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
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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
Xxxx-Xxxxx-Xxxxxx 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
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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
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hereunder and to consummate the transactions contemplated hereby. The execution
and delivery of this Agreement and the consummation by the Company of the
transactions contemplated hereby have been duly and validly authorized by the
Board of Directors of the Company, and no other corporate proceeding on the part
of the Company is necessary to authorize this Agreement or for the Company to
consummate such transactions. This Agreement has been duly and validly executed
and delivered by the Company.
SECTION 2.2 No Conflict; Required Filings and Consents. The
execution and delivery of this Agreement by the Company do not, and the
performance of this Agreement by the Company will not, (i) conflict with or
violate the Restated Certificate of Incorporation or Bylaws of the Company, (ii)
conflict with or violate any law, rule, regulation, order, judgment or decree
applicable to the Company or by which the Company is bound or affected, (iii)
result in any breach of or constitute a default (or an event that with notice or
lapse of time or both would become a default) under, or give to others any
rights of termination, amendment, acceleration or cancellation of, or result in
the creation of a lien or encumbrance of any kind on any of the Shares pursuant
to, any agreement, contract, indenture, notice or instrument to which the
Company is a party or by which the Company is bound or affected, or (iv) except
for applicable requirements, if any, of the HSR Act, the Exchange Act and the
Securities Act of 1933, as amended (the "Securities Act"), require any filing by
the Company with, or any permit, authorization, consent or approval of, any
governmental or regulatory authority, domestic or foreign.
SECTION 2.3 Option Shares. The Company has taken all necessary
corporate action to authorize and reserve for issuance upon exercise of the
Option a total of 4,338,133 Shares, and the Shares, when issued and delivered by
the Company to Purchaser (or its designee) upon exercise of the Option will be
duly authorized, validly issued, fully paid and nonassessable shares of Company
Common Stock, and will be free and clear of any security interests, liens,
claims, pledges, charges or encumbrances of any kind.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to the Company as
follows:
SECTION 3.1 Authority Relative to this Agreement. Purchaser is
a corporation duly organized and validly existing under the laws of the State of
Delaware. Purchaser has all necessary power and authority (corporate and
otherwise) to execute and deliver this Agreement, to perform its obligations
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hereunder and to consummate the transactions contemplated hereby. The execution
and delivery of this Agreement and the consummation by Purchaser of the
transactions contemplated hereby have been duly authorized by the Board of
Directors of Purchaser, and no other corporate proceeding on the part of
Purchaser is necessary to authorize this Agreement or for Purchaser to
consummate such transactions. This Agreement has been duly executed and
delivered by Purchaser and, assuming its due authorization, execution and
delivery by the Company, constitutes a legal, valid and binding obligation of
Purchaser, enforceable against Purchaser in accordance with its terms.
SECTION 3.2 No Conflict, Required Filing and Consents. The
execution and delivery of this Agreement by Purchaser do not, and the
performance of this Agreement by Purchaser will not, (i) conflict with or
violate the organizational documents of Purchaser, (ii) conflict with or violate
any law, rule, regulation, order, judgment or decree applicable to Purchaser or
by which Purchaser is bound or affected, (iii) result in any breach of or
constitute a default (or an event that with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any agreement, contract, indenture,
note or instrument to which Purchaser is a party or by which it is bound or
affected or (iv) except for applicable requirements, if any, of the HSR Act, the
Exchange Act and the Securities Act, require any filing by Purchaser with, or
any permit, authorization, consent or approval of, any governmental or
regulatory authority, domestic or foreign, except in the case of each of the
foregoing clauses (i) through (iv) for any such conflicts, violations, breaches,
defaults, failures to file or obtain the consent or approval of, or other
occurrences that would not cause or create a material risk of non-performance or
delayed performance by Purchaser of its obligations under this Agreement.
SECTION 3.3 Investment Intent. The purchase of Shares pursuant
to this Agreement is for the account of Purchaser for the purpose of investment
and not with a view to or for sale in connection with any distribution thereof
within the meaning of the Securities Act and the rules and regulations
promulgated thereunder.
ARTICLE IV
ADDITIONAL AGREEMENTS
SECTION 4.1 Registration Rights; Listing of Shares. (a) Upon
the written request of Purchaser, the Company agrees to effect up to two
registrations under the Securities Act and any applicable state securities laws
covering any part or all of the Option (provided that only Shares will be
distributed to the public) and any part or all of the Shares purchased under
this
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Agreement, which registration shall be continued in effect for 90 days, unless,
in the written opinion of counsel to the Company, addressed to Purchaser and
reasonably satisfactory in form and substance to counsel for Purchaser, such
registration is not required for the sale and distribution of such Shares in the
manner contemplated by Purchaser. The registration effected under this paragraph
shall be effected at the Company's expense except for any underwriting
commissions. If Shares are offered in a firm commitment underwriting, the
Company will provide reasonable and customary indemnification to the
underwriters. In the event of any demand for registration pursuant to this
paragraph, the Company may delay the filing of the registration statement for a
period of up to 90 days if, in the good faith judgment of the Board of Directors
of the Company, such delay is necessary in order to avoid interference with a
planned material transaction involving the Company. In the event the Company
effects a registration of Company Common Stock for its own account or for any
other stockholder of the Company (other than on Form S-4 or Form S-8 or any
successor or similar form), it shall allow Purchaser to participate in such
registration; provided, however, that if the managing underwriters in such
offering advise the Company in writing that in their opinion the number of
shares of Company Common Stock requested to be included in such registration
exceeds the number which can be sold in such offering, the Company will include
the securities requested to be included therein pro rata among the holders
requesting to be included.
