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The letter provides an opinion on whether a corporation can waive shareholders' pre-emptive rights through a shareholder resolution. The Corporation Code states that shareholders have pre-emptive rights to subscribe to new share issues, unless the right is denied in the articles of incorporation. This right can also be waived with approval of 2/3 of outstanding capital stock. However, the letter concludes that pre-emptive rights are a personal right of each individual shareholder, so waiver must be given individually by any non-subscribing shareholders rather than through a shareholder resolution.
Originalbeschreibung:
Securities and Exchange Commission Opinion - Power to deny pre-emptive right
The letter provides an opinion on whether a corporation can waive shareholders' pre-emptive rights through a shareholder resolution. The Corporation Code states that shareholders have pre-emptive rights to subscribe to new share issues, unless the right is denied in the articles of incorporation. This right can also be waived with approval of 2/3 of outstanding capital stock. However, the letter concludes that pre-emptive rights are a personal right of each individual shareholder, so waiver must be given individually by any non-subscribing shareholders rather than through a shareholder resolution.
The letter provides an opinion on whether a corporation can waive shareholders' pre-emptive rights through a shareholder resolution. The Corporation Code states that shareholders have pre-emptive rights to subscribe to new share issues, unless the right is denied in the articles of incorporation. This right can also be waived with approval of 2/3 of outstanding capital stock. However, the letter concludes that pre-emptive rights are a personal right of each individual shareholder, so waiver must be given individually by any non-subscribing shareholders rather than through a shareholder resolution.
Pryce Properties Corporation 8th Flr., BPI Paseo de Roxas Condominium Center, 8753 Paseo de Roxas, Makati, M.M. Sir: This refers to your letter requesting opinion on the correctness of the view that pre-emptive right of stockholders of good standing can be waived by the corporation itself through a stockholders resolution. The pertinent provision of the Corporation Code provides: "SECTION 39. Power to deny pre-emptive right. All stockholders of a stock corporation shall enjoy pre-emptive right to subscribe to all issues or disposition of shares of any class, in proportion to their respective shareholdings, unless such right is denied by the articles of incorporation or an amendment thereto: Provided, That such pre-emptive right shall not extend to shares to be issued in compliance with laws requiring stock offerings or minimum stock ownership by the public; or to shares to be issued in good faith with the approval of the stockholders representing two-thirds (2/3) of the outstanding capital stock, in exchange for property needed for corporate purposes or in payment of a previously contracted debt." (Emphasis supplied) Thus, unless specifically denied in the articles of incorporation or the issuance fall under any of the exceptions enumerated in the above provision, all stockholders of records shall have the pre-emptive right to subscribe to additional issuances of shares. Accordingly, waiver of such right by all non-subscribing stockholders is necessary. Being a personal right, such waiver should be given individually by the non-subscribing stockholders concerned. (SEC Letter dated October 1, 1981 addressed to Mr. Fernando C. Santico) For purposes of compliance, any evidence of the required waiver is acceptable to the SEC.
(A.C. No. 1928. August 3, 1978.) in The Matter of The IBP Membership Dues Delinquency of Atty. MARCIAL A. EDILLON (IBP Administrative Case No. MDD - 1) .