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

b) New issues of capital without preferential duty of subscription

72. - The principal innovations of the ordinance as regards procedure of new issue of capital lie finally in the mode applicable to the issues of titles of capital without preferential duty of subscription.

73. - The possibility of removing the preferential duty of subscription is maintained by the ordinance, given that that this suppression can relate to whole or part of the new issue of capital^183(*).

The ordinance modifies with the margin the conditions of suppression of the preferential duty of subscription. According to the article L. 225-135 modified Commercial law, when the general assembly decides the suppression of the preferential duty of subscription, it must rule on the auditors' certificate^184(*). On the other hand, when it authorizes the new issue of capital, delegating to the board of directors or the directory, according to case's, the capacity to decide it, the auditors' certificate is not necessary any more at the time of the general assembly^185(*) ; it must be produced at the time of the decision of emission taken by the body of direction.

74. - The article L. 225-135-1 of the Commercial law regulates with certainty the fate of the emissions sursouscrites, whether there are maintenance or suppression of the preferential duty of subscription^186(*). On the other hand, the same does not apply for the article L from there. 225-134 relating to the insufficiency of the subscriptions^187(*). Strictly speaking, this one appears applicable only to the only new issues of capital with maintenance of the preferential duty of subscription ; nevertheless, on the base of the old texts, the Securities and Exchange Commission had allowed the transmitters to set up systems of « lengthen » by fixing an amount of operation lower than that that they intended to obtain without having to cancel the operation if the subscription were insufficient, even if it means to increase if necessary the initial amount of the operation. The reasoning of the Securities and Exchange Commission having been elaborate in a different textual context, the question remains whole to know if the article L. 225-134 of the Commercial law is applicable in the event of emission with suppression of the preferential duty of subscription^188(*).

75. - These made observations, it is advisable to consider the modifications made by the ordinance, with the legalization of (I), the easing priority period of the rules of minimum price (II) and introduction of the flexibility of remuneration of contributions of titles except public offer of exchange (III).

(i) The legalization of the priority period

76. - The ordinance legalizes the principle of the priority period for the companies whose titles of capital are allowed with the negotiations on a regulated market^189(*). The priority right is an invention of the practice which organizes, in a contractual and voluntary way, the methods of subscription for a new issue of capital without preferential duty of subscription ; it is granted to the whole of the shareholders and allows them to subscribe, by priority with the thirds and in a way proportional to their share of capital, with the new issue of capital proposed, for one short period of time^190(*).

The reason of this already old practice is thus to make it possible the companies with dimensions to escape the times inherent in the new issues of capital with preferential duty of subscription and to ensure the primacy of the shareholder on the assumption of an emission per public call to the saving with suppression of the preferential duty of subscription.

77. - One can wonder about the reasons of this legislation. The authorities of market, the doctrines and the experts had recognized the validity of it for more than twenty years. The ordinance does not open any new flexibility for the priority right which could have required its intervention^191(*).

The article L. 225-135, subparagraph 2 of the Commercial law is restricted to specify that the use of the priority period can be decided by the extraordinary general assembly or the board of directors or the directory if the assembly delegated this power to him.

The ordinance also envisages a minimum time which is three market-days^192(*). This requirement answers the concern identified in the past to ensure a sufficient time to make it possible to the shareholders to be informed of the operation and to make their decision of exercise of the right of manner reasonable^193(*).

78. - Several questions arise in connection with this text.

First relative to is extended from the priority period. Admittedly, it is only conceived stipulated on a purely irreducible basis, or else there would not exist, but nothing prohibits that it is it also on a purely reducible basis^194(*). However, it should be noted that the Securities and Exchange Commission is at one time opposite there^195(*), undoubtedly because the introduction of a second turn would increase too the duration of the operation.

Another question is due to the nature of the time. The authors were divided on this point, some seeing a faculty by nonnegotiable nature there, not being institutionnellement related to the actions^196(*), others admitting contrary, being a diminutive of the preferential duty of subscription, the priority right would be a dismemberment of the transferable security, which could thus be stipulated negotiable^197(*). By specifying that the priority which can be founded in the companies with dimensions is a time, the article L. 225-135 of the led Commercial law, seems it, not not to see a right there. However, as had noted it an author, the fact that the text is restricted to mention a priority period does not prevent that it is a priority right, obligation being made at the company hardly respect it sanction^198(*). For as much, fault of being built-in in a title^199(*), it does not appear negotiable and would be thus simply transferable in the forms of the civil law, except contrary stipulation^200(*).