(b) The Company shall, at its expense, use its best efforts to
cause the Shares to be approved for listing on the Nasdaq National Market (the
"NNM") subject to notice of issuance, as promptly as practicable following the
date of this Agreement, and will provide prompt notice to the NNM of the
issuance of each Share pursuant to any exercise of the Option.
SECTION 4.2 Right to Sell Option. At any time that Purchaser
is entitled to exercise the Option pursuant to Section 1.2 hereof, Purchaser may
elect, in its sole discretion, to sell the Option to the Company in lieu of
exercising the Option. The Company shall be required to purchase the Option from
Purchaser on the third business day after the Purchaser gives the Company
written notice of such election for a cash price (payable by certified or
official bank check in same day funds to Purchaser or its designee) equal to the
product of the number of Shares then covered by the Option multiplied by the
excess over the Exercise Price of the greater of (x) the closing price of a
share of Company Common Stock on the NNM on the last trading day prior to the
date of such notice and (y) the highest price per share of Company Common Stock
paid or proposed to be paid to any holder thereof by any person in any Takeover
Proposal (as defined in the Merger Agreement). The Company shall give Purchaser
prompt written notice of the occurrence of any event set forth in Section 1.2
hereof and of any agreements or proposals relating to
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such an event, but the failure to give any such notice shall not limit
Purchaser's right to require the Company to purchase the Option pursuant to this
Section 4.2.
SECTION 4.3 Limitation on Profit. (a) Notwithstanding any
other provision of this Agreement, in no event shall Purchaser's Total Profit
(as defined below) exceed $14 million and, if it otherwise would exceed such
amount, Purchaser, at its sole election, shall either (a) reduce the number of
shares of Company Common Stock subject to the Option, (b) deliver to the Company
for cancellation Shares previously purchased by Purchaser, (c) pay cash to the
Company, or (d) any combination thereof, so that Purchaser's actually realized
Total Profit shall not exceed $14 million after taking into account the
foregoing actions.
(b) As used herein, the term "Total Profit" shall mean the
aggregate amount (before taxes) of the following: (i) (x) the net cash amounts
received by Purchaser pursuant to the sale of Shares (or any other securities
into which such Shares are converted or exchanged) to any unaffiliated party,
less (y) Purchaser's purchase price of such Shares, and (ii) any Notional Total
Profit (as defined below).
(c) As used herein, the term "Notional Total Profit" with
respect to the total number of Shares as to which Purchaser could propose to
exercise the Option shall be the Total Profit determined as of the date of such
proposal assuming that the Option were fully exercised on such date for such
number of Shares and assuming that such Shares, together with all other Shares
held by Purchaser and its affiliates as of such date, were sold for cash at the
closing market price for the Company Common Stock as of the close of business on
the preceding trading day (less customary brokerage commissions).
SECTION 4.4 Transfer of Shares; Restrictive Legend. Purchaser
agrees not to transfer or otherwise dispose of the Shares, or any interest
therein, without first providing to the Company an opinion of counsel for
Purchaser, reasonably satisfactory in form and substance to counsel for the
Company, to the effect that such transfer or disposition will not violate the
Securities Act or any applicable state law governing the offer and sale of
securities, and the rules and regulations thereunder. Purchaser further agrees
to the placement on the certificate(s) representing the Shares of the following
legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY BE
REOFFERED OR SOLD ONLY IF SO REGISTERED OR IF AN EXEMPTION FROM SUCH
REGISTRATION IS AVAILABLE."
provided that upon provision to the Company of any opinion of counsel for
Purchaser, reasonably satisfactory in form and
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substance to counsel for the Company, to the effect that such legend is no
longer required under the provisions of the Securities Act or applicable state
securities laws, the Company shall promptly cause new unlegended certificates
representing such Shares to be issued to Purchaser against surrender of such
legended certificates.
SECTION 4.5 Best Efforts. Subject to the terms and conditions
of this Agreement, Purchaser and the Company shall each use its best efforts to
take, or cause to be taken, all actions, and to do, or cause to be done, all
things necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated by this Agreement.
