EXHIBIT 99.5
RIGHTS AGENCY AGREEMENT
The Bank of New York
101 Barlcay Street, 12W
Reorganization Administration
New York, New York 10286
Ladies and Gentlemen:
RIGHTS AGENCY AGREEMENT (the "Agreement"), dated as of ___________,
2001, between TRICOM, S.A. (the "Company"), incorporated under the laws of
Dominican Republic, and THE BANK OF NEW YORK, a New York banking corporation
(the "Rights Agent").
WHEREAS, the Company will grant to existing owners of American
Depositary Shares ("ADSs") issued under the Deposit Agreement dated as of May 4,
1998, among the Company, The Bank of New York, as Depositary (the "Depositary")
and all Owners (as defined therein) and holders of American Depositary Receipts
issued thereunder from time to time (the "Deposit Agreement"), that are
registered on the books of the Depositary (the "Owners"), the right to purchase
additional ADSs at a subscription price of $______________ (the "Rights Offer").
Each ADS represents one share of Class A Common Stock, par value RD$10 per share
("Shares"), of the Company.
WHEREAS, the Rights Offer is expected to be commenced on or
________________. The Rights Offer will be made to each of the Owners by means
of the prospectus dated _________________ (the "Prospectus"), which will be
accompanied by a letter of transmittal containing instructions with respect to
the number of ADSs that may be purchased, the method for subscribing and the
delivery of payment (the "Letter of Transmittal"). The section of the Letter of
Transmittal entitled INSTRUCTIONS WITH RESPECT TO THE RIGHTS OFFER is to be used
by the Owners to subscribe for additional ADSs in the Rights Offer (the "Owner's
Instructions").
NOW, THEREFORE, in consideration of the premises and mutual agreements
herein, the Company and the Rights Agent hereby agree as follows:
ARTICLE I -- APPOINTMENT OF THE RIGHTS AGENT
The Company hereby appoints The Bank of New York as the Rights Agent of
the Company in connection with the Rights Offer in accordance with the terms and
conditions
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of this Agreement and The Bank of New York hereby accepts such appointment and
agrees to be bound by the terms and conditions of this Agreement upon execution
of this Agreement.
ARTICLE II -- TERMS OF RIGHTS OFFER
1. The subscription period will commence on or about
___________________ (the "Commencement Date") and will end on _______________
(the "Expiration Date"). The Commencement Date through 5:00 p.m. New York time
on the Expiration Date will constitute the subscription period (the
"Subscription Period").
2. Owners holding ADSs as of ____________, 2001 (the "Record
Date") may purchase ADSs pursuant to the Rights Offer at the subscription price
of $________________ per ADS (the "Subscription Price").
ARTICLE III -- DELIVERY OF RIGHTS OFFER MATERIAL
1. On or before ____ days prior to the Commencement Date, the
Company will deliver to the Rights Agent sufficient copies of the Prospectus,
the Letter of Transmittal (including instructions as to the use thereof and, on
the reverse thereof, a substitute Form W-9), Guidelines for Certification of
Taxpayer Identification Number of Substitute Form W-9 (the "Guidelines").
2. Unless otherwise instructed in writing by the Company, on
the Record Date the Rights Agent shall send to each Owner as of the Record Date
(i) a Prospectus, (ii) a Letter of Transmittal, (iii) the Guidelines, and (iv) a
return envelope addressed to the Rights Agent for use by such Owner (such
material, collectively, the "Rights Offer Material").
3. In the event that the Rights Offer Material is returned to
the Rights Agent for any reason and a proper delivery thereof cannot be effected
to an Owner, the Rights Agent shall hold such Rights Offer Material and the
related Owner's right to purchase ADSs under the Rights Offer will be treated as
unexercised. The Rights Agent shall supply the Company with such information as
the Company may request with respect to any Rights Offer Material that cannot be
delivered to an Owner.
4. In the event that, prior to the Expiration Date, any Owner
notifies the Rights Agent that the Rights Offer Material to which such Owner is
entitled has not been delivered, or has been lost, stolen or destroyed, the
Rights Agent will furnish to such Owner a copy of the Rights Offer Material. The
Company agrees to supply the Rights Agent with sufficient copies of the Rights
Offer Materials for such purposes.
