Preemptive rights enable existing shareholders to keep ownership in the company and purchase a proportionate number of new shares, thereby preventing their share of ownership from being diluted. They are typically given to existing shareholders upon a merger or acquisition of the company. However, they are subject to restrictions and can be waived under certain circumstances. Here are some of the key issues surrounding preemptive rights.
Protection against dilution
Preemptive rights against dilution allow shareholders to purchase shares of a company before they are publicly available. These rights are particularly beneficial for companies that are early investors. They allow the major stakeholder to maintain ownership percentages while cushioning losses from a lower price. In many cases, companies use this as part of merger and security agreements. However, the terms of the agreements can vary. It is important to understand the differences between preemptive rights and anti-dilution rights.
Consider the following scenario: a company has 100 shares outstanding, and each shareholder has one share equal to 10 percent of the company. If the company makes a secondary offering of 500 shares, the first shareholder with a preemptive right must be given an opportunity to buy 50 of the new shares. If no other shareholders exercise their preemptive right, the remaining shares are available for purchase by the other shareholders on a pro-rata basis.
Waiver of preemptive rights
There are many reasons to waive your preemptive rights. These rights allow you to purchase shares in the future, which helps you protect your prorated equity in the company. Typically, a shareholder will give their first right of refusal (ROFR) to a third party, who may then sell the shares to you. This allows you to protect your percentage of equity interest and your voting power. There are some important steps you should take before you sign a waiver of preemptive rights.
A shareholder’s preemptive rights are not a requirement, but they do protect their investment and voting power. They allow them to purchase shares before they are publicly issued, preventing their ownership percentage from being diluted by other shareholders. These rights also allow shareholders to participate in future financing rounds without limiting their ownership. But there are many other reasons to waive your rights. In this article, we’ll discuss three of them:
Cost of exercising preemptive rights
A shareholder may benefit from the exercise of preemptive rights if the company’s stock price is lower than the current share price of the company’s shares. Under a ratchet-based provision, the shareholder may convert its preferred shares into new shares at the lowest sales price. However, this provision is only useful for large investors who are likely to exert influence over the company’s decisions. In addition, only a few individual investors acquire a large enough stake to benefit from this clause. Early investors and company insiders may benefit from this provision.
In addition, a vendor may benefit from the allocation of funds to its rights. If it acquires the entire package, the prospective purchaser may achieve operating efficiencies. In order to calculate the value of it’s portion of the transaction, the vendor subtracts the value of the non-preemptive rights lands from the price of the entire transaction. The difference is the preemptive rights portion of the total purchase price.
Impact of limiting preemptive rights
In some circumstances, a secured party’s preemptive right can conflict with its own security interest. A case like Geatros J. found that a disposition to an affiliate would destroy the corporate business. While the case was not cited directly, it demonstrates that it is often difficult to distinguish between security interests and preemptive rights. Moreover, the test of whether a disposition would destroy a corporation’s business is not always quantitative, as Geatros J. found in a case involving an oil company.
Nonetheless, despite the ramifications of limiting preemptive rights, some oil and gas attorneys still encounter these issues in their daily practice. In Alberta, for example, the legislature amended the Property Act 13 in 1985 to recognize the right of first refusal as an equitable interest in land. While the amendment would grant the right of first refusal priority under the land Titles Act, it may only affect freehold and unpatented lands.
