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

(1) Particular rights of a financial nature

195. - Right to the dividends. In what it is attached to the quality of associate, it thus appears excluded a priori to allot a right to the dividends to a person who is not associated. The legal Committee of the ANSA does not share however this point of view^377(*).

On the other hand, it is allowed that can be allotted a right to the distributions^378(*)- since those do not take the shape of dividends.

If the financial right must absolutely take the legal nature of the dividend, in particular for tax reasons^379(*), the only exit will consist in preferably emitting actions on the two levels of the transmitting company and third company and to consider them twinned ; but one leaves then the field of the article L. 228-13 of the Commercial law to approach the assemblies in form « dividend acess »^380(*).

196. - Right to the profit of liquidation. The right to the profit of liquidation being also attached to quality of associate, it calls the same remarks as previously.

197. - Right to the distributions. The dividend is not the only expression of a monetary credit and the financial right can cover very well the commitment entered into by the third company to pay an amount of money, at periods and according to an amount and methods' definite.

For example, it can be the commitment entered into by the third company to pay a given sum if, at the time of a given exercise, the transmitting company preferably does not distribute the dividend promised to the holder of the action ; or commitment of the third company to preferably compensate for the depreciations supported by the holders of actions, with the manner of the commitments outstanding through the certificates of guaranteed value.

198. - Right to the repurchase or a conversion into actions. Using the freedoms offered by the article L. 228-93 of the Commercial law^381(*), one could consider a right to the repurchase of the actions preferably, even with a conversion into actions, ordinary or preferably, third company.

(2) Particular rights as regards voting rights

199. - Voting rights when the third company is SA or a SCA. In the absence of provision express, the voting rights are indissociable quality of associate^382(*). However, the holder of the action preferably does not hold any title of capital of the third company.

Moreover, it is not possible to create certificates of voting rights because they would not enter the definition of the transferable securities; it does not appear either possible to preferably create actions to which the only voting rights would be allotted^383(*) . Also, it appears impossible to institute the voting rights with the profit of nonassociated people within the third company.

Consequently, the majority of the authors consider that the voting rights are excluded from the particular rights likely to be conferred in a third company^384(*). This analysis presents the disadvantage of reducing considerably the range of the article L. 228-13 of the Commercial law ; this is why certain members of the legal Committee of the ANSA^385(*) got busy to defend an innovative interpretation. However, in the current state of the right, and even if the article L. 228-13 mark a projection in the development of a right of the groups, prudence remains of setting and this interpretation could not prevail.

200. - Voting rights when the third company is SAS. When the third company is SAS, the above mentioned obstacles seem to grow blurred^386(*).

The conjugation of the articles L. 228-13 and L. 227-9 of the Commercial law indeed lets think that it is possible to make take part a associate of the group in the group decisions of SAS, when well even it would not be associated of this one directly, and to even make it there vote.

* ³⁷⁷ ANSA, legal Committee, opinion n° 04-080 of December 1, 2004. - Supra n° 189.

* ³⁷⁸ Infra n° 101.

* ³⁷⁹ One is still unaware of which tax treatment will be reserved for such distributions profiting with people who are not associated a debtor company.

* ³⁸⁰ J. - P. GALL and A. VIANDIER, «  The dividend accesses, a French model  », JCP E 1991, I, 103, spéc. n° 60.

* ³⁸¹ Art L. 228-93, Al 1st C. Com.  : «A joint stock company can emit transferable securities giving access to the capital of the company which has directly or indirectly more half of its capital or company of which it has directly or indirectly more half of the capital  ».

* ³⁸² Supra n° 189.

* ³⁸³ Supra n° 158.

* ³⁸⁴ V. note 366.

* ³⁸⁵ Supra n° 189.

* ³⁸⁶ In this direction, A. GUENGANT, D. DAVODET, P. ENGEL, S. of VENDEUIL and S. PAVEC, «  Actions preferably  : questions of experts (2nd part)  », art préc., p. 1215.