L'aménagement des droits des actionnaires après l'ordonnance du 24 juin 2004

b) Methods of the widening of the delegations

28. - The difference between the article L. 225-129-1 and the article L. 225-129-2 is published simple.

Under article L. 225-129-1, the extraordinary general assembly « decide » the new issue of capital, it can delegate to the board of directors or the directory it « to be able to carry it out », the latter fixing them then « methods » of the emission ; it will be refers in the species at the end of « delegation of powers »^107(*) (I).

Under article L. 225-129-2, the extraordinary general assembly can « to authorize »^108(*) the new issue of capital, it can delegate to the board of directors or the directory it « to be able to decide it », the latter fixing them then « conditions » of emission ; it will be then refers in the species at the end of « delegation of power » (or « authorization of emission ») (II).

29. - The ordinance of June 24, 2004 regulates the fate of the delegations in progress, while stating that the delegations granted by the extraordinary general assemblies before to the publication of the ordinance remain valid until their term, except contrary decision of a new extraordinary general assembly. However, the methods of exercise of these delegations are controls by the provisions of the ordinance as of its entry into force^109(*).

(i) The delegation of powers

30. - The delegation of powers envisaged with the article L. 225-129-1 of the Commercial law is published simple. This simplicity is however only apparent, the text concealing of many traps on the way in which the general assemblies will have from now on to decide. In particular, the range of the delegation of powers appears dubious.

31. - The first question which installation is to know if the body of direction delegated for the realization of a new issue of capital under the terms of the article L. 225-129-1 A competence bound or not.

The article L. 225-129, subparagraph 2, which frames the new issues of capital carried out pursuant to the article L. 225-129-1, lays out that « the new issue of capital must [...] to be realized within five year », suggesting that the deputy body of direction would be dependant competent for the decision taken by the general assembly.

However, one notes that the article L. 225-129-4 preserve the possibility for the person subdelegate by the board of directors or the directory to postpone to decide the realization of the new issue of capital, including if this decision would be made pursuant to the article L. 225-129-1.

The ordinance having for objective to give more flexibility to the transmitters and to better adapt the mode of the new issues of capital to the constraints of the capital markets, it should be concluded from it that in spite of the imperative formulation of the text, the board of directors or the directory preserves any freedom to carry out or not the new issues of capital decided by the extraordinary general assembly, in so far as the latter formally gave him the capacity to postpone its decisions^110(*).

32. - Another question arises as for the point of knowing if one can authorize a issue of titles within the limit of a maximum amount within the framework of the article L. 225-129-1 of the Commercial law.

The delegation of the old article L. 225-129, that is to carry out emissions of particular categories of titles^111(*) or within the framework of the total delegation^112(*), clearly envisaged the possibility for the assembly of delegating to the board of directors or the directory a capacity of emission within the limit of a ceiling which it had fixed, the board of directors or the directory having the capacity of « to fix the amounts »^113(*) of the emissions. But neither the article L. 225-129, nor the article L. 225-129-1 evoke from now on the possibility for the general assembly of fixing ceilings of emission^114(*).

The article L. 225-129-1 gives however to the board of directors or the directory the capacity of « to lay down the methods of the issue of the titles ». The question is then to know if it should be concluded from it that the extraordinary general assembly can decide to increase the capital pursuant to the article L. 225-129-1 within the limit of a ceiling which she would fix, leaving with the board of directors or the directory the care to fix the amount of the aforesaid the increase.

The authors are divided on the question. The majority think that if one allows, within the framework of the article L. 225-129-1, to delegate to the body direction the capacity to realize with its liking of the new issues of capital within broad limits, that would return so that the article L. 225-129-1 gives, in fact, an authorization of emission similar to that envisaged by the article L. 225-129-2 ; however, in the state of the text, the creation of an authorization of emission seems well the only intention of the article L. 225-129-2. These authors conclude while writing : « the delegation of powers is distinguished, seemed it, of the delegation of power in that that the assembly decides, by construction, a new issue of capital to which it assigns an amount, and not only one ceiling »^115(*). An author^116(*) reasons however a contrario, thinking that to limit the article L. 225-129-1 to decisions not leaving any flexibility in the amount of the emission other than that to postpone the aforementioned emission of interest the recourse in this article deprives significantly ; the text would not offer whereas a flexibility of implementation technical of a new issue of capital decided by the general assembly. Consequently, the time of five years use envisaged by the article L. 225-129, subparagraph 2, would not have any more a smell. The author thinks in conclusion that it is preferable to retain the interpretation according to which « methods of the issue of the titles » decided by the board of directors or the directory relate to the amount of the emission and that the general assembly can consequently fix a ceiling of new issue of capital within the framework of the delegation of powers.

33. - The new device also brings to wonder whether the article L. 225-129-1 of the Commercial law or not makes it possible to operate a total authorization of emission^117(*).

The old article L. 225-129, III, clearly established the distinction between the emissions by categories of titles (2nd subparagraph) and the total resolution (3rd subparagraph). Only the article L. 225-129-2 fact today reference to the possibility for the general assembly of fixing a total ceiling of new issue of capital, to the articulation with the delegations former and the obligation to envisage particular resolutions for certain emissions of titles, which are the corollaries of the total delegation.

