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

(ii) Negociability of the promises of actions

103. - The ordinance modifies the article L. 228-10^229(*) of the Commercial law and legalizes the practices consisting, before an introduction on a regulated market, to negotiate actions still not emitted.

104. - The article L. 228-10 had been used at the time of the operation of opening of the capital of Thomson Multimedia, who had given place, for those of the actions placed which were new actions, at the quotation of promises of actions. Since then, the Securities and Exchange Commission had opposed this technique during introductions out of purse. The objection was due to the fact that the condition that it is «about a company whose old actions are already allowed with the negotiations on a regulated market» could have been met at the time of an introduction out of purse, and this while at the same time the introduction related simultaneously on existing actions and actions to come from a new issue of capital.

105. - For this reason, the practice, anxious to give to the investors titles likely to be negotiated as of the date of fixing of the price and allowance of the actions to be emitted^230(*), circumvented the difficulty while being based on the article L. 225-145 of the Commercial law making it possible to regard as immediately realized the new issues of capital whose good end was irrevocably guaranteed by financial establishments. This approach obliged to regard as an irrevocable performance guarantee, engagements of firm catch subjected to a clause of conventional cause beyond control in the operations on capital markets, in particular on the international market.

106. - The modification of the article L. 228-10 of the Commercial law will make it possible to return to a greater orthodoxy of the legal concepts by allowing the quotation of promises of actions between the date of fixing of the price of the new issue of capital and the date of its final realization and to avoid qualifying performance guarantee of engagements of firm catch subjected to clauses of cause beyond control.

(iii) The fixing of the rules of price of the new issues of capital reserved to the employees

107. - The article L. 443-5 of the Fair labor standards act laid down before with the ordinance that the price of subscription of the new issues of capital reserved for the employees, when the titles were not yet allowed with the negotiations on a regulated market, was to be «given in accordance with the objective methods reserves as regards evaluation of actions by holding account, according to a procedure appropriate to each case, countable clear situation, profitability and prospects for activity of the company»^231(*).

The practice admitted, subject to validation by an expert, that the application of the methods objectify retained as regards evaluation of actions results in fixing the price of subscription during introduction out of purse, decreased of a possible rebate whom can go up to 20% for unavailability.

108. - The ordinance raises any ambiguity on this point while envisaging explicitly: «When the new issue of capital is concomitant with a first introduction on a regulated market, the price of subscription is determined by reference to the price of admission on the market, provided that the resolution of the Board of Directors or of the directory or their delegate if necessary^232(*), intervenes at the latest ten meetings of purse after the date of the first quotation»^233(*).

109. - Conclusion. The ordinance of June 24, 2004 brings notable easings to the right of the new issues of capital by simplifying the procedures and methods of issues of titles of capital. The text is not satisfied besides only to modify the mode of the new issues of capital ; it is further taking note owing to the fact that the simple obligations are from now on a financial product running, which constitutes only one of the modes of external financing of the company. Consequently, the board of directors or the directory is seen from now on recognizing a competence of principle to decide the issue of bonds^234(*).

110. - Nevertheless, certain authors^235(*) would have wished that the ordinance give to the preferential duty of subscription all the flexibility which misses to him today to be able to impose itself like the privileged mode of realization of the new issues of capital, which wished of many transmitters. Such is not the case. The ordinance sticks on the other hand with heat to make more accessible the operations without preferential duty of subscription in particular by multiplying new flexibilities (possibility of remunerating contributions in titles out the cases of public offer of exchange, possibility of carrying out complementary new issues of capital). There still, these keys pointillists, if they regulate certain specific deficiencies, do not create the awaited framework which will make it possible the French transmitters to carry out new issues of capital according to international standards' of the capital markets. It is probable that the experts will continue to work on the mechanisms worked out in the last years, resting on the goods of or time application for shares of precariousness, which answers much better the constraints of market and which one of the objectives of the reform is not really filled.

111. - The ordinance, if it constitutes a positive stage, remains unfortunately, on essential points, late compared to the practices of market. Whereas in other fields of the right, the law is a source of innovations and progress, one can consider it regrettable that the right of the new issues of capital remains a source of constraints and the development of the French capital markets does not support fully.

It goes from there differently from the actions preferably, whose creation in our different- right great innovation of the ordinance of June 24, 2004- was awaited for a long time by the experts.

* ²²⁹ The article L. 228-10 of the Commercial law lays down prohibition to negotiate the promises of actions. In the event of new issue of capital, the new actions are thus negotiable only as from the realization of the latter. However, the article L. 228-10 lays down an exception when they are actions to be created at the time of a new issue of capital of a company whose titles are already allowed with the negotiations on a regulated market. The ordinance introduces a new flexibility by extending this exception to the actions to be created at the time of a new issue of capital of a company whose titles are not already allowed with the negotiations on a regulated market but for which the admission was required.

* ²³⁰ The investors, in particular on the international market, regard as very important the fact of being able to yield, if necessary as of their allowance and before the date of payment-delivery, the actions which they acquired within the framework of an introduction out of purse (like in the case of a new issue of capital of a company already with dimensions). It is a question for them of eliminating the risk from market for the few days (generally three market-days) separating the date from fixing from the price and allowance from the actions to emit date of payment-delivery and final realization of the new issue of capital.

* ²³¹ Art L. 443-5 C. wk.

* ²³² The directory or resolution of the Board of Directors to which it is refers as having to intervene within ten market-day of the date of the first quotation is that relating to the settlement of the date of subscription, which should also be the date of fixing of the price of subscription.

* ²³³ Report/ratio with the President of the Republic, rapp préc., p. 4  : «In order to make it possible to the employees to profit, without discrimination compared to the other subscribers, of a closed issue during a concomitant new issue of capital to a first introduction on a regulated market, the reference to the average of the courses dimensioned with the twenty meetings of purse preceding the day by the decision is isolated with the profit of the price of admission  ».

* ²³⁴ Art L. 228-40 C. Com.- So that it of either otherwise, it is necessary, or that the statutes reserve this capacity at the general assembly, or that this one to decide to exert it.

* ²³⁵ 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.