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Company Law (en cours)

When the capital increase is carried out by cash contributions, Articles L. 225-131 and L. 225-149-3 of the Commercial Code require that the capital be fully paid up before any new shares are issued, under penalty of nullity of the operation, or even criminal sanctions against the directors . Subscribers do not violate these provisions when, in the context of such an operation, they authorize the  …

Capital increase through contributions in cash

When the capital increase is carried out by cash contributions, Articles L. 225-131 and L. 225-149-3 of the Commercial Code require that the capital be fully paid up before any new shares are issued, under penalty of nullity of the operation, or even criminal sanctions against the directors . Subscribers do not violate these provisions when, in the context of such an operation, they authorize the company to use the funds advanced temporarily to meet an urgent liquidity need, as long as these circumstances do not allow the subscription to be considered irregularly made by offsetting with advances in current accounts . Article L. 225-131 specifies that if the capital increase by public offering is carried out at least two years after the company's formation, it must be preceded by a verification of the assets and liabilities and, if applicable, any special benefits granted, under penalty of nullity of the operation.

The completion of a capital increase requires the unconditional consent of the shareholders, particularly with regard to the requirement for full payment upon subscription. They cannot therefore claim to participate in a cash increase while asserting a set-off, especially in the absence of a certain and payable claim against the company . Before the subscription, Article L. 225-142 requires the company to carry out publicity formalities by means of a notice containing the information prescribed by Article R. 225-120 of the Commercial Code , unless the general meeting has waived the shareholders' preferential subscription right .

If the company does not proceed by public offering, it must send its shareholders, at least fourteen days before the closing of subscriptions, a notice describing the terms of the operation. If not all of the company's shares are in registered form, the notice containing these details is inserted, within the same period, in a notice published in the Bulletin of Mandatory Legal Announcements.

Article L. 225-128 provides that new shares resulting from contributions in cash may be issued at their nominal value, increased by an issue premium. The issue premium aims to equalize the rights between existing and new shareholders. It must be fully paid upon subscription. Its determination is free but may be subject to control in case of suspected fraud.

CA Paris, 14 March 1990, LawLex202300012010JBJ.

Cass. com., 25 June 2013, LawLex202200005537JBJ.

The notice must indicate: 1° The company name, followed, if applicable, by its acronym; 2° The form of the company; 3° The amount of the share capital; 4° The address of the registered office; 5° The mentions provided for in 1° and 2° of Article R. 123-237; 6° The amount of the capital increase and, if applicable, the additional amount of the capital increase based on Article L. 225-135-1; 7° The opening and closing dates of the subscription; 8° The existence, for the benefit of shareholders, of the preferential subscription right for new shares or securities giving access to capital, the conditions for exercising this right, as well as its trading terms when detached from negotiable shares; 9° The nominal value of the shares or securities giving access to capital to be subscribed in cash, whether or not this value is stated in the statutes, and, if applicable, the amount of the issue premium; 10° The amount immediately payable per share or security giving access to subscribed capital; 11° The name or company name, the address of the residence or registered office of the depositary; 12° If applicable, the brief description, evaluation, and method of remuneration of contributions in kind included in the capital increase, indicating the provisional nature of this evaluation and method of remuneration; 13° The indication that if unsubscribed shares represent more than 3% of the capital increase, the subscription will either be open to the public or limited to the amount of subscriptions received.

Company Law (en cours)

480. Capital increase through contributions in cash

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480. Capital increase through contributions in cash

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise