This article explains the different types of transfer rules that are often found in LLC agreements, including transfer restrictions, pre-emption rights (ROFR), initial offer rights (ROFO), towing rights, tag along rights, and buy-sell rules. If the valuation procedures are ambiguous (or if agreement on this matter is not reached), the parties must negotiate the assessment of LLC`s interests at a time when they may have conflicting interests. This can lead to tedious and costly negotiations. ROFR requires a member who has received a bona foil offer from a third party for the sale of its LLC shares to first offer those interests to other members before entering into the sale to the third party. In some agreements, the offer is also made to the LLC, which can be made at the same time as the offer to members, or the company may have a right of pre-emption before other members can exercise their rights. Any offer made to the company, members or both must normally be made under the same conditions as those proposed by the third party. Interested members can then purchase the units offered in proportion to their current inventory. The agreement may include provisions that allocate all the interest offered among the members, so that if a member refuses to exercise its ROFR, the remaining members can acquire the refused shares. LLC members own and operate emergency hospitals in Hudson County, New Jersey.
The company agreement provides for a right of pre-emption that gives other members the right to acquire the membership shares “under the same conditions” as a qualifying offer. The defendants entered into an agreement with a third party for the sale of their stake to LLC, the sale being linked to the sale of certain real estate held by the defendant. The defendants concluded the property with the third party before communicating to the manager the notice of sale that would trigger the other member`s right of pre-emption. After the applicants brought an action for breach of the company agreement, the defendants withdrew their first notification of offer and concluded a second contract with the third party to purchase the membership stake. In this second agreement, the condition of the sale of real estate was omitted, since this transaction was already concluded. The defendants submitted to the applicants a second notice of offer for the interests of membership. There was a dispute between the parties before the Delaware Court of Chancery, with the defendants seeking a judgment on the briefs. The Vice-Chancellor considered here the scope of the right of pre-emption and whether it was limited to the defendants` membership interests or whether it also concerned their immovable property.
The plaintiffs insisted that the right of pre-emption be widely interpreted, covering the entire transaction – the interests of membership and real estate. The defendants argued in favour of a narrower scope, limited to the interests of affiliation, since the pre-emption regime of the operating contract did not explicitly include characteristics other than the interests of membership. Referring to the decision of the Court of Opportunity in USA Cable vs. World Wrestling Federation Entertainment, Inc., 2000 WL 875682 (Del. Ch. June 27, 2000), aff`d, 766 A.2d 462 (del. 2000), the Tribunal adopted “the well-founded united states Cable rule that the extent of the right of pre-emption must be interpreted as being limited to the subject matter of the agreement, which contains the right, unless the parties expressly agree otherwise.” In application of this rule, the real estate aspect of the offer fell outside the right of pre-emption. However, the Court rejected the request for a decision on the pleadings of development. The valuation of the transferred shares of LLC is a critical part of any buy-sell disposition. It is important to initiate a clear valuation procedure for the transferred shares of LLC when the parties first enter into the LLC agreement (or the purchase-sale agreement, if separately), given that the interests of the parties are more aligned at this stage. . .