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

(ii) The delegation of power

37. - The article L. 225-129-2 of the Commercial law is in fact a resumption of the provisions which appeared in the old article L. 225-129, III, organizing the total delegation introduced by the law of August 8, 1994.

The assimilation of the delegation of power to the total delegation presents a natural logic insofar as, as indicated above^124(*), the use of a delegation of powers were somewhat artificial, the extraordinary general assembly délégant makes of it with the council the whole of the capacities necessary to decide new issues of capital to its discretion in the envelope of the amount fixed by the assembly.

38. - Under article L. 225-129-2 of the Commercial law, the extraordinary general assembly can thus delegate her competence to the body of direction, this delegation investing this last of faculty to decide, like not deciding to increase, the authorized capital.

The assembly cannot however leave an absolute freedom to the body of direction, since it must fix at least two limits : duration of the delegation, which cannot exceed twenty-six month^125(*), and the total ceiling of the new issue of capital. Subject to these two limits^126(*), the delegation of power can be very broad and leave any freedom to the body délégataire to lay down the methods of the new issue of capital.

Contrary, the assembly can limit the freedom of the body of direction. She can thus specify the nature of the transferable securities to emit, fix a ceiling for each one of them, their issue price or the methods of determination of this price, etc

39. - Some limit to the globality of the delegation envisaged in this article also continue to apply in the new mode and some complementary particular resolutions were added (1). The implementation of the article L. 225-129-2 calls moreover several remarks having milked with the question of the office plurality of the delegations (2) and with the subdelegation with the social leaders (3).

* ¹²⁴ Supra n° 25.

* ¹²⁵ Being the appreciation of this time, the question arises of knowing if it is necessary that the board of directors decided and fixed all the characteristics of an emission (this one being able to be realized subsequently) or if it is necessary that all the material operations of execution were carried out within this time.

* ¹²⁶ In addition, the delegation of power cannot be authorized when the unanimous agreement of the shareholders is necessary to increase the capital, namely when the new issue of capital is carried out by increase of the par value of the existing titles to release in cash (art L. 225-130 C. Com.) (what is very rare in practice). The new issue of capital by incorporation of reserves, benefit or premiums issue and increase of the par value can on the other hand be the delegation object.