ARTICLE IV -- ACCEPTANCE OF SUBSCRIPTIONS
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1. The Rights Agent is hereby authorized and directed to
receive subscriptions for ADSs on behalf of the Company throughout the
Subscription Period. Any funds that the Rights Agent receives during the
Subscription Period from Owners in respect of payments for ADSs shall be
deposited in an interest bearing account at the Rights Agent that the Rights
Agent designates solely for such purpose (the "Deposit Account") and such funds
shall remain in the Deposit Account until they are distributed to the Company in
accordance with Article __, paragraph __ hereof.
As promptly as practicable after the Rights Agent receives
each Owner's Instruction, the Rights Agent shall determine whether the Owner
sending such Owner's Instruction has properly completed and executed such forms
and has submitted the correct payment for the ADSs. If such form is not properly
completed, is unexecuted or, if such Owner did not send the correct payment
amount then the Rights Agent will send a notice to such Owner instructing such
Owner to amend its Owner's Instruction or submit the proper payment amount, as
the case may be. Except as set forth in Section ______ hereof, if such Owner
does not amend its Owner's Instruction or submit the proper payment amount, as
the case may be, by the Expiration Date, such Owner's right to purchase ADSs in
the Rights Offer shall be deemed to be unexercised.
Notwithstanding the foregoing, without further authorization
from the Company, except where otherwise specified or as otherwise notified in
writing by the Company prior to the Expiration Date, the following Owner's
Instructions shall be deemed to be properly completed:
(a) any subscription with respect to which an Owner has failed to
execute an Owner's Instruction in the manner provided by the terms
thereof, provided that (1) the Owner has indicated on such Owner's
Instruction or by written communication, the manner in which the Owner
wishes to subscribe and (2) proper payment has been made by such Owner;
(b) any subscription by an individual (and not by a corporation,
partnership or fiduciary) which is accompanied by a check drawn by an
individual (and not by a corporation, partnership or fiduciary) other
than the Owner, provided that (1) the Owner's Instruction submitted
therewith has been duly executed by the Owner, (2) the Owner is the
Owner to which such Owner's Instruction relates, (3) the check tendered
in payment of such subscription is drawn for the proper amount and to
the order of The Bank of New York and is otherwise in order, and (4)
there is no evidence actually known to the Rights Agent indicating that
such check was delivered to the Owner by the drawer thereof for any
purpose other than the payment of the accompanying subscription;
(c) any subscription by a custodian on behalf of a minor which is
accompanied by a check drawn by an individual (and not by a
corporation, partnership or fiduciary) other than the Owner, if the
provisos set forth in clause (b) above are satisfied; or
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(d) any subscription by an individual (and not by a corporation,
partnership or fiduciary) which is accompanied by a check drawn by a
corporation, partnership or fiduciary other than the Owner, if the
provisos set forth in clause (b) above are satisfied.
2. The Rights Agent is hereby authorized to accept
subscriptions for ADSs on behalf of the Company (i) on the Expiration Date, (ii)
after determining the total number of ADSs that an owner is entitled to purchase
in the Rights Offer, pursuant to Article VI hereof, and (iii) upon the proper
completion and execution of the Owner's Instruction, in accordance with the
terms thereof and hereof.
3. The Rights Agent is authorized to waive proof of authority
to sign (including the right to waive signatures of co-fiduciaries and proof of
appointment or authority of any fiduciary or other person acting in a
representative capacity) in connection with any subscription with respect to
which:
(a) the ADSs to which the Owner's Instruction relates are registered in
the name of an executor, administrator, trustee, custodian for a minor
or other fiduciary and has been executed by such Owner provided that
the ADSs purchased are to be issued in the name of such Owner;
(b) the ADSs to which the Owner's Instructions relates are registered
in the name of a corporation and the Owner's Instruction has been
executed by an officer of such corporation, provided that the ADSs
purchased are to be issued in the name of such corporation;
(c) the Owner's Instruction has been executed by a bank, trust company
or broker as agent for the Owner to which such Owner's Instruction
relates, provided that the ADSs purchased are to be issued in the name
of such Owner; or
(d) the ADSs to which such Owner's Instructions relates are registered
in the name of a decedent and the Owner's Instruction has been executed
by a person who purports to act as the executor or administrator of
such decedent's estate, provided that (1) the ADSs are to be issued in
the name of such person as executor or administrator of such decedent's
estate, (2) the check tendered in payment of such subscription is drawn
for the proper amount and to the order of The Bank Of New York and is
otherwise in order, and (3) there is no evidence actually known to the
Rights Agent indicating that such person is not the duly authorized
representative which such person purports to be.
