? DEA 122 - Right of the Company ?

INSTALLATION

RIGHTS OF THE SHAREHOLDERS

AFTER THE ORDINANCE OF JUNE 24, 2004

Under the direction of Madam Professor Brigitte BERLIOZ-HOUIN

JULIEN CARSANTIER

___

2004-2005

? DEA 122 - Right of the Company ?

With my father

whose support is invaluable for me

With my grandfather

Voltaire

Philosophical dictionary

Garnier, Paris, 1870-1880.

Antoine de Rivarol

Spirit of Rivarol

Various works, Paris, 1808.

LIST PRINCIPAL ABBREVIATIONS

SYNOPSIS

Detailed contents appear at the end of the report

INTRODUCTION ................................................................................................................................ 8

FIRST PART: A NEW SPACE OF FREEDOM CONTRACTUAL: A PRIMARILY ECONOMIC INSTALLATION A FINALITY 20

A. The simplification of the mode of the new issues of capital 20

1. The widening of the delegations 22

2. Measurements of easing of the mode of the new issues of capital 33

B. The issue of the shares preferably 51

1. Contents of the actions preferably 53

2. The creation of the actions preferably 78

3. Limits with contractual freedom 86

SECOND PART: THE PROTECTION OF THE SHAREHOLDERS : NECESSARY COUNTERPART OF FREEDOM OCTROYEE 96

A. The protection of the shareholders at the time of creation and disappearance of actions preferably 96

1. Protective measurements at the time of the creation of actions preferably 97

2. Protective measurements at the time of the disappearance of actions preferably 103

B. The protection of the shareholders at the time of some operations 117

1. Protective measurements of the carriers of actions preferably 117

2. Protective measurements of the shareholders relative to the increases in capital 124

GENERAL CONCLUSION 134

BIBLIOGRAPHY 136

INDEX ...................................................................................................................... 139

CONTENTS 142

1. - « Sudden company law under our eyes of the major changes which upset the landscape of the law of 1966 that one believed stable for a long time »^1(*). Since the adoption of the last great company law, July 24, 1966^2(*), the context economic and financial evolved/moved considerably under the influence of the Community legislation, the creation and the development of new financial instruments, of the recognition of the market economy and universalization. The new company law- which is still to build- will announce by confidence restored to associated and the rehabilitation with contractual freedom. It is the era of the deregulation.

2. - The law of July 24, 1966 constitutes the base of the French right of the commercial companies, significantly supplementing the provisions of the common right of the companies contained in the Civil code^3(*) and representing a notable progress as well from the point of view of protection of the thirds as of that of the associates. In accordance with the dominant ideology of the time, it is strongly marked by the interventionism weighing of the State, fruit of a managed economy and a political state intervention, where the interaction between the large companies, the public sector and the State is large. The legislator then locks up the management engineering and of social control in a rigid corset, the company law- it is especially true for the joint stock companies and the limited liability companies- being placed under the seal of a regulation very meddle, together with a multiplicity of civil and penal sanctions which testifies to the preponderance of the institutional character of the company^4(*).

However, the text of 1966 does not have vocation to govern the whole of the company law, being intended to apply only to the commercial companies^5(*) ; the civil companies are thus excluded from the field of application of the law of 1966. Among the first, it is possible to distinguish between those which emit actions- on which will carry the present study- and those which cannot it. The action, category of transferable securities^6(*), constitutes a title of capital of a company, freely negotiable and transmissible by inscription in account or tradition- in opposition to the social share-, and which notes the rights of its holder- the shareholder- in a company enabling him to take part in the assemblies and to see itself allotting a fraction of the benefit and profit of liquidation. Only the limited companies, the limited partnerships with share capitals and the joint stock companies simplified are authorized to emit actions, other than all others^7(*).

3. - The rights of the shareholders- i.e. the stockholders of capital of SA, a SCA or SAS- knew certain installations during thirty-five last years. Naturally, the shareholders profit from the fundamental attributes attached to the quality of associate, as enacted by the Civil code, among which one distinguishes the political rights (or extra-pecuniary) and the financial rights (or pecuniary).

The first proceed of the idea that the associate is citizen of this city which is the company. It results from it, first of all, that this citizenship cannot be withdrawn to him against its liking^8(*), this suffering principle however some exceptions of legal,^9(*) statutory or^10(*) jurisprudential origin^11(*). Then, « any associate has the right to take part in the group decisions »^12(*). This prerogative revêt two forms : the first is the right to information of associated on the accounts and the social policy ; the second is the voting rights which enables him to take part in the strategic decisions and to exert its right of control on the leaders, by revoking them to the need. The right for any associate to take part in the group decisions is of law and order, the statutes consequently not being able to derogate from these provisions ; more precisely, they cannot contain a suppression for some associated with the voting rights in a case not envisaged by the law^13(*).

The seconds result owing to the fact that the company is not a philanthropic institution : the associates enter there to earn money. The emoluments are expressed primarily by the perception of dividends, which correspond to the distribution of the benefit carried out, and by a right to the reserves, which represent the retained earnings. With the winding-up of the company, the profit of liquidation will be divided between the associates.

Lastly, the rights of the shareholders obey the principle of equality, insofar as the rights attached to each action are equal. Nevertheless, this principle does not have the same range as in constitutional law. The voting rights are indeed attached to the actions and, by principle, a shareholder has as many voice as of actions ; from this point of view, the mode is uneven. In addition, the law admits the possibility of creating particular actions^14(*) enjoying certain advantages by reports/ratios with the other actions ; also, in fact, the equality of the shareholders is worth only for the of the same actions category.

4. - In the contractual theory of the company, the shareholder is the owner. He consequently has to be able it revocation of the leaders, whom he can exert in the general assemblies. These last thus have in theory a fundamental role in the exercise of the rights of the shareholders in the company, which must express the unconditional primacy of the shareholding. However, the legislator of 1966 shows himself somewhat being wary with regard to the shareholder, compared to the speculator or the small-time speculator, and tends to grant a certain confidence to the managerial class. Also, the law of July 24, 1966 takes part of this will to ensure a balance between the control of the shareholders and the capacity of the managers- of which objectives and the roles appear divergent, if not sometimes contradictory-, by enacting a regulation meddles as for the control and management engineering of the company^15(*). Of nature interventionist, the law makes social interest the compass of the company ; the leaders have significant capacities^16(*) with the reason which the shareholders would have reflecting the ultimate capacity, which is made effective only by legal^17(*) mechanisms and civil^18(*) sanctions, even of the penal sanctions of the considerations of general interest. The shareholders are supposed to direct or control the company during the meeting of general assemblies whose rules were strictly codified. This design is a transposition of the rules of the political power within the commercial companies : common will of the shareholders expressed in assembly results designation from a board of directors, which itself appoints a president, who follows the policy of the company.

Ultimately, the law of 1966, if it sets certainly up a protective framework of the shareholders and thirds, more tends to devote an imposed model of organization of the company, thus giving a certain institutional character on the latter.

5. - Since then, the context economic and financial evolved/moved considerably. The law was amended with many recoveries in order to take into account these evolutions, but they always were specific modifications or groomings without overall vision. The doctrines and the practice then called some with an in-depth reform of the law of 1966^19(*). Two series of arguments are then advanced in support of this pleading in favor of a recasting of the company law.

On the one hand, the system set up by the law of July 24, 1966 appears unsuited per hour of a standard dominating which rests on the protection of the shareholder- in particular of the minority shareholder- and the valorization of its rights which is essential taking into account the recourse crescents to the markets. In theory, the assembly of the shareholders plays a fundamental part in the exercise of the rights of the shareholders in the company ; actually, taking into account the intermittent character of this body and of the difficulties of implication of the shareholders, but also of the very broad capacities conferred by the law to the social leaders^20(*), the shareholders have little effective possibility to take part in the determination of the policy of the company^21(*). This phenomenon is all the more increased in the companies calling public upon the saving, insofar as the crumbling of the shareholding is more important there than in the companies not - dimensioned. Consequently, rise to power of the firms « managerial » accentuated the conflicts of interests between shareholders and managers and the lack of transparency in social management. It is in this context that burst a certain number of financial scandals^22(*) starting from the end of 1980, of a width such as they destabilized the financial system world and involved a loss of confidence of the small carriers, without counting the impact on thousands of paid and shareholders, as well as diverted billion. These events were accompanied by what one called « the revolt of the shareholders », furious to be misused by the social leaders. It became imperative then to reassure the shareholding and to restore the confidence of this last on the solidity of the companies. The Treadway commission, in 1987 in the United States, and the Cadbury report/ratio, in 1992 in the United Kingdom, started again the reflection on the concept of corporate governance, trend of public opinion appeared in the United States in the years 1970 which posts for objectives to ensure the transparency of financial information and to rebalance the capacities within the companies^23(*). In France, the concept- one speaks about « government of company »- was imported^24(*) following the business of the Crédit Lyonnais and was the subject of many writings^25(*), having had inter alia for effect to carry to its paroxysm the claim of the rights of the small carrier. Indeed, these « new » shareholders intended to require leaders of companies « that they develop the funded capital, assigning to them like objectives the effectiveness of management and the honesty of the division of the benefit »^26(*).

In addition, the law of 1966 does not tally any more with the increasing need of contractualiser the company law and to create a liberal environment. The regulation is judged far too omnipresent, representing a major obstacle in a context of globalisation of the markets and international competition. This does not want to say to give up any concept of social interest, but to recognize that it is necessary a control, and that it is that which invested in the company which is the best controller and whose reasoned and balanced interest is the best benchmark. For this reason, the criminal law should intervene only exceptionally, which implies certainly one « judiciarisation » with American in front of the civil courts, but which seems preferable with the bureaucratization and the penalization^27(*). In addition, a many formal obligations of the law of 1966 became obsolete, heavy and do not correspond any more to economic reality. The users of SA complain about the unflexibility of this social form ; fault of being able to model with their own way the statutes of the company because of bolts instituted by the legislator- for example, as regards majorities-, the parts are condemned to derogate from the statutes which they have written they-even by assistant protocols or pacts whose legal solidity is sometimes dubious^28(*).

6. - These reflections led to successive legislative reforms.

To mitigate the rigidity of SA, the legislator in 1994 a new social form instituted : the joint stock company simplified (SAS). The governing idea is to offer to the users a form of organization of the company as close as possible to a company-contract, of which the main part of the rules of operation would proceed of the convention of the parts, the regulation of SA being applicable for the surplus. A law of July 12, 1999 increased the flexibility of this social form by eliminating certain initial constraints and while making it possible to the physical people to be associated of SAS, which was prohibited to them initially^29(*).

Thereafter, the law on the new economic regulations- known as « law NRE » - of May 15, 2001^30(*) introduced considerable provisions directly inspired of the principles of the corporate governance by improving information and the transparency into operation of the limited company and by rebalancing the capacities in its center^31(*). In addition, in response to the crisis of confidence that for a few years the financial markets following the deviances noted in the management of certain companies have known^32(*), the law of financial safety of August 1, 2003 was adopted^33(*) per which the legislator sought to improve control of the accounts and to reinforce the transparency in the operation of the companies^34(*), while dépénalisant certain intrigues. Laws NRE and of financial safety aim to the first chief the companies which call upon the saving publicly. The quotation of the company utilizes moreover, apart from the company law, the stock exchange right, which has vocation to ensure the protection of the investor ; one should not protect only the shareholder, but also that which was it or which could become it, i.e. in a general way the saver^35(*). For as much, the recent reforms do not concern that the companies with dimensions and of many provisions also apply to the companies not - dimensioned, the legislator not having taken true party enters, on the one hand, the adaptation on a case-by-case basis of certain rules for the companies with dimensions and, on the other hand, the creation of distinct modes for the companies with dimensions and the companies not - dimensioned^36(*). The present study will consequently consider the adjustment of the rights of the shareholders as well in the companies with dimensions as not - dimensioned, taking into consideration company law, without operating dichotomy.

The legislator thus carried out a legal refitting of the rights of the shareholders- reinforcement of the rights of intervention and information- and to a relative easing of the rules applying to the in particular- commercial companies-, upsetting somewhat the diagram of social organization fixed by the law of 1966.

7. - There remained however a last source of rigidity relative to the financing of the company. The creation of new richnesses, the investment of the saving in own capital stocks of the companies and the prosperity of those constitute a major stake for the French economy from the point of view of the large European single market and universalization. For this purpose, the contractors need the legal structures best adapted, the company law not having to constitute a barrier to the development of the companies^37(*), in particular in a current context of « law shopping ». This is particularly true being the creation of new instruments or new financial techniques.

The French practice^38(*) denounced the absence, in French substantive law, of legal tools making it possible to answer waitings actors of the capital risks and the capital development, where it is a fact that the American practice was essential. This was all the more prejudicial with the French companies that other substantive laws allow the installation of such a vehicle ; however, the investors go to simplest and choose the investment of which the mechanisms are familiar for them. It thus went from there from the competitiveness of our companies and the attraction of the Place of Paris.

Beyond the sometimes qualified- recent reforms « stacking of texts hold-all »^39(*)-, the need for an adaptation of the texts to the needs for the practice was done increasingly pressing, very continuously to ensure the transparency and safety necessary to the shareholders, the creditors and the employees. For this purpose, it was proposed to continue the reform of the right of the movable being and issues of securities desired by the CNPF in 1993^40(*) and 1994 introducing beyond a new category of titles : actions preferably^41(*). The provisions governing the movable issue of securities by the joint stock companies resulted from a whole of texts worked out by successive layers during fifty last years^42(*) ; also, a recasting having for object the consistency and the modernization of the whole of the texts on the matter was awaited. In the same way, the wish to see completed the reform of the right of the new issues of capital, started by the law of August 8, 1994^43(*), was done insistent ; the introduction of a greater freedom for the transmitters each time that was possible was claimed by the professionals. Reinforcement of the protection and the representation of the holders of titles giving access in the long term to the capital, easing of the emission rate of the obligations... The hopes of the economic actors were numerous.

8. - The ordinance of June 24, 2004^44(*) was thus awaited. Neither its width, nor its content could astonish. The provisions which it contains have inspired indeed by various projects known for several years, in particular the proposals put forth by the CNPF in 1993^45(*) or, more recently, the common report/ratio of the French Association of the private companies (AFEP), of the national Association of the joint stock companies (ANSA) and of the Movement of the companies of France (MEDEF), « For a modern right of the companies », diffused in October 2003^46(*).

In what it operates of the profound changes in the French right of the companies, this text is founder. It comprises a certain number of innovations having milked at the joint stock companies particularly- with regard to the right of the transferable securities-, the posted objectives^47(*) of the ordinance being the simplification of the movable issues of securities, the unification of the applicable procedures and the attractivity of the French place for the investors^48(*) . Also, in addition to a series of disparate measurements, the reform is ordered primarily around two axes : new issue of capital and transferable securities emitted by the joint stock companies.

In this respect, the ordinance prolongs a preceding ordinance n° 2004-274 of 25 March 2004, bearing simplification of the right and formalities for the companies^49(*). This last text modifies the company law on two points, on the one hand, by arranging the mode of the limited liability companies^50(*) and, on the other hand, while proceeding to a de-penalization partial of the company law. An overall movement thus exists and consists in allowing the joint stock companies, to be not only financed more easily, but also to facilitate the reports/ratios which can exist between capital and to be able.

9. - The development of the ordinance of June 24, 2004- like that of the ordinance of March 25, 2004- did not follow the process normally reserved to a supposed text to provide the foundations of the right of the investments deprived in the commercial companies^51(*). It is indeed advisable to recall that it is the product of a criticized legislative method^52(*), or all at least suspect^53(*), which consists, for the legislative power, to delegate to the executive power whole sides of its competence in order to « to simplify the right » or to carry out codings or transpositions of Community directives. With the particular case, it is true that the need for an adaptation of the texts to the needs for the practice was done increasingly pressing. Also, the law of July 2, 2003^54(*) had authorized the Government to be adopted by ordinance of measurements raising normally of the legislative power in various fields of the economic right. Pursuant to articles 26, 4° and 35, 2° of this law of enabling, the Government was to take, by ordinance, before July 3, 2004, « all measurements in order to simplify and to unify the mode applicable to the transferable securities of the commercial companies ». One year and half later, the law of December 9 2004 of simplification of the right^55(*) was promulgated, ratifying inter alia the ordinance of June 24, 2004^56(*).

The decree of application was to be published on February 10, 2005^57(*), that is to say nearly eight month after the ordinance, which was the subject here also of criticisms^58(*). Waiting was indeed felt as a kind of paralysis by the companies for which the issue of titles constitutes an act running, all the more makes an attempt distressing that it was not only about one simple not differed from entry into force, but one period of great uncertainty as for the applicable mode. The doubt real, was inflated by the exceptionally significant number of references to a decree in Council of State, maintained in addition by divergent interpretations the situation on certain neuralgic points^59(*).

As from February 13, 2005, the shortly after its publication in the Official Journal, the text of the decree came into effect^60(*), and leaving that the ordinance of June 24, 2004, with each time the application of this one was differed.

10. - In addition to measurements relating to the liberalization of the duty applicable to the transferable securities and the easing of the right of the new issues of capital^61(*), the ordinance contains a certain number of scattered general provisions affecting the company law^62(*).

On a purely preliminary basis, the ordinance carries out a certain conceptual organization by introducing a new terminology for the types of transferable securities emitted by the joint stock companies; it distinguishes from now on, on the one hand, them « titles of capital »^63(*) and them « transferable securities giving access to the capital »^64(*) - which covers the whole of the securities transferable suitable for affect the capital- and, in addition, them « evidences of indebtedness »^65(*) and them « transferable securities giving right to attribution of evidences of indebtedness »^66(*). In addition, always in a preoccupation with a simplification, the legislative definition of the transferable securities is carried today by the article L. 211-2 of the monetary and financial Code, to which returns from now on the article L. 228-1 of the Commercial law^67(*) ; this alignment of the Commercial law, as « code following » on the monetary and financial Code, « code pilot », can only contribute to the coherence of the company law and of the financial right^68(*). In addition, the ordinance legalizes faculty, with the profit of the dimensioned same companies, to impose, by the way of statutory stipulations, the personal form for whole or part of the capital^69(*) ; in parallel, companies not - dimensioned from now on are authorized to emit titles of capital or credit to the carrier^70(*), the field of the obligation of information relating to crossings of threshold being adapted^71(*). Lastly, that the titles are with dimensions or not, the transfer of property in the event of transfer of transferable securities is carried out at the date of inscription in account of the purchaser^72(*).

The ordinance also makes creative work in three connections. First of all, in the dimensioned companies, the sale of the actions corresponding to the rights forming broken at the time of a fusion or of a scission from now on is authorized^73(*). Then, being the exercise of the rights nonpecuniary attaches to the transferable securities registered out of account-joint, it is the convention of opening of account which must determine one or the other of the Co-holders^74(*). Lastly, question of titles in déshérence, which obstructs the companies extremely wishing to carry out operations on the capital when the address of certain very minority shareholders appears obsolete, is solved^75(*) by the installation of a specific procedure consisting of the sale of the titles whose holders cannot be joined^76(*).

The recourse to the clauses of approval moreover is facilitated. The principle of the validity of the clauses of approval, in the companies not - dimensioned, is reaffirmed but from now on at the head article L. 228-23 of the Commercial law^77(*). More substantially, the clause of approval can concern, either only the transfers of shares, but also of titles of capital or transferable securities ; in addition, the text does not limit any more the clauses of approval to the transfers with a third, thus opening the door with approvals between shareholders. An important practical precision is also inserted into the article L. 228-24 of the Commercial law : yielding sees itself offering, constantly, a faculty of repentance^78(*), including subsequently to the fixing of the price of the titles by an expert in the absence of agreement between the parts^79(*).

Lastly, the mode of the regrouping of the actions of companies not - dimensioned undergoes some tiny modifications^80(*), while the practice consisting in negotiating not yet emitted actions is legalized by the ordinance^81(*).

11. - Notwithstanding the above mentioned provisions, the ordinance of June 24, 2004 comprises three principal innovations, having milked with the new issue of capital, the creation of the actions preferably and the édiction of a unified mode of the made up transferable securities. The two first will hold our attention in what they affect the rights of the shareholders. Indeed, the question of the mode of the transferable securities giving access in the long term to the capital and of the protection of their holders does not concern the subject of this study insofar as the latter do not constitute shareholders of the company^82(*) in which they hold titles^83(*).

The actions preferably, indisputable innovation of the ordinance, replace old disparate titles- the preferred stocks, the actions with priority dividend without voting rights, the certificates of investment and the certificates of voting rights-, whose law regulated in detail the mode^84(*). The new device grants a great freedom to the companies to emit titles whose characteristics result from the statutes, which allows the leaders and the shareholders of origin to be able to answer with flexibility waitings of the investors and is also appropriate for certain assemblies of groups.

The reform of the right of the new issues of capital continued by the text takes part of this same will to attract new investors by facilitating the techniques of financing of the companies. The easing and the simplification of many measurements on the matter, in particular by a recasting of the mode of the financial authorizations, adapt the right to the practices and needs for the financial markets.

12. - On this last question, the new right appears to propose relatively clear provisions, even if the legal work of interpretation is necessary. On the other hand, the topic of the actions preferably touches with the last great principles of the company law : equality of the shareholders and the respect of the voting rights of the shareholders ; it is the same, although to a lesser extent, being the reinforcement of the delegations of powers in the operations of new issue of capital. Moreover, within sight of certain vacuums left by the text, it is allowed to wonder about their practical consequences, « since the company law, touched in its heart, wavers, its balance loses and does not find its base in the only lines of the new text. »^85(*)

If it is not yet possible to evaluate the way in which the practice will implement this reform, a first response to these concerns can however be brought. The granting of a greater freedom in favor of the transmitters could not indeed have been done without continuing to ensure the protection of the shareholders and the transparency of the operation of the companies. Also, as regards new issue of capital, being the delegations to the body of direction of the company- on the capacity to decide on an increase for example-, their mode it is strictly framed by the law. In the same way, concerning actions preferably, if it is possible to vary largely the rights which are attached there, it is nevertheless certain rules of general law and order and law and order of the company law which must be respected. The information of the shareholders was in addition reinforced, in order to protect as well the ordinary shareholders as the holders from actions preferably. Various protective measurements of the shareholder-savers thus accompany the liberalization operated by the ordinance by June 24, 2004, while waiting for the inevitable contribution of jurisprudence on the dispute to come.

13. - Thus, the ordinance of June 24, 2004 opens the voice of a greater flexibility by arranging a space of freedom to the profit of the transmitters of the company law (I), answering the concern and waitings of the economic agents, while accompanying this liberalization by a series of measurements necessary to the maintenance of the protection of the shareholders (II).

I. A NEW SPACE OF FREEDOM CONTRACTUAL: A PRIMARILY ECONOMIC INSTALLATION A FINALITY

14. - Since the years 1970, the increase in the needs for financing for the companies, the economic or financial crises successive returning the financing by more difficult loan, the internationalization of the capital markets, the competition of the foreign companies laid the stress on the importance of the access to the resources capital and conduit to a progressive easing of the rules relating to the new issues of capital and the transferable securities in a general way^86(*).

15. - The ordinance of June 24, 2004, answering at the requests of the place synthesized in various reports/ratios of the professional organizations^87(*), marks an additional stage in the recasting of the company law by creating a new category of titles, the actions preferably (B), and while bringing certain easings intended to facilitate the realization of the new issues of capital (A). In fact thus at the same time the emitted titles and the techniques of emission are affected by the ordinance.

A. The simplification of the mode of the new issues of capital

16. - The last significant reform of the provisions of the Commercial law relating to the new issues of capital went back to a little more than ten years. In response to the requests of the professionals who had presented complete, detailed and innovative proposals^88(*), the Government had endeavoured to implement a certain number of measurements of simplification and flexibility.

This work led to the law of August 8, 1994 carrying various provisions of a nature economic and financial^89(*). In particular, this text introduced the faculty of total delegation granted to the board of directors, by the means of a single resolution giving to the board of directors the capacity to proceed, within 26 month, with issues of all titles giving access immediately or in the long term to the capital ; it authorized the subdelegation with the chairman of the board for purposes to adopt the final conditions of the operations considered ; it reduced the period of exercise of the preferential duty of twenty days subscription calendar for ten market-days ; finally, it specified that in the event of suppression of the preferential duty of subscription without indication of the name of the payees, the price of subscription must be at least equal to the average of the courses noted during ten market-days consecutive chosen among the twenty last (rule known as of « ten among the twenties »).

17. - These measurements, if they constitute easings intended to facilitate the realization of the new issues of capital, immediate or in the long term, were not enough to put an end to criticisms. It was reproached to the legislator for not having followed until the end the logic suggested by MEDEF in his report/ratio^90(*) and to have thus broken the coherence of the suggestions which had been made to him.

The result of this half-measure and the sedimentation of former legislative work was a regulation complex and scattered, variable according to the emitted products and leaving perdurer constraints not very compatible with the requirements of the capital markets^91(*).

18. - One of the axes of the ordinance of June 24, 2004 is thus the continuation of the easing of the mode applicable to the new issues of capital^92(*).

Several provisions of the ordinance return to modifications which were to be made to the decree of March 23, 1967. It is thing made since February 13, 2005, date of entry into force of the decree of application of the ordinance.

19. - On a purely preliminary basis, the ordinance clarifies the mode of the new issue of capital by extending the range of the provisions of the Commercial law which govern it with the whole of the new issues of capital which can result from the emission of the various types of transferable securities.

The article L. 225-127 of the Commercial law specifies as well as the authorized capital of SA- and by reference that of the SCA^93(*) or SAS^94(*) - can be increased either by the issue of shares (ordinary) or actions preferably, or by the increase of the par value of the existing titles of capital, or by the exercise of rights attached to transferable securities giving access to the capital.

Moreover, the procedure of issue of titles of capital and that relating to the movable issue of securities giving access to the capital or giving right to attribution of evidences of indebtedness^95(*) obey a unified mode from now on resulting from the articles L. 225-129 with L. 225-129-6 of the Commercial law, which replaces the various modes previously applicable to the emission of these transferable securities.

20. - These made observations, the improvement of the right of the new issues of capital, such as it results from the ordinance of June 24, 2004, results at the same time in a lightening of the procedures of emission, made effective by a widening of the delegations on the matter (1), and by various measurements of simplification of the mode of the new issues of capital (2).

1. The widening of the delegations

21. - The liberalization of the emission of the transferable securities passes by the improvement of the devices making it possible to the leaders to carry out issues of titles without having to proceed to the convocation of a general assembly, which comprises constraints and uncertainties. The new device makes it possible moreover to improve the reactivity of the companies

The ordinance deeply amends the modes of decision of the new issues of capital and the technical articulation of the delegations. The old article L. 225-129 of the Commercial law is thus substantially rewritten^96(*).

22. - While calling into question the principle of the exclusive competence of the extraordinary general assembly of the shareholders to decide the principle of a new issue of capital (A), the ordinance touches with a fundamental aspect of the balance of power within the joint stock companies. The practical methods of operation of the new system of delegation set up by the ordinance (b) call consequently with a thorough analysis.

a) End of the exclusive competence of the extraordinary general assembly

23. - To the ordinance of June 24, 2004, the extraordinary general assembly of the shareholders was exclusively qualified to decide on a new issue of capital ; the reform of 1994 had not called into question this principle. It was considered whereas was by no means to be called into question « the principle of sovereignty of the general assembly of the shareholders for all the acts which engage the existence, the image or the development of the company, among which figure obviously the decision to emit transferable securities giving access to the capital »^97(*).

In support of this design, it was advanced, on the one hand, that the new issue of capital supposes a modification of the statutes and, on the other hand, that the authorized capital is, not only one essential element of the distribution of the capacities between the shareholders, but still constitutes the pledge of the creditors^98(*).

24. - However, the legislator of 1994 seemed ambivalent on the real range of this principle. On a side, came under the responsibility of the extraordinary general assembly formally : the decision to increase the authorized capital, the fixing of the amount of this increase and the determination on behalf of this increase being able to be realized without preferential duty of subscription^99(*). On another side nevertheless, certain provisions let show through the fact that the concept of authorized capital was already in germ in the reform of 1994^100(*).

25. - If the extraordinary general assembly were formally qualified to only decide principle of a new issue of capital, the article L. 225-129 of the Commercial law, under the empire of the legislation former to the ordinance, however authorized the assembly, after having voted the operation of increase in the capital, to delegate to the board of directors or the directory^101(*) the care to carry out this operation. ; a delegation of the capacities of realization of the new issue of capital was thus possible.

Contrary to the restrictive distribution of the capacities evoked in parliamentary work^102(*), the text of the old article L. 225-129 of the Commercial law adopted a rather flexible approach of the delegation of the capacities of realization of a new issue of capital^103(*). In fact, the generally recognized practice was that the extraordinary general assembly delegated to the board of directors or the directory the right to carry out issues of titles giving access to the capital or not to use this delegation, envisaged a maximum amount of emission and not the amount of the emission or emissions which it would have decided, and indicated the maximum amount of capital which can be emitted without preferential duty of subscription.

The extent of this delegation was thus connected more with one authorization of emission that to a delegation of realization of an emission of capital decided by the general assembly extraordinary and become obligatory

26. - If the ordinance of June 24, 2004 opens a formal breach in the exclusive competence of the extraordinary general assembly to decide the new issues of capital, it comes in makes confirm former interpretations and the practice.

The article L. 225-129, subparagraph 1st of the Commercial law, modified by the ordinance, explicitly devotes the concept of authorized capital. From now on, the board of directors or the directory can be seen delegating by the extraordinary general assembly the power to decide on an immediate new issue of capital or in the long term.

One will however note the concern of the writers of the ordinance of not separating great principles too easily. The first sentence of the article L. 225-129 recalls indeed that « the extraordinary general assembly is only qualified to decide an immediate new issue of capital or in the long term » ; but it can be deprived some with the profit of the board of directors or the directory. One thus needs a decision of the extraordinary general assembly of the shareholders to give to the board of directors or the directory, according to case's, a capacity to decide itself a new issue of capital. This decision can be renewed regularly, but a statutory provision would not make it possible to delegate in a permanent way to the bodies of direction the power to increase the capital.

The adjustment of the rights of the shareholders, if it is real, will consequently be made effective only by their will. By giving a delegation to the directory or board of directors, the shareholders give certainly up part of their prerogatives, but this in a voluntary way.

The approach thus adopted by the ordinance is in conformity with the possibilities offered by the second European directive of December 13, 1976^104(*).

27. - The extraordinary general assembly has from now on three choices.

It can decide new issue of capital itself by fixing the whole of its methods, pursuant to the article L. 225-129, subparagraph 1st of the Commercial law^105(*).

It can decide new issue of capital and delegate to the board of directors or the directory, pursuant to the article L. 225-129-1 of the Commercial law, the capacity to lay down the methods of them ; this delegation is framed by the obligation to carry out the new issue of capital within the five years deadline of as from the decision or the delegation^106(*).

She can finally delegate to the board of directors or the directory, pursuant to the article L. 225-129-2 of the Commercial law, her competence of decision within the limits determined by the general assembly ; this delegation is framed by the obligation for the general assembly to fix of it the duration, which cannot exceed twenty-six month, and to determine the total ceiling of it.

b) Methods of the widening of the delegations

28. - The difference between the article L. 225-129-1 and the article L. 225-129-2 is published simple.

Under article L. 225-129-1, the extraordinary general assembly « decide » the new issue of capital, it can delegate to the board of directors or the directory it « to be able to carry it out », the latter fixing them then « methods » of the emission ; it will be refers in the species at the end of « delegation of powers »^107(*) (I).

Under article L. 225-129-2, the extraordinary general assembly can « to authorize »^108(*) the new issue of capital, it can delegate to the board of directors or the directory it « to be able to decide it », the latter fixing them then « conditions » of emission ; it will be then refers in the species at the end of « delegation of power » (or « authorization of emission ») (II).

29. - The ordinance of June 24, 2004 regulates the fate of the delegations in progress, while stating that the delegations granted by the extraordinary general assemblies before to the publication of the ordinance remain valid until their term, except contrary decision of a new extraordinary general assembly. However, the methods of exercise of these delegations are controls by the provisions of the ordinance as of its entry into force^109(*).

(i) The delegation of powers

30. - The delegation of powers envisaged with the article L. 225-129-1 of the Commercial law is published simple. This simplicity is however only apparent, the text concealing of many traps on the way in which the general assemblies will have from now on to decide. In particular, the range of the delegation of powers appears dubious.

31. - The first question which installation is to know if the body of direction delegated for the realization of a new issue of capital under the terms of the article L. 225-129-1 A competence bound or not.

The article L. 225-129, subparagraph 2, which frames the new issues of capital carried out pursuant to the article L. 225-129-1, lays out that « the new issue of capital must [...] to be realized within five year », suggesting that the deputy body of direction would be dependant competent for the decision taken by the general assembly.

However, one notes that the article L. 225-129-4 preserve the possibility for the person subdelegate by the board of directors or the directory to postpone to decide the realization of the new issue of capital, including if this decision would be made pursuant to the article L. 225-129-1.

The ordinance having for objective to give more flexibility to the transmitters and to better adapt the mode of the new issues of capital to the constraints of the capital markets, it should be concluded from it that in spite of the imperative formulation of the text, the board of directors or the directory preserves any freedom to carry out or not the new issues of capital decided by the extraordinary general assembly, in so far as the latter formally gave him the capacity to postpone its decisions^110(*).

32. - Another question arises as for the point of knowing if one can authorize a issue of titles within the limit of a maximum amount within the framework of the article L. 225-129-1 of the Commercial law.

The delegation of the old article L. 225-129, that is to carry out emissions of particular categories of titles^111(*) or within the framework of the total delegation^112(*), clearly envisaged the possibility for the assembly of delegating to the board of directors or the directory a capacity of emission within the limit of a ceiling which it had fixed, the board of directors or the directory having the capacity of « to fix the amounts »^113(*) of the emissions. But neither the article L. 225-129, nor the article L. 225-129-1 evoke from now on the possibility for the general assembly of fixing ceilings of emission^114(*).

The article L. 225-129-1 gives however to the board of directors or the directory the capacity of « to lay down the methods of the issue of the titles ». The question is then to know if it should be concluded from it that the extraordinary general assembly can decide to increase the capital pursuant to the article L. 225-129-1 within the limit of a ceiling which she would fix, leaving with the board of directors or the directory the care to fix the amount of the aforesaid the increase.

The authors are divided on the question. The majority think that if one allows, within the framework of the article L. 225-129-1, to delegate to the body direction the capacity to realize with its liking of the new issues of capital within broad limits, that would return so that the article L. 225-129-1 gives, in fact, an authorization of emission similar to that envisaged by the article L. 225-129-2 ; however, in the state of the text, the creation of an authorization of emission seems well the only intention of the article L. 225-129-2. These authors conclude while writing : « the delegation of powers is distinguished, seemed it, of the delegation of power in that that the assembly decides, by construction, a new issue of capital to which it assigns an amount, and not only one ceiling »^115(*). An author^116(*) reasons however a contrario, thinking that to limit the article L. 225-129-1 to decisions not leaving any flexibility in the amount of the emission other than that to postpone the aforementioned emission of interest the recourse in this article deprives significantly ; the text would not offer whereas a flexibility of implementation technical of a new issue of capital decided by the general assembly. Consequently, the time of five years use envisaged by the article L. 225-129, subparagraph 2, would not have any more a smell. The author thinks in conclusion that it is preferable to retain the interpretation according to which « methods of the issue of the titles » decided by the board of directors or the directory relate to the amount of the emission and that the general assembly can consequently fix a ceiling of new issue of capital within the framework of the delegation of powers.

33. - The new device also brings to wonder whether the article L. 225-129-1 of the Commercial law or not makes it possible to operate a total authorization of emission^117(*).

The old article L. 225-129, III, clearly established the distinction between the emissions by categories of titles (2nd subparagraph) and the total resolution (3rd subparagraph). Only the article L. 225-129-2 fact today reference to the possibility for the general assembly of fixing a total ceiling of new issue of capital, to the articulation with the delegations former and the obligation to envisage particular resolutions for certain emissions of titles, which are the corollaries of the total delegation.

If the article L. 225-129-1 were intended to carry total delegation, the provisions of 2nd, 3rd and 4th subparagraphs of the article L. 225-129-2 would have being factorization common of the two articles^118(*). Moreover, if it were allowed to carry out a total delegation on the basis of article L. 225-129-1, one would not include/understand the duplicative character of the two articles.

It thus does not appear possible to carry out a total authorization starting from the delegation of realization of a new issue of capital.

34. - Lastly, it will be noted that the article L. 225-129-1 of the Commercial law does not give to the board of directors or the directory the capacity to note the realization of the new issues of capital which result from the use of its delegation and to carry out the correlative modification of the statutes. This omission is curious insofar as this appears in the last subparagraph of the article L. 225-129-2 and appearing in subparagraphs 2 and 3 of the old article L. 225-129, III.

Consequently, in theory, a delegation given by the extraordinary general assembly to the board of directors or to the directory to carry out the correlative modification of the statutes a new issue of capital realized pursuant to the article L. 225-129-1 would be null^119(*). One could nevertheless consider that the last subparagraph of the article L. 225-129-2^120(*) also applies to the delegations of the article L. 225-129-1 ; such a reading is however very dubious in the state of the text.

35. - These made observations, it is specified that the extraordinary general assembly can of course fix, in addition to the ceiling and/or the amount of the operation, other methods- price issue, mode of release, etc- thus limiting the freedom of the body of direction in the exercise of the deputy capacities. One will point out moreover that the powers delegation of asserts on the body direction, which must carry out the new issue of capital decided by the assembly within the time limit, namely five years with more^121(*)- unless the assembly formally did not authorize the body delegated to postpone the operation^122(*).

36. - Taking into consideration uncertainty relating to the range of the delegation of powers and sanction of the violation of the articles L. 225-129 and following of the Commercial law- which remains the nullity of the new issue of capital^123(*)-, a particular prudence will have to govern the use of the article L. 225-129-1.

(ii) The delegation of power

37. - The article L. 225-129-2 of the Commercial law is in fact a resumption of the provisions which appeared in the old article L. 225-129, III, organizing the total delegation introduced by the law of August 8, 1994.

The assimilation of the delegation of power to the total delegation presents a natural logic insofar as, as indicated above^124(*), the use of a delegation of powers were somewhat artificial, the extraordinary general assembly délégant makes of it with the council the whole of the capacities necessary to decide new issues of capital to its discretion in the envelope of the amount fixed by the assembly.

38. - Under article L. 225-129-2 of the Commercial law, the extraordinary general assembly can thus delegate her competence to the body of direction, this delegation investing this last of faculty to decide, like not deciding to increase, the authorized capital.

The assembly cannot however leave an absolute freedom to the body of direction, since it must fix at least two limits : duration of the delegation, which cannot exceed twenty-six month^125(*), and the total ceiling of the new issue of capital. Subject to these two limits^126(*), the delegation of power can be very broad and leave any freedom to the body délégataire to lay down the methods of the new issue of capital.

Contrary, the assembly can limit the freedom of the body of direction. She can thus specify the nature of the transferable securities to emit, fix a ceiling for each one of them, their issue price or the methods of determination of this price, etc

39. - Some limit to the globality of the delegation envisaged in this article also continue to apply in the new mode and some complementary particular resolutions were added (1). The implementation of the article L. 225-129-2 calls moreover several remarks having milked with the question of the office plurality of the delegations (2) and with the subdelegation with the social leaders (3).

(1) The requirement of particular resolutions

40. - The article L. 225-129-2, subparagraph 3 of the Commercial law always imposes the vote of particular resolutions for the following operations : new issues of capital without preferential duty of subscription^127(*), new issues of capital complementary for purposes to allow the exercise of options of surallocation^128(*), new issues of capital without preferential duty of subscription and at free price realized by the companies dimensioned within the limit of 10% of the authorized capital per annum^129(*), the new issues of capital with people called or categories of people meeting determined characteristics^130(*), the new issues of capital reserved for paid company or companies which are dependant for him^131(*), the new issues of capital resulting from the granting of options of application for shares^132(*) and the issues of shares preferably^133(*).

41. - The methods of application of the provisions of the article L. 225-129-2 to the specific new issues of capital taken pursuant to these particular resolutions require some developments, which relate on the times applicable to the particular delegations, on the capacities given to the body of direction and to the applicable ceilings.

42. - First of all, it must be specified, being a question of the articulation of the texts, that the commentators^134(*) consider that the provisions of the article L. 225-129-2 of the Commercial law apply to the new issues of capital being the subject of particular resolutions^135(*).

The article L. 225-129-2, subparagraph 3 requires indeed « particular resolutions » but states by no means that the article L. 225-129-2 is inapplicable with these specific operations. Moreover, the application of the article L. 225-129-2 to the particular resolutions is necessary to give them a coherent mode.

Consequently, it is necessary to consider that the mode of the article L. 225-129-2 applies to the specific increases, under two limits however. First is that when the provisions of the Commercial law relating to certain particular resolutions envisage regulations specific contrary to those of the article L. 225-129-2, these specific provisions are essential then^136(*). Second is that the specific operations can be taken within the framework of the delegation of powers and not of the delegation of power ; in this case, the provisions of the article L. 225-129-2 do not have naturally vocation to apply^137(*).

43. - Impact of the article L. 225-129-2 over the period of validity of the particular delegations. Taking into account the preceding developments, the authorization to carry out new issues of capital without preferential duty of subscription would remain limited well to one duration of twenty-six month^138(*) and not to the five years duration envisaged by the article L. 225-129. It would be the same for the authorization to carry out a new issue of capital complementary for purposes to allow the exercise of options of surallocation, a new issue of capital without preferential duty and at free price carried out by the companies dimensioned within the limit of 10% of the capital per annum, the issue of shares preferably and a new issue of capital reserved to the employees.

On the other hand, the authorization to carry out new issues of capital with people called or categories of people meeting given characteristics is limited to eighteen months^139(*) ; the authorization to carry out new issues of capital resulting from the granting of options of application for shares as for it is limited to thirty-eight month^140(*).

44. - Impact of the article L. 225-129-2 on the capacities of the bodies of direction delegated in the event of particular delegations. When the body of direction profits from a delegation, it would have, because of application of the article L. 225-129-2, to have in all the cases particular resolutions of the capacities necessary to fix the conditions of emission, to note the realization of the new issues of capital which result from it and to carry out the correlative modification of the statutes^141(*).

Naturally, the body of direction lays out moreover specific complementary capacities granted by the articles relating to the specific increases of capital referred to above.

