Exhibit 1.1
4,000,000 American Depositary Shares
Each Representing One Share of Class A Common Stock
TRICOM, S.A.
UNDERWRITING AGREEMENT
April ___, 2000
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ & CO.
as Representatives of the
several Underwriters named in
Schedule I attached hereto
c/o Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇
Dear Sirs:
TRICOM, S.A., a corporation (SOCIEDAD ANONIMA) organized and
existing under the laws of the Dominican Republic (the "Company"), proposes,
subject to the terms and conditions stated herein, to issue and sell to the
several underwriters named in Schedule I hereto (the "Underwriters") an
aggregate of 4,000,000 American Depositary Shares (the "Firm ADSs"), each
representing one share of Class A common stock, par value RD$10 per share
(the "Common Stock") and, for the sole purpose of covering over-allotments in
connection with the sale of the Firm ADSs, at the option of the Underwriters, up
to an additional 600,000 American Depositary Shares (the "Additional ADSs"). The
Firm ADSs and any Additional ADSs purchased by the Underwriters are referred to
herein as the "ADSs." The ADSs are more fully described in the Registration
Statement referred to below.
The Company has entered into a deposit agreement, dated as of
May 4, 1998 (the "Deposit Agreement"), among the Company, The Bank of New York,
as depositary (the "Depositary"), and holders from time to time of American
depositary receipts (the "ADRs") evidencing the American Depositary Shares
issued by the Depositary. The Common Stock in respect of the ADSs to be
delivered on each applicable Closing Date (as defined in Section 2 hereof) are
to be deposited by the Company with the Depositary, or nominees designated by
the Depositary, pursuant to the Deposit Agreement on or prior to such Closing
Date against issuance of ADRs evidencing such ADSs.
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to, and agrees with, the Underwriters that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form F-3 (No.
333-32838), in the form heretofore delivered to the Underwriters, which has
been declared effective by the Commission in such form, and may have filed an
amendment or amendments thereto, for the registration of the ADSs under the
Securities Act of 1933, as amended (the "Securities Act"). Such registration
statement, including the prospectus, financial statements and schedules,
exhibits and all other documents filed as a part thereof, as amended at the
time of effectiveness of the registration statement, including any
information deemed to be a part thereof as of the time of effectiveness
pursuant to paragraph (b) of Rule 430 or Rule 434 of the Rules and
Regulations of the Commission under the Securities Act (the "Regulations"),
is herein called the "Registration Statement" and the prospectus, in the form
first filed with the Commission pursuant to Rule 424(b) of the Regulations or
filed as part of the Registration Statement at the time of effectiveness if
no Rule 424(b) or Rule 434 filing is required, is herein called the
"Prospectus". The term "preliminary prospectus" as used herein means a
preliminary prospectus as described in Rule 430 of the Regulations.
(b) At the time of the effectiveness of the Registration
Statement or the effectiveness of any post-effective amendment to the
Registration Statement, when the Prospectus is first filed with the Commission
pursuant to Rule 424(b) or Rule 434 of the Regulations, when any supplement to
or amendment of the Prospectus is filed with the Commission, when any document
filed under the U.S. Securities Exchange Act of 1934, as amended (the "Exchange
Act") is filed and at the Closing Date and the Additional Closing Date, if any,
(as hereinafter respectively defined), the Registration Statement and the
Prospectus and any amendments thereof and supplements thereto complied or will
comply in all material respects with the applicable provisions of the Securities
Act and the Regulations and does not or will not contain an untrue statement of
a material fact and does not or will not omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein (i) in the case of the Registration Statement and any amendments or
supplements thereto, not misleading and (ii) in the case of the Prospectus and
any amendments or supplements thereto, in light of the circumstances under which
they were made, not misleading. When any related preliminary prospectus was
first filed with the Commission (whether filed as part of the registration
statement for the registration of the Shares or any amendment thereto or
pursuant to Rule 424(a) of the Regulations) and when any amendment thereof or
supplement thereto was first filed with the Commission, such preliminary
prospectus and any amendments thereof and supplements thereto complied in all
material respects with the applicable provisions of the Securities Act and the
Regulations and did not contain an untrue statement of a material fact and did
not 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. There are no other facts in relation to
the Company or the laws of the Dominican Republic the omission of which would,
in the context of the offering of the ADSs, make any statement in the
Prospectus, any preliminary prospectus, or the Registration Statement materially
misleading, untrue or inaccurate. All reasonable inquiries have been made to
ascertain such facts and to
2
verify the accuracy of all such information and statements; and any opinions
and intentions expressed by the Company in the Prospectus, any preliminary
prospectus, or the Registration Statement with respect to the Company and the
laws of the Dominican Republic are honestly held and are based on reasonable
assumptions by the Company (including, as set forth in the Prospectus, any
preliminary prospectus, or the Registration Statement, opinions of counsel to
the Company and reports or other information of agencies or other
instrumentalities of the Dominican Republic, the United Nations or the United
States, which opinions and reports have not been independently verified by the
Company). No representation and warranty is made in this subsection (b),
however, with respect to any information contained in or omitted from the
Registration Statement or the Prospectus or any related preliminary prospectus
or any amendment thereof or supplement thereto in reliance upon and in
conformity with information furnished in writing to the Company by or on behalf
of any Underwriter through you as herein stated expressly for use in connection
with the preparation thereof. If Rule 434 is used, the Company will comply with
the requirements of Rule 434. No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that purpose has
been initiated or threatened by the Commission.
(c) KPMG (a member firm of KPMG International in the Dominican
Republic), who have certified the financial statements, the notes thereto, and
supporting schedules included in the Registration Statement, are independent
public accountants as required by the Securities Act and the Regulations. The
financial statements, including the notes thereto, and supporting schedules
included in the Registration Statement and the Prospectus present fairly, the
consolidated financial position and results of operations of the Company at the
dates and for the periods indicated. Such financial statements have been
prepared in accordance with generally accepted accounting principles in the
United States ("GAAP") applied on a consistent basis throughout the periods
presented and comply with the provisions of the Securities Act and the
Regulations. The other financial and statistical information and data included
in the Prospectus are accurately presented in all material respects and prepared
on a basis consistent with the historical consolidated financial statements
included in the Prospectus and the books and records of the Company and its
subsidiaries.
(d) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as set forth in
the Registration Statement and the Prospectus, (i) there has been no material
adverse change or any development involving a prospective material adverse
change in the business, prospects, properties, operations, condition (financial
or other) or results of operations of the Company and its subsidiaries taken as
a whole, whether or not arising from transactions in the ordinary course of
business, (ii) since the date of the latest balance sheet presented in the
Registration Statement and the Prospectus, neither the Company nor any of its
subsidiaries has incurred or undertaken any liabilities or obligations, direct
or contingent, which are material to the Company and its subsidiaries taken as a
whole, except for liabilities or obligations which are reflected in the
Registration Statement and the Prospectus, and (iii) there has been no dividend
or distribution of any kind declared, paid or made by the Company on any class
of capital stock of the Company.
3
(e) The Company has all requisite power (corporate or other) and
authority to execute, deliver and perform its obligations under each of this
Agreement and the Deposit Agreement (collectively, the "Transaction Documents")
to which it is a party and to consummate the transactions contemplated hereby
and thereby, including, without limitation, the power (corporate or other) and
authority to issue, sell and deliver the ADSs as provided herein.
(f) Any contract, agreement, instrument, lease or license
required to be described in the Prospectus has been properly described therein.
Any contract, agreement, instrument, lease or license required to be filed as an
exhibit to the Registration Statement has been filed with the Commission as an
exhibit or has been incorporated by reference into the Registration Statement.
(g) This Agreement and the transactions contemplated herein have
been duly and validly authorized, executed and delivered by the Company and is
the legal, valid and binding agreement of the Company, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization or similar laws affecting the rights of
creditors generally and subject to general principles of equity.
(h) The Deposit Agreement has been duly and validly authorized,
executed and delivered by the Company and constitutes a valid and legally
binding obligation of the Company, enforceable against it in accordance with its
terms; upon issuance by the Depositary of ADRs evidencing ADSs against the
deposit of Common Stock in respect thereof in accordance with the provisions of
the Deposit Agreement, such ADRs will be duly and validly issued and the persons
in whose names the ADRs are registered will be entitled to the rights specified
therein and in the Deposit Agreement; and the Deposit Agreement and the ADRs
evidencing ADSs conform in all material respects to the descriptions thereof
contained in the Prospectus.
(i) Under current Dominican law, no stamp or other issuance or
transfer taxes or duties and no capital gains, income, withholding or other
taxes are payable by or on behalf of the Underwriters to the Dominican Republic
or any political subdivision or taxing authority thereof or therein in
connection with (i) the authorization, issuance, sale and delivery of the Common
Stock or the ADSs by the Company in the manner contemplated by this Agreement,
(ii) the deposit with the Depositary of Common Stock against the issuance of
ADRs evidencing the ADSs in accordance with the terms of the Deposit Agreement,
(iii) the sale and delivery by the Company of the ADSs to or for the respective
accounts of the Underwriters, (iv) the sale and delivery outside the Dominican
Republic by the Underwriters of the ADSs to the initial purchasers thereof or
(vi) the consummation of any other transaction contemplated by this Agreement;
PROVIDED, HOWEVER, that no representation is made in respect of any tax, duty or
governmental charge that would not have been imposed but for the existence of
any present or former connection between any Underwriter and the relevant taxing
jurisdiction, other than by entering into or performing this Agreement.
(j) The Common Stock may be issued by the Company without any
restriction and freely delivered to the Depositary against issuance of ADRs
evidencing ADSs.
4
Upon the deposit of the Common Stock underlying the ADSs with the Depositary
pursuant to the Deposit Agreement, all right, title and interest in such Common
Stock, subject to the Deposit Agreement, will be transferred to the Depositary
or its nominees, as the case may be, free and clear of all liens, security
interests, pledges, charges, encumbrances, shareholders' agreements, voting
trusts, restrictions on transfer or adverse claims, other than any that may
result from actions by the Underwriters and other than claims of persons
purchasing through the Underwriters; and upon the sale and delivery of the ADSs
to be purchased under this Agreement to the Underwriters, and payment therefor
pursuant to such agreements, good and valid title to such ADSs, free and clear
of all liens, security interests, pledges, charges, encumbrances, shareholders'
agreements, voting trusts, restrictions on transfer or adverse claims, except as
aforesaid, will be transferred to the Underwriters; and there are no
restrictions on subsequent transfers of the ADSs or on transfers of the Common
Stock under the laws of the Dominican Republic and the United States except as
described in the Prospectus under "Description of Capital Stock" and
"Description of American Depositary Receipts;" and, with such exceptions as are
not material, individually or in the aggregate, to the Company and its
subsidiaries taken as a whole.
(k) The execution, delivery, and performance of this Agreement
and the consummation of the transactions contemplated hereby do not and will not
(i) conflict with or result in a breach of any of the terms and provisions of,
or constitute a default (or an event which with notice or lapse of time, or
both, would constitute a default) under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the Company or
any of its subsidiaries pursuant to any bond, indenture, note, mortgage, deed of
trust, credit agreement, or any other agreement, instrument, franchise, license
or permit to which the Company or any of its subsidiaries is a party or by which
any of such corporations or their respective properties or assets may be bound
or (ii) violate or conflict with any provision of the certificate of
incorporation , by-laws (ESTATUTOS SOCIALES) or any other organizational
documents of the Company or any of its subsidiaries or any judgment, decree,
order, statute, rule or regulation of any court or any public, governmental or
regulatory agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their respective properties or assets (whether owned or
leased). No consent, approval, authorization, order, registration, filing,
qualification, license or permit of or with any court or any public,
governmental or regulatory agency or body having jurisdiction over the Company
or any of its subsidiaries or any of their respective properties or assets is
required for the execution, delivery and performance of this Agreement or the
consummation of the transactions contemplated hereby, including the valid
authorization, issuance, sale and delivery of the ADSs to be issued, sold and
delivered by the Company hereunder, except the registration under the Securities
Act of the ADSs and such consents, approvals, authorizations, orders,
registrations, filings, qualifications, licenses and permits as may be required
under state securities or Blue Sky laws in connection with the purchase and
distribution of the ADSs by the Underwriters.
