxy statements and other information can also be inspected at the offices of the New York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005 and at the offices of the Pacific Exchange, 301 Pine Street, San Francisco, California 94104. The Company and the Financing Trusts have filed with the Commission a registration statement on Form S-3 (the "Registration Statement") under the Securities Act of 1933, as amended (the "Securities Act"), with respect to the Securities. This Prospectus does not contain all of the information set forth in the Registration Statement and the exhibits and schedules thereto, certain parts of which are omitted in accordance with the rules and regulations of the Commission. For further information with respect to the Company, the Financing Trusts and the Securities being offered hereby, reference is made to the Registration Statement, which can be inspected at the public reference facilities at the offices of the Commission set forth above. Any statements contained herein concerning the provision of any document filed as an exhibit to the Registration Statement or otherwise filed with the Commission and incorporated by reference herein are not necessarily complete, and, in each instance, reference is made to the copy of such document so filed for a more complete description of the matter involved. Each such reference is qualified in its entirety by such referenced documents. No separate financial statements of the Financing Trusts have been included herein. The Company does not consider that such financial statements would be material to holders of the Securities because: (i) the Company, a reporting company under the Exchange Act, owns, directly or indirectly, all of the voting securities of each Financing Trust, (ii) neither Financing Trust has any independent operations but exists for the sole purpose of issuing securities representing undivided beneficial interests in the assets of such Financing Trust and investing the proceeds thereof in subordinated Debt Securities, and (iii) the obligations of each Financing Trust to make periodic cash payments on Preferred Securities and payments upon liquidation or dissolution of such Financing Trust or upon redemption of the Preferred Securities, to the extent funds are available therefor, are unconditionally guaranteed by the Company. See "Description of the Guarantees," "Description of the Preferred Securities" and "Description of the Debt Securities--Subordinated Debt Securities." -------------------- INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The following documents filed with the Commission by the Company pursuant to the Exchange Act are incorporated herein by reference: (a) the Company's Annual Report on Form 10-K for the year ended December 31, 1997; (b) the Company's Current Report on Form 8-K dated January 29, 1998; (c) the Company's Current Report on Form 8-K dated April 6, 1998, as amended on April 23, 1998; (d) the Company's Current Report on Form 8-K dated April 27, 1998; (e) the Company's Current Report on Form 8-K dated April 29, 1998 (filed as of April 29, 1998); -5- (f) the Company's Current Report on Form 8-K dated April 29, 1998 (filed as of May 1, 1998); (g) the Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 1998. (h) the Company's Current Report on Form 8-K dated May 28, 1998; and (i) the Company's Current Report on Form 8-K dated May 29, 1998. All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the effective date of the Registration Statement shall be deemed to be incorporated by reference in this Prospectus and to be a part hereof from the date of filing of such documents. Any statement contained herein or in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Prospectus to the extent that a statement contained herein or in any subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Prospectus. The Company will provide without charge to each person to whom a copy of this Prospectus has been delivered, and who makes a written or oral request, a copy of any and all of the information that has been incorporated by reference in this Prospectus or any Prospectus Supplement, excluding exhibits. Requests should be directed to: Investor Relations, AirTouch Communications, Inc., One California Street, San Francisco, California 94111, telephone number: (415) 658-2000. AIRTOUCH COMMUNICATIONS, INC. AirTouch Communications, Inc. is one of the world's leading wireless telecommunications companies, with significant cellular interests in the United States, Western Europe and Asia. In the United States, the Company controls or shares control over cellular systems in fifteen of the thirty largest markets: Los Angeles, Detroit, San Francisco, Atlanta, San Diego, Minneapolis, Phoenix, Seattle, Denver, Cleveland, Portland (Oregon), San Jose, Kansas City, Cincinnati and Sacramento. Internationally, the Company holds significant ownership interests, with board representation and substantial operating influence, in cellular systems in Belgium, Egypt, India (Madras and Madhya Pradesh), Italy, Japan, Poland, Portugal, Romania, South Korea, Spain and Sweden. The Company is also one of the leading providers of paging services in the United States. The Company's executive offices are located at One California Street, San Francisco, California, 94111, telephone number: (415) 658-2000. THE FINANCING TRUSTS Each of ATI Financing I and ATI Financing II is a statutory business trust formed under Delaware law pursuant to (i) a separate declaration of trust executed by the Company, as sponsor for such trust (the "Sponsor") and the Financing Trustees (as defined herein) of such trust and (ii) the filing of a certificate of trust with the Secretary of State of the State of Delaware on September 19, 1995. The declarations will be amended and restated in their entirety (each, as so amended and restated, a "Declaration") substantially in the form filed as an exhibit to the Registration Statement of which this Prospectus is a part and will be qualified as Indentures under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"). Each Financing Trust exists for the exclusive purposes of (i) issuing the Preferred Securities and common securities representing undivided beneficial interests in the assets of the Trust (the "Common Securities" and, together with the Preferred Securities, the "Trust Securities"), (ii) investing the proceeds received by such Financing Trust from the sale of the Trust Securities in subordinated Debt Securities and (iii) engaging in only those other activities necessary or incidental thereto. All of the Common Securities will be directly or indirectly owned by the Company. The Common Securities will rank PARI PASSU, and payments will be made thereon pro rata, with the Preferred Securities, except that, upon an event of default under a Declaration, the rights of the holders of the Common Securities to payment in respect of distributions and payments upon liquidation, redemption and otherwise will be subordinated to the rights of the holders of the Preferred Securities. The Company will directly or indirectly acquire Common Securities in an aggregate liquidation amount equal to 3% of the total capital of each Financing -6- Trust. Each Financing Trust has a term of approximately 55 years but may terminate earlier, as provided in the relevant Declaration. Each Financing Trust's business and affairs will be conducted by the trustees (the "Financing Trustees") appointed by the Company as the direct or indirect holders of all the Common Securities. The holder of the Common Securities of a Financing Trust will be entitled to appoint, remove or replace any of, or increase or reduce the number of, the Financing Trustees therefor. The duties and obligations of the Financing Trustees shall be governed by the Declaration of such Financing Trust. A majority of the Financing Trustees of each Financing Trust will be persons who are employees or officers or who are affiliated with the Company (the "Regular Trustees"). In certain limited circumstances set forth in a Prospectus Supplement, the holders of the majority of the Preferred Securities will be entitled to appoint one additional Regular Trustee who need not be an employee or officer of or otherwise affiliated with the Company. A financial institution that is not affiliated with the Company and has combined capital and surplus of not less than $100,000,000 shall act as property trustee and as indenture trustee for each Financing Trust for the purposes of the Trust Indenture Act, pursuant to the terms set forth in a Prospectus Supplement (the "Property Trustee"). In addition, unless the Property Trustee maintains a principal place of business in the State of Delaware and otherwise meets the requirements of applicable law, each Financing Trust will have a trustee which has a principal place of business or reside in the State of Delaware (the "Delaware Trustee"). The Company will pay all fees and expenses related to the Financing Trusts and the offering of the Trust Securities. The office of the Delaware Trustee for each Financing Trust is The Bank of New York (Delaware), White Clay Center, Route 273, Newark, Delaware. The address for each Financing Trust is c/o the Company, the Sponsor of each Financing Trust, at One California Street, San Francisco, California 94111. USE OF PROCEEDS Unless otherwise indicated in the applicable Prospectus Supplement, the net proceeds from the sale of Securities offered hereby will be used for general corporate purposes. RATIO OF EARNINGS TO FIXED CHARGES The following tables set forth the ratio of earnings to combined fixed charges on historic and pro forma bases from continuing operations of the Company for the periods indicated. For the purpose of calculating this ratio, earnings consist of income before income taxes, preferred dividends and fixed charges included in pre-tax income, adjusted for minority interests in income of certain consolidated wireless systems and for equity in net losses and distributed net income of certain less-than-fifty-percent-owned unconsolidated wireless systems. Fixed charges include interest on indebtedness, the portion of rental expense representative of the interest factor and preferred stock dividend requirements. Historical:
YEAR ENDED DECEMBER 31, THREE MONTHS ENDED MARCH 31, --------------------------------- ---------------------------- 1993 1994 1995 1996 1997 1998 ---- ---- ---- ---- ---- ---- 6.0 10.4 7.2 4.0 5.2 5.1 Pro Forma: YEAR ENDED DECEMBER 31, 1997(1) THREE MONTHS ENDED MARCH 31, 1998(2) ---------------------------- --------------------------------- 2.3 2.1 - -------- 1 Ratio of earnings to combined fixed charges and preferred stock dividends from continuing operations of AirTouch for the period indicated on a pro forma basis, after giving effect to the merger of U S WEST Media Group, Inc.'s cellular and PCS business into the Company (the "Merger") as though it had been effective on January 1, 1997. 2 Ratio of earnings to combined fixed charges and preferred stock dividends from continuing operations of AirTouch for the period indicated on a pro forma basis, after giving effect to the Merger as though it had been effective on January 1, 1998.
-7- GENERAL DESCRIPTION OF SECURITIES AND RISK FACTORS The Company may offer under this Prospectus shares of Common Stock or Preferred Stock, Depositary Shares, Debt Securities, Common Stock Warrants, Preferred Stock Warrants, Third Party Warrants, Debt Warrants, Stock Purchase Contracts, Stock Purchase Units or Other Units or any combination of the foregoing, either individually or as units consisting of one or more Securities. Each Financing Trust may offer Preferred Securities under this Prospectus. The aggregate offering price of Securities offered by the Company or any Financing Trust under this Prospectus will not exceed $2,500,000,000 (or the equivalent thereof in other currencies). CERTAIN OF THE SECURITIES TO BE OFFERED HEREBY THEMSELVES INVOLVE A HIGH DEGREE OF RISK. SUCH RISKS WILL BE SET FORTH IN THE PROSPECTUS SUPPLEMENT RELATING TO SUCH SECURITY. IN ADDITION, CERTAIN RISK FACTORS RELATING TO THE COMPANY'S BUSINESS ARE SET FORTH IN THE COMPANY'S ANNUAL REPORT ON FORM 10-K FOR THE FISCAL YEAR ENDED DECEMBER 31, 1997, BEGINNING ON PAGE 3 UNDER THE HEADING "INVESTMENT CONSIDERATIONS." DESCRIPTION OF THE COMMON STOCK GENERAL Under the Company's Certificate of Incorporation (the "Certificate of Incorporation"), the Company is authorized to issue up to 1.1 billion shares of Common Stock. The Common Stock is not redeemable, does not have any conversion rights and is not subject to call. Holders of shares of Common Stock have no preemptive rights to maintain their percentage of ownership in future offerings or sales of stock of the Company. Holders of shares of Common Stock have one vote per share in all elections of directors and on all other matters submitted to a vote of stockholders of the Company. The holders of Common Stock are entitled to receive dividends, if any, as and when declared from time to time by the Board of Directors of the Company out of funds legally available therefor. Upon liquidation, dissolution or winding up of the affairs of the Company, the holders of Common Stock will be entitled to participate equally and ratably, in proportion to the number of shares held, in the net assets of the Company available for distribution to holders of Common Stock. The shares of Common Stock currently outstanding are fully paid and nonassessable. CERTAIN CERTIFICATE OF INCORPORATION PROVISIONS Certain provisions in the Company's Certificate of Incorporation and Bylaws may have the effect of delaying, deferring or preventing a change in control of the Company. These provisions require that the Company's Board of Directors be divided into three classes that are elected for staggered three-year terms; provide that stockholders may act only at annual or special meetings and may not act by written consent; do not provide for cumulative voting in the election of directors; authorize the directors of the Company to determine the size of the Board of Directors; require a vote of 66-2/3% of the shares outstanding for the amendment of any of the foregoing provisions; require that stockholder nominations for directors be made to the Nominating Committee of the Company prior to a meeting of stockholders or pursuant to timely notice; provide that special meetings of stockholders may be called only by certain officers of the Company or by the Board of Directors; and authorize the Board of Directors to establish one or more series of Preferred Stock, without any further stockholder approval, having rights, preferences, privileges and limitations that could impede or discourage the acquisition of control of the Company. The Company's Certificate of Incorporation provides that outstanding shares of the Company's stock are subject to redemption by the Company, by action of the Board of Directors, if in the judgment of the Board of Directors such action should be taken pursuant to applicable law to the extent necessary to prevent the loss or secure the reinstatement of any license or franchise issued to the Company or any subsidiary by any governmental agency to conduct any portion of the business of the Company or any subsidiary, which license or franchise is conditioned upon some or all of the holders of the Company's stock possessing prescribed qualifications. The redemption price is to be equal to the fair market value of such shares. The redemption price may be paid in cash, redemption securities or any combination thereof. -8- RIGHTS AGREEMENT The Company's Board of Directors has adopted a stockholder rights plan (the "Rights Plan") that provides for the distribution of rights ("Rights") to holders of outstanding shares of Common Stock. Except as set forth below, each Right, when exercisable, entitles the holder thereof to purchase from the Company one one-hundredth of a share of Series A Preferred Stock at a price of $80 per share, subject to adjustment. The Rights do not have voting rights. Initially, the Rights are attached to all Common Stock certificates representing shares then outstanding, and no separate Rights certificates will be distributed. The Rights will not separate from the Common Stock and will not be exercisable until the earlier of either (i) a public announcement that a person or group of affiliated or associated persons has acquired, or obtained the right to acquire, beneficial ownership of securities representing 10% or more of the outstanding shares of Common Stock (an "Acquiring Party") or (ii) 10 days following the commencement of (or a public announcement of an intention to make) a tender offer or exchange offer which would result in any person or group of affiliated persons becoming an Acquiring Party. The Rights will expire on the earliest of (x) September 19, 2004, (y) consummation of a merger transaction with a person or group acquiring Common Stock pursuant to a Permitted Offer (defined below), or (z) redemption by the Company, as described below. In the event that a person has become an Acquiring Party, proper provision will be made so that each holder of a Right (other than an Acquiring Party) will thereafter have the right (the "Subscription Right") for a 60-day period to receive, upon the exercise of the Right by the holder at the then current exercise price, that number of shares of Common Stock of the Company (or of Series A Preferred Stock or other common stock equivalents if all Common Stock has been issued) which would have a market value at the time of such transaction of two times the exercise price for each Right. This provision of the Rights Plan does not apply, however, to a tender offer or exchange offer for all outstanding shares of the Company's Common Stock at a price and on terms determined by at least a majority of the disinterested members of the Board of Directors to be in the best interests of the Company and its stockholders (a "Permitted Offer"). If, after a public announcement has been made that a person has become an Acquiring Party, either (i) the Company is involved in a merger or other business combination (other than with a person who acquired shares pursuant to a Permitted Offer) or (ii) 50% or more of the Company's assets are sold in one or a series of transactions, proper provision will be made so that each holder of a Right (other than an Acquiring Party) will thereafter have the right to receive, upon the exercise of the Right by the holder at the then current exercise price, that number of shares of Common Stock of the Company or of the acquiring company (whichever remains as the surviving corporation under the terms of the merger or consolidation) which would have a market value at the time of such transaction of two times the exercise price for each Right. The Board of Directors, at its option, may at any time after a person becomes an Acquiring Party (but not after the acquisition by such person of 50% or more of the outstanding Common Stock) exchange on behalf of the Company all or part of the then outstanding and exercisable Rights for shares of Common Stock (or Common Stock equivalents), at an exchange ratio of one share of Common Stock or equivalent for each Right. At any time prior to the earlier to occur of either (i) a person becoming an Acquiring Party or (ii) the expiration of the Rights, the Company may redeem the Rights in whole, but not in part, at a price of $0.01 per Right (the "Redemption Price"). After a person becomes an Acquiring Party, the Company may also redeem the Rights in whole, but not in part, at the Redemption Price (x) if such redemption is incidental to a merger or other business combination transaction or series of transactions involving the Company but not involving an Acquiring Party or certain other related parties or (y) following an event giving rise to, and the expiration of the 60-day exercise period for, the Subscription Right if and for as long as any Acquiring Party owns less than 10% of the Company's voting securities. The Rights Plan may have the effect of delaying, deferring or preventing a change in control of the Company without further action of the stockholders and therefore could have a depressive effect on the price of the Common Stock. -9- LISTING The Common Stock is listed on the New York Stock Exchange and the Pacific Exchange under the symbol "ATI." DESCRIPTION OF THE PREFERRED STOCK Under the Certificate of Incorporation, the Board of Directors of the Company may direct the issuance of up to 50 million shares of Preferred Stock in one or more series and with rights, preferences, privileges and restrictions, including dividend rights, voting rights, conversion rights, terms of redemption and liquidation preferences, that may be fixed or designated by the Board of Directors from time to time pursuant to a certificate of designation without any further vote or action by the Company's stockholders. The issuance of Preferred Stock may have the effect of delaying, deferring or preventing a change in control of the Company. Preferred Stock, upon issuance against full payment of the purchase price therefor, will be fully paid and nonassessable. The specific terms of a particular series of Preferred Stock will be described in the Prospectus Supplement relating to that series. The description of Preferred Stock set forth below and the description of the terms of a particular series of Preferred Stock set forth in the related Prospectus Supplement do not purport to be complete and are qualified in their entirety by reference to the certificate of designation relating to that series. The related Prospectus Supplement will contain a description of certain United States Federal income tax consequences relating to the purchase and ownership of the series of Preferred Stock described in such Prospectus Supplement. The rights, preferences, privileges and restrictions of the Preferred Stock of each series will be fixed by the certificate of designation relating to such series. A Prospectus Supplement relating to each series will specify the terms of the Preferred Stock as follows: (a) The maximum number of shares to constitute the series and the distinctive designation thereof; (b) The annual dividend rate, if any, on shares of the series, whether such rate is fixed or variable or both, the date or dates from which dividends will begin to accrue or accumulate, the conditions for payment of dividends, and whether dividends will be cumulative; (c) The price at and the terms and conditions on which the shares of the series may be redeemed, including the time during which shares of the series may be redeemed and any accumulated dividends thereon that the holders of shares of the series shall be entitled to receive upon the redemption thereof; (d) The liquidation preference, if any, and any accumulated dividends thereon, that the holders of shares of the series shall be entitled to receive upon the liquidation, dissolution or winding up of the affairs of the Company; (e) Whether or not the shares of the series will be subject to operation of a retirement or sinking fund, and, if so, the extent and manner in which any such fund shall be applied to the purchase or redemption of the shares of the series, and the terms and provisions relating to the operation of such fund; (f) The terms and conditions, if any, on which the shares of the series shall be convertible into or exchangeable for shares of any other class or classes of capital stock of the Company or a third party or any series of any other class or classes, or of any other series of the same class, including the price or prices or the rate or rates of conversion or exchange and the method, if any, of adjusting the same; (g) The voting rights, if any, on the shares of the series; and -10- (h) Any or all other preferences and relative, participating, optional or other special rights or qualifications, limitations or restrictions thereof. As described under "Description of the Depositary Shares," the Company may, at its option, elect to offer Depositary Shares evidenced by depositary receipts ("Depositary Receipts"), each representing a fractional interest (to be specified in the Prospectus Supplement relating to the particular series of the Preferred Stock) in a share of the particular series of the Preferred Stock issued and deposited with a Depositary (as defined below). The Company's Certificate of Incorporation provides that outstanding shares of the Company's stock are subject to redemption by the Company, by action of the Board of Directors, if in the judgment of the Board of Directors such action should be taken pursuant to applicable law to the extent necessary to prevent the loss or secure the reinstatement of any license or franchise issued to the Company or any subsidiary by any governmental agency to conduct any portion of the business of the Company or any subsidiary, which license or franchise is conditioned upon some or all of the holders of the Company's stock possessing prescribed qualifications. The redemption price is to be equal to the fair market value of such shares. The redemption price may be paid in cash, redemption securities or any combination thereof. DESCRIPTION OF THE DEPOSITARY SHARES The description set forth below and in the related Prospectus Supplement of certain provisions of the Deposit Agreement (as defined below) and of the Depositary Shares and Depositary Receipts does not purport to be complete and is subject to and qualified in its entirety by reference to the forms of Deposit Agreement and Depositary Receipts relating to each series of the Preferred Stock which have been or will be filed with the Commission in connection with the offering of fractional interests in such series of the Preferred Stock. GENERAL The Company may, at its option, elect to offer fractional interests in shares of Preferred Stock, rather than shares of Preferred Stock. In the event such option is exercised, the Company will provide for the issuance by a Depositary to the public of receipts for Depositary Shares, each of which will represent a fractional interest as set forth in the Prospectus Supplement relating to a particular series of the Preferred Stock. The shares of any series of the Preferred Stock underlying the Depositary Shares will be deposited under a separate Deposit Agreement (the "Deposit Agreement") between the Company and a bank or trust company selected by the Company having its principal office in the United States and having a combined capital and surplus of at least $100,000,000 (the "Depositary"). The Prospectus Supplement relating to a series of Depositary Shares will set forth the name and address of the Depositary. Subject to the terms of the Deposit Agreement, each owner of a Depositary Share will be entitled, in proportion to the applicable fractional interest in a share of the Preferred Stock underlying such Depositary Shares, to all the rights and preferences of the Preferred Stock underlying such Depositary Shares (including dividend, voting, redemption, conversion and liquidation rights). The Depositary Shares relating to any series of Preferred Stock will be evidenced by Depositary Receipts issued pursuant to the related Deposit Agreement. Pending the preparation of definitive Depositary Receipts, the Depositary may, upon the written order of the Company, issue temporary Depositary Receipts substantially identical to (and entitling the holders thereof to all the rights pertaining to) the definitive Depositary Receipts but not in definitive form. Definitive Depositary Receipts will be prepared thereafter without unreasonable delay, and temporary Depositary Receipts will be exchangeable for definitive Depositary Receipts at the Company's expense. Upon surrender of Depositary Receipts at the office of the Depositary and upon payment of the charges provided in the related Deposit Agreement and subject to the terms thereof, a holder of Depositary Shares is entitled to have the Depositary deliver to such holder the whole shares of Preferred Stock underlying the Depositary Shares evidenced by the surrendered Depositary Receipts. -11- DIVIDENDS AND OTHER DISTRIBUTIONS The Depositary will distribute all cash dividends and other cash distributions received in respect of the Preferred Stock to the record holders of the Depositary Shares relating to such Preferred Stock in proportion to the number of such Depositary Shares owned by such holders on the relevant record date. The Depositary shall distribute only such amount, however, as can be distributed without attributing to any holder of Depositary Shares a fraction of one cent, and any balance not so distributed shall be added to and treated as part of the next sum received by the Depositary for distribution to record holders of Depositary Shares. In the event of a distribution other than in cash, the Depositary will distribute property received by it to the record holders of Depositary Shares entitled thereto, unless the Depositary determines that it is not feasible to make such distribution, in which case the Depositary may, with the approval of the Company, sell such property and distribute the net proceeds from such sale to such holders. REDEMPTION OF DEPOSITARY SHARES If a series of the Preferred Stock underlying the Depositary Shares is subject to redemption, the Depositary Shares will be redeemed from the proceeds received by the Depositary resulting from the redemption, in whole or in part, of such series of the Preferred Stock held by the Depositary. The Depositary shall mail notice of redemption not less than 30 and not more than 60 days prior to the date fixed for redemption to the record holders of the Depositary Shares to be so redeemed at their respective addresses appearing in the Depositary's books. The redemption price per Depositary Share will be equal to the applicable fraction of the redemption price per share payable with respect to such series of the Preferred Stock. Whenever the Company redeems shares of Preferred Stock held by the Depositary, the Depositary will redeem as of the same redemption date the number of Depositary Shares relating to shares of Preferred Stock so redeemed. If less than all of the Depositary Shares are to be redeemed, the Depositary Shares to be redeemed will be selected by lot or pro rata as may be determined by the Depositary. After the date fixed for redemption, the Depositary Shares so called for redemption will no longer be deemed to be outstanding and all rights of the holders of the Depositary Shares will cease, except the right to receive the payments or other property to which the holders of such Depositary Shares are entitled upon such redemption upon surrender to the Depositary of the Depositary Receipts evidencing such Depositary Shares. VOTING THE PREFERRED STOCK Upon receipt of notice of any meeting at which the holders of the Preferred Stock underlying the Depositary Shares are entitled to vote, the Depositary will mail the information contained in such notice of meeting to the record holders of such Depositary Shares. Each record holder of such Depositary Shares on the record date (which will be the same date as the record date for the Preferred Stock) will be entitled to instruct the Depositary as to the exercise of the voting rights pertaining to the number of shares of Preferred Stock underlying such holder's Depositary Shares. The Depositary will endeavor, insofar as practicable, to vote the number of shares of Preferred Stock underlying such Depositary Shares in accordance with such instructions, and the Company will agree to take all action which may be deemed necessary by the Depositary in order to enable the Depositary to do so. The Depositary will abstain from voting shares of Preferred Stock to the extent it does not receive specific instructions from the holders of Depositary Shares relating to such Preferred Stock. AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT The form of Depositary Receipt evidencing the Depositary Shares relating to any series of Preferred Stock and any provision of the related Deposit Agreement may at any time be amended by agreement between the Company and the Depositary named therein. However, any amendment which materially and adversely alters the rights of the existing holders of Depositary Shares relating to any series of Preferred Stock will not be effective unless such amendment has been approved by the record holders of at least a majority of such Depositary Shares then outstanding. A Deposit Agreement may be terminated by the Company or the Depositary named therein only if (i) all outstanding Depositary Shares relating thereto have been redeemed or (ii) there has -12- been a final distribution in respect of the Preferred Stock underlying the Depositary Shares relating thereto in connection with any liquidation, dissolution or winding up of the Company and such distribution has been distributed to the holders of the related Depositary Shares. CHARGES OF DEPOSITARY The Company will pay all transfer and other taxes and governmental charges arising solely from the existence of the depositary arrangements. The Company will pay charges of the Depositary in connection with the initial deposit of the Preferred Stock and any redemption of the Preferred Stock. Holders of Depositary Shares will pay transfer and other taxes and governmental charges and such other charges as are expressly provided in the related Deposit Agreement to be for their accounts. MISCELLANEOUS The Depositary will forward to the holders of Depositary Shares all reports and communications from the Company which are delivered to the Depositary and which the Company is required to furnish to the holders of the underlying Preferred Stock. Neither the Depositary nor the Company will be liable if it is prevented or delayed by law or any circumstance beyond its control from performing its obligations under the Deposit Agreement. The obligations of the Company and the Depositary under the Deposit Agreement will be limited to performance in good faith of their duties thereunder and they will not be obligated to prosecute or defend any legal proceeding in respect of any Depositary Shares or underlying Preferred Stock unless satisfactory indemnity is furnished. They may rely upon written advice of counsel or accountants, on information provided by persons presenting Preferred Stock for deposit, holders of Depositary Shares or other persons believed to be competent and on documents believed to be genuine. RESIGNATION AND REMOVAL OF DEPOSITARY The Depositary under a Deposit Agreement may resign at any time by delivering to the Company notice of its election to do so, and the Company may at any time with notice remove such Depositary, any such resignation or removal to take effect upon the appointment of a successor Depositary and its acceptance of such appointment. Such successor Depositary must be appointed within 90 days after delivery of the notice of resignation or removal and must be a bank or trust company having its principal office in the United States and having a combined capital and surplus of at least $100,000,000. DESCRIPTION OF THE DEBT SECURITIES GENERAL The Company may offer under this Prospectus Senior Debt Securities (as defined below) or Subordinated Debt Securities (as defined below) or any combination of the foregoing. The Debt Securities will represent unsecured general obligations of the Company, and will either (i) rank prior to all subordinated indebtedness of the Company and PARI PASSU with all other unsecured indebtedness of the Company (the "Senior Debt Securities") or (ii) be subordinate in right of payment to certain other debt obligations of the Company (the "Subordinated Debt Securities"). The Senior Debt Securities and the Subordinated Debt Securities may be issued under indentures substantially in the forms filed as exhibits to the Registration Statement. In this Prospectus, the indenture relating to Senior Debt Securities is referred to as the "Senior Indenture," the indenture relating to Subordinated Debt Securities is referred to as the "Subordinated Indenture," and the Senior Indenture and the Subordinated Indenture are collectively referred to as "Indentures." Neither of the Indentures will limit the amount of Debt Securities that may be issued thereunder, and each Indenture will provide that Debt Securities may be issued thereunder up to an aggregate principal amount authorized from time to time by the Company and may be payable in any currency or currency unit designated by the Company or in amounts determined by reference to an index. The following summaries of certain provisions in the Indentures pursuant to which Debt Securities are issued and of the Debt Securities, as the case may be, do not purport to be complete. Such -13- summaries make use of certain terms defined in the Indentures and are qualified in their entirety by reference to the applicable form of Indenture or Debt Security, respectively, filed as an exhibit to the Registration Statement. Reference is made to the applicable Prospectus Supplement for any series of Debt Securities for the following terms: (i) the designation of such series of Debt Securities; (ii) the aggregate principal amount of such series of Debt Securities; (iii) the stated maturity or maturities for payment of principal of such series of Debt Securities and any sinking fund or analogous provisions; (iv) the rate or rates at which such series of Debt Securities shall bear interest or the method of calculating such rate or rates of interest and the interest payment dates for such series of Debt Securities; (v) the currencies, currency unit or index in or according to which principal of and interest and any premium on such series of Debt Securities shall be payable (if other than U.S. Dollars); (vi) the redemption date or dates, if any, and the redemption price or prices and other applicable redemption provisions for such series of Debt Securities; (vii) whether such series of Debt Securities shall be issued as one or more global debt securities ("Global Debt Securities"), and, if so, the identity of the depositary (the "Debt Depositary") for such Global Debt Security or Debt Securities; (viii) if not issued as one or more Global Debt Securities, the denominations in which such series of Debt Securities shall be issuable (if other than denominations of $1,000 and any integral multiple thereof); (ix) the date from which interest on such series of Debt Securities shall accrue; (x) the basis upon which interest on such series of Debt Securities shall be computed (if other than on the basis of a 360-day year of twelve 30-day months); (xi) if other than the principal amount thereof, the portion of the principal amount of such series of Debt Securities which shall be payable upon declaration of acceleration of the maturity thereof pursuant to the Indenture; (xii) if other than the trustee (the "Trustee"), the person or persons who shall be registrar for such series of Debt Securities; (xiii) the Record Date; (xiv) the identity of the Trustee; (xv) any covenants of the Company with respect to a series of Debt Securities; (xvi) whether the Debt Securities are convertible into or exchangeable for Securities, or other securities of the Company or Third Party Securities (as herein defined), and the terms of such conversion or exchange; (xvii) whether the Debt Securities will be issued at an original issue discount and a description of such discount; and (xviii) any other term or provision relating to such series of Debt Securities which is not inconsistent with the provisions of the Indenture. Except as described in this Prospectus or the accompanying Prospectus Supplement, the Indentures do not contain any covenants specifically designed to protect holders of the Debt Securities against a reduction in the creditworthiness of the Company in the event of a highly leveraged transaction or to prohibit other transactions which may adversely affect holders of the Debt Securities. In the event Debt Securities of any series are to be offered that are convertible into or exchangeable for securities of third parties ("Third Party Securities"), the Prospectus Supplement will identify the Third Party Securities, the issuer of such Third Party Securities (the "Third Party Company"), all documents filed by the Third Party Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act since the end of such Third Party Company's last completed fiscal year for which a Form 10-K annual report has been filed and the document or documents filed under the Securities Act or the Exchange Act which contain a description of the Third Party Securities being sold or, if no such document or documents exist, the Prospectus Supplement will include a description of the Third Party Securities being sold. Third Party Securities will only be securities of Third Party Companies that are eligible to use Form S-3 (or any successor form) for primary offerings under the rules and regulations of the Commission or securities that are registered under Section 12 of the Exchange Act. To the extent the Securities Act requires registration of the Third Party Securities by the Third Party Company, such as where the Third Party Company is an affiliate of the Company, in connection with the issuance, conversion and/or exchange of such Debt Securities, the Company will cause the Third Party Company to file a third party registration statement ("Third Party Registration Statement") under the Securities Act. Where the conversion and/or exchange of the Debt Securities would require an effective Third Party Registration Statement at the time of such exchange or conversion, the exchange or conversion will be subject to the effectiveness of such registration statement. For example, Debt Securities that are convertible into or exchangeable for Third Party Securities may be convertible or exchangeable by their terms at the election of the Company or mandatorily at the expiration of a specified period or at other times under specified circumstances ("Mandatory Debt Securities") or may be convertible or exchangeable by their terms at the election of the Debt Holder at any time during a specified period or periods or on a specified date or dates ("Voluntary Debt Securities"). In the case of both Mandatory Debt Securities and Voluntary Debt Securities, if the Company is an affiliate of the Third Party -14- Company, the Third Party Securities into which they may be converted or for which they may be exchanged will be the subject of a registration statement filed under the Securities Act by the Third Party Company prior to any offer of such Mandatory or Voluntary Debt Securities, and a Third Party Registration Statement with respect to such Third Party Securities will have been declared effective prior to any sale of such Mandatory or Voluntary Debt securities, except in the case of Voluntary Debt Securities that are not immediately exercisable or convertible, in which case such a Third Party Registration Statement would have to be effective, absent an exemption, when the Debt Holder elects to convert such Voluntary Debt Securities into or exchange them for Third Party Securities. EVENTS OF DEFAULT Each Indenture defines an "Event of Default" with respect to a particular series of the Debt Securities as being any one of the following events: (1) default in the payment of interest on any Debt Security of such series and the continuance of such default for a period of 30 days, or, in the case of the Subordinated Debt Indenture, for a period of 90 days, (2) default in the payment of all or any part of the principal of or any premium on any Debt Security of such series when due whether at maturity, by proceedings for redemption, by declaration or otherwise, (3) default in the satisfaction of any sinking fund payment obligation relating to such series of Debt Securities, when due and payable, (4) failure on the part of the Company to observe or perform in any material respect any other agreements or covenants contained in the Debt Securities of such series, the Indenture or any supplemental indenture relating thereto, specifically contained for the benefit of the Holders of the Debt Securities of such series, and continuance of the default for a period of 90 days after notice has been given to the Company by the Trustee, or to the Company and the Trustee by the Holders of not less than 25% in principal amount of the Debt Securities of such series and all other series so benefited (all series voting as one class) at the time outstanding under the Indenture, or (5) certain events of bankruptcy, insolvency or reorganization involving the Company. An Event of Default with respect to a series of Debt Securities will not necessarily constitute an Event of Default with respect to any other series of Debt Securities. Except as may be described in the accompanying Prospectus Supplement, the Indentures do not contain any Events of Default other than those referred to herein. If an Event of Default occurs with respect to the Debt Securities of one or more series and is continuing, the Trustee, by notice to the Company, or the Holders of not less than 25% in principal amount of the outstanding Debt Securities of each such series, by notice in writing to the Company and to the Trustee, may declare the principal amount (or, if the Debt Securities of any such series are original issue discount Debt Securities, such portion of the principal amount as may be specified in the terms of such series) of all the Debt Securities of such series, together with any accrued interest, to be immediately due and payable. The foregoing provisions, however, are subject to the condition that if, at any time after the principal amount of the Debt Securities of any one or more series (or of all the Debt Securities, as the case may be) shall have been so declared due and payable, and before any judgment or decree for the payment of moneys due shall have been obtained or entered as hereinafter provided, the Company shall pay or shall deposit with the Trustee a sum sufficient to pay any matured installments of interest upon all the Debt Securities of such series (or upon all the Debt Securities, as the case may be) and the principal of any and all Debt Securities of such series (or of any and all the Debt Securities, as the case may be) which shall have become due otherwise than by declaration (with interest on overdue installments of interest to the extent permitted by law and on such principal at the rate or rates of interest borne by, or prescribed therefor in, the Debt Securities of such series to the date of such payment or deposit) and any other amounts then payable to the Trustee under the Indenture, and any and all defaults under the Indenture with respect to Debt Securities of such series (or all Debt Securities, as the case may be), other than the nonpayment of principal of and any accrued interest on Debt Securities of such series (or any Debt Securities, as the case may be) which shall have become due by declaration shall have been cured, remedied or waived as provided in the Indenture, then and in every such case the Holders of a majority in principal amount of the Debt Securities of such series (or of all the Debt Securities, as the case may be) then outstanding (all series voting as one class if more than one series are so entitled), by written notice to the Company and to the Trustee, may rescind and annul such declaration and its consequences; but no such rescission and annulment shall extend to or affect any subsequent default, or impair any right consequent thereon. -15- If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy by proceeding at law or in equity to collect the payment of principal or any premium or interest on the Debt Securities of the series to which the default relates or to enforce the performance of any provision of such series of Debt Securities or the Indenture. The Holders of a majority in principal amount of the outstanding Debt Securities of any series may waive any past Event of Default with respect of such series and its consequences, except a continuing default in the payment of the principal of or any premium or interest on such Debt Securities or in the satisfaction of any sinking fund obligation relating to such series of Debt Securities or in respect of a covenant or provision of the Indenture which cannot be modified or amended without the consent of the Holder of each Debt Security so affected. MODIFICATIONS OF THE INDENTURE Each of the Indentures provides that the Company and the Trustee may enter into a supplemental indenture to amend the Indenture or the Debt Securities without the consent of any Debt Holder: (1) to cure any ambiguity, defect or inconsistency; (2) to permit a successor to assume the Company's obligations under the Indenture as permitted by the Indenture; (3) to eliminate or change any provision of the Indenture if such elimination or change does not adversely affect the rights of any outstanding Debt Holder; (4) to provide for the issuance and establish the terms and conditions of Debt Securities of any series; (5) to add to the covenants of the Company further covenants, restrictions or conditions for the protection of the Holders of all or any particular series of Debt Securities and to make the occurrence, or the occurrence and continuance, of a default in any such additional covenants, restrictions or conditions an Event of Default permitting the enforcement of all or any of the several remedies provided in the Indenture; or (6) to appoint, at the request of the Trustee, a successor Trustee for a particular series of Debt Securities to act as such pursuant to the provisions of the Indenture. Each of the Indentures and the rights and obligations of the Company and of the Holders of the Debt Securities may be modified or amended at any time with the consent of the Holders of not less than a majority in aggregate principal amount of all series of the Debt Securities at the time outstanding under such Indenture and affected by such modification or amendment (voting as one class); provided, however, that without the consent of the holder of the Debt Securities affected, no such modification or amendment shall, among other things, change the fixed maturity or redemption date thereof, reduce the rate of interest thereon or alter the method of determining such rate of interest, extend the time of payment of interest, reduce the principal amount thereof, reduce any premium payable upon the redemption thereof, change the currency in which any Debt Securities or the interest thereon are payable or impair the right to institute suit for the enforcement of any such payment, reduce the percentage of the Holders of such Debt Securities whose consent is required for any such modification or amendment or change the time of payment, reduce the amount of any minimum sinking fund payment, or modify any provisions of the Indenture relating to the amendment thereof or the creation of a supplemental indenture (unless the change increases the rights of the Holders). DEFEASANCE AND DISCHARGE All liability of the Company in respect to any outstanding Debt Securities shall cease, terminate and be completely discharged if the Company shall (a) deposit with the Trustee, in trust, at or before maturity, lawful money or direct obligations of the United States of America (or, in the case of Debt Securities denominated in a currency other than U.S. Dollars, of the government that issued such currency), or obligations the principal of and interest on which are guaranteed by the United States of America (or, in the case of Debt Securities denominated in a currency other than U.S. Dollars, guaranteed by the government that issued such currency), in such amounts and maturing at such times that the proceeds of such obligations to be received upon the respective maturities and interest payment dates will provide funds sufficient to pay the principal of and interest and any premium to maturity or to the redemption date, as the case may be, with respect to such Debt Securities, and (b) deliver to the Trustee an opinion of counsel to the effect that the Holders of such Debt Securities will not recognize income, gain or loss for federal income tax purposes as a result of such discharge. All obligations of the Company to comply with certain covenants applicable to any outstanding Debt Securities shall cease if the Company shall deposit with the Trustee, in trust, at or before maturity, lawful money or direct obligations of the -16- United States of America (or, in the case of Debt Securities denominated in a currency other than U.S. Dollars, of the government that issued such currency), or obligations the principal of and interest on which are guaranteed by the United States of America (or, in the case of Debt Securities denominated in a currency other than U.S. Dollars, by the government that issued such currency), in such amounts and maturing at such times that the proceeds of such obligations to be received upon the respective maturities and interest payment dates will provide funds sufficient to pay the principal of and interest and any premium to maturity or to the redemption date, as the case may be, with respect to such Debt Securities. CONCERNING THE TRUSTEE The Trustee for the Senior Debt Securities and the Trustee for the Subordinated Debt Securities will be identified in the relevant Prospectus Supplement. In certain instances, the Company or the Holders of a majority of the then outstanding principal amount of the Debt Securities issued under an Indenture may remove the Trustee and appoint a successor Trustee. The Trustee may become the owner or pledgee of any of the Debt Securities with the same rights it would have if it were not the Trustee. The Trustee and any successor trustee must be a corporation organized and doing business as a commercial bank under the laws of the United States or of any state thereof or of the District of Columbia, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $100,000,000 and subject to examination by federal or state or District of Columbia authority. From time to time and subject to applicable law relating to conflicts of interest, the Trustee may also serve as Trustee under other indentures relating to Debt Securities issued by the Company or affiliated companies and may engage in commercial transactions with the Company and affiliated companies. SENIOR DEBT SECURITIES The Senior Debt Securities will be unsecured and will rank equally with all other unsecured and unsubordinated indebtedness for borrowed money of the Company. The following covenants will apply to Senior Debt Securities issued under the Senior Indenture unless otherwise provided in the Prospectus Supplement for such Senior Debt Securities: RESTRICTIONS ON INDEBTEDNESS OF RESTRICTED SUBSIDIARIES Under the terms of the Senior Indenture, the Company may not permit any Restricted Subsidiary to create, assume, incur or guarantee any Indebtedness other than the following: (i) Indebtedness of a Restricted Subsidiary incurred after the date of the Senior Indenture, provided that immediately after the incurrence of such Indebtedness the aggregate amount of Indebtedness incurred and outstanding pursuant to this exception (i) and not otherwise permitted pursuant to the Senior Indenture does not exceed 5% of Consolidated Net Tangible Assets; (ii) Indebtedness of any entity (other than a PCS Entity) existing at the time such entity becomes a Restricted Subsidiary, such entity is merged into or consolidated with the Company or a Restricted Subsidiary, or the Company or a Restricted Subsidiary acquires all or substantially all of the assets of such entity, provided that immediately after the incurrence of such Indebtedness the aggregate amount of Indebtedness incurred and outstanding pursuant to this exception (ii) and not otherwise permitted pursuant to the Senior Indenture does not exceed 5% of Consolidated Net Tangible Assets; (iii) Indebtedness pursuant to capital leases (including any Japanese leveraged lease or similar cross-border lease transaction), provided that immediately after the incurrence of such Indebtedness, the aggregate amount of Indebtedness incurred and outstanding pursuant to this exception (iii) and not otherwise permitted pursuant to the Senior Indenture does not exceed 10% of Consolidated Net Tangible Assets; (iv) Indebtedness owed to the Company or any Subsidiary of the Company or to any partner or stockholder having at least a 10% ownership interest in such Restricted Subsidiary; (v) Indebtedness of any Restricted Subsidiary existing on the date of the Senior Indenture or owing pursuant to the Zero Coupon Convertible Subordinated Notes due 1999 originally issued by Cellular Communications, Inc.; (vi) Indebtedness of any PCS Entity existing at the time such PCS Entity becomes a Restricted Subsidiary, such PCS Entity is merged into or consolidated with the Company or a Restricted Subsidiary, or the Company or a Restricted Subsidiary acquires all or substantially all of the assets of such PCS Entity; or (vii) Indebtedness of any Restricted Subsidiary constituting any replacement, extension or renewal of any Indebtedness incurred pursuant to exceptions (i) through (vi) above (to the extent such Indebtedness is not increased). -17- RESTRICTIONS ON LIENS Under the terms of the Senior Indenture, the Company will not, and will not permit any Restricted Subsidiary to, incur any Indebtedness secured by a Lien on any shares of stock, indebtedness or other obligations of a Subsidiary or any Principal Property of the Company or a Restricted Subsidiary (such stock, indebtedness and Principal Property being collectively referred to as "Property"), unless the Company secures or causes such Restricted Subsidiary to secure the outstanding Senior Debt Securities (together with, if the Company shall so determine, any other Indebtedness of the Company or such Restricted Subsidiary then existing or thereafter created ranking equally with the Senior Debt Securities, including guarantees of indebtedness of others) equally and ratably with (or prior to) such Indebtedness, so long as such Indebtedness on Property existing at the time of acquisition thereof or to secure the payment of all or any part of the purchase price thereof or to secure any Indebtedness incurred prior to, at the time of or within 180 days after the acquisition of such Property for the purpose of financing all or any part of purchase price thereof; (ii) Liens securing Indebtedness owing by a Restricted Subsidiary to the Company or any Subsidiary of the Company; (iii) Liens on Property of any entity, or on the stock, indebtedness or other obligations of such entity, existing at the time (a) such entity becomes a Restricted Subsidiary, (b) such entity is merged into or consolidated with the Company or a Restricted Subsidiary or (c) the Company or a Restricted Subsidiary acquires all or substantially all of the assets of such entity; provided that no such Lien extends to any other Property and provided that such Indebtedness is otherwise permitted pursuant to the Senior Indenture; (iv) Liens on Property to secure any Indebtedness incurred to provide funds for all or any part of the cost of development of or improvements to such Property; (v) any Lien on Property to secure Indebtedness or other indebtedness incurred in connection with any financing undertaken in accordance with Section 103 of the Internal Revenue