SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A/A
AMENDMENT NO. 2
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
VODAFONE AIRTOUCH PUBLIC LIMITED COMPANY
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(Exact name of registrant as specified in its charter)
ENGLAND AND WALES NONE
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(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
THE COURTYARD
2-4 LONDON ROAD
NEWBURY, BERKSHIRE RG14 1JX ENGLAND
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(Address of principal executive offices) (Zip Code)
If this form relates to the registration of a class of securities pursuant
to Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), check the following box |X|
If this form relates to the registration of a class of securities pursuant
to Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), check the following box |_|
Securities Act registration statement file number to which this form
relates: (if applicable).
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Securities registered pursuant to Section 12(b) of the Act:
Title of Each Class Name Of Each Exchange On Which
To Be So Registered Each Class Is To Be Registered
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ORDINARY SHARES OF NOMINAL VALUE $0.10 EACH NEW YORK STOCK EXCHANGE*
AMERICAN DEPOSITARY SHARES (EVIDENCED BY NEW YORK STOCK EXCHANGE
AMERICAN DEPOSITARY RECEIPTS), EACH
REPRESENTING TEN ORDINARY SHARES
* Not for trading, but only in connection with the registration of American
Depositary Shares, pursuant to the requirements of the Securities and
Exchange Commission.
Securities to be registered pursuant to Section 12(g) of the Act:
NONE
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(Title of Class)
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
DESCRIPTION OF VODAFONE AIRTOUCH ORDINARY SHARES
GENERAL
The following information is a summary of the material terms of the
ordinary shares as set out in the Memorandum and Articles of Association of
Vodafone AirTouch Public Limited Company ("Vodafone AirTouch") as presently in
effect, which became effective upon the consummation of the merger of a
subsidiary of Vodafone Group Public Limited Company ("Vodafone") with and into
AirTouch Communications, Inc. ("AirTouch") on June 30, 1999. You are encouraged
to read the actual Memorandum and Articles of Association which are filed as
Exhibit 2.1 to Amendment No. 1 to Vodafone AirTouch's Form 8-A/A filed with the
Commission on June 30, 1999.
Many Vodafone AirTouch ordinary shares, including those issued in
exchange for AirTouch common stock in the Vodafone-subsidiary/AirTouch merger,
are held in the form of Vodafone AirTouch ADSs, each of which represents ten
Vodafone AirTouch ordinary shares. The Amended and Restated Deposit Agreement
among The Bank of New York, Vodafone AirTouch, AirTouch and ADS holders governs
the rights of holders of Vodafone AirTouch ADSs as described in "DESCRIPTION OF
VODAFONE AIRTOUCH AMERICAN DEPOSITARY SHARES." You should be aware that these
rights are different from the rights of the holders of Vodafone AirTouch
ordinary shares.
All of the issued Vodafone AirTouch ordinary shares are fully paid.
Vodafone AirTouch ordinary shares are represented in certificated form and also
in uncertificated form under "CREST". CREST is an electronic settlement system
in the United Kingdom which enables Vodafone AirTouch ordinary shares to be
evidenced other than by a physical certificate and transferred electronically
rather than by delivery of a physical certificate. Vodafone AirTouch ordinary
shares:
o may be represented by certificates in registered form issued (subject
to the terms of issue of the shares) following issuance or receipt of
the form of transfer bearing the appropriate stamp duty by Vodafone
AirTouch registrars, Computershare Services PLC, P.O. Box 82, Caxton
House, Redcliffe Way, Bristol, BS99 7NH, England;
o may be in uncertificated form with the relevant CREST member
account being credited with the Vodafone AirTouch ordinary shares
issued or transferred; or
o may be in the form of bearer shares.
Under English law, persons who are neither residents nor nationals of
the U.K. may freely hold, vote and transfer Vodafone AirTouch ordinary shares in
the same manner and under the same terms as U.K. residents or nationals.
SHARE CAPITAL
Upon consummation of the merger with AirTouch, the ordinary share
capital of Vodafone AirTouch was redenominated from a nominal value of 5p to a
nominal value of U.S.$0.10. There are no material differences between ordinary
shares denominated in pounds sterling and ordinary shares denominated in U.S.
dollars.
The authorized share capital of Vodafone AirTouch is $4,080,000,000 and
(pound)50,000.
DIVIDENDS
Holders of Vodafone AirTouch ordinary shares may, by ordinary
resolution, declare dividends but may not declare dividends in excess of the
amount recommended by the directors. The directors may also pay interim
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dividends. No dividend may be paid other than out of profits available for
distribution. Dividends on Vodafone AirTouch ordinary shares will be announced
and paid in pounds sterling. Dividends with respect to Vodafone AirTouch ADSs
held by the depositary will be converted by the depositary into U.S. dollars,
and the depositary will distribute them to the holders of Vodafone AirTouch
ADSs.
