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

c) Measurements facilitating the introductions out of purse

99. - The ordinance also reduced the rules applicable to the companies whose titles are the subject of an introduction out of purse : it legalizes and simplifies the practice of the options of surallocation (I), legalizes the practice consisting in negotiating not yet emitted actions (II) and fixes the rules of price of the new issues of capital reserved at paid (III).

(i) Practice of the options of surallocation

100. - The ordinance introduces into the article L. 225-135-1 of the Commercial law a provision making it possible to facilitate the practice of the options of surallocation in the new issues of capital, with or without preferential duty of subscription^225(*).

The option of surallocation^226(*) has the aim of allowing the banking syndicate in charge of the placement of titles of capital, in the event of sursouscription, to obtain a wheel of titles of complementary capital enabling him to cover the surplus request and to avoid a racing of the market. In practice, the members of the underwriting syndicates can be brought, at the time of the placement closure or in the days which follow, to take positions with discovered (sale of titles that they do not have in wallet) in order to serving the surplus request during the allowance of the titles being the subject of the placement or within the framework of stabilization. In order to cover these positions with overdraft, the members of the underwriting syndicate generally turn to the shareholders salesmen, when they take part in the operation of placement, and negotiate an option to buy of titles allowing them to obtain the titles which they must deliver to their counterparts at the time of the sales in the market, at the price of the initial placement. In the absence of shareholders salesmen or instead of the latter, the members of the trade union turn to the transmitting company of the titles of capital which is committed emitting these same titles in favor of the members of the underwriting syndicate at the price of the initial placement. In order to preserve the flexibility of intervention on the market of the members of the underwriting syndicate, the surplus request is generally satisfied the day with the allowance of the initial placement by delivery of titles lent to the members of the underwriting syndicate. Thus, if the market were bear, the members of the underwriting syndicate proceed to purchases of titles on the market to rather refund the loans of titles than to the exercise of the option of surallocation. Consequently, the option of surallocation is generally not exerted the day of the allowance of the initial placement, but is used later on, and generally to give the titles to the members of the trade union and not directly at the market.

101. - In practice former to the ordinance, the maximum amount of titles being able to be the subject of the option of surallocation was 15% of the number of titles offered and the maximum period of exercise of the option of surallocation was generally 30 days.

It is thus a question for the transmitter of carrying out a new issue of capital complementary to the profit of the members of the trade union, but to serve the request emanating of the market. In the mode former to the ordinance, interrogations could have been born as for nature from such a new issue of complementary capital: additional increase in the number of titles emitted within the framework of the initial new issue of capital or new new issue of capital? If the second interpretation were to be retained by a court, it would have been necessary to respect the provisions relating to fixing of the price of such a new issue of capital without preferential duty of subscription. However nothing made it possible to guarantee that in a context bull, the rule from the «ten among the twenties» of the article L. 225-136 of the Commercial law could be satisfied. In response to this concern, the practice had recourse to the emission of goods of application for shares emitted for the profit of the members of the banking syndicate, these goods having a price of exercise equal to the price of the placement.

102. - The article L. 225-135-1 of the Commercial law will make it possible from now on to avoid the recourse to the emission of goods of application for shares.

For the needs for the new issues of capital without preferential duty of subscription, the resolutions of the general assembly will be able to envisage faculty to increase the number of titles emitted subsequently to the initial emission at the same price as the latter.

The article L. 225-135-1 imposes three limits on this flexibility: the number of emitted complementary titles should not exceed 15% of the initial emission^227(*) ; the complementary issue of titles must intervene within 30 maximum day following the date of the subscription of the initial emission^228(*) ; the price of subscription of the complementary titles must be the same one as that of the titles within the framework of the initial emission.

* ²²⁵ Supra n° 60.

* ²²⁶ Or «  clause of green shoe  ».

* ²²⁷ Art 155-4 of the decree n° 67-236 of 23 March 1967, introduced by the decree n° 2005-112 of February 10, 2005. 

* ²²⁸ Art 155-4 préc.