45. - Impact of the article L. 225-129-2 on the ceilings of emission. Unless otherwise specified in the articles relating to the particular resolutions^142(*), the whole of the new issues of capital resulting from the particular resolutions seem to have to charge itself to the total ceiling of the article L. 225-129-2^143(*).

The reference to « total ceiling » does not seem however not to prevent the extraordinary general assembly, within the limit of the total ceiling, to envisage specific for certain categories of transferable securities or unquestionable counter ceilings standard of emissions^144(*).

(2) Office plurality of the delegations

46. - Under article L. 225-129-2, subparagraph 2 of the Commercial law, adoption of the total delegation « deprive of effect any former delegation having the same object ».

This brings to wonder on the new delegations likely to be voted after the vote of a total delegation and about the effect of the vote of a new total delegation on the former delegations.

47. - New delegations likely to be voted after the vote of a total delegation. The old article L. 225-129 of the Commercial law deprived of effect any former delegation and prohibited that it is taken by it news^145(*). This last prohibition was removed insofar as it let think that the assembly could not repeal one delegation in progress any more to replace it by another, which would have been very detrimental for the companies having to carry out a financial transaction for which a new delegation asserts itself.

From now on, the extraordinary general assembly can, as of many companies usually make it, to renew their financial delegations annually, even if the preceding delegation is still valid.

The suppression of prohibition results also in to allow the companies having adopted the total resolution to be able, for the period of validity of this delegation, to authorize new issues of capital not having it « even object » that the initial delegation, without calling into question the latter.

Ultimately, it is possible for a company which would have granted a total delegation, and during the period of validity of the latter, on the one hand, to agree of the delegations of powers for the realization of specific operations pursuant to the article L. 225-129-1 of the Commercial law^146(*) and, on the other hand, to authorize of the delegations of power pursuant to the article L. 225-129-2, given that that if these delegations do not have the same object that the former delegations, these last will survive.

48. - Effect of the vote of a new total delegation on the former delegations. The effect of a new delegation on the former delegations depends on their respective objects ; only are from now on null and void the former delegations « having the same object »^147(*).

The definition of the object of the delegation lends to discussion. One can define the object of a delegation compared to several criteria : the nature of the delegated powers^148(*), the nature of the authorized transferable securities^149(*), the nature of the operations concerned^150(*) or it natural of the investors^151(*).

If the above-mentioned criteria are retained, several conclusions are essential. Initially, a delegation of powers should resist a total delegation of power^152(*). In the second place, a total delegation of power which would not preferably aim the issue of shares (or any other transferable security) should not be called into question by the later adoption of a delegation of power relating specifically to the issue of shares preferably (or this other transferable security). In third and last place, a total delegation of power which would not aim the realization of an offer to paid (or with other potential subscribers) should not be called into question by the later adoption of a delegation of power relating specifically to the realization of an offer with paid (or with these other potential subscribers).

On the other hand, a delegation of power doing nothing but modify the methods of application of a former resolution- for example, modification of the ceiling of emission- would deprive of effect the former delegation.

49. - On the basis of there, force is to note that if the ordinance leaves an increased flexibility to make coexist different delegations, it goes somewhat against the intention of the legislator of 1994 who had introduced the total resolution to simplify the delegations and to improve the legibility and the transparency of the authorizations in progress. In addition, the very great complexity of the application of the rule of the office plurality of the delegations, partly related on the multiplicity of the situations met, but also to the often sibylline drafting of the text, in fact a nest with dispute and grounds for revocation.

Vis-a-vis this report of a less protective framework of the shareholders and of an increase in the legal insecurity of the financial transactions, it is allowed to doubt the cogency of the rule of nullity enacted with the article L. 225-129-2, subparagraph 2 of the Commercial law. If this rule were repealed, the shareholders would decide by themselves on the effects of the new delegations on the former delegations. The protection of the shareholders could then be approached under the angle of information^153(*).

(3) The subdelegation with the social leaders

50. - The article L. 225-129-4 of the Commercial law shows the possibility for the board of directors or the directory of limited companies whose titles are allowed with the negotiations on a market regulated under-to delegate its capacities^154(*), the delegate being then held to account for the use of these capacities^155(*).

The ordinance extends the number of under-délégataires potentials^156(*). Thus, the board of directors can under-delegate to the general manager, even, in agreement with this last, with (X) directing (S) general (with) deputy (S) and the directory under-to delegate to his president, even, in agreement with this last, with the one of his members, the capacities to decide the realization of the emission like postponing it, and either only the capacity to carry out the new issue of capital.

51. - The text envisages limits specific to this authorization of emission being able to be given to the leaders, neither in terms of ceiling- that fixed by the extraordinary general assembly imposing itself-, neither in terms of times, nor as for the conditions of the emission.

It rests to the board of directors to impose such limits, the delegation having to be « within the limits which it will have fixed beforehand »^157(*).

52. - The faculty of subdelegation being intended to allow the leaders, in economic situations marked by the volatility and the instability of the financial markets, to adapt the methods of an emission given to the conditions of markets existing most recent and foreseeable, it would be unusual to proceed to a subdelegation with the leaders of the whole of the powers delegated to the board of directors or to the directory by the extraordinary general assembly.

53. - Without revolutionizing the principle of the delegations, the modifications made by the ordinance of June 24 2004 carry out a suitable update of the texts all while bringing convenient changes there. The reorganization of the provisions allows a clearer reading and a more obvious visibility of the mode of the delegations. The introduction of a new distinction enters of « delegations of powers » and of « delegations of power », as well as the simplification of their mode, allow a better adaptation of the mechanism of the delegation to the requirements of a market which requires an optimal reactivity. The reform thus sought to introduce a greater flexibility into the decision-making processes, under the control of the shareholders.

54. - The ordinance supplements the reorganization of competences and the system of delegation by specific modifications of many rules applicable to the various types of new issues of capital.

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.

(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(*).

(iii) Formalities of publicity

67. - The second component of the reform of the preferential duty of subscription is in article 156 of the decree of 23 March 1967, modified by the decree of February 10, 2005.

68. - Article 156 of the decree of March 23, 1967 laid out that the shareholders are informed of the issue of new shares and its methods by an opinion which, in the case of companies calling upon the saving publicly, « is inserted in a note published into the Bulletin of the obligatory legal advertisements (BALO), at least six days before the date of opening of the subscription » ; in the case of companies not calling publicly upon the saving, the opinion was to be made available of the shareholders by letter registered with request for notice of receipt within the same time.

In a practical way, this six days deadline before the date of opening of the subscription delayed the launching of the subscription and was thus strongly criticized. The note with the BALO presented moreover the disadvantage for the transmitters of making lose between three and five days before its effective diffusion^175(*) ; if one adds the six calendar days which were envisaged by article 156 of the decree, nine to eleven days were already used by the formalities of publicity.

This six days deadline could find a justification in 1953^176(*), at one time when the information was not diffused also quickly and uniformly only today and where a certain time could be necessary to take note of information appearing in the BALO. Today, this requirement raises more constraints than it does not protect the interests from the shareholders.

69. - Also, the ordinance of June 24, 2004 removed the six days deadline before the opening of the subscription and set up of new formalities.

If the company calls public upon the saving, the publication of an opinion with the BALO is obligatory, the time being at least fourteen days before the date envisaged of the subscription closure. This measurement constitutes a sensitive improvement compared to the former mode. The ANSA and MEDEF had required a particular flexibility for the publication of the price, which was obtained : the publication of the only price can be delayed compared to that of the opinion published in the BALO and to appear in a simple official statement diffused, according to methods' provided for by the general Regulation of the MFA, at the latest the opening day before of the subscription.

If the company does not make public call to the saving, same at least the fourteen days deadline before the date envisaged of the subscription closure is applicable ; the information of the shareholders must be made by letter registered with acknowledgment of delivery^177(*).

70. - In the companies not - dimensioned, it frequently happens that a financing in own capital stocks, on the methods of which the qualified majority of the shareholders expressly decided and which a certain number of subscribers accepted, must quickly be implemented after the decision of the general assembly^178(*). A process consists in carrying out the new issue of capital during the assembly. One can wonder whether this process is licit taking into consideration text new.

After the vote of the assembly on the decision to increase the capital, it would be proposed to the shareholders to give up, by one second resolution, with the fourteen days deadline because of circumstances which are indicated and which make urgent the operation. This mechanism would be obviously used in practice when the board of directors is certain unanimous approval of the shareholders. The assembly would be then suspended in order to be able to carry out and note the new issue of capital^179(*).

71. - In conclusion, if these modifications are in conformity with the second European directive of 1976^180(*), the completion date of a new issue of capital with preferential duty of subscription will be for as much reduced only of approximately four days and will remain always higher than fifteen days. It is a question there of a quite insufficient effort to seriously reduce the risk of market and the rebate which results from this^181(*).

One cannot that to reiterate the proposals already made^182(*) consistent, on the one hand, ensure the publicity of the new issue of capital per way of press release, and, on the other hand, to reduce the total period between the date of publicity referred to above and the closing date of the period of subscription for one period much more short, on line with the international practices of market- what will undoubtedly suppose a de-dusting of the second Council Directive of 1976.

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(*).

(ii) Rules of fixing of the price

80. - The ordinance removes the rule of « ten among the twenties » (1), allows the new issues of capital « with the wire of water » (2), softens the methods of emission per public call to the saving with suppression of the preferential duty of subscription in the companies not - dimensioned (3) and amends the provisions relating to the new issues of capital reserved for people called or categories of people meeting given characteristics (4).

(1) Suppression of the rule of « ten among the twenties »

81. - The rule of « ten among the twenties » was a device anti-handling of course and protection of the minority shareholders.

To the ordinance of June 24, 2004 and since 1983, the article L. 225-136, 2°, of the Commercial law required, during an emission by public call to the saving without preferential duty of new application for shares conferring the same rights as old actions, than the companies with dimensions retain an issue price « at least equal to the average of the courses noted for these actions during ten days consecutive chosen among the last twenty market-days preceding the beginning by the emission ».

This rule of protection of the shareholders in place, intended to avoid the interventions of last minute on the market and the excessive dilution of the shareholders, had become a handicap in period of volatility of the markets^203(*). In other words, it constituted an obstacle with the traditional new issues of capital in periods of strong stock exchange fluctuations. Also, the practice, more or less followed by the Securities and Exchange Commission, it had imagined palliatives : selection of the stock exchange price low of each meeting, resort to the made up transferable securities and the lines of action^204(*).

The rule of « ten among the twenties » the focal point of criticisms carried on the former diet. However, the history of this rule shows the astonishing excuses of the legislator on this point^205(*).

82. - The ordinance of June 24, 2004 removes finally the rule of « ten among the twenties » with the profit of a new mechanism which was established by the decree of February 10, 2005.

The article L. 225-136 of the Commercial law lays out from now on that : « The emission by public call to the saving, without preferential duty of subscription, titles of capital is subjected to the following conditions: for the companies whose titles of capital are allowed with the negotiations on a regulated market and insofar as the transferable securities to emit in an immediate or differed way are assimilable for them, the issue price must be fixed, according to methods' envisaged by decree in Council of State taken after consultation of the Authority of the financial markets [...] ».

New article 155-5 of the decree of 23 March 1967, introduced by the decree of 10 February 2005, more liberal than the former mode, provides that 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%.

This solution reduces uncertainty on the product of the emission : it indeed avoids a strong volatility and an influence on the last price stock exchange not desired^206(*).

83. - However, as for the modification of the mode applicable to the preferential duty of subscription, this reform of the rule from the «10 among the 20» translated a will to take into account the constraints of market but without assuming it fully. It is to be feared that the companies and the banks belonging to the underwriting syndicates, according to the circumstances of market, consider that there is a risk that, over the period of placement and construction of the book of orders, a market bear can make impossible the fixing of the price in the compliance with the new rule. An element moreover which should push the experts to be continued to privilege the use of the goods of application for shares.

84. - Thanks to the new technique of the emission known as « with the wire of water », the general assembly of the shareholders have however a room for additional maneuver.

(2) Technique of the new issue of capital « with the wire of water »

85. - The article L. 225-136 of the Commercial law specifies, in its 2° : « However, within the limit of 10% of the authorized capital per annum, the extraordinary general assembly can authorize the board of directors or the directory to fix the issue price according to methods' which it determines within sight of a report/ratio of or directory, and the special report/ratio board of directors of the auditor [...] ».

Thus the new issue of capital is allowed known as « with the wire of water » or « uninterrupted », in order to allow the companies to emit part of their titles under the best conditions, without however carrying reached in a too important way to the rights of the shareholders that the purpose of the rule of fixing of the price is to protect.

86. - Such a possibility was already allowed on the assumption of a repurchase of actions^207(*), and it had been noticed that it was paradoxical to strongly frame the issue of new titles and to leave almost free to the transfer of existing titles car-prisoners^208(*).

This new flexibility comes to put a term at uncertainties which could surround the equity lines, these programs of emission « uninterrupted » allowing a company to emit, in several sections with its discretion, actions which are subscribed by a credit institution then replaced, as far as possible, by this last in the market^209(*). In order to avoid certain potential negative impacts of the credit limits actions on the market, the Securities and Exchange Commission had specified the mode applicable to the equity lines^210(*). The essential legal question raised by this mechanism was that of the possible fraud to the law^211(*) - there was not misuse of procedure ? The ordinance of June 24, 2004 removes the doubts on the matter and makes it possible today to consider without risk the direct placement of the titles of capital near the public.

Nevertheless, the equity lines had to date a mitigated success. They are reserved for companies of small or average size, having a strong need for financing in capital (biotechnology, high technology), and presenting a profile of possible growth. The other transmitters, which represent the great majority and include/understand the large French companies, will probably continue to privilege the realization of new issues of capital largely opened with their shareholders and which allow to optimize the price of subscription- rather than to ratify a systematic rebate, whatever is the rising one. The debates around the equity lines were in any event important and were the catalysts of the will of reform of the rules relating to the new issues of capital.

87. - The flexibility granted by the ordinance applies under triple condition that the transferable securities to emit in an immediate or differed way are comparable to the titles of capital admitted with the negotiations on a regulated market, that the general assembly envisaged the methods of fixing of the issue price and that is respected the limit of emission of 10% of the capital per annum.

It seems that this authorization can be conferred to the board of directors or on the directory for one duration maximum 26 months^212(*), when well even the threshold of 10% is appreciated annually. Indeed, it is about a delegation of power, since the body of direction on the initiative of the decision to carry out or not the new issues of capital according to market rates'^213(*).

With the result, the council or the directory will be able, if maximum delegation is given to him, to freely increase the capital during three consecutive exercises, which allows a total increase of 33,10%. The company with dimensions is less and less designed like a grouping of people and more and more like a technique of financing, which is only the translation of reality.

88. - The application of the limit of « 10% of the authorized capital per annum » raises two other difficulties of interpretation.

Being the plate of the rate of 10% : it is about the capital emitted at the date of the general assembly having authorized the board of directors or the directory to carry out the new issues of capital « uninterrupted », or of the capital emitted during the use by the board of directors or the directory of this authorization, thus allowing to take account of the possible variations in capital? The general assembly should have any freedom to envisage one or the other, no rule of law and order not seeming to limit this faculty. In the absence of precision by the general assembly, it would seem logical to refer to the capital emitted at the date of the decision of delegation by the general assembly which should translate the will of the shareholders best^214(*).

Being the reference period : is it about one year slipping, the reference period being the one year period preceding all new emission, or one year fixed as from the date of the general assembly? Logic would impose, to avoid brutal increases in capital to the hinge of the fixed years, to appoint one year slipping^215(*).

89. - These made observations, it is advisable to specify that in the event of emission « with the wire of water », the legislator provided various protections of the shareholder of the transmitting company^216(*).

90. - Remained finally the case of the emissions by public call to the saving with suppression of the preferential duty of subscription in the companies with dimensions. The article L. 225-136 new of the Commercial law brings some easings here, namely the suppression of the reference to the stockholders' equity and the expertise.

(3) Suppression of the reference to the stockholders' equity and the expertise

91. - The companies with dimensions were not kept away of the movement of simplification generated by the ordinance. In the same concern of softening the rules applicable to the new issues of capital per public call to the saving of companies whose titles of capital are not allowed with the negotiations on a regulated market, the ordinance removes the requirement which the issue price is at least equal to the share of stockholders' equity per action or at a price fixed at saying of expert^217(*).

92. - The article L. 225-136, 2° of the Commercial law provides from now on that the extraordinary general assembly will have total freedom to determine the issue price on report/ratio of the board of directors or the directory and on special report/ratio of the auditor.

This text also applies to the emissions by companies with dimensions of nonassimilable titles of capital^218(*).

(4) The fixing of the price of the new issues of capital reserved for people called or categories of identified people

93. - The ordinance amends the article L. 225-138 of the Commercial law relating to the new issues of capital reserved for people called or categories of people meeting given characteristics.

It thus confirms the projections introduced by the law of financial safety^219(*), in particular on the possibility of holding a new issue of capital to one or more categories of determined people.

94. - In addition to a marginal reorganization of the article L. 225-138^220(*), the ordinance removes the possibility for the general assembly of delegating to the board of directors or the directory the possibility of fixing the issue price. The delegation from now on is limited to the fixing of «the list of the recipients within this or these categories and the number of titles to be allotted to each one of them». The objective of this modification is to ensure a better protection of the shareholders^221(*).

95. - Consequently, the general assembly can either fix the price, or to give the methods of fixing of the price which would then be fixed later on by the board of directors or the directory on delegation pursuant to the article L. 225-129. The ordinance does not frame the methods being able to be retained by the general assembly, which can then profit from a great freedom like, for example, that 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.

(iii) The flexibility of remuneration of the contributions of titles

96. - The ordinance in kind adds a sixth subparagraph to the article L. 225-147 of the Commercial law relating to the contributions which allows the extraordinary general assembly of a company whose titles are allowed with the negotiations on a market regulated to delegate to its bodies direction, for one duration maximum 26 months and within the limit of 10% of its authorized capital, the capacity to carry out a new issue of capital in order to remunerate contributions in kind of titles of capital or transferable securities giving accesses to the capital granted the company, when a public offer of exchange cannot be carried out^222(*).

The control of the police chiefs to the contributions remains whole, their report/ratio having to be made available of the board of directors or the directory, according to case's, at the time of its decision to carry out the new issue of capital.

97. - This new provision brings an effective and innovative solution to support the operations of external growth of the companies with dimensions. The completion dates of the contributions subjected to the convocation of a general assembly of the shareholders are indeed relatively long and could lead to impossibility for certain companies of taking part effectively in processes of setting in the private biddings of companies. Coupled with the use of the car-held actions, this provision gives an unquestionable flexibility to the transmitters.

98. - Certain questions can be raised.

Being the plate of the 10%, the same conclusion as that aimed for the increases « with the wire of water » imposes itself^223(*).

On the report/ratio of the police chief to the contributions, the ordinance returns in article 169 of the decree of February 10, 2005. Text lays out that report/ratio described contributions, indicates mode of evaluation adopted and why it was retained and affirms that the value of the contributions corresponds well at least to the face value of the actions to emit increased possibly issue premium, by justifying it. Curiously, article 169 lays out that the report must be submitted in any event at least eight days before the date of the general assembly, which does not take account of the delegation with the board of directors or the directory. It is however clear, under the fifth subparagraph of the article L. 225-147, that the report/ratio is emitted for the needs for the use of the delegation by the board of directors and consequently, during its use, and not at the time of the general assembly granting the delegation. This last assumption would not have besides a direction, the titles brought not being identified yet. One can only consider that the report of the police chiefs to the contributions must be submitted to the board of directors or the directory at the latest with the date of the meeting deciding the new issue of capital. This point could usefully be corrected^224(*).

c) Measurements facilitating the introductions out of purse

99. - The ordinance also reduced the rules applicable to the companies whose titles are the subject of an introduction out of purse : it legalizes and simplifies the practice of the options of surallocation (I), legalizes the practice consisting in negotiating not yet emitted actions (II) and fixes the rules of price of the new issues of capital reserved at paid (III).

(i) Practice of the options of surallocation

100. - The ordinance introduces into the article L. 225-135-1 of the Commercial law a provision making it possible to facilitate the practice of the options of surallocation in the new issues of capital, with or without preferential duty of subscription^225(*).

The option of surallocation^226(*) has the aim of allowing the banking syndicate in charge of the placement of titles of capital, in the event of sursouscription, to obtain a wheel of titles of complementary capital enabling him to cover the surplus request and to avoid a racing of the market. In practice, the members of the underwriting syndicates can be brought, at the time of the placement closure or in the days which follow, to take positions with discovered (sale of titles that they do not have in wallet) in order to serving the surplus request during the allowance of the titles being the subject of the placement or within the framework of stabilization. In order to cover these positions with overdraft, the members of the underwriting syndicate generally turn to the shareholders salesmen, when they take part in the operation of placement, and negotiate an option to buy of titles allowing them to obtain the titles which they must deliver to their counterparts at the time of the sales in the market, at the price of the initial placement. In the absence of shareholders salesmen or instead of the latter, the members of the trade union turn to the transmitting company of the titles of capital which is committed emitting these same titles in favor of the members of the underwriting syndicate at the price of the initial placement. In order to preserve the flexibility of intervention on the market of the members of the underwriting syndicate, the surplus request is generally satisfied the day with the allowance of the initial placement by delivery of titles lent to the members of the underwriting syndicate. Thus, if the market were bear, the members of the underwriting syndicate proceed to purchases of titles on the market to rather refund the loans of titles than to the exercise of the option of surallocation. Consequently, the option of surallocation is generally not exerted the day of the allowance of the initial placement, but is used later on, and generally to give the titles to the members of the trade union and not directly at the market.

101. - In practice former to the ordinance, the maximum amount of titles being able to be the subject of the option of surallocation was 15% of the number of titles offered and the maximum period of exercise of the option of surallocation was generally 30 days.

It is thus a question for the transmitter of carrying out a new issue of capital complementary to the profit of the members of the trade union, but to serve the request emanating of the market. In the mode former to the ordinance, interrogations could have been born as for nature from such a new issue of complementary capital: additional increase in the number of titles emitted within the framework of the initial new issue of capital or new new issue of capital? If the second interpretation were to be retained by a court, it would have been necessary to respect the provisions relating to fixing of the price of such a new issue of capital without preferential duty of subscription. However nothing made it possible to guarantee that in a context bull, the rule from the «ten among the twenties» of the article L. 225-136 of the Commercial law could be satisfied. In response to this concern, the practice had recourse to the emission of goods of application for shares emitted for the profit of the members of the banking syndicate, these goods having a price of exercise equal to the price of the placement.

102. - The article L. 225-135-1 of the Commercial law will make it possible from now on to avoid the recourse to the emission of goods of application for shares.

For the needs for the new issues of capital without preferential duty of subscription, the resolutions of the general assembly will be able to envisage faculty to increase the number of titles emitted subsequently to the initial emission at the same price as the latter.

The article L. 225-135-1 imposes three limits on this flexibility: the number of emitted complementary titles should not exceed 15% of the initial emission^227(*) ; the complementary issue of titles must intervene within 30 maximum day following the date of the subscription of the initial emission^228(*) ; the price of subscription of the complementary titles must be the same one as that of the titles within the framework of the initial emission.

(ii) Negociability of the promises of actions

103. - The ordinance modifies the article L. 228-10^229(*) of the Commercial law and legalizes the practices consisting, before an introduction on a regulated market, to negotiate actions still not emitted.

104. - The article L. 228-10 had been used at the time of the operation of opening of the capital of Thomson Multimedia, who had given place, for those of the actions placed which were new actions, at the quotation of promises of actions. Since then, the Securities and Exchange Commission had opposed this technique during introductions out of purse. The objection was due to the fact that the condition that it is «about a company whose old actions are already allowed with the negotiations on a regulated market» could have been met at the time of an introduction out of purse, and this while at the same time the introduction related simultaneously on existing actions and actions to come from a new issue of capital.

105. - For this reason, the practice, anxious to give to the investors titles likely to be negotiated as of the date of fixing of the price and allowance of the actions to be emitted^230(*), circumvented the difficulty while being based on the article L. 225-145 of the Commercial law making it possible to regard as immediately realized the new issues of capital whose good end was irrevocably guaranteed by financial establishments. This approach obliged to regard as an irrevocable performance guarantee, engagements of firm catch subjected to a clause of conventional cause beyond control in the operations on capital markets, in particular on the international market.

106. - The modification of the article L. 228-10 of the Commercial law will make it possible to return to a greater orthodoxy of the legal concepts by allowing the quotation of promises of actions between the date of fixing of the price of the new issue of capital and the date of its final realization and to avoid qualifying performance guarantee of engagements of firm catch subjected to clauses of cause beyond control.

(iii) The fixing of the rules of price of the new issues of capital reserved to the employees

107. - The article L. 443-5 of the Fair labor standards act laid down before with the ordinance that the price of subscription of the new issues of capital reserved for the employees, when the titles were not yet allowed with the negotiations on a regulated market, was to be «given in accordance with the objective methods reserves as regards evaluation of actions by holding account, according to a procedure appropriate to each case, countable clear situation, profitability and prospects for activity of the company»^231(*).

The practice admitted, subject to validation by an expert, that the application of the methods objectify retained as regards evaluation of actions results in fixing the price of subscription during introduction out of purse, decreased of a possible rebate whom can go up to 20% for unavailability.

108. - The ordinance raises any ambiguity on this point while envisaging explicitly: «When the new issue of capital is concomitant with a first introduction on a regulated market, the price of subscription is determined by reference to the price of admission on the market, provided that the resolution of the Board of Directors or of the directory or their delegate if necessary^232(*), intervenes at the latest ten meetings of purse after the date of the first quotation»^233(*).

109. - Conclusion. The ordinance of June 24, 2004 brings notable easings to the right of the new issues of capital by simplifying the procedures and methods of issues of titles of capital. The text is not satisfied besides only to modify the mode of the new issues of capital ; it is further taking note owing to the fact that the simple obligations are from now on a financial product running, which constitutes only one of the modes of external financing of the company. Consequently, the board of directors or the directory is seen from now on recognizing a competence of principle to decide the issue of bonds^234(*).

110. - Nevertheless, certain authors^235(*) would have wished that the ordinance give to the preferential duty of subscription all the flexibility which misses to him today to be able to impose itself like the privileged mode of realization of the new issues of capital, which wished of many transmitters. Such is not the case. The ordinance sticks on the other hand with heat to make more accessible the operations without preferential duty of subscription in particular by multiplying new flexibilities (possibility of remunerating contributions in titles out the cases of public offer of exchange, possibility of carrying out complementary new issues of capital). There still, these keys pointillists, if they regulate certain specific deficiencies, do not create the awaited framework which will make it possible the French transmitters to carry out new issues of capital according to international standards' of the capital markets. It is probable that the experts will continue to work on the mechanisms worked out in the last years, resting on the goods of or time application for shares of precariousness, which answers much better the constraints of market and which one of the objectives of the reform is not really filled.

111. - The ordinance, if it constitutes a positive stage, remains unfortunately, on essential points, late compared to the practices of market. Whereas in other fields of the right, the law is a source of innovations and progress, one can consider it regrettable that the right of the new issues of capital remains a source of constraints and the development of the French capital markets does not support fully.

It goes from there differently from the actions preferably, whose creation in our different- right great innovation of the ordinance of June 24, 2004- was awaited for a long time by the experts.

B. The issue of the shares preferably

112. - Since February 13, 2005, date of entry into force of the decree of application of the ordinance of June 24, 2004, the joint stock companies can create, at the time of their constitution or during their existence, of « actions preferably, with or without voting rights, together with particular rights of any nature, temporarily or permanent. »^236(*).

113. - The actions preferably are one of the principal innovations brought by the ordinance of June 24, 2004. Their creation results from a long process of reflection and undertaken work, on a purely principal basis, by the MEDEF and the representatives of the investors in capital. This work aimed at on the other side of the Atlantic supporting the adaptation in French right of the preferred shares, commonly used, in the structuring of the operations of venture capital. These actions indeed make it possible to the investors to have particular rights compared to the founding shareholders, generally titular of ordinary actions (ordinary shares).

114. - However, neither the legislator nor the experts had awaited the ordinance of June 24, 2004 to conceive senior shares equipped with pecuniary or political prerogatives differentiated. Thus, one will quote the actions with priority dividend without voting rights^237(*), the certificates of investment and their corollary, the certificates of voting rights^238(*), and especially the preferred stocks^239(*). These last, for whom the voting rights could neither be removed nor even arranged, knew one « priority » in what it was possible with the transmitter to exploit the emoluments to favor their carriers. Those, like henceforth the shareholders preferably, could thus profit from a priority right to the dividends or an uneven distribution of the profit of liquidation.

Of these various special modes, the ordinance made close-cropped table. Only the action remains preferably, whose mode is superimposed on that of the ordinary actions^240(*). From now on, the summa divisio of the titles of capital resides in the ordinary actions and the actions preferably.

115. - Articles 35 to 38 of the ordinance of June 24 2004 lay down the transitional provisions relating to the titles of capital^241(*), and formulate two essential rules : no new title, that they are preferred stocks, actions with priority dividend without voting rights or of the certificates of investment or the certificates of voting rights, can be emitted more^242(*) ; the old titles can nevertheless remain.

The first rule knows a temperament. The titles of capital can indeed be emitted which are it pursuant to decisions of general assembly former to the entry into force of the ordinance^243(*).

The second rule leads to the displacement of the regulations in a section entitled « Provisions applicable to the categories of titles in process of extinction »^244(*) and with the adjustment of these regulations in order to take account of the prohibition of the titles for the future^245(*).

116. - Regulated by the articles L. 228-11 with L. 228-20 of the Commercial law, from which the drafting is resulting from the ordinance of June 24, 2004, the actions preferably present, in the immediate future, a double advantage. They offer initially, on bottom of contractual freedom, new possibilities of distinction of the reports/ratios which maintain capital and capacity in the joint stock companies. In the second place, they substitute for a disparate whole of intermediate products^246(*) a single instrument.

Beyond the legal objectives of unification and simplification, the design of the actions preferably answers many economic purposes : « many companies need to resort to instruments of alternative own capital stocks to the ordinary action in order to widen their sources of financing and to offer to the investors the purely financial products profiting from a more important profitability. In addition, these instruments, while making it possible to separate capital and be able, can make it possible to avoid the dilution of the capital and the loss of control. There is a nonsatisfied request for such products as well in the companies with dimensions as in the companies not - dimensioned. Moreover, the existence of these titles would make it possible to support the development of the shareholding paid in the small ones and medium-sized companies »^247(*). In the same way, the investors in capital risk can only appreciate the new flexibilities authorized by the articles L. 228-11 and following of the Commercial law.

117. - The recourse to the actions preferably will be able nevertheless, initially at least, to appear delicate, for two reasons. Initially, being an ordinance, the interpreter is private documentary source which offer the preliminary works ; this handicap however is compensated in the species by the fact that the Government strongly took as a starting point the the above mentioned proposals of MEDEF, which makes it possible to preferably clarify certain aspects of the mode of the actions. Then, the interpreter must combine several sets of rules : provisions specific to the actions preferably, but also those of the actions^248(*) and more generally common right of the companies.

From there of the allowed hesitations, which it is about the contents of the actions preferably (1) and thus to inventory their characteristics authorized by the ordinance, of their creation (2) or of the delicate conciliation between freedom offered and the great principles of the company law (3).

1. Contents of the actions preferably

118. - The question of the contents of the actions preferably calls an examination of the principles (A), before drawing up the inventory of the rights (b) and studying the singular case of the groups of companies (c).

a) Principles applicable to the actions preferably

119. - The presentation of the actions preferably begin naturally with the report which the actions preferably are, above all, of the actions, i.e. titles of capital representative of a fraction of the authorized capital of a joint stock company^249(*)- obviousness that confirms the article L. 225-127 of the Commercial law. Also, the whole of the rules applicable to the actions controls the actions preferably insofar as the special mode of these last, as expressed by the articles L. 228-11 and following of the Commercial law does not derogate from it.

120. - The capital of a company can thus from now on be made up is actions « ordinary », either of actions preferably, or still of these two types of capital. Of course, the capital is generally composed of ordinary actions exclusively. But all the actions can also be preferably. This situation is conceivable since the law itself considers it^250(*).

However, this last possibility cannot apply to all the classes of shares preferably since those which do not have the voting rights cannot represent more than one certain fraction of the capital of the company^251(*).

121. - The actions preferably, because they are equipped, by nature, of particular rights, indifferent in theory to the person of their holder, constitute a class of shares^252(*). He results from this the requirement from convocation of a special assembly if the transmitting company considers a modification of these particular rights^253(*). With the remainder, there will be as many categories as there will be types of actions preferably, and one can expect that the financial ones multiply, inside the same company, the classes of actions preferably intended to satisfy the investors whose requirements and needs are often dissimilar.

122. - These made observations, the concept of action preferably forces as a preliminary to take party on the direction of the word « rights » aimed to the article L. 228-11 of the Commercial law (I), before preferably considering the requirements of form and basic applicable to any action (II).

(i) The nature of « rights » attached to the actions preferably

123. - The ordinance comprises important uncertainties, in particular on the rights which the actions can comprise preferably. The article L. 228-11 of the Commercial law, which authorizes the creation of the actions preferably, does not give of it indeed a definition specifies and is satisfied to only lay out « it can preferably be created actions, with or without voting rights, together with particular rights of any nature, temporarily or permanent ». This article does not indicate however what are these particular rights, the objective being to undoubtedly leave the maximum of flexibility at the companies while avoiding locking up them in rigid rules.

124. - This preoccupation with a freedom, if it is creditable, presents a significant disadvantage however: two very different interpretations, even divergent can be given concept of «particular rights». One can initially have a restrictive reading of the «right» word and estimate that a right is automatically an advantage or a prerogative. One should then consider that the particular rights are additional rights and that thus the actions preferably must be in a situation more favorable than the other actions. With this first type of interpretation, it could not be possible to create actions preferably subjected to restrictions such as particular clauses of approval or specific rights of pre-emption, since such clauses or such rights would not be additional rights for the recipients of the actions preferably.

But one can as have a comprehension of more extended concept of «rights» and judge as the concept of right must correspond to the concept of characteristics, attributes. With this type of interpretation, particular rights are not additional rights, but different rights and one could conceive actions said preferably underprivileged compared to the other actions. One could then imagine that the actions preferably have only one limited right of information or that they are seen serving a dividend only if the results of the company achieve certain goals, whereas the other shareholders would be entitled to a dividend which these objectives are achieved or not, since the results allow a distribution of dividends.

Thus, to define what can be the «particular rights» is essential since it is only starting from this definition that one will be able to determine until where the experts will be able to give free course to their creativity.

125. - The question of knowing if these rights are necessarily advantages or, expressed differently, if there can be actions preferably which would be equipped with prerogatives lower than those of the other actions, certain authors answer by the negative one ; evoking the suppression of the voting rights, they write : « one can however wonder here if such a suppression should not be necessarily matched pecuniary prerogatives. An action said preferably can appear with difficulty as not having a significant advantage compared to the ordinary actions : the action preferably could not be brought back to a antiprivilège. The formula of the article L. 228-11 seems to express this requirement »^254(*). Such an approach is sizeable, it could be justified besides, beyond the qualifier of « preference », owing to the fact that the article L. 228-15 of the Commercial law expressly lays down the observation of the procedure of the particular advantages^255(*), which supposes that there is an advantage.

Another author thinks that the mode of creation of the actions preferably does not allow- or then, very with difficulty- to create actions preferably with different rights, but only of the preference share^256(*). According to him, often the creation of actions preferably would also transform in fact the other actions into actions preferably of which the rights would be the rights « in hollow » or reversed rights of the actions preferably created. Such a situation would involve major difficulties then insofar as, although the texts are not limpid on this subject, it would seem that the recipients of the actions preferably cannot vote on the creation of the actions from which they will profit^257(*). Consequently, if it is considered that the particular rights are different rights, it could lead to situations where none the shareholders of the company concerned can take part in the vote creating them. It would be the case each time the creation of an action preferably also involves in hollow the conversion of the other actions into actions preferably ; in this case, all the shareholders would actually have to profit from actions preferably. One could thus come to situations where these actions could not be created for lack of shareholders being able to take part in the vote creating such actions. One could however object to this approach that if, on the base of the article L. 228-11 of the Commercial law, one can consider that the recipients of actions preferably cannot take part in the vote, on the other hand the article L. 228-15, 2nd subparagraph, does not prohibit to him the recipients from voting, if all the actions are the subject of a conversion, which corresponds to the cases considered above where the creation of actions preferably also involves in hollow the conversion of the other actions into actions preferably.

As, forts of these definitions and observations, a fraction of the doctrines claims as it would be inconceivable to preferably create actions without their allotting an advantage compared to the other actions, or at least, that it is inconceivable to match them obligations without their allotting rights privileged n the other hand.

126. - This thesis, which does not achieve the unanimity, is not that of the majority of the authors^258(*), and is not either ours.

First of all, the term « preference » does not have to misuse ; the writers of the ordinance, inspired by the Anglo-American practice, were satisfied to translate into French the terms « preferred shares ». Moreover, the report/ratio of MEDEF, although evoking the actions preferably, contains other names, such that of « actions of growth »^259(*); the ANSA, on its side, speaks about « actions of investment » being the actions preferably which would not comprise any advantage on the ordinary actions^260(*).

Then, the reference to the procedure of the particular advantages is not a decisive criterion ; in addition to the Government intended to aim at the case more running, that in which the action preferably will carry more rights than the ordinary action, its principal concern was to clearly specify the cases in which the aforementioned procedure must be followed : « In order to raise the interrogations of the experts, it is explicitly envisaged that the procedure of the particular advantages is applicable only when the actions preferably are emitted with the profit of identified people »^261(*).

Moreover, the word « right » must be included/understood in a very broad direction. In this respect, it is advisable to recall that the preferred stocks were defined in the right former to the ordinance like actions « enjoying advantages compared to all other actions »^262(*). The substitution of the word « right » with the word « favor » mark well an evolution expresses and the abandonment of a necessary advantage to the profit of the actions preferably. In addition, as the report/ratio exposes it to the President of the Republic, « the rights are heard to the generic direction of the term, and these actions can thus also be equipped with particular obligations and to be the subject of restrictions »^263(*).

127. - Also, the actions preferably are not necessarily actions having more rights, but only actions together with different rights ; it is the otherness and not the privilege which defines the action preferably^264(*).

Nevertheless, one will undoubtedly need exceptional circumstances, in practice, to find investors ready to subscribe to only matched titles of disadvantages compared to the others. This is why one can expect that, generally, the actions preferably imposing of the obligations are, in practice, together with advantages, would be this only to encourage the subscriptions.

128. - Beyond this academic debate^265(*), the question of the particular rights brings to consider certain basic requirements and of form.

(ii) Requirements of form and basic attached to the actions preferably

129. - There is initially a principle of form : the characteristics of the actions preferably must be mentioned in the statutes, as the article L. 228-11 has about it the Commercial law according to which « these rights [particular] are defined by the statutes ».

The direction of the rule is double. On the one hand, the thirds will be able to know the existence and the nature of the actions preferably, even still the identity of their recipients^266(*) by requiring of the clerk's office of the commercial court a specimen of the statutes of the company. In addition, the rights of the carriers are reinforced ; indeed, unlike the prerogatives only stipulated in a pact of shareholders, the particular rights of the actions preferably are opposable at the company and cannot be faded without a statutory modification and a decision of special assembly ; to some extent, they are institutionalized.

However, it should not be excluded that, in certain cases, publicity will be considered to be harmful with the interests of the shareholders and the company. The attraction of the pacts of shareholders undoubtedly does not stop with the institution of the actions preferably.

130. - There is, then, a basic principle, whose range is delicate to appreciate.

For the writers of the ordinance, « the major axis of the reform is a liberalization of the emission of the transferable securities »^267(*). Besides the article L. 228-11 of the Commercial law lets show through this will, since it evokes « particular rights of any nature » and that it enumerates certain restrictions relating to the voting rights- which we will further examine^268(*)-, which could mean that beyond those all is allowed.

Actually, it of it is nothing, because it must be held public suspense account of the company law^269(*). For example, being the financial rights, the action preferably is naturally subjected to regulations such as the prohibition of the leonine clauses or the prohibition of the clauses of fixed interest. In the same way, on the side of the nonpecuniary rights, it will be necessary to reconcile with principles as fundamental as that of the autonomy of the bodies of the limited company.

These illustrations show well that the article L. 228-11 of the Commercial law does not express a license to derogate from all the rules of the company law. The action preferably is an action emitted by a joint stock company, which imposes- except exemption authorized by the legislator, as it is the case for the voting rights- to comply with the imperative rules or principles controlling the companies and the actions. It will have thus preferably to be taken account of this constraint during the development of the particular rights attached to the actions.

b) The inventory of the particular rights attached to the actions preferably

131. - As we saw^270(*), the reform leaves a great place to contractual freedom. The inventiveness of the practice, released by facilitated agreed by the ordinance of June 24, 2004, will quickly make null and void the tested assemblies and which in the past the issues of shares to financial privileges revealed^271(*).

If the financial rights (I) preferably constitute the principal attraction of the new actions, the creativity of financial should also develop beyond this sphere, in the direction of possible installations as regards voting rights (II) and other prerogatives known as political (III), like in that of the particular obligations (iv).

132. - This presentation relates to only the rights which can be exerted in the transmitting company^272(*), and does not claim itself exhaustive^273(*).

(i) Particular rights of a financial nature

133. - The report/ratio of the MEDEF of May 2001^274(*) already clearly marked out the way on the matter. Moreover, the actions preferably can be matched same financial rights as those which profited before with the preferred stocks or with the actions with priority dividend without voting rights (1). They also open the door with the stipulation of rights which, up to now, or were not seldom implemented (2).

(1) Known rights

134. - Priority, cumulative dividend or not. It is about the dividend allotted before very other, but not giving any advantage to its recipient in the event of sufficient benefit to make it possible to distribute the same dividend to the other actions. The advantage is thus born if the benefit prove to be insufficient to equalize the dividend been used for all the existing actions.

This right is accentuated when it is stipulated cumulative, i.e. when it is likely to be taken on the profits for the later years if those of a exercise are insufficient.

135. - Dividend préciputaire, cumulative or not. That returns to an example of unequal division of benefit ; the actions preferably receive a dividend whose the other actions will be private^275(*), when well even the benefit would be sufficient.

The dividend préciputaire can be stipulated cumulative, like the priority dividend.

136. - Dividend- alternatives. The dividend can be matched other methods, cumulative if necessary ; it can thus be given or determinable, progressive or decreasing, some or conditional, contractual or variable.

