The main rule in the Norwegian law of shares (aksjeloven) stipulates that other shareholders have a right of first refusal when one or more shares are to be sold. In this article, we explain the rules that apply to the right of first refusal, what exceptions exist and what happens if several shareholders wish to exercise the right of first refusal.
Aksjeloven § 4 - 19 Shareholders have the right to take over a share that has changed owner unless other factors are provided in the articles of association.
The purpose of the right of first refusal is to secure the shareholders and the company against third parties. It will also give the shareholders opportunities for greater influence and ownership.
Are there any exceptions to the right of first refusal?
The main rule on pre-emptive rights for existing shareholders will apply as long as the company's articles of association do not stipulate otherwise. In practice, the pre-emptive right will apply both in those cases where a share is desired to be sold, but has not yet been, and in those cases where a change of ownership has taken place. In the company's articles of association, you can make your own provisions on how third parties should be able to buy in and how the right of first refusal is triggered.
The shareholders in a shareholders' agreement or articles of association have the opportunity to decide which of them shall have a right of first refusal, as well as whether third parties shall have the opportunity to purchase with a right of first refusal. If there is nothing about the right of first refusal in the articles of association, it will mean that the Companies Act §§ 4-19 to 4-23 are applicable and the right of first refusal is present in the company.
When is the right of first refusal triggered?
According to Aksjeloven § 4-21, the right of first refusal is triggered by any form of change of ownership, unless otherwise provided by law.
Do I have a duty to notify if I exercise the right of first refusal?
The right of first refusal will not be valid until the company has been notified. If you wish to exercise the right of first refusal, you are therefore obliged to give notice within two months after the company was notified of the change of ownership. If the deadline expires, the rights also expire.
Please note that the deadlines cannot be extended by a separate agreement between the shareholders in the company.
Aksjeloven § 4-20 contains agreements on the company's obligation to botify licensees (eg other shareholders) if shares are or wish to be sold.
What if several of the shareholders want to exercise the right of first refusal?
If several of the shareholders wish to exercise their pre-emptive right, the available shares will be distributed based on the previous ownership shares. If the number does not add up, the current shares shall be distributed by drawing lots. Also note that if there are several share classes in the company, then shareholders in the same class will have a preferential right over shareholders in other share classes.
Should a shareholder agreement be set up?
The shareholders of a company have the opportunity to set up a separate agreement on a solution other than the Aksjeloven or the company's articles of association, if they so wish. With full freedom of agreement, there are few restrictions on what the shareholders can agree on between themselves. Such agreements provide greater flexibility, as well as more confidentiality in comparison to if the conditions had been regulated in the company's articles of association.
The shareholder agreement will regulate the way in which the shareholder exercises their rights in the company, for example through the use of voting rights. The agreement may stipulate that a shareholder commits to vote for a special person in the election of the board, to vote against dividends or not to vote at all.
The agreement may in addition place restrictions on the shareholder's freedom to transfer shares, that the shares shall only be sold to a certain type of people or employees in the company. There may be a requirement that shares can only be sold to a buyer who joins the shareholder agreement. Not least, the price at sale or redemption of shares can be determined. What is included in the shareholders' agreement is decided between the shareholders.
Do you have questions related to share transfer and pre-emptive rights? Contact us and we will be happy to help you.
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