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

(1) Suppression of the rule of « ten among the twenties »

81. - The rule of « ten among the twenties » was a device anti-handling of course and protection of the minority shareholders.

To the ordinance of June 24, 2004 and since 1983, the article L. 225-136, 2°, of the Commercial law required, during an emission by public call to the saving without preferential duty of new application for shares conferring the same rights as old actions, than the companies with dimensions retain an issue price « at least equal to the average of the courses noted for these actions during ten days consecutive chosen among the last twenty market-days preceding the beginning by the emission ».

This rule of protection of the shareholders in place, intended to avoid the interventions of last minute on the market and the excessive dilution of the shareholders, had become a handicap in period of volatility of the markets^203(*). In other words, it constituted an obstacle with the traditional new issues of capital in periods of strong stock exchange fluctuations. Also, the practice, more or less followed by the Securities and Exchange Commission, it had imagined palliatives : selection of the stock exchange price low of each meeting, resort to the made up transferable securities and the lines of action^204(*).

The rule of « ten among the twenties » the focal point of criticisms carried on the former diet. However, the history of this rule shows the astonishing excuses of the legislator on this point^205(*).

82. - The ordinance of June 24, 2004 removes finally the rule of « ten among the twenties » with the profit of a new mechanism which was established by the decree of February 10, 2005.

The article L. 225-136 of the Commercial law lays out from now on that : « The emission by public call to the saving, without preferential duty of subscription, titles of capital is subjected to the following conditions: for the companies whose titles of capital are allowed with the negotiations on a regulated market and insofar as the transferable securities to emit in an immediate or differed way are assimilable for them, the issue price must be fixed, according to methods' envisaged by decree in Council of State taken after consultation of the Authority of the financial markets [...] ».

New article 155-5 of the decree of 23 March 1967, introduced by the decree of 10 February 2005, more liberal than the former mode, provides that the issue price is at least equal to the weighted average of the course of the three last meetings of purse preceding the day by the fixing of this price, possibly decreased by a maximum rebate of 5%.

This solution reduces uncertainty on the product of the emission : it indeed avoids a strong volatility and an influence on the last price stock exchange not desired^206(*).

83. - However, as for the modification of the mode applicable to the preferential duty of subscription, this reform of the rule from the «10 among the 20» translated a will to take into account the constraints of market but without assuming it fully. It is to be feared that the companies and the banks belonging to the underwriting syndicates, according to the circumstances of market, consider that there is a risk that, over the period of placement and construction of the book of orders, a market bear can make impossible the fixing of the price in the compliance with the new rule. An element moreover which should push the experts to be continued to privilege the use of the goods of application for shares.

84. - Thanks to the new technique of the emission known as « with the wire of water », the general assembly of the shareholders have however a room for additional maneuver.

* ²⁰³ Criticisms of the rule of «  ten among the twenties  » related mainly to the following points  : it limits considerably the freedom of emission of the transmitters in contexts of market bear and can make impossible certain emissions  ; it badly protects the existing shareholders against dilutives operations in the context from a market bull  ; it constitutes a competitive disadvantage for the French companies compared to their counterparts of the close countries whose regulations allow certain rebates compared to the stock exchange price preceding launching by the operation.

* ²⁰⁴ D. BOMPOINT, «  The reform of the procedures of public appeal to the saving. The rule from the «ten among the twenties «  », Practical Acts and financial engineering, January-February 2004, n° 73, p. 20 and S.  ; A. COURET and H. NABASQUE, Securities transferable- New issues of capital- Nouveau mode- Schedules of March 25 and June 24, 2004, COp préc., n° 272 and S.

* ²⁰⁵ The first text was the decree n° 83-363 of May 2, 1983, which enacted the rule of «  twenty among the forty  » and was inserted in the law of July 24, 1966 (art 339-1) by the law of May 2, 1983  ; then the law of August 8, 1994 reduced the period of calculation of the average and retained rule the ten market-days taken among the twenties preceding the beginning by the emission (art 339-1 L. 24 July 1966, become art L. 225-136 C. Com.- V.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° 57.

* ²⁰⁶ The reference to the balanced middle price translated the feeling which this reference is less suitable for be handled than a course spot.