Court allows access to shareholder register for purpose of making “mini-tender” offer

The court had to consider whether the applicant’s motive for requesting access to the company’s register of members – to make an offer to a small section of the company’s shareholders – was proper.

In doing so, the judge considered the extent to which the court was entitled to examine and take into account the economic merits of the proposed offer.

What happened?

Aviva plc v Litani LLC [2025] EWHC 3134 (Ch) concerned an application to access a listed UK company’s register of members for the purpose of making a “mini-tender” offer to some of the company’s shareholders.

Seeking access to a company’s register of members is a common preliminary step towards making an offer to acquire a listed company’s shares.

This is frequently the case on a proposed takeover of a listed company. Obtaining a copy of a target company’s register of members allows a potential bidder to assess the target’s shareholder base, which in turn may inform the structure of the offer (e.g. whether to make a contractual offer or pursue a statutory scheme of arrangement), as well as certain economic terms and regulatory constraints.

For more information on obtaining access to a company’s register of members, see the box “Who can inspect a UK company’s shareholder register?” below.

Although offers for listed company shares often envisage a full takeover, it is possible to make a tender offer to a specific group of shareholders. This is known as a “partial offer”. Where the target audience is particularly small, the offer may be referred to informally as a “mini-tender” offer.

For more information on “mini-tenders”, see the box “What is a “mini-tender” offer?” below.

In this case, an arbitrage fund applied to the listed company to access a copy of its register of members for the purpose of making a mini-tender offer to some of the company’s shareholders.

The applicant’s request satisfied all the requirements of section 116 of the Companies Act 2006. In particular, the request stated the purpose for which the applicant intended to use information gained from the register of members, which included the following (abridged for ease of reading):

“… for the purpose of making an offer (“Offer”) to shareholders (with a maximum acceptance set at no more than 1% of the issued share capital of the Company as at the business day prior to the date of the Offer) to purchase their shares at a discounted price (discount not to exceed 17.5% of the market value of the Company's shares, the market value being determined as at the business day prior to the date of the Offer).

… [to be made] to all shareholders other than those shareholders which appear to be institutional shareholders, those shareholders which it considers have an unusually large or small shareholding and those shareholders who are registered on the [listed company’s internal share account platform].

… shareholders who accept the Offer may withdraw their acceptance within 14 days of receipt of their acceptance. The Offer will provide clear disclosure of the market price of the shares, and the Offer price relative to that price, as at the business day prior to the date of the Offer, how shareholders may obtain an updated market price and alternative means of selling their shares, should they wish to do so. The Offer will proceed only if it is approved by an authorised person for the purpose of section 21 of the Financial Services and Markets Act 2000. ...

The maximum amount payable to shareholders under the Offer will be deposited with an independent paying agent … prior to the Offer being made. … [The paying agent] will not receive any data comprising the Register and instead will receive information [obtained] from completed forms of acceptance received from shareholders ...”

The listed company applied to court for an order denying the request on the basis that the applicant was not seeking access for a “proper purpose”.

The listed company gave numerous reasons for opposing the access request. These included the following arguments (which we have paraphrased and distilled for brevity).

• The terms of the mini-tender were unattractive and bordering on exploitative. Shareholders were able to obtain a better price for less commission by selling through the listed company’s own sales platform or its registrar, and only “vulnerable, unwary or unsophisticated” shareholders would be likely to accept the mini-tender.
• Such were the terms of the mini-tender that most shareholders to whom it would be directed would not accept it and would simply find it an “unwelcome inconvenience”.
• There was a lack of transparency about the applicant, which was an “unknown quantity”, and the US SEC was investigating an entity related to the applicant. As a result, shareholders could not be confident that anyone accepting the mini-tender would receive a “safe and convenient service”.
• Mini-tenders themselves have been criticised in several jurisdictions, including by regulators such as the SEC. Again, see the box “What is a “mini-tender” offer?” above.
• Granting the request would give the applicant access to details of all the listed company’s shareholders. However, the restricted nature of the mini-tender meant that only a small minority would receive an offer. A “significant majority” of shareholders would therefore be subjected to risks inherent in disclosing and processing their personal data with no corresponding benefit.

It seems clear from the judgment that the company’s opposition, and the arguments it put forward, were motivated by a genuine desire to protect shareholders from what it viewed as a potentially exploitative approach.