137. - Priority refunding in the event of winding-up of the transmitting company. This means that first taking away is made on the product of the liquidation of the company to preferably ensure the refunding of nominal actions, before that of the other actions. If the total to be distributed is sufficient, all the titles of capital receive the same amount.

138. - Uneven distribution of the profit of liquidation. It is a question of preferably allotting to the actions a right in the profit of liquidation proportionally higher than the quota of the capital than they represent^276(*).

139. - Right to damping. The damping of the capital^277(*) consists, for the company, to refund the nominal one of all the actions composing the capital or that of each action of the same category, by means of distributable sums. The completely deadened actions become deferred shares^278(*).

One could consider that the actions preferably, and they only, are stipulated redeemable, in one or more time.

(2) Rights « new »

140. - Exemption partial of the losses. The prohibition of the leonine pacts^279(*) prohibited to completely exonerate a associate of his contribution to the losses. Consequently, an action preferably can confer a right of exemption of a part only of the social losses^280(*). It remains to determine the methods of them.

In a company which limits the responsibility for associated with the amount with their contribution, the clause has to apply either in the event of reduction of capital moved by losses, or in the event of liquidation. On the first assumption, a difficulty seems to be born from the rule according to which the reduction of the capital cannot, to in no case, to attack the equality of the shareholders^281(*) ; however, this provision, would be this only because it is sanctioned penally, even modestly^282(*), undoubtedly belongs to the imperative block of the company law. Nevertheless, the range of this constraint should not be exaggerated^283(*) ; indeed, on the one hand, by nature, the actions preferably induce an inequality of treatment between the shareholders ; in addition, it is traditionally allowed that the equality is measured within the same class of shares^284(*). Remainder, in a more general way, it is allowed that the principle of equality yields in front of the agreement of « shareholders of which a sacrifice is required »^285(*) ; thus, for example, a reduction of capital can be supported only by part of associated if they agree to make this sacrifice. If, in theory, it thus appears possible to preferably allot an advantage to the actions in the contribution to the losses, the clause should not completely exonerate them and in advance of any participation in a reduction of capital due to loss. One could imagine that the operations decided within a given time are only aimed at. Failing this, one could fear the sanction of the leonine pacts.

Another method appears also licit : that where the contribution to the losses of the shareholders preferably would be limited to half of their contribution^286(*). In this case, the prohibition of the leonine pacts does not seem applicable^287(*).

One can imagine other methods, a such simple priority in the order of charge of the losses in the event of reduction of the capital. The ordinary actions would come to the operation before the actions preferably, those being concerned only if the first charge is insufficient.

141. - Anti-dilutive clause. In the event of new issue of capital, the holders of actions preferably profit, like all the other shareholders, of the preferential duty of subscription. If ordinary actions are emitted, their right applies normally to these actions ; but they can wish to profit rather from actions preferably matched of the same rights as the titles of origin.

The situation most often taken into account is that where the new issue of capital is reserved for people other than the holders of actions preferably. To avoid their dilution, those are then tempted to require that their a section of the new issue of capital be also reserved, such that it enables them to preserve their share of capital. Such a right could be instituted, under certain reserves^288(*).

This analysis can also apply to the case of attribution of actions [preferably] free of representation of an incorporation of benefit, reserves or premiums.

142. - Clause ratchet. The companies proceeding to liftings of funds are systematically confronted at the request of them investors be able to correct their position in the capital of the company in order to reduce the risk of overvaluation of the value of the company. Indeed, the valorization fixed at the time of their entry at the capital often sat on a plane business whose realization is dubious. The experts of the capital-investment thus developed mechanisms allowing to adjust the price of their entry to the capital as well as the conditions of their exit.

Among these mechanisms, very sophisticated, it is very frequent : the clause known as of ratchet, which consists in allowing the investors of « reluer » if the valorization of the company at the time of later round tables were lower than that which was used as a basis for their entry with the capital. Also, the company emits certificates scrips autonomous (BSA) or actions for goods of applications for shares (ABSA) for the benefit of the investors, allowing them to subscribe to nominal variable number of actions in function, either of the valorization retained for the following turn (full ratchet), or of the average valorization of the initial turn and the following turn (average ratchet).

With the actions preferably, other solutions can be considered by the investors. Simplest being perhaps the following one : the investors of the first turn subscribe to actions preferably, which receive like particular right that to be converted into ordinary actions under the condition of the issue of shares at a lower price within a given period of time, on the basis of determinable conversion ratio according to the second price. For example, an action preferably would be converted into two ordinary actions if the investor of the first turn would have paid the action with 100 € whereas that of the second turn pays it to 50 €.

143. - Actions reflections or traçantes. They are actions giving right a dividend related to the results of a branch of industry or a subsidiary company of the transmitting company. Only the activity or the specified subsidiary company is taken into account for the right and the calculation of the dividend. This type of action is technically an action of the transmitting company-mother ; she thus does not give voting rights on the decisions of the subsidiary company which she is supposed to represent. However, in the event of transfer of the activity or the subsidiary company concerned, the carrier of actions traçantes is entitled to a share of appreciation or a compensation. These actions make it possible their transmitter to preserve a total control on the subsidiary company while exteriorizing a value for the market and by offering a tool for payment for acquisitions.

In France, one finds a first and- seems it single illustration- of it, in 2000, in the form of preferred stocks. The transmitter was Alcatel (Optronics)^289(*). Conceived in the form of preferred stocks, the actions traçantes can be registered today among the actions preferably.

144. - Right privileged on the product of transfer of an asset. The actions preferably can profit from a right privileged on the product of transfer of an asset, whose methods can vary.

It could be a question of a priority attribution of the product of the transfer in the form of exceptional distribution of dividends or by way of reduction of capital- although, in this last case, the rupture of the equality between the shareholders calls the same remarks as in the case of an exemption clause partial of the losses playing following a reduction of capital moved by losses^290(*).

The methods can also take the form either of a conversion into action ordinary or actions preferably of another category, the ratio conversion being a function of the delivery price of the credit concerned, or of a repurchase of the actions preferably with the help of a determinable price according to the same criterion^291(*).

All these clauses are not criticizable as long as they do not cause to attack the prohibition of the leonine pacts^292(*).

145. - Conversion into ordinary actions. Among the financial rights likely to be attached to the actions preferably, the report/ratio with the President of the Republic quotes it expressly « conversion into ordinary actions ». It thus seems licit to preferably create actions with for particular right attache, the only right to conversion into ordinary actions under preset conditions. Still it in this case is necessary that the transmitter and the subscribers accept publicity^293(*).

146. - These rights- whose enumeration is nonexhaustive- can be isolated or cumulated if necessary, be of the same duration or of different durations^294(*). One can still refine by conceiving characteristics at variable duration, unquestionable transitory, others with the long course, of the periods of suspension of the singular rights to even take account of the evolution of the economic and financial health of the company.

(ii) Particular rights as regards voting rights

147. - Until now, two major principles governed the voting rights of the shareholder. On the one hand the principle of a connection between the financial prerogatives and the governmental prerogatives was posed : each shareholder had in theory voting rights^295(*). In addition, the article L. 225-122 of the Commercial law posed a principle of proportionality clearly : an action, a voice. This principle was particularly strong in company law and the assumptions that an action could give place with the attribution of several voting rights were also limited^296(*).

Until recently, the legislator seemed attached to these two principles. Law NRE had thus removed the provision which made it possible the statutes to subordinate the participation of the shareholders to the ordinary general assemblies in the detention of a certain number of actions.

148. - These two principles make place with a revolutionary principle today, that of freedom in the adjustment of the voting rights of the actions preferably. The article L. 228-11, subparagraph 2 of the Commercial law lays out that « the voting rights can be arranged for a given or determinable time. It can be suspended for one given or determinable duration or be removed ».

This freedom could be used by the majority shareholder accommodating a financial investor with his capital to enable him to preserve the majority of the voting rights, and thus the control of the company, whereas the funds necessary to its development led it to carry out a new issue of capital at the end which the investors hold more than 50% of the authorized capital. One can see thus there the dedication of the distinction between the shareholder of control and the shareholder backer.

The possibilities as regards voting rights take on a large variety, so much within the framework of its suppression (1), its exercise or its installation (2).

(1) The deprivation and the suspension of the voting rights

149. - Deprivation of the voting rights temporarily. The action preferably can be private voting rights temporarily. In this case, for example, the voting rights can be removed until a date fixed in advance or the possible occurence of a future event.

150. - Deprivation of the voting rights on a purely permanent basis. When the action preferably is private voting rights on a purely permanent basis, the title created is comparable with the certificate of investment envisaged by the old legislation.

151. - Suspension of the voting rights. The voting rights can be suspended, for one given or determinable duration.

Up to now, the law held the suspension of the voting rights like a sanction^297(*). The suspension of the voting rights also makes think of « clause of training course », which prevents the new shareholder from voting during the first years of its entry in the company.

152. - Limits with the deprivation and the suspension of the voting rights. It is limits of legal, jurisprudential and financial origin with freedom to preferably remove or suspend the voting rights attached to the actions.

The limits of legal origin are double. On the one hand, the article L. 228-11, subparagraph 3 of the Commercial law lays out that « the actions preferably without voting rights cannot represent any more half of the authorized capital and, in the companies whose actions are allowed with the negotiations on a regulated market, more of the quarter ». The authors are divided on the range of this measurement ; some estimate that to give full effect to the legal restrictions, it is appropriate to take into account, under the actions preferably without voting rights, obviously those for which the voting rights are completely removed, but also those for which the deprivation of this right is only partial or temporary^298(*) ; others estimate that it is necessary moreover to preferably take into account the actions for which the voting rights are suspended^299(*) ; as for the titles which must be taken into account for the calculation, contrary fault of precision, it acts of the totality of the titles of emitted capital, some they, temporarily, would be deprived of the voting rights, like the car-held actions or the actions exceeding a legal or statutory threshold for the crossing of which the necessary declarations would not have been carried out^300(*). In addition, an author^301(*) wonders about the made reference, with the first subparagraph of the article L. 228-11 of the Commercial law, with the article L. 225-122 of the same Code^302(*), which poses the principle of proportionality between the action and the voting rights^303(*). He writes : « contradiction is thus bright : on the one hand, the ordinance expressly envisages the possibility of removing the voting rights and, on the other hand, it refers to a text imposing the maintenance of at least a voice per action ». If the author thinks nevertheless that the reference to the report transmitted to the President of the Republic^304(*) and the teleological interpretation of the text^305(*) are likely to draw aside concerns as for this obscure point of the text, it underlines rightly that one is unaware of which will be the position of the Supreme court of appeal.

Another limit, finding its source in a recent jurisprudence relating to the voting rights of the usufructuary^306(*), could find to apply, according to certain authors^307(*). The Supreme court of appeal indeed stated which was null the statutory clause depriving the usufructuary of very voting rights, which did not enable him to vote the decisions relating to the benefit, still limiting the room for maneuver of the shareholders as for the distribution of the voting rights between the usufructuary and the bare owner while at the same time the law authorizes the associates expressly to arrange this distribution freely^308(*). Also, these authors stress that this jurisprudence is « likely to attach the creativity of the transmitters »^309(*) relative with the suppression of the voting rights^310(*). However, it will be observed that since the voting rights are removed, the suppression applies to the action preferably, whatever the legal quality of that which exerts the particular rights, that it is usufructuary or bare owner ; consequently, the usufructuary could not have any more rights that the title object of its usufruct does not carry from there, above-mentioned fears then having to be isolated^311(*).

Lastly, one can wonder about the relevance of new logical founded by the ordinance, insofar as a limit, of financial and practical origin, could, according to some^312(*), to come to preferably decrease the interest of the actions without voting rights. Indeed, to deprive the investor of his voting rights amounts requiring of him to invest in the company without however dealing with its management, to even keep silent itself ; however, the voting rights- right of criticism- have a value. If the investors give up it, of the financial advantages will have to be granted to them. One can then expect to see appearing actions preferably resembling curiously actions priority dividend without voting rights. However, it could be noted today that these titles were not hoped success. It should be hoped that the combinative possibilities much larger than preferably offer the actions compared to old actions to priority dividend without voting rights will draw aside these concerns.

153. - Sanction in the event of violation of the legal ceiling. The article L. 228-11, subparagraph 4 of the Commercial law specified the consequences of the transgression of the ceiling fixed at the article L. 228-11, subparagraph 3 : « Any emission resulting in carrying the proportion beyond this limit can be cancelled. »

It is a faculty of cancellation, which implies also a faculty not to cancel. One is then brought to wonder about the real consequences of a going beyond of the ceiling. It is not possible that the judge, substituent with the statutes or the extraordinary general assembly of the shareholders, restores the voting rights. Consequently, one can conclude from it that the actions preferably, validly emitted, will continue to carry the particular rights envisaged during the emission although they represent more half- or quarter, according to case's- of the authorized capital. One can then imagine that the judge will not pronounce cancellation if the overtaking is limited or if the cancellation of the emission is likely to cause an irremediable injury at the company, for example if the actions preferably are the central part of a financial rescue plan of the company^313(*).

(2) The exercise and adjustments of the voting rights

154. - Imperative legal provisions. The law is also interested in the actions preferably profiting from the voting rights and precise that the imperative legal provisions which control the voting rights them are applicable^314(*).

They are there the general rules applicable to all the titles of capital : the voting rights attached to the pleasure or senior shares are proportional to the share of capital which they represent and each action gives right a voice at least^315(*) ; voting rights double can nevertheless be instituted by the statutes under the conditions fixed by the law^316(*) ; the statutes can, contrary, to limit the number of voices whose each shareholder has without distinction category^317(*).

The article L. 228-11 of the Commercial law returns thus to the provisions classically applicable to SA and the SCA. The fact that these companies, when they emit actions preferably, must continue to comply with these regulations thus does not lend matter to debates. On the other hand, the application of these texts is in theory isolated when the transmitting company is SAS^318(*) ; certain authors conclude from it that the restrictive provisions referred to above would consequently not apply, by exception, when actions preferably would be emitted by SAS^319(*). This alternative interpretation seems hazardous ; it is correlated by no argument of text^320(*). As, it should be considered as the imperative legal provisions of the articles L. 225-122 with L. 225-125 of the Commercial law are applicable, in addition to with SA and the SCA, also at SAS when those emit actions preferably^321(*).

Thus, within the joint stock companies, null action preferably cannot be created with the benefit of rights which would derogate from these rules, hardly of nullity^322(*).

155. - Possibilities of reinforcing the voting rights. The actions preferably can profit from voting rights double, under the conditions envisaged with the articles L. 225-123 and L. 225-124 of the Commercial law. That does not raise any discussion.

On the other hand, the attribution of multiple voting rights raises questions. The very large majority of the authors consider that it would be illicit to preferably create actions with voting rights plural^323(*), this constituting a violation of the legal provisions referred to above. An author^324(*) wonders however about this possibility ; he writes : « the article L. 225-122 specifies that each action at least gives right voting rights. It is thus possible, to read these texts, to envisage multiple voting rights. In the event of double vote, it would be enough to respect the provisions of the article L. 225-123, but in the event of higher vote, no rule would be imposed ! ». This interpretation, although deserving reflection, appears to us nevertheless hazardous.

156. - Possibilities of putting a ceiling to the voting rights. The statutes can contain a clause limiting the number of voices of which each shareholder lays out in the assemblies. The doctrines appear divided on the faculty offered by the actions preferably to stipulate a levelling off of the voting rights.

Professor Viandier estimates that, since the article L. 228-11 of the Commercial law authorizes the absence of voting rights, it necessarily makes it possible to practice a levelling off which would apply only to the actions preferably, since that amounts removing the voting rights for the actions exceeding the ceiling^325(*).

On the other hand, other authors take the party reverses and conclude so that any levelling off from the voting rights not carrying that on actions preferably is excluded^326(*). They doubt indeed this possibility because of the terms of the article L. 225-125 of the Commercial law^327(*), of which it should be deduced from it that the actions preferably constitute a class of shares well and that it thus does not seem reasonable to consider this levelling off, insofar as it should then apply to all the actions whatever their category.

157. - Possibilities of only limiting the voting rights to certain resolutions. The voting rights attached to the actions preferably can be exerted only at the time of certain decisions, for example in the ordinary general assemblies but not in the extraordinary general assemblies, or conversely.

One can also hold the voting rights to certain precisely definite decisions the such assignment of the result, the distribution of reserves, the appointment of the members of the body of administration or monitoring, the transformation of the company. The actions preferably with American and English are consequently conceivable, i.e. actions for which always remains voting rights, at least for the assignment of the results and the attribution of dividends.

On the other hand, in the special assemblies joining together each class of shares preferably, the voting rights remain, by principle, full and entirety for each shareholder.

Moreover, certain particular assumptions suitable for the right of the goods or the contract law must be reserved, like in particular the dismemberment of property of the actions preferably^328(*) or the setting in trust of these actions.

158. - Impossibility of preferably creating actions to which the voting rights would be only allotted. The authors agree to think that it is not possible to preferably create actions with only governmental prerogatives for, to some extent, of imitating the certificates of voting rights^329(*).

This position is justified by the fact that the actions preferably are by nature of the titles of capital ; they thus remunerate a contribution which could not be private of any remuneration, whatever is the form. Failing this, the conditions would be met to make applicable the prohibition of the pacts leonine. Moreover, in the absence of text, and as it seems difficult to insert the certificates of voting rights in the definition of the transferable securities since they do not give any right of access to the capital or on the inheritance of the company, it seems that in the current state of the right their creation is held for illicit.

However, financial engineering, to arrive at the same result, will certainly be tempted to create actions with nominal very weak, conferring the same voting rights as the ordinary actions^330(*).

159. - The suppression, the suspension and the adjustment of the voting rights, for a given or determinable time, made possible or liberalized by the ordinance of June 24 2004 offer great possibilities thus. From now on, without taking the complicated way of the actions from priority dividend or the certificates of investment, one can emit titles of capital not-voters.

Generally, one can expect that the voting rights are cut on the owner of the financial particular rights, the safeguard of these advantages justifying that voting rights are or not recognized, even temporarily. The same observation can be made for the rights of a political nature others as the voting rights.

(iii) Particular rights of a political nature

160. - The at the very least general formula of the article L. 228-11 of the Commercial law- the granting of « particular rights of any nature » - the way with the possible adjustment of very many rights opens^331(*), of which some, without seeking exhaustiveness, come easily to mind (2). The significant question of the right of veto however raised many debates (1).

(1) Right of veto

161. - The question which installation is to know if the actions preferably can profit from a right of veto authorizing their holders alone to be opposed to certain decisions, even adopted by the general assembly of the shareholders in the majority necessary or the monitoring or board of directors.

162. - The developments will infra n° 163 and following only SA and the SCA concern. These rules of operation are indeed inapplicable at SAS, as the article L. 227-1 has which it, subparagraph 3 of the Commercial law. Also, it is possible to envisage, in this shape of company, a right of veto as well for the decisions of the bodies of management as for the group decisions of the associates^332(*).

163. - It is initially advisable to consider a right of veto to the general assemblies.

The utility of a right of veto for the holder of the action preferably can be conceived on several assumptions. For example, to avoid incurring the responsibilities for an administrator, the holder of the actions preferably- by assumption an investor in capital investment- could exclusively choose a right of veto applying in general assembly ; or, the minority holders of actions- preferably by assumption- could prevent the adoption of a resolution removing the preferential duty of subscription.

164. - The rules of quorum and majority according to whom the assemblies deliberate on shareholders^333(*) constitute provisions of law and order^334(*) whose non-observance is remainder sanctioned by the nullity of the deliberations taken^335(*). However, to preferably allot to the titular shareholder of an action the right to be opposed to such decision of the general assembly, it is enfreindre the above mentioned legal provisions and to attack the voting rights of the other shareholders.

The law attempts to preferably limit the rights likely to be allotted to the actions as regards vote^336(*). It results from it that, if there exists and when it is exerted, the voting rights attached to the actions preferably must comply with the rules which govern the voting rights from which all other actions profit.

Consequently, it would be illicit to preferably institute with the profit of the actions a right of veto to the assemblies general, even limited to certain operations and temporary^337(*).

165. - One can then think that the alternative would be to apply the right of veto to resolutions of the Board of Directors or of monitoring.

The report/ratio of the MEDEF of May 2001 on the actions preferably^338(*) mentions the possibility of granting such a right when the holders of these actions are associated the decision-making power by the attribution of a certain number of seats within the council. This thus supposes naturally as a preliminary that is organized the representation necessary of the carriers of actions preferably in the collegial body concerned^339(*).

166. - The texts applicable to SA offer more flexibility to arrange the rules of vote to the monitoring or board of directors that at the general assembly. Indeed, if the rules of quorum for the board meetings^340(*) or of monitoring^341(*) are imperative, the statutes can on the other hand arrange the rules of majority by envisaging a majority stronger than those of the members present or represented^342(*).

167. - The authors are unanimous on impossibility, for the particular right conferred by an action preferably, to consist of a general and final right to be opposed to resolutions of the Board of Directors or of monitoring. Indeed, the expression of the vote to the council concerns the law and order and it seems imperative that each administrator has a voice^343(*) ; to grant a right of veto final and general would amount calling into question this principle of individual and levelling vote.

168. - On the other hand, the authors are very divided on admissibility of a right of veto confined to certain precisely definite Council Decisions.

The ANSA and MEDEF consider that such a right is licit^344(*), and could in particular take one of the following forms : reinforced majority or unanimity with the monitoring or board of directors for the decisions concerned^345(*) ; right to obtain a new deliberation, this one having to intervene within a reasonable time (for example, within the limit of the current year)^346(*) ; prior agreement of the special assembly of the carriers of actions preferably for the decisions carrying reached to their interests^347(*). The ANSA specifies that these solutions must nevertheless observe certain conditions : the right of veto granted should not be against the social interest and it must be confined with certain precisely definite decisions. Certain authors also conceive this possibility, although issuing reserves^348(*)

Part of the doctrines expresses doubts on the possibility of a right of veto within the board of directors because of the collegial character of this body, because, on this assumption, the will of only one administrator would be enough to paralyze the operation of the council^349(*) .

More moderated, an author admits the attribution of a right of veto, but only on the questions concerned with the protection of the particular rights attached to the actions preferably^350(*).

On their side, certain authors explain that, since the law authorizes the statutes to require the unanimity for the decision-making of the monitoring or board of directors, one can be tempted to think that it is easy to institute a right of veto by this skew ; but they specify that the effectiveness of measurement would suppose to envisage the unanimity of the members in function and not of the members present or represented. However, such a stipulation famous would be not written since it would cause of enfreindre the imperative provisions which fix the quorum^351(*). Moreover, the stipulation of a reinforced majority necessarily including the vote of such administrator representing the holders of actions preferably appears very contestable because indirectly it amounts modifying the rule of the quorum. It will be thus necessary to take supplementary measures and in particular rules of strict convocations ; but one touches already with the other political rights.

(2) Other political rights

169. - Right of information reinforced. This right could relate for example to the intercalated budgets, countable situations, the projects of investment, etc

These rights are however to consider with prudence being of a company calling public upon the saving and problems of privileged information.

170. - Right of control. They can be a right of control specific of management or accounts entrusted to an expert appointed by the carriers of actions preferably, according to preset methods'.

171. - Advantages of a commercial nature. It will be advisable however to take care to respect the social interest, the particular right in addition having to be compatible with the taxation rules in particular.

172. - Representation with the monitoring or board of directors. In oneself, a clause ensuring the necessary representation of the holders of actions preferably to the monitoring or board of directors is not new.

Under the former legislation, the existence of groups of shareholders justified the creation of classes of shares and the reservation of one or more posts of administrators to the profit of the titular shareholders of each category. For a long time, jurisprudence admits the possibility of envisaging in the statutes the representation with the council of holders of a certain class of shares, provided that the appointment of this (these) administrator (S) continues to raise of the only ordinary general assembly- except co-optation of the council- and that this one preserves the choice between several candidates and the capacity to revoke any administrator^352(*).

By prudence, the conditions fixed by jurisprudence must be observed when the actions preferably ensure their holders a right of representation to the monitoring or board of directors^353(*). Indeed, nothing in the provisions specific to the actions preferably derogates from the general rules relating to the appointment and the revocation of the administrators or members of the board of trustees.

173. - Right of pre-emption. One can consider a clause which would allot to the only holders shares preferably a right of pre-emption.

174. - If the particular rights evoked in the preceding developments and whose practice will supplement the list preferably constitute advantages attached to the actions, those can also comprise certain obligations, which will generally condition the exercise of the rights referred to above.

(iv) Particular obligations

175. - Like he was said^354(*), the report/ratio with the President of the Republic specified that the actions preferably could « to be equipped with particular obligations and to be the subject of restrictions »^355(*). It is indeed equitable that the recognized prerogatives some answer « constraints » as that meets sometimes as regards actions with financial privileges^356(*).

176. - Particular mode of transmission. One could imagine that such actions preferably would be subjected to a clause of inalienability or on the contrary declared freely transferable.

Between these two extreme characteristics, their transmission can be subjected to a right of pre-emption or to a certification which would distinguish them from the rules applicable to the ordinary actions.

177. - Suppression of the preferential duty of subscription. The first commentators consider that the preferential duty of subscription, basic right attache to the action, could not be modified nor removed, and this because of the provisions of the second European directive of December 13, 1976^357(*).

An author underlines however that the article L. 225-132 of the Commercial law resulting from the ordinance does not show any more the provision according to which any clause depriving a shareholder of his preferential duty of subscription famous is not written^358(*).

178. - Obligations of a financial nature. One can conceive the commitment to leave while compte courant, for one determined period, whole or part of the incomes gotten by the action preferably.

One can also imagine an obligation to answer the basic calls under prefixed conditions^359(*).

179. - Necessary qualities to be titular actions preferably. It is possible, when the transfer of the actions preferably is possible, to make play clauses of quality by which the detention of actions preferably supposes to satisfy certain conditions^360(*) : not competitor or not to be invested in a concurrent company, to exert such or such activity, to have a notation of a determined level, etc Failing this, the actions preferably are automatically degraded, i.e. converted into ordinary actions.

180. - Compared to what could exist before in the pacts of shareholders, these prerogatives being able from now on to be envisaged by the statutes have a reinforced validity, in particular because of their opposability to the thirds.

181. - These various solutions and considerations also vary when the actions preferably are emitted within a group of companies.

c) The particular case of the groups of companies

182. - According to the article L. 228-13, subparagraph 1st of the Commercial law : « The particular rights mentioned to the article L. 228-11 can be exerted in the company which has directly or indirectly more half of the capital of transmitting or in the company whose transmitting one has directly or indirectly more half of the capital ».

183. - The article L. 228-13 thus allows, within a group of companies, to preferably dissociate the localization of the issue of the shares of the place of exercise of the particular right attached to these actions.

This text constitutes one of the most important innovations and most original of the ordinance of June 24, 2004. With him, the development of a French right of the companies crosses a new step.

184. - However, reading of the text « plunge the interpreter, even won over to any effort of creation legal or financial, in perplexity, perplexity worsened as well by the dumbness of the above mentioned report/ratio of the MEDEF as of the report/ratio to the President of the Republic, which is limited to state that the particular rights which match the actions preferably can be exerted with the center « of a company of the group », which amounts paraphrasing the article L. 228-13, subparagraph 1st »^361(*).

With the reading of the text, all the particular rights likely to be exerted within the transmitting company itself^362(*) appear likely to be exerted within a company third member of the group. The freedom offered by the article L. 228-13 encounters however certain difficulties resulting from the application of the principles of the company law and more particularly of the general principle according to which the exercise of the political rights and the financial rights is related to the quality of associate^363(*).

185. - It is thus advisable to examine the applicable principles on the matter (I) in order to consider the rights which can be exerted in the third company (II)^364(*).

(i) Principles applicable to the exercise of particular rights in a third company

186. - Initially, it is necessary to insist on the fact that the particular rights attached to the actions preferably emitted within the framework of a group are exerted « in » the third company^365(*). It is there a significant difference with the actions reflection which, they, do not comprise any right with regard to the subsidiary company whose results are used only to calculate the financial income of the actions, the dividend thus calculated due and being perceived to the only level of the transmitting company. It is thus advisable here not to take as a starting point this type of action.

187. - In the second place, contrary fault of precision in the article L. 228-13 of the Commercial law, it is perfectly possible to cumulate the particular rights. One can thus conceive actions preferably which will enjoy at the same time, or alternatively, of rights particular to the level of the transmitting company and the level of the third company.

188. - These made observations, certain obstacles are, seems it, to prevent so that the possibility offered by the article L plays fully. 228-13. These points however give place to very divergent doctrinal interpretations. Also, any legal insecurity will not be isolated as long as the Supreme court of appeal will not have discussed the raised considerations.

189. - First of all, the debates crystallized on the need or not for being associated third company so that the particular rights of a financial or political nature can be exerted there.

The majority of the authors leave the postulate according to which to enjoy the rights of a associate... it is necessary to be associated. Also, on the assumption that the carrier of actions preferably would not be associated a third company but shareholder of the transmitting company, one could not stipulate, for example, the participation with deliberative voice of the carriers of actions preferably in the assemblies of the third company ; one could not more admit that the financial rights recognized to the carriers of the same actions have the legal nature of dividend^366(*).

The legal Committee of the ANSA^367(*) admits that under article L. 225-122 of the Commercial law, to which the article L. 228-11 returns, a share of capital must be necessarily held to be able to express a vote ; that the voting rights remain intrinsic with the quality of shareholder and that only a provision express of the law can authorize its autonomy^368(*). It concludes some then also on the impossibility of offering voting rights in a company belonging to the group of the transmitting company, in which the holder of the actions preferably is not personally shareholder. On the other hand, it estimates that there is less of obstacles to the attribution of emoluments- in particular of the dividends- within this framework.

Certain members of the legal Committee of the ANSA are further considering than the article L. 228-13 of the Commercial law is an undeniable element of a new right of the groups and constitutes an exemption express from the article L. 228-11. For them, the detention of a share of capital which remains essential under the terms of this article can exist only in the transmitting company- for example, the company-mother. Except with saying that the ordinance sets up a legal entity at the level of the group- «  what tolerable would not be operated on the run »^369(*)-, this interpretation appears however not very careful in the current state of the right.

190. - Then, and the authors agree on this point, it agrees to respect, on the one hand, legal autonomy of the third company and, on the other hand, except for SAS^370(*), the autonomy of the social bodies of this third company.

That consequently makes impossible the recognition of a right of management or decision or veto to the profit of the shareholders preferably ; but that does not prohibit to them to authorize a right of opinion to them and to regulate the financial consequences of a social decision made against their opinion. ^371(*)

191. - Lastly, the respect of the social interest of the third company appears imperative. To agree of the rights on a juridically independent company which belongs to the same group, upstream or downstream, that the transmitting company, is a thing ; but still it is necessary that the interests of the third company, and minority, are not sacrificed without counterpart.

On this point, while reasoning as regards joint stock companies, one could find elements of inspiration of with dimensions of the interest of group, as appreciated by jurisprudence on the abuse goods or capacities^372(*), or on the side of the analysis of the services intra-group^373(*) or the side of the tax concept of abnormal act of management^374(*).

192. - It must in addition be specified that the exercise of the rights within the third company is conditioned with the existence of the majority bond in capital imposed by the article L. 228-13 of the Commercial law.

In other words, the majority bond between the transmitting company and the company in which the particular rights are exerted preferably owe perdurer during all the lifespan of the actions since it constitutes a condition of the issue of such shares^375(*).

The law is however dumb on the consequences of the possible disappearance of this bond. Certain authors think that, in this case, it should then be considered that the actions preferably emitted become null and void. It will be thus necessary, in the contract of emission, to carefully stop the consequences of such an established fact, for example by envisaging the conversion or the automatic repurchase of the actions preferably considered, according to prefixed financial methods'. In the absence of stipulations of this nature, it appears in any event not easily conceivable that in practice, a change of control of the third company can be carried out without being regulated the fate of the particular rights which are exerted there, attached to transferable securities emitted by another company.

193. - The article L. 228-13 of the Commercial law thus invites to traverse a labyrinth, and a particular prudence must govern the adjustment of the particular rights.

(ii) Particular rights being able to be exerted in a third company

194. - If the rights of a financial nature (1) and as regards voting rights (2) present certain difficulties^376(*), other political rights (3)- such as rights to information- appear simpler to implement.

(1) Particular rights of a financial nature

195. - Right to the dividends. In what it is attached to the quality of associate, it thus appears excluded a priori to allot a right to the dividends to a person who is not associated. The legal Committee of the ANSA does not share however this point of view^377(*).

On the other hand, it is allowed that can be allotted a right to the distributions^378(*)- since those do not take the shape of dividends.

If the financial right must absolutely take the legal nature of the dividend, in particular for tax reasons^379(*), the only exit will consist in preferably emitting actions on the two levels of the transmitting company and third company and to consider them twinned ; but one leaves then the field of the article L. 228-13 of the Commercial law to approach the assemblies in form « dividend acess »^380(*).

196. - Right to the profit of liquidation. The right to the profit of liquidation being also attached to quality of associate, it calls the same remarks as previously.

197. - Right to the distributions. The dividend is not the only expression of a monetary credit and the financial right can cover very well the commitment entered into by the third company to pay an amount of money, at periods and according to an amount and methods' definite.

For example, it can be the commitment entered into by the third company to pay a given sum if, at the time of a given exercise, the transmitting company preferably does not distribute the dividend promised to the holder of the action ; or commitment of the third company to preferably compensate for the depreciations supported by the holders of actions, with the manner of the commitments outstanding through the certificates of guaranteed value.

198. - Right to the repurchase or a conversion into actions. Using the freedoms offered by the article L. 228-93 of the Commercial law^381(*), one could consider a right to the repurchase of the actions preferably, even with a conversion into actions, ordinary or preferably, third company.

(2) Particular rights as regards voting rights

199. - Voting rights when the third company is SA or a SCA. In the absence of provision express, the voting rights are indissociable quality of associate^382(*). However, the holder of the action preferably does not hold any title of capital of the third company.

Moreover, it is not possible to create certificates of voting rights because they would not enter the definition of the transferable securities; it does not appear either possible to preferably create actions to which the only voting rights would be allotted^383(*) . Also, it appears impossible to institute the voting rights with the profit of nonassociated people within the third company.

Consequently, the majority of the authors consider that the voting rights are excluded from the particular rights likely to be conferred in a third company^384(*). This analysis presents the disadvantage of reducing considerably the range of the article L. 228-13 of the Commercial law ; this is why certain members of the legal Committee of the ANSA^385(*) got busy to defend an innovative interpretation. However, in the current state of the right, and even if the article L. 228-13 mark a projection in the development of a right of the groups, prudence remains of setting and this interpretation could not prevail.

200. - Voting rights when the third company is SAS. When the third company is SAS, the above mentioned obstacles seem to grow blurred^386(*).

The conjugation of the articles L. 228-13 and L. 227-9 of the Commercial law indeed lets think that it is possible to make take part a associate of the group in the group decisions of SAS, when well even it would not be associated of this one directly, and to even make it there vote.

(2) Rights of a political nature

201. - Right of veto or of decision. By application of the principle of the hierarchy of the bodies, such a right seems excluded^387(*), except if the third company is SAS^388(*).

202. - Right of control. It is possible to preferably envisage the consultation of the shareholders for certain social decisions of the third company, as from the moment when the opinion of the aforesaid shareholders does not bind the latter but can start financial consequences if it is not followed for example^389(*).

203. - Right of information or communication. The rights of information present less difficulties, provided however respect of certain principles- respect of the social interest, professional secrecy, information limited to what is necessary to the protection of the carriers of actions preferably.

Consequently, one can consider a right recognized to the special assembly of diligenter one to that, or an expertise on a particular operation. One can also think of a right of consultation or communication of the social documents, to a right of questioning, etc

204. - The introduction of the actions preferably in France touches the company law in its heart ; not only this new financial instrument offers it possibilities which could not be implemented until there, but still shakes it the great principles of the French right of the companies.

The commentators- doctrines and experts- provided a work of legal interpretation thorough to preferably clarify the provisions relating to the contents of the actions ; but force is to note that it will be necessary to await the standpoint of the courts on a number of obscure points raised by the new texts. They are the same being oneself the provisions relating to creation of the actions preferably.

2. The creation of the actions preferably

205. - The actions preferably can be emitted at the time of the formation of the company or in the course of social life^390(*).

206. - In addition to SA, the SCA and SAS can emit actions preferably. However, for these two last varieties of joint stock companies, these titles of capital present less attractions^391(*).

Beyond this unit, one can consider that the co-operative companies of anonymous form have also vocation to emit actions preferably ; these last are besides likely to facilitate the admission like associated people not having vocation to use the services of the co-operative, but intending to contribute to the achievement of its objectives.

The question also arises for the companies of liberal exercise (SALT) resulting from the law of December 31, 1990^392(*), more precisely for those which take the shape of limited company (SELAFA), in partnership limited by shares (SELCA) or by actions simplified (SELAS). The adoption of the one of these three varieties would make it possible to resort to the actions preferably^393(*). However, it is advisable to respect the requirements specific to the companies of liberal exercise : detention of half of the authorized capital and the voting rights by professionals in exercise within the company^394(*), access to the voting rights double limited to this last category of associates^395(*) ; moreover, article 9 of the law laying out that « if it is created actions with priority dividend without voting rights, those cannot be held by professionals exerting in the company », it undoubtedly should be considered, by analogy, that the actions preferably without voting rights must be reserved for different associated.

207. - The companies authorized to emit actions preferably being identified, it is advisable to preferably count the various ways open for the creation of actions (A), before considering the general rules applicable to creation of the aforesaid actions (b).

a) Ways allowing the creation of actions preferably

208. - Several ways can be considered for the creation of actions preferably. The ones are primary, the emission (I) and conversion (II), another secondary, the distribution of dividends (III).

(i) The emission

209. - The issue of shares preferably, at the time of the formation of the company or in the course of social life, by new issue of capital^396(*), whatever the nature of the contributions, is the simplest mode of creation of such actions.

210. - It is only the issue of a title of capital, which thus follows the ordinary rules of emission, as softened by the ordinance of June 24, 2004^397(*). Are added to it only particular rules of procedure which will be examined further^398(*).

(ii) Conversion

211. - Three modes of conversion are possible : the change of actions without preference in actions preferably, that of actions preferably in actions preferably of another category and that of the titles in process of extinction.

212. - The conversion of the ordinary actions into actions preferably is evoked only indirectly by subparagraph 2 of the article L. 228-15 of the Commercial law : « holders of actions having to be converted into actions preferably category to create [...] »^399(*).

Contrary to the procedure of conversion of actions preferably into ordinary actions, which makes, it, the object of several provisions^400(*), the text is less clear being the opposite, above-mentioned operation. Nevertheless, there is not a doubt that the conversion of the ordinary actions into actions preferably is also possible^401(*). The writers of the ordinance used besides on several occasions the term, neutral, of « creation » of the actions preferably^402(*), which includes/understands the emission, but does not certainly limit itself to this procedure.

The mode of the conversion of ordinary actions into actions preferably, as fixed by the statutes or the decision of the extraordinary general assembly, will be able to take as a starting point the the conversion of the ordinary actions into actions with priority dividend without voting rights, when this one was still allowed^403(*).

213. - Another possible conversion, expressly envisaged by the law this time^404(*), is the conversion of actions preferably into actions preferably of another category.

The mode of this conversion, also subjected to a decision of the shareholders brought together in extraordinary assembly or, more simply, to the statutory stipulations, not being specified by the law, we return to the preceding developments^405(*).

214. - A last procedure of conversion is possible and relates to the titles called in process of extinction : actions with priority dividend without voting rights, certificates of investment.

In order to facilitate and to accelerate the disappearance of these titles, the legislator imagined several solutions. Thus, for the holders of actions to priority dividend without voting rights or for the carriers of certificates of investment, it to them is granted a right to subscribe of the actions preferably, and not of the titles of the category in way of extinction, in the event of new issue of capital in cash^406(*). In the same way, in the event of free distribution of actions, in fact actions preferably will be given to them^407(*).

215. - It remains to be specified that, except if the whole of the actions is the subject of a conversion into actions preferably, the holders of actions having to be converted into actions preferably are private voting rights at the time of the deliberation which creates them^408(*).

(iii) Distribution of dividend in the form of titles of capital

216. - The article L. 228-18 of the Commercial law lays out that « The distributed dividend, if necessary, to the holders of actions preferably can be granted in titles of capital, according to methods' laid down by the extraordinary general assembly or the statutes «.

217. - In the past, this point had been very disputed in connection with the certificates of investment^409(*) ; certain authors thought indeed that the distribution of dividend in the form of titles of capital was not possible to remunerate the carriers of certificates of investment since the latter were not shareholders. The article L. 228-18, by aiming the distribution of the stock dividends at shareholders preferably, poses, him, no problem. Moreover, the article L. 232-18, subparagraph 2, lays down already the possibility of taking account of the classes of shares for such a distribution^410(*).

218. - On this subject, an interrogation is posed when one tries to put in prospect the articles L. 228-18 and L. 232-18 : the intention of the writers of the ordinance, by introducing the article L. 228-18, it was to preferably conceive for the carriers of actions a mode of distribution of the derogatory stock dividend to the common right (article L. 232-18), whose mode would be fixed by the statutes or the decision of the extraordinary general assembly ?

Certain authors answer by the affirmative^411(*). Concretely, that means that it would be in particular possible to preferably limit the offer of payment of the stock dividend to the only shareholders, contrary to the regulations of the article L. 232-18, subparagraph 3^412(*)- similar advantage being likely to constitute besides one of the particular rights attached to the action preferably.

In the same way, whereas this faculty was refused with the ordinary shareholders by the practice^413(*) and the authority of market^414(*), one should admit, if the statutory stipulation is in this direction, the possibility for the shareholder preferably of exerting partially his option of payment of the dividend in titles of capital.

219. - The distributed titles are « titles of capital », which makes it possible to preferably envisage the attribution of ordinary actions like actions. Mixing will be able to prove to be necessary to respect the ceilings of the article L. 228-11 of the Commercial law when the actions preferably are deprived of voting rights^415(*).

220. - Lastly, the article L. 228-18 leaving the care with the statutes or the decision of the extraordinary general assembly to lay down the methods of the distribution in the shape of titles of capital, it seems logical to admit that the price determination of issue of the new shares is freed from the constraints posed by the article L. 232-19 of the Commercial law^416(*).

This is justified indeed by the derogatory nature of the article L. 228-18.

b) General rules applicable to the creation of actions preferably

221. - They are rules of procedure, having milked with the competence of the extraordinary general assembly (I), with the respect of the procedure of the particular advantages (II) and with the safeguard of the rights of certain capital or credit, stockholders (III). Moreover, the case of an emission within the framework of groups of companies calls certain particular remarks (iv).

