<PAGE>
SCHEDULE 14A
(RULE 14A-101)
INFORMATION REQUIRED IN PROXY STATEMENT
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the Securities
Exchange Act of 1934
Filed by the Registrant /X/
Filed by a Party other than the Registrant / /
Check the appropriate box:
/ / Preliminary Proxy Statement
/ / Confidential, for Use of the Commission Only (as permitted by Rule
14a-6(e)(2))
/X/ Definitive Proxy Statement
/ / Definitive Additional Materials
/ / Soliciting Material Pursuant to Rule 14a-11(c) or Rule 14a-12
NYNEX CABLECOMMS GROUP INC. AND NYNEX CABLECOMMS GROUP PLC
- --------------------------------------------------------------------------------
(Name of Registrant as Specified In Its Charter)
- --------------------------------------------------------------------------------
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
/ / No fee required.
/X/ Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
(1) Title of each class of securities to which transaction applies:
American Depositary Shares evidenced by American Depositary Receipts,
each representing ten Units, each Unit consisting of one Ordinary Share
(par value 10p per share) of NYNEX CableComms Group PLC and one share
of Common Stock (par value $.01 per share) of NYNEX CableComms Group
Inc.
Ordinary Shares (par value 10p per share) of NYNEX CableComms Group PLC
Common Stock (par value $.01 per share) of NYNEX CableComms Group Inc.
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(2) Aggregate number of securities to which transaction applies:
925,976,934 Units each comprised of one Ordinary Share and one share of
Common Stock
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(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (set forth the amount on which the
filing fee is calculated and state how it was determined):
The fee is equal to one-fiftieth of one percent of the market value of
the Units comprised of the Ordinary Shares and the Common Stock,
estimated based on the average reported high and low sales prices of
the American Depositary Shares on March 12, 1997, assuming all Units
are represented by American Depositary Shares. The aggregate market
value of the Units on March 12, 1997 was $1,620,459,635.
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(4) Proposed maximum aggregate value of transaction:
$1,620,459,635
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(5) Total fee paid:
$324,092
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/X/ Fee paid previously with preliminary materials.
/ / Check box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number,
or the Form or Schedule and the date of its filing.
(1) Amount Previously Paid:
-----------------------------------------------------------------------
(2) Form, Schedule or Registration Statement No.: N/A
-----------------------------------------------------------------------
(3) Filing Party: N/A
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(4) Date Filed: N/A
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<PAGE>
NYNEX CABLECOMMS GROUP PLC AND NYNEX CABLECOMMS GROUP INC.
THE TOLWORTH TOWER, EWELL ROAD, SURBITON, SURREY, KT6 7ED, UNITED KINGDOM
THIS DOCUMENT IS IMPORTANT AND REQUIRES YOUR IMMEDIATE ATTENTION. THIS
DOCUMENT MUST BE READ WITH THE OFFERS TO PURCHASE/PROSPECTUS DATED MARCH 21,
1997 OF CABLE & WIRELESS COMMUNICATIONS PLC (THE "OFFERS TO PURCHASE/
PROSPECTUS") ACCOMPANYING THIS DOCUMENT. YOU ARE ALSO ENCOURAGED TO READ THE
ENCLOSED SOLICITATION/RECOMMENDATION STATEMENT ON SCHEDULE 14D-9 ("SCHEDULE
14D-9") OF NYNEX CABLECOMMS GROUP PLC AND NYNEX CABLECOMMS GROUP INC. IF YOU ARE
IN ANY DOUBT ABOUT THE ACTION YOU SHOULD TAKE, YOU ARE RECOMMENDED TO SEEK
FINANCIAL ADVICE IMMEDIATELY FROM AN APPROPRIATELY AUTHORIZED FINANCIAL ADVISOR
OR, IF YOU ARE IN THE UNITED KINGDOM, AN INDEPENDENT FINANCIAL ADVISOR
AUTHORIZED UNDER THE FINANCIAL SERVICES ACT 1986.
1. This proxy statement is being sent to holders of Units ("NYNEX CableComms
Units"), each NYNEX CableComms Unit representing one Ordinary Share ("NYNEX
CableComms UK Ordinary Share") of NYNEX CableComms Group PLC ("NYNEX
CableComms UK") and one share of common stock ("NYNEX CableComms US Share of
Common Stock") of NYNEX CableComms Group Inc. ("NYNEX CableComms US") who
held NYNEX CableComms Units on March 21, 1997 (the "Record Date").
2. As a result of differences between English law, which governs voting of
NYNEX CableComms UK Ordinary Shares, and Delaware law, which governs voting
of NYNEX CableComms US Shares of Common Stock:
- your sale or transfer of NYNEX CableComms Units after the Record Date will
not affect your right, as a holder on the Record Date, to attend and vote
at the NYNEX CableComms US Special Meeting, because the right to attend
and vote does not automatically transfer to a subsequent holder of NYNEX
CableComms Units; and
- your sale or transfer of NYNEX CableComms Units will constitute the
transfer to a subsequent holder of the right to attend and vote at the
NYNEX CableComms UK Extraordinary General Meeting.
3. The task of obtaining votes is complicated as a result of the above
differences. To assist NYNEX CableComms UK and NYNEX CableComms US in this
task of obtaining votes, after carefully reviewing this document and the
accompanying materials, YOU ARE URGED IMMEDIATELY to complete, sign, date
and return in the enclosed pre-addressed envelope BOTH the blue Proxy Card
for the NYNEX CableComms UK Extraordinary General Meeting AND the grey Proxy
Card for the NYNEX CableComms US Special Meeting, even if you plan to sell
or transfer your NYNEX CableComms Units before the meeting date. Should you
sell or transfer your NYNEX CableComms Units after submitting the Proxy
Cards, (i) your vote at the NYNEX CableComms US Special Meeting will be
counted (unless you assign your right to vote to a subsequent holder and
that holder submits a later dated Proxy Card or attends the meeting in
person and votes) and (ii) your vote at the NYNEX CableComms UK
Extraordinary General Meeting will be disregarded.
4. If you do sell or transfer your NYNEX CableComms Units, please forward this
document as soon as possible, together with the accompanying Offers to
Purchase/Prospectus, Schedule 14D-9 and other accompanying documents, to the
stockbroker, bank or other agent through whom the sale or transfer was
effected, for transmission to the purchaser or transferee. However, these
documents should not be distributed, forwarded or transmitted in or into
Japan or Australia.
5. Any questions or requests for assistance or additional copies of the Proxy
Statement or the Proxy Cards may be directed to The Royal Bank of Scotland,
Receiving Agent for the Offers in the UK (call: 0117-937-0666), or D.F. King
& Co. Inc., Information Agent for the Offers and Proxy Soliciting Agent in
the U.S. (call toll free: 1-800-848-3402).
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NOTICE OF MEETINGS
NOTICE IS HEREBY GIVEN THAT an Extraordinary General Meeting of members (the
"NYNEX CableComms UK Extraordinary Meeting") of NYNEX CableComms UK and a
Special Meeting of shareholders (the "NYNEX CableComms US Special Meeting") of
NYNEX CableComms US will be held at 1 Finsbury Avenue, London, EC2M 2PP, United
Kingdom, on April 24, 1997. The NYNEX CableComms UK Extraordinary Meeting will
commence at 9:00 a.m. and the NYNEX CableComms US Special Meeting will commence
immediately after the conclusion or adjournment of the NYNEX CableComms UK
Extraordinary Meeting. The NYNEX CableComms UK Extraordinary Meeting and the
NYNEX CableComms US Special Meeting are hereinafter referred to collectively as
the "Meetings".
Holders of NYNEX CableComms Units are shareholders of both NYNEX CableComms
UK and NYNEX CableComms US and are entitled to notice of and may attend both of
the Meetings.
BUSINESS TO BE CONDUCTED AT THE NYNEX CABLECOMMS UK EXTRAORDINARY MEETING
AND AT ANY ADJOURNMENT(S) THEREOF:
To consider and, if thought fit, pass the following resolution:
1. A resolution, which will be proposed as a special resolution (the "UK
De-stapling Resolution") and, for the purposes of Article 7 of the Articles of
Association of NYNEX CableComms UK, as an extraordinary resolution of the
holders of NYNEX CableComms UK Ordinary Shares as a class (the "UK De-stapling
Resolution"):
THAT, subject to the approval of the US De-stapling Resolution (as defined
in the section of the Notice of Meetings setting out the business to be
conducted at the Special Meeting of Shareholders of NYNEX CableComms Group
Inc. to be held on April 24, 1997), the Articles of Association of NYNEX
CableComms Group PLC be amended by adding a new paragraph 37(e) as follows:
"(e) notwithstanding anything in these Articles to the contrary, with effect
from the NYNEX CableComms Offers (as defined in the Offers to
Purchase/Prospectus of Cable & Wireless Communications plc) becoming or
being declared unconditional in all respects, the Board shall be
empowered, in its absolute discretion, to determine that:
(i) the provisions of paragraphs (a), (b) and (d) of this Article 37;
and
(ii) any other relevant provision of these Articles restricting a
transfer, or other dealing, of Ordinary Shares other than together
with Common Stock of U.S. CableComms,
shall not apply to the transfer, or other dealing, of such number of
Ordinary Shares as does not exceed (when aggregated with any Ordinary
Shares which the Board of Directors has previously permitted to be
transferred, or otherwise dealt with, free of the restrictions of such
provisions pursuant to this paragraph (e)) 20% of the aggregate number
of Ordinary Shares from time to time in issue, such that those Ordinary
Shares that the Board permits to be transferred, or otherwise dealt
with, free of the restrictions of such provisions shall thereafter no
longer comprise Units and shall be transferable or otherwise be dealt
with separately and apart from the relevant Common Stock, and that the
Board shall take all such steps and adopt and follow all such procedures
as they may consider desirable to give effect to this paragraph."
2. A resolution, which will be proposed as an ordinary resolution (the "UK
Adjournment Resolution"):
THAT, if the Chairman of the meeting has determined that there are an
insufficient number of the votes required to approve the UK De-stapling
Resolution (as defined in the section of the Notice of Meetings setting out
the business to be conducted at the NYNEX CableComms Group PLC Extraordinary
General Meeting of members to be held on April 24, 1997) at the
Extraordinary General Meeting of NYNEX CableComms Group PLC to be held on
April 24, 1997, or any adjournment thereof, such Extraordinary General
Meeting be, and it hereby is, adjourned to the same
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<PAGE>
place and to such time, not less than seven calendar days after the date of
such Extraordinary General Meeting, or any adjournment thereof, as the
shareholders of NYNEX CableComms Group PLC (or the proxies therefor) may
determine, in order to permit the obtaining of such further votes as may be
required and further solicitations of proxies in favor of the UK De-stapling
Resolution.
BUSINESS TO BE CONDUCTED AT THE NYNEX CABLECOMMS US SPECIAL MEETING AND AT
ANY ADJOURNMENT(S) THEREOF:
To consider and vote upon the following resolutions:
1. Subject to the approval of the UK De-stapling Resolution, to amend the
Restated Certificate of Incorporation of NYNEX CableComms US to provide that,
notwithstanding the provisions contained in Paragraphs A and B of Article FIFTH
and other relevant provisions therein requiring that NYNEX CableComms UK
Ordinary Shares and NYNEX CableComms US Shares of Common Stock be transferred
and otherwise dealt with together as a NYNEX CableComms Unit, effective upon the
NYNEX CableComms Offers (as defined in the Offers to Purchase/Prospectus)
becoming or being declared unconditional in all respects, the Board of Directors
of NYNEX CableComms US shall be authorized to determine that such provisions
shall not apply to the transfer, conversion by way of merger or other dealing of
NYNEX CableComms US Shares of Common Stock in an amount not to exceed (when
aggregated with any NYNEX CableComms US Shares of Common Stock which the Board
of Directors has previously permitted to be transferred, converted by way of
merger or otherwise dealt with, free of the restrictions of such provisions) 20%
of the NYNEX CableComms US Shares of Common Stock from time to time outstanding,
such that those NYNEX CableComms US Shares of Common Stock that the Board of
Directors permits to be transferred, converted by way of merger or otherwise
dealt with, free of the restrictions of such provisions shall thereafter no
longer comprise NYNEX CableComms Units and shall be transferable, convertible by
way of merger or otherwise dealt with separately and apart from the relevant
NYNEX CableComms UK Ordinary Shares (the "US De-stapling Resolution").
2. Subject to the approval of the UK De-stapling Resolution and the US
De-stapling Resolution, to approve and adopt the Agreement and Plan of Merger,
dated as of March 21, 1997 (the "Merger Agreement"), among NYNEX CableComms US,
Cable & Wireless Communications plc ("CWC") and Cable & Wireless Communications
Delaware Inc., a Delaware corporation ("Merger Sub"), pursuant to which Merger
Sub will be merged with and into NYNEX CableComms US (the "Merger"), and as a
result of the Merger, each outstanding NYNEX CableComms US Share of Common Stock
(other than those held by CWC or by NYNEX CableComms US (as treasury shares) or
by its subsidiaries and other than Dissenting Shares (as defined in the Merger
Agreement)) will be converted into the right to receive 0.036746 of an ordinary
share of CWC which, at the election of NYNEX CableComms US shareholders, may be
in the form of American Depositary Shares representing ordinary shares of CWC
(the "Merger Resolution").
3. If the Chairman of the meeting has determined that there are an insufficient
number of the votes required to approve either the US De-stapling Resolution or
the Merger Resolution at the NYNEX CableComms US Special Meeting, or any
adjournment thereof, to adjourn the NYNEX CableComms US Special Meeting to the
same place and to such time, not less than seven calendar days after the date of
such NYNEX CableComms US Special Meeting, or any adjournment thereof, as the
shareholders of NYNEX CableComms US (or the proxies therefor) may determine, in
order to permit the obtaining of such further votes as may be required and
further solicitations of proxies in favor of the US De-stapling Resolution
and/or the Merger Resolution, as the case may be (the "US Adjournment
Resolution").
4. To transact such other business as may properly come before the NYNEX
CableComms US Special Meeting or any adjournments thereof.
Each of the UK De-stapling Resolution and the US De-stapling Resolution will
be voted upon separately by the shareholders of NYNEX CableComms UK and NYNEX
CableComms US, respectively;
3
<PAGE>
however, NYNEX CableComms UK and NYNEX CableComms US will not proceed with the
amendments to the Articles of Association of NYNEX CableComms UK and the
Restated Certificate of Incorporation of NYNEX CableComms US, respectively,
unless both the UK De-stapling Resolution and the US De-stapling Resolution are
approved. In addition, NYNEX CableComms US will not proceed with the Merger
unless both the UK De-stapling Resolution and the US De-stapling Resolution are
approved.
The respective Offer Committees of the Boards of Directors of each of NYNEX
CableComms UK and NYNEX CableComms US have unanimously recommended that
shareholders of NYNEX CableComms Units (and holders of American Depositary
Shares representing NYNEX CableComms Units) accept the NYNEX CableComms Offers
(as defined in the Offers to Purchase/Prospectus). The Offer Committee of the
Board of Directors of NYNEX CableComms UK has unanimously recommended approval
of the UK De-stapling Resolution to the Board of Directors of NYNEX CableComms
UK, and the Board of Directors of NYNEX CableComms UK recommends that NYNEX
CableComms UK shareholders vote in favor of the UK De-stapling Resolution and
the UK Adjournment Resolution. The Offer Committee of the Board of Directors of
NYNEX CableComms US has unanimously recommended approval of the US De-stapling
Resolution and the Merger Resolution to the Board of Directors of NYNEX
CableComms US, and the Board of Directors of NYNEX CableComms US recommends that
NYNEX CableComms US shareholders vote in favor of the US De-stapling Resolution,
the Merger Resolution and the US De-stapling Resolution.
A list of shareholders of record of NYNEX CableComms US on the Record Date
will be available for examination by any shareholder (for any purpose germane to
the NYNEX CableComms US Special Meeting) at the offices of Simmons & Simmons, UK
counsel to NYNEX CableComms, located at 21 Wilson Street, London, EC2M 2TX,
United Kingdom, beginning at least ten days prior to, and ending immediately
after, the NYNEX CableComms US Special Meeting.
By order of the Boards
/s/ P.H. Repp
- -----------------------
P.H. Repp
Chief Legal and Regulatory Officer and Company Secretary
March 24, 1997
Registered Office of NYNEX CableComms UK and Principal Place of Business of
NYNEX CableComms US:
The Tolworth Tower
Ewell Road
Surbiton
Surrey KT6 7ED
United Kingdom
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<PAGE>
YOUR VOTE IS IMPORTANT
The blue proxy card is for the NYNEX CableComms UK Extraordinary Meeting and
the grey proxy card is for the NYNEX CableComms US Special Meeting. Whether or
not you intend to be present at the Meetings, please sign and date BOTH of the
enclosed proxy cards and return them both in the enclosed pre-addressed
envelope.
1. Only holders of NYNEX CableComms Units, or their duly appointed
representatives, are entitled to attend and vote at the Meetings. A holder so
entitled may appoint a proxy, who need not be a holder of NYNEX CableComms
Units, NYNEX CableComms ADSs, NYNEX CableComms UK Ordinary Shares or NYNEX
CableComms US Shares of Common Stock, to attend and vote on his/her behalf.
2. Holders of NYNEX CableComms Units or NYNEX CableComms ADSs whose purchase or
transfer settles after March 21, 1997 (the "Record Date") and who wish to attend
and/or vote at the NYNEX CableComms US Special Meeting (or, in respect of NYNEX
CableComms ADSs, to instruct The Bank of New York, as Depositary, in respect of
voting at the NYNEX CableComms US Special Meeting) must arrange with the seller
or transferor to receive a validly executed assignment of proxy from the holder
of record on the Record Date of such NYNEX CableComms Units or NYNEX CableComms
ADSs.
3. BOTH of the proxy cards should be completed, signed, dated and returned to
The Royal Bank of Scotland Plc, Registrars Department, PO Box 82, Caxton House,
Redcliffe Way, Bristol BS99 7YA, United Kingdom, together with any power of
attorney or other authority under which it is signed (or a notarially certified
copy of such power or authority), not less than 48 hours before the time of the
Meetings. Appointment of a proxy (other than an assignment of proxy with respect
to NYNEX CableComms US Shares of Common Stock described in Note 2) will not
prevent a holder of NYNEX CableComms Units from attending and voting in person
at the Meetings.
THE FOREGOING RESOLUTIONS ARE BEING PROPOSED IN CONNECTION WITH THE
TRANSACTIONS DESCRIBED IN THE OFFERS TO PURCHASE/PROSPECTUS. SHAREHOLDER
APPROVAL OF SUCH RESOLUTIONS IS NOT A CONDITION TO ANY OF THE OFFERS DESCRIBED
IN THE OFFERS TO PURCHASE/PROSPECTUS. SHAREHOLDERS OF NYNEX CABLECOMMS UK AND
NYNEX CABLECOMMS US ARE URGED TO READ THE OFFERS TO PURCHASE/PROSPECTUS AND THE
SCHEDULE 14D-9 ACCOMPANYING THIS NOTICE OF MEETINGS AND THE PROXY STATEMENT.
5
<PAGE>
CONFIDENTIAL, FOR USE OF THE COMMISSION ONLY
PRELIMINARY COPY
NYNEX CABLECOMMS GROUP PLC AND NYNEX CABLECOMMS GROUP INC.
THE TOLWORTH TOWER, EWELL ROAD, SURBITON, SURREY, KT6 7ED, UNITED KINGDOM
PROXY STATEMENT
This proxy statement (the "Proxy Statement") and the accompanying proxy
voting instruction cards ("Proxy Cards") are being mailed on or about March 27,
1997 to holders of Units ("NYNEX CableComms Units"), each NYNEX CableComms Unit
representing one Ordinary Share ("NYNEX CableComms UK Ordinary Share") of NYNEX
CableComms Group PLC ("NYNEX CableComms UK") and one share of Common Stock
("NYNEX CableComms US Share of Common Stock") of NYNEX CableComms Group Inc.
("NYNEX CableComms US" and, together with NYNEX CableComms UK, the "Companies")
in connection with the solicitation of proxies (or obtaining of shareholder
votes) by the Boards of Directors of the Companies for the Extraordinary General
Meeting of members of NYNEX CableComms UK (the "NYNEX CableComms UK
Extraordinary Meeting") and a Special Meeting of Shareholders of NYNEX
CableComms US (the "NYNEX CableComms US Special Meeting"), (such meetings
sometimes being hereinafter referred to, individually, as a "Meeting" and,
collectively, as the "Meetings"), each to be held on April 24, 1997 at the times
and place and for the purposes specified in the accompanying Notice of Meetings.
This proxy procedure is necessary because many of the shareholders of the
Companies will not be able to attend the Meetings. Proxies are solicited (or
votes by proxy are sought) to give all shareholders an opportunity to vote.
Shares can be voted at the Meetings only if the shareholder is represented by
proxy or is present in person (see "Voting of Shares", below).
To be effective the Proxy Cards should be received at the office of The
Royal Bank of Scotland Plc, Registrars Department, PO Box 82, Caxton House,
Redcliffe Way, Bristol BS99 7YA, United Kingdom not less than 48 hours before
the time of the respective Meetings.