ARTICLE V -- REPORTS BY THE RIGHTS AGENT
1. The Rights Agent will advise the Company by facsimile
transmission (i) on the Commencement Date as to the total number of Owners and
the total number of ADSs
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outstanding; and (ii) on _________________ and _______________ during the
Subscription Period as to (1) the total number of subscriptions for ADSs
pursuant to the Rights Offer that the Rights Agent has received (which have been
properly completed and executed and for which the correct payment amount was
received), (2) the aggregate amount of funds received by the Rights Agent in
payment of such subscriptions and (3) the total number of Owners which the
Rights Agent has notified pursuant to Article IV, paragraph 1 hereof that their
Owner's Instruction was not properly completed or that the correct payment
amount for the ADSs was not received.
2. Not later than 5:00 p.m. (New York City time) on the
Expiration Date the Rights Agent will advise the Company by facsimile
transmission as to (i) the total number of ADSs subscribed for in the Rights
Offer and the total number of Shares represented thereby and (ii) the aggregate
amount of funds received by the Rights Agent in payment of such subscriptions.
ARTICLE VI -- PAYMENTS; INTEREST ON SUBSCRIPTION PAYMENTS; REFUNDS
1. Promptly after the Expiration Date, the Company will
deposit the Shares underlying the ADSs with _______________, as custodian under
the Deposit Agreement and will request that the Depositary confirm such deposit
with the Rights Agent. Once the Rights Agent receives confirmation that the
Shares have been deposited, the Rights Agent shall tender to the Company the
aggregate amount of funds held in the Deposit Account representing the
Subscription Price for the ADSs. The payment shall be made in same day funds by
wire transfer, in U.S. dollars to a bank account specified by the Company.
2. At the time that the Rights Agent tenders payment to the
Company, the Rights Agent shall pay to the Company an amount in respect of the
interest accrued on cleared funds received by the Rights Agent for subscription
payments received and held by the Rights Agent in the Deposit Account prior to
the payment of such monies to the Company. The interest payable to the Company
in respect of unremitted subscription payments shall be calculated daily on the
basis of the aggregate amount of cleared subscription payments received as
reflected in the reports delivered to the Company pursuant to Article __ using a
rate equal to the rate allowed, from time to time, by The Bank of New York for
its accounts entitled "Deposit Reserves."
ARTICLE VII -- ISSUANCE OF ADRs
1. Following receipt of the Shares issued in respect of the
ADSs properly purchased pursuant to the Rights Offer, and in accordance with the
terms of the Deposit Agreement, the Rights Agent will mail or deliver an
American Depositary Receipt (an "ADR") as instructed to each Owner of ADSs,
evidencing the number of ADSs for which
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such Owner has subscribed. Each ADR certificate will be registered in the name
specified by the Owner on their Owner's Instruction.
2. The Rights Agent will mail the ADR certificates by
___________ mail under a blanket surety bond protecting the Rights Agent and the
Company from any loss or liability arising out of the nonreceipt or nondelivery
of any such certificate or the replacement thereof. If the market value of
securities to be mailed in any one shipment will exceed $__________, such
shipment will be sent by registered mail and will be insured separately for the
replacement value of its contents.
ARTICLE VIII -- LIMITATIONS OF DUTIES
1. The Rights Agent shall have no duties or obligations other
than those specifically set forth herein, including any duties or obligations
under any other agreement, and no implied duties or obligations shall be read
into this Agreement against the Rights Agent.
2. The Rights Agent makes no, and will not be deemed to have
made, any representations with respect to, and shall have no duties,
responsibilities or obligations with respect to determining, the validity,
sufficiency, value or genuineness of any Shares, Letter of Transmittal or other
documents deposited with or delivered to it or any signature or endorsement set
forth on or in connection with such documents.
3. The Rights Agent shall not be obligated to take any legal
action hereunder which might in the Rights Agent's judgement involve any expense
or liability, unless the Rights Agent shall have been furnished with indemnity
satisfactory to the Rights Agent.
4. The Rights Agent shall not be liable for or by reason of
any of the statements of fact or recitals contained in this Agreement, the
Letter of Transmittal or any other Rights Offer Materials or be required to
verify the same; and may rely upon and comply with, and shall be fully
indemnified and held harmless for relying upon and complying with, any Letter of
Transmittal or other Rights Offer Material, certificate, instrument, opinion of
counsel, notice, letter, telegram, records, or other document or security
delivered to it in connection with this Agreement.
