<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 18, 1996
REGISTRATION NO. 333-9609
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 5
TO
FORM F-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
OCCIDENTE Y CARIBE CELULAR S.A.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
WESTERN & CARIBBEAN CELLULAR INC.
(TRANSLATION OF REGISTRANT NAME INTO ENGLISH)
COLOMBIA
(STATE OR OTHER JURISDICTION OF INCORPORATION OR ORGANIZATION)
4812
(PRIMARY STANDARD INDUSTRIAL CLASSIFICATION CODE NUMBER)
CARRERA 55 NO. 49-101
MEDELLIN, COLOMBIA
57-4-512-9090
(ADDRESS AND TELEPHONE NUMBER OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
<TABLE>
<S> <C>
With a copy to:
CT CORPORATION SYSTEM TIMOTHY G. MASSAD, ESQ.
1633 BROADWAY, NEW YORK, NEW YORK 10019 CRAVATH, SWAINE & MOORE
(212) 664-1666 WORLDWIDE PLAZA
(NAME, ADDRESS, INCLUDING ZIP CODE, AND 825 EIGHTH AVENUE
TELEPHONE NUMBER, NEW YORK, NY 10019-7475
INCLUDING AREA CODE, OF AGENT FOR SERVICE OF (212) 474-1000
PROCESS)
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the
Registration Statement becomes effective.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, please check the following box. [ ]
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION (THE "SEC"),
ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Directors who vote in favor of a resolution and officers who perform any
act, or omit to do so, in connection with their responsibilities are jointly and
severally liable to the Company, the shareholders and third parties for any
direct damages resulting from their fault, willful misconduct or gross
negligence. There is a presumption of fault in cases where directors or officers
breach their duties or violate the law or by-laws of the Company. Directors and
officers also have criminal liability where they provide false information to
government authorities or officers or to any other person through written
statements or certifications (including by a prospectus) or permit, tolerate,
order or cover up fraudulent information (deceit) in the financial statements of
the Company.
Under Colombian law, the Company can indemnify its directors and officers
and purchase director and officer insurance. However, the Company's by-laws
currently do not provide for indemnification of directors or officers, and the
Company presently does not have any director and officer insurance in effect.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(A) EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
-------- ------------------------------------------------------------------------------
<C> <C> <S>
*3.01 -- By-laws of Occidente y Caribe Celular S.A., as amended.
</TABLE>
<TABLE>
<C> <C> <S>
*4.01 -- Indenture dated as of June 1, 1996, between Occidente y Caribe Celular S.A.
and The Bank of New York, as Trustee.
*4.02 -- Form of Old Note.
*4.03 -- Form of New Note (contained in Exhibit 4.02).
*4.04 -- Registration Rights Agreement dated as of June 7, 1996, among Occidente y
Caribe Celular S.A., and Merrill Lynch & Co. and ING Baring (U.S.) Securities,
Inc.
*4.05 -- Letter of Transmittal to The Bank of New York as Exchange Agent for the
exchange of 14% Series B Senior Discount Notes due 2004 which have been
registered under the United States Securities Act of 1933 for 14% Senior
Discount Notes due 2004.
*4.06 -- Form of Notice of Guaranteed Delivery.
5.01 -- Opinion and Consent of Cravath, Swaine & Moore as to the legality of
securities being registered.
*5.02 -- Opinion of Holguin, Neira y Pombo Abogados as to the legality of securities
being registered.
8.01 -- Opinion and consent of Cravath, Swaine & Moore as to certain tax matters.
*10.01 -- Purchase Agreement dated May 31, 1996, among Occidente y Caribe Celular S.A.,
and Merrill Lynch & Co. and ING Baring (U.S.) Securities, Inc.
*10.02 -- Credit Agreement dated as of June 6, 1996, among Occidente y Caribe Celular
S.A., the lenders named therein, ING Bearing (U.S.) Securities, Inc. and
Merrill Lynch & Co., as Arrangers, and ING Bank, N.V. and ING (U.S.) Capital
Corporation, as Administrative and Collateral Agents.
