<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
SCHEDULE 14D-1
TENDER OFFER STATEMENT PURSUANT TO SECTION 14(D)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
CELLULAR COMMUNICATIONS INTERNATIONAL, INC.
(Name of Subject Company)
OLIVETTI S.P.A.
MANNESMANN AG
KENSINGTON ACQUISITION SUB, INC.
(Bidders)
COMMON STOCK, PAR VALUE $0.01 PER SHARE
(Title of Class)
150918 10 0
(CUSIP Number of Class of Securities)
------------------------
DR. KURT J. KINZIUS
MANNESMANN AG
MANNESMANNUFER 2
40213 DUSSELDORF
GERMANY
TELEPHONE: 49-211-820-2400
and
MARCO DE BENEDETTI
OLIVETTI S.P.A.
VIA LORENTEGGIO 257
20152 MILAN
ITALY
TELEPHONE: 39-2-4836-6701
WITH A COPY TO:
NEIL NOVIKOFF, ESQ.
WILLKIE FARR & GALLAGHER
787 SEVENTH AVENUE, NEW YORK, NEW YORK 10019-6099
TELEPHONE: (212) 728-8000, FACSIMILE: (212) 728-8111
------------------------
CALCULATION OF FILING FEE
<TABLE>
<S> <C>
TRANSACTION VALUATION* $1,433,328,040.00 AMOUNT OF FILING FEE $286,665.61
</TABLE>
* Estimated for purposes of calculating the amount of the filing fee only. The
filing fee calculation assumes the purchase of 21,799,666 shares of common
stock, $0.01 par value per share (the "Shares"), of Cellular Communications
International, Inc. at a price of $65.75 per Share in cash, without
interest. The filing fee calculation is based on the 16,715,306 Shares
outstanding as of November 30, 1998 and assumes the issuance prior to the
consummation of the Offer (as defined herein) of 5,084,360 Shares upon the
exercise of outstanding options and other rights and securities exercisable
into Shares. The amount of the filing fee calculated in accordance with
Regulation 240.0-11 of the Securities Exchange Act of 1934, as amended,
equals 1/50th of one percent of the value of the transaction.
/ / Check box if any part of the fee is offset as provided by Rule 0-11(a)(2)
and identify the filing with which the offsetting fee was previously paid.
Identify the previous filing by registration statement number, or the form
or schedule and the date of its filing.
<TABLE>
<S> <C>
Amount Previously Paid: Not applicable. Filing Party: Not applicable.
Form or Registration No.: Not applicable. Date Filed: Not applicable.
</TABLE>
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- --------------------------------------------------------------------------------
<PAGE>
14D-1
CUSIP NO. 150918 10 0
<TABLE>
<C> <S>
1. NAMES OF REPORTING PERSONS AND S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Kensington Acquisition Sub, Inc.
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [ ]
3. SEC USE ONLY
4. SOURCE OF FUNDS
AF
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(e) OR 2(f)
[ ]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
None
8. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES CERTAIN SHARES [ ]
9. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (7)
10. TYPE OF REPORTING PERSON
CO
</TABLE>
2
<PAGE>
14D-1
CUSIP NO. 150918 10 0
<TABLE>
<C> <S>
1. NAMES OF REPORTING PERSONS AND S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Olivetti S.p.A.
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [ ]
3. SEC USE ONLY
4. SOURCE OF FUNDS
WC
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(e) OR
2(f) [ ]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Italy
7. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
None
8. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES CERTAIN SHARES [ ]
9. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (7)
10. TYPE OF REPORTING PERSON
CO
</TABLE>
3
<PAGE>
14D-1
CUSIP NO. 150918 10 0
<TABLE>
<C> <S>
1. NAMES OF REPORTING PERSONS AND S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Mannesmann AG
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [ ]
3. SEC USE ONLY
4. SOURCE OF FUNDS
WC
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(e) OR 2(f)
[ ]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Germany
7. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
None
8. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES CERTAIN SHARES [ ]
9. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (7)
10. TYPE OF REPORTING PERSON
CO
</TABLE>
4
<PAGE>
TENDER OFFER
This Tender Offer Statement on Schedule 14D-1 (this "Statement") relates to
the offer by Kensington Acquisition Sub, Inc., a Delaware corporation
("Purchaser"), to purchase all of the outstanding shares of common stock, par
value $0.01 per share (the "Common Stock"), including the associated preferred
stock purchase rights issued pursuant to the Rights Agreement, dated as of
December 19, 1990, by and between the Company and Continental Stock Transfer and
Trust Company, Rights Agent (the "Rights" and, together with the Common Stock,
the "Shares"), of Cellular Communications International, Inc., a Delaware
corporation (the "Company"), at $65.75 per Share, net to the seller in cash,
without interest, upon the terms and subject to the conditions set forth in the
Offer to Purchase dated December 17, 1998 (the "Offer to Purchase"), a copy of
which is attached hereto as Exhibit (a)(1), and in the related Letter of
Transmittal, a copy of which is attached hereto as Exhibit (a)(2) (which, as
amended or supplemented from time to time, together constitute the "Offer").
Purchaser is owned as to 50% of its outstanding capital stock by Olivetti
S.p.A., a limited liability company organized under the laws of Italy
("Olivetti"), and as to 50% of its outstanding capital stock by Mannesmann AG, a
limited liability company organized under the laws of Germany ("Mannesmann"),
and was formed solely to effect the Offer and the transaction contemplated
thereby.
ITEM 1. SECURITY AND SUBJECT COMPANY.
(a) The name of the subject company is Cellular Communications
International, Inc., and the address of its principal executive offices is 110
East 59th Street, New York, New York 10022. The telephone number of the Company
at such location is (212) 906-8480.
(b) The information set forth in the "INTRODUCTION" of the Offer to Purchase
is incorporated herein by reference.
(c) The information set forth in "Price Range of the Shares; Dividends" of
the Offer to Purchase is incorporated herein by reference.
ITEM 2. IDENTITY AND BACKGROUND.
(a)-(d), (g) This Statement is being filed by Purchaser, Olivetti and
Mannesmann. The information set forth in the "INTRODUCTION" and "Certain
Information Concerning Purchaser, Olivetti and Mannesmann" of the Offer to
Purchase is incorporated herein by reference. The name, business address,
present principal occupation or employment, the material occupations, positions,
offices or employments for the past five years and citizenship of each director
and executive officer of Purchaser, Olivetti and Mannesmann, and the name of any
corporation or other organization in which such occupations, positions, offices
and employments are or were carried on are set forth in Schedule I to the Offer
to Purchase and incorporated herein by reference.
(e)-(f) During the last five years, none of Purchaser, Olivetti or
Mannesmann nor, to the best knowledge of Purchaser, Olivetti and Mannesmann, any
of the persons or entities listed in Schedule I to the Offer to Purchase (i)
have been convicted in a criminal proceeding (excluding traffic violations or
similar misdemeanors) or (ii) was a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction as a result of which any such
person was or is subject to a judgment, decree or final order enjoining future
violations of, or prohibiting activities subject to, federal or state securities
laws or finding any violation of such laws.
ITEM 3. PAST CONTACTS, TRANSACTIONS OR NEGOTIATIONS WITH THE SUBJECT COMPANY.
(a)(1) Other than the transactions described in Item 3(b) below, none of
Purchaser, Olivetti or Mannesmann nor, to the best knowledge of Purchaser,
Olivetti and Mannesmann, any of the persons or entities listed in Schedule I to
the Offer to Purchase have entered into any transaction with the Company, or any
of the Company's affiliates which are corporations, since the commencement of
the Company's third full fiscal year preceding the date of this Statement, the
aggregate amount of which was equal to or greater than one percent of the
consolidated revenues of the Company for (i) the fiscal year in which such
5
<PAGE>
transaction occurred or (ii) the portion of the current fiscal year which has
occurred if the transaction occurred in such year.
(a)(2) Other than the transactions described in Item 3(b) below, none of
Purchaser, Olivetti or Mannesmann nor, to the best knowledge of Purchaser,
Olivetti and Mannesmann, any of the persons or entities listed in Schedule I to
the Offer to Purchase have entered into any transaction since the commencement
of the Company's third full fiscal year preceding the date of this Statement
with the executive officers, directors or affiliates of the Company which are
not corporations, in which the aggregate amount involved in such transaction or
in a series of similar transactions, including all periodic installments in the
case of any lease or other agreement providing for periodic payments or
installments, exceeded $40,000.
(b) The information set forth in the "INTRODUCTION," "Certain Information
Concerning Purchaser, Olivetti and Mannesmann," "Background of the Offer;
Purpose of the Offer and the Merger; The Merger Agreement and Certain Other
Agreements" and "Plans for the Company; Other Matters" of the Offer to Purchase
is incorporated herein by reference.
ITEM 4. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
(a)-(b) The information set forth in the "INTRODUCTION" and "Source and
Amount of Funds" of the Offer to Purchase is incorporated herein by reference.
(c) Not applicable.
ITEM 5. PURPOSE OF THE TENDER OFFER AND PLANS OR PROPOSALS OF THE BIDDERS.
(a)-(e) The information set forth in the "INTRODUCTION," "Background of the
Offer; Purpose of the Offer and the Merger; The Merger Agreement and Certain
Other Agreements" and "Plans for the Company; Other Matters" of the Offer to
Purchase is incorporated herein by reference.
(f)-(g) The information set forth in the "INTRODUCTION" and "Effect of the
Offer on the Market for the Shares; Nasdaq National Market Designation; Exchange
Act Registration; Margin Regulations" of the Offer to Purchase is incorporated
herein by reference.
ITEM 6. INTEREST IN SECURITIES OF THE SUBJECT COMPANY.
(a)-(b) The information set forth in the "INTRODUCTION," "Certain
Information Concerning Purchaser, Olivetti and Mannesmann" and "Background of
the Offer; Purpose of the Offer and the Merger; The Merger Agreement and Certain
Other Agreements" of the Offer to Purchase is incorporated herein by reference.
ITEM 7. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO
THE SUBJECT COMPANY'S SECURITIES.
The information set forth in the "INTRODUCTION," "Certain Information
Concerning Purchaser, Olivetti and Mannesmann," "Source and Amount of Funds,"
"Background of the Offer; Purpose of the Offer and the Merger; The Merger
Agreement and Certain Other Agreements," "Plans for the Company; Other Matters"
and "Fees and Expenses" of the Offer to Purchase is incorporated herein by
reference.
ITEM 8. PERSONS RETAINED, EMPLOYED OR TO BE COMPENSATED.
The information set forth in "Fees and Expenses" of the Offer to Purchase is
incorporated herein by reference.
ITEM 9. FINANCIAL STATEMENTS OF CERTAIN BIDDERS.
Not applicable.
ITEM 10. ADDITIONAL INFORMATION.
(a) Except as disclosed in Items 3 and 7 above, there are no present or
proposed material contracts, arrangements, understandings or relationships
between Purchaser, Olivetti or Mannesmann, or to the best
6
<PAGE>
knowledge of Purchaser, Olivetti and Mannesmann, any of the persons or entities
listed in Schedule I to the Offer to Purchase, and the Company or any of its
executive officers, directors, controlling persons or subsidiaries.
(b)-(c) The information set forth in the "INTRODUCTION," "Conditions to the
Offer" and "Certain Legal Matters" of the Offer to Purchase is incorporated
herein by reference.
(d) The information set forth in "Effect of the Offer on the Market for the
Shares; Nasdaq National Market Designation; Exchange Act Registration; Margin
Regulations" and "Certain Legal Matters" of the Offer to Purchase is
incorporated herein by reference.
(e) None.
(f) The information set forth in the Offer to Purchase and the Letter of
Transmittal, copies of which are attached hereto as Exhibits (a)(1) and (a)(2),
respectively, to the extent not otherwise incorporated herein by reference, is
incorporated herein by reference.
ITEM 11. MATERIALS TO BE FILED AS EXHIBITS.
<TABLE>
<S> <C>
(a)(1) Offer to Purchase, dated December 17, 1998.
(a)(2) Letter of Transmittal.
(a)(3) Notice of Guaranteed Delivery.
(a)(4) Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.
(a)(5) Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies
and Other Nominees.
(a)(6) Guidelines for Certification of Taxpayer Identification Number on Substitute Form
W-9.
(a)(7) Press Release of Olivetti and Mannesmann dated December 11, 1998.
(a)(8) Press Release of Olivetti and Mannesmann dated December 17, 1998.
(a)(9) Summary Advertisement.
(b) None.
(c)(1) Agreement and Plan of Merger, dated as of December 11, 1998, by and between
Purchaser and the Company.
(c)(2) Stockholders Agreement, dated as of December 11, 1998, by and among Purchaser, the
Company and certain stockholders of the Company.
(c)(3) Option Agreement, dated as of December 11, 1998, by and between Purchaser and the
Company.
(c)(4) Guarantee, dated as of December 11, 1998, by and among Olivetti, Mannesmann and
the Company.
(c)(5) Confidentiality Agreement, dated December 1, 1998, by and between Olivetti,
Mannesmann and the Company.
(d) None.
(e) Not applicable.
(f) None.
</TABLE>
7
<PAGE>
SIGNATURE
After due inquiry and to the best of its knowledge and belief, the
undersigned certify that the information set forth in this statement is true,
complete and correct.
Dated: December 17, 1998
<TABLE>
<S> <C>
KENSINGTON ACQUISITION SUB, INC.
By: /s/ MARCO DE BENEDETTI
---------------------------------------------
Name: Marco De Benedentti
Title: Co-President and Co-Secretary
By: /s/ DR. KURT KINZIUS
---------------------------------------------
Name: Dr. Kurt Kinzius
Title: Co-President and Co-Secretary
OLIVETTI S.P.A.
By: /s/ ROBERTO COLANINNO
---------------------------------------------
Name: Roberto Colaninno
Title: Chief Executive Officer
MANNESMANN AG
By: /s/ DR. GOETZ MUELLER
---------------------------------------------
Name: Dr. Goetz Mueller
Title: Executive Vice President
By: /s/ DR. JOACHIM PETERS
---------------------------------------------
Name: Dr. Joachim Peters
Title: Counsel
</TABLE>
8
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
SEQUENTIAL
EXHIBIT PAGE NO.
- --------- ---------
<S> <C> <C>
(a)(1) Offer to Purchase, dated December 17, 1998.
(a)(2) Letter of Transmittal.
(a)(3) Notice of Guaranteed Delivery.
(a)(4) Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other
Nominees.
(a)(5) Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.
(a)(6) Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9.
(a)(7) Press Release of Olivetti and Mannesmann dated December 11, 1998.
(a)(8) Press Release of Olivetti and Mannesmann dated December 17, 1998.
(a)(9) Summary Advertisement.
(c)(1) Agreement and Plan of Merger, dated as of December 11, 1998, by and between
Purchaser and the Company.
(c)(2) Stockholders Agreement, dated as of December 11, 1998, by and among
Purchaser, the Company and certain stockholders of the Company.
(c)(3) Option Agreement, dated as of December 11, 1998, by and between Purchaser
and the Company.
(c)(4) Guarantee, dated as of December 11, 1998, by and among Olivetti, Mannesmann
and the Company.
(c)(5) Confidentiality Agreement, dated December 1, 1998, by and between Parent
and the Company.
(d) None.
(e) Not Applicable.
(f) None.
</TABLE>
9
<PAGE>
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED PREFERRED STOCK PURCHASE RIGHTS)
OF
CELLULAR COMMUNICATIONS INTERNATIONAL, INC.
AT
$65.75 NET PER SHARE
BY
KENSINGTON ACQUISITION SUB, INC.
A WHOLLY-OWNED SUBSIDIARY OF
OLIVETTI S.P.A.
AND
MANNESMANN AG
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON FRIDAY, JANUARY 15, 1999, UNLESS THE OFFER IS EXTENDED.
THE OFFER IS BEING MADE PURSUANT TO AN AGREEMENT AND PLAN OF MERGER, DATED
AS OF DECEMBER 11, 1998, BY AND BETWEEN KENSINGTON ACQUISITION SUB, INC.
("PURCHASER") AND CELLULAR COMMUNICATIONS INTERNATIONAL, INC. (THE "COMPANY").
THE BOARD OF DIRECTORS OF THE COMPANY HAS UNANIMOUSLY APPROVED THE MERGER
AGREEMENT AND THE TRANSACTIONS CONTEMPLATED THEREBY, INCLUDING THE OFFER AND THE
MERGER, AND HAS UNANIMOUSLY DETERMINED THAT THE OFFER AND THE MERGER ARE FAIR
TO, AND IN THE BEST INTERESTS OF, THE COMPANY'S STOCKHOLDERS AND UNANIMOUSLY
RECOMMENDS THAT THE STOCKHOLDERS ACCEPT THE OFFER AND TENDER THEIR SHARES
PURSUANT TO THE OFFER.
--------------------------
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, THERE BEING VALIDLY
TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION OF THE OFFER THAT NUMBER OF
SHARES WHICH REPRESENTS AT LEAST A MAJORITY OF THE TOTAL NUMBER OF SHARES
OUTSTANDING ON A FULLY DILUTED BASIS ON THE DATE SHARES ARE ACCEPTED FOR
PAYMENT. THE OFFER ALSO IS SUBJECT TO THE OTHER CONDITIONS SET FORTH IN THIS
OFFER TO PURCHASE. SEE SECTION 14.
--------------------------
IMPORTANT
Any stockholder desiring to tender all or any portion of such stockholder's
Shares (as defined herein) should either (i) complete and sign the enclosed
Letter of Transmittal (or a facsimile thereof) in accordance with the
Instructions in the Letter of Transmittal, have such stockholder's signature
thereon guaranteed (if required by Instruction 1 to the Letter of Transmittal),
mail or deliver the Letter of Transmittal (or a facsimile thereof) and any other
required documents to the Depositary (as defined herein) and either deliver the
certificates for such Shares to the Depositary or tender such Shares pursuant to
the procedure for book-entry transfer set forth in Section 3 of this Offer to
Purchase or (ii) request such stockholder's broker, dealer, commercial bank,
trust company or other nominee to effect the transaction for such stockholder.
Any stockholder whose Shares are registered in the name of a broker, dealer,
commercial bank, trust company or other nominee must contact such broker,
dealer, commercial bank, trust company or other nominee to tender such Shares.
Any stockholder who desires to tender Shares and whose certificates
evidencing such Shares are not immediately available, or who cannot comply with
the procedures for book-entry transfer on a timely basis, or who cannot deliver
all required documents to the Depositary prior to the expiration of the Offer,
may tender such Shares by following the procedures for guaranteed delivery set
forth in Section 3 of this Offer to Purchase.
Questions and requests for assistance may be directed to the Information
Agent (as defined herein) at its address and telephone number set forth on the
back cover of this Offer to Purchase. Requests for additional copies of this
Offer to Purchase, the Letter of Transmittal, the Notice of Guaranteed Delivery
and other tender offer materials may be directed to the Information Agent or
brokers, dealers, commercial banks or trust companies.
--------------------------
THE DEALER MANAGERS FOR THE OFFER ARE:
GOLDMAN, SACHS & CO. LEHMAN BROTHERS
December 17, 1998
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
INTRODUCTION................................................................................. 1
THE OFFER.................................................................................... 4
1. Terms of the Offer................................................................ 4
2. Acceptance for Payment and Payment................................................ 5
3. Procedures for Tendering Shares................................................... 6
4. Withdrawal Rights................................................................. 9
5. Certain U.S. Federal Income Tax Consequences...................................... 9
6. Price Range of the Shares; Dividends.............................................. 10
7. Effect of the Offer on the Market for the Shares; Nasdaq National Market
Designation; Exchange Act Registration; Margin Regulations........................ 11
8. Certain Information Concerning the Company........................................ 12
9. Certain Information Concerning Purchaser, Olivetti and Mannesmann................. 14
10. Sources and Amount of Funds....................................................... 17
11. Background of the Offer; Purpose of the Offer and the Merger; the Merger Agreement
and Certain Other Agreements...................................................... 17
12. Plans for the Company; Other Matters.............................................. 31
13. Dividends and Distributions....................................................... 33
14. Conditions to the Offer........................................................... 33
15. Certain Legal Matters............................................................. 34
16. Fees and Expenses................................................................. 37
17. Miscellaneous..................................................................... 37
</TABLE>
SCHEDULE I -- Information Concerning Directors And Executive Officers Of
Purchaser, Olivetti and Mannesmann
<PAGE>
TO THE HOLDERS OF COMMON STOCK OF
CELLULAR COMMUNICATIONS INTERNATIONAL, INC.:
INTRODUCTION
Kensington Acquisition Sub, Inc., a Delaware corporation ("Purchaser"),
hereby offers to purchase all outstanding shares of common stock, par value
$0.01 per share (the "Common Stock"), including the associated preferred stock
purchase rights issued pursuant to the Rights Agreement (as defined below) (the
"Rights" and, together with the Common Stock, "Shares"), of Cellular
Communications International, Inc., a Delaware corporation (the "Company"), at a
price of $65.75 per Share, net to the seller in cash, without interest (the
"Offer Price"), upon the terms and subject to the conditions set forth in this
Offer to Purchase and in the related Letter of Transmittal (which, as amended or
supplemented from time to time, collectively constitute the "Offer").
Purchaser was formed in connection with the Offer and the transaction
contemplated thereby. Purchaser is owned as to 50% of its outstanding capital
stock by Olivetti S.p.A., a limited liability company organized under the laws
of Italy ("Olivetti"), and as to 50% of its outstanding capital stock by
Mannesmann AG, a limited liability company organized under the laws of Germany
("Mannesmann"). For information concerning Olivetti and Mannesmann, see Section
9.
Tendering stockholders of record who tender Shares directly will not be
obligated to pay brokerage fees or commissions or, except as set forth in
Instruction 6 of the Letter of Transmittal, stock transfer taxes on the purchase
of Shares by Purchaser pursuant to the Offer. Stockholders who hold their Shares
through a bank or broker should check with such institution as to whether they
charge any service fees. Purchaser will pay all fees and expenses of IBJ
Schroder Bank & Trust Company, which is acting as the Depositary (in such
capacity, the "Depositary"), and MacKenzie Partners, Inc., which is acting as
Information Agent (in such capacity, the "Information Agent"), incurred in
connection with the Offer and in accordance with the terms of the agreements
entered into between Purchaser and each such person. See Section 16.
THE BOARD OF DIRECTORS OF THE COMPANY (THE "COMPANY BOARD") HAS UNANIMOUSLY
APPROVED THE MERGER AGREEMENT (AS DEFINED BELOW) AND THE TRANSACTIONS
CONTEMPLATED THEREBY, INCLUDING THE OFFER AND THE MERGER, AND HAS UNANIMOUSLY
DETERMINED THAT THE OFFER AND THE MERGER ARE FAIR TO, AND IN THE BEST INTERESTS
OF, THE COMPANY'S STOCKHOLDERS AND UNANIMOUSLY RECOMMENDS THAT THE STOCKHOLDERS
ACCEPT THE OFFER AND TENDER THEIR SHARES PURSUANT TO THE OFFER.
Wasserstein Perella & Co., Inc. ("Wasserstein Perella"), financial advisor
to the Company, has delivered to the Company Board its written opinion, dated
December 11, 1998 (the "Financial Advisor Opinion"), to the effect that, as of
such date and based upon and subject to certain assumptions, matters and
limitations stated therein, the consideration to be received by the holders of
Shares (other than Purchaser and its affiliates) in the Offer and the Merger was
fair, from a financial point of view, to such holders. A copy of the Financial
Advisor Opinion is attached as an exhibit to the Company's
Solicitation/Recommendation Statement on Schedule 14D-9 (the "Schedule 14D-9"),
which has been filed by the Company with the Securities and Exchange Commission
(the "Commission") in connection with the Offer and which is being mailed to
holders of Shares herewith. Holders of Shares are urged to, and should, read the
Financial Advisor Opinion carefully and in its entirety.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, THERE BEING VALIDLY
TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION OF THE OFFER THAT NUMBER OF
SHARES WHICH REPRESENTS AT LEAST A MAJORITY OF THE TOTAL NUMBER OF SHARES
OUTSTANDING ON A FULLY DILUTED BASIS ON THE DATE THE SHARES ARE ACCEPTED FOR
PAYMENT (THE "MINIMUM CONDITION"). THE OFFER ALSO IS SUBJECT TO THE OTHER
CONDITIONS SET FORTH IN THIS OFFER TO PURCHASE. SEE SECTION 14. As used in this
Offer to Purchase, "fully diluted basis" takes into account the exercise or
conversion of all outstanding options, warrants and other rights and securities
exercisable into Shares. The Company has represented and warranted to Purchaser
that, as of November 30, 1998, there were 16,715,306 Shares issued and
outstanding, 2,274,140 Shares were issuable pursuant to the exercise of options
("Options"), 651,091 Shares were issuable pursuant to the exercise of warrants
("Warrants") and 2,159,129 Shares were issuable pursuant
<PAGE>
to the exercise of conversion rights in respect of the Company's 6% Convertible
Subordinated Notes due 2005 ("Convertible Notes"). The Merger Agreement
provides, among other things, that the Company will not, without the prior
written consent of Purchaser, issue any additional Shares (except upon the
exercise of outstanding Options). See Section 11. Based on the foregoing and
assuming the issuance of 5,084,360 Shares issuable upon the exercise of
outstanding Options, Warrants and Convertible Notes, Purchaser believes that the
Minimum Condition will be satisfied if 10,899,834 Shares are validly tendered
and not withdrawn prior to the Expiration Date.
As a condition and inducement to Purchaser entering into the Merger
Agreement, concurrently with the execution and delivery of the Merger Agreement,
Purchaser and the Company have entered into an Option Agreement, dated as of
December 11, 1998 (the "Option Agreement"), pursuant to which, among other
things, the Company has granted Purchaser an irrevocable option to purchase up
to 4,338,133 newly issued Shares at $65.75 per share (the "Company Option"). The
Company Option only can be exercised under certain circumstances described
herein. See Section 11.
As a condition and inducement to Purchaser entering into the Merger
Agreement, concurrently with the execution and delivery of the Merger Agreement,
Purchaser has entered into a Stockholders Agreement, dated as of December 11,
1998 (the "Stockholders Agreement"), with the Company and certain stockholders
of the Company who beneficially own 2,360,241 Shares in the aggregate, including
Shares issuable upon the exercise of Options. Pursuant to the Stockholders
Agreement, such stockholders have agreed, among other things, to tender validly
pursuant to the Offer all Shares owned by them, representing approximately 4.8%
of the outstanding Shares (approximately 11.7%, assuming exercise of all Options
beneficially owned by them). See Section 11.
As a condition and inducement to Purchaser entering into the Merger
Agreement, concurrently with the execution and delivery of the Merger Agreement,
Olivetti, Mannesmann and the Company have entered into a Guarantee, dated as of
December 11, 1998 (the "Guarantee"), pursuant to which, among other things,
Olivetti and Mannesmann have agreed jointly and severally to guarantee
unconditionally and irrevocably, for the benefit of the Company, the performance
of certain obligations of Purchaser pursuant to the Merger Agreement including
its obligation to purchase shares. Olivetti and Mannesmann have represented in
the Guarantee that they have funds available to them sufficient to purchase, or
cause to be purchased, the Shares in accordance with the terms of the Merger
Agreement.
The Offer is being made pursuant to an Agreement and Plan of Merger, dated
as of December 11, 1998 (the "Merger Agreement"), by and between Purchaser and
the Company. Pursuant to the Merger Agreement and the Delaware General
Corporation Law, as amended (the "DGCL"), no later than the third day after the
completion of the Offer and satisfaction or waiver, if permissible, of all
conditions, including the purchase of Shares pursuant to the Offer (sometimes
referred to herein as the "consummation" of the Offer) and the approval and
adoption of the Merger Agreement by the stockholders of the Company (if required
by applicable law), Purchaser shall be merged with and into the Company (the
"Merger") and the Company will be the surviving corporation in the Merger (the
"Surviving Corporation"). At the effective time of the Merger (the "Effective
Time"), each Share then outstanding, other than Shares held by (i) the Company
or any of its subsidiaries, (ii) Purchaser or any of its subsidiaries and (iii)
stockholders who properly perfect their dissenters' rights under the DGCL, will
be converted into the right to receive $65.75 in cash or any higher price per
Share paid in the Offer (the "Merger Consideration"), without interest. The
Merger Agreement is more fully described in Section 11.
The Merger Agreement provides that, promptly upon the purchase by Purchaser
of any Shares pursuant to the Offer, Purchaser shall be entitled to designate
such number of directors, rounded up to the next whole number, on the Company
Board so that the percentage of Purchaser's nominees on the Company Board equals
the percentage of outstanding Shares beneficially owned by Purchaser and its
affiliates. The Company shall, at such time, upon the request of Purchaser,
promptly use its best efforts to take all action necessary to cause such persons
designated by Purchaser to be elected to the
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Company Board, if necessary, by increasing the size of the Company Board or
securing resignations of incumbent directors or both. See Section 11.
Consummation of the Merger is conditioned upon, among other things, the
approval and adoption by the requisite vote of stockholders of the Company of
the Merger Agreement and the Merger, if required by applicable law, and the
Company's Restated Certificate of Incorporation (the "Certificate of
Incorporation") and the Company's Bylaws (the "Bylaws"). See Section 11. Under
the DGCL and pursuant to the Certificate of Incorporation and the Bylaws, the
affirmative vote of the holders of a majority of the outstanding Shares is the
only vote of any class or series of the Company's capital stock that would be
necessary to approve the Merger Agreement and the Merger at a meeting of the
Company's stockholders. If the Minimum Condition is satisfied and Purchaser
purchases at least a majority of the outstanding Shares in the Offer, Purchaser
will be able to effect the Merger without the affirmative vote of any other
stockholder. Pursuant to the Merger Agreement, Purchaser has agreed to vote the
Shares acquired by it pursuant to the Offer in favor of the Merger. See Section
12. The Merger Agreement is more fully described in Section 11.
Under Section 253 of the DGCL, if a corporation owns at least 90% of the
outstanding shares of each class of a subsidiary corporation, the corporation
holding such stock may merge such subsidiary into itself, or itself into such
subsidiary, without any action or vote on the part of the board of directors or
the stockholders of such other corporation (a "short-form merger"). In the event
that Purchaser acquires in the aggregate at least 90% of the outstanding Shares
pursuant to the Offer or otherwise, then, at the election of Purchaser, a
short-form merger could be effected without any further approval of the Company
Board or the stockholders of the Company. In the Merger Agreement, Purchaser and
the Company have agreed that, notwithstanding that all conditions to the offer
are satisfied or waived as of the scheduled Expiration Date, Purchaser may
extend the Offer for a period not to exceed fifteen (15) business days, subject
to certain conditions, if the Shares tendered pursuant to the Offer are less
than 90% of the outstanding Shares, provided that the Expiration Date may not be
extended beyond May 15, 1999. Even if Purchaser does not own 90% of the
outstanding Shares following consummation of the Offer, Purchaser could seek to
purchase additional shares in the open market or otherwise in order to reach the
90% threshold and employ a short-form merger. The per share consideration paid
for any Shares so acquired in open market purchases may be greater or less than
the Offer Price. Purchaser presently intends to effect a short-form merger, if
permitted to do so under the DGCL, pursuant to which Purchaser will be merged
with and into the Company. See Section 12.
The Company has distributed one Right for each outstanding Share pursuant to
the Rights Agreement, dated as of December 19, 1990, by and between the Company
and Continental Stock Transfer and Trust Company, as Rights Agent (the "Rights
Agreement"). The Company has represented in the Merger Agreement that it has
taken all action necessary under the Rights Agreement so that (i) the execution
of the Merger Agreement, the Option Agreement and the Stockholders Agreement,
and any amendments thereto, and the consummation of the transactions
contemplated thereby shall not cause Purchaser to become an Acquiring Person (as
defined in the Rights Agreement) or a Distribution Date, Stock Acquisition Date
or a Triggering Event (as such terms are defined in the Rights Agreement) to
occur, irrespective of the number of Shares acquired pursuant to the Offer or
exercise of the option granted under the Option Agreement; and (ii) the Rights
shall expire upon the acceptance of the Shares for payment pursuant to the
Offer.
THIS OFFER TO PURCHASE AND THE RELATED LETTER OF TRANSMITTAL CONTAIN
IMPORTANT INFORMATION AND SHOULD BE READ CAREFULLY BEFORE ANY DECISION IS MADE
WITH RESPECT TO THE OFFER.
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THE OFFER
1. TERMS OF THE OFFER. Upon the terms and subject to the conditions of the
Offer (including, if the Offer is extended or amended, the terms and conditions
of such extension or amendment), Purchaser will accept for payment and pay for
all Shares validly tendered prior to the Expiration Date, and not withdrawn in
accordance with Section 4. The term "Expiration Date" shall mean 12:00 Midnight,
New York City time, on Friday, January 15, 1999, unless and until Purchaser, in
accordance with the terms of the Merger Agreement, shall have extended the
period of time during which the Offer is open, in which event the term
"Expiration Date" shall mean the latest time and date at which the Offer, as so
extended by Purchaser, shall expire. In the Merger Agreement, Purchaser has
agreed that if all conditions to Purchaser's obligation to accept for payment
and pay for Shares pursuant to the Offer are not satisfied on the scheduled
Expiration Date, Purchaser may, in its sole discretion, extend the Offer for
additional periods of up to ten (10) business days, provided that the Expiration
Date may not be extended beyond May 15, 1999.
The Offer is conditioned upon the satisfaction of the Minimum Condition, the
expiration or termination of all waiting periods imposed by the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), and the other conditions set forth in Section 14. If such conditions are
not satisfied prior to the Expiration Date, Purchaser reserves the right,
subject to the terms of the Merger Agreement and subject to complying with
applicable rules and regulations of the Commission, to (i) decline to purchase
any Shares tendered in the Offer and terminate the Offer and return all tendered
Shares to the tendering stockholders, (ii) waive any or all conditions to the
Offer (except the Minimum Condition) and, to the extent permitted by applicable
law, purchase all Shares validly tendered, (iii) extend the Offer and, subject
to the right of stockholders to withdraw Shares until the Expiration Date,
retain all Shares which have been tendered during the period or periods for
which the Offer is extended or (iv) subject to the next sentence, amend the
Offer. The Merger Agreement provides that Purchaser will not decrease the Offer
Price, change the form of consideration to be paid in the Offer, waive the
Minimum Condition, decrease the number of Shares sought in the Offer, amend any
other condition to the Offer in any manner materially adverse to the holders of
the Shares or impose additional conditions to the Offer without the written
consent of the Company.
The Merger Agreement requires Purchaser to accept for payment and pay for
all Shares validly tendered and not withdrawn pursuant to the Offer if all
conditions to the Offer are satisfied on the Expiration Date. However, if
immediately prior to the scheduled Expiration Date, all conditions to the Offer
are satisfied but the number of Shares tendered and not withdrawn pursuant to
the Offer constitutes less than 90% of the Shares outstanding, Purchaser may
extend the Offer for a period not to exceed fifteen (15) business days,
notwithstanding that all conditions to the Offer are satisfied as of such
Expiration Date, provided that the Expiration Date may not be extended beyond
May 15, 1999. As used in this Offer to Purchase, "business day" has the meaning
set forth in Rule 14d-1 under the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
Any extension, amendment or termination of the Offer will be followed as
promptly as practicable by public announcement thereof, the announcement in the
case of an extension to be issued no later than 9:00 a.m., New York City time,
on the next business day after the previously scheduled Expiration Date in
accordance with Rules 14d-4(c), 14d-6(d) and 14e-l(d) under the Exchange Act.
Without limiting the obligation of Purchaser under such Rules or the manner in
which Purchaser may choose to make any public announcement, Purchaser currently
intends to make announcements by issuing a press release to the Dow Jones News
Service. UNDER NO CIRCUMSTANCES WILL INTEREST BE PAID ON THE OFFER PRICE TO BE
PAID BY PURCHASER FOR THE SHARES, REGARDLESS OF ANY EXTENSION OF THE OFFER OR
ANY DELAY IN MAKING SUCH PAYMENT.
If Purchaser extends the Offer, or if Purchaser (whether before or after its
acceptance for payment of Shares) is delayed in its purchase of, or payment for,
Shares or is unable to pay for Shares pursuant to
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the Offer for any reason, then, without prejudice to Purchaser's rights under
the Offer, the Depositary may retain tendered Shares on behalf of Purchaser, and
such Shares may not be withdrawn except to the extent tendering stockholders are
entitled to withdrawal rights as described in Section 4. However, the ability of
Purchaser to delay the payment for Shares which Purchaser has accepted for
payment is limited by Rule 14e-1(c) under the Exchange Act, which requires that
a bidder pay the consideration offered or return the securities deposited by, or
on behalf of, holders of securities promptly after the termination or withdrawal
of the Offer.
If Purchaser makes a material change in the terms of the Offer or the
information concerning the Offer or waives a material condition of the Offer,
Purchaser will disseminate additional tender offer materials and extend the
Offer to the extent required by Rules 14d-4(c), 14d-6(d) and 14e-1 under the
Exchange Act. The minimum period during which the Offer must remain open
following material changes in the terms of the Offer or information concerning
the Offer, other than a change in price or a change in percentage of securities
sought, will depend upon the facts and circumstances then existing, including
the relative materiality of the changed terms or information. In a public
release, the Commission has stated its view that an offer must remain open for a
minimum period of time following a material change in the terms of the Offer and
that waiver of a material condition, such as the Minimum Condition, is a
material change in the terms of the Offer. The release states that an offer
should remain open for a minimum of five (5) business days from the date a
material change is first published, or sent or given to security holders and
that, if material changes are made with respect to information not materially
less significant than the offer price and the number of shares being sought, a
minimum of ten (10) business days may be required to allow adequate
dissemination and investor response. The requirement to extend the Offer will
not apply to the extent that the number of business days remaining between the
occurrence of the change and the then-scheduled Expiration Date equals or
exceeds the minimum extension period that would be required because of such
amendment. If, prior to the Expiration Date, Purchaser increases the
consideration offered to holders of Shares pursuant to the Offer, such increased
consideration will be paid to all holders whose Shares are purchased in the
Offer whether or not such Shares were tendered prior to such increase.
The Company has provided Purchaser with the Company's stockholder lists and
security position listings for the purpose of disseminating the Offer to holders
of Shares. This Offer to Purchase and the related Letter of Transmittal will be
mailed to record holders of Shares and will be furnished to brokers, dealers,
banks and similar persons whose names, or the names of whose nominees, appear on
the stockholder lists or, if applicable, who are listed as participants in a
clearing agency's security position listing, for subsequent transmittal to
beneficial owners of Shares.
2. ACCEPTANCE FOR PAYMENT AND PAYMENT. Upon the terms and subject to the
conditions of the Offer (including, if the Offer is extended or amended, the
terms and conditions of any such extension or amendment), Purchaser will accept
for payment and will pay for, as soon as practicable after the Expiration Date,
all Shares validly tendered prior to the Expiration Date and not properly
withdrawn in accordance with Section 4.
For purposes of the Offer, Purchaser will be deemed to have accepted for
payment, and thereby purchased, Shares properly tendered to Purchaser and not
withdrawn, if, as and when Purchaser gives oral or written notice to the
Depositary of Purchaser's acceptance for payment of such Shares. Payment for
Shares accepted for payment pursuant to the Offer will be made by deposit of the
purchase price therefor with the Depositary, which will act as agent for
tendering stockholders for the purpose of receiving payment from Purchaser and
transmitting payment to tendering stockholders. In all cases, payment for Shares
accepted for payment pursuant to the Offer will be made only after timely
receipt by the Depositary of (i) certificates for such Shares (or a timely Book
Entry confirmation (as defined below) with respect thereto), (ii) a Letter of
Transmittal (or facsimile thereof), properly completed and duly executed, with
any required signature guarantees, or, in the case of a book-entry transfer, an
Agent's
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Message (as defined below) and (iii) any other documents required by the Letter
of Transmittal. Accordingly, payment may be made to tendering stockholders at
different times if delivery of the Shares and other required documents occur at
different times. The per share consideration paid to any holder of Shares
pursuant to the Offer will be the highest per share consideration paid to any
other holder of such Shares pursuant to the Offer. UNDER NO CIRCUMSTANCES WILL
INTEREST BE PAID ON THE PURCHASE PRICE TO BE PAID BY PURCHASER FOR THE SHARES,
REGARDLESS OF ANY EXTENSION OF THE OFFER OR ANY DELAY IN MAKING SUCH PAYMENT.
Purchaser expressly reserves the right, in its sole discretion, to delay
acceptance for payment of, or payment for, Shares in order to comply in whole or
in part with any applicable law. If Purchaser is delayed in its acceptance for
payment of, or payment for, Shares or is unable to accept for payment or pay for
Shares pursuant to the Offer for any reason, then, without prejudice to
Purchaser's rights under the Offer (including such rights as are set forth in
Sections 1 and 14) (but subject to compliance with Rule 14e-l(c) under the
Exchange Act), the Depositary may, nevertheless, on behalf of Purchaser, retain
tendered Shares, and such Shares may not be withdrawn except to the extent
tendering stockholders are entitled to exercise, and duly exercise, withdrawal
rights as described in Section 4.
If any tendered Shares are not purchased pursuant to the Offer for any
reason, or if certificates are submitted representing more Shares than are
tendered, certificates evidencing Shares not tendered or not accepted for
purchase will be returned to the tendering stockholder, or such other person as
the tendering stockholder shall specify in the Letter of Transmittal, as
promptly as practicable following the expiration, termination or withdrawal of
the Offer. In the case of Shares delivered by book-entry transfer into the
Depositary's account at the Book-Entry Transfer Facility pursuant to the
procedures set forth in Section 3, such Shares will be credited to such account
maintained at the Book-Entry Transfer Facility as the tendering stockholder
shall specify in the Letter of Transmittal, as promptly as practicable following
the expiration, termination or withdrawal of the Offer. If no such instructions
are given with respect to Shares delivered by book-entry transfer, any such
Shares not tendered or not purchased will be returned by crediting the account
at the Book-Entry Transfer Facility designated in the Letter of Transmittal as
the account from which such Shares were delivered.
Purchaser reserves the right to transfer or assign, in whole or, from time
to time, in part, to one or more of its affiliates, the right to purchase Shares
tendered pursuant to the Offer, but any such transfer or assignment will not
relieve Purchaser of its obligations under the Offer and will in no way
prejudice the rights of tendering stockholders to receive payment for Shares
validly tendered and accepted for payment pursuant to the Offer.
3. PROCEDURES FOR TENDERING SHARES.
VALID TENDER. For Shares to be validly tendered pursuant to the Offer,
either (i) a properly completed and duly executed Letter of Transmittal (or
facsimile thereof), together with any required signature guarantees, or in the
case of a book-entry transfer, an Agent's Message (as defined below), and any
other required documents, must be received by the Depositary at one of its
addresses set forth on the back cover of this Offer to Purchase prior to the
Expiration Date and either certificates evidencing tendered Shares must be
received by the Depositary at one of such addresses or such Shares must be
delivered to the Depositary pursuant to the procedures for book-entry transfer
set forth below and a Book-Entry Confirmation must be received by the
Depositary, in each case prior to the Expiration Date, or (ii) the tendering
stockholder must comply with the guaranteed delivery procedures described below.
BOOK-ENTRY TRANSFER. The Depositary will establish an account with respect
to the Shares at The Depository Trust Company (the "Book-Entry Transfer
Facility") for purposes of the Offer within two (2) business days after the date
of this Offer to Purchase. Any financial institution that is a participant in
the Book-Entry Transfer Facility's system may make book-entry delivery of Shares
by causing the Book-Entry Transfer Facility to transfer such Shares into the
Depositary's account in accordance with
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such Book-Entry Transfer Facility's procedures for such transfer. However,
although delivery of Shares may be effected through book-entry transfer into the
Depositary's account at the Book-Entry Transfer Facility, the Letter of
Transmittal (or facsimile thereof), properly completed and duly executed, with
any required signature guarantees, or an Agent's Message, and any other required
documents must, in any case, be transmitted to, and received by, the Depositary
at one of its addresses set forth on the back cover of this Offer to Purchase
prior to the Expiration Date, or the tendering stockholder must comply with the
guaranteed delivery procedures described below. The confirmation of a book-entry
transfer of Shares into the Depositary's account at the Book-Entry Transfer
Facility as described above is referred to herein as a "Book-Entry
Confirmation." DELIVERY OF THE LETTER OF TRANSMITTAL AND ANY OTHER REQUIRED
DOCUMENTS TO THE BOOK-ENTRY TRANSFER FACILITY WILL NOT CONSTITUTE DELIVERY TO
THE DEPOSITARY.
The term "Agent's Message" means a message transmitted by the Book-Entry
Transfer Facility to, and received by, the Depositary and forming a part of a
Book-Entry Confirmation, which states that such Book-Entry Transfer Facility has
received an express acknowledgment from the participant in such Book-Entry
Transfer Facility tendering the Shares that such participant has received and
agrees to be bound by the terms of the Letter of Transmittal and that Purchaser
may enforce such agreement against such participant.
THE METHOD OF DELIVERY OF SHARES, THE LETTER OF TRANSMITTAL AND ALL OTHER
REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH THE BOOK-ENTRY TRANSFER FACILITY,
IS AT THE ELECTION AND RISK OF THE TENDERING STOCKHOLDER. SHARES WILL BE DEEMED
DELIVERED ONLY WHEN ACTUALLY RECEIVED BY THE DEPOSITARY (INCLUDING, IN THE CASE
OF A BOOK-ENTRY TRANSFER, BY BOOK-ENTRY CONFIRMATION). IF DELIVERY IS BY MAIL,
REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS RECOMMENDED.
IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY.
SIGNATURE GUARANTEES. No signature guarantee is required on the Letter of
Transmittal (i) if the Letter of Transmittal is signed by the registered
holder(s) (which term, for purposes of this Section, includes any participant in
the Book-Entry Transfer Facility's systems whose name appears on a security
position listing as the owner of the Shares) of Shares tendered therewith and
such registered holder has not completed either the box entitled "Special
Delivery Instructions" or the box entitled "Special Payment Instructions" on the
Letter of Transmittal or (ii) if such Shares are tendered for the account of a
financial institution (including most commercial banks, savings and loan
associations and brokerage houses) that is a participant in the Security
Transfer Agents Medallion Program, the New York Stock Exchange Medallion
Signature Guarantee Program or the Stock Exchange Medallion Program (each, an
"Eligible Institution" and, collectively, "Eligible Institutions"). In all other
cases, all signatures on Letters of Transmittal must be guaranteed by an
Eligible Institution. See Instructions 1 and 5 to the Letter of Transmittal. If
the certificates for Shares are registered in the name of a person other than
the signer of the Letter of Transmittal, or if payment is to be made, or
certificates for Shares not tendered or not accepted for payment are to be
returned, to a person other than the registered holder of the certificates
surrendered, then the tendered certificates for such Shares must be endorsed or
accompanied by appropriate stock powers, in either case, signed exactly as the
name or names of the registered holders or owners appear on the certificates,
with the signatures on the certificates or stock powers guaranteed as aforesaid.
See Instruction 5 to the Letter of Transmittal.
GUARANTEED DELIVERY. If a stockholder desires to tender Shares pursuant to
the Offer and such stockholder's certificates for Shares are not immediately
available or the procedures for book-entry transfer cannot be completed on a
timely basis or time will not permit all required documents to reach the
Depositary prior to the Expiration Date, such stockholder's tender may be
effected if all the following conditions are met:
(i) such tender is made by or through an Eligible Institution;
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(ii) a properly completed and duly executed Notice of Guaranteed Delivery,
substantially in the form provided by Purchaser, is received by the
Depositary, as provided below, prior to the Expiration Date; and
(iii) the certificates for (or a Book-Entry Confirmation with respect to)
such Shares, together with a properly completed and duly executed
Letter of Transmittal (or facsimile thereof), with any required
signature guarantees, or, in the case of a book-entry transfer, an
Agent's Message, and any other required documents, are received by the
Depositary within three (3) trading days after the date of execution
of such Notice of Guaranteed Delivery. A "trading day" is any day on
which the Nasdaq Stock Market, Inc's. Nasdaq National Market (the
"Nasdaq National Market") is open for business.
The Notice of Guaranteed Delivery may be delivered by hand to the Depositary
or transmitted by telegram, facsimile transmission or mailed to the Depositary
and must include a guarantee by an Eligible Institution in the form set forth in
such Notice of Guaranteed Delivery.
The valid tender of Shares pursuant to one of the procedures described above
will constitute a binding agreement between the tendering stockholder and
Purchaser upon the terms and subject to the conditions of the Offer.
APPOINTMENT. By executing the Letter of Transmittal as set forth above
(including delivery through an Agent's Message), the tendering stockholder will
irrevocably appoint designees of Purchaser as such stockholder's
attorneys-in-fact and proxies in the manner set forth in the Letter of
Transmittal, each with full power of substitution, to the full extent of such
stockholder's rights with respect to the Shares tendered by such stockholder and
accepted for payment by Purchaser and with respect to any and all non-cash
dividends, distributions, rights, other Shares or other securities issued or
issuable in respect of such Shares on or after December 11, 1998 (collectively,
"Distributions"). All such proxies will be considered coupled with an interest
in the tendered Shares. Such appointment will be effective if, as and when, and
only to the extent that, Purchaser accepts for payment Shares tendered by such
stockholder as provided herein. All such powers of attorney and proxies will be
irrevocable and will be deemed granted in consideration of the acceptance for
payment by Purchaser of Shares tendered in accordance with the terms of the
Offer. Upon such appointment, all prior powers of attorney, proxies and consents
given by such stockholder with respect to such Shares (and any and all
Distributions) will, without further action, be revoked and no subsequent powers
of attorney, proxies, consents or revocations may be given by such stockholder
(and, if given, will not be deemed effective). The designees of Purchaser will
thereby be empowered to exercise all voting and other rights with respect to
such Shares (and any and all Distributions), including, without limitation, in
respect of any annual or special meeting of the Company's stockholders (and any
adjournment or postponement thereof), actions by written consent in lieu of any
such meeting or otherwise, as each such attorney-in-fact and proxy or his
substitute shall in his sole discretion deem proper. Purchaser reserves the
right to require that, in order for Shares to be deemed validly tendered,
immediately upon Purchaser's acceptance for payment of such Shares, Purchaser
must be able to exercise full voting, consent and other rights with respect to
such Shares (and any and all Distributions), including voting at any meeting of
stockholders.
DETERMINATION OF VALIDITY. All questions as to the validity, form,
eligibility (including time of receipt) and acceptance for payment of any tender
of Shares will be determined by Purchaser, in its sole discretion, which
determination will be final and binding. Purchaser reserves the absolute right
to reject any or all tenders of any Shares determined by it not to be in proper
form or the acceptance for payment of which, or payment for which, may, in the
opinion of Purchaser's counsel, be unlawful. Purchaser also reserves the
absolute right, in its sole discretion, subject to the provisions of the Merger
Agreement, to waive any defect or irregularity in any tender of Shares of any
particular stockholder, whether or not similar defects or irregularities are
waived in the case of other stockholders. No tender of Shares will be deemed to
have been validly made until all defects or irregularities relating thereto have
been cured or
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waived. None of Purchaser, the Depositary, the Information Agent or any other
person will be under any duty to give notification of any defects or
irregularities in tenders or incur any liability for failure to give any such
notification. Subject to the terms of the Merger Agreement, Purchaser's
interpretation of the terms and conditions of the Offer in this regard
(including the Letter of Transmittal and the instructions thereto) will be final
and binding.
BACKUP WITHHOLDING. Under the "backup withholding" provisions of federal
income tax law, unless a tendering registered holder, or its assignee (in either
case, the "Payee"), satisfies the conditions described in Instruction 10 of the
Letter of Transmittal or is otherwise exempt, the cash payable as a result of
the Offer may be subject to backup withholding tax at a rate of 31% of the gross
proceeds. To prevent backup withholding, each Payee should complete and sign the
Substitute Form W-9 provided in the Letter of Transmittal. See Instruction 10 to
the Letter of Transmittal.
4. WITHDRAWAL RIGHTS. Except as otherwise provided in this Section 4 or as
provided by applicable law, tenders of Shares are irrevocable. Shares tendered
pursuant to the Offer may be withdrawn pursuant to the procedures set forth
below at any time prior to the Expiration Date and, unless theretofore accepted
for payment and paid for by Purchaser pursuant to the offer, may also be
withdrawn at any time after February 14, 1999.
For a withdrawal to be effective, a written, telegraphic or facsimile
transmission notice of withdrawal must be timely received by the Depositary at
one of its addresses set forth on the back cover of this Offer to Purchase. Any
such notice of withdrawal must specify the name of the person who tendered the
Shares to be withdrawn, the number of Shares to be withdrawn and the name of the
registered holder of the Shares to be withdrawn, if different from the name of
the person who tendered the Shares. If certificates evidencing Shares to be
withdrawn have been delivered or otherwise identified to the Depositary, then,
prior to the physical release of such certificates, the serial numbers shown on
such certificates must be submitted to the Depositary and, unless such Shares
have been tendered by an Eligible Institution, the signatures on the notice of
withdrawal must be guaranteed by an Eligible Institution. If Shares have been
delivered pursuant to the procedures for book-entry transfer as set forth in
Section 3, any notice of withdrawal must also specify the name and number of the
account at the Book-Entry Transfer Facility to be credited with the withdrawn
Shares and otherwise comply with such Book-Entry Transfer Facility's procedures.
Withdrawals of tendered Shares may not be rescinded, and any Shares
withdrawn will thereafter be deemed not validly tendered for purposes of the
Offer. However, withdrawn Shares may be retendered by again following one of the
procedures described in Section 3 at any time prior to the Expiration Date.
All questions as to the form and validity (including time of receipt) of
notices of withdrawal will be determined by Purchaser, in its sole discretion,
which determination will be final and binding. None of Purchaser, the
Depositary, the Dealer Managers, the Information Agent or any other person will
be under any duty to give notification of any defects or irregularities in any
notice of withdrawal or incur any liability for failure to give any such
notification.
