Shareholder agreements are a legal tool for establishing mutual relations between shareholders in a joint-stock company that are not covered by the company's articles of association or legal regulations. Shareholder agreements allow shareholders to flexibly regulate issues relating to the company, the transfer of shares, voting rights, or, for example, investing within the company. One of the frequently regulated institutions in a shareholder agreement is the right of first refusal, the purpose of which is to prevent undesirable changes in the shareholder structure. From a legal point of view, a shareholder agreement is a contractual obligation that regulates the mutual rights and obligations of shareholders and is binding on the parties to the agreement. Another important aspect of the legal nature of shareholder agreements is the issue of their confidentiality, as unlike articles of association, they are not subject to mandatory disclosure in the commercial register, i.e., publication in the collection of documents.
Negotiating preemptive rights in shareholder agreements and articles of association
If a preemptive right is created under a shareholder agreement, the shareholders must determine whether they wish to incorporate the preemptive right into the company's articles of association. We generally recommend incorporating the preemptive right into the articles of association, because in such a case, the preemptive right will be visible to third parties, but we will achieve that in the event of a transfer of shares, the transfer will be invalid.
From 2021, it will no longer be possible to establish a pre-emptive right to shares as a right in rem and register it in the Commercial Register, as Section 32(5) of Act No. 90/2012 Coll., on Commercial Companies and Cooperatives (the "Business Corporations Act") stipulates that: "The provisions of the Civil Code on the establishment and creation of a lien on a share in a corporation shall apply mutatis mutandis to the establishment and creation of a right in rem other than a lien on a share in a commercial corporation that is not represented by a security or book-entry security."
More at ekonom.cz
