SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): October 29, 1998
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NTL (BERMUDA) LIMITED
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(Exact name of Registrant as Specified in Charter)
Bermuda 0-24792 Not Applicable
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(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
Cedar House, 41 Cedar Ave., Hamilton, Bermuda HM 12
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (441) 295-2244
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COMCAST UK CABLE PARTNERS LIMITED
Clarendon House
2 Church Street West
Hamilton, HM 11, BERMUDA
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(Former Name or Former Address, if Changed Since Last Report)
ITEM 1. CHANGES IN CONTROL OF REGISTRANT.
Effective October 29, 1998, NTL Incorporated ("NTL"), NTL (Bermuda)
Limited, a wholly owned subsidiary of NTL ("Sub"), and Comcast UK Cable
Partners Limited (the "Registrant") consummated a transaction (the
"Amalgamation") pursuant to the Agreement and Plan of Amalgamation, dated
February 4, 1998 as amended, among the same (the "Amalgamation Agreement"),
whereby Sub amalgamated with the Registrant, such that the separate
existence of Sub and the Registrant continued in the form of the company
that resulted from the Amalgamation and which is a wholly owned subsidiary
of NTL (the "Amalgamated Company" and, effective upon the Amalgamation,
also known as the "Registrant"). Under the terms of the Amalgamation
Agreement, shareholders of the Registrant received 0.3745 shares of common
stock of NTL ("NTL Common Stock") in consideration for each of their shares
of common stock of the Registrant. Accordingly, as a result of the
Amalgamation, shareholders of the Registrant received a total of 18,764,173
shares of NTL Common Stock in the transaction, representing approximately
31.2% of the shares of NTL Common Stock expected to be outstanding after
giving effect to the consummation of the Amalgamation.
The Amalgamated Company shall operate under the name "NTL (Bermuda)
Limited". Effective as of the Amalgamation, (i) the memorandum of
association of Sub shall be the memorandum of the Amalgamated Company until
thereafter changed or amended as provided therein or by applicable law,
(ii) the bye-laws of Sub, as in effect immediately prior to the
Amalgamation, shall be the bye-laws of the Amalgamated Company until
thereafter changed or amended as provided therein or by applicable law and
(iii) the persons serving as directors and officers of Sub immediately
prior to the Amalgamation shall be the directors and officers,
respectively, of the Amalgamated Company until their successors shall have
been duly elected or appointed or qualified or until their earlier death,
resignation or removal.
In connection with the Amalgamation, NTL entered into a Registration
Rights Agreement with Comcast Corporation and Warburg, Pincus Investors,
L.P., pursuant to which the NTL is obligated to register for resale the
shares of NTL Common Stock that were issued to each of Comcast Corporation
(or any subsidiary thereof) and Warburg, Pincus Investors, L.P. as
consideration for their shares of the Registrant. In addition, each of
Comcast Corporation and Warburg, Pincus Investors, L.P. entered into a
"lock-up" agreement with NTL preventing each of them from selling,
transferring or disposing of any interest in the shares of NTL Common Stock
of NTL beneficially owned by them following the Amalgamation for a period
of 150 days after the closing of the Amalgamation.
Immediately following the Amalgamation, the Amalgamated Company and
Bank of Montreal Trust Company, as trustee, executed a First Supplemental
Indenture (the "First Supplemental Indenture") relating to the Registrant's
11.20% Senior Discount Debentures due 2007 (the "Debentures"), which
provides for the assumption by the Amalgamated Company of the liabilities
and the obligations of the Registrant under the Indenture, dated as of
November 15, 1995, governing the Debentures (together with the First
Supplemental Indenture, the "Indenture") and the Debentures issued pursuant
thereto. The First Supplemental Indenture likewise provides that the
Amalgamated Company shall succeed to, and be substituted for, and may
exercise every right and power of, the Registrant under the Indenture and
the Debentures. A copy of the First Supplemental Indenture is filed as an
exhibit hereto.
A copy of the press release issued by NTL announcing the consummation
of the Amalgamation is filed as an exhibit hereto and is incorporated
herein in its entirety by reference.
ITEM 4. CHANGES IN REGISTRANT'S CERTIFYING ACCOUNTANTS.
On October 29, 1998, the Registrant, NTL and Sub consummated a
transaction whereby Sub amalgamated with the Registrant, such that the
separate existence of each of Sub and the Registrant continued in the form
of the Amalgamated Company, a wholly owned subsidiary of NTL. The
Registrant, during its existence as Comcast UK Cable Partners Limited,
historically engaged Deloitte & Touche LLP ("Deloitte & Touche") as its
independent accountants and NTL has historically engaged Ernst & Young LLP
("Ernst & Young") as its independent accountants. Since, effective upon the
Amalgamation, the Registrant ceased to exist as Comcast UK Cable Partners
Limited but continued to exist in the form of the Amalgamated Company which
is a wholly owned subsidiary of NTL, so, effective upon the Amalgamation,
did the engagement of Deloitte & Touche as independent accountants of the
Registrant terminate. Accordingly, on October 30, 1998, NTL, as the sole
shareholder of the Amalgamated Company, approved the engagement of Ernst &
Young as its independent accountants for the fiscal year ending December
31, 1998.
The reports of the Deloitte & Touche on the Registrant's financial
statements for the past two fiscal years did not contain an adverse opinion
or a disclaimer of opinion and were not qualified or modified as to
uncertainty, audit scope, or accounting principles.
In connection with the audits of the Registrant's financial statements
for each of the two fiscal years ended December 31, 1997, and in the
subsequent interim period, there were no disagreements with Deloitte &
Touche on any matters or accounting principles or practices, financial
statement disclosure, or auditing scope and procedures, which, if not
resolved to the satisfaction of Deloitte & Touche would have caused
Deloitte & Touche to make reference to the matter in their report. The
Amalgamated Company has requested Deloitte & Touche to furnish it a letter
addressed to the Securities and Exchange Commission stating whether
Deloitte & Touche agree with the above statements. A copy of that letter
dated November 4, 1998 is filed as an exhibit hereto.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(c) Exhibits.
Exhibit 2.1 Agreement and Plan of Amalgamation, dated as of February 4,
1998, among NTL Incorporated, NTL (Bermuda) Limited and Comcast
UK Cable Partners Limited (incorporated by reference to the
Registration Statement on Form S-4 (File No. 333-64727) of the
Company).
Exhibit 2.2 Amendment No. 1 dated as of May 28, 1998 to the Agreement
and Plan of Amalgamation dated as of February 4, 1998 among
NTL Incorporated, NTL (Bermuda) Limited and Comcast UK Cable
Partners Limited (incorporated by reference to the
Registration Statement on Form S-4 (File No. 333-64727) of
the Company).
Exhibit 2.3 Amendment No. 2 dated as of August 14, 1998 to the Agreement
and Plan of Amalgamation dated as of February 4, 1998, as
amended, among NTL Incorporated, NTL (Bermuda) Limited and
Comcast UK Cable Partners Limited (incorporated by reference
to the Registration Statement on Form S-4 (File No.
333-64727) of the Company).
Exhibit 2.4 Form of Registration Rights Agreement by and among NTL
Incorporated and Comcast Corporation and Warburg, Pincus
Investors, L.P. (incorporated by reference to the
Registration Statement on Form S-4 (File No. 333-64727) of
the Company).
Exhibit 2.5 Form of Comcast Corporation Lock-Up Letter (incorporated by
reference to the Registration Statement on Form S-4 (File
No. 333-64727) of the Company).
Exhibit 2.6 Form of Warburg, Pincus Investors, L.P. Lock-Up Letter
(incorporated by reference to the Registration Statement on
Form S-4 (File No. 333-64727) of the Company).
Exhibit 3.1 Memorandum of Association
Exhibit 3.2 Bye-laws
Exhibit 4.1 First Supplemental Indenture, dated as of October 29, 1998,
between NTL (Bermuda) Limited and Bank of Montreal Trust
Company, as trustee.
Exhibit 16.1 Letter from Deloitte & Touche LLP
Exhibit 99.1 Joint Proxy Statement/Prospectus included in the Form S-4
(incorporated by reference to the Registration Statement on
Form S-4 (File No. 333-64727) of the Company).
Exhibit 99.2 Text of press release issued by NTL Incorporated on October 29,
1998.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
NTL (BERMUDA) LIMITED
By: /s/ Richard J. Lubasch
-----------------------------------------
Name: Richard J. Lubasch
Title: Senior Vice President, General
Counsel and Secretary
Dated: November 4, 1998
EXHIBIT INDEX
Exhibit Description
2.1 Agreement and Plan of Amalgamation, dated as of February 4,
1998, among NTL Incorporated, NTL (Bermuda) Limited and Comcast
UK Cable Partners Limited (incorporated by reference to the
Registration Statement on Form S-4 (File No. 333-64727) of the
Company).
2.2 Amendment No. 1 dated as of May 28, 1998 to the Agreement and
Plan of Amalgamation dated as of February 4, 1998 among NTL
Incorporated, NTL (Bermuda) Limited and Comcast UK Cable Partners
Limited (incorporated by reference to the Registration Statement
on Form S-4 (File No. 333-64727) of the Company).
2.3 Amendment No. 2 dated as of August 14, 1998 to the Agreement and
Plan of Amalgamation dated as of February 4, 1998, as amended,
among NTL Incorporated, NTL (Bermuda) Limited and Comcast UK
Cable Partners Limited (incorporated by reference to the
Registration Statement on Form S-4 (File No. 333-64727) of the
Company).
2.4 Form of Registration Rights Agreement by and among NTL
Incorporated and Comcast Corporation and Warburg, Pincus
Investors, L.P.(incorporated by reference to the Registration
Statement on Form S-4 (File No. 333-64727) of the Company).
2.5 Form of Comcast Corporation Lock-Up Letter (incorporated by
reference to the Registration Statement on Form S-4 (File No.
333-64727) of the Company).
2.6 Form of Warburg, Pincus Investors, L.P. Lock-Up Letter
(incorporated by reference to the Registration Statement on Form
S-4 (File No. 333-64727) of the Company).
3.1 Memorandum of Association
3.2 Bye-laws
4.1 First Supplemental Indenture, dated as of October 29, 1998,
between NTL (Bermuda) Limited and Bank of Montreal Trust Company,
as trustee.
16.1 Letter from Deloitte & Touche LLP
99.1 Joint Proxy Statement/Prospectus included in the Form S-4
(incorporated by reference to the Registration Statement on Form
S-4 (File No. 333-64727) of the Company).
99.2 Text of press release issued by NTL Incorporated on October 29, 1998.
EXHIBIT 3.1
[OBJECT OMITTED]
BERMUDA
FORM NO. 2
THE COMPANIES ACT 1981
MEMORANDUM OF ASSOCIATION OF
COMPANY LIMITED BY SHARES
(Section 7(1) AND (2)
MEMORANDUM OF ASSOCIATION
OF
NTL (BERMUDA) LIMITED
(hereinafter referred to as "the Company")
1. The liability of the members of the Company is limited to the amount
(if any) for the time being unpaid on the shares respectively held by
them.
2. We, the undersigned, namely,
NAME ADDRESS BERMUDIAN NATIONALITY NUMBER OF
STATUS SHARES
(Yes/No) SUBSCRIBED
Hugh Gillespie
Cedar House, 41 Cedar Avenue
Hamilton, HM 12, Bermuda No Canadian 1
Ruby L. Rawlins
Cedar House, 41 Cedar Avenue
Hamilton HM 12, Bermuda Yes British 1
Rachael M. Lathan
Cedar House, 41 Cedar Avenue
Hamilton HM 12, Bermuda Yes British 1
Maria Pacheco
Cedar House, 41 Cedar Avenue
Hamilton HM 12, Bermuda Yes British 1
do hereby respectively agree to take such number of shares of the
Company as may be allotted to us respectively by the provisional
directors of the Company, not exceeding the number of shares for
which we have respectively subscribed, and to satisfy such calls as
may be made by the directors, provisional directors or promoters of
the Company in respect of the shares allotted to us respectively.
3. The Company is to be an exempted Company as defined by the Companies Act
1981.