*10.03 -- Concession Agreement dated March 28, 1994, between Occidente y Caribe Celular
S.A. and the Colombian Ministry of Communications.
</TABLE>
II-1
<PAGE> 3
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
-------- ------------------------------------------------------------------------------
<C> <C> <S>
*10.04 -- Interconnection Agreement dated August 8, 1994, between Occidente y Caribe
Celular S.A. and Empresas Publicas de Medellin.
*10.05 -- Interconnection Agreement dated April 17, 1995, between Occidente y Caribe
Celular S.A. and Empresas Municipales de Cali.
*10.06 -- Interconnection Agreement dated December 26, 1994, between Occidente y Caribe
Celular S.A. and Empresas Publicas de Manizales.
*10.07 -- Interconnection Agreement dated November 3, 1995, between Occidente y Caribe
Celular S.A. and Empresas Publicas de Pereira.
*10.08 -- Interconnection Agreement dated November 9, 1995, between Occidente y Caribe
Celular S.A. and Empresa de Telecomunicaciones de Armenia.
*10.09 -- Interconnection Letter of Intent dated January 25, 1995, between Occidente y
Caribe Celular S.A. and Empresas Departamentales de Antioquia.
*10.10 -- Interconnection Letter of Intent dated April 10, 1995, between Occidente y
Caribe Celular S.A. and Telecom.
*10.11 -- Warrant Agreement dated as of June 7, 1996, between Occidente y Caribe Celular
S.A. and The Bank of New York, as Warrant Agent.
*12.01 -- Statement re Computation of Fixed Charge Coverage Deficiency
23.01 -- Consent of Cravath, Swaine & Moore (contained in Exhibit 5.01).
*23.02 -- Consent of Holguin, Neira y Pombo Abogados (contained in Exhibit 5.02).
*23.03 -- Consent of Doctor Lucy Cruz de Quinones
*23.04 -- Consent of KPMG Peat Marwick.
*25.01 -- Statement of Eligibility of Trustee on Form T-1.
</TABLE>
- ---------------
* Previously filed.
(B) FINANCIAL STATEMENT SCHEDULES
<TABLE>
<CAPTION>
SCHEDULE
NUMBER DESCRIPTION OF SCHEDULE
-------- ------------------------------------------------------------------------------
<C> <C> <S>
II Valuation and Qualifying Accounts
</TABLE>
All other schedules are omitted because they are not applicable or not
required.
ITEM 22. UNDERTAKINGS
The undersigned registrant hereby undertakes that:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1993;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) of this Securities Act) if, in the aggregate, the
changes in
II-2
<PAGE> 4
volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement:
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(4) To file a post-effective amendment to the registration statement to
include any financial statements required by Rule 3-19 of Regulation S-X at the
start of any delayed offering or throughout a continuous offering. Financial
statements and information otherwise required by Section 10(a)(3) of the
Securities Act need not be furnished.
(5) Insofar as indemnification for liability arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant, will unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question of whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
(6) The undersigned registrant hereby undertakes as follows: that prior to
any public reoffering of the securities registered hereunder through use of a
prospectus which is a part of this registration statement, by any person or
party who is deemed to be an underwriter within the meaning of Rule 145(c), the
issuer undertakes that such reoffering prospectus will contain the information
called for by the applicable registration form with respect to reofferings by
persons who may be deemed to be underwriters, in addition to the information
called for by the other Items of the applicable form.
(7) The registrant undertakes that every prospectus: (i) that is filed
pursuant to paragraph (6) immediately preceding, or (ii) that purports to meet
the requirements of Section 10(a)(3) of the Act and is used in connection with
an offering of securities subject to Rule 415, will be filed as a part of an
amendment to the registration statement and will not be used until such
amendment is effective, and that, for purposes of determining any liability
under the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
II-3
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has duly
caused this Amendment to the Registration Statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in Medellin, Colombia on November
18, 1996.
OCCIDENTE Y CARIBE CELULAR S.A.
/s/ GILBERTO ECHEVERRI-MEJiA
By:
Gilberto Echeverri-Mejia
President
Pursuant to the requirements of the Securities Act, this Amendment to the
Registration Statement has been signed below by the following persons in the
capacities indicated on November 18, 1996.
