Bermuda companies and public information
First published in The Royal Gazette, Legally Speaking, March 2019
A variety of documents and information related to Bermuda registered companies must be available for public inspection — whether at the office of the Registrar of Companies, at the Registry of the Supreme Court or at the registered office of the company.
At the Registrar of Companies, publicly available documents include:
- Memorandum of Association (including any alterations);
- Certificate of Deposit of Memorandum of Association;
- Certificate of Incorporation (including on Change of Name);
- Certificates of Amalgamations or Mergers;
- Register of Directors containing the full legal name and address of directors;
- Register of permit companies;
- Licences of local companies operating in Bermuda;
- Licences for exempted companies to transact business in Bermuda;
- Notice of location of registered office;
- Notice of place other than registered office where the Register of Shareholders is kept;
- Particulars of any mortgage or charge registered against the assets;
- Certificates of Continuance;
- Memorandum of Continuance
- Notice of Discontinuance;
- Initial Coin Offering (ICO) offer documents (where these are not being listed on an exchange);
- Documents related to a winding-up proceeding should that have commenced; and
- Any prospectus filed pursuant to a public offering of shares.
Bermuda-registered companies that have a share capital must also file with the Registrar of Companies information relating to (i) the transfer of shares and the registration of estate representatives of deceased shareholders, (ii) the duties of the secretary, and (iii) the quorum requirements for general meetings, which companies are required to specify in their byelaws. Such information is not available for public inspection.
At the Registry of the Supreme Court, the Cause Book will reveal any cause of action commenced against a Bermuda company, while the Register of Judgments will include any judgments registered against a company.
A Bermuda company must have a registered office in Bermuda and must keep its Register of Directors and Officers and its Register of Shareholders and in some cases financial information available for public inspection at that location. The Registrar of Companies may grant permission for a Bermuda-registered company to keep its Register of Shareholders in another location in Bermuda that is convenient for those persons who are entitled to inspect it.
Moreover, a company whose shares are listed on a stock exchange may receive permission from the Registrar to keep branch registers in a place outside of Bermuda provided the Registrar has written notice of such place.
The Register of Directors and Officers must include each director and officer’s full name, position and address. In the case of a local company, the Register must reveal whether the director or officer possesses Bermudian status. Local companies, in addition to the requirement that 60 per cent of its shares be owned by Bermudians, must also be controlled by Bermudians.
The Register of Shareholders must include:
- Names and addresses of all shareholders;
- Number of shares held by each and the amount paid or agreed to be considered to be paid for the share of each shareholder;
- Category of shares and associated voting rights;
- The date on which each shareholder’s name was entered in the register; and
- The date on which each person ceased to be a shareholder.
Shares in a Bermuda company may be held in the name of a nominee. In that instance, only the nominee’s name will appear on the Register of Shareholders.
The Register of Directors and Officers and the Register of Shareholders must be open for inspection during normal business hours (subject to such reasonable restrictions that the Company may impose so that not less than two hours in each day be allowed for inspection). A small fee (not exceeding $5) may be set by the company for review of the Register of Shareholders. Inspection can be made by a shareholder of the company without charge.
Provided notice is given by way of an advertisement in an appointed newspaper, a Bermuda company may close the Register of Shareholders for any period not exceeding 30 days annually.
A company that has shares listed on an appointed stock exchange and sends summarised financial statements to its members, must make a copy of the summarised and full financial statements of the company available for public inspection at the company’s registered office.
Other company records must be maintained at the registered office of the company but are not available for public inspection including:
- Director’s minute book, only available for inspection by directors and officers.
- Shareholder’s minute book, only available for inspection by directors, officers and shareholders.
- Byelaws of the company, only available for inspection by directors, officers and shareholders.
- Financial accounts and audited financial statements, which must be available for inspection by the directors of the company so that they may determine with reasonable accuracy the financial position of the company (except for insurance companies which are required to file an annual statutory financial return and listed companies which file a prospectus with the Registrar of Companies); and
- A beneficial ownership register (except for companies that are exempt from the requirement) which contains minimum required information of registrable persons.
Documents governing the constitution of a company, financial data and correspondence between the company and the Registrar are not disclosable to the public.
Additionally, the Economic Substance Act 2018 provides that a company’s economic substance information will not be disclosable and that the Public Access to Information Act 2010 will not be applicable to economic substance information.
This column should not be used as a substitute for professional legal advice. Before proceeding with any matters discussed here, persons are advised to consult with a lawyer