If the article L. 225-129-1 were intended to carry total delegation, the provisions of 2nd, 3rd and 4th subparagraphs of the article L. 225-129-2 would have being factorization common of the two articles^118(*). Moreover, if it were allowed to carry out a total delegation on the basis of article L. 225-129-1, one would not include/understand the duplicative character of the two articles.

It thus does not appear possible to carry out a total authorization starting from the delegation of realization of a new issue of capital.

34. - Lastly, it will be noted that the article L. 225-129-1 of the Commercial law does not give to the board of directors or the directory the capacity to note the realization of the new issues of capital which result from the use of its delegation and to carry out the correlative modification of the statutes. This omission is curious insofar as this appears in the last subparagraph of the article L. 225-129-2 and appearing in subparagraphs 2 and 3 of the old article L. 225-129, III.

Consequently, in theory, a delegation given by the extraordinary general assembly to the board of directors or to the directory to carry out the correlative modification of the statutes a new issue of capital realized pursuant to the article L. 225-129-1 would be null^119(*). One could nevertheless consider that the last subparagraph of the article L. 225-129-2^120(*) also applies to the delegations of the article L. 225-129-1 ; such a reading is however very dubious in the state of the text.

35. - These made observations, it is specified that the extraordinary general assembly can of course fix, in addition to the ceiling and/or the amount of the operation, other methods- price issue, mode of release, etc- thus limiting the freedom of the body of direction in the exercise of the deputy capacities. One will point out moreover that the powers delegation of asserts on the body direction, which must carry out the new issue of capital decided by the assembly within the time limit, namely five years with more^121(*)- unless the assembly formally did not authorize the body delegated to postpone the operation^122(*).

36. - Taking into consideration uncertainty relating to the range of the delegation of powers and sanction of the violation of the articles L. 225-129 and following of the Commercial law- which remains the nullity of the new issue of capital^123(*)-, a particular prudence will have to govern the use of the article L. 225-129-1.

* ¹⁰⁷ In this direction, A. COURET and H. NABASQUE, transferable Securities- New issues of capital- Nouveau mode- Schedule of March 25 and June 24, 2004, COp préc., n° 105 to 143  ; P. there. CHABERT, «  The new issues of capital after the ordinance n° 2004-604 of bearing 24 June 2004 reforms transferable securities emitted by the commercial companies  », Bull. Jolly 2004, p. 1023, n° 13.

* ¹⁰⁸ The term «  to authorize  » is clearly introduced by the article L. 225-135 of the Commercial law.

* ¹⁰⁹ Art 64, I, of the ordinance.

* ¹¹⁰ In this direction, P. there. CHABERT, «  The new issues of capital after the ordinance n° 2004-604 of bearing 24 June 2004 reforms transferable securities emitted by the commercial companies  », art préc., n° 15. Countered, P.D' HOIR, the reform of the transferable securities & new issues of capital, COp préc., p. 18.

* ¹¹¹ Old art L. 225-129, III, Al 2 C. Com.

* ¹¹² Old art L. 225-129, III, Al 3 C. Com.

* ¹¹³ Old art L. 225-129, III, Al 2 C. Com.

* ¹¹⁴ The only reference to a ceiling appears in the article L. 225-129-2 of the Commercial law for the delegations of power.

* ¹¹⁵ A. COURET and H. NABASQUE, Securities transferable- New issues of capital- Nouveau mode- Schedules of March 25 and June 24, 2004, COp préc., n° 106. In this direction, P.D' HOIR, the reform of the transferable securities & new issues of capital, COp préc., p. 18  ; Mr. BANDRAC, P. BIROTHEAU, C. DEBIN, J. - P. DOM, S. GAILLET, F. ROQUAIS and Mr. SUPIOT, «  The mode and the emission of the transferable securities after the ordinances of 2004  », art préc., p. 20.

* ¹¹⁶ P. there. CHABERT, «  The new issues of capital after the ordinance n° 2004-604 of bearing 24 June 2004 reforms transferable securities emitted by the commercial companies  », art préc., n° 16.

* ¹¹⁷ As the old article L. 225-129 allowed it, III, Al 3 of the Commercial law.

* ¹¹⁸ In this direction, P. there. CHABERT, «  The new issues of capital after the ordinance n° 2004-604 of bearing 24 June 2004 reforms transferable securities emitted by the commercial companies  », art préc., n° 17.

* ¹¹⁹ In this direction, P. TOURRES, «  New issue of capital  : the widening of the delegations  », in the new right of the transferable securities after the reform of June 24, 2004, art préc.

* ¹²⁰ Article L. 225-129-2, Al 4 C. Com.  : «  Within the limit of the delegation given by the general assembly, the board of directors or the directory has the capacities necessary to fix the conditions of emission, to note the realization of the new issues of capital which result from it and to carry out the correlative modification of the statutes  ».

* ¹²¹ Art L. 225-129 and L. 225-129-1 C. Com.

* ¹²² Supra n° 31.

* ¹²³ Art L. 225-149-3 C. Com.