4. The Company has power to hold land situate in Bermuda not exceeding in
all, including the following parcels-
Not Applicable
5. The authorised share capital of the Company is (pound)8,000.00
divided into 8,000 shares of U.K. one pence each. The minimum
subscribed share capital of the Company is (pound)8,000.00 in
United Kingdom currency.
6. The objects for which the Company is formed and incorporated are -
As set forth in paragraphs (b) to (n) and (p) to (u) inclusive of
the Second Schedule to The Companies Act, 1981.
7. The Company has the powers set out in the Schedule annexed hereto.
Signed by each subscriber in the presence of at least one witness attesting
the signature thereof -
(Subscribers)
(Witnesses)---------------------------------
SUBSCRIBED this 2nd day of February 1998
STAMP DUTY (To be affixed)
Not Applicable
THE COMPANIES ACT
SECOND SCHEDULE (section 11(2))
Subject to Section 4A, a company may by reference include in its memorandum
any of the following objects, that is to say the business of -
(a) insurance and re-insurance of all kinds;
(b) packaging of goods of all kinds;
(c) buying, selling and dealing in goods of all kinds;
(d) designing and manufacturing of goods of all kinds;
(e) mining and quarrying and exploration for metals, minerals, fossil
fuels and precious stones of all kinds and their preparation for sale
or use;
(f) exploring for, the drilling for, the moving, transporting and
refining petroleum and hydro carbon products including oil and oil
products;
(g) scientific research including the improvement, discovery and
development of processes, inventions, patents and designs and the
construction, maintenance and operation of laboratories and
research centres;
(h) land, sea and air undertakings including the land, ship and air
carriage of passengers, mails and goods of all kinds;
(i) ships and aircraft owners, managers, operators, agents, builders and
repairers;
(j) acquiring, owning, selling, chartering, repairing or dealing in ships
and aircraft;
(k) travel agents, freight contractors and forwarding agents;
(l) dock owners, wharfingers, warehousemen;
(m) ship chandlers and dealing in rope, canvas oil and ship stores of all
kinds;
(n) all forms of engineering;
(o) developing, operating, advising or acting as technical consultants to
any other enterprise or business;
(p) farmers, livestock breeders and keepers, graziers, butchers, tanners
and processors of and dealers in all kinds of live and dead stock, wool,
hides, tallow, grain, vegetables and other produce; (q) acquiring by
purchase or otherwise and holding as an investment inventions, patents,
trade marks, trade names, trade secrets, designs and the like;
(r) buying, selling, hiring, letting and dealing in conveyances of any sort;
and
(s) employing, providing, hiring out and acting as agent for artists,
actors, entertainers of all sorts, authors, composers, producers,
directors, engineers and experts or specialists of any kind;
(t) to acquire by purchase or otherwise and hold, sell, dispose of and
deal in real property situated outside Bermuda and in personal
property of all kinds wheresoever situated; and
(u) to enter into any guarantee, contract of indemnity or suretyship
and to assure, support or secure with or without consideration or
benefit the performance of any obligations of any person or
persons and to guarantee the fidelity of individuals filling or
about to fill situations of trust or confidence.
The Schedule
(referred to in Clause 7 of the Memorandum of Association)
(a) to borrow and raise money in any currency or currencies and to
secure or discharge any debt or obligation in any manner and in
particular (without prejudice to the generality of the foregoing)
by mortgages of or charges upon all or any part of the
undertaking, property and assets (present and future) and uncalled
capital of the company or by the creation and issue of securities;
(b) to enter into any guarantee, contract of indemnity or suretyship and
in particular (without prejudice to the generality of the foregoing)
to guarantee, support or secure, with or without consideration,
whether by personal obligation or by mortgaging or charging all or any
part of the undertaking, property and assets (present and future) and
uncalled capital of the company or by both such methods or in any
other manner, the performance of any obligations or commitments of,
and the repayment or payment of the principal amounts of and any
premiums, interest, dividends and other moneys payable on or in
respect of any securities or liabilities of, any person, including
(without prejudice to the generality of the foregoing) any company
which is for the time being a subsidiary or a holding company of the
company or another subsidiary of a holding company of the company or
otherwise associated with the company;
(c) to accept, draw, make, create, issue, execute, discount, endorse,
negotiate and deal in bills of exchange, promissory notes, and
other instruments and securities, whether negotiable or otherwise;
(d) to sell, exchange, mortgage, charge, let on rent, share of profit,
royalty or otherwise, grant licences, easements, options,
servitudes and other rights over, and in any other manner deal
with or dispose of, all or any part of the undertaking, property
and assets (present and future) of the company for any
consideration and in particular (without prejudice to the
generality of the foregoing) for any securities;
(e) to issue and allot securities of the company for cash or in
payment or part payment for any real or personal property
purchased or otherwise acquired by the company or any services
rendered to the company or as security for any obligation or
amount (even if less than the nominal amount of such securities)
or for any other purpose;
(f) to grant pensions, annuities, or other allowances, including allowances
on death, to any directors, officers or employees or former directors,
officers or employees of the company or any company which at any time
is or was a subsidiary or a holding company or another subsidiary of a
holding company of the company or otherwise associated with the
company or of any predecessor in business of any of them, and to the
relations, connections or dependants of any such persons, and to other
persons whose service or services have directly or indirectly been of
benefit to the company or whom the company considers have any moral
claim on the company or to their relations connections or dependants,
and to establish or support any associations, institutions, clubs,
schools, building and housing schemes, funds and trusts, and to make
payment towards insurance or other arrangements likely to benefit any
such persons or otherwise advance the interests of the company or of
its members or for any national, charitable, benevolent, educational,
social, public, general or useful object;
(g) subject to the provisions of Section 42 of the Companies Act 1981,
to issue preference shares which at the option of the holders
thereof are to be liable to be redeemed;
(h) to purchase its own shares in accordance with the provisions of Section
42A of the Companies Act 1981.
THE COMPANIES ACT 1981
FIRST SCHEDULE (section 11(1))
A company limited by shares, or other company having a share
capital, may exercise all or any of the following powers subject to any
provision of law or its memorandum -
1. (Deleted) 404
2. to acquire or undertake the whole or any part of the business, property
and liabilities of any person carrying on any business that the company
is authorised to carry on;
3. to apply for, register, purchase, lease, acquire, hold, use,
control, licence, sell, assign or dispose of patents, patent
rights, copyrights, trade marks, formulae, licences, inventions,
processes, distinctive marks and similar rights;
4. to enter into partnership or into any arrangement for sharing of
profits, union of interests, co-operation, joint venture,
reciprocal concession or otherwise with any person carrying on
or engaged in or about to carry on or engage in any business or
transaction that the company is authorised to carry on or engage
in or any business or transaction capable of being conducted so
as to benefit the company;
5. to take or otherwise acquire and hold securities in any other
body corporate having objects altogether or in part similar to
those of the company or carrying on any business capable of
being conducted so as to benefit the company;
6. subject to section 96 to lend money to any employee or to any
person having dealings with the company or with whom the company
proposes to have dealings or to any other body corporate any of
whose shares are held by the company;
7. to apply for, secure or acquire by grant, legislative enactment,
assignment, transfer, purchase or otherwise and to exercise,
carry out and enjoy any charter, licence, power, authority,
franchise, concession, right or privilege, that any government
or authority or any body corporate or other public body may be
empowered to grant, and to pay for, aid in and contribute toward
carrying it into effect and to assume any liabilities or
obligations incidental thereto;
8. to establish and support or aid in the establishment and support
of associations, institutions, funds or trusts for the benefit
of employees or former employees of the company or its
predecessors, or the dependants or connections of such employees
or former employees, and grant pensions and allowances, and make
payments towards insurance or for any object similar to those
set forth in this paragraph, and to subscribe or guarantee money
for charitable, benevolent, educational or religious objects or
for any exhibition or for any public, general or useful objects;
9. to promote any company for the purpose of acquiring or taking
over any of the property and liabilities of the company or for
any other purpose that may benefit the company;
10. to purchase, lease, take in exchange, hire or otherwise acquire
any personal property and any rights or privileges that the
company considers necessary or convenient for the purposes of
its business;
11. to construct, maintain, alter, renovate and demolish any
buildings or works necessary or convenient for its objects;
12. to take land in Bermuda by way of lease or letting agreement for
a term not exceeding fifty years, being land bona fide required
for the purposes of the business of the company and with the
consent of the Minister granted in his discretion to take land
in Bermuda by way of lease or letting agreement for a term not
exceeding twenty-one years in order to provide accommodation or
recreational facilities for its officers and employees and when
no longer necessary for any of the above purposes to terminate
or transfer the lease or letting agreement;
13. except to the extent, if any, as may be otherwise expressly
provided in its incorporating Act or memorandum and subject to
this Act every company shall have power to invest the moneys of
the Company by way of mortgage of real or personal property of
every description in Bermuda or elsewhere and to sell, exchange,
vary, or dispose of such mortgage as the company shall from time
to time determine;
14. to construct, improve, maintain, work, manage, carry out or
control any roads, ways, tramways, branches or sidings, bridges,
reservoirs, watercourses, wharves, factories, warehouses,
electric works, shops, stores and other works and conveniences
that may advance the interests of the company and contribute to,
subsidise or otherwise assist or take part in the construction,
improvement, maintenance, working, management, carrying out or
control thereof;
15. to raise and assist in raising money for, and aid by way of
bonus, loan, promise, endorsement, guarantee or otherwise, any
person and guarantee the performance or fulfilment of any
contracts or obligations of any person, and in particular
guarantee the payment of the principal of and interest on the
debt obligations of any such person;
16. to borrow or raise or secure the payment of money in such manner as the
company may think fit; 17. to draw, make, accept, endorse, discount,
execute and issue bills of exchange, promissory notes, bills of
lading, warrants and other negotiable or transferable instruments;
18. when properly authorised to do so, to sell, lease, exchange or
otherwise dispose of the undertaking of the company or any part
thereof as an entirety or substantially as an entirety for such
consideration as the company thinks fit;
19. to sell, improve, manage, develop, exchange, lease, dispose of,
turn to account or otherwise deal with the property of the
company in the ordinary course of its business;
20. to adopt such means of making known the products of the company
as may seem expedient, and in particular by advertising, by
purchase and exhibition of works of art or interest, by
publication of books and periodicals and by granting prizes and
rewards and making donations;
21. to cause the company to be registered and recognised in any
foreign jurisdiction, and designate persons therein according to
the laws of that foreign jurisdiction or to represent the
company and to accept service for and on behalf of the company
of any process or suit;
22. to allot and issue fully-paid shares of the company in payment
or part payment of any property purchased or otherwise acquired
by the company or for any past services performed for the
company;
23. to distribute among the members of the company in cash, kind,
specie or otherwise as may be resolved, by way of dividend,
bonus or in any other manner considered advisable, any property
of the company, but not so as to decrease the capital of the
company unless the distribution is made for the purpose of
enabling the company to be dissolved or the distribution, apart
from this paragraph, would be otherwise lawful;
24. to establish agencies and branches;
25. to take or hold mortgages, hypothecs, liens and charges to
secure payment of the purchase price, or of any unpaid balance
of the purchase price, of any part of the property of the
company of whatsoever kind sold by the company, or for any money
due to the company from purchasers and others and to sell or
otherwise dispose of any such mortgage, hypothec, lien or
charge;
26. to pay all costs and expenses of or incidental to the incorporation and
organization of the company; 27. to invest and deal with the moneys of
the company not immediately required for the objects of the company
in such manner as may be determined;
28. to do any of the things authorised by this Schedule and all things
authorised by its memorandum as principals, agents, contractors,
trustees or otherwise, and either alone or in conjunction with others;
29. to do all such other things as are incidental or conducive to
the attainment of the objects and the exercise of the powers of
the company.
Every company may exercise its powers beyond the boundaries of
Bermuda to the extent to which the laws in force where the powers are
sought to be exercised permit.
EXHIBIT 3.2
B Y E - L A W S
of
NTL (BERMUDA) LIMITED
I HEREBY CERTIFY that the within written Bye-Laws are a true copy of the
Bye-Laws of
NTL (BERMUDA) LIMITED
as subscribed by the subscribers to the Memorandum of Association and
approved at the Statutory meeting of the above Company on the 4th February
1998.