<TABLE>
<CAPTION>
SIGNATURES TITLE
- --------------------------------------------- ------------------------------------------
<C> <S>
/s/ GILBERTO ECHEVERRI-MEJiA President (principal executive officer)
- ---------------------------------------------
Gilberto Echeverri-Mejia
/s/ ALVARO H. MUNOZ R. Vice President-Finance (principal
- --------------------------------------------- financial officer)
Alvaro H. Munoz R.
/s/ CARLOS H. RAMiREZ Director of Accounting (principal
- --------------------------------------------- accounting officer)
Carlos H. Ramirez
/s/ JULIO M. AYERBE-MUNOZ Director
- ---------------------------------------------
Julio M. Ayerbe-Munoz
/s/ RAUL CANAL-CARDENAS Director
- ---------------------------------------------
Raul Canal-Cardenas
/s/ ANA I. JARAMILLO-MEJiA Director
- ---------------------------------------------
Ana I. Jaramillo-Mejia
/s/ LUIS F. DANGOND-LACOUTOURE Director
- ---------------------------------------------
Luis F. Dangond-Lacoutoure
/s/ JABIB CHAR ABDALA Director
- ---------------------------------------------
Jabib Char Abdala
/s/ MAURICIO RESTREPO-GUTIERREZ Director
- ---------------------------------------------
Mauricio Restrepo-Gutierrez
/s/ LUIS ESTEBAN ECHAVARRiA Director
- ---------------------------------------------
Luis Esteban Echavarria
/s/ JON R. HILL Director
- ---------------------------------------------
Jon R. Hill
/s/ DOMINIC CROLLA Director
- ---------------------------------------------
Dominic Crolla
/s/ DONALD J. PUGLISI Authorized Representative in the United
- --------------------------------------------- States
Donald J. Puglisi
</TABLE>
II-4
<PAGE> 6
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGE
-------- ------------------------------------------------------------------ ------------
<C> <C> <S> <C>
*3.01 -- By-laws of Occidente y Caribe Celular S.A., as amended............
*4.01 -- Indenture dated as of June 1, 1996, between Occidente y Caribe
Celular S.A. and The Bank of New York, as Trustee.................
*4.02 -- Form of Old Note..................................................
*4.03 -- Form of New Note (contained in Exhibit 4.02)......................
*4.04 -- Registration Rights Agreement dated as of June 7, 1996, among
Occidente y Caribe Celular S.A., and Merrill Lynch & Co. and ING
Baring (U.S.) Securities, Inc.....................................
*4.05 -- Letter of Transmittal to The Bank of New York as Exchange Agent
for the exchange of 14% Series B Senior Discount Notes due 2004
which have been registered under the United States Securities Act
of 1933 for 14% Senior Discount Notes due 2004....................
*4.06 -- Form of Notice of Guaranteed Delivery.............................
5.01 -- Opinion and Consent of Cravath, Swaine & Moore as to the legality
of securities being registered....................................
*5.02 -- Opinion of Holguin, Neira y Pombo Abogados as to the legality of
securities being registered.......................................
8.01 -- Opinion and consent of Cravath, Swaine & Moore as to certain tax
matters...........................................................
*10.01 -- Purchase Agreement dated May 31, 1996, among Occidente y Caribe
Celular S.A., and Merrill Lynch & Co. and ING Baring (U.S.)
Securities, Inc...................................................
*10.02 -- Credit Agreement dated as of June 6, 1996, among Occidente y
Caribe Celular S.A., the lenders named therein, ING Bearing (U.S.)
Securities, Inc. and Merrill Lynch & Co., as Arrangers, and ING
Bank, N.V. and ING (U.S.) Capital Corporation, as Administrative
and Collateral Agents.............................................
*10.03 -- Concession Agreement dated March 28, 1994, between Occidente y
Caribe Celular S.A. and the Colombian Ministry of
Communications....................................................