When Proxy Cards are returned properly signed, the NYNEX CableComms Units
represented will be voted in accordance with the shareholders' directions. Votes
will be tallied by The Royal Bank of Scotland, the Registrar for the NYNEX
CableComms Units. Contrary to the usual practice in the US, the listing rules of
the London Stock Exchange require that Proxy Cards (1) provide a space for
shareholders to insert the name of their own proxy in place of the proxy
designated by the Boards of Directors of the Companies and (2) state that in the
absence of specific voting instructions as to a particular matter, such proxy
will vote or abstain at his/her discretion. Thus, if the Proxy Cards are
returned duly signed and appointing a proxy other than Mr. Blackburn, Ms. Davis,
and Mr. McConville, or, failing any of them, the chairman of the meeting, but
without an indication as to how the proxy must vote on a particular resolution,
in accordance with such listing rules of the London Stock Exchange the proxy
will vote or abstain at his/her discretion. If Mr. Blackburn, Ms. Davis, and Mr.
McConville, or, failing any of them, the chairman of the meeting is appointed as
proxy, he/she will vote for the resolutions specified as Items 1 and 2 on the
blue Proxy Card at the NYNEX CableComms UK Extraordinary Meeting and for the
resolutions specified as Items 1, 2 and 3 on the grey Proxy Card at the NYNEX
CableComms US Special Meeting, in accordance with the recommendation of the
Boards of Directors of the Companies and on any other business before the
Meetings with all the powers the shareholders would possess if personally
present; PROVIDED, HOWEVER, that no proxy that is voted against Item 1 on the
blue Proxy Card or against either of Item 1 or Item 2 on the grey Proxy Card
will be voted in favor of Item 2 on the blue Proxy Card or Item 3 on the grey
Proxy Card, respectively (if there is no indication as to how the proxy is to
vote on Item 2 on the blue Proxy Card or Item 3 on the grey Proxy Card). Proxies
voted in favor of Item 1 on the blue Proxy Card or in favor of Item 1 and Item 2
on the grey Proxy Card and proxies returned without indication as to how the
proxy is to vote on such resolutions, but in any case without an indication as
to how such proxy is to vote on Item 2 on the blue Proxy Card or Item 3 on the
grey Proxy Card, will be voted in favor of such Item.
YOUR VOTE IS IMPORTANT. ACCORDINGLY, WHETHER OR NOT YOU PLAN TO ATTEND THE
MEETINGS, YOU ARE URGED TO SIGN, DATE AND RETURN BOTH OF THE ACCOMPANYING PROXY
CARDS AS SOON AS POSSIBLE IN THE ENCLOSED PRE-ADDRESSED ENVELOPE. IF YOU DO
ATTEND, YOU MAY VOTE AT THE MEETINGS THEREBY CANCELING ANY PROXY VOTE PREVIOUSLY
GIVEN, EXCEPT THAT, IF YOU HAVE EXECUTED AN IRREVOCABLE ASSIGNMENT OF PROXY WITH
RESPECT TO
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NYNEX CABLECOMMS US SHARES OF COMMON STOCK, YOU MAY NOT ATTEND OR VOTE AT THE
NYNEX CABLECOMMS US SPECIAL MEETING.
THE MEETINGS ARE BEING HELD IN CONNECTION WITH THE TRANSACTIONS DESCRIBED IN
THE ACCOMPANYING OFFERS TO PURCHASE/PROSPECTUS OF CABLE & WIRELESS
COMMUNICATIONS PLC DATED MARCH 21, 1997 (THE "OFFERS TO PURCHASE/PROSPECTUS").
SHAREHOLDER APPROVAL OF SUCH RESOLUTIONS IS NOT A CONDITION TO ANY OF THE OFFERS
DESCRIBED IN THE OFFERS TO PURCHASE/PROSPECTUS. SHAREHOLDERS OF THE COMPANIES
ARE URGED TO READ THE ACCOMPANYING OFFERS TO PURCHASE/PROSPECTUS AND THE
COMPANIES' SOLICITATION/RECOMMENDATION STATEMENT ON SCHEDULE 14D-9 DATED MARCH
24, 1997 (THE "SCHEDULE 14D-9").
VOTING OF SHARES
The only securities of NYNEX CableComms UK entitled to be voted at the NYNEX
CableComms UK Extraordinary Meeting are NYNEX CableComms UK Ordinary Shares, and
at that Meeting only members of NYNEX CableComms UK registered on the register
of members of NYNEX CableComms UK on the date of that Meeting are entitled to
vote. The only securities of NYNEX CableComms US entitled to be voted at the
NYNEX CableComms US Special Meeting are NYNEX CableComms US Shares of Common
Stock, and at that Meeting only holders of record at the close of business on
March 21, 1997 (the "Record Date") are entitled to vote. Holders of American
Depositary Shares ("NYNEX CableComms ADSs"), each representing ten NYNEX
CableComms Units, may instruct The Bank of New York, as depositary for the NYNEX
CableComms ADSs (the "Depositary") under the Deposit Agreement dated as of June
8, 1995 (the "Deposit Agreement"), in respect of voting in accordance with
procedures established by the Depositary pursuant to the Deposit Agreement.
Holders of NYNEX CableComms Units or NYNEX CableComms ADSs whose purchase or
transfer settles after the Record Date and who wish to attend and/or vote at the
NYNEX CableComms US Special Meeting (or, in respect of NYNEX CableComms ADSs, to
instruct the Depositary in respect of voting at the NYNEX CableComms US Special
Meeting) must arrange with the seller or transferor to receive a validly
executed assignment of proxy from the holder of record on the Record Date of
NYNEX CableComms US Shares of Common Stock comprising part of such NYNEX
CableComms Units or NYNEX CableComms ADSs.
On a show of hands every shareholder of NYNEX CableComms UK who is present
in person at the NYNEX CableComms UK Extraordinary Meeting shall have one vote
and on a poll every shareholder of NYNEX CableComms UK who is present in person
or by proxy shall have one vote for every NYNEX CableComms UK Ordinary Share of
which he or she is the holder. Holders of NYNEX CableComms US Shares of Common
Stock are entitled to one vote per share. With respect to NYNEX CableComms UK
Ordinary Shares and NYNEX CableComms US Shares of Common Stock represented by
NYNEX CableComms ADSs, broker non-votes (where a nominee holding shares for a
beneficial owner has not received voting instructions from the beneficial owner
with respect to a particular matter and such nominee does not possess or choose
to exercise his discretionary authority with respect thereto) will be considered
as present at the Meetings but not entitled to vote with respect to a particular
matter and will have the same effect on the vote as abstentions. See "Voting of
Shares -- NYNEX CableComms UK" and "Voting of Shares -- NYNEX CableComms US"
below.
A shareholder giving a proxy has the power to revoke it at any time before
it is voted at the Meetings by submitting a written revocation to the Companies,
by the delivery of a later dated proxy duly received within the time period
specified above for delivery of proxies or by attending the Meetings and voting
at the Meetings. Holders of NYNEX CableComms ADSs may revoke voting instructions
to the Depositary only in accordance with the procedures established by the
Depositary pursuant to the Deposit Agreement. A shareholder executing an
assignment of proxy to a transferee of such shareholder's NYNEX CableComms Units
will have granted, with respect to NYNEX CableComms US Shares of Common Stock,
an irrevocable proxy coupled with an interest and may not revoke such assignment
of proxy.
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<PAGE>
On March 20, 1997, there were 925,976,934 NYNEX CableComms UK Ordinary
Shares and 925,976,934 NYNEX CableComms US Shares of Common Stock outstanding
comprising 925,976,934 NYNEX CableComms Units.
VOTING OF SHARES -- NYNEX CABLECOMMS UK
Pursuant to the Companies Act 1985 of Great Britain, as amended (the
"Companies Act"), and Article 7 of the Articles of Association of NYNEX
CableComms UK (the "NYNEX CableComms UK Articles"), in order for the resolution
specified as Item 1 on the blue Proxy Card (the "UK De-Stapling Resolution") to
be adopted, it must receive the affirmative vote of the holders of not less than
75% of the NYNEX CableComms UK Ordinary Shares cast for or against the UK
De-stapling Resolution by members who, being present in person or by proxy and
entitled to vote on the UK De-stapling Resolution, do vote (a quorum being two
or more holders of not less than one-third in nominal value of the issued NYNEX
CableComms UK Ordinary Shares present in person or by proxy). With respect to
the UK De-stapling Resolution, abstentions will not be included in the vote
totals and, therefore, will have no effect on the vote.
Pursuant to the Companies Act and the NYNEX CableComms UK Articles, in order
for the resolution specified as Item 2 on the blue Proxy Card (the "UK
Adjournment Resolution") to be adopted, it must receive the affirmative vote of
the holders of not less than a majority of the NYNEX CableComms UK Ordinary
Shares cast for or against the UK Adjournment Resolution by members who, being
present in person or by proxy and entitled to vote on the UK Adjournment
Resolution, do vote (a quorum being two or more holders of NYNEX CableComms UK
Ordinary Shares present in person or by proxy). With respect to the UK
Adjournment Resolution, abstentions will not be included in the vote totals and,
therefore, will have no effect on the vote.
As of the Record Date, NYNEX Corporation ("NYNEX") owned, indirectly,
approximately 67% of the outstanding NYNEX CableComms UK Ordinary Shares. NYNEX
has agreed with the Companies that it will cause to be voted all of its NYNEX
CableComms UK Ordinary Shares in favor of the UK De-stapling Resolution and the
UK Adjournment Resolution.
VOTING OF SHARES -- NYNEX CABLECOMMS US
In order for the resolution specified as Item 1 on the grey Proxy Card (the
"US De-stapling Resolution") to be adopted, it must receive the affirmative vote
of the holders of not less than the greater of (i) a majority of all outstanding
NYNEX CableComms US Shares of Common Stock and (ii) 75% of the NYNEX CableComms
US Shares of Common Stock cast for or against the US De-stapling Resolution, a
quorum being present in person or by proxy (see "Quorum", below). With respect
to the US De-stapling Resolution, abstentions will have the effect of a negative
vote for the vote described in clause (i) above and will have no effect on the
vote described in clause (ii) above.
In order for the resolution specified as Item 2 on the grey Proxy Card (the
"Merger Resolution") to be adopted, it must receive both (i) for purposes of
Section 251 of the Delaware General Corporation Law (the "DGCL") and the NYNEX
CableComms US Restated Certificate of Incorporation (the "NYNEX CableComms US
Certificate"), the affirmative vote of the holders of not less than (A) a
majority of all outstanding NYNEX CableComms US Shares of Common Stock and (B)
75% of the NYNEX CableComms US Shares of Common Stock cast for or against the
Merger Resolution, a quorum being present, and (ii) for purposes of Section 203
of the DGCL, the affirmative vote of shares representing at least 66 2/3% in
voting power of the outstanding NYNEX CableComms US Shares of Common Stock, a
quorum being present, excluding any votes of NYNEX CableComms US Shares of
Common Stock owned, directly or indirectly, by NYNEX, CWC, Bell Atlantic
Corporation ("Bell Atlantic") or any of their affiliates. With respect to the
Merger Resolution, abstentions will have the effect of a negative vote both for
the vote for purposes of Section 251 of the DGCL described in clause (i)(A)
above and for the vote for purposes of Section 203 of the DGCL described in
clause (ii) above and will have no effect on the vote for purposes of the NYNEX
CableComms US Certificate described in clause (i)(B) above.
3
<PAGE>
Pursuant to the By-laws of NYNEX CableComms US, in order for the resolution
specified as Item 3 on the grey Proxy Card (the "US Adjournment Resolution") to
be adopted, it must receive the affirmative vote of the holders of not less than
a majority of the NYNEX CableComms US Shares of Common Stock voting either for
or against the US Adjournment Resolution in person or by proxy at the NYNEX
CableComms US Special Meeting (a quorum being present in person or by proxy).
With respect to the US Adjournment Resolution, abstentions will be included in
the total number of shares present and, therefore, will have the effect of a
negative vote.
As of the Record Date, NYNEX owned, indirectly, approximately 67% of the
outstanding NYNEX CableComms US Shares of Common Stock. NYNEX has agreed with
the Companies that it will vote all of its NYNEX CableComms US Shares of Common
Stock in favor of the US De-stapling Resolution, the Merger Resolution (such
vote on the Merger Resolution, however, will not be counted for purposes of
Section 203 of the DGCL) and the US Adjournment Resolution.
QUORUM
Pursuant to Articles 7 and 59 of the NYNEX CableComms UK Articles, the
presence in person or by proxy at the NYNEX CableComms UK Extraordinary Meeting
of two or more holders of not less than one-third in nominal value of the issued
NYNEX CableComms UK Ordinary Shares shall constitute a quorum, and at any
adjourned NYNEX CableComms UK Extraordinary Meeting, two shareholders present in
person or by proxy (whatever the number of shares held by such persons) shall
constitute a quorum. The presence, in person or by proxy, of the holders of
one-third of the NYNEX CableComms US Shares of Common Stock entitled to vote at
the NYNEX CableComms US Special Meeting shall constitute a quorum for the
transaction of business. In the absence of a quorum at the time the NYNEX
CableComms US Special Meeting is convened, the holders of record of NYNEX
CableComms US present in person or by proxy may vote to adjourn the NYNEX
CableComms US Special Meeting from time to time until a quorum is obtained. The
presence, in person or by proxy, of the NYNEX CableComms US Shares of Common
Stock owned, indirectly, by NYNEX is sufficient to assure a quorum at the NYNEX
CableComms US Special Meeting.
ADJOURNMENT
Pursuant to Article 63(B) of the NYNEX CableComms UK Articles, the chairman
of the NYNEX CableComms UK Extraordinary Meeting may, with the consent of the
NYNEX CableComms UK Extraordinary Meeting at which a quorum is present (and
shall if so directed by the NYNEX CableComms UK Extraordinary Meeting), adjourn
the NYNEX CableComms UK Extraordinary Meeting from time to time and from place
to place. No business shall be transacted at any such adjourned Meeting except
business which might lawfully have been transacted at the Meeting from which the
adjournment took place. Except for an adjournment for three months or more
(which requires that notice be given as in the case of an original meeting), no
notice of any adjourned Meeting or the business to be transacted at such
adjourned Meeting is required.
Pursuant to the By-Laws of NYNEX CableComms US, where a quorum is present,
the NYNEX CableComms US Special Meeting may be adjourned to another time or
place by a majority vote of the shareholders either voting for or against such
adjournment present at the NYNEX CableComms Special Meeting. Unless the Board of
Directors of NYNEX CableComms US fixes a new record date, shareholders of record
for the adjourned Meeting will be shareholders on the Record Date. If the
adjournment is for more than 30 days or if after adjournment a new record date
is fixed for the adjourned Meeting, a notice of the adjourned Meeting will be
given to each holder of record entitled to vote at the adjourned Meeting. At
such adjourned Meeting, provided that a quorum is present, any business may be
transacted that might have been transacted at the Meeting as originally called.
The respective Boards of Directors of NYNEX CableComms UK and NYNEX
CableComms US have proposed the UK Adjournment Resolution and the US Adjournment
Resolution so as to adjourn the NYNEX CableComms UK Extraordinary Meeting and
the NYNEX CableComms US Special Meeting,
4
<PAGE>
respectively, if the Chairman of the relevant meeting has determined that an
insufficient number of the votes required to approve the UK De-stapling
Resolution, and the US De-stapling Resolution or the Merger Resolution,
respectively. See "Adjournment of the NYNEX CableComms UK Extraordinary Meeting"
and "Adjournment of the NYNEX CableComms US Special Meeting".
CERTAIN CONSIDERATIONS RELATING TO THE TRANSACTIONS
IN CONNECTION WITH THE NYNEX CABLECOMMS OFFERS, SHAREHOLDERS OF NYNEX
CABLECOMMS UK AND NYNEX CABLECOMMS US ARE URGED TO READ THE OFFERS TO
PURCHASE/PROSPECTUS ACCOMPANYING THIS PROXY STATEMENT AND THE SCHEDULE 14D-9.
REFERENCE IS MADE IN THIS PROXY STATEMENT TO CERTAIN SECTIONS OF THE OFFERS TO
PURCHASE/PROSPECTUS. THE COMPANIES HAVE NOT INDEPENDENTLY VERIFIED THE ACCURACY
OR COMPLETENESS OF THE INFORMATION CONTAINED IN SUCH SECTIONS, EXCEPT TO THE
EXTENT IT RELATES TO THE COMPANIES AND THEIR SUBSIDIARIES (TOGETHER, "NYNEX
CABLECOMMS") SPECIFICALLY OR TO THE COMPANIES' SHARE CAPITAL OR SHAREHOLDERS'
RIGHTS PERTAINING THERETO. FOR A DISCUSSION OF THE RESPONSIBILITY UNDER THE CITY
CODE ON TAKEOVERS AND MERGERS IN THE UNITED KINGDOM (THE "CITY CODE") OF THE
DIRECTORS OF THE COMPANIES FOR INFORMATION CONTAINED IN THIS PROXY STATEMENT,
SEE "OTHER INFORMATION" BELOW.
BACKGROUND OF THE TRANSACTIONS
The Offers to Purchase/Prospectus states that, as announced on October 22,
1996, Cable and Wireless plc ("C&W"), Bell Canada International Inc. ("BCI") and
NYNEX have entered into an agreement (the "Transaction Agreement") under which
they agreed, subject to the satisfaction of certain conditions precedent, to
combine Mercury Communications Limited ("Mercury"), Bell Cablemedia plc ("BCM")
(as enlarged by BCM's acquisition of Videotron Holdings Plc) and the Companies
under the ownership of a newly formed holding company to be called "Cable &
Wireless Communications plc" ("CWC"). As set forth in the Offers to
Purchase/Prospectus, CWC has offered to purchase all the outstanding NYNEX
CableComms UK Ordinary Shares and NYNEX CableComms US Shares of Common Stock
(comprising NYNEX CableComms Units, including NYNEX CableComms Units represented
by NYNEX CableComms ADSs) in exchange for Ordinary Shares of 50p of CWC ("CWC
Ordinary Shares") or American Depositary Shares representing CWC Ordinary Shares
("CWC ADSs"). The Offers to Purchase/Prospectus further states that, if all the
transactions described in the Offer to Purchase/Prospectus are consummated,
NYNEX CableComms will become a wholly-owned subsidiary of CWC; C&W, NYNEX and
BCI will own, directly or indirectly, approximately 52.6%, 18.5% and 14.2%,
respectively, of the issued share capital of CWC; and the public shareholders of
CWC will own approximately 14.7%.
For additional information on the background of the transactions
contemplated by the Transaction Agreement, see "Part I -- The Offers -- Certain
Considerations --Background to the Offers" contained in the Offers to
Purchase/Prospectus accompanying this Proxy Statement. For additional
information on the background of the Companies' consideration of such
transactions and the recommendations to shareholders to accept the NYNEX
CableComms Offers, see "Item 4 -- The Solicitation or Recommendation" in the
Schedule 14D-9, which is incorporated herein by reference.
THE NYNEX CABLECOMMS OFFERS
The Offers to Purchase/Prospectus states that CWC has offered to purchase,
upon the terms and subject to the conditions set out in the Offers to
Purchase/Prospectus and the accompanying Letter of Transmittal (including the
Notice of Guaranteed Delivery) and/or Form of Acceptance (i) all NYNEX
CableComms UK Ordinary Shares (comprising NYNEX CableComms Units, including
NYNEX CableComms Units represented by NYNEX CableComms ADSs) for 0.330714 of a
CWC Ordinary Share per NYNEX CableComms UK Ordinary Share (the "NYNEX CableComms
UK Offer") and (ii) all NYNEX CableComms US Shares of Common Stock (comprising
NYNEX CableComms Units, including NYNEX CableComms Units represented by NYNEX
CableComms ADSs) for 0.036746 of a CWC Ordinary Share per NYNEX CableComms US
Share of Common Stock (the "NYNEX CableComms US Offer") (equivalent to 0.36746
of a CWC Ordinary Share per NYNEX CableComms Unit and 3.6746 of a CWC Ordinary
Share per NYNEX CableComms ADS). (The NYNEX CableComms UK Offer and the NYNEX
CableComms US Offer are collectively referred to as the "NYNEX CableComms
Offers".)
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<PAGE>
The Offers to Purchase/Prospectus states that the subsidiary of NYNEX that
holds the 67% interest in the Companies has given an irrevocable undertaking to
accept the NYNEX CableComms Offers in respect of its 67% shareholdings in the
Companies and that, pursuant to the terms of the Transaction Agreement, and upon
the Offers (as defined in the Offers to Purchase/Prospectus) becoming or being
declared unconditional, CWC will acquire from NYNEX its indirect minority
interests (including those acquired by NYNEX from certain third parties) in the
cable TV and telephony operations controlled by NYNEX CableComms in exchange for
CWC Ordinary Shares representing approximately 3.317% of the issued ordinary
share capital of CWC on a fully diluted basis.
For a more complete description of the NYNEX CableComms Offers, see "Part I
- -- The Offers" contained in the Offers to Purchase/Prospectus accompanying this
Proxy Statement.
