Updated July 29, 2026. Quick answer: The difference is who has to agree. A tender offer is organised by the company, so consent is built in. A secondary sale is you finding your own buyer — which runs into your share agreement’s transfer restrictions and any right of first refusal, and separately into securities law, because you are reselling restricted stock and need an exemption of your own.
Two different gates
| Company-run tender offer | Secondary sale you arrange | |
|---|---|---|
| Who organises it | The company | You |
| Company consent | Implicit — it created the offer | Required, and often refused |
| Right of first refusal | Not engaged in the usual structure | Typically engaged |
| Your securities-law position | The company’s process addresses it | Yours to solve |
| Price | Set by the offer, same for everyone | Negotiated, and usually worse |
| Timing | A fixed window | Whenever you can clear the gates |
The resale exemption, and its conditions. 15 U.S.C. §77d(a)(7) provides an exemption for resales to accredited investors, and the conditions live in §77d(d). One of them is easy to miss and purely mechanical — §77d(d)(8), the “Outstanding class requirement”: “The transaction is with respect to a security of a class that has been authorized and outstanding for at least 90 days prior to the date of the transaction.” Others include that each purchaser is an accredited investor and that the seller does not engage in general solicitation.
The information condition is the one that stops people. Where the issuer is not a reporting company, the exemption conditions require the seller to obtain and furnish specified information about the issuer to the buyer. You are being asked to supply company information you may not have and the company may not give you. That is frequently the practical end of a secondary sale, not the transfer restriction everyone expects.
The alternative holding period
Rule 144 offers a different route, and for a non-reporting issuer its holding period is one year rather than six months. That is the same rule family that governs resales after a company goes public, where the period shortens once the issuer has been reporting for ninety days — before that, and while private, the longer clock is the one that applies.
Which is why the tender offer is usually the better door. Not because the price is generous, but because the company has already solved consent, process and securities-law position on your behalf. The cost of that convenience is that you take the offered price on the offered timetable — and with less mandated disclosure than a public shareholder would get.
Sources
15 U.S.C. §77d(a)(7) and the conditions in §77d(d), including the outstanding-class requirement at §77d(d)(8); 17 CFR §230.501(a); 17 CFR §230.144(d)(1)(ii). Fetched July 2026.
This states what the cited authority says. It is not tax, legal or investment advice. A tender offer runs on documents specific to your company and your grants, and nothing here tells you whether to sell.