Code of 1986, as amended, or any replacement law; (vi) Liens on the property of the Company or any of its Subsidiaries securing (a) nondelinquent obligations of a like nature; in each case, incurred in the ordinary course of business; (vii) Liens securing obligations in respect of capital leases on assets subject to such leases (including any Japanese leveraged lease or similar cross-border lease transaction), provided that such Indebtedness is otherwise permitted pursuant to the Senior Indenture; and provided further that (a) any such Lien attaches to such property within 180 days after the acquisition thereof and (b) such Lien attaches solely to the property so acquired; (viii) Liens arising solely by virtue of any statutory or common law provision relating to banker's liens, rights of set-off or similar rights and remedies as to deposit account o r other funds provided that such deposit account is not a dedicated cash collateral account and is not subject to restrictions against access by the Company in excess of those set forth by regulations promulgated by the Federal Reserve Board and such deposit account is not intended by the Company or any Subsidiary to provide collateral to the depository institution; (ix) Liens on personal property, other than shares of stock or Indebtedness of any Restricted Subsidiary, to secure loans maturing not more than one year from the date of the creation thereof; (x) Liens on the stock indebtedness or other obligations of any International Subsidiary, provided that such Liens do not secure Indebtedness of the type described in clause (v) of the definition of Indebtedness; and (xi) any renewal, extension, or replacement (in whole or in part) of any Lien permitted pursuant to exceptions (i) through (x) above or of any Indebtedness secured thereby, provided that such extension, renewal or replacement Lien shall be limited to all or any part of the same Property that secured the Lien extended, renewed or replaced (plus improvements on such Property). Notwithstanding the foregoing restrictions, the Company may, and may permit any Restricted Subsidiary to, issue, assume or guarantee Indebtedness secured by Liens on Property which are not otherwise excepted without equally and ratably securing the Senior Debt Securities, provided that the sum of all such Indebtedness then being issued, assumed or guaranteed does not exceed 10% of the Consolidated Net Tangible Assets prior to the time such Indebtedness was issued, assumed or guaranteed. RESTRICTIONS ON SALE AND LEASEBACK TRANSACTIONS Under the terms of the Senior Indenture, the Company will not, and will not permit any Restricted Subsidiary to, enter into any arrangement (except for temporary leases for a term of not more than three years, or except for sale or transfer and leaseback transactions involving the acquisition or improvement of Principal Properties provided that the amount of consideration received at the time of sale or transfer by the Company or such Restricted Subsidiary for the property so sold or transferred shall be applied as described in subsection (ii) below) with any bank, insurance company or other lender or investor, or to which any such lender or investor is party, providing for the leasing to the Company or any Restricted Subsidiary of any Principal Property which has -18- been or is to be sold or transferred by the Company or any Restricted Subsidiary to such lender or investor or to any Person to whom funds have been or are to be advanced by such lender or investor on the security of such property unless either (i) the Company or any Restricted Subsidiary could create Indebtedness secured by a Lien under the provisions related to restrictions on Liens on the property to be leased without equally and ratably securing the Senior Debt Securities, or (ii) the Company within the 12 months preceding such sale or transfer may have been made by the Company or by a Restricted Subsidiary, has applied or applies an amount equal to the greater of (a) the net proceeds of the sale of the property leased pursuant to such arrangement or (b) the fair value of the property so leased at the time of entering into such arrangement (1) to the voluntary retirement of Indebtedness of the Company or of a Restricted Subsidiary or Indebtedness of a Subsidiary guaranteed by the Company which debt matures by its terms more than one year after the date on which it was originally incurred (collectively herein called "funded debt"); provided that there shall be credited against the amount required by subsection (ii) to be applied to the retirement of funded debt an amount equal to (x) the principal amount of any Senior Debt Securities delivered within the 12 months preceding such sale or transfer or the 12 months following such sale or transfer to the Trustee for voluntary retirement and cancellation, plus (y) the principal amount of funded debt, other than Senior Debt Securities, voluntarily retired by the Company within 12 months before or after such sale; or (2) to the acquisition, development or improvement of a Principal Property or Principal Properties. CORPORATE EXISTENCE OF THE COMPANY; CONSOLIDATION, MERGER, SALE OR TRANSFER Under the Senior Indenture, so long as any of the Senior Debt Securities are outstanding, the Company will maintain its corporate existence, will not dissolve, sell or otherwise dispose of all or substantially all of its assets and will not consolidate with or merge into another entity or permit one or more other entities to consolidate with or merge into it; provided that the Company may, without violating the Senior Indenture, consolidate with or merge into another entity or permit one or more other entities to consolidate with or merge into it, or sell or otherwise transfer to another entity all or substantially all of its assets as an entirety and thereafter dissolve, if the surviving, resulting or transferee entity, as the case may be, (i) shall be incorporated and existing under the laws of one of the States of the United States of America, (ii) assumes, if such entity is not the Company, all of the obligations of the Company under the Senior Indenture and (iii) is not, after such transaction, otherwise in default under any provision of the Senior Indenture. DEFINITIONS The following terms have the meanings set forth below when used in this Prospectus Supplement. "Attributable Debt" means, when used in connection with a sale and leaseback transaction, at any date as of which the amount thereof is to be determined, the lesser of (i) the fair value of the property subject to the transaction (as determined by the Board of Directors) or (ii) the present value of rent for the remaining term of the lease. Rent shall be discounted to present value at the actual percentage rate inherent in such lease as determined in good faith by the Company, compounded semiannually. Rent is the lesser of (1) rent for the remaining term of the lease assuming it is not terminated or (2) rent from the date of determination until the first possible termination date plus the termination payment then due, if any. The remaining term of a lease includes any period for which the lease has been extended. Rent does not include (a) amounts for maintenance, repairs, insurance, taxes, assessments and similar charges or (b) contingent rent, such as that based on sales. Rent may be reduced by rent that any sublessee must pay from the date of determination for all or part of the same property. "Consolidated Net Tangible Assets" means the consolidated total assets of the Company and its subsidiaries as reflected in the Company's most recent balance sheet prepared in accordance with generally accepted accounting principles, less (i) current liabilities (excluding current maturities of long-term debt and obligations under capital leases) and (ii) goodwill, trademarks, patents, and minority interests of others. "Domestic Cellular Joint Venture" means the partnership or other joint venture to be formed by the Company and U S WEST, Inc., or their Subsidiaries, pursuant to the Amended and Restated Joint Venture -19- Organization Agreement dated September 30, 1995, as amended from time to time, for the purposes of owning and operating certain of the parties' assets used in the provision of Domestic Cellular Service. "Domestic Cellular Service" means the provision of wireless telephony service on the 800 MHz bands in the United States. "Indebtedness" means ,with respect to any Person, the aggregate amount of, without duplication: (i) all obligations for borrowed money; (ii) all obligations evidenced by debentures, notes or other similar instruments; (iii) all obligations to pay the deferred purchase price of property or services, except trade accounts payable, accrued commissions and other similar accrued current liabilities in respect of such obligations, in any case not overdue, arising in the ordinary course of business; (iv) all obligations of such Person under any lease (or other agreement conveying the right to use) of property by a Person as lessee or guarantor which would, in conformity with GAAP, be required to be accounted for as a capital lease on the balance sheet of that Person; (v) all obligations or liabilities of others secured by a Lien on any asset owned by such Person or Persons whether or not such obligation or liability is assumed (the amount of such Indebtedness being deemed to be the lesser of the value of such property or assets or the amount of the Indebtedness so secured); (vi) all reimbursement obligations of such Person or Persons in respect of any letters of credit or bankers' acceptances related to Indebtedness of such Person or another Person; (vii) all Attributable Debt; (viii) Redeemable Stock and (ix) all guarantees of Indebtedness of other Persons. The term "Indebtedness" shall not include any obligations of a Person under a Swap Contract. "International Subsidiary" means any subsidiary of the Company not engaged in the provision of Domestic Cellular Service and the principal business of which is conducted, or the principal assets of which are located, outside of the United States. "Lien" means any lien, mortgage, pledge, security interest, charge, or encumbrance of any kind (including any conditional sale or other title retention agreement or any lease in the nature thereof) and any agreement to give or refrain from giving any lien, mortgage, pledge, security interest, charge, or other encumbrance of any kind. "PCS Entity" means any Person primarily engaged in the business of personal communications services, defined as radio communications operating in the "broadband PCS" bands, namely the 1850-1890 MHz, 1930- 1970 MHz, 2130-2150 MHz, and 2180-2200 MHz bands, including Persons who primarily provide support services or equipment for personal communications services. "Principal Property" means land, land improvements, buildings and associated equipment or property owned or leased pursuant to a capital lease and used by the Company or a Restricted Subsidiary primarily for providing Domestic Cellular Service and located within the United States of America and having a book value in excess of 2% of Consolidated Net Tangible Assets, as of the date of such determination, but not including any such property financed through the issuance of tax exempt governmental obligations, or any such property that has been determined by resolution of the Board of Directors of the Company not to be of material importance to the respective businesses conducted by the Company and its Restricted Subsidiaries. "Redeemable Stock" means, with respect to any Person, any stock that by its terms matures or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise. "Restricted Subsidiary" means (i) any Subsidiary of the Company which (a) has substantially all of its property in the United States, (b) is primarily engaged in the business of providing Domestic Cellular Service and (c) is in existence on the date of the Senior Indenture, or is designated by the Board of Directors of the Company after such date as a Restricted Subsidiary, and (ii) the Domestic Cellular Joint Venture and its Subsidiaries. "Subsidiary" of any specified Person means (i) a corporation, at least a majority of the outstanding securities of which having ordinary voting power (other than securities having such power only by reason of the happening of a contingency) is at such time owned by such Person or by one or more Subsidiaries of such -20- Person; or (ii) a partnership, joint venture, association, or other business entity, if in accordance with generally accepted accounting principles such entity is consolidated with such Person for financial statement purposes. "Swap Contract" means any agreement relating to any transaction that is a rate swap, basis swap, forward rate transaction, commodity option, equity or equity index swap or option, bond, note or bill option, interest rate option, forward transaction, cap, collar or floor transaction, currency swap, cross-currency rate swap, swaption, currency option or any other similar transaction (including any option to enter into any of the foregoing) or any combination of the foregoing, and, unless the context otherwise clearly requires, any master agreement relating to or governing any or all of the foregoing, provided that such Swap Contract was entered into for the purpose of managing risks associated with liabilities, commitments or assets of the Company or any Subsidiary and not for speculation. SUBORDINATED DEBT SECURITIES Subordinated Debt Securities may be issued from time to time in one or more series under the Subordinated Debt Indenture. The Subordinated Debt Securities will be subordinated and junior in right of payment to certain other indebtedness of the Company to the extent set forth in the applicable Prospectus Supplement. In the event the Subordinated Debt Securities are issued to a Financing Trust or the Financing Trustee of such trust in connection with the issuance of Trust Securities by such Financing Trust, such Subordinated Debt Securities subsequently may be distributed pro rata to the Holders of such Trust Securities in connection with the dissolution of such Financing Trust upon the occurrence of certain events described in the Prospectus Supplement relating to such Trust Securities. Only one series of Subordinated Debt Securities will be issued to a Financing Trust or the Financing Trustee of such trust in connection with the issuance of Trust Securities by such Financing Trust. Unless otherwise provided in the applicable Prospectus Supplement, if Subordinated Debt Securities are issued to a Financing Trust or the Financing Trustee of such trust in connection with the issuance of Trust Securities by such Financing Trust and (i) there shall have occurred an event that would constitute an Event of Default with respect to such Subordinated Debt Securities; (ii) the Company shall be in default with respect to its payment of any obligations under the related Preferred Securities Guarantee or Common Securities Guarantee; or (iii) the Company shall have given notice of its election to defer payments of interest on such Subordinated Debt Securities by extending the interest payment period as provided in the Indenture and such period, or any extension thereof, shall be continuing, then (a) the Company shall not declare or pay any dividend on, make any distributions with respect to, or redeem, purchase or make a liquidation payment with respect to, any of its capital stock, and (b) the Company shall not make any payment of interest, principal or premium, if any, on or repay, repurchase or redeem any Debt Securities which rank junior to or PARI PASSU with such Subordinated Debt Securities; PROVIDED that the foregoing restriction does not apply to any stock dividends paid by the Company where the dividend stock is of the same class as that of the stock held by the holders receiving the dividend. DESCRIPTION OF THE WARRANTS TO PURCHASE COMMON STOCK OR PREFERRED STOCK The following statements with respect to the Common Stock Warrants and Preferred Stock Warrants (collectively, the "Stock Warrants") are summaries of, and subject to, the detailed provisions of a warrant agreement ("Stock Warrant Agreement") to be entered into by the Company and a warrant agent to be selected at the time of issue (the "Stock Warrant Agent"), which Stock Warrant Agreement may include or incorporate by reference standard warrant provisions substantially in the form of the Standard Stock Warrant Provisions (the "Stock Warrant Provisions") filed as an exhibit to the Registration Statement or other provisions set forth in the Stock Warrant Agreement which will be filed as an exhibit to or incorporated by reference in the Registration Statement. GENERAL The Stock Warrants may be issued under the Stock Warrant Agreement independently or together with any other Securities offered by any Prospectus Supplement and may be attached to or separate from such other -21- Securities. If Stock Warrants are offered, the related Prospectus Supplement will describe the terms of the Stock Warrants, including without limitation the following: (i) the offering price, if any; (ii) the designation and terms of the Common Stock or Preferred Stock purchasable upon exercise of the Stock Warrants; (iii) the number of shares of Common Stock or Preferred Stock purchasable upon exercise of one Stock Warrant and the initial price at which such shares may be purchased upon exercise; (iv) the date on which the right to exercise the Stock Warrants shall commence, the date on which such right shall expire and whether the Company has the ability to extend the exercise period; (v) federal income tax consequences; (vi) call provisions, if any; (vii) the currency, currencies or currency units in which the offering price, if any, and exercise price are payable; (viii) the antidilution provisions of the Stock Warrants; and (ix) any other terms of the Stock Warrants. The shares of Common Stock or Preferred Stock issuable upon exercise of the Stock Warrants will, when issued in accordance with the Stock Warrant Agreement, be fully paid and nonassessable. If the Company maintains the ability to reduce the exercise price of any Stock Warrant and such right is triggered, the Company will comply with the federal securities laws, including Rule 13e-4 under the Exchange Act, to the extent applicable. EXERCISE OF STOCK WARRANTS Stock Warrants may be exercised in the manner set forth in the applicable Prospectus Supplement. Duly exercised Stock Warrants will be delivered by the Stock Warrant Agent to the transfer agent for the Common Stock or the Preferred Stock, as the case may be. Upon receipt thereof, the transfer agent shall deliver or cause to be delivered, to or upon the written order of the exercising warrantholder, the number of shares of Common Stock or Preferred Stock purchased. If fewer than all of the Stock Warrants held by a warrantholder are exercised, the Stock Warrant Agent shall deliver to the exercising warrantholder a new Stock Warrant representing the unexercised Stock Warrants. ANTIDILUTION PROVISIONS The exercise price payable and the number of shares of Common Stock or Preferred Stock, as the case may be, purchasable upon the exercise of each Stock Warrant will be subject to adjustment in certain events, including the issuance of a stock dividend to holders of Common Stock or Preferred Stock, respectively, or a combination, subdivision or reclassification of Common Stock or Preferred Stock, respectively. In lieu of adjusting the number of shares of Common Stock or Preferred Stock purchasable upon exercise of each Stock Warrant, the Company may elect to adjust the number of Stock Warrants. No adjustment in the number of shares purchasable upon exercise of the Stock Warrants will be required until cumulative adjustments require an adjustment of at least 1% thereof. The Company may, at its option, reduce the exercise price at any time. No fractional shares will be issued upon exercise of Stock Warrants, but the Company will pay the cash value of any fractional shares otherwise issuable. Notwithstanding the foregoing, in case of any consolidation, merger, or sale or conveyance of the property of the Company as an entirety or substantially as an entirety, the holder of each outstanding Stock Warrant shall have the right upon the exercise thereof to the kind and number of shares of stock and other securities and property (including cash) receivable by a holder of the number of shares of Common Stock or Preferred Stock into which such Stock Warrants were exercisable immediately prior thereto. NO RIGHTS AS STOCKHOLDERS Holders of Stock Warrants will not be entitled, by virtue of being such warrantholders, to vote, to consent, to receive dividends, to receive notice as stockholders with respect to any meeting of stockholders for the election of directors of the Company or any other matter, or to exercise any rights whatsoever as stockholders of the Company. DESCRIPTION OF THE THIRD PARTY WARRANTS The following statements with respect to the Third Party Warrants are summaries of, and subject to, the detailed provisions of a warrant agreement (the "Third Party Warrant Agreement") to be entered into by the Company and a warrant agent to be selected at the time of issue (the "Third Party Warrant Agent"), which Third Party Warrant Agreement may include or incorporate by reference standard warrant provisions substantially in the form of the Stock Warrant Provisions or the provisions set forth in the form of the Debt Securities Warrant -22- Agreement filed as an exhibit to the Registration Statement or other provisions set forth in the Third Party Warrant Agreement which will be filed as an exhibit to or incorporated by reference in the Registration Statement. GENERAL The Third Party Warrants may be issued under the Third Party Warrant Agreement independently or together with any other Securities offered by any Prospectus Supplement and may be attached to or separate from such other Securities. If Third Party Warrants are offered, the related Prospectus Supplement will describe the terms of the warrants, including without limitation the following: (i) the offering price, if any; (ii) the designation, aggregate principal amount and terms of the Third Party Securities purchasable upon exercise of the warrants; (iii) if applicable, the designation and terms of the Third Party Securities with which the Third Party Warrants are issued and the number of Third Party Warrants issued with each such Third Party Security; (iv) if applicable, the date on and after which the Third Party Warrants and the related Third Party Securities will be separately transferable; (v) the number or principal amount of Third Party Securities purchasable upon exercise of one Third Party Warrant and the price at which such number or principal amount of Third Party Securities may be purchased upon exercise; (vi) the date on which the right to exercise the Third Party Warrants shall commence, the date on which such right shall expire and whether the Company has the ability to extend the exercise period; (vii) federal income tax consequences; (viii) whether the Third Party Warrants will be issued in registered or bearer form; (ix) the currency, currencies or currency units in which the offering price, if any, and exercise price are payable; (x) the antidilution provisions of the Third Party Warrants; and (xi) any other terms of the Third Party Warrants. If the Company maintains the ability to reduce the exercise price of any Third Party Warrant and such right is triggered, the Company will comply with the federal securities laws, including Rule 13e-4 under the Exchange Act, to the extent applicable. The Prospectus Supplement will identify the Third Party Securities, the Third Party Company, all documents filed by the Third Party Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act since the end of such Third Party Company's last completed fiscal year for which a Form 10-K annual report has been filed and the document or documents filed under the Exchange Act which contain a description of the Third Party Securities being sold or, if no such document or documents exist, the Prospectus Supplement will include a description of the Third Party Securities being sold. Third Party Warrants may be offered only with respect to Third Party Securities of Third Party Companies that are eligible to use Form S-3 (or any successor form) for primary offerings under the rules and regulations of the Commission and Third Party Securities that are registered under Section 12 of the Exchange Act. To the extent the Securities Act requires registration of the Third Party Securities by the Third Party Company, such as where the Third Party is an affiliate of the Company, in connection with the issuance and/or exercise of Third Party Warrants, the Company will cause the Third Party Company to file a Third Party Registration Statement under the Securities Act. Where the exercise of Third Party Warrants would require the Third Party to have an effective Third Party Registration Statement at the time of exercise, the exercise will be subject to the effectiveness of such registration statement. For example, if the Company is an affiliate of the Third Party Company, the Third Party Securities that can be acquired upon exercise of the Third Party Warrants will be the subject of a registration statement filed under the Securities Act by the Third Party Company prior to any offer of such Third Party Warrants, and a Third Party Registration Statement will have been declared effective prior to any sale of Third Party Warrants, except in the case of Third Party Warrants which are not immediately exercisable, in which case such a registration statement would have to be effective, absent an exemption, when the holder of any Third Party Warrants elects to exercise them to acquire Third Party Securities. Third Party Warrants may be exchanged for new Third Party Warrants of different denominations and may (if in registered form) be presented for registration of transfer at the corporate trust office of the Third Party Warrant Agent, which will be listed in the related Prospectus Supplement, or at such other office as may be set forth therein. Warrantholders do not have any of the rights of holders of Third Party Securities (except as may be otherwise set forth in the Prospectus Supplement). -23- EXERCISE OF THIRD PARTY WARRANTS Third Party Warrants may be exercised in the manner set forth in the applicable Prospectus Supplement. Upon the exercise of Third Party Warrants, the Third Party Warrant Agent will, as soon as practicable, deliver the Third Party Securities in authorized denominations in accordance with the instructions of the exercising warrantholder and at the sole cost and risk of such holder. If less than all of the Third Party Warrants held by a warrantholder are exercised, a new Third Party Warrant will be issued for the remaining amount of Third Party Warrants. DESCRIPTION OF THE WARRANTS TO PURCHASE DEBT SECURITIES The following statements with respect to the Debt Warrants are summaries of, and subject to, the detailed provisions of a warrant agreement (the "Debt Warrant Agreement") to be entered into by the Company and a warrant agent to be selected at the time of issue (the "Debt Warrant Agent"), which Debt Warrant Agreement may include or incorporate by reference standard warrant provisions substantially in the form of the Standard Debt Securities Warrant Provisions filed as an exhibit to the Registration Statement or other provisions set forth in the Debt Warrant Agreement which will be filed as an exhibit to or incorporated by reference in the Registration Statement. GENERAL The Debt Warrants may be issued under the Debt Warrant Agreement independently or together with any Debt Securities offered by any Prospectus Supplement and may be attached to or separate from such Debt Securities. If Debt Warrants are offered, the related Prospectus Supplement will describe the terms of the Debt Warrants, including without limitation the following: (i) the offering price, if any; (ii) the designation, aggregate principal amount and terms of the Debt Securities purchasable upon exercise of the Debt Warrants; (iii) the principal amount of Debt Securities purchasable upon exercise of the Debt Warrants and the price at which such principal amount of Debt Securities may be purchased upon exercise; (iv) the date or dates on which the right to exercise the Debt Warrants shall commence, the date on which such right shall expire and whether the Company has the ability to extend the exercise period; (v) federal income tax consequences, if any; (vi) the currency, currencies or currency units in which the offering price, if any, and exercise price are payable; and (vii) any other terms of the Debt Warrants. Debt Warrants may be exchanged for new Debt Warrants of different denominations and may be presented for registration of transfer at the corporate trust office of the Debt Warrant Agent, which will be listed in the related Prospectus Supplement, or at such other office as may be set forth therein. Warrantholders do not have any of the rights of holders of Debt Securities and are not entitled to payments of principal of and interest, if any, on the Debt Securities. EXERCISE OF DEBT WARRANTS Debt Warrants may be exercised in the manner set forth in the applicable Prospectus Supplement. Upon the exercise of Debt Warrants, the Debt Warrant Agent will, as soon as practicable, deliver the Debt Securities in authorized denominations in accordance with the instructions of the exercising warrantholder and at the sole cost and risk of such warrantholder. DESCRIPTION OF THE STOCK PURCHASE CONTRACTS AND STOCK PURCHASE UNITS The Company may issue Stock Purchase Contracts, which are contracts obligating holders to purchase from the Company, and the Company to sell to the holders, a specified number of shares of Common Stock or Preferred Stock at a future date or dates. The price per share of Common Stock or Preferred Stock may be fixed at the time the Stock Purchase Contracts are issued or may be determined by reference to a specific formula set forth in the Stock Purchase Contracts. Any such formula may include antidilution provisions to adjust the -24- number of shares issuable pursuant to Stock Purchase Contracts upon certain events. The Stock Purchase Contracts may be issued separately or as a part of Stock Purchase Units each representing ownership of a Stock Purchase Contract and Debt Securities, Preferred Securities or debt obligations of a Third Party Company, including U.S. Obligations, securing the holders' obligations to purchase the Common Stock or the Preferred Stock under the Purchase Contracts. In the case of Stock Purchase Units that include debt obligations of a Third Party Company, unless a holder of Stock Purchase Units settles its obligations under the Stock Purchase Contracts early through the delivery of consideration to the Company or its agent in the manner discussed below, the principal of such debt obligations, when paid at maturity, will automatically be applied to satisfy the holder's obligation to purchase Common Stock or Preferred Stock under the Stock Purchase Contracts. In the case of Stock Purchase Units that include Debt Securities or Preferred Securities, in the absence of any such early settlement or the election by a holder to pay the consideration specified in the Stock Purchase Contracts prior to the stated settlement date, the Debt Securities or Preferred Securities will automatically be presented to the applicable Financing Trust for redemption at 100% of face or liquidation value and such Financing Trust will present Subordinated Debt Securities in an equal principal amount to the Company for redemption at 100% of principal amount. Amounts received in respect of such redemption will automatically be transferred to the Company and applied to satisfy in full the holder's obligation to purchase Common Stock or Preferred Stock under the Stock Purchase Contracts. The Stock Purchase Contracts may require the Company to make periodic payments to the holders of the Stock Purchase Units or vice versa, and such payments may be unsecured or prefunded on some basis. The Stock Purchase Contracts may require holders to secure their obligations thereunder in a specified manner. Holders of Stock Purchase Units may be entitled to settle the underlying Stock Purchase Contracts prior to the stated settlement date by surrendering the certificate evidencing the Stock Purchase Units, accompanied by the payment due, in such form and calculated pursuant to such formula as may be prescribed in the Stock Purchase Contracts and described in the applicable Prospectus Supplement. Upon early settlement, the holder will receive the number of shares of Common Stock or Preferred Stock deliverable under such Stock Purchase Contracts, subject to adjustment in certain cases. Holders of Stock Purchase Units may be entitled to exchange their Stock Purchase Units, together with appropriate collateral, for separate Stock Purchase Contracts and Preferred Securities, Debt Securities or debt obligations. In the event of such early settlement or exchange, the Preferred Securities, Debt Securities or debt obligations that were pledged as security for the obligation of the holder to perform under the Stock Purchase Contracts will be transferred to the holder free and clear of the Company's security interest therein. The applicable Prospectus Supplement will describe the terms of any Stock Purchase Contracts or Stock Purchase Units. DESCRIPTION OF THE PREFERRED SECURITIES Each Financing Trust may issue only one series of Preferred Securities having terms described in the Prospectus Supplement relating thereto. The Declaration of each Financing Trust authorizes the Regular Trustees of each Financing Trust to issue on behalf of such Financing Trust one series of Preferred Securities. Each Declaration will be qualified as an indenture under the Trust Indenture Act. The Preferred Securities will have such terms, including distributions redemption, voting, liquidation rights and such other preferred, deferred or other special rights or such restrictions, as shall be set forth in the Declaration or made part of the Declaration by the Trust Indenture Act. Reference is made to the Prospectus Supplement relating to the Preferred Securities for specific terms including: (i) the distinctive designation of such Preferred Securities; (ii) the number of Preferred Securities issued; (iii) the annual distribution rate (or method of determining such rate) for such Preferred Securities and the date or dates upon which such distributions shall be payable (provided, however, that distributions on such Preferred Securities shall be payable on a quarterly basis to holders of such Preferred Securities as of a record date in each quarter during which such Preferred Securities are outstanding); (iv) whether distributions on Preferred Securities shall be cumulative, and, in the case of Preferred Securities having such cumulative distribution rights, the date or dates or method of determining the date or dates from -25- which distributions on Preferred Securities shall be cumulative; (v) the amount or amounts which shall be paid out of the assets of such Financing Trust to the holders of Preferred Securities upon voluntary or involuntary dissolution of such Financing Trust; (vi) the obligation, if any, of such Financing Trust to purchase or redeem Preferred Securities and the price or prices at which, the period or periods within which and the terms and conditions upon which Preferred Securities issued by such Financing Trust shall be purchased or redeemed, in whole or in part, pursuant to such obligation; (vii) the voting rights, if any, of Preferred Securities issued by such Financing Trust in addition to those required by law, including the number of votes per Preferred Security and any requirement for the approval by the holders of Preferred Securities, or of Preferred Securities issued by both Financing Trusts as a condition to specified action or amendments to the Declaration of such Financing Trust; (viii) whether the Preferred Securities will be issued in the form of one or more global securities; and (ix) any other relevant rights, preferences, privileges, limitations or restrictions of Preferred Securities issued by such Financing Trust consistent with the Declaration of such Financing Trust or with applicable law. All Preferred Securities offered hereby will be guaranteed by the Company to the extent set forth below under "Description of the Guarantees." Certain United States federal income tax considerations applicable to any offering of Preferred Securities will be described in the Prospectus Supplement relating thereto. In connection with the issuance of Preferred Securities, each Financing Trust will issue one series of Common Securities. The Declaration of each Financing Trust authorizes the Regular Trustees to issue on behalf of such Financing Trust one series of Common Securities having such terms including distributions, redemption, voting, liquidation rights or such restrictions as shall be set forth therein. The terms of the Common Securities issued by a Financing Trust will be substantially identical to the terms of the Preferred Securities issued by such Financing Trust and the Common Securities will rank PARI PASSU, and payments will be made thereon pro rata, with the Preferred Securities except that, upon the occurrence and during the continuation of an event of default under the Declaration, the rights of the holders of the Common Securities to payment in respect of distributions and payments upon liquidation, redemption and otherwise will be subordinated to the rights of the holders of the Preferred Securities. Except in certain limited circumstances the Common Securities will also carry the right to vote and to appoint, remove or replace any of the Financing Trustees. All of the Common Securities will be directly or indirectly owned by the Company. DESCRIPTION OF THE GUARANTEES Set forth below is a summary of information concerning the Guarantees that will be executed and delivered by the Company for the benefit of the holders, from time to time, of Preferred Securities. Each Preferred Securities Guarantee Agreement under which Guarantees are issued will be qualified as an indenture under the Trust Indenture Act. The trustee under each Guarantee (the "Guarantee Trustee") will be identified in the relevant Prospectus Supplement, and will be a financial institution not affiliated with the Company that has a combined capital and surplus of at least $100,000,000. The terms of each Guarantee will be those set forth in such Guarantee and those made part of such Guarantee by the Trust Indenture Act. The summary does not purport to be complete. Such summary makes use of certain terms defined in the Guarantee and is subject in all respects to the provisions of, and is qualified in its entirety by reference to, the form of Guarantee, which is filed as an exhibit to the Registration Statement of which this Prospectus forms a part, and the Trust Indenture Act. Each Guarantee will be held by the Guarantee Trustee for the benefit of the holders of the Preferred Securities of the applicable Financing Trust. GENERAL Pursuant to each Guarantee, the Company will unconditionally agree, to the extent set forth therein, to pay in full to the holders of the Preferred Securities issued by each Financing Trust, the Guarantee Payments (as defined herein) (except to the extent paid by such Financing Trust), as and when due, regardless of any defense, right of set-off or counterclaim which such Financing Trust may have or assert other than the defense of payment. The following payments with respect to Preferred Securities issued by each Financing Trust (the "Guarantee Payments"), to the extent not paid by or on behalf of such Financing Trust, will be subject to the Guarantee (without duplication): (i) any accrued and unpaid distributions that are required to be paid on such Preferred Securities, but if and only to the extent that in each case the Company has made a payment to the related Property Trustee of interest or principal on the Subordinated Debt Securities held in such Financing Trust -26- as trust assets; (ii) the redemption price, including all accrued and unpaid distributions (the "Redemption Price"), but if and only to the extent that in each case the Company has made a payment to the related Property Trustee of interest or principal on the Subordinated Debt Securities held in such Financing Trust as trust assets with respect to any Preferred Securities called for redemption by such Financing Trust; and (iii) upon a voluntary or involuntary dissolution, winding up or termination of such Financing Trust (other than in connection with the distribution of Subordinated Debt Securities to the holders of Preferred Securities or the redemption of all of the Preferred Securities), the lesser of (a) the aggregate of the liquidation amount and all accrued and unpaid distributions on such Preferred Securities to the date of payment to the extent such Financing Trust has funds available therefor or (b) the amount of assets of such Financing Trust remaining available for distribution to holders of such Preferred Securities on liquidation of such Financing Trust. The Company's obligation to make a Guarantee Payment may be satisfied by direct payment of the required amounts by the Company to the holders of Preferred Securities or by causing the applicable Financing Trust to pay such amounts to such holders. Each Guarantee will be a guarantee with respect to the Preferred Securities issued by the applicable Financing Trust from the time of issuance of such Preferred Securities but will not apply to any payment of distributions except to the extent the Company has made a payment to the related Property Trustee of interest or principal on the Subordinated Debt Securities held in such Financing Trust as trust assets. If the Company does not make interest payments on the Subordinated Debt Securities purchased by a Financing Trust, such Financing Trust will not pay distributions on the Preferred Securities issued by such Financing Trust and will not have funds available therefor and such payment obligation will therefore not be guaranteed by the Company under the applicable Guarantee. See "Description of the Preferred Securities" and "Description of the Debt Securities--Subordinated Debt Securities." The Company's obligations under the Declaration for each Financing Trust, the Preferred Securities Guarantee issued with respect to Preferred Securities issued by such Financing Trust, the Subordinated Debt Securities purchased by such Financing Trust and the related Subordinated Indenture in the aggregate will provide a full and unconditional guarantee on a subordinated basis by the Company of payments due on the Preferred Securities issued by such Financing Trust. The Company has also agreed to unconditionally guarantee the obligations of the Financing Trusts with respect to the Common Securities (the "Common Securities Guarantees") to the same extent as the Guarantees, except that, upon an event of default under the Subordinated Indenture, holders of Preferred Securities under the Guarantees shall have priority over holders of Common Securities under the Common Securities Guarantee with respect to distributions and payments on liquidation, redemption or otherwise. CERTAIN COVENANTS OF THE COMPANY In each Guarantee, the Company will covenant that, so long as any Preferred Securities issued by the applicable Financing Trust remain outstanding, if there shall have occurred any event that would constitute an event of default under such Guarantee or the Declaration of such Financing Trust, then (a) the Company shall not declare or pay any dividend on, or make any distribution with respect to, or redeem, purchase, acquire or make a liquidation payment with respect to, any of its capital stock and (b) the Company shall not make any payment of interest, principal or premium, if any, on or repay, repurchase or redeem any debt securities issued by the Company which rank junior to or PARI PASSU with such Subordinated Debt Securities. However, each Guarantee will except from the foregoing any stock dividends paid by the Company or any of its subsidiaries, where the dividend stock is of the same class as that on which the dividend is being paid. MODIFICATION OF THE GUARANTEES; ASSIGNMENT Except with respect to any changes that do not adversely affect the rights of holders of Preferred Securities (in which case no vote will be required), each Guarantee may be amended only with the prior approval of the holders of not less than a majority in liquidation amount of the outstanding Preferred Securities issued by the applicable Financing Trust. The manner of obtaining any such approval of holders of such Preferred Securities will be set forth in an accompanying Prospectus Supplement. All guarantees and agreements contained in a Guarantee shall bind the successors, assignees, receivers, trustees and representatives of the -27- Company and shall inure to the benefit of the holders of the Preferred Securities of the applicable Financing Trust then outstanding. EVENTS OF DEFAULT An Event of Default under the Guarantee will occur upon the failure of the Company to perform any of its payments or other obligations thereunder. The holders of a majority in liquidation amount of the Preferred Securities to which a Guarantee relates have the right to (a) waive any past Events of Default and its consequences, whereupon such event of default shall cease to exist and any event of default under the Guarantee arising therefrom shall be deemed to have been cured and (b) direct the time, method and place of conducting any proceeding for any remedy available to the Guarantee Trustee in respect of the Guarantee or to direct the exercise of any trust or power conferred upon the Guarantee Trustee under the Guarantee. If the Guarantee Trustee fails to enforce such Guarantee, any holder of Preferred Securities relating to such Guarantee may, after a period of 30 days has elapsed from such holder's written request to the Guarantee Trustee to enforce the Guarantee, institute a legal proceeding directly against the Company to enforce its rights under such Guarantee without first instituting a legal proceeding against the applicable Financing Trust, the Guarantee Trustee or any other person or entity. The Company will be required to provide annually to the Guarantee Trustee a statement as to the performance by the Company of certain of its obligations under each of the Guarantees and as to any default in such performance. TERMINATION OF THE GUARANTEES Each Guarantee will terminate as to the Preferred Securities issued by the applicable Financing Trust upon full payment of all distributions relating to the Preferred Securities or the Redemption Price of all Preferred Securities of such Trust, upon distribution of the Subordinated Debt Securities held by such Financing Trust to the holders of the Preferred Securities of such Financing Trust or upon full payment of the amounts payable in accordance with the Declaration of such Financing Trust upon liquidation of such Financing Trust. Each Guarantee will continue to be effective or will be reinstated, as the case may be, if at any time any holder of Preferred Securities issued by the applicable Financing Trust must restore payment of any sums paid under such Preferred Securities or such Guarantee. STATUS OF THE GUARANTEES Each Guarantee will constitute an unsecured obligation of the Company and will rank (i) subordinate and junior in right of payment to all senior liabilities of the Company; (ii) PARI PASSU with the obligations of the Company under any similar guarantee agreements issued by the Company on behalf of holders of Subordinated Debt Securities; and (iii) senior to the Company's Common Stock. The terms of the Preferred Securities provide that each holder of Preferred Securities issued by such Financing Trust by acceptance thereof agrees to the subordination provisions and other terms of the applicable Guarantee. The Guarantee Trustee shall enforce the Guarantee on behalf of the holders of the Preferred Securities issued by the applicable Financing Trust. The holders of not less than a majority in aggregate liquidation amount of the Preferred Securities issued by the applicable Financing Trust have the right to direct the time, method and place of conducting any proceeding for any remedy available in respect of the related Guarantee, including the giving of directions of the Guarantee Trustee. If the Guarantee Trustee fails to enforce such Guarantee, any holder of Preferred Securities relating to such Guarantee may, after a period of 30 days has elapsed from such holder's written request to the Guarantee Trustee to enforce the Guarantee, institute a legal proceeding directly against the Company, as Guarantor, to enforce its rights under such Guarantee without first instituting a legal proceeding against the applicable Financing Trust, the Guarantee Trustee or any other person or entity. -28- Each Guarantee will constitute a guarantee of payment and not of collection (that is, the guaranteed party may institute a legal proceeding directly against the guarantor to enforce its rights under a Guarantee without instituting a legal proceeding against any other person or entity). DESCRIPTION OF THE OTHER UNITS The Company may issue Other Units, which may include Common Stock, Preferred Stock, Depositary Shares, Debt Securities, Common Stock Warrants, Preferred Stock Warrants, Third Party Warrants, Debt Warrants, Stock Purchase Contracts, Stock Purchase Units, Preferred Securities or Guarantees, or any combination of the foregoing, either individually or as units consisting of one or more of the foregoing, each on terms to be determined at the time of sale. The related Prospectus Supplement will describe the terms of any Other Units and the Securities which comprise such Other Units. See "Description of the Common Stock," "Description of the Preferred Stock," "Description of the Depositary Shares," "Description of the Debt Securities," "Description of the Warrants to Purchase Common or Preferred Stock," "Description of the Third Party Warrants," "Description of the Warrants to Purchase Debt Securities," "Description of Stock Purchase Contracts and Stock Purchase Units," "Description of the Preferred Securities," and "Description of the Guarantees." PLAN OF DISTRIBUTION The Company or any Financing Trust may, from time to time, sell Securities (1) through underwriters or dealers, (2) directly to one or more purchasers, (3) through agents or (4) through a combination of any such methods of sale. A Prospectus Supplement will set forth the terms of the offering of the Securities offered thereby, including the name or names of any underwriters, the purchase price of the Securities, and the proceeds to the Company or any Financing Trust from the sale, any underwriting discounts and other items constituting underwriters' compensation, any initial public offering price, any discounts or concessions allowed or reallowed or paid to dealers, and any securities exchange or market on which the Securities may be listed. Only underwriters so named in such Prospectus Supplement are deemed to be underwriters in connection with the Securities offered thereby. If underwriters are used in the sale, the Securities will be acquired by the underwriters for their own account and may be resold from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale. The obligations of the underwriters to purchase the Securities will be subject to certain conditions precedent, and the underwriters will be obligated to purchase all the Securities of the series offered by the Prospectus Supplement if any of the Securities are purchased. Any initial public offering price and any discounts or concessions allowed or reallowed or paid to dealers may be changed from time to time. In connection with underwritten offerings of Securities, certain underwriters and selling group members and their respective affiliates may engage in transactions that stabilize, maintain or otherwise affect the market price of the Securities. Such transactions may include stabilization transactions effected in accordance with Rule 104 of Regulation M under the Exchange Act, pursuant to which such persons may bid for or purchase Securities for the purposes of stabilizing their market price. The underwriters also may create a short position for their respective accounts by selling more Securities in connection with this offering than they are committed to purchase from the Company, and in such case may purchase Securities in the open market following completion of the offering to cover all or a portion of such short position. The underwriters may also cover all or a portion of such short position, up to a specified aggregate principal amount or number of Securities, by exercising any underwriters' over-allotment option that may be applicable with respect to the particular underwritten offering. In addition, the managing underwriter for the particular offering, on behalf of the underwriters, may impose "penalty bids" under contractual arrangements between the underwriters whereby it may reclaim from an underwriter (or dealer participating in the offering) for the account of the underwriters, the selling concession with respect to Securities that are distributed in the relevant offering but subsequently purchased for the account of the underwriters in the open market. Any of the transactions described in this paragraph may result in the maintenance of the price of the Securities at a level above that which might -29- otherwise prevail in the open market. None of the transactions described in this paragraph is required, and, if any are undertaken, they may be discounted at any time. Securities may also be sold directly by the Company or a Financing Trust or through agents designated by the Company or any Financing Trust from time to time. Any agent involved in the offering and sale of Securities in respect of which this Prospectus is delivered will be named, and any commissions payable by the Company or a Financing Trust to such agent will be set forth in the Prospectus Supplement. Unless otherwise indicated in the related Prospectus Supplement, any such agent will be acting on a best-efforts basis for the period of its appointment. Securities offered other than Common Stock may be a new issue of securities with no established trading market. Any underwriters to whom such Securities are sold by the Company or a Financing Trust for public offering and sale may make a market in such Securities, but such underwriters will not be obligated to do so and may discontinue any market making at any time without notice. No assurance can be given as to the liquidity of or the trading markets for any such Securities. Agents and underwriters may be entitled under agreements entered into with the Company or a Financing Trust to indemnification by the Company or such Financing Trust against certain civil liabilities, including liabilities under the Securities Act or to contribution with respect to payments which the agents or underwriters may be required to make in respect thereof. Agents and underwriters may engage in transactions with, or perform services for, the Company or any Financing Trust in the ordinary course of business. Sales of the Securities may be effected by or for the account of one or more of the Third Parties from time to time in transactions (which may include block transactions) on any exchange or market on which such Securities are listed or quoted, as applicable, in negotiated transactions, through a combination of such methods of sale, or otherwise, at fixed prices that may be changed, at market prices prevailing at the time of sale, at prices related to prevailing market prices, or at negotiated prices. The Third Parties may effect such transactions by selling the Securities directly to purchasers, acting as principals for their own accounts, or by selling their Securities to or through broker-dealers acting as agents for the Third Parties, or to broker-dealers who may purchase Securities as principals and thereafter sell such Securities from time to time in transactions on any exchange or market on which such Securities are listed or quoted, as applicable, in negotiated transactions, through a combination of such methods of sale, or otherwise. In effecting sales, broker-dealers engaged by Third Parties may arrange for other broker-dealers to participate. Such broker-dealers, if any, may receive compensation in the form of discounts, concessions or commissions from the Third Parties and/or the purchasers of the Securities for whom such broker-dealers may act as agents or to whom they may sell as principals, or both (which compensation as to a particular broker-dealer might be in excess of customary commissions). In connection with distributions of shares of Common Stock or otherwise, the Company may enter into hedging transactions with Counterparties in connection with which such Counterparties may sell shares of Common Stock registered hereunder in the course of hedging the positions they assume with the Company. Such Counterparties may offer Common Stock through underwriters or dealers, directly to one or more purchasers, or through agents, and may effect sales in one or more transactions on the New York Stock Exchange or in negotiated transactions or a combination of such methods of sale, at market prices prevailing at the time of sale, at prices related to such prevailing market prices or at other negotiated prices. The Company will not receive any of the proceeds from the sale of Common Stock by Counterparties. A Counterparty may be deemed to be an "underwriter" within the meaning of the Securities Act, and any commission received by it and any profit on the resale of the Common Stock purchased by it may be deemed to be underwriting commissions or discounts under the Securities Act. The Company may agree to bear all expenses of registration of any Common Stock offered by Counterparties and may indemnify such Counterparties against certain civil liabilities, including certain liabilities under the Securities Act. ERISA AND TAX CONSIDERATIONS The Employee Retirement Income Security Act of 1974, as amended ("ERISA"), imposes certain restrictions on investments by employee benefit plans that are subject to ERISA. The Internal Revenue Code of -30- 1986, as amended (the "Code"), imposes additional restrictions on investments by tax-exempt retirement plans, individual retirement accounts, and similar entities. The Code also provides that certain types of income received by organizations that generally are exempt from federal income tax will nevertheless be subject to taxation. Retirement plans, tax-exempt organizations and similar entities should consult their tax and legal advisors and the applicable Prospectus Supplement before acquiring Securities. LEGAL MATTERS The legality of the Securities (other than the Preferred Securities) offered hereby will be passed upon by Margaret G. Gill, Senior Vice President Legal, External Affairs and Secretary of the Company, except as set forth in a Prospectus Supplement. Certain matters of Delaware law regarding the legality of the Preferred Securities will be passed upon by Morris, Nichols, Arsht & Tunnell, Delaware, special Delaware counsel for the Financing Trusts. Certain legal matters will be passed upon for the underwriters by Cleary, Gottlieb, Steen & Hamilton, New York, New York, except as otherwise set forth in a Prospectus Supplement. EXPERTS The consolidated financial statements of the Company and subsidiaries incorporated in this Prospectus by reference to the Company's Annual Report on Form 10-K for the year ended December 31, 1997, have been so incorporated in reliance on the report of Price Waterhouse LLP, independent accountants, given on the authority of said firm as experts in auditing and accounting. With respect to the unaudited consolidated financial information of the Company for the three-month periods ended March 31, 1998 and 1997, incorporated by reference herein, Price Waterhouse LLP reported that they have applied limited procedures in accordance with professional standards for review of such information. However, their separate report dated May 4, 1998, incorporated by reference herein, states that they did not audit and they do not express an opinion on that unaudited consolidated financial information. Price Waterhouse LLP has not carried out any significant or additional audit tests beyond those which would have been necessary if their report had not been included. Accordingly, the degree of reliance on their report on such information should be restricted in light of the limited nature of the review procedures applied. Price Waterhouse LLP is not subject to the liability provisions of section 11 of the Securities Act of 1933 for their report on the unaudited consolidated financial information because that report is not a "report" or "part" of the Registration Statement prepared or certified by Price Waterhouse LLP within the meaning of sections 7 and 11 of the Securities Act. The consolidated financial statements and schedule of Cellular Communications, Inc. incorporated by reference in the Company's Annual Report on Form 10-K for the year ended December 31, 1997, have been audited by Ernst & Young LLP, independent auditors, as set forth in their report thereon incorporated by reference therein and incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such report given upon the authority of such firm as experts in accounting and auditing. The financial statements of Mannesmann Mobilfunk GmbH as of December 31, 1997 and 1996, and for each of the years in the three-year period ended December 31, 1997 included in the Company's Annual Report on Form 10-K have been incorporated by reference herein in reliance upon the report of KPMG Deutsche Treuhand-Gesellschaft, independent auditors, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing. The financial statements and schedule of CMT Partners for the years ended December 31, 1997 and 1996, incorporated by reference from the Company's Annual Report on Form 10-K for the year ended December 31, 1997, have been audited by Coopers & Lybrand L.L.P., independent accountants, as set forth in their report. In that report, the firm states that with respect to Kansas Combined Cellular, a division of CMT Partners, its opinion is based on the report of other independent public accountants, namely Arthur Andersen LLP. The financial statements and schedule of CMT Partners referred to above have been included herein in reliance upon the authority of those firms as experts in giving said reports. -31- The consolidated financial statements of New Par (A Partnership) incorporated by reference in the Company's Annual Report on Form 10-K for the year ended December 31, 1997, have been audited by Ernst & Young LLP, independent auditors, as set forth in their report thereon incorporated by reference therein and incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such report given upon the authority of such firm as experts in accounting and auditing. The audited consolidated financial statements of U S WEST NewVector Group, Inc. and Subsidiaries, incorporated by reference in the Company's Form 8-K/A-1 dated April 6, 1998 have been audited by Arthur Andersen LLP, independent public accountants, as indicated in their report with respect thereto, and are included herein in reliance upon the authority of said firm as experts in giving said reports. -32- ================================================================= ==================================================== NO DEALER, SALES REPRESENTATIVE, OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS IN CONNECTION WITH THIS OFFERING OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS OR ANY ACCOMPANYING PROSPECTUS SUPPLEMENT AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY AIRTOUCH COMMUNICATIONS, INC., ATI FINANCING I OR ATI FINANCING II OR BY ANY AGENT. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL, OR A SOLICITATION OF AN OFFER TO BUY, ANY SECURITIES OTHER THAN THE SECURITIES TO WHICH IT RELATES OR AN OFFER TO, OR A SOLICITATION OF, ANY PERSON IN ANY JURISDICTION WHERE SUCH AN OFFER OR SOLICITATION WOULD BE UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS, ANY ACCOMPANYING PROSPECTUS SUPPLEMENT NOR ANY SALE MADE HEREUNDER OR THEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF AIRTOUCH COMMUNICATIONS, INC., ATI FINANCING I OR ATI FINANCING II OR THAT THE INFORMATION CONTAINED HEREIN OR THEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE HEREOF OR THEREOF. ---------- TABLE OF CONTENTS PAGE $2,500,000,000 Index of Terms.............................................. 4 Available Information....................................... 5 AIRTOUCH COMMUNICATIONS, INC. Incorporation of Certain Documents by Reference............................................. 5 COMMON STOCK AirTouch Communications, Inc................................ 6 PREFERRED STOCK The Financing Trusts........................................ 6 DEPOSITARY SHARES Use of Proceeds............................................. 7 DEBT SECURITIES Ratio of Earnings to Fixed Charges.......................... 7 COMMON STOCK WARRANTS General Description of Securities PREFERRED STOCK WARRANTS and Risk Factors.......................................... 8 THIRD PARTY WARRANTS Description of the Common Stock............................. 8 DEBT WARRANTS Description of the Preferred Stock.......................... 10 STOCK PURCHASE CONTRACTS Description of the Depositary Shares........................ 11 STOCK PURCHASE UNITS Description of the Debt Securities.......................... 13 OTHER UNITS Description of the Warrants to Purchase Common Stock or Preferred Stock.......................... 21 Description of the Third Party Warrants..................... 22 ATI FINANCING I Description of the Warrants to Purchase ATI FINANCING II Debt Securities.......................................... 24 Description of the Stock Purchase Contracts and Stock Purchase Units................................. 24 Description of the Preferred Securities..................... 25 Description of the Guarantees............................... 26 PREFERRED SECURITIES, Description of the Other Units.............................. 29 GUARANTEED TO THE EXTENT SET FORTH HEREIN BY Plan of Distribution........................................ 29 AIRTOUCH COMMUNICATIONS, INC. ERISA and Tax Considerations................................ 30 Legal Matters............................................... 31 Experts..................................................... 31 __________, 1998 ================================================================= ====================================================
PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.* Securities and Exchange Commission Registration Fee.............. $619,500 Printing Expenses................................................ Accounting Fees and Expenses..................................... Legal Fees and Expenses.......................................... Trustee Fees..................................................... Fees of Rating Agencies.......................................... Blue Sky Fees and Expenses....................................... Miscellaneous.................................................... ---------- TOTAL............................................................ $ ========== * Estimated, except for the Securities and Exchange Commission Registration Fee.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Section 145 of the Delaware General Corporation Law (the "Delaware GCL") permits the Company's Board of Directors to indemnify any person against expenses (including attorney's fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with any threatened, pending or completed action, suit or proceeding in which such person is made a party by reason of his being or having been a director, officer, employee or agent of the Company, in terms sufficiently broad to permit such indemnification under certain circumstances for liabilities (including reimbursement for expenses incurred) arising under the Securities Act of 1933, as amended (the "Securities Act"). Section 145 provides that indemnification pursuant to its provisions is not exclusive of other rights of indemnification to which a person may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors, or otherwise. Article EIGHTH of the Company's Certificate of Incorporation provides for indemnification of its directors, officers, employees and other agents to the maximum extent permitted by the Delaware GCL. As permitted by Sections 102 and 145 of the Delaware GCL, Article NINTH of the Company's Certificate of Incorporation eliminates a director's personal liability for monetary damage to the Company and its stockholders arising from a breach or alleged breach of a director's fiduciary duty except to the extent not permitted under the Delaware GCL. In addition the Company has entered into separate indemnification agreements with its directors and officers that require the Company, among other things, to indemnify them against certain liabilities that may arise by reason of their status or service as directors or officers to the fullest extent not prohibited by law. The Declaration of each Financing Trust provides that no Financing Trustee, affiliate of any Financing Trustee, or any officer, director, shareholder, member, partner, employee, representative or agent of any Financing Trustee, or any employee or agent of such Financing Trust or its affiliates (each an "Indemnified Person"), shall be liable, responsible or accountable in damages or otherwise to such Financing Trust or any employee or agent of the trust or its affiliates for any loss, damage or claim incurred by reason of any act or omission performed or admitted by such Indemnified Person in good faith on behalf of such Financing Trust and in a manner such Indemnified Person reasonably believed to be within the scope of the authority conferred on such Indemnified Person by such Declaration or by law, except that an Indemnified Person shall be liable for any such loss, damage or claim incurred by reason of such Indemnified Person's gross negligence (or, in the case of the Property Trustee, negligence) or willful misconduct with respect to such acts or omissions. The Declaration of each Financing Trust also provides that to the fullest extent permitted by applicable law, the Company shall indemnify and hold harmless each Indemnified Person from and against any loss, damage or claim incurred by such Indemnified Person by reason of any act or omission performed or omitted by such Indemnified Person in II-1 good faith on behalf of such Financing Trust and in a manner such Indemnified Person reasonably believed to be within the scope of authority conferred on such Indemnified Person by such Declaration except that no Indemnified Person shall be entitled to be indemnified in respect of any loss, damage or claim incurred by such Indemnified Person by reason of gross negligence (or, in the case of the Property Trustee, negligence) or willful misconduct with respect to such acts or omissions. The Declaration of each Financing Trust further provides that, to the fullest extent permitted by applicable law, expenses (including legal fees) incurred by an Indemnified Person in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by or an undertaking by or on behalf of the Indemnified Person to repay such amount if it shall be determined that the Indemnified Person is not entitled to be indemnified for the underlying cause of action as authorized by such Declaration. The directors and officers of the Company and the Regular Trustees are covered by insurance policies indemnifying against certain liabilities, including certain liabilities arising under the Securities Act, which might be incurred by them in such capacities and against which they cannot be indemnified by the Company or Financing Trusts. Any agents, dealers or underwriters who execute any of the agreements filed as Exhibit 1 to this registration statement will agree to indemnify the Company's directors and their officers and the Financing Trustees who signed the registration statement against certain liabilities that may arise under the Securities Act with respect to information furnished to the Company or any of the Financing Trusts by or on behalf of any such indemnifying party. ITEM 16. EXHIBITS. Exhibits identified in parentheses below, on file with the Commission, are incorporated by reference as exhibits hereto. 1.1 Form of Underwriting Agreement (Debt Securities). 1.2 Form of Underwriting Agreement (Equity Securities). 4.1 Certificate of Incorporation of the Company, as filed with the Secretary of State of the State of Delaware on September 19, 1994 (Exhibit 3.1 to the Company's Current Report on Form 8-K Date of Report: December 15, 1994, File No. 1-12342 and incorporated by reference herein). 4.2 Amended By-laws of the Company as of June 13, 1996 (Exhibit 3 to the Company's Quarterly Report on Form 10-Q for the period ended June 30, 1996, File No. 1-12342 and incorporated by reference herein). 4.3 Form of Common Stock certificate (Exhibit 4.1 to the Company's Annual Report on Form 10-K for the year ended December 31, 1994, File No. 1-12342 and incorporated by reference herein). 4.4 Designation, Preferences and Rights of Series A Participating Preferred Stock of the Company, as filed with the Secretary of State of the State of Delaware on December 15, 1994 (Exhibit 3.2 to the Company's Form 8-B, File No. 1-12342, filed January 27, 1995 and incorporated by reference herein). 4.5 Certificate of Designation, Preferences and Rights of Class B Preferred Stock, Series 1996 (Exhibit 4.3 to the Company's Annual Report on Form 10-K for the year ended December 31, 1996, File No. 1-12342 and incorporated by reference herein). II-2 4.6 Certificate of Designation, Preferences and Rights of Class C Preferred Stock, Series 1996 (Exhibit 4.4 to the Company's Annual Report on Form 10-K for the year ended December 31, 1996, File No. 1-12342 and incorporated by reference herein). 4.7 Certificate of Designation, Preferences and Rights of 5.143% Class D Cumulative Preferred Stock (Exhibit 3.1 to the Company's Current Report on Form 8-K, Date of Report: April 6, 1998, File No. 1-12342 and incorporated by reference herein). 4.8 Certificate of Designation, Preferences and Rights of 5.143% Class E Cumulative Preferred Stock (Exhibit 3.2 to the Company's Current Report on Form 8-K, Date of Report: April 6, 1998, File No. 1-12342 and incorporated by reference herein). 4.9 Rights Agreement between the Company and The Bank of New York, Rights Agent, dated as of September 19, 1994 (Exhibit 4 to the Company's Current Report on Form 8-K - Date of Report: December 15, 1994, File No. 1-12342 and incorporated by reference herein). 4.10 Amendment No. 1 to Rights Agreement between the Company and The Bank of New York, Rights Agent, dated as of January 29, 1998 (Exhibit 4.3 to the Company's Annual Report on Form 10-K for the year ended December 31, 1997, File No. 1-12342 and incorporated by reference herein). 4.11 Indenture dated as of July 16, 1996 between the Company and The First National Bank of Chicago, as trustee (Exhibit 4.1 to the Company's Quarterly Report on Form 10-Q for the period ended June 30, 1996, File No. 1-12342 and incorporated by reference herein). 4.12 First Supplemental Indenture dated as of July 16, 1996 between the Company and The First National Bank of Chicago, as trustee (Exhibit 4.1 to the Company's Current Report on Form 8-K, Date of Report: July 3, 1996, File No. 1-12342 and incorporated by reference herein). 4.13 Second Supplemental Indenture dated as of July 16, 1996 between the Company and The First National Bank of Chicago, as trustee (Exhibit 4.1 to the Company's Current Report on Form 8-K, Date of Report: July 11, 1996, File No. 1-12342 and incorporated by reference herein). 4.14 Third Supplemental Indenture dated as of October 7, 1996 between the Company and The First National Bank of Chicago, as trustee (Exhibit 4.1 to the Company's Current Report on Form 8-K: Date of Report: October 2, 1996, File No. 1-12342 and incorporated by reference herein). 4.15 Fourth Supplemental Indenture dated as of May 4, 1998 between the Company and The First National Bank of Chicago, as trustee (Exhibit 4.1 to the Company's Current Report on Form 8-K, Date of Report: April 29, 1998, File No. 1-12342 and incorporated by reference herein). 4.16 Fifth Supplemental Indenture dated as of June 3, 1998 between the Company and The First National Bank of Chicago, as trustee (Exhibit 4.1 to the Company's Current Report on Form 8-K, Date of Report: May 29, 1998, File No. 1-12342 and incorporated by reference herein). 4.17 Certificate of Trust of ATI Financing I (Exhibit 4.4 to the Company's registration statement on Form S-3, File No. 33-62787 and incorporated by reference herein). 4.18 Certificate of Trust of ATI Financing II (Exhibit 4.5 to the Company's registration statement on Form S-3, File No. 33-62787 and incorporated by reference herein). 4.19 Form of Amended and Restated Declaration of Trust of ATI Financing I and ATI Financing II (Exhibit 4.6 to the Company's registration statement on Form S-3, File No. 33-62787 and incorporated by reference herein). II-3 4.20 Form of Pledge Agreement (Exhibit 4.7 to the Company's registration statement on Form S-3, File No. 33-62787 and incorporated by reference herein). 4.21 Form of Senior Indenture (Exhibit 4.8 to the Company's registration statement on Form S-3, File No. 33-62787 and incorporated by reference herein). 4.22 Form of Standard Stock Warrant Provisions (Exhibit 4.9 to the Company's registration statement on Form S-3, File No. 33-62787 and incorporated by reference herein). 4.23 Form of Debt Securities Warrant Agreement (Exhibit 4.10 to the Company's registration statement on Form S-3, File No. 33-62787 and incorporated by reference herein). 4.24 Form of Deposit Agreement (Exhibit 4.11 to the Company's registration statement on Form S- 3, File No. 33-62787 and incorporated by reference herein). 4.25 Form of Subordinated Indenture (Exhibit 4.12 to the Company's registration statement on Form S-3, File No. 33-62787 and incorporated by reference herein). 4.26 Form of Preferred Securities Guarantee Agreement (Exhibit 4.13 to the Company's registration statement on Form S-3, File No. 33-62787 and incorporated by reference herein). 4.27 Form of Stock Purchase Contract Agreement (Exhibit 4.14 to the Company's registration statement on Form S-3, File No. 33-62787 and incorporated by reference herein). 4.28 Form of Master Unit Agreement. 4.29 Form of Master Unit Pledge Agreement. 4.30 Form of Call Option Agreement. 5.1(a) Opinion of Margaret G. Gill. 5.1(b) Opinion of Morris, Nichols, Arsht & Tunnell (ATI Financing I). 5.1(c) Opinion of Morris, Nichols, Arsht & Tunnell (ATI Financing II). 12.1 Statement re Computation of Ratios. 15.1 Letter of Price Waterhouse LLP re: Unaudited Interim Financial Information. 23.1 Consent of Price Waterhouse LLP. 23.2 Consent of Ernst & Young LLP (CCI). 23.3 Consent of KPMG Deutsche Treuhand-Gesellschaft (Mannesmann Mobilfunk GmbH). 23.4 Consent of Coopers & Lybrand LLP (CMT Partners). 23.5 Consent of Ernst & Young LLP (New Par). 23.6 Consent of Arthur Andersen LLP (Kansas Combined Cellular). 23.7 Consent of Arthur Andersen LLP (US WEST NewVector Group, Inc.). 23.8 Consent of Margaret G. Gill (included in Exhibit 5.1(a)). II-4 23.9 Consent of Morris, Nichols, Arsht & Tunnell (included in Exhibits 5.1(b) and 5.1(c)). 24.1 Power of Attorney (AirTouch Communications, Inc.) (included on page II-6). 24.2 Power of Attorney (ATI Financing I) (included on page II-8). 24.3 Power of Attorney (ATI Financing II) (included on page II-8). ITEM 17. UNDERTAKINGS. AirTouch Communications, Inc., ATI Financing I and ATI Financing II (the "Registrants") hereby undertake: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high and of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective Registration Statement. (iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; provided, however, that paragraphs (i) and (ii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by AirTouch Communications, Inc. pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. The Registrants hereby undertake that, for purposes of determining any liability under the Securities Act of 1933, each filing of AirTouch Communications, Inc.'s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. II-5 ATI Financing I and ATI Financing II each hereby undertakes to provide to the underwriter at the closing specified in the underwriting agreements, certificates in such denominations and registered in such names as required by the underwriter to permit prompt delivery to each purchaser. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrants pursuant to the provisions described in Item 15 or otherwise, the Registrants have been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. If a claim for indemnification against such liabilities (other than the payment by the Registrants of expenses incurred or paid by a director, officer or controlling person of the Registrants in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrants, will, unless in the opinion of counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue. The Registrants hereby undertake to file an application for the purpose of determining the eligibility of the trustee to act under Subsection (a) of Section 310 of the Trust Indenture Act of 1939 in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Trust Indenture Act of 1939. The Registrants hereby undertake that: (1) For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this Registration Statement in reliance upon Rule 430A and contained in a form of Prospectus filed by the Registrants pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act of 1933 shall be deemed to be part of this Registration Statement as of the time it was declared effective. (2) For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of Prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. II-6 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Company certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, hereunto duly authorized, in the City of San Francisco, State of California, on June 11, 1998. AIRTOUCH COMMUNICATIONS, INC. By /s/ Mohan S. Gyani -------------------------------------- Mohan S. Gyani Executive Vice President and Chief Financial Officer POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each of the undersigned hereby constitutes and appoints Sam Ginn, Margaret G. Gill, Mohan S. Gyani, Arun Sarin and each of them, his/her attorneys for him/her in his/her stead, in each of his/her offices and capacities as an officer, director, or both of the Company, to sign and to file with the Commission such Registration Statements on Form S-3, and any and all amendments, modifications, or supplements thereto, and any exhibits thereto, and grants to each of said attorneys full power and authority to sign and file any and all other documents and to perform and do all and every act and thing whatsoever requisite and necessary to be done in and about the premises as fully, to all intents and purposes, as he/she might or could do if personally present at the doing thereof, and hereby ratifies and confirms all that said attorneys may or shall lawfully do, or cause to be done, by virtue hereof in connection with the registration of the aforesaid securities. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons and in the capacities indicated on the 11th day of June, 1998. Name Title ---- ----- /s/ Sam Ginn Chairman of the Board and Chief Executive - ------------------------------ Officer (principal executive officer) Sam Ginn /s/ Mohan S. Gyani Executive Vice President and Chief Financial - ------------------------------ Officer (principal financial officer and Mohan S. Gyani principal accounting officer) /s/ Arun Sarin President, Chief Operating Officer and - ------------------------------ Director Arun Sarin /s/ Carol A. Bartz Director - ------------------------------ Carol A. Bartz II-7 Name Title ---- ----- /s/ C. Lee Cox Director - ------------------------------ C. Lee Cox /s/ Michael D. Boskin Director - ------------------------------ Michael D. Boskin /s/ Donald G. Fisher Director - ------------------------------ Donald G. Fisher Director - ------------------------------ Paul Hazen /s/ Arthur Rock Director - ------------------------------ Arthur Rock Director - ------------------------------ Charles R. Schwab /s/ George P. Schultz Director - ------------------------------ George P. Shultz /s/ Chang Lin Tien Director - ------------------------------ Chang Lin Tien II-8 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, each of ATI Financing I and ATI Financing II, certifies that it has reasonable grounds to believe that it meets all the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, hereunto duly authorized, in the City of San Francisco, State of California, on June 11, 1998. POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each of the undersigned hereby constitutes and appoints Sam Ginn, Mohan S. Gyani, Margaret G. Gill and each of them, his/her attorneys for him/her in his/her stead, in each of his/her offices and capacities as an administrator of ATI Financing I and ATI Financing II, to sign and to file with the Commission such Registration Statements on Form S-3, and any and all amendments, modifications or supplements thereto, and any exhibits thereto, and grants to each of said attorneys full power and authority to sign and file any and all other documents and to perform and do all and every act and thing whatsoever requisite and necessary to be done in and about the premises as fully, to all intents and purposes, as he/she might or could do if personally present at the doing thereof, and hereby ratifies and confirms all that said attorneys may or shall lawfully do, or cause to be done, by virtue hereof in connection with the registration of the aforesaid securities. ATI Financing I By /s/ Sam Ginn ------------------------------------- Sam Ginn, Trustee By /s/ Mohan S. Gyani ------------------------------------- Mohan S. Gyani, Trustee By /s/ Margaret G. Gill ------------------------------------- Margaret G. Gill, Trustee ATI Financing II By /s/ Sam Ginn ------------------------------------- Sam Ginn, Trustee By /s/ Mohan S. Gyani ------------------------------------- Mohan S. Gyani, Trustee By /s/ Margaret G. Gill ------------------------------------- Margaret G. Gill, Trustee II-9 EXHIBIT INDEX 1.1 Form of Underwriting Agreement (Debt Securities). 1.2 Form of Underwriting Agreement (Equity Securities). 4.1 Certificate of Incorporation of the Company, as filed with the Secretary of State of the State of Delaware on September 19, 1994 (Exhibit 3.1 to the Company's Current Report on Form 8-K Date of Report: December 15, 1994, File No. 1-12342 and incorporated by reference herein). 4.2 Amended By-laws of the Company as of June 13, 1996 (Exhibit 3 to the Company's Quarterly Report on Form 10-Q for the period ended June 30, 1996, File No. 1-12342 and incorporated by reference herein). 4.3 Form of Common Stock certificate (Exhibit 4.1 to the Company's Annual Report on Form 10-K for the year ended December 31, 1994, File No. 1-12342 and incorporated by reference herein). 4.4 Designation, Preferences and Rights of Series A Participating Preferred Stock of the Company, as filed with the Secretary of State of the State of Delaware on December 15, 1994 (Exhibit 3.2 to the Company's Form 8-B, File No. 1-12342, filed January 27, 1995 and incorporated by reference herein). 4.5 Certificate of Designation, Preferences and Rights of Class B Preferred Stock, Series 1996 (Exhibit 4.3 to the Company's Annual Report on Form 10-K for the year ended December 31, 1996, File No. 1-12342 and incorporated by reference herein). 4.6 Certificate of Designation, Preferences and Rights of Class C Preferred Stock, Series 1996 (Exhibit 4.4 to the Company's Annual Report on Form 10-K for the year ended December 31, 1996, File No. 1-12342 and incorporated by reference herein). 4.7 Certificate of Designation, Preferences and Rights of 5.143% Class D Cumulative Preferred Stock (Exhibit 3.1 to the Company's Current Report on Form 8-K, Date of Report: April 6, 1998, File No. 1-12342 and incorporated by reference herein). 4.8 Certificate of Designation, Preferences and Rights of 5.143% Class E Cumulative Preferred Stock (Exhibit 3.2 to the Company's Current Report on Form 8-K, Date of Report: April 6, 1998, File No. 1-12342 and incorporated by reference herein). 4.9 Rights Agreement between the Company and The Bank of New York, Rights Agent, dated as of September 19, 1994 (Exhibit 4 to the Company's Current Report on Form 8-K - Date of Report: December 15, 1994, File No. 1-12342 and incorporated by reference herein). 4.10 Amendment No. 1 to Rights Agreement between the Company and The Bank of New York, Rights Agent, dated as of January 29, 1998 (Exhibit 4.3 to the Company's Annual Report on Form 10-K for the year ended December 31, 1997, File No. 1-12342 and incorporated by reference herein). 4.11 Indenture dated as of July 16, 1996 between the Company and The First National Bank of Chicago, as trustee (Exhibit 4.1 to the Company's Quarterly Report on Form 10-Q for the period ended June 30, 1996, File No. 1-12342 and incorporated by reference herein). II-10 4.12 First Supplemental Indenture dated as of July 16, 1996 between the Company and The First National Bank of Chicago, as trustee (Exhibit 4.1 to the Company's Current Report on Form 8-K, Date of Report: July 3, 1996, File No. 1-12342 and incorporated by reference herein). 4.13 Second Supplemental Indenture dated as of July 16, 1996 between the Company and The First National Bank of Chicago, as trustee (Exhibit 4.1 to the Company's Current Report on Form 8-K, Date of Report: July 11, 1996, File No. 1-12342 and incorporated by reference herein). 4.14 Third Supplemental Indenture dated as of October 7, 1996 between the Company and The First National Bank of Chicago, as trustee (Exhibit 4.1 to the Company's Current Report on Form 8-K: Date of Report: October 2, 1996, File No. 1-12342 and incorporated by reference herein). 4.15 Fourth Supplemental Indenture dated as of May 4, 1998 between the Company and The First National Bank of Chicago, as trustee (Exhibit 4.1 to the Company's Current Report on Form 8-K, Date of Report: April 29, 1998, File No. 1-12342 and incorporated by reference herein). 4.16 Fifth Supplemental Indenture dated as of June 3, 1998 between the Company and The First National Bank of Chicago, as trustee (Exhibit 4.1 to the Company's Current Report on Form 8-K, Date of Report: May 29, 1998, File No. 1-12342 and incorporated by reference herein). 4.17 Certificate of Trust of ATI Financing I (Exhibit 4.4 to the Company's registration statement on Form S-3, File No. 33-62787 and incorporated by reference herein). 4.18 Certificate of Trust of ATI Financing II (Exhibit 4.5 to the Company's registration statement on Form S-3, File No. 33-62787 and incorporated by reference herein). 4.19 Form of Amended and Restated Declaration of Trust of ATI Financing I and ATI Financing II (Exhibit 4.6 to the Company's registration statement on Form S-3, File No. 33-62787 and incorporated by reference herein). 4.20 Form of Pledge Agreement (Exhibit 4.7 to the Company's registration statement on Form S-3, File No. 33-62787 and incorporated by reference herein). 4.21 Form of Senior Indenture (Exhibit 4.8 to the Company's registration statement on Form S-3, File No. 33-62787 and incorporated by reference herein). 4.22 Form of Standard Stock Warrant Provisions (Exhibit 4.9 to the Company's registration statement on Form S-3, File No. 33-62787 and incorporated by reference herein). 4.23 Form of Debt Securities Warrant Agreement (Exhibit 4.10 to the Company's registration statement on Form S-3, File No. 33-62787 and incorporated by reference herein). 4.24 Form of Deposit Agreement (Exhibit 4.11 to the Company's registration statement on Form S- 3, File No. 33-62787 and incorporated by reference herein). 4.25 Form of Subordinated Indenture (Exhibit 4.12 to the Company's registration statement on Form S-3, File No. 33-62787 and incorporated by reference herein). 4.26 Form of Preferred Securities Guarantee Agreement (Exhibit 4.13 to the Company's registration statement on Form S-3, File No. 33-62787 and incorporated by reference herein). 4.27 Form of Stock Purchase Contract Agreement (Exhibit 4.14 to the Company's registration statement on Form S-3, File No. 33-62787 and incorporated by reference herein). 4.28 Form of Master Unit Agreement. II-11 4.29 Form of Master Unit Pledge Agreement. 4.30 Form of Call Option Agreement. 5.1(a) Opinion of Margaret G. Gill. 5.1(b) Opinion of Morris, Nichols, Arsht & Tunnell (ATI Financing I). 5.1(c) Opinion of Morris, Nichols, Arsht & Tunnell (ATI Financing II). 12.1 Statement re Computation of Ratios. 15.1 Letter of Price Waterhouse LLP re: Unaudited Interim Financial Information. 23.1 Consent of Price Waterhouse LLP. 23.2 Consent of Ernst & Young LLP (CCI). 23.3 Consent of KPMG Deutsche Treuhand-Gesellschaft (Mannesmann Mobilfunk GmbH). 23.4 Consent of Coopers & Lybrand LLP (CMT Partners). 23.5 Consent of Ernst & Young LLP (New Par). 23.6 Consent of Arthur Andersen LLP (Kansas Combined Cellular). 23.7 Consent of Arthur Andersen LLP (US WEST NewVector Group, Inc.). 23.8 Consent of Margaret G. Gill (included in Exhibit 5.1(a)). 23.9 Consent of Morris, Nichols, Arsht & Tunnell (included in Exhibits 5.1(b) and 5.1(c)). 24.1 Power of Attorney (AirTouch Communications, Inc.) (included on page II-6). 24.2 Power of Attorney (ATI Financing I) (included on page II-8). 24.3 Power of Attorney (ATI Financing II) (included on page II-8). II-12 EX-1.1 2 UNDERWRITING AGREEMENT EXHIBIT 1.1 ================================================================================ AIRTOUCH COMMUNICATIONS, INC. DEBT SECURITIES -------------------------- UNDERWRITING AGREEMENT STANDARD PROVISIONS ================================================================================ AIRTOUCH COMMUNICATIONS, INC. DEBT SECURITIES ------------ UNDERWRITING AGREEMENT STANDARD PROVISIONS From time to time, AirTouch Communications, Inc., a Delaware corporation ("AirTouch"), may enter into one or more underwriting agreements that provide for the sale of certain debt securities (the "Securities"), to the purchaser or purchasers named therein (the "Underwriters"). The standard provisions set forth herein may be incorporated by reference in any such underwriting agreement (the "Underwriting Agreement"). The Underwriting Agreement, including the provisions incorporated therein by reference, is herein referred to as "this Agreement." Unless otherwise defined herein, terms defined in the Underwriting Agreement are used herein as therein defined. Capitalized terms not otherwise defined in this Agreement shall have the meaning ascribed thereto in the Indenture (as hereinafter defined). The terms governing of the issuance and sale of any particular series of Securities shall be as provided in the applicable Underwriting Agreement (with respect to each Underwriting Agreement, such series of Securities are herein referred to as the "Designated Securities"). 1. ISSUANCE OF DESIGNATED SECURITIES. Sales of the Designated Securities may be made from time to time to the Underwriters of the Designated Securities. Any firm or firms designated as the representative or representatives, as the case may be, of the Underwriters of the Designated Securities in the Underwriting Agreement relating thereto will act as the representative or representatives (the "Representative"). The obligation of AirTouch to issue and sell any of the Designated Securities and the obligation of any Underwriters to purchase any of the Designated Securities shall be evidenced by the Underwriting Agreement with respect to the Designated Securities specified therein. Each Underwriting Agreement shall specify the aggregate principal amount of the Designated Securities, the public offering price of the Designated Securities, the purchase price to the Underwriters of the Designated Securities, the names of the Underwriters of the Designated Securities, the name of the Representative, if any, of such Underwriters, and the principal amount of the Designated Securities to be purchased by each Underwriter and shall set forth the date, time and manner of delivery of the Designated Securities and payment therefor. The Underwriting Agreement shall also specify, to the extent not set forth in the Registration Statement and Prospectus (as hereinafter defined) with respect thereto, the general terms of the Designated Securities. An Underwriting Agreement shall be in writing (which may be in counterparts), and may be evidenced by an exchange of facsimile transmissions. The obligations of the Underwriters under each Underwriting Agreement shall be several and not joint. 2. REPRESENTATIONS AND COVENANTS. AirTouch represents to, and covenants with, each Underwriter that: -1- (a) AirTouch meets the requirements for the use of Form S-3 and a registration statement on Form S-3 (Registration No. 333-__________, including a prospectus, relating to the Securities of AirTouch has been filed with the Securities and Exchange Commission (the "Commission") in accordance with applicable regulations of the Commission under the Securities Act of 1933, as amended (the "Act"), and has been declared effective under the Act. Such registration statement, as amended to the date of this Agreement, is hereinafter referred to as the "Registration Statement," and such prospectus as proposed to be supplemented by a prospectus supplement (the "Prospectus Supplement") relating to the Designated Securities to be filed pursuant to Rule 424 under the Act is hereinafter referred to as the "Prospectus." Any reference herein to the Registration Statement or the Prospectus shall be deemed to refer to and include the documents which were filed under the Securities Exchange Act of 1934, as amended (the "Exchange Act") on or before the date of this Agreement, and incorporated by reference in the Prospectus pursuant to Item 12 of Form S-3, excluding any documents or portions of such documents which are deemed under the rules and regulations of the Commission under the Act not to be incorporated by reference; and any reference herein to the terms "amend," "amendment" or "supplement" with respect to the Registration Statement or the Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act deemed to be incorporated therein by reference after the date of this Agreement. For purposes of this Agreement, "Effective Time" with respect to the Registration Statement means (A) if AirTouch has not advised the Representative that it proposes to amend such registration statement, the date and time as of which such registration statement, or the most recent post-effective amendment thereto (if any) filed prior to the execution and delivery of this Agreement, was declared effective by the Commission or has become effective upon filing pursuant to Rule 462(c) under the Act, or (B) if AirTouch has advised the Representative that it proposes to file an amendment or post-effective amendment to such registration statement, the date and time as of which such registration statement, as amended by such amendment or post-effective amendment, as the case may be, is declared effective by the Commission. "Effective Date" with respect to the Registration Statement means the date of the Effective Time thereof. (b) At the Effective Time, the Registration Statement and the Prospectus conformed, and any amendments thereof and supplements thereto relating to the Designated Securities will conform, in all material respects to the requirements of the Act and the rules and regulations of the Commission thereunder; each document filed pursuant to the Exchange Act and incorporated by reference in the Prospectus complied when so filed as to form with the Exchange Act and the rules and regulations of the Commission thereunder; the Indenture conforms in all material respects to the requirements of the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") and the rules and regulations of the Commission thereunder; and neither the Registration Statement on the Effective Date nor the Prospectus as of the date thereof and on the Closing Date included or will include any untrue statement of a material fact or omitted or will omit to state any material fact required to be stated therein or necessary to make the statements therein, in the case of the Registration Statement, not misleading, or in the case of the Prospectus, in light of the circumstances in which they were made, not misleading; provided, however, that AirTouch makes no representations as to (i) that part of the Registration Statement which shall constitute a Trustee's Statement of -2- Eligibility and Qualifications (Form T-1) under the Trust Indenture Act and (ii) any statements or omissions made in reliance upon and in conformity with information furnished to AirTouch by or on behalf of any Underwriter for use in connection with the preparation of such documents. 3. DELIVERY AND PAYMENT. Delivery of and payment for the Designated Securities shall be made at the offices of counsel for the Underwriters, on the date and at the time specified in the Underwriting Agreement (the "Closing Date"), which Closing Date may be postponed by agreement between the Underwriters, or the Representative, as the case may be, and AirTouch. Delivery of the Designated Securities shall be made to the Underwriters or, if appropriate, the Representative for the respective accounts of the Underwriters, in either case, against payment by the Underwriters directly or through the Representative of the purchase price thereof to or upon the order of AirTouch by certified or official bank check or checks payable in New York Clearing House funds, unless otherwise agreed in the Underwriting Agreement. Certificates for the Designated Securities shall be registered in such names and in such denominations as the Representative may request in writing not less than one full business day in advance of the Closing Date. If so requested by the Underwriters or the Representative, as the case may be, AirTouch agrees to have the Designated Securities available for inspection, checking and packaging in New York, New York, at least one business day prior to the Closing Date. 4. OFFERING BY UNDERWRITERS. It is understood that the Underwriters propose to offer the Designated Securities for sale to the public upon the terms and conditions set forth in the Prospectus. 5. AGREEMENTS. AirTouch agrees with the Underwriters that: (a) AirTouch will cause the Prospectus Supplement to be filed pursuant to Rule 424 under the Act and will promptly advise the Underwriters or the Representative, as the case may be, when the Prospectus Supplement has been so filed, and prior to the termination of the offering of the Designated Securities will promptly advise such Underwriters or Representative (i) when any amendment to the Registration Statement has been declared effective or has become effective upon filing pursuant to Rule 462(c) under the Act or any further supplement to the Prospectus has been filed, (ii) of any request by the Commission for any amendment of the Registration Statement or the Prospectus or for any additional information, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose and (iv) of the receipt by AirTouch of any notification with respect to the suspension of the qualification of the Designated Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. AirTouch will use its best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. AirTouch will not file any amendment to the Registration Statement or supplement to the Prospectus relating to the Designated Securities unless it has furnished the Underwriters or the Representative, as the case may be, a copy prior to filing -3- and will not file any such proposed amendment or supplement to which such Underwriters or Representative reasonably objects. (b) If, at any time when a prospectus relating to the Designated Securities is required to be delivered under the Act or any other applicable securities law, any event occurs as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it shall be necessary to amend or supplement the Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, AirTouch will promptly notify the Underwriters or the Representative, as the case may be, and will promptly prepare and file with the Commission, subject to paragraph (a) of this Section 5, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. (c) AirTouch will make generally available to its security holders and to the Underwriters or the Representative, as the case may be, as soon as practicable, but not later than 45 days after the end of the 12-month period beginning at the end of the fiscal quarter of AirTouch during which the filing of the Prospectus Supplement pursuant to Rule 424 under the Act first occurs (except not later than 90 days if such filing date is in the last fiscal quarter), an earnings statement (which need not be audited) of AirTouch and its consolidated subsidiaries, covering such 12-month period, which will satisfy the provisions of Section 11(a) of the Act. (d) AirTouch will furnish to the Underwriters or the Representative, as the case may be, and counsel for such Underwriters or for such Representative copies of the Registration Statement (including, if requested, the exhibits thereto and the documents incorporated by reference in the Prospectus) and each amendment or supplement thereto relating to the Designated Securities which is thereafter filed pursuant to paragraph (a) or (b) of this Section 5 and to each Underwriter, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act or other applicable securities laws, as many copies of the Prospectus and any amendments thereof and supplements thereto, relating to the Designated Securities, as such Underwriters or such Representative may reasonably request. (e) AirTouch will pay (i) all expenses incurred by it in the performance of its obligations under this Agreement, (ii) reasonable fees charged for rating the Designated Securities and for preparing a Blue Sky and Legal Investment Memorandum with respect to the sale of the Designated Securities and (iii) the expenses of printing or otherwise producing and delivering the Designated Securities, the documents specified in paragraph (d) of this Section 5 and any Blue Sky and Legal Investment Memorandum. (f) AirTouch will use its best efforts to arrange and pay for the qualification of the Designated Securities for sale under the laws of such jurisdictions as the Underwriters or the Representative, as the case may be, may designate and to maintain such qualifications in effect so long as required for the distribution of the Designated Securities; provided, however, -4- that AirTouch shall not be required to qualify to do business in any jurisdiction where it is not now qualified or to take any action which would subject it to general or unlimited service of process in any jurisdiction where it is not now so subject. (g) If the sale of the Designated Securities provided for in an Underwriting Agreement is not consummated by reason of any failure, refusal or inability on the part of AirTouch to perform any agreement on its part to be performed (except for any failure so to perform on the part of AirTouch engendered by a failure, refusal or inability on the part of the Underwriters or any Representative to perform any agreement on their part to be performed) or the failure of any condition set forth in Section 6, AirTouch will reimburse the several Underwriters who are named in such Underwriting Agreement for all reasonable out-of-pocket disbursements incurred by the Underwriters in connection with their investigation, marketing and preparing to market the Designated Securities, and upon such reimbursement AirTouch shall have no further liability to the Underwriters except as provided in Section 7. (h) During the period beginning on the date of this Agreement and terminating on the later of (i) the Closing Date or (ii) the date of notice to AirTouch by the Representative or the Underwriters (which shall not exceed forty-five days from the date of this Agreement), AirTouch will not offer, sell, contract to sell or otherwise dispose of any debt securities of AirTouch substantially similar to the Designated Securities covered by this Agreement, without the prior written consent of such Representative or such Underwriters. 6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations of the Underwriters to purchase the Designated Securities shall be subject to the accuracy of the representations on the part of AirTouch contained herein as of the date hereof and the Closing Date, to the performance by AirTouch of its obligations hereunder and to the following additional conditions: (a) No stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted and be pending or threatened as of the Closing Date; (b) Pillsbury Madison & Sutro LLP, counsel for AirTouch, shall have furnished to the Representative their opinion, dated the Closing Date, substantially in the form attached hereto as Exhibit A; (c) The Underwriters or the Representative, as the case may be, shall have received from counsel for the Underwriters such opinion or opinions, dated the Closing Date, with respect to such matters as such Underwriters or Representative may reasonably require; (d) AirTouch shall have furnished to the Underwriters or the Representative, as the case may be, a certificate, dated the Closing Date, of AirTouch, signed by any executive officer of AirTouch, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Prospectus and this Agreement and that: -5- (i) The representations of AirTouch in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and AirTouch has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date; (ii) No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted and are pending or, to his or her knowledge, threatened as of such date; and (iii) Since the date of the most recent financial statements included in the Prospectus, there has been no material adverse change in the condition (financial or otherwise) of AirTouch and its consolidated subsidiaries, taken as a whole, nor any material increase in the debt of AirTouch and its consolidated subsidiaries, except as set forth in or contemplated by the Prospectus. (e) The Underwriters or the Representative, as the case may be, shall have received from [Ernst &Young LLP] a letter, dated the Closing Date, which letter shall be in form as may be agreed upon among such Underwriters or Representative, AirTouch and [Ernst & Young LLP] and shall cover such matters as may be reasonably requested by such Underwriters or Representative. (f) Prior to the Closing Date, AirTouch shall have furnished to the Underwriters or the Representative, as the case may be, such further information, certificates and documents as they may reasonably request. (g) Subsequent to the date hereof, there shall not have occurred any change, or any development involving a prospective change, in or affecting the business or properties of AirTouch and its subsidiaries considered as a whole which the Underwriters or the Representative, as the case may be, concludes, in its judgment, after consultation with AirTouch, materially impairs the investment quality of the Designated Securities so as to make it impractical or inadvisable to proceed with the public offering or the delivery of the Designated Securities as contemplated by the Prospectus and there shall not have been any decrease in the ratings of any of AirTouch's debt securities by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act). 7. INDEMNIFICATION AND CONTRIBUTION. (a) AirTouch agrees to indemnify and hold harmless each Underwriter, the directors, officers, employees and agents of each Underwriter, and each person, if any, who controls any Underwriter within the meaning of either the Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Act, the Exchange Act or other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities -6- (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or the Prospectus, or in any amendment thereof or supplement thereto relating to the Designated Securities, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and agrees to reimburse each such indemnified party for any legal or other expenses reasonably incurred by them, as so incurred, in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that AirTouch will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with information furnished in writing to AirTouch by or on behalf of any Underwriter through the Representative or the Underwriters, as the case may be, for use in connection with the preparation thereof. This indemnity agreement will be in addition to any liability which AirTouch may otherwise have. (b) Each Underwriter severally agrees to indemnify and hold harmless AirTouch, each of its directors, officers, employees and agents, and each person who controls AirTouch within the meaning of either the Act or the Exchange Act, to the same extent as the foregoing indemnity from AirTouch to each Underwriter, but only with reference to information furnished in writing to AirTouch by or on behalf of such Underwriter directly or through any Representative for use in the preparation of the documents referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability which any Underwriter may otherwise have. (c) Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 7, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party will not relieve the indemnifying party from any liability which it may have to any indemnified party otherwise than under this Section 7. In case any such action is brought against any indemnified party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein, and to the extent that it may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof, with counsel satisfactory to such indemnified party; provided that, if the defendants in any such action include both the indemnified party and the indemnifying party, and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party, the indemnified party or parties shall have the right to select separate counsel, to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties. Upon receipt of notice from the indemnifying party to such indemnified party of its election so to assume the defense of such action and approval by the indemnified party of counsel, the indemnifying party will not be liable to such indemnified party under this Section 7 for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof unless (i) the indemnified party shall -7- have employed separate counsel in connection with the assertion of legal defenses in accordance with the proviso to the next preceding sentence (it being understood, however, that the indemnifying party shall not be liable for the expenses of more than one separate counsel, approved by the representatives representing the indemnified parties who are parties to such action), (ii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of commencement of the action or (iii) the indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party; and except that, if clause (i) or (iii) is applicable, such liability shall be only in respect of the counsel referred to in such clause (i) or (iii). An indemnifying party will not, without the prior written consent of each indemnified party, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding. (d) In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in this Section 7 is due in accordance with its terms but is for any reason held by a court to be unavailable from AirTouch or the Underwriters on grounds of policy or otherwise, AirTouch and the Underwriters shall contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending same) to which AirTouch or one or more of the Underwriters may be subject in such proportion so that the Underwriters are responsible for that portion represented by the percentage that the underwriting discount appearing on the cover page of the Prospectus bears to the public offering price appearing thereon and AirTouch is responsible for the balance; provided that (y) in no case shall any Underwriter (except as may be provided in any agreement among underwriters relating to the offering of the Designated Securities) be responsible for any amount in excess of the underwriting discount applicable to the Designated Securities purchased by such Underwriter hereunder and (z) no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 7, each person who controls an Underwriter within the meaning of either the Act or the Exchange Act shall have the same rights to contribution as such Underwriter, and each person who controls AirTouch within the meaning of either the Act or the Exchange Act, each officer of AirTouch who shall have signed the Registration Statement and each director of AirTouch shall have the same rights to contribution as AirTouch, subject in each case to clause (y) of this paragraph (d). Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties under this paragraph (d), notify such party or parties from whom contribution may be sought, but the omission to so notify in writing such party or parties shall not relieve the party or parties from whom contribution may be sought from any other obligation it or they may have hereunder or otherwise than under this paragraph (d). -8- 8. TERMINATION. This Agreement shall be subject to termination in the absolute discretion of the Underwriters or the Representative, as the case may be, by written notice given to AirTouch prior to delivery of and payment for the Designated Securities, if prior to such time (i) trading in AirTouch's Common Stock or securities generally on the New York Stock Exchange shall have been suspended or materially limited, (ii) a general moratorium on commercial banking activities in New York shall have been declared by either Federal or New York State authorities or (iii) there shall have occurred any material outbreak or escalation of hostilities or other calamity or crisis the effect of which on the financial markets of the United States is such as to make it, in the reasonable judgment of such Underwriters or such Representative, impracticable or inadvisable to proceed with the offering or delivery of the Designated Securities as contemplated by the Prospectus and Prospectus Supplement. 9. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective agreements, representations, indemnities and other statements of AirTouch, or its officers and of the Underwriters and/or any Representative set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of any Underwriter, AirTouch or any of the officers, directors or controlling persons referred to in Section 7 hereof, and will survive delivery of and payment for the Securities. The provisions of Sections 5(e) and 7 hereof shall survive the termination or cancellation of this Agreement. 10. DEFAULT BY AN UNDERWRITER. If any one or more Underwriters shall fail to purchase and pay for any Designated Securities agreed to be purchased by such Underwriter or Underwriters hereunder and such failure to purchase shall constitute a default in the performance of its or their obligations under this Agreement, the remaining Underwriters shall be obligated severally to take up and pay for (in the respective proportions which the amount of Designated Securities set forth opposite their names in the appropriate schedule of the Underwriting Agreement bears to the aggregate amount of Designated Securities set forth opposite the names of all the remaining Underwriters) the Designated Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase; provided, however, that in the event that the aggregate amount of Designated Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of the amount of Designated Securities set forth in the appropriate schedule of the Underwriting Agreement, the remaining Underwriters shall have the right to purchase all, but shall not be under any obligation to purchase any, of the Designated Securities, and if such nondefaulting Underwriters do not purchase all the Designated Securities, this Agreement will terminate without liability to any nondefaulting Underwriter or AirTouch. In the event of a default by any Underwriter as set forth in this Section 10, the Closing Date shall be postponed for such period, not exceeding seven days, as the Representative or Underwriters, as the case may be, shall determine in order that the required changes in the Registration Statement and the Prospectus or in any other documents or arrangements may be effected. Nothing contained in this Agreement shall relieve any defaulting Underwriter of its liability, if any, to AirTouch and any nondefaulting Underwriter for damages occasioned by its default hereunder. 11. SUCCESSORS. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers and directors and controlling -9- persons referred to in Section 7 hereof, and no other person will have any right or obligation hereunder. 12. APPLICABLE LAW. This Agreement will be governed by and construed in accordance with the laws of the State of New York. -10- EXHIBIT A --------- [FORM OF PILLSBURY MADISON & SUTRO LLP OPINION] [Date] Underwriter(s) Ladies and Gentlemen: We have acted as counsel to AirTouch Communications, Inc. ("AirTouch") in connection with your purchase from AirTouch of $000,000,000 of its Securities (the "Securities"). Such purchase is made pursuant to the Underwriting Agreement dated ____________, 19__ (the "Underwriting Agreement") between AirTouch and you, the Underwriter[s]. This opinion is furnished pursuant to Section 6(b) of the Underwriting Agreement. Terms defined in the Indenture have the same meanings when used in this opinion. We have examined executed copies of the Securities, the Underwriting Agreement, the Registration Statement (as hereinafter defined) and the Prospectus (as hereinafter defined). We have also examined such other documents and certificates of public officials and representatives of AirTouch as we have deemed necessary as a basis for the opinions expressed herein. As to questions of fact material to such opinions, we have, when relevant facts were not independently established, relied upon certificates of officers or authorized representatives of AirTouch. We have assumed the genuineness of all signatures and documents submitted to us as originals, that all copies submitted to us conform to the originals, the legal capacity of all natural persons, and as to documents executed by entities other than AirTouch, that each of such entities has the power to enter into and perform its respective obligations thereunder, and that such documents have been duly authorized, executed and delivered by, and are binding upon and enforceable against, each of such entities. We express no opinion as to the laws of any jurisdiction other than California, New York and the general corporate law of Delaware and the Federal laws of the United States of America, and, with respect to questions of New York law, we have relied, with your permission, solely upon the opinion of ____________. Based upon the foregoing and subject to the qualifications set forth below, it is our opinion that: 1. AirTouch is validly existing and in good standing under the laws of the State of Delaware and is duly qualified and in good standing to do business in each other state identified in Attachment I hereto and possesses the requisite corporate power and authority to own its properties and conduct its business consistent with any description thereof in the prospectus dated __________ and the prospectus supplement dated _________, filed with the A-1 Securities and Exchange Commission (the "Commission") pursuant to Rule 424(b)(2) of Regulation C under the Securities Act of 1933, as amended (the "Act") (the prospectus and the prospectus supplement, including the documents incorporated by reference therein, are herein collectively referred to as the "Prospectus"). 2. The Underwriting Agreement has been duly authorized, executed and delivered by AirTouch. 3. The Securities have been duly authorized, executed and delivered by AirTouch and when delivered to and paid for by the Underwriters pursuant to the Underwriting Agreement will constitute valid and binding obligations of AirTouch, enforceable in accordance with their respective terms. 4. The Indenture has been duly authorized, executed and delivered, has been qualified under the Trust Indenture Act of 1939, as amended, and constitutes a valid and binding obligation of AirTouch, enforceable in accordance with its terms and when the Designated Securities have been executed and authenticated in accordance with the provisions of the Indenture they will be entitled to the benefits of the Indenture. 5. The Registration Statement on Form S-3 (File No. 333-__________) filed by AirTouch with the Commission under Rule 415 of the Act on ____________, 1998 (such Registration Statement including the documents incorporated by reference therein being herein collectively referred to as the "Registration Statement") has become effective under the Act, and, to the best of our knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act, and, except as may be otherwise indicated in the Prospectus or required by the blue sky or securities laws of jurisdictions in which the Securities are offered or Securities or the offer and sale of the Securities as described in the Prospectus, and the execution, delivery and performance of the terms of the Underwriting Agreement, the Indenture and the Securities by AirTouch will not contravene any provision of the Restated Certificate of Incorporation, as amended, or Bylaws of AirTouch, any Federal law or regulation or, to the best of our knowledge, any applicable state law or any material agreement or instrument binding upon AirTouch. 6. No consent, approval, authorization or order of, or filing with, any governmental agency or body or any federal or state court is required to be obtained or made by AirTouch for the consummation of the transactions contemplated by this Agreement in connection with the sale of the Designated Securities, except (A) such as have been obtained and made under the Act or the Exchange Act, or the rules and regulations thereunder, the bylaws and rules of the National Association of Securities Dealers, Inc. and (B) such as may be required under state or foreign securities laws. 7. To the best of our knowledge, there is no pending or threatened action, suit or proceeding before any court or governmental agency, authority or body or any arbitration involving AirTouch or any of its subsidiaries of a character required to be disclosed in the A-2 Registration Statement which is not adequately disclosed in the Prospectus or supplement relating thereto. 8. The Registration Statement and the Prospectus comply as to form in all material respects with the requirements of the Act and the rules and regulations of the Commission thereunder; each document filed by AirTouch under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and incorporated by reference in the Prospectus complied as to form in all material respects when so filed with the requirements of the Exchange Act and the rules and regulations of the Commission thereunder; the statements in the Prospectus with respect to the terms of the Securities fairly summarize the terms of such instruments and to the best of our knowledge there are no other agreements or instruments required to be described or referred to in the Registration Statement which have not been described or referred to therein; and while we have not ourselves checked the accuracy or completeness of, or otherwise verified the information furnished in the Registration Statement, we have considered the information required to be furnished therein and have generally reviewed and had discussions with certain officers and employees of AirTouch concerning the information so furnished, whether or not subject to our checking and verification, and on the basis of such consideration, review and discussions, but without independent checking or verification, we have no reason to believe that the Registration Statement or any amendment thereto at the time the Registration Statement or amendment became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or the Prospectus or any supplement thereto at the time it was filed pursuant to Rule 424(b) of the Act, or on such Closing Date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading; it being understood that with respect to the matters covered by this paragraph 8, we express no opinion as to the financial statements and related schedules and other financial, statistical or numerical data contained in the Registration Statement or the Prospectus. The opinions set forth in the foregoing are subject to the following qualifications: (a) Our opinions in paragraph 3 and 4 are subject to and limited by: (i) the effect of bankruptcy, insolvency, reorganization, receivership, conservatorship, arrangement, moratorium or other laws affecting or relating to the rights of creditors generally; (ii) the rules governing the availability of specific performance, injunctive relief or other equitable remedies and general principles of equity, regardless of whether considered in a proceeding in equity or at law; (iii) to the extent applicable, the effect of court decisions invoking statutes or principles of equity, which have held that certain covenants and provisions of agreements are unenforceable where the breach of such covenants or provisions imposes restrictions or burdens is necessary for the protection of the creditor, or which have held that the creditor's enforcement of such covenants or provisions under the circumstances would have violated the creditor's covenants of good faith and fair dealing implied under California law, and (iv) to the extent applicable, the effect of California statutes and rules of law which cannot be waived prospectively by a borrower. A-3 (b) Whenever a statement herein is qualified by "known to us," "to our knowledge" or similar phrase, it indicates that in the course of our representation of AirTouch no information that would give us current actual knowledge of the inaccuracy of such statement has come to the attention of the attorneys in this firm who have rendered legal services in connection with this transaction, including the principal partners of this firm who are familiar with matters relating to AirTouch. We have not made any independent investigation to determine the accuracy of such statement, except as expressly described herein. No inference as to our knowledge of any matters bearing on the accuracy of such statement should be drawn from the fact of our representation of AirTouch in other matters in which such attorneys are not involved. This opinion is rendered by us as counsel for AirTouch solely for your benefit in connection with the transaction referred to herein and may not be relied upon by you in connection with any other transaction and may not be relied upon by any other person without our prior written consent. Very truly yours, A-4 EX-1.2 3 UNDERWRITING AGREEMENT EXHIBIT 1.2 ================================================================================ AIRTOUCH COMMUNICATIONS, INC. EQUITY SECURITIES --------------- UNDERWRITING AGREEMENT STANDARD PROVISIONS ================================================================================ AIRTOUCH COMMUNICATIONS, INC. EQUITY SECURITIES ------------- UNDERWRITING AGREEMENT STANDARD PROVISIONS From time to time, AirTouch Communications, Inc., a Delaware corporation ("AirTouch"), may enter into one or more underwriting agreements that provide for the sale of certain equity securities (the "Securities"), to the purchaser or purchasers named therein (the "Underwriters"). The standard provisions set forth herein may be incorporated by reference in any such underwriting agreement (the "Underwriting Agreement"). The Underwriting Agreement, including the provisions incorporated therein by reference, is herein referred to as "this Agreement." Unless otherwise defined herein, terms defined in the Underwriting Agreement are used herein as therein defined. Capitalized terms not otherwise defined in this Agreement shall have the meaning ascribed thereto in the Indenture (as hereinafter defined). The terms governing of the issuance and sale of any particular series of Securities shall be as provided in the applicable Underwriting Agreement (with respect to each Underwriting Agreement, such series of Securities are herein referred to as the "Designated Securities"). 1. ISSUANCE OF DESIGNATED SECURITIES. Sales of the Designated Securities may be made from time to time to the Underwriters of the Designated Securities. Any firm or firms designated as the representative or representatives, as the case may be, of the Underwriters of the Designated Securities in the Underwriting Agreement relating thereto will act as the representative or representatives (the "Representative"). The obligation of AirTouch to issue and sell any of the Designated Securities and the obligation of any Underwriters to purchase any of the Designated Securities shall be evidenced by the Underwriting Agreement with respect to the Designated Securities specified therein. Each Underwriting Agreement shall specify the aggregate principal amount of the Designated Securities, the public offering price of the Designated Securities, the purchase price to the Underwriters of the Designated Securities, the names of the Underwriters of the Designated Securities, the name of the Representative, if any, of such Underwriters, and the principal amount of the Designated Securities to be purchased by each Underwriter and shall set forth the date, time and manner of delivery of the Designated Securities and payment therefor. The Underwriting Agreement shall also specify, to the extent not set forth in the Registration Statement and Prospectus (as hereinafter defined) with respect thereto, the general terms of the Designated Securities. An Underwriting Agreement shall be in writing (which may be in counterparts), and may be evidenced by an exchange of facsimile transmissions. The obligations of the Underwriters under each Underwriting Agreement shall be several and not joint. 2. REPRESENTATIONS AND COVENANTS. AirTouch represents to, and covenants with, each Underwriter that: (a) AirTouch meets the requirements for the use of Form S-3 and a registration statement on Form S-3 (Registration No. 333-_____), including a prospectus, relating to the Securities of AirTouch has been filed with the Securities and Exchange Commission (the "Commission") in accordance with applicable regulations of the Commission under the Securities Act of 1933, as amended (the "Act"), and has been declared effective under the Act. Such registration statement, as amended to the date of this Agreement, is hereinafter referred to as the "Registration Statement," and such prospectus as proposed to be supplemented by a prospectus supplement (the "Prospectus Supplement") relating to the Designated Securities to be filed pursuant to Rule 424 under the Act is hereinafter referred to as the "Prospectus." Any reference herein to the Registration Statement or the Prospectus shall be deemed to refer to and include the documents which were filed under the Securities Exchange Act of 1934 (the "Exchange Act") on or before the date of this Agreement, and incorporated by reference in the Prospectus pursuant to Item 12 of Form S-3,excluding any documents or portions of such documents which are deemed under the rules -1- and regulations of the Commission under the Act not to be incorporated by reference; and any reference herein to the terms "amend," "amendment" or "supplement" with respect to the Registration Statement or the Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act deemed to be incorporated therein by reference after the date of this Agreement. For purposes of this Agreement, "Effective Time" with respect to the Registration Statement means (i) if AirTouch has not advised the Representative that is proposes to amend such registration statement, the date and time as of which such registration statement, or the most recent post-effective amendment thereto (if any) filed prior to the execution and delivery of this Agreement, was declared effective by the Commission or has become effective upon filing pursuant to Rule 462(c) under the Act, or (ii) if AirTouch has advised the Representative that it proposes to file an amendment or post-effective amendment to such registration statement, the date and time as of which such registration statement, as amended by such amendment or post-effective amendment, as the case may be, is declared effective by the Commission. "Effective Date" with respect to the Registration Statement means the date of the Effective Time thereof. (b) At the Effective Time, the Registration Statement and the Prospectus conformed, and any proposed amendments thereof and supplements thereto relating to the Designated Securities will conform, in all material respects to the requirements of the Act and the rules and regulations of the Commission thereunder; each document filed pursuant to the Exchange Act and incorporated by reference in the Prospectus complied when so filed as to form with the Exchange Act and the rules and regulations thereunder; on the Effective Date neither the Registration Statement nor the Prospectus as of the date thereof and on the Closing Date included or will include any untrue statement of a material fact or omitted or will omit to state any material fact required to be stated therein or necessary to make the statements therein, in the case of the Registration Statement, not misleading, or in the case of the Prospectus, in light of the circumstances in which they were made, not misleading; provided, however, that AirTouch makes no representations as to any statements or omissions made in reliance upon and in conformity with information furnished to AirTouch by or on behalf of any Underwriter for use in connection with the preparation of such documents. 3. DELIVERY PAYMENT. Delivery of and payment for the Designated Securities shall be made at the office, on the date and at the time specified in the Underwriting Agreement (the "Closing Date"), which Closing Date may be postponed by agreement between the Underwriters, or the Representative, as the case may be, and AirTouch. Delivery of the Designated Securities shall be made to the Underwriters or, if appropriate, the Representative for the respective accounts of the Underwriters, in either case, against payment by the Underwriters directly or through the Representative of the purchase price thereof to or upon the order of AirTouch by certified or official bank check or checks payable in New York Clearing House funds, unless otherwise agreed in the Underwriting Agreement. Certificates for the Designated Securities shall be registered in such names and in such denominations as the Representative may request in writing not less than one full business day in advance of the Closing Date. If so requested by the Underwriters or the Representative, as the case may be, AirTouch agrees to have the Designated Securities available for inspection, checking and packaging in New York, New York, at least one business day prior to the Closing Date. 4. OFFERING BY UNDERWRITERS. It is understood that the Underwriters propose to offer the Designated Securities for sale to the public upon the terms and conditions set forth in the Prospectus. 5. AGREEMENTS. AirTouch agrees with the Underwriters that: (a) AirTouch will cause the Prospectus Supplement to be filed pursuant to Rule 424 under the Act and will promptly advise the Underwriters or the Representative, as the case may be, when the Prospectus Supplement has been so filed, and prior to the termination of the offering of the Designated Securities will promptly advise such Underwriters or Representative (i) when any amendment to the Registration Statement has been declared effective or has become effective upon filing pursuant to Rule 462(c) under the Act or any further supplement to the Prospectus has been filed, (ii) of any request by the Commission for any amendment of the Registration Statement or the Prospectus or for any additional information, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that -2- purpose and (iv) of the receipt by AirTouch of any notification with respect to the suspension of the qualification of the Designated Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. AirTouch will use its best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. AirTouch will not file any amendment to the Registration Statement or supplement to the Prospectus relating to the Designated Securities unless it has furnished the Underwriters or the Representative, as the case may be, a copy prior to filing and will not file any such proposed amendment or supplement to which such Underwriters or Representative reasonably objects. (b) If, at any time when a prospectus relating to the Designated Securities is required to be delivered under the Act or any other applicable securities law, any event occurs as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it shall be necessary to amend or supplement the Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, AirTouch will promptly notify the Underwriters or the Representative, as the case may be, and will promptly prepare and file with the Commission, subject to paragraph (a) of this Section 5, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. (c) AirTouch will make generally available to its security holders and to the Underwriters or the Representative, as the case may be, as soon as practicable, but not later than 45 days after the end of the 12-month period beginning at the end of the fiscal quarter of AirTouch during which the filing of the Prospectus Supplement pursuant to Rule 424 under the Act first occurs (except not later than 90 days if such filing date-is in the last fiscal quarter), an earnings statement (which need not be audited) of AirTouch and its consolidated subsidiaries, covering such 12-month period, which will satisfy the provisions of Section 11 (a) of the Act. (d) AirTouch will furnish to the Underwriters or the Representative, as the case may be, and counsel for such Underwriters or for such Representative copies of the Registration Statement (including, if requested, the exhibits thereto and the documents incorporated by reference in the Prospectus) and each amendment or supplement thereto relating to the Designated Securities which is thereafter filed pursuant to paragraph (a) or (b) of this Section 5 and to each Underwriter, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act or other applicable securities laws, as many copies of the Prospectus and any amendments thereof and supplements thereto, relating to the Designated Securities, as such Underwriters or such Representative may reasonably request. (e) AirTouch will pay (i) all expenses incurred by it in the performance of its obligations under this Agreement, (ii) reasonable fees charged for rating the Designated Securities and for preparing a Blue Sky and Legal Investment Memorandum with respect to the sale of the Designated Securities and (iii)the expenses of printing or otherwise producing and delivering the Designated Securities, the documents specified in paragraph (d) of this Section 5 and any Blue Sky and Legal Investment Memorandum. (f) AirTouch will use its best efforts to arrange and pay for the qualification of the Designated Securities for sale under the laws of such jurisdictions as the Underwriters or the Representative, as the case may be, may designate and to maintain such qualifications in effect so long as required for the distribution of the Designated Securities; provided, however, that AirTouch shall not be required to qualify to do business in any jurisdiction where it is not now qualified or to take any action which would subject it to general or unlimited service of process in any jurisdiction where it is not now so subject. (g) If the sale of the Designated Securities provided for in an Underwriting Agreement is not consummated by reason of any failure, refusal or inability on the part of AirTouch to perform any agreement on its part to be performed (except for any failure so to perform on the part of AirTouch engendered by a failure, refusal or inability on the part of the Underwriters or any Representative to perform any agreement on their part to be performed) or the failure of any condition set forth in Section 6, AirTouch will reimburse the several Underwriters who are named in such Underwriting Agreement for all reasonable out-of-pocket disbursements incurred by the Underwriters in -3- connection with their investigation, marketing and preparing to market the Designated Securities, and upon such reimbursement AirTouch shall have no further liability to the Underwriters except as provided in Section 7. (h) During the period beginning on the date of this Agreement and terminating on the later of (i) the Closing Date or (ii) the date of notice to AirTouch by the Representative or the Underwriters, (which shall not exceed forty-five days from the date of this Agreement), AirTouch will not offer, sell, contract to sell or otherwise dispose of any Designated Securities of AirTouch, or securities convertible into or exchangeable for Designated Securities, without the prior written consent of such Representative or such Underwriters. 6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations of the Underwriters to purchase the Designated Securities shall be subject to the accuracy of the representations on the part of AirTouch contained herein as of the date hereof and the Closing Date, to the performance by AirTouch of its obligations hereunder and to the following additional conditions: (a) No stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted and be pending or threatened as of the Closing Date; (b) Pillsbury Madison & Sutro LLP, counsel for AirTouch, shall have furnished to the Representative their opinion, dated the Closing Date, substantially in the form attached hereto as Exhibit A; (c) The Underwriters or the Representative, as the case may be, shall have received from counsel for the Underwriters such opinion or opinions, dated the Closing Date, with respect to such matters as such Underwriters or Representative may reasonably require; (d) AirTouch shall have furnished to the Underwriters or the Representative, as the case may be, a certificate, dated the Closing Date, of AirTouch, signed by any executive officer of AirTouch, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Prospectus and this Agreement and that: (i) The representations of AirTouch in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and AirTouch has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date; (ii) No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted and are pending or, to his or her knowledge, threatened as of such date; and (iii) Since the date of the most recent financial statements included in or incorporated by reference into the Prospectus, there has been no material adverse change in the condition (financial or otherwise) of AirTouch and its consolidated subsidiaries, taken as a whole. (e) The Underwriters or the Representative, as the case may be, shall have received from Ernst & Young LLP a letter, dated the Closing Date, which letter shall be in form as may be agreed upon among such Underwriters or Representative, AirTouch and Ernst & Young LLP, and shall cover such matters as may be reasonably requested by such Underwriters or Representative. (f) Prior to the Closing Date, AirTouch shall have furnished to the Underwriters or the Representative, as the case may be, such further information, certificates and documents as they may reasonably request. (g) Subsequent to the date hereof, there shall not have occurred any change, or any development involving a prospective change, in or affecting the business or properties of AirTouch and its subsidiaries considered as a whole which the Underwriters or the Representative, as the case may be, concludes, in its judgment, after consultation with -4- AirTouch, materially impairs the investment quality of the Designated Securities so as to make it impractical or inadvisable to proceed with the public offering or the delivery of the Designated Securities as contemplated by the Prospectus and there shall not have been any decrease in the ratings of any of AirTouch's debt securities by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act). 7. INDEMNIFICATION AND CONTRIBUTION. (a) AirTouch agrees to indemnify and hold harmless each Underwriter, the directors, officers, employees and agents of each Underwriter, and each person, if any, who controls any Underwriter within the meaning of either the Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Act, the Exchange Act or other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or the Prospectus, or in any amendment thereof or supplement thereto relating to the Designated Securities, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and agrees to reimburse each such indemnified party for any legal or other expenses reasonably incurred by them, as so incurred, in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that AirTouch will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with information furnished in writing to AirTouch by or on behalf of any Underwriter through the Representative or the Underwriters, as the case may be, for use in connection with the preparation thereof. This indemnity agreement will be in addition to any liability which AirTouch may otherwise have. (b) Each Underwriter severally agrees to indemnify and hold harmless AirTouch, each of its directors, officers, employees and agents, and each person who controls AirTouch within the meaning of either the Act or the Exchange Act, to the same extent as the foregoing indemnity from AirTouch to each Underwriter, but only with reference to information furnished in writing to AirTouch by or on behalf of such Underwriter directly or through any Representative for use in the preparation of the documents referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability which any Underwriter may otherwise have. (c) Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 7, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party will not relieve the indemnifying party from any liability which it may have to any indemnified party otherwise than under this Section 7. In case any such action is brought against any indemnified party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein, and to the extent that it may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof, with counsel satisfactory to such indemnified party; provided that, if the defendants in any such action include both the indemnified party and the indemnifying party, and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party, the indemnified party or parties shall have the right to select separate counsel, to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties. Upon receipt of notice from the indemnifying party to such indemnified party of its election so to assume the defense of such action and approval by the indemnified party of counsel, the indemnifying party will not be liable to such indemnified party under this Section 7 for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof unless (i) the indemnified party shall have employed separate counsel in connection with the assertion of legal defenses in accordance with the proviso to the next preceding sentence (it being understood, however, that the indemnifying party shall not be liable for the expenses of more than one separate counsel, approved by the representatives representing the indemnified parties who are parties to such action), (ii) the indemnifying- party shall not have employed counsel satisfactory to the indemnified -5- party to represent the indemnified party within a reasonable time after notice of commencement of the action or (iii) the indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party; and except that, if clause (i) or (iii) is applicable, such liability shall be only in respect of the counsel referred to in such clause (i) or (iii). An indemnifying party will not, without the prior written consent of each indemnified party, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding. (d) In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in this Section 7 is due in accordance with its terms but is for any reason held by a court to be unavailable from AirTouch or the Underwriters on grounds of policy or otherwise, AirTouch and the Underwriters shall contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending same) to which AirTouch or one or more of the Underwriters may be subject in such proportion so that the Underwriters are responsible for that portion represented by the percentage that the underwriting discount appearing on the cover page of the Prospectus bears to the public offering price appearing thereon and AirTouch is responsible for the balance; provided that (y) in no case shall any Underwriter (except as may be provided in any agreement among underwriters relating to the offering of the Designated Securities) be responsible for any amount in excess of the underwriting discount applicable to the Designated Securities purchased by such Underwriter hereunder and (z) no person guilty of fraudulent misrepresentation (within the meaning of Section 11 (f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 7, each person who controls an Underwriter within the meaning of either the Act or the Exchange Act shall have the same rights to contribution as such Underwriter, and each person who controls AirTouch within the meaning of either the Act or the Exchange Act, each officer of AirTouch who shall have signed the Registration Statement and each director of AirTouch shall have the same rights to contribution as AirTouch, subject in each case to clause (y) of this paragraph (d). Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties under this paragraph (d), notify such party or parties from whom contribution may be sought, but the omission to so notify in writing such party or parties shall not relieve the party or parties from whom contribution may be sought from any other obligation it or they may have hereunder or otherwise than under this paragraph (d). 8. TERMINATION. This Agreement shall be subject to termination in the absolute discretion of the Underwriters or the Representative, as the case may be, by written notice given to AirTouch prior to delivery of and payment for the Designated Securities, if prior to such time (i) trading in AirTouch's Common Stock or securities generally on the New York Stock Exchange shall have been suspended or materially limited, (ii) a general moratorium on commercial banking activities in New York shall have been declared by either Federal or New York State authorities or (iii) there shall have occurred any material outbreak or escalation of hostilities or other calamity or crisis the effect of which on the financial markets of the United States is such as to make it, in the reasonable judgment of such Underwriters or such Representative, impracticable or inadvisable to proceed with the offering or delivery of the Designated Securities as contemplated by the Prospectus and Prospectus Supplement. 9. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective agreements, representations, indemnities and other statements of AirTouch, or its officers and of the Underwriters and/or any Representative set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of any Underwriter, AirTouch or any of the officers, directors or controlling persons referred to in Section 7 hereof, and will survive delivery of and payment for the Securities. The provisions of Sections S(e) and 7 hereof shall survive the termination or cancellation of this Agreement. 10. DEFAULT BY AN UNDERWRITER. If any one or more Underwriters shall fail to purchase and pay for any Designated Securities agreed to be purchased by such Underwriter or Underwriters hereunder and such failure to purchase shall constitute a default in the performance of its or their obligations under this Agreement, the remaining -6- Underwriters shall be obligated severally to take up and pay for (in the respective proportions which the amount of Designated Securities set forth opposite their names in the appropriate schedule of the Underwriting Agreement bears to the aggregate amount of Designated Securities set forth opposite the names of all the remaining Underwriters) the Designated Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase; provided, however, that in the event that the aggregate amount of Designated Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of the amount of Designated Securities set forth in the appropriate schedule of the Underwriting Agreement, the remaining Underwriters shall have the right to purchase all, but shall not be under any obligation to purchase any, of the Designated Securities, and if such nondefaulting Underwriters do not purchase all the Designated Securities, this Agreement will terminate without liability to any nondefaulting Underwriter or AirTouch. In the event of a default by any Underwriter as set forth in this Section 10, the Closing Date shall be postponed for such period, not exceeding seven days, as the Representative or Underwriters, as the case may be, shall determine in order that the required changes in the Registration Statement and the Prospectus or in any other documents or arrangements may be effected. Nothing contained in this Agreement shall relieve any defaulting Underwriter of its liability, if any, to AirTouch and any nondefaulting Underwriter for damages occasioned by its default hereunder. 11. SUCCESSORS. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers and directors and controlling persons referred to in Section 7 hereof, and no other person will have any right or obligation hereunder. 12. APPLICABLE LAW. This Agreement will be governed by and construed in accordance with the laws of the State of New York. -7- EXHIBIT A [FORM OF PILLSBURY MADISON & SUTRO LLP OPINION] [Date] Underwriter(s) Gentlemen and Mesdames: We have acted as counsel to AirTouch Communications, Inc. ("AirTouch") in connection with your purchase from AirTouch of $000,000,000 of its Securities (the "Securities"). Such purchase is made pursuant to the Underwriting Agreement dated _____, 19_ (the "Underwriting Agreement") between AirTouch and you, the Underwriter[s]. This opinion is furnished pursuant to Section 6(b) of the Underwriting Agreement. Terms defined in the Indenture have the same meanings when used in this opinion. We have examined executed copies of the Securities, the Underwriting Agreement, the Registration Statement (as hereinafter defined) and the Prospectus (as hereinafter defined). We have also examined such other documents and certificates of public officials and representatives of AirTouch as we have deemed necessary as a basis for the opinions expressed herein. As to questions of fact material to such opinions, we have, when relevant facts were not independently established, relied upon certificates of officers or authorized representatives of AirTouch. We have assumed the genuineness of all signatures and documents submitted to us as originals, that all copies submitted to us conform to the originals, the legal capacity of all natural persons, and as to documents executed by entities other than AirTouch, that each of such entities has the power to enter into and perform its respective obligations thereunder, and that such documents have been duly authorized, executed and delivered by, and are binding upon and enforceable against, each of such entities. We express no opinion as to the laws of any jurisdiction other than California, New York and the general corporate law of Delaware and the Federal laws of the United States of America, and, with respect to questions of New York law, we have relied, with your permission, solely upon the opinion of [_____]. Based upon the foregoing and subject to the qualifications set forth below, it is our opinion that: 1. AirTouch is validly existing and in good standing under the laws of the State of Delaware and is duly qualified and in good standing to do business in each other state identified in Attachment I hereto and possesses the requisite corporate power and authority to own its properties and conduct its business consistent with any description thereof in the prospectus dated _____ and the prospectus supplement dated _____, filed with the Securities and Exchange Commission (the "Commission") pursuant to Rule 424(b)(2) of Regulation C under the Securities Act of 1933, as amended (the "Act") (the prospectus and the prospectus supplement, including the documents incorporated by reference therein, are herein collectively referred to as the "Prospectus"). 2. The Underwriting Agreement has been duly authorized, executed and delivered by AirTouch. 3. The [Common/Preferred] Stock has been duly authorized and validly issued, and when paid for in accordance with the terms of the Underwriting Agreement, will be fully paid and nonassessable and/or the [Securities] have been duly authorized, executed and delivered by AirTouch and constitute valid and binding obligations of AirTouch, enforceable in accordance with their terms. 4. The Registration Statement of Form S-3 (File No. _______) filed by AirTouch with the Commission under Rule 415 of the Act on _________, 1995 (such Registration Statement including the documents incorporated A-1 by reference therein being herein collectively referred to as the "Registration Statement") has become effective under the Act, and, to the best of our knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act, and, except as may be otherwise indicated in the Prospectus or required by the blue sky or securities laws of jurisdictions in which the Securities are offered or Securities or the offer and sale of the Securities as described in the Prospectus, and the execution, delivery and performance of the terms of the Underwriting Agreement, the Indenture and the Securities by AirTouch will not contravene any provision of the Restated Certificate of Incorporation, as amended, or By-Laws of AirTouch, any Federal law or regulation or, to the best of our knowledge, any applicable state law or any material agreement or instrument binding upon AirTouch. 5. No consent, approval, authorization or order of, or filing with, any governmental agency or body or any federal or state court is required to be obtained or made by AirTouch for the consummation of the transactions contemplated by this Agreement in connection with the sale of the Designated Securities, except (i) such as have been obtained and made under the Act or the Exchange Act, or the rules and regulations thereunder, the bylaws and rules of the National Association of Securities Dealers, Inc. and (ii) such as may be required under state or foreign securities laws. 6. To the best of our knowledge, there is no pending or threatened action, suit or proceeding before any court or governmental agency, authority or body or any arbitrator involving AirTouch or any of its subsidiaries of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus or supplement relating thereto. 7. The Registration Statement and the Prospectus comply as to form in all material respects with the requirements of the Act and the rules and regulations of the Commission thereunder; each document filed by AirTouch under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and incorporated by reference in the Prospectus complied as to form in all material respects when so filed with the requirements of the Exchange Act and the rules and regulations of the Commission thereunder; the statements in the Prospectus with respect to the terms of the Securities fairly summarize the terms of such instruments and to the best of our knowledge there are no other agreements or instruments required to be described or referred to in the Registration Statement which have not been described or referred to therein; and while we have not ourselves checked the accuracy or completeness of, or otherwise verified the information furnished in the Registration Statement, we have considered the information required to be furnished therein and have generally reviewed and had discussions with certain officers and employees of AirTouch concerning the information so furnished, whether or not subject to our checking and verification, and on the basis of such consideration, review and discussions, but without independent checking or verification, we have no reason to believe that the Registration Statement or any amendment thereto at the time the Registration Statement or amendment became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or the Prospectus or any supplement thereto at the time it was filed pursuant to Rule 424(b) of the Act, or on such Closing Date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading; it being understood that with respect to the matters covered by this paragraph 7, we express no opinion as to the financial statements and related schedules and other financial, statistical or numerical data contained in the Registration Statement or the Prospectus. The opinions set forth in the foregoing are subject to the following qualifications: (a) Our opinions in paragraph 3 are subject to and limited by: (i) the effect of bankruptcy, insolvency, reorganization, receivership, conservatorship, arrangement, moratorium or other laws affecting or relating to the rights of creditors generally; (ii) the rules governing the availability of specific performance, injunctive relief or other equitable remedies and general principles of equity, regardless of whether considered in a proceeding in equity or at law; (iii) to the extent applicable, the effect of court decisions invoking statutes or principles of equity, which have held that certain covenants and provisions of agreements are unenforceable where the breach of such covenants or provisions imposes restrictions or burdens is necessary for the protection of the creditor, or which have held that the A-2 creditor's enforcement of such covenants or provisions under the circumstances would have violated the creditor's covenants of good faith and fair dealing implied under California law, and (iv) to the extent applicable, the effect of California statutes and rules of law which cannot be waived prospectively by a borrower. (b) Whenever a statement herein is qualified by "known to us", "to our knowledge" or similar phrase, it indicates that in the course of our representation of AirTouch no information that would give us current actual knowledge of the inaccuracy of such statement has come to the attention of the attorneys in this firm who have rendered legal services in connection with this transaction, including the principal partners of this firm who are familiar with matters relating to AirTouch. We have not made any independent investigation to determine the accuracy of such statement, except as expressly described herein. No inference as to our knowledge of any matters bearing on the accuracy of such statement should be drawn from the fact of our representation of AirTouch in other matters in which such attorneys are not involved. This opinion is rendered by us as counsel for AirTouch solely for your benefit in connection with the transaction referred to herein and may not be relied upon by you in connection with any other transaction and may not be relied upon by any other person without our prior written consent. Very truly yours, A-3 EX-4.28 4 MASTER UNIT AGREEMENT Exhibit 4.28 ================================================================================ AIRTOUCH COMMUNICATIONS, INC. AND ------------------ as Unit Agent --------------------- MASTER UNIT AGREEMENT --------------------- Dated as of ___________, 19__ ================================================================================ TABLE OF CONTENTS ----------------- Page ---- 1. Definitions and Other Provisions of General Application...............1 1.1 Definitions..................................................1 1.2 Compliance Certificates and Opinions.........................8 1.3 Form of Documents Delivered to Unit Agent....................8 1.4 Acts of Holders; Record Dates................................9 1.5 Notices, etc............................................... 10 1.6 Notice to Holders; Waiver.................................. 11 1.7 Effect of Headings and Table of Contents................... 11 1.8 Successors and Assigns..................................... 11 1.9 Separability Clause........................................ 11 1.10 Benefits of Agreement...................................... 11 1.11 Governing Law.............................................. 11 1.12 Legal Holidays............................................. 11 1.13 Counterparts............................................... 12 1.14 Inspection of Agreement.................................... 12 2. Unit Certificate Forms.............................................. 12 2.1 Forms of Unit Certificates Generally....................... 12 2.2 Form of Agent's Certificate of Authentication.............. 13 3. The Units........................................................... 13 3.1 Title and Terms; Denominations............................. 13 3.2 Rights and Obligations Evidenced by the Unit Certificates.. 13 3.3 Execution, Authentication, Delivery and Dating............. 13 3.4 Temporary Unit Certificates................................ 14 3.5 Registration; Registration of Transfer and Exchange........ 14 3.6 Mutilated, Destroyed, Lost and Stolen Unit Certificates.... 16 3.7 Persons Deemed Owners...................................... 17 3.8 Cancellation............................................... 18 3.9 Substitution of Pledged Securities and Creation of Stripped Units; Units Not Otherwise Separable........... 18 3.10 Payments on the Units...................................... 20 4. The Pledged Securities.............................................. 20 4.1 Payments on the Pledged Securities......................... 20 4.2 Transfer of Pledged Securities Upon Occurrence of Termination Event.......................................... 21 5. The Purchase Contracts.............................................. 22 5.1 Purchase of Shares of Common Stock......................... 22 5.2 Contract Fees.............................................. 23 5.3 Deferral of Payment Dates For Contract Fee................. 24 -i- 5.4 Payment of Purchase Price.................................. 25 5.5 Issuance of Shares of Common Stock......................... 26 5.6 Adjustment of Settlement Rate.............................. 27 5.7 Notice of Adjustments and Certain Other Events............. 32 5.8 No Fractional Shares....................................... 33 5.9 Charges and Taxes.......................................... 33 5.10 Termination Event; Notice.................................. 34 6. Remedies............................................................ 34 6.1 Unconditional Rights of Holders............................ 34 6.2 Restoration of Rights and Remedies......................... 34 6.3 Rights and Remedies Cumulative............................. 34 6.4 Delay or Omission Not Waiver............................... 34 6.5 Undertaking for Costs...................................... 35 6.6 Waiver of Stay or Extension Laws........................... 35 7. The Unit Agent...................................................... 35 7.1 Certain Duties and Responsibilities........................ 35 7.2 Notice of Default.......................................... 36 7.3 Certain Rights of Unit Agent............................... 36 7.4 Not Responsible for Recitals or Issuance of Units.......... 37 7.5 May Hold Units............................................. 37 7.6 Money Held in Trust........................................ 37 7.7 Compensation and Reimbursement............................. 37 7.8 Corporate Unit Agent Required; Eligibility................. 38 7.9 Resignation and Removal; Appointment of Successor.......... 38 7.10 Acceptance of Appointment by Successor..................... 39 7.11 Merger, Conversion, Consolidation or Succession to Business................................................... 40 7.13 No Obligations of Unit Agent............................... 40 7.14 Tax Compliance............................................. 41 8. Supplemental Agreements............................................. 41 8.1 Supplemental Agreements Without Consent of Holders......... 41 8.2 Supplemental Agreements with Consent of Holders............ 42 8.3 Execution of Supplemental Agreements....................... 43 8.4 Effect of Supplemental Agreements.......................... 43 8.5 Reference to Supplemental Agreements....................... 43 9. Consolidation, Merger, Sale or Conveyance........................... 43 9.1 Covenant Not to Merge, Consolidate, Sell or Convey Property Except Under Certain Conditions................... 43 9.2 Rights and Duties of Successor Corporation................. 44 9.3 Opinion of Counsel to Unit Agent........................... 44 -ii- 10. Covenants........................................................... 44 10.1 Performance Under Purchase Contracts....................... 44 10.2 Maintenance of Office or Agency............................ 44 10.3 Company to Reserve Common Stock............................ 45 10.4 Covenants as to Common Stock............................... 45 10.5 Statements of Officers of the Company as to Default........ 