79. - One sees in this legalization all the current ambiguity of the mode applicable to the new issues of capital, which at the same time wishes to reconcile the concern of the protection of the existing shareholders in their giving a right to subscribe to the new issues of capital and the requirement for speed of execution to face the constraints of market.

Thus the ordinance tries to mitigate certain deficiencies of the mode of the new issues of capital with preferential duty of subscription while legalizing and giving ahead the priority right which brings a greater flexibility in the management of the calendar and thus allows to reduce the exposure of the operation to the risk of market^201(*). The application of the rules of minimum price could however remain a barrier to the use of this right which was only little used since the market trends towards the goods of application for shares^202(*).

* ¹⁸³ Art L. 225-135 C. Com.

* ¹⁸⁴ V. will infra n° 390.

* ¹⁸⁵ The general assembly must always rule within sight of an auditors' certificate for the authorizations reserved for people called or categories of people meeting given characteristics (art L. 225-138 C. Com.), the authorizations to increase the capital «  with the wire of water  » (art L. 225-136, I, Al 2 C. Com.), new issues of capital reserved for paid (art L. 225-138-1 C. Com.), and the granting of options of application for shares (art L. 225-177 C. Com.).

* ¹⁸⁶ Supra n° 60.

* ¹⁸⁷ Supra n° 60.

* ¹⁸⁸ In favor of this transposition, A. COURET and H. NABASQUE, transferable Securities- New issues of capital- Nouveau mode- Schedule of March 25 and June 24, 2004, COp préc., n° 216.

* ¹⁸⁹ Art L. 225-135, Al 2 C. Com.

* ¹⁹⁰ The resting priority right on a new issue of capital with suppression of the preferential duty of subscription, the rule of the minimum price described will infra n° 81 and S. applies.

* ¹⁹¹ J. - Mr. DESSACHÉ, «  Rules specific to the companies with dimensions  : the easing of the rules of emission  », in the new right of the transferable securities after the reform of June 24, 2004, art préc.

* ¹⁹² Art 165, III, of the decree n° 67-236 of 23 March 1967, introduced by the decree n° 2005-112 of February 10, 2005.

* ¹⁹³ The priority period was generally ten days calendar in the years 1980, then was shortened with the wire of time. The operations carried out since 1995 rest on priority periods generally ranging between five and seven days. The COB took for position into 1987 that the priority period was to be of at least five days calendar (Bull. COB 1987, n° 202, p. 7).

* ¹⁹⁴ In this direction, P.D' HOIR, the reform of the transferable securities & new issues of capital, COp préc., p. 21  ; «  Reform mode of the transferable securities  », Banks & Droit 2004, n° 97, p. 64.

* ¹⁹⁵ Bull. COB 1990, n° 239, p. 5.

* ¹⁹⁶ S. DANA-DESMARET, «  Authorized capital  », Reference mark. plowshare Dalloz, n° 149.

* ¹⁹⁷ G. ENDRÉO, «  Priority right of subscription under capital  », Banking rev. Dr. 1987, 114.

* ¹⁹⁸ G. ENDRÉO, «  Priority right of subscription under capital  », art préc, 118.

* ¹⁹⁹ H. Causse, marketable securities, Litec, coll Bib. of right of the company, 1993.

* ²⁰⁰ In this direction, P.D' HOIR, the reform of the transferable securities & new issues of capital, COp préc., p. 21  ; «  Reform mode of the transferable securities  », Banks & Droit 2004, art préc.

* ²⁰¹ The new issue of capital with priority right can be carried out in one week against three weeks for the new issue of capital with preferential duty of subscription.

* ²⁰² Only three operations were carried out since the beginning of the year 2001 on the First market with priority period, including two bearing on ABSA and not of the ordinary actions and the third in a particular context of recapitalisation above the stock exchange price.