The Vodafone AirTouch Memorandum and Articles of Association permit a
scrip dividend scheme or schemes under which holders of Vodafone AirTouch
ordinary shares may be given the opportunity to elect to receive fully paid
Vodafone AirTouch ordinary shares instead of cash, or a combination of shares
and cash, with respect to future dividends.
VOTING RIGHTS
Vodafone AirTouch's Memorandum and Articles of Association provide that
voting on special and extraordinary resolutions at a general meeting shall be
decided on a poll. On a poll, each shareholder who is entitled to vote and be
present in person or by proxy has one vote for every share held. Ordinary
resolutions shall be decided on a show of hands, where each shareholder who is
present at the meeting has one vote regardless of the number of shares held,
unless a poll is demanded. In addition, Vodafone AirTouch's Memorandum and
Articles of Association allow persons appointed as proxies of shareholders
entitled to vote at general meetings to vote on a show of hands, as well as to
vote on a poll and attend and speak at general meetings. Holders of Vodafone
AirTouch ordinary shares do not have cumulative voting rights. An extraordinary
resolution at a separate meeting of Vodafone AirTouch ordinary shareholders,
requiring an affirmative vote of at least 75% of the votes cast in person or, if
on a poll, in person or by proxy, is necessary under the Vodafone AirTouch
Memorandum and Articles of Association with respect to any proposal to vary the
rights of ordinary shareholders.
Under English law, two shareholders present in person constitute a
quorum for purposes of a general meeting, unless a company's articles of
association specify otherwise. The Vodafone AirTouch Memorandum and Articles of
Association do not specify otherwise, except that the shareholders do not need
to be present in person, and may instead be present by proxy, to constitute a
quorum.
Under English law, shareholders of a public company such as Vodafone
AirTouch are not permitted to pass resolutions by written consent.
Record holders of Vodafone AirTouch ADSs are entitled to attend, speak
and vote on a poll or a show of hands at any general meeting of Vodafone
AirTouch shareholders by the depositary's appointment of them as proxies with
respect to the underlying Vodafone AirTouch ordinary shares represented by their
Vodafone AirTouch ADSs. Alternatively, holders of Vodafone AirTouch ADSs are
entitled to vote by supplying their voting instructions to the depositary or its
nominee, who will vote the Vodafone AirTouch ordinary shares underlying their
Vodafone AirTouch ADSs in accordance with their instructions. In addition,
holders of record of ordinary shares may appoint a proxy including a beneficial
owner of those shares to attend, speak and vote on their behalf.
LIQUIDATION RIGHTS
In the event of the liquidation of Vodafone AirTouch, after payment of
all liabilities and the deduction of any provision made under Section 719 of the
U.K. Companies Act 1985 or Section 187 of the U.K. Insolvency Act 1986, which
enables the liquidator to make payments to employees or former employees on the
cessation or transfer of Vodafone AirTouch's business, the holders of the
Vodafone AirTouch "B" 7% cumulative fixed rate shares would be entitled to a sum
equal to the capital paid up on such shares in priority to holders of Vodafone
AirTouch ordinary shares.
PREEMPTIVE RIGHTS AND NEW ISSUES OF SHARES
Under Section 80 of the U.K. Companies Act, directors are, with certain
exceptions, unable to allot relevant securities without the authority of the
shareholders in a general meeting. Relevant securities as defined in the U.K.
Companies Act includes Vodafone AirTouch
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ordinary shares or securities convertible into Vodafone AirTouch ordinary
shares. In addition, Section 89 of the U.K. Companies Act imposes further
restrictions on the issue of equity securities (as defined in the U.K. Companies
Act, which includes Vodafone AirTouch ordinary shares and securities convertible
into ordinary shares) which are, or are to be, paid up wholly in cash and not
first offered to existing shareholders. Vodafone AirTouch's Memorandum and
Articles of Association allow shareholders to authorize directors for a period
up to five years to allot (1) relevant securities generally up to an amount
fixed by the shareholders and (2) equity securities for cash other than in
connection with a rights issue. In accordance with institutional investor
guidelines, the amount of relevant securities to be fixed by shareholders is
normally restricted to one third of the existing issued ordinary share capital,
and the amount of equity securities to be issued for cash other than in
connection with a rights issue is restricted to 5% of the existing issued
ordinary share capital.
DISCLOSURE OF INTERESTS IN SHARES
The U.K. Companies Act gives Vodafone AirTouch the power to require
persons who it believes to have, or to have acquired within the previous three
years, an interest in its voting shares, to disclose certain information with
respect to those interests. Failure to supply the information required may lead
to disenfranchisement of the relevant shares and a prohibition on their transfer
and receipt of dividends and payments in respect of those shares. In this
context, the term "interest" is widely defined and will generally include an
interest of any kind whatsoever in voting shares, including any interest of a
holder of a Vodafone AirTouch ADS.