45 -iii- MASTER UNIT AGREEMENT --------------------- THIS MASTER UNIT AGREEMENT, dated as of __________, 199__, between AIRTOUCH COMMUNICATIONS, INC., a Delaware corporation (the "Company"), and _________________, a New York banking corporation, acting as unit agent for the Holders of Units from time to time (the "Unit Agent"). RECITALS The Company has duly authorized the execution and delivery of this Agreement and the Unit Certificates evidencing the Units. All things necessary to make the Company's obligations under the Units, when the Unit Certificates are executed by the Company and authenticated, executed on behalf of the Holders and delivered by the Unit Agent, as in this Agreement provided, the valid obligations of the Company, and to constitute these presents a valid agreement of the Company, in accordance with its terms, have been done. W I T N E S S E T H : For and in consideration of the premises and the purchase of the Units by the Holders thereof, it is mutually agreed as follows: 1. DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION. 1.1 DEFINITIONS. For all purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires: (a) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular; and (b) the words "herein", "hereof" and "hereunder" and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section or other subdivision. "Act" has the meaning specified in Section 1.4. "Affiliate" of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, "control" when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. -1- "Unit Agent" means the Person named as the "Unit Agent" in the first paragraph of this instrument until a successor Unit Agent shall have become such pursuant to the applicable provisions of this Agreement, and thereafter "Unit Agent" shall mean the Person who is then the Unit Agent hereunder. "Agreement" means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more agreements supplemental hereto entered into pursuant to the applicable provisions hereof. "Applicable Market Value" has the meaning specified in Section 5.1. "Board of Directors" means the board of directors of the Company or a duly authorized committee of that board. "Board Resolution" means one or more resolutions of the Board of Directors, a copy of which has been certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification and delivered to the Unit Agent. "Business Day" means any day that is not a Saturday, Sunday or a day on which banking institutions or trust companies in The City of New York are authorized or obligated by law or executive order to be closed. "Call Option" means an option entitling the Call Option Holder to acquire the QUIPS or Junior Subordinated Debentures underlying the related Normal Unit on the terms and subject to the conditions set forth in the Call Option Agreement. "Call Option Agreement" means the Call Option Agreement, dated as of the date hereof, between the Call Option Holder named therein and the Unit Agent, on its own behalf and as attorney-in-fact for the Holders from time to time of the Normal Units, the form of which is attached hereto as Exhibit C, as the same may be amended from time to time in accordance with the terms hereof and thereof. "Call Option Holder" means the Person named as the Call Option Holder in the Call Option Agreement. "Call Settlement Date" means the date on which the Call Options are settled pursuant to the Call Option Agreement. "Closing Price" has the meaning specified in Section 5.1. "Collateral Agent" means __________________, as Collateral Agent under the Pledge Agreement, until a successor Collateral Agent shall have become such pursuant to the applicable provisions of the Pledge Agreement, and thereafter "Collateral Agent" shall mean the Person who is then the Collateral Agent thereunder. -2- "Common Stock" means the Common Stock, par value $.01 per share, of the Company. "Company" means the Person designated as the "Company" in the first paragraph of this instrument until a successor shall have become such, and thereafter "Company" shall mean such successor. "Contract Fee" means, with respect to each Purchase Contract, a fee payable [TO] [BY] the Company [BY] [TO] the Holder of the related Unit, accruing on the Stated Amount of such Unit from and including the date of first issuance of any Units to but excluding the Stock Purchase Date and payable quarterly in arrears on each Quarterly Payment Date to and including the Stock Purchase Date at a rate per annum equal to the Contract Fee Rate (and computed on the basis of a 360-day year of twelve 30-day months), plus any additional fees accrued thereon pursuant to Section 5.3. "Contract Fee Rate" means ____%. "Corporate Trust Office" means the principal office of the Unit Agent in the Borough of Manhattan, The City of New York, at which at any particular time its corporate trust business shall be administered, which office at the date hereof is located at _______________, New York, New York _______. "Current Market Price" has the meaning specified in Section 5.6(a)(8). "Declaration" means the Declaration of Trust, dated as of February 10, 1998 and amended and restated as of the date hereof, executed by the Company and certain trustees of the Trust, as the same may be amended or supplemented from time to time in accordance with the terms thereof. "Depositary" means a clearing agency registered under the Exchange Act that is designated to act as Depositary for the Units as contemplated by Section 3.5. "Exchange Act" means the Securities Exchange Act of 1934 or any statute successor thereto, in each case as amended from time to time. "Excess Treasury Securities" has the meaning specified in Section 4.2. "Expiration Date" has the meaning specified in Section 1.4. "Expiration Time" has the meaning specified in Section 5.6(a)(6). "Global Unit Certificate" means a Unit Certificate that evidences all or part of the Normal Units or a Unit Certificate that evidences all or a part of the Stripped Units and is registered in the name of the Depositary or a nominee thereof. -3- "Holder" means a Person in whose name a Unit Certificate is registered in the Unit Register; "Holder", when used with respect to any particular Unit Certificate (or Unit), means a Person in whose name such Unit Certificate (or the Unit Certificate evidencing such Unit) is registered in the relevant Unit Register. "Indenture" means the Indenture, dated as of the date hereof, between the Company and _________________, as Trustee, as the same may be amended or supplemented from time to time in accordance with the terms thereof. "Issuer Order" or "Issuer Request" means a written order or request signed in the name of the Company by its Chairman of the Board, any Vice Chairman, its President or a Vice President and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to the Unit Agent. "Junior Subordinated Debenture Put Option" has the meaning specified for the term "Put Option" in the Indenture. "Junior Subordinated Debentures" means the ___% Junior Subordinated Deferrable Interest Debentures due [________________, 2003] of the Company issued under the Indenture. "Normal Unit" means the rights to purchase Common Stock under a Purchase Contract, together with ownership of the QUIPS or other Pledged Securities pledged to secure the obligations referred to in (a) and (b) below, subject to (a) the obligations owed to the Company under such Purchase Contract, (b) for so long as any Call Options remain exercisable, the obligations owed to the Call Option Holder under a Call Option and (c) the pledge arrangements securing the foregoing obligations; provided, however, that the term "Normal Unit" will not include any Stripped Unit. "NYSE" has the meaning specified in Section 5.1. "Officers' Certificate" means a certificate signed by the Chairman of the Board, any Vice Chairman, the President or any Vice President and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company and delivered to the Unit Agent. "Opinion of Counsel" means an opinion in writing signed by legal counsel, who may be an employee of or counsel to the Company. "Outstanding Unit Certificates" means, as of the date of determination, all Unit Certificates theretofore authenticated, executed and delivered pursuant to this Agreement, except: (a) Unit Certificates theretofore canceled by the Unit Agent or delivered to the Unit Agent for cancellation; and (b) Unit Certificates in exchange for or in lieu of which other Unit Certificates have been authenticated, executed on behalf of the Holder and delivered pursuant to this Agreement, other -4- than any such Unit Certificate in respect of which there shall have been presented to the Unit Agent proof satisfactory to it that such Unit Certificate is held by a bona fide purchaser in whose hands the Units evidenced by such Unit Certificate are valid obligations of the Company. "Outstanding Units" means, as of the date of determination, all Units evidenced by then Outstanding Unit Certificates, except, if the Termination Date or Stock Purchase Date has passed, Units for which the underlying Pledged Securities or the Common Stock purchasable upon settlement of the underlying Purchase Contracts, as the case may be, have been theretofore deposited with the Unit Agent in trust for the Holders of such Units; provided, however, that in determining whether the Holders of the requisite number of Units have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Units owned by the Company or any Affiliate of the Company shall be disregarded and deemed not to be outstanding, except that, in determining whether the Unit Agent shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Units which the Unit Agent knows to be so owned shall be so disregarded. Units so owned which have been pledged in good faith may be regarded as Outstanding Units if the pledges establishes to the satisfaction of the Unit Agent the pledgee's right so to act with respect to such Units and that the pledgee is not the Company or any Affiliate of the Company. "Person" means any individual, corporation, limited liability company, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof. "Pledge" means the pledge of the Pledged Securities under the Pledge Agreement. "Pledge Agreement" means the Pledge Agreement, dated as of the date hereof, among the Company, the Call Option Holder, the Collateral Agent and the Unit Agent, on its own behalf and as attorney-in-fact for the Holders from time to time of the Units, the form of which is attached hereto as Exhibit D, as the same may be amended from time to time in accordance with the terms hereof and thereof. "Pledged Securities" means the securities pledged to the Collateral Agent pursuant to the Pledge and constituting a part of the Units. "Predecessor Unit Certificate" of any particular Unit Certificate means every previous Unit Certificate evidencing all or a portion of the rights and obligations of the Holder under the Units evidenced thereby; and, for the purposes of this definition, any Unit Certificate authenticated and delivered under Section 3.6 in exchange for or in lieu of a mutilated, destroyed lost or stolen Unit Certificate shall be deemed to evidence the same rights and obligations of the Holder as the mutilated, destroyed, lost or stolen Unit Certificate. "Principal Agreements" means this Agreement, the Pledge Agreement and the Call Option Agreement. -5- "Purchase Contract" means a contract obligating-the Company to sell and the Holder of the related Unit to purchase Common Stock on the terms and subject to the conditions set forth in Article Five hereof. "Purchase Contract Settlement Fund" has the meaning specified in Section 5.5. "Purchased Shares" has the meaning specified in Section 5.6(a)(6). "Quarterly Payment Date" means each ___________, ___________, ___________, and ___________, commencing __________, 199__. "QUIPS"(sm)* means ____% Quarterly Income Preferred Securities of the Trust issued under the Declaration, which term may refer to a single security or more than one security as the context may require. "Record Date", when used with respect to any payment date, means the Business Day next preceding such payment date; provided, however, that if any Units are no longer evidenced by a Global Unit Certificate, "Record Date", when used with respect to any payment date for such Units, means the [FIRST DAY OF][THE FIFTEENTH DAY OF][THE FIFTEENTH DAY OF THE MONTH PRECEDING] the month in which such payment date falls; and provided further, that if payments are in respect of QUIPS or Junior Subordinated Debentures underlying Normal Units, "Record Date", when used with respect to such payments, means the record date for such payments determined as provided under the Declaration or the Indenture, as the case may be. "Reorganization Event" has the meaning specified in Section 5.6(b). "Responsible Officer", when used with respect to the Unit Agent, means any officer of the Unit Agent assigned by the Unit Agent to administer its corporate trust matters. "Settlement Rate" has the meaning specified in Section 5.1. "Stated Amount" means $__________ per Unit. "Stock Purchase Date" means [___________, 2001.] "Stripped Unit" means the rights to purchase Common Stock under a Purchase Contract, together with ownership of the Treasury Securities pledged to secure the obligations referred to in (a) below, subject to (a) the obligations owed to the Company under such Purchase Contract and (b) the pledge arrangements securing the foregoing obligations; provided, however, that the term "Stripped Unit" will only include Units issued as a result of a Stripped Unit Creation as contemplated by Section 3.9. - ------------ * QUIPS is a servicemark of Goldman, Sachs & Co. -6- "Stripped Unit Creation" has the meaning specified in Section 3.9(a). "Termination Date" means the date, if any, on which a Termination Event occurs. "Termination Event" means the occurrence of any of the following events at any time on or prior to the Stock Purchase Date: (a) a decree or order of a court having jurisdiction in the premises shall have been entered adjudging the Company a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization of the Company under the United States Bankruptcy Code or any other similar applicable Federal or State law, and, unless such decree or order shall have been entered within 60 days prior to the Stock Purchase Date, such decree or order shall have continued undischarged and unstayed for a period of 60 days, or (b) a decree or order of a court having jurisdiction in the premises for the appointment of a receiver or liquidator or trustee or assignee in bankruptcy or insolvency of the Company or of its property, or for the winding up or liquidation of its affairs, shall have been entered, and, unless such decree or order shall have been entered within 60 days prior to the Stock Purchase Date, such decree or order shall have continued undischarged and unstated for a period of 60 days, or (c) the Company shall institute proceedings to be adjudicated a bankrupt, or shall consent to the filing of a bankruptcy proceeding against it, or shall file a petition or answer or consent seeking reorganization under the United States Bankruptcy Code or any other similar applicable Federal or State law, or shall consent to the filing of any such petition, or shall consent to the appointment of a receiver or liquidator or trustee or assignee in bankruptcy or insolvency of it or of its property, or shall make an assignment for the benefit of creditors, or shall admit in writing its inability to pay its debts generally as they become due. "Threshold Appreciation Price" has the meaning specified in Section 5.1. "TIA" means the Trust Indenture Act of 1939 or any statute successor thereto, in each case as amended from time to time. "Trading Day" has the meaning specified in Section 5.1. "Treasury Securities" means United States Treasury Securities. "Trust" means [ATI FINANCING], a statutory business trust created under the laws of the State of Delaware. "Underwriting Agreement" means the Underwriting Agreement dated __________, 199_ among the Company, the Trust and ___________________________, as the Underwriters named therein. "Unit Certificate" means a certificate evidencing the rights and obligations of a Holder in respect of the number of Normal Units or Stripped Units, as the case may be, specified on such certificate. -7- "Unit Register" and "Unit Registrar" have the respective meanings specified in Section 3.5. "Units" means the Normal Units and, if any are issued, the Stripped Units. The Purchase Contracts, Call Options and/or Pledged Securities constituting a part of any Units are sometimes referred to herein as "underlying" such Units and are sometimes herein said to "underlie" such Units. "Vice President" means any vice president, whether or not designated by a number or a word or words added before or after the title "vice president." 1.2 COMPLIANCE CERTIFICATES AND OPINIONS. Except as otherwise expressly provided by this Agreement, upon any application or request by the Company to the Unit Agent to take any action under any provision of this Agreement, the Company shall furnish to the Unit Agent an Officers' Certificate stating that all conditions precedent, if any, provided for in this Agreement relating to the proposed action have been complied with and an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Agreement relating to such particular application or request, no additional certificate or opinion need be furnished. Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Agreement shall include: (a) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto; (b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (c) a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and (d) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with. 1.3 FORM OF DOCUMENTS DELIVERED TO UNIT AGENT. In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents. -8- Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous. Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Agreement, they may, but need not, be consolidated and form one instrument. 1.4 ACTS OF HOLDERS; RECORD DATES. (a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Agreement to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Unit Agent and, where it is hereby expressly required, to the Company. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the "Act" of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Agreement and (subject to Section 7.1) conclusive in favor of the Unit Agent and the Company, if made in the manner provided in this Section. (b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Unit Agent deems sufficient. (c) The ownership of Units shall be proved by the Unit Register. (d) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Unit shall bind every future Holder of the same Unit and the Holder of every Unit Certificate evidencing such Unit issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Unit Agent or the Company in reliance thereon, whether or not notation of such action is made upon such Unit Certificate. -9- (e) The Company may set any day as a record date for the purpose of determining the Holders of Outstanding Units entitled to give, make or take any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Agreement to be given, made or taken by Holders of Units. If any record date is set pursuant to this paragraph, the Holders of Outstanding Units on such record date, and no other Holders, shall be entitled to take the relevant action, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite number of Outstanding Units on such record date. Nothing in this paragraph shall be construed to prevent the Company from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be canceled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite number of Outstanding Units on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Company, at its own expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Unit Agent in writing and to each Holder of Units in the manner set forth in Section 1.6. With respect to any record date set pursuant to this Section, the Company may designate any date as the "Expiration Date" and from time to time may change the Expiration Date to any earlier or later day; provided that no such change shall be effective unless notice of the proposed new Expiration Date is given to the Unit Agent in writing, and to each Holder of Units in the manner set forth in Section 1.6, on or prior to the existing Expiration Date. If an Expiration Date is not designated with respect to any record date set pursuant to this Section, the Company shall be deemed to have initially designated the 180th day after such record date as the Expiration Date with respect thereto, subject to its right to change the Expiration Date as provided in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be later than the 180th day after the applicable record date. 1.5 NOTICES, ETC. TO UNIT AGENT AND THE COMPANY. Any request, demand, authorization, direction, notice, consent, waiver or other Act of Holders or other document provided or permitted by this Agreement to be made upon, given or furnished to, or filed with, (a) the Unit Agent by any Holder or by the Company shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if made, given, furnished or filed in writing and personally delivered or mailed, first-class postage prepaid, to the Unit Agent at _________________, Attention: ______________, or at any other address previously furnished in writing by the Unit Agent to the Holders and the Company, or (b) the Company by the Unit Agent or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if made, given, furnished or filed in writing and personally delivered or mailed, first-class postage prepaid, to the Company at 201 Mission Street, 28th Floor, San Francisco, California 94105, Attention: ____________, or at any other address previously furnished in writing by the Company to the Unit Agent and the Holders. -10- 1.6 NOTICE TO HOLDERS; WAIVER. Where this Agreement provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder affected by such event, at his address as it appears in the Unit Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice nor any defect in any notice so mailed to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Where this Agreement provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Unit Agent, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver. In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall be made with the approval of the Unit Agent shall constitute a sufficient notification for every purpose hereunder. 1.7 EFFECT OF HEADINGS AND TABLE OF CONTENTS. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof. 1.8 SUCCESSORS AND ASSIGNS. All covenants and agreements in this Agreement by the Company shall bind its successors and assigns, whether so expressed or not. 1.9 SEPARABILITY CLAUSE. In case any provision in this Agreement or in the Units shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions hereof and thereof shall not in any way be affected or impaired thereby. 1.10 BENEFITS OF AGREEMENT. Nothing in this Agreement or in the Unit Certificates, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Holders, any benefits or any legal or equitable right, remedy or claim under this Agreement. The Holders from time to time shall be beneficiaries of this Agreement and shall be bound by all of the terms and conditions hereof and of the Units evidenced by their Unit Certificates by their acceptance of delivery thereof. 1.11 GOVERNING LAW. THIS AGREEMENT AND THE UNITS SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. 1.12 LEGAL HOLIDAYS. In any case where any Quarterly Payment Date or the Stock Purchase Date shall not be a Business Day, then (notwithstanding any other provision of this Agreement or of the Units) payment in respect of distributions or interest on or principal of Pledged Securities or Contract Fees shall not be made, Purchase Contracts shall not be performed and other actions described herein shall not occur, but such payments shall be made, the Purchase Contracts shall be performed and such other actions shall occur, as applicable, on the next -11- succeeding Business Day with the same force and effect as if made on such Quarterly Payment Date or Stock Purchase Date, as the case may be; provided, that no distributions or interest shall accrue or be payable by the Company or any Holder for the period from and after any such Quarterly Payment Date or Stock Purchase Date, as the case may be, to the date of payment or performance; except that if such next succeeding Business Day is in the next succeeding calendar year, such payment shall be made or the Purchase Contracts shall be performed on the immediately preceding Business Day with the same force and effect as if made on such Quarterly Payment Date or the Stock Purchase Date. 1.13 COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which, when so executed, shall be deemed an original, but all such counterparts shall together constitute one and the same instrument. 1.14 INSPECTION OF AGREEMENT. A copy of this Agreement shall be available at all reasonable times at the Corporate Trust Office for inspection by any Holder. 2. UNIT CERTIFICATE FORMS. 2.1 FORMS OF UNIT CERTIFICATES GENERALLY. Unit Certificates evidencing Normal Units shall be in substantially the form set forth in Exhibit A hereto and Unit Certificates evidencing the Stripped Units shall be in substantially the form of Exhibit B hereto, in each case with such letters, numbers or other marks of identification or designation and such legends or endorsements printed, lithographed or engraved thereon as may be required by the rules of any securities exchange on which the Units are listed or Depositary therefor, or as may, consistently herewith, be determined by the officers of the Company executing such Unit Certificates, as evidenced by their execution of the Unit Certificates. The definitive Unit Certificates shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the officers of the Company executing the Unit Certificates, consistent with the provisions of this Agreement, as evidenced by their execution thereof. Every Global Unit Certificate authenticated, executed on behalf of the Holders and delivered hereunder shall bear a legend in substantially the following form: THIS UNIT CERTIFICATE IS A GLOBAL UNIT CERTIFICATE WITHIN THE MEANING OF THE MASTER UNIT AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS UNIT CERTIFICATE MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A UNIT CERTIFICATE REGISTERED, AND NO TRANSFER OF THIS UNIT CERTIFICATE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE MASTER UNIT AGREEMENT. -12- 2.2 FORM OF AGENT'S CERTIFICATE OF AUTHENTICATION. The form of the Agent's certificate of authentication of the Units shall be in substantially the form set forth on the form of the Unit Certificates. 3. THE UNITS. 3.1 TITLE AND TERMS; DENOMINATIONS. The aggregate number of Units evidenced by Unit Certificates authenticated, executed on behalf of the Holders and delivered hereunder is limited to [1,500,000 (SUBJECT TO INCREASE UP TO A MAXIMUM OF 225,000 TO THE EXTENT THE OVER-ALLOTMENT OPTION OF THE UNDERWRITERS UNDER THE UNDERWRITING AGREEMENT IS EXERCISED)], except for Unit Certificates authenticated, executed and delivered upon registration of transfer of, in exchange for, or in lieu of, other Unit Certificates pursuant to Section 3.4, 3.5, 3.6 or 8.5. All of the Unit Certificates authenticated, executed and delivered hereunder shall be Normal Units except for any Unit Certificates evidencing Stripped Units issued in connection with a Stripped Unit Creation pursuant to Section 3.9 and Unit Certificates authenticated, executed and delivered upon registration of transfer of, in exchange for, or in lieu of, other Unit Certificates evidencing Stripped Units pursuant to Section 3.4, 3.5, 3.6 or 8.5. Unit Certificates shall be issuable only in registered form and only in denominations of a single Unit and any integral multiple thereof. 3.2 RIGHTS AND OBLIGATIONS EVIDENCED BY THE UNIT CERTIFICATES. Each Unit Certificate shall evidence the number of Units specified therein. Prior to the purchase, if any, of shares of Common Stock under the Purchase Contracts, the Units shall not entitle the Holders to any of the rights or privileges of a holder of shares of Common Stock, including, without limitation, the right to vote or receive any dividends or other distributions or to consent or to receive notice as stockholders in respect of the meetings of stockholders or for the election of directors of the Company or for any other matter. 3.3 EXECUTION, AUTHENTICATION, DELIVERY AND DATING. Subject to the provisions of Section 3.9 hereof, upon the execution and delivery of this Agreement, and at any time and from time to time thereafter, the Company may deliver Unit Certificates executed by the Company to the Unit Agent for authentication, execution on behalf of the Holders and delivery, together with its Issuer Order for authentication of such Unit Certificates, and the Unit Agent in accordance with such Issuer Order shall authenticate, execute on behalf of the Holders and deliver such Unit Certificates. The Unit Certificates shall be executed on behalf of the Company by its Chairman of the Board, its Vice Chairman of the Board, its President or one of its Vice Presidents, under its corporate seal reproduced thereon attested by its Secretary or one of its Assistant Secretaries. The signature of any of these officers on the Unit Certificates may be manual or facsimile. Unit Certificates bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding that such -13- individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Unit Certificates or did not hold such offices at the date of such Unit Certificates. Each Unit Certificate shall be dated the date of its authentication. No Purchase Contract or Call Option underlying a Unit evidenced by a Unit Certificate shall be valid until such Unit Certificate has been executed on behalf of the Holder by the manual signature of an authorized signatory of the Unit Agent, as such Holder's attorney-in-fact. Such signature by an authorized signatory of the Unit Agent shall be conclusive evidence that the Holder of such Unit Certificate has entered into the Purchase Contracts and Call Options underlying the Units evidenced by such Unit Certificate. No Unit Certificate shall be entitled to any benefit under this Agreement or be valid or obligatory for any purpose unless there appears on such Unit Certificate a certificate of authentication substantially in the form provided for herein executed by an authorized signatory of the Unit Agent by manual signature, and such certificate upon any Unit Certificate shall be conclusive evidence, and the only evidence, that such Unit Certificate has been duly authenticated and delivered hereunder. 3.4 TEMPORARY UNIT CERTIFICATES. Pending the preparation of definitive Unit Certificates, the Company shall execute and deliver to the Unit Agent, and the Unit Agent shall authenticate, execute on behalf of the Holders, and deliver, in lieu of such definitive Unit Certificates, temporary Unit Certificates which are in substantially the form set forth in Exhibit A or Exhibit B hereto, with such letters, numbers or other marks of identification or designation and such legends or endorsements printed, lithographed or engraved thereon as may be required by the rules of any securities exchange on which the Units are listed or Depositary therefor, or as may, consistently herewith, be determined by the officers of the Company executing such Unit Certificates, as evidenced by their execution of the Unit Certificates. If temporary Unit Certificates are issued, the Company will cause definitive Unit Certificates to be prepared without unreasonable delay. After the preparation of definitive Unit Certificates, the temporary Unit Certificates shall be exchangeable for definitive Unit Certificates upon surrender of the temporary Unit Certificates at the Corporate Trust Office, at the expense of the Company and without charge to the Holder. Upon surrender for cancellation of any one or more temporary Unit Certificates, the Company shall execute and deliver to the Unit Agent, and the Unit Agent shall authenticate, execute on behalf of the Holder, and deliver in exchange therefor, one or more definitive Unit Certificates of authorized denominations and evidencing a like number of Normal Units or Stripped Units, as the case may be, as the temporary Unit Certificate or Unit Certificates so surrendered. Until so exchanged, the temporary Unit Certificates shall in all respects evidence the same benefits and the same obligations with respect to the Units evidenced thereby as definitive Unit Certificates. 3.5 REGISTRATION; REGISTRATION OF TRANSFER AND EXCHANGE. The Unit Agent shall keep at the Corporate Trust Office registers (the registers maintained in such office being herein referred -14- to as the "Unit Registers") in which, subject to such reasonable regulations as it may prescribe, the Unit Agent shall provide for the registration of Unit Certificates evidencing the Normal Units and the Stripped Units and of transfers of Unit Certificates evidencing the Normal Units and the Stripped Units (the Unit Agent, in such capacity, the "Unit Registrar"). Upon surrender for registration of transfer of any Unit Certificate at the Corporate Trust Office, the Company shall execute and deliver to the Unit Agent, and the Unit Agent shall authenticate, execute on behalf of the designated transferee or transferees, and deliver, in the name of the designated transferee or transferees, one or more new Unit Certificates evidencing a like number of Normal Units or Stripped Units, as the case may be. At the option of the Holder, Unit Certificates may be exchanged for other Unit Certificates evidencing a like number of Normal Units or Stripped Units, as the case may be, upon surrender of the Unit Certificates to be exchanged at the Corporate Trust Office. Whenever any Unit Certificates are so surrendered for exchange, the Company shall execute and deliver to the Unit Agent, and the Unit Agent shall authenticate, execute on behalf of the Holder, and deliver the Unit Certificates which the Holder making the exchange is entitled to receive. All Unit Certificates issued upon any registration of transfer or exchange of a Unit Certificate shall evidence the ownership of the same number of Normal Units or Stripped Units, as the case may be, and be entitled to the same benefits and subject to the same obligations, under the Principal Agreements as the Normal Units or Stripped Units, as the case may be, evidenced by the Unit Certificate surrendered upon such registration of transfer or exchange. Every Unit Certificate presented or surrendered for registration of transfer or for exchange shall (if so required by the Unit Agent) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Unit Agent duly executed, by the Holder thereof or his attorney duly authorized in writing. No service charge shall be made for any registration of transfer or exchange of a Unit Certificate, but the Company and the Unit Agent may require payment from the Holder of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Unit Certificates (which, for these purposes, includes a Stripped Unit Creation or a transfer of Pledged Securities as contemplated by Section 5.4(a)), other than any exchanges pursuant to Sections 3.6 and 8.5 not involving any transfer. Notwithstanding the foregoing, the Company shall not be obligated to execute and deliver to the Unit Agent, and the Unit Agent shall not be obligated to authenticate, execute on behalf of the Holder and deliver any Unit Certificate in respect of a Unit Certificate presented or surrendered for registration of transfer or for exchange on or after the Stock Purchase Date or the Termination Date. In lieu of delivery of a new Unit Certificate, upon satisfaction of the applicable conditions specified above in this Section and receipt of appropriate registration or transfer instructions from such Holder, the Unit Agent shall (a) if the Stock Purchase Date has occurred, deliver the shares of Common Stock issuable in respect of the Purchase Contracts -15- forming a part of the Units evidenced by such Unit Certificate, or (b) if a Termination Event shall have occurred on or prior to the Stock Purchase Date, transfer the liquidation or principal amount of the Pledged Securities evidenced thereby, in each case subject to the applicable conditions and in accordance with the applicable provisions of Article Five hereof. The provisions of Clauses (a), (b), (c) and (d) below shall apply only to Global Unit Certificates: (a) Each Global Unit Certificate authenticated and executed on behalf of the Holders under this Agreement shall be registered in the name of the Depositary designated for such Global Unit Certificate or a nominee thereof and delivered to such Depositary or a nominee thereof or custodian therefor, and each such Global Unit Certificate shall constitute a single Unit Certificate for all purposes of this Agreement. (b) Notwithstanding any other provision in this Agreement, no Global Unit Certificate may be exchanged in whole or in part for Unit Certificates registered, and no transfer of a Global Unit Certificate in whole or in part may be registered, in the name of any Person other than the Depositary for such Global Unit Certificate or a nominee thereof unless (i) such Depositary (x) has notified the Company that it is unwilling or unable to continue as Depositary for such Global Unit Certificate or (y) has ceased to be a clearing agency registered under the Exchange Act or (ii) there shall have occurred and be continuing a default by the Company in respect of its obligations under one or more Principal Agreements. (c) Subject to Clause (b) above, any exchange of a Global Unit Certificate for other Unit Certificates may be made in whole or in part, and all Unit Certificates issued in exchange for a Global Unit Certificate or any portion thereof shall be registered in such names as the Depositary for such Global Unit Certificate shall direct. (d) Every Unit Certificate authenticated and delivered upon registration of transfer of, in exchange for or in lieu of a Global Unit Certificate or any portion thereof, whether pursuant to this Section, Section 3.4, 3.6 or 8.5 or otherwise, shall be authenticated, executed on behalf of the Holders and delivered in the form of, and shall be, a Global Unit Certificate, unless such Unit Certificate is registered in the name of a Person other than the Depositary for such Global Unit Certificate or a nominee thereof. 3.6 MUTILATED, DESTROYED, LOST AND STOLEN UNIT CERTIFICATES. If any mutilated Unit Certificate is surrendered to the Unit Agent, the Company shall execute and deliver to the Unit Agent, and the Unit Agent shall authenticate, execute on behalf of the Holder, and deliver in exchange therefor, a new Unit Certificate, evidencing the same number of Normal Units or Stripped Units, as the case may be, and bearing a number not contemporaneously outstanding. If there shall be delivered to the Company and the Unit Agent (a) evidence to their satisfaction of the destruction, loss or theft of any Unit Certificate, and (b) such security or indemnity as may be required by them to save each of them and any agent of any of them harmless, then, in the absence of notice to the Company or the Unit Agent that such Unit -16- Certificate has been acquired by a bona fide purchaser, the Company shall execute and deliver to the Unit Agent, and the Unit Agent shall authenticate, execute on behalf of the Holder, and deliver to the Holder, in lieu of any such destroyed, lost or stolen Unit Certificate, a new Unit Certificate, evidencing the same number of Normal Units or Stripped Units, as the case may be, and bearing a number not contemporaneously outstanding. Notwithstanding the foregoing, the Company shall not be obligated to execute and deliver to the Unit Agent, and the Unit Agent shall not be obligated to authenticate, execute on behalf of the Holder, and deliver to the Holder, on or after the Stock Purchase Date or the Termination Date, a Unit Certificate in respect of any mutilated, destroyed, lost or stolen Unit Certificate. In lieu of delivery of a new Unit Certificate, upon satisfaction of the applicable conditions specified above in this Section and receipt of appropriate registration or transfer instructions from such Holder, the Unit Agent shall (a) if the Stock Purchase Date has occurred, deliver the shares of Common Stock issuable in respect of the Purchase Contracts forming a part of the Units evidenced by such Unit Certificate, or (b) if a Termination Event shall have occurred on or prior to the Stock Purchase Date, transfer the liquidation or principal amount of the Pledged Securities evidenced thereby, in each case subject to the applicable conditions and in accordance with the applicable provisions of Article Five hereof. Upon the issuance of any new Unit Certificate under this Section, the Company and the Unit Agent may require the payment by the Holder of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Unit Agent) connected therewith. Every new Unit Certificate issued pursuant to this Section in lieu of any destroyed, lost or stolen Unit Certificate shall constitute an original additional contractual obligation of the Company and of the Holder, whether or not the destroyed, lost or stolen Unit Certificate shall be at any time enforceable by anyone, and shall be entitled to all the benefits and be subject to all the obligations of the Principal Agreements equally and proportionately with any and all other Unit Certificates delivered hereunder. The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or settlement of mutilated, destroyed, lost or stolen Unit Certificates. 3.7 PERSONS DEEMED OWNERS. Prior to due presentment of a Unit Certificate for registration of transfer, the Company and the Unit Agent, and any agent of the Company or the Unit Agent, may treat the Person in whose name such Unit Certificate is registered as the owner of the Units evidenced thereby, for the purpose of receiving payments of distributions or interest on the Pledged Securities, receiving or making payments of Contract Fees and performance of the underlying Purchase Contracts and Call Options and for all other purposes whatsoever, whether or not the payment of distributions or interest on the Pledged Securities or any Contract Fee payable in respect of the Purchase Contracts constituting a part of the Units evidenced thereby shall be overdue and notwithstanding any notice to the contrary, and neither the Company -17- nor the Unit Agent, nor any agent of the Company or the Unit Agent, shall be affected by notice to the contrary. Notwithstanding the foregoing, with respect to any Global Unit Certificate, nothing herein shall prevent the Company, the Unit Agent or any agent of the Company or the Unit Agent, from giving effect to any written certification, proxy or other authorization furnished by any Depositary (or its nominee), as a Holder, with respect to such Global Unit Certificate or impair, as between such Depositary and owners of beneficial interests in such Global Unit Certificate, the operation of customary practices governing the exercise of rights of such Depositary (or its nominee) as Holder of such Global Unit Certificate. 3.8 CANCELLATION. All Unit Certificates surrendered for delivery of shares of Common Stock on or after the Stock Purchase Date, transfer of Pledged Securities after the occurrence of a Termination Event or registration of transfer or exchange shall, if surrendered to any Person other than the Unit Agent, be delivered to the Unit Agent and, if not already canceled, shall be promptly canceled by it. The Company may at any time deliver to the Unit Agent for cancellation any Unit Certificates previously authenticated, executed and delivered hereunder which the Company may have acquired in any manner whatsoever, and all Unit Certificates so delivered shall, upon Issuer Order, be promptly canceled by the Unit Agent. No Unit Certificates shall be authenticated, executed on behalf of the Holder and delivered upon transfer of, in exchange for or in lieu of any Unit Certificates canceled as provided in this Section, except as expressly permitted by this Agreement. All canceled Unit Certificates held by the Unit Agent shall be disposed of as directed by Issuer Order. If the Company or any Affiliate of the Company shall acquire any Unit Certificate, such acquisition shall not operate as a cancellation of such Unit Certificate unless and until such Unit Certificate is delivered to the Unit Agent canceled or for cancellation. 3.9 SUBSTITUTION OF PLEDGED SECURITIES AND CREATION OF STRIPPED UNITS; UNITS NOT OTHERWISE SEPARABLE. (a) A Holder of Normal Units may obtain the release from the Pledge of such Holder's Pledged Securities underlying such Normal Units, free and clear of the Company's and the Call Option Holder's security interests therein, and convert such Normal Units into Stripped Units (collectively, a "Stripped Unit Creation") at any time after the original issuance of such Normal Units and on or prior to the second Business Day immediately preceding the Stock Purchase Date by: (i) delivering to the Collateral Agent: (w) Treasury Securities that through their scheduled payments will generate not later than the Stock Purchase Date an amount of cash that is at least equal to the aggregate Stated Amount of such Normal Units, (x) if any Contract Fees are or will be payable by the Holders to the Company, Treasury Securities that through their scheduled payments will generate not later than each Quarterly Payment Date falling after the date on which the requirements for such Stripped Unit Creation contained in this -18- Section 3.9(a) are satisfied and on or before the Stock Purchase Date an amount of cash that is at least equal to the aggregate Contract Fees that are scheduled to be payable in respect of the Purchase Contracts underlying such Normal Units on such Quarterly Payment Date (assuming for this purpose that no Contract Fees will then have been deferred under Section 5.3); (y) if there are any deferred Contract Fees payable by such Holder to the Company on the date on which the requirements for such Stripped Unit Creation contained in this Section 3.9(a) are satisfied, an amount of cash equal to (1) the aggregate unpaid amount of such Contract Fees accrued to such date, if such date is a Quarterly Payment Date, and (2) the aggregate unpaid amount of such Contract Fees accrued to the Quarterly Payment Date immediately preceding such date plus interest thereon at a rate per annum equal to the Contract Fee Rate for the period from and including such Quarterly Payment Date to but excluding such date (calculated on the basis of a 360-day year of twelve 30-day months), if such date is not a Quarterly Payment Date; and (z) if the Call Options underlying such Normal Units remain exercisable on the date on which the requirements contained in this Section 3.9(a) for such Stripped Unit Creation are satisfied, an instrument from the Call Option Holder releasing its security interest in the Pledged Securities securing such Call Options and agreeing that such Call Options no longer underlie such Normal Units (or the Stripped Units they become); and (ii) surrendering the Unit Certificate evidencing such Normal Units, with the form of Request to Create Stripped Units thereon duly completed and executed, to the Unit Agent, whereupon the Unit Agent shall promptly request the Collateral Agent to release the Pledged Securities underlying such Normal Units; provided, however, that if Treasury Securities are the Pledged Securities underlying such Normal Units, a Stripped Unit Creation may only be effected with respect to a number of Normal Units that will result in the release from the Pledge of Treasury Securities in denominations of $1,000 or integral multiples thereof. (b) Upon receipt of the items described in clause (i) of Section 3.9(a) above and the request from the Unit Agent described in clause (ii) of Section 3.9(a) above, the Collateral Agent will, in accordance with the terms of the Pledge Agreement, release to the Unit Agent, on behalf of the Holder, from the Pledge, free and clear of the Company's and the Call Option Holders's security interests therein, the securities that theretofore had been the Pledged Securities underlying such Normal Units, and upon receipt thereof the Unit Agent shall promptly: (i) cancel the Unit Certificate for such Normal Units; (ii) transfer such released Pledged Securities to the Holder or, subject to Section 3.5, the Holder's designee; (iii) authenticate, execute on behalf of such Holder and deliver to the Holder or, subject to Section 3.5, the Holder's designee a Unit Certificate executed -19- by the Company in accordance with Section 3.3 evidencing a number of Stripped Units equal to the number of such Normal Units. Concurrently with the release of the securities that theretofore had been the Pledged Securities underlying such Normal Units as contemplated by the preceding sentence, the Treasury Securities delivered to the Collateral Agent as contemplated by clause (i) of Section 3.9(a) above shall thereupon be substituted for such securities as Pledged Securities underlying the Stripped Units created from such Normal Units. (c) Except for a Stripped Unit Creation effected in compliance with this Section 3.9, for so long as the Purchase Contract underlying a Normal Unit remains in effect such Normal Unit shall not be separable into its constituent parts, and the rights and obligations of the Holder of such Normal Unit in respect of the Pledged Securities, Purchase Contract and Call Option underlying such Normal Unit may be acquired, and may be transferred and exchanged, only as an integrated Normal Unit. For so long as the Purchase Contract underlying a Stripped Unit remains in effect such Stripped Unit shall not be separable into its constituent parts, and the rights and obligations of the Holder of such Stripped Unit in respect of the Pledged Securities and Purchase Contract underlying such Stripped Unit may be acquired, and may be transferred and exchanged, only as an integrated Stripped Unit. Other than a Unit Certificate, no Holder of a Unit, nor any transferee thereof, shall be entitled to receive a certificate evidencing the ownership of Pledged Securities or any other rights or obligations underlying such Unit for so long as the Purchase Contract underlying such Unit remains in effect. 3.10 PAYMENTS ON THE UNITS. Contract Fees (if any) payable by the Company to the Holders, and all amounts payable to Holders as required by Section 4.1 or 5.4(b), will be payable at the office of the Unit Agent in The City of New York maintained for that purpose or, at the option of the Company, by check mailed to the address of the Person entitled thereto at such address as it appears on the relevant Unit Register; provided, however, that for so long as any Units are evidenced by Global Certificates, the Unit Agent will pay each such amount payable in respect of such Units by wire transfer in same-day funds, no later than 2:00 p.m., New York City time, on the Business Day such amount is received by the Unit Agent (or, if such amount is received by the Unit Agent after 1:00 p.m., New York City time, on a Business Day or on a day that is not a Business Day, no later than 10:00 a.m., New York City time, on the next succeeding Business Day), to the Depositary, to the account or accounts designated by it for such purpose. 4. THE PLEDGED SECURITIES. 4.1 PAYMENTS ON THE PLEDGED SECURITIES. As provided by the terms of the Pledge Agreement, on each Quarterly Payment Date, subject to receipt by the Collateral Agent of the relevant payments in respect of the Pledged Securities underlying any Holder's Units, (a) the Collateral Agent (i) shall, on behalf of such Holder, pay to the Company the Contract Fees, if any, then payable by such Holder to the Company and (ii) shall, subject to Section 5.4(b), remit to the Unit Agent the amount of such payments remaining after the payment referred to in clause (i) and (b) the amount referred to in clause (a)(ii) above shall, subject to receipt thereof by the -20- Unit Agent from the Collateral Agent, be paid to the Person in whose name the Unit Certificate (or one or more Predecessor Unit Certificates) evidencing such Units is registered at the close of business on the Record Date next preceding such Quarterly Payment Date. In addition, in the event that (a) the Call Options are exercised and the Aggregate Consideration Deliverable on Exercise of the Call Options includes a cash amount in respect of deferred distributions on the QUIPS or deferred interest payments on the Junior Subordinated Debentures and (b) the Call Settlement Date is not a Quarterly Payment Date, pursuant to the Pledge Agreement the Collateral Agent shall, on behalf of the Holders of the Normal Units, pay to the Company on the Call Settlement Date an amount equal to the Contract Fees, if any, then payable by such Holders to the Company. 4.2 TRANSFER OF PLEDGED SECURITIES UPON OCCURRENCE OF TERMINATION EVENT. Upon the occurrence of a Termination Event and the transfer to the Unit Agent of the Pledged Securities underlying each Holder's Units pursuant to the terms of the Pledge Agreement, the Unit Agent shall request transfer instructions with respect to such Pledged Securities from such Holder by written request mailed to such Holder at his address as it appears in the relevant Unit Register. Thereafter, upon surrender to the Unit Agent of a Unit Certificate evidencing a Holder's Units, with transfer instructions in proper form for transfer of the underlying Pledged Securities, the Unit Agent shall transfer the Pledged Securities evidenced by such Unit Certificate to such Holder in accordance with such instructions; provided, however, that if the Pledged Securities are to be transferred to a Person other than the Person in whose name such Unit Certificate is registered, no such transfer shall be made unless the Person requesting the transfer has paid any transfer and other taxes required by reason of such transfer to a Person other than the registered Holder of such Unit Certificate or has established to the satisfaction of the Company that such tax either has been paid or is not payable. Until the foregoing conditions to transfer any of the Pledged Securities underlying any Units has been met, the Unit Agent shall hold such Pledged Securities as custodian for the Holder of such Units. If upon a Termination Event any Holder of Units would, after satisfying the foregoing conditions, otherwise be entitled to receive (or have transferred to such Holder's designee) Treasury Securities of any series having a principal amount that is not an integral multiple of $1,000, such Holder shall instead be entitled to receive (or have transferred to such Holder's designee) Treasury Securities of such series in a principal amount equal to the next lower integral multiple of $1,000 plus a portion of the net proceeds from the sale of Treasury Securities of such series contemplated by the succeeding sentence representing such Holder's interest therein. As soon as practicable after transfer to the Unit Agent of the Pledged Securities as provided in the Pledge Agreement, the Unit Agent shall, on behalf of all Holders who, by virtue of the preceding sentence, will not be entitled to a portion of the Treasury Securities of any series to which they would otherwise be entitled aggregate and sell the Treasury Securities of such series representing such portion to or through one or more U.S. government securities dealers at then prevailing prices, deduct from the proceeds of such sales all commissions and other out-of-pocket transaction costs incurred in connection with such sales and, until the net proceeds therefrom have been distributed to the Holders entitled thereto or their designees, hold such proceeds in trust for such Holders. -21- 5. THE PURCHASE CONTRACTS. 5.1 PURCHASE OF SHARES OF COMMON STOCK. Each Purchase Contract underlying a Unit shall obligate the Holder of such Unit to purchase, and the Company to sell, on the Stock Purchase Date, at a price equal to the Stated Amount, a number of shares of Common Stock equal to the Settlement Rate, unless, on or prior to the Stock Purchase Date, there shall have occurred a Termination Event. The "Settlement Rate" is equal to (a) if the Applicable Market Value (as defined below) is greater than or equal to $________ (the "Threshold Appreciation Price"), _______________ of a share of Common Stock per Purchase Contract, (b) if the Applicable Market Value is less than the Threshold Appreciation Price but is greater than the Stated Amount, a fractional share of Common Stock per Purchase Contract equal to the Stated Amount divided by the Applicable Market Value (rounded upward or downward to the nearest 1/10,000th of a share or, if there is not a nearest 1/10,000th of a share, to the next lower 1/10,000th of a share) and (c) if the Applicable Market Value is less than or equal to the Stated Amount, one share of Common Stock per Purchase Contract, in each case subject to adjustment as provided in Section 5.6. As provided in Section 5.9, no fractional shares of Common Stock will be issued upon settlement of Purchase Contracts. The "Applicable Market Value" means the average of the Closing Prices per share of Common Stock on each of the twenty consecutive Trading Days ending on the last Trading Day immediately preceding the Stock Purchase Date. The "Closing Price" of the Common Stock on any date of determination means the closing sale price (or, if no closing price is reported, the last reported sale price) of the Common Stock on the New York Stock Exchange (the "NYSE") on such date or, if the Common Stock is not listed for trading on the NYSE on any such date, as reported in the composite transactions for the principal United States securities exchange on which the Common Stock is so listed, or if the Common Stock is not so listed on a United States national or regional securities exchange, as reported by The NASDAQ Stock Market, or, if the Common Stock is not so reported, the last quoted bid price for the Common Stock in the over-the-counter market as reported by the National Quotation Bureau or similar organization, or, if such bid price is not available, the market value of the Common Stock on such date as determined by a nationally recognized investment banking firm retained for this purpose by the Company. A "Trading Day" means a day on which the Common Stock (A) is not suspended from trading on any national or regional securities exchange or association or over-the-counter market at the close of business and (B) has traded at least once on the national or regional securities exchange or association or over-the-counter market that is the primary market for the trading of the Common Stock. Each Holder of a Unit Certificate evidencing Normal Units, by his acceptance thereof, irrevocably authorizes the Unit Agent to enter into and perform the underlying Purchase Contracts and Call Options on his behalf as his attorney-in-fact, agrees to be bound by the terms and provisions thereof, covenants and agrees to perform his obligations under such Purchase Contracts and Call Options, consents to the provisions of the Principal Agreements, irrevocably authorizes the Unit Agent to enter into and perform the Call Option Agreement and the Pledge Agreement on his behalf as his attorney-in-fact, and consents to and agrees to be bound by the Pledge of the Pledged Securities underlying such Normal Units pursuant to the Pledge -22- Agreement. Each Holder of a Unit Certificate evidencing Stripped Units, by his acceptance thereof, irrevocably authorizes the Unit Agent to enter into and perform the underlying Purchase Contracts on his behalf as his attorney-in-fact, agrees to be bound by the terms and provisions thereof, covenants and agrees to perform his obligations under such Purchase Contracts, consents to the provisions of the Principal Agreements, irrevocably authorizes the Unit Agent to perform the Pledge Agreement on his behalf as his attorney-in-fact, and consents to and agrees to be bound by the Pledge of the Pledged Securities underlying such Stripped Units pursuant to the Pledge Agreement. Each Holder of Units, by his acceptance thereof, further irrevocably covenants and agrees that, unless such Holder satisfies its obligations to the Company under the Purchase Contracts underlying such Units as provided in Section 5.4(a), then to the extent and in the manner provided in Section 5.4(b) and the Pledge Agreement, but subject to the terms thereof, payments in respect of all or a portion of the principal of or proceeds from the Pledged Securities on the Stock Purchase Date shall be paid by the Collateral Agent to the Company in satisfaction of such Holder's obligations under such Purchase Contract and such Holder shall acquire no right, title or interest in such payments. Upon registration of transfer of a Unit Certificate, the transferee shall be bound (without the necessity of any other action on the part of such transferee) by the terms of the Purchase Contracts and any Call Options evidenced thereby and by the Pledge Agreement and the transferor shall be released from all such obligations evidenced by the Unit Certificate so transferred. The Company covenants and agrees, and each Holder of a Unit Certificate, by his acceptance thereof, likewise covenants and agrees, to be bound by the provisions of this paragraph. 