Permitted Transfer Clauses In Shareholders' Agreements: Why Careful Drafting Matters

Internal restructurings are frequently treated as unproblematic under shareholders' agreements. This case tests that assumption. It concerns a dispute between a founder and an investor and centres on the question of whether a restructuring triggered an obligation to offer shares following a change of control.

The facts and Dutch law

In June 2022, the Investor and Orange Wings B.V. (Orange Wings) invested EUR 1 million for a 30% stake in a company that has been anonymised in this ruling (the Company). The remaining 70% of the Company was held by the Founder. Less than a year later, the Investor carried out a restructuring. Orange Wings transferred the shares in the Company via its subsidiary Orange Wings Investments BV to a cooperative, Orange Wings Investments Coöperatief I U.A. (OWIC). After the restructuring, OWIC was not exclusively controlled by the Investor, as a third party indirectly held a 9% economic interest in the Company. The Founder considered this