Right of first refusal over shares measured at book value: valid

The dominant doctrine has traditionally held that a shareholder’s right to obtain the real or fair value of his/her shares in the event of a share transfer is a requirement that arises from the very purpose of company formation agreements, which entail shared risks and benefits. From this perspective, setting aside the fair value criterion in order to apply that of book value would be unlawful in the absence of adjustment factors. This is what is inferred from arts.107(d)(2) LSC, concerning a private limited company, and 123(6) of the Register of Companies’ Rules («RRM»), concerning a public limited company, and even from art. 175(2)(b) RRM, which allows registration of a unanimous agreement reached between the shareholders on «the criteria and systems to determine the fair value of the shareholdings in the event of inter vivos transfers and transmissions mortis causa or the application of the obligation to transfer under art. 188(3) RRM»…