5. CERTAIN U.S. FEDERAL INCOME TAX CONSEQUENCES. The following is a
general summary of certain U.S. federal income tax consequences of the Offer and
the Merger relevant to a beneficial holder of Shares whose Shares are tendered
and accepted for payment pursuant to the Offer or whose Shares are converted to
cash in the Merger (a "Holder"). The discussion is based on the Internal Revenue
Code of 1986, as amended (the "Code"), regulations issued thereunder, judicial
decisions and administrative rulings, all of which are subject to change,
possibly with retroactive effect. The following does not address the U.S.
federal income tax consequences to all categories of Holders that may be subject
to special rules (e.g., Holders who acquired their Shares pursuant to the
exercise of employee stock options or other compensation arrangements with the
Company, Holders who perfect their appraisal rights under the DGCL, foreign
Holders, insurance companies, tax-exempt organizations, dealers in
9
<PAGE>
securities and persons who have acquired the Shares as part of a straddle,
hedge, conversion transaction or other integrated investment), nor does it
address the federal income tax consequences to persons who do not hold the
Shares as "capital assets" within the meaning of Section 1221 of the Code
(generally, property held for investment). Holders should consult their own tax
advisors regarding the U.S. federal, state, local and foreign income and other
tax consequences of the Offer and the Merger.
The receipt of cash for Shares pursuant to the Offer or the Merger will be a
taxable transaction for U.S. federal income tax purposes and may also be a
taxable transaction under applicable state, local and foreign income and other
tax laws. In general, a Holder who sells Shares pursuant to the Offer or
receives cash in exchange for Shares pursuant to the Merger will recognize gain
or loss for federal income tax purposes equal to the difference, if any, between
the amount of cash received and the Holder's adjusted tax basis in the Shares
sold pursuant to the Offer or surrendered for cash pursuant to the Merger. Gain
or loss will be determined separately for each block of Shares (i.e., Shares
acquired at the same cost in a single transaction) tendered pursuant to the
Offer or surrendered for cash pursuant to the Merger. Such gain or loss will be
long-term capital gain or loss if the Holder has held the Shares for more than
one (1) year at the time of the consummation of the Offer or the Merger. Under
recently adopted amendments to the Code, capital gains recognized by an
individual investor (or an estate or certain trusts) upon a disposition of a
Share that has been held for more than one-year generally will be subject to a
maximum tax rate of 20% or, in the case of a Share that has been held for
one-year or less, will be subject to tax at ordinary income rates. Certain
limitations apply to the use of capital losses.
6. PRICE RANGE OF THE SHARES; DIVIDENDS. The Shares are traded on the
Nasdaq National Market under the symbol "CCIL". The following table sets forth,
for each of the fiscal quarters indicated, the high and low reported closing
sales price per Share on the Nasdaq National Market after giving effect to the
3-for-2 stock split by way of stock dividend, paid on April 4, 1998.
<TABLE>
<CAPTION>
COMMON STOCK
--------------------
<S> <C> <C>
HIGH LOW
--------- ---------
Fiscal Year Ended December 31, 1996
First Quarter.............................................................................. $ 28.50 $ 20.83
Second Quarter............................................................................. 24.67 21.17
Third Quarter.............................................................................. 23.83 16.50
Fourth Quarter............................................................................. 22.67 17.00
Fiscal Year Ended December 31, 1997
First Quarter.............................................................................. $ 21.83 $ 17.83
Second Quarter............................................................................. 22.83 16.08
Third Quarter.............................................................................. 27.67 21.67
Fourth Quarter............................................................................. 31.67 26.08
Fiscal Year Ending December 31, 1998
First Quarter.............................................................................. $ 45.33 $ 30.58
Second Quarter............................................................................. 52.50 40.50
Third Quarter.............................................................................. 62.50 49.94
Fourth Quarter (through December 16, 1998)................................................. 66.75 44.375
</TABLE>
On December 10, 1998, the last full trading day prior to the public
announcement of the execution of the Merger Agreement by the Company, Olivetti
and Mannesmann, the closing price for the Shares, as reported on the Nasdaq
National Market, was $62 per Share. On December 16, 1998, the last full trading
day prior to the commencement of the Offer, the closing price of the Shares, as
reported on the Nasdaq National Market, was $66.625 per Share. Stockholders are
urged to obtain a current market quotation for the Shares.
10
<PAGE>
The Company did not declare or pay any cash dividends during any of the
periods indicated in the above table. In addition, under the terms of the Merger
Agreement, the Company is not permitted to declare or pay dividends with respect
to the Shares without the prior written consent of Purchaser and Purchaser does
not intend to consent to any such declaration or payment.
7. EFFECT OF THE OFFER ON THE MARKET FOR THE SHARES; NASDAQ NATIONAL MARKET
DESIGNATION; EXCHANGE ACT REGISTRATION; MARGIN REGULATIONS.
MARKET FOR THE SHARES. The purchase of Shares by Purchaser pursuant to the
Offer will reduce the number of holders of Shares and the number of Shares that
might otherwise trade publicly and, depending upon the number of Shares so
purchased, could adversely affect the liquidity and market value of the
remaining Shares held by the public.
DESIGNATION FOR THE NASDAQ NATIONAL MARKET. Depending upon the number of
Shares purchased pursuant to the Offer, the Shares may no longer meet the
requirements of Nasdaq for continued designation for the Nasdaq National Market.
To maintain such designation, a security must substantially meet one of two
maintenance standards. The first maintenance standard requires that (i) there be
750,000 publicly held shares, (ii) the publicly held shares have a market value
of $5 million, (iii) the issuer have net tangible assets of at least $4 million,
(iv) there be 400 shareholders of round lots, (v) the minimum bid price per
share be $1 and (vi) there be at least two registered and active market makers.
The second maintenance standard requires that (i) the issuer have either (A) a
market capitalization of $50 million or (B) total assets and total revenue of
$50 million each for the most recently completed fiscal year or two of the last
three most recently completed fiscal years, (ii) there be 1,100,000 shares
publicly held, (iii) the publicly held shares have a market value of $15
million, (iv) the minimum bid price per share be $5, (v) there be 400
shareholders of round lots and (vi) there be at least four registered and active
market makers.
If these standards for continued designation for the Nasdaq National Market
are not met, the Shares nevertheless might continue to be included in The Nasdaq
SmallCap Market. Continued inclusion in The Nasdaq SmallCap Market, however,
would require that (i) there be 300 round lot holders, (ii) there be at least
500,000 publicly held shares, (iii) the publicly held shares have a market value
of at least $1 million, (iv) there be two registered and active market makers,
of which one may be entering stabilizing bids and (v) the issuer have either (A)
net tangible assets of at least $2 million, (B) market capitalization of at
least $35 million or (C) net income of $500,000 in the most recently completed
fiscal year or in two of the last three most recently completed fiscal years.
Shares held directly or indirectly by directors, officers or beneficial owners
of more than 10% of the Shares are not considered as being publicly held for
this purpose. According to the Company, as of December 16, 1998, there were
approximately 301 holders of record of Shares and as of November 30, 1998, there
were 16,715,306 Shares outstanding.
If the purchase of Shares pursuant to the Offer causes the Shares to no
longer meet the requirements of Nasdaq for continued inclusion in the Nasdaq
National Market or The Nasdaq SmallCap Market as a result of a reduction in the
number or market value of publicly held Shares or the number of round lot
holders or otherwise, as the case may be, the market for Shares could be
adversely affected. It is possible that the Shares would continue to trade in
the over-the-counter market and that price quotations would be reported by other
sources. The extent of the public market for the Shares and the availability of
such quotations, however, would depend upon the number of holders of Shares
remaining at such time, the interests in maintaining a market in Shares on the
part of securities firms, the possible termination of registration of the Shares
under the Exchange Act, as described below, and other factors.
EXCHANGE ACT REGISTRATION. The Shares are currently registered under the
Exchange Act. Registration of the Shares under the Exchange Act may be
terminated upon application of the Company to the Commission if the Shares are
neither listed on a national securities exchange nor held by 300 or more holders
of record. Termination of registration of the Shares under the Exchange Act
would substantially
11
<PAGE>
reduce the information required to be furnished by the Company to its
stockholders and to the Commission and would make certain provisions of the
Exchange Act no longer applicable to the Company, such as the short-swing profit
recovery provisions of Section 16(b), the requirement of furnishing a proxy
statement pursuant to Section 14(a) in connection with stockholders' meetings
and the related requirement of furnishing an annual report to stockholders and
the requirements of Rule 13e-3 under the Exchange Act with respect to "going
private" transactions. Furthermore, the ability of "affiliates" of the Company
and persons holding "restricted securities" of the Company to dispose of such
securities pursuant to Rule 144 or Rule 144A promulgated under the Securities
Act of 1933, as amended (the "Securities Act"), may be impaired or eliminated.
MARGIN REGULATIONS. The Shares are not "margin securities" under the
regulations of the Board of Governors of the Federal Reserve System (the
"Federal Reserve Board"), which status has the effect of prohibiting brokers
from extending credit on the collateral of the Shares.
Purchaser currently intends to seek termination of the designation of the
Shares for the Nasdaq National Market and of the registration of the Shares
under the Exchange Act as soon after the completion of the Offer as the
requirements for such termination are met. If the Nasdaq National Market
designation and the Exchange Act registration of the Shares are not terminated
prior to the Merger, then the designation of the Shares for the Nasdaq National
Market and the registration of the Shares under the Exchange Act will be
terminated following the consummation of the Merger.
8. CERTAIN INFORMATION CONCERNING THE COMPANY.
GENERAL. The information concerning the Company contained in this Offer to
Purchase, including that set forth below under the caption "Selected Financial
Information," has been furnished by the Company or has been taken from or based
upon publicly available documents and records on file with the Commission and
other public sources. Neither Purchaser, Olivetti, Mannesmann nor the
Information Agent assumes responsibility for the accuracy or completeness of the
information concerning the Company contained in such documents and records or
for any failure by the Company to disclose events which may have occurred or may
affect the significance or accuracy of any such information but which are
unknown to Purchaser, Olivetti, Mannesmann or the Information Agent.
The Company's primary asset is an approximate 14.667% interest in Omnitel
Sistemi Radiocellulari Italiani S.p.A. ("OSR"), a strategic joint venture which
holds a 70% interest in Omnitel-Pronto Italia S.p.A. ("Omnitel"). Omnitel is
Italy's second leading mobile operator with over 5.0 million subscribers.
SELECTED FINANCIAL INFORMATION. Set forth below is certain consolidated
financial information with respect to the Company, excerpted or derived from the
Company's Annual Reports on Form 10-K for the fiscal years ended December 31,
1997 and December 31, 1996 and its Quarterly Report on Form 10-Q for the quarter
ended September 30, 1998, each as filed with the Commission pursuant to the
Exchange Act.
More comprehensive financial information is included in such reports and in
other documents filed by the Company with the Commission. The following summary
is qualified in its entirety by reference to such reports and other documents
and all of the financial information (including any related notes) contained
therein. Such reports, documents and financial information may be inspected and
copies may be obtained from the Commission in the manner set forth below.
12
<PAGE>
CELLULAR COMMUNICATIONS INTERNATIONAL, INC.
SELECTED CONSOLIDATED FINANCIAL INFORMATION
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30,
(UNAUDITED) YEAR ENDED DECEMBER 31,
------------------------ -------------------------------------
<S> <C> <C> <C> <C> <C>
1998 1997 1997 1996 1995
----------- ----------- ----------- ----------- -----------
<CAPTION>
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA:
Equity in net income (loss) of Omnitel.......... $ 30,435 $ (7,628) $ (5,521) $ (29,850) $ (14,636)
Costs and expenses:
General and administrative expenses............. 1,787 2,473 2,997 3,397 3,805
Write-off of investments in joint venture....... -- -- -- -- 602
Write-off of deferred costs..................... -- -- -- -- 1,167
Depreciation expense............................ 1 14 15 25 28
Amortization of investments in joint ventures... 519 518 691 691 537
----------- ----------- ----------- ----------- -----------
2,307 3,005 3,703 4,113 6,139
----------- ----------- ----------- ----------- -----------
Operating income (loss)......................... 28,128 (10,633) (9,224) (33,963) (20,775)
Other income (expense):
Interest income and other, net................ 4,064 3,307 4,500 5,125 1,963
Interest expense.............................. (19,675) (19,644) (26,625) (23,330) (7,230)
Foreign currency translation losses........... (13,693) -- -- -- --
Cellular Comm., Inc. fees in connection with
the bank loan............................... -- -- -- -- (101)
Gain on sale of investment in joint venture... -- -- -- -- 38,901
----------- ----------- ----------- ----------- -----------
Income (loss) before income taxes and
extraordinary item............................ (1,176) (26,970) (31,349) (52,168) 12,758
Income tax benefit (provision).................. -- -- -- 1,200 (5,943)
----------- ----------- ----------- ----------- -----------
Income (loss) before extraordinary item......... (1,176) (26,970) (31,349) (50,968) 6,815
Loss from early extinguishment of debt.......... (44,924) -- -- -- (1,474)
----------- ----------- ----------- ----------- -----------
Net income (loss)............................... $ (46,100) $ (26,970) $ (31,349) $ (50,968) $ 5,341
----------- ----------- ----------- ----------- -----------
----------- ----------- ----------- ----------- -----------
Net income (loss) per common share:
Income (loss) before extraordinary item....... $ (.07) $ (1.67) $ (1.94) $ (3.23) $ .45
Extraordinary item............................ (2.72) -- -- -- (.10)
----------- ----------- ----------- ----------- -----------
Net income (loss)............................... $ (2.79) $ (1.67) $ (1.94) $ (3.23) $ .35
----------- ----------- ----------- ----------- -----------
----------- ----------- ----------- ----------- -----------
Net income (loss) per common share-assuming
dilution:
Income (loss) before extraordinary item....... $ (.07) $ (1.67) $ (1.94) $ (3.23) $ .38
Extraordinary item............................ (2.72) -- -- -- (.08)
----------- ----------- ----------- ----------- -----------
Net income (loss)............................... $ (2.79) $ (1.67) $ (1.94) $ (3.23) $ .30
----------- ----------- ----------- ----------- -----------
----------- ----------- ----------- ----------- -----------
BALANCE SHEET DATA:
Total Assets.................................. $ 169,407 $ 138,133 $ 140,714 $ 146,307 $ 175,290
Total Liabilities............................. 270,124 192,743 199,483 174,868 154,123
Total Shareholders' Equity (Deficiency)....... (100,717) (54,610) (58,769) (28,561) 21,167
</TABLE>
13
<PAGE>
AVAILABLE INFORMATION. The Company is subject to the informational filing
requirements of the Exchange Act and, in accordance therewith, is obligated to
file reports, proxy statements and other information with the Commission
relating to its business, financial condition and other matters. Information as
of particular dates concerning the Company's directors and officers, their
remuneration, options granted to them, the principal holders of the Company's
securities and any material interests of such persons in transactions with the
Company is required to be disclosed in proxy statements distributed to the
Company's stockholders and filed with the Commission. Such reports, proxy
statements and other information should be available for inspection at the
public reference facilities of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the regional offices of the Commission located at
Seven World Trade Center, Suite 1300, New York, NY 10048 and Citicorp Center,
500 West Madison Street, Suite 1400, Chicago, IL 60661. Copies of such
information should be obtainable by mail, upon payment of the Commission's
customary charges, by writing to the Commission's principal office at 450 Fifth
Street, N.W., Washington, D.C. 20549. The Commission also maintains a website on
the internet at http://www.sec.gov that contains reports, proxy statements and
other information relating to the Company which have been filed via the
Commission's EDGAR System.
9. CERTAIN INFORMATION CONCERNING PURCHASER, OLIVETTI AND MANNESMANN.
GENERAL. Purchaser is a newly formed Delaware corporation organized solely
to effect the Offer and the Merger. Purchaser has not carried on any significant
activities other than in connection with the Offer and the Merger. Until
immediately prior to the time Purchaser purchases Shares pursuant to the Offer,
it is not anticipated that Purchaser will have any significant assets or
liabilities or engage in any significant activities other than those incident to
its formation and capitalization and the transactions contemplated by the Offer
and the Merger.
Mannesmann owns 50% of the outstanding shares of capital stock of Purchaser.
Mannesmann operates in four sectors: Telecommunications, Engineering, Automotive
and Tubes and Trading and generated sales of around DM 39 billion in 1997. The
group is one of the leading alternative telecommunication operators in the
recently liberalized European market.
Olivetti owns 50% of the outstanding shares of capital stock of Purchaser.
The Olivetti Group is a leading international player operating through
subsidiaries and affiliates in the telecommunications and information technology
sectors. In telecommunications, Olivetti operates in both wireless and wireline
markets through Omnitel and the fixed-line operator Infostrada, respectively. In
the information technology sector, Olivetti wholly-owns Olivetti Lexikon, which
specializes in information technology products for the office and consumer
markets. It also has an 18.5% ownership interest in Wang Global, a United States
publicly traded company.
The address for Purchaser's principal offices are c/o Olivetti S.p.A., Via
Jervis 77, 10015 Ivrea, Turin, Italy and c/o Mannesmann AG, Mannesmannufer 2,
40213 Dusseldorf, Germany. The telephone numbers of Purchaser at such locations
are 39 0125 5200 and 49 211 820 2400, respectively. The principal offices of
Olivetti are located at Via Jervis 77, 10015 Ivrea, Turin, Italy. The telephone
number of Olivetti at such location is 39 0125 5200. The principal offices of
Mannesmann are located at Mannesmannufer 2, 40213 Dusseldorf, Germany. The
telephone number of Mannesmann at such location is 49 211 820 2400.
For certain information concerning the executive officers and directors of
Purchaser, Olivetti and Mannesmann, see Schedule I.
Except as set forth in this Offer to Purchase, neither Purchaser, Olivetti
nor Mannesmann, nor, to the best knowledge of Purchaser, Olivetti or Mannesmann,
any of the persons listed on Schedule I, nor any associate or majority owned
subsidiary of any of the foregoing, beneficially owns or has a right to acquire
any Shares, and neither Purchaser, Olivetti nor Mannesmann, nor, to the best
knowledge of Purchaser, Olivetti or Mannesmann, any of the persons or entities
referred to above, nor any of the respective
14
<PAGE>
executive officers, directors or subsidiaries of any of the foregoing, has
effected any transaction in the Shares during the past sixty (60) days.
Except as set forth in the following paragraph and as otherwise set forth in
this Offer to Purchase, neither Purchaser, Olivetti or Mannesmann has any
contract, arrangement, understanding or relationship with any other person with
respect to any securities of the Company, including, but not limited to, any
contract, arrangement, understanding or relationship concerning the transfer or
the voting of any securities of the Company, joint ventures, loan or option
arrangements, puts or calls, guarantees of loans, guarantees against loss or the
giving or withholding of proxies.
Except as set forth in this Offer to Purchase, neither Purchaser, Olivetti
nor Mannesmann nor any of their respective affiliates, nor, to the best
knowledge of Purchaser, Olivetti or Mannesmann, any of the persons listed on
Schedule I, has had, since January 1, 1995, any business relationships or
transactions with the Company or any of its executive officers, directors or
affiliates that would be required to be reported under the rules of the
Commission. Except as set forth in this Offer to Purchase, since January 1, 1995
there have been no contacts, negotiations or transactions between Purchaser,
Olivetti or Mannesmann or any of their respective affiliates or, to the best
knowledge of Purchaser, Olivetti or Mannesmann, any of the persons listed on
Schedule I, and the Company or its affiliates concerning a merger, consolidation
or acquisition, tender offer or other acquisition of securities, election of
directors or a sale or other transfer of a material amount of assets except as
follows.
THE OSR AGREEMENT. Olivetti currently holds a 62.5% interest in OliMan
Holding DV ("OliMan") and Mannesmann currently holds a 37.5% interest. Pursuant
to agreements between Olivetti and Mannesmann, in February 1999, Olivetti will
own 50.1% and Mannesmann will own 49.9% of the outstanding capital stock of
OliMan.
Pursuant to a joint venture agreement, originally executed in May 1990 and
amended on November 24, 1993 and February 23, 1994 (the "OSR Joint Venture
Agreement"), if more than fifty (50) percent of the shares of voting securities
of a co-venturer (the "Selling Co-Venturer") are transferred to a third party
(or parties) that is not an affiliate of the Selling Co-Venturer (an "OSR Change
in Control"), each co-venturer (a "Buying Co-Venturer") shall have the
non-assignable right to purchase all or a pro rata portion (based upon the total
number of shares owned by co-venturers exercising such right to purchase) of the
Selling Co-Venturer's shares of OSR stock at a price indicated by the Selling
Co-Venturer. In the event a Buying Co-Venturer objects to the price so
indicated, it shall be settled by arbitration. The acquisition of control of any
parent company of a co-venturer which owns or operates substantial other
businesses or entities in addition to the venture is not deemed to constitute an
OSR Change in Control. Mannesmann, Olivetti and Purchaser believe that the
consummation of the Offer will not result in an OSR Change in Control.
Pursuant to the OSR Joint Venture Agreement, a co-venturer may, without the
consent of the other co-venturers, transfer its OSR stock to its affiliates,
other co-venturers or the affiliates of other co-venturers. A co-venturer may
not, however, sell, assign, transfer, pledge, encumber or otherwise dispose of
any of its OSR stock to a party who is not an affiliate, a co-venturer or an
affiliate of a co-venturer, without prior written consent of all the other
co-venturers. All transfers of OSR stock other than to affiliates, other
co-venturers or affiliates of other co-venturers are subject to a right of first
refusal by the other co-venturers. If more than one co-venturer exercises the
right of first refusal, each of the co-venturers may purchase a pro rata portion
of such OSR stock (based upon the total number of shares owned by all
co-venturers exercising the right of first refusal). Such rights of first
refusal may be exercised at the price indicated by the transferring co-venturer
in a notice that must be sent by the transferring co-venturer to the remaining
co-venturers prior to effecting a transfer that gives rise to a right of first
refusal.
Pursuant to the OSR Joint Venture Agreement, if a co-venturer willfully
fails to make required capital contributions, the other co-venturers shall have
the non-assignable option to purchase such
15
<PAGE>
co-venturer's OSR stock for a cash price equal to the paid-in-capital
represented by such stock. Pursuant to the OSR Joint Venture Agreement, the
following may also give rise to the granting of a non-assignable option to
purchase co-venturer's OSR stock at the cash price equal to the paid-in-capital
represented by such stock: (i) the failure by a co-venturer to perform any
material obligation under the OSR Joint Venture Agreement; (ii) the filing of a
bankruptcy petition by a co-venturer, or (iii) a willful violation or breach by
a co-venturer of any of the covenants in the OSR Joint Venture Agreement. If the
non-assignable option to purchase a defaulting co-venturer's OSR stock were
triggered and the defaulting party refused to sell its OSR stock, thereby
breaching the relevant provisions of the OSR Joint Venture Agreement, under
Italian law, the Company may face difficulty in becoming the record owner of the
OSR stock and could thus be forced to bring an action for damages against the
co-venturer refusing to comply with such provisions.
MANAGEMENT OF OSR. The board of directors of OSR (the "OSR Board") consists
of nine members, with one member designated by the Company, two members
designated by Bell Atlantic International, Inc. ("Bell Atlantic") and six
members designated by OliMan, with OliMan designating the chairman of the OSR
Board. The presence and unanimous affirmative vote of at least two of the
members of the OSR Board designated by OliMan and of all the other members of
the OSR Board is required for any actions, decisions or determinations relating
to the following, among others: (i) the formation of any subsidiary company or
entering into any joint venture or other similar arrangement; (ii) the issuance
or redemption of any shares, bonds or other securities of OSR; (iii) the
acquisition of shares of or any interest in any corporation or the creation of
any partnership, consortium or other legal entity of which OSR is or will be a
partner, member or similar participant; (iv) the adoption or amendment of OSR's
annual budget or future business plan; (v) any merger, consolidation or
amalgamation with or into any other company or corporation or the sale or
disposition of certain franchises or licenses; (vi) the engagement in certain
businesses outside the scope of OSR's "object"; (vii) the declaration or payment
of dividends or the making of any other distribution to shareholders; (viii) the
voluntary liquidation, dissolution or termination of OSR; (ix) the amendment of
the by-laws of OSR; (x) the initial appointment of the independent auditors, and
of the outside counsel to OSR; and (xi) the increase or decrease of the number
of members of the OSR Board.
The presence of at least two members of the OSR Board designated by OliMan
and at least all but one of the other members of the OSR Board, and the
affirmative vote of at least two of the members of the OSR Board designated by
OliMan and at least all but one of the other members of the OSR Board are
required for any actions, decisions, or determinations of the OSR Board
(including, without limitation, a determination to present such matters or
proposals to the shareholders of OSR) relating to any of the following matters
or proposals: (i) except as specifically provided for in the annual budget and
future business plan, the lease, acquisition or disposition of any assets in a
transaction or in a series of related transactions having a value in excess of
300 million lire (US $165,000); (ii) the appointment, granting of powers,
dismissal and determination of the remuneration of the Chairman, the Managing
Director or the principal executive officers of OSR; (iii) any change in the
independent auditors, and of the outside counsel to OSR; (iv) subjection of the
property or assets of OSR to any mortgage, fine, pledge, claim or judgment
except in the ordinary course of business; (v) the extension of loans or
guarantees to or on behalf of third parties except in the ordinary course of
business in amounts not to exceed in the aggregate 300 million lire (US
$165,000) or individually 100 million lire (US $55,000) annually; (vi) the
incurring of indebtedness for borrowed money except in the ordinary course of
business in amounts not to exceed in the aggregate 1.0 billion lire (US
$550,000), or individually 500 million lire (US $275,000) annually; (vii) enter
into, amend or terminate any transaction with any co-venturer or affiliate of
any co-venturer in which the value of the goods and/or services to be purchased,
sold or leased (including compensation or reimbursement for employees made
available to the co-venturer) would exceed 25 million lire (US $14,000) in a
transaction or a series of related transactions; and (viii) the acceptance of
any terms and conditions necessary to obtain and/or renew a license.
16
<PAGE>
For any actions, decisions or determinations of the Board which require the
unanimous decision of the OSR Board, the co-venturers, as shareholders of OSR,
agreed to vote in conformance with the OSR Board's determination whenever a
resolution of the Shareholders Meeting is also required. The co-venturers also
agreed, as shareholders of OSR, not to vote in support of any action or decision
which requires a unanimous or supermajority decision of the OSR Board as
described above, unless the OSR Board has first considered such action or
decision and the required affirmative vote of the OSR Board for such action or
decision has been obtained. The by-laws of OSR require only the affirmative vote
of 75% of the members of the OSR Board to approve the actions described above as
unanimous actions. If such an action were approved by 75% of the OSR Board, but
not consented to by the Company as required by the OSR Joint Venture Agreement,
the Company might not be able to obtain injunctive relief under Italian law.
AVAILABLE INFORMATION. Neither Purchaser, Olivetti nor Mannesmann is
subject to the information requirements of the Exchange Act and, accordingly, do
not file reports or other information with the Commission under the Exchange Act
relating to its business, financial position, results of operations or other
matters. However, Purchaser, Olivetti and Mannesmann have filed a Schedule 14D-1
and exhibits thereto with the Commission in connection with the Offer and the
Merger. The Schedule 14D-1 and the exhibits thereto should be available for
inspection at the public reference facilities of the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549, and at the regional offices of the
Commission located at Seven World Trade Center, Suite 1300, New York, NY 10048
and Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, IL 60661.
Copies of the Schedule 14D-1 and the exhibits thereto should be obtainable by
mail, upon payment of the Commission's customary charges, by writing to the
Commission's principal office at 450 Fifth Street, N.W., Washington, D.C. 20549.
The Commission also maintains a website at http://www.sec.gov that contains the
Schedule 14D-1 and the exhibits thereto of Purchaser which have been filed via
the Commission's EDGAR System.
10. SOURCES AND AMOUNT OF FUNDS. The Offer is not conditioned upon any
financing arrangements. The total amount of funds required by Purchaser to
consummate the Offer and the Merger, including the fees and expenses of the
Offer and the Merger, is estimated to be approximately $1.5 billion. Purchaser
will obtain all such funds through capital contributions from Olivetti and
Mannesmann. Olivetti and Mannesmann will provide such funds from working
capital.
11. BACKGROUND OF THE OFFER; PURPOSE OF THE OFFER AND THE MERGER; THE
MERGER AGREEMENT AND CERTAIN OTHER AGREEMENTS.
CONTACTS WITH THE COMPANY; BACKGROUND OF THE OFFER.
Management of the Company, Olivetti and Mannesmann have been acquainted with
one another for a number of years and have had, from time to time, discussions
concerning the respective businesses and strategies of their companies.
In 1988, the Company's former parent, Cellular Communications, Inc. ("CCI"),
began seeking joint venture opportunities to pursue wireless communications
businesses outside of the United States. In 1990, the Company became one of the
organizers and a party to OSR with, inter alia, Olivetti, Bell Atlantic, Telia
International AB ("Telia") and an affiliate of Lehman Brothers.
In connection with CCI entering into an agreement with AirTouch
Communications, Inc. ("AirTouch") in 1990, the Capital Stock of the Company was
distributed to the shareholders of CCI in 1991. Since that time, the Company has
been an independent, publicly traded entity.
In February 1994, OSR entered into an agreement with Pronto Italia, S.p.A.
("Pronto") to form Omnitel as their combined applicant for the second Global
System for Mobile Communications ("GSM") license in Italy. GSM is the digital
technology for cellular telephone systems that most European countries have
agreed to adopt as a common standard. In March 1994, the Italian Government
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announced that Omnitel was selected by the Italian Government as the licensee of
Italy's second GSM cellular telephone license (the "License").
Currently, the Company currently holds a 14.667% interest in OSR, which
holds a 70% interest in Omnitel. The Company through its 14.667% interest in
OSR, holds an approximate 10.267% interest in Omnitel. The other current joint
venturers in OSR are OliMan, a joint venture currently owned 62.5% by Olivetti
and 37.5% by Mannesmann, Bell Atlantic and an affiliate of Lehman Brothers
(collectively, the "OSR Corporate Partners"). Pronto, which holds a 30% interest
in Omnitel, consists of AirTouch, Mannesmann and several smaller partners
(together with the OSR Corporate Partners, the "Corporate Partners").
Although in prior years, the Company pursued opportunities in countries
other than Italy, the value of the Company's interest in OSR, and thus indirect
interest in Omnitel, has come now to represent substantially all of the value of
the Company.
Recognizing the Company is a minority, indirect shareholder in Omnitel, and
that it could not control Omnitel's cash flows and, in particular, Omnitel's
payment of dividends, and cognizant of the contractual terms of the OSR Joint
Venture Agreement, the Company has always been alert to opportunities to
maximize the value of its Omnitel investment. In that connection, the Company
has from time to time conducted discussions with other participants in the OSR
and the Pronto consortia seeking to elicit any interest they might have in a
transaction. These discussions have occurred over a period of years and as
recently as the past several months, but had not resulted in any proposal or
offer to purchase the Company or its interest in OSR. In addition, persons
outside of OSR and the Pronto consortia had not contacted the Company regarding
its shareholdings in Omnitel.
Commencing in early 1995, management of the Company and Olivetti held
discussions concerning a strategic business combination between the two
companies. The discussions terminated in the summer of 1995.
In the first half of 1998, the Company had discussions with Telia (formerly
"Swedish Telecom"), including discussions about a potential transaction between
Telia and the Company in which the Company would acquire Telia's OSR stake for
either Company stock or a combination of Company stock, debt and cash. These
discussions were part of a series of various meetings for different purposes
that the Company had with Telia over a period of five years. Despite these
recent meetings, Telia ultimately entered into a transaction in which it sold
its interest in OSR to OliMan, which was announced on April 14, 1998.
In February 1997, senior executives of the Company met with senior
executives of Mannesmann, and had a broad based discussion regarding their
respective interests in European telecommunications. A similar such discussion
occurred in January 1998, including executives of Olivetti as well as
Mannesmann.
In April 1998, Dr. Kurt Kinzius, Managing Director of Mannesmann Eurokom
GmbH, met with Mr. Ginsberg and discussed a potential transaction between the
Company and OliMan, which sought to increase its stake in Omnitel.
On July 6, 1998, Dr. Kinzius telephoned Mr. Ginsberg to arrange for a
meeting. A meeting took place on July 10 among Mr. Ginsberg, Dr. Kinzius and
Evan Newmark of Goldman Sachs & Co., acting on behalf of OliMan, in connection
with a possible transaction with the Company. At that meeting, various
structures for a transaction were considered and at the conclusion of this
meeting the attendees agreed to evaluate various alternatives for structuring a
transaction. On August 11, 1998, there was another meeting between the Company
and OliMan in London, England. The parties discussed various proposals for
structuring a transaction, but no satisfactory result could be reached.
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On August 24, 1998, senior executives of the Company had a meeting with
senior executives of Bell Atlantic to discuss a possible transaction involving
the Company. This meeting was one of a series of meetings between senior
executives of the two companies in which possible transactions were discussed,
over the course of the past five years. However, shortly after the meeting, Bell
Atlantic's representatives communicated that they were not interested in
pursuing any transaction with the Company.
From time to time, senior executives of AirTouch have had informal
discussions concerning the Company's interest in OSR and possible transactions
with the Company. These discussions did not result in an extension of an offer
by AirTouch.
At a November meeting of OSR and Omnitel in Milan, Italy, representatives of
Olivetti and Mannesmann, including Dr. Kinzius and Marco De Benedetti, an
executive officer responsible for telecom strategy at Olivetti, approached Mr.
Ginsberg to meet again about a possible transaction involving the Company.
On November 30, 1998, representatives of Olivetti and Mannesmann and
Goldman, Sachs & Co. met with representatives of the Company and Wasserstein
Perella. Detailed negotiations then ensued between representatives of Olivetti
and Mannesmann, including Goldman, Sachs & Co. and legal counsel, Willkie Farr &
Gallagher and Dorsey & Whitney, and representatives of the Company, including
Wasserstein Perella and Skadden, Arps, Slate, Meagher & Flom LLP.
Simultaneously, representatives of Olivetti and Mannesmann conducted their due
diligence investigations of the Company. The negotiations culminated in
agreement on the terms of the Merger Agreement, Stockholders Agreement, Option
Agreement and Guarantee.
PURPOSE OF THE OFFER AND THE MERGER.
The purpose of the Offer and the Merger is to enable Purchaser to acquire
control of, and the entire equity interest in, the Company. The Offer is being
made pursuant to the Merger Agreement and is intended to increase the likelihood
that the Merger will be effected. The purpose of the Merger is to acquire all of
the outstanding Shares not purchased pursuant to the Offer.
Stockholders of the Company who sell their Shares in the Offer will cease to
have any equity interest in the Company and any right to participate in its
earnings and future growth. If the Merger is consummated, non-tendering
stockholders will no longer have an equity interest in the Company and instead
will have only the right to receive cash consideration pursuant to the Merger
Agreement or to exercise statutory appraisal rights under Section 262 of the
DGCL. See Section 12. Similarly, after selling their Shares in the Offer or the
subsequent Merger, stockholders of the Company will not bear the risk of any
decrease in the value of the Company.
The primary benefits of the Offer and the Merger to the stockholders of the
Company are that such stockholders are being afforded an opportunity to sell all
of their Shares for cash at a price which represents a premium of approximately
6.0% over the closing sales price of the Shares on December 10, 1998, the last
full trading day prior to the initial public announcement that the Company and
Purchaser had executed the Merger Agreement.
MERGER AGREEMENT.
The following is a summary of certain portions of the Merger Agreement and
is qualified in its entirety by reference to the Merger Agreement, a copy of
which has been filed with the Commission as an exhibit to the Schedule 14D-1.
The Merger Agreement may be examined and copies may be obtained at the places
and in the manner set forth in Section 9 of this Offer to Purchase.
THE OFFER. The Merger Agreement provides that Purchaser will commence the
Offer and that, upon the terms and subject to the prior satisfaction or waiver
of the conditions of the Offer (other than a waiver
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of the Minimum Condition), Purchaser will purchase all Shares validly tendered
pursuant to the Offer. The Merger Agreement provides that, without the written
consent of the Company, Purchaser will not (i) decrease the Offer Price or
change the form of consideration payable in the Offer, (ii) decrease the number
of Shares sought in the Offer, (iii) amend or waive satisfaction of the Minimum
Condition, or (iv) impose additional conditions of the Offer or amend any other
term of the Offer in any manner adverse to the holders of Shares, except that if
on the initial scheduled Expiration Date all conditions to the Offer shall not
have been satisfied or waived, Purchaser may, from time to time, in its sole
discretion, extend the Expiration Date (any such extension to be for ten (10)
business days or less); PROVIDED, HOWEVER, that the Expiration Date of the Offer
may not be extended beyond May 15, 1999. The Merger Agreement provides that if,
immediately prior to the Expiration Date, as it may be extended, the Shares
tendered and not withdrawn pursuant to the Offer equal less than 90% of the
outstanding Shares, Purchaser may extend the Offer for a period not to exceed
fifteen (15) business days, notwithstanding that all conditions to the Offer are
satisfied as of such Expiration Date; PROVIDED, HOWEVER, that during any such
extension of the Offer, Purchaser irrevocably waives all of the conditions to
the Offer as set forth in Section 14 herein (other than the Minimum Condition).
THE MERGER. Following the consummation of the Offer, the Merger Agreement
provides that, subject to the terms and conditions thereof, at the Effective
Time Purchaser shall be merged with and into the Company and, as a result of the
Merger, the separate corporate existence of Purchaser shall cease and the
Company shall continue as the surviving corporation (sometimes referred to as
the "Surviving Corporation").
The respective obligations of Purchaser, on the one hand, and the Company,
on the other hand, to effect the Merger are subject to the satisfaction on or
prior to the Closing Date (as defined in the Merger Agreement) of each of the
following conditions, unless such failure of any such conditions is a result of
a breach of either party's material obligations under the Merger Agreement: (i)
Purchaser shall have made, or caused to be made, the Offer and shall have
purchased, or caused to be purchased, Shares pursuant to the Offer, (ii) the
Merger and the Merger Agreement shall have been approved and adopted by the
requisite vote of the stockholders of the Company, if required by Delaware law,
and (iii) no statute, rule, regulation, judgment, writ, decree, order or
injunction shall have been enacted, promulgated, entered or enforced by any
governmental authority which has the effect of making illegal or directly or
indirectly restraining, prohibiting or restricting the consummation of the
Merger.
At the Effective Time of the Merger (i) each issued and outstanding Share
(other than Shares that are owned by the Company or any of its subsidiaries, any
Shares owned by Purchaser or any of its subsidiaries or any Shares which are
held by stockholders who properly perfect their dissenters rights under the
DGCL) will be canceled and converted into the right to receive the Offer Price
paid pursuant to the Offer, without interest, upon the surrender of the
certificate formerly representing such Share in accordance with the Merger
Agreement and (ii) each issued and outstanding share of the common stock, par
value $.01 per share, of Purchaser will be converted into one share of common
stock, par value $.01 per share, of the Surviving Corporation and shall
constitute the only outstanding shares of capital stock of the Surviving
Corporation.
THE COMPANY'S BOARD OF DIRECTORS. The Merger Agreement provides that
promptly upon the purchase by Purchaser of any Shares pursuant to the Offer,
Purchaser shall be entitled to designate such number of directors, rounded up to
the next whole number, on the Company Board as will give Purchaser
representation on the Company Board equal to at least that number of directors
which equals the product of the total number of directors on the Company Board
(giving effect to the directors appointed or elected by Purchaser pursuant to
the Merger Agreement and including directors serving as officers of the Company)
multiplied by the percentage that the aggregate number of Shares beneficially
owned by Purchaser or any of its affiliates (including Shares that are accepted
for payment pursuant to the Offer, but excluding Shares held by the Company and
excluding beneficial ownership by virtue of the Option Agreement (as defined
below)) bears to the number of Shares outstanding. The Company will,
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upon request by Purchaser, promptly increase the size of the Company Board or
use its best efforts to secure the resignations of such number of its incumbent
directors as is necessary to enable Purchaser's designees to be elected to the
Company Board, provided that (i) in the event that Purchaser's designees are
appointed or elected to the Company Board, until the Effective Time the Company
Board will have at least one director who is a director as of the date of the
execution of the Merger Agreement and who is neither an officer of the Company
nor a designee, stockholder, affiliate or associate (within the meaning of
Federal securities laws) of Purchaser (one or more of such directors, the
"Independent Directors") and (ii) if no Independent Directors remain, the other
directors will designate one person to fill one of the vacancies who is neither
an officer of the Company nor a designee, stockholder, affiliate or associate of
Purchaser, such person so designated being deemed an Independent Director. The
Company's obligation to appoint Purchaser's designees to the Company Board is
subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1
promulgated thereunder.
STOCKHOLDERS' MEETING. Pursuant to the Merger Agreement, the Company will,
if required by applicable law in order to consummate the Merger, duly call, give
notice of, convene and hold a special meeting of its stockholders as promptly as
practicable following the acceptance for payment and purchase of Shares by
Purchaser pursuant to the Offer for the purpose of considering and taking action
upon the approval of the Merger and the adoption of the Merger Agreement. The
Merger Agreement provides that the Company will, if required by applicable law
in order to consummate the Merger, prepare and file with the Commission a
preliminary and definitive proxy or information statement (the "Proxy
Statement") relating to the Merger and the Merger Agreement and use its best
efforts (i) to obtain and furnish the information required to be included by the
Commission in the Proxy Statement and, after consultation with Purchaser, to
respond promptly to any comments made by the Commission with respect to the
preliminary Proxy Statement and cause the definitive Proxy Statement to be
mailed to its stockholders, provided that no amendment or supplement to the
Proxy Statement will be made by the Company without consultation with Purchaser
and its counsel and (ii) to obtain the necessary approvals of the Merger and the
Merger Agreement by its stockholders. If Purchaser acquires at least a majority
of the outstanding Shares in the Offer, Purchaser will have sufficient voting
power to approve the Merger, even if no other stockholder votes in favor of the
Merger. The Company has agreed to include in the Proxy Statement the
recommendation of the Company Board that stockholders of the Company vote in
favor of the approval of the Merger and the adoption of the Merger Agreement
unless the Company Board, after consultation with outside legal counsel to the
Company, determines that to do so would likely breach the fiduciary duties of
the Company Board under applicable law.
The Merger Agreement provides that in the event that Purchaser or any
subsidiary of Purchaser acquires at least 90% of the outstanding Shares pursuant
to the Offer or otherwise, Purchaser and the Company will, at the request of
Purchaser and subject to the terms of the Merger Agreement, take all necessary
and appropriate action to cause the Merger to become effective as soon as
practicable after such acquisition, without a meeting of stockholders of the
Company, in accordance with Delaware law.
OPTIONS. Pursuant to the Merger Agreement, at the Effective Time, the
Company will take all actions necessary to provide that, each then outstanding
option to purchase shares of Common Stock (the "Options") granted under any of
the Company's stock option plans (the "Option Plans"), whether or not then
exercisable or vested, shall be canceled and in consideration therefor will
receive an amount in cash equal to the product of (A) the difference between the
Offer Price and the per share exercise price of such Option and (B) the number
of Shares subject to such Option (such amount, the "Option Price"). The Company
will obtain all necessary consents or releases from holders of the Options to
effect the foregoing. Upon receipt of the Option Price, the Option will be
canceled. The surrender of an Option to the Company will be deemed a release of
any and all rights a holder had or may have had in respect of such Option.
Except as may be otherwise agreed to by Purchaser and the Company and to the
extent permitted by the Option Plans, the Company (i) shall cause the Option
Plans to terminate as of the Effective Time and shall provide for the payment of
any benefit due under such Option Plans in cash,
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(ii) shall cause the provisions in any other plan, program or arrangement, which
currently provides or previously provided for the issuance or grant by the
Company of any interest in respect of the capital stock of the Company, or for
payments based on the value of the capital stock of the Company to terminate as
of the Effective Time and shall provide for the payment of any benefit due under
such plans in cash; (iii) shall take all actions necessary to ensure that
following the Effective Time no holder of Options or any participant in the
Option Plans or any other stock plan shall have any right thereunder to acquire
any equity securities of the Company, the Surviving Corporation or any
subsidiary thereof, and to terminate all such plans. Purchaser has agreed to
provide the Company as promptly as practicable following the consummation of the
Merger, the funds necessary to satisfy such obligations regarding the Options
under the Merger Agreement.
INTERIM OPERATIONS; COVENANTS. The Company covenants and agrees that, (i)
except as expressly contemplated by the Merger Agreement, the Option Agreement
or the Stockholders Agreement, (ii) as disclosed pursuant to the Merger
Agreement, or (iii) as agreed in writing by Purchaser, after the date of the
Merger Agreement, and prior to the time the directors of Purchaser have been
elected to and shall constitute a majority of the Company Board:
(a) the business of the Company shall be conducted only in the ordinary
and usual course and, to the extent consistent therewith, the Company shall
use its best reasonable efforts to preserve its business organization intact
and maintain its existing relations with customers, suppliers, employees,
creditors and business partners;
(b) the Company will not, directly or indirectly, (i) except upon
exercise of Options or other rights to purchase shares of Common Stock
pursuant to the Option Plans outstanding on the date of the Merger Agreement
or upon exercise of outstanding Warrants or conversion of Voting Debt,
issue, sell, transfer or pledge or agree to sell, transfer or pledge any
treasury stock of the Company beneficially owned by it, (ii) amend the
Certificate of Incorporation or Bylaws or similar organizational documents;
or (iii) split, combine or reclassify the outstanding Shares;
(c) the Company shall not: (i) declare, set aside or pay any dividend or
other distribution payable in cash, stock or property with respect to its
capital stock; (ii) issue, sell, pledge, dispose of or encumber any
additional shares of, or securities convertible into or exchangeable for, or
options, warrants, calls, commitments or rights of any kind to acquire, any
shares of capital stock of any class of the Company, other than shares of
Common Stock reserved for issuance on the date of the Merger Agreement
pursuant to the exercise of Options, Warrants or conversion of Voting Debt
outstanding on the date thereof; (iii) transfer, lease, license, sell,
mortgage, pledge, dispose of, or encumber any assets other than in the
ordinary and usual course of business and consistent with past practice, or
incur or modify any indebtedness or other liability, other than in the
ordinary and usual course of business and consistent with past practice; or
(iv) redeem, purchase or otherwise acquire directly or indirectly any of its
capital stock;
(d) the Company shall not: (i) grant any increase in the compensation
payable or to become payable by the Company to any of its executive
officers, (ii) (A) adopt any new, or (B) amend or otherwise increase, or
accelerate the payment or vesting of the amounts payable or to become
payable under, any existing bonus, incentive compensation, deferred
compensation, severance, profit sharing, stock option, stock purchase,
insurance, pension, retirement or other employee benefit plan, agreement or
arrangement or (iii) enter into any employment or severance agreement with
or, except in accordance with the existing written policies of the Company,
grant any severance or termination pay to any officer, director or employee
of the Company;
(e) the Company shall not modify, amend or terminate any of its material
contracts or waive, release or assign any material rights or claims, except
in the ordinary course of business and consistent with past practice;
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(f) the Company shall not permit any insurance policy naming it as a
beneficiary or a loss payable payee to be canceled or terminated without
notice to Purchaser, except in the ordinary course of business and
consistent with past practice;
(g) the Company shall not: (i) incur or assume any long-term debt, or,
except in the ordinary course of business, incur or assume any short-term
indebtedness in amounts not consistent with past practice; (ii) assume,
guarantee, endorse or otherwise become liable or responsible (whether
directly, contingently or otherwise) for the obligations of any other
person, except in the ordinary course of business and consistent with past
practice; (iii) other than ordinary course expense advances, make any loans,
advances or capital contributions to, or investments in, any other person;
or (iv) enter into any material commitment or transaction (including, but
not limited to, any borrowing, capital expenditure or purchase, sale or
lease of assets or real estate);
(h) the Company shall not: (i) change any of the accounting methods used
by it unless required by United States generally accepted accounting
principles ("GAAP") or (ii) other than related to a valid "qualified
electing fund" election pursuant to Section 1295 of the Code with respect to
all stock which it owns, or is considered to own, in any corporation which
meets the definition of "passive foreign investment company" set forth in
Section 1297 of the Code, make any material tax election, change any
material tax election already made, adopt any material tax accounting
method, change any material tax accounting method unless required by GAAP,
enter into any closing agreement, settle any material tax claim or
assessment or consent to any material tax claim or assessment or any waiver
of the statute of limitations for any such material claim or assessment;
(i) the Company shall not pay, discharge or satisfy any claims,
liabilities or obligations (absolute, accrued, asserted or unasserted,
contingent or otherwise), other than the payment, discharge or satisfaction
of any such claims, liabilities or obligations, in the ordinary course of
business and consistent with past practice, or claims, liabilities or
obligations reflected or reserved against in, or contemplated by, the
consolidated financial statements (or the notes thereto) of the Company;
(j) the Company shall not adopt a plan of complete or partial
liquidation, dissolution, merger, consolidation, restructuring,
recapitalization or other reorganization of the Company (other than the
Merger);
(k) the Company shall not take, or agree to commit to take, any action
that would, or is reasonably likely to, result in any of the conditions to
the Merger set forth in the Merger Agreement not being satisfied, or would
make any representation or warranty of the Company contained therein
inaccurate in any respect at, or as of any time prior to, the Effective
Time, or that would materially impair the ability of the Company to
consummate the Merger in accordance with the terms of the Merger Agreement
or materially delay such consummation;
(l) the Company shall not redeem the Rights or terminate, amend or
otherwise modify the Rights Agreement prior to the consummation of the Offer
unless required to do so by order of a court of competent jurisdiction; and
(m) the Company shall not enter into an agreement, contract, commitment
or arrangement to do any of the foregoing, or to authorize, recommend,
propose or announce an intention to do any of the foregoing.
DEBT TENDER OFFER. Pursuant to the Merger Agreement, upon the request of
Purchaser, the Company will commence an offer to purchase (accompanied by a
related solicitation of consents (the "Consents") regarding certain covenant
amendments (the "Proposed Amendments")) all of the Company's outstanding 9 1/2%
Senior Discount Notes due 2005 (the "Senior Notes") on such customary terms and
conditions as are acceptable to Purchaser and reasonably satisfactory to the
Company Board (the "Debt Offer to Purchase"). The Debt Offer to Purchase will be
conditioned upon, among other
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things: (i) the receipt of Consents from the holders of the Notes of at least a
majority of the aggregate outstanding principal amount of Notes, excluding Notes
owned by the Company and certain affiliates, and the execution by the Company of
an indenture supplemental to the indenture pursuant to which the Notes were
issued effecting the Proposed Amendments; (ii) the valid tender of at least a
majority of the outstanding principal amount of the Notes as of the expiration
date of the Debt Offer to Purchase; (iii) the consummation of the Offer; and
(iv) other customary conditions for transactions similar to the Debt Offer to
Purchase. The Purchaser has agreed to reimburse the Company for any and all
expenses and fees incurred by the Company in connection with the Debt Offer if
the Debt Offer is commenced but terminated without consummation, and such
failure to consummate is not the result of the Company's breach.
NO SOLICITATION. Pursuant to the Merger Agreement, the Company has agreed
that it will not (and will use its best efforts to ensure that its officers,
directors, employees, investment bankers, attorneys, accountants and other
agents do not), directly or indirectly, (i) initiate, solicit or encourage, or
take any action to facilitate (including by the furnishing of information) the
making of, any offer or proposal which constitutes or is reasonably likely to
lead to any Takeover Proposal (as hereinafter defined), (ii) enter into any
agreement with respect to any Takeover Proposal, or (iii) in the event of an
unsolicited Takeover Proposal for the Company engage in negotiations or
discussion with, or provide information or data to, any person (other than
Purchaser, any of its affiliates or representatives and except for information
which has been previously publicly disseminated by the Company) relating to any
Takeover Proposal, except that the Merger Agreement does not prohibit the
Company or the Company Board (i) taking and disclosing to the Company's
stockholders a position with respect to a tender or exchange offer by a third
party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or
(ii) making such disclosure to the Company's stockholders as, the good faith
judgment of the Company Board after receiving advice from outside counsel, the
Company deems necessary to comply with its fiduciary duties to the Company's
stockholders under applicable law. The Company has further agreed to notify
Purchaser within 24 hours if any proposals, inquiries or expressions of interest
are received by, any information is requested from, or any negotiations or
discussions are sought to be initiated or continued with the Company or its
representatives, in connection with any Takeover Proposal or possibility or
consideration thereof, indicating the name of such person and the terms and
conditions of any proposals or offers and to keep the Purchaser informed of the
status and terms of such occurences. A "Takeover Proposal" means any tender or
exchange offer involving the Company, any proposal for a merger, consolidation
or other business combination involving the Company, any proposal or offer to
acquire in any manner a substantial equity interest in, or a significant portion
of the business or assets of, the Company (other than immaterial or
insubstantial assets or inventory in the ordinary course of business or assets
held for sale), any proposal or offer with respect to any recapitalization or
restructuring with respect to the Company or any proposal or offer with respect
to any other transaction similar to any of the foregoing with respect to the
Company other than pursuant to the transactions effected pursuant to the Merger
Agreement.
Notwithstanding the foregoing, prior to the acceptance of Shares pursuant to
the Offer, the Company may furnish information concerning its business,
properties or assets to any person pursuant to appropriate confidentiality
agreements, and may negotiate and participate in discussions and negotiations
with such person concerning a Takeover Proposal (provided that the Company shall
not agree to any exclusive right to negotiate with the Company) if (a) such
entity or group has on an unsolicited basis submitted a bona fide written
proposal to the Company relating to any such transaction that provides for
consideration which the Company Board determines in good faith, after receiving
advice from a nationally recognized investment banking firm, is more favorable
to the Company and its stockholders than the Offer and the Merger (taking into
account all relevant factors) and which is not conditioned upon obtaining
additional financing not fully committed at such time or, in the view of a
nationally recognized investment banking firm, is reasonably likely to be
obtained under then existing market conditions, and (b) in the opinion of the
Company Board, after receiving advice from outside legal counsel to the
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Company, the failure to provide such information or access or to engage in such
discussions or negotiations would likely cause the Company Board to breach its
fiduciary duties to the Company's stockholders under applicable law (a Takeover
Proposal which satisfies clauses (a) and (b), a "Superior Proposal"). The
Company must then provide Purchaser any nonpublic information regarding the
Company provided to the other party which was not previously provided to
Purchaser. If the Company, after consultation with outside legal counsel,
believes that a breach of fiduciary duties to the Company's stockholders would
likely occur, the Company Board may (subject to this and the following
sentences) inform the Company's stockholders that it no longer believes that the
Offer and the Merger is advisable and no longer recommends approval (a
"Subsequent Determination"), but only at a time that is after the fifth business
day following Purchaser's receipt of written notice advising Purchaser that the
Company Board has received a Superior Proposal specifying the material terms and
conditions of such Superior Proposal (and including a copy thereof with all
accompanying documentation), identifying the person making such Superior
Proposal and stating that it intends to make a Subsequent Determination.