CHANGES IN CAPITAL
The Vodafone AirTouch ordinary shareholders may pass an ordinary
resolution to do any of the following:
(1) consolidate, or consolidate and then divide, all or any of
Vodafone AirTouch's share capital into new shares of larger
nominal amounts than its existing shares;
(2) cancel any shares which have not, at the date of the relevant
resolution, been subscribed or agreed to be subscribed by any
person and reduce the amount of Vodafone AirTouch's authorized
share capital by the amount of the shares so canceled;
(3) divide some or all of Vodafone AirTouch's shares into shares of a
smaller nominal amount; and
(4) increase Vodafone AirTouch's share capital.
Vodafone AirTouch is also able to:
(1) with the authority of shareholders by ordinary or special
resolution, depending on the circumstances relating to the purchase,
purchase its own shares; and
(2) by special resolution and, where required by the U.K. Companies Act,
with the sanction of the court, reduce its share capital, any
capital redemption reserve, share premium account or any other
undistributable reserve.
TRANSFER OF SHARES
Except as described in this paragraph, the Vodafone AirTouch Memorandum
and Articles of Association does not restrict the transferability of Vodafone
AirTouch ordinary shares. Vodafone AirTouch ordinary shares are able to be
transferred by an instrument in any usual form or in any form acceptable to the
directors. The directors may refuse to register a transfer:
(1) if the shares to be transferred are not fully paid;
(2) if the transfer is not stamped and duly presented for registration,
together with the share certificate and evidence of title as the
directors reasonably require;
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(3) if the transfer is with respect to more than one class of shares;
(4) if the transfer is in favor of more than four persons jointly; or
(5) in certain circumstances, if the holder has failed to provide the
required particulars to the investigating power referred to under
"--Disclosure of Interests in Shares" above.
Vodafone AirTouch may not refuse to register transfers of Vodafone
AirTouch ordinary shares if this refusal would prevent dealings in the shares on
the London Stock Exchange from taking place on an open and proper basis. The
registration of transfers may be suspended at any time and for any period as the
directors may determine. The register of shareholders may not be closed for more
than 30 days in any year.
GENERAL MEETINGS AND NOTICES
A shareholder who is not registered on Vodafone AirTouch's register of
shareholders with an address in the U.K. and who has not supplied to Vodafone
AirTouch an address within the U.K. for the purpose of giving notice will not be
entitled to receive notices from Vodafone AirTouch. In certain circumstances,
Vodafone AirTouch will be able to give notices to shareholders by advertisement
in newspapers in the U.K. Holders of Vodafone AirTouch ADSs are entitled to
receive notices under the terms of the deposit agreement relating to Vodafone
AirTouch ADSs. See "DESCRIPTION OF VODAFONE AIRTOUCH AMERICAN DEPOSITARY
SHARES--Voting Rights." Under the Vodafone AirTouch Memorandum and Articles of
Association, the annual general meeting of shareholders shall be held within 15
months after the preceding annual general meeting and at a time and place
determined by the directors.
AMENDMENT OF GOVERNING INSTRUMENTS
Under English law, shareholders have the power to amend
(1) the objects, or purpose, clause in a company's memorandum of
association and
(2) any provisions of the company's articles of association
by special resolution, subject to, in the case of amendments to the objects
clause of the memorandum of association, the right of dissenting shareholders to
apply to the courts to cancel the amendments.
Under English law, the board of directors is not authorized to change
the memorandum of association or the articles of association.
Amendments affecting the rights of the holders of any class of shares
may, depending on the rights attached to the class and the nature of the
amendments, also require approval by extraordinary resolution of the classes
affected in separate class meetings.
SHAREHOLDER PROPOSALS AND SHAREHOLDER NOMINATIONS OF DIRECTORS
Under English law, shareholders may demand that a resolution be voted on
at a general meeting if the demand is made
(1) by shareholders holding at least 5% of the voting power of shares
having a right to vote on the resolution, or
(2) by at least 100 shareholders holding shares on which there has been
paid up an average sum per shareholder of at least (pound)100.
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The shareholders must deposit the demand at the company's registered
office at least six weeks before the general meeting to which it relates.
In general, resolutions to appoint directors must be put to shareholders
on the basis of one resolution for each nominated director. A resolution
including more than one director may be presented to be voted upon at a general
meeting only if the shareholders have first unanimously approved so doing.
SHAREHOLDERS' VOTES ON CERTAIN TRANSACTIONS
The U.K. Companies Act provides for schemes of arrangement, which are
arrangements or compromises between a company and any class of shareholders or
creditors and used in certain types of reconstructions, amalgamations, capital
reorganizations or takeovers. These arrangements require the approval at a
special meeting convened by order of the court of
(1) shareholders or creditors representing 75% in value of the capital
held by or debt owed to the class of shareholders or creditors or
class thereof present and voting, either in person or by proxy, and
(2) the court.
