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

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.

* 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.