(l) All of the outstanding shares of Common Stock and Class B
stock (together the "Company Stock") are duly and validly authorized and issued,
fully paid and nonassessable and were not issued and are not now in violation of
or subject to any preemptive rights. The ADSs, when issued, delivered and sold
in accordance with this Agreement, will be
5
duly and validly issued and outstanding, fully paid and nonassessable, and will
not have been issued in violation of or be subject to any preemptive rights. The
Company had, at December 31, 1999, an authorized and outstanding capitalization
as set forth in the Registration Statement and the Prospectus, and except as has
otherwise been previously disclosed to you in writing, there has been no change
thereto between December 31, 1999 and the date hereof. The Company Stock, Firm
ADSs and Additional ADSs conform to and entitle the holders thereof to the
rights set forth in, the descriptions thereof contained in the Registration
Statement and Prospectus. Prior to the sale of the ADSs, the outstanding capital
stock of the Company is 46.2% owned by Oleander Holdings, Inc., a wholly owned
subsidiary of GFN Corporation Ltd., and 30.8% owned by Motorola, Inc., free and
clear of any security interest, claim, lien, limitation on voting rights or
other encumbrance of any kind, except as disclosed in the Prospectus. All of the
issued and outstanding shares of capital stock of each of the Company's
subsidiaries is owned by the Company (except for shares of GFN Comunicaciones,
S.A. owned by other persons in order to satisfy requirements under the laws of
the Dominican Republic with respect to the minimum number of shareholders), free
and clear of any security interest, claim, lien, limitation on voting rights or
other encumbrance of any kind and except as described in the Prospectus.
(m) Each of the Company and its subsidiaries has been duly
organized and is validly existing as a corporation (SOCIEDAD ANONIMA) in good
standing under the laws of its jurisdiction of incorporation. Each of the
Company and its subsidiaries is duly qualified and in good standing as a foreign
corporation in each jurisdiction in which the character or location of its
properties (owned, leased or licensed) or the nature or conduct of its business
makes such qualification necessary, except for those failures to be so qualified
or in good standing which will not in the aggregate have a Material Adverse
Effect (as defined below) on the Company and its subsidiaries taken as a whole.
Each of the Company and its subsidiaries has all requisite power and authority,
owns, possesses or has obtained all consents, approvals, concessions, including
the Concession Agreement (defined below), authorizations, orders, registrations,
qualifications, licenses and permits of and from all United States, Dominican,
Panamanian public, regulatory or governmental agencies and bodies (including the
Federal Communications Commission and the regulatory agencies and bodies of the
relevant states of the United States), and all courts and tribunals
(collectively "Permits") necessary to own, lease and operate its properties and
conduct its business as now being conducted and as described in the Registration
Statement and the Prospectus, except where the failure to fulfill or perform
such obligations would not have a Material Adverse Effect, and no event has
occurred which allows, or after notice or lapse of time would allow, and the
Company and its subsidiaries have not received any notice relating to, or has
any reason to believe that any such governmental body or agency is considering
the revocation, limitation, suspension, modification or termination thereof or
results in any other material impairment of the rights of the holder, of any
Permit. All Permits are, and after giving effect to the transactions
contemplated by the Transaction Documents will be, valid and in full force and
effect, and the Company and its subsidiaries are in compliance in all material
respects with the terms and conditions of all such Permits and with the rules
and regulations of the regulatory authorities having jurisdiction with respect
thereto except where the invalidity, failure to be in effect or comply would not
have a Material Adverse Effect. Except as disclosed in the Registration
Statement and the Prospectus, the Permits contain no restrictions that are
materially burdensome to the Company and its subsidiaries.
6
(n) Under current applicable Dominican laws and regulations, all
dividends and other distributions declared or to be declared and payable on the
Common Stock and the ADSs will be paid in Dominican pesos to the Depositary, and
such Dominican pesos may be converted into foreign currency that may be freely
transferred outside of the Dominican Republic, and all such dividends and other
distributions made to holders of ADSs who are non-residents of the Dominican
Republic are not subject to Dominican Republic withholding or other taxes under
Dominican laws and regulations and are otherwise free and clear of any other
tax, duty, withholding or deduction in the Dominican Republic and do not require
the obtaining of any governmental authorization in the Dominican Republic, in
each case except as disclosed in the Prospectus.
(o) Except as described in the Prospectus, there is (i) no
action, suit, investigation or proceeding before or by any court, arbitrator or
governmental agency, body or official, United States, Dominican or foreign, now
pending or, to the best knowledge of the Company, threatened or contemplated to
which the Company or any of its subsidiaries is or may be a party or to which
the business or property of the Company or any of its subsidiaries, is or may be
subject, (ii) no statute, rule, regulation or order that has been enacted,
adopted or issued by any governmental agency, United States, Dominican or
foreign, or, to the Company's knowledge, that has been proposed by any
governmental body, United States, Dominican or foreign, and (iii) no injunction,
restraining order or order of any nature by a United States federal or state
court or Dominican or foreign court of competent jurisdiction to which the
Company or any of its subsidiaries is or may be subject or to which the
business, assets, or property of the Company and its subsidiaries is or may be
subject, (A) other than as set forth in the Prospectus, or (B) that could
reasonably be expected to (1) result, individually or in the aggregate, in a
material adverse effect on the properties, results of operations, condition
(financial or otherwise), business affairs or business prospects of the Company
and its subsidiaries, (2) interfere with or adversely affect the issuance or the
ability of the Underwriters to effect the distribution of the ADSs pursuant to
this Agreement or (3) in any manner draw into question the validity of this
Agreement or the other Transaction Documents (any of the events set forth in
clauses (1), (2) or (3), a "Material Adverse Effect").
(p) The Concession Contract for the Operation of
Telecommunication Services in the Dominican Republic, dated February 23, 1996
(the "Concession Agreement"), between the Company and the government of the
Dominican Republic (the "Dominican State") has been duly and validly authorized,
executed, and delivered by the Company and the Dominican State, except for
provisions imposing certain expenses in lieu of income taxes (the "Expense in
Lieu of Income Tax"), which have not been submitted to the Dominican National
Congress for approval as required under the Dominican Constitution, as described
in the Prospectus, and, except for those provisions concerning the Expense in
Lieu of Income Tax, is the legal, valid and binding obligation of the Company
and the Dominican State, enforceable against the Company and the Dominican State
in accordance with its terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization or similar laws affecting the rights of
creditors generally and subject to general principles of equity (and to
governmental actions affecting the rights of creditors generally). The
Concession Agreement conforms in all material respects to the description
thereof included in the Prospectus.
7
(q) Neither the Company nor any of its respective subsidiaries or
affiliates or any person acting on its or their behalf, has taken, nor will
take, directly or indirectly, any action designed to cause or result in, or
which constitutes or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of the ADSs to facilitate the sale or
resale of the ADSs in violation of the Exchange Act, whether such action is
taken in the United States, the Dominican Republic or elsewhere.
(r) Except as described in the Prospectus, no holder of
securities of the Company has any rights to the registration of securities of
the Company because of the filing of the Registration Statement, or otherwise in
connection with the sale of the ADSs contemplated hereby, and the rights so
described in the Registration Statement have been waived by the holders thereof.
(s) Except as disclosed in the Prospectus, there are not
currently any outstanding subscriptions, rights, warrants, calls, commitments of
sale or options to acquire, or instruments convertible into or exchangeable for,
any capital stock or other equity interest of the Company or any of its
subsidiaries.
(t) The Company is not and after giving effect to the Transaction
Documents will not be, an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
(u) All material tax returns required to be filed by the
Company and its Subsidiaries in all United States, Dominican Republic,
Panamanian and foreign jurisdictions have been so filed. All taxes, including
withholding taxes, penalties and interest, assessments, fees and other
charges due or claimed to be due from such entities or that are due and
payable have been paid, other than those being contested in good faith and
for which adequate reserves have been provided for or those currently payable
without penalty or interest. To the knowledge of the Company, there are no
material proposed additional tax assessments against the Company, any of its
subsidiaries or any of their assets of properties.
(v) Each Transaction Document and any other document required to
be furnished hereunder or thereunder is in proper legal form under the laws of
the Dominican Republic for the enforcement thereof against the Company in the
Dominican Republic without further action (except that an official Spanish
translation of any agreement or instrument is required to bring an action
thereon in the courts of the Dominican Republic); and to ensure the legality,
validity, enforceability or admissibility in evidence in the Dominican Republic
of a Transaction Document, or any other document required to be furnished
hereunder or thereunder, upon the institution of a judicial proceeding brought
to enforce the same in the Dominican Republic, it is not necessary that any
Transaction Document or related document be submitted to, filed or recorded with
any court or governmental agency or body in the Dominican Republic or that any
tax, imposition or charge be paid on or in respect of any Transaction Document
or related document.
(w) None of the Company or any of its subsidiaries or any of
their properties has any immunity as an agency or authority of a sovereign
entity or otherwise from
8
jurisdiction or suit of any court of the United States, the Dominican Republic
or Panama or from any legal process or remedy (whether through service, notice,
attachment prior to judgment, attachment in aid of execution, execution or
otherwise).
(x) It is not necessary under the laws of the Dominican Republic
that any of the holders of ADSs or Common Stock, the Underwriters or the
Depositary be licensed, qualified or entitled to conduct business in the
Dominican Republic by reason of the execution, delivery, performance or
enforcement of any of the Transaction Documents, or any other document
contemplated hereunder.
(y) The indemnification and contribution provisions set forth in
Sections 7 and 8 of this Agreement do not violate Dominican law or public
policy.
(z) The ADSs are approved for listing, subject to official notice
of issuance, on the New York Stock Exchange.
2. PURCHASE, SALE AND DELIVERY OF THE ADSs.
(a) On the basis of the representations, warranties, covenants
and agreements herein contained, but subject to the terms and conditions herein
set forth, the Company agrees to sell to the Underwriters and the Underwriters,
severally and not jointly, agree to purchase from the Company, at a purchase
price per share of $_______, the number of Firm ADSs set forth opposite the
respective names of the Underwriters in Schedule I hereto plus any additional
number of ADSs which such Underwriter may become obligated to purchase pursuant
to the provisions of Section 9 hereof.
(b) Payment of the purchase price for, and delivery of
certificates for, the Firm ADSs shall be made at the office of ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, 1001 Pennsylvania Avenue, Washington, D.C., or at such other place
as shall be agreed upon by you and the Company, at 10:00 A.M. on the third or
fourth business day (as permitted under Rule 15c6-1 under the Exchange Act)
(unless postponed in accordance with the provisions of Section 9 hereof)
following the date of the effectiveness of the Registration Statement (or, if
the Company has elected to rely upon Rule 430A of the Regulations, the third
or fourth business day (as permitted under Rule 15c6-1 under the Exchange
Act) after the determination of the initial public offering price of the
ADSs), or such other time not later than ten business days after such date as
shall be agreed upon by you and the Company (such time and date of payment
and delivery being herein called the "Closing Date"). Payment shall be made
to the Company by wire transfer or certified or official bank check or checks
drawn in Federal funds or similar immediately available funds, against
delivery
9
to you for the respective accounts of the Underwriters of the certificates for
the Firm ADSs to be purchased by them. Certificates for the ADSs shall be
registered in such name or names and in such authorized denominations as you may
request in writing at least two full business days prior to the Closing Date.
The Company will permit you to examine and package such certificates for
delivery at least one full business day prior to the Closing Date. For purposes
of this Section 2, the term "business day" shall mean any day except Saturday,
Sunday and any day which shall be a legal holiday or a day on which banking
institutions are authorized or required by law or government action to close in
the State of New York.