Secretary
Prepared by
Messrs Appleby Spurling & Kempe
Cedar House
41 Cedar Avenue
Hamilton, Bermuda
I N D E X
BYE-LAW SUBJECT PAGE
- ------- ------- ----
1 Interpretation 1-3
2 Registered Office 3
3,4 Share Rights 3,4
5,6 Modification of Rights 4
7-9 Shares 5
10-12 Certificates 5,6
13-15 Lien 6,7
16-21 Calls on Shares 7,8
22-28 Forfeiture of Shares 9,10
29 Register of Shareholders 11
30 Register of Directors and Officers 11
31-34 Transfer of Shares 11,12
35-38 Transmission of Shares 13,14
39-41 Increase of Capital 14,15
42,43 Alteration of Capital 15,16
44,45 Reduction of Capital 16
46 General Meetings and Written Resolutions 16,17
47,48 Notice of General Meetings 17,18
49-55 Proceedings at General Meetings 18-20
56-67 Voting 21-23
68-73 Proxies and Corporate Representatives 24-26
74-76 Appointment and Removal of Directors 26,27
77 Resignation and Disqualification of Directors 27
78-80 Alternate Directors 27,28
81 Directors' Fees and Additional
Remuneration and Expenses 28,29
82 Directors' Interests 29,30
83-87 Powers and Duties of the Board 30-32
88-90 Delegation of the Board's Powers 32,33
91-99 Proceedings of the Board 33-36
100 Officers 36
101 Minutes 36,37
102,103 Secretary and Resident Representative 37
104 The Seal 37,38
105-111 Dividends and Other Payments 38-40
112 Reserves 41
113,114 Capitalization of Profits 41,42
115 Record Dates 42
116-118 Accounting Records 42,43
119 Audit 43
120-122 Service of Notices and Other Documents 43,44
123 Winding Up 45
124-128 Indemnity 45-47
129 Amalgamation 47
130 Continuation 48
131 Alteration of Bye-Laws 48
B Y E - L A W S
of
NTL (BERMUDA) LIMITED
INTERPRETATION
1. (1) In these Bye-Laws unless the context otherwise requires -
"Bermuda" means the Islands of Bermuda;
"Board" means the Board of Directors of the Company or the
Directors present at a meeting of Directors at which there is a
quorum;
"the Companies Acts" means every Bermuda statute from time to
time in force concerning companies insofar as the same applies to
the Company;
"Company" means the company incorporated in Bermuda under the
name of NTL (BERMUDA) LIMITED on 4th day of February, 1998;
"Director" means such person or persons as shall be appointed to
the Board from time to time pursuant to Bye-Law 74;
"Officer" means a person appointed by the Board pursuant to
Bye-Law 100 of these Bye-Laws and shall not include an auditor of
the Company;
"paid up" means paid up or credited as paid up;
"Register" means the Register of Shareholders of the Company;
"Registered Office" means the registered office for the time
being of the Company;
"Resident Representative" means the individual (or, if permitted
in accordance with the Companies Acts, the company) appointed to
perform the duties of resident representative set out in the
Companies Acts and includes any assistant or deputy Resident
Representative appointed by the Board to perform any of the
duties of the Resident Representative;
"Resolution" means a resolution of the Shareholders or, where
required, of a separate class or separate classes of
Shareholders, adopted either in general meeting or by written
resolution, in accordance with the provisions of these Bye-Laws;
"Seal" means the common seal of the Company and includes any
duplicate thereof;
"Secretary" includes a temporary or assistant or deputy Secretary
and any person appointed by the Board to perform any of the
duties of the Secretary;
"Shareholder" means a shareholder or member of the Company;
"these Bye-Laws" means these Bye-Laws in their present form or as
from time to time amended;
(2) For the purposes of these Bye-Laws a corporation shall be deemed
to be present in person if its representative duly authorised
pursuant to the Companies Acts is present;
(3) Words importing only the singular number include the plural
number and vice versa;
(4) Words importing only the masculine gender include the feminine
and neuter genders respectively;
(5) Words importing persons include companies or associations or
bodies of persons, whether corporate or un-incorporate;
(6) Reference to writing shall include typewriting, printing,
lithography, photography and other modes of representing or
reproducing words in a legible and non-transitory form;
(7) Any words or expressions defined in the Companies Acts in force
at the date when these Bye-Laws or any part thereof are adopted
shall bear the same meaning in these Bye-Laws or such part (as
the case may be).
REGISTERED OFFICE
2. The Registered Office shall be at such place in Bermuda as the Board
shall from time to time appoint.
SHARE RIGHTS
3. Subject to any special rights conferred on the holders of any share or
class of shares, any share in the Company may be issued with or have
attached thereto such preferred, deferred, qualified or other special
rights or such restrictions, whether in regard to dividend, voting,
return of capital or otherwise, as the Company may by resolution
determine or, if there has not been any such determination or so far
as the same shall not make specific provision, as the Board may
determine.
4. (1) Subject to the Companies Acts, any preference shares may, with
the sanction of a resolution of the Board, be issued on terms:
(a) that they are to be redeemed on the happening of a specified
event or on a given date; and/or,
(b) that they are liable to be redeemed at the option of the
Company; and/or,
(c) if authorised by the memorandum/incorporating act of the
Company, that they are liable to be redeemed at the option
of the holder.
The terms and manner of redemption shall be provided for in such
resolution of the Board and shall be attached to but shall not
form part of these Bye-Laws.
(2) The Board may, at its discretion and without the sanction of a
resolution authorise the purchase by the Company of its own
shares upon such terms as the Board may in its discretion
determine PROVIDED ALWAYS that such purchase is effected in
accordance with the provisions of the Companies Acts.
MODIFICATION OF RIGHTS
5. Subject to the Companies Acts, all or any of the special rights for
the time being attached to any class of shares for the time being
issued may from time to time (whether or not the Company is being
wound up) be altered or abrogated with the consent in writing of the
holders of not less than seventy five percent of the issued shares of
that class or with the sanction of a resolution passed at a separate
general meeting of the holders of such shares voting in person or by
proxy. To any such separate general meeting, all the provisions of
these Bye-Laws as to general meetings of the Company shall mutatis
mutandis apply, but so that the necessary quorum shall be two or more
persons holding or representing by proxy any of the shares of the
relevant class, that every holder of shares of the relevant class
shall be entitled on a poll to one vote for every such share held by
him and that any holder of shares of the relevant class present in
person or by proxy may demand a poll; provided, however, that if the
Company or a class of Shareholders shall have only one Shareholder,
one Shareholder present in person or by proxy shall constitute the
necessary quorum.
6. The special rights conferred upon the holders of any shares or class
of shares shall not, unless otherwise expressly provided in the rights
attaching to or the terms of issue of such shares, be deemed to be
altered by the creation or issue of further shares ranking pari passu
therewith.
SHARES
7. Subject to the provisions of these Bye-Laws, the unissued shares of
the Company (whether forming part of the original capital or any
increased capital) shall be at the disposal of the Board, which may
offer, allot, grant options over or otherwise dispose of them to such
persons, at such times and for such consideration and upon such terms
and conditions as the Board may determine.
8. The Board may in connection with the issue of any shares exercise all
powers of paying commission and brokerage conferred or permitted by
law.
9. Except as ordered by a court of competent jurisdiction or as required
by law, no person shall be recognised by the Company as holding any
share upon trust and the Company shall not be bound by or required in
any way to recognise (even when having notice thereof) any equitable,
contingent, future or partial interest in any share or any interest in
any fractional part of a share or (except only as otherwise provided
in these Bye-Laws, or by law) any other right in respect of any share
except an absolute right to the entirety thereof in the registered
holder.
CERTIFICATES
10. The preparation, issue and delivery of certificates shall be governed
by the Companies Acts. In the case of a share held jointly by several
persons, delivery of a certificate to one of several joint holders
shall be sufficient delivery to all.
11. If a share certificate is defaced, lost or destroyed it may be
replaced without fee but on such terms (if any) as to evidence and
indemnity and to payment of the costs and out of pocket expenses of
the Company in investigating such evidence and preparing such
indemnity as the Board may think fit and, in case of defacement, on
delivery of the old certificate to the Company.
12. All certificates for share or loan capital or other securities of the
Company (other than letters of allotment, scrip certificates and other
like documents) shall, except to the extent that the terms and
conditions for the time being relating thereto otherwise provide, be
issued under the Seal. The Board may by resolution determine, either
generally or in any particular case, that any signatures on any such
certificates need not be autographic but may be affixed to such
certificates by some mechanical means or may be printed thereon or
that such certificates need not be signed by any persons.
LIEN
13. The Company shall have a first and paramount lien on every share (not
being a fully paid share) for all moneys, whether presently payable or
not, called or payable, at a date fixed by or in accordance with the
terms of issue of such share in respect of such share, and the Company
shall also have a first and paramount lien on every share (other than
a fully paid share) standing registered in the name of a Shareholder,
whether singly or jointly with any other person, for all the debts and
liabilities of such Shareholder or his estate to the Company, whether
the same shall have been incurred before or after notice to the
Company of any interest of any person other than such Shareholder, and
whether the time for the payment or discharge of the same shall have
actually arrived or not, and notwithstanding that the same are joint
debts or liabilities of such Shareholder or his estate and any other
person, whether a Shareholder or not. The Company's lien on a share
shall extend to all dividends payable thereon. The Board may at any
time, either generally or in any particular case, waive any lien that
has arisen or declare any share to be wholly or in part exempt from
the provisions of this Bye-Law.
14. The Company may sell, in such manner as the Board may think fit, any
share on which the Company has a lien but no sale shall be made unless
some sum in respect of which the lien exists is presently payable nor
until the expiration of fourteen days after a notice in writing,
stating and demanding payment of the sum presently payable and giving
notice of the intention to sell in default of such payment, has been
served on the holder for the time being of the share.
15. The net proceeds of sale by the Company of any shares on which it has
a lien shall be applied in or towards payment or discharge of the debt
or liability in respect of which the lien exists so far as the same is
presently payable, and any residue shall (subject to a like lien for
debts or liabilities not presently payable as existed upon the share
prior to the sale) be paid to the person who was the holder of the
share immediately before such sale. For giving effect to any such sale
the Board may authorise some person to transfer the share sold to the
purchaser thereof. The purchaser shall be registered as the holder of
the share and he shall not be bound to see to the application of the
purchase money, nor shall his title to the share be affected by any
irregularity or invalidity in the proceedings relating to the sale.
CALLS ON SHARES
16. The Board may from time to time make calls upon the Shareholders in
respect of any moneys unpaid on their shares (whether on account of
the par value of the shares or by way of premium) and not by the terms
of issue thereof made payable at a date fixed by or in accordance with
such terms of issue, and each Shareholder shall (subject to the
Company serving upon him at least fourteen days notice specifying the
time or times and place of payment) pay to the Company at the time or
times and place so specified the amount called on his shares. A call
may be revoked or postponed as the Board may determine.
17. A call may be made payable by instalments and shall be deemed to have
been made at the time when the resolution of the Board authorising the
call was passed.
18. The joint holders of a share shall be jointly and severally liable to
pay all calls in respect thereof.
19. If a sum called in respect of the share shall not be paid before or on
the day appointed for payment thereof the person from whom the sum is
due shall pay interest on the sum from the day appointed for the
payment thereof to the time of actual payment at such rate as the
Board may determine, but the Board shall be at liberty to waive
payment of such interest wholly or in part.
20. Any sum which, by the terms of issue of a share, becomes payable on
allotment or at any date fixed by or in accordance with such terms of
issue, whether on account of the nominal amount of the share or by way
of premium, shall for all the purposes of these Bye-Laws be deemed to
be a call duly made, notified and payable on the date on which, by the
terms of issue, the same becomes payable and, in case of non-payment,
all the relevant provisions of these Bye-Laws as to payment of
interest, forfeiture or otherwise shall apply as if such sum had
become payable by virtue of a call duly made and notified.
21. The Board may on the issue of shares differentiate between the
allottees or holders as to the amount of calls to be paid and the
times of payment.
FORFEITURE OF SHARES
22. If a Shareholder fails to pay any call or instalment of a call on the
day appointed for payment thereof, the Board may at any time
thereafter during such time as any part of such call or instalment
remains unpaid serve a notice on him requiring payment of so much of
the call or instalment as is unpaid, together with any interest which
may have accrued.
