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

(3) Suppression of the reference to the stockholders' equity and the expertise

91. - The companies with dimensions were not kept away of the movement of simplification generated by the ordinance. In the same concern of softening the rules applicable to the new issues of capital per public call to the saving of companies whose titles of capital are not allowed with the negotiations on a regulated market, the ordinance removes the requirement which the issue price is at least equal to the share of stockholders' equity per action or at a price fixed at saying of expert^217(*).

92. - The article L. 225-136, 2° of the Commercial law provides from now on that the extraordinary general assembly will have total freedom to determine the issue price on report/ratio of the board of directors or the directory and on special report/ratio of the auditor.

This text also applies to the emissions by companies with dimensions of nonassimilable titles of capital^218(*).

(4) The fixing of the price of the new issues of capital reserved for people called or categories of identified people

93. - The ordinance amends the article L. 225-138 of the Commercial law relating to the new issues of capital reserved for people called or categories of people meeting given characteristics.

It thus confirms the projections introduced by the law of financial safety^219(*), in particular on the possibility of holding a new issue of capital to one or more categories of determined people.

94. - In addition to a marginal reorganization of the article L. 225-138^220(*), the ordinance removes the possibility for the general assembly of delegating to the board of directors or the directory the possibility of fixing the issue price. The delegation from now on is limited to the fixing of «the list of the recipients within this or these categories and the number of titles to be allotted to each one of them». The objective of this modification is to ensure a better protection of the shareholders^221(*).

95. - Consequently, the general assembly can either fix the price, or to give the methods of fixing of the price which would then be fixed later on by the board of directors or the directory on delegation pursuant to the article L. 225-129. The ordinance does not frame the methods being able to be retained by the general assembly, which can then profit from a great freedom like, for example, that to envisage the reference at a price fixes or an average of course or a price which can come out from a process of confrontation of the offer and request such as the construction of a book of orders within the framework of a public placement, with or without rebate.

(iii) The flexibility of remuneration of the contributions of titles

96. - The ordinance in kind adds a sixth subparagraph to the article L. 225-147 of the Commercial law relating to the contributions which allows the extraordinary general assembly of a company whose titles are allowed with the negotiations on a market regulated to delegate to its bodies direction, for one duration maximum 26 months and within the limit of 10% of its authorized capital, the capacity to carry out a new issue of capital in order to remunerate contributions in kind of titles of capital or transferable securities giving accesses to the capital granted the company, when a public offer of exchange cannot be carried out^222(*).

The control of the police chiefs to the contributions remains whole, their report/ratio having to be made available of the board of directors or the directory, according to case's, at the time of its decision to carry out the new issue of capital.

97. - This new provision brings an effective and innovative solution to support the operations of external growth of the companies with dimensions. The completion dates of the contributions subjected to the convocation of a general assembly of the shareholders are indeed relatively long and could lead to impossibility for certain companies of taking part effectively in processes of setting in the private biddings of companies. Coupled with the use of the car-held actions, this provision gives an unquestionable flexibility to the transmitters.

98. - Certain questions can be raised.

Being the plate of the 10%, the same conclusion as that aimed for the increases « with the wire of water » imposes itself^223(*).

On the report/ratio of the police chief to the contributions, the ordinance returns in article 169 of the decree of February 10, 2005. Text lays out that report/ratio described contributions, indicates mode of evaluation adopted and why it was retained and affirms that the value of the contributions corresponds well at least to the face value of the actions to emit increased possibly issue premium, by justifying it. Curiously, article 169 lays out that the report must be submitted in any event at least eight days before the date of the general assembly, which does not take account of the delegation with the board of directors or the directory. It is however clear, under the fifth subparagraph of the article L. 225-147, that the report/ratio is emitted for the needs for the use of the delegation by the board of directors and consequently, during its use, and not at the time of the general assembly granting the delegation. This last assumption would not have besides a direction, the titles brought not being identified yet. One can only consider that the report of the police chiefs to the contributions must be submitted to the board of directors or the directory at the latest with the date of the meeting deciding the new issue of capital. This point could usefully be corrected^224(*).

* ²¹⁷ Old art L. 225-136 C. Com.

* ²¹⁸ Such is the case of the companies of which a category of titles is allowed with the negotiations on a regulated market which proposes to emit a new category of titles per public call to the saving.

* ²¹⁹ H. NABASQUE, «  Comments of the principal provisions of the law of financial safety interesting the company law  », Bull. Jolly 2003, p. 859,  § 185.

* ²²⁰ The period of validity of the delegation by the general assembly is reduced to eighteen months  ; she was two years in the old article L. 225-138, III of the Commercial law. The ordinance specifies moreover that the report/ratio of the board of directors or the directory returning account at the next assembly of the final conditions of the operation must from now on be certified by the auditor.

* ²²¹ According to the report/ratio with the President of the Republic, rep. préc., p. 4  : «  These simplifications remain however protective for the shareholders, insofar as the whole of these conditions are subjected to the decision of the general assembly  ».

* ²²² The text applies in the event of contribution of titles «when the provisions of the article L. 225-148 are not applicable». This formulation makes it possible to remunerate (I) securities with dimensions brought within the framework of a public offer of exchange which would not be governed by the article L. 225-148 (for example, a public offer of exchange on titles which allowed with the negotiations on a market would not be regulated of a State not left to the agreement on European Space economic or member the Organization for Economic Cooperation and Developm), (II) of the titles admitted with the negotiations on a market regulated of a State left to the agreement on European Space economic or member the Organization for Economic Cooperation and Developm but whose acquisition would not do itobject of a public offer of exchange (for example within the framework of a contribution of block which would not lead to the deposit of an obligatory offer public and would not have been the subject of a voluntary public offer) and (III) with the titles not - dimensioned.

* ²²³ V. supra n° 88.

* ²²⁴ 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° 73.