§ 6021 — Preemptive rights

New York § 6021

• Jurisdiction: New York
• Law BNK: Banking
• Title 6: Stockholders
• Art. 15: General Provisions Applicable to Banking Stock Corporations, Limited Liability Investment Companies, and Limited Liability Trust Companies

Text

§ 6021. Preemptive rights. 1. As used in this section, the term:\n (a) "Unlimited dividend rights" means the right without limitation as\nto amount either to all or to a share of the balance of current or\nliquidating dividends after the payment of dividends on any shares\nentitled to a preference.\n (b) "Equity shares" means shares of any class, whether or not\npreferred as to dividends or assets, which have unlimited dividend\nrights.\n (c) "Voting rights" means the right to vote for the election of one or\nmore directors, excluding a right so to vote which is dependent on the\nhappening of an event specified in the organization certificate which\nwould change the voting rights of any class of shares.\n (d) "Voting shares" means shares of any class which have voting\nrights.\n (e) "Preemptive right" means the right to purchase shares or other\nsecurities to be issued, as such right is defined in this section.\n (f) "New shares or securities" means new equity shares of any class or\nany shares or other securities convertible into equity shares of any\nclass.\n 2. The preemptive rights provided for in subdivision three of this\nsection shall not apply to new shares or securities of any corporation\nwhose organization certificate is approved on or after the effective\ndate of this subdivision, unless expressly provided for in the\norganization certificate of such corporation, which may incorporate by\nreference the preemptive rights set forth in this section, or further\nmodify such preemptive rights.\n 3. Except as otherwise provided in the organization certificate, and\nexcept as provided in this section, in case of the proposed issuance by\nthe corporation of new shares or securities:\n (a) if the issuance of the new shares or securities would adversely\naffect the unlimited dividend rights of the holders of existing equity\nshares of any class, such holders shall have the right during a\nreasonable time and on reasonable conditions, both to be fixed by the\nboard, to purchase such new shares or securities in such proportions as\nshall be determined as provided in this section; and\n (b) if such new shares or securities are voting shares of any class\nand the issuance of the new shares or securities would adversely affect\nthe voting rights of the holders of existing shares of any class, such\nholders shall have the right during a reasonable time and on reasonable\nconditions, both to be fixed by the board, to purchase such new shares\nor other securities in such proportions as shall be determined as\nprovided in this section.\n 4. The preemptive right provided for in subdivision three of this\nsection shall entitle stockholders having such rights to purchase the\nshares or other securities to be offered for sale as nearly as\npracticable in such proportions as would, if such preemptive right were\nexercised, preserve the relative unlimited dividend rights and voting\nrights of such holders and at a price or prices not less favorable than\nthe price or prices at which such shares or other securities are\nproposed to be offered for sale to others, without deduction of such\nreasonable expenses of and compensation for the sale, underwriting or\npurchase of such shares or other securities by underwriters or dealers\nas may lawfully be paid by the corporation. In case each of the shares\nentitling the holders thereof to preemptive rights does not confer the\nsame unlimited dividend right or voting right, the board shall apportion\nthe shares or other securities to be offered for sale among the\nstockholders having preemptive rights to purchase them in such\nproportions as in the opinion of the board shall preserve as far as\npracticable the relative unlimited dividend rights and voting rights of\nthe holders at the time of such offering. The apportionment made by the\nboard shall, in the absence of fraud or bad faith, be binding upon all\nstockholders.\n 5. Unless otherwise provided in the organization certificate, shares\nor other securities offered for sale shall not be subject to preemptive\nrights under subdivisions two and three of this section if they:\n (a) Are to be issued by the board to effect a merger or offered for\nconsideration other than cash;\n (b) Are to be issued or subjected to options under section one hundred\nforty-a of this chapter;\n (c) Are to be issued to satisfy conversion rights theretofore granted\nby the corporation;\n (d) Are treasury shares; or\n (e) Are part of the shares or other securities of the corporation\nauthorized in its original organization certificate and are issued, sold\nor optioned within two years from the date of filing such certificate.\n 6. Stockholders of record entitled to preemptive rights on the record\ndate fixed by the board under section six thousand four, or, if no\nrecord date is fixed, then on the record date determined under section\nsix thousand four, and no others shall be entitled to the right defined\nin this section.\n 7. The board shall cause to be given to each stockholder entitled to\npurchase shares or other securities in accordance with this section, a\nnotice directed to him in the manner provided in section six thousand\nfive setting forth the time within which and the terms and conditions\nupon which the stockholder may purchase such shares or other securities\nand also the apportionment made of the right to purchase among the\nstockholders entitled to preemptive rights. Such notice shall be given\npersonally or by mail at least fifteen days prior to the expiration of\nthe period during which the stockholder shall have the right to\npurchase. All stockholders entitled to preemptive rights to whom notice\nshall have been given as aforesaid shall be deemed conclusively to have\nhad a reasonable time in which to exercise their preemptive rights.\n 8. Shares or other securities which have been offered to stockholders\nhaving preemptive rights to purchase and which have not been purchased\nby them within the time fixed by the board may thereafter, for a period\nof not exceeding one year following the expiration of the time during\nwhich stockholders might have exercised such preemptive rights, be\nissued or sold to any other person or persons at a price, without\ndeduction of such reasonable expenses of and compensation for the sale,\nunderwriting or purchase of such shares by underwriters or dealers as\nmay lawfully be paid by the corporation, not less than that at which\nthey were offered to such stockholders. Any such shares or other\nsecurities not so issued or sold to others during such one year period\nshall thereafter again be subject to the preemptive rights of\nstockholders.\n 9. Except as otherwise provided in the organization certificate and\nexcept as provided in this section, no holder of any shares of any class\nshall as such holder have any preemptive right to purchase any other\nshares or securities of any class which at any time may be sold or\noffered for sale by the corporation.\n