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

(2) Office plurality of the delegations

46. - Under article L. 225-129-2, subparagraph 2 of the Commercial law, adoption of the total delegation « deprive of effect any former delegation having the same object ».

This brings to wonder on the new delegations likely to be voted after the vote of a total delegation and about the effect of the vote of a new total delegation on the former delegations.

47. - New delegations likely to be voted after the vote of a total delegation. The old article L. 225-129 of the Commercial law deprived of effect any former delegation and prohibited that it is taken by it news^145(*). This last prohibition was removed insofar as it let think that the assembly could not repeal one delegation in progress any more to replace it by another, which would have been very detrimental for the companies having to carry out a financial transaction for which a new delegation asserts itself.

From now on, the extraordinary general assembly can, as of many companies usually make it, to renew their financial delegations annually, even if the preceding delegation is still valid.

The suppression of prohibition results also in to allow the companies having adopted the total resolution to be able, for the period of validity of this delegation, to authorize new issues of capital not having it « even object » that the initial delegation, without calling into question the latter.

Ultimately, it is possible for a company which would have granted a total delegation, and during the period of validity of the latter, on the one hand, to agree of the delegations of powers for the realization of specific operations pursuant to the article L. 225-129-1 of the Commercial law^146(*) and, on the other hand, to authorize of the delegations of power pursuant to the article L. 225-129-2, given that that if these delegations do not have the same object that the former delegations, these last will survive.

48. - Effect of the vote of a new total delegation on the former delegations. The effect of a new delegation on the former delegations depends on their respective objects ; only are from now on null and void the former delegations « having the same object »^147(*).

The definition of the object of the delegation lends to discussion. One can define the object of a delegation compared to several criteria : the nature of the delegated powers^148(*), the nature of the authorized transferable securities^149(*), the nature of the operations concerned^150(*) or it natural of the investors^151(*).

If the above-mentioned criteria are retained, several conclusions are essential. Initially, a delegation of powers should resist a total delegation of power^152(*). In the second place, a total delegation of power which would not preferably aim the issue of shares (or any other transferable security) should not be called into question by the later adoption of a delegation of power relating specifically to the issue of shares preferably (or this other transferable security). In third and last place, a total delegation of power which would not aim the realization of an offer to paid (or with other potential subscribers) should not be called into question by the later adoption of a delegation of power relating specifically to the realization of an offer with paid (or with these other potential subscribers).

On the other hand, a delegation of power doing nothing but modify the methods of application of a former resolution- for example, modification of the ceiling of emission- would deprive of effect the former delegation.

49. - On the basis of there, force is to note that if the ordinance leaves an increased flexibility to make coexist different delegations, it goes somewhat against the intention of the legislator of 1994 who had introduced the total resolution to simplify the delegations and to improve the legibility and the transparency of the authorizations in progress. In addition, the very great complexity of the application of the rule of the office plurality of the delegations, partly related on the multiplicity of the situations met, but also to the often sibylline drafting of the text, in fact a nest with dispute and grounds for revocation.

Vis-a-vis this report of a less protective framework of the shareholders and of an increase in the legal insecurity of the financial transactions, it is allowed to doubt the cogency of the rule of nullity enacted with the article L. 225-129-2, subparagraph 2 of the Commercial law. If this rule were repealed, the shareholders would decide by themselves on the effects of the new delegations on the former delegations. The protection of the shareholders could then be approached under the angle of information^153(*).

* ¹⁴⁵ Old art L. 225-129, III, Al 4 C. Com.

* ¹⁴⁶ In this direction, A. COURET and H. NABASQUE, transferable Securities- New issues of capital- Nouveau mode- Schedule of March 25 and June 24, 2004, COp préc., n° 131  ; 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° 34.

* ¹⁴⁷ Art L. 225-129-2, Al 2 C. Com.

* ¹⁴⁸ Delegation of powers or delegation of power.

* ¹⁴⁹ Actions, actions preferably, transferable securities giving access to the capital.

* ¹⁵⁰ Emission with preferential duty of subscription, without preferential duty of subscription, offers public of exchange, closed issue for anybody called or categories of anybody meeting determined characteristics, granting of options of application for shares.

* ¹⁵¹ Emission with public call to the saving, closed issue to the employees.

* ¹⁵² V. supra n° 47.

* ¹⁵³ The transmitters could be subjected to the obligation to inform their shareholders, before the general assembly, of the whole of the valid delegations and the whole of the delegations which would be valid after the general assembly if all the resolutions suggested with their vote were adopted.