(c) In addition, the Company hereby grants to the Underwriters
the option to purchase up to 600,000 Additional ADSs at the same purchase price
per share to be paid by the Underwriters to the Company for the Firm ADSs as set
forth in this Section 2, for the sole purpose of covering over-allotments in the
sale of Firm ADSs by the Underwriters. This option may be exercised at any time,
in whole or in part, on or before the thirtieth day following the date of the
Prospectus, by written notice by you to the Company. Such notice shall set forth
the aggregate number of Additional ADSs as to which the option is being
exercised and the date and time, as reasonably determined by you, when the
Additional ADSs are to be delivered (such date and time being herein sometimes
referred to as the "Additional Closing Date"); PROVIDED, HOWEVER, that the
Additional Closing Date shall not be earlier than the Closing Date or earlier
than the second full business day after the date on which the option shall have
been exercised nor later than the eighth full business day after the date on
which the option shall have been exercised (unless such time and date are
postponed in accordance with the provisions of Section 9 hereof). Certificates
for the Additional ADSs shall be registered in such name or names and in such
authorized denominations as you may request in writing at least two full
business days prior to the Additional Closing Date. The Company will permit you
to examine and package such certificates for delivery at least one full business
day prior to the Additional Closing Date.
The number of Additional ADSs to be sold to each Underwriter shall be
the number which bears the same ratio to the aggregate number of Additional ADSs
being purchased as the number of Firm ADSs set forth opposite the name of such
Underwriter in Schedule I hereto (or such number increased as set forth in
Section 9 hereof) bears to 4,000,000, subject, however, to such adjustments to
eliminate any fractional shares as you in your sole discretion shall make.
Payment for the Additional ADSs shall be made to the Company by wire
transfer or certified or official bank check or checks drawn in Federal funds or
similar immediately available funds, at the offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, or such
other location as may be mutually acceptable, upon delivery of the certificates
for the Additional ADSs to you for the respective accounts of the Underwriters.
3. OFFERING. Upon your authorization of the release of the Firm ADSs,
the Underwriters propose to offer the ADSs for sale to the public upon the terms
set forth in the Prospectus.
10
4. COVENANTS OF THE COMPANY. The Company covenants and agrees with the
Underwriters that:
(a) If the Registration Statement has not yet been declared
effective the Company will use its best efforts to cause the Registration
Statement and any amendments thereto to become effective as promptly as
possible, and if Rule 430A is used or the filing of the Prospectus is otherwise
required under Rule 424(b) or Rule 434, the Company will file the Prospectus
(properly completed if Rule 430A has been used) pursuant to Rule 424(b) or Rule
434 within the prescribed time period and will provide evidence satisfactory to
you of such timely filing. If the Company elects to rely on Rule 434, the
Company will prepare and file a term sheet that complies with the requirements
of Rule 434.
The Company will notify you immediately (and, if requested by
you, will confirm such notice in writing) (i) when the Registration Statement
and any amendments thereto become effective, (ii) of any request by the
Commission for any amendment of or supplement to the Registration Statement or
the Prospectus or for any additional information, (iii) of the mailing or the
delivery to the Commission for filing of any amendment of or supplement to the
Registration Statement or the Prospectus, (iv) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration Statement or
any post-effective amendment thereto or of the initiation, or the threatening,
of any proceedings therefor, (v) of the receipt of any comments from the
Commission, and (vi) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the ADSs for sale in any
jurisdiction or the initiation or threatening of any proceeding for that
purpose. If the Commission shall propose or enter a stop order at any time, the
Company will make every reasonable effort to prevent the issuance of any such
stop order and, if issued, to obtain the lifting of such order as soon as
possible. The Company will not file any amendment to the Registration Statement
or any amendment of or supplement to the Prospectus (including the prospectus
required to be filed pursuant to Rule 424(b)or Rule 434) that differs from the
prospectus on file at the time of the effectiveness of the Registration
Statement before or after the effective date of the Registration Statement to
which you shall reasonably object in writing after being timely furnished in
advance a copy thereof.
(b) If at any time when a prospectus relating to the ADSs is
required to be delivered under the Securities Act any event shall have occurred
as a result of which the Prospectus as then amended or supplemented would, in
the judgment of the Underwriters or the Company include an untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if it shall be necessary at any
time to amend or supplement the Prospectus or Registration Statement to comply
with the Securities Act or the Regulations, the Company will notify you promptly
and prepare and file with the Commission an appropriate amendment or supplement
(in form and substance satisfactory to you) which will correct such statement or
omission and will use its best efforts to have any amendment to the Registration
Statement declared effective as soon as possible.
11
(c) The Company will promptly deliver to you one manually signed
copy of the Registration Statement, including exhibits and all amendments
thereto, and the Company will promptly deliver to each of the Underwriters such
number of copies of any preliminary prospectus, the Prospectus, the Registration
Statement, and all amendments of and supplements to such documents, in such
quantities as you may from time to time reasonably request and, if the delivery
of a prospectus is required at any time prior to the expiration of nine months
after the Effective Date of the Registration Statement and if at such time any
events shall have occurred as a result of which the Prospectus as then amended
and supplemented would include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made when such Prospectus is
delivered, not misleading, or, if for any other reason it shall be necessary
during such same period to amend or supplement the Prospectus in order to comply
with the Securities Act, to notify the Underwriters and, upon the Underwriters'
request, to prepare and furnish without charge to each Underwriter and to any
dealer in securities as many copies as the Underwriters may from time to time
reasonably request of an amended Prospectus or a supplement to the Prospectus
which will correct such statement or omission or effect such compliance, and in
case any Underwriter is required to deliver a prospectus in connection with
sales of any of the ADSs at any time nine months or more after the Effective
Date of the Registration Statement if such information contained therein is not
of a date more than sixteen(16) months old, upon the Underwriters' request but
at the expense of such Underwriter, to prepare and deliver to such Underwriter
as many copies as the Underwriters may request of an amended or supplemented
Prospectus complying with Section 10(a)(3) of the Securities Act.
(d) The Company will endeavor in good faith, in cooperation with
you, at or prior to the time of effectiveness of the Registration Statement, to
qualify the ADSs for offering and sale under the securities laws relating to the
offering or sale of the ADSs of such jurisdictions as you may designate and to
maintain such qualification in effect for so long as required for the
distribution thereof; except that in no event shall the Company be obligated in
connection therewith to qualify as a foreign corporation or to execute a general
consent to service of process.
(e) The Company will make generally available (within the meaning
of Section 11(a) of the Securities Act) to its security holders and to you as
soon as practicable, but not later than 45 days after the end of its fiscal
quarter in which the first anniversary date of the effective date of the
Registration Statement occurs, an earning statement (in form complying with the
provisions of Rule 158 of the Regulations) covering a period of at least twelve
consecutive months beginning after the effective date of the Registration
Statement.
(f) During the period of 180 days from the date of the
Prospectus (the "Lock-up Period"), the Company, will not, directly or
indirectly, without the prior written consent of Bear, ▇▇▇▇▇▇▇ & Co. Inc.,
issue, sell, offer or agree to sell, grant any option for the sale of,
pledge, make any short sale or maintain any short position, establish or
maintain an open "put equivalent position" (within the meaning of Rule
16-a-1(h) under the Exchange Act), enter into any swap, derivative
transaction or other arrangement that transfers to another, in whole or in
part, any of the economic consequences of ownership of the Common Stock
(whether any such transaction is to
12
be settled by delivery of Common Stock, ADSs, other securities, cash or other
consideration) or otherwise dispose (or publicly announce its intention to do
any of the foregoing) of, directly or indirectly, any Common Stock, ADSs or
other capital stock of the Company or any securities convertible into,
exercisable for or exchangeable for Common Stock, ADSs or other capital stock
of the Company that the Company currently beneficially owns (within the
meaning of Rule 13d-3 under the Exchange Act), directly or indirectly, or may
beneficially own, directly or indirectly in the future, other than the
Company's sale of Common Stock and the related ADSs hereunder the Company's
issuance of Common Stock upon the exercise of presently outstanding stock
options or warrants or the grant by the Company of additional employee,
officer, director or consultant stock options pursuant to stock option plans
as in effect on the date hereof and the Company will obtain the undertaking
of each of its officers and directors and such of its shareholders as have
been heretofore designated by you and listed on Schedule II attached hereto
not to engage in any of the aforementioned transactions on their own behalf,
except as permitted by the terms of the lock-up agreements agreed to by you
and your counsel. Nothwithstanding the preceding sentence, the Company may
also issue shares of Common Stock in connection with the acquisitions of
other businesses, regardless of whether completed as a merger or a purchase
of stock or assets, if the terms of these issuances provide that any
recipient of such shares of Common Stock will not, directly or indirectly,
without your prior written consent, offer, sell, contract to sell, swap, make
any short sale, pledge, establish an open "put equivalent position" within
the meaning of Rule 16a-1(h) under the Exchange Act, grant any option to
purchase or otherwise dispose (or publicly announce such recipient's
intention to do any of the foregoing) of any shares of Common Stock or other
capital stock of the Company, or any securities convertible into, or
exercisable or exchangeable for, Common Stock or any other capital stock of
the Company prior to the expiration of the Lock-up Period.
(g) During a period of three years from the effective date of the
Registration Statement, the Company will furnish to you copies of (i) all
reports to its shareholders; and (ii) all reports, financial statements and
proxy or information statements filed by the Company with the Commission or any
national securities exchange.
(h) The Company will apply the proceeds from the sale of the ADSs
as set forth under "Use of Proceeds" in the Prospectus.
(i) The Company will use its reasonable best efforts to ensure
the listing of the ADSs on the New York Stock Exchange and to arrange for the
ADSs to be accepted for settlement through the facilities of The Depository
Trust Company ("DTC") in accordance with the Deposit Agreement.
(j) The Company will comply with the Deposit Agreement so that
ADRs evidencing ADSs will be executed by the Depositary and delivered to the
Underwriters at each applicable Closing Date.
(k) The Company will not (and will not cause its affiliates to)
take, directly or indirectly, any action which is designed to or which
constitutes or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the ADSs and neither the Company nor any of its
affiliated purchasers (as defined in Rule 100 of Regulation M under the Exchange
Act), will take any action prohibited by Regulation M under the Exchange Act.
5. PAYMENT OF EXPENSES. Whether or not the transactions contemplated
in this Agreement are consummated or this Agreement is terminated, the Company
hereby agrees to pay all costs and expenses incident to the performance of the
obligations of the Company hereunder, including those in connection with (i)
preparing, printing, duplicating, filing and distributing the Registration
Statement, as originally filed and all amendments thereof (including all
exhibits thereto), any preliminary prospectus, the Prospectus and any amendments
or supplements thereto (including, without limitation, fees and expenses of the
Company's accountants and counsel), the underwriting documents (including this
Agreement) and all other documents related to the public offering of the ADSs
(including those supplied to the Underwriters in quantities as hereinabove
stated), (ii) the issuance, transfer and delivery of the ADSs to the
Underwriters, including any transfer or other taxes payable thereon, (iii) the
13
qualification of the ADSs under state or foreign securities or Blue Sky laws,
including the costs of printing and mailing a preliminary and final "Blue Sky
Survey" and the fees of counsel for the Underwriters and such counsel's
disbursements in relation thereto, (iv) filing fees of the Commission and the
National Association of Securities Dealers, Inc., (v) all expenses and listing
fees in connection with the listing of the ADSs on the New York Stock Exchange;
(vi) the cost of preparing certificates representing the Common Stock and ADR
certificates evidencing the ADSs, (vii) the costs, expenses and taxes, if any,
of depositing the Common Stock under the Deposit Agreement against the initial
issuance of ADRs evidencing the ADSs, and (viii) the costs and charges
(including fees and disbursements of counsel) of the Depositary, the transfer
agent and registrar.