Once approved and sanctioned, all shareholders and creditors of the relevant
class are bound by the terms of the scheme, and a dissenting shareholder would
have no appraisal rights.
Under the rules of the London Stock Exchange, shareholder approval
(1) is usually required for an acquisition or disposal by a listed
company if, generally, the size of the company or business to be
acquired or disposed of represents 25% or more of the size of the
listed company, and
(2) may also be required for an acquisition or disposal of assets
between a listed company and parties, including
(a) directors of the company or its subsidiaries,
(b) holders of 10% of the nominal value of any class of the
company's or any holding company's or its subsidiary's
shares having the right to vote, or
(c) any of their affiliates.
The U.K. Companies Act also provides
(1) that where a takeover offer is made for the shares of a U.K.
company, and
(2) within four months of the date of the offer, the offeror has
acquired or contracted to acquire at least nine-tenths in value of
the shares of any class to which the offer relates, the offeror may,
within two months of reaching the nine-tenths level, require
shareholders who do not accept the offer to transfer their shares on
the terms of the offer. A dissenting shareholder may object to the
transfer or its proposed terms by applying to the court within six
weeks of the date on which notice of the transfer was given. In the
absence of fraud or oppression, the court is unlikely to order that
the acquisition not take effect, but it may specify terms of the
transfer that it finds appropriate. A minority shareholder is also
entitled in these circumstances, in the alternative, to require the
offeror to acquire his shares on the terms of the offer.
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RIGHTS OF INSPECTION
Except when closed under the provisions of the U.K. Companies Act, the
register and index of names of shareholders of an English company may be
inspected during business hours
(1) for free, by its shareholders, including, in the case of Vodafone
AirTouch, holders of Vodafone AirTouch ADSs and
(2) for a fee by any other person.
In both cases, the documents may be copied for a fee.
The shareholders of an English public company may also inspect, without
charge, during business hours
(1) minutes of meetings of the shareholders and obtain copies of the
minutes for a fee, and
(2) service contracts of the company's directors, if the contracts have
more than 12 months unexpired or require more than 12 months' notice
to terminate.
In addition, the published annual accounts of a public company are
required to be available for shareholders at a general meeting and a shareholder
is entitled to a copy of these accounts. The shareholders of Vodafone AirTouch
do not have rights to inspect the accounting records of Vodafone AirTouch or
minutes of meetings of its directors.
REMOVAL OF DIRECTORS
Under the U.K. Companies Act, shareholders may remove a director without
cause by ordinary resolution, irrespective of any provisions of the company's
articles of association or of a service contract the director has with the
company, provided that 28 clear days' notice of the resolution is given to the
company.
The Memorandum and Articles of Association of Vodafone AirTouch provide
that all directors who have been in office for three years of more since they
were elected or re-elected will retire from office. These retired directors will
be eligible for reelection.
SHAREHOLDERS' SUITS
While English law only permits a shareholder to initiate a lawsuit on
behalf of the company in limited circumstances, the U.K. Companies Act permits
a shareholder whose name is on the register of shareholders of the company to
apply for a court order
(1) when the company's affairs are being or have been conducted in a
manner unfairly prejudicial to the interests of all or some
shareholders, including the shareholder making the claim or
(2) when any act or omission of the company is or would be so
prejudicial.
A court has wide discretion in granting relief and may authorize civil
proceedings to be brought in the name of the company by a shareholder on terms
that the court directs. Except in these limited circumstances, English law does
not generally permit class action lawsuits by shareholders on behalf of the
company or on behalf of other shareholders.
In order to become a shareholder and enforce these rights under English
law, holders of Vodafone AirTouch ADSs are required to withdraw from the
depositary at least one of their Vodafone AirTouch ordinary shares underlying
the Vodafone AirTouch ADSs. See "DESCRIPTION OF VODAFONE AIRTOUCH AMERICAN
DEPOSITARY SHARES--Deposit, Withdrawal and Cancellation" for information about
how to withdraw Vodafone AirTouch ordinary shares.
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REGISTRAR
The registrar for Vodafone AirTouch ordinary shares is Computershare
Services PLC, P.O. Box 82, Caxton House, Redcliffe Way, Bristol, BS99 7NH.
DESCRIPTION OF VODAFONE AIRTOUCH AMERICAN DEPOSITARY SHARES
GENERAL
The Bank of New York is the depositary with respect to Vodafone AirTouch
American Depositary Shares, or ADSs. Each ADS is represented by one American
Depositary Receipt or ADR and represents ownership interests in, and the right
to receive, ten Vodafone AirTouch ordinary shares. The ordinary shares are
deposited with the custodian, which currently is the London office of The Bank
of New York. Each ADS also represents securities, cash or other property
deposited with The Bank of New York but not distributed to ADS holders. The Bank
of New York's Corporate Trust Office is located at 101 Barclay Street, New York,
New York, 10286, its principal executive office is located at One Wall Street,
New York, New York 10286, and the custodian's office is located at 46 Berkeley
Street, London W1X 6AA, England.