23. The notice shall name a further day (not being less than 14 days from
the date of the notice) on or before which, and the place where, the
payment required by the notice is to be made and shall state that, in
the event of non-payment on or before the day and at the place
appointed, the shares in respect of which such call is made or
instalment is payable will be liable to be forfeited. The Board may
accept the surrender of any share liable to be forfeited hereunder
and, in such case, references in these Bye-Laws to forfeiture shall
include surrender.
24. If the requirements of any such notice as aforesaid are not complied
with, any share in respect of which such notice has been given may at
any time thereafter, before payment of all calls or instalments and
interest due in respect thereof has been made, be forfeited by a
resolution of the Board to that effect. Such forfeiture shall include
all dividends declared in respect of the forfeited shares and not
actually paid before the forfeiture.
25. When any share has been forfeited, notice of the forfeiture shall be
served upon the person who was before forfeiture the holder of the
share; but no forfeiture shall be in any manner invalidated by any
omission or neglect to give such notice as aforesaid.
26. A forfeited share shall be deemed to be the property of the Company
and may be sold, re-offered or otherwise disposed of either to the
person who was, before forfeiture, the holder thereof or entitled
thereto or to any other person upon such terms and in such manner as
the Board shall think fit, and at any time before a sale, re-allotment
or disposition the forfeiture may be cancelled on such terms as the
Board may think fit.
27. A person whose shares have been forfeited shall thereupon cease to be
a Shareholder in respect of the forfeited shares but shall,
notwithstanding the forfeiture, remain liable to pay to the Company
all moneys which at the date of forfeiture were presently payable by
him to the Company in respect of the shares with interest thereon at
such rate as the Board may determine from the date of forfeiture until
payment, and the Company may enforce payment without being under any
obligation to make any allowance for the value of the shares
forfeited.
28. An affidavit in writing that the deponent is a Director of the Company
or the Secretary and that a share has been duly forfeited on the date
stated in the affidavit shall be conclusive evidence of the facts
therein stated as against all persons claiming to be entitled to the
share. The Company may receive the consideration (if any) given for
the share on the sale, re-allotment or disposition thereof and the
Board may authorise some person to transfer the share to the person to
whom the same is sold, re-allotted or disposed of, and he shall
thereupon be registered as the holder of the share and shall not be
bound to see to the application of the purchase money (if any) nor
shall his title to the share be affected by any irregularity or
invalidity in the proceedings relating to the forfeiture, sale,
re-allotment or disposal of the share.
REGISTER OF SHAREHOLDERS
29. The Secretary shall establish and maintain the Register at the
Registered Office in the manner prescribed by the Companies Acts.
Unless the Board otherwise determines, the Register shall be open to
inspection in the manner prescribed by the Companies Acts between
10.00 a.m. and 12.00 noon on every working day. Unless the Board so
determines, no Shareholder or intending Shareholder shall be entitled
to have entered in the Register any indication of any trust or any
equitable, contingent, future or partial interest in any share or any
interest in any fractional part of a share and if any such entry
exists or is permitted by the Board it shall not be deemed to abrogate
any of the provisions of Bye-Law 9.
REGISTER OF DIRECTORS AND OFFICERS
30. The Secretary shall establish and maintain a register of the Directors
and Officers of the Company as required by the Companies Acts. The
register of Directors and Officers shall be open to inspection in the
manner prescribed by the Companies Acts between 10:00 a.m. and 12:00
noon on every working day.
TRANSFER OF SHARES
31. Subject to the Companies Acts and to such of the restrictions
contained in these Bye-Laws as may be applicable, any Shareholder may
transfer all or any of his shares by an instrument of transfer in the
usual common form or in any other form which the Board may approve.
32. The instrument of transfer of a share shall be signed by or on behalf
of the transferor and where any share is not fully-paid, the
transferee and the transferor shall be deemed to remain the holder of
the share until the name of the transferee is entered in the Register
in respect thereof. All instruments of transfer when registered may be
retained by the Company. The Board may, in its absolute discretion and
without assigning any reason therefor, decline to register any
transfer of any share which is not a fully-paid share. The Board may
also decline to register any transfer unless:-
(1) the instrument of transfer is duly stamped and lodged with the
Company, accompanied by the certificate for the shares to which
it relates, and such other evidence as the Board may reasonably
require to show the right of the transferor to make the transfer,
(2) the instrument of transfer is in respect of only one class of
share,
(3) where applicable, the permission of the Bermuda Monetary
Authority with respect thereto has been obtained.
Subject to any directions of the Board from time to time in
force, the Secretary may exercise the powers and discretions of
the Board under this Bye-Law and Bye-Laws 31 and 33.
33. If the Board declines to register a transfer it shall, within three
months after the date on which the instrument of transfer was lodged,
send to the transferee notice of such refusal.
34. No fee shall be charged by the Company for registering any transfer,
probate, letters of administration, certificate of death or marriage,
power of attorney, distringas or stop notice, order of court or other
instrument relating to or affecting the title to any share, or
otherwise making an entry in the Register relating to any share.
TRANSMISSION OF SHARES
35. In the case of the death of a Shareholder, the survivor or survivors,
where the deceased was a joint holder, and the estate representative,
where he was sole holder, shall be the only person recognised by the
Company as having any title to his shares; but nothing herein
contained shall release the estate of a deceased holder (whether the
sole or joint) from any liability in respect of any share held by him
solely or jointly with other persons. For the purpose of this Bye-Law,
estate representative means the person to whom probate or letters of
administration has or have been granted in Bermuda or, failing any
such person, such other person as the Board may in its absolute
discretion determine to be the person recognised by the Company for
the purpose of this Bye-Law.
36. Any person becoming entitled to a share in consequence of the death of
a Shareholder or otherwise by operation of applicable law may, subject
as hereafter provided and upon such evidence being produced as may
from time to time be required by the Board as to his entitlement,
either be registered himself as the holder of the share or elect to
have some person nominated by him registered as the transferee
thereof. If the person so becoming entitled elects to be registered
himself, he shall deliver or send to the Company a notice in writing
signed by him stating that he so elects. If he shall elect to have his
nominee registered, he shall signify his election by signing an
instrument of transfer of such share in favour of his nominee. All the
limitations, restrictions and provisions of these Bye-Laws relating to
the right to transfer and the registration of transfer of shares shall
be applicable to any such notice or instrument of transfer as
aforesaid as if the death of the Shareholder or other event giving
rise to the transmission had not occurred and the notice or instrument
of transfer was an instrument of transfer signed by such Shareholder.
37. A person becoming entitled to a share in consequence of the death of a
Shareholder or otherwise by operation of applicable law shall (upon
such evidence being produced as may from time to time be required by
the Board as to his entitlement) be entitled to receive and may give a
discharge for any dividends or other moneys payable in respect of the
share, but he shall not be entitled in respect of the share to receive
notices of or to attend or vote at general meetings of the Company or,
save as aforesaid, to exercise in respect of the share any of the
rights or privileges of a Shareholder until he shall have become
registered as the holder thereof. The Board may at any time give
notice requiring such person to elect either to be registered himself
or to transfer the share and, if the notice is not complied with
within sixty days, the Board may thereafter withhold payment of all
dividends and other moneys payable in respect of the shares until the
requirements of the notice have been complied with.
38. Subject to any directions of the Board from time to time in force, the
Secretary may exercise the powers and discretions of the Board under
Bye-Laws 35, 36 and 37.
INCREASE OF CAPITAL
39. The Company may from time to time increase its capital by such sum to
be divided into shares of such par value as the Company by resolution
shall prescribe.
40. The Company may, by the resolution increasing the capital, direct that
the new shares or any of them shall be offered in the first instance
either at par or at a premium or (subject to the provisions of the
Companies Acts) at a discount to all the holders for the time being of
shares of any class or classes in proportion to the number of such
shares held by them respectively or make any other provision as to the
issue of the new shares.
41. The new shares shall be subject to all the provisions of these
Bye-Laws with reference to lien, the payment of calls, forfeiture,
transfer, transmission and otherwise.
ALTERATION OF CAPITAL
42. The Company may from time to time by resolution:-
(1) divide its shares into several classes and attach thereto
respectively any preferential, deferred, qualified or special
rights, privileges or conditions;
(2) consolidate and divide all or any of its share capital into
shares of larger par value than its existing shares;
(3) sub-divide its shares or any of them into shares of smaller par
value than is fixed by its memorandum, so, however, that in the
sub-division the proportion between the amount paid and the
amount, if any, unpaid on each reduced share shall be the same as
it was in the case of the share from which the reduced share is
derived;
(4) make provision for the issue and allotment of shares which do not
carry any voting rights;
(5) cancel shares which, at the date of the passing of the resolution
in that behalf, have not been taken or agreed to be taken by any
person, and diminish the amount of its share capital by the
amount of the shares so cancelled; and
(6) change the currency denomination of its share capital.
Where any difficulty arises in regard to any division, consolidation,
or sub-division under this Bye-Law, the Board may settle the same as
it thinks expedient and, in particular, may arrange for the sale of
the shares representing fractions and the distribution of the net
proceeds of sale in due proportion amongst the Shareholders who would
have been entitled to the fractions, and for this purpose the Board
may authorise some person to transfer the shares representing
fractions to the purchaser thereof, who shall not be bound to see to
the application of the purchase money nor shall his title to the
shares be affected by any irregularity or invalidity in the
proceedings relating to the sale.
43. Subject to the Companies Acts and to any confirmation or consent
required by law or these Bye-Laws, the Company may by resolution from
time to time convert any preference shares into redeemable preference
shares.
REDUCTION OF CAPITAL
44. Subject to the Companies Acts, its memorandum and any confirmation or
consent required by law or these Bye-Laws, the Company may from time
to time by resolution authorise the reduction of its issued share
capital or any share premium or contributed surplus account in any
manner.
45. In relation to any such reduction, the Company may by resolution
determine the terms upon which such reduction is to be effected
including, in the case of a reduction of part only of a class of
shares, those shares to be affected.
GENERAL MEETINGS AND WRITTEN RESOLUTIONS
46. (1) The Board shall convene and the Company shall hold general
meetings as Annual General Meetings in accordance with the
requirements of the Companies Acts at such times and places as
the Board shall appoint. The Board may, whenever it thinks fit,
and shall, when required by the Companies Acts, convene general
meetings other than Annual General Meetings which shall be called
Special General Meetings.
(2) Except in the case of the removal of auditors or Directors,
anything which may be done by resolution in general meeting may,
without a meeting and without any previous notice being required,
be done by resolution in writing, signed by all of the
Shareholders or any class thereof or their proxies, or in the
case of a Shareholder that is a corporation (whether or not a
company within the meaning of the Companies Acts) on behalf of
such Shareholder, being all of the Shareholders of the Company or
any class thereof who at the date of the resolution in writing
would be entitled to attend a meeting and vote on the resolution.
Such resolution in writing may be signed in as many counterparts
as may be necessary.
(3) For the purposes of this Bye-Law, the date of the resolution in
writing is the date when the resolution is signed by, or on
behalf of, the last Shareholder to sign and any reference in any
enactment to the date of passing of a resolution is, in relation
to a resolution in writing made in accordance with this section,
a reference to such date.
(4) A resolution in writing made in accordance with this Bye-Law is
as valid as if it had been passed by the Company in general
meeting or, if applicable, by a meeting of the relevant class of
Shareholders of the Company, as the case may be. A resolution in
writing made in accordance with this section shall constitute
minutes for the purposes of the Companies Acts and these
Bye-Laws.
NOTICE OF GENERAL MEETINGS
47. An Annual General Meeting shall be called by not less than days notice
in writing and a Special General Meeting shall be called by not less
than days notice in writing. The notice shall be exclusive of the day
on which it is served or deemed to be served and of the day for which
it is given, and shall specify the place, day and time of the meeting,
and, the nature of the business to be considered. Notice of every
general meeting shall be given in any manner permitted by Bye-Laws 120
and 121 to all Shareholders other than such as, under the provisions
of these Bye-Laws or the terms of issue of the shares they hold, are
not entitled to receive such notice from the Company and to any
Director or Resident Representative who or which has delivered a
written notice upon the Registered Office requiring that such notice
be sent to him or it. Notwithstanding that a meeting of the Company is
called by shorter notice than that specified in this Bye-Law, it shall
be deemed to have been duly called if it is so agreed:-
(1) in the case of a meeting called as an Annual General Meeting, by
all the Shareholders entitled to attend and vote thereat;
(2) in the case of any other meeting, by a majority in number of the
Shareholders having the right to attend and vote at the meeting,
being a majority together holding not less than 95 percent in
nominal value of the shares giving that right.
