---
title: "Prepare a preemptive offer only where the certificate grants the right"
url: "https://ailawframework.com/practice/commercial-and-corporate-advisory/prepare-the-pre-emptive-offer-to-existing-shareholders-before-a-share-is/united-states"
type: "task_jurisdiction_version"
site: "AI Law Framework"
id: "A1-JU20261022-9-US"
practice_area: "Commercial & Corporate Advisory (contracts, company law, governance)"
tier: "yellow"
lawyer_review: "required"
jurisdictions: ["US"]
last_reviewed: "2026-10-22"
---

# Prepare a preemptive offer only where the certificate grants the right

> From the certificate and the proposed issue, quote any clause that expressly grants stockholders a preemptive right to subscribe, and set out the class, the offerees and the period exactly as that clause states them.…

Canonical page: https://ailawframework.com/practice/commercial-and-corporate-advisory/prepare-the-pre-emptive-offer-to-existing-shareholders-before-a-share-is/united-states  
Last reviewed: 2026-10-22

Site index for agents: https://ailawframework.com/llms.txt

## Key facts

| Fact | Value |
| --- | --- |
| Practice area | [Commercial & Corporate Advisory (contracts, company law, governance)](https://ailawframework.com/practice/commercial-and-corporate-advisory.md) |
| Human involvement | Yellow: Lawyer and AI draft together |
| How AI is used | From the certificate and the proposed issue, quote any clause that expressly grants stockholders a preemptive right to subscribe, and set out the class, the offerees and the period exactly as that clause states them. If the certificate does not grant the right, say so and do not prepare an offer. Do not issue the shares. |
| What the lawyer must review | The lawyer confirms whether § 102(b)(3) applies: no stockholder has a preemptive right to subscribe to an additional issue of stock, or to a security convertible into stock, unless and except to the extent the certificate expressly grants it. Rights in existence on 3 July 1967 remain until changed by an action that expressly provides for the change. The lawyer settles the terms and decides what is done with shares that are not taken up. |
| Written for | United States |
| Applies to | [Prepare the pre-emptive offer to existing shareholders before a share issue](https://ailawframework.com/practice/commercial-and-corporate-advisory/prepare-the-pre-emptive-offer-to-existing-shareholders-before-a-share-is.md) |

## Checking plan

- What the AI does: From the certificate and the proposed issue, quote any clause that expressly grants stockholders a preemptive right to subscribe, and set out the class, the offerees and the period exactly as that clause states them. If the certificate does not grant the right, say so and do not prepare an offer. Do not issue the shares.
- Basis: Checked against the linked sources on 22 October 2026. Confirm the current instrument before reliance.

## Notes

- There is no statutory pro-rata offer and no statutory open period. Both exist only if the certificate creates them.
- The board's authority to issue stock is § 152. A missing preemptive clause does not, by itself, authorise the issue.

## Sources

- [Delaware General Corporation Law, Subchapter I, including § 102(b)(3) preemptive rights](https://delcode.delaware.gov/title8/c001/sc01/index.html) (checked 2026-10-22)
- [Delaware General Corporation Law, Subchapter V, including § 152 on the issue of stock](https://delcode.delaware.gov/title8/c001/sc05/index.html) (checked 2026-10-22)

*Practice guidance for planning and review. Confirm current primary sources and the requirements of the actual matter. This is general information, not legal advice.*