4.5 Right of First Offer.
(a) Grant to Corporation and Other Shareholders. Each Shareholder unconditionally and irrevocably grants to the Corporation first and the other Shareholders the second right of first offer to purchase all or any portion of Shares that such Shareholder may propose to Transfer at the same price and on the same terms and conditions as those offered to the prospective transferee as provided herein. Notwithstanding anything set forth in this Section 4.5 to the contrary, the provisions of this Section 4.5 shall not apply to (i) a Permitted Transfer made in accordance with Section 4.1 hereof, (ii) a Transfer pursuant to the exercise of Tag-Along Rights under Section 4.6, (iii) a Transfer in connection with a Sale of the Corporation, or (iv) a Transfer upon the occurrence of a Triggering Event under Article 6.
(b) First Offer Notice. Prior to making any Transfer of any Shares (other than a Permitted Transfer), the transferring Shareholder (the “Transferring Stockholder”) will deliver a written notice (the “Offer Notice”) to the Corporation and the other Shareholders. The Offer Notice will disclose in reasonable detail the proposed number of Shares to be transferred, and the proposed purchase price and terms and conditions of the proposed Transfer.
(c) First Offer Rights. The Corporation may elect to purchase some or all of the Shares specified in the Offer Notice at the price and on the terms specified therein by delivering written notice of such election (the “Company Notice”) to the Transferring Shareholder and the other Shareholders within ten (10) Business Days after the delivery of the Offer Notice. If the Corporation does not exercise its right of first offer with respect to all Shares subject to such proposed Transfer, the Corporation will, no later than the first Business Day after such ten (10) Business Day period deliver written notice to the other Shareholders stating the number of Shares as to which the Corporation has exercised such right. Each of the other Shareholders may exercise its right (the “Exercising Shareholder”) to purchase all of the Shares not being purchased by the Corporation (the “Remaining Shares”) by delivering notice to the Transferring Shareholder and the Corporation within five (5) Business Days after delivery of the notice from the Corporation.
(d) Forfeiture of First Offer Rights. To the extent that the Corporation and the other Shareholders have not elected to purchase all of the Shares being offered by the Transferring Shareholder as specified in the Offer Notice within the time periods specified in Section 4.5(c), then the Corporation and the other Shareholders will be deemed to have forfeited any right to purchase the Shares, the Transferring Shareholder will be free to sell such Shares at a price no less than the price per share specified in the Offer Notice and on other terms no more favorable to the transferee(s) than offered to the Corporation and the other Shareholders in the Offer Notice within thirty (30) days of the termination of the five (5) Business Day period set forth in Section 4.5(c) hereof. If the Transferring Shareholder does not close the Transfer on the terms contained in the Offer Notice within such thirty (30) day period, the Transferring Shareholder must again offer such Shares to the Corporation and the other Shareholder s under this Section 4.5.
(e) First Offer Closing. If the Corporation or the other Shareholders have elected to purchase Shares from the Transferring Shareholder, the closing of the purchase of such Shares will take place, and all payments from the Corporation and the other Shareholders will have been delivered to the Transferring Shareholder, within thirty (30) days of the termination of the five (5) Business Day period set forth in Section 4.5(c) hereof.
4.6 Tag-Along Right.
(a) Notice. If a Shareholder proposes a Transfer of any of its Shares (other than a Permitted Transfer)(the “Selling Shareholder”), the Selling Shareholder shall deliver an Offer Notice with the information as required under Section 4.5(b) above, to the Corporation and the other Shareholders. The other Shareholders may elect to exercise tag-along rights and participate on a pro-rata basis in the Transfer on the same terms and conditions specified in the Offer Notice (a “Tag-Along Right”), so long as (i) the Selling Shareholder owns at least thirty percent (30%) of the Shares of the Corporation; and (ii) such Selling Shareholder is proposing to transfer all of its Shares of the Corporation in one or a series of transactions. The other Shareholders who desire to exercise a Tag-Along Right (each a “Tag-Along Shareholder”) must deliver to the Selling Shareholder a notice to that effect (the “Tag-Along Notice”) within five (5) Business Days after delivery of the Offer Notice.
