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

(ii) Conversion in the absence of methods laid down in the statutes

313. - In this case, conversion is decided directly by the extraordinary general assembly, which can however delegate this power under the conditions planned for the delegations conferred in order to increase the capital^584(*).

314. - The assembly must rule within sight of a detailed report/ratio of or directory and the special report/ratio board of directors of the auditor^585(*).

315. - When conversion is not envisaged in the statutes, the protection of the carriers of actions preferably appears paramount, since one is on the point of touching with their rights under conditions which were not envisaged.

Also, pursuant to the article L. 225-99 of the Commercial law relating to the special assemblies, the approval of the special assembly of the holders of actions preferably concerned is required. In the event of refusal of approval, conversion could not be imposed to them.

316. - It is it should be noted that a statutory clause which would allow conversion on the initiative of the carrier since all the conditions would be fixed by it is perfectly conceivable.

317. - Lastly, if conversion results in a new issue of capital, in the absence of reserves available, the solution brought when the methods of conversion of the actions preferably were laid down in the statutes^586(*) is not the same one as in the absence of statutory precise details.

The situation is indeed different if conversion is decided by the extraordinary general assembly with immediate effect. To suppose that it must result in a new issue of capital- what in the context of a company in losses is likely to be a rare situation-, it is difficult to see how y to arrive if the stockholders' equity does not reveal any reserve or precedes likely to be incorporated in the capital or, if there are losses, which exceed their amount.

A new issue of capital per charge on the account « carryforward again » debtor is inconceivable. Not more than it is not conceivable to plan to incorporate in the capital of the premiums or reserves completely « started » by losses, which would not be already especially affected as on the preceding assumption.

318. - These made precise details, it is pointed out that, in all the cases, that the methods of conversion were provided in the statutes or not, the decision of conversion of the actions preferably carries renunciation of the shareholders of the preferential duty of subscription for the actions resulting from conversion^587(*).

319. - The ordinance preferably envisages finally another mode of disappearance of the actions : the repurchase of the aforesaid actions.

* ⁵⁸⁴ Art L. 225-129 with L. 225-129-6 C. Com.

* ⁵⁸⁵ Art 206-3 of the decree of 23 March 1967, introduced by the decree of February 10, 2005. V. supra n° 311.

* ⁵⁸⁶ Supra n° 312.

* ⁵⁸⁷ Art L. 225-132 C. Com.