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

(2) Technique of the new issue of capital « with the wire of water »

85. - The article L. 225-136 of the Commercial law specifies, in its 2° : « However, within the limit of 10% of the authorized capital per annum, the extraordinary general assembly can authorize the board of directors or the directory to fix the issue price according to methods' which it determines within sight of a report/ratio of or directory, and the special report/ratio board of directors of the auditor [...] ».

Thus the new issue of capital is allowed known as « with the wire of water » or « uninterrupted », in order to allow the companies to emit part of their titles under the best conditions, without however carrying reached in a too important way to the rights of the shareholders that the purpose of the rule of fixing of the price is to protect.

86. - Such a possibility was already allowed on the assumption of a repurchase of actions^207(*), and it had been noticed that it was paradoxical to strongly frame the issue of new titles and to leave almost free to the transfer of existing titles car-prisoners^208(*).

This new flexibility comes to put a term at uncertainties which could surround the equity lines, these programs of emission « uninterrupted » allowing a company to emit, in several sections with its discretion, actions which are subscribed by a credit institution then replaced, as far as possible, by this last in the market^209(*). In order to avoid certain potential negative impacts of the credit limits actions on the market, the Securities and Exchange Commission had specified the mode applicable to the equity lines^210(*). The essential legal question raised by this mechanism was that of the possible fraud to the law^211(*) - there was not misuse of procedure ? The ordinance of June 24, 2004 removes the doubts on the matter and makes it possible today to consider without risk the direct placement of the titles of capital near the public.

Nevertheless, the equity lines had to date a mitigated success. They are reserved for companies of small or average size, having a strong need for financing in capital (biotechnology, high technology), and presenting a profile of possible growth. The other transmitters, which represent the great majority and include/understand the large French companies, will probably continue to privilege the realization of new issues of capital largely opened with their shareholders and which allow to optimize the price of subscription- rather than to ratify a systematic rebate, whatever is the rising one. The debates around the equity lines were in any event important and were the catalysts of the will of reform of the rules relating to the new issues of capital.

87. - The flexibility granted by the ordinance applies under triple condition that the transferable securities to emit in an immediate or differed way are comparable to the titles of capital admitted with the negotiations on a regulated market, that the general assembly envisaged the methods of fixing of the issue price and that is respected the limit of emission of 10% of the capital per annum.

It seems that this authorization can be conferred to the board of directors or on the directory for one duration maximum 26 months^212(*), when well even the threshold of 10% is appreciated annually. Indeed, it is about a delegation of power, since the body of direction on the initiative of the decision to carry out or not the new issues of capital according to market rates'^213(*).

With the result, the council or the directory will be able, if maximum delegation is given to him, to freely increase the capital during three consecutive exercises, which allows a total increase of 33,10%. The company with dimensions is less and less designed like a grouping of people and more and more like a technique of financing, which is only the translation of reality.

88. - The application of the limit of « 10% of the authorized capital per annum » raises two other difficulties of interpretation.

Being the plate of the rate of 10% : it is about the capital emitted at the date of the general assembly having authorized the board of directors or the directory to carry out the new issues of capital « uninterrupted », or of the capital emitted during the use by the board of directors or the directory of this authorization, thus allowing to take account of the possible variations in capital? The general assembly should have any freedom to envisage one or the other, no rule of law and order not seeming to limit this faculty. In the absence of precision by the general assembly, it would seem logical to refer to the capital emitted at the date of the decision of delegation by the general assembly which should translate the will of the shareholders best^214(*).

Being the reference period : is it about one year slipping, the reference period being the one year period preceding all new emission, or one year fixed as from the date of the general assembly? Logic would impose, to avoid brutal increases in capital to the hinge of the fixed years, to appoint one year slipping^215(*).

89. - These made observations, it is advisable to specify that in the event of emission « with the wire of water », the legislator provided various protections of the shareholder of the transmitting company^216(*).

90. - Remained finally the case of the emissions by public call to the saving with suppression of the preferential duty of subscription in the companies with dimensions. The article L. 225-136 new of the Commercial law brings some easings here, namely the suppression of the reference to the stockholders' equity and the expertise.

* ²⁰⁷ Art L. 225-209 C. Com.

* ²⁰⁸ V.D. BOMPOINT, «  The reform of the procedures of public appeal to the saving. The rule from the «ten among the twenties «  », art préc.

* ²⁰⁹ V. «  New forms of new issue of capital by pulling of lines of action (equity lines)  », Bull. ANSA 2003, n° 3231. - The equity lines were carried out until now on the basis of emission of goods of application for shares reserved for a credit institution. This emission is carried out with suppression of the preferential duty of subscription and is reserved for anybody called pursuant to the article L. 225-138 of the Commercial law. The price of subscription of the goods is symbolic system (between 0,0001 and 0,01 euros per good) and the price of exercise is equal to an average of course for one reference period (5 market-days consecutive for example) preceding the exercise by the goods to which a rebate (10% for example) is applied. A convention is concluded between the transmitter and the institution credit to frame the exercise of the goods of application for shares by this last. The credit institution does not have vocation to preserve the actions thus subscribed but to place them in the market, at its risks. The rebate calculated on the average of the courses over the reference period is supposed to give to the credit institution the margin necessary to avoid carrying out a loss on this placement. The remuneration of the credit institution corresponds at commissions to which is added the possible appreciation carried out during the transfer in the stock market resulting from the exercise from the goods from application for shares.

* ²¹⁰ Official statement relating to projects of new issue of capital (equity lines) of July 25, 2001, Bull. COB 2001, n° 359, p. 51.

* ²¹¹ On this question, 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° 65.

* ²¹² By reference to the article L. 225-129-2 of the Commercial law relating to the delegations of power.

* ²¹³ In this direction, 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. 23.

* ²¹⁴ 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° 68  ; A. COURET and H. NABASQUE, Securities transferable- New issues of capital- Nouveau mode- Schedules of March 25 and June 24, 2004, COp préc., n° 344.

* ²¹⁵ 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° 68.

* ²¹⁶ Infra Nos 385, 389.