(b) Tag-Along. The Tag-Along Shareholder who exercises its Tag-Along Right by delivering the Tag-Along Notice as provided in Section 4.2(a) may include in the Transfer all or any part of such Tag-Along Shareholder’s Shares equal to the product obtained by multiplying (i) the number of Shares proposed to be transferred in the Offer Notice by (ii) a fraction, the numerator of which is the number of Shares owned by such Tag-Along Stockholder before consummation of the proposed Transfer and the denominator of which is the total number of shares of Shares owned, in the aggregate, by all Shareholders. To the extent one or more of the Shareholders exercise such right of participation in accordance with the terms and conditions set forth herein, the number of Shares that the Selling Shareholder may sell in the proposed Transfer will be correspondingly reduced.
(c) Tag-Along Stockholder Deliveries. The Tag-Along Shareholder will effect its participation in the proposed Transfer by promptly delivering to the Selling Shareholder for transfer to the prospective transferee one or more stock certificates, properly endorsed for transfer to the prospective transferee, representing the number of Shares that such Tag-Along Shareholder elects to include in the proposed Transfer.
(d) Tag-Along Terms. The terms and conditions of any sale pursuant to this Section 4.6 will be memorialized in, and governed by, a written purchase and sale agreement with customary terms and provisions for such a transaction.
(e) Forfeiture of Tag-Along Rights. To the extent that the other Shareholders have not elected to participate in the Transfer of the Shares being proposed by the Selling Shareholder as specified in the Offer Notice, then the other Shareholders will be deemed to have forfeited any right to sell such Shareholder’s Shares and the Selling Shareholder will be free to sell such Shares to the transferees identified in the Offer Notice at a price no less than the price per share specified in the Offer Notice and on other terms no more favorable to the transferee(s) than offered to the other Shareholders in the Offer Notice within forty (40) days of the date of the Offer Notice. If the Selling Shareholder and the transferees identified in the Offer Notice do not close the Transfer on the terms contained in the Offer Notice within such 40 (forty) day period, the Selling Shareholder must again offer such Shares to the other Shareholders under this Section 4.6.
(f) Tag-Along Closing. Each stock certificate the Tag-Along Shareholder delivers to the Selling Shareholder pursuant to Section 4.6(c) hereof will be transferred to the prospective transferee against payment therefore in consummation of the sale of the Shares pursuant to the terms and conditions specified in the Offer Notice and the purchase and sale agreement, and the Selling Shareholder will concurrently therewith remit to the Tag-Along Shareholder the portion of the sale proceeds to which such Tag-Along Shareholder is entitled by reason of its participation in such sale. To the extent that the prospective transferee refuses to purchase Shares from the Tag-Along Shareholder exercising tag-along rights hereunder, the Selling Shareholder will not sell to such prospective transferee any Shares unless and until, simultaneously with such sale, the Selling Shareholder purchases all securities subject to the Tag-Along Right from the Tag-Along Shareholder.
