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

(2) Other political rights

169. - Right of information reinforced. This right could relate for example to the intercalated budgets, countable situations, the projects of investment, etc

These rights are however to consider with prudence being of a company calling public upon the saving and problems of privileged information.

170. - Right of control. They can be a right of control specific of management or accounts entrusted to an expert appointed by the carriers of actions preferably, according to preset methods'.

171. - Advantages of a commercial nature. It will be advisable however to take care to respect the social interest, the particular right in addition having to be compatible with the taxation rules in particular.

172. - Representation with the monitoring or board of directors. In oneself, a clause ensuring the necessary representation of the holders of actions preferably to the monitoring or board of directors is not new.

Under the former legislation, the existence of groups of shareholders justified the creation of classes of shares and the reservation of one or more posts of administrators to the profit of the titular shareholders of each category. For a long time, jurisprudence admits the possibility of envisaging in the statutes the representation with the council of holders of a certain class of shares, provided that the appointment of this (these) administrator (S) continues to raise of the only ordinary general assembly- except co-optation of the council- and that this one preserves the choice between several candidates and the capacity to revoke any administrator^352(*).

By prudence, the conditions fixed by jurisprudence must be observed when the actions preferably ensure their holders a right of representation to the monitoring or board of directors^353(*). Indeed, nothing in the provisions specific to the actions preferably derogates from the general rules relating to the appointment and the revocation of the administrators or members of the board of trustees.

173. - Right of pre-emption. One can consider a clause which would allot to the only holders shares preferably a right of pre-emption.

174. - If the particular rights evoked in the preceding developments and whose practice will supplement the list preferably constitute advantages attached to the actions, those can also comprise certain obligations, which will generally condition the exercise of the rights referred to above.

(iv) Particular obligations

175. - Like he was said^354(*), the report/ratio with the President of the Republic specified that the actions preferably could « to be equipped with particular obligations and to be the subject of restrictions »^355(*). It is indeed equitable that the recognized prerogatives some answer « constraints » as that meets sometimes as regards actions with financial privileges^356(*).

176. - Particular mode of transmission. One could imagine that such actions preferably would be subjected to a clause of inalienability or on the contrary declared freely transferable.

Between these two extreme characteristics, their transmission can be subjected to a right of pre-emption or to a certification which would distinguish them from the rules applicable to the ordinary actions.

177. - Suppression of the preferential duty of subscription. The first commentators consider that the preferential duty of subscription, basic right attache to the action, could not be modified nor removed, and this because of the provisions of the second European directive of December 13, 1976^357(*).

An author underlines however that the article L. 225-132 of the Commercial law resulting from the ordinance does not show any more the provision according to which any clause depriving a shareholder of his preferential duty of subscription famous is not written^358(*).

178. - Obligations of a financial nature. One can conceive the commitment to leave while compte courant, for one determined period, whole or part of the incomes gotten by the action preferably.

One can also imagine an obligation to answer the basic calls under prefixed conditions^359(*).

179. - Necessary qualities to be titular actions preferably. It is possible, when the transfer of the actions preferably is possible, to make play clauses of quality by which the detention of actions preferably supposes to satisfy certain conditions^360(*) : not competitor or not to be invested in a concurrent company, to exert such or such activity, to have a notation of a determined level, etc Failing this, the actions preferably are automatically degraded, i.e. converted into ordinary actions.

180. - Compared to what could exist before in the pacts of shareholders, these prerogatives being able from now on to be envisaged by the statutes have a reinforced validity, in particular because of their opposability to the thirds.

181. - These various solutions and considerations also vary when the actions preferably are emitted within a group of companies.

* ³⁵² CA Douai, May 24, 1962  : JCP 1962, II, 12871, Bastian NOTE.

* ³⁵³ In this direction, A. GUENGANT, D. DAVODET, P. ENGEL, S. of VENDEUIL and S. PAVEC, «  Actions preferably  : questions of experts  », art préc., p. 1163.

* ³⁵⁴ Supra n° 126.

* ³⁵⁵ Rep. préc.

* ³⁵⁶ Like it was known as, it is conceivable that an action preferably is not seen attached, for single particular right, that an obligation. However, in practice, one perceives badly which would be the interest of such an action.

* ³⁵⁷ V. Reference mark. plowshare Dalloz, Cah. actu., July 2004, p. 7  ; A. COURET and H. NABASQUE, Securities transferable- New issues of capital- Nouveau mode- Schedules of March 25 and June 24, 2004, COp préc., n° 524  ; A. VIANDIER, «  Actions preferably  », art préc., p. 1530.

* ³⁵⁸ The memorandum of the limited company, the fiduciary review, RF 937, 2005, n° 273.

* ³⁵⁹ On the compatibility of such obligations with the rule prohibiting to increase engagements of the shareholders, v. CA Paris, February 16, 2001  : RJDA 2001, p. 237.

* ³⁶⁰ Mr. COZIAN, A. VIANDIER and F. DEBOISSY, Company law, COp préc., n° 302.