THE COMPULSORY ACQUISITION AND THE MERGER
All the NYNEX CableComms UK Ordinary Shares and NYNEX CableComms US Shares
of Common Stock presently comprise NYNEX CableComms Units and cannot, absent the
removal or disapplication of restrictions on their transfer or other dealings,
separately or other than together as a unit ("De-stapling"), be traded,
transferred, delivered or otherwise dealt with separately.
The Offers to Purchase/Prospectus states that if, on or before July 27,
1997, as a result of the NYNEX CableComms Offers or otherwise, CWC acquires or
contracts to acquire NYNEX CableComms UK Ordinary Shares (comprising NYNEX
CableComms Units, including NYNEX CableComms Units represented by NYNEX
CableComms ADSs) representing at least 90% of NYNEX CableComms UK Ordinary
Shares (comprising NYNEX CableComms Units, including NYNEX CableComms Units
represented by NYNEX CableComms ADSs) to which the NYNEX CableComms UK Offer
relates, then (i) CWC will be entitled and intends to effect a compulsory
acquisition (the "Compulsory Acquisition") to compel the purchase of the
remainder of the outstanding NYNEX CableComms UK Ordinary Shares (including
those represented by NYNEX CableComms ADSs) on the same terms as those offered
in the NYNEX CableComms UK Offer in accordance with Sections 428 -- 430F of the
Companies Act, and/or (ii) a holder of NYNEX CableComms UK Ordinary Shares
(including those represented by NYNEX CableComms ADSs) may require CWC to
purchase his or her NYNEX CableComms UK Ordinary Shares on the same terms as
those offered in the NYNEX CableComms UK Offer in accordance with Sections 430A
and 430B of the Companies Act. The acquisition of NYNEX CableComms UK Ordinary
Shares under the Compulsory Acquisition procedures of the Companies Act will
not, however, be possible unless the UK De-stapling Resolution and the US
De-stapling Resolution have been duly adopted and the respective Boards of
Directors of the Companies have taken such action as is necessary to effect the
De-stapling of the appropriate NYNEX CableComms UK Ordinary Shares and the NYNEX
CableComms US Shares of Common Stock.
The Offers to Purchase/Prospectus states that, subject to the requisite
approval of NYNEX CableComms US shareholders at the NYNEX CableComms US Special
Meeting, CWC intends to become the owner of 100% of the outstanding NYNEX
CableComms US Shares of Common Stock by means of a merger (the "Merger") of
Cable & Wireless Communications Delaware Inc., a wholly-owned Delaware
subsidiary of CWC ("Merger Sub"), with and into NYNEX CableComms US, pursuant
and subject to Section 251 of the DGCL. The Offers to Purchase/Prospectus also
states that, in the Merger, NYNEX CableComms US Shares of Common Stock (other
than NYNEX CableComms US Shares of Common Stock held by NYNEX CableComms US as
treasury shares or by its subsidiaries or by CWC and other than NYNEX CableComms
US Shares of Common Stock for which appraisal rights, if any, have been properly
asserted under Section 262 of the DGCL ("Dissenting Shares"), including those
represented by NYNEX CableComms ADSs, will be converted into the right to
receive the same number of CWC Ordinary Shares as such holder of NYNEX
CableComms US Shares of Common Stock would have received in the NYNEX CableComms
US Offer with respect to its NYNEX CableComms US Shares of Common Stock. The
Offers to Purchase/Prospectus states that NYNEX CableComms US Shares of Common
Stock held by
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<PAGE>
NYNEX CableComms US as treasury shares, or by its subsidiaries will be canceled
in the Merger, and NYNEX CableComms US Shares of Common Stock held by CWC will
remain unchanged and outstanding (as a result of CWC's agreement to forego the
conversion of its shares of Merger Sub into shares of the surviving
corporation). The Merger is, however, subject to the Merger Resolution having
been approved by the requisite votes which are being solicited (or sought to be
obtained) by this Proxy Statement and the respective Boards of Directors of the
Companies having taken action to permit the De-stapling of the appropriate NYNEX
CableComms UK Ordinary Shares and NYNEX CableComms US Shares of Common Stock.
For a more complete description of the Merger, see "Approval and Adoption of
the Merger Agreement and the Merger -- Terms of the Merger Agreement", below.
All the issued and outstanding NYNEX CableComms UK Ordinary Shares and NYNEX
CableComms US Shares of Common Stock are currently "stapled" as NYNEX CableComms
Units pursuant to the provisions of the NYNEX CableComms UK Articles and the
NYNEX CableComms US Certificate requiring that NYNEX CableComms UK Ordinary
Shares and NYNEX CableComms US Shares of Common Stock be transferred or
otherwise dealt with together as a NYNEX CableComms Unit. The proposed
amendments to the NYNEX CableComms UK Articles and the NYNEX CableComms US
Certificate are being sought to permit the respective Boards of Directors to
effect the De-stapling of a certain number of NYNEX CableComms UK Ordinary
Shares and NYNEX CableComms US Shares of Common Stock comprising NYNEX
CableComms Units in order for (i) the Compulsory Acquisition procedures of
Section 428 -- 430F of the Companies Act to be applied by CWC with respect to
NYNEX CableComms UK Ordinary Shares, (ii) the Merger of NYNEX CableComms US to
occur and (iii) CWC to acquire those NYNEX CableComms UK Ordinary Shares for
which acceptances of only the NYNEX CableComms UK Offer have been received and
those NYNEX CableComms US Shares of Common Stock for which acceptances of only
the NYNEX CableComms US Offer have been received.
The "stapling" of the NYNEX CableComms UK Ordinary Shares and NYNEX
CableComms US Shares of Common Stock permits the treatment of NYNEX CableComms
UK as a US corporation for US federal income tax purposes which allows NYNEX
CableComms to avoid recognition of certain taxable gains. In order to continue
this treatment of NYNEX CableComms UK as a US corporation, more than 50 per
cent. of the NYNEX CableComms UK Ordinary Shares must remain "stapled" to NYNEX
CableComms US Shares of Common Stock. In order for CWC to effect the Compulsory
Acquisition of NYNEX CableComms UK Ordinary Shares pursuant to the Companies
Act, CWC must acquire or contract to acquire at least 90 per cent. of the NYNEX
CableComms UK Ordinary Shares (comprising NYNEX CableComms Units, including
NYNEX CableComms Units represented by NYNEX CableComms ADSs). The respective
Boards of Directors of NYNEX CableComms UK and NYNEX CableComms US have
determined that the De-stapling (when aggregated with those NYNEX CableComms UK
Ordinary Shares and NYNEX CableComms US Shares of Common Stock previously
De-stapled) of up to 20% of the NYNEX CableComms UK Ordinary Shares and 20% of
the NYNEX CableComms US Shares of Common Stock outstanding would be sufficient
for the purposes of (i) effecting the Compulsory Acquisition of up to 10% of the
NYNEX CableComms UK Ordinary Shares (assuming CWC effects the Compulsory
Acquisition), (ii) effecting the Merger of NYNEX CableComms US and (iii)
permitting CWC to acquire those NYNEX CableComms UK Ordinary Shares for which
acceptances of only the NYNEX CableComms UK Offer have been received and those
NYNEX CableComms US Shares of Common Stock for which acceptances of only the
NYNEX CableComms US Offer have been received.
APPRAISAL RIGHTS
NYNEX CableComms US shareholders do not have appraisal rights as a result of
the NYNEX CableComms Offers. In connection with the Merger, the Board of
Directors of NYNEX CableComms US has been advised that if there are at least
2,000 holders of record of NYNEX CableComms US Shares of
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Common Stock on the Record Date, NYNEX CableComms US shareholders will not have
the right to dissent and demand an appraisal of NYNEX CableComms US Shares of
Common Stock in accordance with Section 262 of the DGCL. As of March 21, 1997,
the number of holders of record of NYNEX CableComms Units was approximately
4,948. The Board of Directors of NYNEX CableComms US has also been advised that,
if there are fewer than 2,000 holders of record on the Record Date, appraisal
rights would be available only if NYNEX CableComms ADSs which are quoted on the
Nasdaq National Market do not fall within the definition of "depository
receipts", as defined in Section 262 of the DGCL. Because the NYNEX CableComms
ADSs represent NYNEX CableComms UK Ordinary Shares, as well as the NYNEX
CableComms US Shares of Common Stock, it is not free from doubt that this
definition would be applicable. For purposes of Section 262 of the DGCL, this
Proxy Statement shall constitute notice to the record holders of NYNEX
CableComms US Shares of Common Stock that appraisal rights may be available.
For a more complete description of the appraisal rights of NYNEX CableComms
US shareholders, see "Part I -- Certain Considerations -- The Compulsory
Acquisitions; the Squeeze-Out Merger; Appraisal Rights" contained in the Offers
to Purchase/Prospectus accompanying this Proxy Statement. A copy of Section 262
is set forth as Appendix VII to the Offers to Purchase/Prospectus accompanying
this Proxy Statement.
NYNEX CableComms UK shareholders do not have appraisal rights with respect
to the NYNEX CableComms Offers or the Compulsory Acquisition. In the event that
the Compulsory Acquisition can be effected by CWC, however, NYNEX CableComms UK
shareholders whose NYNEX CableComms UK Ordinary Shares (including those
represented by NYNEX CableComms ADSs) have not been purchased pursuant to the
NYNEX CableComms UK Offer will be entitled to certain rights under the Companies
Act, as set forth in Appendix VI to the Offers to Purchase/Prospectus
accompanying this Proxy Statement.
SECURITY OWNERSHIP OF PRINCIPAL SHAREHOLDERS
The following table sets forth, as of January 31, 1997, certain information
regarding the beneficial ownership (as defined in Rule 13d-3(d)(1) under the
Securities Exchange Act of 1934, as amended (the "Exchange Act")), of NYNEX
CableComms Units by the owners of 5% or more of NYNEX CableComms Units.
<TABLE>
<CAPTION>
AMOUNT AND NATURE
OF BENEFICIAL PERCENT OF
TITLE OF CLASS NAME AND ADDRESS OF BENEFICIAL OWNER OWNERSHIP CLASS
- ------------------ ------------------------------------------------------------- ------------------ -------------
<S> <C> <C> <C>
NYNEX CableComms NYNEX Corporation 620,000,000 67.0
Units 1095 Avenue of the Americas,
New York, New York 10036, USA
NYNEX CableComms Mercury Asset Management Group Plc 65,295,000 7.1
Units 33 King William Street
London, EC4R 9AS, United Kingdom
</TABLE>
Pursuant to the NYNEX CableComms UK Articles and the NYNEX CableComms US
Certificate, NYNEX has the right to appoint a number of Directors ("NYNEX
Appointees") to each of the Boards of the Companies based on the percentage
voting power of, in the case of the NYNEX CableComms UK, all issued NYNEX
CableComms UK Ordinary Shares and, in the case of the NYNEX CableComms US, all
outstanding NYNEX CableComms US Shares of Common Stock, directly or indirectly
controlled by NYNEX. In addition, NYNEX has the right to remove and replace the
NYNEX Appointees and such NYNEX Appointees do not stand for election by the
shareholders. NYNEX currently has indirect control of approximately 67% of the
outstanding NYNEX CableComms Units (comprising equal percentages of the issued
NYNEX CableComms UK Ordinary Shares and NYNEX CableComms US Shares of Common
Stock) and, therefore, in accordance with the NYNEX CableComms UK Articles and
the NYNEX
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CableComms US Certificate, NYNEX is currently entitled to appoint four of the
nine current Directors of each of the Boards. Control over the appointment of
four Directors in effect gives NYNEX, through the vote of such Directors, a veto
power with respect to any actions by the Boards that require the approval of a
two-thirds vote of the Directors. This two-thirds vote requirement applies to
certain important acts of the Boards, such as the acquisition or disposal of any
business outside the ordinary course of business, the approval of the annual
budget, the approval of borrowings above L10 million, the appointment of any new
Director (other than NYNEX Appointees) to fill a vacancy and the appointment and
removal of certain Executive directors.
NYNEX has the right to vote with the other shareholders in the election of
Directors for each of the remaining seats on each Board. Because NYNEX owns a
majority of the outstanding NYNEX CableComms Units, NYNEX has sufficient voting
power to elect Directors to all of the remaining seats. However, the London
Stock Exchange requires, and the constitutional documents of the Companies
provide, that at all times a majority of the Directors must be independent of
NYNEX ("Independent Directors"). In a relationship agreement with the Companies
(the "NYNEX Relationship Agreement"), NYNEX has, among other things, confirmed
its intention to vote the NYNEX CableComms UK Ordinary Shares and NYNEX
CableComms US Shares of Common Stock beneficially owned by it in a manner to
ensure, so far as it is able by the exercise of such voting rights, that a
majority of each Board is composed of Independent Directors for London Stock
Exchange purposes.
Currently the Boards of the Companies each consist of four NYNEX Appointees
and five Independent Directors.
Upon the Offers (as defined in the accompanying Offers to
Purchase/Prospectus) becoming or being declared unconditional, (i) CWC will
acquire all of NYNEX's NYNEX CableComms Units and as a result, pursuant to the
NYNEX CableComms UK Articles and the NYNEX CableComms US Certificate, all NYNEX
Appointees will be required to vacate immediately their positions on the
respective Boards of Directors of the Companies and (ii) pursuant to a
Shareholders Agreement among C&W, BCI, BCM Holdco Limited, Bell Canada
International Holdings Limited, NYNEX and CWC, the NYNEX Relationship Agreement
between NYNEX and the Companies will be terminated.
Shareholdings of the Companies' Directors and Executive directors can be
found below.
SECURITY OWNERSHIP OF DIRECTORS AND EXECUTIVE OFFICERS
Certain members of senior management of the Companies have the title
"Executive director" which, under UK practice, is generally equivalent to that
of an executive officer under US practice and does not connote a position on the
Boards of Directors.
THE COMPANIES
The following table sets forth, as of January 31, 1997, beneficial ownership
(as defined in Rule 13d-3(d)(1) under the Exchange Act) of NYNEX CableComms
Units by each Director, each named Executive director and all Directors and
Executive directors (as a group), including NYNEX CableComms Units of which they
had the right within 60 days to acquire beneficial ownership pursuant to the
exercise of options to purchase NYNEX CableComms Units.
9
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<TABLE>
<CAPTION>
AMOUNT AND NATURE
OF BENEFICIAL PERCENT OF
TITLE OF CLASS NAME OF BENEFICIAL OWNER OWNERSHIP CLASS(1)
- --------------- ---------------------------------------------------------------- ------------------ -------------
<S> <C> <C> <C>
NYNEX Robert Anderson -- Director -0- -0-
CableComms Richard Blackburn -- Director -0- -0-
Units Jeffrey Bowden -- Director -0- -0-
Sir Bryan Carsberg -- Director -0- -0-
Sir Michael Checkland -- Director -0- -0-
John Killian -- President and Chief Executive Officer, Director 191,692 *
Nicholas Mearing-Smith -- Chief Financial Officer, Director(2) 418,955 *
Melvin Meskin -- Director -0- -0-
John Rennocks -- Director -0- -0-
Edward Hatch -- Executive director --Merger Planning -0- -0-
Paul Repp -- Chief Legal and Regulatory Officer and Company -0- -0-
Secretary
Michael Schieck--Executive director -- Customer Operations -0- -0-
Support
All Directors and Executive directors (as a group) 610,647 *
</TABLE>
- ------------------------
(1) An interest of less than 1% is represented by an asterisk.
(2) Mr. Mearing-Smith delegated his duties as Chief Financial Officer of the
Companies effective January 30, 1997, but remains as a Director of the
Companies.
NYNEX
The following table sets forth as of January 31, 1997, for each Director,
each named Executive director and all Directors and Executive directors (as a
group), their beneficial ownership (as defined in Rule 13d-3(d)(1) under the
Exchange Act) of shares of Common Stock of NYNEX, including shares of Common
Stock of NYNEX which they had the right within 60 days to acquire pursuant to
the exercise of options granted by NYNEX, plus the number of shares of Common
Stock of NYNEX held on January 31, 1997 by the trustee of the NYNEX Corporation
Savings Plan for Salaried Employees ("Savings Plan") for their accounts.
10
<PAGE>
<TABLE>
<CAPTION>
AMOUNT AND NATURE
OF BENEFICIAL PERCENT OF
TITLE OF CLASS NAME OF BENEFICIAL OWNER OWNERSHIP(1)(2) CLASS(3)
- --------------------- ---------------------------------------------------------- ------------------ -------------
<S> <C> <C> <C>
Common Stock Robert Anderson -- Director 52,365 *
Richard Blackburn -- Director 74,887 *
Jeffrey Bowden -- Director 84,078 *
Sir Bryan Carsberg -- Director -0- -0-
Sir Michael Checkland -- Director -0- -0-
John Killian -- President and Chief Executive Officer, 18,745 *
Director
Nicholas Mearing-Smith -- Chief Financial Officer, -0- -0-
Director (4)
Melvin Meskin -- Director 70,593 *
John Rennocks -- Director -0- -0-
Edward Hatch -- Executive director --Merger Planning 2,911 *
Paul Repp -- Chief Legal and Regulatory Officer and 4,139 *
Company Secretary
Michael Schieck -- Executive director -- Customer 1,615 *
Operations Support
All Directors and Executive directors (as a group) 314,020 *
</TABLE>
- ------------------------
(1) The number of shares held in the Savings Plan included in the numbers shown
above are as follows: Richard Blackburn, 12,348; John Killian, 2,848; Robert
Anderson, 1,178; Jeffrey Bowden, 323; Melvin Meskin, 1,192; Paul Repp,
1,205; Michael Schieck, 735; and Edward Hatch, 975. The number of shares of
restricted stock granted under the NYNEX 1987 Restricted Stock Award Plan
included in the numbers shown above are as follows: Richard Blackburn,
6,571; John Killian, 3,635; Robert Anderson, 3,895; Jeffrey Bowden, 5,866;
and Melvin Meskin, 5,624. (These shares include dividends that have been
reinvested in additional restricted shares.)
(2) The numbers of shares of which the named persons had the right within 60
days to acquire beneficial ownership pursuant to the exercise of options
granted by NYNEX included in the numbers shown above are as follows: Richard
Blackburn, 47,118; John Killian, 9,597; Robert Anderson, 43,991; Jeffrey
Bowden, 66,157; Melvin Meskin, 59,338; Paul Repp, 2,844; Michael Schieck,
840; and Edward Hatch, 1,680. In addition, at the time of the completion of
the proposed merger of NYNEX and Bell Atlantic, while not exercisable within
60 days, stock options for the following number of shares will become
exercisable for the following persons and for all Executive directors as a
group: Richard Blackburn, 113,519; Robert Anderson, 52,784; Jeffrey Bowden,
115,576; Mel Meskin, 63,906; Paul Repp, 12,641; Michael Schieck, 560; Edward
Hatch, 560; and all Executive directors as a group, 360,906.
(3) An interest of less than 1% is represented by an asterisk.
(4) Mr. Mearing-Smith delegated his duties as Chief Financial Officer of the
Companies effective January 30, 1997, but remains as a Director of the
Companies.
NYNEX has entered into an Amended and Restated Agreement and Plan of Merger
dated as of April 21, 1996, as amended as of July 2, 1996, with Bell Atlantic,
pursuant to which a wholly-owned subsidiary of Bell Atlantic will merge with and
into NYNEX and NYNEX will become a wholly-owned subsidiary of Bell Atlantic. In
the merger, each shareholder of NYNEX will receive 0.768 shares of Bell Atlantic
common stock in exchange for one share of NYNEX Common Stock.
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Effective on June 14, 1995, the Companies and NYNEX CableComms Limited, an
indirect wholly-owned subsidiary of the Companies which provides substantially
all the management, operations and other business functions for the Companies,
entered into a trademark agreement with NYNEX under which the Companies and
NYNEX CableComms Limited are required to pay L4.0 million per annum for 5 years
for use of the "NYNEX" name. Upon the Offers (as defined in the accompanying
Offers to Purchase/ Prospectus) becoming or being declared unconditional, the
trademark agreement will be replaced by a
11
<PAGE>
transitional license between NYNEX and CWC ("the NYNEX Transitional License")
providing for CWC's right to use the "NYNEX" name for a transitional period. For
a description of the NYNEX Transitional License, see "Part II -- Description of
CWC -- Principal Shareholders -- NYNEX Transitional License" contained in the
Offers to Purchase/Prospectus accompanying this Proxy Statement.
Effective on June 14, 1995, the Companies and NYNEX CableComms Limited
entered into a services and technology sharing agreement with NYNEX pursuant to
which NYNEX provides certain services to the Companies and NYNEX CableComms
Limited. This agreement covers both the scope and method of calculation of the
cost of such services. The level of charges under this agreement is intended to
arrive at arm's length transaction costs. Payments to NYNEX under the services
agreement totaled L5.0 million and L2.6 million for 1996 and 1995, respectively.
Upon the Offers becoming or being declared unconditional, the services agreement
will be terminated and the Offers to Purchase/Prospectus states that C&W, BCI,
NYNEX and CWC will enter into a management and technical services agreement (the
"Management and Technical Services Agreement") pursuant to which each of C&W,
BCI and NYNEX will provide various services to CWC at CWC's request (including
tax, legal, treasury and corporate finance and human resources) and CWC may
provide to each of C&W, BCI and NYNEX accounting and car fleet management
services. For a description of the Management and Technical Services Agreement,
see "Part II -- Description of CWC -- Principal Shareholders -- Management and
Technical Services Agreement" contained in the Offers to Purchase/Prospectus
accompanying this Proxy Statement.