(i) The competence of the extraordinary general assembly

222. - Under article L. 228-12 of the Commercial law ; « the extraordinary general assembly of the shareholders is only qualified to decide the issue of the shares preferably »^417(*). The solution is also worth for the conversion of the ordinary actions, in accordance with the rules controlling the competence of the extraordinary assembly, and by analogy with the opposite operation of conversion of the actions preferably into ordinary actions^418(*).

223. - The extraordinary general assembly rules within sight of a report/ratio of or directory and the special report/ratio board of directors of the auditors^419(*), the contents of these reports/ratios having been specified by decree^420(*).

The special report/ratio of the auditors has in particular as an aim to make it possible to the shareholders to become aware of the sacrifices which they will have to authorize taking into account the particular rights which will be recognized with the shareholders preferably.

224. - If the article L. 228-12 of the Commercial law lays down the competence of principle of the extraordinary general assembly to decide issue of shares preferably, it specifies then that the assembly can, as for any new issue of capital^421(*), to delegate this power to the board of directors or to the directory, in accordance with the rules applicable to the new issues of capital^422(*).

However, the article L. 228-11 requires that the particular rights of the actions preferably be defined in the statutes. It is thus not easily conceivable that the extraordinary general assembly can delegate her competence to emit actions preferably without a statutory clause defining the characteristics beforehand- in particular the nature of the allotted rights- and the mode even of these actions^423(*).

Also, generally, the extraordinary general assembly will confer a delegation of powers on the body of administration or direction to carry out the operation, after it fixed itself the characteristics of the titles to emit and amend under the condition of the final realization of the operation.

(ii) Procedure of checking of the particular advantages

225. - The article L. 228-15 of the Commercial law lays out that « creation [of the actions preferably] gives place to the application of the articles L. 225-8, L. 225-14, L. 225-147 and L. 225-148 relating to the particular advantages when the actions are emitted with the profit of one or more shareholders designated by name. In this case, the police chief with the contributions envisaged by these articles has been an auditor not having realized for five years and not carrying out a mission within the company. »

226. - This text thus imposes the respect of the procedure of checks of the particular advantages^424(*) when the right constitutes an advantage and since the possibility of acquiring actions preferably, by subscription or conversion, is not recognized with all the shareholders- i.e. in the most frequent case.

227. - Many debates surrounded this procedure, that some judge long and expensive^425(*), even awkward because paralyzing the need to act quickly. The controversy existed in connection with the old article L. 228-11 of the Commercial law relating to the actions known as of priority ; the question was to know, for lack of precision in the text, if it were necessary or not to observe the procedure of checking of the particular advantages in the event of creation of preferred stocks^426(*).

The article L. 228-15 met fine with the quarrel by settling the question explicitly.

228. - Taking into account the will of innovation desired by the text of the ordinance, and the legal framework specific founded by the articles L. 228-11 to L. 228-20 of the Commercial law, logical interpretation consists in admitting that the procedure of the particular advantages envisaged with the article L. 225-147 and required by the article L. 228-15 of the Commercial law has only like vocation to protect the shareholders excluded from the closed issue and to preferably draw their attention to the consequences of an issue of shares^427(*).

This is why we reserve thorough developments on the implementation of this procedure in the chapter devoted to protective measurements of the shareholders^428(*).

229. - However, this drafting can only astonish the expert, because in particular of the consequences which the application of the rule would generate on the assumption that the emission is made with the profit of one or more shareholders designated by name at the same time as with thirds (closed issue)- current case of figure at the time of several turns of financings in which the old shareholders take part with new investors. On this assumption, the application of the article L. 228-15 of the Commercial law would result in not applying the same procedure to all the subscribers to the same emission : for the shareholders it will be necessary to apply the procedure of the particular advantages, but not for the new third subscribers.

In addition, this rule would apply in cascade during the later new issues of capital reserved to the profit of third and shareholders. Thus, in turn, the thirds become shareholders and if they take part in a new emission at the same time as of the new investors, it is necessary to apply the procedure of the particular advantages to them.

(iii) The protection of certain stockholders of credit or titles of capital

230. - Before with the ordinance of June 24, 2004, in the event of convertible obligation, the transmitting company could not « to modify the distribution of the benefit »^429(*), except the case of creation of actions to priority dividend^430(*). The same device existed for the other made up transferable securities^431(*). There it was a question of protecting the carriers from such titles.

231. - The ordinance took again this device in the softener. The article L. 228-98 of the Commercial law states indeed, with the second subparagraph : « [the transmitting company] cannot [...] to modify the rules of distribution of its benefit [...] unless being authorized there by the contract of emission [...] and subject making the provisions necessary to the maintenance of the rights of the holders of the transferable securities giving access to the capital under the conditions defined in the article L. 228-99 ».

The following subparagraph adds, in connection with the actions preferably : « Under these same reserves, it can however create actions preferably ».

232. - It seems that the protection of the rights of the carriers must be guaranteed while at the same time the issue of the shares preferably would be reserved. However, this conclusion results in to grant more rights to prospective shareholders than to the existing shareholders. For certain authors, such a protection of the rights of the carriers appears to have direction only insofar as the creation of the actions preferably affects the distribution of the benefit as seems to suggest it the article L. 228-99, subparagraph 1st in fine of the Commercial law^432(*).

233. - It is necessary also to take care of the protection of the shareholders preferably preexistent. It can indeed happen that after having emitted actions preferably together with particular financial rights, the company wishes to preferably give a priority higher than new actions, to some extent degrading the statute of the carriers of the initial category.

That preferably poses the problem of the protection of the carriers of actions in general ; also, we return to the later developments devoted to this protection^433(*).

(iv) The emission within the framework of a group of companies

234. - The issue of shares preferably within the framework of groups of companies^434(*) calls some particular requirements, in addition to those mentioned in the preceding developments.

235. - There is initially a basic condition, which is due to the existence of a majority bond in capital^435(*) : the actions preferably of the mother can confer particular rights in the subsidiary company, or reciprocally, if the first holds more half of the capital of the second^436(*)- what is the criterion even of the definition of the subsidiary company according to the article L. 233-1 of the Commercial law.

The article L. 228-13 aims at the direct and indirect possession. The concept of indirect possession must be appreciated in chain, company by company^437(*). Thus, each company must hold at least half of the capital of following so that indirect detention is characterized. Conversely, if one of the companies holds less than 50% of the capital of the following company, indirect detention cannot be characterized, the chain of majority detentions being broken^438(*).

This requirement of bond in capital is not a simple contemporary constraint of the emission, but a condition having to be satisfied during all the lifespan with the actions preferably^439(*).

236. - On the other hand, the shape of the third company is indifferent : since the transmitting company is a joint stock company, the nature of the subsidiary third- company or holding- imports little^440(*). It could be a question of a civil or commercial company, among these last SAS offering of the facilities suitable to more easily allow the exercise of the particular rights whose action preferably is matched.

The article L. 228-13, subparagraph 3 of the Commercial law lays down however the intervention of the auditor of the third company. Also, the third company, whatever its form, will have to be equipped with an auditor or will have to indicate one of them beforehand. Moreover, its own mode will not have obviously to make obstacle with the execution in its center of the particular rights attached to the actions preferably.

237. - Being the formal requirements, the issue of shares preferably follows, at the transmitting company, the same applicable mode as that when the particular rights are exerted within the transmitting company itself^441(*).

In addition, under article L. 228-13, subparagraph 2 of the Commercial law, the extraordinary general assembly of the third company must authorize the emission^442(*), ruling within sight of the special report/ratio of the auditor^443(*). This decision preferably recognizes the existence of the actions and the opposability of the particular rights with which they are equipped^444(*).

238. - Whereas the procedure of the particular advantages must be possibly observed on the level of the transmitting company, by application of the article L. 228-15 of the Commercial law^445(*), nothing is not says being the assembly of authorization within the third company. The silence of the legislator could not however be worth exemption to observe the aforementioned procedure since the conditions are met by it^446(*).

This conclusion is worth only if the third company is a joint stock company and among those is still necessary it to treat SAS distinctly, within which the particular provisions relating to the political rights do not constitute particular advantages^447(*).

239. - The issue of shares preferably in SAS is besides far from being of same interest that in SA and causes, moreover, various interrogations which do not have, seems it, not anticipated by the writers of the ordinance of June 24, 2004.

There one can see there a limit with the contractual freedom offered by the actions preferably, just like one must keep in mind which it is not possible to create of the actions preferably to the contents various without taking care to respect the law and order, and in particular that of the company law.

3. Limits with contractual freedom

240. - The liberal inspiration of the ordinance of June 24, 2004 obliges to reconcile, in an always delicate exercise, has freedom offered with the great principles of the company law which of course remains, just like the general law and order.

It is thus legal limits with the creativity of the experts, freedom not being absolute, all not being allowed.

241. - Moreover, so obviously the actions preferably were conceived to answer, successfully, at problems met, particularly, by SA^448(*), the issue of such shares by certain types of companies, in particular SAS^449(*), presents less attractions, in particular because of the specific characteristics to the latter.

Consequently, the question of the interest of the issue of shares preferably, when the company concerned is SAS, pleasing to note that this social form is in itself a limit with the creation of such actions.

242. - As, it is noted as the limits with contractual freedom surrounding the issue of shares preferably do not proceed only of the respect of the law and order (A) ; SAS in itself also constitutes a limit with the interest of the recourse to the actions preferably (b).

a) Limits holding with the law and order

243. - If « the major axis of the reform is a liberalization of the emission of the transferable securities »^450(*), the article L. 228-11 of the besides evoking Commercial law « particular rights of any nature », it should not be concluded from it that beyond the restrictions relating to the voting rights enumerated on the same article^451(*), all is allowed.

244. - Freedom surrounding creation of the actions preferably is inclined indeed in front of the general law and order (I), the protective law and order of the thirds (II) and the law and order of the company law (III).

(i) The general law and order

245. - With the number of the conceivable adjustments of the particular rights attached to the actions preferably, one could imagine that these last are supplied with a clause of inalienability^452(*), preventing their free transferability.

Such a clause is possible, subject respecting the provisions of law and order relating to the clauses of inalienability^453(*). The prohibition of transfer will have thus, on the one hand, to be justified by a serious and legitimate social interest and, on the other hand, to be limited in time^454(*).

However, in SAS, the legislator expressly the possibility envisaged of inserting in the statutes a clause of inalienability : prohibition for the associates to yield their titles for one given length of time can be envisaged in the statutes in the only condition that this one does not exceed ten years^455(*). The condition of common right relating to the serious interest of the clause of inalienability is thus not required within the framework of SAS^456(*).

246. - Another possible adjustment of the particular rights attached to the actions preferably would be to provide that the price of their transfer is indexed.

Such a clause, known as escalator clause or escalator clause, are licit only if the selected index is in direct relationship with the object of convention or the activity of the one of the parts, being specified that this index should not be founded on the SMIC or the general level of the prices or the wages^457(*).

One will be able to then admit, for example, that the indexing of the delivery price of the actions preferably is founded on the value of the point of executive retirement plan fixed by the provident fund whose yielding it a retirement touches^458(*).

It will on the matter be necessary to be careful because the sanction attached to the irregular escalator clauses is absolute nullity, without possibility of confirmation^459(*).

247. - Another requirement holds with the absence of any potestativity or, if one prefers, with the checking of the given or determinable character of the particular right recognized to the action preferably and of its methods of calculation. Let us recall indeed that any obligation is null when it was contracted under a potestative condition on behalf of that which obliges^460(*).

This point returns to the debates which have course as regards delivery price of the actions when this price depends on countable or financial data specific to the company, approaches acceptable since these data do not depend on the will of the one on the parts^461(*). If these orientations are followed, one will be able to accept a financial right whose amount, even existence, depend on data like the EBITDA^462(*), provided that this concept is precisely defined if one wants to avoid the countable quibblings ; but one will refuse to condition the financial right by the realization of objectives subjected partly to arbitrary of the social leaders, thus of the evolution of a level of debt or realization of a programme of transfer of credits.

Here also, the greatest prudence is essential because of the absolute nullity which strikes the purely potestative clauses^463(*).

(ii) The protective law and order of the thirds

248. - One finds here provisions of law and order which will tend to ensure the protection of the situation and the prerogatives of the thirds, so that the adjustment of the rights attached to the actions preferably is also limited here.

249. - As we saw, the nonpecuniary rights can give place to various installations^464(*). However, freedom will butt here against a fundamental principle which is that of the autonomy of the bodies of the limited company- principle also applicable to the SCA^465(*).

SA is characterized indeed by the hierarchisation of the bodies and the separation of the capacities : each body is equipped with capacities which are clean for him. It is the solution which the Supreme court of appeal recommended in 1946 in an important Motte stop^466(*) and which received a legislative dedication in 1966.

The consequences of this principle are numerous. It controls in particular the following solutions : incompetence of the assembly to come to a conclusion about a deliberation of the council^467(*), prohibition to create a committee of study equipped with competitor capacities of those of the council^468(*), prohibition to fix the president with the decision-making power of a third, was he the majority shareholder having advanced an important sum at the company^469(*).

If a right of veto or of management is attached to the actions preferably emitted, it will thus be necessary to take care not to go against the principle referred to above.

250. - Moreover, being the actions preferably conferring of the particular rights in a company third, subsidiary or company-mother of the transmitting company, they will be necessary to compose with rules as intangible as autonomy of the legal people or impossibility of conferring voting rights in the general assemblies on non-aligned^470(*).

251. - Lastly, one will note prohibition to transform an action, even preferably, in evidence of indebtedness^471(*), regulates expressed for all the titles of capital.

(iii) The law and order of the company law

252. - The company law contains a certain number of rules which, gathered, constitute an imperative block, i.e. provisions of law and order of which it must be necessarily held account. A certain number of clauses are thus considered not written, even registered in the statutes ; they are regarded as not existing, which explains in particular that the three years regulation aimed to article 1844-14 of the Civil code^472(*) does not play and that, in addition, the sanction does not have to be officialized by a decision of court^473(*).

253. - Side of the financial rights, the actions preferably are subjected to the prohibition of the leonine clauses^474(*), imperative regulation^475(*).

The particular right will not have to thus be such as it succeeds, mechanically and certainly, to deprive the carriers of the other actions of straight to dividend. It will not have to be either such as it preferably exonerates from any contribution to the losses the holder of actions^476(*).

254. - In addition, in all the commercial companies, it is interdict to stipulate a fixed or intercalated interest payable with associated even in the absence of benefit^477(*). It is moreover interdict to pay an installment on dividends, was this as priority dividend, in the absence of distributable benefit^478(*).

255. - Side of the nonpecuniary rights, there also exists of important restrictions. A certain number of clauses are thus considered not written and it will have preferably to be held of it account during the adjustment of the particular rights attached to the actions.

For example famous are not written : clauses restricting the free right of revocation of the social agents^479(*), the clauses expecting that the board of directors deliberates validly with less than half of his members^480(*), the clauses contravening the exclusive competence of the extraordinary general assembly to amend^481(*), etc

256. - Must also be respected the rules related with the proportionality between contribution and voting right when there exists^482(*) and the right for the shareholder to take part in the group decisions^483(*).

257. - In a general way, as an action, the actions preferably obey the general principles of the Commercial law and the Civil code. It will thus be advisable to compose with these various principles and rules during the issue of shares preferably and of installation of the particular rights which are attached there.

Some of these principles are softened when the transmitting company is SAS, for example the principle of autonomy of the bodies of the company. However, SAS is a social structure which, in itself, household already a very great flexibility, for example as regards multiple voting rights or right of intervention in management conferred on a third. The interest of the issue of shares preferably within the framework of SAS can consequently appear limited.

b) Limits holding the interest of the recourse to the actions preferably in SAS

258. - The creation of the actions preferably opens a considerable field of freedom to modulate the rights of any nature attached to the detention of transferable securities. In this respect, this opening appreciably brings SA- or the SCA- closer to SAS, which one knew already the very great flexibility of operation.

259. - With the risk to fall into a certain confusion or the amalgam, the analogy must however stop there. It is not easy matter to achieve insofar as the provisions relating to the actions preferably are superimposed on the legal regulations specific to SAS.

To how determine the new provisions relating to the actions preferably can apply to SAS results in wondering about the interest which could present, for a company of this form, the issue of such shares (I), as on the obligation that havewould have SAS to preferably emit of the actions in certain situations (II).

(i) Interest of the issue of shares preferably by SAS

260. - If the legislator preferably authorizes the issue of shares by SAS, it is thus that its associates can there find an interest, which should logically result from comparative between the opportunities offered by the emission of actions preferably and those that the recourse to the social shape of SAS confers right now.

With this intention, it can be reasoned while classifying, according to a traditional typology, the particular rights in three categories : those conferring of the pecuniary prerogatives, those allowing to arrange the voting rights and those conferring of the political rights others that voting rights.

261. - With regard to the stipulation of pecuniary prerogatives, SAS does not show any characteristic specific compared to other shapes of joint stock companies.

SAS is thus placed on an equal footing with SA and the SCA when it decides to stipulate with the profit of a associate of the dividends préciputaires, rights privileged on the reserves or a priority apprehension of the profit of liquidation. It moreover was subjected, before the ordinance, with same legal uncertainties which weighed on the question of the implementation of the procedure of the particular advantages^484(*).

Now that the former restrictions and uncertainties were raised, the possibility for a joint stock company of preferably emitting actions to which various financial rights would be attached a real opportunity constitutes, whose SAS should not deprive itself if its associates wish to juridically make safe the financial advantage thus conferred.

262. - Being the adjustment of the voting rights, one of the principal characteristics of SAS resides in the fact that the law does not fix, in this matter, no rule preestablished, since it draws aside from the provisions applicable to SAS those envisaged with the articles L. 225-17 with L. 225-126 of the Commercial law- which are essential in addition on SA.

The rules relating to the proportionality between contribution and voting right^485(*), to the voting rights double^486(*) and the levelling off of the voting rights^487(*) are thus drawn aside. Also, and with the extreme, the holder of 1% of the authorized capital of SAS will be able to have voting rights conferring to him 99% of the voting rights^488(*). SAS thus makes it possible to very freely modulate the voting rights of the associates.

By comparison, the action preferably offers very reduced possibilities being adjustment of the voting rights, since this one must obey the provisions of the above mentioned articles^489(*). It does not allow the stipulation of multiple voting rights (except the voting rights doubles), nor the installation of a levelling off of the voting rights^490(*). Moreover, the provisions of the article L. 228-11, subparagraph 3 of the Commercial law, founding a ceiling as for the number of actions preferably likely to be private voting rights, must be respected^491(*).

Consequently, the interest for SAS to resort to the issue of shares preferably to arrange the voting rights of the associates is far from being obvious, since the potentialities offered by the aforementioned actions are in this matter quite less than those conferred on SAS as such, with less obviously than the associates of SAS decide to resort to it voluntarily, or that they are constrained there^492(*).

263. - Lastly, in connection with the political rights others that the voting rights, SAS allow, more than very other, to arrange the control of the evolution of the capital of the company, the methods of very decision-making and the management engineering of the company, and this almost unbounded.

Consequently, one can rightly wonder why SAS would emit it, under these conditions, of the actions preferably to manage these situations.

It is a potentiality of the action preferably that the simple recourse to SAS does not offer : the possibility of exerting the particular rights conferred by the aforementioned actions in a third company. However, this opportunity is of a complex use^493(*) and an interest more reduced than it does not appear to with it^494(*).

264. - The interest of the issue of shares preferably by SAS appears consequently very limited, at least being the adjustment of the political rights, in particular the voting rights.

But beyond the simple question of opportunity, it is advisable to wonder about the obligation to which SAS would be, the échant case, forced to emit actions preferably.

(ii) Obligation of the issue of shares preferably by SAS in certain situations

265. - Of course, no joint stock company, SAS or other, is held, as such, to emit actions preferably.

The question only aims at identifying, if necessary, the situations in which SAS would be- at the time of the installation of rights of nature particular to the profit of some associated- in the obligation to resort, with this intention, with the issue of shares preferably.

To answer this pleasing question to take again typology referred to above, while distinguishing according to whether SAS wishes to stipulate privileged rights of pecuniary nature, extra-pecuniary, even of the rights « mixed », likely to it pecuniary and extra-pecuniary time.

266. - In addition to the fact that it will probably not have interest there^495(*), SAS is by no means held to emit, being of the adjustment of extra-pecuniary rights, the actions preferably^496(*). No text imposes such a recourse indeed.

The modulation of the voting rights pertaining to associated of SAS does not imply the installation of any particular procedure : neither creation of classes of shares, neither respect of the procedure of the particular advantages, nor issue of shares preferably.

To claim the opposite would result in noting the implicit abrogation of a whole side of freedoms conferred specifically on SAS, in particular concerning the adjustment of the voting rights. If SAS were imperatively to carry out the issue of shares preferably to arrange the voting rights of the associates, it would indeed logically owe, in this case, to respect the entirety of the provisions applying to the known as actions, and in particular those relating to the articles L. 225-122 with L. 225-125 of the Commercial law- whose application however is expressly excluded within the framework from SAS^497(*).

Actually, the only case of obligatory recourse to the issue of shares preferably by SAS in order to arrange the extra-pecuniary rights of its associates aims that where the latter would wish to have particular rights in a third company^498(*). And still, on this subject, for little that the third company is itself SAS, the associates of the companies concerned will be able freely to arrange the extra-pecuniary rights of each one, without recourse to the issue of shares preferably, and with a much better effectiveness^499(*).

267. - Acting to know if the stipulation of advantages of pecuniary nature for the benefit of some associated of SAS obliges the latter to emit actions preferably, the answer seems also negative here^500(*).

On the one hand, the law does not lay out that any stipulation of a right particular to the profit of a associate, even from an action, passes obligatorily by the issue of shares preferably.

In addition, the ordinance does not repeal the article L. 225-99 of the Commercial law relating to the actions of category ; it made there, on the contrary, expressly reference^501(*). The doctrines agree in addition to consider that the action preferably is a class of shares, and that it profits so from the mode of protection which is attached to him^502(*). This report does not make it possible to conclude only the only classes of shares which it is possible to constitute necessarily gather of the actions preferably (or of the ordinary actions, by opposition). Under these conditions, the stipulation of particular rights of pecuniary nature should still be able to be consisted the creation of a class of shares, without issue of shares preferably^503(*).

Lastly, it is useful to recall that it is before all the provisions of articles 1844-1 and 1844-9 of the Civil code- and not the recourse to the issue of shares preferably- which make it possible associated with any company to dissociate the emoluments of the participation in the capital of each one^504(*). If the issue of shares preferably constitutes one obviously « contrary clause » within the meaning of articles 1844-1 and 1844-9, one can wonder about the point to know if it is the only possible one. The ordinance repealed certainly the article L. 228-11 of the old Commercial law relating to the preferred stocks, like the actions with priority dividend without voting rights, and substituted for these provisions those relating to the actions preferably ; but it leaves it there, and did not make any modification to the provisions specific to the particular advantages, the classes of shares, and even less with those aimed by articles 1844-1 and 1844-9 of the Civil code.

Nevertheless, beyond this very theoretical debate^505(*), it should be admitted that the stipulation of advantages of pecuniary nature without resorting to the issue of shares preferably, will not present, including in SAS, same legal safety as that conferred by the articles L. 228-11 and following of the Commercial law^506(*).

268. - Lastly, concerning the adjustment of rights « mixed », SAS will be able to have interest, even if it is not forced there, to emit actions preferably in order to arrange and to make safe the particular financial rights conferred on some associated ; contrary, the issue of such shares by SAS will obviously restrict the margin of freedom which this shape of company offers to modulate the voting rights of the aforesaid associates.

Also, to slice this discrepancy at the time of the stipulation of privileged rights « mixed » - likely to it pecuniary and extra-pecuniary time- « be likely to plunge the writers of the statutes of SAS in a exercise of style which confines with acrobatics »^507(*).

269. - The issue of shares preferably by SAS should thus appear a rather rare practice so much the advisability of emitting such actions is reduced taking into consideration possibility already offered by SAS. It is noted whereas the freedoms permitted by creation preferably are of limited interest since the transmitting company is not SA.

270. - Conclusion. Certain experts saw in the imperfections and the outdatedness of the French right of the transferable securities a source of uncertainties favourable with the expression of their creativity, others proposed the important risks related to the issue of securities to the dubious legal status, for very important sums however. The legislator, as for him, remained divided between the fact of taking note of creations resulting from the practice, in technical and compartmental texts, and the adoption of standards tallies enough vague to be able to hope to embrace creations present and future. It remains that the money market awaited the reform of June 24, 2004, was this to only guarantee, or at least to improve, the competitiveness of the French companies.

With the action preferably, the ordinance creates a new financial instrument thanks to which undertaken them French will be able to be financed, under conditions of legal safety and international competitiveness satisfactory. The actions preferably, as we saw, open the way for extremely flexible and varied installations emoluments and extra-pecuniary, and this under improved conditions of legal safety since statutory insertion offers the best guaranteed that insertion in a pact of shareholders^508(*). Ultimately, the statutes detailing the rights and obligations of the shareholders preferably will be able to replace, except obligation of confidentiality, the drafting of the pacts of shareholders and to constitute the true subject of negotiation between directing shareholder and financial investors. The company law anonymous and, therefore, the rights of the shareholders are some significantly upset.

However, it is necessary to take care not to think that the implementation of the new device will be free from difficulties. Taking into account the many questions mentioned in the developments preceding and lending to different interpretations, it will be advisable to observe the standpoint of the courts on the dispute, inevitable, to come.

271. - Even if all the requests of the professional organizations were not heard, these last estimate nevertheless that « the whole of these reforms must be greeted like a progress, within the framework of an increasingly moving capital market European and world and with an increasingly international shareholding ».

The adjustment of spaces of freedom in order to optimize the conditions of financing of the joint stock companies could not however be done without the installation of parapets necessary to the protection of the shareholders.

II. THE PROTECTION OF THE SHAREHOLDERS : NECESSARY COUNTERPART OF FREEDOM OCTROYEE

272. - The creation of the actions preferably, in what it allows to a very flexible adjustment of the pecuniary and extra-pecuniary prerogatives their holders, affects a great principle of the company law which is the equality of the shareholders.

The delegations with the bodies of direction as regards new issues of capital exhaust the principle of sovereignty of the general assembly of the shareholders for all the acts which engage the existence, the image or the development of the company.

273. - The ordinance of June 24, 2004, by sparing contractual and statutory spaces of freedom to the profit of the transmitters, was to take these considerations in account and to consider their impact on the rights of the shareholders.

It had indeed not been conceivable to make it possible to arrange the rights of the shareholders with a flexibility and a freedom news without envisaging protective limits and measurements with regard to the latter.

274. - Also, the new device took care to maintain, reinforce or set up certain parapets in order to protect the shareholders- ordinary shareholders of course, but also the new shareholders preferably. This preoccupation with a protection is translated in particular during the creation and of the disappearance of the actions preferably (A), but also, and more largely, during the social life, at the time of certain operations (B) suitable for affect the rights of the shareholders preferably or, when are implemented certain provisions of the right of the new issues of capital, all the shareholders.

A. The protection of the shareholders at the time of creation and the disappearance of actions preferably

275. - At the sides of the ordinary shareholders, having the traditional prerogatives attached to their quality of associates, there will be shareholders preferably, of which the financial and/or political rights will be often reinforced, beyond what the preferred stocks and priority dividend without voting rights allowed until now. Also, when it preferably creates actions to which are attached advantageous particular rights, the company- and its shareholders- must be conscious of the consequences which will result from this.

The legislator, concerned of these considerations, consequently surrounded creation of the actions preferably of protective provisions, for example by imposing the respect of the procedure of checking of the particular advantages when the actions preferably are emitted with the profit of one or more shareholders designated by name.

276. - The creation of actions preferably does not raise however only the question of the protection of the ordinary shareholders. Indeed, it is necessary to take care not to forget that the holders of actions preferably, if they often profit from the reinforced particular rights, will be also often subjected to obligations n the other hand of the granted rights ; they could besides preferably have only obligations attached to their actions, although that is not very conceivable in practice so much the interest of such an operation is difficult to perceive.

Also, it is advisable to preferably consider the protection of the future holders of actions themselves at the time of creation of the aforesaid actions. All is not allowed, which the law comes to recall to various recoveries.

277. - The protection of the shareholders is also appreciated on two levels- protection of the ordinary shareholders and protection of the shareholders preferably- at the time of the disappearance of actions preferably. Creation induces indeed, early or late, disappearance.

The article L. 228-11 of the Commercial law lays out that the actions preferably are matched particular rights of any nature being able to be it temporarily or permanent. But if the particular rights are permanent, they will preferably last only the life time of the actions which, they, are not necessarily brought to perdurer eternally. The question of their disappearance must be taken into account by the company, because they can more prove to be the ideal financial instrument in the long term^509(*).

Consequently, one is brought to wonder about the methods of the disappearance of the actions preferably. From the point of view of the ordinary shareholders, it seems necessary that these methods are envisaged ; failing this, it will be able to prove to be difficult to attack the rights of the carriers of actions preferably. Point of the shareholders preferably, the suppression of their rights could not be done without framing and protective measurements.

278. - These various questions consequently bring to preferably consider protective measurements at the time of the creation of actions (1) and those surrounding disappearance of such actions (2).

1. Protective measurements at the time of the creation of actions preferably

279. - The protection of the shareholders at the time of the creation of actions preferably brings to initially consider protective measurements of a general nature (A), for then considering the particular procedure of checking of the particular advantages (b).

a) Protective measurements of a general nature

280. - Like it was seen^510(*), the extraordinary general assembly of the shareholders is only qualified to decide the issue of shares preferably or the conversion of ordinary actions into actions preferably, pursuant to the article L. 228-12 of the Commercial law and in accordance with the article L. 225-96, subparagraph 1st of the same Code^511(*).

It can certainly delegate this power under the conditions fixed by the articles L. 225-129 to L. 225-129-6 of the Commercial law^512(*) ; but the article L. 228-11 requires that the particular rights of the actions preferably be defined in the statutes. Consequently, it is not easily conceivable that the extraordinary general assembly can delegate her competence to emit actions preferably without a statutory clause defining the characteristics beforehand- in particular the nature of the allotted rights- the mode even of these actions^513(*). At most, in practice, the extraordinary general assembly will be able to confer a delegation of powers^514(*) on the body of direction to carry out the operation, after it fixed itself the characteristics of the titles to emit and amend under the condition of the final realization of the operation.

281. - The exclusive competence of the extraordinary general assembly for the creation of actions preferably- at least to define in the statutes the characteristics of the rights which are attached there and their mode- is a particularly important for the existing shareholders, protective guarantee their rights, more especially as any violation of the terms of reference reserved for the extraordinary general assembly incurs the nullity of the acts which result from this^515(*).

If the article L. 228-11 had not imposed that the particular rights attached to the actions preferably are defined in the statutes, the body of direction which would have been seen granted a delegation would then have been able to define itself, almost discretionarily, the particular rights attached to the actions preferably. Such a situation would have been extremely deplorable in comparison with the protection of the rights of the shareholders.

Ultimately, the shareholders remain, in the sides of the leaders, associated the process of search for new investors and take part in the adjustment of the capital and the capacity operated by the actions preferably within the framework of the financial arrangements. One can only be pleased some.

282. - The general assembly rules within sight of a detailed report/ratio of the body of direction^516(*), which indicates the characteristics of the actions preferably and specifies the incidence of the operation on the situation of the holders of titles of capital and transferable securities giving access to the capital. This report/ratio must be in conformity with the rules posed by articles 154^517(*) and 155^518(*), like, according to cases', by articles 155-1^519(*) or 155-2^520(*) of the decree of 23 March 1967 modified by the decree of February 10, 2005.

She rules moreover within sight of a special report/ratio of the auditor^521(*) which delivers his opinion on the new issue of capital considered, the characteristics of the actions preferably and the incidence of the operation on the situation of the holders of titles of capital and transferable securities giving access to the capital^522(*).

The objective of these provisions is as well as possible to inform the extraordinary general assembly in her decision-making.

283. - If there are stock-options, it will be necessary, if necessary, with adjustment of the bases of attribution according to conditions' under which the actions preferably are created and according to the nature of the allotted particular rights.

The same concern is essential when the company allotted free shares to the profit of its employees or social agents.

284. - When the issue of shares preferably is carried out within the framework of a group of companies, pursuant to the article L. 228-13 of the Commercial law^523(*), in addition to the decision of emission of the extraordinary general assembly of the transmitting company, the emission must be the decision object of authorization- and not of emission- of the extraordinary general assembly of the third company.

An auditors' certificate of the third company is in addition required, being added to that of the auditor of the transmitting company^524(*). One then notes the importance attached by the legislator to the information of the shareholders.

285. - The protection of the ordinary shareholders, but also of the future carriers of actions preferably, also finds to appear within the limits surrounding installation of the particular rights. The prohibition of the leonine clauses, the limitations relating to the voting rights and, more generally, the imperative provisions of the company law and the general law and order must be respected during the creation of actions preferably^525(*).

They are fundamental guarantees which recall that, if freedom is large, all is not therefore possible.

286. - The ordinance also organized the protection of the carriers of actions preferably existing. Indeed, if actions preferably were already created, the issue of new shares preferably is of course possible, in condition however, in the event of new issue of capital, to observe the conditions of the article L. 228-16 of the Commercial law which lays out that « in the event of modification or of damping of the capital, the extraordinary general assembly preferably determines the incidences of these operations on the rights of the carriers of actions » and that these incidences can also be noted in the statutes.

Such a provision appears to be essential : insofar as the issue of new shares preferably is likely to modify the particular rights of the shareholders preferably existing, it seems normal to establish which will be the incidences of this new emission on these existing rights.

The ordinance supplements this device by specifying that, in the event of creation of actions preferably, that it is by new issue of capital or conversion, the authorization of the special assembly of the carriers of actions preferably already created is necessary if the rights of the new actions preferably are likely to modify the rights of the actions preferably existing^526(*).

287. - Let us announce finally that each time the creation of actions preferably proceeds of a new issue of capital in cash, it is necessary to check that the existing capital is entirely released^527(*)

288. - The new device grants moreover a very particular protection when the actions preferably are emitted with the profit of certain people.

b) Procedure of the particular advantages

289. - Under article L. 228-15 of the Commercial law, « the creation of these actions gives place to the application of the articles L. 225-8, L. 225-14, L. 225-147 and L. 225-148 relating to the particular advantages when the actions are emitted with the profit of one or more shareholders designated by name. In this case, the police chief with the contributions envisaged by these articles has been an auditor not having realized for five years and not carrying out a mission within the company ».

This procedure thus consists in the appointment of a police chief to the particular advantages who draws up, under his responsibility, a report/ratio on the evaluation of the advantage in order to appreciate the possible consistency and incidences of them on the situation of the shareholders^528(*).

290. - Under the empire of the preceding drafting of the article L. 228-11 of the Commercial law, a controversy existed on the fact of knowing if the creation of a class of shares known as of «priority» required or not to follow the procedure of the particular advantages. Certain authors thought that the creation of actions «of priority» always constituted an advantage particular to the reason which it was about a rupture of the equality between totality of the shareholders and by way of consequences, of the attribution of a particular advantage. Others^529(*) pointed out that the rupture of equality was appreciated inside a class of shares and that there was a difference in nature between the preferred stocks and the advantages particular according to whether the right is attached to the action and thus transmissible or is attached to the holder and thus is not transmissible. It was necessary thus to apply this procedure only on the assumption that the rights attached to the actions are it only according to the identity and of the quality of the holder of the aforesaid actions and that these rights disappear when the holder transfers his actions or loses the quality which had justified the attribution of this particular advantage.

291. - Being the actions preferably, « to raise the interrogations of the experts »^530(*) and to avoid the useless baffles, the writers of the ordinance thus have « envisaged explicitly that the procedure of the particular advantages is applicable only when the actions preferably are emitted with the profit of identified people »^531(*).

The ordinance thus puts fine at the controversy, accrediting with the passage the absence of obligation to observe the procedure considered when the advantages are allotted intuitus rei. It is not because there is that the procedure must be observed but only because of the particular character of this privilege which benefits with a person or a determined group of people^532(*). The text has clearly vocation to protect the shareholders excluded from the closed issue and to preferably draw their attention to the consequences of an issue of shares.

292. - Thus, whatever the emission mode^533(*) retained, the special procedure of the particular advantages applies since these actions are emitted « with the profit of one or more shareholders designated by name ». This formula caused some debates. The expression could indeed let think that the procedure of the particular advantages does not have to be followed if the emission takes place in favor of a third not shareholder.

It of it is nothing. As in the phase of formation of the company where the founders are not shareholders but become it by subscribing the actions, the creation of actions preferably to the profit of an indicated third passes by the implementation of the procedure and the appointment of a police chief to the particular advantages. The Minister for Justice indeed specified that the article L. 228-15 of the Commercial law aims the already existing shareholders and the shareholders who become it at the time of the subscription, at condition however that these shareholders are designated by name^534(*). The intervention of the police chief to the particular advantages is essential consequently for any new issue of capital reserved on the profit of a shareholder or a third per way of issue of shares conferring a pecuniary preference or not envisaged in the statutes.

It goes without saying if the recipients are identifiable at the time of the creation of the actions preferably, the procedure must also be observed, thus case in which « the privilege is granted to all the actions of a category had by a person »^535(*), or among that in which the promoters of the project know perfectly the name of the potential subscribers to actions preferably, would be this only to have negotiated their entry in the capital of the company^536(*).

293. - The police chief with the contributions envisaged has been an auditor^537(*) not having realized for five years and not carrying out a mission within the company^538(*) ; the Minister for Justice specified that this provision excludes designation from an auditor having carried out any mission within the company, including under the terms of a legal designation^539(*) It is indicated and achieves its mission under the conditions envisaged in article 64, subparagraph 2 of the decree of March 23, 1967^540(*).

The police chief with « particular advantages » appreciates, under its responsibility, the particular advantages^541(*). « The report/ratio described and appreciates each particular advantage or of the particular rights attached to the actions preferably. If it is necessary, he indicates, for these particular rights, which mode of evaluation was retained and why it was retained, and justifies that the value of the particular rights corresponds at least to the face value of the actions preferably to emit increased possibly issue premium »^542(*). The drafting of the decree leaves perplexed^543(*) : the calculation of the value of the particular rights is not easy matter to achieve ; worse, in certain cases, these rights cannot be developed. Indeed, it « preference » related to these actions can take various forms : the emoluments, such as a priority dividend are obviously likely to be developed ; on the other hand, of the variations of rights political such as the temporary suppression of the voting rights or an additional right to information cannot be the subject of a valorization. The text thus states that this evaluation is only given « if it is necessary »^544(*).

The report/ratio of the police chief to the contributions is held at the disposal of the shareholders to the registered office at least eight days before the date of the extraordinary general assembly, of kind to guarantee their good information within a reasonable time^545(*). However, this time can be reduced if all the shareholders agree to it, in writing, before the police chief nomination to the contributions^546(*).

294. - Being oneself the rules of vote, if the recipient of the actions preferably to be created, indicated by name, is already shareholder of the company, they are private voting rights for itself and like agent, and its actions are not taken into account for the calculation of the quorum and the majority^547(*).

In the same way, in the event of conversion of ordinary actions, the holders of actions having to be converted into actions preferably category to create cannot, under penalty of nullity of the deliberation, to take share with the vote on the creation of this class of shares. The actions which they hold are not taken into account for the calculation of the quorum and the majority, unless the whole of the actions are the subject of a conversion into actions preferably^548(*).

295. - It is specified that the statutes of the company must contain the identity of the recipients of particular advantages and the nature of those, according to general rules' applicable to the granting of such advantages^549(*).

296. - Lastly, two characteristics will be noted.

On the one hand, the application of the procedure of the advantages particular to the case of creation of actions preferably comes in exemption from the provisions of the article L. 225-138, I, subparagraph 1st of the Commercial law^550(*) which provides that in the event of closed issue the procedure of the particular advantages envisaged with the article L. 225-147 of the Commercial law does not have to be followed.

In addition, there is another form of closed issue under article L. 225-138, I, subparagraph 2 of the Commercial law^551(*), when they are one or more categories of people meeting characteristics fixed by the assembly. It will then be a question of defining the category, but nothing seems to prohibit that shareholders are included in the definition of the category. On this assumption the shareholders «not being indicated by name», it would not be necessary to apply the procedure of the particular advantages^552(*).

297. - The protection of the shareholders- ordinary shareholders like shareholders preferably- also appears, in addition to during the creation of actions preferably, at the time of disappearance of the aforesaid actions.

2. Protective measurements at the time of the disappearance of actions preferably

298. - « It often goes from there from the preferred stocks and other actions to priority dividend without voting rights or certificates of investment like second homes : the two only happy moments for the transmitting officers of the company are that of the creation of the actions preferably (the purchase of the house of holidays) and the disappearance of the same actions (the sale of this same house »^553(*). And the major problem posed at the transmitting companies by these titles, because especially of the rigidity of the legal mode of the actions with priority dividend and the certificates of investment, was to find the means of getting rid of financial instruments become cumbersome.

299. - The mode of the old preferred stocks was not worried to give one or of the solutions of exit. In other words, it did not organize any procedure making it possible to put an end to the advantages granted to these actions.

That did not prohibit with the transmitters to envisage or decide, under certain conditions, and with the agreement of the carriers, the operations to this end. The simplest way consisted in stipulating the privileges for one duration given or determinable, with the expiry of which the advantages became null and void and the preferred stocks were purely and simply comparable with the ordinary actions.

It remains that, in many cases, no one could not predict the duration of the allotted advantages, once the preferred stocks were emitted.

300. - The writers of the ordinance of June 24 2004 took account of these considerations and spared convenient flexibilities by drawing two ways : the conversion and the repurchase of the actions preferably.

By doing this, the legislator seems to consider that the particular rights attached to the actions preferably have necessarily an end other than the expiry of the duration of the transmitting company. This subjacent intention would be then founded^554(*). It is indeed banal to note that such context, such circumstances which, at a given time, justify to allot rights particular to the profit of such titles, often lose their relevance with the wire of time. This natural tendency will probably develop still with the actions preferably since they authorize with going even further in the definition of the particular rights which can be granted to them.

In any assumption, it would thus be necessary « to take the legal rules relating to the conversion and the repurchase of the actions preferably like an invitation made to the transmitters question itself, as of their creation and in all the cases, on the conditions under which the benefit or the load of the allotted particular rights can end »^555(*).

301. - With conversion, the holder of the titles remain shareholder. Contrary, the repurchase carries, in general, the exit of the shareholder ; it thus offers an advantage for the investors whose intention is to carry out their profit with the one given period expiry.

