-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, WAb++i/g06aSDQ/f7lv69aJbZfD45dt9ws0yGdu2Nbx3P7hpqcXXVV5B9f8u3fu8 4C8AUKdavr+l/9A/xetWXg== 0001047469-98-044309.txt : 19981218 0001047469-98-044309.hdr.sgml : 19981218 ACCESSION NUMBER: 0001047469-98-044309 CONFORMED SUBMISSION TYPE: SC 14D1 PUBLIC DOCUMENT COUNT: 15 FILED AS OF DATE: 19981217 GROUP MEMBERS: KENSINGTON ACQUISTION SUB, INC. GROUP MEMBERS: MANNESMANN AG GROUP MEMBERS: OLIVETTI S P A SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: CELLULAR COMMUNICATIONS INTERNATIONAL INC CENTRAL INDEX KEY: 0000870762 STANDARD INDUSTRIAL CLASSIFICATION: RADIO TELEPHONE COMMUNICATIONS [4812] IRS NUMBER: 133221852 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 14D1 SEC ACT: SEC FILE NUMBER: 005-41735 FILM NUMBER: 98771125 BUSINESS ADDRESS: STREET 1: 110 E 59TH ST STREET 2: 26TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10022 BUSINESS PHONE: 2129068480 MAIL ADDRESS: STREET 1: 110 EAST 59TH STREET STREET 2: 26TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10022 FORMER COMPANY: FORMER CONFORMED NAME: INTERNATIONAL CELLULAR INC DATE OF NAME CHANGE: 19600201 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: OLIVETTI S P A CENTRAL INDEX KEY: 0000110333 STANDARD INDUSTRIAL CLASSIFICATION: UNKNOWN SIC - 0000 [0000] IRS NUMBER: 000000000 STATE OF INCORPORATION: L6 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 14D1 BUSINESS ADDRESS: STREET 1: VIA LORENTEGGIO 257 STREET 2: 20152 MILAN ITALY CITY: MILAN MAIL ADDRESS: STREET 1: VIA LORENTEGGIO 257 STREET 2: 20152 MILAN CITY: ITALY STATE: L6 SC 14D1 1 SC 14D1 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 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 TRANSACTION VALUATION* $1,433,328,040.00 AMOUNT OF FILING FEE $286,665.61
* 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. Amount Previously Paid: Not applicable. Filing Party: Not applicable. Form or Registration No.: Not applicable. Date Filed: Not applicable.
- -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 14D-1 CUSIP NO. 150918 10 0 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
2 14D-1 CUSIP NO. 150918 10 0 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
3 14D-1 CUSIP NO. 150918 10 0 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
4 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 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 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. (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.
7 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 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
8 INDEX TO EXHIBITS
SEQUENTIAL EXHIBIT PAGE NO. - --------- --------- (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.
9 EX-99.(A)(1) 2 OFFER TO PURCHASE DTD 12/17/98 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 TABLE OF CONTENTS 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
SCHEDULE I -- Information Concerning Directors And Executive Officers Of Purchaser, Olivetti and Mannesmann 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 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 2 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. 3 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 4 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 5 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 6 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; 7 (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 8 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 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.
COMMON STOCK -------------------- 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
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 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 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 CELLULAR COMMUNICATIONS INTERNATIONAL, INC. SELECTED CONSOLIDATED FINANCIAL INFORMATION
NINE MONTHS ENDED SEPTEMBER 30, (UNAUDITED) YEAR ENDED DECEMBER 31, ------------------------ ------------------------------------- 1998 1997 1997 1996 1995 ----------- ----------- ----------- ----------- ----------- (IN THOUSANDS, EXCEPT PER SHARE DATA) 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
13 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 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 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 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 17 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. 18 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 19 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, 20 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, 21 (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; 22 (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 23 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 24 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 25 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 26 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). 27 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 28 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 29 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, 30 (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 31 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 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 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 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 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 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 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.
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT; NAME MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS - ------------------------------------ --------------------------------------------------------------------------- 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.
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.
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT; NAME MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS - ------------------------------------ --------------------------------------------------------------------------- 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.
38
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT; NAME MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS - ------------------------------------ --------------------------------------------------------------------------- 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.
39
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT; NAME MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS - ------------------------------------ --------------------------------------------------------------------------- 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.