6. CONDITIONS OF UNDERWRITERs' Obligations. The obligations of the
Underwriters to purchase and pay for the Firm ADSs and the Additional ADSs, as
provided herein, shall be subject to the truth and accuracy of the
representations and warranties of the Company herein contained, as of the date
hereof and as of the Closing Date (for purposes of this Section 6 "Closing Date"
shall refer to the Closing Date for the Firm ADSs and any Additional Closing
Date, if different, for the Additional ADSs), to the absence of any misstatement
or omission from any certificates, opinions, written statements or letters
furnished to you or to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to
this Section 6, to the performance by the Company of its obligations hereunder,
and to the following additional conditions:
(a) The Registration Statement shall have become effective not
later than 5:30 P.M., New York time, on the date of this Agreement, or at such
later time and date as shall have been consented to in writing by you; if the
Company shall have elected to rely upon Rule 430A or Rule 434 of the
Regulations, the Prospectus shall have been filed with the Commission in a
timely fashion in accordance with Section 4(a) hereof; and, at or prior to the
Closing Date no stop order suspending the effectiveness of the Registration
Statement or any post-effective amendment thereof shall have been issued and no
proceedings therefor shall have been initiated or threatened by the Commission.
(b) At the Closing Date, the Underwriters shall have received
the opinion of Sucre, Arias, ▇▇▇▇▇▇ & ▇▇▇▇▇, Panamanian counsel for the
Company, dated as of such Closing Date, addressed to the Underwriters, in the
form previously approved by Underwriters' Counsel, to the effect that:
(i) Each of Tricom Latinoamerica, S.A. (formerly Bay Tel
Communication, S.A.), a Panama corporation (SOCIEDAD ANONIMA)
("Tricom LA") and Call Tel Corporation, a Panama corporation
(SOCIEDAD ANONIMA) ("Call Tel") has been duly organized and is
validly existing as a corporation (SOCIEDAD ANONIMA) under the laws
of its jurisdiction of incorporation. Each of Tricom LA and Call Tel
is duly qualified and in good standing as a foreign corporation in
each jurisdiction in which the character or location of its
properties owned, leased or licensed or the nature or conduct of
its business makes such qualification necessary, except where the
failure to be so qualified or in good standing would not in the
aggregate have a Material Adverse Effect. Each of Tricom LA
and Call Tel
14
has all requisite corporate power and authority to conduct its
business as now being conducted and to own, lease and operate its
properties; and
(ii) Each of Tricom LA and Call Tel owns or possesses or
has obtained all governmental and regulatory licenses, certificates,
permits, consents, franchises, orders, approvals, concessions, and
other authorizations necessary to own their respective properties, and
to carry on their respective businesses as presently conducted and,
neither of Tricom LA or Call Tel has received any notice relating
to the revocation, modification or termination of any such license,
certificate, permit, consent, franchise, order, approval, concession
or other authority which, individually or in the aggregate, if the
subject of any unfavorable decision, ruling, result or holding, would
result in a material adverse change in the condition (financial or
other), earnings, business prospects, results of operations or
business affairs of Tricom LA or Call Tel.
(c) At the Closing Date, the Underwriters shall have received the
opinion of ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Dominican counsel for the Company, dated as of
such Closing Date, addressed to the Underwriters, in the form previously
approved by Underwriters' Counsel, to the effect that:
(i) Each of the Company and its subsidiaries (other than
TRICOM USA, Inc., TRICOM INTERNATIONAL SERVICES, Inc., and
▇▇▇▇▇▇▇▇▇.▇▇▇, Inc., all Delaware corporations (collectively, the
"U.S. Subsidiaries")), has been duly organized and is validly existing
as a corporation in good standing (SOCIEDAD ANONIMA) under the laws of
its jurisdiction of incorporation. Each of the Company and its
subsidiaries (other than the U.S. Subsidiaries) is duly qualified and
in good standing as a foreign corporation in each jurisdiction in
which the character or location of its properties owned, leased or
licensed or the nature or conduct of its business makes such
qualification necessary, except where the failure to be so qualified
or in good standing would not in the aggregate have a Material Adverse
Effect. Each of the Company and its subsidiaries (other than the U.S.
Subsidiaries) has all requisite corporate power and authority to
conduct its business as now being conducted and as described in the
Registration Statement and the Prospectus and to own, lease and
operate its properties;
(ii) The Company has an authorized and outstanding
capitalization as set forth in the Prospectus. All of the outstanding
shares of capital stock of the Company are duly and validly authorized
and issued, are fully paid and nonassessable and were not issued in
violation of or are subject to any preemptive or similar rights.
Except as described in the Prospectus, to such counsel's knowledge
there are no outstanding subscriptions, rights, warrants, calls,
commitments of sale or options to acquire, or instruments convertible
into or exchangeable for, any capital stock or other equity interest
of the Company or any of its subsidiaries. To such counsel's
knowledge, there are no holders of securities of the Company who, by
the filing of the Registration Statement or the execution or
performance by the Company of any Transaction Document, have any right
to request or demand that the Company register under the
15
Securities Act or analogous foreign laws and regulations securities
held by them. The ADSs representing the Common Stock, to be
issued by the Company, when issued, offered for subscription and
delivered by the Company upon payment therefor and deposited with the
Depositary in accordance with the transactions contemplated by this
Agreement and the Prospectus will have been duly authorized and will
be duly and validly issued and outstanding, fully paid and
nonassessable, and will not be issued in violation of or subject to
any preemptive rights. The Common Stock conforms, in all material
respects, to, and entitle the holders thereof to the rights set forth
in, the descriptions thereof contained in the Prospectus; the Common
Stock may be freely deposited by the Company with the Depositary
against issuance of ADRs evidencing ADSs; the ADSs are freely
transferable by the Company to or for the account of the several
Underwriters; and there are no restrictions on subsequent transfers of
the Common Stock, under the laws of the Dominican Republic except as
described in the Prospectus under "Description of Capital Stock" and
"Description of American Depositary Receipts." Other than the shares
owned by individual shareholders in order to satisfy the requirements
of seven (7) shareholders as a minimum as set forth by the Dominican
Code of Commerce, all of the outstanding capital stock of the Company
is owned free and clear of any lien, encumbrance, charge, claim,
security interest, restriction on transfer, shareholders' agreement,
voting trust or other defect of title whatsoever, except as described
in the Prospectus. All of the issued and outstanding shares of capital
stock of each of the Company's subsidiaries (other than the U.S.
Subsidiaries and Panamanian subsidiaries) have been duly and validly
issued and are fully paid and nonassessable and were not issued in
violation of or are subject to any preemptive rights and are owned of
record by the Company (other than the shares of GFN Comunicaciones
owned by other persons in order to satisfy requirements under the laws
of the Dominican Republic with respect to the minimum number of
shareholders), free and clear of any lien, encumbrance, charge, claim,
security interest, restriction on transfer, shareholders' agreement,
voting trust or other defect of title whatsoever;
(iii) The Company has all requisite corporate power and
authority to execute, deliver and perform each of the Transaction
Documents and to consummate the transactions contemplated hereby and
thereby, including, without limitation, the issuance, sale and
delivery of the ADSs;
(iv) The filing of the Registration Statement and the
Prospectus with the Commission has been duly authorized by and on
behalf of the Company and the Registration Statement has been duly
executed; no further approval or authority of the shareholders or the
Board of Directors of the Company is required for the issuance of the
Common Stock or the ADSs, and the Common Stock to be deposited with
the Depositary against the issuance of the ADRs evidencing the ADSs
have been duly and validly authorized and, upon the payment for the
ADSs pursuant to the terms of this Agreement, will be fully paid and
nonassessable, and the Depositary will receive good, valid and
marketable title to the Common Stock free and clear of all liens,
encumbrances, claims, security interests, voting trusts and other
defects of title whatsoever arising through the Company;
16
(v) The deposit of the Common Stock being deposited with the
Depositary against issuance of the ADRs evidencing the ADSs to be
delivered on each applicable Closing Date, the sale and delivery of
the ADSs to be delivered on such Closing Date, and the authorization,
execution, delivery and performance by the Company of each of the
Transaction Documents to which it is a party and the consummation of
the transactions by the Company contemplated hereby and thereby will
not violate, conflict with or constitute a breach of any of the terms
or provisions of, or a default under (or an event that with notice or
the lapse of time, or both, would constitute a default), or require
consent under, or result in the imposition of a lien or encumbrance on
any properties of the Company or any of its subsidiaries, or an
acceleration of any indebtedness of the Company or any of its
subsidiaries pursuant to, (A) the ESTATUTOS SOCIALES or other
constituent document of the Company and any of its subsidiaries, (B)
any material bond, debenture, note, indenture, mortgage, deed of trust
or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which any of them or their respective
assets or properties is or may be bound of which counsel is aware, (C)
any statute, rule or regulation of the Dominican Republic applicable
to the Company or any of its subsidiaries or any of their respective
assets or properties or (D) any judgment, order or decree of any court
or governmental agency, having jurisdiction over the Company or any of
its subsidiaries or any of their respective assets or properties of
which counsel is aware.
(vi) No consent, approval, authorization, order,
registration, filing, qualification, license or permit of or with any
Dominican Republic governmental agency or body or court is required
for the execution, delivery and performance of any of the Transaction
Documents or the consummation of the transactions contemplated hereby
and thereby;
(vii) To such counsel's knowledge, the Company and each of
its subsidiaries owns or possesses or has obtained all governmental
and regulatory licenses, certificates, permits, consents, franchises,
orders, approvals, concessions, including the Concession Agreement,
and other authorizations necessary to own their respective properties,
and to carry on their respective businesses as presently conducted and
as described in the Prospectus and neither the Company nor any of its
subsidiaries has received any notice relating to the revocation,
modification or termination of any such license, certificate, permit,
consent, franchise, order, approval, concession or other authority
which, individually or in the aggregate, if the subject or any
unfavorable decision, ruling, result or holding, would result in a
material adverse change in the condition (financial or other),
earnings, business prospects, results of operations or business
affairs of the Company.