48. The accidental omission to give notice of a meeting or (in cases where
instruments of proxy are sent out with the notice) the accidental
omission to send such instrument of proxy to, or the non-receipt of
notice of a meeting or such instrument of proxy by, any person
entitled to receive such notice shall not invalidate the proceedings
at that meeting.
PROCEEDINGS AT GENERAL MEETINGS
49. No business shall be transacted at any general meeting unless a quorum
is present when the meeting proceeds to business, but the absence of a
quorum shall not preclude the appointment, choice or election of a
chairman which shall not be treated as part of the business of the
meeting. Save as otherwise provided by these Bye-Laws, at least two
Shareholders present in person or by proxy and entitled to vote shall
be a quorum for all purposes; provided, however, that if the Company
or a class of Shareholders shall have only one Shareholder, one
Shareholder present in person or by proxy shall constitute the
necessary quorum.
50. If within five minutes (or such longer time as the chairman of the
meeting may determine to wait) after the time appointed for the
meeting, a quorum is not present, the meeting, if convened on the
requisition of Shareholders, shall be dissolved. In any other case, it
shall stand adjourned to such other day and such other time and place
as the chairman of the meeting may determine and at such adjourned
meeting two Shareholders present in person or by proxy shall be a
quorum provided that if the Company or a class of Shareholders shall
have only one Shareholder, one Shareholder present in person or by
proxy shall constitute the necessary quorum. The Company shall give
not less than days notice of any meeting adjourned through want of a
quorum and such notice shall state that the sole Shareholder or, if
more than one, two Shareholders present in person or by proxy
(whatever the number of shares held by them) shall be a quorum.
51. A meeting of the Shareholders or any class thereof may be held by
means of such telephone, electronic or other communication facilities
as permit all persons participating in the meeting to communicate with
each other simultaneously and instantaneously and participation in
such a meeting shall constitute presence in person at such meeting.
52. Each Director upon giving the notice referred to in Bye-Law 47 above,
and the Resident Representative, if any, shall be entitled to attend
and speak at any general meeting of the Company.
53. The Chairman (if any) of the Board or, in his absence, the President
shall preside as chairman at every general meeting. If there is no
such Chairman or President, or if at any meeting neither the Chairman
nor the President is present within five minutes after the time
appointed for holding the meeting, or if neither of them is willing to
act as chairman, the Directors present shall choose one of their
number to act or if one Director only is present he shall preside as
chairman if willing to act. If no Director is present, or if each of
the Directors present declines to take the chair, the persons present
and entitled to vote on a poll shall elect one of their number to be
chairman.
54. The chairman of the meeting may, with the consent of any meeting at
which a quorum is present (and shall if so directed by the meeting),
adjourn the meeting from time to time and from place to place but no
business shall be transacted at any adjourned meeting except business
which might lawfully have been transacted at the meeting from which
the adjournment took place. When a meeting is adjourned for three
months or more, notice of the adjourned meeting shall be given as in
the case of an original meeting.
55. Save as expressly provided by these Bye-Laws, it shall not be
necessary to give any notice of an adjournment or of the business to
be transacted at an adjourned meeting.
VOTING
56. Save where a greater majority is required by the Companies Acts or
these Bye-Laws, any question proposed for consideration at any general
meeting shall be decided on by a simple majority of votes cast.
57. At any general meeting, a resolution put to the vote of the meeting
shall be decided on a show of hands unless (before or on the
declaration of the result of the show of hands or on the withdrawal of
any other demand for a poll) a poll is demanded by:-
(1) the chairman of the meeting; or
(2) at least three Shareholders present in person or represented by
proxy; or
(3) any Shareholder or Shareholders present in person or represented
by proxy and holding between them not less than one tenth of the
total voting rights of all the Shareholders having the right to
vote at such meeting; or
(4) a Shareholder or Shareholders present in person or represented by
proxy holding shares conferring the right to vote at such
meeting, being shares on which an aggregate sum has been paid up
equal to not less than one tenth of the total sum paid up on all
such shares conferring such right.
The demand for a poll may be withdrawn by the person or any of the
persons making it at any time prior to the declaration of the result.
Unless a poll is so demanded and the demand is not withdrawn, a
declaration by the chairman that a resolution has, on a show of hands,
been carried or carried unanimously or by a particular majority or not
carried by a particular majority or lost shall be final and
conclusive, and an entry to that effect in the minute book of the
Company shall be conclusive evidence of the fact without proof of the
number or proportion of votes recorded for or against such
resolution.
58. If a poll is duly demanded, the result of the poll shall be deemed to
be the resolution of the meeting at which the poll is demanded.
59. A poll demanded on the election of a chairman, or on a question of
adjournment, shall be taken forthwith. A poll demanded on any other
question shall be taken in such manner and either forthwith or at such
time (being not later than three months after the date of the demand)
and place as the chairman shall direct. It shall not be necessary
(unless the chairman otherwise directs) for notice to be given of a
poll.
60. The demand for a poll shall not prevent the continuance of a meeting
for the transaction of any business other than the question on which
the poll has been demanded and it may be withdrawn at any time before
the close of the meeting or the taking of the poll, whichever is the
earlier.
61. On a poll, votes may be cast either personally or by proxy.
62. A person entitled to more than one vote on a poll need not use all his
votes or cast all the votes he uses in the same way.
63. In the case of an equality of votes at a general meeting, whether on a
show of hands or on a poll, the chairman of such meeting shall not be
entitled to a second or casting vote and the resolution shall fail.
64. In the case of joint holders of a share, the vote of the senior who
tenders a vote, whether in person or by proxy, shall be accepted to
the exclusion of the votes of the other joint holders, and for this
purpose seniority shall be determined by the order in which the names
stand in the Register in respect of the joint holding.
65. A Shareholder who is a patient for any purpose of any statute or
applicable law relating to mental health or in respect of whom an
order has been made by any Court having jurisdiction for the
protection or management of the affairs of persons incapable of
managing their own affairs may vote, whether on a show of hands or on
a poll, by his receiver, committee, curator bonis or other person in
the nature of a receiver, committee or curator bonis appointed by such
Court and such receiver, committee, curator bonis or other person may
vote on a poll by proxy, and may otherwise act and be treated as such
Shareholder for the purpose of general meetings.
66. No Shareholder shall, unless the Board otherwise determines, be
entitled to vote at any general meeting unless all calls or other sums
presently payable by him in respect of shares in the Company have been
paid.
67. If;
(1) any objection shall be raised to the qualification of any voter;
or,
(2) any votes have been counted which ought not to have been counted
or which might have been rejected; or,
(3) any votes are not counted which ought to have been counted,
the objection or error shall not vitiate the decision of the meeting
or adjourned meeting on any resolution unless the same is raised or
pointed out at the meeting or, as the case may be, the adjourned
meeting at which the vote objected to is given or tendered or at which
the error occurs. Any objection or error shall be referred to the
chairman of the meeting and shall only vitiate the decision of the
meeting on any resolution if the chairman decides that the same may
have affected the decision of the meeting. The decision of the
chairman on such matters shall be final and conclusive.
PROXIES AND CORPORATE REPRESENTATIVES
68. The instrument appointing a proxy shall be in writing under the hand
of the appointor or of his attorney authorised by him in writing or,
if the appointor is a corporation, either under its seal or under the
hand of an officer, attorney or other person authorised to sign the
same.
69. Any Shareholder may appoint a standing proxy or (if a corporation)
representative by depositing at the Registered Office a proxy or (if a
corporation) an authorisation and such proxy or authorisation shall be
valid for all general meetings and adjournments thereof or,
resolutions in writing, as the case may be, until notice of revocation
is received at the Registered Office. Where a standing proxy or
authorisation exists, its operation shall be deemed to have been
suspended at any general meeting or adjournment thereof at which the
Shareholder is present or in respect to which the Shareholder has
specially appointed a proxy or representative. The Board may from time
to time require such evidence as it shall deem necessary as to the due
execution and continuing validity of any such standing proxy or
authorisation and the operation of any such standing proxy or
authorisation shall be deemed to be suspended until such time as the
Board determines that it has received the requested evidence or other
evidence satisfactory to it.
70. Subject to Bye-Law 69, the instrument appointing a proxy together with
such other evidence as to its due execution as the Board may from time
to time require, shall be delivered at the Registered Office (or at
such place as may be specified in the notice convening the meeting or
in any notice of any adjournment or, in either case or the case of a
written resolution, in any document sent therewith) prior to the
holding of the relevant meeting or adjourned meeting at which the
person named in the instrument proposes to vote or, in the case of a
poll taken subsequently to the date of a meeting or adjourned meeting,
before the time appointed for the taking of the poll, or, in the case
of a written resolution, prior to the effective date of the written
resolution and in default the instrument of proxy shall not be treated
as valid.
71. Instruments of proxy shall be in any common form or in such other form
as the Board may approve and the Board may, if it thinks fit, send out
with the notice of any meeting or any written resolution forms of
instruments of proxy for use at that meeting or in connection with
that written resolution. The instrument of proxy shall be deemed to
confer authority to demand or join in demanding a poll and to vote on
any amendment of a written resolution or amendment of a resolution put
to the meeting for which it is given as the proxy thinks fit. The
instrument of proxy shall unless the contrary is stated therein be
valid as well for any adjournment of the meeting as for the meeting to
which it relates.
72. A vote given in accordance with the terms of an instrument of proxy
shall be valid notwithstanding the previous death or unsoundness of
mind of the principal, or revocation of the instrument of proxy or of
the authority under which it was executed, provided that no intimation
in writing of such death, insanity or revocation shall have been
received by the Company at the Registered Office (or such other place
as may be specified for the delivery of instruments of proxy in the
notice convening the meeting or other documents sent therewith) one
hour at least before the commencement of the meeting or adjourned
meeting, or the taking of the poll, or the day before the effective
date of any written resolution at which the instrument of proxy is
used.
73. Subject to the Companies Acts, the Board may at its discretion waive
any of the provisions of these Bye-Laws related to proxies or
authorisations and, in particular, may accept such verbal or other
assurances as it thinks fit as to the right of any person to attend
and vote on behalf of any Shareholder at general meetings or to sign
written resolutions.
APPOINTMENT AND REMOVAL OF DIRECTORS
74. The number of Directors shall be such number not less than two as the
Company by resolution may from time to time determine and, subject to
the Companies Acts and these Bye-Laws, the Directors shall serve until
the termination of the next Annual General Meeting following their
appointment. All Directors, upon election or appointment, except upon
re-election at an Annual General Meeting, must provide written
acceptance of their appointment, in such form as the Board may think
fit, by notice in writing to the Registered Office within thirty days
of their appointment.
75. The Company shall at the Annual General Meeting and may by resolution
determine the minimum and the maximum number of Directors and may by
resolution determine that one or more vacancies in the Board shall be
deemed casual vacancies for the purposes of these Bye-Laws. Without
prejudice to the power of the Company by resolution in pursuance of
any of the provisions of these Bye-Laws to appoint any person to be a
Director, the Board, so long as a quorum of Directors remains in
office, shall have power at any time and from time to time to appoint
any individual to be a Director so as to fill a casual vacancy.
76. The Company may in a Special General Meeting called for that purpose
remove a Director provided notice of any such meeting shall be served
upon the Director concerned not less than 14 days before the meeting
and he shall be entitled to be heard at that meeting. Any vacancy
created by the removal of a Director at a Special General Meeting may
be filled at the Meeting by the election of another Director in his
place or, in the absence of any such election, by the Board.
RESIGNATION AND DISQUALIFICATION OF DIRECTORS
77. The office of a Director shall be vacated upon the happening of any of
the following events:
(1) if he resigns his office by notice in writing delivered to the
Registered Office or tendered at a meeting of the Board;
(2) if he becomes applicable law relating to mental health and the
Board resolves that his office is vacated;
(3) if he becomes bankrupt under the laws of any country or compounds
with his creditors;
(4) if he is prohibited by law from being a Director;
(5) if he ceases to be a Director by virtue of the Companies Acts or
is removed from office pursuant to these Bye-Laws.