5.2 CONTRACT FEES. Subject to Section 5.3, if any Contract Fees are or will be payable by the Company to the Holders, the Company shall pay, prior to 2:00 p.m., New York City time, on each Quarterly Payment Date to and including the Stock Purchase Date, the Contract Fees payable in respect of each Purchase Contract to the Person in whose name the Unit Certificate (or one or more Predecessor Unit Certificates) evidencing such Purchase Contract is registered at the close of business on the Record Date next preceding such Quarterly Payment Date. The Company's obligations with respect to such Contract Fees [SUBORDINATION LANGUAGE FROM INDENTURE TO BE INSERTED]. Subject to Section 5.3, if any Contract Fees are or will be payable by the Holders to the Company, the Collateral Agent, on behalf of the Holders, shall pay, on each Quarterly Payment Date to and including the Stock Purchase Date, the Contract Fees payable in respect of each Purchase Contract to the Company. Such payment will be funded out of payments received by the Collateral Agent in respect of Pledged Securities. Each Unit Certificate delivered under this Agreement upon registration of transfer of, in exchange for or in lieu of any other Unit Certificate shall carry the rights to receive and obligations to pay Contract Fees accrued and unpaid, and to accrue, which were carried by the Purchase Contracts evidenced by such other Unit Certificate. -23- 5.3 DEFERRAL OF PAYMENT DATES FOR CONTRACT FEE. So long as no default in the Company's obligations under the Principal Agreements has occurred and is continuing, the Company shall have the right, at any time prior to the Stock Purchase Date, to defer the payment of any or all of the Contract Fees, if any, otherwise payable by the Company on any Quarterly Payment Date, but only if the Company shall give the Holders and the Unit Agent written notice of its election to defer such payment (specifying the amount to be deferred) at least five Business Days prior to the earlier of (a) the next succeeding Quarterly Payment Date or (b) the date the Company is required to give notice of the Record Date or Quarterly Payment Date with respect to payment of such Contract Fee to the NYSE or other applicable self-regulatory organization or to Holders, or (c) the Record Date for such Quarterly Payment Date. Any Contract Fees so deferred shall bear additional Contract Fees thereon at a rate per annum equal to the Contract Fee Rate (computed on the basis of a 360-day year of twelve 30-day months), compounding on each succeeding Quarterly Payment Date, until paid in full. Deferred Contract Fees (and additional Contract Fees accrued thereon) shall be due on the next succeeding Quarterly Payment Date except to the extent that payment is deferred pursuant to this Section. No Contract Fees may be deferred to a date that is after the Stock Purchase Date. In the event the Company exercises its option to defer the payment of Contract Fees (if any) payable by it, then, until all deferred Contract Fees (including additional Contract Fees accrued thereon) have been paid in full, the Company shall not (a) declare or pay any dividends or distributions on, or redeem, purchase, acquire, or make a liquidation payment with respect to, any of the Company's capital stock, (b) make any payment of principal, interest or premium, if any, on or repay, repurchase or redeem any debt securities of the Company that rank part passu with or junior in right of payment to the Contract Fees or (c) make any guarantee payments with respect to any guarantee by the Company of any securities of any subsidiary of the Company if such guarantee ranks pari passu or junior in right of payment to the Contract Fees (other than, in the case of clauses (a), (b) and (c), (i) dividends or distributions in shares of, or options, warrants or rights to subscribe for or purchase shares of, common stock of the Company, (ii) any declaration of a dividend in connection with the implementation of a stockholder's rights plan, or the issuance of stock under any such plan in the future, or the redemption or repurchase of any such rights pursuant thereto, (iii) payments under the Company's guarantee of the QUIPS, (iv) as a result of a reclassification of the Company's capital stock solely into shares of one or more classes or series of the Company's capital stock or the exchange or conversion of one class or series of the Company's capital stock for another class or series of the Company's capital stock, (v) the purchase of fractional interests in shares of the Company's capital stock pursuant to the conversion or exchange provisions of such capital stock or the securities being converted or exchanged and (vi) purchases of common stock in connection with the satisfaction by the Company of its obligations under any of the Company's benefit plans for its and its subsidiaries' directors, officers or employees or any of the company's dividend reinvestment plans). If any Contract Fees are payable by a Holder to the Company and payments made in respect of Pledged Securities underlying such Holder's Units are insufficient to cover such Holder's obligation to pay such Contract Fees, such obligation shall be deferred until the earlier of the date sufficient cash is available and the Stock Purchase Date. Any such Contract Fees so deferred shall bear additional Contract Fees thereon at a rate per annum equal to the Contract Fee -24- Rate (computed on the basis of a 360-day year of twelve 30-day months), compounding on each succeeding Quarterly Payment Date, until paid in full. 5.4 PAYMENT OF PURCHASE PRICE. (a) A Holder of Units shall, by no later than 10:00 a.m., New York City time, on the Stock Purchase Date, deliver to the Unit Agent payment of the purchase price for the shares of Common Stock to be purchased pursuant to the Purchase Contracts underlying such Units, which payment shall be made in lawful money of the United States by certified or cashier's check payable to the order of the Company in immediately available funds in an amount equal to the aggregate Stated Amount of such Holder's Units, plus, if there are unpaid Contract Fees accrued and payable by such Holder to the Company on the Stock Purchase Date and the cash received by the Collateral Agent on such date in respect of the Pledged Securities underlying such Units is less than the amount of such unpaid Contract Fees, an amount sufficient to cover such shortfall. By 11:00 a.m., New York City time, on the Stock Purchase Date, the Unit Agent shall (i) transfer to the Company all of the payments the Company shall have received as contemplated by the preceding sentence, (ii) notify the Collateral Agent and the Company as to the number of Normal Units and the number of Stripped Units, respectively, with respect to which payment has been received as aforesaid (such Units being collectively referred to as "Paid Units") and the number of Normal Units and the number of Stripped Units, respectively, with respect to which payment has not been received as aforesaid (such Units being collectively referred to as "Unpaid Units"), and (iii) request the Collateral Agent to release the Pledged Securities underlying the Paid Units (or, in the case of Treasury Securities, the cash payments received thereon) from the Pledge to the Unit Agent (for delivery to the Holders of such Units entitled thereto), free and clear of the Company's security interest therein. By 1:00 p.m., New York City time, on the Stock Purchase Date, the Collateral Agent shall, as provided by the terms of the Pledge Agreement, comply with the request referred to in clause (iii) of the preceding sentence (subject to the Company's right to prevent the Collateral Agent from doing so to the extent the aggregate amount the Company has received as contemplated by clause (i) of the preceding sentence is less than the aggregate amount payable with respect to the Units referred to in such request). The Unit Agent shall thereupon, subject to its receipt from the Collateral Agent of the Pledged Securities (or cash) referred to in such request and subject to Section 3.5, transfer such released Pledged Securities (or cash) to the respective Holders entitled thereto in accordance with the settlement instructions specified in the form of Settlement Instructions appearing on the Unit Certificates evidencing the Paid Units; provided, however, that if any such Unit Certificate is not surrendered to the Unit Agent with the form of Settlement Instructions thereon duly completed and executed, the Unit Agent shall hold such Pledged Securities (or cash), and any distributions or interest received on such Pledged Securities, as custodian for the Holder entitled thereto, to be delivered to such Holder (without any interest thereon and subject to Section 3.5) upon surrender of such Unit Certificate to the Unit Agent (with the form of Settlement Instructions thereon duly completed and executed). -25- (b) With respect to each Holder's Unpaid Units, pursuant to the terms of the Pledge Agreement, (i) (x) if QUIPS underlie such Unpaid Units, the Collateral Agent, on behalf of such Holder, shall exercise such Holder's right under the Declaration to require the Trust to distribute Junior Subordinated Debentures having an aggregate principal amount equal to the aggregate liquidation amount of such QUIPS, in exchange for such QUIPS, and, upon receiving such Junior Subordinated Debentures, shall thereupon, as Put Agent, exercise the Junior Subordinated Debenture Put Option with respect thereto and (y) if Junior Subordinated Debentures underlie such Unpaid Units, the Collateral Agent, on behalf of such Holder, shall, as Put Agent, exercise the Junior Subordinated Debenture Put Option with respect thereto; (ii) the Collateral Agent shall deliver to the Company, out of the proceeds from the exercise of such Junior Subordinated Debenture Put Option or, if Treasury Securities underlie such Unpaid Units, the proceeds from the payment of such Treasury Securities at maturity, an amount equal to the aggregate Stated Amount of such Unpaid Units plus the Unpaid Contract Fees, if any, payable by such Holder to the Company in respect of such Unpaid Units to satisfy in full such Holder's obligations under such Unpaid Units; and (iii) the Collateral Agent shall remit to the Unit Agent, on behalf of such Holder, the remainder of the proceeds, if any, from the Pledged Securities underlying such Unpaid Units for distribution to such Holder. The amount referred to in clause (iii) above shall, subject to receipt thereof by the Unit Agent from the Collateral Agent, be paid to the Person in whose name the Unit Certificate (or one or more Predecessor Unit Certificates) evidencing such Unpaid Units is registered at the close of Business on the Record Date next preceding the Stock Purchase Date. (c) Each Holder will be entitled to apply any unpaid amounts owing by the Company to such Holder as a set-off to reduce, dollar-for-dollar, any amounts then owing by such Holder to the Company in respect of such Holder's Units, and such set-off amounts will be treated for all purposes as having been paid in full by such Holder as required hereby. (d) The Company shall not be obligated to issue any shares of Common Stock in respect of a Purchase Contract or deliver any certificates therefor to the Holder of the related Unit unless the Company shall have received payment in full of the aggregate purchase price for the shares of Common Stock to be purchased thereunder in the manner herein set forth (either directly or by operation of set-off as contemplated by the preceding sentence). 5.5 ISSUANCE OF SHARES OF COMMON STOCK. On the Stock Purchase Date, upon receipt by the Company of payment in full of the aggregate purchase price for the shares of Common Stock purchased by the Holders pursuant to the foregoing provisions of this Article, and subject to -26- Section 5.6(b), the Company shall deposit with the Unit Agent, for the benefit of the Holders of the Units, one or more certificates representing the shares of Common Stock registered in the name of the Unit Agent (or its nominee) as custodian for the Holders (such certificates for shares of Common Stock, together with any dividends or distributions with respect thereto, being hereinafter referred to as the "Purchase Contract Settlement Fund") to which the Holders are entitled hereunder. Subject to the foregoing, upon surrender of a Unit Certificate to the Unit Agent on or after the Stock Purchase Date, with the form of Settlement Instructions thereon duly completed and executed, the Holder of such Unit Certificate shall be entitled to receive in exchange therefor a certificate representing that number of whole shares of Common Stock which such Holder is entitled to receive pursuant to the provisions of this Article Five (after taking into account all Units then held by such Holder) together with cash in lieu of fractional shares as provided in Section 5.9 and any dividends or distributions with respect to such shares constituting part of the Purchase Contract Settlement Fund, but without any interest thereon, and the Unit Certificate so surrendered shall forthwith be cancelled. Such shares shall be registered in the name of the Holder or the Holder's designee as specified in the form of Settlement Instructions appearing on the surrendered Unit Certificate. If any shares of Common Stock issued in respect of a Purchase Contract are to be registered to a Person other than the Person in whose name the Unit Certificate evidencing such Purchase Contract is registered, no such registration shall be made unless the Person requesting such registration has paid any transfer and other taxes required by reason of such registration in a name other than that of the registered Holder of the Unit Certificate evidencing such Purchase Contract or has established to the satisfaction of the Company that such tax either has been paid or is not payable. 5.6 ADJUSTMENT OF SETTLEMENT RATE. (a) Adjustments for Dividends, Distributions, Stock Splits, Etc. (1) In case the Company shall pay or make a dividend or other distribution on any class of Common Stock of the Company in Common Stock, the Settlement Rate in effect at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be increased by dividing such Settlement Rate by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this paragraph (1), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company. -27- (2) In case the Company shall issue rights, options or warrants to all holders of its Common Stock (not being available on an equivalent basis to Holders of the Units upon settlement of the Purchase Contracts underlying such Units) entitling them, for a period expiring within 45 days after the record date for the determination of stockholders entitled to receive such rights, options or warrants, to subscribe for or purchase shares of Common Stock at a price per share less than the Current Market Price per share of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than pursuant to a dividend reinvestment plan), the Settlement Rate in effect at the opening of business on the day following the date fixed for such determination shall be increased by dividing such Settlement Rate by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such Current Market Price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this paragraph (2), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall not issue any such rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company. (3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Settlement Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the Settlement Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective. (4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness or assets (including securities, but excluding any rights or warrants referred to in paragraph (2) of this Section, any dividend or distribution paid exclusively in cash and any dividend or distribution referred to in paragraph (1) of this Section), the Settlement Rate shall be adjusted so that the same shall equal the rate determined by dividing the Settlement Rate in effect immediately prior to the close of business on the date -28- fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the Current Market Price per share of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Unit Agent) of the portion of the assets or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall all be such Current Market Price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. In any case in which this paragraph (4) is applicable, paragraph (2) of this Section shall not be applicable. (5) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed in a Reorganization Event to which Section 5.6(b) applies or as part of a distribution referred to in paragraph (4) of this Section) in an aggregate amount that, combined together with (I) the aggregate amount of any other distributions to all holders of its Common Stock made exclusively in cash within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (5) or paragraph (6) of this Section has been made and (II) the aggregate of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the expiration of such tender or exchange offer, of consideration payable in respect of any tender or exchange offer by the Company or any of its subsidiaries for all or any portion of the Common Stock expiring within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (5) or paragraph (6) of this Section has been made, exceeds 12.5% of the product of the Current Market Price per share of the Common Stock on the date for the determination of holders of shares of Common Stock entitled to receive such distribution times the number of shares of Common Stock outstanding on such date, then, and in each such case, immediately after the close of business on such date for determination, the Settlement Rate shall be increased so that the same shall equal the rate determined by dividing the Settlement Rate in effect immediately prior to the close of business on the date fixed for determination of the stockholders entitled to receive such distribution by a fraction (i) the numerator of which shall be equal to the Current Market Price peer share of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (x) the excess of such combined amount over such 12.5% and (y) the number of shares of Common Stock outstanding on such date for determination and (ii) the denominator of which shall be equal to the Current Market Price per share of the Common Stock on such date for determination. -29- (6) In case a tender or exchange offer made by the Company or any subsidiary of the Company for all or any portion of the Common Stock shall expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to stockholders (based on the acceptance (up to any maximum specified in the terms of the tender or exchange offer) of Purchased Shares) of an aggregate consideration having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that, combined together with (I) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the expiration of such tender or exchange offer, of consideration payable in respect of any other tender or exchange offer by the Company or any of its subsidiaries for all or any portion of the Common Stock expiring within the 12 months preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to paragraph (5) of this Section or this paragraph (6) has been made and (II) the aggregate amount of any distributions to all holders of the Company's Common Stock made exclusively in cash within 12 months preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to paragraph (5) of this Section or this paragraph (6) has been made, exceeds 12.5% of the product of the Current Market Price per share of the Common Stock as of the last time (the "Expiration Time") tenders could have been made pursuant to such tender or exchange offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered shares) on the Expiration Time, then, and in each such case, immediately prior to the opening of business on the day after the date of the Expiration Time, the Settlement Rate shall be adjusted so that the same shall equal the rate determined by dividing the Settlement Rate immediately prior to the close of business on the date of the Expiration Time by a fraction (i) the numerator of which shall be equal to (A) the product of (I) the Current Market Price per share of the Common Stock on the date of the Expiration Time and (II) the number of shares of Common Stock outstanding (including any tendered shares) at the Expiration Time less (B) the amount of cash plus the fair market value (determined as aforesaid) of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender or exchange offer) of Purchased Shares, and (ii) the denominator of which shall be equal to the product of (A) the Current Market Price per share of the Common Stock as of the Expiration Time and (B) the number of shares of Common Stock outstanding (including any tendered shares) as of the Expiration Time less the number of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the "Purchased Shares"). (7) The reclassification of Common Stock into securities including securities other than Common Stock (other than any reclassification upon a Reorganization Event to which Section 5.6(b) applies) shall be deemed to involve (i) a distribution of such securities other than Common Stock to all holders of -30- Common Stock (and the effective date of such reclassification shall be deemed to be "the date fixed for the determination of stockholders entitled to receive such distribution" and the "date fixed for such determination" within the meaning of paragraph (4) of this Section), and (ii) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be "the day upon which such subdivision becomes effective" or "the day upon which such combination becomes effective", as the case may be, and "the day upon which such subdivision or combination becomes effective" within the meaning of paragraph (3) of this Section). (8) The "Current Market Price" per share of Common Stock on any day means the average of the daily Closing Prices for the 5 consecutive Trading Days selected by the Company commencing not more than 20 Trading Days before, and ending not later than, the earlier of the day in question and the day before the "ex" date with respect to the issuance or distribution requiring such computation. For purposes of this paragraph, the term "'ex' date," when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on such exchange or in such market without the right to receive such issuance or distribution. (9) All adjustments to the Settlement Rate shall be calculated to the nearest 1/10,000th of a share of Common Stock (or, if there is not a nearest 1/10,000th of a share, to the next lower 1/10,000th of a share). No adjustment in the Settlement Rate shall be required unless such adjustment would require an increase or decrease of at least one percent therein; provided, however, that any adjustments which by reason of this subparagraph are not required to be made shall be carried forward and taken into account in any subsequent adjustment. If an adjustment is made to the Settlement Rate pursuant to paragraph (1), (2), (3), (4), (5), (6), (7) or (10) of this Section 5.6(a), an adjustment shall also be made to the Applicable Market Value solely to determine which of clauses (a), (b) or (c) of the definition of Settlement Rate in Section 5.1 will apply on the Stock Purchase Date. Such adjustment shall be made by multiplying the Applicable Market Value by a fraction of which the numerator shall be the Settlement Rate immediately after such adjustment pursuant to paragraph (l), (2), (3), (4), (5), (6), (7) or (10) of this Section 5.6(a) and the denominator shall be the Settlement Rate immediately before such adjustment. (10) The Company may make such increases in the Settlement Rate, in addition to those required by this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. -31- (b) Adjustment for Consolidation, Merger or Other Reorganization Event. In the event of (i) any consolidation or merger of the Company with or into another Person (other than a merger or consolidation in which the Company is the continuing corporation and in which the Common Stock outstanding immediately prior to the merger or consolidation is not exchanged for cash, securities or other property of the Company or another corporation), (ii) any sale, transfer, lease or conveyance to another Person of the property of the Company as an entirety or substantially as an entirety, (iii) any statutory exchange of securities of the Company with another Person (other than in connection with a merger or acquisition) or (iv) any liquidation, dissolution or winding up of the Company (any such event, a "Reorganization Event"), the Settlement Rate will be adjusted to provide that each Holder of Units will receive on the Stock Purchase Date with respect to each Purchase Contract forming a part thereof, the kind and amount of securities, cash and other property receivable upon such Reorganization Event by a Holder of the number of shares of Common Stock issuable on account of each Purchase Contract if the Stock Purchase Date had occurred immediately prior to such Reorganization Event, assuming such Holder of Common Stock is not a Person with which the Company consolidated or into which the Company merged or which merged into the Company or to which such sale or transfer was made, as the case may be ("constituent Person"), or an Affiliate of a constituent Person, and failed to exercise his rights of election, if any, as to the kind or amount of securities, cash and other property receivable upon such Reorganization Event (provided that if the kind or amount of securities, cash and other property receivable upon such Reorganization Event is not the same for each share of Common Stock held immediately prior to such Reorganization Event by other than a constituent Person or an Affiliate thereof and in respect of which such rights of election shall not have been exercised ("non-electing share"), then for the purpose of this Section the kind and amount of securities, cash and other property receivable upon such Reorganization Event by each non-electing share shall be deemed to be the kind and amount so receivable per share by a plurality of the non-electing shares). In the event of such a Reorganization Event, the Person formed by such consolidation, merger or exchange or the Person which acquires the assets of the Company or, in the event of a liquidation or dissolution of the Company, the Company or a liquidating trust created in connection therewith, shall execute and deliver to the Unit Agent an agreement supplemental hereto providing that the Holders of each Outstanding Unit shall have the rights provided by this Section 5.6. Such supplemental agreement shall provide for adjustments which, for events subsequent to the effective date of such supplemental agreement, shall be as nearly equivalent as may be practicable to the adjustments provided for in this Section. The above provisions of this Section shall similarly apply to successive Reorganization Events. 5.7 NOTICE OF ADJUSTMENTS AND CERTAIN OTHER EVENTS. (a) Whenever the Settlement Rate is adjusted as herein provided, the Company shall: (i) forthwith compute the adjusted Settlement Rate in accordance with Section 5.6 and prepare and transmit to the Unit Agent an Officers' Certificate setting forth the Settlement Rate, the method of calculation thereof in reasonable detail, and the facts requiring such adjustment and upon which such adjustment is based; and -32- (ii) within 10 Business Days following the occurrence of an event that permits or requires an adjustment to the Settlement Rate pursuant to Section 5.6 (or if the Company is not aware of such occurrence, as soon as practicable after becoming so aware), provide a written notice to the Holders of the Units of the occurrence of such event and a statement in reasonable detail setting forth the method by which the adjustment to the Settlement Rate was determined and setting forth the adjusted Settlement Rate. (b) The Unit Agent shall not at any time be under any duty or responsibility to any holder of Units to determine whether any facts exist which may require any adjustment of the Settlement Rate, or with respect to the nature or extent or calculation of any such adjustment when made, or with respect to the method employed in making the same. The Unit Agent shall not be accountable with respect to the validity or value (or the kind or amount) of any shares of Common Stock, or of any securities or property, which may at the time be issued or delivered with respect to any Purchase Contract; and the Unit Agent makes no representation with respect thereto. The Unit Agent shall not be responsible for any failure of the Company to issue, transfer or deliver any shares of Common Stock pursuant to a Purchase Contract or to comply with any of the duties, responsibilities or covenants of the Company contained in this Article. 5.8 NO FRACTIONAL SHARES. No fractional shares or scrip representing fractional shares of Common Stock shall be issued or delivered upon settlement on the Stock Purchase Date. If Unit Certificates evidencing more than one Purchase Contract shall be surrendered for settlement at one time by the same Holder, the number of full shares of Common Stock which shall be delivered upon settlement shall be computed on the basis of the aggregate number of Purchase Contracts evidenced by the Unit Certificates so surrendered. Instead of any fractional share of Common Stock which would otherwise be deliverable upon settlement of any Purchase Contracts on the Stock Purchase Date, the Company, through the Unit Agent, shall make a cash payment in respect of such fractional interest in an amount equal to such fraction times the Applicable Market Value. The Company shall provide the Unit Agent from time to time with sufficient funds to permit the Unit Agent to make all cash payments required by this Section 5.8 in a timely manner. 5.9 CHARGES AND TAXES. The Company will pay all stock transfer and similar taxes attributable to the initial issuance and delivery of the shares of Common Stock pursuant to the Purchase Contracts; provided, however, that the Company shall not be required to pay any such tax or taxes which may be payable in respect of any exchange of or substitution for a Unit Certificate evidencing a Purchase Contract or any issuance of a share of Common Stock in a name other than that of the registered Holder of a Unit Certificate surrendered in respect of the Purchase Contracts evidenced thereby, other than in the name of the Unit Agent, as custodian for such Holder, and the Company shall not be required to issue or deliver such share certificates or Unit Certificates unless or until the Person or Persons requesting the transfer or issuance thereof shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paid. -33- 5.10 TERMINATION EVENT; NOTICE. The Purchase Contracts and the obligations and rights of the Company and the Holders thereunder, including, without limitation, all obligations and rights to pay or receive any accrued or deferred Contract Fees or to settle such Purchase Contracts pursuant to this Article Five, shall immediately and automatically terminate, without the necessity of any notice or action by any Holder, the Unit Agent or the Company, if, on or prior to the Stock Purchase Date, a Termination Event shall have occurred. Upon the occurrence of a Termination Event, the Company shall give written notice to the Unit Agent, the Collateral Agent and the Holders, at their addresses as they appear in the Unit Registers. Upon and after the occurrence of a Termination Event, the provisions of this Article Five (other than this Section 5.10) shall automatically terminate and be of no further force or effect, and the Unit Certificates shall thereafter represent only the right to receive the Pledged Securities forming a part of the Units theretofore evidenced thereby in accordance with the provisions of Section 4.2 and the Pledge Agreement. 6. REMEDIES. 6.1 UNCONDITIONAL RIGHTS OF HOLDERS. Notwithstanding any other provision in this Agreement, the Holder of any Unit shall have the right, which is absolute and unconditional, to purchase Common Stock pursuant to the Purchase Contract underlying such Unit and to receive payment of Contract Fees, if any, payable by the Company to such Holder with respect to such Purchase Contract and, in each such case, to institute suit for the enforcement of any such right, and such rights shall not be impaired without the consent of such Holder. 6.2 RESTORATION OF RIGHTS AND REMEDIES. If any Holder of Units has instituted any proceeding to enforce any right or remedy under this Agreement and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to such Holder, then and in every such case, subject to any determination in such proceeding, the Company and such Holder shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of such Holder shall continue as though no such proceeding had been instituted. 6.3 RIGHTS AND REMEDIES CUMULATIVE. Except as otherwise provided with respect to the replacement of mutilated, destroyed, lost or stolen Unit Certificates in the last paragraph of Section 3.6, no right or remedy herein conferred upon or reserved to the Holders of Units is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy. 6.4 DELAY OR OMISSION NOT WAIVER. No delay or omission of any Holder to exercise any right or remedy shall impair any such right or remedy or constitute a waiver of any such right. Every right and remedy given by this Article or by law to the Holders may be exercised from time to time, and as often as may be deemed expedient, by such Holders. -34- 6.5 UNDERTAKING FOR COSTS. All parties to this Agreement agree, and each Holder of any Unit by his acceptance of the Unit Certificate evidencing such Unit shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Agreement, or in any suit against the Unit Agent for any action taken, suffered or omitted by it as Unit Agent, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys' fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; provided that the provisions of this Section shall not apply to any suit instituted by the Company, to any suit instituted by the Unit Agent, to any suit instituted by any Holder of Units, or group of Holders, holding in the aggregate more than 10% of the Outstanding Units, or to any suit instituted by any Holder of Units for the enforcement of payments due in respect of Pledged Securities or Contract Fees on Purchase Contracts underlying such Units on or after the respective due dates therefor, or for enforcement of the right to purchase shares of Common Stock under the Purchase Contracts constituting a part of such Units. 6.6 WAIVER OF STAY OR EXTENSION LAWS. The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Agreement; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Unit Agent or the Holders, but will suffer and permit the execution of every such power as though no such law had been enacted. 7. THE UNIT AGENT. 7.1 CERTAIN DUTIES AND RESPONSIBILITIES. (a) (i) The Unit Agent undertakes to perform, with respect to the Units, such duties and only such duties as are specifically set forth in this Agreement, and no implied covenants or obligations shall be read into this Agreement against the Unit Agent; and (ii) in the absence of bad faith or negligence on its part, the Unit Agent may, with respect to the Units, conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Unit Agent and conforming to the requirements of this Agreement, but in the case of any certificates or opinions which by any provision hereof are specifically required to be furnished to the Unit Agent, the Unit Agent shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Agreement. -35- (b) No provision of this Agreement shall be construed to relieve the Unit Agent from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that (i) this Subsection shall not be construed to limit the effect of Subsection (a) of this Section; (ii) the Unit Agent shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Unit Agent was negligent in ascertaining the pertinent facts; and (iii) no provision of this Agreement shall require the Unit Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) Whether or not therein expressly so provided, every provision of this Agreement relating to the conduct or affecting the liability of or affording protection to the Unit Agent shall be subject to the provisions of this Section. 7.2 NOTICE OF DEFAULT. Within 90 days after the occurrence of any default by the Company hereunder, of which a Responsible Officer of the Unit Agent has actual knowledge, the Unit Agent shall transmit by mail to all Holders of Units, as their names and addresses appear in the Unit Registers, notice of such default hereunder, unless such default shall have been cured or waived. 7.3 CERTAIN RIGHTS OF UNIT AGENT. Subject to the provisions of Section 7.1: (a) the Unit Agent may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) any request or direction of the Company mentioned herein shall be sufficiently evidenced by an Officers' Certificate, Issuer Order or Issuer Request, and any resolution of the Board of Directors of the Company may be sufficiently evidenced by a Board Resolution; (c) whenever in the administration of this Agreement the Unit Agent shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any-action-hereunder, the Unit Agent (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers' Certificate of the Company; -36- (d) the Unit Agent may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon; (e) the Unit Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Unit Agent, in its discretion, may make reasonable further inquiry or investigation into such facts or matters related to the issuance of the Units and the execution, delivery and performance of the Purchase Contracts as it may see fit, and, if the Unit Agent shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and promises of the Company, personally or by agent or attorney; and (f) the Unit Agent may execute any of its powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Unit Agent shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder. 7.4 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF UNITS. The recitals contained herein and in the Unit Certificates shall be taken as the statements of the Company and the Unit Agent assumes no responsibility for their correctness. The Unit Agent makes no representations as to the validity or sufficiency of this Agreement or of the Units. The Unit Agent shall not be accountable for the use or application by the Company of the proceeds in respect of the QUIPS or Purchase Contracts. 7.5 MAY HOLD UNITS. Any Unit Registrar or any other agent of the Company, or the Unit Agent, in its individual or any other capacity, may become the owner or pledges of Units and may otherwise deal with the Company with the same rights it would have if it were not Unit Registrar or such other agent, or the Unit Agent. 7.6 MONEY HELD IN TRUST. Money held by the Unit Agent in trust hereunder need not be segregated from the other funds except to the extent required by law. The Unit Agent shall be under no obligation to invest or pay interest on any money received by it hereunder except as otherwise agreed with the Company. 7.7 COMPENSATION AND REIMBURSEMENT. The Company agrees: (i) to pay to the Unit Agent from time to time reasonable compensation for all services rendered by it hereunder; (ii) except as otherwise expressly provided herein, to reimburse the Unit Agent upon its request for all reasonable expenses, disbursements and advances incurred or made by the Unit Agent in accordance with any provision of this Agreement (including the reasonable compensation and the expenses and -37- disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and (iii) to indemnify the Unit Agent and any predecessor Unit Agent for, and to hold each of them harmless against, any loss, liability or expense incurred without negligence or bad faith on its part, arising out of or in connection with the acceptance or administration of its duties hereunder, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder. 7.8 CORPORATE UNIT AGENT REQUIRED; ELIGIBILITY. There shall at all times be an Unit Agent hereunder which shall be a corporation organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $50,000,000, subject to supervision or examination by Federal or State authority and having its Corporate Trust Office in the Borough of Manhattan, The City of New York, if there be such a corporation in the Borough of Manhattan, The City of New York qualified and eligible under this Article and willing to act on reasonable terms. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Unit Agent shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article. 7.9 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR. (a) No resignation or removal of the Unit Agent and no appointment of a successor Unit Agent pursuant to this Article shall become effective until the acceptance of appointment by the successor Unit Agent in accordance with the applicable requirements of Section 7.10. (b) The Unit Agent may resign at any time by giving written notice thereof to the Company 60 days prior to the effective date of such resignation. If the instrument of acceptance by a successor Unit Agent required by Section 7.10 shall not have been delivered to the Unit Agent within 30 days after the giving of such notice of resignation, the resigning Unit Agent may petition any court of competent jurisdiction for the appointment of a successor Unit Agent. (c) The Unit Agent may be removed at any time by Act of the Holders of a majority in number of the Outstanding Units delivered to the Unit Agent and the Company. (d) If at any time (i) the Unit Agent fails to comply with Section 3.10(b) of the TIA, as if the Unit Agent were an indenture trustee under an indenture qualified under the -38- TIA, after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Unit for at least six months, or (ii) the Unit Agent shall cease to be eligible under Section 7.8 and shall fail to resign after written request therefor by the Company or by any such Holder, or (iii) the Unit Agent shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Unit Agent or of its property shall be appointed or any public officer shall take charge or control of the Unit Agent or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then, in any such case, (x) the Company by a Board Resolution may remove the Unit Agent, or (y) any Holder who has been a bona fide Holder of a Unit for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Unit Agent and the appointment of a successor Unit Agent. (e) If the Unit Agent shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Unit Agent for any cause, the Company, by a Board Resolution, shall promptly appoint a successor Unit Agent and shall comply with the applicable requirements of Section 7.10. If no successor Unit Agent shall have been so appointed by the Company and accepted appointment in the manner required by Section 7.10, any Holder who has been a bona fide Holder of a Unit for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Unit Agent. (f) The Company shall give, or shall cause such successor Unit Agent to give, notice of each resignation and each removal of the Unit Agent and each appointment of a successor Unit Agent by mailing written notice of such event by first-class mail, postage prepaid, to all Holders of Units as their names and addresses appear in the Unit Registers. Each notice shall include the name of the successor Unit Agent and the address of its Corporate Trust Office. 7.10 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. (a) In case of the appointment hereunder of a successor Unit Agent, every such successor Unit Agent so appointed shall execute, acknowledge and deliver to the Company and to the retiring Unit Agent an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Unit Agent shall become effective and such successor Unit Agent, without any further act, deed or conveyance, shall become vested with all the rights, powers, agencies and duties of the retiring Unit Agent; but, on the request of the Company or the successor Unit Agent, such retiring Unit Agent shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Unit Agent all the rights, powers and trusts of the retiring Unit Agent and shall duly assign, transfer and deliver to such successor Unit Agent all property and money held by such retiring Unit Agent hereunder. -39- (b) Upon request of any such successor Unit Agent, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Unit Agent all such rights, powers and agencies referred to in paragraph (a) of this Section. (c) No successor Unit Agent shall accept its appointment unless at the time of such acceptance such successor Unit Agent shall be qualified and eligible under this Article. 7.11 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS. Any corporation into which the Unit Agent may be merged or converted or with which it may be consolidated, or any-corporation resulting from any merger, conversion or consolidation to which the Unit Agent shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Unit Agent, shall be the successor of the Unit Agent hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Unit Certificates shall have been authenticated and executed on behalf of the Holders, but not delivered, by the Unit Agent then in office, any successor by merger, conversion or consolidation to such Unit Agent may adopt such authentication and execution and deliver the Unit Certificates so authenticated and executed with the same effect as if such successor Unit Agent had itself authenticated and executed such Units. 7.12 PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS. (a) The Unit Agent shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders received by the Unit Agent in its capacity as Unit Registrar. (b) If three or more Holders (herein referred to as "applicants") apply in writing to the Unit Agent, and furnish to the Unit Agent reasonable proof that each such applicant has owned a Unit for a period of at least six months preceding the date of such application, and such application states that the applicants desire to communicate with other Holders with respect to their rights under this Agreement or under the Units and is accompanied by a copy of the form of proxy or other communication which such applicants propose to transmit, then the Unit Agent shall, within five Business Days after the receipt of such application, afford such applicants access to the information preserved at the time by the Unit Agent in accordance with Section 7.12(a). (c) Every Holder of Units, by receiving and holding the Unit Certificates evidencing the same, agrees with the Company and the Unit Agent that none of the Company, the Unit Agent nor any agent of any of them shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders in accordance with Section 7.12(b), regardless of the source from which such information was derived. 7.13 NO OBLIGATIONS OF UNIT AGENT. Except to the extent otherwise provided in this Agreement, the Unit Agent assumes no obligations and shall not be subject to any liability under this Agreement or any Purchase Contract or Call Option in respect of the obligations of the Holder of any Unit thereunder. The Company agrees, and each Holder of a Unit Certificate, by -40- his acceptance thereof, shall be deemed to have agreed, that the Agent's execution of the Unit Certificates on behalf of the Holders shall be solely as agent and attorney-in-fact for the Holders, and that the Unit Agent shall have no obligation to perform such Purchase Contracts or Call Options on behalf of the Holders, except to the extent expressly provided in Article Five hereof. 7.14 TAX COMPLIANCE. (a) The Unit Agent, on its own behalf and on behalf of the Company, will comply with all applicable certification, information reporting and withholding (including "backup" withholding) requirements imposed by applicable tax laws, regulations or administrative practice with respect to (i) any payments made with respect to the Units or (ii) the issuance, delivery, holding, transfer, redemption or exercise of rights under the Units. Such compliance shall include, without limitation, the preparation and timely filing of required returns and the timely payment of all amounts required to be withheld to the appropriate taxing authority or its designated agent. (b) The Unit Agent shall comply with any direction received from the Company with respect to the application of such requirements to particular payments or Holders or in other particular circumstances, and may for purposes of this Agreement rely on any such direction in accordance with the provisions of Section 7.1(a)(ii) hereof. (c) The Unit Agent shall maintain all appropriate records documenting compliance with such requirements, and shall make such records available, on written request, to the Company or to its authorized representative within a reasonable period of time after receipt of such request. 8. SUPPLEMENTAL AGREEMENTS. 8.1 SUPPLEMENTAL AGREEMENTS WITHOUT CONSENT OF HOLDERS. Without the consent of any Holders, the parties to any Principal Agreement, at any time and from time to time, may enter into one or more agreements supplemental hereto or thereto, in form satisfactory to such parties, for any of the following purposes: (1) to evidence the succession of another Person to any such party, and the assumption by any such successor of the covenants of such party herein or therein and under the Units; or (2) to add to the covenants of the Company for the benefit of the Holders, or to surrender any right or power herein conferred upon the Company; or (3) to evidence and provide for the acceptance of appointment hereunder by a successor Unit Agent; or (4) to evidence the succession of another Person to the rights of the Call Option Holder under the Call Options, in connection with a transfer of such rights by the Call Option Holder to such Person; or -41- (5) to make provision with respect to the rights of Holders pursuant to the requirements of Section 5.6(b); or (6) to cure any ambiguity, to correct or supplement any provisions herein or therein which may be inconsistent with any other provisions herein or therein, or to make any other provisions with respect to such matters or questions arising under such Principal Agreement, provided such action shall not adversely affect the interests of the Holders. 8.2 SUPPLEMENTAL AGREEMENTS WITH CONSENT OF HOLDERS. With the consent of the Holders of not less than a majority of the Outstanding Units (or, with respect to modifications that adversely affect only the Holders of Normal Units or only the Holders of Stripped Units, with the consent of the Holders of not less than a majority of the Outstanding Units that comprise Normal Units or Stripped Units, as the case may be), by Act of said Holders delivered to the parties to any Principal Agreement, such parties (when authorized, in the case of the Company, by a Board Resolution) may enter into an agreement or agreements supplemental to such Principal Agreement for the purpose of modifying in any manner the terms of the Units, or the provisions of such Principal Agreement or the rights of the Holders in respect of the Units; provided! however, that no such supplemental agreement shall, without the consent of the Holder of each Outstanding Unit affected thereby, (1) change any payment date; (2) change the amount or type of Pledged Securities underlying a Unit, impair the right of the Holder of any Unit to receive distributions or interest payments on the underlying Pledged Securities or otherwise adversely affect the Holder's rights in or to such Pledged Securities (including the rights of Holders of Normal Units to effect a Stripped Unit Creation); (3) reduce the Contract Fees, if any, or other amounts receivable by Holders in respect of Units or increase the Contract Fees, if any, or other amounts payable by Holders in respect of Units or change any place where, or the coin or currency in which, any Contract Fees or other amounts receivable or payable in respect of Units are payable; (4) impair the right to institute suit for the enforcement of any Purchase Contract; (5) reduce the number of shares of Common Stock to be purchased pursuant to any Purchase Contract, increase the price to purchase shares of Common Stock upon settlement of any Purchase Contract, change the Stock Purchase Date or otherwise adversely affect the Holder's rights under any Purchase Contract; or -42- (6) reduce the amount payable on exercise of any Call Option, extend the Call Option Execution Date (as defined in the Call Option Agreement) or otherwise adversely affect any Holder's rights under any Call Option; or (7) reduce the percentage of the Outstanding Units the consent of whose Holders is required for any such supplemental agreement. It shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed supplemental agreement, but it shall be sufficient if such Act shall approve the substance thereof. 8.3 EXECUTION OF SUPPLEMENTAL AGREEMENTS. In executing, or accepting the additional agencies created by, any supplemental agreement permitted by this Article or the modifications thereby of the agencies created by this Agreement, the Unit Agent shall be entitled to receive and (subject to Section 7.1) shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental agreement is authorized or permitted by this Agreement. The Unit Agent may, but shall not be obligated to, enter into any such supplemental agreement which affects the Agent's own rights, duties or immunities under this Agreement or otherwise. 8.4 EFFECT OF SUPPLEMENTAL AGREEMENTS. Upon the execution of any supplemental agreement under this Article, the relevant Principal Agreement shall be modified in accordance therewith, and such supplemental agreement shall form a part of such Principal Agreement for all purposes; and every Holder of Unit Certificates theretofore or thereafter authenticated, executed on behalf of the Holder and delivered hereunder shall be bound thereby. 8.5 REFERENCE TO SUPPLEMENTAL AGREEMENTS. Unit Certificates authenticated, executed on behalf of the Holders and delivered after the execution of any supplemental agreement pursuant to this Article may, and shall if required by the Unit Agent, bear a notation in form approved by the Unit Agent as to any matter provided for in such supplemental agreement. If the Company shall so determine, new Unit Certificates so modified as to conform, in the opinion of the Unit Agent and the Company, to any such supplemental agreement may be prepared and executed by the Company and authenticated, executed on behalf of the Holders and delivered by the Unit Agent in exchange for Outstanding Unit Certificates evidencing the same number of Normal Units or Stripped Units, as the case may be. 9. CONSOLIDATION, MERGER, SALE OR CONVEYANCE. 9.1 COVENANT NOT TO MERGE, CONSOLIDATE, SELL OR CONVEY PROPERTY EXCEPT UNDER CERTAIN CONDITIONS. The Company covenants that it will not merge or consolidate with any other Person or sell or convey all or substantially all of its assets to any Person, except that the Company may merge or consolidate with, or sell or convey all or substantially all of its assets to, any other Person, provided that (a) the Company shall be the continuing corporation, or the successor (if other than the Company) shall be a corporation organized and existing under the laws of the United States of America or a State thereof and such corporation shall assume the obligations of the Company under the Purchase Contracts and the Pledge Agreement by one or more -43- supplemental agreements in form satisfactory to the Unit Agent and, in the case of the Pledge Agreement, the Collateral Agent, executed and delivered to the Unit Agent, and, in the case of the Pledge Agreement, the Collateral Agent by such corporation, and (b) the Company or such successor corporation, as the case may be, shall not, immediately after such merger or consolidation, or such sale or conveyance, be in default in the performance of any covenant or condition under any Principal Amount or under any of the Units. 9.2 RIGHTS AND DUTIES OF SUCCESSOR CORPORATION. In case of any such consolidation, merger, sale or conveyance and upon any such assumption by the successor corporation, such successor corporation shall succeed to and be substituted for the Company with the same effect as if it had been named herein as the Company. Such successor corporation thereupon may cause to be signed, and may issue either in its own name or in the name of AirTouch Communications, Inc., any or all of the Unit Certificates evidencing Units issuable hereunder which theretofore shall not have been signed by the Company and delivered to the Unit Agent; and, upon the order of such successor corporation, instead of the Company, and subject to all the terms, conditions and limitations in this Agreement prescribed, the Unit Agent shall authenticate and execute on behalf of the Holders and deliver any Unit Certificates which previously shall have been signed and delivered by the officers of the Company to the Unit Agent for authentication and execution, and any Unit Certificate evidencing Units which such successor corporation thereafter shall cause to be signed and delivered to the Unit Agent for that purpose. All the Unit Certificates so issued shall in all respects have the same legal rank and benefit under this Agreement as the Unit Certificates theretofore or thereafter issued in accordance with the terms of this Agreement as though all of such Unit Certificates had been issued at the date of the execution hereof. In case of any such consolidation, merger, sale or conveyance such change in phraseology and form (but not in substance) may be made in the Unit Certificates evidencing Units thereafter to be issued as may be appropriate. 9.3 OPINION OF COUNSEL TO UNIT AGENT. The Unit Agent, subject to Sections 7.1 and 7.3, may receive an Opinion of Counsel as conclusive evidence that any such consolidation, merger, sale or conveyance, and any such assumption, complies with the provisions of this Article. 10. COVENANTS. 10.1 PERFORMANCE UNDER PURCHASE CONTRACTS. The Company covenants and agrees for the benefit of the Holders from time to time of the Units that it will duly and punctually perform its obligations under the Purchase Contracts in accordance with the terms of the Purchase Contracts and this Agreement. 10.2 MAINTENANCE OF OFFICE OR AGENCY. The Company will maintain in the Borough of Manhattan, The City of New York an office or agency where Unit Certificates may be presented or surrendered for acquisition of shares of Common Stock upon settlement and for transfer of Pledged Securities upon occurrence of a Termination Event, where Unit Certificates may be surrendered for registration of transfer or exchange or for effecting Stripped Unit Creations, where payment of Contract Fees, if any, payable by the Company to the Holders may be made -44- and where notices and demands to or upon the Company in respect of the Units and this Agreement may be served. The Company will give prompt written notice to the Unit Agent of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Unit Agent with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office, and the Company hereby appoints the Unit Agent as its agent to receive all such presentations, surrenders, notices and demands. The Company may also from time to time designate one or more other offices or agencies where Unit Certificates may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in the Borough of Manhattan, The City of New York for such purposes. The Company will give prompt written notice to the Unit Agent of any such designation or rescission and of any change in the location of any such other office or agency. The Company hereby designates as the place of payment for the Units the Corporate Trust Office and appoints the Unit Agent at its Corporate Trust Office as paying agent in such city. 10.3 COMPANY TO RESERVE COMMON STOCK. The Company shall at all times prior to the Stock Purchase Date reserve and keep available, free from preemptive rights, out of its authorized but unissued Common Stock the full number of shares of Common Stock issuable against tender of payment in respect of all Purchase Contracts underlying the Units. 10.4 COVENANTS AS TO COMMON STOCK. The Company covenants that all shares of Common Stock which may be issued against tender of payment in respect of the Purchase Contracts underlying the Units will, upon issuance, be newly issued (i.e., not issued out of treasury shares) and be duly authorized, validly issued, fully paid and nonassessable. 