BERMUDA Law and Practice Contributed by: Natalie Neto, Rachel Nightingale and Marah Smith, Walkers
• a balance sheet at the end of such period; • a statement of changes in financial position or cash flows for the period; • notes to the financial statements; and • an auditor’s report. It is possible to waive the laying of financial accounts and the appointment of an auditor. If all members and directors of a company, either in writing or at a general meeting, agree that in respect of a particular period no financial state - ments or auditor’s report thereon need to be laid before a general meeting or that no auditor shall be appointed, then there shall be no obligation to lay financial statements or appoint an auditor for such period. In that circumstance, the company is still required to maintain records of account at the registered office in such form as will enable the directors to ascertain with material accuracy the financial condition of the company, at least on a quarterly basis. A company listed on the BSX need not send financial statements to the members, but may instead send them summarised financial state - ments. The listed company shall make a copy of the financial statements available for inspection by the public at the company’s registered office. Generally, accepted accounting principles in Bermuda include those of Bermuda or a coun - try or jurisdiction outside of Bermuda. GAAP and IFRS are commonly accepted international standards. 7.4 Transaction Documents In some circumstances, particular information may be required to be disclosed, as set out in 4.2 Material Shareholding Disclosure Threshold , 4.5 Filing/Reporting Obligations , 5.1 Require- ment to Disclose a Deal and 7.1 Making a Bid Public . However, there is no specific requirement
under Bermuda law to disclose the transaction documents in full. Where a board of directors decides to make any disclosure concerning a transaction or the terms of any transaction documents, it should take care to ensure that it does so fairly and on the same basis to all shareholders, to ensure that it is not open to allegations of breach of fiduci - ary duty. In the case of an amalgamation or merger, the notice of general meetings of the sharehold - ers of any Bermuda amalgamating or merging companies must be accompanied by a copy or a summary of the amalgamation or merger agreement. This does not necessarily mean that the agreement or plan of merger or amalgama - tion that contains the commercial terms must be submitted in full for approval. Where there are sensitivities about disclosure of all of the commercial terms, it is common to prepare a short-form “statutory merger or amalgamation agreement” , which contains only the following information, which is required to be included in the agreement by Section 105 of the Companies Act: • the provisions to be included in the consti - tutional documents of the amalgamated or surviving company; • the name and address of the directors of the amalgamated or surviving company; • the manner in which the shares of each amalgamating or merging company are to be converted into shares or other securities of the amalgamated or surviving company; • if any shares are not converting, the amount of money or securities that the holders will receive; and • details of any perfection requirements neces - sary to effect the amalgamation or merger
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