ALTERNATE DIRECTORS
78. A Director may appoint and remove his own Alternate Director. Any
appointment or removal of an Alternate Director by a Director shall be
effected by depositing a notice of appointment or removal with the
Secretary at the Registered Office, signed by such Director, and such
appointment or removal shall become effective on the date of receipt
by the Secretary. Any Alternate Director may be removed by resolution
of the Board. Subject as aforesaid, the office of Alternate Director
shall continue until the next annual election of Directors or, if
earlier, the date on which the relevant Director ceases to be a
Director. An Alternate Director may also be a Director in his own
right and may act as alternate to more than one Director.
79. An Alternate Director shall be entitled to receive notices of all
meetings of Directors, to attend, be counted in the quorum and vote at
any such meeting at which any Director to whom he is alternate is not
personally present, and generally to perform all the functions of any
Director to whom he is alternate in his absence.
80. Every person acting as an Alternate Director shall (except as regards
powers to appoint an alternate and remuneration) be subject in all
respects to the provisions of these Bye-Laws relating to Directors and
shall alone be responsible to the Company for his acts and defaults
and shall not be deemed to be the agent of or for any Director for
whom he is alternate. An Alternate Director may be paid expenses and
shall be entitled to be indemnified by the Company to the same extent
mutatis mutandis as if he were a Director. Every person acting as an
Alternate Director shall have one vote for each Director for whom he
acts as alternate (in addition to his own vote if he is also a
Director). The signature of an Alternate Director to any resolution in
writing of the Board or a committee of the Board shall, unless the
terms of his appointment provides to the contrary, be as effective as
the signature of the Director or Directors to whom he is alternate.
DIRECTORS' FEES AND ADDITIONAL REMUNERATION AND EXPENSES
81. The amount, if any, of Directors' fees shall from time to time be
determined by the Company by resolution and in the absence of a
determination to the contrary such fees shall be deemed to accrue from
day to day. Each Director may be paid his reasonable travel, hotel and
incidental expenses in attending and returning from meetings of the
Board or committees constituted pursuant to these Bye-Laws or general
meetings and shall be paid all expenses properly and reasonably
incurred by him in the conduct of the Company's business or in the
discharge of his duties as a Director. Any Director who, by request,
goes or resides abroad for any purposes of the Company or who performs
services which in the opinion of the Board go beyond the ordinary
duties of a Director may be paid such extra remuneration (whether by
way of salary, commission, participation in profits or otherwise) as
the Board may determine, and such extra remuneration shall be in
addition to any remuneration provided for by or pursuant to any other
Bye-Law.
DIRECTORS' INTERESTS
82. (1) A Director may hold any other office or place of profit with the
Company (except that of auditor) in conjunction with his office
of Director for such period and upon such terms as the Board may
determine, and may be paid such extra remuneration therefor
(whether by way of salary, commission, participation in profits
or otherwise) as the Board may determine, and such extra
remuneration shall be in addition to any remuneration provided
for by or pursuant to any other Bye-Law.
(2) A Director may act by himself or his firm in a professional
capacity for the Company (otherwise than as auditor) and he or
his firm shall be entitled to remuneration for professional
services as if he were not a Director.
(3) Subject to the provisions of the Companies Acts, a Director may
notwithstanding his office be a party to, or otherwise interested
in, any transaction or arrangement with the Company or in which
the Company is otherwise interested; and be a director or other
officer of, or employed by, or a party to any transaction or
arrangement with, or otherwise interested in, any body corporate
promoted by the Company or in which the Company is interested.
The Board may also cause the voting power conferred by the shares
in any other company held or owned by the Company to be exercised
in such manner in all respects as it thinks fit, including the
exercise thereof in favour of any resolution appointing the
Directors or any of them to be directors or officers of such
other company, or voting or providing for the payment of
remuneration to the directors or officers of such other company.
(4) So long as, where it is necessary, he declares the nature of his
interest at the first opportunity at a meeting of the Board or by
writing to the Directors as required by the Companies Acts, a
Director shall not by reason of his office be accountable to the
Company for any benefit which he derives from any office or
employment to which these Bye-Laws allow him to be appointed or
from any transaction or arrangement in which these Bye-Laws allow
him to be interested, and no such transaction or arrangement shall
be liable to be avoided on the ground of any interest or benefit.
(5) Subject to the Companies Acts and any further disclosure required
thereby, a general notice to the Directors by a Director or
Officer declaring that he is a director or officer or has an
interest in a person and is to be regarded as interested in any
transaction or arrangement made with that person, shall be a
sufficient declaration of interest in relation to any transaction
or arrangement so made.
POWERS AND DUTIES OF THE BOARD
83. Subject to the provisions of the Companies Acts and these Bye-Laws and
to any directions given by the Company by resolution, the Board shall
manage the business of the Company and may pay all expenses incurred
in promoting and incorporating the Company and may exercise all the
powers of the Company. No alteration of these Bye-Laws and no such
direction shall invalidate any prior act of the Board which would have
been valid if that alteration had not been made or that direction had
not been given. The powers given by this Bye-Law shall not be limited
by any special power given to the Board by these Bye-Laws and a
meeting of the Board at which a quorum is present shall be competent
to exercise all the powers, authorities and discretions for the time
being vested in or exercisable by the Board.
84. The Board may exercise all the powers of the Company to borrow money
and to mortgage or charge all or any part of the undertaking, property
and assets (present and future) and uncalled capital of the Company
and to issue debentures and other securities, whether outright or as
collateral security for any debt, liability or obligation of the
Company or of any other persons.
85. All cheques, promissory notes, drafts, bills of exchange and other
instruments, whether negotiable or transferable or not, and all
receipts for money paid to the Company shall be signed, drawn,
accepted, endorsed or otherwise executed, as the case may be, in such
manner as the Board shall from time to time by resolution determine.
86. The Board on behalf of the Company may provide benefits, whether by
the payment of gratuities or pensions or otherwise, for any person
including any Director or former Director who has held any executive
office or employment with the Company or with any body corporate which
is or has been a subsidiary or affiliate of the Company or a
predecessor in the business of the Company or of any such subsidiary
or affiliate, and to any member of his family or any person who is or
was dependent on him, and may contribute to any fund and pay premiums
for the purchase or provision of any such gratuity, pension or other
benefit, or for the insurance of any such person.
87. The Board may from time to time appoint one or more of its body to be
a managing director, joint managing director or an assistant managing
director or to hold any other employment or executive office with the
Company for such period and upon such terms as the Board may determine
and may revoke or terminate any such appointments. Any such revocation
or termination as aforesaid shall be without prejudice to any claim
for damages that such Director may have against the Company or the
Company may have against such Director for any breach of any contract
of service between him and the Company which may be involved in such
revocation or termination. Any person so appointed shall receive such
remuneration (if any) (whether by way of salary, commission,
participation in profits or otherwise) as the Board may determine, and
either in addition to or in lieu of his remuneration as a Director.
DELEGATION OF THE BOARD'S POWERS
88. The Board may by power of attorney appoint any company, firm or person
or any fluctuating body of persons, whether nominated directly or
indirectly by the Board, to be the attorney or attorneys of the
Company for such purposes and with such powers, authorities and
discretions (not exceeding those vested in or exercisable by the Board
under these Bye-Laws) and for such period and subject to such
conditions as it may think fit, and any such power of attorney may
contain such provisions for the protection and convenience of persons
dealing with any such attorney and of such attorney as the Board may
think fit, and may also authorise any such attorney to sub-delegate
all or any of the powers, authorities and discretions vested in him.
89. The Board may entrust to and confer upon any Director, Officer or,
without prejudice to the provisions of Bye-Law 90, other individual
any of the powers exercisable by it upon such terms and conditions
with such restrictions as it thinks fit, and either collaterally with,
or to the exclusion of, its own powers, and may from time to time
revoke or vary all or any of such powers but no person dealing in good
faith and without notice of such revocation or variation shall be
affected thereby.
90. The Board may delegate any of its powers, authorities and discretions
to committees, consisting of such person or persons (whether a member
or members of its body or not) as it thinks fit. Any committee so
formed shall, in the exercise of the powers, authorities and
discretions so delegated, and in conducting its proceedings conform to
any regulations which may be imposed upon it by the Board. If no
regulations are imposed by the Board the proceedings of a committee
with two or more members shall be, as far as is practicable, governed
by the Bye-Laws regulating the proceedings of the Board.
PROCEEDINGS OF THE BOARD
91. The Board may meet for the despatch of business, adjourn and otherwise
regulate its meetings as it thinks fit. Questions arising at any
meeting shall be determined by a majority of votes. In the case of an
equality of votes the motion shall be deemed to have been lost. A
Director may, and the Secretary on the requisition of a Director
shall, at any time summon a meeting of the Board.
92. Notice of a meeting of the Board shall be deemed to be duly given to a
Director if it is given to him personally or by word of mouth or sent
to him by post, cable, telex, telecopier or other mode of representing
or reproducing words in a legible and non-transitory form at his last
known address or any other address given by him to the Company for
this purpose. A Director may retrospectively waive the requirement for
notice of any meeting by consenting in writing to the business
conducted at the meeting.
93. (1) The quorum necessary for the transaction of the business of the
Board may be fixed by the Board and, unless so fixed at any other
number, shall be two individuals. Any Director who ceases to be a
Director at a meeting of the Board may continue to be present and
to act as a Director and be counted in the quorum until the
termination of the meeting if no other Director objects and if
otherwise a quorum of Directors would not be present.
(2) A Director who to his knowledge is in any way, whether directly
or indirectly, interested in a contract or proposed contract,
transaction or arrangement with the Company and has complied with
the provisions of the Companies Acts and these Bye-Laws with
regard to disclosure of his interest shall be entitled to vote in
respect of any contract, transaction or arrangement in which he
is so interested and if he shall do so his vote shall be counted,
and he shall be taken into account in ascertaining whether a
quorum is present.
(3) The Resident Representative shall, upon delivering written notice
of an address for the purposes of receipt of notice, to the
Registered Office, be entitled to receive notice of, attend and
be heard at, and to receive minutes of all meetings of the Board.
94. So long as a quorum of Directors remains in office, the continuing
Directors may act notwithstanding any vacancy in the Board but, if no
such quorum remains, the continuing Directors or a sole continuing
Director may act only for the purpose of calling a general meeting.
95. The Chairman (or President) or, in his absence, the Deputy Chairman
(or Vice-President), shall preside as chairman at every meeting of the
Board. If at any meeting the Chairman or Deputy Chairman (or the
President or Vice-President) is not present within five minutes after
the time appointed for holding the meeting, or is not willing to act
as chairman, the Directors present may choose one of their number to
be chairman of the meeting.
96. The meetings and proceedings of any committee consisting of two or
more members shall be governed by the provisions contained in these
Bye-Laws for regulating the meetings and proceedings of the Board so
far as the same are applicable and are not superseded by any
regulations imposed by the Board.
97. A resolution in writing signed by all the Directors for the time being
entitled to receive notice of a meeting of the Board or by all the
members of a committee for the time being shall be as valid and
effectual as a resolution passed at a meeting of the Board or, as the
case may be, of such committee duly called and constituted. Such
resolution may be contained in one document or in several documents in
the like form each signed by one or more of the Directors or members
of the committee concerned.
98. A meeting of the Board or a committee appointed by the Board may be
held by means of such telephone, electronic or other communication
facilities as permit all persons participating in the meeting to
communicate with each other simultaneously and instantaneously and
participation in such a meeting shall constitute presence in person at
such meeting.
99. All acts done by the Board or by any committee or by any person acting
as a Director or member of a committee or any person duly authorised
by the Board or any committee, shall, notwithstanding that it is
afterwards discovered that there was some defect in the appointment of
any member of the Board or such committee or person acting as
aforesaid or that they or any of them were disqualified or had vacated
their office, be as valid as if every such person had been duly
appointed and was qualified and had continued to be a Director, member
of such committee or person so authorised.