Because The Bank of New York is actually the legal owner of the
underlying ordinary shares, holders of Vodafone AirTouch ADSs generally exercise
the rights of a shareholder through it, although they have the option to attend,
speak and vote at shareholder meetings as its proxy, as described below. An
amended and restated deposit agreement among Vodafone AirTouch, AirTouch, The
Bank of New York and holders of Vodafone AirTouch ADSs sets out the obligations
of The Bank of New York. New York law governs the deposit agreement and the
Vodafone AirTouch American depositary receipts evidencing the ADSs.
Holders of Vodafone AirTouch ADSs may hold their ADSs either directly or
indirectly through a broker or financial institution. This description assumes
that holders of Vodafone AirTouch ADSs hold their ADSs directly. Indirect
holders of Vodafone AirTouch ADSs must rely on the procedures of their broker or
financial institution to assert the rights of ADS holders described in this
section. Indirect holders of ADSs should consult with their broker or financial
institution to find out what those procedures are.
The following is a summary of the deposit agreement. Because it is a
summary, it does not contain all the information that may be important to ADS
holders. For more complete information, ADS holders should read the entire
agreement and the Vodafone AirTouch ADR. Copies of the agreement and the
Vodafone AirTouch ADR are available for inspection at the Corporate Trust Office
of the depositary and at the London office of the custodian set forth above.
SHARE DIVIDENDS AND OTHER DISTRIBUTIONS
The Bank of New York will pay ADS holders the cash dividends or other
distributions it or the custodian receives on shares or other deposited
securities, after deducting its fees and expenses. ADS holders will receive
these distributions in proportion to the number of ordinary shares their ADSs
represent.
o Cash. The Bank of New York will, as promptly as practicable after
payment, convert any cash dividend or distribution Vodafone AirTouch
pays on the shares, other than any dividend or distribution paid in
U.S. dollars, into U.S. dollars. If that is not possible on a
reasonable basis, or if any approval from any government is needed and
cannot be obtained, the agreement allows The Bank of New York to
distribute the pounds sterling only to those ADS holders to whom it is
possible to do so or to hold the pounds sterling it cannot convert for
the account of the ADS holders who have not been paid. It will not
invest the pounds sterling and it will not be liable for any interest.
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Before making a distribution, The Bank of New York will deduct any
withholding taxes that must be paid under applicable laws. It will
distribute only whole U.S. dollars and cents and will round any
fractional amounts to the nearest whole cent.
o Shares. The Bank of New York will distribute new ADSs representing any
shares Vodafone AirTouch distributes as a dividend or free
distribution, if Vodafone AirTouch requests it to make this
distribution. The Bank of New York will only distribute whole ADSs. It
may sell shares which would require it to issue a fractional ADS and
distribute the net proceeds to the holders entitled to those shares.
If The Bank of New York does not distribute additional cash or ADSs,
each ADS will also represent the new shares.
o Rights to Receive Additional Shares. If Vodafone AirTouch offers
holders of securities any rights, including rights to subscribe for
additional shares, The Bank of New York may take actions necessary to
make these rights available to ADS holders. If The Bank of New York
determines that it is not legal or not feasible to make these rights
available to ADS holders, The Bank of New York may sell the rights and
allocate the net proceeds to holders' accounts. The Bank of New York
may allow rights that are not distributed or sold to lapse.
If The Bank of New York makes rights available to ADS holders, upon
instruction from an ADS holder it will exercise the rights and
purchase the shares on the holder's behalf. The Bank of New York will
then deposit the shares and issue ADSs to the holder. It will only
exercise rights if the ADS holder pays it the exercise price and any
charges the rights require the ADS holder to pay.
U.S. securities laws may restrict the sale, deposit, cancellation, and
transfer of the ADSs issued after exercise of rights. In this case,
The Bank of New York may issue the ADSs under a separate restricted
deposit agreement which will contain the same provisions as the
agreement, except for changes needed to put the restrictions in place.
The Bank of New York will not offer ADS holders rights unless those
rights and the securities to which the rights relate are either exempt
from registration or have been registered under the Securities Act of
1933 with respect to a distribution to them. Vodafone AirTouch will
have no obligation to register under the Securities Act of 1933 those
rights or the securities to which they relate.
o Other Distributions. The Bank of New York will send to ADS holders
anything else Vodafone AirTouch distributes on deposited securities by
any means The Bank of New York thinks is legal, fair and practical. If
it cannot make the distribution in that way, The Bank of New York may
decide to sell what Vodafone AirTouch distributed--for example by
public or private sale--and distribute the net proceeds, in the same
way as it does with cash.