Notwithstanding the foregoing, prior to and including such fifth day the Company
may make such public disclosure that is in its view required under the Federal
securities laws, as evidenced by an opinion from outside counsel to the Company,
a copy of which shall be provided to Purchaser prior to such disclosure. After
providing such notice, the Company shall provide a reasonable opportunity to
Purchaser to make such adjustments in the terms and conditions of the Merger
Agreement and/or of the Option Agreement as would enable the Company to proceed
with its recommendation of the Offer without a Subsequent Determination. At any
time after five business days following notification to Purchaser of the
Company's intent to terminate the Merger Agreement pursuant to its terms, the
Company Board may terminate the Merger Agreement and enter into an agreement
with respect to a Superior Proposal, provided that the Company shall,
concurrently with entering into such agreement, pay or cause to be paid to
Purchaser the Termination Fee (as defined below). Except as permitted under the
terms of the Merger Agreement, neither the Company Board nor any committee
thereof may, (i) withdraw or modify, or propose to withdraw or modify, in a
manner adverse to Purchaser, the approval or recommendation by the Company Board
or any such committee of the Offer, the Merger Agreement or the Merger, (ii)
approve or recommend, or propose to approve or recommend to Purchaser, any
Takeover Proposal or (iii) enter into any agreement with respect to any Takeover
Proposal. Notwithstanding any other provision of the Merger Agreement, the
Company must submit the Merger Agreement to the Company's stockholders whether
or not the Company Board makes a Subsequent Determination.
INDEMNIFICATION AND INSURANCE. The Company shall, to the fullest extent
permitted under Delaware law and regardless of whether the Merger becomes
effective, indemnify, defend and hold harmless, and after the Effective Time,
Purchaser and the Surviving Corporation shall jointly and severally, to the
fullest extent permitted under Delaware law, indemnify, defend and hold
harmless, the present and former officers, directors, employees and agents of
the Company (the "Indemnified Parties") against any costs or expenses (including
reasonable attorneys' fees), judgments, fines, losses, claims, damages,
liabilities and amounts paid in settlement in connection with any claim, action,
suit, proceeding or investigation, including without limitation, liabilities
arising out of the Merger. The Merger Agreement also provides that the Surviving
Corporation will maintain or obtain directors' and officers' liability insurance
("D&O Insurance") for a period of not less than three years after the Effective
Time, provided, however, that if the aggregate annual premiums for such D&O
Insurance at any time exceeds 150% of the per annum rate of premium currently
paid by the Company for such insurance as in effect on the date of the Merger
Agreement, then Purchaser will cause the Company (or the Surviving Corporation
if after the Effective Time) to provide the maximum coverage then available at
an annual premium equal to 150% of such rate.
REPRESENTATIONS AND WARRANTIES. Pursuant to the Merger Agreement, the
Company has made customary representations and warranties to Purchaser with
respect to, among other things, its organization, capitalization, authority
relative to the Merger, financial statements, public filings, conduct of
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business, litigation, employee benefit plans, brokers' fees, compliance with
laws, tax matters, intellectual property, employment matters, environmental
matters, real property, material contracts, potential conflicts of interest,
insurance, vote required to approve the Merger Agreement, undisclosed
liabilities and, information in the Proxy Statement.
TERMINATION; FEES. The Merger Agreement may be terminated and the
transactions contemplated therein may be abandoned at any time before the
Effective Time, whether before or after stockholder approval: (i) by mutual
written consent of the Boards of Directors of Purchaser and the Company; (ii) by
Purchaser if the Offer expires or is terminated without any Shares being
purchased thereunder by Purchaser as a result of the occurrence of any of the
events set forth in Section 14; (iii) by either Purchaser or the Company if a
court of competent jurisdiction or governmental, regulatory or administrative
agency or commission shall have issued an order, decree or ruling or taken any
other action (which order, decree or ruling the parties thereto shall use their
best efforts to lift) permanently restraining, enjoining or otherwise
prohibiting the transactions contemplated by the Merger Agreement; (iv) by
Purchaser if, without any material breach by Purchaser of its obligations under
the Merger Agreement, the purchase of Shares pursuant to the Offer shall not
have occurred on or before May 15, 1999; (v) by the Company if, without any
material breach by the Company of its obligations under the Merger Agreement,
the purchase of Shares pursuant to the Offer shall not have occurred on or
before May 15, 1999; (vi) by the Company (a) if there is a material breach of
any of Purchaser's representations, warranties or covenants under the Merger
Agreement which cannot be or has not been cured within ten days of the receipt
of written notice thereof, or (b) to allow the Company to enter into an
agreement in accordance with the Merger Agreement with respect to a Superior
Proposal which the Company Board has determined is more favorable to the
Company's stockholders than the transactions contemplated by the Merger
Agreement, provided that the Company has complied with the provisions of the
Merger Agreement; (vii) by Purchaser if, prior to the purchase of Shares
pursuant to the Offer, the Company shall have breached any representation,
warranty or covenant or other agreement contained in the Merger Agreement, which
breach (a) would give rise to the failure of a condition set forth in paragraph
(e) or (f) of Section 14 and (b) cannot be or has not been cured within ten days
of the receipt of written notice thereof; (viii) by Purchaser, at any time prior
to the purchase of Shares pursuant to the Offer, if (a) the Company Board
withdraws, modifies, or changes its recommendation or approval in respect of the
Merger Agreement or the Offer in a manner adverse to Purchaser, (b) the Company
Board shall have recommended any proposal other than by Purchaser in respect of
a Takeover Proposal, (c) the Company shall have exercised a right with respect
to a Takeover Proposal and shall, directly or through its representatives,
continue discussions with any third party concerning a Takeover Proposal for
more than ten business days after the date of receipt of such Takeover Proposal,
(d) a Takeover Proposal that is publicly disclosed shall have been commenced or
communicated to the Company which contains a proposal as to price (without
regard to whether such proposal specifies a specific price or a range of
potential prices) and the Company shall not have rejected such proposal within
twenty business days of its receipt or, if sooner, the date its existence first
becomes publicly disclosed, or (e) any person or group (as defined in Section
13(d)(3) of the Exchange Act) other than Purchaser or any of its subsidiaries or
affiliates shall have become the beneficial owner of more than 15% of the
outstanding Common Stock (either on a primary or a fully diluted basis), except
that this provision will not apply to any person that owns more than 15% of the
outstanding Shares on the date of the Merger Agreement; or (ix) by Purchaser, if
the Company or its representatives shall have materially breached the provisions
of the Merger Agreement relating to Takeover Proposals.
In accordance with the Merger Agreement, if (a) Purchaser shall have
terminated the Merger Agreement pursuant to clause (viii) or (ix) of the
preceding paragraph, (b) Purchaser shall have terminated the Merger Agreement
pursuant to clause (vii) of the preceding paragraph and following the date of
the Merger Agreement but before such termination there shall have been a
Takeover Proposal Interest, and within two years of any such termination the
Company shall have entered into a definitive agreement with respect to a
Takeover Proposal or a Takeover Proposal with respect to the Company
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shall have been consummated, or (c) the Company shall have terminated the Merger
Agreement pursuant to clause (vi)(b) of the preceding paragraph, then in any
such case the Company shall pay simultaneously with such termination if pursuant
to clause (vi)(b) and promptly, but in no event later than two business days
after the date of such termination or event if pursuant to clause (viii), clause
(ix) or clause (vii), to Purchaser a termination fee (the "Termination Fee") of
$43 million, which amount shall be payable by wire transfer to such account as
Purchaser may designate in writing to the Company.
OPTION AGREEMENT.
The following is a summary of certain portions of the Option Agreement and
is qualified in its entirety by reference to the Option Agreement, a copy of
which has been filed with the Commission as an exhibit to the Schedule 14D-1.
The Option Agreement may be examined and copies may be obtained at the places
and in the manner set forth in Section 9 of this Offer to Purchase.
As a condition and inducement to Purchaser's entering into the Merger
Agreement, concurrently with the execution and delivery of the Merger Agreement,
Purchaser and the Company have entered into the Option Agreement, pursuant to
which, among another things, the Company has granted Purchaser an irrevocable
option to purchase up to 4,338,133 newly-issued Shares (the "Company Option") at
a purchase price per Share of $65.75 (the "Exercise Price"), provided, however,
that in no event shall the number of Shares for which the Company Option is
exercisable exceed 19.9% of the Company's issued and outstanding shares of
Company Common Stock. The Option Agreement will terminate, and the Company
Option will expire, on the earliest of (i) the Effective Time and (ii) to the
extent that Purchaser has given no notice of its intention to exercise all or
any part of the Company Option, six (6) months after any termination of the
Merger Agreement pursuant to Section 8.1(b), (f)(ii), (g), (h) or (i) thereof
and at the time of termination of the Merger Agreement pursuant to Section
8.1(a), (c), (d), (e) or (f)(i) thereof.
Purchaser (or its designee) may exercise the Company Option, in whole or in
part, if on or after the date hereof: (a) any corporation, partnership,
individual, trust, unincorporated association, or other entity or "person" (as
defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act")), other than Purchaser or any of its affiliates (a "Third
Party"): (i) commences or announces an intention to commence a tender offer or
exchange offer for any shares of Company Common Stock, the consummation of which
would result in beneficial ownership by such Third Party (together with all such
Third Party's affiliates and associates) of 15% or more of the then outstanding
voting equity of the Company (either on a primary or a fully diluted basis); or
(ii) acquires beneficial ownership of shares of Company Common Stock which, when
aggregated with any Shares already owned by such Third Party, its affiliates and
associates, would result in the aggregate beneficial ownership by such Third
Party, its affiliates and associates of 15% or more of the then outstanding
voting equity of the Company (either on a primary or a fully diluted basis);
provided, however, that "Third Party" for purposes of this clause (ii) shall not
include any corporation, partnership, person, other entity or group which
beneficially owns more than 15% of the outstanding voting equity of the Company
(either on a primary or a fully diluted basis) as of the date hereof and that
does not, after the date hereof, increase such ownership percentage by more than
an additional 1% of the outstanding voting equity of the Company (either on a
primary or a fully diluted basis); or (b) any of the events described in
Sections 8.1(g) (so long as following the date the Option Agreement but prior to
any termination there shall have been a proposal, inquiry or expression of
interest in connection with a Takeover Proposal), 8.1(h) or 8.1(i) of the Merger
Agreement that would allow Purchaser to terminate the Merger Agreement has
occurred (but without the necessity of Purchaser having terminated the Merger
Agreement).
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In the event of any change in the Shares or in the number of outstanding
Shares by reason of a stock dividend, split-up, recapitalization, combination,
exchange of shares or similar transaction or any other change in the corporate
or capital structure of the Company (including, without limitation, the
declaration or payment of an extraordinary dividend of cash, securities or other
property), the type and number of the Shares to be issued by the Company upon
exercise of the Company Option shall be adjusted appropriately, and proper
provision shall be made in the agreements governing such transaction, so that
Purchaser shall receive upon exercise of the Company Option the number and class
of shares or other securities or property that Purchaser would have received in
respect to the Shares if the Company Option had been exercised immediately prior
to such event, or the record date therefor, as applicable, and the holder of
such Shares had elected to the fullest extent it would have been permitted to
elect, to receive such securities, cash or other property. In the event that the
Company shall enter into an agreement (i) to consolidate with or merge into any
person, other than Purchaser or one of its subsidiaries, and shall not be the
continuing or surviving corporation of such consolidation or merger, (ii) to
permit any person, other than Purchaser or one of its subsidiaries, to merge
into the Company and the Company shall be the continuing or surviving
corporation, but, in connection with such merger, the then outstanding Shares
shall be changed into or exchanged for stock or other securities of the Company
or any other person or cash or any other property, or then outstanding Shares
shall after such merger represent less than 50% of the outstanding shares and
share equivalents of the surviving corporation or (iii) to sell or otherwise
transfer all or substantially all of its assets to any person, other than
Purchaser or one of its subsidiaries, then, and in each such case, proper
provision shall be made in the agreements governing such transaction so that
Purchaser shall receive upon exercise of the Company Option the number and class
of shares or other securities or property that Purchaser would have received in
respect of the Shares if the Company Option had been exercised immediately prior
to such transaction, or the record date therefor, as applicable, and the holder
of such Shares had elected to the fullest extent it would have been permitted to
elect, to receive such securities, cash or other property. Such rights of
Purchaser shall be in addition to, and shall in no way limit, its rights against
the Company for any breach of the Merger Agreement.
At any time that Purchaser is entitled to exercise the Company Option,
Purchaser may elect, in its sole discretion, to sell the Company Option to the
Company in lieu of exercising the Company Option. The Company shall be required
to purchase the Company Option from Purchaser on the third business day after
Purchaser gives the Company written notice of such election for a cash price
(payable by certified or official bank check in same day funds to Purchaser or
its designee) equal to the product of the number of Shares then covered by the
Option multiplied by the excess over the Exercise Price of the greater of (x)
the closing price of a share of Company Common Stock on the Nasdaq National
Market on the last trading day prior to the date of such notice and (y) the
highest price per share of Company Common Stock paid or proposed to be paid to
any holder thereof by any person in any Takeover Proposal.
Notwithstanding any other provision of the Option Agreement, in no event
shall Purchaser's Total Profit (as defined below) exceed $14 million and, if it
otherwise would exceed such amount, Purchaser, at its sole election, shall
either (a) reduce the number of Shares subject to the Company Option, (b)
deliver to the Company for cancellation Shares previously purchased by
Purchaser, (c) pay cash to the Company, or (d) any combination thereof, so that
Purchaser's actually realized Total Profit shall not exceed $14 million after
taking into account the foregoing actions. As used herein, the term "Total
Profit" means the aggregate amount (before taxes) of the following: (i) (x) the
net cash amounts received by Purchaser pursuant to the sale of Shares (or any
other securities into which such Shares are converted or exchanged) to any
unaffiliated party, less (y) Purchaser's purchase price of such Shares, and (ii)
any Notional Total Profit (as defined below). As used herein, the term "Notional
Total Profit" with respect to the total number of Shares as to which Purchaser
could propose to exercise the Option shall be the Total Profit determined as of
the date of such proposal assuming that the Company Option were fully exercised
on such date for such number of Shares and assuming that such Shares, together
with all
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other Shares held by Purchaser and its affiliates as of such date, were sold for
cash at the closing market price for the Company Common Stock as of the close of
business on the preceding trading day (less customary brokerage commissions).
STOCKHOLDERS AGREEMENT.
The following is a summary of certain portions of the Stockholders Agreement
and is qualified in its entirety by reference to the Stockholders Agreement, a
copy of which has been filed with the Commission as an exhibit to the Schedule
14D-1. The Stockholders Agreement may be examined and copies may be obtained at
the places and in the manner set forth in Section 9 of this Offer to Purchase.
As a condition and inducement to Purchaser entering into the Merger
Agreement, concurrently with the execution and delivery of the Merger Agreement,
Purchaser has entered into the Stockholders Agreement with the Company and
certain stockholders of the Company who beneficially own approximately 2.36
million Shares in the aggregate, including Shares issuable upon the exercise of
Options. Pursuant to the Stockholders Agreement, such stockholders have agreed
that if requested by Purchaser to exercise all Options granted to such
stockholder under the Option Plans and if certain conditions listed in the
Stockholders Agreement are satisfied, they will exercise such Options. The
conditions to such exercise include that such exercise and tender would result
in a tender offer of over 90% of the outstanding Shares. In connection with any
such exercise, the Purchaser has agreed to indemnify such stockholders against
expenses and taxes incurred which would not be incurred if the Options were
treated pursuant to the Merger Agreement. In addition, stockholders party to the
Stockholders Agreement may exercise options pursuant to a "cashless exercise" or
similar provision. In addition, such stockholders have agreed that, no later
than the tenth business day after the commencement of the Offer, they will
validly tender pursuant to the Offer all Shares owned by them, representing
approximately 4.8% of the outstanding Shares (approximately 11.7% assuming
exercise of all Options beneficially owned by them), as well as any Shares
acquired by them after the date of the Stockholders Agreement.
In addition, the stockholders subject to the Stockholders Agreement have
agreed that, at any meeting of the Company's stockholders, or in connection with
any written consent of the Company's stockholders, they will vote (i) in favor
of the Merger, the execution and delivery by the Company of the Merger Agreement
and the approval and adoption of the Merger and the terms thereof and each of
the other actions contemplated by the Merger Agreement and the Stockholders
Agreement; (ii) against any action or agreement that would (a) result in a
breach of any covenant, representation or warranty or any other obligation or
agreement of the Company under the Merger Agreement or of such stockholder under
the Stockholders Agreement or (b) impede, interfere with, delay, postpone or
adversely affect the Merger or the transactions contemplated thereby or by the
Stockholders Agreement; and (iii) except as otherwise agreed to in writing in
advance by Purchaser, against the following actions (other than the Merger and
the transactions contemplated by the Merger Agreement and the Stockholders
Agreement): (a) any extraordinary corporate transaction, such as a merger,
consolidation or other business combination involving the Company or any of its
subsidiaries; (b) any sale, lease or transfer of a material amount of the assets
or business of the Company or its subsidiaries, or any reorganization,
restructuring, recapitalization, special dividend, dissolution, liquidation or
winding up of the Company or its subsidiaries; (c) any change in the present
capitalization of the Company, including any proposal to sell any equity
interest in the Company or any of its subsidiaries or any amendment of the
Certificate of Incorporation or Bylaws; (d) any change in the majority of the
Company Board; (e) any other change in the Company's corporate structure or
business; and (f) any other action which is intended or could reasonably be
expected to impede, interfere with, delay, postpone, discourage or affect the
Merger, the transactions contemplated by the Merger Agreement or the Stockholder
Agreement or the contemplated economic benefits of any of the foregoing. Each
stockholder subject to the Stockholders Agreement has granted to and appoints
Purchaser such stockholder's proxy and attorney-in-fact to vote the shares owned
by such stockholder in favor of the Merger, the execution and delivery by the
Company of
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the Merger Agreement and the approval and adoption of the Merger and the terms
thereof and each of the other actions contemplated by the Merger Agreement and
the Stockholders Agreement.
The stockholders subject to the Stockholders Agreement have agreed that
until the earlier of the Effective Time and the termination of the Merger
Agreement, they will not, directly or indirectly, (i) transfer any or all Shares
owned by them, (ii) except with respect to Purchaser, grant any proxies or
powers of attorney, deposit any Shares owned by them into a voting trust or
enter into a voting agreement, understanding or arrangement with respect to such
Shares, or (iii) take any action that would make any representation or warranty
of such stockholder contained herein untrue or incorrect or would result in a
breach by such stockholder of its obligations under the Stockholders Agreement
or a breach by the Company of its obligations under the Merger Agreement.
However, stockholders subject to the Stockholders Agreement may transfer Shares
to an affiliate of such stockholder, any member of such stockholder's immediate
family, a trust for the benefit of family members of such stockholders, or any
charitable organizations (as defined in Section 501(c)(3) of the Code). In
addition, other than as required in his capacity as a director or officer of the
Company under applicable laws and fiduciary duties, each such stockholder and
its affiliates have agreed not, to (i) directly or indirectly solicit, initiate
or encourage a Takeover Proposal, (ii) enter into, maintain or continue
discussions or negotiations with any party (other than Purchaser) in furtherance
of a Takeover Proposal or (iii) agree to or endorse any Takeover Proposal.
GUARANTEE
The following is a summary of certain portions of the Guarantee and is
qualified in its entirety by reference to the Guarantee, a copy of which has
been filed with the Commission as an exhibit to the Schedule 14D-1. The
Guarantee may be examined and copies may be obtained at the places and in the
manner set forth in Section 9 of this Offer to Purchase.
As a condition and inducement to the Company entering into the Merger
Agreement, concurrently with the execution and delivery of the Merger Agreement,
Olivetti, Mannesmann and the Company have entered into the Guarantee, pursuant
to which, among other things, Olivetti and Mannesmann have agreed jointly and
severally to guarantee unconditionally and irrevocably, for the benefit of the
Company, the performance of certain obligations of Purchaser pursuant to the
Merger Agreement. Olivetti and Mannesmann have represented in the Guarantee that
they have funds available to them sufficient to purchase, or cause to be
purchased, the Shares and Options in accordance with the terms of the Merger
Agreement, and to pay, or cause to be paid, all amounts due (or which will, as a
result of the transactions contemplated by the Merger Agreement, become due) in
respect of the Debt Tender any Offer. The Guarantee terminates upon consummation
of the purchase by Purchaser or any of its affiliates of any Shares pursuant to
the Offer.
CONFIDENTIALITY AGREEMENT.
The following is a summary of certain portions of the Confidentiality
Agreement, dated December 1, 1998, among Olivetti, Mannesmann and the Company
(the Confidentiality Agreement") and is qualified in its entirety by reference
to the Confidentiality Agreement, a copy of which has been filed with the
Commission as an exhibit to the Schedule 14D-1. The Confidentiality Agreement
may be examined and copies may be obtained at the places and in the manner set
forth in Section 9 of this Offer to Purchase.
As a condition to being furnished information concerning the Company
("Evaluation Material") by or on behalf of the Company, Olivetti and Mannesmann
have agreed, among other things, that they will keep such Evaluation Material
confidential and will use it solely for evaluating the Offer and the Merger.
"Evaluation Material" does not include information which (i) is already in the
possession of Mannesmann or Olivetti, provided that such information in not
known by them to be subject to another confidentiality agreement with or other
obligation of secrecy to the Company or another party,
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(ii) becomes generally available to the public other than as a result of a
disclosure by Mannesmann or Olivetti or their respective directors, officers,
employees, agents or advisors, or (iii) becomes available to Olivetti or
Mannesmann on a non-confidential basis from a source other than the Company or
its advisers, provided that such source is not known to be bound by a
confidentiality agreement with or other obligation of secrecy to the Company or
another party.
12. PLANS FOR THE COMPANY; OTHER MATTERS.
PLANS FOR THE COMPANY. If, as and to the extent that Purchaser acquires
control of the Company, Purchaser intends to conduct a detailed review of the
Company and its assets, corporate structure, capitalization, operations,
properties, policies, management and personnel and to consider and determine
what, if any, changes would be desirable in light of the circumstances which
then exist. Such changes could include, among other things, changes in the
Company's business, corporate structure, Certificate of Incorporation, By-laws,
capitalization, management or dividend policy.
Assuming the Minimum Condition is satisfied and Purchaser purchases Shares
pursuant to the Offer, Purchaser intends promptly to exercise its rights under
the Merger Agreement to obtain majority representation on, and control of, the
Company Board. See "Merger Agreement--Company Board" above. The Merger Agreement
provides that, upon the purchase of and payment for any Shares by Purchaser or
any of its subsidiaries pursuant to the Offer, Purchaser shall be entitled to
designate such number of directors, rounded up to the next whole number, on the
Company Board such that the percentage of its designees on the Company Board
shall equal the percentage of the outstanding Shares beneficially owned by
Purchaser and its affiliates. See Section 11. The Merger Agreement provides that
the directors of Purchaser and the officers of the Company at the Effective Time
of the Merger will, from and after the Effective Time, be the initial directors
and officers, respectively, of the Surviving Corporation.
Purchaser or an affiliate of Purchaser may, following the consummation or
termination of the Offer, seek to acquire additional Shares through open market
purchases, privately negotiated transactions, a tender offer or exchange offer
or otherwise, upon such terms and at such prices as it shall determine, which
may be more or less than the price to be paid pursuant to the Offer. Purchaser
and its affiliates also reserve the right to dispose of any or all Shares
acquired by them, subject to the terms of the Merger Agreement.
Except as disclosed in this Offer to Purchase, and except as may be effected
in connection with the integration of operations referred to above, Purchaser
has no present plans or proposals that would result in an extraordinary
corporate transaction, such as a merger, reorganization, liquidation, relocation
of operations, or sale or transfer of a material amount of assets, involving the
Company or any of its subsidiaries, or any material changes in the Company's
capitalization, corporate structure, business or composition of its management
or the Company Board.
STOCKHOLDER APPROVAL. Under the DGCL, the approval of the Company Board and
the affirmative vote of the holders of a majority of the outstanding Shares are
required to adopt and approve the Merger Agreement and the transactions
contemplated thereby. The Company has represented in the Merger Agreement that
the execution and delivery of the Merger Agreement, the Option Agreement and the
Stockholders Agreement by the Company and the consummation by the Company of the
transactions contemplated by the Merger Agreement, the Option Agreement and the
Stockholders Agreement have been duly authorized by all necessary corporate
action on the part of the Company, subject to the approval of the Merger by the
Company's stockholders in accordance with the DGCL. In addition, the Company has
represented that the affirmative vote of the holders of a majority of the
outstanding Shares is the only vote of the holders of any class or series of the
Company's capital stock which is necessary to approve the Merger Agreement and
the transactions contemplated thereby, including the Merger. Therefore, unless
the Merger is consummated pursuant to the short-form merger provisions under the
DGCL described below (in which case no further corporate action by the
stockholders of the Company
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will be required to complete the Merger), the only remaining required corporate
action of the Company will be the approval of the Merger Agreement and the
transactions contemplated thereby by the affirmative vote of the holders of a
majority of the Shares. The Merger Agreement provides that Purchaser will vote,
or cause to be voted, all of the Shares then owned by Purchaser or any of its
subsidiaries and affiliates in favor of the approval of the Merger and the
adoption of the Merger Agreement. In the event that Purchaser and its
subsidiaries acquire in the aggregate at least a majority of the Shares entitled
to vote on the approval of the Merger and the Merger Agreement, they would have
the ability to effect the Merger without the affirmative votes of any other
stockholders.
SHORT-FORM MERGER. Section 253 of the DGCL provides that, if a corporation
owns at least 90% of the outstanding shares of each class of another
corporation, the corporation holding such stock may merge itself into such
corporation without any action or vote on the part of the board of directors or
the stockholders of such other corporation (a "short-form merger"). In the event
that Purchaser and its subsidiaries acquire in the aggregate at least 90% of the
outstanding Shares, pursuant to the Offer or otherwise, then, at the election of
Purchaser, a short-form merger could be effected without any approval of the
Company Board or the stockholders of the Company, subject to compliance with the
provisions of Section 253 of the DGCL. In the Merger Agreement, Purchaser and
the Company have agreed that, notwithstanding that all conditions to the Offer
are satisfied or waived as of the scheduled Expiration Date, Purchaser may
extend the Offer for a period not to exceed fifteen (15) business days, subject
to certain conditions, if the Shares tendered pursuant to the Offer are less
than 90% of the outstanding Shares so long as Purchaser irrevocably waives the
satisfaction of any of the conditions to the Offer (other than the Minimum
Condition and the condition set forth in paragraph (b) of Section 14 hereof)
that subsequently may not be satisfied during such extension of the Offer,
provided that the Expiration Date may not be extended beyond May 15, 1999. Even
if Purchaser does not own 90% of the outstanding Shares following consummation
of the Offer, Purchaser could seek to purchase additional Shares in the open
market or otherwise in order to reach the 90% threshold and employ a short-form
merger. The per share consideration paid for any Shares so acquired may be
greater or less than that paid in the Offer. Purchaser presently intends to
effect a short-form merger if permitted to do so under the DGCL.
APPRAISAL RIGHTS. Holders of Shares do not have appraisal rights in
connection with the Offer. However, if the Merger is consummated, holders of
Shares at the Effective Time will have certain rights pursuant to the provisions
of Section 262 of the DGCL including the right to dissent and demand appraisal
of, and to receive payment in cash of the fair value of, their Shares. Under
Section 262 of the DGCL, dissenting stockholders of the Company who comply with
the applicable statutory procedures will be entitled to receive a judicial
determination of the fair value of their Shares (exclusive of any element of
value arising from the accomplishment or expectation of the Merger) and to
receive payment of such fair value in cash, together with a fair rate of
interest thereon, if any. Any such judicial determination of the fair value of
the Shares could be based upon factors other than, or in addition to, the price
per Share to be paid in the Merger or the market value of the Shares. The value
so determined could be more or less than the price per Share to be paid in the
Merger.
THE FOREGOING SUMMARY OF THE RIGHTS OF DISSENTING STOCKHOLDERS UNDER THE
DGCL DOES NOT PURPORT TO BE A COMPLETE STATEMENT OF THE PROCEDURES TO BE
FOLLOWED BY STOCKHOLDERS DESIRING TO EXERCISE ANY APPRAISAL RIGHTS AVAILABLE
UNDER THE DGCL. THE PRESERVATION AND EXERCISE OF APPRAISAL RIGHTS REQUIRE STRICT
ADHERENCE TO THE APPLICABLE PROVISIONS OF THE DGCL.
RULE 13E-3. The Commission has adopted Rule 13e-3 under the Exchange Act
which is applicable to certain "going private" transactions and which may under
certain circumstances be applicable to the Merger or another business
combination following the purchase of Shares pursuant to the Offer in which
Purchaser seeks to acquire the remaining Shares not held by it. Purchaser
believes, however, that Rule 13e-3 will not be applicable to the Merger because
it is anticipated that the Merger would be
32
<PAGE>
effected within one (1) year following consummation of the Offer and in the
Merger stockholders would receive the same price per Share as paid in the Offer.
If Rule 13e-3 were applicable to the Merger, it would require, among other
things, that certain financial information concerning the Company, and certain
information relating to the fairness of the proposed transaction and the
consideration offered to minority stockholders in such a transaction, be filed
with the Commission and disclosed to minority stockholders prior to consummation
of the transaction.
13. DIVIDENDS AND DISTRIBUTIONS. As described above, the Merger Agreement
provides that until such time as the designees of Purchaser have been elected
to, and shall constitute a majority of, the Company Board, without the prior
written consent of Purchaser, neither the Company nor any of its subsidiaries
shall: (i) declare, set aside or pay any dividend or other distribution payable
in cash, stock or property with respect to the Company's capital stock; (ii)
redeem, purchase or otherwise acquire directly or indirectly any of the
Company's capital stock; (iii) issue, sell, pledge, dispose of or encumber any
additional shares of, or securities convertible into or exchangeable for, or
options, warrants, calls, commitments or rights of any kind to acquire, any
shares of capital stock of any class of the Company, other than Shares issued
upon the exercise or conversion of Options, Warrants and Convertible Notes
outstanding on December 11, 1998; or (iv) split, combine or reclassify the
outstanding capital stock of the Company.
14. CONDITIONS TO THE OFFER. Notwithstanding any other provision of the
Offer, Purchaser shall not be required to accept for payment or, subject to any
applicable rules and regulations of the Commission, including Rule 14e-1(c)
promulgated under the Exchange Act (relating to Purchaser's obligation to pay
for or return tendered Shares promptly after termination or withdrawal of the
Offer), pay for, and (subject to any such rules or regulations) may delay the
acceptance for payment of any tendered Shares and (except as provided in the
Merger Agreement) amend or terminate the Offer as to any Shares not then paid
for if (i) the Minimum Condition shall not have been satisfied, (ii) any
applicable waiting period under the HSR Act shall not have expired or been
terminated prior to the expiration of the Offer or (iii) at any time after the
date of the Merger Agreement and before the time of acceptance for payment of
any such Shares (whether or not any Shares have theretofore been accepted for
payment or paid for pursuant to the Offer), any of the following conditions
exists:
(a) there shall be threatened or pending in effect an injunction or
other order, decree, judgment or ruling by a court of competent jurisdiction
or by a governmental, regulatory or administrative agency or commission of
competent jurisdiction or a statute, rule, regulation, executive order or
other action shall have been promulgated, enacted, taken or threatened by a
governmental authority or a governmental, regulatory or administrative
agency or commission of competent jurisdiction which in any such case (i)
restrains or prohibits the making or consummation of the Offer or the
consummation of the Merger, (ii) prohibits or restricts the ownership or
operation by Purchaser (or any of its affiliates or subsidiaries) of any
portion of its or the Company's business or assets which is material to the
business of all such entities taken as a whole, or compels Purchaser (or any
of its affiliates or subsidiaries) to dispose of or hold separate any
portion of its or the Company's business or assets which is material to the
business of all such entities taken as a whole, (iii) imposes material
limitations on the ability of Purchaser effectively to acquire or to hold or
to exercise full rights of ownership of the Shares, including, without
limitation, the right to vote the Shares purchased by Purchaser on all
matters properly presented to the stockholders of the Company or (iv)
imposes any material limitations on the ability of Purchaser or any of its
affiliates or subsidiaries effectively to control in any material respect
the business and operations of the Company; or
(b) the Merger Agreement shall have been terminated by the Company or
Purchaser in accordance with its terms; or
(c) there shall have occurred (i) any general suspension of, or
limitation on prices for, trading in securities on any national securities
exchange or the over-the-counter market for a period in
33
<PAGE>
excess of 24 hours (excluding suspensions or limitations resulting solely
from physical damage or interference with such exchanges not related to
market conditions), (ii) a declaration of a banking moratorium or any
suspension of payments in respect of banks in the United States (whether or
not mandatory), (iii) a commencement of a war, armed hostilities or other
international or national calamity directly or indirectly involving the
United States (with the exception of any such occurrence involving Iraq),
(iv) any limitation (whether or not mandatory) by any United States
governmental authority on the extension of credit generally by banks or
other financial institutions, (v) a change in general financial, bank or
capital market conditions which materially and adversely affects the ability
of financial institutions in the United States to extend credit or syndicate
loans to investment grade securities or (vi) in the case of any of the
foregoing existing at the time of the execution of the Merger Agreement, a
material acceleration or worsening thereof; or
(d) the Company Board or any committee thereof shall have withdrawn or
modified in a manner adverse to Purchaser its approval or recommendation of
the Offer, the Merger or the Merger Agreement, or approved or recommended
any Takeover Proposal, or the Company shall have entered into any agreement
with respect to any Superior Proposal in accordance with the Merger
Agreement; or
(e) the representations and warranties of the Company set forth in the
Merger Agreement shall not be true and correct in all material respects, in
each case (i) as of the date referred to in any representation or warranty
which addresses matters as of a particular date, or (ii) as to all other
representations and warranties as of the date of the Merger Agreement and as
of the scheduled expiration of the Offer; or
(f) the Company shall have failed to perform in all material respects
any obligation or to comply with any agreement or covenant to be performed
or complied with by it under the Merger Agreement; or
(g) Purchaser shall have failed to receive a certificate executed by
the President or a Vice President of the Company, dated as of the scheduled
expiration of the Offer, to the effect that the conditions set forth in
paragraphs (e) and (f) of this Section 14 have not occurred; or
(h) there shall have occurred any change (or any development that,
insofar as reasonably can be foreseen, is reasonably likely to result in any
change) that constitutes a material adverse effect on the Company; or
(i) any person acquires beneficial ownership (as defined in Rule 13d-3
promulgated under the Exchange Act) of at least 15% of the outstanding
Common Stock.
The foregoing conditions (other than the Minimum Condition) are for the sole
benefit of Purchaser and may be asserted by Purchaser regardless of the
circumstances (including any action or inaction by Purchaser) giving rise to any
such conditions and may be waived by Purchaser in whole or in part at any time
and from time to time, in each case, in the exercise of the good faith judgment
of Purchaser and subject to the terms of the Merger Agreement. The failure by
Purchaser at any time to exercise any of the foregoing rights shall not be
deemed a waiver of any such right and each such right shall be deemed an ongoing
right which may be asserted at any time and from time to time.
15. CERTAIN LEGAL MATTERS.
GENERAL. Except as described in this Section 15, based on information
provided by the Company, none of the Company, Purchaser, Olivetti or Mannesmann
is aware of any license or regulatory permit that appears to be material to the
business of the Company and its subsidiaries, taken as a whole, that might be
adversely affected by the acquisition of Shares by Purchaser pursuant to the
Offer, the Merger or otherwise, or, except as set forth above, of any approval
or other action by any governmental, administrative or regulatory agency or
authority, domestic or foreign, that would be required prior to the
34
<PAGE>
acquisition of Shares by Purchaser pursuant to the Offer, the Merger or
otherwise. Should any such approval or other action be required, Purchaser
presently contemplates that such approval or other action will be sought, except
as described below under "State Antitakeover Statutes." While, except as
otherwise described in this Offer to Purchase, Purchaser does not presently
intend to delay the acceptance for payment of, or payment for, Shares tendered
pursuant to the Offer pending the outcome of any such matter, there can be no
assurance that any such approval or other action, if needed, would be obtained
or would be obtained without substantial conditions or that failure to obtain
any such approval or other action might not result in consequences adverse to
the Company's business or that certain parts of the Company's business might not
have to be disposed of, or other substantial conditions complied with, in the
event that such approvals were not obtained or such other actions were not taken
or in order to obtain any such approval or other action. If certain types of
adverse action are taken with respect to the matters discussed below, Purchaser
could decline to accept for payment, or pay for, any Shares tendered. See
Section 14 for certain conditions to the Offer, including conditions with
respect to governmental actions.
STATE ANTITAKEOVER STATUTES. Section 203 of the DGCL, in general, prohibits
a Delaware corporation, such as the Company, from engaging in a "Business
Combination" (defined as a variety of transactions, including mergers) with an
"Interested Stockholder" (defined generally as a person that is the beneficial
owner of 15% or more of the outstanding voting stock of the subject corporation)
for a period of three years following the date that such person became an
Interested Stockholder unless, prior to the date such person became an
Interested Stockholder, the board of directors of the corporation approved
either the Business Combination or the transaction that resulted in the
stockholder becoming an Interested Stockholder. The provisions of Section 203 of
the DGCL are not applicable to any of the transactions contemplated by the
Merger Agreement, because the Merger Agreement and the transactions contemplated
thereby were approved by the Company Board prior to the execution thereof.
A number of states have adopted laws and regulations that purport to apply
to attempts to acquire corporations that are incorporated in such states, or
whose business operations have substantial economic effects in such states, or
which have substantial assets, security holders, employees, principal executive
offices or principal places of business in such states. In Edgar v. MITE Corp.,
the Supreme Court of the United States (the "Supreme Court") invalidated on
constitutional grounds the Illinois Business Takeover statute, which, as a
matter of state securities law, made certain corporate acquisitions more
difficult. However, in 1987, in CTS Corp. v. Dynamics Corp. of America, the
Supreme Court held that the State of Indiana may, as a matter of corporate law
and, in particular, with respect to those aspects of corporate law concerning
corporate governance, constitutionally disqualify a potential acquiror from
voting on the affairs of a target corporation without the prior approval of the
remaining stockholders. The state law before the Supreme Court was by its terms
applicable only to corporations that had a substantial number of stockholders in
the state and were incorporated there.
Purchaser does not believe that the antitakeover laws and regulations of any
state other than the State of Delaware will by their terms apply to the Offer,
and, except as set forth above with respect to Section 203 of the DGCL,
Purchaser has not attempted to comply with any state antitakeover statute or
regulation. Purchaser reserves the right to challenge the applicability or
validity of any state law purportedly applicable to the Offer and nothing in
this Offer to Purchase or any action taken in connection with the Offer is
intended as a waiver of such right. If it is asserted that any state
antitakeover statute is applicable to the Offer and an appropriate court does
not determine that it is inapplicable or invalid as applied to the Offer,
Purchaser might be required to file certain information with, or to receive
approvals from, the relevant state authorities, and Purchaser might be unable to
accept for payment or pay for Shares tendered pursuant to the Offer or may be
delayed in consummating the Offer. In such case, Purchaser may not be obligated
to accept for payment, or pay for, any Shares tendered pursuant to the Offer.
See Section 14.
35
<PAGE>
ANTITRUST. The Offer and the Merger are subject to the HSR Act, which
provides that certain acquisition transactions may not be consummated unless
certain information has been furnished to the Antitrust Division of the
Department of Justice (the "DOJ") and the Federal Trade Commission (the "FTC")
and certain waiting period requirements have been satisfied.
Pursuant to the requirements of the HSR Act, Olivetti, Mannesmann and
Purchaser expect to file their Notification and Report Forms with respect to the
Offer and Merger with the DOJ and the FTC on or about December 22, 1998. As a
result, assuming such filings are made on December 22, 1998, the waiting period
under the HSR Act with respect to the Offer is scheduled to expire at 11:59
p.m., New York City time, on January 5, 1999, (the fifteenth day after such
filings are made), unless early termination of the waiting period is granted.
However, the DOJ or the FTC may extend the waiting period by requesting
additional information or documentary material from Olivetti, Mannesmann or the
Company. If such a request is made, such waiting period will expire at 11:59
p.m., New York City time, on the tenth day after substantial compliance by
Olivetti, Mannesmann and the Company with such request. Only one extension of
the waiting period pursuant to a request for additional information is
authorized by the HSR Act. Thereafter, such waiting period may be extended only
by court order or with the consent of Olivetti and Mannesmann. In practice,
complying with a request for additional information or material can take a
significant amount of time. In addition, if the DOJ or the FTC raises
substantive issues in connection with a proposed transaction, the parties
frequently engage in negotiations with the relevant governmental agency
concerning possible means of addressing those issues and may agree to delay
consummation of the transaction while such negotiations continue. Purchaser will
not accept for payment Shares tendered pursuant to the Offer unless and until
the waiting period requirements imposed by the HSR Act with respect to the Offer
have been satisfied. See Section 14.
The FTC and the DOJ frequently scrutinize the legality under the Antitrust
Laws (as defined below) of transactions such as Purchaser's acquisition of
Shares pursuant to the Offer and the Merger. At any time before or after
Purchaser's acquisition of Shares, the DOJ or the FTC could take such action
under the Antitrust Laws as it deems necessary or desirable in the public
interest, including seeking to enjoin the acquisition of Shares pursuant to the
Offer or otherwise seeking divestiture of Shares acquired by Purchaser or
divestiture of substantial assets of Purchaser or its subsidiaries. Private
parties, as well as state governments, may also bring legal action under the
Antitrust Laws under certain circumstances. Based upon an examination of
information provided by the Company relating to the businesses in which
Olivetti, Mannesmann and the Company are engaged, Purchaser, Olivetti and
Mannesmann believe that the acquisition of Shares by Purchaser will not violate
the Antitrust Laws. Nevertheless, there can be no assurance that a challenge to
the Offer or other acquisition of Shares by Purchaser on antitrust grounds will
not be made or, if such a challenge is made, of the result. See Section 14 for
certain conditions to the Offer, including conditions with respect to litigation
and certain government actions.
As used in this Offer to Purchase, "Antitrust Laws" shall mean and include
the Sherman Act, as amended, the Clayton Act, as amended, the HSR Act, the
Federal Trade Commission Act, as amended, and all other Federal and state
statutes, rules, regulations, orders, decrees, administrative and judicial
doctrines, and other laws that are designed or intended to prohibit, restrict or
regulate actions having the purpose or effect of monopolization or restraint of
trade.
FEDERAL RESERVE BOARD REGULATIONS. Regulations G, U and X (the "Margin
Regulations") of the Federal Reserve Board restrict the extension or maintenance
of credit for the purpose of buying or carrying margin stock, including the
Shares, if the credit is secured directly or indirectly by margin stock. Such
secured credit may not be extended or maintained in an amount that exceeds the
maximum loan value of all the direct and indirect collateral securing the
credit, including margin stock and other collateral. The Offer will be funded by
capital contributions indirectly from Olivetti and Mannesmann which will be
funded from working capital. Accordingly, the Margin Regulations will not apply
to the funding of the Offer.
36
<PAGE>
16. FEES AND EXPENSES. Purchaser has retained Mackenzie Partners, Inc. to
serve as the Information Agent and IBJ Schroder Bank & Trust Company to serve as
the Depositary in connection with the Offer. The Information Agent may contact
holders of Shares by personal interview, mail, telephone, telex, telegraph and
other methods of electronic communication and may request brokers, dealers,
commercial banks, trust companies and other nominees to forward the Offer
materials to beneficial holders. The Information Agent and the Depositary will
each receive reasonable and customary compensation for their services, be
reimbursed for certain reasonable out-of-pocket expenses and be indemnified
against certain liabilities in connection with their services, including certain
liabilities and expenses under the federal securities laws.
Except as set forth above, neither Purchaser, Olivetti or Mannesmann will
pay any fees or commissions to any broker or dealer or other person or entity in
connection with the solicitation of tenders of Shares pursuant to the Offer.
Brokers, dealers, banks and trust companies will be reimbursed by Purchaser for
customary mailing and handling expenses incurred by them in forwarding the Offer
materials to their customers.
17. MISCELLANEOUS. Purchaser is not aware of any state where the making of
the offer is prohibited by administrative or judicial action pursuant to any
valid state statute. If Purchaser becomes aware of any valid state statute
prohibiting the making of the Offer or the acceptance of the Shares pursuant
thereto, Purchaser shall make a good faith effort to comply with such statute or
seek to have such statute declared inapplicable to the Offer. If, after such
good faith effort, Purchaser cannot comply with such state statute, the Offer
will not be made to (nor will tenders be accepted from or on behalf of) holders
of Shares in such state.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION ON BEHALF OF PURCHASER, OLIVETTI OR MANNESMANN NOT CONTAINED
HEREIN OR IN THE LETTER OF TRANSMITTAL AND, IF GIVEN OR MADE, SUCH INFORMATION
OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED.
Purchaser, Olivetti and Mannesmann have filed with the Commission the
Schedule 14D-1 pursuant to Rule 14d-3 under the Exchange Act, together with
exhibits, furnishing certain additional information with respect to the Offer.
In addition, the Company has filed with the Commission the Schedule 14D-9
pursuant to Rule 14d-9 under the Exchange Act, setting forth its recommendation
with respect to the Offer and the reasons for its recommendation and furnishing
certain additional related information. Such Schedules and any amendments
thereto, including exhibits, should be available for inspection and copies
should be obtainable in the same manner set forth in Section 9 of this Offer to
Purchase (except that such material will not be available at the regional
offices of the Commission).
KENSINGTON ACQUISITION SUB, INC.
December 17, 1998
37
<PAGE>
SCHEDULE I
INFORMATION CONCERNING DIRECTORS AND EXECUTIVE OFFICER
OF PURCHASER, OLIVETTI AND MANNESMANN
1. KENSINGTON ACQUISITION SUB, INC. The following table sets forth the
name and present principal occupation or employment, and material occupations,
positions, offices or employments for the past five years, of each director and
executive officer of Purchaser. Unless otherwise indicated, each occupation set
forth opposite an individual's name refers to positions held with Purchaser.
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT;
NAME MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- ------------------------------------ ---------------------------------------------------------------------------
<S> <C>
Marco De Benedetti.................. Mr. De Benedetti is a member of the Board of Directors, Co-President and
Co-Secretary. For additional information concerning Mr. De Benedetti, see
Section 2 if this Schedule I.
Dr. Kurt J. Kinzius................. Dr. Kinzius is a member of the Board of Directors, Co-President and
Co-Secretary. He has been a member of the Board of Directors of Mannesmann
Eurokom GmbH since October 1997. He was head of the Strategic Development
Department of Mannesmann from October 1994 to September 1997 and head of
the Finance Department of Mannesmann Demag Ltd., London from October 1990
to September 1994. Mr. Kinzius' business address is c/o Mannesmann AG,
Mannesmannufer 2, D-40213, Dusseldorf, and he is a German citizen.
</TABLE>
2. OLIVETTI S.P.A. The following table sets forth the name and present
principal occupation or employment, and material occupations, positions, offices
or employments for the past five years, of each director and executive officer
of Olivetti. Unless otherwise indicated, each such person is a citizen of Italy
and the business address of each such person is c/o Olivetti S.p.A., Via Jervis
77, 10015 Ivrea, Turin, Italy. Unless otherwise indicated, each occupation set
forth opposite an individual's name refers to employment with Olivetti.
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT;
NAME MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- ------------------------------------ ---------------------------------------------------------------------------
<S> <C>
Antonio Tesone...................... Mr. Tesone has been Chairman since September 1996 and a member of the Board
of Directors since May 1996. He also was a member of the Board of Directors
from May 1995 to March 1996. He has his own legal practice located in
Milan, Italy.
Roberto Colaninno................... Mr. Colaninno has been Chief Executive Officer since September 1996. He has
been Vice Chairman of Omnitel since April 1997, and Chairman of OliMan
since December 1997. He has also been Executive Vice President of Sogefl
S.p.A. since November 1996 and a Director and member of the Chairman's
Committee of Banca Agricola Mantovana since October 1986. Finally, Mr.
Colaninno was Chief Executive Officer of Fiaam from April 1974 to December
1996.
</TABLE>
38
<PAGE>
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT;
NAME MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- ------------------------------------ ---------------------------------------------------------------------------
<S> <C>
Peter A. Cohen...................... Mr. Cohen has been a member of the Board of Directors since May 1994. He is
currently the managing member of Ramius Capital Group, L.L.C., an
investment advisory and investment banking firm in New York. He is Vice
Chairman and a Director of GRC International Inc., a Director of
Presidential Life Insurance Company and a Trustee of Mount Sinai/New York
University Hospital. He is Vice Chairman of Republic New York Corporation
and Chairman and Chief Executive Officer of Republic New York Securities
Corporation. He was also Chairman and Chief Executive Officer of Shearson
Lehman Brothers, Inc. From 1983 to 1990. Mr. Cohen is a citizen of the
United States.
Dr. Klaus Esser..................... Dr. Esser has been a member of the Board of Directors since February 1998.
Dr. Esser is a German citizen. For additional information regarding Dr.
Esser, see Section 3 of this Schedule I.
Maria Luisa Galardi Lizier.......... Ms. Lizier has been a member of the Board of Directors since May 1964.
Franco Girard....................... Mr. Girard has been a member of the Board of Directors since June 1990. He
has been Director General of C.I.R. S.p.A. since 1986. He is also a member
of the Board of Directors of Sasib S.p.A., Rejna, S.p.A. and Isefi S.p.A.
Bruno Lamborghini................... Mr. Lamborghini has been a member of the Board of Directors since October
1996 and Chairman of Olivetti Lexikon S.p.A. since April 1997. He has been
President of Eurobit (European Federation of IT Manufacturers) since March
1990, Chairman of EITO (European Information Technology Observatory) since
1992 and President of the Information Technology Agreement Group of the
Transatlantic Business Dialogue since 1994. He was Deputy Chairman of
Olivetti Telemedia S.p.A. from 1996 to 1998, Director of Omnitel from June
to December 1997, Director of Infostrada S.p.A. from October 1996 to
January 1998, Director of Tecnost S.p.A. from April 1996 to April 1997 and
Senior Vice President for Corporate Studies and Strategies of Olivetti from
1991 to March 1996. He was also Chairman of the Telecommunication Committee
of Confindustria (the Italian Industrialists Association) from September
1994 to October 1998.
Gordon M. W. Owen................... Mr. Owen has been a member of the Board of Directors and a member of the
Audit Committee since October 1996. He has held various positions at Cable
& Wireless PLC for more than 35 years. Mr. Owen has been Chairman of
Energis since 1992, Acorn Computers Ltd. since 1995 and Yeoman Marine Ltd.
since 1995. Mr. Owen has been a non-executive director with NXT Plc since
1992. Mr. Owen is a British citizen.
Luca Paravicini Crespi.............. Mr. Crespi has been a member of the Board of Directors since June 1990. He
has been a Director of C.I.R. S.p.A. since 1985 and Il Gallione S.p.A.
since 1980. He is also Coordinator of Private Banking at Euromobilare Bank.
</TABLE>
39
<PAGE>
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT;
NAME MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- ------------------------------------ ---------------------------------------------------------------------------
<S> <C>
Alberto Pirelli..................... Mr. Pirelli has been a member of the Board of Directors since June 1992. He
has been a Director of Pirelli S.p.A. since 1985 and Deputy Chairman of
Pirelli S.p.A. since 1991. He has been a General Partner of Pirelli & C.
since 1986, a Director of Societe Internationale Pirelli S.A. since 1987
and a Director and Vice President of Pirelli Cavi S.p.A. since 1992. He was
a member of the Executive Committee of Pirelli S.p.A. from 1992 to 1996
(the year in which the Committee ceased to exist).
Peter Reimpell...................... Mr. Reimpell has been a member of the Board of Directors and a member of
the Audit Committee since June 1991. He is Chairman of the Board of
Bayerische Vereinsbank International, Luxembourg, Bayerische Vereinbank
France, Paris, BV Capital Inc., BV Capital Markets (Asia) Ltd., Tokyo,
Banque Internationale de Credit et de Gestion, Monaco, Simonbank AG,
Eurosynergies S.A., TA Triumph-Adler AG, Koenig & Bauer AG and KBA Planeta
AG. He has been Deputy Chairman of Privatbank AG. He is a member of the
Board of Bank fur Oberosterreich und Salzburg, Bank fur Tirol und
Vorarlberg, GT Investment Fund and WAW Vereinigte Aluminum-Werke AG. He is
a member of the International Institute of Banking Studies. Mr. Reimpell is
a German citizen.
Piera Rosiello...................... Ms. Rosiello has been a member of the Board of Directors since May 1996 and
Secretary since 1992. She has held various positions in the Legal Office,
Legal Affairs Division and International Relations Division since 1954. She
also has been a Director of Tecnost S.p.A. since 1987 and was Chairman of
Tecnost S.p.A. from 1992 to 1995.
Dario Trevisan...................... Mr. Trevisan has been a member of the Board of Directors and a member of
the Audit Committee since October 1996. He practices law at Calesella,
Trevisan & Associati. He is a member of the International Corporate
Governance Network and the Eurolegal Lawyers Association. He is a lecturer
for the MF Conference introductory course "Regulations on Financial
Markets."
Gerard Worms........................ Mr. Worms has been a member of the Board of Directors and a member of the
Audit Committee since October 1996 and December 1997, respectively. He has
been Chairman of Banque Rothschild & Cie since 1995. He has been a Director
of Credit Local de France since 1996, Paris Orleans since 1996 and Societe
Generale de Belgique since 1988. Mr. Worms was Chairman of Banca Indosuez
from 1994 to 1995 and Compagnia Finanziaria di Suez from 1990 to 1994. Mr.
Worms is a French citizen.
</TABLE>
40
<PAGE>
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT;
NAME MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- ------------------------------------ ---------------------------------------------------------------------------
<S> <C>
Emilio Gnutti....................... Mr. Gnutti was appointed to the Board of Director on December 15, 1998. He
is Deputy Chairman and Chief Executive Officer of the Fingruppo and Hopa
financing companies, Societa Europea Componenti Elettrici, Markfactor and
Colmark and Chief Executive Officer of Molveno Oem and Bresciauno. He is
Chairman and Chief Executive Officer of G.P. Line, F.Leasing, G.P.