The Companies and NYNEX CableComms Limited also entered into a secondment
agreement with NYNEX which provides that NYNEX will, subject to certain
conditions, continue to second employees to the Companies and their subsidiaries
upon the request of the Companies. The Companies have agreed to reimburse NYNEX
for all costs NYNEX incurs in respect of any personnel so seconded. Currently,
11 of the senior management of NYNEX CableComms Limited are on secondment from
NYNEX, including Messrs. Hatch, Doherty, McHale, Repp, Schieck and Welsh who are
Executive directors of NYNEX CableComms Limited. Mr. Repp is also a Director of
NYNEX CableComms Limited. Under the secondment agreement, NYNEX was reimbursed
by the Companies in the aggregate of L1.6 million and L2.7 million for such
secondees during 1996 and 1995, respectively. Upon the Offers becoming or being
declared unconditional, the secondment agreement will be terminated (except as
to persons then on secondment) and the Offers to Purchase/Prospectus states that
C&W, BCI, NYNEX and CWC will enter into a secondment agreement (the "Secondment
Agreement") pursuant to which each of C&W, BCI and NYNEX, on the one hand, and
CWC, on the other hand, will, subject to certain conditions, be able to second
their employees or employees of their subsidiaries to each other, respectively,
or to companies within their respective groups. For a description of the
Secondment Agreement, see "Part II -- Description of CWC -- Principal
Shareholders -- Secondment Agreement" contained in the Offers to Purchase/
Prospectus accompanying this Proxy Statement.
The Companies and Mr. Mearing-Smith (the Chief Financial Officer and
Director of the Companies, who delegated his duties as Chief Financial Officer
as of January 30, 1997) were party to an agreement which terminated Mr.
Mearing-Smith's right of first refusal and right to deferred consideration with
respect to his interest in certain franchises purchased by the Companies in
exchange for consideration which consisted of grants of NYNEX CableComms Units
and cash approximately equal in value to the deferred consideration. Under the
agreement, Mr. Mearing-Smith received L440,000 in cash in 1995 and 270,406 NYNEX
CableComms Units in 1996.
Approximately 67% of the outstanding NYNEX CableComms Units are held by an
indirect, wholly-owned subsidiary of NYNEX. The Companies, through various
wholly-owned subsidiaries and two partnerships in which they exercise management
control and hold a majority interest, control the exercise of all the voting
rights in the 16 companies that hold the licenses in the Companies' franchise
areas (the "Operating Companies"). Other wholly-owned subsidiaries of NYNEX have
direct and indirect equity interests in lenders to the Operating Companies and
indirect equity interests in the Operating Companies separate from NYNEX's
interest as a shareholder of the Companies. This includes indirect equity
interests
12
<PAGE>
in the two limited partnerships (the "North Partnership" and the "South
Partnership") which own substantially all of the ordinary shares of the
Operating Companies. The lenders to the Operating Companies hold (in addition to
loans to the Operating Companies) limited partnership interests in the North
Partnership and the South Partnership. Under the partnership agreements, the
limited partners generally have a 15% interest in all items of income, gain,
loss deduction or credit, except in respect of initial losses and profits (being
specified amounts of profits or losses calculated in accordance with US tax
principles) of the relevant partnership.
Initial losses up to a maximum cumulative amount of L200.0 million in the
case of the North Partnership and L40.0 million in the case of the South
Partnership will be allocated to the limited partners, respectively. After that,
losses will be allocated to NYNEX CableComms up to the point that NYNEX
CableComms' share of the cumulative losses of the relevant partnership reaches
85%. At that point, any further losses will be allocated 85% to NYNEX CableComms
and 15% to the limited partners. Initial profits will be allocated between NYNEX
CableComms and the limited partners in proportion to the cumulative losses
allocated to each partner until such losses have been fully offset by profits.
Thereafter, all profits are to be allocated 85% to NYNEX CableComms and 15% to
the limited partners. Initial losses for the South Partnership reached L40.0
million in the first quarter of 1996. Initial losses for the North Partnership
have not yet reached L200.0 million.
For the purposes of preparing the combined financial statements, the profit
or loss of the relevant partnership is allocated between NYNEX CableComms and
the limited partners in accordance with the profit and loss allocations set out
in the relevant partnership agreement.
The limited partners had contributed L211.7 million to the North Partnership
and to the South Partnership as of both December 31, 1995 and December 31, 1996.
Minority interests of the limited partners in the North Partnership and the
South Partnership were L18.8 million and L57.8 million, respectively, at
December 31, 1996, and L76.2 million and L55.9 million, respectively at December
31, 1995.
The North Partnership and the South Partnership are included in NYNEX
CableComms' US GAAP combined financial statements. The limited partners are
entitled to distributions only if declared and their capital contributions in
the North Partnership and the South Partnership, respectively, are reflected in
NYNEX CableComms' US GAAP combined financial statements under "Minority
interest". The revolving loans from the limited partners to the Northern
Operating Companies and Southern Operating Companies are reflected in NYNEX
CableComms' US GAAP combined financial statements under "Long-term debt".
The Northern Operating Companies borrowed L292.9 million and L96.5 million
under the revolving credit facilities from the limited partners at December 31,
1996 and December 31, 1995, respectively. The Southern Operating Companies
borrowed L154.8 million and L28.9 million under the revolving credit facilities
from the limited partners at December 31, 1996 and December 31, 1995,
respectively. Neither the North Partnership nor the South Partnership had made
any borrowings under the revolving credit facilities from the limited partners
at December 31, 1996 or December 31, 1995.
Interest and fees paid to the lenders under the revolving credit facilities
for the years ended December 31, 1996 and December 31, 1995 aggregated L14.6
million and L6.5 million, respectively, for the Northern Operating Companies and
L7.5 million and L8.7 million, respectively, for the Southern Operating
Companies.
13
<PAGE>
The revolving loans are unsecured obligations of the Operating Companies.
However, the Companies have pledged their interests in the North Partnership and
the South Partnership as collateral for repayment of the Northern Operating
Companies' and the Southern Operating Companies' revolving loans, respectively,
and significant restrictions exist on the rights of the Operating Companies to
encumber any assets or incur any additional indebtedness.
The Companies have certain rights to purchase the equity interests held by
the limited partners in the North Partnership and the South Partnership. The
purchase option provides for the acquisition of these equity interests at a
price equal to fair market value, but in no event less than the unrecovered
investment of the limited partners. Under certain circumstances, following the
occurrence of certain adverse events, the failure to purchase the limited
partner's interest could result in a liquidation of the North Partnership and
the South Partnership.
The Offers to Purchase/Prospectus states that both of the revolving credit
facilities for the Northern Operating Companies and the Southern Operating
Companies will be terminated upon the Offers becoming or being declared
unconditional. See "Part II -- Description of CWC -- Liquidity and Capital
Resources" of the Offers to Purchase/Prospectus for a discussion of CWC's credit
facilities.
The Operating Companies have entered into two forward sterling interest rate
swaps with NYNEX to reduce potential exposure to interest rate risks inherent in
the financing arrangements for the Northern Operating Companies and Southern
Operating Companies. Under the interest rate swaps, the Companies agreed to
exchange with NYNEX, on a quarterly basis, the difference between fixed-rate
(9.15% for the Northern financing arrangement and 7.02% for the Southern
financing arrangement) and floating-rate 3-month Sterling LIBOR interest amounts
calculated by reference to an agreed notional principal amount. The notional
principal amounts of the swaps are L700.0 million and L273.7 million for swaps
entered into on December 19, 1994 and December 31, 1993, respectively. The net
effect of the interest rate swap is to fix the net cash outflow of the Companies
to 9.15% and 7.02% of the appropriate financing arrangement. In order to
correspond to the underlying financing arrangements for the Northern Operating
Companies and Southern Operating Companies, the effective date of the swaps is
the first payment date after the earlier of five years from commencement of the
arrangements or the date all completion requirements are met, and expire by
December 31, 2004 and 2003, respectively.
In addition, the Operating Companies have entered into two agreements with
NYNEX to reduce the notional amount of the interest rate swaps at the Operating
Companies' option. The notional amount may be reduced at any time, and from time
to time, in whole or in part, without any penalty or additional payments. The
effective dates and expiration dates of these options are the same as the swap
transactions. The Operating Companies paid premiums of L18.3 million and L7.0
million in respect of the Northern and Southern financing arrangements,
respectively, which are being amortized over the life of the options.
NYNEX has entered into the credit facility with NYNEX CableComms, to make
available up to L200 million (the "NYNEX Facility"). NYNEX CableComms may make
drawings under the NYNEX Facility at any time before May 31, 1997. Amounts
borrowed are to be repaid in full by May 31, 1998. The rate of interest
applicable to amounts drawn under the NYNEX Facility is three month sterling
LIBOR plus 4%. NYNEX CableComms paid NYNEX a fee of L375,000 during 1996 for
NYNEX's commitment to provide the NYNEX Facility. No drawings have yet been made
on the NYNEX Facility. The Offers to Purchase/ Prospectus states that the NYNEX
credit facility will be terminated upon the Offers becoming or being declared
unconditional.
NYNEX has entered into an agreement with the Companies whereby it has agreed
to indemnify the Companies for certain US and UK tax liabilities of NYNEX and
its affiliates (including the affiliates that were transferred to the Companies
as part of a reorganization of NYNEX's cable television and telecommunications
operations in the UK effected immediately prior to the Companies' initial public
offering on June 14, 1995 ("the Combined Offering")) arising from or
attributable to periods prior to the
14
<PAGE>
completion of the Combined Offering. Such tax indemnification arrangement will
remain in place after the acquisition by CWC of NYNEX's 67% interest in NYNEX
CableComms.
Prior to June 14, 1995, the Companies' US corporations were included in the
NYNEX consolidated US federal tax return and in New York State and New York City
combined income tax filings. While included in the NYNEX tax filings, the
Companies' US corporations were allocated payments in accordance with the effect
their losses had on reducing the consolidated group's taxable income. As a
result of the reorganization which occurred immediately prior to the completion
of the Combined Offering, the Companies and their US corporations no longer
qualify to be included in the NYNEX consolidated US federal tax return or in any
state or local combined tax returns. As such, any equivalent payments will no
longer be made to the Companies by NYNEX for any future losses generated. For
periods after June 14, 1995, NYNEX U.K. CableComms Holdings, Inc. (" NYNEX UK
Holdings") and its US subsidiaries will be treated as a consolidated group of
corporations for US tax return purposes. However, neither NYNEX CableComms UK
nor NYNEX CableComms US will be consolidated with NYNEX UK Holdings or its
subsidiaries for US tax purposes. As a result, NYNEX CableComms UK and NYNEX
CableComms US will file their own US federal tax returns separately from NYNEX
UK Holdings.
On May 15, 1995, the Companies and NYNEX entered into a registration rights
agreement pursuant to which, subject to compliance with London Stock Exchange
requirements and subject to certain other exceptions, NYNEX has the right, at
its own expense, (i) to require the Companies to include all or any portion of
the NYNEX CableComms Units beneficially owned by NYNEX or its affiliates in any
registered offering by any of the Companies in the United States (or in any
prospectus for the offering and sale to the public in the United Kingdom) and
(ii) for ten years beginning one year after the initial public offering, to
cause the Companies on up to two separate occasions to file a registration
statement for an offering in the United States and to take such other action to
facilitate an offering and sale in the United Kingdom.
For a description of certain agreements and arrangements between NYNEX and
its affiliates and CWC and its affiliates (including C&W), see "Part II --
Description of CWC -- Principal Shareholders" contained in the Offers to
Purchase/Prospectus accompanying this Proxy Statement.
AMENDMENT TO THE ARTICLES OF ASSOCIATION OF NYNEX CABLECOMMS UK TO
DE-STAPLE NYNEX CABLECOMMS UK ORDINARY SHARES
(Item 1 on the blue Proxy Card for the NYNEX CableComms UK Extraordinary
Meeting)
In order to facilitate the Compulsory Acquisition of NYNEX CableComms UK
Ordinary Shares and the acquisition of the NYNEX CableComms US Shares of Common
Stock pursuant to the Merger, the Board of Directors of NYNEX CableComms UK has
determined that it is in the best interests of shareholders of NYNEX CableComms
UK as a whole, subject to the approval of the US De-stapling Resolution, to
amend the NYNEX CableComms UK Articles to provide that, notwithstanding the
provisions contained in Article 37 and other relevant provisions of the NYNEX
CableComms UK Articles requiring that NYNEX CableComms UK Ordinary Shares and
NYNEX CableComms US Shares of Common Stock be transferred and otherwise dealt
with together as a NYNEX CableComms Unit, effective upon the NYNEX CableComms
Offers becoming or being declared unconditional in all respects, the Board of
Directors of NYNEX CableComms UK be authorized to De-staple NYNEX CableComms UK
Ordinary Shares in an amount not to exceed (when aggregated with any NYNEX
CableComms UK Ordinary Shares which the Board of Directors has previously
permitted to be De-stapled) 20% of the NYNEX CableComms UK Ordinary Shares from
time to time in issue, such that those NYNEX CableComms UK Ordinary Shares that
the Board of Directors permits to be De-stapled shall thereafter no longer
comprise NYNEX CableComms Units and shall be transferable or otherwise dealt
with separately and apart from the relevant NYNEX CableComms US Shares of Common
Stock.
Text of resolution:
15
<PAGE>
"THAT, subject to the approval of the US De-stapling Resolution (as defined
in the section of the Notice of Meetings setting out the business to be
conducted at the Special Meeting of Shareholders of NYNEX CableComms Group
Inc. to be held on April 24, 1997), the Articles of Association of NYNEX
CableComms Group PLC be amended by adding a new paragraph 37(e) as follows:
'(e) notwithstanding anything in these Articles to the contrary, with effect
from the NYNEX CableComms Offers (as defined in the Offers to
Purchase/Prospectus of Cable & Wireless Communications plc) becoming or
being declared unconditional in all respects, the Board shall be
empowered, in its absolute discretion, to determine that:
(i) the provisions of paragraphs (a), (b) and (d) of this Article 37;
and
(ii) any other relevant provision of these Articles restricting a
transfer, or other dealing, of Ordinary Shares other than together
with Common Stock of U.S. CableComms,
shall not apply to the transfer, or other dealing, of such number of
Ordinary Shares as does not exceed (when aggregated with any Ordinary Shares
which the Board of Directors has previously permitted to be transferred, or
otherwise dealt with, free of the restrictions of such provisions pursuant
to this paragraph (e)) 20% of the aggregate number of Ordinary Shares from
time to time in issue, such that those Ordinary Shares that the Board
permits to be transferred, or otherwise dealt with, free of the restrictions
of such provisions shall thereafter no longer comprise Units and shall be
transferable or otherwise be dealt with separately and apart from the
relevant Common Stock, and that the Board shall take all such steps and
adopt and follow all such procedures as they may consider desirable to give
effect to this paragraph."'
THE NYNEX CABLECOMMS UK BOARD OF DIRECTORS RECOMMENDS A VOTE FOR APPROVAL OF
THE UK DE-STAPLING RESOLUTION.
ADJOURNMENT OF THE NYNEX CABLECOMMS UK EXTRAORDINARY MEETING
(Item 2 on the blue Proxy Card for the NYNEX CableComms UK Extraordinary
Meeting)
If the Chairman of the meeting has determined that there are an insufficient
number of the votes required to approve the UK De-stapling Resolution at the
NYNEX CableComms UK Extraordinary Meeting, or any adjournment thereof, the
shareholders of NYNEX CableComms UK will be asked to vote on one or more
adjournments of the NYNEX CableComms UK Extraordinary Meeting to the same place
and to such time, not less than seven calendar days after the date of the NYNEX
CableComms UK Extraordinary Meeting, or any adjournment thereof, as the
shareholders of NYNEX CableComms UK (or proxies therefor) may determine, in
order to permit the obtaining of such further votes as may be required and
further solicitations of proxies in favor of the UK De-stapling Resolution. In
these circumstances, the Board of Directors of NYNEX CableComms UK has
determined that it is in the best interests of shareholders of NYNEX CableComms
UK as a whole to vote in favor of such an adjournment.
Text of resolution:
"THAT, if the Chairman of the meeting has determined that there are an
insufficient number of the votes required to approve the UK De-stapling
Resolution (as defined in the section of the Notice of Meetings setting out
the business to be conducted at the NYNEX CableComms Group PLC Extraordinary
General Meeting of members to be held on April 24, 1997) at the
Extraordinary General Meeting of NYNEX CableComms Group PLC to be held on
April 24, 1997, or any adjournment thereof, such Extraordinary General
Meeting be, and it hereby is, adjourned to the same place and to such time,
not less than seven calendar days after the date of such Extraordinary
General Meeting, or any adjournment thereof, as the shareholders of NYNEX
CableComms Group PLC (or the proxies therefor) may determine, in order to
permit the obtaining of such further votes as may be required and further
solicitations of proxies in favor of the UK De-stapling Resolution."
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<PAGE>
THE NYNEX CABLECOMMS UK BOARD OF DIRECTORS RECOMMENDS A VOTE FOR APPROVAL OF
THE UK ADJOURNMENT RESOLUTION.
AMENDMENTS TO THE RESTATED CERTIFICATE OF INCORPORATION OF NYNEX CABLECOMMS US
TO DE-STAPLE NYNEX CABLECOMMS US SHARES OF COMMON STOCK
(Item 1 on the grey Proxy Card for the NYNEX CableComms US Special Meeting)
In order to facilitate the Compulsory Acquisition of NYNEX CableComms UK
Ordinary Shares and the acquisition of the NYNEX CableComms US Shares of Common
Stock pursuant to the Merger, the Board of Directors of NYNEX CableComms US has
determined that it is in the best interests of the shareholders of NYNEX
CableComms US as a whole, subject to the approval of the UK De-stapling
Resolution, to amend the NYNEX CableComms US Certificate to provide that,
notwithstanding the provisions contained in Paragraphs A and B of Article FIFTH
and other relevant provisions of the NYNEX CableComms US Certificate requiring
that NYNEX CableComms UK Ordinary Shares and NYNEX CableComms US Shares of
Common Stock be transferred, converted by way of merger and otherwise dealt with
together as a NYNEX CableComms Unit, effective upon the NYNEX CableComms Offers
becoming or being declared unconditional in all respects, the Board of Directors
of NYNEX CableComms US be authorized to De-staple NYNEX CableComms US Shares of
Common Stock in an amount not to exceed (when aggregated with any NYNEX
CableComms US Shares of Common Stock which the Board of Directors has previously
permitted to be De-stapled) 20% of the NYNEX CableComms US Shares of Common
Stock from time to time outstanding, such that those NYNEX CableComms US Shares
of Common Stock that the Board of Directors permits to be De-stapled shall
thereafter no longer comprise NYNEX CableComms Units and shall be transferable,
convertible by way of merger or otherwise dealt with separately and apart from
the relevant NYNEX CableComms UK Ordinary Shares.
Text of resolution:
"Subject to the approval of the UK De-stapling Resolution (as defined in the
section of the Notice of Meetings setting out the business to the conducted
at the Extraordinary General Meeting of members of NYNEX CableComms Group
PLC to be held on April 24, 1997), Article FIFTH of the Restated Certificate
of Incorporation of NYNEX CableComms Group Inc. shall be amended as follows:
"(a) Paragraph A thereof shall be amended to redesignate such paragraph as
subclause (i) of Paragraph A and to add at the end thereof the following
new subclause (ii):
'(ii) Notwithstanding anything in this Restated Certificate of
Incorporation to the contrary, effective upon the NYNEX CableComms
Offers (as defined in the Offers to Purchase/ Prospectus of Cable &
Wireless Communications plc) becoming or being declared
unconditional in all respects, the Board of Directors may in its
absolute discretion determine that the provisions of this Paragraph
A and any other relevant provision of this Restated Certificate of
Incorporation restricting a transfer, conversion by way of merger
or other dealing of shares of stock of the Corporation other than
together with Shares of NYNEX CableComms Group PLC, shall not apply
to the transfer, conversion by way of merger or other dealing of
shares of stock of the Corporation in an amount not exceeding (when
aggregated with any shares of stock of the Corporation which the
Board of Directors has previously permitted to be transferred,
converted by way of merger or otherwise dealt with, free of the
restrictions of such provisions pursuant to this Paragraph A(ii))
20% in the aggregate of the number of shares of stock of the
Corporation from time to time issued and outstanding such that
those shares of stock of the Corporation that the Board of
Directors permits to be transferred, converted by way of merger or
otherwise dealt with, free of the restrictions of such provisions
shall thereafter no longer comprise units and shall be
transferable, convertible by way of merger or otherwise dealt with
separately and apart from the relevant Shares of NYNEX CableComms
Group PLC.'; and
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<PAGE>
"(b) Paragraph B thereof shall be amended to insert immediately before the
semi-colon at the end of subclause (i) and the period at the end of
subclause (ii) the following:
'; provided, however, that the provisions of this subclause shall not
apply to shares of stock of the Corporation in respect of which the
Board of Directors has determined that the provisions of subclause
(i) of Paragraph A of this Article FIFTH shall not apply pursuant to
its authority under subclause (ii) of Paragraph A of this Article
FIFTH' ".
