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

2. Protective measurements of the shareholders relative to the new issues of capital

373. - The ordinance of June 24, 2004 considerably widened and softened the mode of the delegations granted the bodies of direction as regards new issues of capital. The posted objective was to give to the companies the means of a larger reactivity, in an increasingly competing market.

374. - Let us recall that the body of direction of SA, a SCA or SAS can from now on be seen delegating, in addition to the realization of the new issue of capital decided by the extraordinary general assembly of the shareholders, competence to decide principle even of such an increase^666(*).

The general assembly controls certainly the freedom which it grants the body of direction and remains main delegations that it authorizes. But that could not be enough to constitute the protection of the rights of the shareholders in this matter.

375. - A many situations require a detailed attention indeed. The delegations, in particular the delegation of power, are not without limits. In addition to the limits which itself can fix the extraordinary general assembly and already evoked^667(*), it is general- or specific measures- specifically founded for purposes to protect the shareholders (A) ; they supplement the mode of nullities (c), which sanction the violation of certain provisions, and the information of the shareholders (b), always in a preoccupation with a protection of the shareholders.

a) Limits with the delegations of powers and competence

376. - At the sides of the general limits (I), one finds limits related with the fixing of the price of the new issue of capital (II).

(i) Limits of a general nature

377. - Certain delegations and decisions must always be the subject of particular resolutions^668(*) : issues of titles with suppression of the preferential duty of subscription, that it is or not with the profit of a person called or with the profit of a category of people or, finally, with the profit of the adherent employees in the plan of saving of the company^669(*) ; the authorization of granting of options of subscription or purchase of actions with the employees^670(*) ; issues of shares preferably^671(*).

This means that the delegation of power that will have possibly granted the extraordinary general assembly the body of direction will not include the above-mentioned decisions. If the assembly wishes to delegate to the body direction her competence to decide these operations, each one of them must be the subject of a particular resolution^672(*).

Certain experts would have wished to see disappearing- or all at least reduced- the requirement from particular resolutions. However, they are there operations important, suitable for affect the rights of the shareholders in a considerable measurement. As, it is justified as the writers of the ordinance of June 24 2004 preserved this requirement, whose finality is the protection of the shareholders.

378. - The suppression of the preferential duty of subscription is a decision which arises exclusively at the extraordinary general assembly, and which cannot thus be deputy^673(*). It is the same for the granting for a priority period for subscription for the shareholders^674(*). This is easily justified by the fact that the suppression of the preferential duty of subscription and the possible granting of a priority period are likely to attack the rights of the shareholders. Consequently, it is comprehensible that the legislator does not call into question their exclusive competence to decide to carry reached- or not- to their own rights on the matter.

In any event, the capacity to decide on a new issue of capital- or to grant a delegation- will always pass through the extraordinary general assembly, this manifestation of sovereignty actionnariale being wanted by the European directives as regards company law.

379. - Another protection measure is the suspension of the delegations of powers and competence in certain circumstances.

The article L. 225-129-3 of the Commercial law lays out like « any delegation of the general assembly is suspended in period of public offer of purchase or exchange on the titles of the company ». The text reserves however an exception, if the delegation « falls under the normal course of the activity of the company and that its implementation is not likely to ruin the offer ».

The principle of the suspension of the delegation in period of offer is thus maintained. Nevertheless, it is not necessary any more to specify in the text of the resolution only the delegation can be used in period of offer ; it will be up to the council to make sure that the conditions necessary to the use of the delegation are well met and to show, if necessary, with the Authority of the financial markets which it is about a common management act.

The text is in conformity with the general Payment of the Authority of the financial markets^675(*), and the Commercial law comes here to be aligned on the regulations of the directive of April 21, 2004 on the public offers of acquisition^676(*). It takes part naturally of the safety device of the shareholders.

380. - Also let us recall that the delegations are limited in time, the delegation of power not being able to exceed twenty-six month^677(*) and that of being able, five years^678(*).

381. - Lastly, some limit hold with the rules surrounding fixing of the issue price.

* ⁶⁶⁶ Supra n° 21 and S.

* ⁶⁶⁷ Supra n° 21 and S.

* ⁶⁶⁸ Supra n° 40.

* ⁶⁶⁹ Art L. 225-135 with L. 225-138-1 C. Com.

* ⁶⁷⁰ Art L. 225-177 with L. 225-86 C. Com.

* ⁶⁷¹ Art L. 228-11 with L. 228-20 C. Com.

* ⁶⁷² Art L. 225-129-2 C. Com.

* ⁶⁷³ Art L. 225-135, Al 1st C. Com.

* ⁶⁷⁴ Art L. 225-135, Al 2 C. Com.- Rappelons that this right can be granted only if the titles of capital of the transmitter are allowed with the negotiations on a regulated market and if the preferential duty of subscription were removed. V. supra n° 76 and S.

* ⁶⁷⁵ Art 231-36 Payment MFA  : «  If they decide to achieve acts other than of current management, except for those expressly authorized by the general assembly of the shareholders joined together during the offer, the officers of the company concerned warn the MFA of it in order to allow him to take care of the information of the public and to make known, if it is necessary, its appreciation  ».

* ⁶⁷⁶ Directive EC n° 2004/25 of April 21, 2004 concerning the public offers of acquisition, art 9.3  : being the decisions taken before the advertisement of the offer and which yet partially or completely are not implemented, the general assembly of the shareholders or any decision confirms approves which does not fit in the normal course of the activities of the company and which can ruin the offer. - The possibility offered by article 12 of the directive to leave the choice to the companies to apply article 9.3 was not retained in France. 

* ⁶⁷⁷ Art L. 225-129-2 C. Com.

* ⁶⁷⁸ Art L. 225-129 C. Com.