Vodafone AirTouch has no obligation to take any other action to permit
the distribution of ADSs, shares, rights or anything else to ADS holders.
DEPOSIT, WITHDRAWAL AND CANCELLATION
The Bank of New York will issue ADSs if a Vodafone AirTouch shareholder
or the shareholder's broker deposits ordinary shares, along with any appropriate
instruments of transfer, or endorsement, with the custodian. The Bank of New
York may also require a shareholder to deliver evidence of any necessary
approvals of the governmental agency in England, if any, which is responsible
for regulating currency exchange at that time, and an agreement transferring the
shareholder's right to receive dividends or other property. Upon payment of its
fees and of any taxes or charges, such as stamp taxes or stock transfer taxes or
fees, The Bank of New York will register the appropriate number of ADSs in the
names the shareholder requests and will issue book-entry ADSs or, if the
shareholder specifically requests, deliver the ADSs at its Corporate Trust
Office to the persons the shareholder requests.
An ADS holder may submit a written request to withdraw ordinary shares
and turn in the holder's certificated ADSs, if any, at the Corporate Trust
Office of The Bank of New York. Any deposited securities that the ADS holder
withdraws will be delivered to the holder in registered form. Upon payment of
its fees and of any taxes or
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charges, such as stamp taxes or stock transfer taxes or fees, The Bank of New
York will deliver the deposited securities underlying the ADSs at the office of
the custodian, except that The Bank of New York may deliver at its Corporate
Trust Office any dividends or distributions with respect to the deposited
securities represented by the ADSs, or any proceeds from the sale of any
dividends, distributions or rights, which may be held by The Bank of New York.
Alternatively, at the ADS holder's request, risk and expense, The Bank of New
York will deliver the deposited securities at its Corporate Trust Office in New
York City.
VOTING RIGHTS
An ADS holder on a record date fixed by The Bank of New York may attend,
speak and vote at Vodafone AirTouch shareholder meetings of holders of the same
class of securities as the ordinary shares represented by the ADSs.
The Bank of New York will enable an ADS holder to attend, speak and vote
at a meeting by appointing such holder its proxy for the ordinary shares
underlying the holder's ADSs. If the ADS holder does not wish to attend a
meeting, the holder may appoint The Bank of New York or another person as a
substitute proxy to attend, speak and vote on the holder's behalf.
Indirect holders of ADSs, e.g., those that hold Vodafone AirTouch ADSs
through a brokerage account or otherwise in "street name", are not entitled to
attend or speak at a meeting, but are able to vote their ADSs through the
depositary.
The Bank of New York will notify ADS holders of shareholder meetings and
arrange to deliver certain materials to them. The materials will (1) describe
the meeting time, place and the matters to be voted on and (2) explain how ADS
holders may instruct The Bank of New York to vote their shares or deposited
securities underlying their ADSs as they direct if they choose to appoint The
Bank of New York as their substitute proxy, or how they may appoint a different
substitute proxy. For instructions to be valid, The Bank of New York must
receive them on or before the date specified in the instructions. The Bank of
New York will, to the extent practical, subject to applicable law and the
provisions of the Memorandum and Articles of Association of Vodafone AirTouch,
vote the underlying ordinary shares as an ADS holder instructs. The Bank of New
York will only vote as an ADS holder instructs.
Although the depositary will try to send the notice of the vote
reasonably in advance of a shareholder meeting, Vodafone AirTouch will not be
able to assure that ADS holders will receive the voting materials in time to
ensure that they can attend, speak and vote at a meeting, instruct The Bank of
New York to vote their shares or appoint a different substitute proxy. In
addition, The Bank of New York and its agents are not responsible for failing to
carry out voting instructions or for the manner of carrying out voting
instructions.
FEES AND EXPENSES
FOR: ADS HOLDERS MUST PAY:
o Each issuance of an ADS, including as a $5.00 (or less) per 100 ADSs
result of a distribution of shares or
rights or other property
o Each cancellation of an ADS, including $5.00 (or less) per 100 ADSs
if the deposit agreement terminates
o Transfer and registration of ordinary Registration or transfer fees
shares on Vodafone AirTouch's share
register from an ADS holder's name to
the name of The Bank of New York or
its agent when the holder deposits or
withdraws shares
o Conversion of pounds sterling to Expenses of The Bank of New York
U.S. dollars
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o Cable, telex and facsimile transmission Expenses of The Bank of New York
expenses, if expressly provided in the
agreement
o As necessary Certain taxes and governmental
charges The Bank of New York or
the custodian has to pay on any
ADS or ordinary share underlying
an ADS, for example, stock
transfer taxes, stamp duty
reserve tax or withholding taxes
PAYMENT OF TAXES
The Bank of New York may deduct the amount of any taxes owed from any
payments to an ADS holder. It may also restrict the transfer of the holder's
ADSs or restrict the withdrawal of underlying deposited securities until the ADS
holder pays any taxes owed on the holder's ADSs or underlying securities. It may
also sell deposited securities to pay any taxes owed. The ADS holder will remain
liable if the proceeds of the sale are not enough to pay the taxes. If The Bank
of New York sells deposited securities, it will, if appropriate, reduce the
number of ADSs held by the ADS holder to reflect the sale and pay to the holder
any proceeds, or send to the holder any property, remaining after it has paid
the taxes.