There also remains always possible to preferably create actions without exit organized in advance. It will then rest with the transmitter to try to make take required measurements, with in particular the agreement of the special assembly of the carriers, to make disappear if necessary the particular rights the desired moment. Such a situation- the absence of methods of exit planned for the actions preferably- however is strongly disadvised because, in this case, it would become extremely complex- often impossible^556(*)- to preferably implement the disappearance of the actions in the event of refusal of a majority of carriers joined together in special assembly^557(*).

As, the transmitting company will have, by preoccupation with a prudence, to preferably envisage the disappearance of the actions, as it is by way of conversion (A) or way of repurchase (b) of the aforesaid actions.

a) The conversion of the actions preferably

302. - Conversion, it is the transformation, the change but not the exchange.

303. - Under article L. 228-14, subparagraph 1st of the Commercial law, the conversion of the actions preferably can take two forms : either the titles are converted into actions preferably another category^558(*), or they are converted into ordinary actions.

The first assumption does not lead to the extinction of the privileges but to the replacement of particular rights by other particular rights of another nature, or to the conservation of certain already allotted particular rights and to the loss of others^559(*).

The second assumption has a clearly defined effect ; the actions preferably lose their own rights to be based in the mass of the ordinary actions. It is about a return towards the common right, i.e. in certain cases a retro-conversion, the actions preferably becoming again the ordinary actions which they were initially.

304. - The article L. 228-12, subparagraph 2 of the Commercial law specifies faculty offered to lay down in the statutes the methods of conversion. In his ratio of 2001^560(*), MEDEF had insisted on the need for allowing the predetermination of the cases of conversion into ordinary actions, in order to avoid the debates which could have course in the past on the legality of such a statutory determination.

305. - The fixing of the methods can naturally cover the convertion rate, seldom given, frequently determinable, which will sometimes call, by precaution, as the above mentioned report/ratio of MEDEF suggests it, the intervention of an expert. Normally, this rate is established according to the value of the title of origin, taking into account the rights which are attached there and of that of the new title also determined according to its own characteristics.

Consequently, if the rate led to replace a title by another title, the operation is without incidence on the capital. If conversion results in replacing existing titles of capital by a number of titles of higher capital^561(*), it results from it necessarily a new issue of capital which is released by charge on an account of premium or reserve. If, in the case reverses, conversion resulted in transforming existing titles of capital into a number of titles of lower capital^562(*), the operation results in a reduction of capital whose amount is normally transfered on an account of premium or reserve coming from a reduction of capital.

It is specified that in this last case- consecutive reduction of capital to conversion-, article L. 228-14, subparagraph 2 of the Commercial law that the creditors can file opposition to conversion,^563(*) this one expects not being able to be undertaken during the time of opposition nor, if necessary, before it was ruled in first authority on this opposition^564(*). During this lapse of time, the actions preferably thus preserve their particular rights, except if the statutes envisaged their suppression as of the moment when the realization of the condition or the arrival of the term is noted on which conversion depends^565(*).

306. - These made observations, it is advisable to distinguish according to whether the methods of conversion were laid down in the statutes (I) or that conversion is decided without the statutes not envisaging it (II).

(i) Conversion in the presence of methods laid down in the statutes

307. - The fixing of the methods covers initially the statement these cases in which conversion operates : unquestionable or dubious term, or condition ; the latter, which should not be potestative, can for example refer with the evolution in some direction that it is of a financial data such as the EBITDA^566(*). In fact there mechanisms had course as regards actions with financial privileges^567(*).

The methods are also financial, namely the parity of conversion^568(*).

308. - When the methods of conversion are laid down in the statutes, like are the rights attached to the actions preferably, all is in this case normally decided as of the emission^569(*).

It is necessary neither for an extraordinary general assembly of the shareholders, nor of a special assembly of the carriers at the time of the realization of the operation. The board of directors or the directory^570(*) then receives the capacities necessary to carry out conversion under the conditions envisaged by the statutes, by application of the articles L. 225-129 to L. 225-129-6 of the Commercial law^571(*).

309. - However, on the assumption that the statutory modification is decided after the emission, the approval of the special assembly of the carriers of actions preferably is required, pursuant to the article L. 225-99 of the Commercial law^572(*).

310. - That there is, because of application of the parity of conversion defined under the articles, increase or reduction of capital, this mechanical variation of the capital does not call a decision of assembly approving the modification of the capital, but simply a observation by the body of direction^573(*) or, on delegation, the president of the directory or the general manager^574(*).

As the report/ratio with the President of the Republic explains it : « the board of directors or the directory will carry out the increase or the reduction of capital resulting from the conversion of the actions preferably into ordinary actions. This new issue of capital is presented indeed only in the form of a simple resultant of the issue of the shares preferably decided by the extraordinary general assembly »^575(*).

311. - Various reports/ratios, for purposes of information of the shareholders, must be written by the body of direction and the auditor.

At the time when the general assembly comes to a conclusion about the inscription in the statutes of the methods of conversion, the board of directors or the directory draws up a report/ratio indicating the methods of conversion^576(*) ; these indications must be carried in the statutes. Moreover, during conversion, another report/ratio is to be established, indicating the conditions of conversion, the procedures of calculation of the conversion ratio and the methods of its realization ; it specifies the incidence of the operation on the situation of the holders of titles of capital and of transferable securities giving access to the capital and, if necessary, indicates the characteristics of the actions preferably resulting from conversion^577(*).

In the two situations, the auditor has on his side to draw up a special report/ratio, on the one hand to deliver his opinion on the methods of conversion^578(*), on the other hand to deliver his opinion on conversion like to the incidence of the operation to the situation of the holders of titles of capital and transferable securities giving access to the capital and to indicate if the methods of calculation of the conversion ratio are exact and sincere^579(*).

312. - Lastly, a question raises certain difficulties : that to know if, when conversion results in a new issue of capital, the absence of reserves available is an obstacle with conversion or not^580(*).

It is necessary initially to have for the spirit that is here causes of it the only par value or even actions representing the new issue of capital resulting from conversion. Consequently, it will not be always of a high amount.

Then, on the assumption that the methods of conversion are laid down in the statutes, it is then advised to make transfer, during the adoption of the statutory clause, on an account of premium or inalienable reserve, the sum necessary to ensure conversion envisaged, with application, if necessary, of the convertion rate which leads to the maximum new issue of capital. This precaution being taken, the difficulty which could occur would result from the observation of losses which, even without being charged, « would start » completely or partially the premium or the inalienable reserve, during effective conversion.

According to certain authors^581(*), this situation would not make nevertheless obstacle with the new issue of capital. In support of this solution, these authors refer to the rules instituted for a long time already to protect the rights of the holders from transferable securities giving access to the capital, in particular in the event of incorporation of reserves. The mechanism is here, according to them, comparable. It requires the constitution of an inalienable reserve of an amount equal to the sum necessary to allot, for example, bonus shares with the holders of transferable securities giving access to the capital^582(*). Once the reserve made up and the right to the bonus shares open, this attribution is inescapable, whatever at the time the situation of the stockholders' equity ; if not, the rights of the holders of transferable securities giving access to the capital would be put in danger, in contradiction with the legal rules.

By analogy, the conversion of actions preferably outcome to a new issue of capital would remain possible in the same situation, which is an additional guarantee for the shareholders^583(*). The solution will not be however the same one if the methods of conversion were not laid down in the statutes or the contract of emission.

(ii) Conversion in the absence of methods laid down in the statutes

313. - In this case, conversion is decided directly by the extraordinary general assembly, which can however delegate this power under the conditions planned for the delegations conferred in order to increase the capital^584(*).

314. - The assembly must rule within sight of a detailed report/ratio of or directory and the special report/ratio board of directors of the auditor^585(*).

315. - When conversion is not envisaged in the statutes, the protection of the carriers of actions preferably appears paramount, since one is on the point of touching with their rights under conditions which were not envisaged.

Also, pursuant to the article L. 225-99 of the Commercial law relating to the special assemblies, the approval of the special assembly of the holders of actions preferably concerned is required. In the event of refusal of approval, conversion could not be imposed to them.

316. - It is it should be noted that a statutory clause which would allow conversion on the initiative of the carrier since all the conditions would be fixed by it is perfectly conceivable.

317. - Lastly, if conversion results in a new issue of capital, in the absence of reserves available, the solution brought when the methods of conversion of the actions preferably were laid down in the statutes^586(*) is not the same one as in the absence of statutory precise details.

The situation is indeed different if conversion is decided by the extraordinary general assembly with immediate effect. To suppose that it must result in a new issue of capital- what in the context of a company in losses is likely to be a rare situation-, it is difficult to see how y to arrive if the stockholders' equity does not reveal any reserve or precedes likely to be incorporated in the capital or, if there are losses, which exceed their amount.

A new issue of capital per charge on the account « carryforward again » debtor is inconceivable. Not more than it is not conceivable to plan to incorporate in the capital of the premiums or reserves completely « started » by losses, which would not be already especially affected as on the preceding assumption.

318. - These made precise details, it is pointed out that, in all the cases, that the methods of conversion were provided in the statutes or not, the decision of conversion of the actions preferably carries renunciation of the shareholders of the preferential duty of subscription for the actions resulting from conversion^587(*).

319. - The ordinance preferably envisages finally another mode of disappearance of the actions : the repurchase of the aforesaid actions.

b) The repurchase of the actions preferably

320. - The repurchase is a drastic mode of suppression of the actions preferably since the carrier does not exchange any more its quality of shareholder preferred for that of ordinary shareholder, but loses purely and simply the quality of associate.

This repurchase is considered in two manners by the ordinance of June 24, 2004, one common to all the joint stock companies (I), the other characteristic at the joint stock companies whose actions preferably are registered with the negotiations on regulated market (II) ; in addition, the question of the repurchase in the companies not - dimensioned calls some particular remarks (III).

(i) General rules applicable to the repurchase of actions preferably

321. - For all the joint stock companies, that their actions are registered or not with the negotiations on a regulated market, the article L. 228-12 of the Commercial law authorizes the repurchase of the actions preferably.

As as regards conversion^588(*), it is necessary to distinguish according to whether the repurchase were envisaged or not in the statutes or the contract of emission.

322. - The transmitting company has always faculty to decide the repurchase of the actions preferably during their existence, when well even the operation would not have been envisaged. In this case, the repurchase is decided directly by the extraordinary general assembly, which can however delegate this power under the conditions planned for the delegations conferred in order to increase the capital^589(*).

However, with the image of what applies to conversion into ordinary actions^590(*), such a repurchase could not intervene in the absence of approval of the special assembly of the carriers, as well on the principle of the repurchase as on its methods, by application of the article L. 225-99 of the Commercial law.

In such a situation- operation of repurchase not envisaged by the statutes or the contract of emission-, the repurchase is thus offered ; the carriers answer it or not.

323. - Generally however, one can think that the principle and the conditions of the repurchase of the actions preferably will be adopted ab.initio^591(*), i.e. fixed in the statutes or the contract of emission during the emission of the aforesaid actions.

In this case, it is necessary neither for an extraordinary general assembly of the shareholders, nor of a special assembly of the carriers at the time of the realization of the operation. The board of directors or the directory^592(*) then receives the capacities necessary to proceed to the repurchase under the conditions envisaged by the statutes.

Naturally, if the statutory clause making it possible the company to impose the repurchase on the carriers is inserted later on into the subscription of the actions preferably^593(*), the approval of the special assembly of the shareholders preferably, unanimously^594(*), will be necessary to validate the modification of their situation^595(*). Otherwise, the repurchase could not be imposed.

324. - The operation of repurchase involves consequences for the company and, therefore, the other shareholders, namely that it passes in theory by a reduction of the capital. The commentators however are divided on this question.

In the joint stock companies, with dimensions or not, except cases limitativement enumerated by the law^596(*), these companies cannot repurchase their own actions without cancelling them^597(*) ; as, the repurchase of any title of capital, as they are ordinary actions preferably or actions, passes in theory by a reduction of capital. Certain authors think that it is not a question there of a decision of strictly speaking but simple countable translation reduction of capital of the cancellation of part of the titles of capital ; consequently, there is not, according to them, to apply the procedure of common right of the reductions of capital not moved by losses^598(*), i.e. being recognized with the creditors it would not know a right of opposition^599(*)- contrary to what applies to conversion into ordinary actions^600(*). Other authors incline to think the opposite^601(*).

Into the only dimensioned companies, in addition to the repurchase offered by the company, the ordinance introduced a possibility of forced repurchase, being able to be imposed by the company on the carriers of actions preferably under certain conditions^602(*). The report/ratio with the President of the Republic specifies that, in this case, «  this repurchase is subject to the general rules of the repurchase of actions »^603(*). However, contrary to the companies not - dimensioned, the companies with dimensions are seen offering cases where they can repurchase their own actions without having to cancel them consequently^604(*). The question which thus arises is to know if, pursuant to the article L. 228-20 of the Commercial law, a company will be able to preferably impose the repurchase of the actions on their holders- provided the conditions of the repurchase are met-, without cancelling them thereafter. To our knowledge, only one author brought an answer there^605(*) ; according to him, the procedure of repurchase of the article L. 225-209 of the Commercial law- which authorizes a company dimensioned to buy its own actions within a certain limit and under certain conditions- would not apply when the article L. 228-20 is implemented, the two modes being distinct one from the other. It writes : « these two procedures of repurchase do not have the same objectives. We think that the repurchase of actions preferably has as a finality their cancellation, whereas a programme of repurchase of actions can have other finalities (attribution with the employees, creation of complex transferable securities,...) »^606(*).

325. - The information of the ordinary shareholders- like preferably- was not forgotten. When the extraordinary general assembly comes to a conclusion about the inscription in the statutes of the methods of repurchase of the actions preferably, the board of directors or the directory draws up a report/ratio indicating the methods of repurchase as well as the justifications and the methods of the calculation of the price suggested^607(*). It is the same when the general assembly decides repurchase^608(*), this report/ratio being then transmitted to the special assembly of the carriers of actions preferably^609(*).

The auditor also delivers his opinion on the methods of repurchase inserted in the statutes^610(*) and on the offer of repurchase made if necessary^611(*).

It is noted that the device of information of the shareholders is particularly complete.

326. - Like it was known as, following the example conversion into ordinary actions^612(*), the statutes can envisage the methods of the repurchase, and thus determine the cases in which the actions preferably will disappear, as well as the rules of estimate of the counterpart to which right the carriers will have ; the statutes will be able thus usefully to envisage a method evaluation of the actions and a procedure of fixing of the price, for example by expertise.

However, the question of fixing in the statutes of the methods of price determination of the repurchase can raise certain difficulties. Indeed, if the methods of the price are inserted in the statutes, the company is obviously held there, but the carriers of actions preferably too. However, to some extent to ensure the control of their exit, the investors can wish to stipulate a price of determinable repurchase, even given. Such stipulations do not go however from oneself.

327. - In theory, the price of repurchase is given at the day when the operation is concluded, according to the social condition of the moment and of its prospects^613(*). Also, it appears possible to envisage a determinable price according to a mode of evaluation which pareillement takes into account the social condition at the time of the operations^614(*), even if it means to hold the recourse to the expertise in the event of difficulty of application of the adopted method.

On the other hand, any other clause is criticizable which would stipulate a determinable price, even given, according to data or of foreign criteria to the real situation of the transmitter at the time of the repurchase, a such price based on the cost price raised of an interest suggested or required by the investor^615(*). Such a clause would be likely to cause a discussion, during its execution, especially if, at that time, the price while resulting is without common measurement with the value of the social company, estimated according to usual criteria's. The leonine character or not of such a clause will feed the debate, and it is difficult to predict the application that will make the courts of them.

Traditionally, the civil and commercial rooms of the Supreme court of appeal do not have a homogeneous jurisprudence on the question ; the first bracket in an extensive way prohibition of the leonine clauses whereas the second tends to restrict the application of it^616(*). This divergence will not be however soon more because the commercial Room has to know near total of the litigations born of the application of the company law. It is thus important to take into account only the liberal thesis^617(*). However, the decisions which up to now devote this liberal thesis most clearly relate to conventions extrastatutaires, perhaps less exposed than the statutory clauses with the sanction, which causes to consider not written the clauses held for leonine.

Moreover, one can also wonder whether the stipulation of a given or determinable price according to the foreign criteria with the situation of the company does not cause to transform the title of capital into evidence of indebtedness, violation, consequently, of the prohibition envisaged by the article L. 228-91, subparagraph 5 of the Commercial law^618(*).

Nevertheless, if the commercial Room of the Supreme court of appeal follows the jurisprudence which it returned as regards pact extrastatutaire, it is completely conceivable that it draws aside criticisms above-mentioned, since the shareholder incurs the risk to see his actions disappearing during the time ranging between the subscription and the time from the repurchase^619(*).

328. - It is thus to provide that the methods of the repurchase of the actions preferably will be the ground of rough discussions, that it will doubtless rest with the courts to slice. Let us recall however that the repurchase, in the absence of statutory clauses or of stipulations in the contract of emission, could not be imposed on the carriers of actions preferably without the approval of their special assembly. It can however be of it differently in the companies with dimensions.

(ii) The repurchase « forced » in the companies with dimensions

329. - In addition to the faculty of repurchase offered by the article L. 228-12 of the Commercial law and whose characteristics were evoked in the preceding developments, another mode of repurchase was envisaged by the writers of the ordinance of 24 June 2004, but specifically applicable to the companies whose actions preferably are registered with the negotiations on a regulated market.

The article L. 228-20 of the Commercial law lays out indeed that « when the actions preferably are registered with the negotiations on a regulated market, they can be repurchased or refunded, on the initiative of the company or the carrier, if the market is not liquid, under the conditions envisaged by the statutes ».

330. - There would be thus a new type of withdrawal for the carrier and a new type of repurchase for the company. From the start, a observation is essential : the text creates a new case of forced withdrawal ; withdrawal forced for the whole of the shareholders preferably if the company decides to implement it, withdrawal forced for the only company and limited to the petitioning shareholder- except contrary forecast of the statutes- when the initiative is taken by a shareholder preferably.

331. - The article L. 228-20 of the Commercial law enables with the statutes faculty to foresee the repurchase of the titles on the initiative of the company of the carrier. A condition however is fixed at such a repurchase : it is necessary that the market is not liquid. The criteria of appreciation of the absence of liquidity are specified in the report/ratio presented by the board of directors or the directory at the assembly general and carried in the statutes^620(*), and the auditor delivers his opinion on the matter^621(*).

332. - The objective is thus to protect the company counters erratic evolutions of the course because of the narrowness of the market and to protect the carrier which is likely to be unable to yield its actions, for lack of counterparts. The report of the absence of liquidity will undoubtedly call the intervention of the Authority of the financial markets, unless the statutes do not define the criteria of them^622(*).

333. - There exists, for the companies not - dimensioned, no provision of comparable nature that that of the article L. 228-20 of the Commercial law. One could see^623(*) that the company could « to offer » the repurchase with the shareholders preferably or to impose it, to suppose that its principle and its methods were defined in the statutes since the issue of the shares preferably^624(*). But one can wonder whether it would be possible to envisage, in the dimensioned companies, to some extent like the dimensioned companies, a faculty of repurchase to the liking of the carrier, and either of the transmitting company.

(iii) The repurchase with the liking of the carrier in the companies not - dimensioned

334. - If the transmitting company can reserve the possibility of proceeding to the repurchase of the actions preferably and of imposing it on the carriers, under the reserve that they accepted it, such stipulations can not satisfy all the investors. The imposed repurchase leaves the hand to the company indeed ; however, of the investors can prefer to him the voluntary repurchase, i.e. left with the liking of the carrier. This faculty is offered under certain conditions, in the dimensioned companies, by the article L. 228-20 of the Commercial law^625(*) ; one can wonder whether it is as much in the companies not - dimensioned.

335. - There is not any provision of comparable nature but the article L. 228-20 of the Commercial law for the companies not - dimensioned. However, their characteristics do not support the voluntary withdrawal clauses, since they are equipped with fixed assets.

336. - Thus, the principle of the intangibility of the capital characterizes the limited company^626(*).

To give to a shareholder, was he owner of actions preferably, the right to withdraw itself with its liking of the company, it is him to make it possible to cause an inescapable reduction of capital and thus to apply a clean clause in theory to the only companies with variable capital. However, the nonco-operative limited companies are not authorized any more, since the law of December 30, 1981^627(*), to adopt this characteristic^628(*).

Consequently, on this base, any clause would be criticizable which causes to preferably allow the direct withdrawal of a carrier of actions its initiative without the intervention of the extraordinary general assembly, since the titles will be repurchased by the company itself^629(*).

This reserve is not worth naturally if the repurchase envisaged is put at the load of other people. Such a solution, already practiced for a long time, does not have however the same effectiveness as the pure and simple disappearance of the actions preferably.

337. - The limited partnership with share capitals on the other hand is authorized to stipulate the variability of its capital^630(*). When a SCA adopts such a mode, the capital is not thus intangible any more by definition.

However, variability in general causes to cause fears with the eyes of the thirds. It is, moreover, probable that the company will not function in accordance with the rules which characterize the companies with variable capital with evolutions of the effective capital as well to the rise as with the fall ; if not, the faculty given to any associate to withdraw risk to weaken the company singularly.

On another side, it will be difficult to make admit by the associates whom management can increase the capital without the intervention of the associates. However, the doctrines estimate that a company could not be regarded as company with variable capital if its rules of operation are not in conformity with the legal definition^631(*).

338. - Following the example SCA, SAS can adopt the mode of the company with variable capital. Consequently, the observations emitted in connection with the first apply to the second.

Moreover, independently of this possible option to the mode of the company with variable capital, the provisions specific to SAS call some remarks. The article L. 227-18 of the Commercial law indeed contains an original rule by dissociating the possible purchase by the company of its own actions and the consecutive reduction of capital, intended them to cancel, this one intervening only if the acquired actions were not yielded within 6 month^632(*).

This text does not have however a general range, and appears inapplicable in the situation considered^633(*). The second subparagraph of the article L. 227-18, relating to the repurchase, indeed seems to supplement the first subparagraph, which aims exclusively certain operations^634(*). It would be thus be likely to want to make this text applicable to the assumption where a holder of actions preferably request the repurchase of its titles at the company, with its liking.

339. - In spite of these critical observations, the general rule specific to the actions preferably- according to which the methods of repurchase can be laid down in the statutes^635(*) - lets think that the legislator did not exclude faculty to stipulate the repurchase with the liking of the carriers, even within the companies not - dimensioned^636(*). This opinion is corroborated besides by the provisions of article 206-5 of the decree of March 23, 1967^637(*) : if only the shareholders were qualified to make the decision of repurchase, the regulation would not take place to be.

In the state of the right, the stipulation of a clause of repurchase to the liking of the carriers thus appears allowed, but it is not to exclude that it can be discussed on the base of the intangibility of the capital.

340. - If the withdrawal clause is admitted, it is then necessary to wonder about the procedure to apply.

Initially, it is registered in the statutes by decision of the extraordinary general assembly on report/ratio of the board of directors or the directory^638(*). If its adoption is decided, like generally as of the issue of the shares preferably, it is not necessary to join together the special assembly of the carriers^639(*).

The procedure is then less clear. When a carrier asks for the repurchase of its titles, it appears necessary that the board of directors or the directory meets then to note the request, to decide the repurchase^640(*) and to draw up the report/ratio envisaged in the species^641(*) ; on his side, the auditor draws up the report/ratio concerned article 206-4 of the decree of March 23, 1967, to be put with the first report/ratio at the disposal of the shareholders according to statutory forecasts'. The decision of the body of direction is then deposited at the clerk's office to make run the time of opposition open to the creditors.

The repurchase is carried out and, in any assumption, in accordance with the common right, the shareholder is paid at the end of the time of opposition only. This procedure will be to renew, if necessary, each time a carrier appears.

341. - Conclusion. The creation of the actions preferably, innovation awaited by much, could not have been conceived without being accompanied by protective provisions of the shareholders- who they are the ordinary shareholders of the transmitting company or the future shareholders preferably-, so much this instrument of financing is likely to involve important upheavals on the rights of the shareholders. In the same spirit, it had not been conceivable not to be concerned with fate, in the long term, actions preferably ; also, the writers of the ordinance of June 24 2004 rightly framed the mode of the creation and the disappearance of the actions preferably, while arranging inter alia the information of the shareholders on the matter. Nevertheless, like the developments devoted to the contents of the actions preferably^642(*), force is to note that the courts will have to come to a conclusion about a certain number of questions which, in practice, will not fail to raise certain difficulties.

The birth and death are not however the only moments of the existence ; the actions preferably do not escape this obviousness. During their life, certain social operations are suitable for affect the actions preferably, which consequently brings to wonder about the protection of their holders at the time of such events. They are the same besides being oneself certain provisions of the right of the new issues of capital, which have consequences on the rights of the shareholders in the course of social life.

B. The protection of the shareholders at the time of certain operations

342. - As of its birth and until its death, natural or not, the life of a company is strewn with various events, the ones of minor importance, the others more significant. The company is connected consequently in a city, in which the citizens- the shareholders- are equipped with certain governmental and financial prerogatives. If the construction of the city constitutes a date outstanding with the eyes of those which built it, of many other episodes will mark its history, the such enlarging of the city with the arrival of new citizens, the departure of some, even the bringing together with another city.

343. - Certain events intervening during the social life will have necessarily consequences on the rights of the citizen-shareholders. Consequences which will not be always positive. Consequently, it is advisable to be concerned with situation of the shareholders and, therefore, protection of their rights.

344. - In addition to they intended to set up certain protective measurements of the shareholders during the creation and of the disappearance of the actions preferably, the writers of the ordinance of June 24 2004 also founded certain protective provisions of the shareholders preferably at the time of certain operations suitable for affect their rights. There one sees still the necessary counterpart there to the freedom granted by the new mode set up.

345. - The second aspect of the reform- the easing of the right of the new issues of capital- carries the same observations. In particular the widening of the delegations to the bodies of direction as regards new issue of capital, if it brings flexibility and reactivity increased to the transmitters, could not have been conceived without a certain protective device of the rights of the shareholders. The abandonment, by the extraordinary general assembly of the shareholders, some of its prerogatives to the profit of the bodies of direction is certainly a voluntary act ; the shareholders organize themselves the adjustment of their rights in the direction of the restriction. But that does not want to say in so far as any preoccupation with a protection is then isolated for the continuation.

346. - Also, the protection of the shareholders at the time of certain operations, in the course of social life, brings to preferably consider the protective device set up with regard to the shareholders (1), like as regards new issues of capital (2).

1. Protective measurements of the carriers of actions preferably

347. - After having emitted actions preferably, the transmitting company supports certain constraints from which the finality is to protect the carriers of the aforesaid actions.

The protection of the shareholders preferably is duplicated in a specific right of information (b) and specific provisions at the time of certain particular operations (A).

a) The protection of the shareholders preferably at the time of specific operations

348. - Within SA and SCA, the carriers of actions preferably profit from the unchanged general rules which govern the special assemblies titular shareholders of titles of capital of a given category^643(*).

349. - This protection, whose object is the maintenance of the particular rights whose actions preferably are matched, is ensured by the article L. 225-99, subparagraph 2 of the Commercial law, under the terms of which « the decision of a general assembly to modify the rights relating to a class of shares is final only after approval by the special assembly of the shareholders of this category ». In other words, the general assembly of the transmitter could not modify the rights relating to a class of shares without the approval of the special assembly of the shareholders of this category.

350. - In practice, this rule invites to be attentive with the consequences of any operation of statutory nature or not which could cause to modify their rights.

However, only the legal modifications call a decision of the special assembly^644(*), the such suppression of one of the particular rights attached to the action preferably. On the other hand, is not subjected to the approval of the special assembly a change of the strategy of the company likely to affect the results. Between those two poles, there is a zone « gray », thus of a decision of management aiming at more not privileging the development of a branch of activity whose results preferably constitute the plate of the financial rights of the shareholders.

It will be thus advisable to specify in the statutes, as clearly as possible, the incidence of the social decisions, if one wants to make the saving in useless baffles.

351. - Within SAS, the situation is less clear. Certain commentators^645(*) estimate that the general rules of the article L. 225-99 of the Commercial law are excluded from the mode of SAS, pursuant to the article L. 227-1 of the same Code. It thus rests with the statutes to establish special assemblies equipped with the same competence as that allotted to the special assemblies of SA and SCA, if the carriers pareillement intend to be protected.

We are not convinced by this approach. At least, we estimate that the creation of a special assembly of the carriers of actions preferably is not a faculty for the company, but an obligation ; this opinion is corroborated besides by the article L. 228-19 of the Commercial law instituting a right of information to the profit of the shareholders preferably, which starts thus : « carriers of actions preferably, made up in special assembly, [...] ». In the spirit of the writers of the ordinance of June 24, 2004, the protection of the holders of actions preferably is a need and it passes inter alia, seems to us it, by the meeting of these carriers within a special assembly whose finality is the defense of their rights. Moreover, the article L. 228-17 of the Commercial law specifies that in the event of fusion or of scission of the transmitter, « in the absence of exchange counters actions conferring of the equivalent particular rights, fusion or the scission is subjected to the approval of the special assembly envisaged with the article L. 225-99 ». This text would be in any assumption applicable to SAS, just like are it, by exception, the texts relating to the voting rights when SAS creates actions preferably^646(*).

Far from repealing the article L. 225-99 of the Commercial law relating to the actions of categories, the ordinance of 24 June 2004 made there, on the contrary, expressly reference. The doctrines^647(*) agree moreover to consider that the action preferably is a class of shares, and that it profits, so of the mode of protection which is attached to him, and this whatever the shape of joint stock company- SA, SCA or SAS- in which it is emitted.

352. - The ordinance also institutes particular rules of protection in the event of damping or modification of the capital of the transmitter (I) and in the event of fusion or scission causing the winding-up of the transmitting company (II).

(i) Fate of the actions preferably in the event of damping or modification of the capital

353. - The Commercial law envisages specific provisions in the event of damping or of modification of the capital of the transmitter, i.e. any operation which assigns to the rise or the fall the authorized capital.

It is thus, for example, of the new issues of capital whatever is the cause : cash subscription, in kind or resulting from a fusion, conversion of titles of capital into other titles of capital, emission of option of subscription, attribution of bonus shares to emit, etc ; and of the reductions of capital whatever is the cause : withdrawal of the associates, reduction due to losses, conversion, etc

354. - The article L. 228-16 of the Commercial law lays out whereas, in these cases there, « the extraordinary general assembly preferably determines the incidences of these operations on the rights of the carriers of actions » and specifies that « these incidences can also be noted in the statutes ».

355. - These provisions miss clearness, their formulation being ambiguous. Several questions arise.

Initially, one can wonder why the legislator was not satisfied to make to reference to the general rules applicable to the special assemblies shareholders, i.e. in particular the article L. 225-99 of the Commercial law. Some^648(*) see the permission express given there to stipulate the incidences of the operations aimed in the statutes, which causes in theory to avoid the meeting of a special assembly ; if such is the advantage conceded by the writers of the ordinance, it would have then direction only to affirm that such operation is without impact on the the law of the carriers of actions preferably since, if such is the case, the special assembly is not obligatory in theory^649(*).

Another question emerges then from the start : the formulation of the article L. 228-16 wants it to say that the assembly or the statutes can operate this determination of the incidences with complete freedom and stipulate, for example, that damping is without incidence. The reading of the text authorizes this conclusion^650(*).

« determination of the incidences of the operations » many questions raise thus : it is about a report^651(*) ? It contrary to requiring acts transmitter which it takes necessary measurements suitable to preferably protect the interests from the holders of actions^652(*) ? The ordinance did not pose here a principle of safeguard or of maintenance of the rights as as regards fusion^653(*), it only prescribes to envisage adapted provisions, which can be read like a simply formal requirement.

356. - In the second place, it is curious that the article L. 228-16 aims only damping- exceptional operation- the modification of the capital. A contribution partial of credit authorized by the transmitting company, for example, can also preferably have a disastrous effect for the carrier advantages of of actions.

An answer could be that, undoubtedly, the general provisions relating to the special assemblies shareholders fill the gap in such a case.

357. - Within sight of the uncertainties raised by the article L. 228-16 of the Commercial law, it is to be provided that ministerial precise details or jurisprudential decisions will come to supplement the work of legal interpretation of the text. In waiting, some recommendations can however be given.

The contract of issue of the shares preferably can be restricted to point out the legal rule of the article L. 228-16, except with being able there to affirm with certainty, according to characteristics' of the actions preferably emitted, that certain operations will be without incidences on their particular rights, a such new issue of capital by incorporation of reserves or a reduction of capital for damping of losses.

Being the operations whose incidences will not have been noted in the statutes, the transmitters then will have to proceed with prudence. That is to say the operations will be without impact on the the law particular of the actions preferably ; in this case, the general assembly will take of it note and it would be advised to join together a special assembly of the carriers of actions preferably to make the same report^654(*). Either they will preferably have an incidence more or less proven on the particular rights of the shareholders ; in this case, the transmitting company will be forced to discuss with the special assembly the carriers to arrive to a solution which satisfies the latter and leads it to approve the operation in question. In certain circumstances, the protection of the shareholders preferably will be moulted in a considerable constraint for the transmitting company ; but there is nothing which one can be shocked.

(ii) Fate of the actions preferably in the event of fusion or scission

358. - The Commercial law also leans on fusion and the scission under the terms of which the transmitter of actions preferably transmits its inheritance to one or more other companies.

In fact, the article L. 228-17 of the Commercial law provides that in such occurrences « the actions preferably can be exchanged against actions of the profit companies of the transfer of inheritance comprising of the equivalent particular rights, or according to a specific parity of exchange taking account of the abandoned particular rights », and specifies that « in the absence of exchange counters actions conferring of the equivalent particular rights, fusion or the scission is subjected to the approval of the special assembly envisaged with the article L. 225-99 ».

Two assumptions are thus to distinguish.

359. - That is to say the actions preferably are exchanged against titles profiting from equivalent rights. In this case, it is not obligatory to join together the special assembly of the carriers to approve fusion or the scission.

This rule must be included/understood like an exemption from the general provision appearing in the mode of fusions or scissions of limited companies which requires the ratification of the operation by the special assemblies of the stockholders of capital of a given category^655(*).

360. - That is to say the actions preferably are exchanged against titles of capital not comprising equivalent rights. In this case, a parity of exchange taking account of the abandoned particular rights must be established, and it is necessary to submit the project of fusion or scission to the special assembly of the holders of actions preferably, for approval.

361. - The device thus appears simple. It would be it, if were not the difficulty in appreciating what it is advisable to understand exactly by « equivalent particular rights » within the meaning of the new text. The question is important since it is a question of knowing in which cases exactly the transmitter can preferably not consult its special assembly of the holders of actions.

Questioned on the question, the Minister for Justice, let know that the formula of the article L. 228-17 of the Commercial law allowed, according to him, « the exchange of actions preferably giving right, for example, with a preferential attribution of dividend or the designation of a member of the board of trustees preferably counters other actions giving right to preferential attribution of a dividend or designation of a member of the board of trustees, by taking account possibly of a parity of exchange according to the reduction of right agreed. On the other hand, if there does not exist in the new company of actions preferably having equivalent particular rights, the parity of exchange will have to take account of the abandonment »^656(*).

362. - Thus, according to the example chosen, it would be the identity of the particular rights which are attached to the actions preferably- still that the answer suggests that it could be necessary to calculate, even on this assumption, a particular parity- which would be the criterion, and not really the equivalence which however the article L evokes. 228-17.

The criterion would be undoubtedly more reliable, although the identical rights can not have the same value perfectly according to whether one exerts them in a surviving company (with strong profitability for example) or that one has to exert them in the surviving company (which can heavily be involved in debt).

By prudence, it would have to be required that not only the particular rights be of comparable nature, but that they also have the same value exactly because, finally, it is the double question of the maintenance of the rights, initially, then of the parity, « particular » or not, then, which justifies that one consults- or not- the special assembly of the holders of actions preferably^657(*).

363. - Consequently, it is not certain that the ministerial answer given usefully informs the debate on the direction which it is advisable to give to the new article L. 228-17 of the Commercial law. One can think besides that this article complicates the things insofar as the article L. 236-9 of the same Code, suitable for fusion, is not embarrassed, him, of these subtle distinctions when it orders to submit the project of fusion « in each the companies which take part in the operation, with the ratification of the special assemblies shareholders mentioned with the articles L. 225-99 and L. 228-15 ».

The practice will thus may find it beneficial undoubtedly to continue to preferably consult the general assembly of the holders of actions in all the cases of figure^658(*).

364. - It should be noted that nothing is known as mission of the police chiefs to fusion in the presence of actions preferably. Since they have in particular the obligation to check «that the report/ratio of exchange is equitable »^659(*), it would not be logical that they can ignore this question of equivalence of the rights^660(*).

The occupation of auditor is requested besides with another title, that of the information of the shareholders preferably.

b) Right of information of the shareholders preferably

365. - Under article L. 228-19 of the Commercial law, « the carriers of actions preferably, made up in special assembly, have faculty to give mission to the one of the auditors of the company of preferably drawing up a special report/ratio on the respect by the company of the particular rights attached to the actions. This report/ratio is distributed with these carriers at the time of a special assembly ».

It is not a question here of a particular right^661(*). This text preferably confers on the carriers actions made up in special assembly a true right of permanent audit of the transmitting company as for the respect by this one of the particular prerogatives attached to the actions preferably.

366. - The special report/ratio of the auditor preferably includes/understands his opinion on the respect by the company of the particular rights attached to the actions and indicates, if necessary, the date from which these rights were ignored^662(*).

Expenses relating to the establishment of the report/ratio its to the load of the company^663(*).

367. - The preoccupation with a protection of the carriers which expresses the article L. 228-19 of the Commercial law is undoubtedly creditable. However, by granting such a prerogative the shareholders preferably, the writers of the ordinance do not have any, seems it, not considered all the consequences. Its implementation is indeed likely to cause the controversy.

First of all, nothing is known as periodicity of this measurement, which can thus authorize the special assembly with periodically launching such a mission of investigation, except for the company calling upon the abuse right, in the line of recent jurisprudence on the written questions of the shareholders^664(*), and to solicit of the judge that it is made defense with the auditor submit with the injunction of the special assembly of the shareholders preferably.

368. - Then, the decision of the special assembly is discrétionnaire ; she does not have to call upon a irregularity or a suspicion of irregularity in the service of the particular rights attached to the actions preferably or an insufficiency in information of the carriers.

This is likely to facilitate possible drifts, particularly when the actions preferably are deprived of voting rights and thus their private carriers of means of expression in assembled general shareholders. Contrary, the auditor, freely selected by the assembly in the event of plurality of police chiefs, does not see himself recognizing any freedom of appreciation and, except engaging his responsibility, under no circumstances would it decline the invitation of the special assembly.

369. - Another possible source of discord is the very broad definition that the article L. 228-19 of the Commercial law gives mission : « to preferably draw up a special report/ratio on the respect by the company of the particular rights attached to the actions ».

However, in the case of complex financial rights, indexed on the result of branches of activity or other financial parameters, that can require thorough investigations being able to extend to the decisions from management having been able to affect this result or these parameters.

370. - Another silence covers the duration of the mission.

The good direction led to spare with the auditor a reasonable time for the execution of the mission, it « reasonable » depend on the nature and the difficulties of the requested investigation.

371. - Lastly, the text takes care not to envisage the possible continuations of the report/ratio, beyond of a diffusion in special assembly, which consequently obliges to join together a new assembly so as to make it possible to the shareholders preferably to discuss the contents of the report/ratio and to stop the initiatives taking. Among these initiatives, one can imagine an action of responsibility against the company, committed not by the special assembly^665(*) but by the shareholders preferably acting individually or while grouping, according to methods' envisaged by article 199 of the decree of March 23, 1967.

372. - The future will say if the measurement envisaged by the article L. 228-19 of the Commercial law does not have more disadvantages than advantages. The preoccupation with a protection of the carriers of actions preferably is, more than one honourable concern, a need. However, it is necessary to take guard with the excess of protection or the badly adapted protection, which is likely to prove, in certain cases, vermin. The same remark is true for the protection of the shareholders relative to the new issues of capital.

2. Protective measurements of the shareholders relative to the new issues of capital

373. - The ordinance of June 24, 2004 considerably widened and softened the mode of the delegations granted the bodies of direction as regards new issues of capital. The posted objective was to give to the companies the means of a larger reactivity, in an increasingly competing market.

374. - Let us recall that the body of direction of SA, a SCA or SAS can from now on be seen delegating, in addition to the realization of the new issue of capital decided by the extraordinary general assembly of the shareholders, competence to decide principle even of such an increase^666(*).

The general assembly controls certainly the freedom which it grants the body of direction and remains main delegations that it authorizes. But that could not be enough to constitute the protection of the rights of the shareholders in this matter.

375. - A many situations require a detailed attention indeed. The delegations, in particular the delegation of power, are not without limits. In addition to the limits which itself can fix the extraordinary general assembly and already evoked^667(*), it is general- or specific measures- specifically founded for purposes to protect the shareholders (A) ; they supplement the mode of nullities (c), which sanction the violation of certain provisions, and the information of the shareholders (b), always in a preoccupation with a protection of the shareholders.

a) Limits with the delegations of powers and competence

376. - At the sides of the general limits (I), one finds limits related with the fixing of the price of the new issue of capital (II).

(i) Limits of a general nature

377. - Certain delegations and decisions must always be the subject of particular resolutions^668(*) : issues of titles with suppression of the preferential duty of subscription, that it is or not with the profit of a person called or with the profit of a category of people or, finally, with the profit of the adherent employees in the plan of saving of the company^669(*) ; the authorization of granting of options of subscription or purchase of actions with the employees^670(*) ; issues of shares preferably^671(*).

This means that the delegation of power that will have possibly granted the extraordinary general assembly the body of direction will not include the above-mentioned decisions. If the assembly wishes to delegate to the body direction her competence to decide these operations, each one of them must be the subject of a particular resolution^672(*).

Certain experts would have wished to see disappearing- or all at least reduced- the requirement from particular resolutions. However, they are there operations important, suitable for affect the rights of the shareholders in a considerable measurement. As, it is justified as the writers of the ordinance of June 24 2004 preserved this requirement, whose finality is the protection of the shareholders.

378. - The suppression of the preferential duty of subscription is a decision which arises exclusively at the extraordinary general assembly, and which cannot thus be deputy^673(*). It is the same for the granting for a priority period for subscription for the shareholders^674(*). This is easily justified by the fact that the suppression of the preferential duty of subscription and the possible granting of a priority period are likely to attack the rights of the shareholders. Consequently, it is comprehensible that the legislator does not call into question their exclusive competence to decide to carry reached- or not- to their own rights on the matter.

