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

(ii) Limits related with the fixing of the issue price

382. - It was already specified that, in the event of delegation of powers, this one relates only to the definition of the methods of issue of the titles, the general assembly deciding of the increase and by fixing the amount^679(*). In the same way, in the event of delegation of power, the extraordinary general assembly must fix the total ceiling of emission.

The body of direction is thus not seen delegating these faculties, which always arise from the only competence of the general assembly of the shareholders.

383. - The article L. 225-136, 2° of the Commercial law specifies in addition that, for all the emissions carried out by way of public call to the saving by companies not - dimensioned, as well as the emissions by companies with dimensions of nonassimilable titles of capital, « the issue price or the conditions of fixing of this price is determined by the extraordinary general assembly ».

It is the same for the new issues of capital reserved for people called or categories of identified people^680(*).

384. - Moreover, it was seen that the rule of « ten among the twenties » in the event of new issue of capital with public call to the saving was removed, to be replaced by a new mechanism^681(*). The objective was to reconcile the protection of the shareholders with the taking into account of the constraints of the market. The rules of minimum price indeed aim at guaranteeing rights minimum to the shareholders.

An author^682(*) criticizes however the new mechanism installed, while asserting that the practice of the last years shows the maladjustment of the rules of minimum price resting on historical observations^683(*). The real protection of the shareholders comes from the good reflection of the market under the conditions of fixing of the price, the real risk for the shareholders being an artificial dilution related to the fixing of a price lower than than the market would have been ready to offer. It would thus seem more convenient to stick to the methods of realization of the placement than to an unspecified history of course. The author suggests as well as reflections are initiated on the possibility of carrying out the new issues of capital without preferential duty of legal or lawful unconstrained subscription of minimum price, since the price is fixed within the framework of an elaborate process of placement and confrontation of the offer and request, as for example within the framework of construction of a book of orders. The protection of the shareholders will be ensured by the establishment of the contract price through the operations of placement.

385. - In the event of emission « with the wire of water »^684(*), the legislator also provided the protection of the shareholder of the transmitting company. Let us recall that this emission makes it possible to put on the market of the new stocks and shares of capital while escaping the lawful constraint from fixing from the price.

In order to ensure the protection of the shareholders, the board of directors or the directory does not have the capacity to freely fix the issue price of these new issues of capital. According to the letter of the text^685(*), the general assembly must envisage the methods of fixing of the issue price, the board of directors or the directory being then competent dependant on this point. The ordinance does not frame the methods being able to be retained by the general assembly which can profit consequently from a great freedom like, for example, to envisage the reference at a price fixes or an average of course or a price which can come out from a process of confrontation of the offer and request such as the construction of a book of orders within the framework of a public placement, with or without rebate.

386. - These protective rules are supplemented by the right of information of the shareholders.

* ⁶⁷⁹ Supra n° 32. The authors however are divided on the question.

* ⁶⁸⁰ Art L. 225-138, I C. Com.

* ⁶⁸¹ Supra n° 81 and S.

* ⁶⁸² 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° 60.

* ⁶⁸³ The new mechanism, like the old one, is based on historical observations  : the issue price is at least equal to the weighted average of the course of the three last meetings of purse preceding the day by the fixing of this price, possibly decreased by a maximum rebate of 5% (art 155-5 of the decree of March 23, 1967).

* ⁶⁸⁴ Supra n° 85 and S.

* ⁶⁸⁵ Art L. 225-136, 1° C. Com.