THE NYNEX CABLECOMMS US BOARD OF DIRECTORS RECOMMENDS A VOTE FOR APPROVAL OF
THE US DE-STAPLING RESOLUTION.
APPROVAL AND ADOPTION OF THE MERGER AGREEMENT AND THE MERGER
PARTIES TO THE MERGER AGREEMENT
NYNEX CABLECOMMS US
NYNEX CableComms US, together with NYNEX CableComms UK and their
subsidiaries, is one of the leading providers of integrated packages of cable
television and telecommunication services in the United Kingdom and has
approximately 2.3 million equity homes making it one of the largest multiple
systems operators in the United Kingdom on the basis of the total number of
equity homes in its 16 franchise areas. The mailing address and telephone number
of the principal executive offices of NYNEX CableComms US are The Tolworth
Tower, Ewell Road, Surbiton, Surrey KT6 7ED, United Kingdom and (44) 181
873-2000. NYNEX CableComms US was incorporated in Delaware in February 1995. For
more information relating to the business and operations of the Companies and
their subsidiaries, reference is made to the documents of NYNEX CableComms and
NYNEX CableComms UK which are incorporated by reference in this Proxy Statement.
See "Incorporation of Certain Documents by Reference".
CWC
The Offers to Purchase/Prospectus states the following with respect to CWC.
CWC is a public limited company organized in December 1996 under the laws of
England and Wales and, upon completion of the transactions contemplated by the
Transaction Agreement, will be the largest provider of integrated
telecommunication and television entertainment services in the United Kingdom.
CWC will serve customers nationally (providing direct connection in
approximately 138 cities and towns) with a broad range of facilities-based
network services including local, national and international voice and data
services and, in certain regions, multichannel television and Internet services
and, through resale, mobile telecommunications services. The mailing address and
telephone number of the principal executive offices of CWC are 26 Red Lion
Square, London WC1R 4HQ, United Kingdom and (44) 171 528-2000.
CABLE & WIRELESS COMMUNICATIONS DELAWARE INC.
The Offers to Purchase/Prospectus states the following with respect to
Merger Sub. Merger Sub is a corporation recently organized by CWC for the
purpose of effecting the Merger. It has no material assets and has not engaged
in any material activities except in connection with the Merger. The mailing
address and telephone number of the principal executive offices of Merger Sub
are 26 Red Lion Square, London WC1R 4HQ, United Kingdom and (44) 171 528-2000.
Merger Sub is a wholly-owned subsidiary of CWC and was incorporated in Delaware
in March 1997.
TERMS OF THE MERGER AGREEMENT
The following summary of certain provisions of the Merger Agreement, a copy
of which is attached as Appendix I to this Proxy Statement, is qualified in its
entirety by reference to the text of the Merger Agreement, which is incorporated
herein by reference.
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THE MERGER
At the effective time of the Merger (the "Effective Time"), NYNEX CableComms
US and Merger Sub will consummate the Merger whereby Merger Sub will merge with
and into NYNEX CableComms US and the separate corporate existence of Merger Sub
will thereupon cease. NYNEX CableComms US will be the surviving corporation (the
"Surviving Corporation") in the Merger and will continue its corporate existence
under the name "NYNEX CableComms Group Inc." The Merger Agreement provides that
the NYNEX CableComms US Certificate and the NYNEX CableComms US By-Laws in
effect at the Effective Time will continue as the certificate of incorporation
and the by-laws of the Surviving Corporation. The directors of Merger Sub will
become the directors of the Surviving Corporation and the officers of NYNEX
CableComms US will become the officers of the Surviving Corporation.
In the Merger, at the Effective Time, the shares of Merger Sub Common Stock
outstanding immediately prior to the Effective Time will be converted into and
will become the number of shares of Common Stock of the Surviving Corporation
equal to the number of CWC-Owned Shares (as defined below) at the Effective
Time; PROVIDED, HOWEVER, that the sole shareholder of Merger Sub, may, in its
discretion, waive its rights to have the shares of Merger Sub Common Stock
converted and such shares of Merger Sub Common Stock will cease to be
outstanding and will be canceled and retired and, in consideration therefor,
NYNEX CableComms US Shares of Common Stock owned by such shareholder of Merger
Sub that would otherwise be canceled shall be retained by such shareholder, on a
share-for-share basis, as the shares of common stock of the Surviving
Corporation (as described below).
Pursuant to the Merger Agreement, at the Effective Time each issued and
outstanding NYNEX CableComms US Share of Common Stock (other than (i) any NYNEX
CableComms US Shares of Common Stock held by NYNEX CableComms US or its
subsidiaries, (ii) CWC-Owned Shares or (iii) Dissenting Shares (as defined
below)) (the "Shares") will be converted into one of the following (the "Merger
Consideration"): (a) for each such Share with respect to which an election to
receive solely CWC ADSs has been effectively made and not revoked (an "ADS
Election"), the right to receive 0.007349 of a CWC ADS or (b) for each such
Share with respect to which an ADS Election has not been effectively made or has
been revoked, the right to receive 0.036746 of a CWC Ordinary Share (the "Stock
Consideration").
As a result of the Merger and without any action on the part of the holder
thereof, at the Effective Time, all Shares will cease to be outstanding and will
be canceled and retired and will cease to exist, and each such holder of Shares
will thereafter cease to have any rights with respect to such Shares, except the
right to receive, without interest, either (A) the Stock Consideration, in the
form of CWC Ordinary Shares and cash in lieu of fractional CWC Ordinary Shares,
or (B) the ADS Consideration, in the form of whole CWC ADSs and, in lieu of
fractional CWC ADSs, CWC Ordinary Shares and cash in lieu of fractional CWC
Ordinary Shares upon the surrender of (i) a certificate for NYNEX CableComms
Units (a "Unit Certificate") evidencing such Shares (and an equal number of
NYNEX CableComms UK Ordinary Shares) or (ii) if the NYNEX CableComms US Shares
of Common Stock and NYNEX CableComms UK Ordinary Shares comprising such NYNEX
CableComms Units shall have been De-stapled and a certificate for NYNEX
CableComms US Shares of Common Stock (a "Share Certificate") representing such
Shares shall have been issued prior to the Effective Time, such Share
Certificate. For the purposes of determining whole CWC Ordinary Shares and whole
CWC ADSs, if a Compulsory Acquisition of NYNEX CableComms UK Ordinary Shares
shall have been effected on or about the Effective Time, the consideration that
holders are entitled to receive as a result of Compulsory Acquisition of the
NYNEX CableComms UK Ordinary Shares will be taken into account. Each NYNEX
CableComms US Share of Common Stock issued and held as treasury shares of NYNEX
CableComms US or held by any subsidiary of NYNEX CableComms US immediately prior
to the Effective Time will, by virtue of the Merger, cease to be outstanding and
will be canceled and retired without payment of any consideration therefor.
Each issued and outstanding NYNEX CableComms US Share of Common Stock owned
by CWC ("CWC-Owned Shares") immediately prior to the Effective Time will, by
virtue of the Merger, cease to be
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outstanding and will be canceled and retired without payment of any
consideration therefor; PROVIDED, HOWEVER, that notwithstanding the foregoing,
if CWC waives its rights with respect to the conversion of the shares of Merger
Sub Common Stock into shares of the Surviving Corporation as provided in the
Merger Agreement, in consideration of such waiver such CWC-Owned Shares will
continue to be outstanding to the maximum extent permitted by law and will
represent, on a share-for-share basis, the shares of common stock of the
Surviving Corporation. CWC has agreed to waive its rights to have the shares of
Merger Sub Common Stock converted and to have such shares canceled and retired
in consideration for having the CWC-Owned Shares continue to be outstanding and
represent the shares of common stock of the Surviving Corporation.
NYNEX CableComms US Shares of Common Stock which are issued and outstanding
immediately prior to the Effective Time and which are held by stockholders who
have not voted such NYNEX CableComms US Shares of Common Stock in favor of the
Merger and who have properly exercised their rights of appraisal (if any) for
such NYNEX CableComms US Shares of Common Stock in the manner provided by
Section 262 of the DGCL (the "Dissenting Shares") will not be converted into or
be exchangeable for the right to receive the Merger Consideration, unless such
holder fails to perfect or effectively withdraws or loses his right to appraisal
and payment (if any), as the case may be. If such holder so fails to perfect or
effectively withdraws or loses such right (if any), his shares will thereupon be
deemed to have been converted into and to have become exchangeable for, at the
Effective Time, the right to receive the Merger Consideration.
The Merger Agreement provides that each person who, at the Effective Time,
is a record holder of Shares will have the right to submit an election form
specifying the number of Shares that such person desires to have converted into
the right to receive CWC ADSs pursuant to an ADS Election. As of the Effective
Time, CWC will (i) deposit with a bank or trust company designated by CWC and
reasonably acceptable to NYNEX CableComms US (the "Exchange Agent"),
certificates representing the CWC Ordinary Shares ("CWC Certificates") and (ii)
deposit with Citibank, N.A., as Custodian and Depositary, CWC Certificates and
will cause the Depositary to issue and deposit with the Exchange Agent, American
Depositary Receipts evidencing CWC ADSs ("CWC ADRs"). CWC Ordinary Shares or CWC
ADSs, as the case may be, into which Shares will be converted pursuant to the
Merger, as well as CWC Ordinary Shares represented by such CWC ADSs, will be
deemed to have been issued at the Effective Time.
Notwithstanding any other provisions of the Merger Agreement, no dividends
or other distributions declared after the Effective Time on CWC Ordinary Shares
or CWC ADSs, as the case may be, will be paid with respect to any Shares which,
prior to the Effective Time, were represented by a Unit Certificate or Share
Certificate, as the case may be, until such Unit Certificate or Share
Certificate, as the case may be, is surrendered for exchange. Subject to the
effect of applicable laws, following surrender of any such Unit Certificate or
Share Certificate, as the case may be, there will be paid to the holder of the
CWC Ordinary Shares or CWC ADSs, as the case may be, represented by CWC
Certificates or CWC ADRs delivered in exchange therefor, without interest, (i)
at the time of such surrender, the amount of dividends or other distributions
with a record date after the Effective Time theretofore payable with respect to
such whole CWC Ordinary Shares or CWC ADSs, as the case may be, and not paid,
less the amount of any withholding taxes which may be required thereon, and (ii)
at the appropriate payment date, the amount of dividends or other distributions
with a record date after the Effective Time but prior to surrender and a payment
date subsequent to surrender payable with respect to such whole CWC Ordinary
Shares or CWC ADSs, as the case may be, less the amount of any withholding taxes
which may be required thereon.
No fractional CWC Ordinary Shares or fractional CWC ADSs will be issued
pursuant to the Merger. Instead, the Merger Agreement provides that in lieu of
the issuance of any fractional CWC Ordinary Shares in the Merger, fractional CWC
Ordinary Shares will be aggregated and sold in the market and the net proceeds
of sale distributed pro rata to holders of NYNEX CableComms US Shares of Common
Stock who would otherwise be entitled to receive fractional CWC Ordinary Shares.
The Merger Agreement further provides that in lieu of the issuance of any
fractional CWC ADSs in the Merger holders of Shares
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who would otherwise be entitled to receive fractional CWC ADSs will be entitled
to receive a CWC Certificate representing such whole number of CWC Ordinary
Shares represented by such fractional CWC ADS and will be paid a cash adjustment
for any fractional CWC Ordinary Share represented by such fractional CWC ADS in
the manner described above, in each case less the amount of any withholding
taxes which may be required thereon.
CONDITIONS TO THE MERGER
The Merger Agreement provides that the respective obligations of each party
to effect the Merger is subject to the satisfaction at or prior to the Effective
Time of (i) the US De-stapling Amendments, the Merger Agreement and the Merger
having been approved and adopted by the requisite votes of the shareholders of
NYNEX CableComms US; (ii) the UK De-stapling Amendments having been approved by
the requisite votes of the shareholders of NYNEX CableComms UK; (iii) the NYNEX
CableComms Offers becoming or having been declared unconditional in all
respects; and (iv) subject to the approvals of the UK De-stapling Amendments and
the US De-stapling Amendments, the Boards of Directors of NYNEX CableComms UK
and NYNEX CableComms US having taken such action, in their absolute discretion,
as is necessary to permit the De-stapling of up to 20% of the outstanding NYNEX
CableComms UK Ordinary Shares and NYNEX CableComms US Shares of Common Stock.
EFFECTIVE TIME
The Merger will become effective at the date and time which is the later of
(i) the date and time of the filing of the certificate of merger relating to the
Merger with the Secretary of State of the State of Delaware or (ii) such other
date and time as the parties to the Merger Agreement may agree as is set forth
in such certificate of merger.
TERMINATION
Notwithstanding the approval and adoption of the Merger Agreement by the
stockholders of NYNEX CableComms US and Merger Sub, respectively, the Merger
Agreement will terminate forthwith in the event that the Transaction Agreement
is terminated as therein provided. In the event of the termination of the Merger
Agreement as provided above, the Merger Agreement will forthwith become void and
there will be no liability on the part of any of the parties to the Merger
Agreement except as otherwise provided in the Transaction Agreement.
SURRENDER OF UNIT CERTIFICATES
As soon as reasonably practicable after the Effective Time, the Exchange
Agent will mail to each holder of record of Shares immediately prior to the
Effective Time (i) a Letter of Transmittal, (ii) instructions for use in
effecting the surrender of Unit Certificates or Share Certificates, as the case
may be, in exchange for the Merger Consideration with respect to the Shares and
(iii) an election form providing for such holders to make the ADS Election. All
holders of Shares immediately prior to the Effective Time that have not
submitted to the Exchange Agent, or have properly revoked, an effective,
properly completed election form to make the ADS Election will receive the Stock
Consideration.
An ADS Election is validly made only if the Exchange Agent has received an
election form properly completed and executed by such holder accompanied by such
holder's Unit Certificates or Share Certificates, as the case may be.
Upon surrender of a Unit Certificate or Share Certificate, as the case may
be, for cancellation to the Exchange Agent, together with the Letter of
Transmittal duly executed, and such other documents as CWC or the Exchange Agent
shall reasonably request, the holder of such Unit Certificate or Share
Certificate, as the case may be, will be entitled to receive as soon as
practicable after the Effective Time in exchange therefor (i) with respect to
Shares represented by such Unit Certificate or Share Certificate, as the case
may be, with respect to which an ADS Election has not been effectively made or
has been revoked (a) (1) a
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CWC Certificate representing that number of whole CWC Ordinary Shares, if any,
which such holder has the right to receive and (2) a certified or bank cashier's
check in the amount equal to the cash in lieu of fractional CWC Ordinary Shares,
if any, or (ii) with respect to Shares represented by such Unit Certificate or
Share Certificate, as the case may be, with respect to which an ADS Election has
been effectively made and not revoked, CWC ADRs evidencing that number of whole
CWC ADSs, if any, which such holder has the right to receive and in lieu of
fractional CWC ADSs, a CWC Certificate representing that number of whole CWC
Ordinary Shares represented by the fractional CWC ADS and a certified or bank
cashier's check in the amount equal to the cash in lieu of fractional CWC
Ordinary Shares represented by the fractional CWC ADS, if any, in each case less
the amount of any required withholding taxes. In addition, if a Compulsory
Acquisition of such NYNEX CableComms UK Ordinary Shares shall have been
effected, but the holder has not theretofore received the consideration that
such holder is entitled to receive pursuant to the Compulsory Acquisition, upon
surrender of such holder's Unit Certificate such holder shall receive such
consideration that such holder is entitled to pursuant to the Compulsory
Acquisition, provided that such holder has complied with the applicable
requirements of the Companies Act with respect to the Compulsory Acquisition.
The Unit Certificate or Share Certificate, as the case may be, so surrendered
shall forthwith be canceled. Until surrendered, each Unit Certificate or Share
Certificate, as the case may be, shall be deemed at any time after the Effective
Time to represent only the right to receive the Merger Consideration with
respect to the Shares formerly represented thereby and, with respect to a Unit
Certificate only, if a Compulsory Acquisition shall have been effected, any
consideration payable with respect to the NYNEX CableComms UK Ordinary Shares
formerly represented thereby subject to the Compulsory Acquisition.
REPRESENTATIONS AND WARRANTIES; COVENANTS
The Merger Agreement contains representations and warranties made by NYNEX
CableComms US to CWC and Merger Sub relating to NYNEX CableComms US's
organization, authority to enter into the Merger Agreement and to carry out the
related transactions and approval by the Board of Directors of NYNEX CableComms
US of resolutions with respect to the US De-stapling Amendments. The Merger
Agreement contains representations and warranties made by CWC and Merger Sub to
NYNEX CableComms US relating to CWC's and Merger Sub 's organization and
authority to enter into the Merger Agreement and to carry out the related
transactions and the accuracy of certain information contained in the CWC Offers
to Purchase/Prospectus.
Pursuant to the Merger Agreement, NYNEX CableComms US has agreed to use its
reasonable best efforts to cause each individual holder of NYNEX CableComms US
Shares of Common Stock reasonably believed by NYNEX CableComms US to be an
"affiliate" of NYNEX CableComms US to enter into a written agreement providing
that such "affiliate" will not sell, pledge, transfer or otherwise dispose of
the CWC Ordinary Shares or CWC ADSs to be received by such person in the Merger
except in compliance with the applicable provisions of the Securities Act of
1933, as amended, and the rules and regulations thereunder.
The Merger Agreement provides that if CWC shall have commenced a Compulsory
Acquisition, the parties to the Merger Agreement will use their best efforts to
cause the Effective Time of the Merger to be effective concurrently with the
later of the consummation of the Compulsory Acquisition or the exercise or lapse
of all outstanding options for NYNEX CableComms securities or the exchange of
such options for options over CWC Ordinary Shares.
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INDEMNIFICATION; DIRECTORS' AND OFFICERS' INSURANCE
CWC has agreed in the Merger Agreement that the Certificate of Incorporation
and the By-Laws of the Surviving Corporation will contain provisions with
respect to indemnification not less favorable to the directors and officers than
those set forth in the NYNEX CableComms US Certificate and By-Laws of NYNEX
CableComms US on the date of the Merger Agreement, which provisions shall not be
amended, repealed or otherwise modified for a period of six years after the
Effective Time in any manner that would adversely affect the rights thereunder
of individuals who at the Effective Time were directors or officers of NYNEX
CableComms US in respect of actions or omissions occurring at or prior to the
Effective Time (including, without limitation, the transactions contemplated by
the Merger Agreement), unless such modification is required by law. CWC shall
guarantee the foregoing obligations of the Surviving Corporation.
In addition, the Merger Agreement provides that CWC will cause the Surviving
Corporation to use its reasonable best efforts to maintain in effect for six
years from the Effective Time, if available, the coverage provided by the
current directors' and officers' liability insurance policies maintained by
NYNEX (provided that the Surviving Corporation may substitute therefor policies
of at least the same coverage containing terms and conditions which are not
materially less favorable) with respect to matters occurring prior to the
Effective Time.
The Merger Agreement provides that the provisions described above will
survive the Effective Time, and are intended to be for the benefit of, and shall
be enforceable by, the directors and officers of NYNEX CableComms US and shall
be binding on CWC and Merger Sub and the Surviving Corporation and their
respective successors and assigns.
THE NYNEX CABLECOMMS US BOARD OF DIRECTORS RECOMMENDS A VOTE FOR APPROVAL
AND ADOPTION OF THE MERGER RESOLUTION.
ADJOURNMENT OF THE NYNEX CABLECOMMS US SPECIAL MEETING
(Item 3 on the grey Proxy Card for the NYNEX CableComms US Special Meeting)
If the Chairman of the meeting has determined that there are an insufficient
number of the votes required to approve either the US De-stapling Amendment or
the Merger Resolution at the NYNEX CableComms US Special Meeting, or any
adjournment thereof, the shareholders of NYNEX CableComms US will be asked to
vote on one or more adjournments of the NYNEX CableComms US Special Meeting to
the same place and to such time, not less than seven calendar days after the
NYNEX CableComms US Special Meeting, or any adjournment thereof, as the
shareholders of NYNEX CableComms US (or the proxies therefor) may determine, in
order to permit the obtaining of such further votes as may be required and
further solicitations of proxies in favor of the UK De-stapling Resolution
and/or the Merger Resolution, as the case may be. In these circumstances, the
Board of Directors of NYNEX CableComms US has determined that it is in the best
interests of shareholders of NYNEX CableComms US as a whole to vote in favor of
such adjournment.
Text of resolution:
"THAT, if the Chairman of the meeting has determined that there were an
insufficient number of the votes required to approve the US De-stapling
Resolution or the Merger Resolution (each as defined in the section of the
Notice of Meetings setting out the business to be conducted at the NYNEX
CableComms Group Inc. Special Meeting of shareholders to be held on April
24, 1997) at the Special Meeting of NYNEX CableComms Group Inc. to be held
on April 24, 1997, or any adjournment thereof, such Special Meeting be, and
it hereby is, adjourned to the same place and to such time, not less than
seven calendar days after the date of such Special Meeting, or any
adjournment thereof, as the shareholders of NYNEX CableComms US (or the
proxies therefor) may determine, in order to permit the obtaining of such
further votes as may be required and further solicitations of proxies in
favor of the US De-stapling Resolution and/or the Merger Resolution, as the
case may be."