4.7 Drag-Along Right. If both Newmark and Greenstein approve, by vote at a duly called meeting of the Shareholders or written consent, a transaction that qualifies as a (i) the merger, consolidation, sale of stock, recapitalization or other transaction or series of transactions involving the Company (other than the bona fide issuance of securities by the Company for capital raising purposes) in which the holders of the Company's outstanding shares immediately before such merger, consolidation, sale of stock, recapitalization or other transaction do not immediately after such transaction, as a result of their holdings in the Company, retain stock representing a majority of the voting power of the surviving entity of such transaction; or (ii) the sale, lease, exclusive license, transfer or other disposition, in a single transaction or series of related transactions, by the Company or any subsidiary of the Company of all or substantially all the assets of the Company taken as a whole, (such a transaction a “Sale of the Corporation”), then each Shareholder hereby agrees with respect to all Shares that such Shareholder owns or over which it otherwise exercises dispositive power:
(A) whether or not such transaction requires the approval of stockholders, (i) if the matter is to be brought to a vote at an annual or special meeting of the stockholders, after receiving proper notice of any meeting of stockholders of the Corporation to vote on the approval of a Sale of the Corporation, to be present, in person or by proxy, as a holder of Shares, or Person entitled to vote Shares or Person with dispositive power, at all such meetings and be counted for the purposes of determining the presence of a quorum at such meetings; and (ii) to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of such Sale of the Corporation and in opposition of any and all other proposals that could reasonably be expected to delay or impair the ability of the Corporation to consummate such Sale of the Corporation; and
(B) each Shareholder agrees to sell all Shares of the Corporation beneficially held by such Shareholder (or in the event that each of Newmark and Greenstein is selling fewer than all of his Shares, Shares in the same proportion as each of Newmark and Greenstein is selling) to the Person to whom Newmark and Greenstein propose to sell their Shares, (i) for the same per-share consideration for each Share, and (ii) on the same terms and conditions as Newmark and Greenstein (including, without limitation, with respect to participation in any escrow or earn-out, if any) except to the extent a Shareholder is entitled to receive a different per-share consideration as a result of a class or series of securities held by him, her or it; provided, however, that Shareholders will not be required to sell their Shares unless the liability for indemnification, if any, of each Shareholder in such Sale of the Corporation is several and not joint, and is pro rata in accordance with such Shareholder’s relative stock ownership of the Corporation, and will not exceed the consideration payable to such Shareholder, if any, in such transaction (except in the case of potential liability for fraud or willful misconduct by such Shareholder);
(C) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to, or oppose, challenge or seek to delay, such Sale of the Corporation;
(D) to execute and deliver all related documentation and take such other action in support of the Sale of the Corporation as shall reasonably be requested by the Corporation; and
(E) not to deposit, and to cause each Affiliate of such Shareholder not to deposit, except as provided in this Agreement, any Shares owned by such Shareholder or Affiliate in a voting trust or subject any such voting securities to any arrangement or agreement with respect to the voting of such shares of capital stock, unless specifically requested to do so by the acquiror(s) in connection with a Sale of the Corporation.
I did not offer any part to anyone yet. What would be the step to sell to my partners? Do I have to go through all the steps? If I do offer it to a specific shareholder in my company, do I have to:
- offer first to the company
- Then to each shareholder based on their % shares owned?
So, my question is simple, can I offer this to any one shareholder without going through the steps (Right of First Offer, Tag-Along and Drag-Along Rights)
This is not what I was looking for. Here it is again...
- If I to sell my shares to 1 existing shareholder, what will I be required to do and the steps. Specially, If I own 45% another one 45% and 2 others each 5%. If I offered to one of them, will the other have option to purchase first a part of it based on their %? or because they are shareholders I do NOT need to offer it first to the company or to the other shareholders. My understanding is that when I offer it to someone from the outside then I need to go through the steps and offer it to the company first and then to the shareholders.
I sent you the whole section that talks about this in two parts. Did you look through all of it? here is everything...