In any event, the capacity to decide on a new issue of capital- or to grant a delegation- will always pass through the extraordinary general assembly, this manifestation of sovereignty actionnariale being wanted by the European directives as regards company law.

379. - Another protection measure is the suspension of the delegations of powers and competence in certain circumstances.

The article L. 225-129-3 of the Commercial law lays out like « any delegation of the general assembly is suspended in period of public offer of purchase or exchange on the titles of the company ». The text reserves however an exception, if the delegation « falls under the normal course of the activity of the company and that its implementation is not likely to ruin the offer ».

The principle of the suspension of the delegation in period of offer is thus maintained. Nevertheless, it is not necessary any more to specify in the text of the resolution only the delegation can be used in period of offer ; it will be up to the council to make sure that the conditions necessary to the use of the delegation are well met and to show, if necessary, with the Authority of the financial markets which it is about a common management act.

The text is in conformity with the general Payment of the Authority of the financial markets^675(*), and the Commercial law comes here to be aligned on the regulations of the directive of April 21, 2004 on the public offers of acquisition^676(*). It takes part naturally of the safety device of the shareholders.

380. - Also let us recall that the delegations are limited in time, the delegation of power not being able to exceed twenty-six month^677(*) and that of being able, five years^678(*).

381. - Lastly, some limit hold with the rules surrounding fixing of the issue price.

(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.

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.

c) The mode of nullities

393. - The grounds for revocation in company law were limited a long time. The law of July 24 1966 had limited them in a Draconian way, with n the other hand penal sanctions. Thus, as regards deliberation amending- what is necessary to a new issue of capital-, nullity could only result « of a provision express of this law or those which govern the nullity of the contracts »^705(*).

394. - Under the impulse of the doctrines and practice, laws NRE and of financial safety started a movement of de-penalization. The law of financial safety in particular repealed penal provisions on infringements specific to certain aspects of the voting rights, that n the other hand of a general nullity of any infringement to the provisions on the voting rights. In addition, any infringement with the provisions relating to the sub-section « Increase in the capital » of the Commercial law is sanctioned of nullity, in the exchange of the de-penalization of certain particular infringements.

The counterpart is thus not proportional : penal sanctions aiming certain particular cases, the legislator passes to a nullity striking a generic unit. The risks which result from this are not negligible. The consequences of these nullities are moreover important : problem of restitution of dividends, difficulty to identify actions having to be cancelled because of their fungibility, risks cancellation of chains (cancellation of a new issue of capital whereas the new shareholders voted in following assemblies), etc

395. - The ordinance of June 24, 2004 caused many hopes. It resolutely marries the consequences of the movement of de-penalization of the company law which had been translated, in particular in the law of financial safety of August 1, 2003, by the significant aggravation of the civil sanctions. But in spite of the protests of the doctrines and the transmitters^706(*) and disproportion between the sanction of nullity compared to failures being able to have minor stakes, the ordinance maintains the course and amodie hardly the article L. 225-149-1 of the Commercial law ; and the declarations alleviating of the Report/ratio to the President of the Republic^707(*) do not soften the rigor of the system of sanction maintained by the ordinance.

396. - The article L. 225-149-1 of the Commercial law, which sanctioned of a full nullity the decisions taken in violation of any of the provisions of the Commercial law applicable to the new issues of capital, is replaced by an article the L. 225-149-3, more detailed, from which the consequences are however hardly distant.

The ordinance indeed preserves the general principle of a full nullity of the decisions taken in violation of the provisions of the sub-section of the Commercial law relating to the new issues of capital, but creates, for some specific decisions, of optional nullities and the exceptions to nullity.

397. - Optional nullity exists only in two cases^708(*).

Can be the subject of a cancellation the decisions taken in violation of the rule of suspension of the delegations of new issue of capital in period of public offer of purchase or exchange^709(*). The cancellation object the violation of the rules of publicity can also be preceding the opening by the period of subscription within the framework of the exercise of the preferential duties of subscription, such as note BALO and period 14 days before the period closure of subscription^710(*).

Nullity naturally supposes a decision of the judge who, to decide, will appreciate in particular the consequences of the violations of the legal provisions.

398. - Then, the ordinance envisages three cases making exception to automatic nullity^711(*).

Initially, it is the case of the violation of the obligation to hold an extraordinary general assembly every three years to come to a conclusion about a draft Resolution tending to carry out a new issue of capital in favor of the employees if the latter hold less than 3% of the capital^712(*). Then, it is about the transgression of the obligations of handing-over of a supplementary report in the event of new issue of capital by the board of directors or the directory on delegation of powers or competence of the general assembly^713(*) or on delegation specific for the new issues of capital to free price within the limit of 10% of the capital per annum^714(*). Lastly, it is about the violation of the obligation of handing-over of a supplementary report of the board of directors or directory when he is made use of one delegation at the time of a suppression of the preferential duty of subscription for the profit of people called or categories of identified people^715(*).

For these exceptions, the ordinance expects that the violations can give place to an injunction to make, which thus comes to replace nullity.

399. - The decisions taken in violation of the provisions relating to the new issues of capital other than those quoted above being able to be the subject of an injunction or an optional nullity are null full^716(*). In the same way, are null full^717(*) the contrary decisions with the principle of the preferential duty of subscription of the shareholders at the time of a movable issue of securities giving access to the capital, as well as the contrary decisions with the provisions applicable to this preferential duty of subscription.

400. - Nevertheless, the action for annulment based on the article L. 225-149-3 of the Commercial law from now on is prescribed by three months as from the date of the general assembly according to the decision of new issue of capital^718(*)- instead of three years before the ordinance-, which is an improvement for the experts, certainly thin however.

When they are new issues of capital decided or carried out by the board of directors or the directory during the year, it is advisable to await the behavior of this new general assembly to start to count the three months deadline. When the decision to increase the capital is made by the general assembly itself, without delegation with the board of directors or the directory for its realization, the text invites to count deadline the three months starting from the general assembly according to that having taken the decision and not as from the general assembly having decided the aforementioned new issue of capital.

Thus, the time will vary from one company to another according to the frequency of behavior of the general assemblies, which is a singular way of considering the regulations^719(*).

401. - The legislator seemed to want to ensure a balance between the safety of the shareholders and the correct operation of the companies. But the provisions relating to nullities, by the blind imposition of the sanction, without bringing additional safety for the shareholders, create an important risk on the safety of the financial transactions^720(*). It should be hoped that the suggestions of MEDEF, the AFEP and the ANSA will be heard during the next modification of the Commercial law or forthcoming law carrying DDOEF.

402. - Other remedies for the nullity of the new issues of capital can however be considered.

Three principal remedies already exist : the possibility of regularization of the defects affecting a new issue of capital, inopposability with the thirds in good faith of nullity of the new issue of capital and short regulation of the deliberations.

In the opinion of majority of the commentators, it is regrettable that the new issues of capital can be called into question for reasons other than serious. The safety of the creditors who take into account the own capital stocks, of which the capital forms part, imposes that the new issues of capital cannot be cancelled too easily. The shareholders cannot invest either in a company, to immobilize capital, so that, finally, they are found private, later, of their quality of shareholder, following the cancellation of a new issue of capital. The company cannot either undergo the risk of possible nullities in cascade. Nullity is indeed too often regarded as a «evil necessary», according to the expression of authors of civil law, and it should be strictly limited.

Except returning to a sanction by a fine, penal or commercial, of the author of certain violations of provisions, the field of nullities must be reconsidered. No nullity should result from irregularities carrying damage with nobody. The clerical errors purely, like the calculations of voice without incidence on the result, should not be sanctioned of nullity, not even optional. On the other hand, of automatic nullities should be maintained in the event of violation of an essential right of the shareholder, like his not-convocation at an assembly. For the remainder, optional nullity is enough, leaving to the judge the care to control^721(*).

Moreover, the mode of the nullity of the applications for shares, in particular the regulation, should be equivalent to that of the deliberations relating to the new issue of capital. The unification of mode seems to be essential, the acts in question relating to the same object: new issue of capital. It is artificial to distinguish both, since the subscription takes part directly in the new issue of capital.

The range of the inopposability should finally be extended to the shareholders in good faith, the responsibility allowing, as for it, always to sanction the authors of the various failures.

403. - Conclusion. The adjustment of a new space of freedom to the profit of the transmitters was not done without the maintenance, and even the reinforcement, of the protection of the shareholders. This protection is, of not to doubt, quite real and varied, of aucuns will say complete.

If this protection of the shareholders is necessary for the safeguarding of their rights, it is however under the reserve that it does not become a too heavy constraint for the company and its operation. Perhaps however, we could note that to want too much to protect, the writers of the ordinance of June 24, 2004 did not consider all the consequences of protective measurements which they founded. There some see there the reflection of the hesitations of a legislator divided between the concern of maintaining a protection worthy of this name for the shareholders and the will to take into account the constraints of the market which call with more flexible mechanisms.

If we think that it is creditable to reconcile these two requirements, and that one could not be sacrificed to the profit of the other, a solution would be perhaps to seek a safety device of the shareholders more adapted to economic realities and the new constraints. It is indeed not desirable that a simple material error can involve nullity in cascade of the posterior decisions, not more than it is beneficial, neither for the company, nor for the whole of its shareholders, than some of them disturb operation of it by using their prerogatives with excess^722(*).

GENERAL CONCLUSION

404. - The question of knowing if the ordinance of bearing 24 June 2004 reforms mode of the transferable securities emitted by the commercial companies and extension to overseas of provisions having modified the commercial legislation answers the preoccupation with a simplification of the right to which it owes its existence remains posed.

405. - Undoubtedly, this reform, awaited long date by the experts, marks a return towards contractual and statutory freedom within the company law. The era is with the deregulation, and this last does not escape from it. The legislator separates more and more social model organized by the law of July 24, 1966 and gradually withdraws the lead cover which weighed on the commercial companies, movement already started by preceding reforms in 1985, 1994 and 1999 in particular.

This mobility, whose reform of the financing of the joint stock companies constitutes an angular stone, will make it possible the French companies to improve, on the one hand, their financial competitiveness and their capacity of financing by attracting new investors while being able to answer their waitings, on the other hand, their reactivity while adapting more easily to the surrounding constraints. At the hour of the large European market and universalization, the new financial instrument that are the actions preferably, as well as the easing of the mode of the new issues of capital, take part of the will posted of the ordinance to restore the image of the French money market.

406. - These positive aspects, if they are undeniable, should not however make forget that a certain number of points of the ordinance are obscure and do not have to date, in the absence of jurisprudence, not found yet an answer. There is no doubt that the resolution of the dispute to come will bring some welcome clarifications to the questions about which the commentators do not manage to agree. The advisability will then be given of seeing in which direction the courts will lean, if they will fall under the liberal spirit of the ordinance or if they restrict the room for maneuver offered to the transmitters.

If the commercial Room of the Supreme court of appeal softened some of these positions during these last years^723(*), it is necessary to take care not to forget that it can also show a particular rigor, going sometimes further that the spirit even from the law^724(*). The judges are attached to the protection of the rights of the shareholders, which the ordinance does not neglect ; remain to know which limits will fix.

407. - Other points, seemingly secondary, call some remarks. It is in particular the case of the tax system of the actions preferably. The stakes are effect considerable^725(*) and the answers do not go from oneself, in particular in comparison with the tax of solidarity on fortune^726(*). The legislator and the administrative doctrines will be brought to specify the tax treatment which will be reserved for the financial rights attached to the actions preferably- in particular being dividends and other distributed financial products- and, more generally, to integrate in the tax legislation the existence of this new financial instrument.

408. - Beyond these reflections, it especially remains to be known how the experts will harness themselves with this new building site, because such is well the stake of the reform of June 24, 2004, whose projections can be threatened by the combined pusillanimity of the councils, the transmitters, the doctrines and more still of the authority of markets. We lived a long time in the traditional belief that as regards transferable securities, which was license was strictly confined so that the law and envisaged expressly so that tolerated the administrative authority.

The handing-over at the place of the reasoning and the return to the principle of contractual freedom will require, at least initially, a serious effort of rehabilitation, and one can wonder whether the creativity will prevail on the frilosity. At the hour when some already start to consider next the large building site of the company law- the distinction between a mode of the dimensioned companies, whose social form headlight would be SA, and a mode of the companies not - dimensioned, whose social form headlight would be SAS-, the question remains whole.

BIBLIOGRAPHY

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· MONOD (france) and ARAKELIAN (R.) : « Actions preferably: how to use the procedure of advantages private individuals? », Small Posters 2004, n° 219, p. 8. 

· NEUVILLE (C.) : « The government of company : for what to make ? », Small Posters, March 7, 1997, n° 5.

· PAILLUSSEAU (J.) : « The modernization of the company law commercial », Dalloz, 1996, n° 34 and 35.

· PICHARD (B.) : « Which rights for the actions said preferably ? », Small Posters, 2005, n° 15, p. 7.

· PIETRANCOSTA (A.) : « The protection of the holders of transferable securities giving access to the capital afterwards the ordinance of June 24, 2004 », Dr. companies, 2005, p. 7.

· POITRINAL (F. - D.) : « Preferred stocks : until where can one go ? », Banks & Droit, 1998, n° 57, p. 13.

· SPINOSI (J.) : « Actions with priority dividend without voting rights », Rev. companies, 1979, p. 25.

· SPINOSI (J.) : « General assemblies shareholders in the limited companies, reality or fiction ? », Rodière Studies, 1982, p. 125.

· Sylvestre (S.) : « The regrouping of actions after the ordinance of June 24, 2004 : an occasion missed ? », Bull. Jolly, 2005, p. 7.

· TERNAY (G. OF) : « SAS and actions preferably : modus operandi », JCP E, 2005, 568.

· THOMAS (B.) and EMERIAU (P.) : « The ordinances of March 25 2004 simplify the administration of companies », Option Finances, 2004, n° 780, p. 31.

· TOURRES (P.) : « New issue of capital : the widening of the delegations », in the new right of transferable securities after the reform of June 24, 2004, Droit & Patrimoine, 2004, n° 130.

· VALUET (J. - P.) : « Transferable securities : comment of the decree of February 10, 2005 », Dalloz, 2005, p. 1362.

· VATIER (B.) and BALL (D.) : « Innovations of the law of August 8, 1994 in the company law », Gas. Stake. October 1995, p. 535.

· VENDEUIL (S. OF) : « New economic regulations and improvement of the rights of the shareholders in joint stock companies not - dimensioned », JCP NR, 2002, n° 1029.

· VIANDIER (A.) : « Irreducible voting rights of the usufructuary », RJDA, 2004, p. 859.

· VIANDIER (A.) : « Actions preferably », JCP E, 2004, 1440.

ACTS OF CONFERENCES

· DAIGRE (J. - J.) : The modernization of the company law - First reflections on the Marini Report/ratio, Acts of the conference organized by the national Federation for the right of the company, November 13 1996, Jolly Editions, Practices businesses, under dir it. J. - J. DAIGRE.

· CHABERT (P. there.) : « 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 right financier of the University Paris I, Dalloz, 2004, under dir it. of A. COURET and H. NABASQUE.

ARTICLES OF NEWSPAPERS

· JULIEN (A.-L.) : « The MFA wants to encourage the shareholders to vote », The Barber, February 3, 2005.

· LANGLAIS (J. - P.) and KERVILER (G. OF) : « New actions preferably », Echoes, July 16-17 2004.

REPORTS/RATIOS

· MARINI (pH.) : The modernization of the company law, Report/ratio to the Prime Minister, Documentation Frenchwoman, 1996.

· CNPF : For an in-depth reform of the company law, 1996.

· ANSA, AFEP and MEDEF : For a modern right of the companies, common report/ratio, October 2003.

· MEDEF : Actions preferably : proposals of MEDEF for a modernization of the right of transferable securities, June 2001.

· CNPF : The modernization of the mode of the issues of titles of capital, April 1993.

· Report/ratio with President de République relating to the ordinance n° 2004-604 of the 24 June 2004 bearing reform mode of the transferable securities emitted by the commercial companies and extension to overseas of provisions having modified the commercial legislation, OJ of the 30 July 2004, p. 13577

· CNPF : For a reform of the legal status of the obligations, October 1993.

· TRÉMÈGE (G.) : Commission Report of Finances to the French National Assembly in connection with the reform mode of new issues of capital by the law of August 8, 1994, n° 1349, 1994.

INTERNET SITES:

· HTTP://www.medef.fr: site of MEDEF.

· HTTP://www.ansa.asso.fr: site of the ANSA.

· HTTP://www.legifrance.org: site of the public utility of the access to the right.

· HTTP://www.lexinter.net: site of legal information.

INDEX

(The figures return to the numbers of the paragraphs)

With

______

Action :

- with priority dividend: V. Action with priority dividend without voting rights.

- with voting rights double : V. Voting rights.

- with voting rights multiple : V. Voting rights.

- preferably : V. Action preferably.

- of priority : V. Preferred stock.

- Négociabilité : 103.

- ordinary : 119.

- reflection : 143, 186.

- tracing : 143.

Action with priority dividend without voting rights : 114, 115, 206, 212, 214.

Action preferably :

- Conversion : V. Conversion.

- Creation : 205 and S., 279 and S.

- Disappearance : 298 and S.

- Distribution : 216 and S.

- Particular Rights : V. Right private individuals.

- Exchange : 358 and S.

- Emission : 209 and S.

- Opposability : 129.

- Repurchase : V. Repurchase of actions.

- SAS : 258 and S.

Preferred stock : 114, 115, 126, 299.

General meeting (of the shareholders) :

- Conversion of actions : 280 and S., 308, 318.

- Creation of actions preferably : 222 and S.

- Preferential duty of subscription : 378.

- Repurchase of actions : 322, 323.

- Rules of majority : 164.

- Rules of quorum : 164.

Special Parliament (of the shareholders preferably) :

- Authorization of emission : 286.

- Authorization of conversion of actions : 286, 310, 315.

- Authorization of repurchase of actions : 322, 323.

- Fusion company: 359, 360.

- Modification of the rights of the shareholders : 349, 350.

- Scission company: 359, 360.

Attribution :

- advantages : 123 and S.

- bonus shares : 141.

- preferential in the event of transfer of credit : 144.

New issue of capital :

- Contribution in kind : 96 and S.

- with the wire of water : 85 and S., 385.

- with maintenance of the preferential duty of subscription : 57 and S.

- with suppression of the preferential duty of subscription : 72 and S., 378.

- Anti-dilutive Clause : V. anti-dilutive Clause.

- Conversion of actions : 312, 317.

- of light ferenda : 60.

- Priority period : V. Priority period.

- Delegation with the board of directors or the directory : V. Delegation.

- Delegation of power : V. Delegation.

- Delegation of powers : V. Delegation.

- Duration : 62 and S.

- uninterrupted : 85 and S., 385.

- Equity lines : 86.

- Insufficiency of the subscriptions : 60, 74.

- Lines of action : 86.

- Nullity : 393 and S.

- Option of surallocation : 100 and S.

- Ceiling : 32, 38, 45.

- Minimum price : 81 and S., 91, 92, 93 and S., 382 and S.

- Publicity : 67 and S.

- Rule of « ten among the twenties » : 81 and S., 384

- reserved for people called : 93 and S.

- reserved to the employees : 107 and S.

- Particular Resolutions : 40 and S., 377.

- Subscription on a purely reducible or irreducible basis : 60.

- Subdelegation : V. Subdelegation.

- Sursouscription : 60, 74.

Particular advantages :

- of a commercial nature : 171.

- in a third company : V. Company third.

- Procedure of checking of the particular advantages : 225 and S., 289 and S.

B

______

Profit of liquidation : 137, 138, 196.

C

______

Capital :

- Damping : 139, 353 and S.

- Increase : V. New issue of capital.

- Intangibility : 336.

- Modification : 353 and S.

- Reduction : V. Reduction of capital.

- variable : 336.

Certificate of investment : 114, 115, 214, 217.

Certificate of voting rights : 114, 115, 158, 199.

Transfer of credit : 143, 144.

Clause :

- anti-dilutive : 141.

- of approval : 10, 176.

- of sliding scale : V. Escalator clause.

- of inalienability : 176, 245.

- of indexing : 246.

- of fixed interest : 254.

- of pre-emption : 173, 176.

- of quality : 179.

- of training course : 151.

- leonine : 140, 158, 253, 285, 327.

- ratchet : 142.

Conversion :

- with the liking of the carrier : 316.

- actions preferably in actions preferably of another category : 213.

- actions preferably in ordinary actions : 145, 302 and S.

- ordinary actions in actions preferably : 211 and S.

- titles in process of extinction : 214.

- Voting rights of the recipients : 294.

- in actions of a third company : 198.

- Methods : 304, 305, 307.

Corporate governance : V. Government of company.

D

______

Priority period : 76 and S., 378.

Delegation : 21 and S.

- former : 48.

- Conversion of actions : 308, 313.

- Office plurality : 24 and S.

- of competence : 37 and S.

- of being able : 30 and S.

- Duration : 35, 38, 43, 380.

- Issue of shares preferably : 224.

- Limits : 376 and S., 382.

- news : 47.

- Repurchase of actions : 322.

- Subdelegation : V. Subdelegation.

- Suspension : 379.

Dividend :

- Action with priority dividend : V. Action with priority dividend without voting rights.

- Preferred stock : V. Preferred stock.

- Exceptional Distribution : 144.

- Distribution in the form of actions preferably : 216 and S.

- Dividend accesses : 195.

- préciputaire : 135.

- priority : 134.

- Third Company : 195.

Preferential duty of subscription :

- Renunciation : 59, 318.

- Suppression : 73, 177, 378.

Rights (of the shareholders) :

- Equality of the shareholders : 3, 140, 144, 272, 290.

- fundamental : 3.

- private individuals : V. Right private individuals.

Particular rights (actions preferably) :

- Office plurality : 187.

- in a third company : V. Company third.

- of vote : V. Voting rights.

- Evaluation : 293.

- financial : 133 and S.

- Nature : 123 and S.

- policies : V. Right policies.

Political rights : 160 and S.

- in a third company : V. Company third.

- Right of information : V. Right of information.

- Right of control in a third company : 202.

- Right of control : 170.

- Right of representation : 172.

- Right of veto : V. Right of veto.

- fundamental : V. Right (of the shareholders).

Right of information :

- in a third company : 203.

- shareholders preferably : 365 and S.

- reinforced : 169.

Right of veto : 161 and S.

- with the monitoring or board of directors : 165 and S.

- at the general assemblies : 163, 164.

- in a third company : 190, 201.

- limited : 168.

- permanent : 167.

- SAS : 162, 263.

Voting rights : 147 and S.

- Action with priority dividend without voting rights : V. Action with priority dividend without voting rights.

- Installation : 154 and S.

- Certificate of voting rights : V. Certificate of voting rights.

- Clause of training course : V. Clause of training course.

- recipients of conversion of actions : 294.

- double : 154, 155.

- limited : 157.

- Limits with the adjustment of the voting rights : 154.

- Limits with the suppression of the voting rights : 152.

- multiple : 155, 262.

- Legal Ceiling : 152, 153.

- Statutory Ceiling : 156.

- Proportionality : 152, 154, 256.

- SAS : 154, 262.

- Suppression : 149, 150.

- Suspension : 151.

G

______

Government of company : 5, 6.

Group companies : V. Company third.

I

______

Social interest : 168, 191.

O

______

Law and order : 130, 243 and S.

- Autonomy of the social bodies : 191, 249.

- Fixed Clause of interest : V. fixed Clause of interest.

- company law : 252 and S.

- General : 245 and S.

- Leonine Pacts : V. leonine Clause.

- Potestativité : 247.

Particular obligations : 175 and S.

- of a financial nature : 178.

Opposition (right of) : 305, 324.

P

______

Social losses :

- Contribution to the losses : 140.

- Exemption : 140.

- Reduction of capital moved by losses : 140.

Protection (of the shareholders preferably) : 275 and S.

- Creation of actions preferably : 286.

- in the event of fusion of the company : 358 and S.

- in the event of modification of the capital : 353 and S.

- in the event of scission of the company : 358 and S.

- SAS : 351.

R

______

Repurchase of actions : 320 and S.

- with the liking of the carrier : 334 and S.

- of a third company : 198.

- forced : 324, 329 and S.

- Methods : 326.

- Price of repurchase : 327.

- SAS : 338.

- SCA : 337.

Auditors' certificate :

- Conversion of actions : 311, 314.

- Delegations with the bodies of direction : 390.

- Issue of shares preferably : 282.

- Mission given by the shareholders preferably : 365 and S.

- Repurchase of actions : 325.

- Suppression of the preferential duty of subscription : 390.

Report/ratio of the board of directors or the directory :

- Conversion of actions : 311, 314.

- Delegations : 388, 389.

- Issue of shares preferably : 282.

- Repurchase of actions : 325.

Reduction of capital :

- Conversion of actions : 305.

- moved by losses : 140, 144.

- Repurchase of actions : 324.

S

______

Third company :

- Actions preferably (creation) : 234 and S., 284.

- Control : 192, 235.

- Voting rights : 189, 199 and S.

- Financial Rights : 195 and S.

- Particular Rights : 194 and S.

- Political Rights : 201 and S.

- Procedure of checking of the particular advantages : 238.

- SAS : 200, 201.

Subdelegation : 50 and S., 389.

Statutes :

- Actions preferably : 129, 280.

- Conversion of actions : 307 and S.

- Repurchase of actions : 321, 323, 340.

Stock-option : 283.

U

______

Usufruct :

- Voting rights :

CONTENTS

INTRODUCTION ................................................................................................................................ 8

FIRST PART a NEW SPACE OF FREEDOM CONTRACTUAL: A PRIMARILY ECONOMIC INSTALLATION A FINALITY 20

A. The simplification of the mode of the new issues of capital 20

1. The widening of the delegations 22

has) End of the exclusive competence of the extraordinary general assembly 22

b) Methods of the widening of the delegations 24

(I) The delegation of powers 25

(II) The delegation of power 28

(1) The requirement of particular resolutions 28

(2) Office plurality of the delegations 30

(3) The subdelegation with the social leaders 32

2. Measurements of easing of the mode of the new issues of capital 33

has) New issues of capital with preferential duty of subscription 34

(I) Rules applicable to the preferential duty of subscription 34

(II) Duration of the period of subscription 35

(III) Formalities of publicity 37

b) New issues of capital without preferential duty of subscription 38

(I) The legalization of the priority period 40

(II) Rules of fixing of the price 41

(1) Suppression of the rule of « ten among the twenties » 41

(2) Technique of the new issue of capital « with the wire of water » 43

(3) Suppression of the reference to the stockholders' equity and the expertise 45

(4) The fixing of the price of the new issues of capital reserved for people called or with categories of identified people 45

(III) The flexibility of remuneration of the contributions of titles 46

c) Measurements facilitating the introductions out of purse 47

(I) Practice of the options of surallocation 47

(II) Negociability of the promises of actions 49

(III) The fixing of the rules of price of the new issues of capital reserved for paid. 49

B. The issue of the shares preferably 51

1. Contents of the actions preferably 53

has) Principles applicable to the actions preferably 53

(I) The nature of « rights » attached to the actions preferably 54

(II) Requirements of form and basic attached to the actions preferably 57

b) The inventory of the particular rights attached to the actions preferably 58

(I) Particular rights of a financial nature 58

(1) Known rights 58

(2) Rights « new » 59

(II) Particular rights as regards voting rights 62

(1) The deprivation and the suspension of the voting rights 63

(2) The exercise and adjustments of the voting rights 65

(III) Particular rights of a political nature 68

(1) Right of veto 68

(2) Other political rights 70

(iv) Particular obligations 71

c) The particular case of the groups of companies 73

(I) Principles applicable to the exercise of particular rights in a company third. 73

(II) Particular rights being able to be exerted in a third company 76

(1) Particular rights of a financial nature 76

(2) Particular rights as regards voting rights 77

(3) Rights of a political nature 77

2. The creation of the actions preferably 78

has) Ways allowing the creation of actions preferably 79

(I) The emission 79

(II) Conversion 79

(III) Distribution of dividend in the form of titles of capital 80

b) General rules applicable to the creation of actions preferably 81

(I) The competence of the extraordinary general assembly 82

(II) Procedure of checking of the particular advantages 82

(III) The protection of certain stockholders of credit or titles of capital 84

(iv) The emission within the framework of a group of companies 84

3. Limits with contractual freedom 86

has) Limits holding with the law and order 87

(I) The general law and order 87

(II) The protective law and order of the thirds 88

(III) The law and order of the company law 89

b) Limits holding the interest of the recourse to the actions preferably in one SAS ............................................................................................................ 90

(I) Interest of the issue of shares preferably by SAS 91

(II) Obligation of the issue of shares preferably by SAS in some situations 92

SECOND PART PROTECTION OF the SHAREHOLDERS : NECESSARY COUNTERPART OF FREEDOM OCTROYEE 96

A. The protection of the shareholders at the time of creation and disappearance of actions preferably 96

1. Protective measurements at the time of the creation of actions of preference 97

has) Protective measurements of a general nature 97

b) Procedure of the particular advantages 100

2. Protective measurements at the time of the disappearance of actions preferably 103

has) The conversion of the actions preferably 105

(I) Conversion in the presence of methods laid down in the statutes 106

(II) Conversion in the absence of methods laid down in the statutes 108

b) The repurchase of the actions preferably 109

(I) General rules applicable to the repurchase of actions preferably 109

(II) The repurchase « forced » in the companies with dimensions 113

(III) The repurchase with the liking of the carrier in the companies not - dimensioned 114

B. The protection of the shareholders at the time of some operations 117

1. Protective measurements of the carriers of actions preferably 117

has) The protection of the shareholders preferably at the time of operations specific 118

(I) Fate of the actions preferably in the event of damping or modification of capital 119

(II) Fate of the actions preferably in the event of fusion or scission 121

b) Right of information of the shareholders preferably 122

2. Protective measurements of the shareholders relative with new issues of capital 124

has) Limits with the delegations of powers and competence 125

(I) Limits of a general nature 125

(II) Limits related with the fixing of the issue price 126

b) The information of the shareholders 127

c) The mode of nullities 130

GENERAL CONCLUSION 134

BIBLIOGRAPHY 136

INDEX ...................................................................................................................... 139

CONTENTS 142

* ¹ Mr. GERMAIN, «  The ordinance of June 24, 2004  : reform or revolution  ?  », Dr. companies 2004, p. 3, reference mark 8.

* ² Law n° 66-537 of July 24, 1966, of which the provisions are integrated in the legislative part of the Commercial law since ordinance 2000-912 of September 18, 2000, like in the legislative part of the monetary Code and financier since the ordinance 2000-1223 of December 14, 2000.

* ³ Art 1832 at 1844-17 C. civ.

* ⁴ A traditional debate ignited the doctrines as for the nature of the company  : is a contract, subjected consequently to goodwill associates  ? Is not it rather an institution, withdrawn essentially from the will of its members  ? On this question, the v. in particular synthesis of J. CL. MAY,  «  The company  : contract or institution  ?  » in the work coordinated by B. BASDEVANT-GAUDEMET, Contract or institution  : a stake of company, LGDJ, 2004, p. 122.

* ⁵ The companies can indeed be civil or commercial, the criterion of distinction resting on the activity or the legal shape of the company. Whatever the nature of its activity, is considered commercial any company which adopts one of the forms controls by the law of July 24, 1966, namely: limited company (SA), limited liability company (limited liability company), limited liability partnership (SCS) or action (SCA), partnership (SNC). Are added to it the unipersonal company to limited responsibility (EURL), the shape of limited liability company having only one single associate (introduced by the law n° 85-697 of July 11, 1985), and the simplified joint stock company (SAS or SASU), form of SA of which the working procedure raises, to a large extent, only will of its members  and which can comprise only one single associate (SASU) (introduced by the law n° 94-1 of January 3, 1994 and modified by law 99-587 of July 12, 1999).

* ⁶ Art L. 211-2 C. my. end.

* ⁷ This results from the combination of article 1841 C. civ., of the articles L. 225-1, L. 226-1, L.227-1 and L. 228-1 C. Com., and of the article L. 211-3 C. my. end. (introduced by the ordinance of June 24, 2004).

* ⁸ In the silence of the law, the principle of the prohibition of the exclusion of a associate was affirmed by the Supreme court of appeal in 1996  : Case. Com., March 12, 1996  : Rev. companies 1996, p. 554. V. too  : CA Toulouse, June 10, 1999  : JCP E 2000, II, 10372, note J. - J. DAIGRE.

* ⁹ The law envisages cases of exclusion  : in the companies with variable capital (art L. 231-1 C. Com.), when the incapacity or the vice one of the assent of a associate is likely to involve the cancellation of the company (art 1844-12 C. civ.), against the leaders in the event of rectification or to bankruptcy of the company (art L. 621-59 C. Com.) or, in the dimensioned companies, against the minority ones which do not have more than 5% of the capital or the voting rights (art 237-1 of the general Payment of the MFA).

* ¹⁰ Case. Com., December 13, 1994  : JCP E 1995, II, 705, note Y. PACLOT  : nothing prohibits to insert in the statutes a clause authorizing the exclusion of a associate so certain events definitely specified in advance has been suddenly carried out. Besides the law envisages expressly this possibility in SALT (art 21 of the law of December 31, 1990) and in SAS (art L. 227-16 C. Com.).

* ¹¹ Certain operations relating to the capital, in particular it «  blow of accordion  », indirectly lead to exclude some associated. The legitimacy of the reduction of the capital by «  blow of accordion  » and of exclusions of shareholders who result from this was validated by jurisprudence  : Case. Com., May 17, 1994, Usinor  : Rev. companies 1994, p. 485, note S. DANA-DÉMARET  ; Case. Com., June 18, 2002, Association Adam C/Amy SA  : JCP E 2002, 1556, note A. VIANDIER.

* ¹² Art 1844 C. civ.

* ¹³ Case. Com., February 9, 1999  : Rev. companies 1999, p.80, note P. CANNU. - On the voting rights of the usufructuary, while at the same time the question of knowing if this last could be seen allotting the quality of associated was not settled yet by the Supreme court of appeal, it was judged that was null the statutory clause depriving the usufructuary of very voting rights, which did not enable him to vote the decisions relating to the benefit  : Case. Com., March 31, 2004  : JCP E 2004, 929, note A. RABREAU.

* ¹⁴ Actions with priority dividend without voting rights, actions with voting rights double, actions preferably, etc

* ¹⁵ The conditions of majority and quorum, as well as the distribution of the capacities between the assembly, the bodies of direction and the shareholders cannot be modified. For example, the assembly could not decide to create a Management committee, which could be only one body carrying on its activity under the authority of the council and which thus belongs to the exclusive will of this last. In this direction  : CA Aix-en-Provence, September 28, 1982  : Rev. companies 1983, p. 773, note J. MESTRE. This condemns the legal effectiveness of the committees normally created in the joint ventures.

* ¹⁶ Art 98 of the law of July 24, 1966  : «  the board of directors is invested the widest capacities to act as any circumstance in the name of the company  » within the limits of the social object  ; it is the same for the president.

* ¹⁷ Rights of information and communication  : right of communication preliminary (art L. 225-108 C. Com.), permanent right of communication (art L. 225-117), right to put written questions (art L. 225-108, Al 3 and L. 225-232)  ; right to present resolutions (art L. 225-105)  ; right to ask for the designation of an expert of management (art L. 225-231)  ; right to ask the challenge (art L. 225-230) or the revocation (art L. 225-233) of the auditor  ; right to ask for the designation of an agent charged to convene the assembly (art L. 225-103).

* ¹⁸ Right to exert the social action collectively of civil liability counters the leaders (art 200 of the decree of March 23, 1967)  ; right to exert the social action individually of civil liability counters the leaders (art L. 225-252 C. Com.)  ; responsibility in the event of rectification or for bankruptcy.

* ¹⁹ G. BERLIOZ, «  Corporate Governance, the essential reform of the company law  », Banks Strategy 1995, n° 120, p. 8  ; J. PAILLUSSEAU, «  The modernization of the company law commercial  », Dalloz 1996, n° 34 and 35  ; PH. MARINI, the modernization of the company law, Report/ratio to the Prime Minister, French Documentation, 1996  ; J. - J. DAIGRE, the modernization of the company law - First reflections on the Marini Report/ratio, Acts of the conference organized by the Federation national for the right of the company, November 13, 1996, Jolly Editions, Practical of the businesses, under dir it. J. - J. DAIGRE  ; CNPF, For an in-depth reform of the company law, 1996.

* ²⁰ This brings to note that the institutional character of the company, in the absence of possibility of conventional restriction of the rights of the leaders and the capacity of direction, corresponds more to the assertion of a theoretical sovereignty of the shareholding than to an effective ultimate capacity.

* ²¹ On the question of the vote of the shareholders in general assembly, the article of A.-L. JULIEN, «  The MFA wants to encourage the shareholders to vote  », The Barber, February 3, 2005, indicates that today, in France, less than half of the shareholders vote in general assembly, whereas it is the only way for them of being expressed on the strategy and the results of the company of which they are owners. In this context, which perdure in spite of the recent reforms, the Authority of the financial markets (MFA) created a working group chaired by Yves Mansion who has the role of leaning on the technical and economic obstacles with the effective exercise of the voting rights of the shareholders. On this topic, v. also J. SPINOSI, «  General assemblies shareholders in the limited companies, reality or fiction  ?  », Rodière Studies, 1982, p. 125.

* ²² The businesses BCCI, Maxwell or Poly Peck in the United Kingdom, Enron, WorldCom or Tyco in the United States, Vivendi Universal or Crédit Lyonnais in France, Parmalat in Italy, HIH, Berliner Bank or Holtzman in Germany, Ansett Airlines or One Such in Australia, Swissair in Switzerland for example defrayed the chronicle.

* ²³ For A.F. DAMN FOOL, Corporations in Prospect, Michigan, 1976, the corporate governance consists to define or redefine the role and the place of the bodies of administration of the company, aiming at reaching a balance between the three essential components of this capacity  : management, the Board of directors and the General meeting. The corporate governance is thus a mode of active accompaniment good ranging between shareholders and managers.

* ²⁴ The debate crystallized in 1994 on the idea of a dissociation between property of the capital and exercise of the capacity, implying a reflection on the role and the responsibilities for the administrators. The CNPF and the AFEP then charged a committee with continuing the reflections engaged on the other side of the channel, which led to the Report/ratio Viénot I published in 1995 and brought up to date in 1999 (Report/ratio Viénot II). This was supplemented by a series of reports/ratios proposing to reform the company law so that into account the requirements of the government of company are taken better  : report/ratio Button (Sept. 2002), report/ratio of the Institute Montaigne (March 2003), report/ratio cosigné by the AFEP, the ANSA and MEDEF (Oct. 2003), legal Commission Report of the CCIP (Oct. 2003).

* ²⁵ It is not possible to on the matter provide an exhaustive list of all the writings. One can inter alia quoting  : PH. BISSARA, «  True stakes of the debate on the «government of the company «  », Rev. companies 1998, p. 5 and S.  ; A. COURET, «  The government of company, Dalloz 1995, chron. p. 163  ; P. CANNU, «  Legitimacy of the capacity and effectiveness of control in the joint stock companies  »  : Bull. Jolly 1995, p.637  ; R. BERTRAND, «  Report/ratio Viénot II  : government of company and interests of the shareholders  », Books of the Audit, June 2000, n° 9,  pp. 45-47  ; R. TRUCK DRIVER, «  New tracks for the governorship  : Bull. Jolly 2003, p. 611  ; «  Government of company, recent evolutions in France and abroad  », Bull. COB, November 1995.

* ²⁶ C. NEUVILLE, «  The government of company  : for what to make  ?  », Small Posters, March 7, 1997, n° 5  : according to Colette NEUVILLE, these objectives coincide with the fundamental principles of the company law Anglo-Saxon founded on the fiduciary duties of diligence and honesty of the leaders with regard to the shareholders.

* ²⁷ According to C. NEUVILLE, «  The government of company  : for what to make  ?  », art préc.  : the shareholders do not feel not protected by the penal continuations, and the system décrédibilise French employers.

* ²⁸ V. pH. BISSARA, «  The maladjustment of the French right of the companies to the needs for the companies and risks of the solutions  », Rev. companies 1990, p. 553.

* ²⁹ This easing accelerated the development of SAS, adopted by 63  624 companies at January 1, 2004, i.e. 2,61% of the total of the companies. On this question, v. Mr. GERMAIN, «  Released SAS  », JCP E 1999, p. 1505  ; J. PAILLUSSEAU, «  The new joint stock company simplified. The Big-bang of the company law  », Dalloz 1999, p. 333.

* ³⁰ Law n° 2001-420 of May 15, 2001, OJ of May 16, 2001.

* ³¹ A. VIANDIER and A. CHARVERIAT, Companies and law NRE, Editions Francis Lefebvre, 2nd ED., 2002  ; J. - J. DAIGRE, «  Law of May 15, 2001 relating to the new economic regulations- Aspects of financial right and company law  », JCP E 2001, n° 25, act. p. 1013.

* ³² V. note n° 22. - As well as declared the Minister for the Economy Francis Mer at the time of the presentation of the bill at the Council of Ministers on February 5, 2003, «the bill of financial safety is an at the same time political and technical response to the crisis of confidence in the mechanisms of the market and to the insufficiencies of regulation whose world economic and financial has become aware for two years».

* ³³ Law n° 2003-706 of August 1, 2003, OJ of August 2, 2003.

* ³⁴ A. COURET, «  Provisions of the law financial safety interesting the company law  », JCP E 2003, 1290.

* ³⁵ For the protection of the shareholder-saver by the stock exchange right, it is returned to the provisions of the monetary and financial Code and the general Payment of the MFA of 2004.

* ³⁶ On these questions, v. S. OF VENDEUIL, «  New economic regulations and improvement of the rights of the shareholders in the joint stock companies not - dimensioned  », JCP NR 2002, n° 1029  ; H. BOISSEL-DOMBREVAL, «  Right of information of the shareholders of the companies not - dimensioned after the recent reforms  », Gas. Stake. 2004, n° 148, p. 34.

* ³⁷ ANSA, AFEP and MEDEF, For a modern right of the companies, common report/ratio, October 2003 (available on http://www.medef.fr).

* ³⁸ V. in particular ANSA, AFEP and MEDEF, For a modern right of the companies, rep. préc.  ; PH. BISSARA and J. - P. BOUÈRE, «  Proposals of the CNPF of modernization of the mode of the issues of titles of capital  », Bull. Jolly 1994, p. 9  ; MEDEF, actions preferably  : proposals of MEDEF for a modernization of the right of the transferable securities, report/ratio, June 2001.