5. The Rights Agent may consult with legal counsel for the
Company or its own counsel (which may be in-house counsel) and rely upon any
opinion of such counsel, and shall have no liability in respect of any action
taken, omitted or suffered by the Rights Agent hereunder in reliance upon, and
in accordance with, any such opinion.
6. The Rights Agent is hereby authorized and directed to
accept instructions with respect to the performance of its duties hereunder from
the Company, and to apply to
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the Company for advice or instructions in connection with its duties, and it
shall not be liable for any action taken or suffered to be taken by it in good
faith in accordance with instructions of any such officer or for any delay in
acting while waiting for those instructions. Any application by the Rights Agent
for written instructions from the Company may, at the option of the Rights
Agent, set forth in writing any action proposed to be taken or omitted by the
Rights Agent under this Agreement and the date on/or after which such action
shall be taken or such omission shall be effective. The Rights Agent shall not
be liable for any action taken by, or omission of, the Rights Agent in
accordance with a proposal included in such application on or after the date
specified in such application (which date shall not be less than three business
days after the date the Company actually receives such application, unless the
Company shall have consented in writing to any earlier date) unless prior to
taking any such action (or the effective date in the case of an omission), the
Rights Agent shall have received written instructions in response to such
application specifying the action to be taken or omitted.
7. The Rights Agent shall escheat any property held by the
Rights Agent in accordance with applicable law.
ARTICLE IX -- COMPENSATION; PAYMENT OF EXPENSES
1. In consideration for the services rendered herein, the
Company agrees to pay to the Rights Agent such compensation as shall be agreed
in writing between the Company and the Rights Agent for all services rendered by
it hereunder and, from time to time, on demand of the Rights Agent, its
reasonable out-of-pocket expenses and counsel fees and other reasonable
disbursements incurred in the administration and execution of this Agreement and
the exercise and performance of its duties hereunder.
2. No provision of this Agreement shall require the Rights
Agent to expend or risk the Rights Agent's own funds or otherwise incur any
financial liability in the performance of any of the Rights Agent's duties
hereunder or in the exercise of the Rights Agent's rights.
ARTICLE X -- TERMINATION OF AGENCY
1. Unless terminated earlier by the parties hereto, this
Agreement shall terminate ___ (_) days after the Closing Date (the "Termination
Date"). On the business day following the Termination Date, the Rights Agent
shall deliver to the Company any Rights Offer entitlements, if any, held by the
Rights Agent under this Agreement. The Rights Agent's right to be reimbursed for
fees, charges and out-of-pocket expenses as provided in Article IX paragraph 1
above and the indemnification provisions of Article XI paragraph 2 below shall
survive the termination of this Agreement.
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ARTICLE XI - LIMITATION OF LIABILITY; INDEMNIFICATION
1. The Rights Agent shall not be liable for any Losses (as
defined below) or action taken or omitted or for any loss or injury resulting
from its actions or performance or lack of performance of its duties hereunder
in the absence of gross negligence, bad faith or willful misconduct on its part.
In no event shall the Rights Agent be liable for (I) acting in accordance with
the instructions from the Company, (II) special, consequential or punitive
damages, or (III) any Losses due to forces beyond the control of the Rights
Agent, including without limitation, strikes, work stoppages, acts of war or
terrorism, insurrection, revolution, nuclear or natural catastrophes or acts of
God, and interruptions, loss or malfunctions of utilities, communications or
computer (software and hardware) services.
2. The Company shall be liable for and shall indemnify and
hold harmless the Rights Agent, its directors, employees, agents and affiliates
against any and all claims, losses, liabilities, damages, expenses or judgments
(including attorney's fees and expenses) (collectively referred to herein as
"Losses") arising from or in connection with this Agreement or the performance
of the Rights Agent's duties hereunder, the enforcement of this Agreement and
disputes between the parties hereto; PROVIDED, HOWEVER, that nothing contained
herein shall require that the Rights Agent be indemnified for its gross
negligence, bad faith or willful misconduct. The provisions of this Paragraph
shall survive termination of this Agreement or the discharge of the Rights Agent
under the terms hereof.