Finanziaria, Progettazioni Finanziarie, Immobiliare Delfo and Chairman of
GIEM, SIT Prealpi, Bitech, S.F., Emozioni d'Oro and SIBER. He is also
Manager of SIBER Sardegna and G.P.P. International, Director of Banca
Steinhauslin of Florence, and a regular auditor of Thassos Insurance
Brokers, Siber BV and RBM. He was a Director and Executive Committee member
of Banca Popolare of Brescia from 1984 to 1992 and Chief Executive Officer
of Fin-Eco (a company he formed himself in 1979) until 1992.
Luciano La Noce..................... Mr. La Noce has been Corporate Finance Director since 1995. He was Deputy
General Manager of C.I.R. S.p.A. from 1994 to 1995 and Director of
International Finance of C.I.R. S.p.A. from 1985 to 1995.
Corrado Ariaudo..................... Mr. Ariaudo has been Chief Financial Officer of Olivetti Group since
October 1995 and has been in charge of the Group Auditing Department of
Olivetti Group since 1993. He is a member of the Board of Directors of
Omnitel since July 1998, Tecnost S.p.A. since September 1998 and Olivetti
Lexikon S.p.A. since April 1998. He has been President of the Board of
Directors of Olivetti Ricera S.p.c.A. since March 1998 and Syntax Factory
Administration S.p.c.A. since June 1998. Mr. Ariaudo was in charge of the
Investor Relations Department of Olivetti Group from 1991 to 1995.
Marco De Benedetti.................. Mr. De Benedetti has been Managing Director of OliMan since December 1997
and Chairman of Infostrada S.p.A. since October 1996. He has been Managing
Director of Olivetti Telemedia S.p.A. since September 1994.
Daniele Signorini................... Mr. Signorini has been Chief Executive Officer of Olivetti Lexicon S.p.A.
since April 1997. He held various positions, most recently Vice President
for Group Sales in Europe, at Whirlpool since 1990.
</TABLE>
3. MANNESMANN AG. The following table sets forth the name and present
principal occupation or employment, and material occupations, positions, offices
or employments for the past five years, of each director and executive officer
of Mannesmann. Unless otherwise indicated, each such person is a citizen of
Germany and the business address of each such person is c/o Mannesmann AG,
Mannesmannufer 2, D-40213 Dusseldorf, Germany. Unless otherwise indicated, each
occupation set forth opposite an individual's name refers to employment with
Mannesmann. Unless otherwise indicated, each such person has held his or her
present occupation as set forth below, or has been an executive officeror
director at Mannesmann, for the past five years.
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT;
NAME MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- ------------------------------------ ---------------------------------------------------------------------------
<S> <C>
Dr. Joachim Funk.................... Dr. Funk is Chairman of the Board of Directors.
</TABLE>
41
<PAGE>
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT;
NAME MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- ------------------------------------ ---------------------------------------------------------------------------
<S> <C>
Dr. Klaus Esser..................... Dr. Esser is Vice Chairman of the Board of Directors in charge of finances.
He has been Head of the Tax Department of Mannesmann since 1983 and a
Member of the Executive Board of Mannesmann since 1994. For additional
information regarding Dr. Esser, see Section 2 of this Schedule I.
Dr. Wolfgang Peter.................. Dr. Peter is a member of the Board of Directors in charge of technology.
Sigmar Sattler...................... Mr. Sattler has been a member of the Board of Directors in charge of
personnel since April 1997. He was a Director of Mannesmann Toechren Werke
AG from 1996 to 1997, Senior Head of the Personnel Department of Mannesmann
from 1994 to 1996 and Managing Director of Huttenwerke Krupp Mannesmann
GmBH from 1992 to 1994.
Peter Prinz Wittgenstein............ Prinz Wittgenstein is a member of the Board of Directors in charge of
sales.
</TABLE>
42
<PAGE>
Facsimile copies of the Letter of Transmittal, properly completed and duly
executed, will be accepted. The Letter of Transmittal, certificates for Shares
and any other required documents should be sent or delivered by each stockholder
of the Company or his broker, dealer, commercial bank, trust company or other
nominee to the Depositary, at the applicable address set forth below:
THE DEPOSITARY FOR THE OFFER IS:
IBJ SCHRODER BANK & TRUST COMPANY
Telephone Number:
(212) 858-2103
<TABLE>
<S> <C> <C>
BY MAIL: BY FACSIMILE: BY HAND OR OVERNIGHT
P.O. Box 84 (212) 858-2611 DELIVERY:
Bowling Green Station Attn: Reorganization One State Street
New York, New York 10274-0084 Operations Department New York, New York 10004
Attn: Reorganization Attn: Reorganization
Operations Department Operations Department
</TABLE>
Confirm Facsimile by Telephone: (212) 858-2103
Any questions or requests for assistance or additional copies of this Offer
to Purchase, the Letter of Transmittal, the Notice of Guaranteed Delivery and
the other tender offer materials may be directed to the Information Agent at the
address and telephone number set forth below. Stockholders may also contact
their broker, dealer, commercial bank, trust company or other nominee for
assistance concerning the Offer.
THE INFORMATION AGENT FOR THE OFFER IS:
[MacKenzie Partners, Inc. LOGO]
156 FIFTH AVENUE
NEW YORK, NEW YORK 10010
(212) 929-5500 (CALL COLLECT)
OR
CALL TOLL-FREE: (800) 322-2885
------------------------
THE DEALER MANAGERS FOR THE OFFER ARE:
GOLDMAN, SACHS & CO. LEHMAN BROTHERS
85 BROAD STREET 3 WORLD FINANCIAL CENTER
NEW YORK, NEW YORK 10004 NEW YORK, NEW YORK 10285
CALL TOLL-FREE (800) 323-5678 CALL COLLECT (212) 526-2619
<PAGE>
LETTER OF TRANSMITTAL
TO TENDER SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED PREFERRED STOCK PURCHASE RIGHTS)
OF
CELLULAR COMMUNICATIONS INTERNATIONAL, INC.
PURSUANT TO THE OFFER TO PURCHASE
DATED DECEMBER 17, 1998
OF
KENSINGTON ACQUISITION SUB, INC.
A WHOLLY-OWNED SUBSIDIARY
OF
OLIVETTI S.P.A.
AND
MANNESMANN AG
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON FRIDAY, JANUARY 15, 1999, UNLESS THE OFFER IS
EXTENDED.
THE DEPOSITARY FOR THE OFFER IS:
IBJ SCHRODER BANK & TRUST COMPANY
TELEPHONE NUMBER: (212) 858-2103
<TABLE>
<S> <C> <C>
BY MAIL: BY FACSIMILE: BY HAND OR OVERNIGHT DELIVERY:
P.O. Box 84 (212) 858-2611 One State Street
Bowling Green Station Attn: Reorganization Operations New York, New York 10004
New York, New York 10274-0084 Department Attn: Reorganization Operations
Attn: Reorganization Operations Department
Department
</TABLE>
(For Eligible Institutions Only)
Confirm Facsimile by Telephone: (212) 858-2103
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH
ABOVE, OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE TO A NUMBER OTHER THAN AS
SET FORTH ABOVE, WILL NOT CONSTITUTE A VALID DELIVERY TO THE DEPOSITARY.
THE INSTRUCTIONS CONTAINED WITHIN THIS LETTER OF TRANSMITTAL SHOULD BE READ
CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
<PAGE>
This Letter of Transmittal is to be used by stockholders of Cellular
Communications International, Inc. if certificates for Shares (as such term is
defined below) are to be forwarded herewith or, unless an Agent's Message (as
defined in Instruction 2 below) is utilized, if delivery of Shares is to be made
by book-entry transfer to an account maintained by the Depositary at the
Book-Entry Transfer Facility (as defined in and pursuant to the procedures set
forth in Section 3 of the Offer to Purchase). Stockholders who deliver Shares by
book-entry transfer are referred to herein as "Book-Entry Stockholders" and
other stockholders who deliver Shares are referred to herein as "Certificate
Stockholders."
Stockholders whose certificates for Shares are not immediately available or
who cannot deliver either the certificates for, or a Book-Entry Confirmation (as
defined in Section 3 of the Offer to Purchase) with respect to, their Shares and
all other documents required hereby to the Depositary prior to the Expiration
Date (as defined in Section 1 of the Offer to Purchase) must tender their Shares
pursuant to the guaranteed delivery procedures set forth in Section 3 of the
Offer to Purchase. See Instruction 2. DELIVERY OF DOCUMENTS TO THE BOOK-ENTRY
TRANSFER FACILITY WILL NOT CONSTITUTE DELIVERY TO THE DEPOSITARY.
/ / CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER TO
THE DEPOSITARY'S ACCOUNT AT THE BOOK-ENTRY TRANSFER FACILITY AND COMPLETE
THE FOLLOWING (ONLY PARTICIPANTS IN THE BOOK-ENTRY TRANSFER FACILITY MAY
DELIVER SHARES BY BOOK-ENTRY TRANSFER):
Name of Tendering Institution ______________________________________________
Account Number __________________ Transaction Code Number _________________
/ / CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED PURSUANT TO A NOTICE OF
GUARANTEED DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AND COMPLETE THE
FOLLOWING:
Name(s) of Registered Owner(s) _____________________________________________
Window Ticket Number (if any) ______________________________________________
Date of Execution of Notice of Guaranteed Delivery _________________________
Name of Institution that Guaranteed Delivery _______________________________
If delivered by Book-Entry Transfer, check box: [ ]
Account Number _____________________________________________________________
Transaction Code Number ____________________________________________________
<PAGE>
<TABLE>
<S> <C> <C> <C>
DESCRIPTION OF SHARES TENDERED
<CAPTION>
NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S)
(PLEASE FILL IN, IF BLANK, AS SHARES TENDERED
NAME(S) APPEAR(S) ON SHARE CERTIFICATE(S)) (ATTACH ADDITIONAL LIST IF NECESSARY)
<S> <C> <C> <C>
TOTAL NUMBER
OF SHARES
CERTIFICATE REPRESENTED BY NUMBER OF SHARES
NUMBER(S) (1) CERTIFICATE(S) (1) TENDERED (2)
Total Shares:
(1) Need not be completed by Book-Entry Stockholders.
(2) Unless otherwise indicated, it will be assumed that all Shares represented by Share Certificates delivered to the
Depositary are being tendered hereby. See Instruction 4.
</TABLE>
<PAGE>
NOTE: SIGNATURES MUST BE PROVIDED BELOW.
PLEASE READ THE INSTRUCTIONS SET FORTH IN THIS LETTER OF TRANSMITTAL CAREFULLY.
Ladies and Gentlemen:
The undersigned hereby tenders to Kensington Acquisition Sub, Inc., a
Delaware corporation ("Purchaser") and a wholly-owned subsidiary of Olivetti
S.p.A., a limited liability company organized under the laws of Italy, and
Mannesmann AG, a limited liability company organized under the laws of Germany,
the above-described shares of common stock, par value $0.01 per share (the
"Common Stock"), including the associated preferred stock purchase rights (the
"Rights" and, together with the Common Stock, the "Shares"), of Cellular
Communications International, Inc., a Delaware corporation (the "Company"),
pursuant to Purchaser's offer to purchase all of the outstanding Shares at a
price of $65.75 per Share, net to the seller in cash, without interest thereon
(the "Offer Price"), upon the terms and subject to the conditions set forth in
the Offer to Purchase dated December 17, 1998 and in this Letter of Transmittal
(which, together with any amendments or supplements thereto or hereto,
collectively constitute the "Offer"). The Offer is being made pursuant to an
Agreement and Plan of Merger, dated as of December 11, 1998 (the "Merger
Agreement"), by and between Purchaser and the Company. The undersigned
understands that Purchaser reserves the right to transfer or assign, in whole at
any time, or in part from time to time, to one or more of its affiliates, the
right to purchase all or any portion of the Shares tendered pursuant to the
Offer, but any such transfer or assignment will not relieve Purchaser of its
obligations under the Offer and will in no way prejudice the rights of tendering
stockholders to receive payment for Shares validly tendered and accepted for
payment pursuant to the Offer. Receipt of the Offer is hereby acknowledged.
The Company has distributed one Right for each outstanding Share pursuant to
the Rights Agreement (as defined in the Offer to Purchase). The Rights are
currently evidenced by and trade with certificates evidencing the Common Stock.
The Company has taken such action so as to make the Rights Agreement
inapplicable to Purchaser and its affiliates and associates in connection with
the transactions contemplated by the Merger Agreement.
Upon the terms and subject to the conditions of the Offer (and if the Offer
is extended or amended, the terms of any such extension or amendment), subject
to, and effective upon, acceptance for payment of, and payment for, the Shares
tendered herewith in accordance with the terms of the Offer, the undersigned
hereby sells, assigns and transfers to, or upon the order of, Purchaser all
right, title and interest in and to all the Shares that are being tendered
hereby (and any and all non-cash dividends, distributions, rights, other Shares
or other securities issued or issuable in respect thereof on or after December
11, 1998 (collectively, "Distributions")) and irrevocably constitutes and
appoints the Depositary the true and lawful agent and attorney-in-fact of the
undersigned with respect to such Shares (and all Distributions), with full power
of substitution (such power of attorney being deemed to be an irrevocable power
coupled with an interest), to (i) deliver certificates for such Shares (and any
and all Distributions), or transfer ownership of such Shares (and any and all
Distributions) on the account books maintained by the Book-Entry Transfer
Facility, together, in any such case, with all accompanying evidences of
transfer and authenticity, to or upon the order of Purchaser, (ii) present such
Shares (and any and all Distributions) for transfer on the books of the Company,
and (iii) receive all benefits and otherwise exercise all rights of beneficial
ownership of such Shares (and any and all Distributions), all in accordance with
the terms of the Offer.
<PAGE>
By executing this Letter of Transmittal, the undersigned hereby irrevocably
appoints Dr. Kurt J. Kinzius and Marco De Benedetti in their respective
capacities as officers of Purchaser, and any individual who shall thereafter
succeed to any such office of Purchaser, and each of them, the attorneys-in-fact
and proxies of the undersigned, each with full power of substitution, to vote at
any annual or special meeting of the Company's stockholders or any adjournment
or postponement thereof or otherwise in such manner as each such
attorney-in-fact and proxy or his substitute shall in his sole discretion deem
proper with respect to, to execute any written consent concerning any matter as
each such attorney-in-fact and proxy or his substitute shall in his sole
discretion deem proper with respect to, and otherwise to act as each such
attorney-in-fact and proxy or his substitute shall in his sole discretion deem
proper with respect to, all of the Shares (and any and all Distributions)
tendered hereby and accepted for payment by Purchaser. This appointment will be
effective if and when, and only to the extent that, Purchaser accepts such
Shares for payment pursuant to the Offer. This power of attorney and proxy are
irrevocable and are granted in consideration of the acceptance for payment of
such Shares in accordance with the terms of the Offer. Such acceptance for
payment shall, without further action, revoke any prior powers of attorney and
proxies granted by the undersigned at any time with respect to such Shares (and
any and all Distributions), and no subsequent powers of attorney, proxies,
consents or revocations may be given by the undersigned with respect thereto
(and, if given, will not be deemed effective). Purchaser reserves the right to
require that, in order for Shares or other securities to be deemed validly
tendered, immediately upon Purchaser's acceptance for payment of such Shares,
Purchaser must be able to exercise full voting, consent and other rights with
respect to such Shares (and any and all Distributions), including voting at any
meeting of the Company's stockholders.
The undersigned hereby represents and warrants that the undersigned has full
power and authority to tender, sell, assign and transfer the Shares tendered
hereby and all Distributions, that the undersigned owns the Shares tendered
hereby within the meaning of Rule 14e-4 promulgated under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), that the tender of the
tendered Shares complies with Rule 14e-4 under the Exchange Act, and that when
the same are accepted for payment by Purchaser, Purchaser will acquire good,
marketable and unencumbered title thereto and to all Distributions, free and
clear of all liens, restrictions, charges and encumbrances, and the same will
not be subject to any adverse claims. The undersigned will, upon request,
execute and deliver any additional documents deemed by the Depositary or
Purchaser to be necessary or desirable to complete the sale, assignment and
transfer of the Shares tendered hereby and all Distributions. In addition, the
undersigned shall remit and transfer promptly to the Depositary for the account
of Purchaser all Distributions in respect of the Shares tendered hereby,
accompanied by appropriate documentation of transfer, and, pending such
remittance and transfer or appropriate assurance thereof, Purchaser shall be
entitled to all rights and privileges as owner of each such Distribution and may
withhold the entire purchase price of the Shares tendered hereby or deduct from
such purchase price the amount or value of such Distribution as determined by
Purchaser in its sole discretion.
All authority herein conferred or agreed to be conferred shall survive the
death or incapacity of the undersigned, and any obligation of the undersigned
hereunder shall be binding upon the heirs, executors, administrators, personal
representatives, trustees in bankruptcy, successors and assigns of the
undersigned. Except as stated in the Offer, this tender is irrevocable.
The undersigned understands that the valid tender of Shares pursuant to any
one of the procedures described in Section 3 of the Offer to Purchase and in the
Instructions hereto will constitute a binding agreement between the undersigned
and Purchaser upon the terms and subject to the conditions of the Offer (and if
the Offer is extended or amended, the terms or conditions of any such extension
or amendment). Without limiting the foregoing, if the price to be paid in the
Offer is amended in accordance with the terms of the Merger Agreement, the price
to be paid to the undersigned will be the amended price notwithstanding the fact
that a different price is stated in this Letter of Transmittal. The undersigned
recognizes that, under certain circumstances set forth in the Offer to Purchase,
Purchaser may not be required to accept for payment any of the Shares tendered
hereby.
<PAGE>
Unless otherwise indicated under "Special Payment Instructions," please
issue the check for the purchase price of all Shares purchased and/or return any
certificates for Shares not tendered or accepted for payment in the name(s) of
the registered holder(s) appearing above under "Description of Shares Tendered."
Similarly, unless otherwise indicated under "Special Delivery Instructions,"
please mail the check for the purchase price of all Shares purchased and/or
return any certificates for Shares not tendered or not accepted for payment (and
any accompanying documents, as appropriate) to the address(es) of the registered
holder(s) appearing above under "Description of Shares Tendered." In the event
that the boxes entitled "Special Payment Instructions" and "Special Delivery
Instructions" are both completed, please issue the check for the purchase price
of all Shares purchased and/or return any certificates evidencing Shares not
tendered or not accepted for payment (and any accompanying documents, as
appropriate) in the name(s) of, and deliver such check and/or return any such
certificates (and any accompanying documents, as appropriate) to, the person(s)
so indicated. Unless otherwise indicated herein in the box entitled "Special
Payment Instructions," please credit any Shares tendered herewith by book-entry
transfer that are not accepted for payment by crediting the account at the
Book-Entry Transfer Facility designated above. The undersigned recognizes that
Purchaser has no obligation, pursuant to the "Special Payment Instructions," to
transfer any Shares from the name of the registered holder thereof if Purchaser
does not accept for payment any of the Shares so tendered.
/ / CHECK HERE IF ANY OF THE CERTIFICATES REPRESENTING SHARES THAT YOU OWN HAVE
BEEN LOST, DESTROYED OR STOLEN AND SEE INSTRUCTION 11.
Number of Shares represented by lost, destroyed or stolen
certificates: ____________
<PAGE>
- -----------------------------------------------------
SPECIAL PAYMENT INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7)
To be completed ONLY if the check for the purchase price of Shares
accepted for payment is to be issued in the name of someone other than the
undersigned, if certificates for Shares not tendered or not accepted for
payment are to be issued in the name of someone other than the undersigned
or if Shares tendered hereby and delivered by book-entry transfer that are
not accepted for payment are to be returned by credit to an account
maintained at a Book-Entry Transfer Facility other than the account
indicated above.
Issue check and/or Share certificate(s) to:
Name _______________________________________________________________________
(Please Print)
Address ____________________________________________________________________
____________________________________________________________________________
(Include Zip Code)
__________________________________________________________________________
(Taxpayer Identification or Social Security Number)
(See Substitute Form W-9)
/ / Credit Shares delivered by book-entry transfer and not purchased to the
Book-Entry Transfer Facility account.
________________________________________________________________________
(Account Number)
- ------------------------------------------------------------
- ------------------------------------------------------------
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7)
To be completed ONLY if certificates for Shares not tendered or not
accepted for payment and/or the check for the purchase price of Shares
accepted for payment is to be sent to someone other than the undersigned or to
the undersigned at an address other than that shown under "Description of
Shares Tendered."
Mail check and/or Share certificates to:
Name _________________________________________________________________________
(Please Print)
Address ______________________________________________________________________
______________________________________________________________________________
(Include Zip Code)
______________________________________________________________________________
(Taxpayer Identification or Social Security Number)
(See Substitute Form W-9)
-------------------------------------------------------
<PAGE>
- --------------------------------------------------------------------------------
SIGN HERE
(ALSO COMPLETE SUBSTITUTE
FORM W-9 BELOW)
____________________________________________________________________________
____________________________________________________________________________
(Signature(s) of Stockholder(s))
Dated: __________________________, 1998
(Must be signed by registered holder(s) exactly as name(s) appear(s) on
the Share certificate(s) or on a security position listing or by person(s)
authorized to become registered holder(s) by certificates and documents
transmitted herewith. If signature is by trustee, executor, administrator,
guardian, attorney-in-fact, officer of a corporation or other person acting
in a fiduciary or representative capacity, please provide the following
information and see Instruction 5.)
Name(s)_____________________________________________________________________
____________________________________________________________________________
(Please Print)
Name of Firm________________________________________________________________
Capacity (full title)_______________________________________________________
(See Instruction 5)
Address_____________________________________________________________________
____________________________________________________________________________
(Include Zip Code)
Area Code and Telephone Number __________________________________________
Taxpayer Identification or Social Security Number __________________________
(See Substitute Form W-9)
GUARANTEE OF SIGNATURE(S)
(SEE INSTRUCTIONS 1 AND 5)
Authorized Signature _______________________________________________________
Name(s) ____________________________________________________________________
(Please Print)
Title ______________________________________________________________________
Name of Firm _______________________________________________________________
Address ____________________________________________________________________
____________________________________________________________________________
(Include Zip Code)
Area Code and Telephone Number _____________________________________________
---------------------------------------------------
<PAGE>
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
1. GUARANTEE OF SIGNATURES. No signature guarantee is required on this
Letter of Transmittal (a) if this Letter of Transmittal is signed by the
registered holder(s) (which term, for purposes of this Section, includes any
participant in any of the Book-Entry Transfer Facility's systems whose name
appears on a security position listing as the owner of the Shares) of Shares
tendered herewith, unless such registered holder(s) has completed either the box
entitled "Special Payment Instructions" or the box entitled "Special Delivery
Instructions" on this Letter of Transmittal or (b) if such Shares are tendered
for the account of a financial institution (including most commercial banks,
savings and loan associations and brokerage houses) that is a participant in the
Security Transfer Agents Medallion Program, the New York Stock Exchange
Medallion Signature Guarantee Program or the Stock Exchange Medallion Program
(each, an "Eligible Institution"). In all other cases, all signatures on this
Letter of Transmittal must be guaranteed by an Eligible Institution. See
Instruction 5.
2. DELIVERY OF LETTER OF TRANSMITTAL AND SHARES; GUARANTEED DELIVERY
PROCEDURES. This Letter of Transmittal is to be completed by stockholders of
the Company either if Share certificates are to be forwarded herewith or, unless
an Agent's Message is utilized, if delivery of Shares is to be made by
book-entry transfer pursuant to the procedures set forth herein and in Section 3
of the Offer to Purchase. For a stockholder validly to tender Shares pursuant to
the Offer, either (a) a properly completed and duly executed Letter of
Transmittal (or facsimile thereof), together with any required signature
guarantees or an Agent's Message (in connection with book-entry transfer) and
any other required documents, must be received by the Depositary at one of its
addresses set forth herein prior to the Expiration Date and either (i)
certificates for tendered Shares must be received by the Depositary at one of
such addresses prior to the Expiration Date or (ii) Shares must be delivered
pursuant to the procedures for book-entry transfer set forth herein and in
Section 3 of the Offer to Purchase and a Book-Entry Confirmation must be
received by the Depositary prior to the Expiration Date or (b) the tendering
stockholder must comply with the guaranteed delivery procedures set forth herein
and in Section 3 of the offer to Purchase.
Stockholders whose certificates for Shares are not immediately available or
who cannot deliver their certificates and all other required documents to the
Depositary prior to the Expiration Date or who cannot comply with the book-entry
transfer procedures on a timely basis may tender their Shares by properly
completing and duly executing the Notice of Guaranteed Delivery pursuant to the
guaranteed delivery procedure set forth herein and in Section 3 of the Offer to
Purchase.
Pursuant to such guaranteed delivery procedures, (i) such tender must be
made by or through an Eligible Institution, (ii) a properly completed and duly
executed Notice of Guaranteed Delivery, substantially in the form provided by
Purchaser, must be received by the Depositary prior to the Expiration Date and
(iii) the certificates for all tendered Shares, in proper form for transfer (or
a Book-Entry Confirmation with respect to all tendered Shares), together with a
properly completed and duly executed Letter of Transmittal (or a facsimile
thereof), with any required signature guarantees, or, in the case of a
book-entry transfer, an Agent's Message, and any other required documents must
be received by the Depositary within three trading days after the date of
execution of such Notice of Guaranteed Delivery. A "trading day" is any day on
which the Nasdaq Stock Market, Inc.'s Nasdaq National Market is open for
business.
The term "Agent's Message" means a message, transmitted by the Book-Entry
Transfer Facility to, and received by, the Depositary and forming a part of a
Book-Entry Confirmation, which states that such Book-Entry Transfer Facility has
received an express acknowledgment from the participant in such Book-Entry
Transfer Facility tendering the Shares, that such participant has received and
agrees to be bound by the terms of the Letter of Transmittal and that Purchaser
may enforce such agreement against the participant.
The signatures on this Letter of Transmittal cover the Shares tendered
hereby.
THE METHOD OF DELIVERY OF THE SHARES, THIS LETTER OF TRANSMITTAL AND ALL
OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH THE BOOK-ENTRY TRANSFER
FACILITY, IS AT THE ELECTION AND RISK OF THE TENDERING STOCKHOLDER. THE SHARES
WILL BE DEEMED DELIVERED ONLY WHEN ACTUALLY RECEIVED BY THE DEPOSITARY
(INCLUDING, IN THE CASE OF A BOOK-ENTRY TRANSFER, BY BOOK-ENTRY CONFIRMATION).
IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY
INSURED, IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO
ENSURE TIMELY DELIVERY.
<PAGE>
No alternative, conditional or contingent tenders will be accepted, and no
fractional Shares will be purchased. All tendering stockholders, by executing
this Letter of Transmittal (or facsimile thereof), waive any right to receive
any notice of acceptance of their Shares for payment.
3. INADEQUATE SPACE. If the space provided herein under "Description of
Shares Tendered" is inadequate, the number of Shares tendered and the Share
certificate numbers with respect to such Shares should be listed on a separate
signed schedule attached hereto.
4. PARTIAL TENDERS. (Not applicable to stockholders who tender by
book-entry transfer). If fewer than all the Shares evidenced by any Share
certificate delivered to the Depositary herewith are to be tendered hereby, fill
in the number of Shares that are to be tendered in the box entitled "Number of
Shares Tendered." In any such case, new certificate(s) for the remainder of the
Shares that were evidenced by the old certificates will be sent to the
registered holder, unless otherwise provided in the appropriate box on this
Letter of Transmittal, as soon as practicable after the Expiration Date or the
termination of the Offer. All Shares represented by certificates delivered to
the Depositary will be deemed to have been tendered unless otherwise indicated.
5. SIGNATURES ON LETTER OF TRANSMITTAL; STOCK POWERS AND ENDORSEMENTS. If
this Letter of Transmittal is signed by the registered holder(s) of the Shares
tendered hereby, the signature(s) must correspond with the name(s) as written on
the face of the certificate(s) without alteration, enlargement or any change
whatsoever.
If any of the Shares tendered hereby are held of record by two or more joint
owners, all such owners must sign this Letter of Transmittal.
If any of the tendered Shares are registered in different names on several
certificates, it will be necessary to complete, sign and submit as many separate
Letters of Transmittal as there are different registrations of certificates.
If this Letter of Transmittal or any Share certificate or stock power is
signed by a trustee, executor, administrator, guardian, attorney-in-fact,
officer of a corporation or other person acting in a fiduciary or representative
capacity, such person should so indicate when signing, and proper evidence
satisfactory to Purchaser of the authority of such person so to act must be
submitted.
If this Letter of Transmittal is signed by the registered holder(s) of the
Shares listed and transmitted hereby, no endorsements of Share certificates or
separate stock powers are required unless payment or certificates for Shares not
tendered or not accepted for payment are to be issued in the name of a person
other than the registered holder(s). Signatures on any such Share certificates
or stock powers must be guaranteed by an Eligible Institution.
If this Letter of Transmittal is signed by a person other than the
registered holder(s) of the Shares evidenced by certificates listed and
transmitted hereby, the Share certificates must be endorsed or accompanied by
appropriate stock powers, in either case signed exactly as the name(s) of the
registered holder(s) appear(s) on the Share certificates. Signature(s) on any
such Share certificates or stock powers must be guaranteed by an Eligible
Institution.
6. STOCK TRANSFER TAXES. Except as otherwise provided in this Instruction
6, Purchaser will pay all stock transfer taxes with respect to the transfer and
sale of any Shares to it or its order pursuant to the Offer. If, however,
payment of the purchase price of any Shares purchased is to be made to, or if
certificates for Shares not tendered or not accepted for payment are to be
registered in the name of, any person other than the registered holder(s), or if
tendered certificates are registered in the name of any person other than the
person(s) signing this Letter of Transmittal, the amount of any stock transfer
taxes (whether imposed on the registered holder(s) or such other person) payable
on account of the transfer to such other person will be deducted from the
purchase price of such Shares purchased unless evidence satisfactory to
Purchaser of the payment of such taxes, or exemption therefrom, is submitted.
Except as provided in this Instruction 6, it will not be necessary for
transfer tax stamps to be affixed to the Share certificates evidencing the
Shares tendered hereby.
<PAGE>
7. SPECIAL PAYMENT AND DELIVERY INSTRUCTIONS. If a check for the purchase
price of any Shares accepted for payment is to be issued in the name of, and/or
Share certificates for Shares not accepted for payment or not tendered are to be
issued in the name of and/or returned to, a person other than the signer of this
Letter of Transmittal or if a check is to be sent, and/or such certificates are
to be returned, to a person other than the signer of this Letter of Transmittal,
or to an address other than that shown above, the appropriate boxes on this
Letter of Transmittal should be completed. Any stockholder(s) delivering Shares
by book-entry transfer may request that Shares not purchased be credited to such
account maintained at the Book-Entry Transfer Facility as such stockholder(s)
may designate in the box entitled "Special Payment Instructions." If no such
instructions are given, any such Shares not purchased will be returned by
crediting the account at the Book-Entry Transfer Facility designated above as
the account from which such Shares were delivered.
8. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions and requests
for assistance or additional copies of the Offer to Purchase, this Letter of
Transmittal, the Notice of Guaranteed Delivery and the Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9 may be
directed to the Information Agent at its address and phone number set forth
below, or from brokers, dealers, commercial banks or trust companies.
9. WAIVER OF CONDITIONS. Subject to the Merger Agreement, Purchaser
reserves the absolute right in its sole discretion to waive, at any time or from
time to time, any of the specified conditions of the Offer, in whole or in part,
in the case of any Shares tendered.
10. BACKUP WITHHOLDING. In order to avoid "backup withholding" of federal
income tax on payments of cash pursuant to the Offer, a stockholder surrendering
Shares in the Offer must, unless an exemption applies, provide the Depositary
with such stockholder's correct taxpayer identification number ("TIN") on
Substitute Form W-9 in this Letter of Transmittal and certify, under penalties
of perjury, that such TIN is correct and that such stockholder is not subject to
backup withholding.
Backup withholding is not an additional income tax. Rather, the amount of
the backup withholding can be credited against the federal income tax liability
of the person subject to the backup withholding, provided that the required
information is given to the Internal Revenue Service. If backup withholding
results in an overpayment of tax, a refund can be obtained by the stockholder
upon filing an income tax return.
The stockholder is required to give the Depositary the TIN (i.e., social
security number or employer identification number) of the record owner of the
Shares. If the Shares are held in more than one name or are not in the name of
the actual owner, consult the enclosed "Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9" for additional guidance on which
number to report.
The box in Part 3 of the Substitute Form W-9 may be checked if the tendering
stockholder has not been issued a TIN and has applied for a TIN or intends to
apply for a TIN in the near future. If the box in Part 3 is checked, the
stockholder or other payee must also complete the Certificate of Awaiting
Taxpayer Identification Number below in order to avoid backup withholding.
Notwithstanding that the box in Part 3 is checked and the Certificate of
Awaiting Taxpayer Identification Number is completed, the Depositary will
withhold 31% on all payments made prior to the time a properly certified TIN is
provided to the Depositary. However, such amounts will be refunded to such
stockholder if a TIN is provided to the Depositary within 60 days.
Certain stockholders (including, among others, all corporations and certain
foreign individuals and entities) are not subject to backup withholding.
Noncorporate foreign stockholders should complete and sign the main signature
form and a Form W-8, Certificate of Foreign Status, a copy of which may be
obtained from the Depositary, in order to avoid backup withholding. See the
enclosed "Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9" for more instructions.
11. LOST, DESTROYED OR STOLEN SHARE CERTIFICATES. If any certificate(s)
representing Shares has been lost, destroyed or stolen, the stockholder should
promptly notify the Depositary by checking the box immediately preceding the
special payment/special delivery instructions and indicating the number of
Shares lost. The stockholder will then be instructed as to the steps that must
be taken in order to replace the Share certificate(s). This Letter of
Transmittal and related documents cannot be processed until the procedures for
replacing lost, destroyed or stolen Share certificates have been followed.
<PAGE>
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR FACSIMILE HEREOF) TOGETHER WITH
ANY REQUIRED SIGNATURE GUARANTEES, OR, IN THE CASE OF A BOOK-ENTRY TRANSFER, AN
AGENT'S MESSAGE, AND ANY OTHER REQUIRED DOCUMENTS, MUST BE RECEIVED BY THE
DEPOSITARY PRIOR TO THE EXPIRATION DATE AND EITHER CERTIFICATES FOR TENDERED
SHARES MUST BE RECEIVED BY THE DEPOSITARY OR SHARES MUST BE DELIVERED PURSUANT
TO THE PROCEDURES FOR BOOK-ENTRY TRANSFER, IN EACH CASE PRIOR TO THE EXPIRATION
DATE, OR THE TENDERING STOCKHOLDER MUST COMPLY WITH THE PROCEDURES FOR
GUARANTEED DELIVERY.
<PAGE>
IMPORTANT TAX INFORMATION
Under Federal income tax law, a stockholder whose tendered Shares are
accepted for payment is required to provide the Depositary (as payer) with such
stockholder's correct taxpayer identification number on Substitute Form W-9
below. If such stockholder is an individual, the taxpayer identification number
is his social security number. If a tendering stockholder is subject to backup
withholding, such stockholder must cross out item (2) of the Certification box
on the Substitute Form W-9. If the Depositary is not provided with the correct
taxpayer identification number, the stockholder may be subject to a $50 penalty
imposed by the Internal Revenue Service. In addition, payments that are made to
such stockholder with respect to Shares purchased pursuant to the Offer may be
subject to backup withholding.
Certain stockholders (including, among others, all corporations, and certain
foreign individuals) are not subject to these backup withholding and reporting
requirements. In order for a foreign individual to qualify as an exempt
recipient, that stockholder must submit a statement, signed under penalties of
perjury, attesting to that individual's exempt status. Such statements can be
obtained from the Depositary. Exempt stockholders, other than foreign
individuals, should furnish their TIN, write "Exempt" on the face of the
Substitute Form W-9 below, and sign, date and return the Substitute Form W-9 to
the Depositary. See the enclosed Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9 for additional instructions.
If backup withholding applies, the Depositary is required to withhold 31% of
any payments made to the stockholder. Backup withholding is not an additional
tax. Rather, the tax liability of persons subject to backup withholding will be
reduced by the amount of tax withheld. If withholding results in an overpayment
of taxes, a refund may be obtained from the Internal Revenue Service.
PURPOSE OF SUBSTITUTE FORM W-9
To prevent backup withholding on payments that are made to a stockholder
with respect to Shares purchased pursuant to the Offer, the stockholder is
required to notify the Depositary of such stockholder's correct taxpayer
identification number by completing the form contained herein certifying that
the taxpayer identification number provided on Substitute Form W-9 is correct
(or that such stockholder is awaiting a taxpayer identification number).
WHAT NUMBER TO GIVE THE DEPOSITARY
The stockholder is required to give the Depositary the social security
number or employer identification number of the record owner of the Shares. If
the Shares are in more than one name or are not in the name of the actual owner,
consult the enclosed Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9 for additional guidance on which number to report.
If the tendering stockholder has not been issued a TIN and has applied for a
number or intends to apply for a number in the near future, such stockholder
should write "Applied For" in the space provided for in the TIN in Part 1, and
sign and date the Substitute Form W-9. If "Applied For" is written in Part I and
the Depositary is not provided with a TIN within sixty (60) days, the Depositary
will withhold 31% on all payments of the purchase price until a TIN is provided
to the Depositary.
<PAGE>
<TABLE>
<C> <S> <C>
- ----------------------------------------------------------------------------------------------------
PAYER'S NAME: IBJ SCHRODER BANK & TRUST COMPANY
- ----------------------------------------------------------------------------------------------------
SUBSTITUTE PART I--PLEASE PROVIDE YOUR TIN IN THE BOX AT Social Security Number (If awaiting TIN
FORM W-9 RIGHT AND CERTIFY BY SIGNING AND DATING BELOW write "Applied For")
Department of Treasury
Internal Revenue Service Employer Identification Number (If
Payers Request for Tax awaiting TIN write "Applied For")
Identification Number (TIN)
- ----------------------------------------------------------------------------------------------------
PART 2--CERTIFICATE--Under penalties of perjury, I certify that:(1) The number shown on this form is my correct Taxpayer
Identification Number (or I am waiting for a number to be issued for me), and (2) I am not subject to backup withholding
because: (a) I am exempt from backup withholding, or (b) I have not been notified by the Internal Revenue Service (the "IRS")
that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has
notified me that I am no longer subject to backup withholding.
CERTIFICATION INSTRUCTIONS--You must cross out item (2) above if you have been notified by the IRS that you are currently
subject to backup withholding because of under-reporting interest or dividends on your tax returns. However, if after being
notified by the IRS that you are subject to backup withholding, you receive another notification from the IRS that you are no
longer subject to backup withholding, do not cross out such item (2). (Also see instructions in the enclosed Guidelines).
Signature: Date:
- ----------------------------------------------------------------------------------------------------
PART 3--AWAITING TIN / /
- ----------------------------------------------------------------------------------------------------
CERTIFICATE OF AWAITING
TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a Taxpayer Identification Number has not been issued to me, and either (1) I have
mailed or delivered an application to receive a Taxpayer Identification Number to the appropriate Internal Revenue Service
Center or Social Security Administration Office or (2) I intend to mail or deliver an application in the near future. I
understand that if I do not provide a Taxpayer Identification Number to the Depositary by the time of payment, 31% of all
reportable payments made to me thereafter will be withheld, but that such amounts will be refunded to me if I provide a
certified Taxpayer Identification Number to the Depositary within sixty (60) days.
Signature: Date:
----------------------------------------------------------------------------------------------------
</TABLE>
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING
OF 31% OF ANY CASH PAYMENTS MADE TO YOU PURSUANT TO THE OFFER. PLEASE
REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER
IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN
PART 3 OF THE SUBSTITUTE FORM W-9.
Questions and requests for assistance or additional copies of the Offer to
Purchase, this Letter of Transmittal and other tender offer materials may be
directed to the Information Agent at its address and telephone number set forth
below:
THE INFORMATION AGENT FOR THE OFFER IS:
[MacKenzie Partners, Inc. LOGO]
156 FIFTH AVENUE
NEW YORK, NEW YORK 10010
(212) 929-5500 (CALL COLLECT)
OR
CALL TOLL-FREE (800) 322-2885
<PAGE>
NOTICE OF GUARANTEED DELIVERY
FOR
TENDER OF SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED PREFERRED STOCK PURCHASE RIGHTS)
OF
CELLULAR COMMUNICATIONS INTERNATIONAL, INC.
TO
KENSINGTON ACQUISITION SUB, INC.
A WHOLLY-OWNED SUBSIDIARY
OF
OLIVETTI S.P.A.
AND
MANNESMANN AG
(NOT TO BE USED FOR SIGNATURE GUARANTEES)
This Notice of Guaranteed Delivery, or a form substantially equivalent
hereto, must be used to accept the Offer (as defined below) if certificates
representing shares of Common Stock, par value $0.01 per share (the "Common
Stock"), including the associated preferred stock purchase rights (the "Rights"
and, together with the Common Stock, the "Shares"), of Cellular Communications
International, Inc., a Delaware corporation, are not immediately available, if
the procedure for book-entry transfer cannot be completed prior to the
Expiration Date (as defined in Section 1 of the Offer to Purchase), or if time
will not permit all required documents to reach the Depositary prior to the
Expiration Date. Such form may be delivered by hand, transmitted by facsimile
transmission or mailed to the Depositary. See Section 3 of the Offer to
Purchase.
THE DEPOSITARY FOR THE OFFER IS:
IBJ SCHRODER BANK & TRUST COMPANY
Telephone Number: (212) 858-2103
<TABLE>
<S> <C> <C>
BY MAIL: BY FACSIMILE: BY HAND OR OVERNIGHT DELIVERY:
P.O. Box 84 (212) 858-2611 One State Street
Bowling Green Station Attn: Reorganization Operations New York, New York 10004
New York, New York 10274-0084 Department Attn: Reorganization Operations
Attn: Reorganization Operations Department
Department
</TABLE>
(For Eligible Institutions Only)
Confirm Facsimile by Telephone: (212) 858-2103
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS
SET FORTH ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE NUMBER OTHER THAN
AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
THIS FORM IS NOT TO BE USED TO GUARANTEE SIGNATURES. IF A SIGNATURE ON A
LETTER OF TRANSMITTAL IS REQUIRED TO BE GUARANTEED BY AN "ELIGIBLE INSTITUTION"
UNDER THE INSTRUCTIONS THERETO, SUCH SIGNATURE GUARANTEE MUST APPEAR IN THE
APPLICABLE SPACE PROVIDED IN THE SIGNATURE BOX ON THE LETTER OF TRANSMITTAL.
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders to Kensington Acquisition Sub, Inc., a
Delaware corporation ("Purchaser") and a wholly-owned subsidiary of Olivetti
S.p.A., a limited liability company organized under the laws of Italy, and
Mannesmann AG, a limited liability company organized under the laws of Germany,
upon the terms and subject to the conditions set forth in the Offer to Purchase
dated December 17, 1998 and the related Letter of Transmittal, receipt of which
is hereby acknowledged, the number of shares set forth below of the common
stock, par value $0.01 per share (the "Common Stock"), including the associated
preferred stock purchase rights (the "Rights" and, together with the Common
Stock, the "Shares"), of Cellular Communications International, Inc., a Delaware
corporation, pursuant to the guaranteed delivery procedures set forth in Section
3 of the Offer to Purchase.
<TABLE>
<S> <C>
Number of Shares: Name(s) of Record Holder(s):
Certificate Nos. (if available): (Please Print)
Address(es):
Check box if Shares will be tendered by
book-entry transfer: [ ] (Zip Code)
Account Number: Area Code and Tel. No.:
Dated: , 1998 Signature(s):
</TABLE>
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEES)
The undersigned, a participant in the Security Transfer Agents Medallion
Program, the New York Stock Exchange Medallion Signature Guarantee Program or
the Stock Exchange Medallion Program, guarantees to deliver to the Depositary
either certificates representing the Shares tendered hereby, in proper form for
transfer, or confirmation of book-entry transfer of such Shares into the
Depositary's accounts maintained at one of the Book-Entry Transfer Facilities
(as defined in the Offer to Purchase), in each case with delivery of a properly
completed and duly executed Letter of Transmittal (or facsimile thereof), with
any required signature guarantees, or an Agent's Message, and any other
documents required by the Letter of Transmittal, within three (3) trading days
(as defined in the Offer to Purchase) after the date hereof.
The Eligible Institution that completes this form must communicate the
guarantee to the Depositary and must deliver the Letter of Transmittal and
certificates for Shares to the Depositary within the time period shown herein.
Failure to do so could result in a financial loss to such Eligible Institution.
<TABLE>
<S> <C>
Name of Firm: Authorized Signature
Name:
Address: Please Print
Zip Code Title:
Area Code and Tel. No.: Dated: , 1998
</TABLE>
NOTE: DO NOT SEND CERTIFICATES FOR SHARES WITH THIS NOTICE. CERTIFICATES
SHOULD BE SENT ONLY WITH YOUR LETTER OF TRANSMITTAL.
2
<PAGE>
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED PREFERRED STOCK PURCHASE RIGHTS)
OF
CELLULAR COMMUNICATIONS INTERNATIONAL, INC.
BY
KENSINGTON ACQUISITION SUB, INC.
A WHOLLY-OWNED SUBSIDIARY
OF
OLIVETTI S.P.A.
AND
MANNESMANN AG
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON FRIDAY, JANUARY 15, 1999, UNLESS THE OFFER IS EXTENDED.
December 17, 1998
To Brokers, Dealers, Commercial Banks,
Trust Companies And Other Nominees:
We have been appointed by Kensington Acquisition Sub, Inc. ("Purchaser"), a
Delaware corporation and a wholly-owned subsidiary of Olivetti S.p.A., a limited
liability company organized under the laws of Italy, and Mannesmann AG, a
limited liability company organized under the laws of Germany, to act as Dealer
Managers in connection with Purchaser's offer to purchase all outstanding shares
of common stock, par value $0.01 per share (the "Common Stock"), including the
associated preferred stock purchase rights (the "Rights" and, together with the
Common Stock, the "Shares"), of Cellular Communications International, Inc., a
Delaware corporation (the "Company"), at $65.75 per Share, net to the seller in
cash, upon the terms and subject to the conditions set forth in the Offer to
Purchase dated December 17, 1998 (the "Offer to Purchase") and in the related
Letter of Transmittal (which, together with any amendments or supplements
thereto, constitute the "Offer") enclosed herewith. Please furnish copies of the
enclosed materials to those of your clients for whose accounts you hold Shares
registered in your name or in the name of your nominee.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, THERE BEING VALIDLY
TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION DATE OF THE OFFER (AS DEFINED
IN THE OFFER TO PURCHASE) THAT NUMBER OF SHARES WHICH REPRESENTS AT LEAST A
MAJORITY OF THE TOTAL NUMBER OF SHARES OUTSTANDING ON A FULLY DILUTED BASIS ON
THE DATE SHARES ARE ACCEPTED FOR PAYMENT. THE OFFER ALSO IS SUBJECT TO THE OTHER
CONDITIONS SET FORTH IN THE OFFER TO PURCHASE. SEE SECTION 14 OF THE OFFER TO
PURCHASE.
For your information and for forwarding to your clients for whom you hold
Shares registered in your name or in the name of your nominee, we are enclosing
the following documents:
1. Offer to Purchase dated December 17, 1998;
<PAGE>
2. Letter of Transmittal for your use in accepting the Offer and
tendering Shares and for the information of your clients. Facsimile
copies of the Letter of Transmittal may be used to tender Shares;
3. Notice of Guaranteed Delivery to be used to accept the Offer if
certificates for Shares and all other required documents cannot be
delivered to the Depositary, or if the procedures for book-entry
transfer cannot be completed on a timely basis, prior to the
expiration of the Offer;
4. A letter which may be sent to your clients for whose accounts you
hold Shares registered in your name or in the name of your nominee,
with space provided for obtaining such clients' instructions with
regard to the Offer;
5. A letter to stockholders of the Company from William B. Ginsberg,
President, Chief Executive Officer and Chairman of the Company,
together with a Solicitation/Recommendation Statement on Schedule
14D-9 dated December 17, 1998, which has been filed by the Company
with the Securities and Exchange Commission;
6. Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9; and
7. A return envelope addressed to IBJ Schroder Bank & Trust Company (the
"Depositary").
Upon the terms and subject to the conditions of the Offer (including, if the
Offer is extended or amended, the terms and conditions of any such extension or
amendment), Purchaser will accept for payment and pay for Shares which are
validly tendered prior to the Expiration Date and not theretofore properly
withdrawn when, as and if Purchaser gives oral or written notice to the
Depositary of Purchaser's acceptance of such Shares for payment pursuant to the
Offer. Payment for Shares purchased pursuant to the Offer will in all cases be
made only after timely receipt by the Depositary of (i) certificates for such
Shares, or timely confirmation of a book-entry transfer of such Shares into the
Depositary's account maintained at one of the Book-Entry Transfer Facilities (as
defined in the Offer to Purchase), pursuant to the procedures described in
Section 3 of the Offer to Purchase, (ii) a properly completed and duly executed
Letter of Transmittal (or a properly completed and manually signed facsimile
thereof) or an Agent's Message (as defined in the Offer to Purchase) in
connection with a book-entry transfer and (iii) all other documents required by
the Letter of Transmittal.
Purchaser will not pay any fees or commissions to any broker or dealer or
other person (other than the Dealer Managers, the Depositary and the Information
Agent as described in the Offer to Purchase) for soliciting tenders of Shares
pursuant to the Offer. Purchaser will, however, upon request, reimburse brokers,
dealers, commercial banks and trust companies for customary mailing and handling
costs incurred by them in forwarding the enclosed materials to their customers.
Purchaser will pay or cause to be paid all stock transfer taxes applicable
to its purchase of Shares pursuant to the Offer, subject to Instruction 6 of the
Letter of Transmittal.
WE URGE YOU TO CONTACT YOUR CLIENTS AS PROMPTLY AS POSSIBLE. PLEASE NOTE
THAT THE OFFER AND WITHDRAWAL RIGHTS EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON FRIDAY, JANUARY 15, 1999, UNLESS THE OFFER IS EXTENDED.
In order to take advantage of the Offer, a duly executed and properly
completed Letter of Transmittal (or facsimile thereof), with any required
signature guarantees, or an Agent's Message in connection with a book-entry
transfer of Shares, and any other required documents, should be sent to the
Depositary, and certificates representing the tendered Shares should be
delivered or such Shares should be tendered by book-entry transfer, all in
accordance with the Instructions set forth in the Letter of Transmittal and in
the Offer to Purchase.
2
<PAGE>
If holders of Shares wish to tender, but it is impracticable for them to
forward their certificates or other required documents or to complete the
procedures for delivery by book-entry transfer prior to the Expiration Date of
the Offer, a tender may be effected by following the guaranteed delivery
procedures specified in Section 3 of the Offer to Purchase.
Any inquiries you may have with respect to the Offer should be addressed to
the Information Agent or the Dealer Managers, and additional copies of the
enclosed materials may be obtained from the Information Agent at the respective
addresses and telephone numbers set forth on the back cover of the Offer to
Purchase.
Very truly yours, Very truly
yours,
GOLDMAN, SACHS & CO. LEHMAN BROTHERS
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU
THE AGENT OF PURCHASER, THE COMPANY, THE INFORMATION AGENT, THE DEPOSITARY, OR
ANY AFFILIATE OF ANY OF THE FOREGOING, OR AUTHORIZE YOU OR ANY OTHER PERSON TO
USE ANY DOCUMENT OR MAKE ANY STATEMENT ON BEHALF OF ANY OF THEM IN CONNECTION
WITH THE OFFER, OTHER THAN THE DOCUMENTS ENCLOSED HEREWITH AND THE STATEMENTS
CONTAINED THEREIN.
3
<PAGE>
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED PREFERRED STOCK PURCHASE RIGHTS)
OF
CELLULAR COMMUNICATIONS INTERNATIONAL, INC.
AT
$65.75 NET PER SHARE
BY
KENSINGTON ACQUISITION SUB, INC.
A WHOLLY-OWNED SUBSIDIARY
OF
OLIVETTI S.P.A.
AND
MANNESMANN AG
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON FRIDAY, JANUARY 15, 1999, UNLESS THE OFFER IS EXTENDED.
December 17, 1998
To Our Clients:
Enclosed for your consideration are the Offer to Purchase dated December 17,
1998 and the related Letter of Transmittal (which, together with any amendments
or supplements thereto, constitute the "Offer") in connection with the offer by
Kensington Acquisition Sub, Inc. ("Purchaser"), a Delaware corporation and a
wholly-owned subsidiary of Olivetti S.p.A., a limited liability company
organized under the laws of Italy, and Mannesmann AG, a limited liability
company organized under the laws of Germany, to purchase for cash all
outstanding shares of common stock, par value $0.01 per share (the "Common
Stock"), including the associated preferred stock purchase rights (the "Rights"
and, together with the Common Stock, the "Shares"), of Cellular Communications
International, Inc., a Delaware corporation (the "Company"). We are the holder
of record of Shares held for your account. A tender of such Shares can be made
only by us as the holder of record and pursuant to your instructions. The
enclosed Letter of Transmittal is furnished to you for your information only and
cannot be used by you to tender Shares held by us for your account.
We request instructions as to whether you wish us to tender any or all of
the Shares held by us for your account, upon the terms and subject to the
conditions set forth in the Offer.
Your attention is invited to the following:
1. The offer price is $65.75 per Share, net to you in cash without
interest.
2. The Offer is being made for all outstanding Shares.
3. The Board of Directors of the Company has unanimously approved the
Merger Agreement (as defined in the Offer to Purchase) and the transactions
contemplated thereby, including the Offer and the Merger (as defined in the
Offer to Purchase), and has unanimously determined that the Offer and the
Merger are fair to, and in the best interests of, the Company's stockholders
and
<PAGE>
unanimously recommends that the stockholders accept the Offer and tender
their Shares pursuant to the Offer.
4. The Offer and withdrawal rights expire at 12:00 Midnight, New York
City time, on January 15, 1999, unless the Offer is extended.
