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

b) The information of the shareholders

387. - The information of the shareholders is fundamental so that those can make in all knowledge of causes the decisions which relate to them. Also, the law and the decree of March 23 1967 put at the load of the bodies of direction and the auditors a certain number of reports/ratios given full details for purposes to inform the shareholders on various points as regards new issue of capital.

388. - On a purely preliminary basis, it is recalled that the ordinary general assembly is joined together at least once per annum, in the six months of the end of the financial year. The board of directors or the directory then submits to the assembly his report/ratio as well as the annual statements and, if necessary, the group accounts accompanied by the annual report y related^686(*).

This report/ratio includes/understands an objective and exhaustive analysis of the evolution of the businesses, results and financial standing of the company, in particular of its debt position, taking into consideration volume and complexity of the businesses.

For what concerns us, the article L. 225-100, subparagraph 7 of the Commercial law precise which is « joint with this report/ratio a summary table of the valid delegations granted by the general assembly of the shareholders to the board of directors or to the directory in the field of the new issues of capital, by application of the articles L. 225-129-1 and L. 225-129-2. The table reveals the made use of these delegations during the exercise ». The follow-up of the delegations appears indeed necessary^687(*).

389. - Then, the board of directors or the directory^688(*) must draw up a supplementary report at the time of certain events.

It is thus at the time of the implementation of a delegation of powers or competence^689(*), the report/ratio describing inter alia the final conditions of the operation established in accordance with the authorization given by the assembly^690(*). This report/ratio is submitted at the following general assembly.

It is the same when he is made use of a delegation as regards new issue of capital « with the wire of water »^691(*), the report/ratio describing the final conditions of the operation and giving background information on the incidences on the situation of the shareholders^692(*). This report/ratio is certified by the auditor.

It is finally thus when it is made use of one delegation at the time of a suppression of the preferential duty of subscription for the profit of a category of people^693(*), the report/ratio describing inter alia the final conditions of the operation^694(*). This report/ratio, certified by the auditor, is submitted at the next general assembly.

In all assumptions, in the event of subdelegation, the designated people must return account to the board of directors or to the directory of the made use of the powers delegated under the conditions envisaged by the latter^695(*).

390. - The auditor is also held to draw up certain reports/ratios, even certifications, as regards new issue of capital.

Initially, the auditors draw up a report/ratio at the assembly which decides a new issue of capital by removing the preferential duty of subscription^696(*) ; it is the same when the assembly fixes the price or the conditions of fixing of the price at the time of a suppression of the preferential duty of subscription for the profit of people indicated by name or categories of people^697(*). In this report/ratio, the auditor delivers his opinion on the proposal for a suppression of the preferential duty, on the choice of the elements of calculation of the issue price and on his amount, like the incidence of the emission on the situation of the holders of titles of capital and transferable securities giving access to the capital appreciated compared to the stockholders' equity and, if necessary, on the quoted value of the action. He checks and certifies the sincerity of information drawn from the accounts of the company on which he delivers this opinion^698(*).

The auditors also draw up a report/ratio at the assembly which authorizes the council or the directory to fix the issue price per public call to the saving of assimilable titles according to methods' which it determines^699(*), and when the assembly fixes the price or the conditions of price determination in the event of issue of nonassimilable titles^700(*).

In the second place, the auditors certify the supplementary reports of the board of directors or the directory relating to the use of a matter delegation, on the one hand, of fixing of the issue price of assimilable titles and, on the other hand, emission to the profit of a category of people^701(*).

391. - In the event of issue of new shares involving a new issue of capital, with preferential duty of subscription^702(*), the shareholders receive specific information, by an opinion containing various indications. In particular the opinion specifies the amount of the increase in the capital, the dates of opening and subscription closure, the face value of the actions or transferable securities giving access to the capital to be subscribed in cash, that this value appears or not in the statutes, and, if necessary, the amount of the issue premium ; it also indicates the immediately exigible sum by action or transferable security giving access to the subscribed capital, if necessary, summary description, the evaluation and the mode of remuneration of the contributions in kind included/understood in the new issue of capital with the indication of the provisional character of this evaluation and this mode of remuneration, the indication that if the not subscribed actions represent more than three percent of the new issue of capital, the subscription either will be opened with the public, or limited to the amount of the received subscriptions^703(*).

In the companies not - dimensioned, this opinion is made available of the shareholders by letter registered with request for notice of receipt, at least fourteen days before the date envisaged of closure subscription. In the dimensioned companies, it is inserted, within the same time, a note published in the Bulletin of the legal and obligatory advertisements^704(*).

392. - Like the device of information of the shareholders as regards actions preferably, information as regards new issue of capital is particularly provided. The safety device of the shareholders, finally, is supplemented by the mode of the sanctions applied in the event of violations of certain rules evoked in the preceding developments.

* ⁶⁸⁶ Art L. 225-100 C. Com.

* ⁶⁸⁷ This table does not have however to be drawn up by SAS, the article L. 225-100 of the Commercial law being inapplicable to them (art L. 227-1 C. Com.).

* ⁶⁸⁸ Or the competent authority in the SCA and SAS.

* ⁶⁸⁹ Art L. 225-129-5 C. Com.

* ⁶⁹⁰ Art 155-2 of the decree of 23 March 1967, modified by the decree of February 10, 2005.

* ⁶⁹¹ Art L. 225-136, 1°, Al 2 C. Com.

* ⁶⁹² Art 155 of the decree of 23 March 1967, modified by the decree of February 10, 2005.

* ⁶⁹³ Art L. 225-138, Al 2 C. Com.

* ⁶⁹⁴ Art 155-2 of the decree of 23 March 1967, modified by the decree of February 10, 2005.

* ⁶⁹⁵ Art L. 225-129-4 C. Com.

* ⁶⁹⁶ Art L. 225-135, Al 1st C. Com.

* ⁶⁹⁷ Art L. 225-38, II C. Com.

* ⁶⁹⁸ Art 155-1, Al 2 of the decree of 23 March 1967, modified by the decree of February 10, 2005.

* ⁶⁹⁹ Art L. 225-136, 1° C. Com. and art 155-2 of the decree of 23 March 1967, modified by the decree of February 10, 2005. - New issue of capital «  with the wire of water  ».

* ⁷⁰⁰ Art L. 225-136, 2° C. Com. and art 155-2 of the decree of 23 March 1967, modified by the decree of February 10, 2005.

* ⁷⁰¹ V. supra n° 389.

* ⁷⁰² Supra n° 68 and S.

* ⁷⁰³ Art 156 of the decree of 23 March 1967, modified by the decree of February 10, 2005.

* ⁷⁰⁴ However, if the company calls public upon the saving, information on the final price of the emission can be made available of the shareholders by an official statement diffused by the company according to methods' provided for by the general regulation of the Authority of the financial markets, at the latest the opening day before of the subscription. In this case, the opinion published in the Bulletin of the legal and obligatory advertisements indicates the conditions of fixing of the price and diffusion of the official statement.