BRITISH VIRGIN ISLANDS Law and Practice Contributed by: Matthew Cowman, Alex Drysdale, Rosalind Nicholson and Omonike Robinson-Pickering, Walkers
5. Negotiation Phase 5.1 Requirement to Disclose a Deal
There is an important shift under the Act as to who is obliged to collect beneficial ownership information. Before 2 January 2025, this was an obligation of the registered agent of the company, who was required to collect beneficial ownership information and upload such information to a secure cloud-based portal. Since 2 January 2025, a company is obliged to col - lect, keep and maintain adequate, accurate and up- to-date information on its beneficial owners. In addi - tion, unless it benefits from an exemption, a company is now under an obligation to file the beneficial owner - ship information with the Registrar. This filing will be made by the company’s registered agent on behalf of the company. Before a registered agent makes any such filing, it is required to verify the beneficial owner - ship information. While beneficial ownership informa - tion currently remains private, those with a “legitimate interest” are now able to apply to access beneficial ownership information, subject to certain exceptions. 5.4 Standstills or Exclusivity Exclusivity for transactions is often requested at the point of entering into formal discussions once a win - ning bidder has been selected. Exclusivity clauses may be incorporated into the heads of terms, or a separate exclusivity agreement may be entered into between the parties. Standstills are not often seen in BVI transactions. 5.5 Definitive Agreements Tender offers may be used in both friendly and hostile transactions. The Act does not prescribe the manner in which a tender offer may be made. It is also pos - sible for an acquisition that originally commenced as a tender offer to be converted into a merger or con - solidation. If the target’s shares are listed, the rules and regula - tions of the applicable stock exchange and any takeo - ver rules (which may have been incorporated into the target’s constitutional documents) will also need to be complied with, with respect to how the tender offer will be communicated to shareholders. Typically, a target shareholder will receive: • an announcement to the shareholders; • an offer document;
Public disclosure is not required under the Act. The BVI does not have a stock exchange, but any com - pany listed on a foreign exchange would of course have to follow those disclosure rules. 5.2 Market Practice on Timing This is not applicable in the British Virgin Islands. 5.3 Scope of Due Diligence Due diligence is a standard requirement and is impor - tant in every transaction. Due diligence will be con - ducted in the same way as in many other onshore jurisdictions (for example, in the UK and the US). The scope of due diligence undertaken will usually be lim - ited to corporate and regulatory matters, and review - ing any contracts that are governed by British Virgin Islands laws. Certain information is publicly available in the BVI, including: • Certificate of Incorporation; • Memorandum and Articles of Association; • current director names; • registered agent and registered office address; and • registered security interests. Any judgments or legal proceedings can be searched at the High Court Registry. At the registered office of the company, the regis - ter of directors and the register of members can be requested. Since 2 January 2025, subject to certain exemptions, BVI companies are required to file their register of members on a private basis with the Registrar of Cor - porate Affairs (the “Registrar”), and to file updates to the register of members on an ongoing basis. The reg - ister of members will not be publicly available unless a company specifically opts to make it so. Unless a company opts otherwise, the register of members will only be available to the company, its registered agent, competent authorities and law enforcement agencies.
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