5. The Offer is conditioned upon, among other things, there being
validly tendered and not withdrawn prior to the Expiration Date of the Offer
(as defined in the Offer to Purchase) that number of Shares which represents
at least a majority of the Shares outstanding on a fully diluted basis on
the date Shares are accepted for payment. The Offer is also subject to the
other conditions set forth in the Offer to Purchase. See Section 14 of the
Offer to Purchase.
6. Any stock transfer taxes applicable to the sale of Shares to
Purchaser pursuant to the Offer will be paid by Purchaser, except as
otherwise provided in Instruction 6 of the Letter of Transmittal.
Purchaser is not aware of any state in which the making of the Offer is
prohibited by administrative or judicial action pursuant to any valid state
statute. In any jurisdiction in which the securities, blue sky or other laws
require the Offer to be made by a licensed broker or dealer, the Offer will be
deemed to be made on behalf of Purchaser by one or more registered brokers or
dealers licensed under the laws of such jurisdiction.
If you wish to have us tender any or all of your Shares, please so instruct
us by completing, executing and returning to us the instruction form set forth
on the reverse side of this letter. An envelope to return your instructions to
us is enclosed. If you authorize the tender of your Shares, all such Shares will
be tendered unless otherwise specified on the reverse side of this letter. Your
instructions should be forwarded to us in ample time to permit us to submit a
tender on your behalf prior to the expiration of the Offer.
2
<PAGE>
INSTRUCTIONS WITH RESPECT TO THE OFFER TO PURCHASE FOR CASH
ALL OF THE OUTSTANDING SHARES OF COMMON STOCK
OF
CELLULAR COMMUNICATIONS INTERNATIONAL, INC.
The undersigned acknowledge(s) receipt of your letter and the enclosed Offer
to Purchase dated December 17, 1998 and the related Letter of Transmittal
(which, together with any amendments or supplements thereto, constitute the
"Offer") in connection with the offer by Kensington Acquisition Sub, Inc., a
Delaware corporation and a wholly-owned subsidiary of Olivetti S.p.A., a limited
liability company organized under the laws of Italy, and Mannesmann AG, a
limited liability company organized under the laws of Germany, to purchase all
outstanding shares of common stock, par value $0.01 per share (the "Common
Stock"), including the associated preferred stock purchase rights (the "Rights"
and, together with the Common Stock, the "Shares"), of Cellular Communications
International, Inc., a Delaware corporation.
This will instruct you to tender the number of Shares indicated below (or if
no number is indicated below, all Shares) held by you for the account of the
undersigned, upon the terms and subject to the conditions set forth in the
Offer.
<TABLE>
<S> <C>
Number of Shares to be Tendered:
Shares*
Dated: , 1998
Signature(s)
Print name(s)
Address(es)
Area code and telephone number
Tax ID or social security number
</TABLE>
- ------------------------
* Unless otherwise indicated, it will be assumed that all Shares held by us
for your account are to be tendered.
3
<PAGE>
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION NUMBER TO GIVE
PAYER--Social Security numbers have nine digits separated by two hyphens: i.e.
000-00-0000. Employer identification numbers have nine digits separated by only
one hyphen: i.e. 00-0000000. The table below will help determine the number to
give the payer.
<TABLE>
<CAPTION>
FOR THIS TYPE OF ACCOUNT: GIVE THE NAME AND SOCIAL SECURITY NUMBER OF:
- ---------------------------------------------------------------- -----------------------------------------------------
<C> <S> <C>
1. An individual's account The individual
2. Two or more individuals (joint account) The actual owner of the account or, if combined
funds, any one of the individuals(1)
3. Husband and wife (joint account) The actual owner of the account or, if joint funds,
either person(1)
4. Custodian account of a minor (Uniform Gift to Minors The minor(2)
Act)
5. Adult and minor (joint account) The adult or, if the minor is the only contributor,
the minor(3)
6. Account in the name of guardian or committee for a The ward, minor, or incompetent person(4)
designated ward, minor, or incompetent person
7. a. The usual revocable savings trust account (grantor The grantor-trustee(3)
is also trustee)
b. So-called trust account that is not a legal or The actual owner(3)
valid trust under State law
<CAPTION>
FOR THIS TYPE OF ACCOUNT: GIVE THE NAME AND EMPLOYER IDENTIFICATION NUMBER OF:
- ---------------------------------------------------------------- -----------------------------------------------------
<C> <S> <C>
8. Sole proprietorship account The owner(5)
9. A valid trust, estate, or pension trust Legal entity (Do not furnish the identifying number
of the personal representative or trustee unless the
legal entity itself is not designated in the account
title.)(3)
10. Corporate account The corporation
11. Religious, charitable, or educational organization The organization
account
12. Partnership account held in the name of the business The partnership
13. Association, club, or other tax-exempt organization The organization
14. A broker or registered nominee The broker or nominee
15. Account with the Department of Agriculture in the The public entity
name of a public entity (such as a State or local
government, school district, or prison) that receives
agricultural program payments
</TABLE>
- ------------------------
(1) List first and circle the name of the person whose number you furnish.
(2) Circle the minor's name and furnish the minor's social security number.
(3) List first and circle the name of the legal trust, estate, or pension trust.
(4) Circle the ward's, minor's or incompetent person's name and furnish such
person's social security number.
(5) Show the name of the owner.
NOTE: If no name is circled when there is more than one name, the number will be
considered to be that of the first name listed.
<PAGE>
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
OBTAINING A NUMBER
If you don't have a TIN or you don't know your number, obtain Internal
Revenue Service Form SS-5, Application for a Social Security Number Card, or
Form SS-4, Application for Employer identification Number, at your local office
of the Social Security Administration or the Internal Revenue Service and apply
for a number.
PAYEES EXEMPT FROM BACKUP WITHHOLDING
Payees specifically exempted from backup withholding on ALL payments include
the following:
(1) A corporation.
(2) A financial institution.
(3) An organization exempt from tax under section 501(a) or an individual
retirement plan.
(4) The United States or any agency or instrumentality thereof.
(5) A State, the District of Columbia, a possession of the United States, or
any subdivision or instrumentality thereof.
(6) A foreign government, a political subdivision of a foreign government,
or any agency or instrumentality thereof.
(7) An international organization or any agency, or instrumentality thereof.
(8) A registered dealer in securities or commodities registered in the U.S.
or a possession of the U.S.
(9) A real estate investment trust.
(10) A common trust fund operated by a bank under section 584(a).
(11) An exempt charitable remainder trust, or a non-exempt trust described
in section 4947(a)(1).
(12) An entity registered at all times under the Investment Company Act of
1940.
(13) A foreign central bank of issue.
Payments of dividends and patronage dividends not generally subject to
backup withholding include the following:
- Payments to nonresident aliens subject to withholding under section 1441.
- Payments to partnerships not engaged in a trade or business in the U.S.
and which have at least one nonresident partner.
- Payments of patronage dividends where the amount received is not paid in
money.
- Payments made by certain foreign organizations.
- Payments made to a nominee.
- Payments of interest not generally subject to backup withholding include
the following:
- Payments of interest on obligations issued by individuals. Note: You may
be subject to backup withholding if this interest is $600 or more and is
paid in the course of the payer's trade or business and you have not
provided your correct taxpayer identification number to the payer.
- Payments of tax-exempt interest (including exempt-interest dividends under
section 852).
- Payments described in section 6049(b)(5) to nonresident aliens.
- Payments on tax-free covenant bonds under section 1451.
- Payments made by certain foreign organizations.
Exempt payees described above should file Form W-9 to avoid possible
erroneous backup withholding. FILE THIS FORM WITH THE PAYER. FURNISH YOUR
TAXPAYER IDENTIFICATION NUMBER, WRITE "EXEMPT" ON THE FACE OF THE FORM, AND
RETURN IT TO THE PAYER, IF THE PAYMENTS ARE INTEREST, DIVIDENDS, OR PATRONAGE
DIVIDENDS, ALSO SIGN AND DATE THE FORM.
Certain payments other than interest, dividends, and patronage dividends,
that are not subject to information reporting are also not subject to backup
withholding. For details, see the regulations under sections 6041, 6041A(a),
6045, and 6050A.
PRIVACY ACT NOTICE--Section 6109 requires most recipients of dividend,
interest, or other payments to give taxpayer identification numbers to payers
who must report the payments to IRS. IRS uses the numbers for identification
purposes. Payers must be given the numbers whether or not recipients are
required to file tax returns. Payers must generally withhold 31% of taxable
interest, dividend, and certain other payments to a payee who does not furnish a
taxpayer identification number to a payer. Certain penalties may also apply.
PENALTIES
(1) PENALTY FOR FAILURE TO FURNISH TAXPAYER IDENTIFICATION NUMBER--If you fail
to furnish your taxpayer identification number to a payer, you are subject
to a penalty of $50 for each such failure unless your failure is due to
reasonable cause and not to willful neglect.
(2) FAILURE TO REPORT CERTAIN DIVIDEND AND INTEREST PAYMENTS--If you fail to
include any portion of an includible payment for interest, dividends, or
patronage dividends in gross income, such failure will be treated as being
due to negligence and will be subject to a penalty of 5% on any portion of
an under-payment attributable to that failure unless there is clear and
convincing evidence to the contrary.
(3) CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING--If you make
a false statement with no reasonable basis which results in no imposition of
backup withholding, you are subject to a penalty of $500.
(4) CRIMINAL PENALTY FOR FALSIFYING INFORMATION--Falsifying certifications or
affirmations may subject you to criminal penalties including fines and/or
imprisonment.
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR THE INTERNAL
REVENUE SERVICE.
<PAGE>
NEWS RELEASE:
FOR IMMEDIATE RELEASE:
OLIVETTI S.p.A. AND MANNESMANN AG ANNOUNCE PLANS TO ACQUIRE
CELLULAR COMMUNICATIONS INTERNATIONAL, INC.
New York, New York, December 11, 1998 -- Cellular Communications International,
Inc. (NNM: CCIL), Olivetti S.p.A. and Mannesmann AG announced today that they
have signed a definitive merger agreement for Olivetti and Mannesmann to acquire
through a newly formed entity (Kensington Acquisition Sub, Inc.) all the
outstanding common stock of CCIL.
Under the agreement, Olivetti and Mannesmann will commence, on or before
December 18, 1998, a US$65.75 per share cash tender offer for all the
outstanding shares of common stock of CCIL. Following the consummation of the
tender offer, Olivetti and Mannesmann will acquire through a merger all shares
not purchased in the tender offer at the same price. This would result in an
aggregate equity purchase price on a fully diluted basis of approximately US$1.4
billion.
The Board of Directors of each of the companies has approved the tender offer
and the related transactions. Goldman, Sachs & Co. advised Olivetti and
Mannesmann on the transaction. CCIL's Board has determined that the terms of the
tender offer and merger are fair to, and in the best interests of, CCIL and its
stockholders, and has recommended that all stockholders accept the offer. The
Board of Directors of CCIL has received an opinion from its financial advisor,
Wasserstein Perella & Co., Inc., to the effect that the consideration proposed
to be paid in the transaction is fair to CCIL's stockholders from a financial
point of view.
The tender offer will be conditioned upon, among other things, the tender of a
number of shares which represents a majority of the outstanding shares of common
stock on a fully diluted basis. The tender offer will not be subject to a
financing contingency.
William Ginsberg, chief executive officer of CCIL, stated, "Over ten years ago,
we created CCIL in order to leverage our U.S. cellular experience and knowledge
by means of pursuing analogous opportunities in other countries. We were
instrumental in the creation and subsequent development of Omnitel-Pronto Italia
S.p.A., which has evolved into one of the largest and most rapidly growing
cellular operations in the world. During this time, the market value of CCIL has
grown from under $50 million at the time CCIL became a separate public company
in 1991 to approximately $1.4 billion on a fully diluted basis at the $65.75 per
share price announced today."
<PAGE>
"We are pleased to enter into this transaction with Olivetti and Mannesmann and
to recommend it to stockholders. We also recognize and appreciate the efforts of
the many people who have contributed to CCIL's success."
CCIL's primary asset is an approximate 14.667% interest in Omnitel Sistemi
Radiocellulari Italiani S.p.A. (OSR), a strategic joint venture which holds a
70% interest in Omnitel-Pronto Italia S.p.A. (Omnitel). Omnitel is Italy's
second leading mobile operator with over 5.5 million subscribers.
In the autumn of 1997, Olivetti and Mannesmann formed a joint venture, Oliman
Holding B.V., to cooperate in the area of telecommunications in Italy with the
objective to expand their leading position as a private competitor in the
Italian telecommunications market. Olivetti currently holds a 62.5% interest in
Oliman and Mannesmann holds a 37.5% interest. Mannesmann will raise its stake in
Oliman to 49.9% by February 1999. Oliman currently holds an indirect 40%
interest in Omnitel and a 100% stake in the fixed line operator Infostrada. With
this acquisition, Oliman will further strengthen its majority position in
Omnitel. CCIL currently holds an indirect stake of approximately 10.3% in
Omnitel.
Mannesmann operates in Telecommunications, Engineering, Automotive and Tubes &
Trading and generated sales of around DM 39 billion in 1997. The Group is one of
the leading alternative telecommunication operators in the recently liberalized
European market.
The Olivetti Group is a leading international player operating through
subsidiaries and affiliates in the telecommunications and information technology
sectors. In telecommunications, Olivetti operates both in the wireless and
wireline markets through Omnitel and Infostrada, respectively. In the
Information Technology sector, Olivetti wholly owns Olivetti Lexikon, which
specializes in I.T. products for the office and the consumer markets. It also
has a 18.5% ownership in Wang Global, a United States publicly traded company.
Conference Call: A telephone conference call will be held at 2:00 p.m.. New York
time today to discuss this transaction. Persons wishing to participate in this
call can do so by calling the following numbers:
U.S. callers: (800) 865-4460
International callers: (973) 321-1100
The callers should ask for the "Cellular Communications International" call upon
dialing.
A digital replay will be available for one week at the following numbers:
2
<PAGE>
U.S. callers: (888) 371-8504
International callers: (402) 220-1435
Contact information:
At CCIL: Richard J. Lubasch, Senior Vice President-General Counsel, (212)
906-8470.
At Mannesmann: Ms. Magdalena Moll, telephone 49-211-820-2161, facsimile
49-211-820-2384.
At Olivetti: Mr. Vittorio Meloni, telephone 39-01-2552-2639, facsimile
39-01-2552-3884.
3
<PAGE>
Exhibit 99.(a)(8)
FOR IMMEDIATE RELEASE:
OLIVETTI S.p.A. AND MANNESMANN AG COMMENCE TENDER OFFER
FOR CELLULAR COMMUNICATIONS INTERNATIONAL, INC.
AT $65.75 PER SHARE
New York, New York, December 17, 1998 - Olivetti S.p.A. and Mannesmann AG
jointly announced today that they have commenced through a newly formed entity
(Kensington Acquisition Sub, Inc.) their previously announced US$65.75 per share
cash tender offer for all the outstanding shares of common stock of Cellular
Communications International, Inc. (NNM:CCIL). The tender offer is scheduled to
expire at 12:00 midnight, New York City time, on Friday, January 15, 1999,
unless the tender offer is extended. Following the consummation of the tender
offer, Kensington intends to consummate a second step merger to acquire all
shares not purchased in the tender offer at the same price paid in the tender
offer. This would result in an aggregate equity purchase price on a fully
diluted basis of approximately US$1.4 billion.
As previously announced, the Board of Directors of CCIL has unanimously approved
the tender offer and the related transactions, has determined that the terms of
the tender offer and merger are fair to, and in the best interests of, CCIL and
its stockholders, and has recommended that all stockholders accept the offer.
All directors and executive officers of CCIL have agreed, among other things, to
tender all shares owned by them, representing approximately 4.8% of the
outstanding shares of CCIL (approximately 11.7% assuming the exercise of all
options beneficially owned by them).
The tender offer is conditioned upon, among other things, there being validly
tendered and not withdrawn prior to the expiration of the tender offer that
number of shares which represents at least a majority of the total number of
shares outstanding on a fully diluted basis on the date shares are accepted for
payment. Other terms and conditions of the tender offer are set forth in the
definitive tender offer documents being filed with the Securities Exchange
Commission and mailed to CCIL stockholders.
IBJ Schroder Bank & Trust Company will act as depositary for the tender offer,
MacKenzie Partners, Inc. will act as information agent and Goldman, Sachs & Co.
and Lehman Brothers Inc. will act as dealer managers.
CCIL's primary asset is an approximate 14.667% interest in Omnitel Sistemi
Radiocellulari Italiani S.p.A. (OSR), a strategic joint venture which holds a
70% interest in Omnitel-Pronto Italia S.p.A. (Omnitel). Omnitel is Italy's
second leading mobile operator with over 5.0 million subscribers.
In the autumn of 1997, Olivetti and Mannesmann formed a joint venture, Oliman
Holding B.V., to cooperate in the area of telecommunications in Italy. Olivetti
currently holds a 62.5% interest in Oliman and Mannesmann holds a 37.5%
interest. Mannesmann will raise its stake in Oliman to 49.9% by February 1999.
Oliman currently holds an indirect 40% interest in Omnitel and a 100% stake in
the fixed line operator Infostrada. With this acquisition, Olivetti and
<PAGE>
Mannesmann will further strengthen their position in Omnitel. CCIL currently
holds an indirect stake of approximately 10.3% in Omnitel.
Mannesmann operates in Telecommunications, Engineering, Automotive and Tubes &
Trading and generated sales of around DM 39 billion in 1997. The Group is one of
the leading alternative telecommunication operators in the recently liberalized
European market.
The Olivetti Group is a leading international player operating through
subsidiaries and affiliates in the telecommunications and information technology
sectors. In telecommunications, Olivetti operates both in the wireless and
wireline markets through Omnitel and Infostrada, respectively. In the
Information Technology sector, Olivetti wholly owns Olivetti Lexikon, which
specializes in I.T. products for the office and the consumer markets. It also
has a 18.5% ownership in Wang Global, a United States publicly traded company.
CONTACT: MacKenzie Partners, Inc. Mark H. Harnett, (212) 929-5877.
2
<PAGE>
This announcement is neither an offer to purchase nor a solicitation of an offer
to sell Shares (as defined below). The Offer (as defined below) is made solely
by the Offer to Purchase, dated December 17, 1998, and the related Letter of
Transmittal, and is being made to all holders of Shares. The Offer is not being
made to (nor will tenders be accepted from or on behalf of) holders of Shares in
any jurisdiction in which the making of the Offer or the acceptance thereof
would not be in compliance with the laws of such jurisdiction. In any
jurisdiction where the securities, blue sky or other laws require the Offer to
be made by a licensed broker or dealer, the Offer shall be deemed to be made on
behalf of Kensington Acquisition Sub, Inc. by Goldman, Sachs & Co. or Lehman
Brothers Inc. or by one or more registered brokers or dealers that are licensed
under the laws of such jurisdiction.
Notice of Offer to Purchase for Cash All
Outstanding Shares of Common Stock
(Including the Associated Preferred Stock Purchase Rights)
of
Cellular Communications
International, Inc.
at
$65.75 Net Per Share in Cash
by
Kensington Acquisition Sub, Inc.
a wholly-owned subsidiary of
Olivetti S.p.A.
and
Mannesmann AG
Kensington Acquisition Sub, Inc., a Delaware corporation (the "Purchaser") and a
wholly-owned subsidiary of Olivetti S.p.A., a limited liability company
organized under the
<PAGE>
laws of Italy and Mannesmann AG, a limited liability company organized under
the laws of Germany (collectively, the "Parent"), is offering to purchase all
outstanding shares of Common Stock, par value $0.01 per share (the "Shares"),
of Cellular Communications International, Inc., a Delaware corporation (the
"Company"), and the associated preferred stock purchase rights (the "Rights")
issued pursuant to the Rights Agreement, dated as of December 19, 1990,
between the Company and Continental Stock Transfer & Trust Company, as Rights
Agent (as the same may be amended, the "Rights Agreement"), at a purchase
price of $65.75 per Share net to the seller in cash without interest thereon,
upon the terms and subject to the conditions set forth in the Offer to
Purchase dated December 17, 1998 (the "Offer to Purchase"), and in the
related Letter of Transmittal (which, together with any amendments and
supplements thereto, collectively constitute the "Offer"). Unless the context
otherwise requires, all references to Shares herein and in the Offer to
Purchase shall include the associated Rights.
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK
CITY TIME, ON FRIDAY, JANUARY 15, 1999, UNLESS THE OFFER IS EXTENDED.
THE BOARD OF DIRECTORS OF THE COMPANY HAS UNANIMOUSLY APPROVED THE MERGER
AGREEMENT AND THE TRANSACTIONS CONTEMPLATED THEREBY, INCLUDING THE OFFER AND THE
MERGER, AND HAS UNANIMOUSLY DETERMINED THAT THE OFFER AND THE MERGER ARE FAIR
TO, AND IN THE BEST INTERESTS OF, THE COMPANY'S STOCKHOLDERS AND UNANIMOUSLY
RECOMMENDS THAT THE STOCKHOLDERS ACCEPT THE OFFER AND TENDER THEIR SHARES
PURSUANT TO THE OFFER.
The Offer is conditioned upon, among other things, there being validly tendered
and not withdrawn prior to the expiration of the Offer that number of Shares
which represents at least a majority of the total number of Shares outstanding
on a fully diluted basis on the date Shares are accepted for payment. The Offer
also is subject to the other conditions set forth in the Offer to Purchase. See
the Introduction and Sections 1, 14 and 15 of the Offer to Purchase. As used
herein, "fully diluted basis" takes into account the exercise or conversion of
all outstanding options, warrants and other rights and securities exercisable
into Shares.
The Offer is being made pursuant to an Agreement and Plan of Merger, dated as of
December 11, 1998, by and between the Company and the Purchaser (the "Merger
Agreement"), pursuant to which, following the consummation of the Offer and the
satisfaction of certain conditions, the Purchaser will be merged with and into
the Company (the "Merger"), with the Company continuing as the surviving
corporation. On the effective date of the Merger, each outstanding Share (other
than any Shares held by the Purchaser, any direct or indirect subsidiary of the
Purchaser or in the treasury of the Company and other than Shares, if any, held
by stockholders who perfect their appraisal rights under Delaware law) will, by
virtue of the Merger and without any action by the holder thereof, be converted
into the right to receive an amount equal to $65.75 in cash without interest
thereon.
As a condition and inducement to the Purchaser entering into the Merger
Agreement, concurrently with the execution and delivery of the Merger Agreement,
the Purchaser and the Company have entered into an Option Agreement, dated as of
December 11, 1998, pursuant to
2
<PAGE>
which, among other things, the Company has granted the Purchaser an
irrevocable option to purchase up to 4,338,133 newly issued Shares at $65.75
per share (the "Option"). The Option only can be exercised in certain
circumstances as described in Section 11 of the Offer to Purchase.
For purposes of the Offer, the Purchaser will be deemed to have accepted for
payment, and thereby purchased, Shares validly tendered and not withdrawn as, if
and when the Purchaser gives oral or written notice to IBJ Schroder Bank & Trust
Company, as depositary (the "Depositary"), of the Purchaser's acceptance of such
Shares for payment pursuant to the Offer. In all cases, upon the terms and
subject to the conditions of the Offer, payment for Shares purchased pursuant to
the Offer will be made by deposit of the purchase price therefor with the
Depositary, which will act as agent for tendering stockholders for the purpose
of receiving payment from the Purchaser and transmitting payment to validly
tendering stockholders. In all cases, payment for Shares purchased pursuant to
the Offer will be made only after timely receipt by the Depositary of (i)
certificates for such Shares (or a timely Book Entry Confirmation (as defined in
the Offer to Purchase) with respect thereto), (ii) the Letter of Transmittal (or
a facsimile thereof), properly completed and duly executed, with any required
signature guarantees or an Agent's Message (as defined in the Offer to Purchase)
in connection with a book-entry transfer and (iii) any other documents required
by the Letter of Transmittal. The per share consideration paid to any holder of
Shares pursuant to the Offer will be the highest per share consideration paid to
any other holder of such Shares pursuant to the Offer. Under no circumstances
will interest on the purchase price for Shares be paid by the Purchaser,
regardless of any extension of the Offer or any delay in making such payment.
Subject to the terms and conditions of the Merger Agreement, the Purchaser
expressly reserves the right, in its sole discretion, at any time and from time
to time, to extend the period during which the Offer is open for any reason,
including the existence of any of the conditions specified in Section 14 of the
Offer to Purchase, by giving oral or written notice of such extension to the
Depositary. Any such extension will be followed as promptly as practicable by
public announcement thereof, and such announcement will be made no later than
9:00 a.m., New York City time, on the next business day after the previously
scheduled Expiration Date (as defined in the Offer to Purchase).
Tenders of Shares made pursuant to the Offer are irrevocable, except that
Shares tendered pursuant to the Offer may be withdrawn at any time on or
prior to the Expiration Date and, unless theretofore accepted for payment as
provided in the Offer to Purchase, may also be withdrawn at any time after
February 14, 1999. In order for a withdrawal to be effective, a written,
telegraphic or facsimile transmission notice of withdrawal must be timely
received by the Depositary at one of its addresses set forth on the back
cover of the Offer to Purchase. Any such notice of withdrawal must specify
the name of the person who tendered the Shares to be withdrawn, the number of
Shares to be withdrawn, and the name of the registered holder of the Shares
to be withdrawn, if different from the name of the person who tendered the
Shares. If certificates evidencing Shares to be withdrawn have been delivered
or otherwise identified to the Depositary, then, prior to physical release of
such certificates, the serial numbers shown on such certificates must be
submitted to the Depositary and the signature on the notice of withdrawal
must be guaranteed by a financial institution (including most commercial
banks, savings and loan associations and brokerage houses) that is a
3
<PAGE>
participant in the Security Transfer Agents Medallion Program, the New York
Stock Exchange Medallion Signature Guarantee Program or the Stock Exchange
Medallion Program (an "Eligible Institution"), except in the case of Shares
tendered for the account of an Eligible Institution. If Shares have been
tendered pursuant to the procedures for book-entry transfer set forth in
Section 3 of the Offer to Purchase, any notice of withdrawal must specify the
name and number of the account at the appropriate Book-Entry Transfer
Facility (as defined in the Offer to Purchase) to be credited with the
withdrawn Shares and otherwise comply with such Book-Entry Transfer
Facility's procedures, in which case a notice of withdrawal will be effective
if delivered to the Depositary by any method of delivery described in this
paragraph. All questions as to the form and validity (including time of
receipt) of notices of withdrawal will be determined by the Purchaser, in its
sole discretion, whose determination shall be final and binding. Any Shares
properly withdrawn will be deemed not validly tendered for purposes of the
Offer, but may be tendered at any subsequent time prior to the Expiration
Date by following any of the procedures described in Section 3 of the Offer
to Purchase.
The information required to be disclosed by Rule 14d-6(e)(1)(vii) of the General
Rules and Regulations under the Securities Exchange Act of 1934, as amended, is
contained in the Offer to Purchase, and is incorporated herein by reference.
The Company has provided the Purchaser with the Company's stockholder lists
and security position listings for the purpose of disseminating the Offer to
holders of Shares. The Offer to Purchase and the related Letter of
Transmittal and, if required, other relevant materials will be mailed to
record holders of Shares and will be furnished to brokers, dealers,
commercial banks, trust companies and similar persons whose names, or the
names of whose nominees, appear on the stockholder list or, if applicable,
who are listed as participants in a clearing agency's security position
listing for subsequent transmittal to beneficial owners of Shares.
The Offer to Purchase and the related Letter of Transmittal contain important
information which should be read carefully before any decision is made with
respect to the Offer.
Questions and requests for assistance may be directed to the Information Agent
or the Dealer Managers at their respective telephone numbers listed below.
Requests for copies of the Offer to Purchase, the related Letter of Transmittal
and all other tender offer materials may be directed to the Information Agent or
brokers, dealers, commercial banks and trust companies, and copies will be
furnished promptly at the Purchaser's expense. Neither the Purchaser nor the
Parent will pay any fees or commissions (other than to the Information Agent)
for soliciting tenders of Shares pursuant to the Offer.
The Information Agent for the Offer is:
[MacKenzie Partners, Inc. Logo]
156 Fifth Avenue
New York, New York 10010
(212) 929-5500 (call collect)
or
Call Toll-Free (800) 322-2885
4
<PAGE>
The Dealer Managers for the Offer are:
Goldman, Sachs & Co. Lehman Brothers
85 Broad Street 3 World Financial Center
New York, New York 10004 New York, New York 10285
(800) 323-5678 (toll free) Call Collect at (212) 526-2619
December 17, 1998
5
<PAGE>
CELLULAR COMMUNICATIONS INTERNATIONAL, INC.
and
KENSINGTON ACQUISITION SUB, INC.
AGREEMENT AND PLAN OF MERGER
Dated as of December 11, 1998
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
ARTICLE I. THE TENDER OFFER
<S> <C> <C>
SECTION 1.1. The Offer .........................................................................................2
SECTION 1.2. Company Action.....................................................................................4
SECTION 1.3. Directors .........................................................................................6
ARTICLE II. THE MERGER
SECTION 2.1. The Merger ........................................................................................8
SECTION 2.2. Effective Time.....................................................................................8
SECTION 2.3. Closing ...........................................................................................8
SECTION 2.4. Effect of the Merger...............................................................................8
SECTION 2.5. Subsequent Actions.................................................................................8
SECTION 2.6. Certificate of Incorporation; By-Laws; Directors and Officers......................................9
SECTION 2.7. Stockholders' Meeting..............................................................................9
SECTION 2.8. Merger Without Meeting of Stockholders............................................................10
SECTION 2.9. Conversion of Securities..........................................................................10
SECTION 2.10. Dissenting Shares.................................................................................11
SECTION 2.11. Surrender of Shares; Stock Transfer Books.........................................................12
SECTION 2.12. Stock Plans ......................................................................................13
ARTICLE III. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
SECTION 3.1. Corporate Organization............................................................................14
SECTION 3.2. Authority Relative to this Agreement..............................................................15
SECTION 3.3. No Conflict; Required Filings and Consents........................................................15
SECTION 3.4. Financing Arrangements............................................................................16
SECTION 3.5. No Prior Activities...............................................................................16
SECTION 3.6. Brokers ..........................................................................................16
SECTION 3.7. Proxy Statement...................................................................................16
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
SECTION 4.1. Organization and Qualification; Subsidiaries......................................................17
SECTION 4.2. Capitalization....................................................................................17
SECTION 4.3. Authority Relative to this Agreement; Company Action..............................................18
SECTION 4.4. No Conflict; Required Filings and Consents........................................................19
SECTION 4.5. SEC Filings; Financial Statements.................................................................20
SECTION 4.6. Undisclosed Liabilities...........................................................................21
SECTION 4.7. Absence of Certain Changes or Events..............................................................21
SECTION 4.8. Litigation .......................................................................................21
SECTION 4.9. Employee Benefit Plans............................................................................22
SECTION 4.10. Proxy Statement...................................................................................24
SECTION 4.11. Brokers ..........................................................................................24
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SECTION 4.12. Conduct of Business...............................................................................24
SECTION 4.13. Compliance with Law...............................................................................25
SECTION 4.14. Taxes ............................................................................................26
SECTION 4.15. Intellectual Property.............................................................................28
SECTION 4.16. Employment Matters................................................................................30
SECTION 4.17. Vote Required.....................................................................................31
SECTION 4.18. Environmental Matters.............................................................................31
SECTION 4.19. Real Property.....................................................................................32
SECTION 4.20. Title and Condition of Properties.................................................................32
SECTION 4.21. Contracts ........................................................................................33
SECTION 4.22. Potential Conflicts of Interest...................................................................33
SECTION 4.23. Insurance ........................................................................................33
SECTION 4.24. Opinion of Financial Advisor......................................................................34
SECTION 4.25. Investment Company................................................................................34
SECTION 4.26. Full Disclosure...................................................................................34
ARTICLE V. CONDUCT OF BUSINESS PENDING THE MERGER
SECTION 5.1. Acquisition Proposals.............................................................................34
SECTION 5.2. Conduct of Business by the Company Pending the Merger.............................................35
SECTION 5.3. No Solicitation; Board Recommendation.............................................................37
ARTICLE VI. ADDITIONAL AGREEMENTS
SECTION 6.1. Proxy Statement...................................................................................39
SECTION 6.2. Meeting of Stockholders of the Company............................................................39
SECTION 6.3. Additional Agreements.............................................................................40
SECTION 6.4. Notification of Certain Matters...................................................................40
SECTION 6.5. Access to Information.............................................................................40
SECTION 6.6. Public Announcements..............................................................................41
SECTION 6.7. Best Efforts; Cooperation.........................................................................41
SECTION 6.8. Agreement to Defend and Indemnify.................................................................41
SECTION 6.9. Debt Offer .......................................................................................43
SECTION 6.10. Qualified Electing Fund Documentation.............................................................44
SECTION 6.11. Omnitel Agreement..................................................................................44
ARTICLE VII. CONDITIONS OF MERGER
SECTION 7.1. Offer ............................................................................................45
SECTION 7.2. Stockholder Approval..............................................................................45
SECTION 7.3. No Challenge......................................................................................45
ARTICLE VIII. TERMINATION, AMENDMENT AND WAIVER
SECTION 8.1. Termination ......................................................................................45
SECTION 8.2. Effect of Termination.............................................................................47
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ARTICLE IX. GENERAL PROVISIONS
SECTION 9.1. Non-Survival of Representations, Warranties and Agreements........................................48
SECTION 9.2. Notices ..........................................................................................48
SECTION 9.3. Expenses .........................................................................................49
SECTION 9.4. Certain Definitions...............................................................................49
SECTION 9.5. Headings .........................................................................................50
SECTION 9.6. Severability......................................................................................50
SECTION 9.7. Entire Agreement; No Third-Party Beneficiaries....................................................50
SECTION 9.8. Assignment .......................................................................................50
SECTION 9.9. Governing Law.....................................................................................51
SECTION 9.10. Amendment ........................................................................................51
SECTION 9.11. Waiver ...........................................................................................51
SECTION 9.12. Counterparts......................................................................................51
ANNEX I Conditions to the Offer
Exhibit A Option Agreement
Exhibit B Stockholders Agreement
SCHEDULES
Schedule 4.1 Equity Interests
Schedule 4.2 Capitalization
Schedule 4.4 No Conflict; Required Filings and Consents
Schedule 4.6 Liabilities
Schedule 4.7 Conduct of Business; Certain Changes or Events
Schedule 4.8 Litigation
Schedule 4.9 Employment Plans
Schedule 4.12 Licenses and Permits
Schedule 4.13 Compliance with Law
Schedule 4.14 Net Operating Loss and Credit
Schedule 4.15 Intellectual Property
Schedule 4.18 Environmental Matters
Schedule 4.21 Contracts
Schedule 4.22 Potential Conflicts of Interest
Schedule 5.2 Conduct of Business
Schedule 6.8 D & O Insurance
Schedule 6.9 Debt Offer
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Table of Definitions
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Affiliate......................................................9.4(a)
Agreement....................................................Recitals
Appointment Date..................................................5.2
Audit.........................................................4.14(o)
Balance Sheet.................................................4.14(f)
Board of Directors...........................................Recitals
Certificates..................................................2.11(b)
CCPR..........................................................4.15(a)
Closing...........................................................2.3
Closing Date......................................................2.3
Code...........................................................4.9(a)
Company......................................................Recitals
Company Agreement.............................................4.12(a)
Company Common Stock.........................................Recitals
Company Preferred Stock..........................................4.2?
Computer Software.............................................4.15(a)
Confidentiality Agreement......................................6.5(b)
Control........................................................9.4(b)
Corecomm......................................................4.15(a)
Debt Documents....................................................6.9
Debt Offer........................................................6.9
Delaware Law.................................................Recitals
Disclosure Schedule........................................Article IV
Dissenting Shares.............................................2.10(a)
Distribution Date..........................................1.2(a)(ii)
Effective Time....................................................2.2
Employee Benefit Plans.........................................4.9(a)
Environmental Laws............................................4.18(a)
ERISA..........................................................4.9(a)
ERISA Affiliate................................................4.9(a)
Exchange Act...................................................1.1(a)
Exchange Agent................................................2.11(a)
Expiration Date................................................1.1(b)
Financial Statements...........................................4.5(b)
GAAP...........................................................4.5(b)
Governmental Authority.........................................3.3(b)
HSR Act........................................................3.3(b)
Indemnified Parties............................................6.8(a)
Independent Directors..........................................1.3(a)
Intellectual Property.........................................4.15(b)
Licenses and Permits..........................................4.12(b)
Lien...........................................................9.4(c)
Mannesmann.......................................................4.10
Material Adverse Effect...........................................4.1
Merger.......................................................Recitals
Merger Consideration...........................................2.9(a)
Minimum Condition.............................................Annex 1
Multiemployer Plan.............................................4.9(a)
NTL...........................................................4.15(a)
Offer........................................................Recitals
Offer Documents................................................1.1(c)
Offer Price..................................................Recitals
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Offer to Purchase..............................................1.1(c)
Olivetti.........................................................4.10
Omnitel..........................................................4.12
Option Agreement.............................................Recitals
Option Plans..................................................2.12(a)
Option Price..................................................2.12(a)
Options.......................................................2.12(a)
Other Stock Plan..............................................2.12(b)
PBGC...........................................................4.9(e)
Pension Plans..................................................4.9(a)
Person.........................................................9.4(d)
PFIC..........................................................4.14(g)
Proxy Statement............................................2.7(a)(ii)
Purchaser....................................................Recitals
Purchaser Information.............................................3.7
Purchaser Representatives......................................6.5(b)
QEF Election..................................................4.14(g)
Rights.......................................................Recitals
Rights Agreement.............................................Recitals
Schedule 14D-1.................................................1.1(c)
Schedule 14D-9.................................................1.2(b)
SEC............................................................1.1(b)
SEC Reports....................................................4.5(a)
Securities Act.................................................4.5(a)
Senior Notes......................................................6.9
Shares.......................................................Recitals
Special Meeting.............................................2.7(a)(i)
Stockholders Agreement.......................................Recitals
Subsequent Determination.......................................5.3(b)
Subsidiary........................................................4.1
Superior Proposal..............................................5.3(b)
Surviving Corporation.............................................2.1
Takeover Proposal.................................................5.1
Takeover Proposal Interest........................................5.1
Tax Authority.................................................4.14(o)
Tax Return....................................................4.14(p)
Taxes.........................................................4.14(o)
Termination Fee................................................8.2(b)
Treasury Regulations..........................................4.14(m)
Voting Debt.......................................................4.2
Warrants..........................................................4.2
Wasserstein Perella.......................................1.2(a)(iii)
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AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of December 11, 1998
(the "Agreement"), between Cellular Communications International, Inc., a
Delaware corporation (the "Company"), and Kensington Acquisition Sub, Inc., a
Delaware corporation (the "Purchaser").
W I T N E S S E T H
WHEREAS, the Boards of Directors of each of the Company and
the Purchaser have determined that it is in the best interests of their
respective stockholders for the Purchaser to acquire the Company upon the terms
and subject to the conditions set forth herein; and
WHEREAS, in furtherance thereof, it is proposed that the
Purchaser will make a cash tender offer (the "Offer") to acquire all shares (the
"Shares") of the issued and outstanding common stock, par value $.01 per share,
of the Company ("Company Common Stock"), including the associated Preferred
Stock Purchase Rights (the "Rights") issued pursuant to the Rights Agreement,
dated as of December 19, 1990, between the Company and Continental Stock
Transfer Trust Company (the "Rights Agreement"), for $65.75 per Share (the
"Offer Price"), or such higher price as may be paid in the Offer, in each case
net to the seller in cash;
WHEREAS, also in furtherance of such acquisition, the Boards
of Directors of the Company and the Purchaser have each approved the merger (the
"Merger") of the Purchaser with and into the Company following the Offer in
accordance with the General Corporation Law of the State of Delaware ("Delaware
Law") and upon the terms and subject to the conditions set forth herein;
WHEREAS, the Board of Directors of the Company (the "Board of
Directors") has unanimously approved this Agreement and has resolved to
recommend acceptance of the Offer and the Merger to the holders of the Shares;
WHEREAS, as a condition and inducement to the Purchaser to
enter into this Agreement and to incur the obligations set forth herein,
concurrently with the execution and delivery of this Agreement, the Purchaser
and the Company are entering into an Option Agreement in the form of Exhibit A
hereto (the "Option Agreement"), pursuant to which, among other things, the
Company has granted the Purchaser an option to purchase certain newly-issued
shares of Company Common Stock subject to certain conditions; and
WHEREAS, as a condition and inducement to the Purchaser to
enter into this Agreement, the Board of Directors has approved the terms of a
Stockholders Agreement in the form of Exhibit B hereto (the "Stockholders
Agreement") to be entered
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into by the Purchaser, the Company, and the directors, officers and certain
stockholders of the Company concurrently with the execution of this Agreement,
pursuant to which each such Person (as defined below) has agreed to vote its
Shares for approval of the Merger and this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
mutual representations, warranties, covenants and agreements herein contained,
and intending to be legally bound hereby, the Company and the Purchaser hereby
agree as follows:
ARTICLE I.
THE TENDER OFFER
SECTION 1.1. The Offer.
(a) Provided that this Agreement shall not have been
terminated in accordance with Section 8.1 hereof and none of the events set
forth in Annex I hereto shall have occurred and be existing, the Purchaser or a
direct or indirect subsidiary thereof shall commence (within the meaning of Rule
14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"),) the Offer as promptly as practicable, but in no event later than five
business days following the execution of this Agreement. The obligation of the
Purchaser to accept for payment any Shares tendered shall be subject to the
satisfaction of only those conditions set forth in Annex I. The Purchaser
expressly reserves the right to waive any such condition or to increase the
Offer Price. The Offer Price shall be net to the seller in cash. The Company
agrees that no Shares held by the Company will be tendered pursuant to the
Offer.
(b) Without the prior written consent of the Company, the
Purchaser shall not (i) decrease the Offer Price or change the form of
consideration payable in the Offer, (ii) decrease the number of Shares sought,
(iii) amend or waive satisfaction of the Minimum Condition (as defined in Annex
I) or (iv) impose additional conditions to the Offer or amend any other term of
the Offer in any manner adverse to the holders of Shares; provided however, that
if on the initial scheduled expiration date of the Offer (the "Expiration Date")
which shall be twenty (20) business days after the date the Offer is commenced,
all conditions to the Offer shall not have been satisfied or waived, the
Purchaser may, from time to time, in its sole discretion, extend the expiration
date (any such extension to be for ten (10) business days or less); provided,
however, that the expiration date of the Offer may not be extended beyond May
15, 1999. The Purchaser shall, on the terms and subject to the prior
satisfaction or waiver of the conditions of the Offer, accept for payment and
purchase, as soon as practicable after the expiration of the Offer, all Shares
validly tendered and not withdrawn prior to the expiration of the Offer;
provided, however, that the Purchaser may (i) extend the Expiration Date
(including as it may be extended) for up to ten
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(10) business days in connection with an increase in the consideration to be
paid pursuant to the Offer so as to comply with applicable rules and regulations
of the Securities and Exchange Commission (the "SEC"), and (ii) if, immediately
prior to the Expiration Date (as it may be extended), the Shares tendered and
not withdrawn pursuant to the Offer equal less than 90% of the outstanding
Shares, the Purchaser may extend the Offer for a period not to exceed fifteen
(15) business days, notwithstanding that all conditions to the Offer are
satisfied as of such Expiration Date; provided, however, that during any such
extension of the Offer, the Purchaser irrevocably waives all of the conditions
to the Offer set forth in Annex I (other than the Minimum Condition (as defined
in Annex I)). It is agreed that the conditions to the Offer set forth in Annex I
are for the benefit of the Purchaser and may be asserted by the Purchaser
regardless of the circumstances giving rise to any such condition or, except
with respect to the Minimum Condition, may be waived by the Purchaser, in whole
or in part at any time and from time to time, in its sole discretion.
(c) The Offer shall be made by means of an offer to purchase
(the "Offer to Purchase") having only the conditions set forth in Annex I
hereto. On the date the Offer is commenced, the Purchaser shall file with the
SEC a Tender Offer Statement on Schedule 14D-1 (together with all amendments and
supplements thereto, and including the exhibits thereto, the "Schedule 14D-1").
The Schedule 14D-1 will contain (including as an exhibit) or incorporate by
reference the Offer to Purchase and forms of the related letter of transmittal
and summary advertisement (which documents, together with any supplements or
amendments thereto, and any other SEC schedule or form which is filed in
connection with the Offer and related transactions, are referred to collectively
herein as the "Offer Documents"). The Offer Documents will comply in all
material respects with the provisions of applicable Federal securities laws and,
on the date filed with the SEC and on the date first published, mailed or given
to the Company's stockholders, shall not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, except that no
representation is made by the Purchaser with respect to information furnished by
the Company to the Purchaser, in writing, expressly for inclusion in the Offer
Documents. The information supplied by the Company to the Purchaser, in writing,
expressly for inclusion in the Schedule 14D-1 will not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
(d) The Purchaser agrees to take all steps necessary to cause
the Schedule 14D-1 to be filed with the SEC and the Offer Documents to be
disseminated to holders of Shares, in each
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case as and to the extent required by applicable Federal securities laws. The
Company and its counsel shall be given a reasonable opportunity to review and
comment on any Offer Documents before they are filed with the SEC. Each of the
Purchaser and the Company agrees promptly (i) to correct any information
provided by it for use in the Schedule 14D-1 or the Offer Documents if and to
the extent that such information shall have become false or misleading in any
material respect and (ii) to supplement the information provided by it
specifically for use in the Schedule 14D-1 or the Offer Documents to include any
information that shall become necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading. The
Purchaser further agrees to take all steps necessary to cause the Schedule 14D-1
as so corrected to be filed with the SEC and to be disseminated to the Company's
stockholders, in each case as and to the extent required by applicable Federal
securities laws. In addition, the Purchaser agrees to provide the Company and
its counsel with any comments, whether written or oral, that the Purchaser or
its counsel may receive from time to time from the SEC or its staff with respect
to the Schedule 14D-1 promptly after the receipt of such comments.
(e) The Purchaser shall have available on a timely basis the
funds necessary to accept for payment, and pay for, any Shares that the
Purchaser becomes obligated to pay for pursuant to the Offer or pursuant to
Article II hereof.
SECTION 1.2. Company Action.
(a) The Company hereby approves of and consents to the Offer
and represents and warrants that:
(i) the Board of Directors, at a meeting duly called and held
on December 10, 1998, at which a majority of the Directors were
present: duly and unanimously approved and adopted this Agreement, the
Option Agreement, the Stockholders Agreement and the transactions
contemplated hereby and thereby, including the Offer and the Merger,
resolved to recommend that the stockholders of the Company accept the
Offer, tender their Shares pursuant to the Offer and approve this
Agreement and the transactions contemplated hereby, including the
Merger; and determined that this Agreement and the transactions
contemplated hereby, including the Offer and the Merger, are fair to
and in the best interests of the holders of Shares; provided, however,
that prior to the purchase by the Purchaser of Shares pursuant to the
Offer, the Company may modify, withdraw or change such recommendation
to the extent that the Board of Directors determines, after
consultation with outside legal counsel to the Company, that the
failure to so withdraw, modify or change such recommendation would
likely breach the fiduciary duties of the Board of Directors under
applicable laws;
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(ii) with respect to the Rights Agreement, the Company has
duly amended the Rights Agreement to provide that (A) neither this
Agreement nor any of the transactions contemplated hereby, including
the Offer and the Merger, will result in the occurrence of a
"Distribution Date" (as such term is defined in the Rights Agreement)
or otherwise cause the Rights to become exercisable by the holders
thereof, and (B) the Rights shall automatically on and as of the
Effective Time (as defined below) be void and of no further force or
effect; and
(iii) Wasserstein Perella & Co., Inc. ("Wasserstein Perella")
has delivered to the Board of Directors its written opinion that as of
the date hereof the consideration to be received by the stockholders of
the Company pursuant to each of the Offer and the Merger is fair to the
stockholders of the Company from a financial point of view. The Company
has been authorized by Wasserstein Perella to permit the inclusion of
such fairness opinion (or a reference thereto) in the Offer Documents
and in the Schedule 14D-9 referred to below. The Company hereby
consents to the inclusion in the Offer Documents of the recommendations
of the Board of Directors described in this Section 1.2(a).
(b) The Company shall file with the SEC, no later than the
fifth business day following the public announcement of this Agreement, a Tender
Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any
and all amendments or supplements thereto, and including the exhibits thereto,
the "Schedule 14D-9"). The Schedule 14D-9 will comply in all material respects
with the provisions of all applicable law, including Federal securities law and,
on the date filed with the SEC and on the date first published, sent or given to
the Company's stockholders, shall not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading, except that no representation is
made by the Company with respect to information furnished by the Purchaser, in
writing, expressly for inclusion in the Schedule 14D-9. The Company further
agrees to take all steps necessary to cause the Schedule 14D-9 to be filed with
the SEC and to be disseminated to holders of the Shares, in each case as and to
the extent required by applicable Federal securities laws. The Company shall
mail, or cause to be mailed, such Schedule 14D-9 to the stockholders of the
Company at the same time the Offer Documents are first mailed to the
stockholders of the Company together with such Offer Documents. The Schedule
14D-9 and the Offer Documents shall contain the recommendations of the Board of
Directors described in Section 1.2(a) hereof. The Company agrees promptly to
correct the Schedule 14D-9 if and to the extent that it shall have become false
or misleading in any material respect (and the Purchaser, with respect to
written information supplied
5
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by it specifically for use in the Schedule 14D-9, shall promptly notify the
Company of any required corrections of such information and cooperate with the
Company with respect to correcting such information) and to supplement the
information contained in the Schedule 14D-9 to include any information that
shall become necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The Company further
agrees to take all steps necessary to cause the Schedule 14D-9 as so corrected
to be filed with the SEC and to be disseminated to the stockholders of the
Company, in each case as and to the extent required by applicable law, including
Federal securities laws. The Purchaser and its counsel shall be given a
reasonable opportunity to review and comment on the Schedule 14D-9 before it is
filed with the SEC. In addition, the Company agrees to provide the Purchaser and
its counsel with any comments, whether written or oral, that the Company or its
counsel may receive from time to time from the SEC or its staff with respect to
the Schedule 14D-9 promptly after the receipt of such comments.
(c) In connection with the Offer, the Company, promptly upon
execution of this Agreement, shall furnish or cause to be furnished to the
Purchaser mailing labels containing the names and addresses of all record
holders of Shares, non-objecting beneficial owner lists and security position
listings of Shares held in stock depositories, each as of a recent date, and
shall promptly furnish the Purchaser with such additional information
(including, but not limited to, updated lists and computer files containing the
names of stockholders and their addresses, mailing labels and security position
listings) and such other information and assistance as the Purchaser or its
agents may reasonably request for the purpose of communicating the Offer to the
record and beneficial holders of Shares.
SECTION 1.3. Directors.
(a) Promptly upon the purchase by the Purchaser of any Shares
pursuant to the Offer, and from time to time thereafter as Shares are acquired
by the Purchaser, the Purchaser shall be entitled to designate such number of
directors, rounded up to the next whole number, on the Board of Directors as
will give the Purchaser, subject to compliance with Section 14(f) of the
Exchange Act and Rule 14f-1 promulgated thereunder, representation on the Board
of Directors equal to at least that number of directors which equals the product
of the total number of directors on the Board of Directors (giving effect to the
directors appointed or elected pursuant to this sentence and including current
directors serving as officers of the Company) multiplied by the percentage that
the aggregate number of Shares beneficially owned by the Purchaser or any
affiliate of the Purchaser (including for purposes of this Section 1.3 such
Shares as are accepted for payment pursuant to the Offer, but excluding Shares
held by the Company and excluding Shares beneficially owned by the Purchaser by
virtue of the Option Agreement) bears
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to the number of Shares outstanding. At such times, the Company will also cause
each committee of the Board of Directors to include Persons designated by the
Purchaser constituting at least the same percentage of each such committee or
board as the Purchaser's designees are of the Board of Directors. The Company
shall, upon request by the Purchaser, promptly increase the size of the Board of
Directors or exercise its best efforts to secure the resignations of such number
of incumbent directors as is necessary to enable the Purchaser's designees to be
elected to the Board of Directors in accordance with the terms of this Section
1.3 and shall cause the Purchaser's designees to be so elected; provided,
however, that, in the event that the Purchaser's designees are appointed or
elected to the Board of Directors, until the Effective Time (as defined below)
the Board of Directors shall have at least one director who is a director on the
date hereof and who is neither an officer of the Company nor a designee,
stockholder, affiliate or associate (within the meaning of the Federal
securities laws) of the Purchaser (one or more of such directors, the
"Independent Directors"); provided, further, that if no Independent Directors
remain, the other directors shall designate one Person to fill one of the
vacancies who shall not be either an officer of the Company or a designee,
stockholder, affiliate or associate of the Purchaser, and such Person shall be
deemed to be an Independent Director for purposes of this Agreement.
(b) Subject to applicable law, the Company shall promptly take
all action necessary pursuant to Section 14(f) of the Exchange Act and Rule
14f-1 promulgated thereunder in order to fulfill its obligations under this
Section 1.3 and shall include in the Schedule 14D-9 mailed to stockholders
promptly after the commencement of the Offer (or an amendment thereof or an
information statement pursuant to Rule 14f-1 if the Purchaser has not
theretofore designated directors) such information with respect to the Company
and its officers and directors as is required under Section 14(f) and Rule 14f-1
in order to fulfill its obligations under this Section 1.3. The Purchaser will
supply the Company and be solely responsible for any information with respect to
itself and its nominees, officers, directors and affiliates required by Section
14(f) and Rule 14f-1. Notwithstanding anything in this Agreement to the
contrary, in the event that the Purchaser's designees are elected to the Board
of Directors, after the acceptance for payment and purchase of Shares pursuant
to the Offer and prior to the Effective Time, the affirmative vote of a majority
of the Independent Directors shall be required to (i) amend or terminate this
Agreement on behalf of the Company, (ii) exercise or waive any of the Company's
rights or remedies hereunder, (iii) extend the time for performance of the
Purchaser's obligations hereunder or (iv) take any other action by the Company
in connection with this Agreement required to be taken by the Board of
Directors.
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ARTICLE II.