(viii) This Agreement has been duly and validly authorized,
executed and delivered by the Company;
(ix) The Deposit Agreement has been duly and validly
authorized, executed and delivered by the Company; upon issuance by
the Depositary of
17
ADRs evidencing ADSs against the deposit of Common Stock in
respect thereof in accordance with the provisions of the Deposit
Agreement, such ADRs will be duly and validly issued and the persons
in whose names the ADRs are registered will be entitled to the rights
specified therein and in the Deposit Agreement; and the Deposit
Agreement and the ADRs conform in all material respects to the
descriptions thereof contained in the Prospectus;
(x) There is (a) to such counsel's knowledge, no action,
suit, investigation or proceeding pending or threatened in writing,
which the Company or any of its subsidiaries is or may be a party or
to which the business or property of the Company or any of its
subsidiaries is or may be subject, before any Dominican governmental,
judicial or administrative authority, (b) no statute, rule, regulation
or, to such counsel's knowledge, order that has been enacted,
adopted or issued by any Dominican governmental agency or that has
been proposed by any Dominican governmental body and (c) no
injunction, restraining order or order of any nature by a Dominican
court of competent jurisdiction to which the Company or any of its
subsidiaries is or may be subject or to which the business, assets
or property of the Company or any of its subsidiaries is or may be
subject, which, in the case of clauses (a), (b) and (c) above,
(i) purports to affect the legality, validity or enforceability
of any of the Transaction Documents, or (ii) is required to be
disclosed in the Registration Statement and the Prospectus and that
is not so disclosed;
(xi) Each of the Transaction Documents is in proper legal
form under the laws of the Dominican Republic for the enforcement
thereof in the Dominican Republic against the Company in the courts of
the Dominican Republic; provided that a translation by Judicial
Interpreter in Spanish of such documents is required to bring an
action thereon in the courts of the Dominican Republic;
(xii) The choice of New York law as the governing laws of
the Transactions Documents is legal, valid and binding under the laws
of the Dominican Republic; provided that neither the terms of such
Transaction Documents nor any provisions of New York law applicable to
any such Transaction Documents are found to be contrary to the public
policy (ORDEN PUBLICO) of the Dominican Republic; and provided
further; that Dominican law will be applied to the performance in the
Dominican Republic of any obligations set forth in the Transaction
Documents;
(xiii) The statements in the Registration Statement and the
Prospectus, insofar as they are descriptions of contracts, agreements,
or other legal documents governed by the laws of the Dominican
Republic, are true and correct in all material respects;
(xiv) The Dominican Republic courts will recognize and
enforce a final judgment of a United States federal or state court of
competent jurisdiction sitting in New York City in respect of any
amount payable by the Company under the ADSs or
18
any of the other Transaction Documents, or arising out of or based
upon the offering or sale of the ADSs contemplated by this Agreement;
(xv) The submission by the Company to the jurisdiction of
the courts of the State of New York and the federal courts of the
United States of America, in each case sitting in the Borough of
Manhattan, the City of New York, and the appointment of the agent for
service of process contained in the Transaction Documents is valid;
(xvi) The indemnification and contribution provisions set
forth in Sections 7 and 8 hereof do not contravene the public policy
or laws of the Dominican Republic;
(xvii) Neither the Company nor any of its properties or
assets has any immunity from jurisdiction of any competent court or
from any legal process (whether through service or notice, attachment
prior to judgment, attachment in aid of execution, execution or
otherwise) under the laws of the Dominican Republic;
(xviii) The statements in the Prospectus under "Prospectus
Summary--TRICOM, S.A.," "Prospectus Summary--The Offering," "Foreign
Exchange Controls," "Dividend Policy," "Exchange Rates," "Business,"
"Management," "Principal Shareholders," "Description of Capital
Stock," and "United States Tax Considerations," to the extent such
statements relate to matters of Dominican law or regulation or to the
provisions of documents therein described, are true and accurate in
all material respects and are confirmed as of each applicable Closing
Date; nothing has been omitted from such statements which would make
the same misleading in any material respect;
(xix) Under current Dominican law, no stamp or other
issuance or transfer taxes or duties and no capital gains, income,
withholding or other taxes are payable by or on behalf of the
Underwriters to the Dominican Republic or any political subdivision or
taxing authority thereof or therein in connection with (A) the
authorization, issuance, sale and delivery of the ADSs by the Company
in the manner contemplated by this Agreement, (B) the issuance by the
Company of the Common Stock, (C) the deposit with the Depositary of
Common Stock against the issuance of ADRs evidencing the ADSs in
accordance with the terms of the Deposit Agreement, (D) the sale and
delivery by the Company of the ADSs to or for the respective accounts
of the Underwriters, (E) the sale and delivery outside the Dominican
Republic by the Underwriters of the ADSs to the initial purchasers
thereof or (F) the consummation of any other transaction contemplated
by this Agreement; and
(xx) All dividends and other distributions declared and
payable on the Common Stock of the Company may under current Dominican
laws and regulations be paid to the Depositary in Dominican pesos
that, assuming registration of the investment, may be converted into
foreign currency that may be freely transferred out of the Dominican
Republic, and all such dividends and other distributions will not be
subject to Dominican Republic withholding or other taxes under
Dominican laws and
19
regulations and are otherwise free and clear of any other tax, duty,
withholding or deduction in the Dominican Republic and without the
necessity of obtaining any governmental authorization in the Dominican
Republic, except as disclosed in the Prospectus.
In addition, such opinion shall also contain a statement that such
counsel has participated in conferences with officers and representatives of the
Company, representatives of the independent public accountants for the Company
and the Underwriters at which the contents and the Prospectus and related
matters were discussed and, no facts have come to the attention of such counsel
which would lead such counsel to believe that either the Registration Statement
at the time it became effective (including the information deemed to be part of
the Registration Statement at the time of effectiveness pursuant to Rule 430A(b)
or Rule 434, if applicable), or any amendment thereof made prior to the Closing
Date as of the date of such amendment, contained an untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading or that the
Prospectus as of its date (or any amendment thereof or supplement thereto made
prior to the Closing Date as of the date of such amendment or supplement) and as
of the Closing Date contained or contains an untrue statement of a material fact
or omitted or omits to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading (it being understood that such counsel need
express no belief or opinion with respect to the financial statements and
schedules and other financial data included or incorporated by reference
therein).
In rendering such opinion, such counsel may rely (a) as to matters
involving the application of laws other than the laws of the Dominican Republic
and jurisdictions in which they are admitted, to the extent such counsel deems
proper and to the extent specified in such opinion, if at all, upon an opinion
or opinions (in form and substance reasonably satisfactory to Underwriters'
Counsel) of other counsel, reasonably acceptable to Underwriters' Counsel,
familiar with the applicable laws; (b) as to matters of fact, to the extent they
deem proper, on certificates of responsible officers of the Company and its
subsidiaries and certificates or other written statements of officers of
departments of various jurisdictions having custody of documents respecting the
corporate existence or good standing of the Company and its subsidiaries;
provided that copies of any such statements or certificates shall be delivered
to Underwriters' Counsel. The opinion of such counsel for the Company shall
state that the opinion of any such other counsel is in form satisfactory to such
counsel and, in their opinion, the Underwriters are justified in relying
thereon.
(d) At the Closing Date you shall have received the opinion of
Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, United States counsel for the Company,
dated the Closing Date addressed to the Underwriters and in form and substance
satisfactory to Underwriters' Counsel, to the effect that:
(i) Each of the U.S. Subsidiaries has been duly organized
and is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation. Each of the U.S.
Subsidiaries is duly qualified and in good standing as a
20
foreign corporation in each jurisdiction in which, to such
counsel's knowledge, the character or location of its properties
(owned, leased or licensed) or the nature or conduct of its business
makes such qualification necessary, except for those failures to be so
qualified or in good standing which will not in the aggregate have a
Material Adverse Effect on the U.S. Subsidiaries taken as a whole.
Each of the U.S. Subsidiaries has all requisite corporate authority to
own, lease and license its respective properties and conduct its
business as now being conducted and as described in the Registration
Statement and the Prospectus;
(ii) All of the outstanding shares of capital stock of the
U.S. Subsidiaries have been duly authorized and validly issued and are
fully paid and nonassessable and were not issued in violation of any
preemptive or, to such counsel's knowledge, similar rights and, to
such counsel's knowledge, is owned directly or indirectly by the
Company, free and clear of any lien, encumbrance, claim, security
interest, restriction on transfer, shareholders' agreement, voting
trust or other defect of title whatsoever;
(iii) To such counsel's knowledge, there are currently no
outstanding subscriptions, rights, warrants, calls, commitments of
sale or options to acquire, or instruments convertible into or
exchangeable for, any capital stock or other equity interest of the
U.S. Subsidiaries;
(iv) To such counsel's knowledge, there are no contracts or
other documents which are required to be described in the Prospectus
or filed as exhibits to the Registration Statement by the Securities
Act which have not been described in or filed as exhibits to the
Registration Statement;
(v) Assuming that this Agreement (x) has been duly
authorized, executed and delivered by the Company under the laws of
the Dominican Republic and (y) is a valid and binding agreement of the
Underwriters, it constitutes the legal, valid and binding agreement of
the Company, enforceable against it in accordance with its terms,
except that such counsel need express no opinion as to the
enforceability of the provisions for indemnification and contribution
contained in Sections 7, 8 and 14 of this Agreement;
(vi) Assuming that the Deposit Agreement has been duly
executed and delivered by the Company under the laws of the Dominican
Republic and, assuming due authorization, execution and delivery of
the Deposit Agreement by the Depositary and that the Depositary has
full power, authority and legal right to enter into the Deposit
Agreement and to perform its obligations thereunder, the Deposit
Agreement constitutes a legal, valid and binding agreement of the
Company, enforceable in accordance with its terms, except that such
counsel need express no opinion as to the enforceability of the
provisions for indemnity contained in Section 5.8 of the Deposit
Agreement; and the statements set forth under the heading "Description
of American
21
Depositary Receipts" in the Prospectus, insofar as such statements
purport to summarize certain provisions of the Deposit Agreement,
fairly summarize, in all material aspects, such provisions;
(vii) Assuming the Deposit Agreement has been duly
authorized, executed and delivered by the Depositary and that the
Depositary has full power, authority and legal right to enter into the
Deposit Agreement and to perform its obligations thereunder, upon due
issuance by the Depositary of ADRs evidencing ADSs delivered against
the deposit of Common Stock in respect thereof in accordance with the
provisions of the Deposit Agreement, (a) such ADRs will be duly and
validly issued and the person in whose name the ADRs are registered
will be entitled, subject to the provisions of the laws of the
Dominican Republic, the Company's bylaws (ESTATUTOS SOCIALES) and the
Deposit Agreement, to the rights specified therein and in the Deposit
Agreement, and (b) there are no restrictions on subsequent transfers
of the ADSs under the laws of the United States except as described in
the Prospectus under "Description of Capital Stock" and "Description
of American Depositary Receipts";
(viii) The execution and delivery of each of the Transaction
Documents by the Company, and the performance by the Company of its
obligations thereunder (including the issuance, sale and delivery of
the ADSs in the manner contemplated in this Agreement, the
Registration Statement and the Prospectus) will not conflict with,
result in a breach or violation of, or constitute a default under, (A)
any United States federal or New York state law, (B) those certain
agreements set forth in Schedule III hereto, or (C) any order, rule or
regulation known to such counsel of any United States federal or New
York governmental agency, body or court having jurisdiction over the
Company;
(ix) No consent, approval, authorization or order of, or
filing, registration, qualification, license or permit of or with, any
court or governmental agency or body of the United States or the State
of New York is required for the execution and delivery by the Company
of this Agreement or the Deposit Agreement, or the performance by the
Company of its obligations hereunder or thereunder (including the
issuance, sale and delivery of the ADSs in the manner contemplated in
this Agreement, the Registration Statement and the Prospectus), except
that such counsel need express no opinion as to any state securities
or "blue sky" laws or, except as set forth in paragraph (xi) below,
any United States federal securities law;
(x) The Company is not an "investment company," and the
offer and sale of the ADSs in the manner contemplated by the
Registration Statement, the Prospectus and this Agreement will not
make the Company an "investment company" or a company "controlled" by
an "investment company," within the meaning of the Investment Company
Act of 1940, as amended;
(xi) There is (a) to such counsel's knowledge, no action,
suit, investigation or proceeding pending, or threatened in writing,
to which the Company or
22
any of its subsidiaries is or may be a party or to which the business
or property of the Company or any of its subsidiaries is or may be
subject, before any United States federal or New York governmental,
judicial or administrative authority, (b) no statute, rule, regulation
or, to such counsel's knowledge, order that has been enacted, adopted
or issued by any United States federal or New York governmental
agency or that has been proposed by any United States or New York
governmental body and (c) to such counsel's knowledge, no
injunction, restraining order or order of any nature by a United
States federal or state court of competent jurisdiction to which
the Company or any of its subsidiaries is or may be subject or to
which the business, assets, or property of the Company or any of
its subsidiaries is or may be subject, which, in the case of clauses
(a), (b) and (c) above, purports to affect the legality, validity
or enforceability of any of the Transaction Documents;
(xii) The Registration Statement and the Prospectus and any
amendments thereof or supplements thereto (other than the financial
statements and schedules and other financial data included or
incorporated by reference therein, as to which no opinion need be
rendered) comply as to form in all material respects with the
requirements of the Securities Act and the Regulations;
(xiii) The statements in the Prospectus set forth under the
heading "Tax Considerations," insofar as such statements purport to
summarize certain federal income tax laws of the United States
referred to thereunder, constitute a fair summary of the principal
United States federal income tax consequences of an investment in the
ADSs; and
(xiv) The submission of the Company to the jurisdiction of
the courts of the State of New York and of the federal courts of the
United States of America, in each case sitting in the Borough of
Manhattan, The City of New York, and the appointment of the agent for
service of process contained in the Transaction Documents is valid.