10.5 STATEMENTS OF OFFICERS OF THE COMPANY AS TO DEFAULT. The Company will deliver to the Unit Agent, within 120 days after the end of each fiscal year of the Company ending after the date hereof, an Officers' Certificate, stating whether or not to the best knowledge of the signers thereof the Company is in default in the performance and observance of any of the terms, -45- provisions and conditions hereof, and if the Company shall be in default, specifying all such defaults and the nature and status thereof of which they may have knowledge. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the day and year first above written. AIRTOUCH COMMUNICATIONS, INC. By -------------------------------------- Title ----------------------------------- _________________, as Unit Agent By -------------------------------------- Title ----------------------------------- -46- EXHIBIT A FORM OF NORMAL UNIT CERTIFICATE AIRTOUCH COMMUNICATIONS, INC. % ADJUSTABLE CONVERSION-RATE EQUITY SECURITY UNITS (STATED AMOUNT $_______ PER NORMAL UNIT) No. ____ _______ Normal Units This Unit Certificate certifies that is the registered Holder of the number of Normal Units set forth above. Each Normal Unit represents the right to purchase Common Stock under a Purchase Contract with AirTouch Communications, Inc., a Delaware corporation (the "Company"), together with ownership of the QUIPS(sm)* or other Pledged Securities pledged to secure the obligations referred to in (a) and (b) below, subject to (a) the obligations owed to the Company under such Purchase Contract, (b) for so long as any Call Options remain exercisable, the obligations owed to the Call Option Holder under a Call Option and (c) the pledge arrangements securing the foregoing obligations. Each Purchase Contract evidenced hereby is governed by a Master Unit Agreement, dated as of ____________, 199_ (the "Master Unit Agreement"), between the Company and _________________, as unit agent (herein called the "Unit Agent"). All terms used herein which are defined in the Master Unit Agreement have the meanings set forth therein. Each Call Option evidenced hereby is governed by the Call Option Agreement. The Pledge of the Pledged Securities evidenced hereby is governed by the Pledge Agreement. Reference is hereby made to the Master Unit Agreement, the Call Option Agreement and the Pledge Agreement, and any supplemental agreements thereto, for a description of the respective rights, limitations of rights, obligations, duties and immunities thereunder of the Unit Agent, the Company, the Call Option Holder, the Collateral Agent and the Holders. The summary contained herein is qualified in its entirety by the provisions of the Principal Agreements, and the Principal Agreements shall govern the rights of the parties to the extent that there is any conflict between such summary and such provisions. Each Purchase Contract evidenced hereby obligates the Holder of this Unit Certificate to purchase, and the Company to sell, on [__________, 2001] (the "Stock Purchase Date"), at a price equal to $________ (the "Stated Amount"), a number of shares of Common Stock, par value $.01 per share ("Common Stock"), of the Company equal to the Settlement Rate, unless on or prior to the Stock Purchase Date there shall have occurred a Termination Event. The "Settlement Rate" is equal to (a) if the Applicable Market Value (as defined in the Master Unit Agreement) is greater than or equal to $________ (the "Threshold Appreciation Price"), - ---------- * QUIPS is a servicemark of Goldman, Sachs & Co. A-1 _______________ of a share of Common Stock per Purchase Contract, (b) if the Applicable Market Value is less than the Threshold Appreciation Price but is greater than the Stated Amount, a fractional share of Common Stock per Purchase Contract equal to the Stated Amount divided by the Applicable Market Value (rounded to the nearest 1/10,000th of a share or, if there is no nearest 1/10,000th of a share, rounded downward to the nearest 1/10,000th of a share) and (c) if the Applicable Market Amount is less than or equal to the Stated Amount, one share of Common Stock per Purchase Contract, in each case subject to adjustment as provided in the Master Purchase Agreement. No fractional shares of Common Stock will be issued upon settlement of Purchase Contracts. The purchase price for the shares of Common Stock to be purchased pursuant to each Purchase Contract evidenced hereby, if not paid by 10:00 a.m., New York City time, on the Stock Purchase Date, shall be paid by application of payments received by the Company on the Stock Purchase Date from the Collateral Agent pursuant to the Pledge Agreement in respect of the Pledged Securities pledged to secure such Holder's obligations under such Purchase Contract. The Purchase Contracts and the obligations and rights of the Company and the Holders thereunder, including, without limitation, the rights and obligations to receive and pay accrued or deferred Contract Fees, shall immediately and automatically terminate, without the necessity of any notice or action by any Holder, the Unit Agent or the Company, if, on or prior to the Stock Purchase Date, a Termination Event shall have occurred. Upon and after the occurrence of a Termination Event, the Collateral Agent shall release the Pledged Securities from the Pledge. The Normal Units shall thereafter represent the right to receive the Pledged Securities forming a part of such Normal Units in accordance with the provisions of the Master Unit Agreement and the Pledge Agreement. The Call Options evidenced hereby entitle the Call Option Holder to acquire the QUIPS (or Junior Subordinated Debentures substituted therefor) evidenced hereby on or before [_________, 2001,] unless prior to the exercise thereof there shall have occurred a Termination Event. The Call Option Holder may exercise such Call Options only in whole together with the Call Options underlying the other Normal Units, by delivering to the Unit Agent a notice of exercise and delivering to the Collateral Agent the Aggregate Consideration Deliverable Upon Exercise of Call Options, whereupon the QUIPS or Junior Subordinated Debentures underlying the Normal Units will be released from the Pledge and the Treasury Securities constituting all or part of the Aggregate Consideration Deliverable Upon Exercise of Call Options delivered to the Collateral Agent will be substituted as the Pledged Securities underlying the Normal Units. The [COMPANY] [HOLDER] shall pay, on each ____________, ____________, and ____________, commencing ________, 199__ (each, a "Quarterly Payment Date"), in respect of each Purchase Contract evidenced hereby, a fee (the "Contract Fee") accruing on the Stated Amount of such Unit from and including the date of first issuance of any Units at a rate per annum equal to ____% (the "Contract Fee Rate") (computed on the basis of a 360- day year of twelve 30-day months and subject to deferral as described in the Master Unit Agreement), plus any additional fees accrued thereon pursuant to Section 5.3 of the Master Unit Agreement. [THE COMPANY'S OBLIGATIONS WITH RESPECT TO CONTRACT FEES SHALL BE, TO THE EXTENT PROVIDED IN THE MASTER UNIT AGREEMENT, SUBORDINATE AND A-2 SUBJECT IN RIGHT OF PAYMENT TO ALL SENIOR INDEBTEDNESS] [SUCH PAYMENT WILL BE FUNDED OUT OF PAYMENTS MADE IN RESPECT OF THE PLEDGED SECURITIES EVIDENCED HEREBY]. Payments due to the Holder in respect of the Normal Units evidenced hereby will be payable to the Person in whose name this Unit Certificate (or a Predecessor Unit Certificate) is registered at the close of business on the Record Date next preceding the relevant payment date. The transfer of any Unit Certificate will be registered and Unit Certificates may be exchanged as provided in the Master Unit Agreement. The Unit Registrar may require a Holder, among other things, to furnish appropriate endorsements and transfer documents permitted by the Master Unit Agreement. No service charge shall be required for any such registration of transfer or exchange, but the Company and the Unit Agent may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. Except as provided in the Master Unit Agreement in connection with a Stripped Unit Creation, for so long as the Purchase Contract underlying a Normal Unit remains in effect, such Normal Unit shall not be separable into its constituent parts, and the rights and obligations of the Holder of such Normal Unit in respect of the Pledged Securities and Purchase Contract constituting such Normal Unit may be transferred and exchanged only as an integrated Normal Unit. Upon registration of transfer of this Unit Certificate, the transferee shall be bound (without the necessity of any other action on the part of such transferee) by the terms of the Purchase Contracts and Call Options evidenced hereby and by the Pledge Agreement, and the transferor shall be released from such obligations. The Company covenants and agrees, and the Holder, by his acceptance hereof, likewise covenants and agrees, to be bound by the provisions of this paragraph. The Holder of this Unit Certificate, by his acceptance hereof, irrevocably authorizes the Unit Agent to enter into and perform the related Purchase Contracts and Call Options evidenced hereby on his behalf as his attorney-in-fact, agrees to be bound by the terms and provisions thereof, covenants and agrees to perform his obligations under such Purchase Contracts and Call Options, consents to the provisions of the Principal Agreements, irrevocably authorizes the Unit Agent to enter into and perform the Call Option Agreement and the Pledge Agreement on his behalf as his attorney-in-fact, and consents to and agrees to be bound by the Pledge of the Pledged Securities evidenced hereby pursuant to the Pledge Agreement. Subject to certain exceptions, the provisions of the Principal Agreements may be amended with the consent of the Holders of at least a majority of the Outstanding Units or, if the amendment affects only the Holders of the Normal Units or only the Holders of the Stripped Units, at least a majority of the Outstanding Units comprising Normal Units or Stripped Units, as the case may be. The Purchase Contracts and Call Options shall for all purposes be governed by, and construed in accordance with, the laws of the State of New York. A-3 The Company, the Unit Agent and any agent of the Company or the Unit Agent may treat the Person in whose name this Unit Certificate is registered as the owner of the Normal Units evidenced hereby for the purpose of receiving payments of distributions or interest on the Pledged Securities, receiving the rights and performing the obligations under the Purchase Contracts and for all other purposes whatsoever, whether or not any payments in respect thereof be overdue and notwithstanding any notice to the contrary, and neither the Company, the Unit Agent nor any such agent shall be affected by notice to the contrary. The Purchase Contracts shall not, prior to the settlement thereof, entitle the Holder to any of the rights of a holder of shares of Common Stock. Copies of the Principal Agreements are available for inspection at the offices of the Unit Agent. Unless the certificate of authentication hereon has been executed by the Unit Agent by manual signature, this Unit Certificate shall not be entitled to any benefit under the Principal Agreements or be valid or obligatory for any purpose. IN WITNESS WHEREOF, the Company and the Holder hereby agree to their respective obligations under the Purchase Contracts evidenced by this instrument, and the Holder hereby acknowledges that the Pledged Securities evidenced by this instrument are subject to the Pledge under the Pledge Agreement. AIRTOUCH COMMUNICATIONS, INC. By ----------------------------------------- Title -------------------------------------- HOLDER SPECIFIED ABOVE By ----------------------------------------- As Attorney-in-Fact of such Holder IN WITNESS WHEREOF, the Holder hereby agrees, for the benefit of the Call Option Holder, to its obligations under any Call Options evidenced by this instrument, and the Holder A-4 hereby acknowledges, for the benefit of the Call Option Holder, that the Pledged Securities evidenced by this instrument are subject to the Pledge under the Pledge Agreement. HOLDER SPECIFIED ABOVE By ------------------------------------------ As Attorney-in-Fact of such Holder Dated: Agent's Certificate of Authentication This is one of the Unit Certificates referred to in the within mentioned Master Unit Agreement as Unit Agent. By ------------------------------------------ By ------------------------------------------ A-5 SETTLEMENT INSTRUCTIONS The undersigned Holder directs that a certificate for shares of Common Stock deliverable upon settlement on or after the Stock Purchase Date of the Purchase Contracts underlying the number of Normal Units evidenced by this Unit Certificate be registered in the name of, and delivered, together with a check in payment for any fractional share, to the undersigned at the address indicated below unless a different name and address have been indicated below. If shares are to be registered in the name of a Person other than the under signed, the undersigned will pay any transfer tax payable incident thereto. Dated:__________ _________________________________ Signature If shares are to be registered in the REGISTERED HOLDER name of and delivered to a Person other than the Holder, please print Please print name and address of such Person's name and address: Registered Holder: Name Name Address Address Social Unit or other Taxpayer Identification Number, if any A-6 REQUEST TO CREATE STRIPPED UNITS The undersigned Holder directs that (a) the Pledged Securities underlying the number of Normal Units indicated below (which number does not exceed the number of Normal Units evidenced by this Unit Certificate) be released from the Pledge and registered in the name of, and delivered, to the undersigned at the address indicated below unless a different name and address have been indicated below and (b) a corresponding number of Stripped Units be registered in the name of, and delivered, to the undersigned at the address indicated below unless a difference name and address have been indicated below. If the released Pledged Securities or the Stripped Units are to be registered in the name of a Person other than the undersigned, the undersigned will pay any transfer tax payable incident thereto. The undersigned confirms that the requisite Treasury Securities, any required cash and the instrument from the Call Option Holder have been delivered to the Collateral Agent. Dated: __________________ ___________________________________ Signature If released Pledged Securities are to be REGISTERED HOLDER registered in-the name of and delivered to a Person other than the Holder, Please print name and address of please print such Person's name and address: Registered Holder: Name Name Address Address Social Unit or other Taxpayer Identification Number, if any If Stripped Units are to be registered in the name of and delivered to a Person other than the Holder, please print such Person's name and address. Name Address Social Unit or other Taxpayer Identification Number, if any A-7 EXHIBIT B --------- FORM OF STRIPPED UNIT CERTIFICATE AirTouch Communications, Inc. ___% ADJUSTABLE CONVERSION-RATE EQUITY SECURITY UNITS (STATED AMOUNT $_________ PER UNIT) No. _____ ______ Stripped Units This Unit Certificate certifies that is the registered Holder of the number of Stripped Units set forth above. Each Stripped Unit represents the right to purchase Common Stock under a Purchase Contract with AirTouch Communications, Inc., a Delaware corporation (the "Company"), together with ownership of the Treasury Securities pledged to secure the obligations referred to in (a) below, subject to (a) the obligations owed to the Company under such Purchase Contract and (b) the pledge arrangements securing the foregoing obligations. Each Purchase Contract evidenced hereby is governed by a Master Unit Agreement, dated as of __________, 199_ (the "Master Unit Agreement"), between the Company and _________________, as unit agent (herein called the "Unit Agent"). All terms used herein which are defined in the Master Unit Agreement have the meanings set forth therein. The Pledge of the Pledged Securities evidenced hereby is governed by the Pledge Agreement. Reference is hereby made to the Master Unit Agreement and the Pledge Agreement, and any supplemental agreements thereto, for a description of the respective rights, limitations of rights, obligations, duties and immunities thereunder of the Unit Agent, the Company, the Collateral Agent and the Holders. The summary contained herein is qualified in its entirety by the provisions of the Principal Agreements, and the Principal Agreements shall govern the rights of the parties to the extent that there is any conflict between such summary and such provisions. Each Purchase Contract evidenced hereby obligates the Holder of this Unit Certificate to purchase, and the Company to sell, on [___________, 2001] (the "Stock Purchase Date"), at a price equal to $ (the "Stated Amount"), a number of shares of Common Stock, par value $.01 per share ("Common Stock"), of the Company equal to the Settlement Rate, unless on or prior to the Stock Purchase Date there shall have occurred a Termination Event. The "Settlement Rate" is equal to (a) if the Applicable Market Value (as defined in the Master Unit Agreement) is greater than or equal to $_______ (the "Threshold Appreciation Price"), of a share of Common Stock per Purchase Contract, (b) if the Applicable Market Value is less than the Threshold Appreciation Price but is greater than the Stated Amount, a fractional share of Common Stock per Purchase Contract equal to the Stated Amount divided by the Applicable Market Value (rounded to the nearest 1/10,000th of a share or, if there is no nearest 1/10,000th of a share, rounded downward to the nearest 1/10,000th of a share) and (c) if the Applicable Market Amount is less than or equal to the Stated Amount, one share of Common Stock per Purchase Contract, in each case subject to adjustment as provided in the Master Purchase Agreement. No fractional B-1 shares of Common Stock will be issued upon settlement of Purchase Contracts. The purchase price for the shares of Common Stock to be purchased pursuant to each Purchase Contract evidenced hereby, if not paid by 10:00 a.m., New York City time, on the Stock Purchase Date, shall be paid by application of payments received by the Company on the Stock Purchase Date from the Collateral Agent pursuant to the Pledge Agreement in respect of the Pledged Securities pledged to secure such Holder's obligations under such Purchase Contract. The Purchase Contracts and the obligations and rights of the Company and the Holders thereunder, including, without limitation, the rights and obligations to receive and pay accrued or deferred Contract Fees, shall immediately and automatically terminate, without the necessity of any notice or action by any Holder, the Unit Agent or the Company, if, on or prior to the Stock Purchase Date, a Termination Event shall have occurred. Upon and after the occurrence of a Termination Event, the Collateral Agent shall release the Pledged Securities from the Pledge. The Stripped Units shall thereafter represent the right to receive the Pledged Securities forming a part of such Stripped Units in accordance with the provisions of the Master Unit Agreement and the Pledge Agreement. The [COMPANY] [HOLDER] shall pay, on each ________, ________, and ________, commencing ________, 199__ (each, a "Quarterly Payment Date"), in respect of each Purchase Contract evidenced hereby, a fee (the "Contract Fee") accruing on the Stated Amount of such Unit from and including the date of first issuance of any Units at a rate per annum equal to _____% (the "Contract Fee Rate") (computed on the basis of a 360- day year of twelve 30-day months and subject to deferral as described in the Master Unit Agreement), plus any additional fees accrued thereon pursuant to Section 5.3 of the Master Unit Agreement. [THE COMPANY'S OBLIGATIONS WITH RESPECT TO CONTRACT FEES SHALL BE, TO THE EXTENT PROVIDED IN THE MASTER UNIT AGREEMENT, SUBORDINATE AND SUBJECT IN RIGHT OF PAYMENT TO ALL SENIOR INDEBTEDNESS] [SUCH PAYMENT WILL BE FUNDED OUT OF PAYMENTS MADE IN RESPECT OF THE PLEDGED SECURITIES EVIDENCED HEREBY]. Payments due to the Holder in respect of the Stripped Units evidenced hereby will be payable to the Person in whose name this Unit Certificate (or a Predecessor Unit Certificate) is registered at the close of business on the Record Date next preceding the relevant payment date. The transfer of any Unit Certificate will be registered and Unit Certificates may be exchanged as provided in the Master Unit Agreement. The Unit Registrar may require a Holder, among other things, to furnish appropriate endorsements and transfer documents permitted by the Master Unit Agreement. No service charge shall be required for any such registration of transfer or exchange, but the Company and the Unit Agent may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. For so long as the Purchase Contract underlying a Stripped Unit remains in effect, such Stripped Unit shall not be separable into its constituent parts, and the rights and obligations of the Holder of such Stripped Unit in respect of the Pledged Securities and Purchase Contract constituting such Stripped Unit may be transferred and exchanged only as an integrated Stripped Unit. B-2 Upon registration of transfer of this Unit Certificate, the transferee shall be bound (without the necessity of any other action on the part of such transferee) by the terms of the Purchase Contracts evidenced hereby and by the Pledge Agreement, and the transferor shall be released from such obligations. The Company covenants and agrees, and the Holder, by his acceptance hereof, likewise covenants and agrees, to be bound by the provisions of this paragraph. The Holder of this Unit Certificate, by his acceptance hereof, irrevocably authorizes the Unit Agent to enter into and perform the related Purchase Contracts evidenced hereby on his behalf as his attorney-in-fact, agrees to be bound by the terms and provisions thereof, covenants and agrees to perform his obligations under such Purchase Contracts, consents to the provisions of the Principal Agreements, irrevocably authorizes the Unit Agent to enter into and perform the Pledge Agreement on his behalf as his attorney-in-fact, and consents to and agrees to be bound by the Pledge of the Pledged Securities evidenced hereby pursuant to the Pledge Agreement. Subject to certain exceptions, the provisions of the Principal Agreements may be amended with the consent of the Holders of at least a majority of the Outstanding Units or, if the amendment affects only the Holders of the Normal Units or only the Holders of the Stripped Units, at least a majority of the Outstanding Units comprising Normal Units or Stripped Units, as the case may be. The Purchase Contracts shall for all purposes be governed by, and construed in accordance with, the laws of the State of New York. The Company, the Unit Agent and any agent of the Company or the Unit Agent may treat the Person in whose name this Unit Certificate is registered as the owner of the Stripped Units evidenced hereby for the purpose of receiving payments of distributions or interest on the Pledged Securities, receiving the rights and performing the obligations under the Purchase Contracts and for all other purposes whatsoever, whether or not any payments in respect thereof be overdue and notwithstanding any notice to the contrary, and neither the Company, the Unit Agent nor any such agent shall be affected by notice to the contrary. The Purchase Contracts shall not, prior to the settlement thereof, entitle the Holder to any of the rights of a holder of shares of Common Stock. Copies of the Principal Agreements are available for inspection at the offices of the Unit Agent. Unless the certificate of authentication hereon has been executed by the Unit Agent by manual signature, this Unit Certificate shall not be entitled to any benefit under the Principal Agreements or be valid or obligatory for any purpose. IN WITNESS WHEREOF, the Company and the Holder hereby agree to their respective obligations under the Purchase Contracts evidenced by this instrument, and the Holder hereby B-3 acknowledges that the Pledged Securities evidenced by this instrument are subject to the Pledge under the Pledge Agreement. AIRTOUCH COMMUNICATIONS, INC. By ------------------------------------------- Title ---------------------------------------- HOLDER SPECIFIED ABOVE By ------------------------------------------- as Attorney-in-Fact of such Holder Dated: Agent's Certificate of Authentication This is one of the Unit Certificates referred to in the within mentioned Master Unit Agreement as Unit Agent By By B-4 SETTLEMENT INSTRUCTIONS The undersigned Holder directs that a certificate for shares of Common Stock deliverable upon settlement on or after the Stock Purchase Date of the Purchase Contracts underlying the number of Stripped Units evidenced by this Unit Certificate be registered in the name of, and delivered, together with a check in payment for any fractional share, to the undersigned at the address indicated below unless a different name and address have been indicated below. If shares are to be registered in the name of a Person other than the under signed, the undersigned will pay any transfer tax payable incident thereto. Dated ______________ ________________________________ Signature If shares are to be registered in the REGISTERED HOLDER name of and delivered to a Person other than the Holder, please print Please print name and address of such Person's name and address: Registered Holder: Name Name Address Address Social Unit or other Taxpayer Identification Number, if any B-5 EX-4.29 5 PLEDGE AGREEMENT Exhibit 4.29 ================================================================================ AIRTOUCH COMMUNICATIONS, INC. ---------------, as Call Option Holder ---------------- as Collateral Agent AND ---------------, as Unit Agent and as Attorney-In-Fact ---------------- PLEDGE AGREEMENT ---------------- Dated as of __________, 199__ ================================================================================ PLEDGE AGREEMENT THIS PLEDGE AGREEMENT, dated as of __________, 199__, is made among AIRTOUCH COMMUNICATIONS, INC., a Delaware corporation (the "Company," as such term is more fully defined in the Master Unit Agreement referred to below), _______________, as Call Option Holder, _______________, as Collateral Agent, and _______________, as Unit Agent and as attorney-in-fact of the Holders from time to time of the Units. RECITALS: A. The Company and the Unit Agent are parties to the Master Unit Agreement, dated as of the date hereof (as the same may be supplemented or amended from time to time in accordance with the terms thereof, the "Master Unit Agreement"). The Master Unit Agreement contemplates that the QUIPS(sm)*, Junior Subordinated Debentures and Treasury Securities that from time to time underlie the Units be pledged to the Collateral Agent to secure the obligations of the Holders of Units under the Purchase Contracts and Call Options that underlie such Units. B. Pursuant to the terms of the Principal Agreements and the Unit Certificates, the Holders from time to time of the Units irrevocably authorize the Unit Agent, as attorney-in-fact of such Holders, to execute and deliver this Agreement on behalf of such Holders and to grant the pledge provided hereby of the Pledged Securities underlying such Units as provided herein and subject to the terms hereof. NOW, THEREFORE, the Company, the Call Option Holder, the Collateral Agent and the Unit Agent, on its own behalf and as attorney-in-fact of the Holders from time to time of the Units, agree as follows: 1. DEFINITIONS. For all purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires: (a) capitalized terms used herein and not defined are used herein as defined in the Master Unit Agreement; and (b) the words "herein," "hereof" and "hereunder" and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section or other subdivision. "Aggregate Consideration Deliverable on Exercise of the Call Options" has the meaning specified in the Call Option Agreement. - ------------- * QUIPS is a servicemark of _______________ -1- "Agreement" means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more agreements supplemental hereto entered into pursuant to the applicable provisions hereof. "Applicable Treasury Regulations" means Subpart O-Book-Entry Procedure of Title 31 of the Code of Federal Regulations (31 CFR section 306.115 et seq.) and any other regulations of the United States Treasury Department from time to time applicable to the transfer or pledge of book-entry Treasury Securities. 2. THE PLEDGE. The Holders from time to time of the Units acting through the Unit Agent, as their attorney-in-fact, hereby pledge to the Collateral Agent (for the benefit of the Company and the Call Option Holder as their interests may appear), and grant to the Collateral Agent, the Company and the Call Option Holder (as their interests may appear) a security interest in all of the right, title and interest of such Holders in and to, the Pledged Securities underlying such Units (and proceeds therefrom), as collateral security to ensure the performance when due by such Holders of their respective obligations under the Purchase Contracts and Call Options underlying such Units. Concurrently with the execution of this Agreement, the initial Holders of the first 1,500,000 Normal Units issued under the Master Unit Agreement, the Unit Agent and the Collateral Agent are causing 1,500,000 QUIPS to be delivered to, and registered in the name of, the Collateral Agent, and such QUIPS will thereupon constitute Pledged Securities forming a part of such Normal Units. As used in this Section 2, the term "delivery" shall have the meaning ascribed to it in the Uniform Commercial Code of the State of New York. In the event that any or all of the additional 225,000 Normal Units that may be issued as a result of an exercise of the overallotment option of the underwriters under the Underwriting Agreement are issued pursuant to the Master Unit Agreement at or after the execution of this Agreement, the initial Holders of such Normal Units, the Unit Agent and the Collateral Agent shall cause a number of QUIPS equal to the number of such Normal Units to be delivered to, and registered in the name of, the Collateral Agent, and such QUIPS will thereupon constitute Pledged Securities forming a part of such Normal Units. In addition, the execution hereof by the Unit Agent and the Collateral Agent shall constitute an acknowledgment by the Collateral Agent (as securities intermediary or otherwise) of the Pledge and of its holding of such QUIPS or other Pledged Securities substituted therefor in accordance with the provisions hereof subject to the Pledge and of its crediting such QUIPS or other Pledged Securities to a separate account for purposes of perfecting the Pledge under applicable law, including, to the extent applicable, the Uniform Commercial Code as adopted and in effect in any applicable jurisdiction and the Applicable Treasury Regulations. Subject to the Pledge, the Holders from time to time of the Units shall have full beneficial ownership of the Pledged Securities underlying such Units, and shall be entitled (directly or through the Collateral Agent) to all of the rights provided by such Pledged Securities, and the Company and the Call Option Holder shall have no rights with respect to such Pledged Securities other than their respective security interests therein. 3. PAYMENTS IN RESPECT OF THE PLEDGED SECURITIES. Any payment received by the Collateral Agent in respect of the Pledged Securities underlying any Normal Units or Stripped Units shall be paid by the Collateral Agent, by wire transfer in same day funds no later than 1:00 p.m., New York City time, on the date of receipt (or, if such payment is received by the -2- Collateral Agent on a day that is not a Business Day or after noon, New York City time, on a Business Day, then such payment shall be made by the Collateral Agent no later than 10:00 a.m., New York City time, on the next succeeding Business Day), as follows: (a) in the case of payments not scheduled to fall on the Stock Purchase Date, (i) first, to the Company, to the account designated by it for such purpose, in an amount equal to the Contract Fees, if any, then payable to the Company in respect of such Units, and (ii) second, to the extent of any amount remaining after the payment (if any) referred to in clause (i) above, to the Unit Agent, to the account designated by it for payments in respect of Normal Units or the account designated by it for payments in respect of Stripped Units, as the case may be; and (b) in the case of payments scheduled to fall on the Stock Purchase Date, (i) with respect to payments received in respect of Units which are Paid Units (as specified in the notice from the Unit Agent referred to in Section 4), (x) first, to the Company, to the account designated by it for such purpose, in an amount equal to the unpaid Contract Fees, if any, payable to the Company in respect of such Paid Units, and (y) second, to the extent of any amount remaining after the payment (if any) referred to in clause (x) above, to the Unit Agent, to the account designated by it for payments in respect of Paid Units which are Normal Units or the account designated by it for payments in respect of Paid Units which are Stripped Units, as the case may be; and (ii) with respect to payments received in respect of Units which are Unpaid Units (as specified in the notice from the Unit Agent referred to in Section 4), (x) first, to the Company, to the account designated by it for such purpose, in an amount equal to the unpaid Contract Fees, if any, payable to the Company in respect of such Unpaid Units, and (y) second, to the extent of any amount remaining after the payment (if any) referred to in (x) above, to the Unit Agent, to the account designated by it for payments in respect of Unpaid Units which are Normal Units; provided, however, that if the Company disputes the notice from the Unit Agent referred to in Section 4 and notifies the Collateral Agent, prior to noon, New York City time, on the Stock Purchase Date, that the number of Paid Units or the number of Unpaid Units (or both) is different than that indicated in such notice, the foregoing payments with respect to any Paid Units or Unpaid Units subject to dispute shall not be paid until such dispute is resolved. All payments received by the Unit Agent as provided herein shall be applied by the Unit Agent pursuant to the provisions of the Master Unit Agreement. 4. NOTICE WITH RESPECT TO NUMBERS OF PAID UNITS AND UNPAID UNITS; EXERCISE OF JUNIOR SUBORDINATED DEBENTURE PUT OPTIONS WITH RESPECT TO UNPAID UNITS. By 11:00 a.m., New York City time, on the Stock Purchase Date, the Unit Agent shall, as provided in the Master Unit Agreement, notify the Company and the Collateral Agent as to the number of Normal Units and the number of Stripped Units, respectively, which are Paid Units and the number of Normal Units and the number of Stripped Units, respectively, which are Unpaid Units. Promptly after receiving such notification, (a) if QUIPS underlie the Unpaid Units of any Holder, the Collateral Agent, on behalf of such Holder, shall exercise such Holder's right under the Declaration to require the Trust to distribute Junior Subordinated Debentures having an aggregate principal amount equal to the aggregate liquidation amount of such QUIPS, in exchange for such QUIPS, and, upon receiving such Junior Subordinated Debentures, shall thereupon, as Put Agent, exercise the Junior -3- Subordinated Debenture Put Option with respect thereto and (b) if Junior Subordinated Debentures underlie such Unpaid Units, the Collateral Agent, on behalf of such Holder, shall, as Put Agent, exercise the Junior Subordinated Debenture Put Option with respect thereto. The payment received by the Collateral Agent from the exercise of any Junior Subordinated Debenture Put Option shall then be applied by the Collateral Agent in accordance with Section 3(b). 5. RELEASE AND SUBSTITUTION OF PLEDGED SECURITIES. (a) Upon notice to the Collateral Agent by the Company or the Unit Agent that there has occurred a Termination Event, the Collateral Agent shall release all Pledged Securities from the Pledge and shall transfer such Pledged Securities, free and clear of any lien, pledge or security interest created hereby, to the Unit Agent for delivery by the Unit Agent pursuant to the provisions of the Master Unit Agreement. (b) Upon notice to the Collateral Agent by the Call Option Holder that the Call Option Holder is exercising the Call Options in accordance with the terms of the Call Option Agreement with respect to the QUIPS or Junior Subordinated Debentures underlying the Normal Units, provided that the Collateral Agent receives the requisite Aggregate Consideration Deliverable on Exercise of the Call Options on the Call Settlement Date specified in such notice, the Collateral Agent shall transfer such QUIPS or Junior Subordinated Debentures, free and clear of any lien, pledge or security interest created hereby, to the Call Option Holder or its designee as specified in such notice, whereupon (i) the Treasury Securities constituting all or a part of the Aggregate Consideration Deliverable Upon Exercise of the Call Options so received by the Collateral Agent shall be subject to the Pledge with respect to the Normal Units and (ii) the Pledge shall cease to constitute a security interest for the benefit of the Call Option Holder. (c) In connection with a Stripped Unit Creation, upon request by the Unit Agent to the Collateral Agent to release the then Pledged Securities underlying the number of Normal Units indicated in such request, provided that the Collateral Agent has received (i) the Treasury Securities and cash required by Section 309(a)(i) of the Master Unit Agreement for a Stripped Unit Creation relating to such Normal Units and (ii) if the Call Options underlying such Normal Units remain exercisable on the date of receipt of such instruction, an instrument from the Call Option Holder releasing its security interest in the Pledged Securities underlying such Normal Units and agreeing that such Call Options no longer underlie such Normal Units (or the Stripped Units they become), the Collateral Agent shall release such Pledged Securities, free and clear of any lien, pledge or security interest created hereby, to the Unit Agent for delivery by the Unit Agent pursuant to the provisions of the Master Unit Agreement, whereupon the Treasury Securities so received by the Collateral Agent shall be subject to the Pledge and constitute the Pledged Securities underlying the Stripped Units so created. (d) In connection with the delivery to the Collateral Agent of Treasury Securities pursuant to Section 5(b) or (c), such delivery shall be by Federal Reserve Bank-Wire to the account of the Collateral Agent designated by it for such purpose, and the Collateral Agent and the Call Option Holder or transferring Holder of Normal Units, as the case may be, shall take -4- appropriate action (i) so that the applicable Federal Reserve Bank through which such Treasury Securities have been purchased will reflect such transfer and the Pledge of such Treasury Securities in accordance with Applicable Treasury Regulations and (ii) as may be required to perfect the Pledge under Applicable Treasury Regulations. (e) In the event the Trust is dissolved while any QUIPS are Pledged Securities underlying Normal Units, the Junior Subordinated Debentures issued upon dissolution thereof shall be delivered to the Collateral Agent in exchange for such QUIPS, whereupon such QUIPS shall cease to constitute Pledged Securities and the Junior Subordinated Debentures so received by the Collateral Agent shall be subject to the Pledge and constitute the Pledged Securities underlying such Normal Units. (f) On the Stock Purchase Date, the Collateral Agent shall release the QUIPS or Junior Subordinated Debentures underlying Units which are Paid Units (as specified in the notice from the Unit Agent referred to in Section 4), free and clear of any lien, pledge or security interest created hereby, to the Unit Agent for delivery pursuant to the provisions of the Master Unit Agreement; provided, however, that if the Company disputes the notice from the Unit Agent referred to in Section 4 and notifies the Collateral Agent, prior to noon, New York City time, on the Stock Purchase Date, that the number of Paid Units is different from that indicated in such notice, the foregoing release with respect to any Paid Units subject to dispute shall not be made until such dispute is resolved. 6. RIGHTS AND REMEDIES. (a) The Collateral Agent shall have all of the rights and remedies with respect to the Pledged Securities of a secured party under the Uniform Commercial Code as in effect in the State of New York (the "Code") (whether or not said Code is in effect in the jurisdiction where the rights and remedies are asserted) and, with respect to Pledged Securities which are Treasury Securities, the Applicable Treasury Regulations, and such additional rights and remedies to which a secured party is entitled under the laws in effect in any jurisdiction where any rights and remedies hereunder may be asserted. (b) Without limiting any rights or powers otherwise granted by this Agreement to the Collateral Agent, in the event the Collateral Agent is unable to make payments due to the Company pursuant to the Purchase Contracts underlying any Units, the Collateral Agent shall have and may exercise, with reference to the Pledged Securities underlying such Units and the obligations of the Holders of such Units, any and all of the rights and remedies available to a secured party under the Code and the Applicable Treasury Regulations after default by a debtor, and as otherwise granted herein or under any other law. (c) Without limiting any rights or powers otherwise granted by this Agreement to the Collateral Agent, the Collateral Agent is hereby irrevocably authorized to receive and collect all payments of principal of or distributions or interest on the Pledged Securities, in each case subject to the provisions hereof. -5- (d) The Unit Agent, the Call Option Holder and each Holder of Units agree that, from time to time, upon the written request of the Collateral Agent, the Unit Agent, the Call Option Holder or such Holder of Units shall execute and deliver such further documents and do such other acts and things as the Collateral Agent may reasonably request in order to maintain the Pledge, and the perfection and priority thereof, and to confirm the rights of the Collateral Agent hereunder. 7. THE COLLATERAL AGENT. The Collateral Agent, the Company and the Call Option Holder hereby agree among themselves as follows (it being understood and agreed that neither the Unit Agent nor any Holder of Units shall have any rights under this Section 7): (a) Appointment, Powers and Immunities. The Collateral Agent shall act hereunder as agent for the Company and the Call Option Holder, with such powers as are specifically vested in the Collateral Agent by the terms of this Agreement, together with such other powers as are reasonably incidental thereto. The Collateral Agent: (i) shall have no duties or responsibilities except those expressly set forth in this Agreement and no implied covenants or obligations shall be inferred from this Agreement against the Collateral Agent, nor shall the Collateral Agent be bound by the provisions of any agreement by any party hereto beyond the specific terms hereof; (ii) shall not be responsible to the Company or the Call Option Holder for any recitals contained in this Agreement, or in any certificate or other document referred to or provided for in, or received by it under, this Agreement, the Units, the Master Unit Agreement, or the Call Option Agreement or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement (other than as against the Collateral Agent), the Units, the Master Unit Agreement or the Call Option Agreement or any other document referred to or provided for herein or therein or for any failure by the Company, the Call Option Holder, or any other Person (except the Collateral Agent) to perform any of its obligations hereunder or thereunder; (iii) shall not be required to initiate or conduct any litigation or collection proceedings hereunder (except pursuant to directions furnished under Section 7(b) hereof); (iv) shall not be responsible for any action taken or omitted to be taken by it hereunder or under any other document or instrument referred to or provided for herein or in connection herewith or therewith, except for its own negligence; and (v) shall not be required to advise any party as to selling or retaining, or taking or refraining from taking any action with respect to, any Units or any property deposited hereunder. Subject to the foregoing, during the term of this Agreement the Collateral Agent shall take all reasonable action in connection with the safekeeping and preservation of the Pledged Securities hereunder. No provision of this Agreement shall require the Collateral Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder. In no event shall the Collateral Agent be liable for any amount in excess of the value of the Pledged Securities. (b) INSTRUCTIONS OF THE COMPANY. The Company (or, with respect to matters relating to the Call Options, the Call Option Holder) shall have the right, by one or more instruments in writing executed and delivered to the Collateral Agent, to direct the time, method and place of conducting any proceeding for any right or remedy available to the Collateral Agent, or of exercising any power conferred on the Collateral Agent, or to direct the taking or refraining from -6- taking of any action authorized by this Agreement; provided, however, that (i) no Company direction shall in any way adversely affect the rights of the Call Option Holder hereunder or under the Call Options and no Call Option Holder direction shall in any way adversely affect the rights of the Company hereunder or under the Purchase Contracts, (ii) such direction shall not conflict with the provisions of any law or of this Agreement and (iii) the Collateral Agent shall be adequately indemnified as provided herein. Nothing in this Section 7(b) shall impair the right of the Collateral Agent in its discretion to take any action or omit to take any action which it deems proper and which is not inconsistent with such direction. (c) RELIANCE BY COLLATERAL AGENT. The Collateral Agent shall be entitled to rely upon any certification, order, judgment, opinion, notice or other communication (including, without limitation, any thereof by telephone, telecopy, telex, telegram or cable) believed by it to be genuine and correct and to have been signed or sent by or on behalf of the proper Person or Persons (without being required to determine the correctness of any fact stated therein), and upon advice and statements of legal counsel and other experts selected by the Collateral Agent. As to any matters not expressly provided for by this Agreement, the Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, hereunder in accordance with instructions given by the Company or the Call Option Holder, as the case may be, in accordance with this Agreement. (d) RIGHTS IN OTHER CAPACITIES. The Collateral Agent and its affiliates may (without having to account therefor to the Company or the Call Option Holder) accept deposits from, lend money to, make investments in and generally engage in any kind of banking, trust or other business with the Unit Agent and any Holder of Units as if it were not acting as the Collateral Agent, and the Collateral Agent and its affiliates may accept fees and other consideration from the Unit Agent and any Holder of Units without having to account for the same to the Company or the Call Option Holder, provided that the Collateral Agent covenants and agrees with the Company and the Call Option Holder that the Collateral Agent shall not accept, receive or permit there to be created in its favor any security interest, lien or other encumbrance of any kind in or upon the Pledged Securities. (e) NON-RELIANCE ON COLLATERAL AGENT. The Collateral Agent shall not be required to keep itself informed as to the performance or observance by the Unit Agent or any Holder of Units of this Agreement, the Master Unit Agreement, the Call Option Agreement, the Units or any other document referred to or provided for herein or therein or to inspect the properties or books of the Unit Agent or any Holder of Units. The Collateral Agent shall not have any duty or responsibility to provide the Company or the Call Option Holder with any credit or other information concerning the affairs, financial condition or business of the Unit Agent or any Holder of Units that may come into the possession of the Collateral Agent or any of its affiliates. (f) COMPENSATION AND INDEMNITY. The Company agrees: (i) to pay the Collateral Agent from time to time reasonable compensation for all services rendered by it hereunder and (ii) to indemnify the Collateral Agent for, and to hold it harmless against, any loss, liability or expense incurred without negligence or bad faith on its part, arising out of or in connection with the acceptance or administration of its powers and duties under this Agreement, including the costs -7- and expenses of defending itself against any claim or liability in connection with the exercise or performance of such powers and duties. (g) FAILURE TO ACT. In the event of any ambiguity in the provisions of this Agreement or any dispute between or conflicting claims by or among the undersigned and/or any other person or entity with respect to any funds or property deposited hereunder, the Collateral Agent shall be entitled, at its sole option, to refuse to comply with any and all claims, demands or instructions with respect to such property or funds so long as such dispute or conflict shall continue, and the Collateral Agent shall not be or become liable in any way to any of the undersigned for its failure or refusal to comply with such conflicting claims, demands or instructions. The Collateral Agent shall be entitled to refuse to act until either (i) such conflicting or adverse claims or demands shall have been finally determined by a court of competent jurisdiction or settled by agreement between the conflicting parties as evidenced in a writing satisfactory to the Collateral Agent or (ii) the Collateral Agent shall have received security or an indemnity satisfactory to the Collateral Agent sufficient to save the Collateral Agent harmless from and against any and all loss, liability or expense which the Collateral Agent may incur by reason of its acting. The Collateral Agent may in addition elect to commence an interpleaded action or seek other judicial relief or orders as the Collateral Agent may deem necessary. Notwithstanding anything contained herein to the contrary, the Collateral Agent shall not be required to take any action that is in its opinion contrary to law or to the terms of this Agreement, or which would in its opinion subject it or any of its officers, employees or directors to liability. (h) RESIGNATION OF COLLATERAL AGENT. Subject to the appointment and acceptance of a successor Collateral Agent as provided below, (i) the Collateral Agent may resign at any time by giving notice thereof to the Company, the Unit Agent and, if the Call Options are exercisable or have been exercised but not settled, the Call Option Holder, (ii) the Collateral Agent may be removed at any time by the Company (provided, that, if the Call Options are exercisable or have been exercised but not settled, the Call Option Holder shall have consented to such removal), and (iii) if the Collateral Agent fails to perform any of its material obligations hereunder in any material respect for a period of not less than twenty (20) days after receiving notice of such failure by the Unit Agent and such failure shall be continuing, the Collateral Agent may be removed by the Unit Agent. The Unit Agent shall promptly notify the Company and, if the Call Options are exercisable or have been exercised but not settled, the Call Option Holder of any removal of the Collateral Agent pursuant to clause (iii) of the immediately preceding sentence. Upon any such resignation or removal, the Company and, if the Call Options are exercisable or have been exercised but not settled, the Call Option Holder shall have the right to appoint a successor Collateral Agent. If no successor Collateral Agent shall have been so appointed and shall have accepted such appointment within thirty (30) days after the retiring Collateral Agent's giving of notice of resignation or such removal, then the retiring Collateral Agent may petition any court of competent jurisdiction for the appointment of a successor Collateral Agent. The Collateral Agent shall be a bank which has an office in New York, New York with a combined capital and surplus of at least 050,000,000. Upon the acceptance of any appointment as Collateral Agent hereunder by a successor Collateral Agent, such successor Collateral Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the -8- retiring Collateral Agent, and the retiring Collateral Agent shall take all appropriate action to transfer any money and property held by it hereunder (including the Pledged Securities) to such successor Collateral Agent. The retiring Collateral Agent shall, upon such succession, be discharged from its duties and obligations as Collateral Agent hereunder. After any retiring Collateral Agent's resignation hereunder as Collateral Agent, the provisions of this Section 6 shall continue in effect for its benefit in respect of an} actions taken or omitted to be taken by it while it was acting as the Collateral Agent. (i) RIGHT TO APPOINT AGENT OR ADVISOR. The Collateral Agent shall have the right to appoint agents or advisors in connection with any of its duties hereunder, and the Collateral Agent shall not be liable for any action taken or omitted by such agents or advisors selected in good faith. The provisions of this Section 7 shall survive termination of this Agreement and the resignation or removal of the Collateral Agent. 8. MISCELLANEOUS. (a) AMENDMENTS. This Agreement may be amended in the manner set forth in Section 8.1 of the Master Unit Agreement. In executing any amendment permitted by this Section, the Collateral Agent shall be entitled to receive and (subject to Section 8(a) hereof) shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such amendment is authorized or permitted by this Agreement. (b) NO WAIVER. No failure on the part of the Collateral Agent or any of its agents to exercise, and no course of dealing with respect to, and no delay in exercising, any right, power or remedy hereunder shall operate as a waiver thereof; nor shall any single or partial exercise by the Collateral Agent or any of its agents of any right, power or remedy hereunder preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies herein are cumulative and are not exclusive of any remedies provided by law. (c) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The Company, the Call Option Holder, the Collateral Agent and the Holders from time to time of the Units, acting through the Unit Agent as their attorney-in-fact, hereby submit to the nonexclusive jurisdiction of the United States District Court for the Southern District of New York and of any New York state court sitting in New York City for the purposes of all legal proceedings arising out of or relating to this Agreement or the transactions contemplated hereby. The Company, the Call Option Holder, the Collateral Agent and the Holders from time to time of the Units, acting through the Unit Agent as their attorney-in-fact, irrevocably waive, to the fullest extent permitted by applicable law, any objection which they may now or hereafter have to the laying of the venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum. -9- (d) LEGAL HOLIDAYS. In any case where any Quarterly Payment Date or the Stock Purchase Date shall not be a Business Day, then (notwithstanding any other provision of this Agreement or of the Units) the actions required by this Agreement to occur on such date shall not occur on such date, but instead shall occur on the next succeeding Business Day with the same force and effect as if they had occurred on such Quarterly Payment Date or Stock Purchase Date, as the case may be; except that if such next succeeding Business Day is in the next calendar year, such actions shall occur on the immediately preceding Business Day with the same force and effect as if made on such Quarterly Payment Date or Stock Purchase Date. (e) NOTICES. All notices, requests, consents and other communications provided for herein (including, without limitation, any modifications of, or waivers or consents under, this Agreement) shall be given or made in writing (including, without limitation, by telecopy) delivered to the intended recipient at the "Address for Notices" specified below its name on the signature pages hereof or, as to any party, at such other address as shall be designated by such party in a notice to the other parties. Except as otherwise provided in this Agreement, all such communications shall be deemed to have been duly given when transmitted by telecopier or personally delivered or, in the case of a mailed notice, upon receipt, in each case given or addressed as aforesaid. (f) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the Company, the Call Option Holder, the Collateral Agent and the Unit Agent, and the Holders from time to time of the Units, by their acceptance of the same, shall be deemed to have agreed to be bound by the provisions hereof and to have ratified the agreements of, and the grant of the Pledge hereunder by, the Unit Agent. (g) COUNTERPARTS. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument, and any of the parties hereto may execute this Agreement by signing any such counterpart. (h) SEVERABILITY. If any provision hereof is invalid or unenforceable in any jurisdiction, then, to the fullest extent permitted by law, (i) the other provisions hereof shall remain in full force and effect in such jurisdiction and shall be liberally construed in order to carry out the intentions of the parties hereto as nearly as may be possible and (ii) the invalidity or unenforceability of any provision hereof in any jurisdiction shall not affect the validity or enforceability of such provision in any other jurisdiction. (i) EXPENSES, ETC. The Company agrees to reimburse the Collateral Agent for: (i) all reasonable out-of-pocket costs and expenses of the Collateral Agent (including, without limitation, the reasonable fees and expenses of counsel to the Collateral Agent), in connection with (ii) the negotiation, preparation, execution and delivery or performance of this Agreement and (iii) any modification, supplement or waiver of any of the terms of this Agreement; (iv) all reasonable costs and expenses of the Collateral Agent (including, without limitation, reasonable fees and expenses of counsel) in connection with (A) any enforcement or proceedings resulting or incurred in connection with causing any Holder of Units to satisfy its obligations under the Purchase Contracts or Call Options forming a part of the Units and (B) the enforcement of this -10- Section 8(i); and (v) all transfer, stamp, documentary or other similar taxes, assessments or charges levied by any governmental or revenue authority in respect of this Agreement or any other document referred to herein and all costs, expenses, taxes, assessments and other charges incurred in connection with any filing, registration, recording or perfection of any security interest contemplated hereby. (j) SECURITY INTEREST ABSOLUTE. All rights of the Collateral Agent and security interests hereunder, and all obligations of the Holders from time to time of the Units here under, shall be absolute and unconditional irrespective of: (i) any lack of validity or enforceability of any provision of the Units or any other agreement or instrument relating thereto; (ii) any change in the time, manner or place of payment of, or any other term of, or any increase in the amount of, all or any of the obligations of Holders of Units under the related Purchase Contracts or Call Options or any other amendment or waiver of any term of, or any consent to any departure from any requirement of, the Master Unit Agreement or any Units or any other agreement or instrument relating thereto; or (iii) any other circumstance which might otherwise constitute a defense available to, or discharge of, borrower, a guarantor or a pledger. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the day and year first above written. AIRTOUCH COMMUNICATIONS, INC. By ------------------------------------- Name ----------------------------------- Title ---------------------------------- Address for Notices: 201 Mission Street, 18th Floor San Francisco, CA 94105 Attention:_____________________________ Telecopy:______________________________ -11- [_______________], as Call Option Holder By ------------------------------------- Name ----------------------------------- Title ---------------------------------- Address for Notices: --------------------------------------- --------------------------------------- --------------------------------------- Attention: ----------------------------- [_______________], as Collateral Agent By -------------------------------------- Name ------------------------------------ Title ----------------------------------- Address for Notices: --------------------------------------- --------------------------------------- --------------------------------------- Attention: ----------------------------- -12- [_______________], as Unit Agent and as attorney-in-fact of the Holders from time to time of the Units By -------------------------------------- Name ------------------------------------ Title ----------------------------------- Address for Notices: --------------------------------------- --------------------------------------- --------------------------------------- Attention: ----------------------------- -13- EX-4.30 6 CALL OPTION AGREEMENT Exhibit 4.30 =============================================================================== ---------------, as Call Option Holder AND ---------------, as Unit Agent and as Attorney-In-Fact ------------------ CALL OPTION AGREEMENT ------------------ Dated as of __________, 199__ =============================================================================== CALL OPTION AGREEMENT THIS CALL OPTION AGREEMENT, dated as of __________, 199__, is made between _______________, as Call Option Holder, and _______________, as Unit Agent and as attorney-in-fact of the Holders from time to time of the Normal Units. RECITALS: A. AirTouch Communications, Inc. and the Unit Agent are parties to the Master Unit Agreement, dated as the date hereof (as the same may be supplemented or amended in accordance with the terms thereof, the "Master Unit Agreement"). The Master Unit Agreement contemplates that the Company will issue QUIPS(sm)* and Junior Subordinated Debentures, and that QUIPS or Junior Subordinated Debentures will underlie Normal Units outstanding from time to time thereunder. B. It is intended that the Holders from time to time of the Normal Units grant Call Options entitling the Call Option Holder to acquire the QUIPS or Junior Subordinated Debentures underlying the related Normal Units on the terms and subject to the conditions set forth herein. Pursuant to the terms of the Principal Agreements and the Unit Certificates for the Normal Units, the Holders from time to time of the Normal Units irrevocably authorize the Unit Agent, as attorney-in-fact of such Holders, to enter into such Call Options and execute and deliver this Agreement on behalf of such Holders. NOW, THEREFORE, the Call Option Holder and the Unit Agent, on its own behalf and as attorney-in-fact of the Holders from time to time of the Normal Units, agree as follows: 1. DEFINITIONS. For all purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires: (a) capitalized terms used herein and not defined are used herein as defined in the Master Unit Agreement; and (b) the words "herein," "hereof" and "hereunder" and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section or other subdivision. "Aggregate Consideration Deliverable on Exercise of the Call Options" means consideration comprised of: (i) Treasury Securities that through their scheduled payments will generate not later than each Quarterly Payment Date falling after the Call Settlement Date and on or before the Stock Purchase Date an amount of cash that is at least equal - ------------ * QUIPS is a servicemark of _______________. -1- to the aggregate distributions or interest payments that are scheduled to be payable in respect of the QUIPS or Junior Subordinated Debentures underlying the Normal Units on such Quarterly Payment Date (assuming for this purpose that no distributions or payments will then have been deferred); (ii) Treasury Securities that through their scheduled payments will generate not later than the Stock Purchase Date an amount of cash equal to the aggregate Liquidation Amount of the QUIPS or principal amount of the Junior Subordinated Debentures underlying the Normal Units; and (iii) if the Company is, at the Call Settlement Date, deferring distributions on the QUIPS or interest payments on the Junior Subordinated Debentures, an amount in cash equal to (A) the aggregate deferred distributions on the QUIPS or deferred interest payments on the Junior Subordinated Debentures underlying the Normal Units accrued to the Call Settlement Date, if the Call Settlement Date is a Quarterly Payment Date, and (B) the aggregate deferred distributions on the QUIPS or deferred interest payments on the Junior Subordinated Debentures underlying the Normal Units accrued to the Quarterly Payment Date immediately preceding the Call Settlement Date plus interest thereon at the QUIPS Distribution Rate for the period from and including such Quarterly Payment Date to but excluding such Call Settlement Date (computed on the basis of a three hundred sixty (360) day year of twelve (12) thirty (30) day months), if the Call Settlement Date is not a Quarterly Payment Date. "Call Option Expiration Date" means [________, 2001] (or, if such date is not a Business Day, the next succeeding Business Day). 2. CALL OPTION. 2.1 GRANT. The Unit Agent, on behalf of and as attorney-in-fact for the Holders from time to time of the Normal Units, hereby grants the Call Options to the Call Option Holder on the terms and subject to the conditions set forth herein. 2.2 CONSIDERATION. As consideration for such Call Options, concurrently with the execution hereof, the Call Option Holder is paying to the underwriters under the Underwriting Agreement (who are acting in this regard on behalf of the initial investors in the Normal Units) an amount equal to $________ per Call Option. 2.3 EXPIRATION OR TERMINATION OF CALL OPTIONS. The Call Options shall be irrevocable, but the Call Options and the rights of the Call Option Holder and the obligations of the Holders of Normal Units thereunder shall (a) expire on the Call Option Expiration Date if the Call Settlement Date has not occurred on or prior to such date and (b) automatically terminate upon the occurrence of a Termination Event. -2- 3. EXERCISE OF CALL OPTIONS. 3.1 EXERCISE MECHANICS. (a) The Call Option Holder may exercise all (but not less than all) the Call Options by (i) delivering to the Unit Agent and the Collateral Agent, on or prior to the Call Option Settlement Date, a notice, substantially in the form set forth in Annex A attached hereto, stating that the Call Option Holder is exercising its Call Options and specifying the Call Settlement Date therefor (which may not be after the Call Option Expiration Date) and (ii) delivering to the Collateral Agent, by Noon, New York City time, on the Call Settlement Date, the Aggregate Consideration Deliverable on Exercise of the Call Options. (b) Pursuant to the Pledge Agreement, upon receipt by the Collateral Agent of the Aggregate Consideration Deliverable on Exercise of the Call Options in the manner contemplated hereby and by the Pledge Agreement, the Collateral Agent shall transfer the QUIPS or Junior Subordinated Debentures underlying the Normal Units, free and clear of any lien, pledge or security interest created by the Pledge Agreement, to the Call Option Holder or its designee as specified in the notice referred to in Section 3.1(a) above. (c) The Unit Agent shall, not later than three (3) Business Days following the Call Settlement Date, mail notice of the exercise of the Call Options to the Holders in the manner prescribed by the Master Unit Agreement. 4. MISCELLANEOUS. 4.1 AMENDMENTS. This Agreement may be amended in the manner set forth in Section 801 of the Master Unit Agreement. 4.2 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The Call Option Holder, the Unit Agent and the Holders from time to time of the Normal Units, acting through the Unit Agent as their attorney-in-fact, hereby submit to the nonexclusive jurisdiction of the United States District Court for the Southern District of New York and of any New York state court sitting in New York City for the purposes of all legal proceedings arising out of or relating to this Agreement or the transactions contemplated hereby. The Call Option Holder, the Unit Agent and the Holders from time to time of the Normal Units, acting through the Unit Agent as their attorney-in-fact, irrevocably waive, to the fullest extent permitted by applicable law, any objection which they may now or hereafter have to the laying of the venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum. 4.3 NOTICES. All notices, requests, consents and other communications provided for herein (including, without limitation, any modifications of, or waivers or consents under, this Agreement) shall be given or made in writing (including, without limitation, by telecopy) delivered to the intended recipient at the "Address for Notices" specified below its name on the -3- signature pages hereof or, as to any party, at such other address as shall be designated by such party in a notice to the other party. Except as otherwise provided in this Agreement, all such communications shall be deemed to have been duly given when transmitted by telecopier or personally delivered or, in the case of a mailed notice, upon receipt, in each case given or addressed as aforesaid. 4.4 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the Call Option Holder and the Unit Agent, and the Holders from time to time of the Normal Units, by their acceptance of the same, shall be deemed to have agreed to be bound by the provisions hereof and to have ratified the agreements of, and the grant of the Call Options hereunder by, the Unit Agent. 4.5 COUNTERPARTS. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument, and any of the parties hereto may execute this Agreement by signing any such counterpart. 4.6 SEVERABILITY. If any provision hereof is invalid or unenforceable in any jurisdiction, then, to the fullest extent permitted by law, (a) the other provisions hereof shall remain in full force and effect in such jurisdiction and shall be liberally construed in order to carry out the intentions of the parties hereto as nearly as may be possible and (b) the invalidity or unenforceability of any provision hereof in any jurisdiction shall not affect the validity or enforceability of such provision in any other jurisdiction. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the day and year first above written. [_______________] By -------------------------------------- Name ------------------------------------ Title ----------------------------------- Address for Notices: ---------------------------------------- ---------------------------------------- ---------------------------------------- Attention: ------------------------------ -4- [_______________] By -------------------------------------- Name ------------------------------------ Title ----------------------------------- Address for Notices: ---------------------------------------- ---------------------------------------- ---------------------------------------- Attention: ------------------------------ -5- ANNEX I ------- EXERCISE NOTICE --------------- Reference is made to the Call Option Agreement, dated as of __________, 199_ (the "Call Option Agreement"), between _______________, as Call Option Holder, and _______________, as Unit Agent and attorney-in-fact of the Holders from time to time of the Normal Units. Capitalized terms used herein but not defined are used herein as defined in the Call Option Agreement. The undersigned hereby exercises all of the Call Options underlying the Normal Units and specifies __________________ as the Call Settlement Date. Certificates representing the QUIPS or Junior Subordinated Debentures underlying the Normal Units should be registered in the name of and delivered to [insert address]. Dated: __________, 199__ [_______________] By -------------------------------------- Name ------------------------------------ Title ----------------------------------- I-1 EX-5.1(A) 7 OPINION OF MARGARET G. GILL [Letterhead of AirTouch Communications, Inc.] (415) 658-2000 June 11, 1998 AirTouch Communications, Inc. One California Street San Francisco, CA 94111 Ladies and Gentlemen: This opinion is being delivered in connection with the proposed issuance and sale by AirTouch Communications, Inc., a Delaware corporation ("AirTouch"), of (a) shares of its common stock, $0.01 par value per share ("Common Stock"), (b) shares of its preferred stock, $0.01 par value per share ("Preferred Stock"), in one or more series, (c) depositary shares evidenced by depositary receipts, each representing fractional interests in Preferred Stock ("Depositary Shares"), (d) unsecured senior or subordinated debt securities of AirTouch ("Debt Securities"), (e) options, warrants and other rights to purchase shares of Common Stock ("Common Stock Warrants") or shares of Preferred Stock ("Preferred Stock Warrants"), (f) options, warrants and other rights to purchase shares of capital stock or debt of another corporation or entity ("Third Party Warrants"), (g) options, warrants and other rights to purchase Debt Securities ("Debt Warrants"), (h) stock purchase contracts ("Stock Purchase Contracts") to purchase Common Stock or Preferred Stock, (i) stock purchase units ("Stock Purchase Units") each representing ownership of a Stock Purchase Contract and Preferred Stock, Debt Securities, debt obligations of third parties, including the United States of America or agencies or instrumentalities thereof or Preferred Securities (as defined below), securing the holder's obligation to purchase Common Stock or Preferred Stock under the Stock Purchase Contract, (j) guarantees ("Guarantees") on payments of periodic cash distributions and payments on liquidation, redemption or otherwise with respect to preferred securities offered from time to time by ATI Financing I and ATI Financing II, each a statutory business trust formed under the laws of the State of Delaware (each an "AirTouch Trust"), the Common Securities of which will be wholly-owned by AirTouch, representing undivided beneficial AirTouch Communications, Inc. June 11, 1998 Page 2 interests in the assets of the applicable AirTouch Trust ("Preferred Securities"), out of moneys held by each of the AirTouch Trusts or (k) other units ("Other Units"), each of which may represent any combination of the foregoing, each on terms to be determined at the time of sale (the Common Stock, Preferred Stock, Depositary Shares, Debt Securities, Common Stock Warrants, Preferred Stock Warrants, Third Party Warrants, Debt Warrants, Stock Purchase Units, Preferred Securities, Guarantees or Other Units are collectively referred to herein as, the "Securities"), having an aggregate initial public offering price of up to U.S.$2,500,000,000 or the equivalent thereof. The Securities are to be issued pursuant to a Registration Statement on Form S-3 ("Registration Statement") filed by AirTouch, ATI Financing I and ATI Financing II with the Securities and Exchange Commission on June 11, 1998 under the Securities Act of 1933, as amended. I am familiar with proceedings to date by AirTouch with respect to the issuance and sale of the Securities and have examined such records, documents and matters of law as I have deemed necessary for purposes of this opinion. Based upon the foregoing, I am of the opinion that: 1. AirTouch is a corporation duly organized and validly existing under the laws of the State of Delaware. 2. With respect to the Common Stock, when (a) the Board of Directors of AirTouch or a duly authorized committee of the Board (such Board of Directors or committee being referred to herein as the "Board"), has taken all necessary corporate action to approve the issuance of and establish the terms of the offering of the Common Stock and related matters and (b) issued, sold and delivered in the manner and for the consideration (not less than the par value of the Common Stock) stated in the applicable definitive purchase, underwriting or similar agreement or upon conversion, exchange or exercise of any other Security in accordance with the terms of such Security or the instrument governing such Security providing for such conversion, exchange or exercise as approved by the Board, for the consideration approved by the Board (not less than the par value of the Common Stock), the Common Stock will be duly authorized, validly issued, fully paid and nonassessable. AirTouch Communications, Inc. June 11, 1998 Page 3 3. With respect to the Preferred Stock, when (a) the Board has taken all necessary corporate action to approve the issuance of and establish the terms of any particular series of Preferred Stock, the offering thereof and related matters, including the filing of a statement of designation conforming to the Delaware General Corporation Law regarding the Preferred Stock with the Secretary of State of the State of Delaware, and (c) the Preferred Stock has been issued, sold and delivered in the manner and for the consideration (not less than the par value of the Preferred Stock) stated in the applicable definitive purchase, underwriting or similar agreement or upon conversion, exchange or exercise of any other Security in accordance with the terms of such Security or the instrument governing such Security providing for such conversion, exchange or exercise as approved by the Board, for the consideration approved by the Board (not less than the par value of the Preferred Stock), the Preferred Stock will be duly authorized, validly issued, fully paid and nonassessable. 4. With respect to the Depositary Shares, when (a) the Board has taken all necessary corporate action to approve the issuance of and establish the terms of any particular series of Preferred Stock, the offering thereof and related matters, including the filing of a statement of designation conforming to the Delaware General Corporation Law regarding the Preferred Stock with the Secretary of State of the State of Delaware, (c) the Preferred Stock has been deposited with a bank or trust company (which meets the requirements set forth in the Registration Statement or any amendment or prospectus supplement relating thereto) under one or more deposit agreements (substantially in the form of the Deposit Agreement filed as Exhibit 4.24 to the Registration Statement or with such other provisions as are contained in a document which will be filed as an exhibit to or incorporated by reference in the Registration Statement, which have been duly authorized and validly executed) and (d) Depositary Shares, evidenced by depositary receipts, are issued, sold and delivered in the manner and for the consideration stated in the applicable definitive purchase, underwriting or similar agreement approved by the Board, and in accordance with the appropriate depositary agreement, upon payment of the consideration provided for therein the Depositary Shares will be duly and validly issued, fully paid and nonassessable. AirTouch Communications, Inc. June 11, 1998 Page 4 5. With respect to the Debt Securities to be issued under the Senior Debt Indenture filed as Exhibit 4.21 to the Registration Statement, when (a) the Senior Debt Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended, (b) the Board has taken all necessary corporate action to approve the issuance of and establish the terms of such Debt Securities, the terms of the offering and related matters, (c) the Debt Securities have been executed and authenticated in accordance with the terms of the Senior Debt Indenture and (d) the Debt Securities have been issued, sold and delivered in the manner and for the consideration stated in the applicable definitive purchase, underwriting or similar agreement approved by the Board, upon payment of the consideration provided for therein, or upon exercise of any other Security in accordance with the terms of such Security or the instrument governing such Security providing for such conversion, exchange or exercise as approved by the Board, and the Senior Debt Indenture, the Debt Securities to be issued under the Senior Debt Indenture will be legal, valid and binding obligations of AirTouch, enforceable against AirTouch in accordance with their terms, except that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting generally the enforcement of creditors' rights and by equitable principles of general application (whether applied at law or in equity). 6. With respect to the Debt Securities to be issued under the Subordinated Debt Indenture filed as Exhibit 4.25 to the Registration Statement, when (a) the Subordinated Debt Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended, (b) the Board has taken all necessary corporate action to approve the issuance of and establish the terms of such Debt Securities, the terms of the offering and related matters, (c) the Debt Securities have been executed and authenticated in accordance with the terms of the Subordinated Debt Indenture and (d) the Debt Securities have been issued, sold and delivered in the manner and for the consideration stated in the applicable definitive purchase, underwriting or similar agreement approved by the Board, upon payment of the consideration therefor provided for therein, or upon exercise of any other Security in accordance with the terms of such Security or the instrument governing such Security providing for such conversion, exchange or exercise as approved by the Board, and the Subordinated Debt Indenture, the AirTouch Communications, Inc. June 11, 1998 Page 5 Debt Securities to be issued under the Subordinated Debt Indenture will be legal, valid and binding obligations of AirTouch, enforceable against AirTouch in accordance with their terms, except that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting generally the enforcement of creditors' rights and by equitable principles of general application (whether applied at law or in equity). 7. With respect to the Common Stock Warrants and the Preferred Stock Warrants (collectively, the "Stock Warrants"), when (a) one or more agreements (incorporating the form of Standard Stock Warrant Provisions filed as Exhibit 4.22 to the Registration Statement or such other provisions as are contained in a document which will be filed as an exhibit to or incorporated by reference in the Registration Statement,) have been duly executed and delivered by AirTouch and a warrant agent, (b) the Board has taken all necessary corporate action to approve the terms of the Stock Warrants, (c) the Stock Warrant certificates have been executed and authenticated in accordance with the terms of the appropriate agreement and (d) the Stock Warrants have been issued, sold and delivered in the manner and for the consideration stated in the applicable definitive purchase, underwriting or similar agreement approved by the Board, upon payment of the consideration therefor provided for therein, and the appropriate Third Party Warrant agreement, the Third Party Warrants will be legal, valid and binding obligations of AirTouch, enforceable against AirTouch in accordance with their terms, except as may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting generally the enforcement of creditors' rights and by equitable principles of general application (whether applied at law or in equity). 8. With respect to the Third Party Warrants, when (a) one or more agreements (incorporating the form of Standard Stock Warrant Provisions filed as Exhibit 4.22 to the Registration Statement or such other provisions as are contained in a document which will be filed as an exhibit to or incorporated by reference in the Registration Statement) have been duly executed and delivered by AirTouch and a warrant agent, (b) the Board has taken all necessary corporate action to approve the terms of the Third Party Warrants, (c) the Third Party Warrant certificates AirTouch Communications, Inc. June 11, 1998 Page 6 have been executed and authenticated in accordance with the terms of the appropriate agreement and (d) the Third Party Warrants have been issued, sold and delivered in the manner and for the consideration stated in the applicable definitive purchase, underwriting or similar agreement approved by the Board, upon payment of the consideration therefor provided for therein, and the appropriate Third Party Warrant agreement, the Third Party Warrants will be legal, valid and binding obligations of AirTouch, enforceable against AirTouch in accordance with their terms, except as may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting generally the enforcement of creditors' rights and by equitable principles of general application (whether applied at law or in equity). 9. With respect to the Debt Warrants, when (a) one or more agreements (incorporating the form of Debt Securities Warrant Agreement filed as Exhibit 4.23 to the Registration Statement or such other provisions as are contained in a document which will be filed as an exhibit to or incorporated by reference in the Registration Statement) have been duly executed and delivered by AirTouch and a warrant agent, (b) the Board has taken all necessary corporate action to approve the terms of the Debt Warrants, (c) the Debt Warrant certificates have been executed and authenticated in accordance with the terms of the appropriate agreement and (d) the Debt Warrants have been issued, sold and delivered in the manner and for the consideration stated in the applicable definitive purchase, underwriting or similar agreement approved by the Board, upon payment of the consideration therefor provided for therein, and the appropriate Debt Warrant agreement, the Debt Warrants will be legal, valid and binding obligations of AirTouch, enforceable against AirTouch in accordance with their terms, except as may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting generally the enforcement of creditors' rights and by equitable principles of general application (whether applied at law or in equity). 10. With respect to the Stock Purchase Contracts, when (a) one or more agreements (incorporating the form of Stock Purchase Contract Agreement filed as Exhibit 4.27 to the Registration Statement or such other agreement which will be filed as an exhibit to or incorporated by reference in the Registration Statement) have duly executed and delivered by AirTouch and a AirTouch Communications, Inc. June 11, 1998 Page 7 stock purchase contract agent, (b) the Board has taken all necessary corporate action to approve the terms of the Stock Purchase Contracts, (c) the Stock Purchase Contracts have been executed and authenticated in accordance with the terms of the appropriate Stock Purchase Contract agreement and (d) the Stock Purchase Contracts have been issued, sold and delivered in the manner and for the consideration stated in the applicable definitive purchase, underwriting or similar agreement approved by the Board, upon payment of the consideration therefor provided for therein, and the appropriate Stock Purchase Contract agreement, the Stock Purchase Contracts will be legal, valid and binding obligations of AirTouch, enforceable against AirTouch in accordance with their terms, except as may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights and by equitable principles of general application (whether applied at law or in equity). 11. With respect to the Stock Purchase Units, when (a) one or more agreements (incorporating the form of Stock Purchase Contract Agreement filed as Exhibit 4.27 to the Registration Statement or such other agreement which will be filed as an exhibit to or incorporated by reference in the Registration Statement) have been duly executed and delivered by AirTouch and a stock purchase unit agent, (b) the Board has taken all necessary corporate action to approve and establish the terms of the Stock Purchase Units, (c) the Stock Purchase Units have been executed and authenticated in accordance with the terms of the appropriate agreement and (d) the Stock Purchase Units have been issued, sold and delivered in the manner and for the consideration stated in the applicable definitive purchase, underwriting or similar agreement approved by the Board, upon payment of the consideration therefor provided for therein, and the appropriate Stock Purchase Unit agreement, the Stock Purchase Units will be legal, valid and binding obligations of AirTouch, enforceable against AirTouch in accordance with their terms, except as may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting generally the enforcement of creditors' rights and by equitable principles of general application (whether applied at law or in equity). AirTouch Communications, Inc. June 11, 1998 Page 8 12. With respect to the Guarantees, when (a) one or more agreements (incorporating the form of Preferred Securities Guarantee Agreement filed as Exhibit 4.26 to the Registration Statement) have been duly executed and delivered by AirTouch and a Preferred Securities Guarantee trustee, (b) the Board has taken all necessary corporate action to approve and establish the terms of the Guarantee, (c) the Preferred Securities Guarantee Agreement has been executed and authenticated in accordance with the terms of the appropriate agreement and (d) the Guarantee has been issued, and delivered in the manner and for the consideration stated in the applicable agreement, the Guarantee will be a legal, valid and binding obligation of AirTouch, enforceable against AirTouch in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, or other similar laws affecting generally the enforcement of creditors' rights and by equitable principles of general application (whether applied at law or in equity). In connection with the opinions expressed above, I have assumed that, at or prior to the time of the delivery of any such Security, the Registration Statement, and any amendments thereto (including post-effective amendments) will have been declared effective, a Prospectus Supplement will have been prepared and filed with the Commission describing the Securities offered thereby, the authorization of the Securities applicable to such Security will not have been modified or rescinded by the Board and there will not have occurred any change in law affecting the validity or enforceability of such Security. I have also assumed that none of the terms of any Security to be established subsequent to the date hereof nor the issuance and delivery of such Security, nor the compliance by AirTouch with the terms of such Security, will violate any applicable federal or state law or will result in a violation of any provision of any instrument or agreement then binding upon AirTouch or any restriction imposed by any court or governmental body having jurisdiction over AirTouch. I am a member of the Bar of the State of California and the foregoing opinion is limited to the laws of the State of California, the federal laws of the United States of America and the General Corporation Law of the State of Delaware. AirTouch Communications, Inc. June 11, 1998 Page 9 I hereby consent to the filing of this opinion with the Securities and Exchange Commission in connection with the filing of the Registration Statement referred to above. I also consent to the use of my name in the related prospectus and prospectus supplement under the heading "Legal Matters." Very truly yours, /s/ Margaret G. Gill Margaret G. Gill Senior Vice President, Legal, External Affairs and Secretary EX-5.1(B) 8 OPINION RE ATI FINANCING I [Letterhead of Morris, Nichols, Arsht and Tunnell] June 11, 1998 ATI Financing I c/o AirTouch Communications, Inc. One California Street San Francisco, California 94111 Re: ATI Financing I Ladies and Gentlemen: We have acted as special Delaware counsel to ATI Financing I, a Delaware statutory business trust (the "Trust"), in connection with certain matters relating to the organization of the Trust and the proposed issuance of Preferred Securities to beneficial owners pursuant to and as described in the Registration Statement (and the prospectus forming a part thereof (the "Prospectus")) on Form S-3 filed by AirTouch Communications, Inc., ATI Financing II and the Trust with the Securities and Exchange Commission (the "Commission") on or about the date hereof (the "Registration Statement"). Capitalized terms used herein and not otherwise herein defined are used as defined in the Amended and Restated Declaration of Trust of the Trust in the form attached as Exhibit 4.19 to the Registration Statement (the "Governing Instrument"). In rendering this opinion, we have examined copies of the following documents in the forms provided to us: the Certificate of Trust of the Trust as filed in the Office of the Secretary of State of the State of Delaware (the "State Office") on September 19, 1995 (the "Certificate"); a Declaration of Trust of the Trust dated as of September 19, 1995 (the "Original Governing Instrument"); the Governing Instrument; the Registration Statement; and a certification of good standing of the Trust obtained as of a recent date from the State Office. In such examinations, we have assumed the genuineness of all signatures, the conformity to original documents of all documents submitted to us as drafts or copies or forms of documents to be executed and the legal capacity of natural persons to complete the execution of documents. We have further assumed for purposes of this opinion: (i) the due formation or organization, valid existence and good standing of each entity (other than the Trust) that is a party to any of the documents reviewed by us under the laws of the jurisdiction of its respective formation or organization; (ii) the due authorization, execution and delivery by, or on behalf of, each of the parties thereto of the above-referenced documents (including, without limitation, the due execution and delivery of the Governing Instrument and the underwriting agreement and the pricing agreement relating to the Preferred Securities (which underwriting agreement and pricing agreement will have terms ATI Financing I June 11, 1998 Page 2 consistent with the requirement of the Governing Instrument) (respectively, the "Underwriting Agreement" and the "Pricing Agreement") prior to the first issuance of Preferred Securities); (iii) that no event has occurred subsequent to the filing of the Certificate, or will occur prior to the issuance of the Preferred Securities, that would cause a dissolution or liquidation of the Trust under the Original Governing Instrument or the Governing Instrument, as applicable; (iv) that the activities of the Trust have been and will be conducted in accordance with the Original Governing Instrument or the Governing Instrument, as applicable, and the Delaware Business Trust Act, 12 Del. C. sections 3801 et seq. (the "Delaware Act"); (v) that each Holder of a Preferred Security will make payment of the required consideration therefor and will have a Preferred Security or Preferred Securities registered in the name of such Holder in the Register in consideration thereof, all in accordance with the terms and conditions of the Governing Instrument, the Registration Statement, the Underwriting Agreement and the Pricing Agreement; (vi) that the Preferred Securities are issued and sold to the Preferred Securities Holders in accordance with the terms, conditions, requirements and procedures set forth in the Governing Instrument, the Registration Statement, the Underwriting Agreement and the Pricing Agreement; and (vii) that the documents examined by us are in full force and effect (or, as applicable, will be in full force and effect prior to the issuance of the Preferred Securities), express the entire understanding of the parties thereto with respect to the subject matter thereof and have not been (or, as applicable, at the time of issuance of the Preferred Securities will not have been) modified, supplemented or otherwise amended, except as herein referenced. No opinion is expressed with respect to the requirements of, or compliance with, federal or state securities or blue sky laws. We have not participated in the preparation of the Registration Statement or any other offering materials relating to the Preferred Securities and we assume no responsibility for their contents. As to any fact material to our opinion, other than those assumed, we have relied without independent investigation on the above-referenced documents and on the accuracy, as of the date hereof, of the matters therein contained. Based on and subject to the foregoing (and the further assumptions set forth below), and limited in all respects to matters of Delaware law, it is our opinion that: 1. The Trust is a duly organized and validly existing business trust in good standing under the laws of the State of Delaware. 2. The Preferred Securities, upon issuance, will constitute validly issued and, subject to the qualifications set forth in paragraph 3 below, fully paid and nonassessable beneficial interests in the trust. 3. Under the Delaware Act and the terms of the Governing Instrument, each Preferred Security Holder of the Trust, in such capacity, will be entitled to the same limitation of personal liability as that extended to stockholders of private corporations for profit organized under the General Corporation Law of the State of Delaware; provided, ATI Financing I June 11, 1998 Page 3 however, we express no opinion with respect to the liability of any Preferred Security Holder who is, was or may become a named Trustee of the Trust. Notwithstanding the foregoing, we note that pursuant to the Governing Instrument, the Trust may withhold amounts otherwise distributable to a Holder and pay over such amounts to the applicable jurisdictions in accordance with federal, state and local law and any amount withheld will be deemed to have been distributed to such Holder and that, pursuant to the Governing Instrument, Preferred Security Holders may be obligated to make payments or provide indemnity or security under the circumstances set forth therein. In connection with the foregoing opinions, we have assumed that at or prior to the time of the issuance and delivery of any applicable Preferred Securities, the registration Statement and any amendments thereto (including post-effective amendments) will have been delivered and remain effective, a prospectus supplement will have been prepared and filed with the commission describing the Preferred Securities offered thereby (the terms of which will be consistent with the requirements of the Governing Instrument), all required approvals for the issuance of such Preferred Securities under the Governing Instrument, the Underwriting Agreement and the Pricing Agreement will be in full force and effect and will not have been modified or rescinded and there shall not have occurred any change in law affecting the validity or enforceability of such Preferred Securities. We have also assumed that none of the terms of any Preferred Security to be established subsequent to the date hereof nor the issuance and delivery of such Preferred Security, nor the compliance by the Trust with the terms of such Preferred Security, will violate any applicable federal or state law or will result in a violation of any provision of any instrument or agreement then binding on the Trust or any restriction imposed by any court or governmental body having jurisdiction over the Trust. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of our name under the heading "LEGAL MATTERS" in the Prospectus and the prospectus supplement relating to the issuance of Preferred Securities. In giving this consent, we do not thereby admit that we come within the category of person whose consent is required under section 7 of the Securities Act of 1933, as amended, or the rules and regulations of the Commission thereunder. This opinion speaks only as of the date hereof and is based on our understandings or assumptions as to present facts, and on our review of the above-referenced documents and the application of Delaware law as the same exist as of the date hereof, and we undertake no obligation to update or supplement this opinion after the date hereof for the benefit of any person or entity with respect to any facts or circumstances that may hereafter come to our attention or any changes in facts or law that may hereafter occur or take effect. This opinion is intended solely for the benefit of the ATI Financing I June 11, 1998 Page 4 addressee hereof in connection with the matters contemplated hereby and may not be relied on by any other person or entity or for any other purpose without our prior written consent. Very truly yours, /s/ MORRIS, NICHOLS, ARSHT & TUNNELL EX-5.1(C) 9 OPINION RE ATI FINANCING II [Letterhead of Morris, Nichols, Arsht and Tunnell] June 11, 1998 ATI Financing II c/o AirTouch Communications, Inc. One California Street San Francisco, California 94111 Re: ATI Financing II Ladies and Gentlemen: We have acted as special Delaware counsel to ATI Financing II, a Delaware statutory business trust (the "Trust"), in connection with certain matters relating to the organization of the Trust and the proposed issuance of Preferred Securities to beneficial owners pursuant to and as described in the Registration Statement (and the prospectus forming a part thereof (the "Prospectus")) on Form S-3 filed by AirTouch Communications, Inc., ATI Financing I and the Trust with the Securities and Exchange Commission (the "Commission") on or about the date hereof (the "Registration Statement"). Capitalized terms used herein and not otherwise herein defined are used as defined in the Amended and Restated Declaration of Trust of the Trust in the form attached as Exhibit 4.19 to the Registration Statement (the "Governing Instrument"). In rendering this opinion, we have examined copies of the following documents in the forms provided to us: the Certificate of Trust of the Trust as filed in the Office of the Secretary of State of the State of Delaware (the "State Office") on September 19, 1995 (the "Certificate"); a Declaration of Trust of the Trust dated as of September 19, 1995 (the "Original Governing Instrument"); the Governing Instrument; the Registration Statement; and a certification of good standing of the Trust obtained as of a recent date from the State Office. In such examinations, we have assumed the genuineness of all signatures, the conformity to original documents of all documents submitted to us as drafts or copies or forms of documents to be executed and the legal capacity of natural persons to complete the execution of documents. We have further assumed for purposes of this opinion: (i) the due formation or organization, valid existence and good standing of each entity (other than the Trust) that is a party to any of the documents reviewed by us under the laws of the jurisdiction of its respective formation or organization; (ii) the due authorization, execution and delivery by, or on behalf of, each of the parties thereto of the above-referenced documents (including, without limitation, the due execution and delivery of the Governing Instrument and the underwriting agreement and the pricing agreement relating to the Preferred Securities (which underwriting agreement and pricing agreement will have terms ATI Financing II June 11, 1998 Page 2 consistent with the requirement of the Governing Instrument) (respectively, the "Underwriting Agreement" and the "Pricing Agreement") prior to the first issuance of Preferred Securities); (iii) that no event has occurred subsequent to the filing of the Certificate, or will occur prior to the issuance of the Preferred Securities, that would cause a dissolution or liquidation of the Trust under the Original Governing Instrument or the Governing Instrument, as applicable; (iv) that the activities of the Trust have been and will be conducted in accordance with the Original Governing Instrument or the Governing Instrument, as applicable, and the Delaware Business Trust Act, 12 Del. C. sections 3801 et seq. (the "Delaware Act"); (v) that each Holder of a Preferred Security will make payment of the required consideration therefor and will have a Preferred Security or Preferred Securities registered in the name of such Holder in the Register in consideration thereof, all in accordance with the terms and conditions of the Governing Instrument, the Registration Statement, the Underwriting Agreement and the Pricing Agreement; (vi) that the Preferred Securities are issued and sold to the Preferred Securities Holders in accordance with the terms, conditions, requirements and procedures set forth in the Governing Instrument, the Registration Statement, the Underwriting Agreement and the Pricing Agreement; and (vii) that the documents examined by us are in full force and effect (or, as applicable, will be in full force and effect prior to the issuance of the Preferred Securities), express the entire understanding of the parties thereto with respect to the subject matter thereof and have not been (or, as applicable, at the time of issuance of the Preferred Securities will not have been) modified, supplemented or otherwise amended, except as herein referenced. No opinion is expressed with respect to the requirements of, or compliance with, federal or state securities or blue sky laws. We have not participated in the preparation of the Registration Statement or any other offering materials relating to the Preferred Securities and we assume no responsibility for their contents. As to any fact material to our opinion, other than those assumed, we have relied without independent investigation on the above-referenced documents and on the accuracy, as of the date hereof, of the matters therein contained. Based on and subject to the foregoing (and the further assumptions set forth below), and limited in all respects to matters of Delaware law, it is our opinion that: 1. The Trust is a duly organized and validly existing business trust in good standing under the laws of the State of Delaware. 2. The Preferred Securities, upon issuance, will constitute validly issued and, subject to the qualifications set forth in paragraph 3 below, fully paid and nonassessable beneficial interests in the trust. 3. Under the Delaware Act and the terms of the Governing Instrument, each Preferred Security Holder of the Trust, in such capacity, will be entitled to the same limitation of personal liability as that extended to stockholders of private corporations for profit organized under the General Corporation Law of the State of Delaware; provided, ATI Financing II June 11, 1998 Page 3 however, we express no opinion with respect to the liability of any Preferred Security Holder who is, was or may become a named Trustee of the Trust. Notwithstanding the foregoing, we note that pursuant to the Governing Instrument, the Trust may withhold amounts otherwise distributable to a Holder and pay over such amounts to the applicable jurisdictions in accordance with federal, state and local law and any amount withheld will be deemed to have been distributed to such Holder and that, pursuant to the Governing Instrument, Preferred Security Holders may be obligated to make payments or provide indemnity or security under the circumstances set forth therein. In connection with the foregoing opinions, we have assumed that at or prior to the time of the issuance and delivery of any applicable Preferred Securities, the registration Statement and any amendments thereto (including post-effective amendments) will have been delivered and remain effective, a prospectus supplement will have been prepared and filed with the commission describing the Preferred Securities offered thereby (the terms of which will be consistent with the requirements of the Governing Instrument), all required approvals for the issuance of such Preferred Securities under the Governing Instrument, the Underwriting Agreement and the Pricing Agreement will be in full force and effect and will not have been modified or rescinded and there shall not have occurred any change in law affecting the validity or enforceability of such Preferred Securities. We have also assumed that none of the terms of any Preferred Security to be established subsequent to the date hereof nor the issuance and delivery of such Preferred Security, nor the compliance by the Trust with the terms of such Preferred Security, will violate any applicable federal or state law or will result in a violation of any provision of any instrument or agreement then binding on the Trust or any restriction imposed by any court or governmental body having jurisdiction over the Trust. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of our name under the heading "LEGAL MATTERS" in the Prospectus and the prospectus supplement relating to the issuance of Preferred Securities. In giving this consent, we do not thereby admit that we come within the category of person whose consent is required under section 7 of the Securities Act of 1933, as amended, or the rules and regulations of the Commission thereunder. This opinion speaks only as of the date hereof and is based on our understandings or assumptions as to present facts, and on our review of the above-referenced documents and the application of Delaware law as the same exist as of the date hereof, and we undertake no obligation to update or supplement this opinion after the date hereof for the benefit of any person or entity with respect to any facts or circumstances that may hereafter come to our attention or any changes in facts or law that may hereafter occur or take effect. This opinion is intended solely for the benefit of the ATI Financing II June 11, 1998 Page 4 addressee hereof in connection with the matters contemplated hereby and may not be relied on by any other person or entity or for any other purpose without our prior written consent. Very truly yours, /s/ MORRIS, NICHOLS, ARSHT & TUNNELL EX-12.1 10 COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES EXHIBIT 12.1 AIRTOUCH COMMUNICATIONS, INC. COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES (Dollars in millions)
Quarter Ended March 31, Ended December 31 --------------- ------------------------------------------------------ 1998 1997 1996 1995 1994 1993 --------------- ---------- --------- --------- --------- --------- EARNINGS Pre-tax income $ 246 $ 714 $ 348 $ 245 $ 206 $ 108 Add back: Minority interests in net income of consolidated wireless systems 42 119 95 36 16 46 Equity in net (income) loss of less-than- fifty-percent-owned unconsolidated wireless systems ( 51) ( 93) 56 28 11 30 Distributed income of less-than-fifty-percent- owned unconsolidated wireless systems 2 284 1 2 1 9 Fixed charges included in reported pre-tax income 27 120 80 33 25 34 -------------- ---------- --------- --------- --------- --------- Total $ 266 $ 1,144 $ 580 $ 344 $ 259 $ 227 ======== ====== ===== ===== ===== ===== FIXED CHARGES Total interest on debt $ 24 $ 103 $ 83 $ 28 $ 11 $ 26 1/3 operating rental expense 8 30 28 20 14 12 Preferred stock dividends (1) 20 85 35 -- -- -- -------------- ---------- --------- --------- --------- --------- Total fixed charges $ 52 $ 218 $ 146 $ 48 $ 25 $ 38 ======== ====== ===== ===== ===== ===== RATIO OF EARNINGS TO FIXED CHARGES 5.1 5.2 4.0 7.2 10.4 6.0 ======== ====== ===== ===== ===== ===== (1) Preferred stock dividends were increased to amounts of pre-tax earnings that would be required to cover such dividends based on the effective income tax rates for the periods presented. These after-tax dividend amounts were $14 million for the quarter ended March 31, 1998, $54 million for the year ended December 31, 1997, and $20 million for the year ended December 31, 1996.
EX-15.1 11 LETTER RE UNAUDITED INTERIM FINANCIAL INFO EXHIBIT 15.1 June 11, 1998 Securities and Exchange Commission 450 Fifth Street, N.W. Washington, D.C. 20549 Ladies and Gentlemen: We are aware that AirTouch Communications, Inc. has incorporated by reference our report dated May 4, 1998 (issued pursuant to the provisions of Statement on Auditing Standards No. 71) in the Prospectus constituting part of its Registration Statement on Form S-3 to be filed on or about June 11, 1998. We are also aware of our responsibilities under the Securities Act of 1933. Yours very truly, /s/ PRICE WATERHOUSE LLP EX-23.1 12 CONSENT OF INDEPENDENT ACCOUNTANTS EXHIBIT 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in the Prospectus constituting part of this Registration Statement on Form S-3 of our report dated March 2, 1998 which appears on page 29 of the 1997 Annual Report to Stockholders of AirTouch Communications, Inc., which is incorporated by reference in AirTouch Communications, Inc.'s Annual Report on Form 10-K for the year ended December 31, 1997. We also consent to the incorporation by reference of our report on the Financial Statement Schedule, which appears on page X-1 of such Annual Report on Form 10-K. We also consent to the reference to us under the heading "Experts" in such Propectus. /s/ PRICE WATERHOUSE LLP San Francisco, California June 11, 1998 EX-23.2 13 CONSENT OF INDEPENDENT AUDITORS EXHIBIT 23.2 CONSENT OF INDEPENDENT AUDITORS We consent to the reference of our firm under caption "Experts" in the Registration Statement (Form S-3) and related Prospectus of AirTouch Communications, Inc., ATI Financing I, and ATI Financing II for the registration of Common Stock, Preferred Stock, Depositary Shares, Debt Securities, Common Stock Warrants, Preferred Stock Warrants, Third Party Warrants, Debt Warrants, Stock Purchase Contracts, Stock Purchase Units and Other Units and to the incorporation by reference of our report dated February 16, 1996 with respect to the consolidated financial statements and schedule of Cellular Communications, Inc. incorporated by reference in AirTouch Communications, Inc.'s Annual Report (Form 10-K) for the year ended December 31, 1997. /s/ Ernst & Young LLP New York, New York June 9, 1998 EX-23.3 14 CONSENT OF INDEPENDENT AUDITORS EXHIBIT 23.3 CONSENT OF INDEPENDENT AUDITORS We consent to the incorporation by reference in the registration statement on Form S-3 of AirTouch Communications, Inc., ATI Financing I, and ATI Financing II of our report, dated February 16, 1998 relating to the financial statements of Mannesman Mobilfunk GmbH included in AirTouch Communications, Inc.'s Annual Report on Form 10-K for the year ended December 31, 1997. Dusseldorf, Germany, June 11, 1998 KPMG Deutsche Treuhand-Gesellschaft Aktiengesellschaft Wirtschaftsprufungsgesellschaft /s/ Scheffler /s/ Haas Wirtschaftsprufer Wirtschaftsprufer EX-23.4 15 CONSENT OF INDEPENDENT ACCOUNTS EXHIBIT 23.4 CONSENT OF INDEPENDENT ACCOUNTANTS We consent to the incorporation by reference, in the Registration Statement on Form S-3 of AirTouch Communications, Inc. of our report dated February 23, 1998, on our audits of the consolidated financial statements and financial statement schedule of CMT Partners as of December 31, 1997, 1996, and 1995, which report is included in AirTouch Communications, Inc.'s 1997 Annual Report on Form 10-K. We also consent to the reference to our firm under the caption "Experts." /s/ Coopers & Lybrand L.L.P. San Francisco, California June 11, 1998 EX-23.5 16 CONSENT OF INDEPENDENT AUDITORS EXHIBIT 23.5 CONSENT OF INDEPENDENT AUDITORS We consent to the reference of our firm under caption "Experts" in the Registration Statement (Form S-3) and related Prospectus of AirTouch Communications, Inc., ATI Financing I, and ATI Financing II for the registration of Common Stock, Preferred Stock, Depositary Shares, Debt Securities, Common Stock Warrants, Preferred Stock Warrants, Third Party Warrants, Debt Warrants, Stock Purchase Contracts, Stock Purchase Units and Other Units and to the incorporation by reference of our report dated February 16, 1996 with respect to the consolidated financial statements and schedule of NewPar, (a Partnership), incorporated by reference in the Annual Report (Form 10-K) of AirTouch Communications, Inc. for the year ended December 31, 1997. /s/ Ernst & Young LLP Columbus, Ohio June 11, 1998 EX-23.6 17 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS EXHIBIT 23.6 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this Registration Statement on Form S-3 of our report dated January 24, 1997, on the financial statements of Kansas Combined Cellular incorporated by reference in the Annual Report on Form 10-K of AirTouch Communications, Inc. for the year ended December 31, 1997 and to all references to our firm included in this Registration Statement. /s/ Arthur Andersen LLP Kansas City, Missouri, June 11, 1998 EX-23.7 18 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS EXHIBIT 23.7 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this registration statement of our report dated February 12, 1998, as it relates to U S WEST NewVector Group, Inc. and Subsidiaries, included in AirTouch Communications, Inc.'s Form 8-K/A-1, date of report: April 6, 1998, as amended, and to all references to our Firm included in this registration statement. It should be noted that we have not audited any financial statements of the Company subsequent to December 31, 1997, or performed any audit procedures subsequent to the date of our report. /s/ Arthur Andersen LLP Denver, Colorado June 9, 1998 -----END PRIVACY-ENHANCED MESSAGE-----