ARTICLE XII -- MISCELLANEOUS
1. NOTICES. All reports, notices and other communications
required or permitted to be given hereunder shall be addressed to the following
on behalf of the respective parties hereto and delivered by hand, by courier or
by first-class mail, postage prepaid, or by telecopy promptly confirmed in
writing, as follows or to such other address as may be specified in writing form
time to time:
To the Company:
TRICOM, S.A.
Ave. Lope de Vega No. 95
Santo Domingo, Dominican Republic
Attn: [ ]
To the Rights Agent:
The Bank of New York
Reorganization Administration
101 Barclay Street - 12W
-8-
New York, NY 10286
Attn: Kelly Gallagher
2. CONFIDENTIALITY. All information as to the Rights Offer
shall be held by the Rights Agent and its offices, employees, representatives
and agents in strict confidence and shall be disclosed only as required by law,
regulation or any judicial, regulatory or administrative authority, including,
for the avoidance of doubt, any banking or regulatory agency with jurisdiction
over the Rights Agent.
3. ASSIGNMENT. Neither the Rights Agent nor the Company
shall assign this Agreement without first obtaining the written consent of the
other party hereto.
4. HEADINGS. The Article and Paragraph headings contained
herein are for convenience and reference only and are not intended to define or
limit the scope of any provision of this Agreement.
5. ENTIRE AGREEMENT; AMENDMENT. This Agreement shall
constitute the entire agreement of the parties with respect to the subject
matter and supersedes all prior oral or written agreements in regard thereto.
References to any other document or agreement shall not incorporate by reference
such other document or agreement into this Agreement and shall not impose any
duties or responsibilities, obligations or liabilities on the Rights Agent under
such other document or agreement. Except as otherwise specifically provided
herein, this Agreement may be amended only by an instrument in writing duly
executed by both parties hereto.
6. GOVERNING LAW; JURISDICTION; CERTAIN WAIVERS.(a) This
Agreement shall be interpreted and construed in accordance with the internal
substantive laws (and not the choice of law rules) of the State of New York. All
actions and proceedings brought by the Rights Agent relating to or arising from,
directly or indirectly, this Agreement may be litigated in courts located within
the State of New York. The Company hereby submits to the personal jurisdiction
of such courts; hereby waives personal service of process and consents that any
such service of process may be made by certified or registered mail, return
receipt requested, directed to the Company at its address last specified for
notices hereunder; and hereby waives the right to a trial by jury in any action
or proceeding with the Rights Agent. All actions and proceedings brought by the
Company against the Rights Agent relating to or arising from, directly or
indirectly, this Agreement shall be litigated only in courts located within the
State of New York.
(b) The invalidity, illegality or unenforceability of any
provision of this Agreement shall in no way affect the validity, legality or
enforceability of any other provision; and if any provision is held to be
unenforceable as a matter of law, the other provisions shall not be affected
thereby and shall remain in full force and effect.
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7. RIGHTS AND REMEDIES. The rights and remedies conferred upon
the parties hereto shall be cumulative, and the exercise or waiver of any such
right or remedy shall not preclude or inhibit the exercise of any additional
rights or remedies. The waiver of any right or remedy hereunder shall not
preclude or inhibit the subsequent exercise of such right or remedy.
8. REPRESENTATIONS AND WARRANTIES. The Company hereby
represents, warrants and covenants that:
(a) The Company is a corporation duly organized and validly
existing under the laws of the Dominican Republic.
(b) This Agreement has been duly authorized, executed and
delivered on its behalf and constitutes the legal, valid and binding obligation
of the Company. The execution, delivery and performance of this Agreement by the
Company does not and will not violate any applicable law or regulation and does
not require the consent of any governmental or other regulatory body except for
such consents and approvals as have been obtained and are in full force and
effect. For the avoidance of doubt, all Shares and ADSs to be issued and
delivered hereunder have been registered with the Securities and Exchange
Commission and all transactions contemplated by this Agreement are in compliance
with, and not in violation of, the Securities Act of 1933, as amended, and the
Securities Exchange Act of 1934, as amended.
9. COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, TRICOM, S.A. and THE BANK OF NEW YORK have duly
executed this Rights Agency Agreement as of the day and year first set forth
above.
TRICOM, S.A.
By: ___________________________
Name:
Title:
THE BANK OF NEW YORK,
as Rights Agent
By:____________________________
Name:
Title:
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