Selling your shares in an issuance can also be referred to as a “Share Transfer” - there are many administrative tasks required to cancel the sellers shares and issue new shares to the new purchaser.
To sell and transfer your shares in an entity (Corporation or Partnership) to another person, you must abide by all of the securities rules, regulations and the clauses contained in your agreements (usually these include a subscription agreement, a shareholders’ agreement, and the issuer’s articles of incorporations) with the entity that you signed your purchase of shares with.
Share Sales and the subsequent transfers may differ substantially with other issuers.
Below is an example using Castleview Park. Please reference the full text in the applicable securities rules, regulations and all applicable agreements - this is only a summary.
Securities Laws and Regulations
A Share Sale and the subsequent Share Transfer must comply with all applicable securities rules and regulations in the province of the seller and the buyer. Generally, any securities issued by way of an exemption from the requirement to publish a prospectus enter into a “closed” system in Canada and cannot be freely resold unless:
- A prospectus is prepared for the Share Transfer;
- An exemption from the requirement to prepare a prospectus is available for the Share Transfer; or
- the issuer of the shares is or becomes a “reporting issuer” in Canada, and any applicable “restricted period” or “seasoning period” has expired.
Share Transfers permissible under each provinces applicable securities rules and regulations will still have to comply with the contractual requirements and processes of the company shares are owned in, outlined below.
1) Articles of Incorporation
The Articles of Incorporation are the issuer’s primary governing document.
Section 5 “Share Transfers” of the Articles of Incorporation, states the following 3 things be present for a Share Transfer to be effective and recorded in the issuer’s share register:
- a duly signed instrument of transfer in respect of the share has to have been received by the issuer;
- if a share certificate has been issued by the issuer in respect of the shares to be transferred, that share certificate has to have been surrendered to the issuer; and
- if a non-transferable written acknowledgment of the shareholder's right to obtain a share certificate has been issued by the issuer in respect of the shares to be transferred, that acknowledgment has to have been surrendered to the Company.
2) Shareholders’ Agreement
The Shareholders’ Agreement is an agreement among all current shareholders in the issuer entered into upon your subscription to shares in the issuer.
Article 5 covers Share Transfers. A summary is provided here:
- The intended transferee of the Share Transfer needs to sign (1) an agreement to be bound by the the Shareholders’ Agreement (2) an agreement to be bound by the Voting Trust and Information Sharing Agreement (this is an annex to the Shareholder Agreement but legally separate agreement) and (3) any other document that the issuer may require to ensure compliance with applicable securities laws. The burden and costs for preparing the foregoing lies with you and/or the intended transferee;
- You will have to share the details of the proposed Share Transfer with the issuer who has a 30 days “right of first refusal”, meaning that the issuer can buy all (or part of) the shares being the subject of the Share Transfer itself (in place of the intended transferee). Any shares not sold to the issuer by virtue of its exercise of such right might subsequently be sold to the intended transferee on conditions not more favorable than proposed to the issuer with the transferee representing its compliance with securities rules.
3) Subscription Agreement
The Subscription Agreement is the instrument through which you acquired your shares in the issuer. Here is a paraphrased summary of Section 5.1, which covers a few acknowledgements related to a potential Share Transfer you will have made:
(b) there is no market for the shares and no market for the shares may ever exist;
(e) any transfer is subject to restrictions set out in the issuer’s Articles of Incorporation, the Shareholders’ Agreement, and the Voting Trust Agreement. Other restrictions may be in place; and
(g) no person has represented that someone might repurchase the shares, that the subscription price can be refunded, that the value or future price of the shares might change, or that the shares will be listed on any sort of exchange.
Process to Transfer Shares
- Make sure that the intended Share Transfer would comply with securities laws and regulations of the province of the Seller and the Buyer (each province has slightly different laws);
- Inform the issuer that you are considering a Share Transfer and communicate required details so that the issuer can decide whether to exercise its right of first refusal;
- If the right of first refusal is not exercised (or in relation to the portion of the proposed Share Transfer not affected)… Draft (or have a third party like a lawyer) draft the required agreements mentioned above, including:
- an acceptable share transfer instrument,
- a surrender of the share certificate (if any),
- an Agreement to be bound by the Shareholder Agreement and an Agreement to be bound by the Voting Trust and Information Sharing Agreement Agreement;
- Have such agreements accepted by the issuer and signed by the relevant parties; and
- The Share Transfer will only be effective upon the relevant inscriptions in the share register having been performed by the issuer.
How much does it cost?
The hardest aspect of executing a Share Transfer is receiving the written approval from the issuer. The issuer must expend resources (time and money) to work with, qualify and assist in the Share Transfer while maintaining compliance with applicable securities laws and regulations.
One could expect the legal fees for an approved Share Transfer to exceed $500 CAD due to all agreements, filings and administrative work that must occur.