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

2. Measurements of easing of the mode of the new issues of capital

55. - These measurements have mainly as an aim to soften the former rules in order to facilitate the new issues of capital while making it possible the transmitters to better answer the constraints imposed by the capital markets.

In fact, many rules are applicable to the only companies whose titles are allowed with the negotiations on a regulated market or, if they are generally applicable, have real interest only for these last.

56. - The ordinance of June 24, 2004 thus makes modifications to the mode of the new issues of capital with preferential duty of subscription (A), to the mode of the new issues of capital without preferential duty of subscription (b) and to the provisions applicable to the companies whose titles are the subject of an introduction out of purse (c).

a) New issues of capital with preferential duty of subscription

57. - After having evoked the rules applicable to the preferential duty of subscription (I), it will be considered the factors which contribute to lengthen the completion dates of the new issues of capital with maintenance of the preferential duty of subscription : duration of the period of subscription (II) and obligatory formalities of publicity (III)

(i) Rules applicable to the preferential duty of subscription

58. - Under article L. 225-132 of the Commercial law, the shareholders, who they are titular ordinary actions or actions preferably, have a preferential duty of subscription proportional to the amount of their actions to subscribe to the new issues of capital^158(*) ; this preferential duty is negotiable when it is detached from actions themselves negotiable and transferable in the contrary case ; the shareholders can give up on a purely individual basis with their preferential duty of subscription. The ordinance did not modify the article L. 225-132 of the Commercial law on these points.

59. - The ordinance supplements this provision to put it in coherence with the new provisions of the Commercial law, in particular by providing that the conversion of actions preferably into ordinary actions or that the issue of titles of capital resulting from the exercise of rights resulting from transferable securities giving access to the capital carry renunciation of the shareholders of the preferential duty of subscription for the actions or titles of capital resulting from the conversion^159(*) or the exercise of the right^160(*).

60. - The methods of exercise of the preferential duty of subscription were amended by the ordinance on the two following points : the competent authority to decide subscription on a purely reducible basis and the possibility of adjusting with the fall the amount of the operation.

The possibility of subscribing under capital on a purely reducible basis^161(*), after having subscribed on a purely irreducible basis^162(*), can be decided by the extraordinary general assembly and also, from now on, by the body of direction when this one received a delegation of the assembly^163(*), that it is a question of a delegation of powers or a delegation of power. Thus, if the general assembly does not come to a conclusion about the possibility of subscribing on a purely reducible basis, the body of direction délégataire will have always faculty to decide some.

Moreover, the adjustment with the fall of the amount of the new issue of capital, when the subscriptions did not make it possible to absorb totality of the aforesaid going up, can from now on be decided by the body of direction, except if the assembly in decided differently^164(*). This provision is important. It means that, from now on, the new issue of capital is, of light ferenda, automatically adapted to the effective request, except contrary decision of the extraordinary general assembly. This adaptation however is marked out by two parapets : the first, provided with the 1° of the article L. 225-134 of the Commercial law, imposes that the amount of the effective new issue of capital is at least equal to 75% of the decided increase^165(*) ; the second, envisaged with the article L. 225-135-1, makes it possible the assembly to envisage a extension^166(*), limited in time^167(*) and while going up^168(*), at the same price as that of the initial emission^169(*).

61. - The major modification made to the mode of the new issues of capital with preferential duty of subscription is due to the modification of the minimal duration of the period of subscription.

* ¹⁵⁸ With regard to the mode of the dismembered titles, the article L. 225-140 of the Commercial law lays out that, when the titles of capital are dismembered, the preferential duty of subscription belongs to the bare owner. In the event of sale of this right, the naps coming or the goods acquired by means of these sums are subjected to usufruct. If the bare owner neglects to exert his right, the usufructuary can replace him.

* ¹⁵⁹ Art L. 225-132, Al 5 C. Com.

* ¹⁶⁰ Art L. 225-132, Al 6 C. Com.

* ¹⁶¹ Subscription by the shareholders for a number of titles higher than that to which they could subscribe on a purely preferential basis, proportionally than the application rights they have.

* ¹⁶² I.e. proportionally under capital held by the shareholders.

* ¹⁶³ Art L. 225-133 C. Com.

* ¹⁶⁴ Art L. 225-134, I C. Com.

* ¹⁶⁵ This article applies only if the preferential duty of subscription is maintained.

* ¹⁶⁶ The practice of the market spoke about «  clause of extension  », or of «  on-allowance  » or of «  green shoe  ».

* ¹⁶⁷ Art 155-4 of the decree n° 67-236 of 23 March 1967, introduced by the decree n° 2005-112 of February 10, 2005  : limit fixed at 30 days as from the subscription closure.

* ¹⁶⁸ Art 155-4 of the decree n° 67-236 of 23 March 1967, introduced by the decree n° 2005-112 of February 10, 2005  : limit fixed at 15% of the initial emission.

* ¹⁶⁹ The article L. 225-135-1 of the Commercial law applies that the preferential duty of subscription is maintained or removed.