THE MERGER
SECTION 2.1. The Merger. At the Effective Time and subject to
and upon the terms and conditions of this Agreement and Delaware Law, the
Purchaser shall be merged with and into the Company, the separate corporate
existence of the Purchaser shall cease and the Company shall continue as the
surviving corporation. The Company as the surviving corporation after the Merger
hereinafter sometimes is referred to as the "Surviving Corporation."
SECTION 2.2. Effective Time. The parties hereto shall cause a
Certificate of Merger to be executed and filed on the Closing Date (as defined
below) (or on such other date as the Purchaser and the Company may agree) with
the Secretary of State of the State of Delaware, in such form as required by,
and executed in accordance with the relevant provisions of, Delaware Law. The
Merger shall become effective on the date on which the Certificate of Merger is
duly filed with the Secretary of State of the State of Delaware or such time as
is agreed upon by the parties and specified in the Certificate of Merger, and
such time is hereinafter referred to as the "Effective Time."
SECTION 2.3. Closing. The closing of the Merger (the
"Closing") shall take place at 10:00 a.m. on a date to be specified by the
parties, which shall be no later than the third business day after satisfaction
or waiver of all of the conditions set forth in Article VII hereof (the "Closing
Date"), at the offices of Willkie Farr & Gallagher, 787 Seventh Avenue, New
York, New York, unless another date or place is agreed to in writing by the
parties hereto.
SECTION 2.4. Effect of the Merger. At the Effective Time, the
effect of the Merger shall be as provided in the applicable provisions of
Delaware Law. Without limiting the generality of the foregoing, and subject
thereto, at the Effective Time all the property, rights, privileges, powers and
franchises of the Company and the Purchaser shall vest in the Surviving
Corporation, and all debts, liabilities and duties of the Company and the
Purchaser shall become the debts, liabilities and duties of the Surviving
Corporation.
SECTION 2.5. Subsequent Actions. If, at any time after the
Effective Time, the Surviving Corporation shall consider or be advised that any
deeds, bills of sale, assignments, assurances or any other actions or things are
necessary or desirable to vest, perfect or confirm of record or otherwise in the
Surviving Corporation its right, title or interest in, to or under any of the
rights, businesses, properties or assets of either of the Company or the
Purchaser acquired or to be acquired by the Surviving Corporation as a result
of, or in connection with, the Merger or otherwise to
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carry out this Agreement, the officers and directors of the Surviving
Corporation shall be authorized to execute and deliver, in the name and on
behalf of either the Company or the Purchaser, all such deeds, bills of sale,
assignments and assurances and to take and do, in the name and on behalf of each
of such corporations or otherwise, all such other actions and things as may be
necessary or desirable to vest, perfect or confirm any and all right, title and
interest in, to and under such rights, businesses, properties or assets in the
Surviving Corporation or otherwise to carry out this Agreement.
SECTION 2.6. Certificate of Incorporation; By-Laws; Directors
and Officers.
(a) Unless otherwise determined by the Purchaser before the
Effective Time, at the Effective Time the Certificate of Incorporation of the
Purchaser, as in effect immediately before the Effective Time, shall be the
Certificate of Incorporation of the Surviving Corporation until thereafter
amended as provided by law and such Certificate of Incorporation.
(b) The By-Laws of the Purchaser, as in effect immediately
before the Effective Time, shall be the By-Laws of the Surviving Corporation
until thereafter amended as provided by law, the Certificate of Incorporation of
the Surviving Corporation and such By-Laws.
(c) The directors of the Purchaser immediately before the
Effective Time will be the initial directors of the Surviving Corporation, and
the officers of the Company immediately before the Effective Time will be the
initial officers of the Surviving Corporation, in each case until their
successors are elected or appointed and qualified. If, at the Effective Time, a
vacancy shall exist on the Board of Directors or in any office of the Surviving
Corporation, such vacancy may thereafter be filled in the manner provided by
law.
SECTION 2.7. Stockholders' Meeting.
(a) If required by applicable law in order to consummate the
Merger, the Company, acting through its Board of Directors, shall, in accordance
with applicable law:
(i) duly call, give notice of, convene and hold a special
meeting of its stockholders (the "Special Meeting") as promptly as
practicable following the acceptance for payment and purchase of Shares
by the Purchaser pursuant to the Offer for the purpose of considering
and taking action upon the approval of the Merger and the adoption of
this Agreement;
(ii) prepare and file with the SEC a preliminary proxy or
information statement relating to the Merger and this Agreement and use
its best efforts (x) to obtain and
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furnish the information required to be included by the SEC in the Proxy
Statement (as defined below) and, after consultation with the
Purchaser, to respond promptly to any comments made by the SEC with
respect to the preliminary proxy or information statement and cause a
definitive proxy or information statement, including any amendment or
supplement thereto (the "Proxy Statement"), to be mailed to its
stockholders, provided that no amendment or supplement to the Proxy
Statement will be made by the Company without consultation with the
Purchaser and its counsel and (y) to obtain the necessary approvals of
the Merger and this Agreement by its stockholders; and
(iii) notwithstanding the provisions of Section 2.7(a)(ii)(y),
unless the Board of Directors, after consultation with outside legal
counsel to the Company, determines that to do so would likely breach
the fiduciary duties of the Board of Directors under applicable law,
include in the Proxy Statement the recommendation of the Board of
Directors that stockholders of the Company vote in favor of the
approval of the Merger and the adoption of this Agreement.
(b) The Purchaser shall vote, or cause to be voted, all of the
Shares then owned by it or any of its subsidiaries and affiliates in favor of
the approval of the Merger and the adoption of this Agreement.
SECTION 2.8. Merger Without Meeting of Stockholders.
Notwithstanding Section 2.7 hereof, in the event that the Purchaser or any
subsidiary of the Purchaser shall acquire at least 90% of the outstanding
Shares, pursuant to the Offer or otherwise, the parties hereto shall, at the
request of the Purchaser and subject to Article VII hereof, take all necessary
and appropriate action to cause the Merger to become effective as soon as
practicable after such acquisition, without a meeting of stockholders of the
Company, in accordance with Section 253 of Delaware Law.
SECTION 2.9. Conversion of Securities. At the Effective Time,
by virtue of the Merger and without any action on the part of the Purchaser, the
Company or the holder of any of the following securities:
(a) Each Share issued and outstanding immediately before the
Effective Time (other than any Shares to be cancelled pursuant to Section 2.9(b)
and any Dissenting Shares (as defined in Section 2.10(a)) shall be cancelled and
extinguished and be converted into the right to receive the Offer Price in cash
payable to the holder thereof, without interest (the "Merger Consideration"),
upon surrender of the certificate formerly representing such Share in the manner
provided in Section 2.11 hereof. All such Shares, when so converted, shall no
longer be outstanding and shall automatically be cancelled and retired and
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shall cease to exist, and each holder of a certificate representing any such
Shares shall cease to have any rights with respect thereto, except the right to
receive the Merger Consideration therefor upon the surrender of such certificate
in accordance with Section 2.11 hereof, without interest.
(b) Each Share held in the treasury of the Company and each
Share owned by the Purchaser or any direct or indirect wholly owned subsidiary
of the Purchaser immediately before the Effective Time shall be cancelled and
extinguished and no payment or other consideration shall be made with respect
thereto.
(c) Each share of common stock, par value $.01 per share, of
the Purchaser issued and outstanding immediately before the Effective Time shall
thereafter represent one validly issued, fully paid and nonassessable share of
common stock, par value $.01 per share, of the Surviving Corporation.
SECTION 2.10. Dissenting Shares.
(a) Notwithstanding any provision of this Agreement to the
contrary, any Shares held by a holder who has demanded and perfected his demand
for appraisal of his Shares in accordance with Delaware Law (including but not
limited to Section 262 thereof) and as of the Effective Time has neither
effectively withdrawn nor lost his right to such appraisal ("Dissenting
Shares"), shall not be converted into or represent the right to receive the
Merger Consideration pursuant to Section 2.9, but the holder thereof shall be
entitled to only such rights as are granted by Delaware Law.
(b) Notwithstanding the provisions of Section 2.7(a), if any
holder of Shares who demands appraisal of his Shares under Delaware Law shall
effectively withdraw or lose (through failure to perfect or otherwise) his right
to appraisal, then as of the Effective Time or the occurrence of such event,
whichever later occurs, such holder's Shares shall automatically be converted
into and represent only the right to receive the Merger Consideration as
provided in Section 2.9(a), without interest thereon, upon surrender of the
certificate or certificates representing such Shares pursuant to Section 2.11
hereof.
(c) The Company shall give the Purchaser (i) prompt notice of
any written demands for appraisal or payment of the fair value of any Shares,
withdrawals of such demands, and any other instruments served pursuant to
Delaware Law received by the Company and (ii) the opportunity to direct all
negotiations and proceedings with respect to demands for appraisal under
Delaware Law. The Company shall not voluntarily make any payment with respect to
any demands for appraisal and shall not, except with the prior written consent
of the Purchaser, settle or offer to settle any such demands.
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SECTION 2.11. Surrender of Shares; Stock Transfer Books.
(a) Before the Effective Time, the Purchaser shall designate a
bank or trust company reasonably acceptable to the Company to act as agent for
the holders of Shares in connection with the Merger (the "Exchange Agent") to
receive the funds necessary to make the payments contemplated by Section 2.9. At
the Effective Time, the Purchaser shall deposit, or cause to be deposited, in
trust with the Exchange Agent for the benefit of holders of Shares the aggregate
consideration to which such holders shall be entitled at the Effective Time
pursuant to Section 2.9.
(b) Each holder of certificates representing any Shares
cancelled upon the Merger, which immediately prior to the Effective Time
represented outstanding Shares (the "Certificates") whose Shares were converted
pursuant to Section 2.9(a), may thereafter surrender such Certificate or
Certificates to the Exchange Agent, as agent for such holder, to effect the
surrender of such Certificate or Certificates on such holder's behalf for a
period ending one year after the Effective Time. The Purchaser agrees that
promptly after the Effective Time it shall cause the distribution to holders of
record of Shares as of the Effective Time of appropriate materials to facilitate
such surrender. Upon the surrender of Certificates, the Purchaser shall cause
the Exchange Agent to pay the holder of such Certificates in exchange therefor
cash in an amount equal to the Merger Consideration multiplied by the number of
Shares represented by such Certificate. Until so surrendered, each Certificate
(other than Certificates representing Dissenting Shares and Certificates
representing Shares held by the Purchaser or any direct or indirect wholly owned
subsidiary of the Purchaser or in the treasury of the Company) shall represent
solely the right to receive the aggregate Merger Consideration relating thereto.
(c) If payment of the Merger Consideration in respect of
cancelled Shares is to be made to a Person other than the Person in whose name a
surrendered Certificate or instrument is registered, it shall be a condition to
such payment that the Certificate or instrument so surrendered shall be properly
endorsed or shall be otherwise in proper form for transfer and that the Person
requesting such payment shall have paid any transfer and other taxes required by
reason of such payment in a name other than that of the registered holder of the
Certificate or instrument surrendered or shall have established to the
satisfaction of the Purchaser or the Exchange Agent that such tax either has
been paid or is not applicable.
(d) At the Effective Time, the stock transfer books of the
Company shall be closed and there shall not be any further registration of
transfers of Shares or any shares of capital stock thereafter on the records of
the Company. From and after
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the Effective Time, the holders of certificates evidencing ownership of the
Shares outstanding immediately prior to the Effective Time shall cease to have
any rights with respect to such Shares, except as otherwise provided for herein
or by applicable law. If, after the Effective Time, Certificates are presented
to the Surviving Corporation, they shall be cancelled and exchanged for the
Merger Consideration as provided in this Article II. No interest shall accrue or
be paid on any cash payable upon the surrender of a Certificate or Certificates
which immediately before the Effective Time represented outstanding Shares.
(e) Promptly following the date which is one year after the
Effective Time, the Surviving Corporation shall be entitled to require the
Exchange Agent to deliver to it any cash (including any interest received with
respect thereto), Certificates and other documents in its possession relating to
the transactions contemplated hereby, which had been made available to the
Exchange Agent and which have not been disbursed to holders of Certificates, and
thereafter such holders shall be entitled to look to the Surviving Corporation
(subject to abandoned property, escheat or similar laws) only as general
creditors thereof with respect to the Merger Consideration payable upon due
surrender of their Certificates, without any interest thereon. Notwithstanding
the foregoing, neither the Surviving Corporation nor the Exchange Agent shall be
liable to any holder of a Certificate for Merger Consideration delivered to a
public official pursuant to any applicable abandoned property, escheat or
similar law.
(f) The Merger Consideration paid in the Merger shall be net
to the holder of Shares in cash, subject to reduction only for any applicable
Federal backup withholding or, as set forth in Section 2.8(c), stock transfer
taxes payable by such holder.
SECTION 2.12. Stock Plans.
(a) The Company shall take all actions necessary to provide
that, at the Effective Time, (i) each then outstanding option to purchase shares
of Company Common Stock (the "Options") granted under any of the Company's stock
option plans referred to in Section 4.2 hereof, each as amended (collectively,
the "Option Plans"), whether or not then exercisable or vested, shall be
cancelled and (ii) in consideration of such cancellation, such holders of
Options shall receive for each Share subject to such Option an amount (subject
to any applicable withholding tax) in cash equal to the product of (A) the
excess, if any, of the Offer Price over the per share exercise price of such
Option and (B) the number of Shares subject to such Option (such amount being
herein referred to as the "Option Price"); provided, however, that the Company
shall obtain all necessary consents or releases from holders of Options to
effect the foregoing. Upon receipt of the Option Price, the Option shall be
cancelled. The surrender of an Option to the Company shall be deemed a release
of any and
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all rights the holder had or may have had in respect of such Option. As promptly
as practicable following the consummation of the Merger, the Purchaser shall
provide the Company with the funds necessary to satisfy its obligations under
this Section 2.12(a).
(b) Except as provided herein or as otherwise agreed to by the
parties and to the extent permitted by the Option Plans, (i) the Company shall
cause the Option Plans to terminate as of the Effective Time and shall provide
for the payment of any benefit due under such Option Plans in cash; (ii) the
Company shall cause the provisions in any other plan, program or arrangement,
which currently provides or previously provided for the issuance or grant by the
Company of any interest in respect of the capital stock of the Company, or for
payments based on the value of the capital stock of the Company (each such other
plan being referred to as an "Other Stock Plan") to terminate as of the
Effective Time and shall provide for the payment of any benefit due under such
plans in cash; and (iii) the Company shall take all action necessary to ensure
that following the Effective Time no holder of Options or any participant in the
Option Plans or in any Other Stock Plan shall have any right thereunder to
acquire any equity securities of the Company, the Surviving Corporation or any
subsidiary thereof, and to terminate all such plans. The Purchaser shall assure
that the Company has the funds necessary to meet its obligations under this
Section 2.12(b).
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser represents and warrants to the Company as
follows:
SECTION 3.1. Corporate Organization. The Purchaser is a
corporation duly organized under the laws of the State of Delaware. The
Purchaser has the requisite corporate power and authority and any necessary
governmental approvals to own, operate or lease the properties that it purports
to own, operate or lease and to carry on its business as it is now being
conducted, except where the failure to be so organized, existing and in good
standing or to have such power, authority, and governmental approvals would not
have, individually or in the aggregate, a material adverse effect on the
Purchaser or on the ability of the Purchaser to consummate any of the
transactions contemplated by this Agreement or to perform its obligations under
this Agreement.
SECTION 3.2. Authority Relative to this Agreement. The
execution and delivery of this Agreement by the Purchaser and the consummation
by the Purchaser of the Merger and the transactions contemplated hereby and
thereby have been duly authorized by all necessary action on the part of the
Purchaser and no other proceeding is necessary for the execution and
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delivery of this Agreement by the Purchaser, the performance by the Purchaser of
its obligations hereunder and the consummation by the Purchaser of the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by the Purchaser and, assuming due and valid authorization, execution
and delivery hereof by the Company, constitutes a legal, valid and binding
obligation of the Purchaser, enforceable against the Purchaser in accordance
with its terms.
SECTION 3.3. No Conflict; Required Filings and Consents.
(a) The execution and delivery of this Agreement by the
Purchaser do not, and the performance of this Agreement by the Purchaser will
not, (i) conflict with or violate any law, regulation, court order, judgment or
decree applicable to the Purchaser or by which any of its property is bound or
affected, (ii) violate or conflict with the Certificate of Incorporation or
By-Laws of the Purchaser, or (iii) result in a violation or breach of or
constitute a default under (with or without due notice or lapse of time, or
both), or give to others any rights of termination or cancellation of, or result
in the creation of a Lien on any of the property or assets of the Purchaser
pursuant to, any contract, instrument, permit, license or franchise to which the
Purchaser is a party or by which the Purchaser or any of its property is bound
or affected.
(b) Except for applicable requirements, if any, of the
Exchange Act, the pre-merger notification requirements of the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended (the "HSR Act"), and filing and
recordation of appropriate merger documents as required by Delaware Law, the
Purchaser is not required to submit any notice, report or other filing with any
court, arbitrable tribunal, administrative agency or commission or other
governmental or other regulatory authority or agency, domestic or foreign (a
"Governmental Authority"), in connection with the execution, delivery or
performance of this Agreement or the consummation of the transactions
contemplated hereby. No waiver, consent, approval or authorization of any
Governmental Authority is required to be obtained or made by the Purchaser in
connection with its execution, delivery or performance of this Agreement.
SECTION 3.4. Financing Arrangements. At the Expiration Date,
the Purchaser will have funds available to it sufficient to purchase the Shares
in accordance with the terms of this Agreement.
SECTION 3.5. No Prior Activities. Except for obligations or
liabilities incurred in connection with its incorporation or organization or the
negotiation and consummation of this Agreement and the transactions contemplated
hereby, the Purchaser has not incurred any obligations or liabilities, and has
not engaged in any business or activities of any type or kind
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whatsoever, or entered into any agreements or arrangements with any Person or
entity.
SECTION 3.6. Brokers. Except as to Goldman, Sachs & Co., no
broker, finder or investment banker is entitled to any brokerage, finder's or
other fee or commission in connection with the transactions contemplated by this
Agreement based upon arrangements made by and on behalf of the Purchaser.
SECTION 3.7. Proxy Statement. None of the information supplied
by the Purchaser, the stockholders of the Purchaser or their respective
officers, directors, representatives, agents or employees (the "Purchaser
Information"), in writing, expressly for inclusion in the Proxy Statement, if
any, or in any amendments thereof or supplements thereto, will, on the date the
Proxy Statement is mailed to stockholders and at the time of the meeting of
stockholders, if any, to be held in connection with the Merger, contain any
untrue statement of a material fact or contain or omit to state any material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they are made, not
misleading. Notwithstanding the foregoing, the Purchaser does not make any
representation or warranty with respect to any information that has been
supplied by the Company or its accountants, counsel or other authorized
representatives for use in any of the foregoing documents.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth on the Disclosure Schedule delivered to
the Purchaser prior to the execution of this Agreement (the "Disclosure
Schedule"), the Company hereby represents and warrants to the Purchaser as
follows:
SECTION 4.1. Organization and Qualification; Subsidiaries. The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and has the requisite corporate power
and authority and any necessary governmental approvals to own, operate or lease
the properties that it purports to own, operate or lease and to carry on its
business as it is now being conducted, and is duly qualified as a foreign
corporation to do business, and is in good standing, in each jurisdiction where
the character of its properties owned, operated or leased or the nature of its
activities makes such qualification necessary, except for such failure which,
when taken together with all other such failures, would not have a Material
Adverse Effect (as defined below). Except as disclosed on Schedule 4.1 of the
Disclosure Schedule, the Company does not own any Subsidiaries and does not
otherwise have an equity interest in any other Person. The Subsidiaries listed
on Schedule 4.1 do not have any assets, obligations or liabilities of any type
or kind and will be dissolved prior to
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December 31, 1998. The term "Subsidiary" means any corporation or other legal
entity of which the Company (either alone or through or together with any other
Subsidiary) owns, directly or indirectly, more than 50% of the capital stock or
other equity interests the holders of which are generally entitled to vote for
the election of the board of directors or other governing body of such
corporation or other legal entity. The term "Material Adverse Effect" means any
change in or effect on the business of the Company that is not a result of the
business operations of Omnitel (as defined below) or of general changes in the
economy or the industries in which the Company operates or results from
regulatory changes generally applicable to cellular operators in Europe or Italy
(including, without limitation, the issuance of a fourth Italian cellular
license or rules with respect to interconnections or pricing for incoming calls)
or a result of this Agreement that is or could reasonably be expected to be
materially adverse to (x) the business, operations, properties (including
intangible properties), condition (financial or otherwise), results of
operations, assets, liabilities, regulatory status or prospects of the Company
or (y) the ability of the Company to consummate any transactions contemplated by
this Agreement or the Option Agreement or to perform its obligations under this
Agreement or the Option Agreement.
SECTION 4.2. Capitalization. The authorized capital stock of
the Company consists of 75,000,000 shares of Company Common Stock and 2,500,000
shares of Preferred Stock, $.01 par value per share ("Company Preferred Stock"),
1,000,000 shares of which have been designated "Series A Preferred Stock". As of
November 30, 1998, (i) 16,715,306 shares of Company Common Stock and no shares
of Company Preferred Stock were issued and outstanding, (ii) 2,274,140 shares of
Company Common Stock were reserved for issuance in connection with the exercise
of outstanding options under the Option Plans, (iii) 651,091 shares of Company
Common Stock were reserved for issuance in connection with the exercise of
currently outstanding warrants ("Warrants") and (iv) 2,159,129 shares of Company
Common Stock were reserved for issuance in connection with the conversion of
currently outstanding Voting Debt (as defined below). All of the issued and
outstanding shares of the Company's capital stock are, and all Shares which may
be issued pursuant to the exercise or conversion of outstanding Options,
Warrants and Voting Debt will be, when issued in accordance with the respective
terms thereof, duly authorized, validly issued, fully paid and nonassessable and
free of preemptive or similar rights. Except as disclosed on Schedule 4.2 of the
Disclosure Schedule, there are no bonds, debentures, notes or other indebtedness
having general voting rights (or convertible into securities having such rights)
("Voting Debt") of the Company issued and outstanding. There are no voting
trusts or other agreements or understandings to which the Company is a party
with respect to the voting of the capital stock of the Company. Except as
disclosed on Schedule 4.2 of the Disclosure Schedule, as of the date hereof
there are no, and as of the Expiration Date there will be no, other options,
warrants,
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puts, calls, preemptive rights, subscriptions or other rights, agreements,
arrangements or commitments of any character relating to the issued, unissued or
treasury shares of the capital stock or any other interest in the ownership or
earnings of the Company or other security of the Company obligating the Company
to issue or sell any shares of capital stock or Voting Debt of, or other equity
interests in, the Company. Except as disclosed on Schedule 4.2 of the Disclosure
Schedule, there are no outstanding contractual obligations of the Company or any
of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of
capital stock of the Company or to provide funds to or make any investment (in
the form of a loan, capital contribution or otherwise) in any other entity.
SECTION 4.3. Authority Relative to this Agreement; Company
Action.
(a) The Company has the necessary corporate power and
authority to enter into this Agreement, the Option Agreement and the
Stockholders Agreement and, subject to obtaining any necessary stockholder
approval of the Merger, to carry out its obligations hereunder and thereunder.
The execution and delivery of this Agreement by the Company and the consummation
by the Company of the transactions contemplated by this Agreement, the Option
Agreement and the Stockholders Agreement have been duly authorized by all
necessary corporate action on the part of the Company, subject to the approval,
if necessary, of the Merger by the Company's stockholders in accordance with
Delaware Law. Each of this Agreement, the Option Agreement and the Stockholders
Agreement has been duly executed and delivered by the Company and, assuming due
and valid authorization, execution and delivery hereof and thereof by the other
parties hereto and thereto, each of this Agreement and the Stockholders
Agreement constitutes a legal, valid and binding obligation of the Company,
enforceable against it in accordance with its terms.
(b) The Company has taken all action which may be necessary
under the Rights Agreement, so that (i) the execution of this Agreement, the
Option Agreement and the Stockholders Agreement and any amendments hereto and
thereto by the parties hereto and thereto and the consummation of the
transactions contemplated hereby and thereby shall not cause (A) the Purchaser
to become an Acquiring Person (as defined in the Rights Agreement) or (B) a
Distribution Date, a Stock Acquisition Date or a Triggering Event (as such terms
are defined in the Rights Agreement) to occur, irrespective of the number of
Shares acquired pursuant to the Offer or exercise of the option granted under
the Option Agreement, and (ii) the Rights (as defined in the Rights Agreement)
shall expire upon the acceptance of Shares for payment pursuant to the Offer.
(c) The Board of Directors has approved this Agreement, the
Option Agreement, the Stockholders Agreement and the transactions contemplated
hereby and thereby (including but
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not limited to the Offer, the Merger and the matters provided for in the Option
Agreement) so as to render inapplicable hereto and thereto the limitation on
business combinations contained in (i) Section 203 of Delaware Law (or any
similar provision) and (ii) Article Ninth of the Restated Certificate of
Incorporation of the Company. As a result, the only vote of holders of any class
or series of the capital stock of the Company required to adopt this Agreement
and the transactions contemplated hereby, including the Merger, is the
affirmative vote of a majority of the outstanding Shares, and if Section 253 of
Delaware Law is applicable to the Merger, no such vote will be required. Neither
Section 203 of Delaware Law nor any other state takeover or control share
statute or similar statute or regulation applies or purports to apply to the
Offer, the Merger or any of the transactions contemplated hereby or thereby.
SECTION 4.4. No Conflict; Required Filings and Consents.
(a) Except as disclosed on Schedule 4.4 of the Disclosure
Schedule, to the Company's knowledge, the execution and delivery of this
Agreement, the Option Agreement and the Stockholders Agreement by the Company do
not, and the performance of this Agreement, the Option Agreement and the
Stockholders Agreement by the Company will not, (i) conflict with or violate any
law, order, writ, injunction, decree, statute, rule or regulation, court order
or judgment applicable to the Company or by which its property is bound or
affected, (ii) violate or conflict with the Restated Certificate of
Incorporation or By-Laws of the Company, or (iii) result in a violation or
breach of, constitute a default under (with or without due notice or lapse of
time or both), give to others any rights of termination or cancellation of, or
result in the creation of a Lien on any of the properties or assets of the
Company pursuant to, any contract, instrument, permit, license or franchise to
which the Company is a party or by which the Company or its property is bound or
affected, excluding from the foregoing clauses (i) and (iii) such violations,
breaches or defaults which, in the aggregate, would not have a Material Adverse
Effect. For purposes of this Agreement, "to the knowledge of the Company" or "to
the Company's knowledge" shall be limited to the knowledge of a current director
or officer of the Company.
(b) Except for applicable requirements of the Exchange Act,
the pre-merger notification requirements of the HSR Act, and the filing and
recordation of appropriate merger or other documents as required by Delaware
Law, or "blue sky" laws of various states, the Company is not required to submit
any notice, report, permit, authorization or other filing with any Governmental
Authority in connection with the execution, delivery or performance of this
Agreement. No waiver, consent, approval or authorization of any Governmental
Authority is required to be obtained or made by the Company in connection with
its execution,
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delivery or performance of this Agreement, the Option Agreement or the
Stockholders Agreement.
SECTION 4.5. SEC Filings; Financial Statements.
(a) The Company has filed all forms, reports and documents
required to be filed with the SEC since January 1, 1997 (as such documents have
been amended since the time of their filing, collectively, the "SEC Reports").
As of their respective dates, or, if amended, as of the date of the last such
amendment, the SEC Reports, including without limitation, any financial
statements or schedules included therein (i) complied in all material respects
with the applicable requirements of the Exchange Act and the Securities Act of
1933, as amended (the "Securities Act"), as the case may be, and the applicable
rules and regulations of the SEC promulgated thereunder, and (ii) did not
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. The Company has heretofore furnished or made available to the
Purchaser a complete and correct copy of any amendments or modifications which
have not yet been filed with the SEC to executed agreements, documents or other
instruments which previously had been filed by the Company with the SEC pursuant
to the Securities Act or the Exchange Act.
(b) The consolidated financial statements of the Company
contained in the SEC Reports (the "Financial Statements") have been prepared
from, and are in accordance with the books and records of the Company, comply in
all material respects with applicable accounting requirements and with the
published rules and regulations of the SEC with respect thereto, have been
prepared in accordance with United States generally accepted accounting
principles ("GAAP") applied on a consistent basis throughout the periods
involved (except as may be indicated in the notes thereto) and fairly presented
the consolidated financial position of the Company and the consolidated results
of operation, cash flows and changes in financial position of the Company as of
and for the periods indicated, except that the unaudited interim financial
statements were or are subject to normal and recurring year-end adjustments.
SECTION 4.6. Undisclosed Liabilities.
(a) Except (a) as disclosed in the Financial Statements and
(b) for liabilities and obligations (i) incurred in the ordinary course of
business and consistent with past practice since September 30, 1998, (ii)
pursuant to the terms of this Agreement, or (iii) as disclosed on Schedule 4.6
of the Disclosure Schedule, the Company has no material liabilities or
obligations of any nature, whether or not accrued, contingent or otherwise, that
would be required by GAAP to be reflected in, reserved against or otherwise
described in the balance sheet of
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the Company included in the Financial Statements (including the notes thereto)
or which would have a Material Adverse Effect.
SECTION 4.7. Absence of Certain Changes or Events.
Since December 31, 1997, except as disclosed on Schedule 4.7
of the Disclosure Schedule or in the SEC Reports filed prior to the date
hereof, the Company has conducted its business only in the ordinary and usual
course in accordance with past practice, and:
(a) there have not occurred any events or changes (including
the incurrence of any liabilities of any nature, whether or not accrued,
contingent or otherwise) that have had, or are reasonably likely in the future
to have, individually or in the aggregate, a Material Adverse Effect; and
(b) the Company has not taken any action which would have been
prohibited under Section 5.2 hereof.
SECTION 4.8. Litigation. Except as disclosed in the SEC
Reports filed prior to the date hereof, or as disclosed on Schedule 4.8 of the
Disclosure Schedule, there are no claims, actions, suits, proceedings
(including, without limitation, arbitration proceedings) or other alternative
dispute resolution proceedings, or investigations pending or, to the knowledge
of the Company, threatened against the Company, or any properties or rights of
the Company, before any Governmental Authority that, either individually or in
the aggregate, would be reasonably likely to have a Material Adverse Effect or
prevent or delay the consummation of the Offer or the Merger. As of the date
hereof, the Company is not subject to any outstanding court order, judgment,
injunction or decree.
SECTION 4.9. Employee Benefit Plans.
(a) Schedule 4.9(a) of the Disclosure Schedule sets forth: (i)
all "employee benefit plans", as defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), and all other
material employee benefit arrangements or payroll practices, including, without
limitation, any such arrangements or payroll practices providing severance pay,
sick leave, vacation pay, salary continuation for disability, retirement
benefits, deferred compensation, bonus pay, incentive pay, stock options,
hospitalization insurance, medical insurance, life insurance, scholarships or
tuition reimbursements, maintained by the Company or to which the Company is
obligated to contribute thereunder for current or former employees or directors
of the Company (the "Employee Benefit Plans"). Neither the Company nor any trade
or business (whether or not incorporated) which is or has ever been under
control or treated as a single employer with the Company under Section 414(b),
(c), (m), or (o) of the Internal Revenue Code of 1986, as amended (the "Code")
("ERISA Affiliate") has ever maintained,
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contributed to or been obligated to contribute to an "employee pension plan", as
defined in Section 3(2) of ERISA.
(b) All contributions (including all employer contributions
and employee salary reduction contributions) required to have been made under
any of the Employee Benefit Plans or by law to any funds or trusts established
thereunder or in connection therewith have been made by the due date thereof
(including any valid extension), and all contributions for any period ending on
or before the Effective Time which are not yet due will have been paid or
accrued on or prior to the Effective Time.
(c) True, correct and complete copies of the following
documents, with respect to each of the Employee Benefit Plans and Pension Plans,
have been delivered or made available to the Purchaser by the Company: (i) all
plans and related trust documents, and amendments thereto; (ii) the most recent
Forms 5500; (iii) the last Internal Revenue Service determination letter; (iv)
summary plan descriptions; (v) the most recent actuarial report relating to the
Employee Benefit Plans and the Pension Plans; and (vi) written descriptions of
all non-written agreements relating to the Employee Benefit Plans.
(d) There are no pending actions, claims or lawsuits which
have been asserted or instituted against the Employee Benefit Plans, the assets
of any of the trusts under such plans or the plan sponsor or the plan
administrator, or against any fiduciary of the Employee Benefit Plans with
respect to the operation of such plans (other than routine benefit claims), nor
does the Company have knowledge of facts which could form a valid basis for any
such claim or lawsuit.
(e) The Employee Benefit Plans have been maintained, in all
material respects, in accordance with their terms and with all provisions of
ERISA and the Code (including rules and regulations thereunder) and other
applicable federal and state laws and regulations, and neither the Company, any
Subsidiary of the Company nor any "party in interest" or "disqualified Person"
with respect to the Employee Benefit Plans has engaged in a "prohibited
transaction" within the meaning of Section 406 of ERISA or 4975 of the Code. No
fiduciary to any Employee Benefit Plan has any current liability for breach of
fiduciary duty or any other failure to act or comply in connection with the
administration or investment of the assets of any Employee Benefit Plan.
(f) None of the Employee Benefit Plans provide retiree life or
retiree health benefits except as may be required under Section 4980B of the
Code or Section 601 of ERISA and at the expense of the participant or the
participant's beneficiary. The Company and the ERISA Affiliates have at all
times complied with the notice and health care continuation requirements of
Section 4980B of the Code and Sections 601 through 608 of ERISA.
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(g) Except as disclosed on Schedule 4.9(g) of the Disclosure
Schedule, neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby will (i) result in any
payment becoming due to any employee or director (current, former or retired) of
the Company, (ii) increase any benefits otherwise payable under any Employee
Benefit Plan, (iii) result in the acceleration of the time of payment or vesting
of any benefits under any Employee Benefit Plan or (iv) constitute a "change in
control" or similar event under any Employee Benefit Plan. Except as disclosed
on Schedule 4.9(g) of the Disclosure Schedule, no payment under any Employee
Benefit Plan will fail to be deductible by reason of Section 280G of the Code.
(h) Except as disclosed on Schedule 4.9(h) of the Disclosure
Schedule, no stock or other security issued by the Company or any Affiliate of
the Company forms or has formed a material part of the assets of any Employee
Benefit Plan.
(i) There has been no "mass layoff" or "plant closing" as
defined by the Worker Adjustment and Retraining Notification Act or any similar
state or local "plant closing" law with respect to the current or former
employees of the Company.
SECTION 4.10. Proxy Statement. The Proxy Statement, if any (or
any amendment thereof or supplement thereto), to be sent to the stockholders of
the Company in connection with the Special Meeting or the information statement,
if any, to be sent to such stockholders, as appropriate, will comply in all
material respects with the applicable requirements of the Exchange Act and the
rules and regulations thereunder. The Proxy Statement will not, at the time the
Proxy Statement is mailed to stockholders and at the time of the Special
Meeting, contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading, or necessary to correct any statement in any earlier
communication with respect to the solicitation of proxies for the meeting of the
Company's stockholders held for approval of the Merger which has become false or
misleading, except that no representation or warranty is being made by the
Company with respect to any information expressly concerning the Purchaser,
Mannesmann AG ("Mannesmann") or Olivetti S.p.A. ("Olivetti"), which has been
supplied by such entities or which the Purchaser has had a prior opportunity to
review.
SECTION 4.11. Brokers. Except as to Wasserstein Perella and
Donaldson Lufkin & Jenrette Securities Corporation ("DLJ"), no broker, finder or
investment banker or other financial advisor is entitled to any brokerage,
finder's or other fee or commission in connection with the transactions
contemplated by this Agreement based upon arrangements made by or on behalf of
the Company. The Company has heretofore furnished
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to the Purchaser true and complete information concerning the financial
arrangements between the Company and Wasserstein Perella and DLJ pursuant to
which such firms would be entitled to any payment as a result of the
transactions contemplated by this Agreement.
SECTION 4.12. Conduct of Business; Licenses and Permits.
(a) Except as disclosed in the SEC Reports filed prior to the
date hereof, the business of the Company (which shall be deemed to exclude the
operations of Omnitel Sistemi Radiocellulari Italiani S.p.A. and Omnitel Pronto
Italia S.p.A. (collectively, "Omnitel")) is not being conducted in default or
violation of (with or without due notice or lapse of time or both) any term,
condition or provision of (i) its Restated Certificate of Incorporation or
By-Laws, or (ii) any note, bond, mortgage, indenture, contract, agreement, lease
or other instrument or agreement of any kind to which the Company is a party or
by which the Company or any of its properties or assets may be bound (each, a
"Company Agreement"), or (iii) any Federal, state, local or foreign statute,
law, ordinance, rule, regulation, judgment, decree, order, concession, grant,
franchise, permit or license or other governmental authorization or approval
applicable to the Company, and no notice, charge, claim, action or assertion has
been received by the Company or has been filed, commenced or, to the Company's
knowledge, threatened against the Company alleging any such violation except,
with respect to the foregoing clauses (ii) and (iii), defaults or violations
that would not, individually or in the aggregate, have a Material Adverse
Effect. To the Company's knowledge, no other party to any Company Agreement is
in default or violation in respect thereof, and no event has occurred which,
with due notice or lapse of time or both, would constitute such a default or
violation. The Company has delivered to the Purchaser or its representatives
true and complete originals or copies of all the Company Agreements.
(b) Schedule 4.12 of the Disclosure Schedule sets forth a true
and complete list of all licenses, permits, franchises, authorizations and
approvals issued or granted to the Company by any Governmental Authority (the
"Licenses and Permits"), and all pending applications therefor. Such list
contains a summary description of each such item and, where applicable,
specifies the date issued, granted or applied for, the expiration date and the
current status thereof. Each License and Permit has been duly obtained, is valid
and in full force and effect, and is not subject to any pending or, to the
Company's knowledge, threatened administrative or judicial proceeding to revoke,
cancel, suspend or declare such License and Permit invalid in any respect. To
the Company's knowledge, the Licenses and Permits are sufficient and adequate in
all material respects to permit the continued lawful conduct of the Company's
business (which shall be deemed to exclude the operations of Omnitel) in
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the manner now conducted and as proposed to be conducted, and none of the
operations of the Company are being conducted in a manner that violates in any
material respect any of the terms or conditions under which any License and
Permit was granted. Except as disclosed on Schedule 4.12 of the Disclosure
Schedule, no such License and Permit will be affected by, or terminate or lapse
by reason of, the transactions contemplated by this Agreement.
SECTION 4.13. Compliance with Law. Except as disclosed on
Schedule 4.8 (as applicable) and Schedule 4.13 of the Disclosure Schedule, the
operations of the Company (which shall be deemed to exclude the operations of
Omnitel) have been conducted in accordance with all applicable laws,
regulations, orders and other requirements of all Governmental Authorities
having jurisdiction over the Company and its assets, properties and operations.
Except as disclosed on Schedule 4.8 (as applicable) and Schedule 4.13 of the
Disclosure Schedule, the Company has not received notice of any violation of any
such law, regulation, order or other legal requirement, and is not in default
with respect to any order, writ, judgment, award, injunction or decree of any
Governmental Authority. The Company has no knowledge of any proposed change in
any such laws, rules or regulations (other than laws of general applicability)
that would materially and adversely affect the transactions contemplated by this
Agreement or would have a Material Adverse Effect. To the Company's knowledge,
neither the Company nor any director, officer, agent, employee or other Person
associated with or acting on behalf of the Company has: used any funds for any
unlawful contribution, gift, entertainment or other unlawful contribution, gift,
entertainment or other unlawful expense relating to political activity; made any
direct or indirect unlawful payment to any foreign or domestic government
official or employee from corporate funds; violated or is in violation of any
provision of the Foreign Corrupt Practices Act of 1977; or made any bribe,
rebate, payoff, influence payment, kickback or other unlawful payment.
SECTION 4.14. Taxes. Except as disclosed on Schedule 4.14 of
the Disclosure Schedule:
(a) Except as would not, either individually or in the
aggregate, have a Material Adverse Effect: (i) the Company has timely filed with
the appropriate Tax Authority (as defined below) all Tax Returns (as defined
below) required to be filed by or with respect to the Company, and such Tax
Returns are true, correct and complete in all material respects; (ii) all Taxes
(as defined below) due and payable by the Company with respect to the taxable
years or other taxable periods ending on or prior to the Effective Time have
been, or on or prior to the Effective Time will be, paid or adequately disclosed
and fully provided for; (iii) no Audits (as defined below) are pending or, to
the Company's knowledge, threatened with regard to any Taxes or Tax Returns of
the Company, and there are no outstanding deficiencies
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or assessments asserted or proposed; (iv) no issue has been raised by any Taxing
Authority in any Audit of the Company that if raised with respect to any other
period not so audited could be expected to result in a proposed deficiency of
any period not so audited; (v) there are no outstanding agreements, consents or
waivers extending the statutory period of limitations applicable to the
assessment of any Taxes or deficiencies against the Company, and the Company is
not a party to any agreement providing for the allocation or sharing of Taxes;
(vi) no powers of attorney with respect to Taxes of the Company have been
executed that will be outstanding as of the Effective Time; (vii) there are no
Liens for Taxes upon any of the assets of the Company, except for Liens for
Taxes not yet due and payable for which adequate reserves have been established
on the Company's balance sheet at September 30, 1998 included in the Company's
Quarterly Report on Form 10-Q filed with the SEC prior to the date hereof (the
"Balance Sheet") in accordance with GAAP and (viii) the Company has complied in
all respects with all applicable laws, rules and regulations relating to the
payment and withholding of Taxes (including, without limitation, withholding of
Taxes pursuant to Sections 1441 and 1442 of the Code or similar provisions under
any foreign laws) and has, within the time and in the manner prescribed by law,
withheld and paid over to the proper Tax Authorities all amounts required to be
so withheld and paid over under applicable laws.
(b) The Company has not filed a consent to the application of
Section 341(f) of the Code.
(c) The Company is not and has not been a United States real
property holding company (as defined in Section 897(c)(2) of the Code) during
the applicable period specified in Section 897(c)(1)(ii) of the Code.
(d) No indebtedness of the Company is "corporate acquisition
indebtedness" within the meaning of Section 279(b) of the Code.
(e) The Company has not entered into any agreements that would
result in the disallowance of any tax deductions pursuant to Section 280G of the
Code.
(f) Subject to the Purchaser's consent under Section 6.10 of
this Agreement, the Company has made or will by the Effective Time make, a valid
"qualified electing fund" election ("QEF Election"), pursuant to Section 1295 of
the Code with respect to all stock which it owns, or is considered to own, in
any corporation which meets the definition of "passive foreign investment
company" ("PFIC") set forth in Section 1297 of the Code. Such QEF Election or
elections are, or will be, effective for all periods in which the Company is
considered to own the stock to which the election relates. Any PFIC is, or will
be, a qualified electing fund with respect to the Company for all taxable years
that the Company has held the PFIC stock.
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(g) The Company has not made any change in accounting methods
or received a ruling from any taxing authority, other than with respect to a
PFIC, likely to have a material adverse effect on the Company.
(h) The deductibility of compensation paid by the Company will
not be limited by Section 162(m) of the Code.
(i) All transactions that could give rise to an understatement
of the federal income tax liability of the Company within the meaning of Section
6662(d) of the Code are adequately disclosed on Tax Returns in accordance with
Section 6662(d)(2)(B) of the Code and the taxpayer reasonably believed that the
tax treatment of such item was more likely than not to be the proper treatment.
(j) No excess loss accounts or deferred intercompany gains as
defined in the consolidated return regulations promulgated under the Code exist
with respect to the Company.
(k) For purposes of this Agreement, "Taxes" means any Federal,
state, local and foreign taxes, and other assessments of a similar nature
(whether imposed directly or through withholding), including any interest,
additions to tax, or penalties applicable thereto, imposed by any Tax Authority;
"Tax Authority" means the Internal Revenue Service and any other domestic or
foreign Governmental Authority responsible for the administration of any Taxes;
and "Audit" means any audit, assessment or other examination relating to Taxes
by any Tax Authority or any judicial or administrative proceedings relating to
Taxes.
(l) For purposes of this Agreement, "Tax Return" means any
return, report, information return or other document (including any related or
supporting information and, where applicable, profit and loss accounts and
balance sheets) with respect to Taxes.
SECTION 4.15. Intellectual Property. Schedule 4.15 of the
Disclosure Schedule contains a true and complete list of all (i) patents and
patent applications, (ii) trademark and service mark registrations and
applications, (iii) Computer Software (as defined below), (iv) copyright
registrations and applications, (v) material unregistered trademarks, service
marks and copyrights, and (vi) Internet domain names used or held for use in
connection with the business of the Company, together with all licenses related
to the foregoing.
(a) For purposes of this Agreement, "Computer Software" means
(i) any and all computer programs and applications consisting of sets of
statements and instructions to be used directly or indirectly in computer
software or firmware whether in source code or object code form, (ii) databases
and compilations, including without limitation any and all data and
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collections of data, whether machine readable or otherwise, (iii) all versions
of the foregoing including, without limitation, all screen displays and designs
thereof, and all component modules of source code or object code or natural
language code therefor, and whether recorded on papers, magnetic media or other
electronic or non-electronic device, (iv) all descriptions, flowcharts and other
work product used to design, plan, organize and develop any of the foregoing,
(v) all documentation including, without limitation, all technical and user
manuals and training materials relating to the foregoing, and all Internet
domain names and content contained on all World Wide Web sites of the Company or
any Subsidiary; provided, however, that "Computer Software" shall not include
(x) "shrink-wrap" or other similar off-the-shelf software generally available or
(y) software provided to, or used to provide services to the Company by NTL
Incorporated ("NTL"), Corecomm Limited ("Corecomm") or Cellular Communications
of Puerto Rico, Inc. ("CCPR").
(b) Except as disclosed on Schedule 4.15 of the Disclosure
Schedule, the Company is the sole and exclusive owner of all patents, patent
applications, patent rights, copyrights, trademarks, trademark rights, trade
names, trade name rights, service marks, service mark rights and all goodwill of
the business associated therewith, trade secrets, registrations for and
applications for registration of trademarks, service marks and copyrights,
technology and know-how, Computer Software other than off-the-shelf
applications, and other confidential or proprietary rights and information and
all technical and user manuals and documentation made or used in connection with
any of the foregoing, used or held for use anywhere in the world in connection
with the business of the Company (which shall be deemed to exclude the
operations of Omnitel) as currently conducted (collectively, the "Intellectual
Property"), free and clear of all Liens. The Liens disclosed on Schedule 4.15 of
the Disclosure Schedule do not materially detract from the value of the
Intellectual Property subject thereto and do not materially impair the
operations of the Company.
(c) Except disclosed on Schedule 4.15 of the Disclosure
Schedule, all grants, registrations and applications for Intellectual Property
that are used in the business of the Company as currently conducted (i) are
valid, subsisting, in proper form and enforceable, and have been duly
maintained, including the submission of all necessary filings and fees in
accordance with the legal and administrative requirements of the appropriate
jurisdictions, and (ii) have not lapsed, expired or been abandoned, and no
application or registration therefor is the subject of any legal or governmental
proceeding before any governmental, registration or other authority in any
jurisdiction.
(d) The Company owns or has the valid right to use all of the
material Intellectual Property used by it or held for use by it in connection
with its business (which shall be deemed to
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exclude the operations of Omnitel). To the Company's knowledge, there are no
conflicts with or infringements of any Intellectual Property by any third party.
The business of the Company (which shall be deemed to exclude the operations of
Omnitel) as currently conducted does not conflict with or infringe in any way on
any proprietary right of any third party. There is no claim, suit, action or
proceeding pending or, to the Company's knowledge, threatened against the
Company (i) alleging any such conflict or infringement with any third party's
proprietary rights, or (ii) challenging the ownership, use, validity or
enforceability of the Intellectual Property.
(e) The Computer Software used by the Company in the conduct
of its business (which shall be deemed to exclude the operations of Omnitel) was
either: (i) developed by employees of the Company within the scope of their
employment; (ii) developed on behalf of the Company by a third party, and all
ownership rights therein have been assigned or otherwise transferred to or
vested in the Company, pursuant to written agreements; or (iii) as disclosed on
Schedule 4.15 of the Disclosure Schedule, licensed or acquired from a third
party pursuant to a written license, assignment, or other contract which is in
full force and effect and of which the Company is not in material breach. Except
as disclosed on Schedule 4.15 of the Disclosure Schedule, (x) no third party has
had access to any of the source codes for any of the Computer Software described
in clause (i) or (ii) hereof and (y) no act has been done or omitted to be done
by the Company to impair or dedicate to the public or entitle any Governmental
Authority to hold abandoned any of such Computer Software.
(f) Except as disclosed on Schedule 4.15 of the Disclosure
Schedule, all consents, filings, and authorizations by or with Governmental
Authorities or third parties necessary with respect to the consummation of the
transactions contemplated by this Agreement as they may affect the Intellectual
Property have been obtained.
(g) The Company has not entered into any material consent,
indemnification, forbearance to sue, settlement agreement or cross-licensing
arrangement with any Person relating to the Intellectual Property or the
intellectual property of any third party other than as may be contained in the
license agreements disclosed on Schedule 4.15 of the Disclosure Schedule.
(h) Except as disclosed on Schedule 4.15 of the Disclosure
Schedule, the Company is not, nor will it be as a result of the execution and
delivery of this Agreement or the performance of its obligations under this
Agreement, in breach of any license, sublicense or other agreement relating to
the Intellectual Property.
(i) No former or present employees, officers or directors of
the Company hold any right, title or interest,
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directly or indirectly, in whole or in part, in or to any Intellectual Property.
SECTION 4.16. Employment Matters. No employee of the Company
has entered into a Company Agreement and the employment of all employees of the
Company may be terminated at will. The Company has not experienced any strikes,
collective labor grievances, other collective bargaining disputes or claims of
unfair labor practices in the last five years. To the Company's knowledge, there
is no organizational effort presently being made or threatened by or on behalf
of any labor union with respect to employees of the Company.
SECTION 4.17. Vote Required. The affirmative vote of the
holders of a majority of the outstanding shares of Company Common Stock is the
only vote of the holders of any class or series of the Company's capital stock
which may be necessary to approve this Agreement and the transactions
contemplated hereby, including the Merger.
SECTION 4.18. Environmental Matters.
(a) Except as disclosed on Schedule 4.18(a) of the Disclosure
Schedule: (i) the Company is and has been in compliance with all applicable
laws, statutes, rules, regulations, common law, ordinances, decrees, orders,
judgments, permits, licenses, registration and other governmental authorizations
or approvals or other legal or regulatory requirements relating to pollution or
the protection of human health, natural resources or the environment
("Environmental Laws"), and there are no outstanding allegations by any Person
that the Company is not or has not been in compliance with any Environmental
Laws, and (ii) the Company currently holds all permits, licenses, registrations
and other governmental authorizations or approvals (including without limitation
exemptions, waivers, and the like) and financial assurances required under any
Environmental Laws for the Company to operate its business.
(b) Except as disclosed on Schedule 4.18(b) of the Disclosure
Schedule, (i) there is no asbestos or asbestos-containing materials in or on any
real property, buildings, structures or components thereof currently owned,
leased or operated by the Company, and (ii) there are and have been no
underground or aboveground storage tanks (whether or not required to be
registered under any applicable law), dumps, landfills, lagoons, surface
impoundments, sumps, injection wells or other disposal or storage sites or
locations in or on any property currently owned, leased or operated by the
Company.
(c) Except as disclosed on Schedule 4.18(c) of the Disclosure
Schedule, (i) the Company has not received (x) any communication from any Person
stating or alleging that the Company is or may be liable under any Environmental
Law
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(including without limitation the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, and any foreign or state
analog thereto) with respect to any actual or alleged environmental
contamination, (y) any request for information under any Environmental Law from
any Governmental Authority or any other Person with respect to any actual or
alleged environmental contamination or (z) notice of any actual or alleged
violation of Environmental Law, (ii) none of the Company, any Governmental
Authority or any other Person is conducting or has conducted (or is proposing or
threatening to conduct) any environmental remediation or investigation which
could result in a material liability of the Company under any Environmental Law
or otherwise require disclosure in any SEC Report, and (iii) the Company is not
subject to any judicial or administrative proceeding alleging a violation or
liability under any Environmental Law.
(d) Except as disclosed on Schedule 4.18(d) of the Disclosure
Schedule, to the Company's knowledge, (i) no party to any Company Agreement and
no other Person whose ability, in whole or in part, may be attributable to or
asserted against the Company, has received any notice, claim, demand or request
for information from any Governmental Authority or any other Person with respect
to any actual or potential liability under any Environmental Law, and (ii) no
event has occurred with respect to the Company or such parties which, with due
notice or the lapse of time or both, would give rise to any liability to the
Company under any Environmental Law.
SECTION 4.19. Real Property. The Company occupies space in New
York and London pursuant to an agreement with NTL. As of the date hereof, the
Company does not own or lease, have an option to purchase or lease or have any
interest in any real property.
SECTION 4.20. Title and Condition of Properties. The
Company owns good and marketable title, free and clear of all Liens, to all
of the personal property and assets shown on the Balance Sheet or acquired
after September 30, 1998, except for (a) assets which have been disposed of
to nonaffiliated third parties since September 30, 1998 in the ordinary
course of business, (b) Liens reflected in the Balance Sheet, (c) Liens or
imperfections of title which are not, individually or in the aggregate,
material in character, amount or extent and which do not materially detract
from the value or materially interfere with the present or presently
contemplated use of the assets subject thereto or affected thereby, and (d)
Liens for current Taxes not yet due and payable. All of the machinery,
equipment and other tangible personal property and assets owned or used by
the Company are in good condition and repair, except for ordinary wear and
tear not caused by neglect, and are usable in the ordinary course of
business, except for any matter otherwise covered by this sentence which does
not have, individually or in the aggregate, a Material Adverse Effect. The
personal property
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and assets reflected on the Balance Sheet or acquired after September 30,
1998, the rights under the Company Agreements and the Intellectual Property
owned or used by the Company under valid licenses, collectively include all
assets necessary to provide, produce, sell and license the services and
products currently provided, produced, sold and licensed by the Company and
to conduct the business of the Company as presently conducted or as currently
contemplated to be conducted.
