Cel star interconnection agreement with phone company may be questioned
By Gitanjali Singh
November 10, 2003
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The interconnection agreement between GT&T and Cel Star (Guyana) Inc may not be valid as documents secured from the Registrar of Companies show that the signatory to the agreement may not have been a properly authorised person at the time of signing.
The Guyana Telephone & Telegraph Company Limited (GT&T) on April 4th of this year, signed an interconnection agreement with Gregory Libertiny, Vice President business development of Trans World Telecom Caribbean (TWTC) to facilitate a US$20M investment in advanced mobile services in Guyana by Cel Star.
However, there is no authority in the companyís file in the Companies Registry giving Libertiny such authority and the resolution which was filed naming him a director may be challenged as it bears an erroneous receipt number and appears to have been improperly filed.
Wesley Kirton, former chief executive officer and director of Cel Star Guyana Inc had sold the company to TWTC, part of the Hon Group of Companies controlled by Barry Hon. All of the shares in Cel Star Guyana Inc had been issued by Kirton to himself in January 2002, some six months before the sale. However, Cel Star Caribbean Inc, a Delaware company listed as the incorporator of Cel Star Guyana Inc, is challenging the transaction saying that it is the sole lawful owner of all issued and outstanding shares in Cel Star Guyana Inc.
The Delaware firmís lawyer, Peter F Schonenthaler, has notified GT&T and the Attorney General Doodnauth Singh of the suit in the US against Kirton and in the Cayman Islands against TWTC and has cautioned the phone company on the implications for the interconnection agreement should it proceed in its implementation. He has also asked the government to remain a neutral party in the dispute and to take no action for or against either of the parties until the litigation is resolved. The company is in discussion with a local lawyer and may file proceedings locally.
But even outside of the existing legal proceedings, if Libertinyís authority from Cel Star to sign the interconnection agreement cannot be verified, it may in effect make the interconnection agreement null and void. Libertiny could not be contacted by Stabroek News for a comment up to press time and the executive assistant to Pierre Strasser, the new chief executive of Cel Star in Guyana, says he will not be able to speak with this newspaper until next Thursday.
But the phone company is seeking legal counsel on how it should proceed in the matter.
ďWe have been put on notice and I am awaiting legal advice on how to proceed on this issue,Ē Sonita Jagan, GT&Tís chief executive officer told Stabroek News. She expects this advice by Tuesday.
Contacted by Stabroek News for a comment on much of what follows, Mr Kirton indicated that he had been advised by his lawyers not to make any statement at this stage.
Stabroek News has a copy of Cel Starís file with the Registrar of Joint Stock Companies, which contains a resolution from a board meeting of April 2nd appointing Libertiny as a Director of Cel Star Guyana Inc with effect from March 25th 2003. This was purportedly filed on April 11, some six days after the interconnection agreement with GT&T was signed.
This resolution bears a receipt number of 3H78710B with a fee of $800 to show that the document was registered on April 11 but the Deeds Registry cashier produced a copy of the actual receipt that bears that number, which showed a fee of $150 being paid for the filing of a Deed of Gift from Joy Robertson in favour of Lindon Charles. This latter transaction was confirmed in the Deed of Gift record book.
However, a subsequent check of the Companies Register, a large book containing pages for the write up of the transactions of individual companies and which has not been kept up over the years, shows the most up to date record keeping for this company. Two resolutions are entered for April 11th, but they do not correspond with the receipt number on the resolution appointing Libertiny.
One resolution filed and recorded in the Companies Register for April 11th as the appointing of directors is actually the naming of Strasser as the sole signatory to a chequing account at the Bank of Nova Scotia and to conduct all business on behalf of Cel Star in Guyana.
It is not clear which resolution receipt number 3H 78741 refers to because there are several undated entries in the Cel Star file bearing no receipt numbers including the resignations of Wesley Kirton as secretary and Randolph Kirton as a director and a resolution transferring all of the shares in Cel Star from Wesley Kirton to TWTC. It could be that 3H 78741 refers to the resolution appointing Libertiny as a director.
There cannot be two documents filed in the Registry with one receipt and the system for filing documents is such that a fee has to be paid and a receipt issued for that fee. The receipt number and the amount of the fee are then written on the documents being filed and the documents are stamped.
Attorney General, Doodnauth Singh has been notified of the findings by this newspaper and he has sent for the companyís file.
Only the resignation of Michael Kirton as a director and dated April 3rd carried a receipt (verified) and a stamp. However, this is entered in the Company Register as being filed on April 4th. The resignations of the other two Kirtons carried no receipt number, filing fee, stamp or filing date on them.
The said resolution named Strasser as the new company secretary and a director from March 30th, 2003 and Donald Delaski as the new Chairman of Cel Star. The Kirtons signed this but it has no written or stamped filing date, no receipt number or fee written on it.
Stabroek News was told that a local law firm had copied the entire contents of the Cel Star file on April 4th and none of the above-mentioned letters and resolutions was a part of the file at that time.
Additionally, another local law firm sought to obtain the file from the registry about two weeks ago but was informed that it was under lock and key in a senior officialís office who was on leave at the time and the file could not be released without her consent.
Cel Star Guyana Inc was incorporated on January 9th 2001 with German Klaus Knappe and Wesley Kirton the signatories to the Articles of Incorporation, representing Cel Star Caribbean. They were listed as directors in the Notice of Directors and Kirton was named the Secretary as well. The authorized share capital of the firm was 500 000 shares valued $1 each but none were issued at that time.
In May 2001, Cel Star Guyana Inc was issued with a licence to operate a Global Satellite Mobile (GSM) 900MHz cellular network and was subsequently issued with a five-year tax holiday. Government sources said that Knappe was an integral part of those discussions but no due diligence had been done on the company when it applied for a licence or for the concessions.
But on July 21st, 2001, Cel Star Caribbean Inc had sold all of its shares to Blue Sky Communications out of Georgia, which then took possession of the cellular licence and sought to negotiate an interconnection agreement with GT&T. But Blue Sky Communications went out of business subsequently and reports indicate that Cel Star Caribbean was involuntarily dissolved in Florida in September 2001 and in Delaware in March 1st 2002. Involuntary dissolution can arise from being struck off the register as a result of the failure to comply with regulations governing companies.
On January 4th, 2002, Wesley Kirton informed the Registrar of Companies by letter that Cel Star Guyana Incís paid up share capital had been distributed 100% in his favour for $500,000 and on February 3rd of this year, he filed a notice that Knappe had ceased to be a director of the company. The annual returns filed for 2001 and 2002 in February of this year also did not list Knappe as a director. Kirton later sold these 500,000 shares to TWTC.
Cel Star Caribbean appears to have been restored to the register and is challenging Kirtonís actions.