Bankruptcy Law

When the draft plan provides for an amendment of the capital or the articles of association, Article L. 626-3(1) of the Commercial Code requires the convening of the extraordinary general assembly or the assembly of the partners as well as, when their approval is necessary, of the special assemblies or general assemblies of the masses. Indeed, the judgment which adopts the plan cannot impose, but  …

Transactions on the share capital

When the draft plan provides for an amendment of the capital or the articles of association, Article L. 626-3(1) of the Commercial Code requires the convening of the extraordinary general assembly or the assembly of the partners as well as, when their approval is necessary, of the special assemblies or general assemblies of the masses. Indeed, the judgment which adopts the plan cannot impose, but only mention, changes in the capital of the debtor company, which must be voted by the assembly of the partners having jurisdiction  . The assemblies are convened in accordance with the ordinary procedures, applicable even outside of any insolvency procedure . With regard to the convening of assemblies of a public limited company (société anonyme) or a partnership limited by shares (société en commandite par actions), Article R. 626-2 nevertheless provides that: the notice must indicate the date on which the second assembly may be held, if the first meeting fails to reach the required quorum; a request for the inclusion of an item or a draft resolution by the shareholders on the agenda of the meeting must be sent to the headquarters at least fifteen days before the date of the assembly convened on first notice; a period of at least six days must separate the two assemblies.

Article L. 626-3 adds that the court may decide that the assembly having jurisdiction must decide on amendments to the articles of association, on first call, by a majority of the votes held by the partners or shareholders present or represented, provided that they hold at least half of the shares entitled to vote. On the second call, the ordinary law provisions relating to quorum and majority apply.

When, as a result of losses recorded in the accounting documents, the shareholders' equity is less than half of the share capital, the assembly must first be called upon to reconstitute this capital up to the amount proposed by the receiver, which may not be less than half of the share capital. It may also be called upon to decide on the reduction and increase of the capital in favor of one or more persons who undertake to perform the plan. An operation to reduce the capital to zero and a consequent cancellation of the bonds redeemable in shares, which affects the conditions of allocation of capital securities determined at the time of issue, implies a prior convocation of the general assembly of bondholders to decide on such an operation . When the capital of a debtor company is reduced to zero, with a view to its subsequent increase, the class of bondholders remains as long as their rights have not been definitively ruled upon . The alternative plan proposal of a partner of the debtor company is admissible notwithstanding the opposition of another partner, where it provides for an increase in the company's capital by opening it up to a third party with the aim of discharging the verified liabilities and remedying the risk of the loss of his lease . On the other hand, a person who claims to be the sole partner of the debtor company must be able to have his rights as a partner recognized against those who have undertaken, in the context of the preparation of the plan, to subscribe to an increase in capital, by contesting the collective decision amending the articles of association without his agreement, which is prejudicial to him .

Article L. 626-3(3) emphasizes that the commitments made by shareholders or partners or by new subscribers are subordinated in their execution to the acceptance of the plan by the court. Although the judgment approving the plan may not impose a capital increase, it does not prevent a partner who has a grievance against it from seeking the nullity of the general assembly that gave rise to this decision . However, a partner in a debtor company who considers that a decision to increase the company's capital would reduce his capacity to assert his rights in the decision-making process if a third party were to be admitted to the capital, is not entitled to apply for a withdrawal of the decision that granted it, where his attitude during the insolvency procedure and the legal dispute with the company of which he is a manager show that he did not demonstrate a real and serious desire to participate in this increase in capital in the same proportions as the third party .

Finally, in the event of an increase in the share capital provided for in the draft plan, the partners or shareholders may benefit from the set-off up to the amount of their admitted claims and within the limit of the reduction to which they are subject in the draft plan .

Cass. com., 15 January 1991, LawLex202100001795JBJ (RJ); 2 July 2013, LawLex202200004153JBJ (RJ).

Cass. com., 10 July 2012, LawLex202200004119JBJ (S).

Cass. com., 10 July 2012, cited above; CA Paris, 28 June 2011, LawLex202200004308JBJ (S).

CA Versailles, 16 March 2021, LawLex202200004303JBJ (RJ).

CA Paris, 22 January 2015, LawLex202200004286JBJ (RJ).

CA Versailles, 18 January 2022, LawLex202200004293JBJ (RJ).

Bankruptcy Law

246. Transactions on the share capital

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246. Transactions on the share capital

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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