*10.04 -- Interconnection Agreement dated August 8, 1994, between Occidente
y Caribe Celular S.A. and Empresas Publicas de Medellin...........
*10.05 -- Interconnection Agreement dated April 17, 1995, between Occidente
y Caribe Celular S.A. and Empresas Municipales de Cali............
*10.06 -- Interconnection Agreement dated December 26, 1994, between
Occidente y Caribe Celular S.A. and Empresas Publicas de
Manizales.........................................................
*10.07 -- Interconnection Agreement dated November 3, 1995, between
Occidente y Caribe Celular S.A. and Empresas Publicas de
Pereira...........................................................
*10.08 -- Interconnection Agreement dated November 9, 1995, between
Occidente y Caribe Celular S.A. and Empresa de Telecomunicaciones
de Armenia........................................................
*10.09 -- Interconnection Letter of Intent dated January 25, 1995, between
Occidente y Caribe Celular S.A. and Empresas Departamentales de
Antioquia.........................................................
*10.10 -- Interconnection Letter of Intent dated April 10, 1995, between
Occidente y Caribe Celular S.A. and Telecom.......................
*10.11 -- Warrant Agreement dated as of June 7, 1996, between Occidente y
Caribe Celular S.A. and The Bank of New York, as Warrant Agent....
*12.01 -- Statement re Computation of Fixed Charge Coverage Deficiency
23.01 -- Consent of Cravath, Swaine & Moore (contained in Exhibit 5.01)....
</TABLE>
<PAGE> 7
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGE
-------- ------------------------------------------------------------------ ------------
<C> <C> <S> <C>
*23.02 -- Consent of Holguin, Neira y Pombo Abogados (contained in Exhibit
5.02).............................................................
*23.03 -- Consent of Doctor Lucy Cruz de Quinones...........................
*23.04 -- Consent of KPMG Peat Marwick......................................
*25.01 -- Statement of Eligibility of Trustee on Form T-1...................
</TABLE>
- ---------------
* Previously filed.
<PAGE> 1
November 13, 1996
OCCIDENTE Y CARIBE CELULAR S.A.
REGISTRATION STATEMENT ON FORM F-4
Dear Sirs:
We have acted as United States counsel to Occidente y Caribe Celular S.A.
(the "Company"), a corporation organized under the laws of Colombia, in
connection with the registration under the Securities Act of 1933, as amended
(the "Securities Act"), of US$190,745,000 aggregate principal amount at maturity
of 14% Series B Senior Discount Notes due 2004 (the "New Notes"), to be issued
in exchange for up to US$190,745,000 aggregate principal amount at maturity of
14% Senior Discount Notes due 2004 (the "Old Notes") pursuant to an exchange
offer registered under the Securities Act. The Old Notes were issued, and the
New Notes are to be issued, pursuant to an Indenture dated as of June 1, 1996,
between the Company and the Bank of New York, as Trustee (the "Indenture").
In that connection, we have examined originals, or copies certified or
otherwise identified to our satisfaction, of such documents, corporate records
and other instruments as we have deemed necessary for the purposes of this
opinion, including: (a) the Indenture, (b) the Registration Statement on Form
F-4 (Registration No. 333-9609, the "Registration Statement") filed with the
Securities and Exchange Commission (the "SEC") on August 6, 1996, (c) Amendment
No. 1 to the Registration Statement filed with the SEC on November 4, 1996 and
(d) the form of New Note filed as an exhibit to the Registration Statement.
Assuming (i) the Indenture has been duly authorized, executed and delivered
by the Company and the Trustee and that the Trustee has been duly qualified
under the Trust Indenture Act of 1939, (ii) the New Notes are in the form filed
as an exhibit to the Registration Statement, (iii) the New Notes are duly
authorized, executed and delivered by the Company in accordance with the
provisions of the Indenture, (iv) the New Notes are duly authenticated by the
Trustee in accordance with the Indenture, and (v) the New Notes are duly issued
and delivered against delivery of the Old Notes, the New Notes will constitute
the legal, valid and binding obligations of the Company (subject to applicable
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws affecting creditors' rights generally from time to time in effect
and to general principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing, regardless of whether
considered in a proceeding at law or in equity).