OFFICERS
100. The Officers of the Company shall include a President and a
Vice-President or a Chairman and a Deputy Chairman who shall be
Directors and shall be elected by the Board as soon as possible after
the statutory meeting and each Annual General Meeting. In addition,
the Board may appoint any person whether or not he is a Director to
hold such office as the Board may from time to time determine. Any
person elected or appointed pursuant to this Bye-Law shall hold office
for such period and upon such terms as the Board may determine and the
Board may revoke or terminate any such election or appointment. Any
such revocation or termination shall be without prejudice to any claim
for damages that such Officer may have against the Company or the
Company may have against such Officer for any breach of any contract
of service between him and the Company which may be involved in such
revocation or termination. Save as provided in the Companies Acts or
these Bye-Laws, the powers and duties of the Officers of the Company
shall be such (if any) as are determined from time to time by the
Board.
MINUTES
101. The Board shall cause minutes to be made and books kept for the
purpose of recording -
(1) all appointments of Officers made by the Board;
(2) the names of the Directors and other persons (if any) present at
each meeting of the Board and of any committee;
(3) of all proceedings at meetings of the Company, of the holders of
any class of shares in the Company, of the Board and of
committees appointed by the Board or the Shareholders;
(4) of all proceedings of its managers (if any).
Shareholders shall only be entitled to see the Register of Directors
and Officers, the Register, the financial information provided for in
Bye-Law 118 and the minutes of meetings of the Shareholders of the
Company.
SECRETARY AND RESIDENT REPRESENTATIVE
102. The Secretary (including one or more deputy or assistant secretaries)
and, if required, the Resident Representative, shall be appointed by
the Board at such remuneration (if any) and upon such terms as it may
think fit and any Secretary and Resident Representative so appointed
may be removed by the Board. The duties of the Secretary and the
duties of the Resident Representative shall be those prescribed by the
Companies Acts together with such other duties as shall from time to
time be prescribed by the Board.
103. A provision of the Companies Acts or these Bye-Laws requiring or
authorising a thing to be done by or to a Director and the Secretary
shall not be satisfied by its being done by or to the same person
acting both as Director and as, or in the place of, the Secretary.
THE SEAL
104. (1) The Seal shall consist of a circular metal device with the name
of the Company around the outer margin thereof and the country
and year of incorporation across the centre thereof. Should the
Seal not have been received at the Registered Office in such form
at the date of adoption of this Bye-Law then, pending such
receipt, any document requiring to be sealed with the Seal shall
be sealed by affixing a red wafer seal to the document with the
name of the Company, and the country and year of incorporation
type written across the centre thereof.
(2) The Board shall provide for the custody of every Seal. A Seal
shall only be used by authority of the Board or of a committee
constituted by the Board. Subject to these Bye-laws, any
instrument to which a Seal is affixed shall be signed by either
two Directors, or by the Secretary and one Director, or by the
Secretary or by any one person whether or not a Director or
Officer, who has been authorised either generally or specifically
to affirm the use of a Seal; provided that the Secretary or a
Director may affix a Seal over his signature alone to
authenticate copies of these Bye-Laws, the minutes of any meeting
or any other documents requiring authentication
DIVIDENDS AND OTHER PAYMENTS
105. The Board may from time to time declare dividends or distributions out
of contributed surplus to be paid to the Shareholders according to
their rights and interests including such interim dividends as appear
to the Board to be justified by the position of the Company. The
Board, in its discretion, may determine that any dividend shall be
paid in cash or shall be satisfied, subject to Bye-Law 113, in paying
up in full shares in the Company to be issued to the Shareholders
credited as fully paid or partly paid or partly in one way and partly
the other. The Board may also pay any fixed cash dividend which is
payable on any shares of the Company half yearly or on such other
dates, whenever the position of the Company, in the opinion of the
Board, justifies such payment.
106. Except insofar as the rights attaching to, or the terms of issue of,
any share otherwise provide:-
(1) all dividends or distributions out of contributed surplus may be
declared and paid according to the amounts paid up on the shares
in respect of which the dividend or distribution is paid, and an
amount paid up on a share in advance of calls may be treated for
the purpose of this Bye-Law as paid-up on the share;
(2) dividends or distributions out of contributed surplus may be
apportioned and paid pro rata according to the amounts paid-up on
the shares during any portion or portions of the period in
respect of which the dividend or distribution is paid.
107. The Board may deduct from any dividend, distribution or other moneys
payable to a Shareholder by the Company on or in respect of any shares
all sums of money (if any) presently payable by him to the Company on
account of calls or otherwise in respect of shares of the Company.
108. No dividend, distribution or other moneys payable by the Company on or
in respect of any share shall bear interest against the Company.
109. Any dividend, distribution or interest, or part thereof payable in
cash, or any other sum payable in cash to the holder of shares may be
paid by cheque or warrant sent through the post addressed to the
holder at his address in the Register or, in the case of joint
holders, addressed to the holder whose name stands first in the
Register in respect of the shares at his registered address as
appearing in the Register or addressed to such person at such address
as the holder or joint holders may in writing direct. Every such
cheque or warrant shall, unless the holder or joint holders otherwise
direct, be made payable to the order of the holder or, in the case of
joint holders, to the order of the holder whose name stands first in
the Register in respect of such shares, and shall be sent at his or
their risk and payment of the cheque or warrant by the bank on which
it is drawn shall constitute a good discharge to the Company. Any one
of two or more joint holders may give effectual receipts for any
dividends, distributions or other moneys payable or property
distributable in respect of the shares held by such joint holders.
110. Any dividend or distribution out of contributed surplus unclaimed for
a period of six years from the date of declaration of such dividend or
distribution shall be forfeited and shall revert to the Company and
the payment by the Board of any unclaimed dividend, distribution,
interest or other sum payable on or in respect of the share into a
separate account shall not constitute the Company a trustee in respect
thereof.
111. The Board may also, in addition to its other powers, direct payment or
satisfaction of any dividend or distribution out of contributed
surplus wholly or in part by the distribution of specific assets, and
in particular of paid-up shares or debentures of any other company,
and where any difficulty arises in regard to such distribution or
dividend the Board may settle it as it thinks expedient, and in
particular, may authorise any person to sell and transfer any
fractions or may ignore fractions altogether, and may fix the value
for distribution or dividend purposes of any such specific assets and
may determine that cash payments shall be made to any Shareholders
upon the footing of the values so fixed in order to secure equality of
distribution and may vest any such specific assets in trustees as may
seem expedient to the Board provided that such dividend or
distribution may not be satisfied by the distribution of any partly
paid shares or debentures of any company without the sanction of a
resolution.
RESERVES
112. The Board may, before recommending or declaring any dividend or
distribution out of contributed surplus, set aside such sums as it
thinks proper as reserves which shall, at the discretion of the Board,
be applicable for any purpose of the Company and pending such
application may, also at such discretion, either be employed in the
business of the Company or be invested in such investments as the
Board may from time to time think fit. The Board may also without
placing the same to reserve carry forward any sums which it may think
it prudent not to distribute.
CAPITALIZATION OF PROFITS
113. The Board may, from time to time resolve to capitalise all or any part
of any amount for the time being standing to the credit of any reserve
or fund which is available for distribution or to the credit of any
share premium account and accordingly that such amount be set free for
distribution amongst the Shareholders or any class of Shareholders who
would be entitled thereto if distributed by way of dividend and in the
same proportions, on the footing that the same be not paid in cash but
be applied either in or towards paying up amounts for the time being
unpaid on any shares in the Company held by such Shareholders
respectively or in payment up in full of unissued shares, debentures
or other obligations of the Company, to be allotted and distributed
credited as fully paid amongst such Shareholders, or partly in one way
and partly in the other, provided that for the purpose of this
Bye-Law, a share premium account may be applied only in paying up of
unissued shares to be issued to such Shareholders credited as fully
paid and provided further that any sum standing to the credit of a
share premium account may only be applied in crediting as fully paid
shares of the same class as that from which the relevant share premium
was derived.
114. Where any difficulty arises in regard to any distribution under the
last preceding Bye-Law, the Board may settle the same as it thinks
expedient and, in particular, may authorise any person to sell and
transfer any fractions or may resolve that the distribution should be
as nearly as may be practicable in the correct proportion but not
exactly so or may ignore fractions altogether, and may determine that
cash payments should be made to any Shareholders in order to adjust
the rights of all parties, as may seem expedient to the Board. The
Board may appoint any person to sign on behalf of the persons entitled
to participate in the distribution any contract necessary or desirable
for giving effect thereto and such appointment shall be effective and
binding upon the Shareholders.
RECORD DATES
115. Notwithstanding any other provisions of these Bye-Laws, the Company
may by resolution or the Board may fix any date as the record date for
any dividend, distribution, allotment or issue and for the purpose of
identifying the persons entitled to receive notices of general
meetings. Any such record date may be on or at any time before or
after any date on which such dividend, distribution, allotment or
issue is declared, paid or made or such notice is despatched.
ACCOUNTING RECORDS
116. The Board shall cause to be kept accounting records sufficient to give
a true and fair view of the state of the Company's affairs and to show
and explain its transactions, in accordance with the Companies Acts.
117. The records of account shall be kept at the Registered Office or at
such other place or places as the Board thinks fit, and shall at all
times be open to inspection by the Directors: PROVIDED that if the
records of account are kept at some place outside Bermuda, there shall
be kept at an office of the Company in Bermuda such records as will
enable the Directors to ascertain with reasonable accuracy the
financial position of the Company at the end of each three month
period. No Shareholder (other than an Officer of the Company) shall
have any right to inspect any accounting record or book or document of
the Company except as conferred by law or authorised by the Board or
by resolution.
118. A copy of every balance sheet and statement of income and expenditure,
including every document required by law to be annexed thereto, which
is to be laid before the Company in general meeting, together with a
copy of the auditors' report, shall be sent to each person entitled
thereto in accordance with the requirements of the Companies Acts.
AUDIT
119. Save and to the extent that an audit is waived in the manner permitted
by the Companies Acts, auditors shall be appointed and their duties
regulated in accordance with the Companies Acts, any other applicable
law and such requirements not inconsistent with the Companies Acts as
the Board may from time to time determine.
SERVICE OF NOTICES AND OTHER DOCUMENTS
120. Any notice or other document (including a share certificate) may be
served on or delivered to any Shareholder by the Company either
personally or by sending it through the post (by airmail where
applicable) in a pre-paid letter addressed to such Shareholder at his
address as appearing in the Register or by delivering it to or leaving
it at such registered address. In the case of joint holders of a
share, service or delivery of any notice or other document on or to
one of the joint holders shall for all purposes be deemed as
sufficient service on or delivery to all the joint holders. Any notice
or other document if sent by post shall be deemed to have been served
or delivered seven days after it was put in the post, and in proving
such service or delivery, it shall be sufficient to prove that the
notice or document was properly addressed, stamped and put in the
post.
121. Any notice of a general meeting of the Company shall be deemed to be
duly given to a Shareholder, or other person entitled to it, if it is
sent to him by cable, telex, telecopier or other mode of representing
or reproducing words in a legible and non-transitory form at his
address as appearing in the Register or any other address given by him
to the Company for this purpose. Any such notice shall be deemed to
have been served twenty-four hours after its despatch.
122. Any notice or other document delivered, sent or given to a Shareholder
in any manner permitted by these Bye-Laws shall, notwithstanding that
such Shareholder is then dead or bankrupt or that any other event has
occurred, and whether or not the Company has notice of the death or
bankruptcy or other event, be deemed to have been duly served or
delivered in respect of any share registered in the name of such
Shareholder as sole or joint holder unless his name shall, at the time
of the service or delivery of the notice or document, have been
removed from the Register as the holder of the share, and such service
or delivery shall for all purposes be deemed as sufficient service or
delivery of such notice or document on all persons interested (whether
jointly with or as claiming through or under him) in the share.
WINDING UP
123. If the Company shall be wound up, the liquidator may, with the
sanction of a resolution of the Company and any other sanction
required by the Companies Acts, divide amongst the Shareholders in
specie or kind the whole or any part of the assets of the Company
(whether they shall consist of property of the same kind or not) and
may for such purposes set such values as he deems fair upon any
property to be divided as aforesaid and may determine how such
division shall be carried out as between the Shareholders or different
classes of Shareholders. The liquidator may, with the like sanction,
vest the whole or any part of such assets in trustees upon such trust
for the benefit of the contributories as the liquidator, with the like
sanction, shall think fit, but so that no Shareholder shall be
compelled to accept any shares or other assets upon which there is any
liability.
