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

(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).

* 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.