The opinion shall contain a statement to the effect that such
counsel has participated in conferences with officers and other representatives
of the Company, representatives of the independent public accountants of the
Company, and the Underwriters at which conferences the contents of the
Registration Statement and the Prospectus and related matters were discussed
and, no facts have come to such counsel's attention which lead them to believe
that the Registration Statement, on the Effective Date (including information
deemed to be part of the Registration Statement at the time it becomes effective
pursuant to Rule 430A(b) or 434, if applicable) or any amendment thereof made
prior to the Closing Date as of the date of such amendment, contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or
that the Prospectus, as of its date, or any amendment thereof made prior to the
Closing Date as of the date of such amendment, and as of the Closing Date,
contained or contains an untrue statement of a material fact or omitted or omits
to state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which
23
they were made, not misleading, it being understood that such counsel express no
view with respect to the financial statements and related notes thereto and the
other financial data included or incorporated by reference therein.
Insofar as the foregoing opinions relate to the legality,
validity, binding effect or enforceability of any agreement or obligation, such
opinions may be rendered subject to applicable bankruptcy, insolvency and
similar laws affecting creditors' rights generally and to general principles of
equity and subject to the effect of judicial application of foreign laws or
foreign governmental actions affecting creditors' rights.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws other than the laws of the United
States and jurisdictions in which they are admitted, to the extent such counsel
deems proper and to the extent specified in such opinion, if at all, upon an
opinion or opinions (in form and substance reasonably satisfactory to
Underwriter's Counsel) of other counsel reasonably acceptable to Underwriter's
Counsel, familiar with the applicable laws; (B) as to matters of fact, to the
extent they deem proper, on certificates of responsible officers of the Company
and certificates or other written statements of officers of departments of
various jurisdictions having custody of documents respecting the corporate
existence or good standing of the Company and its subsidiaries, provided that
copies of any such statements or certificates shall be delivered to
Underwriter's Counsel. The opinion of such counsel for the Company shall state
that the opinion of any such other counsel is in form satisfactory to such
counsel and, in their opinion, you and they are justified in relying thereon.
(e) On each applicable Closing Date, the Underwriters shall have
received the opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Depositary,
dated as of such Closing Date, addressed to the Underwriters and in form and
substance satisfactory to Underwriters' Counsel, to the effect that:
(i) The Deposit Agreement has been duly authorized, executed
and delivered by the Depositary and, assuming due authorization,
execution and delivery of the Deposit Agreement by the Company,
constitutes a valid and legally binding obligation of the Depositary,
enforceable in accordance with its terms, except as enforcement
thereof may be limited by (a) bankruptcy, insolvency, reorganization
and other similar laws affecting the enforcement of creditors' rights
generally and (b) general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or law);
(ii) Upon the issuance by the Depositary of ADRs evidencing
ADSs in accordance with the provisions of the Deposit Agreement, such
ADRs will be duly and validly issued;
(iii) The ADRs issued under and in accordance with the
provisions of the Deposit Agreement to evidence ADSs will entitle the
holders thereof to the rights specified therein and in the Deposit
Agreement, assuming that the Common Stock represented by the ADSs
which are in turn evidenced by the ADRs have been duly
24
authorized and validly issued and are fully paid and nonassessable
under and in accordance with the laws and applicable regulations of
the Dominican Republic; and
(iv) The Registration Statement is effective under the
Securities Act; to the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement or any
post-effective amendment thereof has been issued and no proceedings
therefor have been initiated or threatened by the Commission; and the
Registration Statement and any amendments thereof or supplements
thereto, as of their respective effective dates, complied as to
conform in all material respects with the requirements of the
Securities Act and the Regulations.
(f) All proceedings taken in connection with the sale of the
Firm ADSs and the Additional ADSs as herein contemplated shall be
satisfactory in form and substance to you and to Underwriters' Counsel, and
the Underwriters shall have received from said Underwriters' Counsel and from
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Dominican Counsel") a favorable opinion,
dated as of the Closing Date with respect to the issuance and sale of the
ADSs, the Registration Statement and the Prospectus and such other related
matters as you may reasonably require, and the Company shall have furnished
to Underwriters' Counsel and to Underwriters' Dominican Counsel such
documents as they request for the purpose of enabling them to pass upon such
matters.
(g) As of the Closing Date the obligations of the Company to be
performed hereunder and under the other Transaction Documents on or prior to
such Closing Date have been duly performed or complied with.
(h) At the Closing Date you shall have received a certificate of
the Chief Executive Officer and Chief Financial Officer of the Company, dated
the Closing Date to the effect that (i) the condition set forth in subsection
(a) of this Section 6 has been satisfied, (ii) as of the date hereof and as of
the Closing Date the representations and warranties of the Company set forth in
Section 1 hereof are true and correct, (iii) as of the Closing Date the
obligations of the Company to be performed hereunder and under the other
Transaction Documents on or prior to such Closing Date have been duly performed
or complied with, (iv) they have carefully examined the Registration Statement
and the Prospectus, and in their opinion, both the Registration Statement and
the Prospectus do not contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading, and (iv)
subsequent to the respective dates as of which information is given in the
Registration Statement and the Prospectus, the Company and its subsidiaries have
not sustained any material loss or interference with their respective businesses
or properties from fire, flood, hurricane, accident or other calamity, whether
or not covered by insurance, or from any labor dispute or any legal or
governmental proceeding, and there has not been any material adverse change, or
any development involving a material adverse change, in the business prospects,
properties, operations, condition (financial or otherwise), or results of
operations of the Company and its subsidiaries taken as a whole, except in each
case as described in or contemplated by the Prospectus.
25
(i) At the time this Agreement is executed and at the Closing
Date, you shall have received a letter, from KPMG (a member firm of KPMG
International in the Dominican Republic), independent public accountants for the
Company, dated, respectively, as of the date of this Agreement and as of the
Closing Date addressed to the Underwriters and in form and substance
satisfactory to you, to the effect that: (i) they are independent certified
public accountants with respect to the Company within the meaning of the
Securities Act and the Regulations; (ii) stating that, in their opinion, the
financial statements and schedules of the Company included in the Registration
Statement and the Prospectus and covered by their opinion therein comply as to
form in all material respects with the applicable accounting requirements of the
Securities Act and the applicable published rules and regulations of the
Commission thereunder; (iii) on the basis of procedures consisting of a reading
of the minutes of meetings and consents of the shareholders and boards of
directors of the Company and its subsidiaries and the committees of such boards
subsequent to the date of the bring-down letter, inquiries of officers and other
employees of the Company and its subsidiaries who have responsibility for
financial and accounting matters of the Company and its subsidiaries with
respect to transactions and events subsequent to the date of the bring-down
letter and other specified procedures and inquiries to a date not more than five
days prior to the date of such letter, nothing has come to their attention that
would cause them to believe that: (A) with respect to the period subsequent to
the date of the bring-down letter there were, as of the date of the most recent
available monthly consolidated financial statements of the Company and its
subsidiaries, if any, and as of a specified date not more than five days prior
to the date of such letter, any changes in the capital stock or long-term
indebtedness of the Company or any decrease in the net current assets or
stockholders' equity of the Company, in each case as compared with the amounts
shown in the most recent balance sheet presented in the Registration Statement
and the Prospectus, except for changes or decreases which the Registration
Statement and the Prospectus disclose have occurred or may occur or which are
set forth in such letter; (B) that during the period from the date of the
bring-down letter to the date of the most recent available monthly consolidated
financial statements of the Company and its subsidiaries, if any, and to a
specified date not more than five days prior to the date of such letter, there
was any decrease, as compared with the corresponding period in the prior fiscal
year, in total revenues, or total or per share net income, except for decreases
which the Registration Statement and the Prospectus disclose have occurred or
may occur or which are set forth in such letter; and (iv) stating that they have
compared specific dollar amounts, numbers of shares, percentages of revenues and
earnings, and other financial information pertaining to the Company and its
subsidiaries set forth in the Registration Statement and the Prospectus, which
have been specified by you prior to the date of this Agreement, to the extent
that such amounts, numbers, percentages, and information may be derived from the
general accounting and financial records of the Company and its subsidiaries or
from schedules furnished by the Company, and excluding any questions requiring
an interpretation by legal counsel, with the results obtained from the
application of specified readings, inquiries, and other appropriate procedures
specified by you set forth in such letter, and found them to be in agreement.
(j) Prior to the Closing Date the Company shall have furnished to
you such further information, certificates, opinions and documents as you may
reasonably request,
26
and shall have furnished to Underwriter's Counsel such documents as they may
request for the purpose of enabling them to render opinions required pursuant to
this Agreement.
(k) You shall have received from each person who is a director or
officer of the Company or such shareholder as have been heretofore designated by
you and listed on Schedule II hereto a lock-up agreement in the form attached
hereto as Exhibit A.
(l) On the Closing Date, the Prospectus is accurate in all
material respects, does not contain an untrue statement of a material fact and
does not omit to state any material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading; provided that the accuracy of any information in the Prospectus
furnished to the Company by the Underwriters expressly for use in connection
with the preparation thereof will not be a condition to the Underwriters'
obligations.
(m) On or prior to the Closing Date, DTC shall have accepted the
ADSs for clearance.
(n) On or prior to the Closing Date, CT Corporation System shall
have accepted its appointment as Process Agent as defined in and pursuant to
Section 12 hereof and the Underwriters shall have received a letter from the
Process Agent evidencing such acceptance.
(o) On the Closing Date, (i) the listing of the ADSs shall have
been approved and shall continue to be in full force and effect on the New York
Stock Exchange; and (ii) the ADSs shall continue to be accepted for settlement
through the facilities of DTC.
(p) Subsequent to the dates at which information is given in the
Prospectus and except as set forth therein, (A) neither the Company nor any of
its subsidiaries has sustained any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action, order
or decree, and (B) there shall not have been since the date as of which
information is given in the Prospectus, any material adverse change or
development involving a material adverse change in the condition (financial or
otherwise), business, prospects, assets, liabilities, net worth, results of
operations or cash flows of the Company and its subsidiaries, taken as a whole,
whether or not arising in the ordinary course of business, the effect of which,
in any such case described in clause (A) or (B), is in the reasonable judgment
of the Underwriters so material and adverse as to make it impracticable or
inadvisable to proceed with the offering or the delivery of the ADSs being
delivered at the Closing Date on the terms and in the manner contemplated in
this Agreement and the Prospectus.
(q) On or after the date of this Agreement, there shall not have
occurred a downgrading in the rating assigned to the Company's debt securities
by any nationally recognized statistical rating organization (as defined for
purposes of Rule 436(g) under the Securities Act) and no such rating
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the Company's
debt securities.
27
(r) The Deposit Agreement shall be in full force and effect.
(s) The Depositary shall have furnished or caused to be furnished
to the Underwriters at each applicable Closing Date certificates reasonably
satisfactory to the Underwriters evidencing the deposit with it of the Common
Stock being so deposited against issuance of ADRs evidencing the ADSs to be
delivered by the Company at such Closing Date, and the execution,
countersignature (if applicable), issuance and delivery of ADRs evidencing such
ADSs pursuant to the Deposit Agreement.
(t) At the Closing Date you shall have received the opinion of
▇▇▇▇▇▇ ▇▇▇▇ & Priest, LLP, regulatory counsel for the Company, dated the
Closing Date addressed to the Underwriters and in form and substance
satisfactory to Underwriter's Counsel, to the effect that: each of the U.S.
Subsidiaries owns or possesses or has obtained all United States federal and
state governmental and regulatory licenses, certificates, permits, consents,
franchises, orders, approvals, concessions and authorizations necessary to
own its properties and to carry on its business as currently conducted and as
described in the Registration Statement and the Prospectus (except where the
failure to so own, possess or obtain such licenses, certificates, permits,
consents, franchises, orders, approval, concessions and authorizations would
not have a Material Adverse Effect) and, to such counsel's knowledge, except
as disclosed in the Registration Statement and Prospectus, each of the U.S.