INDEMNITY
124. Subject to the proviso below, every Director, Officer of the Company
and member of a committee constituted under Bye-Law 90 and any
Resident Representative shall be indemnified out of the funds of the
Company against all liabilities, loss, damage or expense (including
but not limited to liabilities under contract, tort and statute or any
applicable foreign law or regulation and all reasonable legal and
other costs and expenses properly payable) incurred or suffered by him
as such Director, Officer, committee member or Resident Representative
and the indemnity contained in this Bye-Law shall extend to any person
acting as a Director, Officer, committee member or Resident
Representative in the reasonable belief that he has been so appointed
or elected notwithstanding any defect in such appointment or election
PROVIDED ALWAYS that the indemnity contained in this Bye-Law shall not
extend to any matter which would render it void pursuant to the
Companies Acts.
125. Every Director, Officer, member of a committee duly constituted under
Bye-Law 90 or Resident Representative of the Company shall be
indemnified out of the funds of the Company against all liabilities
incurred by him as such Director, Officer, committee member or
Resident Representative in defending any proceedings, whether civil or
criminal, in which judgement is given in his favour, or in which he is
acquitted, or in connection with any application under the Companies
Acts in which relief from liability is granted to him by the court.
126. To the extent that any Director, Officer, member of a committee duly
constituted under Bye-Law 90 or Resident Representative is entitled to
claim an indemnity pursuant to these Bye-Laws in respect of amounts
paid or discharged by him, the relative indemnity shall take effect as
an obligation of the Company to reimburse the person making such
payment or effecting such discharge.
127. Each Shareholder and the Company agree to waive any claim or right of
action he or it may at any time have, whether individually or by or in
the right of the Company, against any Director, Officer, or member of
a committee duly constituted under Bye-Law 90 on account of any action
taken by such Director, Officer, or member of a committee or the
failure of such Director, Officer, or member of a committee to take
any action in the performance of his duties with or for the Company
PROVIDED HOWEVER that such waiver shall not apply to any claims or
rights of action arising out of the fraud of such Director, Officer,
or member of a committee duly constituted under Bye-Law 90 or to
recover any gain, personal profit or advantage to which such Director,
Officer, or member of a committee duly constituted under Bye-Law 90 is
not legally entitled.
128. Subject to the Companies Acts, expenses incurred in defending any
civil or criminal action or proceeding for which indemnification is
required pursuant to Bye-Laws 124 and 125 shall be paid by the Company
in advance of the final disposition of such action or proceeding upon
receipt of an undertaking by or on behalf of the indemnified party to
repay such amount if it shall ultimately be determined that the
indemnified party is not entitled to be indemnified pursuant to
Bye-Laws 124 and 125.
Each Shareholder of the Company, by virtue of its acquisition and
continued holding of a share, shall be deemed to have acknowledged and
agreed that the advances of funds may be made by the Company as
aforesaid, and when made by the Company under this Bye-Law 128 are
made to meet expenditures incurred for the purpose of enabling such
Director, Officer, or member of a committee duly constituted under
Bye-Law 90 to properly perform his or her duties as an officer of the
Company.
AMALGAMATION
129. Any resolution proposed for consideration at any general meeting to
approve the amalgamation of the Company with any other company,
wherever incorporated, shall require the approval of a simple majority
of votes cast at such meeting and the quorum for such meeting shall be
that required in Bye-Law 49 and a poll may be demanded in respect of
such resolution in accordance with the provisions of Bye-Law 57.
CONTINUATION
130. Subject to the Companies Acts, the Board may approve the
discontinuation of the Company in Bermuda and the continuation of the
Company in a jurisdiction outside Bermuda. The Board, having resolved
to approve the discontinuation of the Company, may further resolve not
to proceed with any application to discontinue the Company in Bermuda
or may vary such application as it sees fit.
ALTERATION OF BYE-LAWS
131. These Bye-Laws may be amended from time to time in the manner provided
for in the Companies Acts.
EXHIBIT 4.1
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE, dated as of October 29, 1998 (the "FIRST
SUPPLEMENTAL INDENTURE"), between NTL (Bermuda) Limited ("NTL (BERMUDA)"),
a Bermuda corporation and Bank of Montreal Trust Company, as trustee (the
"TRUSTEE").
WHEREAS, Comcast UK Cable Partners Limited (the "COMPANY") executed
and delivered to the Trustee the Indenture dated as of November 15, 1995
(the "BASE INDENTURE" and, together with the First Supplemental Indenture,
the "INDENTURE"), providing for the issuance of the Company's 11.20% Senior
Discount Debentures due 2007 (the "DEBENTURES");
WHEREAS, Debentures in the aggregate principal amount of $517,321,000
at maturity are currently outstanding under the Indenture;
WHEREAS, Section 9.1 of the Base Indenture provides that the Company,
when authorized by a resolution of its Board of Directors, and the Trustee
may amend or supplement the Indenture and the Debentures without notice to
or consent of any Holder to evidence the succession in accordance with
Article V of the Base Indenture of another Person to the Company and the
assumption by any such successor of the covenants of the Company therein
and in the Debentures;
WHEREAS, in accordance with and as contemplated by Section 9.2 of the
Base Indenture, the Company has solicited and received the written consent
of the Holders of not less than a majority in aggregate principal amount at
maturity of the Debentures then outstanding to waive Section 5.1(a)(iii) of
the Base Indenture in order to permit an amalgamation (the "AMALGAMATION")
of the Company with NTL (Bermuda), with the separate existence of the
Company and NTL (Bermuda) continuing in the form of the company resulting
from the Amalgamation (the "AMALGAMATED COMPANY") under the name "NTL
(Bermuda) Limited".
WHEREAS, following the Amalgamation, the Amalgamated Company will be
liable for the obligations of the Company under the Debentures and the
Indenture; and
WHEREAS, all requirements necessary to make this First Supplemental
Indenture a valid instrument in accordance with its terms, have been
performed, and the execution and delivery of this First Supplemental
Indenture have been duly authorized in all respects.
NOW, THEREFORE, each party hereto agrees as follows for the benefit of
each other party and for the equal and ratable benefit of the Holders of
the Debentures:
ARTICLE 1
DEFINITIONS
Section 1.1. Defined Terms. Capitalized terms used in this First
Supplemental Indenture and not otherwise defined herein shall have the
meaning assigned to such term in the Base Indenture.
ARTICLE 2
SUCCESSOR CORPORATION
Section 2.1. Substitution of Successor Entity. As provided in Section
5.2 of the Base Indenture, the Amalgamated Company shall be liable for the
obligations of the Company under the Debentures and the Indenture,
including the due and punctual payment of the principal of, premium, if
any, and the interest on the Debentures and the performance and observance
of every covenant of the Indenture to be performed or observed on the part
of the Company. The Amalgamated Company hereby succeeds to, and is
substituted for, and may exercise every right and power of the Company
under the Debentures and the Indenture.
ARTICLE 3
MISCELLANEOUS
Section 3.1. Instruments to Be Read Together. This First Supplemental
Indenture is an indenture supplemental to the Base Indenture, and such Base
Indenture and this First Supplemental Indenture shall henceforth be read
together.
Section 3.2. Confirmation. The Indenture, as amended and supplemented
by this First Supplemental Indenture, shall remain in full force and effect
and is hereby confirmed and preserved in all respects.
Section 3.3. Headings and References. The headings of the Articles and
Sections of this First Supplemental Indenture have been inserted for
convenience only, and are not to be considered a part hereof and shall in
no way modify or restrict any of the terms and provisions hereof. Unless
otherwise specifically defined herein, each term used herein which is
defined in the Base Indenture shall have the meaning assigned to such term
in the Base Indenture. Each reference to "hereof", "hereunder", "herein"
and "hereby" and each other similar reference and each reference to "this
Indenture" and each similar reference contained in the Base Indenture shall
from and after the date hereof refer to the Base Indenture as amended
hereby.
Section 3.4. Governing Law. This First Supplemental Indenture shall be
governed by the laws of New York State without regard to the conflicts of
law rules of such state.
Section 3.5. Counterparts. This First Supplemental Indenture may be
executed in any number of counterparts, each of which so executed shall be
deemed to be an original, but all such counterparts shall together
constitute one and the same instrument.
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed as of the date first written
above.
NTL (BERMUDA) LIMITED
By: /s/ Richard J. Lubasch
--------------------------------------
Name: Richard J. Lubasch
Title: Senior Vice President-General
Counsel and Secretary
BANK OF MONTREAL TRUST COMPANY,
AS TRUSTEE
By: /s/ Amy Roberts
--------------------------------------
Name: Amy Roberts
Title: Vice President
EXHIBIT 16.1
DELOITTE & TOUCHE LLP
November 4, 1998
Securities and Exchange Commission
Mail Stop 9-5
450 5th Street
Washington, DC 20549
Dear Sirs/Madams:
We have read and agree with the comments in Item 4 of Form 8-K of NTL
(Bermuda) Limited dated October 29, 1998.
Yours truly,
/s/ Deloitte & Touche LLP
EXHIBIT 99.2
FOR IMMEDIATE RELEASE
PRESS RELEASE
NTL INCORPORATED ANNOUNCES THE COMPLETION OF ITS ACQUISITION
OF COMCAST UK CABLE PARTNERS LIMITED
New York, New York (October 29, 1998) - NTL Incorporated (Nasdaq:
NTLI; Easdaq: NTLI.ED) announced today that it had completed its
acquisition of Comcast UK Cable Partners Limited ("Comcast UK") (Nasdaq:
CMCAF).
Comcast UK shareholders received 0.3745 NTL shares for each Comcast UK
share. NTL issued a total of 18,764,173 shares in the transaction.
Commenting on the transaction, Barclay Knapp, President and Chief
Executive Officer of NTL, said: "The acquisition of Comcast UK
significantly increases the value of NTL and is an important step in
achieving our objective of becoming the premier communications company in
the UK. Since the announcement of the transaction, we have worked closely
with Comcast UK management on the integration of the operations. NTL is
thrilled to add the high quality Comcast UK management team, and we look
forward to working together to successfully grow the combined companies."
Comcast UK operates telephony/cable networks in the United Kingdom in
Cambridge and Teesside and has an interest in Cable London (50.0%
ownership). Comcast UK has a total of approximately 962,500 million equity
homes under franchise. As of June 30, 1998, on a proportionate basis
Comcast UK had passed approximately 623,300 homes, and had approximately
223,100 residential telephony customers, 152,300 residential cable
television customers and 26,700 business telephony lines. On October 28,
1998, Comcast UK sold its interest (27.5% ownership) in Birmingham Cable to
Telewest Communications plc for 130 million pounds sterling in cash.
As previously announced, NTL and Telewest have also agreed within a
certain time period to rationalize their joint ownership of Cable London
pursuant to an agreed procedure. Generally between six and nine months from
today, NTL will notify Telewest of the price at which it is willing to sell
its 50% ownership interest in Cable London to Telewest. Following such
notification, Telewest at its option will be required at that price to
either purchase NTL's 50% ownership interest in Cable London or sell its
50% ownership interest in Cable London to NTL.
NTL offers local business and residential telephony, residential cable
television and Internet services over advanced broadband fiber networks in
several major franchise areas in the United Kingdom. Through its national
telecoms services division, NTL owns and operates one of only five
independent national telecoms networks in the United Kingdom and offers
national business telecoms, national international carrier
telecommunications services, and satellite and radio communications
services. NTL's broadcast services division operates a national broadcast
transmission network of more than 1,200 owned and shared transmission
sites, and offers digital and analog broadcast transmission services to
major television and radio stations, nationwide in the United Kingdom.
********
For further information, contact: In the U.S.: John F. Gregg, Managing
Director - Corporate Development, Michael A. Peterson, Director - Corporate
Development, or Richard J. Lubasch, Senior Vice President - General
Counsel, at (212) 906-8440; in the U.K.: Bret Richter, Director - Corporate
Development, at (0171) 227-8700 or Alison Smith, Group Communications, at
(01252) 402662; or via e-mail at [email protected].