THE NYNEX CABLECOMMS US BOARD OF DIRECTORS RECOMMENDS A VOTE FOR APPROVAL OF
THE US ADJOURNMENT RESOLUTION.
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RIGHTS OF SECURITYHOLDERS
For a discussion of certain material differences between the rights of
holders of NYNEX CableComms US Shares of Common Stock and the rights of holders
of CWC Ordinary Shares, see "Part I -- Certain Considerations -- Comparison of
Shareholders' Rights" contained in the Offers to Purchase/ Prospectus
accompanying this Proxy Statement.
ACCOUNTING TREATMENT
The Offers to Purchase/Prospectus states that CWC will account for the
acquisition of NYNEX CableComms US by the purchase method of accounting for
business combinations.
MATERIAL TAX CONSEQUENCES
For a discussion of certain material United States federal income tax
consequences and the material United Kingdom capital gains tax consequences of
the Merger for the holders of NYNEX CableComms US Shares of Common Stock who
hold such NYNEX CableComms US Shares of Common Stock as a capital asset, see
"Part I--Tax Considerations--The Exchange" contained in the Offers to Purchase/
Prospectus accompanying this Proxy Statement.
DESCRIPTION OF CWC ORDINARY SHARES AND CWC ADSS
For a description of CWC Ordinary Shares and CWC ADSs, see "Part II --
Description of CWC Ordinary Shares" and "-- CWC American Depositary Receipts"
contained in the Offers to Purchase/ Prospectus accompanying this Proxy
Statement.
HISTORICAL AND PRO FORMA EQUIVALENT COMMON SHARE DATA
For certain historical and pro forma equivalent common share data of CWC,
Mercury, BCM and NYNEX CableComms, see "Summary -- Comparative Per Share
Information" contained in the Offers to Purchase/Prospectus accompanying this
Proxy Statement.
MARKET PRICE AND DIVIDEND DATA
For market price and dividend data with respect to NYNEX CableComms Units,
see "Part I -- Comparative Market Price and Dividend Data -- NYNEX CableComms"
contained in the Offers to Purchase/Prospectus accompanying this Proxy
Statement.
REGULATORY REQUIREMENTS
For a discussion of the requirements under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, and the European Community Merger
Regulation (No. 4064/89) with respect to the transactions contemplated by the
Transaction Agreement, including the Merger, see "Part I -- Certain Legal and
Regulatory Matters -- EC Antitrust Laws" and "-- US Antitrust Laws" contained in
the Offers to Purchase/Prospectus accompanying this Proxy Statement.
SELECTED FINANCIAL DATA
For certain selected financial information of NYNEX CableComms see "Appendix
IV--Selected Consolidated Financial Data" contained in the Offers to
Purchase/Prospectus accompanying this Proxy Statement.
PRO FORMA FINANCIAL DATA
For a discussion of CWC pro forma financial information, see "Part II -- CWC
Unaudited Condensed Consolidated Financial Information" contained in the Offers
to Purchase/Prospectus accompanying this Proxy Statement.
INTERESTS OF CERTAIN PERSONS IN THE MERGER
As contemplated by the Transaction Agreement, C&W, BCI and NYNEX have agreed
on the procedures and sequence of the transactions required in order for CWC to
acquire 100% ownership of
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NYNEX CableComms UK and NYNEX CableComms US and to effect the domestication of
NYNEX CableComms UK as a Delaware corporation, including, among other things,
the De-stapling and the Merger.
In addition, NYNEX and the Companies have entered into a letter agreement
pursuant to which NYNEX has agreed with the Companies to cause to be voted all
the NYNEX CableComms UK Ordinary Shares and NYNEX CableComms US Shares of Common
Stock owned, indirectly, by NYNEX in favor of each of the UK De-stapling
Resolution, the US De-stapling Resolutions and the Merger Resolution and any
resolutions to adjourn the Meetings in order to permit the obtaining of such
further votes as may be required and further solicitation of proxies in favor of
such resolutions and, solely for the purposes of approving the UK De-stapling
Resolution and the US De-stapling Resolution, the Companies have agreed to waive
the application of a contractual restriction on NYNEX's ability to vote its
NYNEX CableComms UK Ordinary Shares and NYNEX CableComms US Shares of Common
Stock in a manner that would affect the provisions of the NYNEX CableComms UK
Articles or the NYNEX CableComms US Certificate relating to "stapling" contained
in the NYNEX Relationship Agreement.
INFORMATION CONCERNING CWC
For a discussion of certain information concerning CWC, see "Part II --
Description of CWC" contained in the Offers to Purchase/Prospectus accompanying
Proxy Statement.
SHAREHOLDERS' PROPOSALS
No shareholders have stated that they intend to have any proposals presented
at the Meetings.
SUBMISSION OF DIRECTOR NOMINATIONS, PROPOSALS OR OTHER BUSINESS
AT SHAREHOLDERS MEETINGS
To requisition a resolution at any Annual General Meeting of NYNEX
CableComms UK, (i) members representing not less than one-twentieth of the total
voting rights of all the members having, at the date of the requisition by the
member, a right to vote at the meeting to which the requisition relates or (ii)
not less than 100 members holding shares in NYNEX CableComms UK on which there
has been paid up an average sum, per member, of not less than L100, may
requisition NYNEX CableComms UK to give to shareholders of NYNEX CableComms UK
notice of any resolution which may properly be moved.
The requisition must be given to NYNEX CableComms UK at its registered
office not less than six weeks prior to the date of the meeting together with a
sum reasonably sufficient to meet NYNEX CableComms UK's expenses in giving
effect to it and must otherwise comply with the requirements of the Companies
Act.
Shareholders wishing to have a proposal included in the Companies' proxy
statement shall comply with the applicable requirements of the Exchange Act, and
the rules and regulations thereunder and shall have the rights provided by Rule
14a-8 under the Exchange Act. In order to be eligible under Rule 14a-8 for
inclusion in the Companies' proxy statement and accompanying proxy cards for the
next Annual General Meeting of NYNEX CableComms UK and the Annual Meeting of
Stockholders of NYNEX CableComms US, shareholder proposals must have been sent
to the Secretary of the Companies, The Tolworth Tower, Ewell Road, Surbiton, KT6
7ED, United Kingdom, and must have been received by the Companies on or before
November 22, 1996.
If the transactions described in Offers to Purchase/Prospectus are
consummated, it is expected that the Annual General Meeting of NYNEX CableComms
UK for 1997 will be held after CWC becomes the sole beneficial shareholder of
NYNEX CableComms UK and the Annual Meeting of Stockholders of NYNEX CableComms
US for 1997 will not be held.
Shareholders who do not submit proposals for inclusion in the proxy
statement but who intend to present a proposal, nomination for Directors or
other business for consideration at any meetings of shareholders, are required
to notify the Secretary of the Companies of their intention and provide certain
other information in advance of such meetings.
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If any matter not described herein should come before the Meetings, the
proxy named on the Proxy Card and the person (or persons) authorized by the
Boards of Directors to vote proxies, will vote the NYNEX CableComms UK Ordinary
Shares and NYNEX CableComms US Shares of Common Stock, respectively, represented
by it at that person's (or persons') discretion. As of the date hereof, the
Companies know of no other matters which might be presented for shareholder
action at the Meetings.
ACCOUNTANTS
Representatives of Coopers & Lybrand L.L.P. will be present at the NYNEX
CableComms UK Extraordinary Meeting and the NYNEX CableComms US Special Meeting
and will be given the opportunity to make a statement and will be available to
respond to appropriate questions.
INFORMATION INCORPORATED BY REFERENCE
The following documents filed by the Companies with the Securities and
Exchange Commission (the "Commission") (File Nos. 0-25638 and 0-25690) are
incorporated by reference into this Proxy Statement:
1. the Companies' Annual Report on Form 10-K for the fiscal year ended
December 31, 1996; and
2. the Companies' Solicitation/Recommendation Statement on Schedule 14D-9
dated March 24, 1997.
All documents filed by the Companies pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act, subsequent to the date of this Proxy Statement and
prior to the date of the NYNEX CableComms UK Extraordinary Meeting and the NYNEX
CableComms US Special Meeting shall be deemed to be incorporated herein by
reference and shall be a part hereof from the date of the filing of such
document. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Proxy Statement to the extent that a statement contained
herein or in any other subsequently filed document which also is or is deemed to
be incorporated by reference herein modifies or supersedes that statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Proxy Statement.
This Proxy Statement incorporates other documents by reference which are not
presented herein or delivered herewith. Such documents (other than exhibits to
such documents, unless such exhibits are specifically incorporated by reference
into the information that this Proxy Statement incorporates by reference herein)
are available without charge to each person to whom this Proxy Statement is
delivered, upon the written or oral request of such person, from P.H. Repp,
Chief Legal and Regulatory Officer and Company Secretary, NYNEX CableComms
Limited, The Tolworth Tower, Ewell Road, Surbiton, Surrey KT6 7ED, United
Kingdom, telephone (44) 181 873-2000. In order to ensure timely delivery of the
documents, any request should be made by no later than five business days prior
to date of the Meetings.
AVAILABLE INFORMATION
CWC has filed with the Commission a Registration Statement on Form F-4 under
the Securities Act with respect to CWC Ordinary Shares and a registration
statement on Form F-6 with respect to CWC ADSs.
The Companies are subject to the informational requirements of the Exchange
Act, and in accordance therewith file reports, proxy and information statements
and other information relating to their business, financial condition and other
matters with the Commission. This Proxy Statement contains information
concerning the Companies. The reports, proxy statements and other information
filed by the Companies with the Commission may be inspected and copied at the
public reference facilities of the Commission at Room 1024, Judiciary Plaza, 450
Fifth Street, N.W., Washington, D.C. 20549, and at the following Regional
Offices of the Commission: 7 World Trade Center, Suite 1300, New York, New York
10048; and Citicorp Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661-2511. Copies of such material may also be obtained from the
Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates. The Commission also maintains a
World Wide Web site that
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contains reports, proxy and information statements and other information
regarding registrants (including the Companies since May 1996) that file
electronically with the Commission (http://www.sec.gov).
The NYNEX CableComms ADSs are quoted for trading on the Nasdaq National
Market and reports, proxy and information statements and other information
concerning the Companies may be inspected at the offices of the National
Association of Securities Dealers, Inc., 9513 Key West Avenue, Rockville,
Maryland 20850.
OTHER INFORMATION
Solicitation of proxies (or obtaining of proxy votes) is being made by the
Directors through the mail. CWC will be responsible for costs associated with
this solicitation (or obtaining of proxy votes). The Companies and CWC have
appointed D.F. King & Co., Inc. to aid in the solicitation of proxies (or
obtaining of proxy votes) in the United States at a cost of approximately
$15,000, plus reimbursement of reasonable out-of-pocket expenses.
The Directors of NYNEX CableComms UK and NYNEX CableComms US, whose names
are set out in the section entitled "Security Ownership of Directors and
Executive Officers" above, accept responsibility for the information contained
in this Proxy Statement other than:
(i) the recommendations of the Offer Committees of the Board of Directors of
NYNEX CableComms UK and NYNEX CableComms US (as defined in the Schedule
14D-9) incorporated by reference from the Schedule 14D-9 for which the Offer
Committees of the Board of Directors of NYNEX CableComms UK and NYNEX
CableComms US accept responsibility;
(ii) information contained in this Proxy Statement which are extracted from the
Offers to Purchase/ Prospectus and for which persons other than the
Companies and the Directors of the Companies take responsibility in
accordance with its terms; and
(iii) information which has been compiled from publicly available sources
(including the Offers to Purchase/Prospectus) and in respect of which the
Directors have ensured that such information has been accurately reproduced
or presented.
To the best of the knowledge and belief of the Directors of NYNEX CableComms
UK and NYNEX CableComms US (who have taken all reasonable care to ensure that
such is the case), such information contained in this document for which they
accept responsibility is in accordance with the facts and does not omit anything
likely to affect the import of such information.
The foregoing statements of responsibility are included solely to comply
with Rule 19.2 of the City Code on Takeovers and Mergers in the United Kingdom
and shall not be deemed to establish or expand or limit liability under the US
federal securities laws, under which the Directors of NYNEX CableComms UK and
NYNEX CableComms US may have liability for this Proxy Statement, nor shall they
be deemed to establish liability under the laws of any state of the US.
NYNEX CableComms Group PLC
NYNEX CableComms Group Inc.:
By order of the Boards of Directors
/s/ P.H. Repp
- -----------------------
P.H. Repp
Chief Legal and Regulatory Officer and
Company Secretary
March 24, 1997
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Appendix I
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Merger Agreement"), dated as of
March 21, 1997, by and among NYNEX CableComms Group Inc., a Delaware corporation
("NYNEX CableComms US"), Cable & Wireless Communications plc, a public limited
company incorporated under the laws of England and Wales ("CWC"), and Cable &
Wireless Communications Delaware Inc., a Delaware corporation and a wholly-owned
subsidiary of CWC ("Merger Sub").
W I T N E S S E T H :
WHEREAS, this Merger Agreement is being entered into pursuant to the
transactions contemplated by a Restated Transaction Agreement dated as of
October 22, 1996 (as amended or restated from time to time, the "Transaction
Agreement"), by and among Cable and Wireless plc, a public limited company
incorporated under the laws of England and Wales, Bell Canada International
Inc., a corporation incorporated in Canada, and NYNEX Corporation, a Delaware
corporation;
WHEREAS, the number of authorized shares of Common Stock, par value $0.01
per share, of NYNEX CableComms US ("NYNEX CableComms US Shares of Common Stock")
is 1,500,000,000 and the number of issued and outstanding NYNEX CableComms US
Shares of Common Stock as of the date hereof is 925,976,934, represented by
units ("Units"), each Unit comprised of one NYNEX CableComms US Share of Common
Stock and one Ordinary Share of 10p each ("NYNEX CableComms UK Ordinary Shares")
of NYNEX CableComms Group PLC ("NYNEX CableComms UK"); and
WHEREAS, the number of authorized shares of Common Stock, par value $1.00
per share, of Merger Sub (the "Merger Sub Common Stock") is 10,000;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements contained herein, the parties hereto, intending to be legally bound
hereby, agree as follows:
ARTICLE I
THE MERGER
SECTION 1.1. THE MERGER. In accordance with the provisions of this Merger
Agreement and Section 251 of the Delaware General Corporation Law (the "DGCL"),
at the Effective Time (as defined in Section 1.5), Merger Sub shall be merged
with and into NYNEX CableComms US (the "Merger") and the separate corporate
existence of Merger Sub shall cease. NYNEX CableComms US shall be the surviving
corporation in the Merger (hereinafter sometimes referred to as the "Surviving
Corporation") and shall continue its corporate existence under the laws of the
State of Delaware. The name of the Surviving Corporation shall be "NYNEX
CableComms Group Inc." From and after the Effective Time, the Surviving
Corporation shall possess all the rights, privileges, powers and franchises of a
public as well as of a private nature and be subject to all the restrictions,
disabilities and duties of each of NYNEX CableComms US and Merger Sub; and all
and singular rights, privileges, powers and franchises of each of NYNEX
CableComms US and Merger Sub, and all property, real, personal and mixed, and
all debts due to each of NYNEX CableComms US and Merger Sub on whatever account,
as well as for stock subscriptions and all other things in action or belonging
to each of NYNEX CableComms US and Merger Sub, shall be vested in NYNEX
CableComms US; and all property, rights, privileges, powers and franchises, and
all and every other interest shall be thereafter as effectually the property of
the Surviving Corporation as they were of NYNEX CableComms US and Merger Sub,
and the title to any real estate vested by deed or otherwise, in each of NYNEX
CableComms US and Merger Sub shall not revert or be in any way impaired; but all
rights of creditors and all liens upon any property of either NYNEX CableComms
US or Merger Sub shall thenceforth attach to the Surviving Corporation and may
be enforced against it to the same extent as if said debts and liabilities had
been incurred by it.
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SECTION 1.2. RESTATED CERTIFICATE OF INCORPORATION AND BY-LAWS. The
Restated Certificate of Incorporation and By-Laws of NYNEX CableComms US in
effect at the Effective Time shall be the Certificate of Incorporation and
By-Laws of the Surviving Corporation until duly amended in accordance with the
terms thereof and the DGCL.
SECTION 1.3. DIRECTORS. The directors of Merger Sub immediately prior to
the Effective Time shall be the directors of the Surviving Corporation as of the
Effective Time and until their successors are duly appointed or elected in
accordance with applicable law.
SECTION 1.4. OFFICERS. The officers of NYNEX CableComms US immediately
prior to the Effective Time shall be the officers of the Surviving Corporation
as of the Effective Time and until their successors are duly appointed or
elected in accordance with applicable law.
SECTION 1.5. EFFECTIVE TIME. Upon or after satisfaction or waiver of the
conditions set forth in Article IV and unless the Transaction Agreement shall
have been terminated and the transactions therein contemplated shall have been
abandoned in accordance with its terms, the Merger shall become effective at the
date and time (such date and time is herein referred to as the "Effective Time")
which is the later of (i) the date and time of the filing of the certificate of
merger relating to the Merger with the Secretary of State of the State of
Delaware or (ii) such other date and time as the parties hereto may agree as is
set forth in such certificate of merger.
ARTICLE II
CONVERSION OF SHARES
SECTION 2.1. MERGER SUB COMMON STOCK. At the Effective Time, the shares of
Merger Sub Common Stock outstanding immediately prior to the Effective Time
shall be converted into and shall become the number of shares of common stock of
the Surviving Corporation equal to the number of CWC-Owned Shares (as defined in
Section 2.2(b)) at the Effective Time; PROVIDED, HOWEVER, that the shareholder
of Merger Sub, may, in its discretion, waive its rights to have the shares of
Merger Sub Common Stock converted as provided in this Section 2.1 and such
shares of Merger Sub Common Stock shall cease to be outstanding and shall be
canceled and retired and in consideration therefor, the shares of NYNEX
CableComms US owned by such shareholder of Merger Sub that would otherwise be
canceled pursuant to Section 2.2(b) shall be retained by such shareholder, on a
share-for-share basis, as shares of common stock of the Surviving Corporation,
as provided in Section 2.2 (b).
SECTION 2.2. CONVERSION OF NYNEX CABLECOMMS US SHARES.
(a) Subject to Sections 2.2(c) and 2.2(d), at the Effective Time, each
issued and outstanding NYNEX CableComms US Share of Common Stock, other than any
NYNEX CableComms US Shares of Common Stock to be canceled or otherwise dealt
with pursuant to Section 2.2 (b), Section 2.2 (c) or Dissenting Shares (as
defined in Section 2.2 (d)) (the "Shares") shall be converted into one of the
following (the "Merger Consideration"):
(i) for each such Share with respect to which an election to receive
solely American Depositary Shares (the "CWC ADSs") representing Ordinary
Shares of 50p each of CWC (the "CWC Ordinary Shares") has been effectively
made and not revoked pursuant to Sections 2.3(c), (d) and (e) (an "ADS
Election"), the right to receive 0.007349 of a CWC ADS (the "ADS
Consideration"); or
(ii) for each such Share with respect to which an ADS Election has not
been effectively made or has been revoked pursuant to Sections 2.3(c), (d)
and (e), the right to receive 0.036746 of a CWC Ordinary Share (the "Stock
Consideration").
As a result of the Merger and without any action on the part of the holder
thereof, at the Effective Time, all Shares shall cease to be outstanding and
shall be canceled and retired and shall cease to exist, and
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each such holder of Shares shall thereafter cease to have any rights with
respect to such Shares, except the right to receive, without interest, either
(A) the Stock Consideration, in the form of CWC Ordinary Shares and cash in lieu
of fractional CWC Ordinary Shares, or (B) the ADS Consideration, in the form of
whole CWC ADSs and, in lieu of fractional CWC ADSs, CWC Ordinary Shares and cash
in lieu of fractional CWC Ordinary Shares upon the surrender of (i) a
certificate for Units (a "Unit Certificate") evidencing such Shares (and an
equal number of NYNEX CableComms UK Ordinary Shares) or (ii) if the NYNEX
CableComms US Shares of Common Stock and NYNEX CableComms UK Ordinary Shares
comprising such Units are permitted to be transferred, converted by way of
merger or otherwise dealt with other than as Units and a certificate for NYNEX
CableComms US Shares of Common Stock (a "Share Certificate") representing such
Shares shall have been issued prior to the Effective Time, such Share
Certificate. For the purposes of determining whole CWC Ordinary Shares and whole
CWC ADSs, if a Compulsory Acquisition of NYNEX CableComms UK Ordinary Shares
shall have been effected, the consideration that such holder is entitled to
receive as a result of the compulsory acquisition ("Compulsory Acquisition") of
such NYNEX CableComms UK Ordinary Shares under Sections 428 to 430F of the
Companies Act 1985 of Great Britain, as amended (the "Companies Act"), will be
taken into account.
