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
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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., Xxxx Atlantic International, Inc., CCI Partnership, Inc.,
Shearson Xxxxxx Xxxxxx 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
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the Purchaser or any of its affiliates of any Shares pursuant to the Offer.
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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/ Xxxxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Chairman of the Board
of Directors, President
Chief Executive Officer
MANNESMANN AG
By: /s/ K. Kinzius
-----------------------------------
Name: Dr. Xxxx Kinzius
Title:
OLIVETTI S.p.A.
By: /s/ Xxxxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Chief Executive Officer
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Chairman
