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Pre-emption rights — also called rights of first refusal (ROFR) — are clauses written into a company's articles of association or shareholder agreement.

Under the Companies Act 2006, these rights can apply to both new share issues and the transfer of existing shares, depending on how the documents are drafted.




A lot has been spoken in recent weeks, since Amanda Staveley's interest in West Ham became public knowledge, about the WH Holding* articles filed at Companies House⁠ - which are unusually explicit:

1. The Gold family’s shares must first be offered to the existing shareholders, proportionate to their current holdings.

2. The existing shareholders receive (at least) 30 days to accept their first-round entitlement.

3. Shares not taken in round one are offered again to shareholders who accepted their full first-round allocation in round two. That second round also has a minimum 30-day period.

4. Existing shareholders must accept the price and material terms established by the Staveley agreement. They cannot simply veto Staveley; they must actually buy the shares.

5. If they do not purchase everything, Gold can complete with Staveley at no lower price, normally within 90 days of the transfer notice.

Based on the published cap table, Sullivan’s first-round entitlement is approximately 13 percentage points. Exercising it would take him from 38.8% to about 51.8%, giving him genuine majority control. Křetínský’s initial entitlement would be roughly nine percentage points before accounting for any Havrlant restructuring.

The latest reported deadline for the first-round take-up is 2 September. The full two-round process could therefore continue into late September or early October.


The overlooked tag-along clause



Article 47.7 contains another important provision: because Vanessa Gold proposes to sell all her shares, Staveley’s consortium must offer every other shareholder the opportunity to sell all their shares on the same price-per-share and material terms.

They do not have to accept. But it means the transaction contains a contractual route to a complete takeover for Staveley, not merely 25.1%.

It also means reports that Staveley has “made a separate offer” for Sullivan’s holding may be overstating matters. An offer to Sullivan is something the articles appear to require before the Gold sale can complete.


What is Křetínský doing?

Křetínský has agreed to transfer slightly more than 2% to Czech investor Jakub Havrlant, taking 1890s Holdings below 25%. That arrangement is itself subject to pre-emption and is not reflected in West Ham’s official ownership figures.

The apparent purpose is straightforward: Křetínský could then acquire Gold’s 25.1% and finish just below 50%, while Křetínský and the aligned Havrlant holding would collectively exceed 50%. Czech business publications have confirmed the proposed transaction.

That manoeuvre is reportedly designed to avoid a separate 2021 put-and-call clause which could force Křetínský, if he crosses 50%, to purchase Sullivan’s 38.8% at a higher valuation. Bloomberg and The Times have reported that clause, but the underlying put-and-call agreement is private.

Its exact trigger, price and continuing enforceability cannot be independently verified.


Where this now stands



Three outcomes remain credible:

1. Sullivan exercises his approximate 13% entitlement and becomes majority owner on 51.8%, despite no longer being a director.

2. Sullivan declines and Křetínský/Havrlant acquire enough of Gold’s shares to establish a Czech-aligned controlling bloc.

3. Existing shareholders leave enough shares unclaimed for Staveley’s consortium to complete, after EFL and Independent Football Regulator approval.

The latest complication is that the football regulator cannot apparently prevent Sullivan, as an incumbent shareholder, from exercising his contractual entitlement. It can subsequently require him to divest if he fails its ownership-suitability assessment. That inquiry remains active.

The blunt conclusion: Staveley is not currently “closing in on ownership”. She is the contracted, outside buyer waiting behind the existing shareholders.

Sullivan, largely written out of the story after resigning, presently holds the single most consequential right because his first-round allocation alone could give him majority control. The first meaningful answer should come after 2 September; anything claiming the contest is already settled is ahead of the evidence.

* WH Holding is the parent company of West Ham United FC Ltd.

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