(b) Notwithstanding anything contained in this Section 2.2 to the contrary,
each issued and outstanding NYNEX CableComms US Share of Common Stock owned by
CWC ("CWC-Owned Shares") immediately prior to the Effective Time shall, by
virtue of the Merger, cease to be outstanding and shall be canceled and retired
without payment of any consideration therefor; PROVIDED, HOWEVER, that
notwithstanding the foregoing, if CWC waives its rights with respect to the
shares of Merger Sub Common Stock as provided in Section 2.1, in consideration
of such waiver such CWC-Owned Shares shall continue to be outstanding to the
maximum extent permitted by law and shall represent, on a share-for-share basis,
the shares of common stock of the Surviving Corporation.
(c) Notwithstanding anything contained in this Section 2.2 to the contrary,
each NYNEX CableComms US Share of Common Stock issued and held in the treasury
of NYNEX CableComms US or held by any subsidiary of NYNEX CableComms US
immediately prior to the Effective Time shall, by virtue of the Merger, cease to
be outstanding and shall be canceled and retired without payment of any
consideration therefor.
(d) Notwithstanding anything in this Section 2.2 to the contrary, NYNEX
CableComms US Shares of Common Stock which are issued and outstanding
immediately prior to the Effective Time and which are held by shareholders who
have not voted such NYNEX CableComms US Shares of Common Stock in favor of the
Merger and who shall have properly exercised their rights of appraisal (if any)
for such NYNEX CableComms US Shares of Common Stock in the manner provided by
the DGCL (the "Dissenting Shares") shall not be converted into or be
exchangeable for the right to receive the Merger Consideration, unless and until
such holder shall have failed to perfect or shall have effectively withdrawn or
lost his right to appraisal and payment (if any), as the case may be. If such
holder shall have so failed to perfect or shall have effectively withdrawn or
lost such right (if any), his shares shall thereupon be deemed to have been
converted into and to have become exchangeable for, at the Effective Time, the
right to receive the Merger Consideration. NYNEX CableComms US shall give CWC
prompt notice of any Dissenting Shares (and shall also give CWC prompt notice of
any withdrawals of such demands for appraisal rights) and CWC shall have the
right to direct all negotiations and proceedings with respect to any such
demands. Neither NYNEX CableComms US nor the Surviving Corporation shall, except
with the prior written consent of CWC, voluntarily make any payment with respect
to, or settle or offer to settle, any such demand for appraisal rights.
(e) Pursuant to Section 2.1, CWC hereby agrees to waive its rights with
respect to its shares of Merger Sub Common Stock in consideration for the
CWC-Owned Shares continuing to be outstanding to the maximum extent permitted by
law and representing, on a share-for-share basis, the shares of common stock of
the Surviving Corporation.
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SECTION 2.3. ELECTIONS BY HOLDERS OF SHARES.
(a) Each person who, at the Effective Time, is a record holder of Shares
shall have the right to submit an Election Form (as defined in Section 2.3(c))
specifying the number of Shares that such person desires to have converted into
the right to receive CWC ADSs pursuant to an ADS Election.
(b) As of the Effective Time, CWC shall (i) deposit (or cause to be
deposited) with a bank or trust company to be designated by CWC and reasonably
acceptable to NYNEX CableComms US (the "Exchange Agent" ), for the benefit of
the holders of Shares, for exchange in accordance with this Article II,
certificates representing the CWC Ordinary Shares ("CWC Certificates") for
exchange in accordance with this Article II and (ii) deposit (or cause to be
deposited) with Citibank, N.A., as custodian and depositary (the "Depositary"),
for the benefit of the holders of Shares, CWC Certificates and shall cause the
Depositary to issue and deposit with the Exchange Agent, American Depositary
Receipts evidencing CWC ADSs ("CWC ADRs") for exchange in accordance with this
Article II. CWC Ordinary Shares or CWC ADSs, as the case may be, into which
Shares shall be converted pursuant to the Merger, as well as CWC Ordinary Shares
represented by such CWC ADSs, shall be deemed to have been issued at the
Effective Time.
(c) As soon as reasonably practicable after the Effective Time, the Exchange
Agent shall mail to each holder of record of Shares immediately prior to the
Effective Time (i) a letter of transmittal (the "Letter of Transmittal") (which
shall specify that delivery shall be effected, and risk of loss and title to
Unit Certificates or Share Certificates, as the case may be, shall pass, only
upon delivery of such Unit Certificates or Share Certificates, as the case may
be, to the Exchange Agent and shall be in such form and have such other
provisions as CWC shall specify), (ii) instructions for use in effecting the
surrender of Unit Certificates or Share Certificates, as the case may be, in
exchange for the Merger Consideration with respect to the Shares formerly
represented thereby, and (iii) an election form (the "Election Form") providing
for such holders to make the ADS Election. All holders of Shares immediately
prior to the Effective Time that shall not have submitted to the Exchange Agent,
or shall have properly revoked, an effective, properly completed Election Form
shall receive the Stock Consideration.
(d) An ADS Election shall have been validly made only if the Exchange Agent
shall have received an Election Form properly completed and executed (with the
signature or signatures thereof guaranteed to the extent required by the
Election Form) by such holder accompanied by such holder's Unit Certificates or
Share Certificates, as the case may be, or by an appropriate guarantee of
delivery of such Unit Certificates or Share Certificates, as the case may be,
from a member of any registered national securities exchange or of the National
Association of Securities Dealers, Inc. or a commercial bank or trust company in
the United States as set forth in such Election Form. Any holder of Shares who
has made an ADS Election by submitting an Election Form to the Exchange Agent
may, at any time prior to the delivery by the Exchange Agent of the Merger
Consideration to which such holder is entitled, revoke his or her election and
withdraw his or her Unit Certificates or Share Certificates, as the case may be,
deposited with the Exchange Agent by written notice to the Exchange Agent.
(e)(i) Upon surrender of a Unit Certificate or Share Certificate, as the
case may be, for cancellation to the Exchange Agent, together with the
Letter of Transmittal duly executed, and such other documents as CWC or the
Exchange Agent shall reasonably request, the holder of such Unit Certificate
or Share Certificate, as the case may be, shall be entitled to receive as
soon as practicable after the Effective Time in exchange therefor:
(A) with respect to Shares represented by such Unit Certificate or Share
Certificate, as the case may be, with respect to which an ADS Election has
been effectively made and not revoked pursuant to Section 2.3(c), (d) and
(e), CWC ADRs evidencing that number of whole CWC ADSs, if any, which such
holder has the right to receive pursuant to this Article II and in lieu of
fractional CWC ADSs, a CWC Certificate representing that number of whole CWC
Ordinary Shares, if any, represented by such fractional CWC ADS and a
certified or bank cashier's check in the amount equal to cash in lieu
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of any fractional CWC Ordinary Shares represented by such fractional CWC ADS
payable pursuant to Section 2.4(c) (in each case less the amount of any
required withholding taxes); or
(B) with respect to Shares represented by such Unit Certificate or Share
Certificate, as the case may be, with respect to which an ADS Election has
not been effectively made or has been revoked pursuant to Section 2.3(c),
(d) and (e), a CWC Certificate representing that number of whole CWC
Ordinary Shares, if any, which such holder has the right to receive pursuant
to this Article II and a certified or bank cashier's check in the amount
equal to the cash in lieu of fractional shares of CWC Ordinary Shares
payable pursuant to Section 2.4(c) (less the amount of any required
withholding taxes); and
(ii) If Compulsory Acquisition of NYNEX CableComms UK Ordinary Shares
shall have been effected, but the holder has not theretofore received the
consideration that such holder is entitled to receive pursuant to the
Compulsory Acquisition, upon surrender of such holder's Unit Certificate
such holder shall receive such consideration that such holder is entitled to
pursuant to the Compulsory Acquisition, provided that such holder has
complied with the applicable requirements of the Companies Act with respect
to the Compulsory Acquisition.
The Unit Certificate or Share Certificate, as the case may be, so
surrendered shall forthwith be canceled. Until surrendered as contemplated by
this Section 2.3(e), each Unit Certificate or Share Certificate, as the case may
be, shall be deemed at any time after the Effective Time to represent only the
right to receive the Merger Consideration with respect to the Shares formerly
represented thereby and with respect to a Unit Certificate only, if a Compulsory
Acquisition shall have been effected, any consideration payable with respect to
the NYNEX CableComms UK Ordinary Shares formerly represented thereby subject to
the Compulsory Acquisition.
(f) CWC shall have the right to make reasonable rules, not inconsistent with
the terms of this Merger Agreement, governing the validity of the Election Forms
and the issuance and delivery of CWC Certificates or CWC ADRs, as the case may
be, into which Shares are converted in the Merger.
(g) The parties hereto may in their discretion, but shall not be obligated
to, establish further procedures by which holders of American Depositary Shares
representing NYNEX CableComms Units ("NYNEX CableComms ADSs"), in part
representing Shares, may make an ADS Election and/or receive the Merger
Consideration with respect to the Shares represented by their NYNEX CableComms
ADSs.
SECTION 2.4. DIVIDENDS, FRACTIONAL SHARES, ETC.
(a) Notwithstanding any other provisions of this Merger Agreement, no
dividends or other distributions declared after the Effective Time on CWC
Ordinary Shares or CWC ADSs, as the case may be, shall be paid with respect to
any Shares which, prior to the Effective Time, were represented by a Unit
Certificate or Share Certificate, as the case may be, until such Unit
Certificate or Share Certificate, as the case may be, is surrendered for
exchange as provided herein. Subject to the effect of applicable laws, following
surrender of any such Unit Certificate or Share Certificate, as the case may be,
there shall be paid to the holder of the CWC Certificates or CWC ADRs, as the
case may be, issued in exchange therefor, without interest, (i) at the time of
such surrender, the amount of dividends or other distributions with a record
date after the Effective Time theretofore payable with respect to such whole CWC
Ordinary Shares or CWC ADSs, as the case may be, and not paid, less the amount
of any withholding taxes which may be required thereon, and (ii) at the
appropriate payment date, the amount of dividends or other distributions with a
record date after the Effective Time but prior to surrender and a payment date
subsequent to surrender payable with respect to such whole CWC Ordinary Shares
or CWC ADSs, as the case may be, less the amount of any withholding taxes which
may be required thereon.
(b) At or after the Effective Time, there shall be no transfers on the stock
transfer books of NYNEX CableComms US of the Unit Certificates or Share
Certificates, as the case may be, which were outstanding
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immediately prior to the Effective Time. If, after the Effective Time, Unit
Certificates or Share Certificates, as the case may be, formerly representing
any such Shares are presented to the Surviving Corporation, they shall be
canceled and exchanged for CWC Certificates or CWC ADRs (if any), as the case
may be, deliverable in respect thereof pursuant to this Merger Agreement in
accordance with the procedures set forth in this Article II.
(c) (i) No fractional CWC Ordinary Shares shall be issued pursuant to
the Merger. In lieu of the issuance of any fractional CWC Ordinary Shares
pursuant to the Merger, fractional CWC Ordinary Shares shall be aggregated
and sold in the market and the net proceeds of sale distributed PRO RATA to
such holders (less the amount of any withholding taxes); PROVIDED, HOWEVER,
that CWC shall have no liability to any person for any loss or alleged loss
arising from the price, timing or manner of any such sale.
(ii) No fractional CWC ADSs shall be issued pursuant to the Merger.
In lieu of the issuance of any fractional CWC ADSs pursuant to the Merger,
each holder of Shares who would otherwise be entitled to receive a
fractional CWC ADS will be issued a CWC Certificate representing such whole
number of CWC Ordinary Shares represented by such fractional CWC ADS and
cash in lieu of any fractional CWC Ordinary Shares represented by such
fractional CWC ADS shall be paid as described in Section 2.4(c)(i).
(d) Any CWC Ordinary Shares, CWC ADSs or funds (including the proceeds of
any sales of CWC Ordinary Shares or CWC ADSs to pay cash in lieu of fractional
CWC Ordinary Shares or CWC ADSs), as the case may be, that remain unclaimed by
the former holders of Shares of NYNEX CableComms US six months after the
Effective Time shall be delivered to CWC. Any former holder of Shares of NYNEX
CableComms US who has not theretofore complied with this Article II shall
thereafter look only to CWC for payment of the consideration payable on account
of the Merger, cash in lieu of fractional CWC Ordinary Shares or CWC ADSs and
unpaid dividends and distributions on the CWC Ordinary Shares or CWC ADSs, as
the case may be, deliverable in respect of each CWC Ordinary Share or CWC ADS,
as the case may be, that such holder of Shares holds as determined pursuant to
this Merger Agreement, in each case without any interest thereon.
(e) None of NYNEX CableComms US, CWC, the Exchange Agent, nor any other
person shall be liable to any former holder of Shares for any amount properly
delivered to a public official pursuant to applicable abandoned property,
escheat or similar laws.
(f) In the event that any Unit Certificate or Share Certificate, as the case
may be, shall have been lost, stolen or destroyed, upon the making of an
affidavit of that fact by the person claiming such Unit Certificate or Share
Certificate, as the case may be, to be lost, stolen or destroyed and, if
required by CWC, the posting by such person of a bond in such reasonable amount
as CWC may direct as indemnity against any claim that may be made against it
with respect to such Unit Certificate or Share Certificate as the case may be,
the Exchange Agent will issue in exchange for such lost, stolen or destroyed
Unit Certificate or Share Certificate, as the case may be, the applicable Merger
Consideration, cash in lieu of fractional CWC Ordinary Shares, and unpaid
dividends and distributions on CWC Ordinary Shares or CWC ADSs, as the case may
be, as provided in this Section 2.4, deliverable in respect thereof pursuant to
this Merger Agreement.
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ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS OF
NYNEX CABLECOMMS US, CWC AND MERGER SUB
SECTION 3.1. REPRESENTATIONS AND WARRANTIES OF NYNEX CABLECOMMS. NYNEX
CableComms US hereby represents and warrants to CWC and Merger Sub as follows:
(a) NYNEX CableComms US is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
(b) NYNEX CableComms US has all requisite corporate power and authority to
execute and deliver the Merger Agreement and, subject to the requisite approval
of the Merger Agreement by the shareholders of NYNEX CableComms US, to
consummate the transactions contemplated hereby. The execution, delivery and
performance of the Merger Agreement by NYNEX CableComms US and the consummation
of the transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of NYNEX CableComms US, subject to the
requisite approval of the Merger Agreement by the shareholders of NYNEX
CableComms US. The Merger Agreement has been duly executed and delivered by
NYNEX CableComms US and constitutes the valid and binding obligation of NYNEX
CableComms US enforceable against NYNEX CableComms US in accordance with its
terms, except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or affecting the
enforcement of creditors' rights in general and by general principles of equity.
(c) At a meeting of the NYNEX CableComms US Board of Directors held on March
21, 1997, the NYNEX CableComms US Board of Directors adopted resolutions:
(i) approving, subject to the approval by shareholders of NYNEX
CableComms UK of certain amendments to the Articles of Association of NYNEX
CableComms UK (the "NYNEX CableComms UK Articles") authorizing the NYNEX
CableComms UK Board of Directors to permit the transfer or dealing of NYNEX
CableComms UK Ordinary Shares in an amount not to exceed (when aggregated
with any NYNEX CableComms UK Ordinary Shares which the NYNEX CableComms UK
Board of Directors has previously permitted to be transferred, converted by
way of merger or otherwise dealt with, free of the restrictions on transfer
or dealing contained in Article 37 and other relevant provisions of the
NYNEX CableComms UK Articles) 20% of the outstanding NYNEX CableComms UK
Ordinary Shares free of the restrictions on transfer or dealing contained in
the NYNEX CableComms UK Articles (the "UK De-stapling Amendments"),
amendments to the Restated Certificate of Incorporation of NYNEX CableComms
US (the "NYNEX CableComms US Certificate") to provide that, notwithstanding
the provisions contained in Paragraphs A and B of Article Fifth and other
relevant provisions therein, effective upon the offers by CWC for NYNEX
CableComms US Shares of Common Stock and NYNEX CableComms UK Ordinary Shares
(including NYNEX CableComms US Shares of Common Stock and NYNEX CableComms
UK Ordinary Shares comprising Units and comprising Units represented by
American Depositary Shares) (the "NYNEX CableComms Offers") becoming or
being declared unconditional in all respects, the Board of Directors of
NYNEX CableComms US be authorized, in its absolute discretion, to determine
that the restrictions contained in Paragraphs A and B of Article Fifth and
other relevant provisions of the NYNEX CableComms US Certificate on
transfer, conversion by way of merger or other dealing in NYNEX CableComms
US Shares of Common Stock shall not apply to the transfer, conversion by way
of merger or other dealing, of a number of NYNEX CableComms US Shares of
Common Stock, in an amount not to exceed (when aggregated with any NYNEX
CableComms US Shares of Common Stock which the Board of Directors has
previously determined should not be subject to the restrictions on transfer,
conversion by way of merger or other dealing contained in the NYNEX
CableComms US Certificate) 20% of the NYNEX CableComms US Shares of Common
Stock then outstanding (the "US De-stapling Amendments"), and directing that
the US De-stapling Amendments be submitted to
7
<PAGE>
the shareholders of NYNEX CableComms US for approval at the Special Meeting
(as defined below); and
(ii) approving, subject to the approval of the US De-stapling
Amendments, the Merger Agreement and the Merger for purposes of Section 251
of the DGCL and for purposes of the "business combination" provisions of
Section 203 of the DGCL and directing that the Merger Agreement and the
Merger be submitted for the approval of shareholders of NYNEX CableComms US
at a special meeting of NYNEX CableComms US shareholders (the "Special
Meeting") called for purposes of Section 251 of the DGCL, the NYNEX
CableComms US Certificate and Section 203 of the DGCL.
SECTION 3.2. PROXY STATEMENT. As soon as practicable after the execution
of this Merger Agreement, and subject to the fiduciary duties of the NYNEX
CableComms US Board of Directors, NYNEX CableComms US shall prepare and file
with the Securities and Exchange Commission (the "SEC") under the Securities
Exchange Act of 1934, as amended, and shall use its reasonable best efforts to
have cleared by the SEC a proxy statement (the "Proxy Statement") for the
Special Meeting and, as soon thereafter as possible, disseminate the Proxy
Statement to its shareholders. CWC and Merger Sub shall provide such assistance,
information and cooperation to NYNEX CableComms US as is reasonably required to
describe CWC or Merger Sub for purposes of the Proxy Statement. NYNEX CableComms
US will provide CWC, Merger Sub and their counsel with a copy of any written
comments or telephonic notification of any oral comments NYNEX CableComms US may
receive from the SEC or its staff with respect to the Proxy Statement promptly
after receipt thereof and will provide CWC, Merger Sub and their counsel with a
copy of any written responses and telephonic notification of any oral responses
of NYNEX CableComms US or its counsel. CWC, Merger Sub and their counsel shall
be given an opportunity to review and comment on the Proxy Statement, and any
amendments or supplements thereto, prior to the filing thereof with the SEC.
SECTION 3.3. SECURITIES ACT COMPLIANCE. As soon as practicable after the
date of the Special Meeting, NYNEX CableComms US will identify to CWC all
individuals who were reasonably believed by NYNEX CableComms US to be, at the
time of the Special Meeting, "affiliates" of NYNEX CableComms US as that term is
used in paragraphs (c) and (d) of Rule 145 under the Securities Act of 1933, as
amended (the "Rule 145 Affiliates"). NYNEX CableComms US will use its reasonable
best efforts to obtain a written agreement in the form of Annex A hereto from
each person who is identified as a Rule 145 Affiliate. If any Rule 145 Affiliate
refuses to provide such an agreement, CWC may place appropriate legends on the
CWC Certificates or the CWC ADRs, as the case may be, to be received by such
Rule 145 Affiliate and to issue appropriate stop transfer orders to the transfer
agent.
SECTION 3.4. REPRESENTATIONS AND WARRANTIES OF CWC AND MERGER SUB. CWC and
Merger Sub hereby represent and warrant as follows:
(a) CWC is a company duly incorporated and validly existing under the laws
of England and Wales and Merger Sub is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(b) CWC and Merger Sub have all requisite corporate power and authority to
execute and deliver the Merger Agreement and to consummate the transactions
contemplated hereby. The execution, delivery and performance of the Merger
Agreement by CWC and Merger Sub and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the part of CWC and Merger Sub, as applicable. The Merger Agreement has been
duly executed and delivered by CWC and Merger Sub and constitutes the valid and
binding obligation of CWC and Merger Sub enforceable against CWC and Merger Sub
in accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws relating to
or affecting the enforcement of creditors' rights in general and by general
principles of equity.
8
<PAGE>
(c) CWC's Registration Statement on Form F-4 has been prepared in all
material respects in accordance with the requirements of applicable law
(including the U.S. federal securities laws) and does not and will not at the
time it is filed contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to
make the statements therein not misleading; PROVIDED, HOWEVER, that no
representation is made with respect to information concerning NYNEX CableComms
US, NYNEX CableComms UK or any of their subsidiaries included in the
Registration Statement on Form F-4; PROVIDED FURTHER, that statements made
therein based on information concerning Bell Cablemedia plc ("BCM") are made to
the best of CWC's knowledge, after reasonable investigation.