* ³⁹ Mr. COZIAN, A. VIANDIER and F. DEBOISSY, Company law, Litec, 2004, p. 2.

* ⁴⁰ PH. BISSARA, the modernization of the mode of the issues of titles of capital, report/ratio of the CNPF, April 1993.

* ⁴¹ It was a question of taking as a starting point the the Anglo-Saxon preferred shares, actions comprising, in addition to the traditional rights attached to the actions, certain political and financial rights. In practice Anglo-Saxon, the political rights guarantee to the investors privileged information and the participation in the management or the control of the company. The financial rights, on the one hand, arrange a preferential distribution of the price in the event of transfer as well as fusion or profit in the event of liquidation of the company, on the other hand, protects the investors against the consequences from the realization of one or more later round tables on the basis of valorization of the company lower than that accepted by them, thanks to a mechanism of adjustment of the number of the actions which they hold (ratchet).

* ⁴² The law of February 25, 1953 organized the mode of the convertible bonds (OCA)  ; the law of June 26, 1957 designed the oil certificates  ; the law of July 24, 1966 devoted the practice of the emission of convertible bonds against actions (OAS) (L. art 200), certificates of investment (L. art 283-1 and S.), obligations with goods of application for shares (OBSA) (L. art 194-1 and S.), participative titles (L. art 283-6 and S.)  ; the laws of September 10, 1947 and June 17 1987 organized the mode of the co-operative certificates of investments  ; the laws of September 10, 1947 and July 13 1992 arranged the co-operative certificates of associates  ; modifications intervened in 1969, 1973 and 1983  ; then the law of December 14, 1985 instituted an apparently general mode applicable to the transferable securities «  complexes  » by allowing the creation of unnamed transferable securities, but did not modify the former texts...

* ⁴³ Law n° 94-679 of August 8, 1994  : «  Procedure of the new issues of capital after law DDOEF of August 8, 1994  », Bull. ANSA 1994, n° 2729  ; B. VATIER and D. BOULLET, «  Innovations of the law of August 8, 1994 in the company law  », Gas. Stake. October 1995, p. 535.

* ⁴⁴ Schedule n° 2004-604 of June 24, 2004, OJ n° 147 of June 26, 2004.

* ⁴⁵ PH. BISSARA, the modernization of the mode of the issues of titles of capital, rep. préc.

* ⁴⁶ Rep. préc.

* ⁴⁷ According to 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  », Practical Acts and engineering member, September-October 2004, n° 77, p. 7, under dir it. J. - J. DAIGRE, the ordinance is also justified, on the one hand, by a will of competitiveness of the French right at the time of the practical advent of the societas europae (SE) and, on the other hand, by a form of return of beam favorable to the freedom of the transmitters, after a series of constraining reforms, in particular for SA.

* ⁴⁸ Report/ratio with President de République «  relating to the ordinance n°  2004-604 of the 24  June  2004 bearing reform mode of the transferable securities emitted by the commercial companies and extension to overseas of provisions having modified the commercial legislation  », OJ of the 30  July  2004, p.  13577  ; v. Bull. Special Jolly 2004, n° 7 (a), p. 3 and 15. V. also the article of the adviser of the Minister for Justice, J. THE POPE, «  The philosophy of the reform  », in the new right of the transferable securities after the reform of June 24, 2004, Droit & Patrimoine 2004, n° 130, pp. 80-101.

* ⁴⁹ Schedule n° 2004-274 of March 25, 2004, OJ n° 74 of March 27, 2004. - Th. MASSART, «  Aspects members of the ordinance n° 2004-274 of bearing 25 March 2004 simplification of the right and the formalities for the companies  », Bull. Jolly 2004, p. 743  ; B. THOMAS and P. EMERIAU, «  The ordinances of March 25 2004 simplify the administration of the companies  », Option Finances 2004, n° 780, p. 31.

* ⁵⁰ In particular, the limited liability companies have from now on the possibility of emitting obligations.

* ⁵¹ On this question, v. A. COURET and H. NABASQUE, transferable Securities- New issues of capital- Nouveau mode- Schedule of March 25 and June 24, 2004, Editions Francis Lefebvre, 2004, spéc. p. 7 and S.

* ⁵² The company of Proxinvest COUNCIL virulemment criticizes the modification of the law by way of ordinance  : «  the government reduces the rights of the shareholders by  ordinances of kindness  » (article published on http://www.proxinvest.com).

* ⁵³ V. Mr. GERMAIN, «  The ordinance of June 24, 2004  : reform or revolution  ?  », art préc.

* ⁵⁴ Law n° 2003-591 of July 2, 2003, OJ n° 152 of July 3, 2003.

* ⁵⁵ Law n° 2004-1343 of December 9, 2004, OJ n° 287 of December 10, 2004.

* ⁵⁶ The ordinance of June 24, 2004, like that of March 25, 2004, were ratified with some corrections. V.G. BARANGER, «  The beautiful simplification of the right  », Bull. Jolly 2005, p. 159.

* ⁵⁷ Decree n° 2005-112 of 10 February 2005 modifying the decree n° 67-236 of March 23, 1967, OJ n° 37 of February 12, 2005.

* ⁵⁸ A. Lienhard, «  Reform transferable securities: presentation of the decree of application of February 10, 2005  », Dalloz 2005, p. 4.

* ⁵⁹ On these questions, v. P. CANNU, «  Some problems of transitory right posed by the ordinance n° 2004-604 of June 24, 2004  », RTDC 2004, p. 537  ; ANSA, Note of the legal committee on the decree of February 10, 2005, September 8, 2004, n° 04-062.

* ⁶⁰ In accordance with the article 1st of the Civil code in its drafting resulting from the ordinance of February 20, 2004.

* ⁶¹ Supra n° 8.

* ⁶² For an exhaustive talk of the provisions of the ordinance of June 24, 2004, v. P.D' HOIR, the reform of the transferable securities & new issues of capital, Option Finance 2005, out of the ordinary n° 5.

* ⁶³ Ordinary actions and actions preferably, which immediately give access to the capital of a company

* ⁶⁴ Convertible, refundable or exchangeable obligations in actions, goods of application for shares and all transferable securities made up giving access in the long term to the capital of a company.

* ⁶⁵ Simple obligations.

* ⁶⁶ Scrip certificates of obligations.

* ⁶⁷ Initially, the definition of the transferable securities had been reserved by the legislator with the only field of the law of December 23, 1988 relating to undertakings for collective investment of transferable securities  ; then, during coding to constant right of this text by the ordinance of December 14, 2000, it had been promoted with the row of general standard, with the article L. 211-2 C. my. end., but in the financial sphere only, the article L. 228-1 C. there not returning Com. Since the ordinance of June 24, 2004, a step moreover is crossed with this reference express to the article L. 211-2 C. my. end. carried out with subparagraph 2 of the article L. 228-1 C. Com. It results from it that the transferable securities emitted by the joint stock companies get along «  titles emitted by them, transmissible by inscription in account or tradition, which confer identical rights by category and give access, directly or indirectly, with a share of the capital of the transmitting company or with a general right of credit on its inheritance.  »

* ⁶⁸ V. however remarks raised by 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., spéc. p. 9. For Mr. FAVERO, «  For an ambitious reform of the financial instruments  », Practical Acts and engineering member, January-February 2004, p. 4, for which it would be appropriate to remove purely and simply the concept of transferable securities to the profit of the only concept of financial instrument, which would be divided into two categories  : financial titles and financial contracts.

* ⁶⁹ Art L. 228-1 C. Com. and art L. 211-4 and 212-3 C. my. end.

* ⁷⁰ Art L. 211-4 C. my. end.

* ⁷¹ Art L. 233-7 C. Com.

* ⁷² Art L. 228-1, Al 9 C. Com. - Until now, the transfer of property of nonallowed titles to the negotiations on a regulated market resulted from the only agreement on the thing and the price.

* ⁷³ Art L. 228-6-1 C. Com.

* ⁷⁴ Art L. 228-6-2 C. Com.

* ⁷⁵ Until now, no adequate procedure was offered to them in this case. The mode of sale of office, resulting from the decree of May 21, 1992, aims indeed only the specific assumption of the titles of personal form whose holders could not have been joined by the transmitting companies at the time of the dematerialization of 1984, and had not appeared since.

* ⁷⁶ Art L. 228-6-3 C. Com.

* ⁷⁷ The cases where it cannot be stipulated of approval (succession, liquidation of the marriage settlement, transfer either with a spouse, or with ascending or descendant) are more logically taken again after this principle.

* ⁷⁸ Art L. 228-24, Al 2 C. Com.  : «  yielding can constantly give up the transfer of its titles of capital or transferable securities giving access to the capital  », which means that the repentance could be exerted not only after the notification of the refusal of approval, but also after the result of the expertise  ; the shareholder who saw himself refusing approval could thus give up the transfer if the price fixed by the expert for the repurchase of the titles seems to him insufficient.

* ⁷⁹ The law seems in this case to reconsider the jurisprudence according to which the decision of the expert binds the parts definitively. - Case. Com., October 15, 1992  : JCP E 1993, I, 218, n° 13  and Case. Com., July 2, 1996  : Rev. plowshare 1997, 345, in connection with a limited liability company but transposable with SA (even business for the two stops). Mr. COZIAN, A. VIANDIER and F. DEBOISSY, Company law, COp préc., n° 698, wonder whether it is reasonable to create a right of repentance without matching it of a time.

* ⁸⁰ On this question, v. S. Sylvestre, «  The regrouping of actions after the ordinance of June 24, 2004  : a missed occasion  ?  », Bull. Jolly 2005, p. 7

* ⁸¹ Art L. 228-10 C. Com.

* ⁸² In any event, they are not current shareholders. For A. PIETRANCOSTA, «  The protection of the holders of transferable securities giving access to the capital after the ordinance of June 24, 2004  », Dr. companies 2005, p. 7, they are not either shareholders by anticipation or comparable.

* ⁸³ On these questions, v. A. PIETRANCOSTA, «  The protection of the holders of transferable securities giving access to the capital after the ordinance of June 24, 2004  », art préc.  ; V. ALLEGAERT, «  Property of the transferable securities  », Bull. Jolly 2005, p. 340  ; P. GROSJEAN, «  The reform of the mode of the transferable securities not - dimensioned  : easing of the criterion of obligation of nominativity and unification of the rules of transfer of property  », Small Posters 2005, n° 33, p. 7  ; A. GUENGANT, D. DAVODET, P. ENGEL and S. OF VENDEUIL, «  Transferable securities giving access to the capital after the ordinance of June 24, 2004  », JCP E 2005, 1129.

* ⁸⁴ Except for the preferred stocks.

* ⁸⁵ Mr. GERMAIN, «  The ordinance of June 24, 2004  : reform or revolution  ?  », art préc.

* ⁸⁶ The law n° 69-12 of January 6, 1969 softens the mode applicable to the convertible obligations and the convertible bonds in actions. - The law n° 73-1196 of 27 December 1973 introduced the possibility for the companies whose titles are registered at the side official to carry out new issues of capital reserved for employees. - The law n° 81-1162 of December 30 1981 of French harmonization of laws of the joint stock companies with the second European directive allowed the board of directors or the directory to reduce the amount initially planned for the new issue of capital to the actually subscribed amount, under certain conditions. - The law n° 83-1 of January 3, 1983 on the development of the investments and the protection of the saver (I) introduced the presumption of realization of any new issue of capital since its good end is guaranteed in an irrevocable way by one or more credit institutions, (II) allowed the shareholders to give up on a purely individual basis their preferential duty of subscription, (III) allowed the general assembly, in the event of public call to the saving, to remove the preferential duty of subscription without indication of the name of the payee, (iv) removed the preferential duty of subscription on a purely reducible basis, without damage of the possibility for the general assembly of restoring it by a decision express, (v) created the new shapes of titles (certificates of investment, obligations with goods of application for shares, easing of the mode of the actions with priority dividend without voting rights) and (VI) reduced certain formal obligations related to the new issues of capital. - The law n° 85-1321 of 14 December 1985 modifying various provisions of the right of the transferable securities, of the negotiable evidences of indebtedness, the companies and the stock exchange transactions (I) introduced the whole of the articles L. 228-91 with L. 228-97 C. Com. widening the possible field of the hybrid transferable securities giving access to the capital, (II) harmonized the applicable rules in the event of insufficient subscription, (III) confirmed the possibility of removing the preferential duty of subscription without indication of the name of the payees in softener its conditions and (iv) the period of exercise of the preferential duties reduced of subscription.

* ⁸⁷ For the reflections carried out within the ANSA, and of MEDEF, v. http://www.ansa.asso.fr and http://www.medef.fr. V. also pH. BISSARA, the modernization of the mode of the issues of titles of capital, rep. préc.  ; J. - P. MATTOUT, For a reform of the legal status of the obligations, report/ratio of the CNPF, October 1993  ; CNPF, For an in-depth reform of the company law, rep. préc.  ; MEDEF, actions preferably  : proposals of MEDEF for a modernization of the right of the transferable securities, rep. préc.

* ⁸⁸ V. pH. BISSARA, the modernization of the mode of the issues of titles of capital, rep. préc.

* ⁸⁹ Law n° 94-679 of August 8, 1994, OJ n° 184 of August 10, 1994.

* ⁹⁰ PH. BISSARA, the modernization of the mode of the issues of titles of capital, rep. préc.

* ⁹¹ V. Bull. COB 2002, n° 371, p. 101, on the limits of the applicable mode before the ordinance of June 24, 2004.

* ⁹² According to the report/ratio with the President of the Republic, «  the new provisions relating to the new issues of capital redefine the mode of the increases decided by the transmitters, while conferring a general range to him. They soften the methods of these new issues of capital by reducing the constraints which weighed on the delegations and the preferential duty of subscription, and envisage adaptations integrating the unification of the mode of the transferable securities giving access to the capital and of the creation of the category of the actions preferably.  »

* ⁹³ Art L. 226-1 C. Com.

* ⁹⁴ Art L. 227-1 C. Com.

* ⁹⁵ Art L. 228-91 and L. 228-92 C. Com.

* ⁹⁶ According to the report/ratio with the President of the Republic, «  this article is rewritten to widen the object and the range of the delegations authorized by the general assembly to the bodies of direction. The latter will be able, not only to define the methods of emission and to carry out the new issues of capital decided by the assembly, but still to decide themselves of increases, within the limit of a ceiling fixed by the assembly. This rule, which appreciably reinforces the role of the bodies of direction in the decision-making process of the new issues of capital, tends to introduce a greater flexibility in this field, by not imposing more the systematic meeting of the shareholders for each decision of increase.  »

* ⁹⁷ G. TRÉMÈGE, Commission Report of Finances to the French National Assembly, n° 1349, p. 149, in connection with the reform of the mode of the new issues of capital by the law of August 8, 1994.

* ⁹⁸ Even if these ideas seem called into question today  : 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. 

* ⁹⁹ Old art L. 225-129 C. Com.

* ¹⁰⁰ The old article L. 225-129, V, of the Commercial law obliged the board of directors or the directory to account for the made uses by him of «  authorizations  » voted by the general assembly  ; the provisions relating to the subdelegation with the president made it possible this last to postpone the new issue of capital  ; and the article L. 225-135 of the Commercial law explicitly referred to the possibility for the general assembly «  to authorize  » a new issue of capital.

* ¹⁰¹ The body of direction to which the extraordinary general assembly can authorize a delegation is  : the board of directors or the directory, according to the case, in SA, management in a SCA, the competent authority in accordance with the statutory provisions in SAS. In the following developments, it will be refers to «  board of directors or directory  » because of the terms of the articles L. 225-129 and following of the Commercial law  ; but, by reference, these rules are also applicable to the SCA and SAS, with regard to their competent authorities.

* ¹⁰² Trémège REPORT/RATIO, rep. préc.  : «  Can on the other hand be delegated to the board of directors or to the directory, the capacities necessary to the material manufacture of the issue of titles  : settlement of the date of opening and subscription closure, person nomination entitled to receive funds coming from the subscriptions, achievement of the formalities prescribed by the texts, possibilities of carrying out the emission in one or more time, observation of the realization of the increase and correlative modification of the statutes of the company  ».

* ¹⁰³ Old art L. 225-129, III, Al 3 C. Com.: «  [the extraordinary general assembly] can also delegate to the board of directors or the directory according to the case, capacities' necessary to the effect to carry out, in one or more time, the emission of a category of transferable securities, to fix the amounts, of to note the realization and to carry out the correlative modification of the statutes of them  ».

* ¹⁰⁴ Directive the EEC n° 77/91.

* ¹⁰⁵ The ordinance removed the first subparagraph of paragraph III of the old article L. 225-129 according to which «  the general assembly can fix itself the methods of each emission  ». This precision was indeed useless, the first subparagraph of the same article giving him competence first to decide the new issues of capital.

* ¹⁰⁶ Art L. 225-129, Al 2 C. Com.

* ¹⁰⁷ In this direction, A. COURET and H. NABASQUE, transferable Securities- New issues of capital- Nouveau mode- Schedule of March 25 and June 24, 2004, COp préc., n° 105 to 143  ; 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  », Bull. Jolly 2004, p. 1023, n° 13.

* ¹⁰⁸ The term «  to authorize  » is clearly introduced by the article L. 225-135 of the Commercial law.

* ¹⁰⁹ Art 64, I, of the ordinance.

* ¹¹⁰ 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° 15. Countered, P.D' HOIR, the reform of the transferable securities & new issues of capital, COp préc., p. 18.

* ¹¹¹ Old art L. 225-129, III, Al 2 C. Com.

* ¹¹² Old art L. 225-129, III, Al 3 C. Com.

* ¹¹³ Old art L. 225-129, III, Al 2 C. Com.

* ¹¹⁴ The only reference to a ceiling appears in the article L. 225-129-2 of the Commercial law for the delegations of power.

* ¹¹⁵ A. COURET and H. NABASQUE, Securities transferable- New issues of capital- Nouveau mode- Schedules of March 25 and June 24, 2004, COp préc., n° 106. In this direction, P.D' HOIR, the reform of the transferable securities & new issues of capital, COp préc., p. 18  ; 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., p. 20.

* ¹¹⁶ 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° 16.

* ¹¹⁷ As the old article L. 225-129 allowed it, III, Al 3 of the Commercial law.

* ¹¹⁸ 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° 17.

* ¹¹⁹ In this direction, P. TOURRES, «  New issue of capital  : the widening of the delegations  », in the new right of the transferable securities after the reform of June 24, 2004, art préc.

* ¹²⁰ Article L. 225-129-2, Al 4 C. Com.  : «  Within the limit of the delegation given by the general assembly, the board of directors or the directory has the capacities necessary to fix the conditions of emission, to note the realization of the new issues of capital which result from it and to carry out the correlative modification of the statutes  ».

* ¹²¹ Art L. 225-129 and L. 225-129-1 C. Com.

* ¹²² Supra n° 31.

* ¹²³ Art L. 225-149-3 C. Com.

* ¹²⁴ Supra n° 25.

* ¹²⁵ Being the appreciation of this time, the question arises of knowing if it is necessary that the board of directors decided and fixed all the characteristics of an emission (this one being able to be realized subsequently) or if it is necessary that all the material operations of execution were carried out within this time.

* ¹²⁶ In addition, the delegation of power cannot be authorized when the unanimous agreement of the shareholders is necessary to increase the capital, namely when the new issue of capital is carried out by increase of the par value of the existing titles to release in cash (art L. 225-130 C. Com.) (what is very rare in practice). The new issue of capital by incorporation of reserves, benefit or premiums issue and increase of the par value can on the other hand be the delegation object.

* ¹²⁷ Art L. 225-135 C. Com.

* ¹²⁸ Art L. 225-135-1 C. Com.

* ¹²⁹ Art L. 225-136, 1°, Al 2 C. Com.

* ¹³⁰ Art L. 225-138 C. Com.

* ¹³¹ Art L. 225-238-1 C. Com.

* ¹³² Art L. 225-177 with L. 225-186 C. Com.

* ¹³³ Art L. 228-11 with L. 228-20 C. Com.

* ¹³⁴ V. in particular 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° 23. Countered, A. COURET and H. NABASQUE, transferable Securities- New issues of capital- Nouveau Ordonnance- mode of March 25 and June 24, 2004, COp préc., n° 135 and S., which propose with prudence the second interpretation  : «  As it is not interdict to think as these delegations «  particular  » of competence could- all, or some of them only- to become autonomous and live their own life (if not in their amount, at least in their duration) by report/ratio, in particular, with the delegation voted under the first subparagraph of the article L. 225-129-2, if the assembly decided it expressly. Admittedly, such an application of the article L. 225-129-2 would develop in margin of the letter of the text  ».

* ¹³⁵ V. supra n° 40.

* ¹³⁶ V. will infra n° 43 to 45.

* ¹³⁷ One perceives here the importance of the interpretation of extended from the delegation of powers (v. supra 30 and S.) and in particular from the possibility for the assembly of delegating his powers of realization of the specific new issues of capital within the limit of a ceiling which it fixes. It was all the logic and the coherence of the proposal of MEDEF, the AFEP and the ANSA, on which the legislator remained dumb. In order to preserve the flexibility of the transmitters, it must be possible to envisage, in addition to the total delegation, of the delegations specific for certain operations to the well delimited object (granting of options of application for shares, new issues of capital reserved to the employees, specific new issues of capital within the framework of a financial transaction or in acquisition) and for which the information of the shareholders can be more precise. It must be the object of the delegation of powers of the article L. 225-129-1. On the other hand, since one places oneself within the framework of a total delegation to which are attached particular resolutions, the whole of the mode of the article L. 225-129-2 applies as well in the benefit in term of flexibility as in the constraints in term of ceiling or period of validity of the delegation for example.

* ¹³⁸ Art L. 225-129-2, Al 1st C. Com.

* ¹³⁹ Art L. 225-138, III C. Com.

* ¹⁴⁰ Art L. 225-177, Al 1st C. Com.

* ¹⁴¹ Art L. 225-129-2, Al 4 C. Com.

* ¹⁴² For example, for the option of surallocation or the new issues of capital without preferential duty and at free price realized by the companies dimensioned within the limit of 10% of the authorized capital per annum.

* ¹⁴³ Art L. 225-129-2, Al 1st C. Com.  : «  When the extraordinary general assembly delegates to the board of directors or the directory her competence to decide new issue of capital, it fixes [...] the total ceiling of this increase  ».

* ¹⁴⁴ In this direction, P. TOURRES, «  New issue of capital  : the widening of the delegations  », in the new right of the transferable securities after the reform of June 24, 2004, art préc.  ; 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° 28.

* ¹⁴⁵ Old art L. 225-129, III, Al 4 C. Com.

* ¹⁴⁶ In this direction, A. COURET and H. NABASQUE, transferable Securities- New issues of capital- Nouveau mode- Schedule of March 25 and June 24, 2004, COp préc., n° 131  ; 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° 34.

* ¹⁴⁷ Art L. 225-129-2, Al 2 C. Com.

* ¹⁴⁸ Delegation of powers or delegation of power.

* ¹⁴⁹ Actions, actions preferably, transferable securities giving access to the capital.

* ¹⁵⁰ Emission with preferential duty of subscription, without preferential duty of subscription, offers public of exchange, closed issue for anybody called or categories of anybody meeting determined characteristics, granting of options of application for shares.

* ¹⁵¹ Emission with public call to the saving, closed issue to the employees.

* ¹⁵² V. supra n° 47.

* ¹⁵³ The transmitters could be subjected to the obligation to inform their shareholders, before the general assembly, of the whole of the valid delegations and the whole of the delegations which would be valid after the general assembly if all the resolutions suggested with their vote were adopted.

* ¹⁵⁴ Art L. 225-129-4 C. Com.  : «  In the limited companies whose titles are allowed with the negotiations on a regulated market: has) The board of directors can, within the limits which it will have fixed beforehand, to delegate to the general manager or, in agreement with this last, to one or more deputy general managers capacity to decide the realization of the emission, like that to postpone it; b) The directory can delegate to its president or, in agreement with this one, to the one of its members the capacity to decide the realization of the emission, like that to postpone it. The designated people return account to the board of directors or to the directory of the made use of this capacity under the conditions envisaged by the latter  ».

* ¹⁵⁵ The will of the ordinance to increase the capacity of the leaders in the limited companies whose titles are allowed with the negotiations on a regulated market is also visible as regards repurchase of actions. The article L. 225-209, in order to make more flexible the implementation of the programs of repurchase, allows the board of directors or the directory under-to delegate to its capacities with-same leaders on the matter that those aimed to the article L. 225-129-4 of the Commercial law.

* ¹⁵⁶ P. ENGEL and P. OF HOIR, «  New issues of capital, repurchases of actions  : operations facilitated with the reform  », Option Finances 2004, n° 799, p. 27. - The Commercial law held until now the subdelegation as regards new issue of capital in the companies dimensioned with only the directory and chairman of the board. In addition to the restrictive character of such a subdelegation, the legislator had omitted to put in harmony the texts with law NRE. The general manager not-president of the board of directors could not thus profit from this subdelegation.

* ¹⁵⁷ This same text was curiously not taken again for the subdelegation granted by the directory.

* 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.

* 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.

* ¹⁷⁵ Because of the times of preparation and second reading of the tests and dates of publication of the BALO (Monday, Wednesday and Friday).

* ¹⁷⁶ During its introduction by the law of February 25, 1953.

* ¹⁷⁷ On the contents of this information, v. will infra n° 391.

* ¹⁷⁸ It had been proposed by the representatives of the companies not - dimensioned to add at the end of the last subparagraph of article 156 of the decree of March 23, 1967 a provision providing in substance that the fourteen days deadline would not have been applicable when the indications necessary were joined to the convocation of the general assembly having to come to a conclusion about the emission, under the condition which the assembly adopts the methods suggested by a vote in conformity. This proposal was disallowed by the authorities.

* ¹⁷⁹ ANSA, legal Committee, opinion of March 9, 2005  : this empirical solution would be licit if it exceptional and is justified by a top priority, for the principal reason that the shareholders can always, unanimously, to give up a right of pure individual protection, provided that their information is complete and that the social interest is not blamed by this renunciation.

* ¹⁸⁰ Directive the EEC n° 77/91 of December 13, 1976, art 29 § 3  : «  The offer of subscription on a purely preferential basis as well as the time in which this right must be exerted are the subject of a publication in the national Bulletin indicated in accordance with directive 68/151/the EEC [...]. The preferential duty must be exerted within a time which cannot be lower than fourteen days as from the publication of the offer or the sending of the letters to the shareholders  ».

* ¹⁸¹ In this direction, J. - P. VALUET, «  Transferable securities  : comment of the decree of February 10, 2005  », Dalloz 2005, p. 1362.

* ¹⁸² 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. 80 and S.

* 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.

* ²⁰³ Criticisms of the rule of «  ten among the twenties  » related mainly to the following points  : it limits considerably the freedom of emission of the transmitters in contexts of market bear and can make impossible certain emissions  ; it badly protects the existing shareholders against dilutives operations in the context from a market bull  ; it constitutes a competitive disadvantage for the French companies compared to their counterparts of the close countries whose regulations allow certain rebates compared to the stock exchange price preceding launching by the operation.

* ²⁰⁴ D. BOMPOINT, «  The reform of the procedures of public appeal to the saving. The rule from the «ten among the twenties «  », Practical Acts and financial engineering, January-February 2004, n° 73, p. 20 and S.  ; A. COURET and H. NABASQUE, Securities transferable- New issues of capital- Nouveau mode- Schedules of March 25 and June 24, 2004, COp préc., n° 272 and S.

* ²⁰⁵ The first text was the decree n° 83-363 of May 2, 1983, which enacted the rule of «  twenty among the forty  » and was inserted in the law of July 24, 1966 (art 339-1) by the law of May 2, 1983  ; then the law of August 8, 1994 reduced the period of calculation of the average and retained rule the ten market-days taken among the twenties preceding the beginning by the emission (art 339-1 L. 24 July 1966, become art L. 225-136 C. Com.- V.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° 57.

* ²⁰⁶ The reference to the balanced middle price translated the feeling which this reference is less suitable for be handled than a course spot.

* ²⁰⁷ Art L. 225-209 C. Com.

* ²⁰⁸ V.D. BOMPOINT, «  The reform of the procedures of public appeal to the saving. The rule from the «ten among the twenties «  », art préc.

* ²⁰⁹ V. «  New forms of new issue of capital by pulling of lines of action (equity lines)  », Bull. ANSA 2003, n° 3231. - The equity lines were carried out until now on the basis of emission of goods of application for shares reserved for a credit institution. This emission is carried out with suppression of the preferential duty of subscription and is reserved for anybody called pursuant to the article L. 225-138 of the Commercial law. The price of subscription of the goods is symbolic system (between 0,0001 and 0,01 euros per good) and the price of exercise is equal to an average of course for one reference period (5 market-days consecutive for example) preceding the exercise by the goods to which a rebate (10% for example) is applied. A convention is concluded between the transmitter and the institution credit to frame the exercise of the goods of application for shares by this last. The credit institution does not have vocation to preserve the actions thus subscribed but to place them in the market, at its risks. The rebate calculated on the average of the courses over the reference period is supposed to give to the credit institution the margin necessary to avoid carrying out a loss on this placement. The remuneration of the credit institution corresponds at commissions to which is added the possible appreciation carried out during the transfer in the stock market resulting from the exercise from the goods from application for shares.

* ²¹⁰ Official statement relating to projects of new issue of capital (equity lines) of July 25, 2001, Bull. COB 2001, n° 359, p. 51.

* ²¹¹ On this question, v. 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° 65.

* ²¹² By reference to the article L. 225-129-2 of the Commercial law relating to the delegations of power.

* ²¹³ In this direction, 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., p. 23.

* ²¹⁴ 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° 68  ; A. COURET and H. NABASQUE, Securities transferable- New issues of capital- Nouveau mode- Schedules of March 25 and June 24, 2004, COp préc., n° 344.

* ²¹⁵ 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° 68.

* ²¹⁶ Infra Nos 385, 389.

* ²¹⁷ Old art L. 225-136 C. Com.

* ²¹⁸ Such is the case of the companies of which a category of titles is allowed with the negotiations on a regulated market which proposes to emit a new category of titles per public call to the saving.

* ²¹⁹ H. NABASQUE, «  Comments of the principal provisions of the law of financial safety interesting the company law  », Bull. Jolly 2003, p. 859,  § 185.

* ²²⁰ The period of validity of the delegation by the general assembly is reduced to eighteen months  ; she was two years in the old article L. 225-138, III of the Commercial law. The ordinance specifies moreover that the report/ratio of the board of directors or the directory returning account at the next assembly of the final conditions of the operation must from now on be certified by the auditor.

* ²²¹ According to the report/ratio with the President of the Republic, rep. préc., p. 4  : «  These simplifications remain however protective for the shareholders, insofar as the whole of these conditions are subjected to the decision of the general assembly  ».

* ²²² The text applies in the event of contribution of titles «when the provisions of the article L. 225-148 are not applicable». This formulation makes it possible to remunerate (I) securities with dimensions brought within the framework of a public offer of exchange which would not be governed by the article L. 225-148 (for example, a public offer of exchange on titles which allowed with the negotiations on a market would not be regulated of a State not left to the agreement on European Space economic or member the Organization for Economic Cooperation and Developm), (II) of the titles admitted with the negotiations on a market regulated of a State left to the agreement on European Space economic or member the Organization for Economic Cooperation and Developm but whose acquisition would not do itobject of a public offer of exchange (for example within the framework of a contribution of block which would not lead to the deposit of an obligatory offer public and would not have been the subject of a voluntary public offer) and (III) with the titles not - dimensioned.

* ²²³ V. supra n° 88.

* ²²⁴ 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° 73.

* ²²⁵ Supra n° 60.

* ²²⁶ Or «  clause of green shoe  ».

* ²²⁷ Art 155-4 of the decree n° 67-236 of 23 March 1967, introduced by the decree n° 2005-112 of February 10, 2005. 

* ²²⁸ Art 155-4 préc. 

* ²²⁹ The article L. 228-10 of the Commercial law lays down prohibition to negotiate the promises of actions. In the event of new issue of capital, the new actions are thus negotiable only as from the realization of the latter. However, the article L. 228-10 lays down an exception when they are actions to be created at the time of a new issue of capital of a company whose titles are already allowed with the negotiations on a regulated market. The ordinance introduces a new flexibility by extending this exception to the actions to be created at the time of a new issue of capital of a company whose titles are not already allowed with the negotiations on a regulated market but for which the admission was required.

* ²³⁰ The investors, in particular on the international market, regard as very important the fact of being able to yield, if necessary as of their allowance and before the date of payment-delivery, the actions which they acquired within the framework of an introduction out of purse (like in the case of a new issue of capital of a company already with dimensions). It is a question for them of eliminating the risk from market for the few days (generally three market-days) separating the date from fixing from the price and allowance from the actions to emit date of payment-delivery and final realization of the new issue of capital.

* ²³¹ Art L. 443-5 C. wk.

* ²³² The directory or resolution of the Board of Directors to which it is refers as having to intervene within ten market-day of the date of the first quotation is that relating to the settlement of the date of subscription, which should also be the date of fixing of the price of subscription.

* ²³³ Report/ratio with the President of the Republic, rapp préc., p. 4  : «In order to make it possible to the employees to profit, without discrimination compared to the other subscribers, of a closed issue during a concomitant new issue of capital to a first introduction on a regulated market, the reference to the average of the courses dimensioned with the twenty meetings of purse preceding the day by the decision is isolated with the profit of the price of admission  ».

* ²³⁴ Art L. 228-40 C. Com.- So that it of either otherwise, it is necessary, or that the statutes reserve this capacity at the general assembly, or that this one to decide to exert it.

* ²³⁵ 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.

* ²³⁶ Art L. 228-11 C. Com.

* ²³⁷ Old art L. 225-126 C. Com.- J. SPINOSI, «  Actions with priority dividend without voting rights  », Rev. companies. 1979, p. 25.

* ²³⁸ Art L. 228-30 and S.C. Com.- B. BOULOC, «  New transferable securities: certificates of investment and titles participative  », Rev. companies. 1983, p. 501.

* ²³⁹ Old art L. 228-11 C. Com.- C. BAERT, «  Preferred stocks: a category of titles in process of extinction after the ordinance of June 24, 2004  », Bull. Jolly 2004, n°12.

* ²⁴⁰ It should however be specified that the provisions relating to the actions with raised dividend (art L. 232-14 C. Com.) are maintained and can always be applied, within the limits envisaged by the law, with the ordinary actions.

* ²⁴¹ On the whole of the question, v. Th. BONNEAU, «  The ordinance n° 2004-604 of bearing 24 June 2004 reforms transferable securities emitted by the commercial companies. Its application in time  », Dr. companies 2004, study 11.

* ²⁴² Art L. 228-29-8 C. Com., resulting from article 35, II, of the ordinance.

* ²⁴³ Art préc.

* ²⁴⁴ Art 35, I (entitled section III  : «  Provisions applicable to the categories of titles in process of extinction  ; art L. 228-29-8 with L. 228-35-11 C. Com.), art 35, II (sub-section 1  : «  General provisions  »  ; art L. 228-29-8 with L. 228-29-10 C. Com.), art 36 (sub-section 2  : «  Certificates of investment  »  ; art L. 228-30 with L. 228-35 C.com.), art 37 (sub-section 3  : «  Preferred stocks  »  ; art L. 228-35-1 C. Com.) and art 38 (sub-section 4  : «  Actions with priority dividend without voting rights  »  ; art L. 228-35-2 with L. 228-35-11 C. Com.) of the ordinance.

* ²⁴⁵ Thus, in the event of new issue of capital in cash, the carriers of certificates of investment are not entitled any more to obtaining of new certificates, but to actions preferably without voting rights and matched same rights that the certificates of which they are titular. More generally, the carriers of, the action preferred stocks with priority dividend without voting rights and of certificates of investment lay out, as principle, of a right preferably to the subscription of the actions preferably since those confer rights identical to those to them which they have.

* ²⁴⁶ Supra n° 114. - This approach step by step presented disadvantages, insofar as the companies wishing to emit titles equipped with specific prerogatives were to necessarily register their financial instrument in one of the three categories  : preferred stocks, actions with priority dividend without voting rights and certificates of investment, by scrupulously complying with the rules of each one of these categories, without being able to practice hybridizations.

* ²⁴⁷ MEDEF, actions preferably  : proposals of MEDEF for a modernization of the right of the transferable securities, rep. préc., p. 2.

* ²⁴⁸ Rep. with the President de République préc.  : «  They [actions preferably] remain obviously subjected to the mode of the actions  ».

* ²⁴⁹ SA, SCA or SAS of common right. For all the companies having a particular statute and which can take the form of SA, SCA or SAS, it is appropriate to check and respect, if necessary, the specific requirements to these companies (ex  : co-operative companies, SALT, companies with sporting object, etc).

* ²⁵⁰ Art L. 228-15, Al 2 C. Com.

* ²⁵¹ Infra n° 152.

* ²⁵² Rappr. Mr. JEANTIN, «  Observations on the concept of classes of shares  », Dalloz 1995, chron. p. 88  ; P. CANNU, Company law, Montchrestien, 2003, p. 666, n° 1050.

* ²⁵³ Infra n° 348 and S.

* ²⁵⁴ A. COURET and H. NABASQUE, Securities transferable- New issues of capital- Nouveau mode- Schedules of March 25 and June 24, 2004, COp préc., n° 504-8.

* ²⁵⁵ Each time the actions are emitted with the profit of people designated by name.

* ²⁵⁶ B. PICHARD, «  Which rights for the actions said preferably  ?  », Small Posters 2005, n° 15, p. 7.

* ²⁵⁷ The article L. 228-11 C. Com. lays out indeed that the particular rights of the actions preferably are defined in the respect of the provisions of the article L. 225-10, which lets suppose that these recipients cannot preferably take share with the vote creating the actions. The article L. 225-10 C. Com. lays out that «  when the assembly deliberates on approval on contribution in kind or the granting on a particular advantage, the actions of the contributor or the recipient are not taken into account for the calculation of the majority. The contributor or the recipient is entitled to vote neither for itself, nor like agent.  »

* ²⁵⁸ A. VIANDIER, «  Actions preferably  », JCP E 2004, 1440  ; A. GUENGANT, D. DAVODET, P. ENGEL, S. of VENDEUIL and S. PAVEC, «  Actions preferably  : questions of experts  », JCP E 2005, 1045  ; ANSA, legal Committee, opinion of November 3, 2003  ; 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.  ; J. - P. LANGLAIS and G. OF KERVILER, «  New actions preferably  », Echoes, July 16-17, 2004.

* ²⁵⁹ MEDEF, actions preferably  : proposals of MEDEF for a modernization of the right of the transferable securities, rep. préc., p. 7.

* ²⁶⁰ ANSA, legal Committee, opinion of November 3, 2003.

* ²⁶¹ Rep. with the President of the Republic préc.  ; Adde, ANSA, AFEP and MEDEF, For a modern right of the companies, rep. préc., p. 67  : «  The application of the procedure of the advantages particular to the issue of shares to priority dividend or preferred stocks having caused a sharp debate, it is preferable to preferably solve precisely the question for the actions.  »

* ²⁶² Old art L. 228-11 C. Com.

* ²⁶³ Rep. préc.

* ²⁶⁴ A. VIANDIER, «  Actions preferably  », art préc.

* ²⁶⁵ A. VIANDIER, «  Actions preferably  », art préc., concludes by noting that if it were considered nevertheless that there cannot be action preferably without advantage, that would force to seek, on a case-by-case basis, by weighing the whole of the prerogatives and the restrictions, and by comparing it with those of the other actions, if the balance leans in favor of the ones- which could then be known as preferably- or others. However, this exercise is in practice impossible. Moreover, the range of this examination would be doubtful insofar as the nullity of the emission is not conceivable fault of provision express.

* ²⁶⁶ Art 55, 5° of the decree of March 23, 1967  : the statutes of the company must contain the identity of the recipients of particular advantages and the nature of those, according to general rules' applicable to the granting of such advantages. However, the creation of the actions preferably gives place to the application of the procedure of the particular advantages when the actions are emitted with the profit of one or more shareholders designated by name, which will be often the case.

* ²⁶⁷ Rep. with the President of the Republic préc.

* ²⁶⁸ Infra Nos 152, 154.

* ²⁶⁹ Infra n° 243 and S. for a more detailed study.

* ²⁷⁰ Supra Nos 116, 126.

* ²⁷¹ V.J. - J. DAIGRE, france MONOD and france BASDEVANT, «  Actions with financial privileges  », Practical Acts and financial engineering, March-April 1997, n° 32  ; F. - D. POITRINAL, «  Preferred stocks  : until where can one go  ?  », Banks & Droit 1998, n° 57, p. 13.

* ²⁷² Infra n° 182 and S. for the particular case of issue of shares preferably within the framework of groups of companies.

* ²⁷³ For a detailed study, v. in particular A. VIANDIER, «  Actions preferably  », art préc.  ; A. GUENGANT, D. DAVODET, P. ENGEL, S. of VENDEUIL and S. PAVEC, «  Actions preferably  : questions of experts  », art préc.

* ²⁷⁴ Rep. préc.

* ²⁷⁵ E.g. 1  000 actions preferably profit from a dividend préciputaire of 20% of their nominal presumedly equal to 100 euros  ; there are 9  000 other actions. For a distributable amount of 100  000 €, in the absence of equipment, the assignment is as follows  : 20  000 € are initially distributed as dividend préciputaire with the actions preferably, the balance (80  000 €) being distributed in the proportion of each category of capital, is 8  000 € for the actions preferably (10% of the capital) and 72  000 € for the other actions (90% of the capital). With final, the actions preferably receive 28  000 € and other actions 72  000 €, the share of the first accounting for 28% of the distribution for 10% of the capital.

* ²⁷⁶ For example, if one takes again the example quoted note 275, the actions preferably which account for 10% of the capital receive for advantage the attribution of 28% of the profit of liquidation. Another example  : the nominal one and the premium issue poured during the issue of the shares preferably is refunded firstly, the balance which can be distributed égalitairement between all the titles of capital.

* ²⁷⁷ Art L. 225-198 with L. 225-203 C. Com.

* ²⁷⁸ Actions which preserve all their rights, except the right to the first dividend and, naturally, the right to refunding of their nominal.

* ²⁷⁹ Art 1844-1, Al 2 C. civ.

* ²⁸⁰ V. ANSA, legal Committee, opinion n° 04-079 of December 1, 2004  ; «  Particular rights attaches to the actions preferably  », BRDA 10/05.

* ²⁸¹ Art L. 225-204 C. Com.

* ²⁸² Art L. 242-23 C. Com.

