1
EXHIBIT 1.2
================================================================================
AIRTOUCH COMMUNICATIONS, INC.
EQUITY SECURITIES
_________
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
================================================================================
2
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.
-1-
3
2. Representations and Covenants. AirTouch represents to, and covenants
with, each Underwriter that:
(a) AirTouch meets the requirements for the use of Form S-3
and a registration statement on Form S-3 (Registration No. 33-__),
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 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 (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 proposed amendments thereof and
supplements thereto relating to the
-2-
4
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; 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.
(c) Neither AirTouch nor any of its affiliates does
business with the government of Cuba or with any person or affiliate
located in Cuba within the meaning of Section 517.075, Florida
Statutes.
3. Delivery and Payment. Delivery of and payment for the Designated
Securities shall be made at the office of counsel to 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
-3-
5
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.
-4-
6
(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 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, 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,
-5-
7
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:
(1) The representations of AirTouch in this
Agreement are true and correct in all material respects on
and as of the Closing Date with the same effect as if made on
the Closing Date, and AirTouch has complied with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
(2) No stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings
for that purpose have been instituted and are pending or, to
his or her knowledge, threatened as of such date; and
(3) Since the date of the most recent financial
statements included in 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 [Coopers & Xxxxxxx LLP][Price
Waterhouse] a letter, dated the Closing Date, which letter shall be in
form as may be agreed upon among such Underwriters or Representative,
AirTouch and [Coopers & Xxxxxxx LLP][Price Waterhouse], 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
-6-
8
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 party to represent the indemnified
party within a reasonable time after notice of commencement of the action or
-7-
9
(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
-8-
10
Representative set forth in or made pursuant to this Agreement will remain in
full force and effect, regardless of any investigation made by or on behalf of
any Underwriter, AirTouch or any of the officers, directors or controlling
persons referred to in Section 7 hereof, and will survive delivery of and
payment for the Securities. The provisions of Sections 5(e) and 7 hereof shall
survive the termination or cancellation of this Agreement.
10. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any Designated Securities agreed to be purchased
by such Underwriter or Underwriters hereunder and such failure to purchase
shall constitute a default in the performance of its or their obligations under
this Agreement, the remaining Underwriters shall be obligated severally to take
up and pay for (in the respective proportions which the amount of Designated
Securities set forth opposite their names in the appropriate schedule of the
Underwriting Agreement bears to the aggregate amount of Designated Securities
set forth opposite the names of all the remaining Underwriters) the Designated
Securities which the defaulting Underwriter or Underwriters agreed but failed
to purchase; provided, however, that in the event that the aggregate amount of
Designated Securities which the defaulting Underwriter or Underwriters agreed
but failed to purchase shall exceed 10% of the amount of Designated Securities
set forth in the appropriate schedule of the Underwriting Agreement, the
remaining Underwriters shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Designated Securities, and if such
nondefaulting Underwriters do not purchase all the Designated Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter or
AirTouch. In the event of a default by any Underwriter as set forth in this
Section 10, the Closing Date shall be postponed for such period, not exceeding
seven days, as the Representative or Underwriters, as the case may be, shall
determine in order that the required changes in the Registration Statement and
the Prospectus or in any other documents or arrangements may be effected.
Nothing contained in this Agreement shall relieve any defaulting Underwriter of
its liability, if any, to AirTouch and any nondefaulting Underwriter for
damages occasioned by its default hereunder.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 7 hereof,
and no other person will have any right or obligation hereunder.
12. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
-9-
11
EXHIBIT A
[FORM OF PILLSBURY MADISON & SUTRO 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 1 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.
12
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 on 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 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 (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.
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
13
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 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,