SECTION 4.21. Contracts. Each Company Agreement is legally
valid and binding and in full force and effect, except where failure to be
legally valid and binding and in full force and effect would not have a Material
Adverse Effect. Schedule 4.21 of the Disclosure Schedule sets forth a true and
complete list of (i) all material Company Agreements entered into by the Company
since December 31, 1997 and all amendments to any Company Agreements included as
an exhibit to the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997 and (ii) all non-competition agreements imposing restrictions
on the ability of the Company to conduct business in any jurisdiction or
territory.
SECTION 4.22. Potential Conflicts of Interest. Except as
disclosed on Schedule 4.22 of the Disclosure Schedule or in the SEC Reports
filed prior to the date hereof, since December 31, 1997, there have been no
transactions, agreements, arrangements or understandings between the Company and
its affiliates that would be required to be disclosed under Item 404 of
Regulation S-K under the Securities Act. Except as disclosed on Schedule 4.22 of
the Disclosure Schedule, no officer of the Company owns, directly or indirectly,
any interest in (excepting not more than 1% stock holdings for investment
purposes in securities of publicly held and traded companies) or is an officer,
director, employee or consultant of any Person which is a competitor, lessor,
lessee, customer or supplier of the Company; and no officer or director of the
Company (i) owns, directly or indirectly, in whole or in part, any Intellectual
Property which the Company is using or the use of which is necessary for the
business of the Company; (ii) has any claim, charge, action or cause of action
against the Company, except for claims for accrued vacation pay and accrued
benefits under the Employee Plans; (iii) has made, on behalf of the Company, any
payment or commitment to pay any commission, fee or other amount to, or to
purchase or obtain or otherwise contract to purchase or obtain any goods or
services from, any other Person of which any officer or director of the Company,
or, to the Company's knowledge, a relative of any of the foregoing, is a partner
or stockholder (except stock holdings solely for investment purposes in
securities of publicly held and traded companies); or (iv) owes any money to the
Company.
SECTION 4.23. Insurance. The Company has policies of insurance
and bonds of the type and in amounts customarily carried by Persons conducting
businesses or owning assets similar
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to those of the Company. There is no material claim pending under any of such
policies or bonds as to which coverage has been questioned, denied or disputed
by the underwriters of such policies or bonds. All premiums due and payable
under all such policies and bonds have been paid by the Company and the Company
is otherwise in compliance in all material respects with the terms of such
policies and bonds. The Company has no knowledge of any threatened termination
of, or material premium increase with respect to, any of such policies.
SECTION 4.24. Opinion of Financial Advisor. The Company has
received an opinion from Wasserstein Perella, financial advisor to the Company,
to the effect that the consideration to be received in the Offer and the Merger
by the holders of the Shares is fair to such holders from a financial point of
view, a copy of which opinion has been delivered to the Purchaser.
SECTION 4.25. Investment Company. The Company is not an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
SECTION 4.26. Full Disclosure. The Company has not knowingly
failed to disclose to the Purchaser any facts material to the Company's
business, results of operations, assets, liabilities, financial condition or
prospects (in each case excluding those relating to Omnitel). No representation
or warranty by the Company in this Agreement and no statement by the Company in
any document referred to herein (including the Schedules and Exhibits hereto),
contains any untrue statement of a material fact or omits to state any material
fact necessary, in order to make the statement made herein or therein, in light
of the circumstances under which they were made, not misleading.
ARTICLE V.
CONDUCT OF BUSINESS PENDING THE MERGER
SECTION 5.1. Acquisition Proposals. The Company will notify
the Purchaser immediately, but in any event within 24 hours, if any proposals,
inquiries or expressions of interest are received by, any information is
requested from, or any negotiations or discussions are sought to be initiated or
continued with the Company or its representatives, in each case in connection
with any Takeover Proposal (as defined below) or the possibility or
consideration of making a Takeover Proposal ("Takeover Proposal Interest")
indicating, in connection with such notice, the name of the Person indicating
such Takeover Proposal Interest and the terms and conditions of any proposals or
offers. The Company agrees that it will immediately cease and cause to be
terminated any existing activities, discussions or negotiations with any parties
conducted heretofore with respect to any Takeover Proposal Interest. The Company
agrees that it will take the necessary steps promptly to inform the Persons
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referred to in the first sentence hereof of the obligations undertaken in this
Section 5.1. The Company agrees that it shall keep the Purchaser informed, on a
current basis, of the status and terms of any Takeover Proposal Interest. As
used in this Agreement, "Takeover Proposal" shall mean any tender or exchange
offer involving the Company, any proposal for a merger, consolidation or other
business combination involving the Company, any proposal or offer to acquire in
any manner a significant equity interest in, or a significant portion of the
business or assets of, the Company (other than immaterial or insubstantial
assets or inventory in the ordinary course of business or assets held for sale),
any proposal or offer with respect to any recapitalization or restructuring with
respect to the Company or any proposal or offer with respect to any other
transaction similar to any of the foregoing with respect to the Company other
than pursuant to the transactions to be effected pursuant to this Agreement.
SECTION 5.2. Conduct of Business by the Company Pending the
Merger. The Company covenants and agrees that, (i) except as expressly
contemplated by this Agreement, the Option Agreement or the Stockholders
Agreement, or (ii) as disclosed on Schedule 5.2 of the Disclosure Schedule, or
(iii) as agreed in writing by the Purchaser, after the date hereof, and prior to
the time the directors of the Purchaser have been elected to and shall
constitute a majority of the Board of Directors pursuant to Section 1.3 (the
"Appointment Date"):
(a) the business of the Company shall be conducted only in the
ordinary and usual course and, to the extent consistent therewith, the Company
shall use its best reasonable efforts to preserve its business organization
intact and maintain its existing relations with customers, suppliers, employees,
creditors and business partners;
(b) the Company will not, directly or indirectly, (i) except
upon exercise of stock options or other rights to purchase shares of Company
Common Stock pursuant to the Option Plans outstanding on the date hereof or upon
exercise of outstanding Warrants or conversion of Voting Debt, issue, sell,
transfer or pledge or agree to sell, transfer or pledge any treasury stock of
the Company beneficially owned by it, (ii) amend its Restated Certificate of
Incorporation or Bylaws or similar organizational documents; or (iii) split,
combine or reclassify the outstanding Shares;
(c) the Company shall not: (i) declare, set aside or pay any
dividend or other distribution payable in cash, stock or property with respect
to its capital stock; (ii) issue, sell, pledge, dispose of or encumber any
additional shares of, or securities convertible into or exchangeable for, or
options, warrants, calls, commitments or rights of any kind to acquire, any
shares of capital stock of any class of the Company, other than shares of
Company Common Stock reserved for issuance on the
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date hereof pursuant to the exercise of Options or Warrants or conversion of
Voting Debt outstanding on the date hereof; (iii) transfer, lease, license,
sell, mortgage, pledge, dispose of, or encumber any assets other than in the
ordinary and usual course of business and consistent with past practice, or
incur or modify any indebtedness or other liability, other than in the ordinary
and usual course of business and consistent with past practice; or (iv) redeem,
purchase or otherwise acquire directly or indirectly any of its capital stock;
(d) the Company shall not: (i) grant any increase in the
compensation payable or to become payable by the Company to any of its executive
officers; (ii)(A) adopt any new, or (B) amend or otherwise increase, or
accelerate the payment or vesting of the amounts payable or to become payable
under, any existing bonus, incentive compensation, deferred compensation,
severance, profit sharing, stock option, stock purchase, insurance, pension,
retirement or other employee benefit plan, agreement or arrangement; or (iii)
enter into any employment or severance agreement with or, except in accordance
with the existing written policies of the Company, grant any severance or
termination pay to any officer, director or employee of the Company;
(e) the Company shall not modify, amend or terminate any of
its material contracts or waive, release or assign any material rights or
claims, except in the ordinary course of business and consistent with past
practice;
(f) the Company shall not permit any insurance policy naming
it as a beneficiary or a loss payable payee to be cancelled or terminated
without notice to the Purchaser, except in the ordinary course of business and
consistent with past practice;
(g) the Company shall not (i) incur or assume any long-term
debt, or, except in the ordinary course of business, incur or assume any
short-term indebtedness in amounts not consistent with past practice; (ii)
assume, guarantee, endorse or otherwise become liable or responsible (whether
directly, contingently or otherwise) for the obligations of any other Person,
except in the ordinary course of business and consistent with past practice;
(iii) other than ordinary course expense advances, make any loans, advances or
capital contributions to, or investments in, any other Person; or (iv) enter
into any material commitment or transaction (including, but not limited to, any
borrowing, capital expenditure or purchase, sale or lease of assets or real
estate);
(h) the Company shall not (i) change any of the accounting
methods used by it unless required by GAAP; or (ii) other than related to a QEF
Election, make any material Tax election, change any material Tax election
already made, adopt any material Tax accounting method, change any material Tax
accounting method unless required by GAAP, enter into any closing
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agreement, settle any material Tax claim or assessment or consent to any
material Tax claim or assessment or any waiver of the statute of limitations for
any such material claim or assessment;
(i) the Company shall not pay, discharge or satisfy any
claims, liabilities or obligations (absolute, accrued, asserted or unasserted,
contingent or otherwise), other than the payment, discharge or satisfaction of
any such claims, liabilities or obligations, in the ordinary course of business
and consistent with past practice, or claims, liabilities or obligations
reflected or reserved against in, or contemplated by, the consolidated financial
statements (or the notes thereto) of the Company;
(j) the Company shall not adopt a plan of complete or partial
liquidation, dissolution, merger, consolidation, restructuring, recapitalization
or other reorganization of the Company (other than the Merger);
(k) the Company shall not take, or agree to commit to take,
any action that would, or is reasonably likely to, result in any of the
conditions to the Merger set forth in Article VII not being satisfied, or would
make many representation or warranty of the Company contained herein inaccurate
in any respect at, or as of any time prior to, the Effective Time, or that would
materially impair the ability of the Company to consummate the Merger in
accordance with the terms hereof or materially delay such consummation;
(l) the Company shall not redeem the Rights or terminate,
amend or otherwise modify the Rights Agreement prior to the consummation of the
Offer unless required to do so by order of a court of competent jurisdiction;
and
(m) the Company shall not enter into an agreement, contract,
commitment or arrangement to do any of the foregoing, or to authorize,
recommend, propose or announce an intention to do any of the foregoing.
SECTION 5.3. No Solicitation; Board Recommendation.
(a) The Company will not, and will use its best efforts to
ensure that its officers, directors, employees, investment bankers, attorneys,
accountants and other agents do not, directly or indirectly: (i) initiate,
solicit or encourage, or take any action to facilitate (including by the
furnishing of information) the making of, any offer or proposal which
constitutes or is reasonably likely to lead to any Takeover Proposal, (ii) enter
into any agreement with respect to any Takeover Proposal, or (iii) in the event
of an unsolicited Takeover Proposal for the Company engage in negotiations or
discussions with, or provide any information or data to, any Person (other than
the Purchaser, any of its affiliates or representatives and except for
information which has been
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previously publicly disseminated by the Company) relating to any Takeover
Proposal; provided however, that nothing contained in this Section 5.3 or any
other provision hereof shall prohibit the Company or the Board of Directors from
(i) taking and disclosing to the Company's stockholders a position with respect
to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2
promulgated under the Exchange Act or (ii) making such disclosure to the
Company's stockholders as, in the good faith judgment of the Board of Directors
after receiving advice from outside counsel, the Company deems necessary to
comply with its fiduciary duties to the Company's stockholders under applicable
law.
(b) Notwithstanding the foregoing, prior to the acceptance of
Shares pursuant to the Offer, the Company may furnish information concerning its
business, properties or assets to any Person pursuant to appropriate
confidentiality agreements, and may negotiate and participate in discussions and
negotiations with such Person concerning a Takeover Proposal (provided that the
Company shall not agree to any exclusive right to negotiate with the Company) if
(x) such entity or group has on an unsolicited basis submitted a bona fide
written proposal to the Company relating to any such transaction that provides
for consideration which the Board of Directors determines in good faith, after
receiving advice from a nationally recognized investment banking firm, is more
favorable to the Company and its stockholders than the Offer and the Merger
(taking into account all relevant factors) and which is not conditioned upon
obtaining additional financing not fully committed at such time or, in the view
of a nationally recognized investment banking firm, is reasonably likely to be
obtained under then existing market conditions, and (y) in the opinion of the
Board of Directors, after receiving advice from outside legal counsel to the
Company, the failure to provide such information or access or to engage in such
discussions or negotiations would likely cause the Board of Directors to breach
its fiduciary duties to the Company's stockholders under applicable law (a
Takeover Proposal which satisfies clauses (x) and (y) being referred to herein
as a "Superior Proposal"). The Company shall promptly provide to the Purchaser
any nonpublic information regarding the Company provided to any other party
which was not previously provided to the Purchaser. If the Company, after
consultation with outside legal counsel, believes that a breach of its fiduciary
duties to the Company's stockholders would likely occur, the Board of Directors
may (subject to this and the following sentences) inform the Company's
stockholders that it no longer believes that the Offer and the Merger is
advisable and no longer recommends approval (a "Subsequent Determination"), but
only at a time that is after the fifth business day following the Purchaser's
receipt of written notice advising the Purchaser that the Board of Directors has
received a Superior Proposal specifying the material terms and conditions of
such Superior Proposal (and including a copy thereof with all accompanying
documentation), identifying the Person making such Superior Proposal and stating
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that it intends to make a Subsequent Determination. Notwithstanding anything
herein to the contrary, prior to and including such fifth day the Company may
make such public disclosure that is in its view required under the Federal
securities laws, as evidenced by an opinion from outside counsel to the Company,
a copy of which shall be provided to Purchaser prior to such disclosure. After
providing such notice, the Company shall provide a reasonable opportunity to the
Purchaser to make such adjustments in the terms and conditions of this Agreement
and/or of the Option Agreement as would enable the Company to proceed with its
recommendation to its stockholders without a Subsequent Determination. At any
time after five business days following notification to the Purchaser of the
Company's intent to do so and if the Company has otherwise complied with the
terms of this Section 5.3(b), the Board of Directors may terminate this
Agreement pursuant to clause (ii) of Section 8.1(f) and enter into an agreement
with respect to a Superior Proposal; provided that the Company shall,
concurrently with entering into such agreement, pay or cause to be paid to the
Purchaser the Termination Fee (as defined in Section 8.2(b) hereof).
Notwithstanding any other provision of this Agreement, the Company shall submit
this Agreement to its stockholders, whether or not the Board of Directors makes
a Subsequent Determination.
(c) Except as set forth in Section 5.3(b), neither the Board
of Directors nor any committee thereof shall (i) withdraw or modify, or propose
to withdraw or modify, in a manner adverse to the Purchaser, the approval or
recommendation by the Board of Directors or any such committee of the Offer,
this Agreement or the Merger, (ii) approve or recommend, or propose to approve
or recommend, any Takeover Proposal or (iii) enter into any agreement with
respect to any Takeover Proposal.
ARTICLE VI.
ADDITIONAL AGREEMENTS
SECTION 6.1. Proxy Statement. If required by the Exchange Act,
as promptly as practicable after the consummation of the Offer, the Company
shall prepare and file with the SEC, and shall use all reasonable efforts to
have cleared by the SEC, and promptly thereafter shall mail to stockholders, the
Proxy Statement. Except as set forth in Section 5.3(b), the Proxy Statement
shall contain the recommendation of the Board of Directors in favor of the
Merger.
SECTION 6.2. Meeting of Stockholders of the Company. At the
Special Meeting, if any, the Company shall use its best efforts to solicit from
stockholders of the Company proxies in favor of the Merger. The Purchaser agrees
that it shall vote, or cause to be voted, in favor of the Merger all Shares
directly or indirectly beneficially owned by it.
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SECTION 6.3. Additional Agreements. Subject to the terms and
conditions herein provided, the Company and the Purchaser will each comply in
all material respects with all applicable laws and with all applicable rules and
regulations of any Governmental Authority to achieve the satisfaction of the
Minimum Condition and all conditions set forth in Annex I hereto and Article VII
hereof, and to consummate and make effective the Merger and the other
transactions contemplated hereby. Each of the parties hereto agrees to use all
reasonable efforts to obtain in a timely manner all necessary waivers, consents
and approvals and to effect all necessary registrations and filings, and to use
all reasonable efforts to take, or cause to be taken, all other actions and to
do, or cause to be done, all other things necessary, proper or advisable to
consummate and make effective as promptly as practicable the transactions
contemplated by this Agreement. In case at any time after the Effective Time any
further action is necessary or desirable to carry out the purposes of this
Agreement, the proper officers and directors of the Company and the Purchaser
shall use all reasonable efforts to take, or cause to be taken, all such
necessary actions.
SECTION 6.4. Notification of Certain Matters. The Company
shall give prompt notice to the Purchaser and the Purchaser shall give prompt
notice to the Company, of (a) the occurrence, or nonoccurrence, of any event
whose occurrence, or nonoccurrence, would be likely to cause either (i) any
representation or warranty contained in this Agreement to be untrue or
inaccurate in any material respect at any time from the date hereof to the
Effective Time or (ii) any condition set forth in Annex I hereto to be
unsatisfied in any material respect at any time from the date hereof to the date
the Purchaser purchases Shares pursuant to the Offer and (b) any material
failure of the Company or the Purchaser, as the case may be, or any officer,
director, employee or agent thereof, to comply with or satisfy any covenant,
condition or agreement to be complied with or satisfied by it hereunder;
provided, however, that the delivery of any notice pursuant to this Section 6.4
shall not limit or otherwise affect the remedies available hereunder to the
party receiving such notice.
SECTION 6.5. Access to Information.
(a) From the date hereof to the Effective Time, the Company
shall, and shall cause its officers, directors, employees, auditors and agents
to, afford the officers, employees and agents of the Purchaser reasonable access
at all reasonable times to its officers, employees, agents, properties, offices
and other facilities and to all books and records, and shall furnish the
Purchaser with all financial, operating and other data and information as the
Purchaser, through its officers, employees or agents, may reasonably request.
(b) Unless otherwise required by law and until the Appointment
Date, the Purchaser agrees that it shall, and shall
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cause its affiliates and each of their respective officers, directors,
employees, financial advisors and agents (the "Purchaser Representatives"), to
hold in strict confidence all data and information obtained by them from the
Company (unless such information is or becomes publicly available without the
fault of any of the Purchaser Representatives or public disclosure of such
information is required by law in the opinion of counsel to the Purchaser) and
shall ensure that the Purchaser Representatives do not disclose such information
to others without the prior written consent of the Company. Notwithstanding
anything herein to the contrary, the terms of the Confidentiality Agreement,
dated December 1, 1998 (the "Confidentiality Agreement") executed by the
stockholders of Purchaser shall remain in full force and effect.
(c) In the event of the termination of this Agreement, the
Purchaser shall, and shall cause its affiliates to, return (without maintaining
any electronic, digital, magnetic or optical representation thereof) promptly
every document furnished to them by the Company or any of its representatives in
connection with the transactions contemplated hereby and any copies (without
maintaining any electronic, digital, magnetic or optical representation thereof)
thereof which may have been made, and shall cause the Purchaser Representatives
to whom such documents were furnished promptly to return such documents and any
copies thereof any of them may have made, other than documents filed with the
SEC or otherwise publicly available.
SECTION 6.6. Public Announcements. The Purchaser and the
Company shall consult with each other before issuing any press release or
otherwise making any public statements with respect to the Offer or the Merger
and shall not issue any such press release or make any such public statement
before such consultation, except as may be required by law.
SECTION 6.7. Best Efforts; Cooperation. Upon the terms and
subject to the conditions hereof, each of the parties hereto agrees to use its
reasonable best efforts to take or cause to be taken all actions and to do or
cause to be done all things necessary, proper or advisable to consummate the
transactions contemplated by this Agreement and shall use its reasonable best
efforts to obtain all necessary waivers, consents and approvals, and to effect
all necessary filings under the Exchange Act and the HSR Act. The parties hereto
shall cooperate in responding to inquiries from, and making presentations to,
regulatory authorities.
SECTION 6.8. Agreement to Defend and Indemnify.
(a) It is understood and agreed that the Company shall, to the
fullest extent permitted under Delaware Law and regardless of whether the Merger
becomes effective, indemnify, defend and hold harmless, and after the Effective
Time, the Purchaser and the Surviving Corporation shall jointly and
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severally, to the fullest extent permitted under Delaware Law, indemnify, defend
and hold harmless the present and former officers, directors, employees and
agents of the Company ("Indemnified Parties") against any costs or expenses
(including reasonable attorneys' fees), judgments, fines, losses, claims,
damages, liabilities and amounts paid in settlement in connection with any
claim, action, suit, proceeding or investigation, including without limitation
liabilities arising out of this transaction, under the Exchange Act in
connection with the Offer or the Merger, and in the event of any such claim,
action, suit, proceeding or investigation (whether arising before or after the
Effective Time), (i) the Company or the Surviving Corporation shall pay the
reasonable fees and expenses of counsel selected by the Indemnified Parties,
which counsel shall be reasonably satisfactory to the Company or the Surviving
Corporation, promptly as statements therefor are received, and (ii) the Company
and the Surviving Corporation will cooperate in the defense of any such matter;
provided, however, that neither the Company nor the Surviving Corporation shall
be liable for any settlement effected without its prior written consent (which
consent shall not be unreasonably withheld); and further, provided, that neither
the Company nor the Surviving Corporation shall be obliged pursuant to this
Section 6.8 to pay the fees and disbursements of more than one counsel for all
Indemnified Parties in any single action except to the extent that, in the
opinion of counsel for the Indemnified Parties, two or more of such Indemnified
Parties have conflicting interests in the outcome of such action. For three
years after the Effective Time, the Surviving Corporation shall be required to
maintain or obtain officers' and directors' liability insurance covering the
Indemnified Parties who are currently covered by the Company's officers and
directors liability insurance policy with respect to matters existing or
occurring at or prior to the Effective Time on terms not less favorable than
those in effect on the date hereof in terms of coverage and amounts; provided,
however, that if the aggregate annual premiums for such insurance at any time
during such period shall exceed 150% of the per annum rate of premium currently
paid by the Company for such insurance on the date of this Agreement, which
amount is disclosed on Schedule 6.8 of the Disclosure Schedule, then the
Purchaser shall cause the Company (or the Surviving Corporation if after the
Effective Time) to, and the Company (or the Surviving Corporation if after the
Effective Time) shall, provide the maximum coverage that shall then be available
at an annual premium equal to 150% of such rate. This Section 6.8 shall survive
the consummation of the Merger. The Purchaser shall cause the Surviving
Corporation to reimburse all expenses, including reasonable attorney's fees and
expenses, incurred by any Person to enforce the obligations of the Purchaser and
the Surviving Corporation under this Section 6.8. Notwithstanding Section 9.7
hereof, this Section 6.8 is intended to be for the benefit of and to grant third
party rights to Indemnified Parties whether or not parties to this Agreement,
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and each of the Indemnified Parties shall be entitled to enforce the covenants
contained herein.
(b) If the Surviving Corporation or any of its successors or
assigns (i) consolidates with or merges into any other Person and shall not be
the continuing or surviving corporation or entity of such consolidation or
merger or (ii) transfers all or substantially all of its properties and assets
to any Person, then and in each such case, proper provision shall be made so
that the successors and assigns of the Surviving Corporation assume the
obligations set forth in this Section 6.8.
SECTION 6.9. Debt Offer.
(a) The Company shall, within 10 days of receiving any request
by the Purchaser to do so, commence an offer to purchase (accompanied by a
related solicitation of consents regarding covenant amendments) all of the
Company's outstanding 9 1/2% Senior Discount Notes due 2005 (the "Senior Notes")
on such customary terms and conditions as are acceptable to the Purchaser and
reasonably satisfactory to the Board of Directors (the "Debt Offer"). The
Company shall waive any of the conditions to the Debt Offer and make any other
changes in the terms and conditions of the Debt Offer as may be requested by the
Purchaser and as are reasonably satisfactory to the Board of Directors, and the
Company shall not, without the Purchaser's prior written consent, waive any
material condition to the Debt Offer, make any changes to the terms and
conditions of the Debt Offer set forth in Schedule 6.9 hereto or make any other
material changes in the terms and conditions of the Debt Offer. The Company
covenants and agrees that, subject to the terms and conditions of this
Agreement, including but not limited to the conditions in the Debt Offer, it
will accept for payment and pay for the Senior Notes as soon as reasonably
practicable after such conditions to the Debt Offer are satisfied and it is
permitted to do so under applicable law, provided that the Company shall use
reasonable best efforts to coordinate the timing of any such purchase with the
Purchaser in order to obtain the greatest participation in the Debt Offer.
(b) Promptly following the date of this Agreement, the Company
and the Purchaser shall prepare an offer to purchase for the Senior Notes and
forms of the related letters of transmittal and summary advertisement, as well
as all other information and exhibits (collectively, the "Debt Documents"). All
mailings of the Debt Documents to the holders of the Senior Notes in connection
with the Debt Offer shall be subject to the prior review, comment and approval
of the Purchaser (which approval shall not be unreasonably withheld or delayed).
The Company will use its reasonable best efforts to cause the Debt Documents to
be mailed to the holders of the Senior Notes as promptly as practicable
following receipt of the request from the Purchaser under paragraph (a) above to
do so. The Company agrees promptly
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to correct any information in the Debt Documents that shall be or have become
false or misleading in any material respect.
(c) The Purchaser shall provide to the Company all funds
necessary to consummate the Debt Offer on terms reasonably satisfactory to the
Board of Directors. No term or condition of such funding shall prevent or
restrict the consummation of the Merger.
(d) In the event that the Debt Offer is commenced but is
terminated without consummation, and such failure to consummate is not the
result of the Company's breach, the Purchaser will reimburse the Company for any
and all expenses and fees incurred by the Company in connection with the Debt
Offer.
SECTION 6.10. Qualified Electing Fund Documentation. The
Company has prepared, or caused to be prepared, and has submitted for review to
the Purchaser on or prior to the date hereof, Internal Revenue Service Form 8621
and such amended United States Federal income Tax Returns (and other
documentation), as required for the Company to make a retroactive "Qualified
Electing Fund" election, pursuant to Treasury Regulations Section 1.1295-3T(f),
effective for the Company's entire holding period, with respect to the Company's
interest in Omnitel. Such documentation shall be prepared in such manner as
would fully satisfy the requirements of Treasury Regulations Section
1.1295-3T(g) and the private letter ruling received by the Company dated
November 18, 1998. Such documentation shall not be filed with the Internal
Revenue Service without the Purchaser's prior written consent, which consent
shall not be unreasonably withheld or delayed. The Purchaser will take all
actions necessary to file such Forms 862i and such amended Tax Returns, and
shall cooperate with the Company in connection therewith.
SECTION 6.11. Omnitel Agreement. Notwithstanding anything
herein to the contrary, (i) it shall not constitute a failure of any condition
to the Merger set forth in Article VII of this Agreement nor to the Offer set
forth in Annex I of this Agreement, which conditions are for the benefit of the
Purchaser, if, and (ii) the Purchaser agrees that it will not terminate or seek
to terminate or otherwise impair its performance of this Agreement in any manner
as a result of, in either case, any claim, action, suit, proceeding (including,
without limitation, arbitration proceeding) or other alternative dispute
resolution proceeding or investigation is commenced or threatened against the
Company, the Purchaser, Mannesmann, Olivetti or Oliman Holding B.V. arising out
of, or relating to, the Joint Venture Agreement, dated as of May 3, 1990, among
Ing. C. Olivetti & C., S.p.A., Bell Atlantic International, Inc., CCI
Partnership, Inc., Shearson Lehman Hutton Eurocell Italy, Inc. and Swedish
Telecomm International AB, as amended November 24, 1993 and February 23, 1994,
and in connection with the execution and delivery of this Agreement and the
consummation of the transactions contemplated
43
<PAGE>
hereby, other than any of the foregoing brought by or on behalf of the Company.
ARTICLE VII.
CONDITIONS OF MERGER
The respective obligations of each party to effect the
Merger shall be subject to the following conditions, provided that the
obligation of each party shall not be relieved by the failure of any such
conditions if such failure of any such conditions is the proximate result of
any breach by such party of any of its material obligations under this
Agreement.
SECTION 7.1. Offer. The Purchaser shall have made, or caused
to be made, the Offer and shall have purchased, or caused to be purchased, the
Shares pursuant to the Offer; provided, however, that this condition shall be
deemed to have been satisfied with respect to the obligation of the Purchaser to
effect the Merger if the Purchaser fails to accept for payment or pay for Shares
pursuant to the Offer in violation of the terms of the Offer or of this
Agreement.
SECTION 7.2. Stockholder Approval. The Merger and this
Agreement shall have been approved and adopted by the requisite vote of the
stockholders of the Company, if required by Delaware Law.
SECTION 7.3. No Challenge. No statute, rule, regulation,
judgment, writ, decree, order or injunction shall have been promulgated,
enacted, entered or enforced, and no other action shall have been taken, by any
government or governmental, administrative or regulatory authority or by any
court of competent jurisdiction, that in any of the foregoing cases has the
effect of making illegal or directly or indirectly restraining, prohibiting or
restricting the consummation of the Merger.
ARTICLE VIII.
TERMINATION, AMENDMENT AND WAIVER
SECTION 8.1. Termination. This Agreement may be terminated and
the transactions contemplated herein may be abandoned at any time before the
Effective Time, whether before or after stockholder approval:
(a) By mutual written consent of the Boards of Directors of
the Purchaser and the Company; or
(b) By the Purchaser if the Offer shall have expired or been
terminated without any Shares being purchased thereunder
44
<PAGE>
by the Purchaser as a result of the occurrence of any of the events set forth in
Annex I; or
(c) By either the Purchaser or the Company if a court of
competent jurisdiction or governmental, regulatory or administrative agency or
commission shall have issued an order, decree or ruling or taken any other
action (which order, decree or ruling the parties hereto shall use their best
efforts to lift), in each case permanently restraining, enjoining or otherwise
prohibiting the transactions contemplated by this Agreement; or
(d) By the Purchaser if, without any material breach by the
Purchaser of its obligations under this Agreement, the purchase of Shares
pursuant to the Offer shall not have occurred on or before May 15, 1999; or
(e) By the Company if, without any material breach by the
Company of its obligations under this Agreement, the purchase of Shares pursuant
to the Offer shall not have occurred on or before May 15, 1999; or
(f) By the Company (i) if there shall be a material breach of
any of the Purchaser's representations, warranties or covenants hereunder, which
breach cannot be or has not been cured within ten days of the receipt of written
notice thereof, or (ii) to allow the Company to enter into an agreement in
accordance with Section 5.3(b) with respect to a Superior Proposal which the
Board of Directors has determined is more favorable to the stockholders of the
Company than the transactions contemplated hereby; provided that it has complied
with all provisions thereof, including the notice provision therein, and that it
makes simultaneous payment of the Termination Fee, plus any amounts then due as
a reimbursement of expenses; or
(g) By the Purchaser if, prior to the purchase of Shares
pursuant to the Offer the Company shall have breached any representation,
warranty or covenant or other agreement contained in this Agreement, which
breach (i) would give rise to the failure of a condition set forth in paragraph
(e) or (f) of Annex I hereto and (ii) cannot be or has not been cured within ten
days of the receipt of written notice thereof; or
(h) By the Purchaser, at any time prior to the purchase of the
Shares pursuant to the Offer, if (i) the Board of Directors shall withdraw,
modify, or change its recommendation or approval in respect of this Agreement or
the Offer in a manner adverse to the Purchaser, (ii) the Board of Directors
shall have recommended any proposal other than by the Purchaser in respect of a
Takeover Proposal, (iii) the Company shall have exercised a right with respect
to a Takeover Proposal referenced in Section 5.3(b) and shall, directly or
through its representatives, continue discussions with any third party
concerning a Takeover Proposal for more than ten business days after the date of
45
<PAGE>
receipt of such Takeover Proposal, (iv) a Takeover Proposal that is publicly
disclosed shall have been commenced or communicated to the Company which
contains a proposal as to price (without regard to whether such proposal
specifies a specific price or a range of potential prices) and the Company shall
not have rejected such proposal within twenty (20) business days of its receipt
or, if sooner, the date its existence first becomes publicly disclosed, or (v)
any Person or group (as defined in Section 13(d)(3) of the Exchange Act) other
than the Purchaser or any of its Subsidiaries or affiliates shall have become
the beneficial owner of more than 15% of the outstanding Company Common Stock
(either on a primary or a fully diluted basis); provided, however, that this
provision shall not apply to any Person that owns more than 15% of the
outstanding Shares on the date hereof; or
(i) by the Purchaser, if the Company or its representatives
shall have materially breached the provisions of Section 5.1 or Section 5.3
hereof.
SECTION 8.2. Effect of Termination.
(a) In the event of termination of this Agreement as provided
in Section 8.1 hereof, written notice thereof shall forthwith be given to the
other party specifying the provision hereof pursuant to which such termination
is made, and this Agreement shall forthwith become null and void and there shall
be no liability on the part of the Purchaser or the Company, except (i) as set
forth in Sections 6.5 and 9.3 hereof and (ii) nothing herein shall relieve any
party from liability for any breach of this Agreement.
(b) If (i) the Purchaser shall have terminated this Agreement
pursuant to Section 8.1(h) or Section 8.1(i), (ii) the Purchaser shall have
terminated this Agreement pursuant to Section 8.1(g), following the date hereof
but prior to such termination there shall have been a Takeover Proposal
Interest, and within two years of any such termination the Company shall have
entered into a definitive agreement with respect to a Takeover Proposal or a
Takeover Proposal with respect to the Company shall have been consummated or
(iii) the Company shall have terminated this Agreement pursuant to Section
8.1(f)(ii), then in any such case the Company shall pay simultaneously with such
termination if pursuant to Section 8.1(f)(ii) and promptly, but in no event
later than two business days after the date of such termination or event if
pursuant to Section 8.1(h), 8.1(i) or 8.1(g), to the Purchaser a termination fee
(the "Termination Fee") of $43 million, which amount shall be payable by wire
transfer to such account as the Purchaser may designate in writing to the
Company.
46
<PAGE>
ARTICLE IX.
GENERAL PROVISIONS
SECTION 9.1. Non-Survival of Representations, Warranties and
Agreements. The representations, warranties and agreements in this Agreement or
in any schedule, instrument or other document delivered pursuant to this
Agreement shall terminate at the Effective Time or the termination of this
Agreement pursuant to Section 8.1, as the case may be, except that the
agreements set forth in Article II and Section 6.8 shall survive the Effective
Time indefinitely and those set forth in Sections 6.5(b), 6.5(c), 8.2 and 9.3
shall survive termination indefinitely.
SECTION 9.2. Notices. All notices and other communications
given or made pursuant hereto shall be in writing and shall be deemed to have
been duly given or made (i) as of the date delivered or sent by facsimile if
delivered personally or by facsimile, (ii) on the first business day following
dispatch by an internationally recognized overnight courier service to a
domestic addressee, (iii) on the third business day following dispatch by an
internationally recognized overnight courier service to a international
addressee and (iv) on the tenth business day after deposit with a national mail
service, if mailed by registered or certified mail (postage prepaid, return
receipt requested), in each case to the parties at the following addresses (or
at such other address for a party as shall be specified by like notice, except
that notices of changes of address shall be effective upon receipt):
(a) if to the Purchaser
Mannesmann AG
Am Wallgraben 125
D-70565 Stuttgart
Germany
Attention: Dr. Kurt J. Kinzius
Facsimile: 49-711-990-2201
and
47
<PAGE>
Olivetti S.p.A.
Via Lorenteggio 257
20152 Milan
Italy
Attention: Marco De Benedetti
Facsimile: 39-2-4836-6700
With a copy to:
Willkie Farr & Gallagher
787 Seventh Avenue
New York, New York 10019-6009
Attention: Neil Novikoff, Esq.
Facsimile: (212) 728-8111
(b) if to the Company:
Cellular Communications International, Inc.
110 East 59th Street
New York, New York 10022
Attention: Richard J. Lubasch, Esq.
Facsimile: (212) 906-8497
With a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, New York 10022
Attention: Thomas H. Kennedy, Esq.
Facsimile: (212) 735-2000
SECTION 9.3. Expenses. Except as expressly set forth in
Section 8.2(b), all fees, costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the party
incurring such fees, costs and expenses.
SECTION 9.4. Certain Definitions. For purposes of this
Agreement, the term:
(a) "affiliate" of a Person means a Person that directly or
indirectly, through one or more intermediaries, controls, is controlled by, or
is under common control with, the first mentioned Person. For avoidance of
doubt, NTL, CCPR and Corecomm shall not be considered affiliates of the Company;
(b) "control" (including the terms "controlled by" and "under
common control with") means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of a Person,
whether through the ownership of stock, as trustee or executor, by contract or
credit arrangement or otherwise; and
48
<PAGE>
(c) "Lien" means any mortgage, pledge, hypothecation,
assignment for security purposes, deposit arrangement, encumbrance, lien
(statutory or other), charge or other security interest or any preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including without limitation any conditional sale or other
title retention agreement and any financing lease having substantially the same
economic effect as any of the foregoing); provided, however, that liens for
Taxes not yet due and payable but for which adequate reserves have been
established and other statutory liens shall not be Liens for the purposes of
this Agreement.
(d) "Person" means an individual, corporation, partnership,
limited liability company, association, trust or any unincorporated
organization.
SECTION 9.5. Headings. The headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
SECTION 9.6. Severability. If any term or other provision of
this Agreement is invalid, illegal or incapable of being enforced by any rule of
law, or public policy, all other conditions and provisions of this Agreement
shall not affect the validity or enforceability of the remaining terms and
provisions hereof or the validity or enforceability of the offending term or
provision in any other situation or in any other jurisdiction. Upon such
determination that any term or other provision is invalid, illegal or incapable
of being enforced, the parties hereto shall negotiate in good faith to modify
this Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner to the end that the transactions contemplated
hereby are fulfilled to the maximum extent possible.
SECTION 9.7. Entire Agreement; No Third-Party Beneficiaries.
This Agreement, the Option Agreement and the Stockholders Agreement constitute
the entire agreement and supersede any and all other prior agreements and
undertakings, both written and oral, between the parties with respect to the
subject matter hereof and, except as otherwise expressly provided herein, this
Agreement is not intended to confer upon any other Person any rights or remedies
hereunder.
SECTION 9.8. Assignment. This Agreement shall not be assigned
by operation of law or otherwise, except that the Purchaser may assign all or
any of its rights hereunder to any affiliate of the Purchaser provided that no
such assignment shall relieve the Purchaser of its obligations hereunder.
SECTION 9.9. Governing Law. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of Delaware
applicable to contracts executed in and to be performed entirely within that
State.
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<PAGE>
SECTION 9.10. Amendment. This Agreement may be amended by the
parties hereto by action taken by the Purchaser and by action taken by or on
behalf of the Board of Directors at any time before the Effective Time;
provided, however, that, after approval, if any, of the Merger by the
stockholders of the Company, no amendment may be made which would reduce the
amount or change the type of consideration into which each Share will be
converted upon consummation of the Merger. This Agreement may not be amended
except by an instrument in writing signed by the parties hereto.
SECTION 9.11. Waiver. At any time before the Effective Time,
either party hereto may (a) extend the time for the performance of any of the
obligations or other acts of the other party hereto, (b) waive any inaccuracies
in the representations and warranties contained herein or in any document
delivered pursuant hereto and (c) waive compliance with any of the agreements or
conditions contained herein. Any agreement on the part of a party hereto to any
such extension or waiver shall be valid only as against such party and only if
set forth in an instrument in writing signed by such party.
SECTION 9.12. Counterparts. This Agreement may be executed in
two or more counterparts, and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to be an original but
all of which shall constitute one and the same agreement.
50
<PAGE>
IN WITNESS WHEREOF, the Purchaser and the Company have caused
this Agreement to be executed as of the date first written above by their
respective officers thereunto duly authorized.
CELLULAR COMMUNICATIONS
INTERNATIONAL, INC.
By: /s/ William Ginsberg
---------------------------------------
Name: William B. Ginsberg
Title: Chairman of the Board of
Directors, President,
Chief Executive Officer
KENSINGTON ACQUISITION SUB, INC.
By: /s/ Marco De Benedetti
---------------------------------------
Name: Marco De Benedetti
Title: Co-President and
Co-Secretary
By: /s/ Kurt Kinzius
---------------------------------------
Name: Dr. Kurt Kinzius
Title: Co-President and
Co-Secretary
<PAGE>
ANNEX I
Conditions to the Offer. Notwithstanding any other provision
of the Offer, the Purchaser shall not be required to accept for payment or,
subject to any applicable rules and regulations of the SEC, including Rule
14e-1(c) promulgated under the Exchange Act (relating to the Purchaser's
obligation to pay for or return tendered Shares promptly after termination or
withdrawal of the Offer), pay for, and (subject to any such rules or
regulations) may delay the acceptance for payment of any tendered Shares and
(except as provided in this Agreement) amend or terminate the Offer as to any
Shares not then paid for if (i) the condition that there shall be validly
tendered and not withdrawn prior to the expiration of the Offer a number of
Shares which represents at least a majority of the total number of shares of
Company Common Stock then outstanding on a fully diluted basis (after giving
effect to the conversion or exercise of all outstanding options, warrants and
other rights and securities exercisable or convertible into shares of Company
Common Stock) shall not have been satisfied (the "Minimum Condition"); (ii) any
applicable waiting period under the HSR Act shall not have expired or been
terminated prior to the expiration of the Offer; or (iii) at any time after the
date of this Agreement and before the time of acceptance of payment for any such
Shares (whether or not any Shares have theretofore been accepted for payment or
paid for pursuant to the Offer), any of the following conditions exists:
(a) there shall be threatened or pending in effect an
injunction or other order, decree, judgment or ruling by a court of
competent jurisdiction or by a governmental, regulatory or
administrative agency or commission of competent jurisdiction or a
statute, rule, regulation, executive order or other action shall have
been promulgated, enacted, taken or threatened by a Governmental
Authority or a governmental, regulatory or administrative agency or
commission of competent jurisdiction which in any such case (i)
restrains or prohibits the making or consummation of the Offer or the
consummation of the Merger, (ii) prohibits or restricts the ownership
or operation by the Purchaser (or any of its affiliates or
subsidiaries) of any portion of its or the Company's business or assets
which is material to the business of all such entities taken as a
whole, or compels the Purchaser (or any of its affiliates or
subsidiaries) to dispose of or hold separate any portion of its or the
Company's business or assets which is material to the business of all
such entities taken as a whole, (iii) imposes material limitations on
the ability of the Purchaser effectively to acquire or to hold or to
exercise full rights of ownership of the Shares, including, without
limitation, the right to vote the Shares purchased by the Purchaser on
all matters properly presented to the stockholders of the Company, (iv)
imposes any material limitations on the ability of the Purchaser or any
of its affiliates or
<PAGE>
subsidiaries effectively to control in any material respect the
business and operations of the Company; or
(b) this Agreement shall have been terminated by the Company
or the Purchaser in accordance with its terms; or
(c) there shall have occurred (i) any general suspension of,
or limitation on prices for, trading in securities on any national
securities exchange or the over-the-counter market for a period in
excess of 24 hours (excluding suspensions or limitations resulting
solely from physical damage or interference with such exchanges not
related to market conditions), (ii) a declaration of a banking
moratorium or any suspension of payments in respect of banks in the
United States (whether or not mandatory), (iii) a commencement of a
war, armed hostilities or other international or national calamity
directly or indirectly involving the United States (with the exception
of any such occurrence involving Iraq), (iv) any limitation (whether or
not mandatory) by any United States Governmental Authority on the
extension of credit generally by banks, (v) a change in general
financial, bank or capital market conditions which materially and
adversely affects the ability of financial institutions in the United
States to extend credit or syndicate loans to investment grade
securities or (vi) in the case of any of the foregoing existing at the
time of the execution of this Agreement, a material acceleration or
worsening thereof; or
(d) (i) the Board of Directors or any committee thereof shall
have withdrawn or modified in a manner adverse to the Purchaser its
approval or recommendation of the Offer, the Merger or this Agreement,
or approved or recommended any Takeover Proposal, or (ii) the Company
shall have entered into any agreement with respect to any Superior
Proposal in accordance with Section 5.3(b) of this Agreement; or
(e) the representations and warranties of the Company set
forth in this Agreement shall not be true and correct in all material
respects, in each case (i) as of the date referred to in any
representation or warranty which addresses matters as of a particular
date, or (ii) as to all other representations and warranties as of the
date of this Agreement and as of the scheduled expiration of the Offer;
or
(f) the Company shall have failed to perform in all material
respects any obligation or to comply with any agreement or covenant to
be performed or complied with by it under this Agreement; or
(g) the Purchaser shall have failed to receive a certificate
executed by the President or a Vice President of
<PAGE>
the Company, dated as of the scheduled expiration of the Offer, to the
effect that the conditions set forth in paragraphs (e) and (f) of this
Annex I have not occurred; or
(h) there shall have occurred any change (or any development
that, insofar as reasonably can be foreseen, is reasonably likely to
result in any change) that constitutes a Material Adverse Effect; or
(i) any Person acquires beneficial ownership (as defined in
Rule 13d-3 promulgated under the Exchange Act), of at least 15% of the
outstanding Company Common Stock.
The foregoing conditions (other than the Minimum Condition)
are for the sole benefit of the Purchaser and may be asserted by the Purchaser
regardless of the circumstances (including any action or inaction by the
Purchaser) giving rise to any such conditions and may be waived by the Purchaser
in whole or in part at any time and from time to time, in each case, in the
exercise of the good faith judgment of the Purchaser and subject to the terms of
this Agreement. The failure by the Purchaser at any time to exercise any of the
foregoing rights shall not be deemed a waiver of any such right and each such
right shall be deemed an ongoing right which may be asserted at any time and
from time to time.
<PAGE>
Exhibit 99(c)(2)
STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT (this "Agreement"), dated as of December 11,
1998, by and among Cellular Communications International, Inc., a Delaware
corporation (the "Company"), Kensington Acquisition Sub, Inc., a Delaware
corporation ("Purchaser"), and the persons listed on Schedule 1 hereto (the
"Stockholders").
W I T N E S S E T H:
WHEREAS, concurrently with the execution and delivery of this
Agreement, the Company and Purchaser have entered into an Agreement and Plan of
Merger, dated as of the date hereof (as such agreement may hereafter be amended
from time to time, the "Merger Agreement"), pursuant to which, among other
things, Purchaser will make a tender offer (the "Offer") for all outstanding
shares of common stock, par value $.01 per share ("Shares"), of the Company at a
price of $65.75 per Share (the "Offer Price"), net to the seller in cash, to be
followed by a merger of Purchaser with and into the Company, and each issued and
outstanding Share, except as set forth in the Merger Agreement, will be
converted into the right to receive the Offer Price;
WHEREAS, the Stockholders are the Beneficial Owners (as defined
below) and owners of record, and have the sole right to vote and dispose of,
Shares as indicated on Schedule 1 hereto (with respect to such Stockholder,
together with any other Shares acquired by such Stockholder after the date
hereof and during the term of the Agreement, collectively the "Owned Shares");
and
WHEREAS, as an inducement and a condition to its entering into the
Merger Agreement and incurring the obligations set forth therein, Purchaser has
required that the Stockholders enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises, representations, warranties, covenants and agreements contained herein
and in the Merger Agreement, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. Certain Definitions. Capitalized terms not defined herein have
the respective meanings ascribed to them in the Merger Agreement. In addition,
for purposes of this Agreement:
"Affiliate" means, with respect to any specified Person, any Person
that directly, or indirectly through one or
<PAGE>
more intermediaries, controls, or is controlled by, or is under common control
with, the Person specified.
"Beneficially Own", "Beneficial Owner" or "Beneficial Ownership"
with respect to any securities means having "beneficial ownership" of such
securities (as determined pursuant to Rule 13d-3 under the Exchange Act),
including pursuant to any agreement, arrangement or understanding, whether or
not in writing. Without duplicative counting of the same securities by the same
holder, securities Beneficially Owned by a Person shall include securities
Beneficially Owned by all Affiliates of such Person and all other Persons with
whom such Person would constitute a "group" within the meaning of Section 13(d)
of the Exchange Act and the rules promulgated thereunder.
"Person" means an individual, corporation, partnership, limited
liability company, joint venture, association, trust, unincorporated
organization or other entity.
"Representative" means, with respect to any Person, as applicable,
such Person's officers, directors, employees, agents and representatives
(including any investment banker, financial advisor, agent, representative or
expert retained by or acting on behalf of such Person or its Subsidiaries).
"Transfer" means, with respect to a security, the sale, transfer,
pledge, hypothecation, encumbrance, assignment or disposition of such security
or the Beneficial Ownership thereof, the offer to make such a sale, transfer or
other disposition, and each option, agreement, arrangement or understanding,
whether or not in writing, to effect any of the foregoing. As a verb, "Transfer"
shall have a correlative meaning.
2. Agreement to Tender; Voting of Owned Shares; Proxy. (a) If
requested by the Purchaser, the Company shall take all actions necessary to
provide that, prior to the Expiration Date, all Options granted to Stockholders
under the Option Plans are vested and exercisable. Each Stockholder hereby
agrees, if requested by the Purchaser, to exercise (on the Expiration Date but
not earlier than 5 p.m. on such date) all Options granted to such Stockholder
under the Option Plans, which exercise may be conditional upon the satisfaction
of the following: the receipt of a notice from the Purchaser that, as of 5 p.m.
on such day, it expects satisfaction of all conditions in the Offer; the
delivery of an irrevocable notice by the Purchaser to the Depositary of its
acceptance for payment of the tenders of the Shares pursuant to the Offer and a
calculation showing that such exercise and tender will, giving effect to all
Shares tendered as of 5 p.m. on such day, result in a tender of over 9O% of the
outstanding Shares in the Offer. In connection with such exercise, the Purchaser
will indemnify the Stockholder against any and all costs, expenses and taxes
incurred by such Stockholder which would not be incurred by such Stockholder if
the Options were treated pursuant to Section 2.12(a) of the Merger Agreement.
2
<PAGE>
During the period commencing on the date hereof and continuing until the earlier
to occur of (i) the Effective Time and (ii) the termination of the Merger
Agreement in accordance with its terms (such period being referred to as the
"Voting Period"), each Stockholder (x) hereby agrees to validly tender (or cause
the record owner of such Shares to validly tender) and sell (and not withdraw)
pursuant to the Offer not later than the tenth business day after commencement
of the Offer all of the Owned Shares; and (y) at any meeting (whether annual or
special, and whether or not an adjourned or postponed meeting) of the Company's
stockholders, however called, or in connection with any written consent of the
Company's stockholders, subject to the absence of a preliminary or permanent
injunction or other final order by any United States federal, state or foreign
court barring such action, shall vote (or cause to be voted) all of its Owned
Shares:
a. in favor of the Merger, the execution and delivery by the Company
of the Merger Agreement and the approval and adoption of the Merger and
the terms thereof and each of the other actions contemplated by the Merger
Agreement and this Agreement and any actions required in furtherance
thereof and hereof;
b. against any action or agreement that would (A) result in a breach
of any covenant, representation or warranty or any other obligation or
agreement of the Company under the Merger Agreement or of such Stockholder
under this Agreement or (B) impede, interfere with, delay, postpone, or
adversely affect the Merger or the transactions contemplated thereby or
hereby; and
c. except as otherwise agreed to in writing in advance by Purchaser,
against the following actions (other than the Merger and the transactions
contemplated by the Merger Agreement and this Agreement): (A) any
extraordinary corporate transaction, such as a merger, consolidation or
other business combination, involving the Company or any of its
Subsidiaries; (B) any sale, lease or transfer of a material amount of the
assets or business of the Company or its Subsidiaries, or any
reorganization, restructuring, recapitalization, special dividend,
dissolution, liquidation or winding up of the Company or its Subsidiaries;
(C) any change in the present capitalization of the Company, including any
proposal to sell any equity interest in the Company or any of its
Subsidiaries or any amendment of the Restated Certificate of Incorporation
or Bylaws of the Company; (D) any change in the majority of the Board of
Directors; (E) any other change in the Company's corporate structure or
business; and (F) any other action which is intended or could reasonably
be expected to impede, interfere with, delay, postpone, discourage or
affect the Merger, the transactions contemplated by the Merger Agreement
or this Agreement or the contemplated economic benefits of any of the
foregoing. No Stockholder shall
3
<PAGE>
enter into any agreement, arrangement or understanding with any Person the
effect of which would be inconsistent with or violative of the provisions
and agreement contained in this Section 2(a).
(b) IRREVOCABLE PROXY. EACH STOCKHOLDER HEREBY GRANTS TO, AND
APPOINTS PURCHASER, DR. KURT J. KINZIUS AND MARCO DE BENEDETTI, IN THEIR
RESPECTIVE CAPACITIES AS OFFICERS OF PURCHASER, AND ANY INDIVIDUAL WHO SHALL
HEREAFTER SUCCEED TO ANY SUCH OFFICE OF THE PURCHASER, AND ANY OTHER DESIGNEE OF
PURCHASER, EACH OF THEM INDIVIDUALLY, SUCH STOCKHOLDER'S IRREVOCABLE (UNTIL THE
END OF THE VOTING PERIOD) PROXY AND ATTORNEY-IN-FACT (WITH FULL POWER OF
SUBSTITUTION) TO VOTE THE OWNED SHARES OF THE STOCKHOLDER AS INDICATED IN
SECTION 2(a) ABOVE. THE STOCKHOLDER INTENDS THIS PROXY TO BE IRREVOCABLE (UNTIL
THE END OF THE VOTING PERIOD) AND COUPLED WITH AN INTEREST AND SHALL TAKE SUCH
FURTHER ACTIONS AND EXECUTE SUCH OTHER INSTRUMENTS AS MAY BE NECESSARY TO
EFFECTUATE THE INTENT OF THIS PROXY AND HEREBY REVOKES ANY PROXY PREVIOUSLY
GRANTED BY THE STOCKHOLDER WITH RESPECT TO THE OWNED SHARES.
