Ochrana menšinových akcionářů v obchodním zákoníku

Act No. 142/1996 Coll. amending the Commercial Code strengthened the minority shareholders’ protection. The individual shareholders’ rights can be affected in various ways. These can be a limitation of the shareholder’s capacity to participate in the company control and asserting its will, consequent change of the rights attached to the share, change in the proportion of the individual shareholder’s share to the registered capital of the company or the net commercial capital, a decrease of the share price and a weakened minority shareholders’ position as a result of the acquisition by a certain person or persons of one half or more shares of the company, threatening the shareholders’ property interests resulting from a contract on the transfer of profit, injury done to the shareholder’s rights through a general meeting resolution if inconsistent with the regal rules or the articles of association of the company, etc. In order to protect them against these risks, the law provides the minority shareholders with certain legal instruments. Some can only be employed by the qualified minority represented by a shareholder or shareholders holding shares or interim certificates whose nominal value exceeds at least 10% of the registered capital. A right is conferred on these to ask the board of directors to convene extraordinary general meeting in order to discuss the affairs in question. Then it is their right to require that the board of directors put an issue on the agenda of the general meeting, require that the supervisory board review how the board of directors exercises its range of powers in the given areas, require that the supervisory board assert damages claim against the member of the board of directors, etc. Another instrument of the minority shareholders’ rights is the so-called shareholder action, applicable in case the board of directors fail to act. Provided the supervisory board or the board of directors fails to comply with the minority shareholders’ request without undue delay, the shareholders themselves have the right to claim damages or have the issue price of the shares paid up. There are other possibilities of protection that every shareholder is provided with by law, regardless of his share proportion to the company capital. These include especially the obligation of the company to offer to buy the shares of those shareholders who had not voted for changing the class of the shares, or for restricting their transferability, or for abolishing their public tradability. In case of an increase of registered capital through the subscription of new shares, each shareholder has a pre-emption right to subscribe new shares to the extent corresponding to the current proportion of his shares to the company capital – provided the shares are paid up by monetary contributions. This pre-emption right is separately transferable and can be neither limited nor excluded by the articles of association. All the shareholders participate in the increase of the registered capital from the company’s own sources, proportionately to the nominal values of their shares. In case of the combined increase of registered capital, the increase by way of non-monetary contributions as well as the exclusion or restriction of the pre-emption right of shareholders is against law. For the purposes of the reduction of registered capital, the law prescribes that the company should primarily employ its own shares or interim certificates it possesses. If the capital is reduced by way of bringing down the nominal value of the shares, this must be effected proportionately in all shares of the company. The shareholders are protected by law in case of consolidation, amalgamation, division, as well as the reconstruction of the company resulting in a new form of a company or a cooperative. Shareholders’ interests can also be endangered if one shareholder or a group of shareholders acquires a decisive part in the publicly tradeable shares to which a right to vote is attached. Therefore an obligation of the decisive share acquirer has been set by law to make a public proposal to the given group of the other shareholders for a contract of purchase of their shares. The law provides the shareholders also with the possibility of protection against the consequences of such a decision of the general meeting that would be inconsistent with the legal regulations or articles of association. The protection consists in the right to seek a decree by court on the invalidity of such a resolution. Also a contract entailing the obligation of the public limited company to transfer the profit onto the person that holds the company may endanger the shareholders’ rights. The law then stipulates the parent company obligation to provide the other shareholders with compensation.