Subsidiaries has not received any notice relating to the revocation,
modification or termination of any of the foregoing;
If any of the conditions specified in this Section 6 shall not have
been fulfilled when and as required by this Agreement, or if any of the
certificates, opinions, written statements or letters furnished to you or to
Underwriters' Counsel pursuant to this Section 6 shall not be in all material
respects reasonably satisfactory in form and substance to you and to
Underwriters' Counsel, all obligations of the Underwriters hereunder may be (i)
canceled by you at, or at any time prior to, the Closing Date or (ii) postponed
by you with the Company's consent until such time that such obligations are
canceled hereunder or the conditions specified in this Section 6 have been
fulfilled and all such certificates, opinions, written statements or letters
furnished to the Underwriters or to Underwriters' Counsel pursuant to this
Section 6 shall be in all material respects reasonably satisfactory in form and
substance to the Underwriters and Underwriters' Counsel. Notice of such
cancellation shall be given to the Company in writing, or by telephone or
facsimile transmission, confirmed in writing by letter.
7. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange
Act, against any and all losses, liabilities, claims, damages and expenses
whatsoever as incurred (including but limited to attorneys' fees and any and all
expenses whatsoever incurred in investigating, preparing or defending against
any litigation, commenced or threatened, or any claim whatsoever, and any and
all amounts paid in settlement of any claim or litigation), joint or several, to
which they or any of them may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as such losses, liabilities, claims, damages
or expenses (or actions in respect thereof) arise
28
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement for the registration of
the ADSs, as originally filed or any amendment thereof, or any related
preliminary prospectus or the Prospectus, or in any supplement thereto or
amendment thereof, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; PROVIDED, HOWEVER, that
the Company will not be liable in any such case to the extent but only to the
extent that any such loss, liability, claim, damage or expense arises out of or
is based upon any (1) untrue statement or alleged untrue statement or omission
or alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company by any Underwriter expressly for use
therein, or (2) misstatement or omission contained in a preliminary prospectus
that is corrected in a subsequent preliminary prospectus or Prospectus, that is
furnished to but not delivered by the Underwriters. This indemnity agreement
will be in addition to any liability which the Company may otherwise have
including under this Agreement.
(b) Each Underwriter severally, and not jointly, agrees to
indemnify and hold harmless the Company, each of the directors of the Company,
each of the officers of the Company who shall have signed the Registration
Statement, and each other person, if any, who controls the Company within the
meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange
Act, against any losses, liabilities, claims, damages and expenses whatsoever as
incurred (including but not limited to attorneys' fees and any and all expenses
whatsoever incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever, and any and all
amounts paid in settlement of any claim or litigation), jointly or several, to
which they or any of them may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as such losses, liabilities, claims, damages
or expenses (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in the
registration statement for the registration of the ADSs, as originally filed or
any amendment thereof, or any related preliminary prospectus or the Prospectus,
or in any amendment thereof or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that any such loss,
liability, claim, damage or expense arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Underwriter through you
expressly for use therein; PROVIDED, HOWEVER, that in no case shall any
Underwriter be liable or responsible for any amount in excess of the
underwriting discount applicable to the ADSs purchased by such Underwriter
hereunder. This indemnity will be in addition to any liability which any
Underwriter may otherwise have including under this Agreement. The Company
acknowledges that the statements set forth in the last paragraph of the cover
page and in the twelve paragraphs under the caption "Underwriting" in the
Prospectus constitute the only information furnished in writing by or on behalf
of any Underwriter expressly for use in the registration statement relating to
the ADSs as originally filed or in any amendment thereof, any related
preliminary prospectus or the Prospectus or in any amendment thereof or
supplement thereto, as the case may be.
29
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify each party against whom
indemnification is to be sought in writing of the commencement thereof (but the
failure so to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section 7). In case any such action is
brought against any indemnified party, and it notifies an indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel satisfactory to
such indemnified party. Notwithstanding the foregoing, the indemnified party or
parties shall have the right to employ its or their own counsel in any such
case, but the fees and expenses of such counsel shall be at the expense of such
indemnified party or parties unless (i) the employment of such counsel shall
have been authorized in writing by one of the indemnifying parties in connection
with the defense of such action, (ii) the indemnifying parties shall not have
employed counsel to have charge of the defense of such action within a
reasonable time after notice of commencement of the action, or (iii) such
indemnified party or parties shall have reasonably concluded that there may be
defenses available to it or them which are different from or additional to those
available to one or all of the indemnifying parties (in which case the
indemnifying parties shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties), in any of which events
such fees and expenses shall be borne by the indemnifying parties; PROVIDED,
HOWEVER, that the indemnifying party under subsection (a) or (b) above shall
only be liable for the legal expenses of one counsel (in addition to any local
counsel) for all indemnified parties in each jurisdiction in which any claim or
action is brought. Anything in this subsection to the contrary notwithstanding,
an indemnifying party shall not be liable for any settlement of any claim or
action effected without its written consent; PROVIDED, HOWEVER, that such
consent was not unreasonably withheld.
8. CONTRIBUTION. In order to provide for contribution in circumstances
in which the indemnification provided for in Section 7 hereof is for any reason
held to be unavailable from any indemnifying party or is insufficient to hold
harmless a party indemnified thereunder, the Company and the Underwriters shall
contribute to the aggregate losses, claims, damages, liabilities and expenses of
the nature contemplated by such indemnification provision (including any
investigation, legal and other expenses incurred in connection with, and any
amount paid in settlement of, any action, suit or proceeding or any claims
asserted, but after deducting in the case of losses, claims, damages,
liabilities and expenses suffered by the Company any contribution received by
the Company from persons, other than the Underwriters, who may also be liable
for contribution, including persons who control the Company within the meaning
of Section 15 of the Securities Act or Section 20(a) of the Exchange Act,
officers of the Company who signed the Registration Statement and directors of
the Company) as incurred to which the Company and one or more of the
Underwriters may be subject, in such proportions as is appropriate to reflect
the relative benefits received by the Company and the Underwriters from the
offering of the ADSs or, if such allocation is not permitted by applicable law
or indemnification is not available as a result of the indemnifying party not
having received notice as provided in Section 7 hereof, in such proportion as is
appropriate to reflect not only the
30
relative benefits referred to above but also the relative fault of the Company
and the Underwriters in connection with the statements or omissions which
resulted in such losses, claims, damages, liabilities or expenses, as well as
any other relevant equitable considerations. The relative benefits received by
the Company and the Underwriters shall be deemed to be in the same proportion as
(x) the total proceeds from the offering (net of underwriting discounts and
commissions but before deducting expenses) received by the Company and (y) the
underwriting discounts and commissions received by the Underwriters,
respectively, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault of the Company and of the Underwriters shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company
and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this Section 8 were determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this Section
8, (i) in no case shall any Underwriter be liable or responsible for any amount
in excess of the underwriting discount applicable to the ADSs purchased by such
Underwriter hereunder, and (ii) no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. Notwithstanding the provisions of this Section 8 and the
preceding sentence, no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the ADSs underwritten by
it and distributed to the public were offered to the public exceeds the amount
of any damages that such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. For purposes of this Section 8, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the Securities Act or Section
20(a) of the Exchange Act shall have the same rights to contribution as such
Underwriter, and each person, if any, who controls the Company within the
meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange
Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to clauses (i) and (ii) of
this Section 8. Any party entitled to contribution will, promptly after receipt
of notice of commencement of any action, suit or proceeding against such party
in respect of which a claim for contribution may be made against another party
or parties, notify each party or parties from whom contribution may be sought,
but the omission to so notify such party or parties shall not relieve the party
or parties from whom contribution may be sought from any obligation it or they
may have under this Section 8 or otherwise. No party shall be liable for
contribution with respect to any action or claim settled without its consent;
PROVIDED, HOWEVER, that such consent was not unreasonably withheld. The
Underwriter's obligations to contribute as provided in this Section 8 are
several in proportion to their respective obligations and not joint.
9. DEFAULT BY AN UNDERWRITER.
31
(a) If any Underwriter or Underwriters shall default in its or
their obligation to purchase Firm ADSs or Additional ADSs hereunder, and if the
Firm ADSs or Additional ADSs with respect to which such default relates do not
(after giving effect to arrangements, if any, made by you pursuant to subsection
(b) below) exceed in the aggregate 10% of the number of Firm ADSs or Additional
ADSs, to which the default relates shall be purchased by the non-defaulting
Underwriters in proportion to the respective proportions which the numbers of
Firm ADSs set forth opposite their respective names in Schedule I hereto bear to
the aggregate number of Firm ADSs set forth opposite the names of the
non-defaulting Underwriters.
(b) In the event that such default relates to more than 10% of
the Firm ADSs or Additional ADSs, as the case may be, you may in your discretion
arrange for yourself or for another party or parties (including any
non-defaulting Underwriter or Underwriters who so agree) to purchase such Firm
ADSs or Additional ADSs, as the case may be, to which such default relates on
the terms contained herein. In the event that within five calendar days after
such a default you do not arrange for the purchase of the Firm ADSs or
Additional ADSs, as the case may be, to which such default relates as provided
in this Section 9, this Agreement or, in the case of a default with respect to
the Additional ADSs, the obligations of the Underwriters to purchase and of the
Company to sell the Additional ADSs shall thereupon terminate, without liability
on the part of the Company with respect thereto (except in each case as provided
in Section 5, 7(a) and 8 hereof) or the Underwriters, but nothing in this
Agreement shall relieve a defaulting Underwriter or Underwriters of its or their
liability, if any, to the other Underwriters and the Company for damages
occasioned by its or their default hereunder.
(c) In the event that the Firm ADSs or Additional ADSs to which
the default relates are to be purchased by the non-defaulting Underwriters, or
are to be purchased by another party or parties as aforesaid, you or the Company
shall have the right to postpone the Closing Date or Additional Closing Date, as
the case may be for a period, not exceeding five business days, in order to
effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus or in any other documents and arrangements, and the
Company agrees to file promptly any amendment or supplement to the Registration
Statement or the Prospectus which, in the opinion of Underwriters' Counsel, may
thereby be made necessary or advisable. The term "Underwriter" as used in this
Agreement shall include any party substituted under this Section 9 with like
effect as if it had originally been a party to this Agreement with respect to
such Firm ADSs and Additional ADSs.
10. SURVIVAL OF REPRESENTATIONS AND AGREEMENTS. All representations
and warranties, covenants and agreements of the Underwriters and the Company
contained in this Agreement, including the agreements contained in Section 5,
the indemnity agreements contained in Section 7 and the contribution
agreements contained in Section 8, and subsection (d) of Section 11 shall
remain operative and in full force and effect regardless of any investigation
made by or on behalf of any Underwriter or any controlling person thereof or
by or on behalf of the Company, any of its officers and directors or any
controlling person thereof, and shall survive delivery of and payment for the
ADSs to and by the Underwriters. The representations contained in Section 1
32
and the agreements contained in Sections 5, 7, 8 and 11(d) hereof shall survive
the termination of this Agreement, including termination pursuant to Section 9
or 11 hereof.
11. EFFECTIVE DATE OF AGREEMENT; TERMINATION.
(a) This Agreement shall become effective, upon the later of when
(i) you and the Company shall have received notification of the effectiveness of
the Registration Statement or (ii) the execution of this Agreement. If either
the public offering price or the purchase price per ADS has not been agreed upon
prior to 5:00 P.M., New York time, on the fifth full business day after the
Registration Statement shall have become effective, this Agreement shall
thereupon terminate without liability to the Company or the Underwriters except
as herein expressly provided. Until this Agreement becomes effective as
aforesaid, it may be terminated by the Company by notifying you or by you
notifying the Company. Notwithstanding the foregoing, the provisions of this
Section 11 and of Sections 1, 5, 7 and 8 hereof shall at all times be in full
force and effect.
