COMPANY
REGISTERS - INSPECTION AND COPYING
Background
| Securities
Registers Required To Be Maintained | Inspection
| Copying | Register of Debenture Holders
| Use of Information Obtained
Background
The Corporations Act 2001
requires listed companies to keep various securities registers and allow
the public access to the information contained in these registers. The
First Corporate Law Simplification Act 1995 brought together requirements
to maintain three securities registers - register of members, register
of option holders and register of debenture holders. There are uniform
requirements dealing with location, access, court correction, evidentiary
value and agents obligations. The information required to be recorded
in these registers has not been significantly altered.
Securities Registers
Required To Be Maintained
Register of Members
The register of members must
contain the following information about each member:
- the member’s name
and address
- the date on which the
entry of the member’s name in the register is made
- the date on which every
allotment of shares takes place
- the number of shares in
each allotment
- the shares held by each
member
- the class of shares
In addition the register
of members must show the name and details of each member who stopped
being a member of the company within the last 7 years and the date on
which the person ceased being a member. This information may be kept
separately from the rest of the register.
Register of Option
Holders
The information contained
in the register of option holders not only includes the usual names,
addresses, date of grant, exercise conditions etc but also an obligation
to record a copy of every document that grants an option over unissued
shares in the company.
Many listed companies use
options for executive remuneration which are usually performance based
with lengthy documents detailing terms and conditions. As these are
unlisted options there is also an obligation to keep with the register
of option holders copies of all such documents.
Register of Debenture
Holders
Companies must keep details
of each debenture holder’s name and address and the amount of debentures
held.
Inspection
Any person is able to inspect
the register on hard copy. If the person and the company agree the information
can be accessed by computer. The information that can be inspected includes
the member’s name and address, the date on which the member’s
name was entered in the register, the date of which every allotment
of shares takes place, the class of shares and the amount paid on the
shares, but not access to share certificate numbers.
This denial of access to
share certificate numbers in all cases is a significant protection against
fraud. The SCH Business Rules also provide for confidentiality of the
HIN/SRN.
Access must be provided to
the public; members may inspect without charge, non-members may be charged
a prescribed fee of $5.00 for each inspection if the register is kept
otherwise than on a computer, but if it is kept on a computer then a
"reasonable amount" is determinable by the company or its
agent so long as it does not exceed the marginal costs of providing
an inspection. Most companies do not charge a fee for register inspections.
Copying
The company must give a copy
of the register (or a part of the register )within 7 days of the request
and receipt of payment if so required up to the prescribed amount. Requests
for a copy of the register on hard copy, the company or its agent will
be permitted to charge a fee of 50¢ for each A4 size copy or on the
basis of each 100 words or part of 100 words. If the register is kept
on computer the company or its agent must provide its data on disk if
so requested. The fee chargeable is again up to the company or its agent
but must not exceed the marginal costs to the company of providing the
data.
The Corporations Act 2001
and the SCH Business Rules also state the details of the register required
to be provided to the offeror under a take over scheme. The information
required and the time to provide it is similar to that mentioned above
but also includes the provision of the HIN/SRN of the securityholders.
The prescribed fee is 10¢ per name and address.
Although the Corporations
Act 2001 does not define "part of the register" the view is
often taken that a request for a copy of a "part of the register"
must identify that part in such a way that the company or its agent
is not required to do any research in order to comply with the request
eg a "part of a register" could be the part according to the
sequence of the index or a numerical factor of the index. Requests based
upon subregisters of the register of members, on geographical boundaries,
by nationality, gender or size of holding etc should be carefully considered
and based upon legal advice.
In respect of requests for
the "Top 20" shareholders most companies do not charge a fee
and occasionally will provide the information by telephone or facsimile.
However, written requests and appropriate fees are usually charged for
providing lists of "Top 50", "Top 100" etc.
Register of Debenture Holders
The requirements for providing
access for inspection and copying etc of the register of debenture holders
is similar to the other registers with one important difference. The
ASC has a class order Policy Statement No 63 (which is subject to Information
Release 95/35) which allows the company or its agent to refuse access
to the register unless there is a contract that the register is not
to be on-sold as well as other restrictions as to the use of the information
obtained.
Use of Information Obtained
The Corporations Act 2001
provides for use as well as misuse of information obtained from the
registers. A person must not send to or contact the member or sell information
unless it is: relevant to holding of the securities; or the exercise
of rights attaching to those securities; or it is approved by the company.
Any person who breaches this provision is liable to compensate any person
who suffers a loss as a of result of the contravention. The person breaching
this section who makes a profit owes a debt to the company equal to
the amount of that profit. It specifically prohibits the use or disclosure
in the form of commercial mailing lists for unsolicited junk mail.
Note: It is usual to ask
the person at the time of requesting the copy to provide a statement
as to the purpose and proposed use of the information.
