Withdrawal of pre-emptive subscription rights: governance, procedure and how to get it right

Updated March 2026 - The withdrawal of pre-emptive subscription rights (suppression du droit préférentiel de souscription, or DPS) is a sensitive operation in any capital increase because it directly touches the balance between fundraising efficiency, shareholder dilution and the quality of information provided to shareholders. It must be treated as a governance and procedure issue, not merely as a financial instrument.

See also better-fortune clause, converting a SARL into an SAS and special benefits auditor obligations.

Under articles L225-132 and L225-135 of the Code de commerce, the withdrawal of pre-emptive rights requires a structured legal process. Four elements must be checked and documented carefully:

• ▸the legal basis for the operation: the withdrawal must be authorised by an extraordinary general meeting of shareholders (assemblée générale extraordinaire), acting on the basis of a specific resolution and the relevant reports. The legal framework for the authorisation — including its scope, duration and amount ceiling — must be precise;
• ▸the justification for the withdrawal: the board of directors (or management board) must produce a specific report explaining why the withdrawal is proposed and in whose interest — the justification must be substantive, not formulaic;
• ▸the information provided to shareholders: shareholders must receive adequate information to assess the proposed operation, including the proposed issuance price, the basis on which it was determined, and the impact on their proportionate shareholding;
• ▸the schedule of reports and decisions: the commissaire aux comptes must produce a report on the proposed issuance price and the operation's impact. The timing of these documents, their content and their submission to shareholders before the vote are strictly regulated.

Hayot Expertise advice: on DPS withdrawal, the legal security comes from the quality of the justification and from strict procedural compliance. Operations that are challenged — at the AGM or subsequently — are almost always those where the rationale was inadequately documented or where the procedure was cut short.

We can help you review the legal logic and the procedural calendar to ensure the operation is properly structured and protected.

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In 2026, DPS withdrawal must be managed as a governance and procedure issue before it is treated as a financing mechanism. The legal and procedural framework exists to protect both the company and its shareholders — and compliance with it is what prevents a challenged transaction from becoming a costly dispute.

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