ARTICLE 4 RESTRICTION ON TRANSFER OF SHARESExcept as otherwise expressly permitted in this Agreement, no Shareholder may, directly or indirectly, sell, transfer, negotiate, pledge, assign, or in any other way dispose of (any such action, a “Transfer”) any Shares without first obtaining the prior unanimous written consent of the other Shareholders. 4.1 Permitted Transferees.(a) Subject to Section 4.1(c) below, (i) a Shareholder may Transfer with or without consideration, some or all of such Shareholder’s Shares to an Affiliate of such Shareholder (the “Affiliate Transferee”); “Affiliate” means, with respect to any Person, any Person which, directly or indirectly, controls, is controlled by, or is under common control with such Person including, without limitation any general partner, officer or director of such Person. “Person” means an individual, a partnership, a corporation (for profit or non-profit), limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization and a governmental entity or any department, agency or political subdivision thereof.(b) Subject to Section 4.1(c) and Section 6.2 below, upon the death of any Shareholder who is a natural Person, such Shares may be distributed by the will or other instrument taking effect at death of such holder or by applicable laws of descent and distribution to such holder’s estate, executors, administrators and personal representatives, and then to such holder’s heirs, legatees or distributees. A Transfer permitted pursuant to this Section 4.2(b) and 4.2(a) shall be a “Permitted Transfer”.(c) No Permitted Transfer will be effective unless the transferee of such Shares (each, a “Permitted Transferee”) has delivered to the Corporation a written acknowledgment and agreement in form and substance reasonably satisfactory to the Corporation that such Shares to be received by such Permitted Transferee will be subject to all of the provisions of this Agreement and that such Permitted Transferee will be bound by, and will be a party to, this Agreement as the holder of the Shares in the same capacity as the transferring or deceased Shareholder. 4.2 Closing of Permitted Transfers. A Shareholder transferring or distributing Shares pursuant to a Permitted Transfer shall deliver (or its legal representative(s) shall deliver) the following to the Corporation prior to such Permitted Transfer:(a) The certificate or certificates evidencing the Shares to be transferred or distributed, duly endorsed in blank for transfer or accompanied by duly executed blank stock powers;(b) The execution of necessary documentation to make such Transferee a party to this Agreement; and(c) Opinion of counsel reasonably acceptable to the Corporation that such Transfer is permitted by this Agreement, any other agreement to which such Shareholder is bound and is compliance with the applicable securities laws.On receipt of the transferring Shareholder’s Share certificate(s) and compliance with Section 4.2 hereof, the Corporation will cause the Shares to be transferred and reissued to and in the name of the Corporation and/or Permitted Transferee, as the case may be. 4.3 Right of Transfer. Any Shareholder may Transfer such Shares in (i) a Permitted Transfer or (ii) a Transfer if such holder has complied with the provisions of Sections 4.5, 4.6 and 4.7 (Right of First Offer, Tag-Along and Drag-Along Rights) or (iii) a Transfer pursuant to Article 6 hereof.4.4 Impermissible Transfer. Any attempted Transfer of Shares not permitted under the terms of this Section 4 (an “Impermissible Transfer”) will be null and void, and the Corporation will not in any way give effect to any such impermissible Transfer. Each Shareholder agrees that monetary damages for violation of this Agreement pursuant to an Impermissible Transfer is not an adequate remedy, and, therefore, any breach or threatened breach of this Section 4 by a Shareholder will entitle each other Party, in addition to all other remedies available at law or in equity, to seek a temporary or permanent injunction and/or a decree for specific performance.4.5 Right of First Offer.(a) Grant to Corporation and Other Shareholders. Each Shareholder unconditionally and irrevocably grants to the Corporation first and the other Shareholders the second right of first offer to purchase all or any portion of Shares that such Shareholder may propose to Transfer at the same price and on the same terms and conditions as those offered to the prospective transferee as provided herein.
4.6 Tag-Along Right.
Hello, I will try to help you. Please remember I just report or interpret the law, so the outcome may not be what you hoped for. From my reading of your shareholder agreement other shareholders are not permitted transferees. Since you own the shares to be sold, the other shareholders do not fall within the definition of affiliate which is someone who is an officer, director or under common control with you. None of the other shareholders would fit this description. Consequently, you would have to go through the offer notice. Once the notice is submitted, first the corporation has the right to buy the shares. Whether you can prevent the corporation from purchasing the shares will depend on who are the directors. If you are a director and there are three other directors, then given your 45% you in conjunction with the buyer can prevent the corporation from buying the stock. It would then go pro rata to the other shareholders assuming they all wanted to buy.
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