* ²⁸³ In this direction, A. VIANDIER, «  Actions preferably  », art préc., p. 1531.

* ²⁸⁴ Mr. GERMAIN, Treated of commercial law, T. 1, vol. 2, LGDJ, 2002, p. 324  ; B. MERCADAL and pH. JANIN, commercial Companies, Memorandum Lefebvre companies, 2005, n° 18150.

* ²⁸⁵ B. MERCADAL and pH. JANIN, commercial Companies, COp préc., n° 12171.

* ²⁸⁶ However, the stipulation can have effects limited in the event of liquidation if the insufficiency of assets does not allow refunding, even limited to half of nominal, certain actions.

* ²⁸⁷ In this direction, A. GUENGANT, D. DAVODET, P. ENGEL, S. of VENDEUIL and S. PAVEC, «  Actions preferably  : questions of experts  », art préc.

* ²⁸⁸ Such a right could be instituted within the limit of the irreducible application rights. It means that the extraordinary general assembly is held to vote two sections of new issue of capital, one made up of ordinary actions, the other of actions preferably. As safety measure, the detailed reports/ratios of the bodies of administration and control must be submitted to him as in the general case of creation of actions preferably.

* ²⁸⁹ The mixed general assembly of Alcatel of April 18, 2003 however decided to remove these actions and to transform them into ordinary actions, their course having passed from 85 to 8 €. In the United States, these actions, which met a certain success, are known under the name of «  alignment stocks  ».

* ²⁹⁰ Supra n° 140.

* ²⁹¹ Infra Nos 305, 307, 327.

* ²⁹² Infra n° 253.

* ²⁹³ Supra n° 129.

* ²⁹⁴ Art L. 228-13 C. Com.

* ²⁹⁵ The assumptions of actions without voting rights were very limited (for example, for the certificates of investment). Even for the actions with priority dividend without voting rights, the voting rights were not really removed  ; it was suspended, since the shareholder could recover it if it did not receive the priority dividends.

* ²⁹⁶ By ex, actions with voting rights double envisaged by the article L. 225-123 of the Commercial law.

* ²⁹⁷ For example, art L. 227-17 C. Com. relating to the exlusion of a associate within SAS, art L. 233-14 C. Com. relating to the obligation of declaration of crossing of threshold.

* ²⁹⁸ A. VIANDIER, «  Actions preferably  », art préc., p. 1531. Countered, Th. MASSART, «  Actions preferably and the question of the voting rights  », in the new right of the transferable securities after the reform of June 24, 2004, art préc., p. 84  : «  The literal reading of the text invites to admit that this new provision relates to only the actions for which the voting rights are completely removed  ». The author thinks that, of the blow, this limit will never be essential in practice because, «  even to the United States or in Great Britain, the actions preferably give voting rights for the resolutions relating to the assignment of the results  »  ; it adds that, in addition, any carrier of an action preferably will have, at all events, necessarily voting rights since the new article L. 228-19 of the Commercial law lays out that «  the carriers of actions preferably, made up in assembly special, have faculty to give mission to the one of the auditors of the company of preferably drawing up a special report/ratio on the respect by the company of the particular rights attached to the actions  ».

* ²⁹⁹ A. GUENGANT, D. DAVODET, P. ENGEL, S. of VENDEUIL and S. PAVEC, «  Actions preferably  : questions of experts  », art préc., p. 1161.

* ³⁰⁰ In this direction, A. VIANDIER, «  Actions preferably  », art préc., p. 1531.

* ³⁰¹ Th. MASSART, «  Actions preferably and the question of the voting rights  », art préc., p. 84.

* ³⁰² Art L. 228-11, Al 1st  C. Com.: «  These rights are defined by the statutes in the respect of the provisions of the articles L. 225-10 and L. 225-122 in L. 225-125  ».

* ³⁰³ Art L. 225-122 C. Com.  : «  each action gives right a voice at least. Any contrary clause famous is not written  ».

* ³⁰⁴ Rep. préc.

* ³⁰⁵ The finality of the text is to create a certain number of titles without voting rights. One thus should not take the text with the letter, under penalty of reducing of entry of play the range of the reform undertaken.

* ³⁰⁶ Case. Com., March 31, 2004  : JCP E 2004, 929, note A. RABREAU  ; Adde, A. VIANDIER, «  Irreducible voting rights of the usufructuary  », RJDA 2004, p. 859.

* ³⁰⁷ A. LIENHARD, «  Presentation of the ordinance reforming the transferable securities  », Dalloz 2004, p. 1959  ; Th. MASSART, «  Actions preferably and the question of the voting rights  », art préc., p. 84.

* ³⁰⁸ Art L. 225-110 C. Com.

* ³⁰⁹ A. LIENHARD, «  Presentation of the ordinance reforming the transferable securities  », art préc., p. 1959.

* ³¹⁰ Th. MASSART, «  Actions preferably and the question of the voting rights  », art préc., p. 84, are further stressing that like the German right, the Supreme court of appeal could eliminate any suppression from the voting rights of the shareholder to the reason that article 544 of the Civil code would be opposed so that the shareholder, whatever his quality, is private of his voting rights

* ³¹¹ In this direction, A. VIANDIER, «  Actions preferably  », art préc., p. 1531.

* ³¹² V. Th. MASSART, «  Actions preferably and the question of the voting rights  », art préc., p. 84.

* ³¹³ V.A. VIANDIER, «  Actions preferably  », art préc., p. 1531.

* ³¹⁴ Art L. 228-11, Al 1st  C. Com.: «  These rights are defined by the statutes in the respect of the provisions of the articles L. 225-10 and L. 225-122 in L. 225-125  ».

* ³¹⁵ Art L. 225-122 C. Com.

* ³¹⁶ Art L. 225-123 and L. 225-124 C. Com.

* ³¹⁷ Art L. 225-125 C. Com.

* ³¹⁸ Art L. 227-1 C. Com.

* ³¹⁹ In this direction, A. GUENGANT, D. DAVODET, P. ENGEL, S. of VENDEUIL and S. PAVEC, «  Actions preferably  : questions of experts  », art préc., p. 1162  ; 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., p. 12.

* ³²⁰ V.G. OF TERNAY, «  SAS and actions preferably  : modus operandi  », JCP E 2005, 568.

* ³²¹ On the interest of the issue of shares preferably by SAS, v. will infra n° 260 and S.

* ³²² Art L. 235-2-1 C. Com.

* ³²³ A. GUENGANT, D. DAVODET, P. ENGEL, S. of VENDEUIL and S. PAVEC, «  Actions preferably  : questions of experts  », art préc., p. 1162  ; 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., p. 12  ; A. VIANDIER, «  Actions preferably  », art préc., p. 1531  ; Mr. COZIAN, A. VIANDIER and F. DEBOISSY, COp cit. n° 521 and n° 533  ; A. COURET and H. NABASQUE, Securities transferable- New issues of capital- Nouveau mode- Schedules of March 25 and June 24, 2004, COp préc., n° 505  ; B. MERCADAL and pH. JANIN, commercial Companies, COp préc.  ; G. OF TERNAY, «  SAS and actions preferably  : modus operandi  », art préc., n° 8.

* ³²⁴ Th. MASSART, «  Actions preferably and the question of the voting rights  », art préc., p. 84.

* ³²⁵ A. VIANDIER, «  Actions preferably  », art préc., p. 1531.

* ³²⁶ 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., p. 13  ; A. COURET and H. NABASQUE, Securities transferable- New issues of capital- Nouveau mode- Schedules of March 25 and June 24, 2004, COp préc., n° 504-2.

* ³²⁷ Art L. 225-125 C. Com.  : «  The statutes can limit the number of voices of which each shareholder lays out in the assemblies, under the condition that this limitation is imposed on all the actions without reference to category, others that actions with priority dividend without voting rights  ».

* ³²⁸ Supra n° 152.

* ³²⁹ V. Th. MASSART, «  Actions preferably and the question of the voting rights  », art préc., p. 84  ; A. GUENGANT, D. DAVODET, P. ENGEL, S. of VENDEUIL and S. PAVEC, «  Actions preferably  : questions of experts  », art préc., p. 1162.

* ³³⁰ The risk of a sanction to the title of the prohibition of the leonine pacts is not isolated for as much.

* ³³¹ V. MEDEF, actions preferably  : proposals of MEDEF for a modernization of the right of the transferable securities, rep. préc.  ; ANSA, AFEP and MEDEF, For a modern right of the companies, rep. préc. 

* ³³² V.B. MERCADAL and pH. JANIN, commercial Companies, COp préc., n° 1832.

* ³³³ Art L. 225-96 and L. 225-98 C. Com.

* ³³⁴ In this direction, for example, Lamy commercial companies 2005, n° 3704 and 3734  ; B. MERCADAL and pH. JANIN, commercial Companies, COp préc., n° 11089.

* ³³⁵ Art L. 225-121, Al 1st C. Com.

* ³³⁶ Supra n° 154 and S.

* ³³⁷ ANSA, legal Committee, opinion n° 05-002 of January 5, 2005  ; A. GUENGANT, D. DAVODET, P. ENGEL, S. of VENDEUIL and S. PAVEC, «  Actions preferably  : questions of experts  », art préc., p. 1162. 

* ³³⁸ Rep. préc., p. 7.

* ³³⁹ Infra n° 76.

* ³⁴⁰ Art L. 225-37, Al 1st C. Com.

* ³⁴¹ Art L. 225-82, Al 1st C. Com.

* ³⁴² Art L. 225-37, Al 2 and L. 225-82, Al 2 C. Com.

* ³⁴³ ANSA, legal Committee, opinion n° 05-002 préc. ; A. GUENGANT, D. DAVODET, P. ENGEL, S. of VENDEUIL and S. PAVEC, «  Actions preferably  : questions of experts  », art préc., p. 1162; A. COURET and H. NABASQUE, Securities transferable- New issues of capital- Nouveau mode- Schedules of March 25 and June 24, 2004, COp préc., n° 516. 

* ³⁴⁴ ANSA, legal Committee, opinion n° 05-002 of January 5, 2005.

* ³⁴⁵ In this way, the holder of the actions preferably cannot see himself imposing a decision against his liking.

* ³⁴⁶ In other words, this right of veto actually makes it possible only to suspend a Council Decision and to subject it to a new deliberation, which should intervene within a reasonable time, e.g. within the limit of the current year.

* ³⁴⁷ For example, the decision to yield the branch of industry on which the rights of the carriers are exerted.

* ³⁴⁸ 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., p. 13  : «  are posed, like before at the time of the stipulation of such rights in the extra-statutory acts, the questions relating to the interference of the recipients in the management of the company (leader in fact) and to the respect by the latter of the social interest of the company  ».

* ³⁴⁹ B. MERCADAL and pH. JANIN, commercial Companies, COp préc., n° 18184  ; A. COURET and H. NABASQUE, Securities transferable- New issues of capital- Nouveau mode- Schedules of March 25 and June 24, 2004, COp préc., n° 516  : «  the formula appears problematic to us because it leads to confer on a member of the council a contrary capacity to the law. It is difficult to admit that the operation of a collegial body is paralyzed by only one will  ».

* ³⁵⁰ A. VIANDIER, «  Actions preferably  », art préc., p. 1532, which admits a right of veto on the acts concerning the credits of which the financial rights of the actions depend preferably.

* ³⁵¹ A. GUENGANT, D. DAVODET, P. ENGEL, S. of VENDEUIL and S. PAVEC, «  Actions preferably  : questions of experts  », art préc., p. 1162.

* ³⁵² CA Douai, May 24, 1962  : JCP 1962, II, 12871, Bastian NOTE.

* ³⁵³ In this direction, A. GUENGANT, D. DAVODET, P. ENGEL, S. of VENDEUIL and S. PAVEC, «  Actions preferably  : questions of experts  », art préc., p. 1163.

* ³⁵⁴ Supra n° 126.

* ³⁵⁵ Rep. préc.

* ³⁵⁶ Like it was known as, it is conceivable that an action preferably is not seen attached, for single particular right, that an obligation. However, in practice, one perceives badly which would be the interest of such an action.

* ³⁵⁷ V. Reference mark. plowshare Dalloz, Cah. actu., July 2004, p. 7  ; A. COURET and H. NABASQUE, Securities transferable- New issues of capital- Nouveau mode- Schedules of March 25 and June 24, 2004, COp préc., n° 524  ; A. VIANDIER, «  Actions preferably  », art préc., p. 1530.

* ³⁵⁸ The memorandum of the limited company, the fiduciary review, RF 937, 2005, n° 273.

* ³⁵⁹ On the compatibility of such obligations with the rule prohibiting to increase engagements of the shareholders, v. CA Paris, February 16, 2001  : RJDA 2001, p. 237.

* ³⁶⁰ Mr. COZIAN, A. VIANDIER and F. DEBOISSY, Company law, COp préc., n° 302.

* ³⁶¹ A. VIANDIER, «  Actions preferably  », art préc., p. 1532.

* ³⁶² Supra n° 131 and S.

* ³⁶³ On the whole of this question, v. A. COURET and H. NABASQUE, transferable Securities- New issues of capital- Nouveau mode- Schedule of March 25 and June 24, 2004, COp préc.  ; A. VIANDIER, «  Actions preferably  », art préc.  ; ANSA, legal Committee, opinion n° 04-080 of December 1, 2004  ; A. GUENGANT, D. DAVODET, P. ENGEL, S. of VENDEUIL and S. PAVEC, «  Actions preferably  : questions of experts (2nd part)  », JCP E 2005, 1086  ; 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. 

* ³⁶⁴ On the conditions of issue of the shares preferably within a group of companies, v. will infra n° 138 and S.

* ³⁶⁵ The initial text of the ordinance of June 24, 2004, by an inadvertency of the legislator, had «the company» and not «in the company»; this material error was corrected by the law n° 2004-1343 of December 9 2004 of simplification of the right, whose article 78-XXVII ratifies the ordinance.

* ³⁶⁶ In this direction, A. VIANDIER, «  Actions preferably  », art préc., p. 1533  ; A. COURET and H. NABASQUE, Securities transferable- New issues of capital- Nouveau mode- Schedules of March 25 and June 24, 2004, COp préc., n° 530-2  ; A. GUENGANT, D. DAVODET, P. ENGEL, S. of VENDEUIL and S. PAVEC, «  Actions preferably  : questions of experts (2nd part)  », art préc., p. 1215  ; 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., p. 14  ; P.D' HOIR, the reform of the transferable securities & new issues of capital, COp préc.

* ³⁶⁷ ANSA, legal Committee, opinion n° 04-080 of December 1, 2004. 

* ³⁶⁸ For example, art L. 225-110 C. Com. for the usufructuary.

* ³⁶⁹ G. BARANGER, «  The beautiful simplification of the right  », art préc., p. 161.

* ³⁷⁰ The article L. 227-9, subparagraph 1st of the Commercial law lays out indeed that «  the statutes determine the decisions which must be made collectively by the associates under the forms and conditions that they provide  », subject to some exceptions enumerated with subparagraph 2 of the article.

* ³⁷¹ A. VIANDIER, «  Actions preferably  », art préc., p. 1533. 

* ³⁷² On this jurisprudence, v. Mr. COZIAN, A. VIANDIER and F. DEBOISSY, Company law, COp préc., n° 1338 and S.- That will result in checking the existence of an economic interest or financier between the transmitting company and the company third, exceeding the only bond in capital, and founded on a policy worked out by the whole of the group, to still seek if the third company which supports the particular rights, enjoys or will enjoy balanced counterparts, and to make sure finally that the continuity of exploitation of the debtor company of the particular rights is not threatened.

* ³⁷³ CA Paris, January 25, 2002  : JCP E 2002, 851, n° 7, obs. A. VIANDIER and J. - J. CAUSSAIN  : there should not be disproportion between the provided services and the royalties paid n the other hand.

* ³⁷⁴ V. in particular EC, 9th and 10th pennies. Joined together, November 23, 2001  : Bull. Jolly 2002, p. 362, in connection with the distribution of the losses between a subsidiary company and his/her mother  ; Adde Mr. COZIAN, great principles of the taxation of the companies, Litec, 1999, 4th ED., p. 91 and S.

* ³⁷⁵ In this direction, A. VIANDIER, «  Actions preferably  », art préc., p. 1533  ; A. GUENGANT, D. DAVODET, P. ENGEL, S. of VENDEUIL and S. PAVEC, «  Actions preferably  : questions of experts (2nd part)  », art préc., p. 1217. 

* ³⁷⁶ Supra n° 189 to 191.

* ³⁷⁷ ANSA, legal Committee, opinion n° 04-080 of December 1, 2004. - Supra n° 189.

* ³⁷⁸ Infra n° 101.

* ³⁷⁹ One is still unaware of which tax treatment will be reserved for such distributions profiting with people who are not associated a debtor company.

* ³⁸⁰ J. - P. GALL and A. VIANDIER, «  The dividend accesses, a French model  », JCP E 1991, I, 103, spéc. n° 60.

* ³⁸¹ Art L. 228-93, Al 1st C. Com.  : «A joint stock company can emit transferable securities giving access to the capital of the company which has directly or indirectly more half of its capital or company of which it has directly or indirectly more half of the capital  ».

* ³⁸² Supra n° 189.

* ³⁸³ Supra n° 158.

* ³⁸⁴ V. note 366.

* ³⁸⁵ Supra n° 189.

* ³⁸⁶ In this direction, A. GUENGANT, D. DAVODET, P. ENGEL, S. of VENDEUIL and S. PAVEC, «  Actions preferably  : questions of experts (2nd part)  », art préc., p. 1215.

* ³⁸⁷ In this direction, A. VIANDIER, «  Actions preferably  », art préc., p. 1534  ; A. COURET and H. NABASQUE, Securities transferable- New issues of capital- Nouveau mode- Schedules of March 25 and June 24, 2004, COp préc., n° 530-2. 

* ³⁸⁸ Supra n° 200.

* ³⁸⁹ Naturally, these consequences should not be disproportionate and thus dissuasive.

* ³⁹⁰ Art L. 228-11, Al 1st C. Com.

* ³⁹¹ Infra n° 260.

* ³⁹² Law n° 90-1258 of December 31, 1990, OJ n° 4 of January 5, 1991.

* ³⁹³ In this direction, A. VIANDIER, «  Actions preferably  », art préc., p. 1535  ; A. GUENGANT, D. DAVODET, P. ENGEL, S. of VENDEUIL and S. PAVEC, «  Actions preferably  : questions of experts  », art préc., p. 1157. 

* ³⁹⁴ Art 5 L. Dec. 31, 1990.

* ³⁹⁵ Art 8 L. Dec. 31, 1990.

* ³⁹⁶ Art L. 225-127, Al 1st C. Com.

* ³⁹⁷ Supra n° 16 and S.

* ³⁹⁸ Infra n° 221 and S., n° 279 and S.

* ³⁹⁹ The same article also evokes in fine  : «  [...] unless the whole of the actions are not the subject of a conversion into actions preferably  ».

* ⁴⁰⁰ V. in particular art L. 228-12, Al 1st and L. 228-14 C. Com.

* ⁴⁰¹ In this direction, A. VIANDIER, «  Actions preferably  », art préc., p. 1535  ; A. GUENGANT, D. DAVODET, P. ENGEL, S. of VENDEUIL and S. PAVEC, «  Actions preferably  : questions of experts  », art préc., p. 1157  ; 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., p. 12.

* ⁴⁰² Art L. 228-11, Al 1st, art L. 228-15, Al 1st C. Com.

* ⁴⁰³ Old art L. 228-12 C. Com., become art L. 228-35-3 C. Com.

* ⁴⁰⁴ Art L. 228-14, Al 1st C. Com.

* ⁴⁰⁵ Supra n° 212.

* ⁴⁰⁶ Art L. 228-34 and L. 228-35-7, Al 1st C. Com.

* ⁴⁰⁷ Art L. 228-33 and L. 228-35-7, Al 2 C. Com.

* ⁴⁰⁸ Art L. 228-15, Al 2 C. Com.

* ⁴⁰⁹ V.B. MERCADAL and pH. JANIN, commercial Companies, COp préc., n° 21440.

* ⁴¹⁰ Art L. 232-18, Al 2 C. Com.  : «  When there are categories different of actions, the general assembly ruling on the accounts of the exercise to faculty to decide that the subscribed actions will be same category as the actions having given right to the dividend or the installments on dividend «.

* ⁴¹¹ V.A. VIANDIER, «  Actions preferably  », art préc., p. 1535. 

* ⁴¹² Art L. 232-18, Al 3 C. Com.  : «  Of payment of the dividend or the installments on stock dividend must be quoted simultaneously with all the shareholders  ».

* ⁴¹³ B. MERCADAL and pH. JANIN, commercial Companies, COp préc., n° 25215.

* ⁴¹⁴ Bull. COB May 1983, p. 5.

* ⁴¹⁵ Supra n° 152.

* ⁴¹⁶ In this direction, A. VIANDIER, «  Actions preferably  », art préc., p. 1535.

* ⁴¹⁷ In SAS, attributions reserved for the extraordinary general assemblies of matter SA in particular of new issue of capital and, consequently, creation of actions preferably in the course of social life are exerted by the associates under the conditions envisaged by the statutes (assembled, written consultation, decision in an act, etc)

* ⁴¹⁸ V. art L. 228-12, Al 1st C. Com.

* ⁴¹⁹ Art L. 228-12, Al 1st C. Com.

* ⁴²⁰ Art 206-2 of the decree n° 67-236 of 23 March 1967, introduced by the decree n° 2005-112 of February 10, 2005.

* ⁴²¹ Infra n° 37 and S.

* ⁴²² Art L. 228-12, Al 1st C. Com.  : «  [...].Elle can delegate this power under the conditions fixed by the articles L. 225-129 to L. 225-129-6  ».

* ⁴²³ In this direction, A. GUENGANT, D. DAVODET, P. ENGEL, S. of VENDEUIL and S. PAVEC, «  Actions preferably  : questions of experts  », art préc., p. 1157  ; ANSA, legal Committee, opinion of November 3, 2004.

* ⁴²⁴ Art L. 225-8, L. 225-14, L. 225-147 and L. 225-148 C. Com.

* ⁴²⁵ V. Mr. GERMAIN, «  Actions preferably  : the new mode of creation and suppression «, in the new right of the transferable securities after the reform of June 24, 2004, art préc.

* ⁴²⁶ On this question, v. J. - J. DAIGRE, france MONOD and france BASDEVANT, «  Actions with financial privileges  », art préc., p. 4, n° 14. 

* ⁴²⁷ In this direction, france MONOD and R. ARAKELIAN, «  Actions preferably: how to use the procedure of particular advantages?  », Small Posters 2004, n° 219, p. 8.

* ⁴²⁸ Infra n° 289 and S.

* ⁴²⁹ Old art L. 225-161, Al 5 C. Com.

* ⁴³⁰ In the condition however of reserving the rights of the bond-holders who would choose conversion.

* ⁴³¹ Old art L. 225-153 and L. 225-174 C. Com.

* ⁴³² A. GUENGANT, D. DAVODET, P. ENGEL and S. OF VENDEUIL, «  Transferable securities giving access to the capital after the ordinance of June 24, 2004  », JCP E 2005, 1129.

* ⁴³³ Infra n° 280 and S.

* ⁴³⁴ V. supra n° 182 and S.

* ⁴³⁵ Art L. 228-13 C. Com.

* ⁴³⁶ The number of voting rights is indifferent.

* ⁴³⁷ In this direction, A. GUENGANT, D. DAVODET, P. ENGEL, S. of VENDEUIL and S. PAVEC, «  Actions preferably  : questions of experts (2nd part)  », art préc., p. 1216.

* ⁴³⁸ For example, A holds 51% of B which holds 30% of C, A also holds 30% of C  ; the calculation of detention is done by addition of the participations in C  ; company A holds indirectly more half of the capital of the company C by addition of direct participation in the company C and of its indirect participation in the company C via the company B

* ⁴³⁹ Supra n° 192.

* ⁴⁴⁰ In this direction, A. GUENGANT, D. DAVODET, P. ENGEL, S. of VENDEUIL and S. PAVEC, «  Actions preferably  : questions of experts (2nd part)  », art préc., p. 1217  ; A. VIANDIER, «  Actions preferably  », art préc., p. 1533.

* ⁴⁴¹ Supra n° 222 to 224.

* ⁴⁴² It is of the decision of authorization, and not about the decision of emission which, it, intervenes on the level of the transmitting company.

* ⁴⁴³ Art L. 228-13, Al 3 C. Com.- the contents of this report/ratio is not specified by the decree of February 10, 2005. According to A. GUENGANT, D. DAVODET, P. ENGEL, S. of VENDEUIL and S. PAVEC, «  Actions preferably  : questions of experts (2nd part)  », art préc., p. 1217, the report/ratio must specify, the incidence of the operation on the situation of the holders of titles of capital and possibly on that of the holders of transferable securities giving access to the capital.

* ⁴⁴⁴ For lack of provision express, the absence of decision of the third company is not the cause of nullity. That the particular rights matching the actions preferably will not be opposable, therefore exerçables thus should be considered, in the third company, if the authorization were not granted or if it were it by an imperfect resolution.

* ⁴⁴⁵ Supra n° 225 and S.

* ⁴⁴⁶ In this direction, A. GUENGANT, D. DAVODET, P. ENGEL, S. of VENDEUIL and S. PAVEC, «  Actions preferably  : questions of experts (2nd part)  », art préc., p. 1217  ; A. VIANDIER, «  Actions preferably  », art préc., p. 1533.

* ⁴⁴⁷ Infra n° 262 and n° 263.

* ⁴⁴⁸ Modulation of the voting rights attached to the actions, dubious legal status of the preferred stocks, outdatedness of the actions with priority dividend without voting rights, etc

* ⁴⁴⁹ But it is also the case of the SCA, which, being the separation of the capital and the capacity, offer solutions more distinct than the issue of shares preferably.

* ⁴⁵⁰ Report/ratio with the President the Republic, rep. préc.

* ⁴⁵¹ Supra n° 152 and n° 154.

* ⁴⁵² Supra n° 176.

* ⁴⁵³ B. MERCADAL and pH. JANIN, commercial Companies, COp préc., n° 18510  ; B. MERCADAL, right Contracts and of the company, Lefebvre Memorandum, 2004, n° 8029.

* ⁴⁵⁴ These conditions, affirmed by article 900-1 of the Civil code for the clauses of inalienability affecting a given or bequeathed good, result from the decisions of the courts for the clauses introduced into sales, in particular of the transfers of shares, or in other contracts. V. in particular CA Paris, May 4, 1982  : Gas. Stake. 1983, p. 152.

* ⁴⁵⁵ Art L. 227-13 C. Com.

* ⁴⁵⁶ B. MERCADAL and pH. JANIN, commercial Companies, COp préc., n° 16125. 

* ⁴⁵⁷ Art L. 112-2, Al 1st C. my. end. - V.B. MERCADAL and pH. JANIN, commercial Companies, COp préc., n° 2864  ; B. MERCADAL, right Contracts and of the company, COp cit., n° 5775 and S.

* ⁴⁵⁸ V. Case. 1ère civ., October 6, 1982  : Bull. civ. I, n° 276.

* ⁴⁵⁹ Case. Com., November 3, 1988  : Dalloz 1989, n° 93, Malaurie NOTE.

* ⁴⁶⁰ Art 1174 C. civ.

* ⁴⁶¹ Case. Com., June 18, 1996  : BRDA 15/96, p. 3  : validity of a clause of fixing of the price compared to a future assessment  ; Case. Com., January 16, 2001  : Bull. Jolly 2001, p. 391  : validity of a price variation clause according to a rectifying assessment established by a professional, assignees having a right of control  ; CA Versailles, June 27, 2003  : RJDA January 2004, n° 52  : validity of a formula of price referring to an average of results.

* ⁴⁶² The EBITDA (Earning before interest tax depreciation and amortization) is the operational result (EBIT) before depreciation and damping. This concept is thus rather close to the concept of rough surplus of exploitation (EBB) in the French practices. It measures the pre-tax cash flow (before tax on the result) and financial elements. The EBITDA is thus systematically higher than the EBIT and can be regarded as a very good indicator of economic profitability.

* ⁴⁶³ Case. plowshare, July 9, 1996  : Bull. civ. IV, n° 269.

* ⁴⁶⁴ Supra Nos 147, 160, 199, 201.

* ⁴⁶⁵ This principle does not relate to SAS (art L. 227-1, Al 3 C. Com.)

* ⁴⁶⁶ Case. civ., June 4, 1946  : JCP 1947, II, 3518, Bastian NOTE.

* ⁴⁶⁷ Case. Com., May 18, 1982  : Rev. companies 1983, p .71.

* ⁴⁶⁸ CA Aix-en-Provence, September 28, 1982  : Rev. companies 1983, p. 773, note J. MESTRE. - Adde, Mr. COZIAN, A. VIANDIER and F. DEBOISSY, Company law, COp préc., n° 491.

* ⁴⁶⁹ Case. Com., June 11, 1965  : RTDC 1965, p. 861, obs. R. HOUIN.

* ⁴⁷⁰ Supra n° 189 and n° 190.

* ⁴⁷¹ Art L. 228-91 C. Com.

* ⁴⁷² Art 1844-14 C. civ.  : «  The actions for annulment of the company or posterior acts and deliberations to its constitution are prescribed by three years as from the day when nullity is incurred  ».

* ⁴⁷³ Case. 3rd civ., April 26, 1989  : Bull. civ. III, n° 93

* ⁴⁷⁴ Art 1844-1, Al 2 C. civ.  : «  the stipulation allotting to a associate totality profit gotten by the company or exonerating it from the totality of the losses, that excluding a associate completely from the profit or putting at its load totality losses famous are not written  ».

* ⁴⁷⁵ CA Paris, December 5, 1983  : Dalloz 1984, 392, obs. BOUSQUET  : the provisions of article 1844-1 of the Civil code apply as goods to the clauses envisaged in the statutes as with those which are in a posterior act.

* ⁴⁷⁶ V.B. MERCADAL and pH. JANIN, commercial Companies, COp préc., n° 712. Rappr. Th. BONNEAU, «  Of some stipulations affecting the dividend of the sectoral activities  », Banking RD and financier 2000, p. 151.

* ⁴⁷⁷ Art L. 232-15, Al 1st C. Com.

* ⁴⁷⁸ Art L. 232-12 C. Com.

* ⁴⁷⁹ Art L. 225-18, L. 225-47, Al 3 and L. 225-75, Al 2 C. Com.

* ⁴⁸⁰ Art L. 225-37 and L. 225-82, Al 1st C. Com.

* ⁴⁸¹ Art L. 225-96 C. Com.

* ⁴⁸² Supra n° 154.

* ⁴⁸³ Supra n° 3.

* ⁴⁸⁴ Supra n° 227.

* ⁴⁸⁵ Art L. 225-122 C. Com.

* ⁴⁸⁶ Art L. 225-123 C. Com.

* ⁴⁸⁷ Art L. 225-125 C. Com.

* ⁴⁸⁸ The only limit in this field lies in article 1844 of the Civil code, which imposes that any associate has the right to take part in the group decisions.

* ⁴⁸⁹ V. supra n° 154.

* ⁴⁹⁰ The doctrines however are divided on this point. V. supra n° 60.

* ⁴⁹¹ Supra n° 152.

* ⁴⁹² Infra n° 266.

* ⁴⁹³ Supra n° 182 and S.

* ⁴⁹⁴ In this direction, A. VIANDIER, «  Actions preferably  », art préc., p. 1533.

* ⁴⁹⁵ Supra n° 166 and n° 167.

* ⁴⁹⁶ Supra Nos 154, 162, 190, note n° 321.

* ⁴⁹⁷ Art L. 227-1 C. Com.

* ⁴⁹⁸ Supra n° 190.

* ⁴⁹⁹ Supra n° 200 and n° 201.

* ⁵⁰⁰ In this direction, G. OF TERNAY, «  SAS and actions preferably  : modus operandi  », art préc., n° 18.

* ⁵⁰¹ The article L. 228-17 of the Commercial law relating to the protection of the rights conferred to the holders of actions preferably in the event of fusion lays out indeed, in its subparagraph 2, that in the absence of exchange counters actions conferring of the equivalent particular rights, fusion or the scission is subjected to the approval of the special assembly envisaged with the article L. 225-99.

* ⁵⁰² A. VIANDIER, «  Actions preferably  », art préc., p. 1537  ; A. COURET and H. NABASQUE, Securities transferable- New issues of capital- Nouveau mode- Schedules of March 25 and June 24, 2004, COp préc., n° 543 and S.

* ⁵⁰³ In this direction, G. OF TERNAY, «  SAS and actions preferably  : modus operandi  », art préc., n° 19.

* ⁵⁰⁴ Article 1844-1 of the Civil code lays out indeed that «  the share of each associate in the benefit and its contribution to the losses are determined with proportion of its share in the authorized capital [...], the whole except contrary clause  ». Article 1844-9 lays out  : «  After payment of the debts and refunding of the authorized capital, the division of the credit is carried out between the associates in the same proportions as their participation in the profits, except clause or contrary convention  ».

* ⁵⁰⁵ G. OF TERNAY, «  SAS and actions preferably  : modus operandi  », art préc.  : «  Faculty to stipulate privileged financial rights specifically attached to the action, via the identification of a class of shares, without resorting for as much to the issue of shares preferably, is an interpretation of the texts, prone as such to contradiction, and thus to the risk which a divergent interpretation is not essential.  »

* ⁵⁰⁶ The stipulation of particular advantages is supplied with no legal device of protection of the rights granted the recipients.

* ⁵⁰⁷ G. OF TERNAY, «  SAS and actions preferably  : modus operandi  », art préc., n° 22.

* ⁵⁰⁸ Compared to what could exist before in the pacts of shareholders, these prerogatives henceforth being able to be envisaged by the statutes thus have a validity reinforced in particular because of their opposability to the thirds.

* ⁵⁰⁹ The actions preferably allow certain assemblies, in particular an adjustment of the relations between the capacity and the capital, and are likely to support the arrival of investors within the company. However, any economic and financial project A a term. With the exit of this term, the rights carried by the actions preferably emitted will not be necessarily any more adapted to the situation of the company, either that will have to be reorganized these rights, or that they will have to be removed.

* ⁵¹⁰ Supra n° 222 and n° 223.

* ⁵¹¹ In SAS, the article L. 227-9 of the Commercial law lays out that «  attributions reserved for the extraordinary and ordinary general assemblies of the limited companies, as regards increase, of damping or reduction of capital [...]are, under the conditions envisaged by the statutes, collectively exerted by the associates  », hardly of nullity.

* ⁵¹² Supra n° 224.

* ⁵¹³ In this direction, A. GUENGANT, D. DAVODET, P. ENGEL, S. of VENDEUIL and S. PAVEC, «  Actions preferably  : questions of experts  », art préc., p. 1157  ; P.D' HOIR, the reform of the transferable securities & new issues of capital, COp préc., p. 18  ; ANSA, legal Committee, opinion of November 3, 2004.

* ⁵¹⁴ Art L. 225-129-1 C. Com.- V. supra 30 and S.

* ⁵¹⁵ Art L. 225-121, Al 1st C. Com.

* ⁵¹⁶ Art 206-2, Al 1st of the decree n° 67-236 of 23 March 1967, introduced by the decree n° 2005-112 of February 10, 2005.

* ⁵¹⁷ Report/ratio of the board of directors or the directory at the extraordinary general assembly indicating the reasons for the increase in the capital proposed as well as precise details on the walk of the social affairs since the beginning of the current year

* ⁵¹⁸ Report/ratio of the board of directors or the directory at the extraordinary general assembly when this one decides or authorizes a new issue of capital and removes the preferential duty of subscription.

* ⁵¹⁹ Report/ratio of the board of directors or the directory at the general assembly when this one fixes itself all the methods of the new issue of capital with suppression of the preferential duty of subscription

* ⁵²⁰ Report/ratio of the board of directors or the directory at the general assembly when it received a delegation of powers or competence and that it makes use of it.

* ⁵²¹ Art 206-2, Al 2 of the decree n° 67-236 of 23 March 1967, introduced by the decree n° 2005-112 of February 10, 2005.

* ⁵²² If necessary, this report/ratio is in conformity with the rules posed by article 155, like, according to cases', by articles 155-1 or 155-2 of the decree of March 23, 1967.

* ⁵²³ Supra n° 234 and S.

* ⁵²⁴ Art L. 228-13, Al 3 C. Com.

* ⁵²⁵ Supra n° 243 and S.

* ⁵²⁶ Art L. 225-99, art L. 228-16 C. Com.

* ⁵²⁷ Art L. 225-131 C. Com.

* ⁵²⁸ V.H. NABASQUE, «  Leaves the actions preferably emitted to the profit of shareholders designated by name  », Banking RD and financier 2005, p. 31.

* ⁵²⁹ J. - J. DAIGRE, france MONOD and france BASDEVANT, «  Actions with financial privileges  », art préc.

* ⁵³⁰ Report/ratio with the President of the Republic, rep. préc.

* ⁵³¹ Report/ratio with the President of the Republic, rep. préc.

* ⁵³² A. VIANDIER, «  Actions preferably  », art préc., p. 1536.

* ⁵³³ The article L. 228-15 of the Commercial law aims «  creation  » of the actions preferably.

* ⁵³⁴ Reference mark. Min. Justice with Mrs. GROSSKOST n° 43987, JOAN Q, August 24, 2004, p. 6685  ; Reference mark. Min. Justice with Mr. ADNOT n° 13315, OJ Senate Q, May 19, 2005, p. 1441. 

* ⁵³⁵ HOUPIN and BOSVIEUX, Treated, t.2, Sirey, 1927, n° 1297.

* ⁵³⁶ In this direction, A. VIANDIER, «  Actions preferably  », art préc., p. 1536.

* ⁵³⁷ It is about an exemption from the general provisions relating to the procedure of the particular advantages.

* ⁵³⁸ Art L. 228-15, Al 1st C. Com. on reference with art L. 225-8 and L. 225-14 C. Com. in the event of emission at the time of the formation of the company and L. 225-147 C. Com. in the event of emission by new issue of capital.

* ⁵³⁹ Reference mark. Min. Justice with Mr. ADNOT n° 13389, OJ Senate Q, December 23, 2004, p. 2970.

* ⁵⁴⁰ On reference of article 169, Al 2 of the decree of March 23, 1967.

* ⁵⁴¹ Similar mission is very close to that assigned to the auditors (supra n° 282) and one can wonder, if the procedure of checking of the particular advantages must be observed, if the auditors' certificate were quite necessary.

* ⁵⁴² Art 169, Al 3 of the decree of 23 March 1967, modified by the decree of February 10, 2005.

* ⁵⁴³ V.A. GUENGANT, D. DAVODET, P. ENGEL, S. of VENDEUIL and S. PAVEC, «  Actions preferably  : questions of experts  », art préc., p. 1158.

* ⁵⁴⁴ This interpretation is confirmed by the Minister for Justice  : Reference mark. Min. Justice with Mr. ADNOT n° 13315, OJ Senate Q, May 19, 2005, p. 1441.

* ⁵⁴⁵ Art 169, Al 4 of the decree of 23 March 1967, modified by the decree of February 10, 2005.

* ⁵⁴⁶ Art 169, Al 5 of the decree of 23 March 1967, modified by the decree of February 10, 2005.

* ⁵⁴⁷ Art L. 225-10, Al 1st C. Com. on reference of art L. 228-11, Al 1st C. Com.

* ⁵⁴⁸ Art L. 228-15, Al 2 C. Com.

* ⁵⁴⁹ Art 55, 5° of the decree of March 23, 1967.

* ⁵⁵⁰ Case of new issues of capital reserved for one or more people designated by name or categories of people meeting given characteristics.

* ⁵⁵¹ Case of new issues of capital reserved for one or more people designated by name or categories of people meeting determined characteristics, with suppression of the preferential duty of subscription.

* ⁵⁵² In this direction, france MONOD and R. ARAKELIAN, «  Actions preferably: how to use the procedure of particular advantages?  », art préc.

* ⁵⁵³ A. VIANDIER, «  Actions preferably  », art préc., p. 1538.

* ⁵⁵⁴ In this direction, A. GUENGANT, D. DAVODET, P. ENGEL, S. of VENDEUIL and S. PAVEC, «  Actions preferably  : questions of experts  (2nd part) «, art préc., p. 1210.

* ⁵⁵⁵ A. GUENGANT, D. DAVODET, P. ENGEL, S. of VENDEUIL and S. PAVEC, «  Actions preferably  : questions of experts  (2nd part) «, art préc., p. 1210.

* ⁵⁵⁶ Taking into account the principle according to which any associate has the right to remain in the company and cannot be excluded from it nor constrained to yield its shares or actions against its liking. V. supra n° 3.

* ⁵⁵⁷ In its opinion of November 3, 2004, the legal Committee of the ANSA strongly incites on the importance to preferably envisage a solution of exit for the actions, at least conversion into ordinary actions. Adde, Mr. GERMAIN, «  Actions preferably  : the new mode of creation and suppression «, in the new right of the transferable securities after the reform of June 24, 2004, art préc.  : «  to attack such the principle of equality within the same class of shareholders appears indeed acceptable only in so far as all these shareholders agree  ».

* ⁵⁵⁸ In this case, the respect of the provisions of the article L. 228-15, subparagraph 2 of the Commercial law is essential. V. supra n° 294. - The memorandum of the limited company, COp cit, n° 285 thinks that this procedure, which deprives the carriers concerned of the voting rights, is distinct from that planned for the particular advantages, requiring, moreover, the designation of a police chief to the contributions  ; this mode would be thus autonomous and different from that related to the creation of the actions preferably. Countered, P.D' HOIR, the reform of the transferable securities & new issues of capital, COp préc., p. 10, which estimates that the procedure of the particular advantages applies.

* ⁵⁵⁹ For example, of the actions preferably are emitted with the characteristics of the old certificates of investment, i.e. with the financial rights of the ordinary actions but without voting rights. They can be converted into actions preferably another category profiting from the same financial rights but for example with the voting rights to the ordinary general assemblies exclusively.

* ⁵⁶⁰ Rep. préc., p. 6.

* ⁵⁶¹ For example, an action preferably converted into two ordinary actions.

* ⁵⁶² For example, two actions preferably converted into an ordinary action.

* ⁵⁶³ Art L. 228-14, Al 2 C. Com.  : «  In the event of conversion of actions preferably into actions leading to a reduction of capital not moved by losses, the creditors whose credit is former to the date of the deposit at the clerk's office of the official report of deliberation of the general assembly, or of the board of directors or the directory in the event of delegation, can file opposition to conversion within the time and according to the methods fixed by decree into Council of State  ».