(b) You shall have the right to terminate this Agreement at any
time prior to the Closing Date or the obligations of the Underwriters to
purchase the Additional ADSs at any time prior to the Additional Closing Date,
as the case may be :
(i) if any domestic or international event or act or
occurrence has materially disrupted, or in your opinion will in the
immediate future materially disrupt, the market for the Company's
securities or the United States or international securities markets
generally;
(ii) if trading on the New York or American Stock Exchanges
shall have been suspended or materially limited, or minimum or maximum
prices for trading shall have been fixed, or maximum ranges for prices
for securities shall have been required, on such exchanges, or by such
exchange or by order of the Commission or any other regulatory body or
governmental authority having jurisdiction;
(iii) if a banking moratorium has been declared by a state
or federal authority or by any authority of the Dominican Republic, if
a moratorium in foreign exchange trading by major international banks
or persons shall have been declared, or if any new restriction
materially adversely affecting the distribution of the ADSs shall have
become effective;
(iv) if there is an outbreak or escalation of armed
hostilities involving the United States or the Dominican Republic on
or after the date hereof, or if there has been a declaration by the
United States or the Dominican Republic of a national emergency or
war, the effect of which shall be, in the Underwriters' reasonable
judgment, to make it inadvisable or impracticable to proceed with the
offering, sale or delivery of the ADSs on the terms and in the manner
contemplated by the Prospectus;
(v) if there shall have been a material adverse change in
general economic, political, or financial conditions in the United
States or the Dominican
33
Republic or if the effect of international conditions on the financial
markets in the United States shall be such as, in the Underwriters'
reasonable judgment, makes it impracticable or inadvisable to proceed
with the offering, sale or delivery of the ADSs on the terms
contemplated by the Prospectus;
(vi) if there shall have been a downgrading in the rating of
the Company's debt securities by any "nationally recognized
statistical rating organization" (as defined for purposed of Rule
436(g) of the Securities Act) or any such rating organization has
publicly announced that it has under surveillance or review, with
possible negative implications, its rating of any of the Company's
debt securities; or
(vii) if in the reasonable judgment of the Underwriters,
since the date as of which information is given in the Prospectus, any
material adverse change or development involving a material adverse
change in the condition (financial or otherwise), business, prospects,
assets, liabilities, net worth, results of operations or cash flows of
the Company and its subsidiaries, taken as a whole, shall have
occurred, whether or not arising in the ordinary course of business,
other than as set forth in the Prospectus.
(c) Any notice of termination pursuant to this Section 11 shall
be in writing, or by telephone or facsimile transmission, confirmed in writing
by letter.
(d) If this Agreement shall be terminated pursuant to any of the
provisions hereof (otherwise than pursuant to (i) notification by you as
provided in Section 11(a) hereof or (ii) Section 9(b) or 11(b) hereof), or if
the sale of the ADSs provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth herein is not
satisfied or because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or comply with any provision hereof, the
Company will, subject to demand by you, reimburse the Underwriters for all
out-of-pocket expenses (including the fees and expenses of their counsel),
incurred by the Underwriters in connection herewith.
12. NOTICES. All communications hereunder, except as may be otherwise
specifically provided herein, shall be in writing and , if sent to any
Underwriter, shall be mailed, delivered, faxed or telexed or telegraphed and
confirmed in writing, to such Underwriter c/o Bear, ▇▇▇▇▇▇▇ & Co. Inc., ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇, Attention: Corporate Finance Department; if sent
to the Company, shall be mailed, delivered, faxed or telexed or telegraphed and
confirmed in writing to TRICOM, S.A., ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇. ▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Attention: Chairman of the Board.
13. CONSENT TO JURISDICTION: WAIVER OF IMMUNITIES.
(a) The Company:
(i) irrevocably submits to the jurisdiction of any New York
State or Federal court sitting in the Borough of Manhattan and any
appellate court from any thereof in any action or proceeding arising
out of or relating to any Transaction Document or any other document
delivered thereunder;
34
(ii) irrevocably agrees that all claims in respect of any
such action or proceeding may be heard and determined in such New York
State court or in such Federal court;
(iii) irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such
action or proceeding;
(iv) appoints CT Corporation System (the "Process Agent"),
with an office on the date hereof at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇, as its authorized agent to receive on its behalf and its
property service of copies of the summons and complaint and any other
process that may be made by mailing or delivering a copy of such
process to the appropriate party in care of the Process Agent at the
Process Agent's above address, represents and warrants that the
Process Agent has agreed to act as such, and agrees to take any and
all actions, including filing any and all documents or instruments
(including for the appointment of any successor Process Agent, as
necessary) that may be necessary to continue such appointment in
effect;
(v) authorizes and directs the Process Agent to accept such
service on its behalf; and
(vi) agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided
by law.
(b) Nothing in this Section 13 shall affect the right of any
person to serve legal process in any other manner permitted by law or affect the
right of any person to bring any action or proceeding against the Company or its
properties in the courts of other jurisdictions.
14. JUDGMENT CURRENCY. If the amount of any sum due from any party to
any other hereunder is (in order to effect payment of any judgment in any
jurisdiction or in order to obtain any judgment in any jurisdiction) to be
converted from the currency expressed to be payable herein (the "Specified
Currency") into another currency, the parties hereto agree, to the fullest
extent that they may effectively do so, that the rate of exchange used shall be
that at which, in accordance with normal banking procedures, the recipient can
purchase the Specified Currency with such other currency at the principal New
York office of Bear, ▇▇▇▇▇▇▇ & Co. Inc., two business days preceding that on
which the final judgment is given. The obligations of the Company in respect of
any sum to any Underwriters hereunder shall, notwithstanding any judgment in, or
payable in, any currency other than the Specified Currency, be discharged only
to the extent that on the business day following receipt by such Underwriters of
any sum in such other currency such Underwriters may, utilizing reasonable rates
of exchange applicable to foreign exchange transactions in the relevant
currencies, purchase the Specified Currency with such other currencies. If the
amount of the Specified Currency so purchased is less than the sum originally
due to such Underwriters in the Specified Currency, the Company agrees, to the
fullest extent it may effectively do so, as a separate obligation and
notwithstanding any such judgment, to indemnify such Underwriters against such
loss. If the amount of the Specified Currency so
35
purchased is greater than the sum originally due to such Underwriters in the
Specified Currency, such Underwriters agree to pay to the Company an amount
equal to the excess of the Specified Currency so purchased over the amount
originally due hereunder.
15. ADDITIONAL AMOUNTS. The Company agrees to indemnify and hold
harmless the Underwriters against any documentary, stamp, registration or
similar issuance tax imposed by the Dominican Republic, including any interest
and penalties, on or in connection with the creation, issuance and sale of the
ADSs by the Company, to the Underwriters. All payments to be made to the
Underwriters by the Company hereunder shall be made without withholding or
deduction for or on account of any present or future taxes, duties or
governmental charges whatsoever imposed or levied by or on behalf of the
Dominican Republic or any political subdivision thereof (or any taxing authority
therein) unless the Company is compelled by law to deduct or withhold such
taxes, duties or charges. In that event, the Company shall pay such additional
amounts as may be necessary in order that the net amounts received after such
withholding or deduction shall equal the amounts that would have been received
if no withholding or deduction had been made; provided, however, no such
additional amounts shall be payable (i) in respect of any tax, duty or
governmental charge that would not have been imposed but for the existence of
any present or former connection between any Underwriter and the relevant taxing
jurisdiction, other than by entering into or performing this Agreement, and (ii)
in respect of any tax, duty or governmental charge that would not have been
imposed for any Underwriter's failure to comply with any certification,
identification, documentation or information or other reporting requirement if
such compliance is required by law, regulation, administrative practice or
applicable treaty as a precondition to or exemption from or reduction in the
rate of deduction or withholding of such taxes.
16. PARTIES. This Agreement shall insure solely to the benefit of, and
shall be binding upon, the Underwriters and the Company and the controlling
persons, directors, officers, employees and agents referred to in Section 7 and
8, and their respective successors and assigns, and no other person shall have
or be construed to have any legal or equitable right, remedy or claim under or
in respect of or by virtue of this Agreement or any provision herein contained.
The term "successors and assigns" shall not include a purchaser, in its capacity
as such, of ADSs from any of the Underwriters.
17. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York, but without regard to
principles of conflicts of law.
18. COUNTERPARTS. This Agreement may be executed and delivered
(including by facsimile transmission) in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when executed
and delivered shall be deemed to be an original but all of which taken together
shall constitute one and the same agreement.
36
If the foregoing correctly sets forth the understanding
between you and the Company, please so indicate in the space provided below for
that purpose, whereupon this letter shall constitute a binding agreement among
us.
Very truly yours,
TRICOM, S.A.
By: ______________________________
Name:
Title:
Accepted as of the date first above written
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ & CO.
On behalf of themselves and the other
Underwriters named in Schedule I hereto.
By: ______________________________
Name:
Title:
37
SCHEDULE I
Number of Firm ADSs
Name of Underwriter to be Purchased
------------------- -------------------
Bear, ▇▇▇▇▇▇▇ & Co. Inc
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ & Co.
Total.......................................4,000,000
SCHEDULE II
Oleander Holdings
Motorola Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ del ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
SCHEDULE III
1. Indenture between TRICOM S.A. and The Bank of New York, as trustee,
dated August 21, 1997.
2. ▇▇▇▇▇▇▇▇ Bank Facility
3. Citibank Facility
4. Export-Import Bank Credit Facility
EXHIBIT A
TRICOM, S.A.
LOCK-UP AGREEMENT
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ & CO.
as Representatives of the several Underwriters
c/o Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
The undersigned,__________________ , is a holder of
securities of Tricom, S.A., a corporation (sociedad anonima) organized and
existing under the laws of the Dominican Republic (the "Company"), and wishes
to facilitate the public offering by the Company, pursuant to a Registration
Statement on Form F-3 (File No. 333-______) (the "Offering") of the
Company's Class A common stock (the "Common Stock") through the registration
of American depositary shares (the "ADSs"), with each ADS representing one
share of Common Stock. The undersigned recognizes that the Offering will be
of benefit to the undersigned.
In consideration of foregoing and in order to induce you to
act as the Underwriters in connection with the Offering, the undersigned
hereby agrees, for the benefit of the Company and the Underwriters, that
during the period beginning from the date hereof and continuing to and
including the date one hundred eighty (180) days after the date of the final
prospectus relating the Offering (the "Lock-Up Period"), the undersigned will
not, directly or indirectly, without the prior written consent of Bear,
▇▇▇▇▇▇▇ & Co. Inc., issue, sell, offer or agree to sell, grant any option for
the sale of, pledge, make any short sale or maintain any short position,
establish or maintain an open "put equivalent position" (within the meaning
of Rule 16-a-1(h) under the Securities Exchange Act of 1934, as amended),
enter into any swap, derivative transaction or other arrangement that
transfers to another, in whole or in part, any of the economic consequences
of ownership of the Common Stock (whether any such transaction is to be
settled by delivery of Common Stock, ADSs, other securities, cash or other
consideration) or otherwise dispose (or publicly announce the undersigned's
intention to do any of the foregoing) of, directly or indirectly, any Common
Stock, ADSs or other capital stock of the Company or any securities
convertible into, exercisable for or exchangeable for Common Stock, ADSs or
other capital stock of the Company that the undersigned currently
beneficially owns (within the meaning of Rule 13d-3 under the Exchange Act),
directly or indirectly, or may beneficially own, directly or indirectly in
the future and (ii) authorizes the Company during the Lock-Up Period to cause
the transfer agent to decline to transfer and/or to note stop transfer
restrictions on the
a-1
transfer books and records of the Company with respect to any ADSs, Common Stock
and any securities convertible into exercisable or exchangeable for Common Stock
for which the undersigned is the record holder and, in the case of any such
share or securities for which the undersigned is the beneficial but not the
record holder, agrees to cause the record holder to cause the transfer agent to
decline to transfer and/or to note stop transfer restrictions on such books and
records with respect to such shares or securities.
The undersigned further agrees, from the date hereof until the
end of the Lock-up Period, that the undersigned will not exercise and will waive
his, her or its rights, if any, to require the Company to register its Common
Stock and to receive notice thereof.
The undersigned hereby represents and warrants that the
undersigned has full power and authority to enter into the agreements set forth
herein, and that, upon request, the undersigned will execute any additional
documents necessary in connection with enforcement hereof. Any obligations of
the undersigned shall be binding upon the successors and assigns of the
undersigned.
Very truly yours,
a-2