While crucial for minority shareholders, it’s important for all company shareholders to know how tag along rights work, as they affect everyone.
Below, we unpack tag-along rights and by the end, you’ll understand why they are a standard clause in Shareholders’ Agreements in Malaysia
What are tag-along rights?
Tag-along rights give minority shareholders the option to join in a sale on the same terms and conditions if the majority shareholder(s) sell their shares to a third party who then becomes the new majority shareholder.
How they protect minority shareholders
Tag-along rights ensure minority shareholders are not stuck in a position where the majority exit the company and leave them with a new controlling shareholder they did not choose and cannot work with.
Such protections are very important in Sdn Bhds whose shares cannot be freely traded, and it is often difficult to find a new buyer for your shares.
Sample tag along clause
Here’s an example of a tag-along clause with all the general protections:
In the event that Shareholders holding more than 50% of the shares in the Company, or if the combined shareholdings of the Shareholders constitute a shareholding of more than 50% in the Company (“Majority Shareholder”’) propose to sell all or part of their shares to a bona fide third-party purchaser and that purchaser will become the majority shareholder, each of the remaining shareholders (“Minority Shareholders”) shall have the right, but not the obligation, to sell a corresponding proportion of their shares, or the full amount of their shares, to the same purchaser on the same terms and conditions as those offered to the Majority Shareholders.
The Majority Shareholders shall be required to procure that the purchaser agrees to purchase the shares of any Minority Shareholders who elect to exercise this right. If the Majority Shareholders fail to do so, they shall not be entitled to transfer their shares to the purchaser.
Without going into specifics, if a company has this clause in their Shareholders’ Agreement, it will be triggered when >50% of shares are being sold to an outside party who gains majority control.
In such a case, minority shareholders can choose to join the sale, and:
- they can sell all or part of their shares, matching the majority’s deal
- they must receive the same price and terms as the majority
- the buyer must agree to include minority shareholders on similar terms
If not, the sale can’t proceed!
Check out our guide to drag and tag-along clauses in Shareholders’ Agreements to see a full breakdown of the wording in this clause.
Application of tag-along rights
Imagine a private company with three shareholders: Abu (60%), Kumar (25%), and Chong (15%).
If Abu wants to sell his entire 60% stake to a third-party and the company Shareholders’ Agreement has the tag-along clause shared above, Kumar and Chong can sell a proportionate percentage of their shares on the same terms.
Since the buyer only wants 60% of the company, the sale is divided proportionally:
- Abu sells 36% (60/100 × 60%)
- Kumar sells 15% (25/100 × 60%)
- Chong sells 9% (15/100 × 60%)
If Kumar and Chong choose to tag along, Abu must procure the buyer to include their shares, and if the buyer refuses, the deal cannot proceed, providing tremendous protection for minority shareholders.
Considerations when drafting tag-along clauses
Whenever millions of Ringgit are on the line, expect loopholes to be found and exploited.
Like any contractual right, the scope of your shareholders’ tag along rights will be limited by the clarity of phrasing.
For instance, not stating that majority shareholders must get a buyer to include minority shareholders could undermine the enforceability of the rights.
Ensure your tag along clause clearly defines when tag along rights are triggered, along with explicit notice periods and mechanisms for exercising the right, and all will be well so get in touch for help!
FAQs on tag-along rights in Malaysia
1. Do tag-along rights guarantee a minority shareholder can sell their shares?
As long as the majority shareholder can procure the new buyer to purchase the minority shares as well, then yes. However, if the new buyer is reluctant to offer the purchase of minority shares, the sale will not proceed.
2. Can tag-along rights apply to partial sales?
Yes, if the clause allows such partial or proportionate sales.
3. Do all minority shareholders have to tag-along together?
No. Tag-along rights are optional. Any minority shareholder can choose to exercise the right individually, even if others decide not to.
4. Can tag-along rights be waived?
Yes. If minority shareholders choose not to exercise this right, and any applicable notice period expires, their right to tag-along would be waived for that particular sale.
5. Must the majority share sale be more than 50%?
While more than 50% is a common threshold, the clause can also specify a higher one, such as 75%.
6. Can tag-along rights apply to smaller share sales?
Typically, tag-along rights are triggered when a majority shareholder sells a controlling stake, as the intent is to allow minority shareholders to exit alongside the controlling party.
Smaller or minority share sales (that do not transfer control or a significant interest) usually do not trigger tag-along rights, unless the shareholders’ agreement expressly says otherwise.
7. Are tag-along rights mandatory in Malaysian shareholders agreements?
No, they are not required by law but are common contractual terms that govern the protection of shareholder rights in the shareholders’ agreement.
Lim Min (also known as Zi Han) is a Trainee Lawyer at Edwin Lee & Partners. She was called to the Bar of England and Wales (Middle Temple) in 2024, ranking 5th in her cohort and receiving the Top Advocate Prize for the Bar Training Course at Cardiff University. Zi Han has hands-on experience in corporate and commercial law, focusing on drafting and reviewing contracts, compliance matters, and legal research. She approaches each task with an analytical mindset and strong attention to detail. She also enjoys the company of people with a good sense of humour.
