Company Registers - Inspecting & Copying

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 members name and address
  • the date on which the entry of the members 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.

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 members name and address, the date on which the members 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 cents 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 ASTC Settlement 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 cents 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

Companies must keep details of each debenture holders name and address and the amount of debentures held.

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.

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