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

(1) The requirement of particular resolutions

40. - The article L. 225-129-2, subparagraph 3 of the Commercial law always imposes the vote of particular resolutions for the following operations : new issues of capital without preferential duty of subscription^127(*), new issues of capital complementary for purposes to allow the exercise of options of surallocation^128(*), new issues of capital without preferential duty of subscription and at free price realized by the companies dimensioned within the limit of 10% of the authorized capital per annum^129(*), the new issues of capital with people called or categories of people meeting determined characteristics^130(*), the new issues of capital reserved for paid company or companies which are dependant for him^131(*), the new issues of capital resulting from the granting of options of application for shares^132(*) and the issues of shares preferably^133(*).

41. - The methods of application of the provisions of the article L. 225-129-2 to the specific new issues of capital taken pursuant to these particular resolutions require some developments, which relate on the times applicable to the particular delegations, on the capacities given to the body of direction and to the applicable ceilings.

42. - First of all, it must be specified, being a question of the articulation of the texts, that the commentators^134(*) consider that the provisions of the article L. 225-129-2 of the Commercial law apply to the new issues of capital being the subject of particular resolutions^135(*).

The article L. 225-129-2, subparagraph 3 requires indeed « particular resolutions » but states by no means that the article L. 225-129-2 is inapplicable with these specific operations. Moreover, the application of the article L. 225-129-2 to the particular resolutions is necessary to give them a coherent mode.

Consequently, it is necessary to consider that the mode of the article L. 225-129-2 applies to the specific increases, under two limits however. First is that when the provisions of the Commercial law relating to certain particular resolutions envisage regulations specific contrary to those of the article L. 225-129-2, these specific provisions are essential then^136(*). Second is that the specific operations can be taken within the framework of the delegation of powers and not of the delegation of power ; in this case, the provisions of the article L. 225-129-2 do not have naturally vocation to apply^137(*).

43. - Impact of the article L. 225-129-2 over the period of validity of the particular delegations. Taking into account the preceding developments, the authorization to carry out new issues of capital without preferential duty of subscription would remain limited well to one duration of twenty-six month^138(*) and not to the five years duration envisaged by the article L. 225-129. It would be the same for the authorization to carry out a new issue of capital complementary for purposes to allow the exercise of options of surallocation, a new issue of capital without preferential duty and at free price carried out by the companies dimensioned within the limit of 10% of the capital per annum, the issue of shares preferably and a new issue of capital reserved to the employees.

On the other hand, the authorization to carry out new issues of capital with people called or categories of people meeting given characteristics is limited to eighteen months^139(*) ; the authorization to carry out new issues of capital resulting from the granting of options of application for shares as for it is limited to thirty-eight month^140(*).

44. - Impact of the article L. 225-129-2 on the capacities of the bodies of direction delegated in the event of particular delegations. When the body of direction profits from a delegation, it would have, because of application of the article L. 225-129-2, to have in all the cases particular resolutions of the capacities necessary to fix the conditions of emission, to note the realization of the new issues of capital which result from it and to carry out the correlative modification of the statutes^141(*).

Naturally, the body of direction lays out moreover specific complementary capacities granted by the articles relating to the specific increases of capital referred to above.

45. - Impact of the article L. 225-129-2 on the ceilings of emission. Unless otherwise specified in the articles relating to the particular resolutions^142(*), the whole of the new issues of capital resulting from the particular resolutions seem to have to charge itself to the total ceiling of the article L. 225-129-2^143(*).

The reference to « total ceiling » does not seem however not to prevent the extraordinary general assembly, within the limit of the total ceiling, to envisage specific for certain categories of transferable securities or unquestionable counter ceilings standard of emissions^144(*).

* ¹²⁷ Art L. 225-135 C. Com.

* ¹²⁸ Art L. 225-135-1 C. Com.

* ¹²⁹ Art L. 225-136, 1°, Al 2 C. Com.

* ¹³⁰ Art L. 225-138 C. Com.

* ¹³¹ Art L. 225-238-1 C. Com.

* ¹³² Art L. 225-177 with L. 225-186 C. Com.

* ¹³³ Art L. 228-11 with L. 228-20 C. Com.

* ¹³⁴ V. in particular 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° 23. Countered, A. COURET and H. NABASQUE, transferable Securities- New issues of capital- Nouveau Ordonnance- mode of March 25 and June 24, 2004, COp préc., n° 135 and S., which propose with prudence the second interpretation  : «  As it is not interdict to think as these delegations «  particular  » of competence could- all, or some of them only- to become autonomous and live their own life (if not in their amount, at least in their duration) by report/ratio, in particular, with the delegation voted under the first subparagraph of the article L. 225-129-2, if the assembly decided it expressly. Admittedly, such an application of the article L. 225-129-2 would develop in margin of the letter of the text  ».

* ¹³⁵ V. supra n° 40.

* ¹³⁶ V. will infra n° 43 to 45.

* ¹³⁷ One perceives here the importance of the interpretation of extended from the delegation of powers (v. supra 30 and S.) and in particular from the possibility for the assembly of delegating his powers of realization of the specific new issues of capital within the limit of a ceiling which it fixes. It was all the logic and the coherence of the proposal of MEDEF, the AFEP and the ANSA, on which the legislator remained dumb. In order to preserve the flexibility of the transmitters, it must be possible to envisage, in addition to the total delegation, of the delegations specific for certain operations to the well delimited object (granting of options of application for shares, new issues of capital reserved to the employees, specific new issues of capital within the framework of a financial transaction or in acquisition) and for which the information of the shareholders can be more precise. It must be the object of the delegation of powers of the article L. 225-129-1. On the other hand, since one places oneself within the framework of a total delegation to which are attached particular resolutions, the whole of the mode of the article L. 225-129-2 applies as well in the benefit in term of flexibility as in the constraints in term of ceiling or period of validity of the delegation for example.

* ¹³⁸ Art L. 225-129-2, Al 1st C. Com.

* ¹³⁹ Art L. 225-138, III C. Com.

* ¹⁴⁰ Art L. 225-177, Al 1st C. Com.

* ¹⁴¹ Art L. 225-129-2, Al 4 C. Com.

* ¹⁴² For example, for the option of surallocation or the new issues of capital without preferential duty and at free price realized by the companies dimensioned within the limit of 10% of the authorized capital per annum.

* ¹⁴³ Art L. 225-129-2, Al 1st C. Com.  : «  When the extraordinary general assembly delegates to the board of directors or the directory her competence to decide new issue of capital, it fixes [...] the total ceiling of this increase  ».

* ¹⁴⁴ In this direction, P. TOURRES, «  New issue of capital  : the widening of the delegations  », in the new right of the transferable securities after the reform of June 24, 2004, art préc.  ; 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° 28.