(d) The unaudited condensed pro forma consolidated financial information of
CWC contained in its Registration Statement on Form F-4 have been prepared in
accordance with the rules and regulations of the SEC and generally accepted
accounting principles applied on a consistent basis and the pro forma
adjustments have been properly applied to the historical amounts in the
compilation of such financial information.
SECTION 3.5. SIMULTANEOUS COMPULSORY ACQUISITION, ETC. If CWC shall have
commenced a Compulsory Acquisition of the NYNEX CableComms UK Ordinary Shares,
the parties to this Merger Agreement will use their best efforts to cause the
Effective Time of the Merger to occur concurrently with the later of the
consummation of the Compulsory Acquisition or the exercise or lapse of all
outstanding options for NYNEX CableComms securities or the exchange of such
options for options over CWC Ordinary Shares.
SECTION 3.6. INDEMNIFICATION; DIRECTORS' AND OFFICERS' INSURANCE.
(a) The Certificate of Incorporation and the By-Laws of the Surviving
Corporation shall contain the provisions with respect to indemnification not
less favorable to the directors and officers than those set forth in the NYNEX
CableComms US Certificate and the By-Laws of NYNEX CableComms US on the date of
the Merger Agreement, which provisions shall not be amended, repealed or
otherwise modified for a period of six years after the Effective Time in any
manner that would adversely affect the rights thereunder of individuals who at
the Effective Time were directors or officers of NYNEX CableComms US in respect
of actions or omissions occurring at or prior to the Effective Time (including,
without limitation, the transactions contemplated by this Merger Agreement),
unless such modification is required by law. CWC shall guarantee the obligations
of the Surviving Corporation under this Section 3.6(a).
(b) CWC shall cause the Surviving Corporation to use its reasonable best
efforts to maintain in effect for six years from the Effective Time, if
available, the coverage provided by the current directors' and officers'
liability insurance policies maintained by NYNEX Corporation (provided that the
Surviving Corporation may substitute therefor policies of at least the same
coverage containing terms and conditions which are not materially less
favorable) with respect to matters occurring prior to the Effective Time.
(c) This Section 3.6 shall survive the Effective Time, and is intended to be
for the benefit of, and shall be enforceable by, the directors and officers of
NYNEX CableComms US and shall be binding on CWC and Merger Sub and the Surviving
Corporation and their respective successors and assigns.
ARTICLE IV
CONDITIONS
SECTION 4.1. CONDITIONS TO EACH PARTY'S OBLIGATIONS TO EFFECT THE
MERGER. The respective obligations of each party hereto to effect the Merger is
subject to the satisfaction at or prior to the Effective Time of each of the
following conditions:
9
<PAGE>
(a) NYNEX CABLECOMMS US SHAREHOLDER APPROVAL. The US De-stapling Amendments,
the Merger Agreement and the Merger shall have been approved and adopted by the
requisite votes of the shareholders of NYNEX CableComms US;
(b) NYNEX CABLECOMMS UK SHAREHOLDER APPROVAL. The UK De-stapling Amendments
shall have been approved by the requisite votes of the shareholders of NYNEX
CableComms UK;
(c) NYNEX CABLECOMMS OFFERS. The NYNEX CableComms Offers shall be or shall
have been declared unconditional in all respects; and
(d) DE-STAPLING OF UNITS. Subject to the approvals by the respective
shareholders of NYNEX CableComms UK and NYNEX CableComms US of the UK
De-stapling Amendments and the US De-stapling Amendments, pursuant to the
authority granted by the UK De-stapling Amendments and the US De-stapling
Amendments, respectively, the Boards of Directors of NYNEX CableComms UK and
NYNEX CableComms US shall have taken such action, in their absolute discretion,
as is necessary to permit the transfer or other dealing of up to 20% of the
outstanding NYNEX CableComms UK Ordinary Shares and the transfer, conversion by
way of merger or other dealing of up to 20% of the outstanding NYNEX CableComms
US Shares of Common Stock free of the restrictions on transfer or conversion by
way of merger contained in the NYNEX CableComms UK Articles and the NYNEX
CableComms US Certificate, such that those NYNEX CableComms UK Ordinary Shares
and NYNEX CableComms US Shares of Common Stock shall thereafter no longer
comprise NYNEX CableComms Units and shall be transferable, convertible by way of
merger or otherwise dealt with separately and apart from each other.
ARTICLE V
TERMINATION AND AMENDMENT
SECTION 5.1. TERMINATION. Notwithstanding the approval and adoption of
this Merger Agreement by the shareholders of NYNEX CableComms US and Merger Sub,
respectively, this Merger Agreement shall terminate forthwith in the event that
the Transaction Agreement shall be terminated as therein provided. In the event
of the termination of this Merger Agreement as provided above, this Merger
Agreement shall forthwith become void and there shall be no liability on the
part of any of the parties hereto except as otherwise provided in the
Transaction Agreement.
SECTION 5.2. AMENDMENT. This Merger Agreement shall not be amended or
modified except by a written agreement executed by the parties hereto; PROVIDED,
HOWEVER, that subsequent to the adoption of the Merger Agreement by the
shareholders of NYNEX CableComms US, the Merger Agreement may be so amended only
as may be permitted by the DGCL.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1. GOVERNING LAW. This Merger Agreement shall be governed by the
laws of the State of Delaware.
SECTION 6.2. COUNTERPARTS. This Merger Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original, but all of
which shall constitute one and the same agreement.
SECTION 6.3. NECESSARY FILINGS AND ACTS. NYNEX CableComms US and Merger
Sub agree that they will cause to be executed and filed and recorded any
document or documents prescribed by the laws of the State of Delaware (and, if
necessary, the laws of any other State), and that they will cause to be
performed all necessary acts within the State of Delaware and elsewhere to
effectuate the Merger.
10
<PAGE>
SECTION 6.4. AUTHORIZATION. The Boards of Directors and the proper
officers of Merger Sub and of NYNEX CableComms US are hereby authorized,
empowered and directed to do any and all acts and things, and to make, execute,
deliver, file, and record any and all instruments, papers and documents which
shall be or become necessary, proper or convenient to carry out or put into
effect any provisions of the Merger Agreement or of the Merger.
IN WITNESS WHEREOF, the parties hereto have caused this Merger Agreement to
be signed by their respective officers thereunto duly authorized as of the date
first written above.
NYNEX CABLECOMMS GROUP INC.
/s/ PAUL H. REPP
By:
--------------------------------------
Name: Paul H. Repp
Title:Chief Legal and Regulatory
Officer
and Company Secretary
CABLE & WIRELESS
COMMUNICATIONS DELAWARE INC.
/s/ STEPHEN R. PETTIT
By:
- -------------------------------------------
Name: Stephen R. Pettit
Title: Director
CABLE & WIRELESS
COMMUNICATIONS PLC
/s/ STEPHEN R. PETTIT
By:
- -------------------------------------------
Name: Stephen R. Pettit
Title: Director
11
<PAGE>
ANNEX A
NYNEX CableComms Group Inc.
The Tolworth Tower
Ewell Road
Surbiton, Surrey KT6 7ED
United Kingdom
Gentlemen:
The undersigned, a holder of Units or American Depositary Shares
representing in part shares of Common Stock, par value $.01 per share ("Common
Stock"), of NYNEX CableComms Group Inc., a Delaware corporation ("NYNEX
CableComms US"), is entitled to receive in connection with the merger (the
"Merger") of NYNEX CableComms US with Cable & Wireless Communications Delaware
Inc., a Delaware corporation, Ordinary Shares of 50p each ("CWC Ordinary
Shares") or American Depositary Shares ("CWC ADSs") representing CWC Ordinary
Shares of Cable & Wireless Communications plc, a public limited company
incorporated under the laws of England and Wales ("CWC"). The undersigned
acknowledges that the undersigned may be deemed an "affiliate" of NYNEX
CableComms US within the meaning of Rule 145 ("Rule 145") promulgated under the
Securities Act of 1933, as amended (the "Act"), although nothing contained
herein should be construed as an admission of such fact.
If in fact the undersigned were an affiliate under the Act, the
undersigned's ability to sell, assign or transfer the CWC Ordinary Shares or CWC
ADSs received by the undersigned pursuant to the Merger may be restricted unless
such transaction is registered under the Act or an exemption from such
registration is available. The undersigned understands that such exemptions are
limited and the undersigned has obtained advice of counsel as to the nature and
conditions of such exemptions, including information with respect to the
applicability to the sale of such securities of Rules 144 and 145(d) promulgated
under the Act.
The undersigned hereby represents to and covenants with CWC that the
undersigned will not sell, assign or transfer any of the CWC Ordinary Shares or
CWC ADSs received by the undersigned pursuant to the Merger except (i) pursuant
to an effective registration statement under the Act, (ii) in conformity with
the volume and other limitations of Rule 144 and Rule 145 or (iii) in a
transaction which, in the opinion of independent counsel reasonably satisfactory
to CWC or as described in a "no-action" or interpretive letter from the Staff of
the Securities and Exchange Commission (the "SEC"), is not required to be
registered under the Act.
In the event of a sale or other disposition by the undersigned of CWC
Ordinary Shares or CWC ADSs received by the undersigned in the Merger pursuant
to Rule 145, the undersigned will supply CWC with evidence reasonably
satisfactory to CWC of compliance with such Rule. The undersigned understands
that CWC may instruct its transfer agent or the Depositary for the CWC ADSs (the
"Depositary") to withhold the transfer of such CWC Ordinary Shares or CWC ADSs,
respectively, sold or disposed of by the undersigned, subject to receipt of such
evidence of compliance. Following such receipt, the transfer agent or Depositary
shall effectuate the transfer of the CWC Ordinary Shares or CWC ADSs sold or
disposed of by the undersigned.
The undersigned acknowledges and agrees that appropriate legends will be
placed on certificates representing CWC Ordinary Shares or American Depositary
Receipts ("CWC ADRs") evidencing CWC ADSs received by the undersigned in the
Merger or held by a transferee thereof, which legends will be removed by
delivery of substitute certificates or CWC ADRs upon receipt of an opinion in
form and substance reasonably satisfactory to CWC from independent counsel
reasonably satisfactory to CWC to the effect that such legends are no longer
required for purposes of the Act.
The undersigned acknowledges that (i) the undersigned has carefully read
this letter and understands the requirements hereof and the limitations imposed
upon the distribution, sale, transfer or other disposition of securities and
(ii) the receipt by CWC of this letter is an inducement to CWC's obligations to
consummate the Merger.
Very truly yours,
---------------------------------------------------------------------------
[Name of affiliate]
Dated:
<PAGE>
NYNEX CABLECOMMS GROUP PLC
FORM OF PROXY
FOR USE AT THE EXTRAORDINARY GENERAL MEETING TO BE HELD AT
1 FINSBURY AVENUE, LONDON, EC2M 2PP, UNITED KINGDOM ON APRIL 24, 1997 AND
AT ANY ADJOURNMENT THEREOF. THE EXTRAORDINARY GENERAL MEETING OF
NYNEX CABLECOMMS GROUP PLC WILL
COMMENCE AT 9:00 AM.
PROXY SOLICITED BY THE BOARD OF DIRECTORS
CAPITALIZED TERMS USED HEREIN AND NOT OTHERWISE DEFINED SHALL HAVE THE
RESPECTIVE MEANINGS ASSIGNED TO THEM IN THE PROXY STATEMENT.
I/We (name/s in
full) ________________________________________________ (Block Letters) of
- --------------------------------------------------------------------------------
being (a) holder(s) of NYNEX CableComms UK Ordinary Shares hereby appoint
Richard W. Blackburn, Sally M. Davis and Paul D. McConville, or, failing any of
them, the chairman of the meeting, or ________________________________________
as my/our proxy, to attend and to vote for me/us and on
my/our behalf at the NYNEX CableComms UK Extraordinary Meeting and at any
adjournment thereof.
Please indicate with an X in the space below how you wish your votes to be
cast.
<TABLE>
<CAPTION>
RESOLUTIONS PROPOSED BY THE BOARD OF DIRECTORS FOR AGAINST ABSTAIN
<S> <C> <C> <C>
1. To approve amendments to the Articles of Association to
authorize the directors to "de-staple" up to 20% of the
outstanding ordinary shares
2. To adjourn the NYNEX UK CableComms Extraordinary Meeting to
the same place and to such time no less than seven days
later as the above named proxies shall determine
</TABLE>
Dated: _________, 1997. Signature/s or Common Seal
____________________________
THE BOARD OF DIRECTORS OF NYNEX CABLECOMMS UK RECOMMENDS A VOTE FOR ITEMS 1
AND 2.
<PAGE>
NYNEX CABLE COMMS GROUP PLC
FORM OF PROXY (CONTINUED)
Notes:
1. In order to be effective, this Form of Proxy, duly completed and signed,
together with any authority under which it is signed or a valid certified copy
of the authority, should be deposited at the office of The Royal Bank of
Scotland Plc, Registrar's Department, PO Box 82, Caxton House, Redcliffe Way,
Bristol, BS99 7YA, not less than 48 hours before the time of the NYNEX
CableComms UK Extraordinary Meeting. For your convenience, a pre-addressed
envelope for use in returning the completed Form of Proxy has been included with
this Form of Proxy.
2. If the appointee is a corporation, this Form of Proxy must be executed
under its common seal or under the hand of an officer or attorney duly
authorized in that behalf.
3. A holder of NYNEX CableComms UK Ordinary Shares entitled to attend and
vote at the NYNEX CableComms UK Extraordinary Meeting is also entitled to
appoint one or more proxies to attend and vote instead of the shareholder. A
proxy need not be a shareholder of NYNEX CableComms UK.
4. Completion of this Form of Proxy will not prevent the holder from
attending and voting in person should he or she wish to do so.
5. If this Form of Proxy is duly signed and appoints a proxy other than Mr.
Blackburn, Ms. Davis and Mr. McConville, or, failing any of them, the chairman
of the meeting, but without an indication as to how the proxy must vote on a
particular resolution, in accordance with the listing requirements of the London
Stock Exchange, the proxy will vote or abstain in his discretion.
6. IF MR. BLACKBURN, MS. DAVIS, MR. MCCONVILLE, OR, FAILING ANY OF THEM, THE
CHAIRMAN OF THE MEETING IS APPOINTED AS PROXY, BUT WITHOUT AN INDICATION AS TO
HOW THE PROXY MUST VOTE ON A PARTICULAR RESOLUTION, SUCH PROXY WILL VOTE FOR
ITEMS 1 AND 2, IN ACCORDANCE WITH THE RECOMMENDATION OF THE BOARD AND ON ANY
OTHER BUSINESS BEFORE THE MEETING WITH ALL POWERS THE HOLDER WOULD POSSESS IF
PERSONALLY PRESENT; PROVIDED, HOWEVER, THAT NO PROXY THAT IS VOTED AGAINST ITEM
1 WILL BE VOTED IN FAVOR OF THE ADJOURNMENT DESCRIBED IN ITEM 2 PROPOSED TO
PERMIT, IF NECESSARY, THE OBTAINING OF SUCH FURTHER VOTES AS MAY BE REQUIRED AND
FURTHER SOLICITATIONS OF PROXIES IN FAVOR OF SUCH ITEM 1. PROXIES VOTED IN FAVOR
OF ITEM 1 AND PROXIES RETURNED WITHOUT AN INDICATION AS TO HOW THE PROXY IS TO
VOTE ON ITEM 1 WILL BE VOTED IN FAVOR OF ITEM 2.
<PAGE>
NYNEX CABLECOMMS GROUP INC.
FORM OF PROXY
FOR USE AT THE SPECIAL MEETING OF SHAREHOLDERS TO BE HELD AT
1 FINSBURY AVENUE, LONDON, EC2M 2PP, UNITED KINGDOM ON APRIL 24, 1997
AND AT ANY ADJOURNMENT THEREOF. THE SPECIAL MEETING OF SHAREHOLDERS OF
NYNEX CABLECOMMS GROUP INC. WILL COMMENCE IMMEDIATELY AFTER THE CONCLUSION
OF THE EXTRAORDINARY GENERAL MEETING OF NYNEX CABLECOMMS GROUP PLC
WHICH WILL COMMENCE AT 9:00 AM.
PROXY SOLICITED BY THE BOARD OF DIRECTORS
CAPITALIZED TERMS USED HEREIN AND NOT OTHERWISE DEFINED SHALL HAVE THE
RESPECTIVE MEANINGS ASSIGNED TO THEM IN THE PROXY STATEMENT.
I/We (name/s in
full) ________________________________________________ (Block Letters) of
- --------------------------------------------------------------------------------
being (a) holder(s) of NYNEX CableComms US Shares of Common Stock hereby appoint
Richard W. Blackburn, Sally M. Davis, Paul D. McConville, or, failing any of
them, the chairman of the meeting, or ________________________________________
as my/our proxy, to attend and to vote for me/us and on my/our behalf at the
NYNEX CableComms US Special Meeting and at any adjournment thereof.
Please indicate with an X in the space below how you wish your votes to be
cast.
<TABLE>
<CAPTION>
RESOLUTIONS PROPOSED BY THE BOARD OF DIRECTORS FOR AGAINST ABSTAIN
<S> <C> <C> <C>
1. To approve amendments to the Restated Certificate of
Incorporation to authorize the directors to "de-staple" up
to 20% of the outstanding shares of Common Stock
2. To approve and adopt the Merger Agreement and approve the
Merger
3. To adjourn the NYNEX US Special Meeting to the same place
and to such time no less than seven days later as the above
named proxies shall determine
</TABLE>
Dated: _________, 1997. Signature/s or Common
Seal____________________________
THE BOARD OF DIRECTORS OF NYNEX CABLECOMMS US RECOMMENDS A VOTE FOR ITEMS 1,
2 AND 3.
<PAGE>
NYNEX CABLECOMMS GROUP INC.
FORM OF PROXY (CONTINUED)
Notes:
1. In order to be effective, this Form of Proxy, duly completed and signed,
together with any authority under which it is signed or a valid certified copy
of the authority, should be deposited at the office of The Royal Bank of
Scotland Plc, Registrar's Department, PO Box 82, Caxton House, Redcliffe Way,
Bristol, BS99 7YA, not less than 48 hours before the time of the NYNEX
CableComms US Special Meeting. For your convenience, a pre-addressed envelope
has been included with this Form of Proxy.
2. If the appointee is a corporation, this Form of Proxy must be executed
under its common seal or under the hand of an officer or attorney duly
authorized in that behalf.
3. A holder of record of NYNEX CableComms US Shares of Common Stock on March
21, 1997 (the "Record Date") is entitled to attend and vote at the NYNEX
CableComms US Special Meeting and is also entitled to appoint one or more
proxies to attend and vote instead of the shareholder. A proxy need not be a
shareholder of NYNEX CableComms US. Holders of NYNEX CableComms Units or NYNEX
CableComms ADSs, each representing NYNEX CableComms UK Ordinary Shares and NYNEX
CableComms US Shares of Common Stock, whose transfer or purchase settles after
the Record Date and who wish to attend and/or vote at the NYNEX CableComms US
Special Meeting must arrange with the seller to receive an executed proxy from
the holder of record on the Record Date of such NYNEX CableComms Units or NYNEX
CableComms ADSs.
4. Completion of this Form of Proxy will not prevent the holder from
attending and voting in person should he or she wish to do so.
5. If this Form of Proxy is duly signed and appoints a proxy other than Mr.
Blackburn, Ms. Davis and Mr. McConville, or failing any of them, the chairman of
the meeting, but without an indication as to how the proxy must vote on a
particular resolution, in accordance with the listing requirements of the London
Stock Exchange, the proxy will vote or abstain in his discretion.
6. IF MR. BLACKBURN, MS. DAVIS, MR. MCCONVILLE, OR, FAILING ANY OF THEM, THE
CHAIRMAN OF THE MEETING IS APPOINTED AS PROXY, BUT WITHOUT AN INDICATION AS TO
HOW THE PROXY MUST VOTE ON A PARTICULAR RESOLUTION, SUCH PROXY WILL VOTE FOR
ITEMS 1, 2 AND 3, IN ACCORDANCE WITH THE RECOMMENDATION OF THE BOARD AND ON ANY
OTHER BUSINESS BEFORE THE MEETING WITH ALL POWERS THE HOLDER WOULD POSSESS IF
PERSONALLY PRESENT; PROVIDED, HOWEVER, THAT NO PROXY THAT IS VOTED AGAINST
EITHER OF ITEM 1 OR 2 WILL BE VOTED IN FAVOR OF THE ADJOURNMENT DESCRIBED IN
ITEM 3 PROPOSED TO PERMIT, IF NECESSARY, THE OBTAINING OF FURTHER VOTES AS MAY
BE REQUIRED AND FURTHER SOLICITATIONS OF PROXIES IN FAVOR OF SUCH ITEM 1 AND/OR
2. PROXIES VOTED IN FAVOR OF ITEM 1 OR ITEM 2 AND PROXIES RETURNED WITHOUT AN
INDICATION AS TO HOW THE PROXY IS TO VOTE ON ITEM 1 OR ITEM 2 WILL BE VOTED IN
FAVOR OF ITEM 3.
