Preemptive rights of shareholders
(1)Except to the extent limited or denied by this section or by the articles of incorporation, the shareholders of a corporation incorporated prior to June 15, 1987, shall have preemptive rights as defined in this section. By articles of amendment or restated articles filed after such date, a corporation may eliminate preemptive rights under this subsection by including in the articles of amendment or restated articles that “the corporation elects to waive preemptive rights,” or words of similar import, in which event this subsection shall no longer apply to the corporation.
(2)Except as provided in subsection (1) of this section, the shareholders of a corporation do not have a preemptive right to acquire the corporation’s unissued shares except to the extent the articles of incorporation so provide.
(3)A statement included in the articles of incorporation that “the corporation elects to have preemptive rights,” or words of similar import, means that the following principles apply except to the extent the articles of incorporation expressly provide otherwise:
(a)The shareholders of the corporation have a preemptive right, granted on uniform terms and conditions prescribed by the board of directors to provide a fair and reasonable opportunity to exercise the right to acquire proportional amounts of the corporation’s unissued shares upon the decision of the board of directors to issue them.
(b)A shareholder may waive the shareholder’s preemptive right. A waiver evidenced by a writing is irrevocable even though it is not supported by consideration.
(c)There is no preemptive right with respect to:
(A)Shares issued as compensation to directors, officers, agents or employees of the corporation, its subsidiaries or affiliates;
(B)Shares issued to satisfy conversion or option rights created to provide compensation to directors, officers, agents or employees of the corporation, its subsidiaries or affiliates;
(C)Shares authorized in articles of incorporation that are issued within six months from the effective date of incorporation; or
(D)Shares sold other than for money.
(d)Holders of shares of any class without general voting rights but with preferential rights to distributions or assets have no preemptive rights with respect to shares of any class.
(e)Holders of shares of any class with general voting rights but without preferential rights to distributions or assets have no preemptive rights with respect to shares of any class with preferential rights to distributions or assets unless the shares with preferential rights are convertible into or carry a right to subscribe for or acquire shares without preferential rights.
(f)Shares subject to preemptive rights that are not acquired by shareholders may be issued to any person for a period of one year after being offered to shareholders at a consideration set by the board of directors that is not lower than the consideration set for the exercise of preemptive rights. An offer at a lower consideration or after the expiration of one year is subject to the shareholders’ preemptive rights.
(4)For purposes of this section, “shares” includes a security convertible into or carrying a right to subscribe for or acquire shares. [1987 c.52 §46; 1987 c.579 §3; 1991 c.883 §2]
Section 60.174 — Preemptive rights of shareholders,