Expertises connexes

A common clause in shareholders’ agreements is the right of first refusal clause. It differs from the mandatory offer clause in that the right of first refusal clause depends on the shareholder’s willingness to sell his shares, which is not the case with the mandatory offer clause. The right of first refusal, on the other hand, requires the shareholder wishing to dispose of its shares to make an offer to sell to the signatories of the agreement before making any offer to third parties, in accordance with the terms of the agreement.

Each of the shareholders party to the shareholders’ agreement may then purchase the shares offered, in proportion to those already held in the same class, within a period of time specified in the agreement. It is possible to provide in the agreement for a second round, allowing the shareholders who bought the shares in the first round to buy those that had, at that time, remained without a buyer. In the event that not all shares are purchased, the shareholder is then free to sell the remaining shares to persons outside the shareholders’ agreement, under the same conditions.

The addition of a first refusal clause to a shareholders’ agreement has multiple advantages. It ensures that the other shareholders party to the agreement have the power to maintain a proportionate ownership of the shares in the company, since the shares are offered in proportion to the shares already owned by the shareholders. It also has the effect of maintaining the private nature of the company’s business, since it limits the possibility of selling the shares to third parties.

Since the right of first refusal is often considered an essential component of the shareholders’ agreement in certain cases, the Bernier Fournier team will be able to guide you in drafting it. Our lawyers will be able to advise you on the relevance of such a clause as well as on the terms and conditions of the right of first refusal in order to best serve the interests of the company’s shareholders.