RECLASSIFICATIONS, RECAPITALIZATIONS AND MERGERS
If Vodafone AirTouch:
o Changes the nominal or par value of any of the Vodafone AirTouch ordinary
shares
o Reclassifies, splits or consolidates any of the Vodafone AirTouch ordinary
shares
o Distributes securities on any of the Vodafone AirTouch ordinary shares that
are not distributed to ADS holders, or
o Recapitalizes, reorganizes, merges, consolidates, sells its assets, or takes
any similar action,
then:
(1) The cash, shares or other securities received by The Bank of New York
will become new deposited securities under the deposit agreement, and
each ADS will automatically represent its equal share of the new
deposited securities; and
(2) The Bank of New York will, if Vodafone AirTouch asks it to, issue new
ADSs or ask ADS holders to surrender their outstanding ADSs in exchange
for new ADSs identifying the new deposited securities.
DISCLOSURE OF INTERESTS
The obligation of a holder of Vodafone AirTouch ordinary shares and
other persons with an interest in the shares to disclose information to Vodafone
AirTouch under English law also applies to any persons with an interest in the
ADSs. The consequences for failure to comply with these provisions will be the
same for ADS holders and any other persons with an interest in ADSs as for a
holder of Vodafone AirTouch ordinary shares. See "DESCRIPTION OF VODAFONE
AIRTOUCH ORDINARY SHARES--Disclosure of Interests in Shares."
AMENDMENT AND TERMINATION
Vodafone AirTouch may agree with The Bank of New York to amend the
deposit agreement and the Vodafone AirTouch ADRs for any reason without the
consent of ADS holders. If the amendment adds or increases fees or
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charges, except for taxes and governmental charges, or prejudices an important
right of ADS holders, it will only become effective three months after The Bank
of New York notifies the holders of the amendment. At the time an amendment
becomes effective, ADS holders are considered, by continuing to hold their ADS,
to agree to the amendment and to be bound by the agreement as amended. However,
no amendment will impair an ADS holder's right to receive the deposited
securities in exchange for the holder's ADSs.
The Bank of New York will terminate the deposit agreement if Vodafone
AirTouch asks it to do so, in which case it must notify ADS holders at least 30
days before termination. The Bank of New York may also terminate the agreement
after notifying ADS holders if The Bank of New York informs Vodafone AirTouch
that it would like to resign and Vodafone AirTouch does not appoint a new
depositary bank within 90 days.
If any ADSs remain outstanding after termination, The Bank of New York
will stop registering the transfer of ADSs, will stop distributing dividends to
ADS holders, and will not give any further notices or do anything else under the
deposit agreement other than:
(1) collect dividends and distributions on the deposited securities,
(2) sell rights and other property offered to holders of deposited
securities, and
(3) deliver ordinary shares and other deposited securities upon
cancellation of ADSs.
At any time after six months after termination of the deposit agreement,
The Bank of New York may sell any remaining deposited securities. After that,
The Bank of New York will hold the money it received on the sale, as well as any
cash it is holding under the agreement, for the pro rata benefit of the ADS
holders that have not surrendered their ADSs. It will not invest the money and
has no liability for interest. The Bank of New York's only obligations will be
to account for the money and cash. After termination, Vodafone AirTouch's only
obligations will be with respect to indemnification of, and to pay specified
amounts to, The Bank of New York.
ADS HOLDERS' RIGHT TO RECEIVE THE SHARES UNDERLYING THEIR ADSS
An ADS holder has the right to cancel the holder's ADSs and withdraw the
underlying shares at any time except:
o due to temporary delays caused by The Bank of New York or
Vodafone AirTouch closing its transfer books, the deposit of
ordinary shares in connection with voting at a shareholders'
meeting, or the payment of dividends;
o when the holder owes money to pay fees, taxes and similar charges; or
o when it is necessary to prohibit withdrawals in order to comply
with any laws or governmental regulations that apply to ADSs or
to the withdrawal of ordinary shares or other deposited
securities.
This right of withdrawal may not be limited by any provision of the
deposit agreement.