We are admitted to practice in the State of New York, and we express no
opinion as to matters governed by any laws other than the laws of the State of
New York and the federal laws of the United States of America. In particular, we
do not purport to pass on any matter governed by the laws of Colombia.
We are aware that we are referred to under the heading "Legal Matters" in
the Registration Statement, and we hereby consent (i) to the use of our name in
the Registration Statement and (ii) to the filing of this opinion as an exhibit
to Amendment No. 2 to the Registration Statement.
Very truly yours,
Cravath, Swaine & Moore
Occidente y Caribe Celular S.A.
Carrera 55 No. 49-101
Medellin, Colombia
<PAGE> 1
[LETTERHEAD OF]
CRAVATH, SWAINE & MOORE
November 13, 1996
OFFER TO EXCHANGE 14% SERIES B
SENIOR DISCOUNT NOTES DUE 2004,
WHICH HAVE BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933,
AS AMENDED, FOR OUTSTANDING 14% SENIOR
DISCOUNT NOTES DUE 2004
Dear Sirs:
We have acted as United States tax counsel to Occidente y Caribe Celular
S.A. (the "Company") in connection with the proposed offer (the "Exchange
Offer") by the Company to exchange 14% Series B Senior Discount Notes due 2004
(the "Exchange Notes"), which have been registered with the United States
Securities and Exchange Commission under the United States Securities Act of
1933, as amended, for its 14% Senior Discount Notes due 2004 (the "Outstanding
Notes," and collectively with the Exchange Notes, the "Notes"). Unless otherwise
defined herein, capitalized terms used herein have the respective meanings
ascribed to those terms in the Registration Statement on Form F-4 filed with the
SEC on August 6, 1996 (the "Registration Statement").
In arriving at the opinion expressed below, we have examined and relied
upon the following documents:
(a) the Registration Statement;
(b) the form of Indenture between the Company and The Bank of New York, as
Trustee; and
(c) the form of Registration Rights Agreement.
We have also read and relied upon originals or copies, certified or
otherwise identified to our satisfaction, of such corporate records of the
Company and such certificates and representations of officers and
representatives of the Company, and we have made such investigations of law as
we have deemed appropriate as a basis for the opinion expressed below. In our
examination, we have assumed the authenticity of original documents, the
accuracy of copies and the genuineness of signatures. We understand and assume
that (i) each agreement referred to in clauses (a) through (c) above represents
the valid and binding obligation of the respective parties thereto, enforceable
in accordance with its respective terms, and represents the entire agreement
between the parties with respect to the subject matter thereof, (ii) the parties
to each agreement have complied, and will comply, with all of their respective
covenants, agreements and undertakings contained therein, and (iii) the
transactions provided for by each agreement were and will be carried out in
accordance with their terms.
Our opinion is based upon existing United States federal income tax laws,
regulations, administrative pronouncements and judicial decisions. All such
authorities are subject to change, either prospectively or retroactively. No
assurance can be provided as to the effect of any such change upon our opinion.
The opinion set forth herein has no binding effect on the United States
Internal Revenue Service or the courts of the United States. No assurance can be
given that, if the matter were contested, a court would agree with the opinion
set forth herein.
<PAGE> 2
Based upon the foregoing, we advise you that in our opinion, except as to
the factual matters and subject to the qualifications and limitations set out in
the Registration Statement under the caption "Taxation," the statements of legal
conclusions contained in the Registration Statement under the caption "Taxation
- -- United States" are correct in all material respects.
In giving the foregoing opinion, we express no opinion other than as to the
federal income tax law of the United States of America.
We are furnishing this letter in our capacity as United States tax counsel
to the Company, and this letter is solely for the Company's benefit. This letter
is not to be used, circulated, quoted or otherwise referred to for any other
purpose, except as set forth below.
We consent to the reference to our firm under the caption "Taxation" in the
Registration Statement.
Very truly yours,
Cravath, Swaine & Moore
Occidente y Caribe Celular S.A.
Carrera 55 No. 49-101
Medellin, Colombia