What did the court say?

The court dismissed the listed company’s application and allowed access to the register.

The judge addressed each of the company’s objections as follows.

• It is for shareholders to assess the value of an offer – including a mini-tender – compare it with alternatives and decide whether to accept it. The court will not impose its own judgment on the commercial terms of an offer. The fact that an offer may be made for “avowedly commercial” purposes and may be “economically disadvantageous” to shareholders does not automatically mean that it is exploitative, oppressive or immoral.
• It might well be that many shareholders receiving the mini-tender offer would not accept it, but that did not mean that the offer was of no benefit to shareholders and did not, in and of itself, mean that the request was improper.
• There was no good reason to suspect that the applicant would not honour its commitments under any mini-tender, particularly as it had stated that it would lodge the purchase price with an escrow agent and it had previously consummated a similar mini-tender in Canada without incident.
• The fact that there was a lack of transparency regarding the applicant and concerns about its affiliates were irrelevant. The question was whether the request for access was for a proper purpose, not whether applicant was a proper person. The court was not required to “test the character” of the applicant.
• Although concerns have been expressed about mini-tenders, they are not unlawful or subject to specific regulatory control. Criticism of the purposes behind or context of mini-tenders is not enough to justify refusing access to a company’s register of members.
• It is true that the applicant would gain access to information on all members of the listed company and, in that sense, “most members’ data [would be] disclosed to no productive end”. However, there was nothing to suggest that this information would be misused or disclosed onwards, and the fact that information gained through access will not or may not be used does not in itself render an access request improper.

What does this mean for me?

The court’s decision is an important warning for publicly traded UK companies.

Mini-tenders are not an established feature of the UK capital markets landscape, and so this case is, in this respect, isolated. However, listed companies are no strangers to unsolicited – or indeed unwanted – approaches, which may bring with them requests for access to their shareholder register.

The court’s decision shows that the scope for refusing such a request will be limited. Provided the purpose of the request is to make a genuine offer to shareholders, the court is unlikely to be willing or able to deny it.

This will be the case even where the offer is ostensibly uncompetitive or clearly a “bad deal”. The court will leave it to shareholders to reach their own conclusion on the economic merits of a deal.

Companies facing this situation will therefore need to deploy different tactics to protect their shareholders or to deter them from parting with their property in disadvantageous circumstances. For example, the directors may wish or, indeed, decide they are duty-bound to issue a recommendation to shareholders to decline the offer (as both GlaxoSmithKline and AstraZeneca did in response to TCR Capital’s mini-tender offers in 2021).

A company that becomes aware of an unwanted mini-tender or partial offer – particularly an unregulated offer that does not benefit from the protections of the Takeover Code – should consider seeking legal, financial and PR advice at the earliest opportunity.

Directors of the company should stop and think carefully before taking steps to try and defeat an unregulated partial offer. Although the ban on frustrating action in Rule 21 of the Takeover Code will not apply to a non-Code offer, directors must still comply with their fiduciary duties, and certain poison pill tactics will offend these duties.

Although the decision at first glance seems positive for hawkish arbitrageurs, the freedom to gain access to a register is not untrammelled.

Where an applicant seeks access purportedly for the purpose of making an offer, but it is evident there is no intention to do so, the court will surely be more reluctant to permit access. Although the court will not deny a request on purely economic grounds, offer terms that allow the offeror to pull out with ease, or which are subject to fantastical conditions, might well be regarded as a smokescreen for a fishing expedition.

Similarly, if an applicant appears not to have the financial or technical wherewithal to fulfil a proposed offer (however genuine that offer may be), a court might well pause for thought before allowing or refusing a request for access.

A potential acquirer seeking access for the purpose of making an offer (whether a fully-regulated takeover, an unregulated mini-tender or anything in between) may wish to put measures in place to demonstrate its intentions and so justify its access request.

This could include providing proof of funding, drawing specific attention to any discount to market value in the offer price, permitting accepting shareholders to withdraw, identifying a suitable financial adviser who has approved (or will approve) the offer, and providing clear disclosure on how any offer price will be calculated and adjusted.

Access the court’s decision in Aviva plc v Litani LLC [2025] EWHC 3134 (Ch) that a request for access to a company’s register of members to make a mini-tender was not improper