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

(ii) Duration of the period of subscription

62. - Under article L. 225-141 of the Commercial law, the minimal period of subscription was reduced ten to five market-days.

63. - Criticisms were numerous on the mode forcing applicable to the new issues of capital with preferential duty of subscription^170(*). The most delicate point was due to the completion date of a new issue of capital with maintenance of the preferential duty of subscription, which was of approximately three weeks. This time made run a risk of important market to the operation ; if the stock exchange price of the action has suddenly gone down below the price subscription the new actions, it is more interesting for the investors to acquire actions on the market than within the framework of the new issue of capital, and the latter court with the failure.

To avoid this risk, it is necessary to fix the price of subscription of the new actions at a sufficiently low level for reasonably estimating that it will not be reached by the stock exchange price of the action for the three weeks period. This explains the strong rebates noted during these last years on the operations with maintenance of the preferential duty of subscription. This rebate is not with the advantage of the transmitters insofar as it results in a less great collection of funds, nor of the existing shareholders, insofar as the transmitter tends to compensate for the weak price of subscription by creating more titles to reach the amount of awaited own capital stocks. In this last case, the operation can become very dilutive and the net income per share of the title can be seriously reduced, having a negative effect on the course, the title becoming gravitational for the investors^171(*).

64. - The duration of the period of subscription is a factor which is regarded as contributing to lengthen the completion dates of the new issues of capital with maintenance of the preferential duty of subscription.

The law of August 8, 1994 had already reduced the duration of the period of twenty days subscription to ten market-days. The legislator had indeed noted at the time the too long time was in fact unfavorable to the existing shareholders insofar as it introduced an important risk on the value of the right which could not be representative more.

But the experiment shows that the shortening of the period of subscription for ten market-days did not regulate the problems thus identified : « distributed on a ten days deadline, the orders arrive in a disordered way and thus induce extremely erratic courses [...]. Only a concentration of the orders over one shorter period is likely to better guarantee the economic representativeness of the market of the preferential duties of subscription »^172(*). The volatility of the price of the preferential duties of subscription is still very large and is even increased with the increase in the volatility of the subjacent actions.

The ten market-days period always contributed to the lengthening of the deadlines, making carry a significant risk of market to the transmitters, and requiring the application of rebates which remained significant, from where an evil for the existing shareholders.

65. - The fixing of the duration of the period of subscription has as a constraint time considered to be necessary so that the carriers of preferential duties of subscription can appreciate the nature of which is quoted to them, make a decision informed on the question and decide either to exert their right, or to sell it, or nothing to make.

66. - The five market-days deadline retained by the ordinance tries to answer criticisms evoked above. In the opinion of practice and author^173(*), this time remains nevertheless preserving and insufficient to reduce to a significant degree the completion dates of a new issue of capital with maintenance of the preferential duty of subscription.

The minimal time necessary so that the shareholders make a decision of investment was the subject besides of debates and lawful decisions in other contexts^174(*).

* ¹⁷⁰ V.P. there. CHABERT, «  The excessive framing of the operations of new issue of capital  », in Which future for the authorized capital  ?, Acts of the conference organized by the Research center in financial right of the University Paris I, Dalloz, 2004, under dir it. of A. COURET and H. NABASQUE, p. 45 and S.

* ¹⁷¹ Others criticize formal hold with the difficulty in organizing the opening of an operation with preferential duty of subscription for the international market. Insofar as the rights are negotiable and can be exerted constantly until the last day of the period of subscription per their carrier (initial or assignee), it is not possible to envisage how much titles will be available for the subscription by thirds at the end of the period of subscription. It is thus in practice very difficult to organize any placement of actions by a banking syndicate within the framework of such a new issue of capital, except so that an important shareholder decides to yield his preferential duties of subscription for a banking syndicate during the launching of the operation in order to allow him to ensure a pre-dimensioned placement. In addition, there is not possibility of determining the price of subscription of the new actions according to the real request of the market, as this is done within the framework of the international market. In the international operations, one period of pre-marketing is organized (in general, a week) in order to probe the market, the price being fixed at the end of this process. Within the framework of the new issues of capital with maintenance of the preferential duty of subscription, the obligation to fix the price at the time of the advertisement of the operation (and the publication of the opinion of issue of new shares with the BALO) and the duration of the operation make this approach impossible. The price is thus fixed not taking into consideration real possibility of placement of the actions, but of the risk of variation of the market of the title for the period of subscription.

* ¹⁷² Trémège REPORT/RATIO, rep. préc., p. 159.

* ¹⁷³ In this direction, 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° 46  ; Mr. BANDRAC, P. BIROTHEAU, C. DEBIN, J. - P. DOM, S. GAILLET, F. ROQUAIS and Mr. SUPIOT, «  The mode and the emission of the transferable securities after the ordinances of 2004  », art préc., n° 117.

* ¹⁷⁴ Thus, the Securities and Exchange Commission (COB) took for position that the minimal time of exercise of the certificates scrip within the framework of a new issue of capital with goods at open price was to be three market-days according to the date of price determination  ; this time is coherent with the three market-days deadline applicable to the offers at price open or the offers at price closed (Bull. COB 2002, n° 370, p. 30). It is also in adequacy with the three market-days deadline requested by the COB in the event of extension of a public offer following a modification of the initial terms of an operation of new issue of capital.