40
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT; NAME MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS - ------------------------------------ --------------------------------------------------------------------------- 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.
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.
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT; NAME MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS - ------------------------------------ --------------------------------------------------------------------------- Dr. Joachim Funk.................... Dr. Funk is Chairman of the Board of Directors.
41
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT; NAME MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS - ------------------------------------ --------------------------------------------------------------------------- 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.
42 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 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
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 EX-99.(A)(2) 3 LETTER OF TRANSMITTAL 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 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
(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. 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 ____________________________________________________ DESCRIPTION OF SHARES TENDERED
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) 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.
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. 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. 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: ____________ - ----------------------------------------------------- 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) ------------------------------------------------------- - -------------------------------------------------------------------------------- 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 _____________________________________________ --------------------------------------------------- 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. 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. 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. 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. 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. - ---------------------------------------------------------------------------------------------------- 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: ----------------------------------------------------------------------------------------------------
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 EX-99.(A)(3) 4 NOTICE OF GUARANTEED DELIVERY 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 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
(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. 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. 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):
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. Name of Firm: Authorized Signature Name: Address: Please Print Zip Code Title: Area Code and Tel. No.: Dated: , 1998
NOTE: DO NOT SEND CERTIFICATES FOR SHARES WITH THIS NOTICE. CERTIFICATES SHOULD BE SENT ONLY WITH YOUR LETTER OF TRANSMITTAL. 2 EX-99.(A)(4) 5 BROKER/DEALER LETTER 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; 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 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 EX-99.(A)(5) 6 CLIENT LETTER 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 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 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. 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
- ------------------------ * Unless otherwise indicated, it will be assumed that all Shares held by us for your account are to be tendered. 3 EX-99.(A)(6) 7 W-9 TAX GUIDELINE 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.
FOR THIS TYPE OF ACCOUNT: GIVE THE NAME AND SOCIAL SECURITY NUMBER OF: - ---------------------------------------------------------------- ----------------------------------------------------- 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 FOR THIS TYPE OF ACCOUNT: GIVE THE NAME AND EMPLOYER IDENTIFICATION NUMBER OF: - ---------------------------------------------------------------- ----------------------------------------------------- 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
- ------------------------ (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. 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. EX-99.(A)(7) 8 PRESS RELEASE DTD. 12/11/98 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." "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 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 EX-99.(A)(8) 9 PRESS RELEASE DTD. 12/17/98 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 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 EX-99.(A)(9) 10 SUMMARY ADVERTISEMENT 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 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 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 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 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 EX-99.(C)(1) 11 AGREEMENT & PLAN OF MERGER CELLULAR COMMUNICATIONS INTERNATIONAL, INC. and KENSINGTON ACQUISITION SUB, INC. AGREEMENT AND PLAN OF MERGER Dated as of December 11, 1998 TABLE OF CONTENTS
PAGE ARTICLE I. THE TENDER OFFER 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
i 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
ii 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
iii Table of Definitions 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
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)
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 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 2 (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 3 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; 4 (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 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 6 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. 7 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 8 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 9 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 10 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. 11 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 12 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 13 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 14 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 15 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 16 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, 17 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 18 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, 19 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 20 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, 21 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. 22 (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 23 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 24 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 25 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. 26 (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 27 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 28 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, 29 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 30 (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 31 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 32 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 33 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 34 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 35 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 36 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 37 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. 38 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 39 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 40 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, 41 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 42 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 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 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 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 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 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 (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. 49 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 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 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 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 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. EX-99.(C)(2) 12 STOCKHOLDERS AGREEMENT 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 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 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 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 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 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 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 (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 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 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 "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 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 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: 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 /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 ----------------------------------- 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 ----------------------------------- 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 ----------------------------------- 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 ----------------------------------- 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 ----------------------------------- 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 ----------------------------------- 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 ----------------------------------- 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 EX-99.(C)(3) 13 OPTION AGREEMENT 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). 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 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 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 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 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 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 7 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 8 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 9 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 10 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 or equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein. 12 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 EX-99.(C)(5) 14 GUARANTEE DATED 12/11/98 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 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 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 the Purchaser or any of its affiliates of any Shares pursuant to the Offer. 4 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 EX-99.(C)(5) 15 CONFIDENTIALITY AGREEMENT 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 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. 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. 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 -----END PRIVACY-ENHANCED MESSAGE-----