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What's the exact language in the agreement? is it a "Right of First Refusal" ? Something else?

by YuriNiyazov 3y ago

pfannkuchen 3y ago
If it’s right of refusal wouldn’t the company have to be willing to buy it in order to prevent the other sale?
- YuriNiyazov 3y ago
  No, if I understand right of first refusal correctly, it works like this: You have a buyer. You present to the company that you have a buyer (eg, contract + check deposited in escrow). The company either has to buy the equity from you (at same or better price, depending on how the contract is written) or they have to let the sale to the other buyer go through.
  - sgtnoodle 3y ago
    I think you two are saying the same thing.
    - pfannkuchen 3y ago
      Right, it sounded like the company was refusing to buy while still somehow also preventing the sale. If it was just a right of refusal agreement presumably the OP would not have any problem, since they don’t seem to have any reason to care who buys the shares as long as someone does.
stock-throwaway 3y ago
This isn't a FOFR - it's much more than that. Without pasting in the entire two pages, this sums up how locked down the language is: """ “Transfer” shall mean with respect to any security, the direct or indirect assignment, sale, transfer, tender, pledge, hypothecation, or the grant, creation or suffrage of a lien or encumbrance in or upon, or the gift, placement in trust, or the Constructive Sale (as such term is defined below) or other disposition of such security (including transfer by testamentary or intestate succession, merger or otherwise by operation of law) or any right, title or interest therein (including, but not limited to, any right or power to vote to which the holder thereof may be entitled, whether such right or power is granted by proxy or otherwise), or the record or beneficial ownership thereof, the offer to make such a sale, transfer, Constructive Sale or other disposition, and each agreement, arrangement or understanding, whether or not in writing, to effect any of the foregoing. "Constructive Sale" shall mean, with respect to any security, a short sale with respect to such security, entering into or acquiring an offsetting derivative contract with respect to such security, entering into or acquiring a futures or forward contract to deliver such security, or entering into any other hedging or other derivative transaction that has the effect of materially changing the economic benefits and risks of ownership. Any purported Transfer of any shares of the corporation's stock effected in violation of this section shall be null and void and shall have no force or effect and the corporation shall not register any such purported Transfer. """
- YuriNiyazov 3y ago
  Maybe paste some more. The giant definition of Transfer is fine, and then it says “you can’t transfer unless it’s according to the rules of this section” So what are the rules of the section? The definition is not the rules.
  - stock-throwaway 3y ago
    Here's the meat of it: """ Before shares of common stock of the corporation may Transfer to another prospective holder, such Stockholder must obtain the prior written consent of the corporation upon resolutions duly approved by the Board of Directors, which consent may be withheld by the Board of Directors in its sole discretion. """ There are some exceptions like passing it on to your heirs when you die or if the company IPOs.
    - YuriNiyazov 3y ago
      Ok. So, who at the corporation did you actually get a refusal from? Did you manage to get a resolution in front of the board somehow?
- dragonwriter 3y ago
  So, assuming that the section prohibits transfer without approval (you left out that part), the agreement explicitly includes a forward contract, so what you are looking for is advice on how to break the contract without getting caught, right?
  - stock-throwaway 3y ago
    I'm asking if anyone else has had experience with this. After talking to several credible people, apparently forward sales are not uncommon even though they do violate the contract. The reason being that (1) the company doesnt have to know about it so (2) they don't need to revalue the company and (3) its not going to be widely available to employees so they can start slacking off. Also (4) they say that a company has never sued an employee over this kind of this and probably will never because it would look bad for the company to sue their own early employee. So I'm just wondering: who are these people and are they willing to talk about the experience? I'm told that these deals do happen.

What's the exact language in the agreement? is it a "Right of First Refusal" ? Something else?

pfannkuchen 3y ago

If it’s right of refusal wouldn’t the company have to be willing to buy it in order to prevent the other sale?

YuriNiyazov 3y ago
No, if I understand right of first refusal correctly, it works like this: You have a buyer. You present to the company that you have a buyer (eg, contract + check deposited in escrow). The company either has to buy the equity from you (at same or better price, depending on how the contract is written) or they have to let the sale to the other buyer go through.
- sgtnoodle 3y ago
  I think you two are saying the same thing.
  - pfannkuchen 3y ago
    Right, it sounded like the company was refusing to buy while still somehow also preventing the sale. If it was just a right of refusal agreement presumably the OP would not have any problem, since they don’t seem to have any reason to care who buys the shares as long as someone does.

stock-throwaway 3y ago

This isn't a FOFR - it's much more than that. Without pasting in the entire two pages, this sums up how locked down the language is: """ “Transfer” shall mean with respect to any security, the direct or indirect assignment, sale, transfer, tender, pledge, hypothecation, or the grant, creation or suffrage of a lien or encumbrance in or upon, or the gift, placement in trust, or the Constructive Sale (as such term is defined below) or other disposition of such security (including transfer by testamentary or intestate succession, merger or otherwise by operation of law) or any right, title or interest therein (including, but not limited to, any right or power to vote to which the holder thereof may be entitled, whether such right or power is granted by proxy or otherwise), or the record or beneficial ownership thereof, the offer to make such a sale, transfer, Constructive Sale or other disposition, and each agreement, arrangement or understanding, whether or not in writing, to effect any of the foregoing. "Constructive Sale" shall mean, with respect to any security, a short sale with respect to such security, entering into or acquiring an offsetting derivative contract with respect to such security, entering into or acquiring a futures or forward contract to deliver such security, or entering into any other hedging or other derivative transaction that has the effect of materially changing the economic benefits and risks of ownership. Any purported Transfer of any shares of the corporation's stock effected in violation of this section shall be null and void and shall have no force or effect and the corporation shall not register any such purported Transfer. """

YuriNiyazov 3y ago
Maybe paste some more. The giant definition of Transfer is fine, and then it says “you can’t transfer unless it’s according to the rules of this section” So what are the rules of the section? The definition is not the rules.
- stock-throwaway 3y ago
  Here's the meat of it: """ Before shares of common stock of the corporation may Transfer to another prospective holder, such Stockholder must obtain the prior written consent of the corporation upon resolutions duly approved by the Board of Directors, which consent may be withheld by the Board of Directors in its sole discretion. """ There are some exceptions like passing it on to your heirs when you die or if the company IPOs.
  - YuriNiyazov 3y ago
    Ok. So, who at the corporation did you actually get a refusal from? Did you manage to get a resolution in front of the board somehow?
dragonwriter 3y ago
So, assuming that the section prohibits transfer without approval (you left out that part), the agreement explicitly includes a forward contract, so what you are looking for is advice on how to break the contract without getting caught, right?
- stock-throwaway 3y ago
  I'm asking if anyone else has had experience with this. After talking to several credible people, apparently forward sales are not uncommon even though they do violate the contract. The reason being that (1) the company doesnt have to know about it so (2) they don't need to revalue the company and (3) its not going to be widely available to employees so they can start slacking off. Also (4) they say that a company has never sued an employee over this kind of this and probably will never because it would look bad for the company to sue their own early employee. So I'm just wondering: who are these people and are they willing to talk about the experience? I'm told that these deals do happen.