LIMITATIONS ON OBLIGATIONS AND LIABILITY TO ADS HOLDERS
The deposit agreement expressly limits the obligations of Vodafone
AirTouch and The Bank of New York. It also limits the liability of Vodafone
AirTouch and The Bank of New York. Vodafone AirTouch and The Bank of New York:
o are only obligated to take the actions specifically set forth in the
deposit agreement without negligence or bad faith;
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o are not liable if either of them is prevented or delayed by law,
any provision of the Vodafone AirTouch Memorandum and Articles of
Association or circumstances beyond their control from performing
their obligations under the agreement;
o are not liable if either of them exercises, or fails to exercise,
discretion permitted under the agreement;
o have no obligation to become involved in a lawsuit or proceeding
related to the ADSs or the deposit agreement on your behalf or on
behalf of any other party unless they are indemnified to their
satisfaction; and
o may rely upon any advice of or information from any legal
counsel, accountants, any person depositing ordinary shares, any
ADS holder or any other person whom they believe in good faith is
competent to give them that advice or information.
In the deposit agreement, Vodafone AirTouch and The Bank of New York
agree to indemnify each other under specified circumstances.
REQUIREMENTS FOR DEPOSITARY ACTIONS
Before The Bank of New York issues or registers the transfer of an ADS,
makes a distribution on an ADS, or permits withdrawal of ordinary shares,
Vodafone AirTouch or The Bank of New York may require:
o payment of taxes, including stamp duty reserve and stock transfer
taxes or other governmental charges, and transfer or registration
fees charged by third parties for the transfer of any shares or
other deposited securities, as well as the fees and expenses of
The Bank of New York;
o production of satisfactory proof of the identity of the person
presenting ordinary shares for deposit or ADSs upon withdrawal,
and of the genuineness of any signature or other information they
deem necessary; and
o compliance with regulations The Bank of New York may establish
consistent with the deposit agreement, including presentation of
transfer documents.
The Bank of New York may refuse to deliver, transfer, or register
transfers of ADSs generally when the transfer books of The Bank of New York are
closed or at any time if The Bank of New York or Vodafone AirTouch thinks it
advisable to do so.
PRE-RELEASE OF ADSs
The Bank of New York may issue ADSs before deposit of the underlying
ordinary shares. This is called a pre-release of ADSs. The Bank of New York may
also deliver ordinary shares prior to the receipt and cancellation of
pre-released ADSs even if the ADSs are canceled before the pre-release
transaction has been closed out. A pre-release is closed out as soon as the
underlying ordinary shares are delivered to The Bank of New York. The Bank of
New York may receive ADSs instead of ordinary shares to close out a pre-release.
The Bank of New York may pre-release ADSs only under the following conditions:
(1) before or at the time of the pre-release, the person to whom
the pre-release is being made must represent to The Bank of New York in
writing that it or its customer, as the case may be,
(a) owns the ordinary shares or ADSs to be remitted,
(b) will assign all beneficial rights, title and interest
in the ADSs or ordinary shares to The Bank of New York in its
capacity as the depositary and for the benefit of the holders of
the ADSs and
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(c) will not take any action with respect to the ADSs or
ordinary shares that is inconsistent with the assignment of
beneficial ownership (including, without the consent of The Bank
of New York, disposing of the ADSs or ordinary shares) other than
in satisfaction of the pre-release;
(2) the pre-release must be fully collateralized with cash or
collateral that The Bank of New York considers appropriate; and
(3) The Bank of New York must be able to close out the
pre-release on not more than five business days' notice.
The pre-release will be subject to whatever indemnities and credit
regulations that The Bank of New York considers appropriate. In addition, The
Bank of New York will limit the number of ADSs that may be outstanding at any
time as a result of pre-release.
ITEM 2. EXHIBITS
The following exhibits were included as exhibits to Amendment No. 1 to
Vodafone AirTouch's Form 8-A/A filed with the Commission on June 30, 1999.
1.1 Specimen Certificate of Vodafone AirTouch Public Limited Company Ordinary
Share.
1.2 Specimen American Depositary Receipt.
2.1 Memorandum and Articles of Association of the Registrant as in effect
beginning June 30, 1999.
2.2 Deposit Agreement, dated as of October 12, 1988, as amended and restated as
of December 26, 1989, as further amended and restated as of September 16,
1991, and as further amended and restated as of June 30, 1999, among
Vodafone AirTouch Public Limited Company, AirTouch Communications, Inc.,
The Bank of New York, as Depositary, and owners and beneficial owners of
American Depositary Receipts of Vodafone AirTouch Public Limited Company.
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SIGNATURES
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the Registrant has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized.
VODAFONE AIRTOUCH PUBLIC
LIMITED COMPANY
Date: July 30, 1999 By: /s/ Kenneth J. Hydon
-----------------------
Name: Kenneth J. Hydon
Title: Financial Director