3. (a) Restrictions on Transfer, Other Proxies. No Stockholder
shall, until the expiration of the Voting Period, directly or indirectly: (i)
Transfer to any Person any or all Owned Shares; (ii) except as provided in
Section 2(b), grant any proxies or powers of attorney, deposit any Owned Shares
into a voting trust or enter into a voting agreement, understanding or
arrangement with respect to such Owned Shares; or (iii) take any action that
would make any representation or warranty of such Stockholder contained herein
untrue or incorrect or would result in a breach by such Stockholder of its
obligations under this Agreement or a breach by the Company of its obligations
under the Merger Agreement. Notwithstanding the foregoing, the Stockholder may
transfer Shares to (x) an Affiliate of the Stockholder, (y) any member of the
immediate family of the Stockholder or trusts for the benefit of family members
of the Stockholder or (z) any organizations qualifying under Section 501(c) (3)
of the Internal Revenue Code of 1986, as amended, in each case under clauses
(x), (y) and (z), that agrees to be bound by this Agreement.
(b) Notwithstanding anything herein to the contrary, the Stockholder
may exercise Options pursuant to a "cashless exercise" or similar provision,
such that the number of Shares actually received may be less than the number of
Shares set forth on Schedule 1.
(c) Each Stockholder hereby agrees, during the Voting Period, to
place the following legend on any and all certificates representing any Owned
Shares:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN RESTRICTIONS ON TRANSFER PURSUANT TO THAT CERTAIN
STOCKHOLDERS AGREEMENT,
4
<PAGE>
DATED AS OF DECEMBER 11, 1998, BY AND AMONG THE
STOCKHOLDERS OF CELLULAR COMMUNICATIONS
INTERNATIONAL, INC. PARTY THERETO, CELLULAR
COMMUNICATIONS INTERNATIONAL, INC. AND KENSINGTON
ACQUISITION SUB, INC. AND ANY TRANSFER OF SUCH SHARES
IN VIOLATION OF THE TERMS OF SUCH AGREEMENT SHALL BE
NULL AND VOID AND OF NO EFFECT WHATSOEVER.
4. No Solicitation. (a) Other than as required in his capacity as
director of the Company (or as an officer of the Company acting at the direction
of the Board of Directors of the Company) under applicable law and fiduciary
duties, in which case his actions shall be restricted solely by the terms of the
Merger Agreement, each Stockholder and its Affiliates shall not, and shall
instruct their respective officers, directors, employees, agents or other
Representatives not to,
(i) directly or indirectly solicit, initiate, or encourage
(including by way of furnishing nonpublic information or assistance), or
take any other action to facilitate, any inquiries or proposals from any
Person that constitute, or may reasonably be expected to lead to, a
Takeover Proposal,
(ii) enter into, maintain, or continue discussions or negotiations
with any party (other than Purchaser) in furtherance of such inquiries or
to obtain a Takeover Proposal, and shall use their best efforts to cause
any such party in possession of confidential information about the Company
that was furnished by or on behalf of the Stockholder to return or destroy
all such information in the possession of any such party (other than the
Company) or in the possession of any Representative of any such party,
(iii) agree to or endorse any Takeover Proposal, or
(iv) authorize or permit the Stockholder's or any of its Affiliates'
Representatives to take any such action.
(b) During the Voting Period, other than as required in his capacity
as director of the Company (or as an officer of the Company acting at the
direction of the Board of Directors of the Company) under applicable law and
fiduciary duties, in which case his actions shall be restricted solely by the
terms of the Merger Agreement, each Stockholder shall not, and shall cause its
Affiliates not to, directly or indirectly, make any public comment, statement or
communication, or take any action that would otherwise require any public
disclosure by such Stockholder, the Company, Purchaser or any other Person,
concerning the Merger and the other transactions contemplated by the Merger
Agreement and this Agreement except for any disclosure (i) concerning the status
of the Stockholder as a party to this Agreement, the terms hereof, and its
Beneficial Ownership of
5
<PAGE>
Shares required pursuant to Section 13(d) of the Exchange Act or (ii) required
in the Proxy Statement (as defined in the Merger Agreement).
5. Proprietary Information. Except as required by law, no
Stockholder and no Representative of any Stockholder shall, at any time,
directly or indirectly, make use of or divulge or otherwise disclose to any
Person other than Purchaser, any trade secret, confidential information or other
proprietary information or data (including any financial data, mailing lists,
customer lists or employee data or records) concerning the business or policies
of the Company or its Subsidiaries that such Stockholder or any of its
Representatives may have learned as a stockholder, employee, officer or director
of the Company or any of its Subsidiaries.
6. Representations and Warranties of the Stockholder. Each
Stockholder hereby severally represents, warrants and covenants to Purchaser as
follows:
(a) Due Authorization, Etc. Such Stockholder has all necessary power
and authority to enter into and perform this Agreement and its obligations
hereunder, and no other proceedings or actions on the part of such Stockholder
are necessary to authorize the execution, delivery or performance of this
Agreement or the consummation of the transactions contemplated hereby. Such
Stockholder currently has good, valid and marketable title to the Owned Shares,
free and clear of all security interests, liens, claims, charges, encumbrances,
equities and options of any nature whatsoever, and with no restriction on the
voting rights pertaining thereto. The Stockholder further warrants that there
are no outstanding options, warrants or rights to purchase or acquire, or
agreements relating to, any of the Owned Shares.
(b) Enforceability. This Agreement constitutes a valid and binding
agreement of such Stockholder, enforceable against such Stockholder in
accordance with its terms. Neither the execution and delivery of this Agreement
by such Stockholder nor the consummation by such Stockholder of the transactions
contemplated hereby shall conflict with or constitute a violation of or default
under any contract, commitment, agreement, arrangement or restriction of any
kind to which such Stockholder is a party or by which such Stockholder is bound.
(c) Voting Rights. Except as provided in Section 2(b) hereof, such
Stockholder has sole power to vote and to dispose of the Owned Shares, and sole
power to issue instructions with respect to the Owned Shares to the extent
appropriate in respect of the matters set forth in this Agreement, sole power to
demand appraisal rights and sole power to agree to all of the matters set forth
in this Agreement, in each case with respect to all of the Owned Shares, with no
limitations, qualifications, or
6
<PAGE>
restrictions on such rights, subject to applicable securities laws and the terms
of this Agreement.
(d) No Filings. Except for filings, authorizations, consents and
approvals as may be required under, and other applicable requirements of, the
HSR Act and the Exchange Act, (i) no filing with, and no permit, authorization,
consent or approval of, any state or federal governmental body or authority is
necessary for the execution of this Agreement by such Stockholder and the
consummation by such Stockholder of the transactions contemplated hereby and
(ii) none of the execution and delivery of this Agreement by such Stockholder,
the consummation by such Stockholder of the transactions contemplated hereby or
compliance by such Stockholder with any of the provisions hereof shall (A)
result in a violation or breach of, or constitute (with or without notice or
lapse of time or both) a default (or give rise to any third party right of
termination, cancellation, material modification or acceleration) under any of
the terms, conditions or provisions of any note, loan agreement, bond, mortgage,
indenture, license, contract, commitment, arrangement, understanding, agreement
or other instrument or obligation of any kind to which such Stockholder is a
party or by which such Stockholder or any of its properties or assets (including
the Owned Shares) may be bound, or (B) violate any order, writ, injunction,
decree, judgment, statute, rule or regulation applicable to such Stockholder or
any of its properties or assets.
(e) Such Stockholder understands and acknowledges that Purchaser is
entering into the Merger Agreement, and is incurring the obligations set forth
therein, in reliance upon the Stockholder's execution and delivery of this
Agreement.
7. Representations and Warranties of Purchaser. Purchaser hereby
represents, warrants and covenants to each Stockholder as follows:
(a) Due Authorization, Etc. Purchaser has all necessary corporate
power and authority to enter into and perform this Agreement and its obligations
hereunder, and no other proceedings or actions on the part of Purchaser are
necessary to authorize the execution, delivery or performance of this Agreement
or the consummation of the transactions contemplated hereby.
(b) Enforceability. This Agreement constitutes a valid and binding
agreement of Purchaser, enforceable against Purchaser in accordance with its
terms. Neither the execution and delivery of this Agreement by Purchaser nor the
consummation by Purchaser of the transactions contemplated hereby shall conflict
with or constitute a violation of or default under any contract, commitment,
agreement, arrangement or restriction of any kind to which Purchaser is a party
or by which Purchaser is bound.
7
<PAGE>
(c) No Filings. Except for filings, authorizations, consents and
approvals as may be required under, and other applicable requirements of, the
HSR Act and the Exchange Act, (i) no filing with, and no permit, authorization,
consent or approval of, any state or federal public body or authority is
necessary for the execution of this Agreement by Purchaser and the consummation
by Purchaser of the transactions contemplated hereby and (ii) none of the
execution and delivery of this Agreement by Purchaser, the consummation by
Purchaser of the transactions contemplated hereby or compliance by Purchaser
with any of the provisions hereof shall (A) conflict with or result in any
breach of the organizational documents of Purchaser, or (B) result in a
violation or breach of, or constitute (with or without notice or lapse of time
or both) a default (or give rise to any third party right of termination,
cancellation, material modification or acceleration) under any of the terms,
conditions or provisions of any note, loan agreement, bond, mortgage, indenture,
license, contract, commitment, arrangement, understanding, agreement or other
instrument or obligation of any kind to which Purchaser is a party or by which
Purchaser or any of its properties or assets may be bound, or violate any order,
writ, injunction, decree, judgment, statute, rule or regulation applicable to
Purchaser or any of its properties or assets.
8. Certain Covenants.
(a) No Sale. No Stockholder shall sell, transfer, assign, pledge,
hypothecate or otherwise dispose of or limit its right to vote in any manner any
of the Owned Shares which are the subject matter of this Agreement except
pursuant to the terms hereof.
(b) Further Assurances. From time to time, at the other party's
request and without further consideration, each party hereto shall execute and
deliver such additional documents and take all such further lawful action as may
be necessary or desirable to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by this Agreement.
9. Enforcement. The parties agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached. It
is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any court of the United States
located in the State of New York or in any New York State court located in the
Borough of Manhattan, this being in addition to any other remedy to which they
are entitled at law or in equity. In addition, each of the parties hereto (a)
consents to submit itself (without making such submission exclusive) to the
personal jurisdiction of any federal court located in the State of New York or
any New York State
8
<PAGE>
court in the event any dispute arises out of this Agreement or any of the
transactions contemplated by this Agreement and (b) agrees that it will not
attempt to deny or defeat such personal jurisdiction by motion or other request
for leave from any such court.
10. Miscellaneous.
(a) Assignment. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement shall be assigned or delegated, in
whole or in part, by operation of law or otherwise, by any of the parties hereto
without the prior written consent of the other parties, except that Purchaser
may assign its rights and obligations, in whole or in part, to any of its
Affiliates, but no such assignment shall relieve Purchaser of its obligations
hereunder if such assignee does not perform such obligations. Subject to the
preceding sentence, this Agreement will be binding upon, inure to the benefit
of, and be enforceable by, the parties and their respective successors and
assigns.
(b) Amendments. This Agreement may not be modified, amended, altered
or supplemented except upon the execution and delivery of a written agreement
executed by the parties hereto.
(c) Notices. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
or made (i) as of the date delivered or sent by facsimile if delivered
personally or by facsimile, (ii) on the first business day following dispatch by
an internationally recognized overnight courier service to a domestic addressee,
(iii) on the third business day following dispatch by an internationally
recognized overnight courier service to a international addressee and (iv) on
the tenth business day after deposit with a national mail service, if mailed by
registered or certified mail (postage prepaid, return receipt requested), in
each case to the parties at the following addresses (or at such other address
for a party as shall be specified by like notice, except that notices of changes
of address shall be effective upon receipt):
(i) if to the Company, to
Cellular Communications International, Inc.
110 East 59th Street
New York, New York 10022
Attn: Richard Lubasch, Esq.
Fax: (212) 906-8497
9
<PAGE>
with a copy to:
Skadden, Arps, Meagher & Flom LLP
919 Third Avenue
New York, New York 10022
Attn: Thomas H. Kennedy, Esq.
Fax: (212) 735-2000
(ii) if to purchaser, to
Mannesmann AG
Am Wallgraben 125
D-70565 Stuttgart
Germany
Attn: Dr. Kurt J. Kinzius
Fax: 49-711-990-2201
and
Olivetti S.p.A.
Via Lorenteggio 257
20152 Milan
Italy
Attn: Marco De Benedetti
Fax: 39-2-4836-6700
with a copy to:
Willkie Farr & Gallagher
787 Seventh Avenue
New York, New York 10019-6099
Attn: Neil Novikoff, Esq.
Fax: (212) 728-8111
(iii) if to a Stockholder, as set forth on Schedule 1 hereto.
(d) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, REGARDLESS OF
THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICT OF
LAWS THEREOF.
(e) Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties.
(f) Interpretation. When a reference is made in this Agreement to a
Section, such reference shall be to a Section of this Agreement unless otherwise
indicated. The headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement. Whenever the words "include", "includes" or
10
<PAGE>
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation."
(g) Entire Agreement; No Third-Party Beneficiaries. This Agreement,
the Option Agreement and the Merger Agreement (together with the other documents
and instruments referred to in the Option Agreement, the Merger Agreement and
the exhibits and disclosure schedules thereto) (a) constitute the entire
agreement and supersede all prior agreements and understandings, both written
and oral, between the parties with respect to the subject matter of this
Agreement, and (b) are not intended to confer upon any person other than the
parties hereto any rights or remedies.
11
<PAGE>
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the parties hereto on the date first above written.
KENSINGTON ACQUISITION SUB, INC.
By: /s/ Marco De Benedetti
-----------------------------------
Name: Marco De Benedetti
Title: Co-President and
Co-Secretary
By:
-----------------------------------
Name: Dr. Kurt Kinzius
Title: Co-President and
Co-Secretary
CELLULAR COMMUNICATIONS
INTERNATIONAL, INC.
By:
-----------------------------------
Name: William B. Ginsberg
Title: Chairman of the Board of
Directors, President,
Chief Executive Officer
<PAGE>
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the parties hereto on the date first above written.
KENSINGTON ACQUISITION SUB, INC.
By:
-----------------------------------
Name: Marco De Benedetti
Title: Co-President and
Co-Secretary
By: /s/ Kurt Kinzius
-----------------------------------
Name: Dr. Kurt Kinzius
Title: Co-President and
Co-Secretary
CELLULAR COMMUNICATIONS
INTERNATIONAL, INC.
By:
-----------------------------------
Name:
Title:
<PAGE>
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the parties hereto on the date first above written.
KENSINGTON ACQUISITION SUB, INC.
By:
-----------------------------------
Name: Marco De Benedetti
Title: Co-President and
Co-Secretary
By:
-----------------------------------
Name: Dr. Kurt Kinzius
Title: Co-President and
Co-Secretary
CELLULAR COMMUNICATIONS
INTERNATIONAL, INC.
By: /s/ William B. Ginsberg
-----------------------------------
Name: William B. Ginsberg
Title: Chairman of the Board of
Directors, President,
Chief Executive Officer
<PAGE>
/s/ William B. Ginsberg
-----------------------------------
Name: William B. Ginsberg
-----------------------------------
Name: Richard J. Lubasch
-----------------------------------
Name: Stanton N. Williams
-----------------------------------
Name: Gregg Gorelick
-----------------------------------
Name: Del Mintz
-----------------------------------
Name: Sidney R. Knafel
-----------------------------------
Name: Alan J. Patricof
-----------------------------------
Name: Warren Potash
<PAGE>
-----------------------------------
Name: William B. Ginsberg
/s/ Richard J. Lubasch
-----------------------------------
Name: Richard J. Lubasch
-----------------------------------
Name: Stanton N. Williams
-----------------------------------
Name: Gregg Gorelick
-----------------------------------
Name: Del Mintz
-----------------------------------
Name: Sidney R. Knafel
-----------------------------------
Name: Alan J. Patricof
-----------------------------------
Name: Warren Potash
<PAGE>
-----------------------------------
Name: William B. Ginsberg
-----------------------------------
Name: Richard J. Lubasch
/s/ Stanton N. Williams
-----------------------------------
Name: Stanton N. Williams
-----------------------------------
Name: Gregg Gorelick
-----------------------------------
Name: Del Mintz
-----------------------------------
Name: Sidney R. Knafel
-----------------------------------
Name: Alan J. Patricof
-----------------------------------
Name: Warren Potash
<PAGE>
-----------------------------------
Name: William B. Ginsberg
-----------------------------------
Name: Richard J. Lubasch
-----------------------------------
Name: Stanton N. Williams
/s/ Gregg Gorelick
-----------------------------------
Name: Gregg Gorelick
-----------------------------------
Name: Del Mintz
-----------------------------------
Name: Sidney R. Knafel
-----------------------------------
Name: Alan J. Patricof
-----------------------------------
Name: Warren Potash
<PAGE>
-----------------------------------
Name: William B. Ginsberg
-----------------------------------
Name: Richard J. Lubasch
-----------------------------------
Name: Stanton N. Williams
-----------------------------------
Name: Gregg Gorelick
/s/ Del Mintz
-----------------------------------
Name: Del Mintz
-----------------------------------
Name: Sidney R. Knafel
-----------------------------------
Name: Alan J. Patricof
-----------------------------------
Name: Warren Potash
<PAGE>
-----------------------------------
Name: William B. Ginsberg
-----------------------------------
Name: Richard J. Lubasch
-----------------------------------
Name: Stanton N. Williams
-----------------------------------
Name: Gregg Gorelick
-----------------------------------
Name: Del Mintz
/s/ Sidney R. Knafel
-----------------------------------
Name: Sidney R. Knafel
-----------------------------------
Name: Alan J. Patricof
-----------------------------------
Name: Warren Potash
<PAGE>
-----------------------------------
Name: William B. Ginsberg
-----------------------------------
Name: Richard J. Lubasch
-----------------------------------
Name: Stanton N. Williams
-----------------------------------
Name: Gregg Gorelick
-----------------------------------
Name: Del Mintz
-----------------------------------
Name: Sidney R. Knafel
/s/ Alan J. Patricof
-----------------------------------
Name: Alan J. Patricof
-----------------------------------
Name: Warren Potash
<PAGE>
-----------------------------------
Name: William B. Ginsberg
-----------------------------------
Name: Richard J. Lubasch
-----------------------------------
Name: Stanton N. Williams
-----------------------------------
Name: Gregg Gorelick
-----------------------------------
Name: Del Mintz
-----------------------------------
Name: Sidney R. Knafel
-----------------------------------
Name: Alan J. Patricof
/s/ Warren Potash
-----------------------------------
Name: Warren Potash
<PAGE>
Exhibit 99(c)(3)
OPTION AGREEMENT
STOCK OPTION AGREEMENT, dated as of December 11, 1998 (this
"Agreement"), between Kensington Acquisition Sub, Inc., a Delaware corporation
("Purchaser"), and Cellular Communications International, Inc., a Delaware
corporation (the "Company").
WHEREAS, Purchaser and the Company, concurrently with the
execution and delivery of this Agreement, have entered into an Agreement and
Plan of Merger, dated as of the date hereof (the "Merger Agreement"), providing
for, among other things, the merger of Purchaser with and into the Company (the
"Merger"); and
WHEREAS, as a condition to the willingness of Purchaser to
enter into the Merger Agreement, Purchaser has required that the Company agree,
and in order to induce Purchaser to enter into the Merger Agreement the Company
has agreed, to grant Purchaser the Option (as defined below) upon the terms and
subject to the conditions of this Agreement.
NOW THEREFORE, in consideration of the foregoing and the
mutual promises, representations, warranties, covenants and agreements contained
herein and in the Merger Agreement, the parties hereto, intending to be legally
bound hereby, agree as follows:
ARTICLE I
THE OPTION
SECTION 1.1 Grant of Option. The Company hereby grants to
Purchaser an irrevocable option (the "Option") to purchase up to 4,338,133
newly-issued shares ("Shares") of the Common Stock, par value $.01 per share
("Company Common Stock"), of the Company at a purchase price per share of $65.75
(the "Exercise Price"), in the manner set forth in Sections 1.2 and 1.3 of this
Agreement; provided, however, that in no event shall the number of Shares for
which the Option is exercisable exceed 19.9% of the Company's issued and
outstanding shares of Company Common Stock. The number of Shares that may be
received upon the exercise of the Option and the Exercise Price are subject to
adjustment as herein set forth. This Agreement shall terminate, and the Option
hereby granted shall expire, on the earliest of (i) the Effective Time (as
defined in the Merger Agreement) and (ii) to the extent that no Option Notice
(as defined below) has theretofore been given by Purchaser, six (6) months after
any termination of the Merger Agreement pursuant to Section 8.1(b), (f)(ii),
(g), (h) or (i) thereof and at the time of termination of the Merger Agreement
pursuant to Section 8.1(a), (c), (d), (e) or (f)(i).
<PAGE>
hereunder in accordance with the terms of this Agreement (other than such time
as Purchaser is in material breach of its obligations under the Merger
Agreement), Purchaser (or its designee) may exercise the Option, in whole or in
part, if on or after the date hereof:
(a) any corporation, partnership, individual, trust,
unincorporated association, or other entity or "person" (as defined in Section
13(d)(3) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"),) other than Purchaser or any of its "affiliates" (as defined in the
Exchange Act) (a "Third Party"), shall have:
(i) commenced or announced an intention to
commence a tender offer or exchange offer for any shares of Company
Common Stock, the consummation of which would result in "beneficial
ownership" (as defined under the Exchange Act) by such Third Party
(together with all such Third Party's affiliates and "associates" (as
such term is defined in the Exchange Act)) of 15% or more of the then
outstanding voting equity of the Company (either on a primary or a
fully diluted basis); or
(ii) acquired beneficial ownership of shares of
Company Common Stock which, when aggregated with any shares of Company
Common Stock already owned by such Third Party, its affiliates and
associates, would result in the aggregate beneficial ownership by such
Third Party, its affiliates and associates of 15% or more of the then
outstanding voting equity of the Company (either on a primary or a
fully diluted basis); provided, however, that "Third Party" for
purposes of this clause (ii) shall not include any corporation,
partnership, person, other entity or group which beneficially owns more
than 15% of the outstanding voting equity of the Company (either on a
primary or a fully diluted basis) as of the date hereof and that does
not, after the date hereof, increase such ownership percentage by more
than an additional 1% of the outstanding voting equity of the Company
(either on a primary or a fully diluted basis); or
(b) any of the events described in Section 8.1(g)
(so long as following the date hereof but prior to any termination
there shall have been a Takeover Proposal Interest (as defined in the
Merger Agreement)), 8.1(h) or 8.1(i) of the Merger Agreement that would
allow Purchaser to terminate the Merger Agreement has occurred (but
without the necessity of Purchaser having terminated the Merger
Agreement).
In the event that Purchaser wishes to exercise all or any part
of the Option, Purchaser shall give written notice (the "Option Notice," with
the date of the Option Notice being hereinafter called the "Notice Date") to the
Company specifying
2
<PAGE>
the number of Shares it will purchase and a place and date (not earlier than
three (3) nor later than twenty (20) business days from the Notice Date) for
closing such purchase (a "Closing"). Purchaser's obligation to purchase Shares
upon any exercise of the Option is subject (at its election) to the conditions
that (i) no preliminary or permanent injunction or other order against the
purchase, issuance or delivery of the Shares issued by any federal, state or
foreign court of competent jurisdiction shall be in effect (and no action or
proceeding shall have been commenced or threatened for purposes of obtaining
such an injunction or order), (ii) any applicable waiting period under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR Act")
shall have expired and (iii) there shall have been no material breach of the
representations, warranties, covenants or agreements of the Company contained in
this Agreement or the Merger Agreement; provided, however, that any failure by
Purchaser to purchase Shares upon exercise of the Option at any Closing as a
result of the nonsatisfaction of any of such conditions shall not affect or
prejudice Purchaser's right to purchase such Shares upon the subsequent
satisfaction of such conditions. Upon request by Purchaser, the Company will
promptly take all action required to effect all necessary filings by the Company
under the HSR Act.
SECTION 1.3 Purchase of Shares. At any Closing, (i) the
Company will deliver to Purchaser the certificate or certificates representing
the number of Shares being purchased in proper form for transfer upon exercise
of the Option in the denominations designated by Purchaser in the Option Notice,
and, if the Option has been exercised in part, a new Option evidencing the
rights of Purchaser to purchase the balance of the Shares subject thereto, and
(ii) Purchaser shall pay the aggregate purchase price for the Shares to be
purchased by delivery to the Company of a certified or bank cashier's check
payable in New York Clearing House funds to the order of the Company in the
amount of the Exercise Price times the number of Shares to be purchased.
SECTION 1.4 Adjustments Upon Share Issuances, Changes in
Capitalization, etc. (a) In the event of any change in Company Common Stock or
in the number of outstanding shares of Company Common Stock by reason of a stock
dividend, split-up, recapitalization, combination, exchange of shares or similar
transaction or any other change in the corporate or capital structure of the
Company (including, without limitation, the declaration or payment of an
extraordinary dividend of cash, securities or other property), the type and
number of the Shares to be issued by the Company upon exercise of the Option
shall be adjusted appropriately, and proper provision shall be made in the
agreements governing such transaction, so that Purchaser shall receive upon
exercise of the Option the number and class of shares or other securities or
property that Purchaser would have received in respect to the Company Common
Stock if the Option had
3
<PAGE>
been exercised immediately prior to such event, or the record date therefor,
as applicable, and the holder of such Company Common Stock had elected to the
fullest extent it would have been permitted to elect, to receive such
securities, cash or other property.
(b) In the event that the Company shall enter into an
agreement (i) to consolidate with or merge into any person, other than
Purchaser or one of its subsidiaries, and shall not be the continuing or
surviving corporation of such consolidation or merger, (ii) to permit any
person, other than Purchaser or one of its subsidiaries, to merge into the
Company and the Company shall be the continuing or surviving corporation,
but, in connection with such merger, the then outstanding shares of Company
Common Stock shall be changed into or exchanged for stock or other securities
of the Company or any other person or cash or any other property, or then
outstanding shares of Company Common Stock shall after such merger represent
less than 50% of the outstanding shares and share equivalents of the
surviving corporation or (iii) to sell or otherwise transfer all or
substantially all of its assets to any person, other than Purchaser or one of
its subsidiaries, then, and in each such case, proper provision shall be made
in the agreements governing such transaction so that Purchaser shall receive
upon exercise of the Option the number and class of shares or other
securities or property that Purchaser would have received in respect of
Company Common Stock if the Option had been exercised immediately prior to
such transaction, or the record date therefor, as applicable, and the holder
of such Company Common Stock had elected to the fullest extent it would have
been permitted to elect, to receive such securities, cash or other property.
(c) The rights of Purchaser under this Section 1.4 shall be
in addition to, and shall in no way limit, its rights against the Company for
any breach of the Merger Agreement.
(d) The provisions of this Agreement shall apply with
appropriate adjustments to any securities for which the Option becomes
exercisable pursuant to this Section 1.4.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to Purchaser as
follows:
SECTION 2.1 Authority Relative to this Agreement. The Company
is a corporation duly organized and validly existing under the laws of the State
of Delaware. The Company has all necessary power and authority (corporate and
otherwise) to execute and deliver this Agreement, to perform its obligations
4
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hereunder and to consummate the transactions contemplated hereby. The execution
and delivery of this Agreement and the consummation by the Company of the
transactions contemplated hereby have been duly and validly authorized by the
Board of Directors of the Company, and no other corporate proceeding on the part
of the Company is necessary to authorize this Agreement or for the Company to
consummate such transactions. This Agreement has been duly and validly executed
and delivered by the Company.
SECTION 2.2 No Conflict; Required Filings and Consents. The
execution and delivery of this Agreement by the Company do not, and the
performance of this Agreement by the Company will not, (i) conflict with or
violate the Restated Certificate of Incorporation or Bylaws of the Company, (ii)
conflict with or violate any law, rule, regulation, order, judgment or decree
applicable to the Company or by which the Company is bound or affected, (iii)
result in any breach of or constitute a default (or an event that with notice or
lapse of time or both would become a default) under, or give to others any
rights of termination, amendment, acceleration or cancellation of, or result in
the creation of a lien or encumbrance of any kind on any of the Shares pursuant
to, any agreement, contract, indenture, notice or instrument to which the
Company is a party or by which the Company is bound or affected, or (iv) except
for applicable requirements, if any, of the HSR Act, the Exchange Act and the
Securities Act of 1933, as amended (the "Securities Act"), require any filing by
the Company with, or any permit, authorization, consent or approval of, any
governmental or regulatory authority, domestic or foreign.
SECTION 2.3 Option Shares. The Company has taken all necessary
corporate action to authorize and reserve for issuance upon exercise of the
Option a total of 4,338,133 Shares, and the Shares, when issued and delivered by
the Company to Purchaser (or its designee) upon exercise of the Option will be
duly authorized, validly issued, fully paid and nonassessable shares of Company
Common Stock, and will be free and clear of any security interests, liens,
claims, pledges, charges or encumbrances of any kind.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to the Company as
follows:
SECTION 3.1 Authority Relative to this Agreement. Purchaser is
a corporation duly organized and validly existing under the laws of the State of
Delaware. Purchaser has all necessary power and authority (corporate and
otherwise) to execute and deliver this Agreement, to perform its obligations
5
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hereunder and to consummate the transactions contemplated hereby. The execution
and delivery of this Agreement and the consummation by Purchaser of the
transactions contemplated hereby have been duly authorized by the Board of
Directors of Purchaser, and no other corporate proceeding on the part of
Purchaser is necessary to authorize this Agreement or for Purchaser to
consummate such transactions. This Agreement has been duly executed and
delivered by Purchaser and, assuming its due authorization, execution and
delivery by the Company, constitutes a legal, valid and binding obligation of
Purchaser, enforceable against Purchaser in accordance with its terms.
SECTION 3.2 No Conflict, Required Filing and Consents. The
execution and delivery of this Agreement by Purchaser do not, and the
performance of this Agreement by Purchaser will not, (i) conflict with or
violate the organizational documents of Purchaser, (ii) conflict with or violate
any law, rule, regulation, order, judgment or decree applicable to Purchaser or
by which Purchaser is bound or affected, (iii) result in any breach of or
constitute a default (or an event that with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any agreement, contract, indenture,
note or instrument to which Purchaser is a party or by which it is bound or
affected or (iv) except for applicable requirements, if any, of the HSR Act, the
Exchange Act and the Securities Act, require any filing by Purchaser with, or
any permit, authorization, consent or approval of, any governmental or
regulatory authority, domestic or foreign, except in the case of each of the
foregoing clauses (i) through (iv) for any such conflicts, violations, breaches,
defaults, failures to file or obtain the consent or approval of, or other
occurrences that would not cause or create a material risk of non-performance or
delayed performance by Purchaser of its obligations under this Agreement.
SECTION 3.3 Investment Intent. The purchase of Shares pursuant
to this Agreement is for the account of Purchaser for the purpose of investment
and not with a view to or for sale in connection with any distribution thereof
within the meaning of the Securities Act and the rules and regulations
promulgated thereunder.
ARTICLE IV
ADDITIONAL AGREEMENTS
SECTION 4.1 Registration Rights; Listing of Shares. (a) Upon
the written request of Purchaser, the Company agrees to effect up to two
registrations under the Securities Act and any applicable state securities laws
covering any part or all of the Option (provided that only Shares will be
distributed to the public) and any part or all of the Shares purchased under
this
6
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Agreement, which registration shall be continued in effect for 90 days, unless,
in the written opinion of counsel to the Company, addressed to Purchaser and
reasonably satisfactory in form and substance to counsel for Purchaser, such
registration is not required for the sale and distribution of such Shares in the
manner contemplated by Purchaser. The registration effected under this paragraph
shall be effected at the Company's expense except for any underwriting
commissions. If Shares are offered in a firm commitment underwriting, the
Company will provide reasonable and customary indemnification to the
underwriters. In the event of any demand for registration pursuant to this
paragraph, the Company may delay the filing of the registration statement for a
period of up to 90 days if, in the good faith judgment of the Board of Directors
of the Company, such delay is necessary in order to avoid interference with a
planned material transaction involving the Company. In the event the Company
effects a registration of Company Common Stock for its own account or for any
other stockholder of the Company (other than on Form S-4 or Form S-8 or any
successor or similar form), it shall allow Purchaser to participate in such
registration; provided, however, that if the managing underwriters in such
offering advise the Company in writing that in their opinion the number of
shares of Company Common Stock requested to be included in such registration
exceeds the number which can be sold in such offering, the Company will include
the securities requested to be included therein pro rata among the holders
requesting to be included.
(b) The Company shall, at its expense, use its best efforts to
cause the Shares to be approved for listing on the Nasdaq National Market (the
"NNM") subject to notice of issuance, as promptly as practicable following the
date of this Agreement, and will provide prompt notice to the NNM of the
issuance of each Share pursuant to any exercise of the Option.
SECTION 4.2 Right to Sell Option. At any time that Purchaser
is entitled to exercise the Option pursuant to Section 1.2 hereof, Purchaser may
elect, in its sole discretion, to sell the Option to the Company in lieu of
exercising the Option. The Company shall be required to purchase the Option from
Purchaser on the third business day after the Purchaser gives the Company
written notice of such election for a cash price (payable by certified or
official bank check in same day funds to Purchaser or its designee) equal to the
product of the number of Shares then covered by the Option multiplied by the
excess over the Exercise Price of the greater of (x) the closing price of a
share of Company Common Stock on the NNM on the last trading day prior to the
date of such notice and (y) the highest price per share of Company Common Stock
paid or proposed to be paid to any holder thereof by any person in any Takeover
Proposal (as defined in the Merger Agreement). The Company shall give Purchaser
prompt written notice of the occurrence of any event set forth in Section 1.2
hereof and of any agreements or proposals relating to
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<PAGE>
such an event, but the failure to give any such notice shall not limit
Purchaser's right to require the Company to purchase the Option pursuant to this
Section 4.2.
SECTION 4.3 Limitation on Profit. (a) Notwithstanding any
other provision of this Agreement, in no event shall Purchaser's Total Profit
(as defined below) exceed $14 million and, if it otherwise would exceed such
amount, Purchaser, at its sole election, shall either (a) reduce the number of
shares of Company Common Stock subject to the Option, (b) deliver to the Company
for cancellation Shares previously purchased by Purchaser, (c) pay cash to the
Company, or (d) any combination thereof, so that Purchaser's actually realized
Total Profit shall not exceed $14 million after taking into account the
foregoing actions.
(b) As used herein, the term "Total Profit" shall mean the
aggregate amount (before taxes) of the following: (i) (x) the net cash amounts
received by Purchaser pursuant to the sale of Shares (or any other securities
into which such Shares are converted or exchanged) to any unaffiliated party,
less (y) Purchaser's purchase price of such Shares, and (ii) any Notional Total
Profit (as defined below).
(c) As used herein, the term "Notional Total Profit" with
respect to the total number of Shares as to which Purchaser could propose to
exercise the Option shall be the Total Profit determined as of the date of such
proposal assuming that the Option were fully exercised on such date for such
number of Shares and assuming that such Shares, together with all other Shares
held by Purchaser and its affiliates as of such date, were sold for cash at the
closing market price for the Company Common Stock as of the close of business on
the preceding trading day (less customary brokerage commissions).
SECTION 4.4 Transfer of Shares; Restrictive Legend. Purchaser
agrees not to transfer or otherwise dispose of the Shares, or any interest
therein, without first providing to the Company an opinion of counsel for
Purchaser, reasonably satisfactory in form and substance to counsel for the
Company, to the effect that such transfer or disposition will not violate the
Securities Act or any applicable state law governing the offer and sale of
securities, and the rules and regulations thereunder. Purchaser further agrees
to the placement on the certificate(s) representing the Shares of the following
legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY BE
REOFFERED OR SOLD ONLY IF SO REGISTERED OR IF AN EXEMPTION FROM SUCH
REGISTRATION IS AVAILABLE."
provided that upon provision to the Company of any opinion of counsel for
Purchaser, reasonably satisfactory in form and
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<PAGE>
substance to counsel for the Company, to the effect that such legend is no
longer required under the provisions of the Securities Act or applicable state
securities laws, the Company shall promptly cause new unlegended certificates
representing such Shares to be issued to Purchaser against surrender of such
legended certificates.
SECTION 4.5 Best Efforts. Subject to the terms and conditions
of this Agreement, Purchaser and the Company shall each use its best efforts to
take, or cause to be taken, all actions, and to do, or cause to be done, all
things necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated by this Agreement.
Each party shall promptly consult with the other and provide any necessary
information and material with respect to all filings made by such party with any
governmental or regulatory authority in connection with this Agreement or the
transactions contemplated hereby.
SECTION 4.6 Further Assurances. The Company shall perform such
further acts and execute such further documents and instruments as may
reasonably be required to vest in Purchaser the power to carry out the
provisions of this Agreement. If Purchaser shall exercise the Option, or any
portion thereof, in accordance with the terms of this Agreement, the Company
shall, without additional consideration, execute and deliver all such further
documents and instruments and take all such further action as Purchaser may
reasonably request for the purpose of effectively carrying out the transactions
contemplated by this Agreement.
SECTION 4.7 Survival. All of the representations, warranties
and covenants contained herein shall survive a Closing and shall be deemed to
have been made as of the date hereof and as of the date of each Closing.
ARTICLE V
MISCELLANEOUS
SECTION 5.1 Specific Performance. The parties hereto agree
that if any of the provisions of this Agreement were not performed in accordance
with their specific terms or were otherwise breached, irreparable damage would
occur, no adequate remedy at law would exist and damages would be difficult to
determine, and that the parties shall be entitled to specific performance of the
terms hereof, without any requirement for securing or posting any bond, in
addition to any other remedy at law or equity.
SECTION 5.2 Entire Agreement. This Agreement constitutes the
entire agreement of the parties hereto with
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respect to the subject matter hereof and supersedes all prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof.
SECTION 5.3 Amendment; Assignment. This Agreement may not be
amended except by an instrument in writing signed by the parties hereto and
specifically referencing this Agreement. No party to this Agreement may assign
any of its rights or obligations under this Agreement without the prior written
consent of the other party hereto, except that the rights and obligations of
Purchaser hereunder may, upon written notice to the Company prior to or promptly
following such action, be assigned by Purchaser to any of its corporate
affiliates, but no such transfer shall relieve Purchaser of its obligations
hereunder if such transferee does not perform such obligations.
SECTION 5.4 Severability. The provisions of this Agreement
shall be deemed severable and the invalidity or unenforceability of any
provisions hereof or thereof shall not affect the validity and enforceability of
the other provisions hereof. If any provision of this Agreement, or the
application thereof, to any person or entity or any circumstances is invalid or
unenforceable, (i) a suitable and equitable provision shall be substituted
therefor in order to carry out, so far as may be valid and enforceable, the
intent and purpose of such invalid and unenforceable provision and (ii) the
remainder of this Agreement and the application of such provision to other
persons, entities or circumstances shall not be affected by such invalidity or
unenforceability, nor shall such invalidity or unenforceability affect the
validity or enforceability of such provision, or the application thereof, in any
other jurisdiction.
SECTION 5.5 Governing Law. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of Delaware without
giving effect to the provisions thereof relating to conflicts of law.
SECTION 5.6 Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall be deemed to be an original, but
each of which together shall constitute one and the same document.
SECTION 5.7 Notices. All notices and other communications
given or made pursuant hereto shall be in writing and shall be deemed to have
been duly given or made (i) as of the date delivered or sent by facsimile if
delivered personally or by facsimile, (ii) on the first business day following
dispatch by an internationally recognized overnight courier service to a
domestic addressee, (iii) on the third business day following dispatch by an
internationally recognized overnight courier service to a international
addressee and (iv) on the tenth business day after deposit with a national mail
service, if mailed by registered or certified mail (postage prepaid, return
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receipt requested), in each case to the parties at the following addresses (or
at such other address for a party as shall be specified by like notice, except
that notices of changes of address shall be effective upon receipt):
(a) if to the Company, to
Cellular Communications International, Inc.
110 East 59th Street
New York, New York 10022
Attn: Richard Lubasch, Esq.
Fax: (212) 906-8497
with a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, New York 10022
Attn: Thomas H. Kennedy, Esq.
Fax: (212) 735-2000
(b) if to Purchaser, to
Mannesmann AG
Am Wallgraben 125
D-70565 Stuttgart
Germany
Attn: Dr. Kurt J. Kinzius
Fax: 49-711-990-2201
and
Olivetti S.p.A.
Via Lorenteggio 257
20152 Milan
Italy
Attn: Marco De Benedetti
Fax: 39-2-4836-6700
with a copy to:
Willkie Farr & Gallagher
787 Seventh Avenue
New York, New York 10019-6099
Attn: Neil Novikoff, Esq.
Fax: (212) 728-8111
SECTION 5.8 Binding Effect. The terms of this Agreement shall
inure to the benefit of and be binding upon by the successors and assigns of the
parties hereto. Nothing expressed or referred to in this Agreement is intended
or shall be construed to give any person other than the parties to this
Agreement, or their respective successors or assigns, any legal
11
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or equitable right, remedy or claim under or in respect of this Agreement or any
provision contained herein.
12
<PAGE>
IN WITNESS WHEREOF, each of the Company and Purchaser have
caused this Agreement to be executed on its behalf by its officers thereunto
duly authorized, all as of the date first above written.
CELLULAR COMMUNICATIONS
INTERNATIONAL, INC.
By: /s/ William Ginsberg
-----------------------------
Name: William B. Ginsberg
Title: Chairman of the Board of
Director, President,
Chief Executive Officer
KENSINGTON ACQUISITION SUB, INC.
By: /s/ Marco De Benedetti
-----------------------------
Name: Marco De Benedetti
Title: Co-President and
Co-Secretary
By: /s/ K. Kinzius
-----------------------------
Name: Dr. Kurt Kinzius
Title: Co-President and
Co-Secretary
<PAGE>
GUARANTEE
GUARANTEE, dated as of December 11, 1998, by and among Cellular
Communications International, Inc., a Delaware corporation (the "Company"), and
Olivetti S.p.A., a limited liability company organized under the laws of Italy
("Olivetti"), and Mannesmann AG, a limited liability company organized under the
laws of Germany ("Mannesmann", and together with Olivetti, the ("Guarantors").
WHEREAS, Kensington Acquisition Sub, Inc., a Delaware corporation (the
"Purchaser), is wholly-owned jointly by the Guarantors; and
WHEREAS, the Company and the Purchaser have entered into an Agreement
and Plan of Merger (the "Merger Agreement") of even date herewith; and
WHEREAS, upon the terms and subject to the conditions set forth in the
Merger Agreement, the Purchaser will make a cash tender offer (the "Offer") to
acquire all shares of the issued and outstanding common stock, $.01 par value,
of the Company (the "Company Common Stock"), including the associated Preferred
Stock Purchase Rights issued pursuant to the Rights Agreement, dated as of
December 19, 1990, between the Company and Continental Stock Transfer Trust
Company, for $65.75 per share or such higher price as may be paid in the Offer,
in each case net to the seller in cash; and
WHEREAS, as an inducement to the Company to enter into the Merger
Agreement, the Guarantors have agreed to enter into this agreement;
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, the Company and the Guarantors hereby agree as follows:
1. The Guarantors hereby unconditionally and irrevocably jointly and
severally guarantee, as primary obligors and not merely as sureties, for the
benefit of the Company the performance of the following obligations of the
Purchaser pursuant to the Merger Agreement: (i) Section 1.1(e), (ii) the last
sentence of Section 2.12(b), (iii) Section 6.9 and (iv) any liability relating
to the representations set forth in Section 3.4.
2. The Guarantors covenant that this Guarantee will not be discharged
except by complete performance of the obligations contained in this Guarantee.
This Guarantee shall not be affected by, and shall remain in full force and
effect, notwithstanding any bankruptcy, insolvency, liquidation, or
reorganization of the Purchaser or either Guarantor. This
<PAGE>
Guarantee shall not be affected by any claim, action, suit, proceeding
(including, without limitation, arbitration proceedings) or other alternative
dispute resolution proceeding or investigation that is commenced or threatened
against the Company, the Purchaser, Mannesmann, Olivetti or OliMan Holding B.V.
arising out of, or relating to, the Omnitel Agreement (as defined below) and in
connection with the execution and delivery of the Merger Agreement and the
consummation of the transactions contemplated thereby, other than any of the
foregoing brought by or on behalf of the Company.
3. The Guarantors agree to pay, on demand, and to save the Company
harmless against liability for, any and all costs and expenses (including
reasonable fees and disbursements of counsel) incurred or expended by the
Company in connection with the enforcement of or preservation of any rights
under this Guarantee.
4. Olivetti hereby represents, warrants and covenants to the Company as
follows:
a. Olivetti is a limited liability company duly organized and
validly existing under the laws of Italy. Olivetti has the necessary power and
authority to own and operate its properties and assets and to carry on its
business as currently conducted.
b. Olivetti has all requisite legal power and authority to
enter into this Guarantee. Olivetti has all requisite legal power and authority
to carry out and perform its obligations under the terms of this Guarantee. This
Guarantee constitutes the valid and binding obligation of Olivetti, enforceable
against it in accordance with its terms, except as enforcement may be limited by
bankruptcy, insolvency, moratorium, reorganization or other laws or equitable
principles relating to or affecting creditors' rights generally.
c. All corporate action on the part of Olivetti necessary to
authorize the execution, delivery and performance of this Guarantee has been
taken.
5. Mannesmann hereby represents, warrants and covenants to the Company
as follows:
a. Mannesmann is a limited liability company duly organized
and validly existing under the laws of Germany. Mannesmann has the necessary
power and authority to own and operate its properties and assets and to carry on
its business as currently conducted.
b. Mannesmann has all requisite legal power and authority to
enter into this Guarantee. Mannesmann has all requisite legal power and
authority to carry out and perform its obligations under the terms of this
Guarantee. This Guarantee
2
<PAGE>
constitutes the valid and binding obligation of Mannesmann, enforceable against
it in accordance with its terms, except as enforcement may be limited by
bankruptcy, insolvency, moratorium, reorganization or other laws or equitable
principles relating to or affecting creditors' rights generally.
c. All corporate action on the part of Mannesmann necessary to
authorize the execution, delivery and performance of this Guarantee has been
taken.
6. Each Guarantor hereby represents and warrants to the Company that to
such Guarantor's knowledge, the execution and delivery of this Guarantee by such
Guarantor do not, and the performance of this Guarantee by such Guarantor and
the consummation of the transactions contemplated by the Merger Agreement will
not result in a breach of or constitute a default under (with or without due
notice of lapse of time or both) any contract or instrument to which the
Guarantor or OliMan Holding, B.V. is a party (including the Joint Venture
Agreement (the "Omnitel Agreement"), dated as of May 3, 1990, among Ing. C.
Olivetti & C., S.p.A., Bell Atlantic International, Inc., CCI Partnership, Inc.,
Shearson Lehman Hutton Eurocell Italy, Inc., and Swedish Telecom International
AB, as amended November 24, 1993 and February 23, 1994) as is or could
reasonably be expected to be materially adverse to the ability of such Guarantor
to perform its obligations under this Guarantee or to the consummation of the
transactions contemplated by the Merger Agreement. For purposes of this
Guarantee, "to such Guarantor's knowledge" shall be limited to the knowledge of
a current director or officer of such Guarantor.
7. Each Guarantor agrees that any legal suit, action or proceeding
brought by the Company with respect to the transactions contemplated by the
Merger Agreement may be instituted in any state or federal court in The City of
New York, State of New York, waives to the fullest extent permitted by law any
objection which it may now or hereafter have to the laying of venue of any such
suit, action or proceeding and irrevocably submits to the non-exclusive
jurisdiction of any such court in any such suit, action or proceeding. Nothing
in this paragraph shall affect the right of a Guarantor, the Purchaser or any of
their respective affiliates to serve process in any manner permitted by law or
limit the right of a Guarantor, the Purchaser or any of their respective
affiliates to bring proceedings against the Company in the courts of any
jurisdiction or jurisdictions.
8. This Guarantee shall be deemed to be a contract under the laws of
the State of New York and shall for all purposes be governed by and construed in
accordance with the laws of such State.
9. This Guarantee shall terminate and be of no further force or effect
upon the consummation of the purchase by
3
<PAGE>
the Purchaser or any of its affiliates of any Shares pursuant to the Offer.
4
<PAGE>
IN WITNESS WHEREOF, each of the Company and each Guarantor have caused
this Guarantee to be executed on its behalf by its officers thereunto duly
authorized, all as on the date first above written.
CELLULAR COMMUNICATIONS
INTERNATIONAL, INC.
By: /s/ William Ginsberg
-----------------------------------
Name: William B. Ginsberg
Title: Chairman of the Board
of Directors, President
Chief Executive Officer
MANNESMANN AG
By: /s/ K. Kinzius
-----------------------------------
Name: Dr. Kurt Kinzius
Title:
OLIVETTI S.p.A.
By: /s/ Roberto Colaninno
-----------------------------------
Name: Roberto Colaninno
Title: Chief Executive Officer
By: /s/ Antonio Tesone
-----------------------------------
Name: Antonio Tesone
Title: Chairman
<PAGE>
Exhibit 99(c)(5)
[LETTERHEAD OF CELLULAR COMMUNICATIONS INTERNATIONAL, INC.]
December 1, 1998
Mannesmann AG
Olivetti S.p.A.
c/o Willkie Farr & Gallagher
787 Seventh Avenue
New York, New York
Attention: Steven A. Seidman
PRIVILEGED AND CONFIDENTIAL
Gentlemen:
In connection with your consideration of a possible transaction with
Cellular Communications of International, Inc. (the "Company"), you have
requested information concerning the Company. As a condition to your being
furnished such information, you agree to treat any information concerning the
Company (whether prepared by the Company, its advisors or otherwise) which is
furnished to you by or on behalf of the Company (herein collectively referred to
as the "Evaluation Material") in accordance with the provisions of this letter
and to take or abstain from taking certain other actions herein set forth. The
term "Evaluation Material" does not include information which (i) is already in
your possession, provided that such information is not known by you to be
subject to another confidentiality agreement with or other obligation of secrecy
to the Company or another party, or (ii) becomes generally available to the
public other than as a result of a disclosure by you or your directors,
officers, employees, agents or advisors, or (iii) becomes available to you on a
non-confidential basis from a source other than the Company or its advisors,
provided that such source is not known by you to be bound by a confidentiality
agreement with or other obligation of secrecy to the Company or another party.
You hereby agree that the Evaluation Material will be used solely
for the purpose of evaluating a possible transaction between the Company and
you, and that such information will be kept confidential by you and your
advisors; provided, however, that (i) any of such information may be disclosed
to your directors, officers, employees, affiliates, agents, counsel,
accountants, advisors or representatives
<PAGE>
December 1, 1998
Page 2
("Representatives"), to the extent necessary to permit such Representatives to
assist you in evaluating a possible transaction between the Company and you,
provided, however, that you shall require each such Representative to be bound
by the terms of this Agreement to the same extent as if they were parties
hereto, and (ii) disclosure of such information may be made to which the Company
consents in writing. You shall be responsible for any breach of this letter
agreement by you or any of your Representatives.
In the event that you or anyone to whom you transit any Evaluation
Material are requested or required to disclose any Evaluation Material by legal
process or in connection with any legal proceedings, you agree that you will
provide prompt written notice of such request or requirement to the Company so
that the Company may take whatever steps it deems appropriate concerning
disclosure of this information, including requesting entry of appropriate
protective orders and/or waiving compliance with the provisions of this
agreement. In the event that no such protective order or other remedy is
obtained, or that the Company waives compliance with the terms of this
agreement, you and your advisors will furnish only that portion of the
information which, upon advice of counsel, is required to be provided and will
exercise your best efforts, at the Company's expense, to obtain reliable
assurance that the Evaluation Material will be afforded confidential treatment.
In addition, without the prior written consent of the Company, you
will not, and will direct such directors, officers, employees and
representatives not to, disclose to any person either the fact that discussions
or negotiations are taking place concerning a possible transaction between the
Company and you or any of the terms, conditions, or other facts with respect to
any such possible transaction, including the status thereof.
Although the Company has endeavored to include in the Evaluation
Material information known to it which it believes to be relevant for the
purposes of your investigation, you understand that neither the Company nor any
of its representatives or advisors have made or make any representation or
warranty as to the accuracy or completeness of the Evaluation Material. You
agree that neither the Company nor its representatives or advisors shall have
any liability to you or any of your representatives or advisors resulting from
the use of the Evaluation Material.
<PAGE>
December 1, 1998
Page 3
You agree that, for a period of one year from the date of this
letter, you and your affiliates will not solicit for employment any employee of
the Company with whom you have had contact or who became known to you or your
affiliates in connection with your consideration of the transaction; provided,
however, that the foregoing provision will not prevent you or your affiliates
from employing any such person who contacts you on his or her own initiative or
in response to a general advertisement without any personal solicitation by or
encouragement from you.
In the event that you do not proceed with the transaction which is
the subject of this letter within a reasonable time, you shall promptly
redeliver to the Company all written Evaluation Material and any other written
material containing or reflecting any information in the Evaluation Material
(whether prepared by the Company, its advisors or otherwise) and will not retain
any copies, extracts or other reproductions in whole or in part of such written
material or any electronic or digital media incorporating such material
("Electronic Media"). All documents, memoranda, notes and other writings
whatsoever or any electronic media prepared by you or your advisors based on the
information in the Evaluation Material shall be destroyed or completely removed
from your computer systems and such destruction or removal shall be certified in
writing to the Company by an authorized officer supervising such destruction.
You agree that unless and until a definitive agreement between the
Company and you with respect to any transaction referred to in the first
paragraph of this letter has been executed and delivered, neither the Company
nor you will be under any legal obligation of any kind whatsoever with respect
to such a transaction by virtue of this or any written or oral expression with
respect to such a transaction by any of its directors, officers, employees,
agents or any other representatives or its advisors or representatives thereof
except, in the case of this letter, for the matters specifically agreed to
herein. The agreement set forth in this paragraph may be modified or waived only
by a separate writing by the Company and you expressly so modifying or waiving
such agreement.
<PAGE>
December 1, 1998
Page 4
This letter shall be governed by, and constructed in accordance
with, the laws of the State of New York.
Very truly yours,
CELLULAR COMMUNICATIONS INTERNATIONAL, INC.
By: /s/ Jeffrey G. Wyman
---------------------------------------
Name: Jeffrey G. Wyman
Title: Assistant General Counsel
Accepted and Agreed to:
Mannesmann AG
By: /s/ Kurt Kinzius
---------------------------------------
Date: December 1, 1998
Olivetti S.p.A.
By: /s/ Marco De Benedetti
---------------------------------------
Date: December 10, 1998