Each party shall promptly consult with the other and provide any necessary
information and material with respect to all filings made by such party with any
governmental or regulatory authority in connection with this Agreement or the
transactions contemplated hereby.
SECTION 4.6 Further Assurances. The Company shall perform such
further acts and execute such further documents and instruments as may
reasonably be required to vest in Purchaser the power to carry out the
provisions of this Agreement. If Purchaser shall exercise the Option, or any
portion thereof, in accordance with the terms of this Agreement, the Company
shall, without additional consideration, execute and deliver all such further
documents and instruments and take all such further action as Purchaser may
reasonably request for the purpose of effectively carrying out the transactions
contemplated by this Agreement.
SECTION 4.7 Survival. All of the representations, warranties
and covenants contained herein shall survive a Closing and shall be deemed to
have been made as of the date hereof and as of the date of each Closing.
ARTICLE V
MISCELLANEOUS
SECTION 5.1 Specific Performance. The parties hereto agree
that if any of the provisions of this Agreement were not performed in accordance
with their specific terms or were otherwise breached, irreparable damage would
occur, no adequate remedy at law would exist and damages would be difficult to
determine, and that the parties shall be entitled to specific performance of the
terms hereof, without any requirement for securing or posting any bond, in
addition to any other remedy at law or equity.
SECTION 5.2 Entire Agreement. This Agreement constitutes the
entire agreement of the parties hereto with
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respect to the subject matter hereof and supersedes all prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof.
SECTION 5.3 Amendment; Assignment. This Agreement may not be
amended except by an instrument in writing signed by the parties hereto and
specifically referencing this Agreement. No party to this Agreement may assign
any of its rights or obligations under this Agreement without the prior written
consent of the other party hereto, except that the rights and obligations of
Purchaser hereunder may, upon written notice to the Company prior to or promptly
following such action, be assigned by Purchaser to any of its corporate
affiliates, but no such transfer shall relieve Purchaser of its obligations
hereunder if such transferee does not perform such obligations.
SECTION 5.4 Severability. The provisions of this Agreement
shall be deemed severable and the invalidity or unenforceability of any
provisions hereof or thereof shall not affect the validity and enforceability of
the other provisions hereof. If any provision of this Agreement, or the
application thereof, to any person or entity or any circumstances is invalid or
unenforceable, (i) a suitable and equitable provision shall be substituted
therefor in order to carry out, so far as may be valid and enforceable, the
intent and purpose of such invalid and unenforceable provision and (ii) the
remainder of this Agreement and the application of such provision to other
persons, entities or circumstances shall not be affected by such invalidity or
unenforceability, nor shall such invalidity or unenforceability affect the
validity or enforceability of such provision, or the application thereof, in any
other jurisdiction.
SECTION 5.5 Governing Law. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of Delaware without
giving effect to the provisions thereof relating to conflicts of law.
SECTION 5.6 Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall be deemed to be an original, but
each of which together shall constitute one and the same document.
SECTION 5.7 Notices. All notices and other communications
given or made pursuant hereto shall be in writing and shall be deemed to have
been duly given or made (i) as of the date delivered or sent by facsimile if
delivered personally or by facsimile, (ii) on the first business day following
dispatch by an internationally recognized overnight courier service to a
domestic addressee, (iii) on the third business day following dispatch by an
internationally recognized overnight courier service to a international
addressee and (iv) on the tenth business day after deposit with a national mail
service, if mailed by registered or certified mail (postage prepaid, return
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receipt requested), in each case to the parties at the following addresses (or
at such other address for a party as shall be specified by like notice, except
that notices of changes of address shall be effective upon receipt):
(a) if to the Company, to
Cellular Communications International, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxxx, Esq.
Fax: (000) 000-0000
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
(b) if to Purchaser, to
Mannesmann AG
Am Wallgraben 125
D-70565 Stuttgart
Germany
Attn: Xx. Xxxx X. Kinzius
Fax: 00-000-000-0000
and
Olivetti S.p.A.
Xxx Xxxxxxxxxxx 000
00000 Xxxxx
Xxxxx
Attn: Xxxxx Xx Xxxxxxxxx
Fax: 00-0-0000-0000
with a copy to:
Xxxxxxx Xxxx & Xxxxxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxx Xxxxxxxx, Esq.
Fax: (000) 000-0000
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
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or equitable right, remedy or claim under or in respect of this Agreement or any
provision contained herein.
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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/ Xxxxxxx Xxxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Chairman of the Board of
Director, President,
Chief Executive Officer
KENSINGTON ACQUISITION SUB, INC.
By: /s/ Xxxxx Xx Xxxxxxxxx
-----------------------------
Name: Xxxxx Xx Xxxxxxxxx
Title: Co-President and
Co-Secretary
By: /s/ K. Kinzius
-----------------------------
Name: Dr. Xxxx Kinzius
Title: Co-President and
Co-Secretary
