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

2. The creation of the actions preferably

205. - The actions preferably can be emitted at the time of the formation of the company or in the course of social life^390(*).

206. - In addition to SA, the SCA and SAS can emit actions preferably. However, for these two last varieties of joint stock companies, these titles of capital present less attractions^391(*).

Beyond this unit, one can consider that the co-operative companies of anonymous form have also vocation to emit actions preferably ; these last are besides likely to facilitate the admission like associated people not having vocation to use the services of the co-operative, but intending to contribute to the achievement of its objectives.

The question also arises for the companies of liberal exercise (SALT) resulting from the law of December 31, 1990^392(*), more precisely for those which take the shape of limited company (SELAFA), in partnership limited by shares (SELCA) or by actions simplified (SELAS). The adoption of the one of these three varieties would make it possible to resort to the actions preferably^393(*). However, it is advisable to respect the requirements specific to the companies of liberal exercise : detention of half of the authorized capital and the voting rights by professionals in exercise within the company^394(*), access to the voting rights double limited to this last category of associates^395(*) ; moreover, article 9 of the law laying out that « if it is created actions with priority dividend without voting rights, those cannot be held by professionals exerting in the company », it undoubtedly should be considered, by analogy, that the actions preferably without voting rights must be reserved for different associated.

207. - The companies authorized to emit actions preferably being identified, it is advisable to preferably count the various ways open for the creation of actions (A), before considering the general rules applicable to creation of the aforesaid actions (b).

a) Ways allowing the creation of actions preferably

208. - Several ways can be considered for the creation of actions preferably. The ones are primary, the emission (I) and conversion (II), another secondary, the distribution of dividends (III).

(i) The emission

209. - The issue of shares preferably, at the time of the formation of the company or in the course of social life, by new issue of capital^396(*), whatever the nature of the contributions, is the simplest mode of creation of such actions.

210. - It is only the issue of a title of capital, which thus follows the ordinary rules of emission, as softened by the ordinance of June 24, 2004^397(*). Are added to it only particular rules of procedure which will be examined further^398(*).

(ii) Conversion

211. - Three modes of conversion are possible : the change of actions without preference in actions preferably, that of actions preferably in actions preferably of another category and that of the titles in process of extinction.

212. - The conversion of the ordinary actions into actions preferably is evoked only indirectly by subparagraph 2 of the article L. 228-15 of the Commercial law : « holders of actions having to be converted into actions preferably category to create [...] »^399(*).

Contrary to the procedure of conversion of actions preferably into ordinary actions, which makes, it, the object of several provisions^400(*), the text is less clear being the opposite, above-mentioned operation. Nevertheless, there is not a doubt that the conversion of the ordinary actions into actions preferably is also possible^401(*). The writers of the ordinance used besides on several occasions the term, neutral, of « creation » of the actions preferably^402(*), which includes/understands the emission, but does not certainly limit itself to this procedure.

The mode of the conversion of ordinary actions into actions preferably, as fixed by the statutes or the decision of the extraordinary general assembly, will be able to take as a starting point the the conversion of the ordinary actions into actions with priority dividend without voting rights, when this one was still allowed^403(*).

213. - Another possible conversion, expressly envisaged by the law this time^404(*), is the conversion of actions preferably into actions preferably of another category.

The mode of this conversion, also subjected to a decision of the shareholders brought together in extraordinary assembly or, more simply, to the statutory stipulations, not being specified by the law, we return to the preceding developments^405(*).

214. - A last procedure of conversion is possible and relates to the titles called in process of extinction : actions with priority dividend without voting rights, certificates of investment.

In order to facilitate and to accelerate the disappearance of these titles, the legislator imagined several solutions. Thus, for the holders of actions to priority dividend without voting rights or for the carriers of certificates of investment, it to them is granted a right to subscribe of the actions preferably, and not of the titles of the category in way of extinction, in the event of new issue of capital in cash^406(*). In the same way, in the event of free distribution of actions, in fact actions preferably will be given to them^407(*).

215. - It remains to be specified that, except if the whole of the actions is the subject of a conversion into actions preferably, the holders of actions having to be converted into actions preferably are private voting rights at the time of the deliberation which creates them^408(*).

* ³⁹⁰ Art L. 228-11, Al 1st C. Com.

* ³⁹¹ Infra n° 260.

* ³⁹² Law n° 90-1258 of December 31, 1990, OJ n° 4 of January 5, 1991.

* ³⁹³ In this direction, A. VIANDIER, «  Actions preferably  », art préc., p. 1535  ; A. GUENGANT, D. DAVODET, P. ENGEL, S. of VENDEUIL and S. PAVEC, «  Actions preferably  : questions of experts  », art préc., p. 1157. 

* ³⁹⁴ Art 5 L. Dec. 31, 1990.

* ³⁹⁵ Art 8 L. Dec. 31, 1990.

* ³⁹⁶ Art L. 225-127, Al 1st C. Com.

* ³⁹⁷ Supra n° 16 and S.

* ³⁹⁸ Infra n° 221 and S., n° 279 and S.

* ³⁹⁹ The same article also evokes in fine  : «  [...] unless the whole of the actions are not the subject of a conversion into actions preferably  ».

* ⁴⁰⁰ V. in particular art L. 228-12, Al 1st and L. 228-14 C. Com.

* ⁴⁰¹ In this direction, A. VIANDIER, «  Actions preferably  », art préc., p. 1535  ; A. GUENGANT, D. DAVODET, P. ENGEL, S. of VENDEUIL and S. PAVEC, «  Actions preferably  : questions of experts  », art préc., p. 1157  ; 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., p. 12.

* ⁴⁰² Art L. 228-11, Al 1st, art L. 228-15, Al 1st C. Com.

* ⁴⁰³ Old art L. 228-12 C. Com., become art L. 228-35-3 C. Com.

* ⁴⁰⁴ Art L. 228-14, Al 1st C. Com.

* ⁴⁰⁵ Supra n° 212.

* ⁴⁰⁶ Art L. 228-34 and L. 228-35-7, Al 1st C. Com.

* ⁴⁰⁷ Art L. 228-33 and L. 228-35-7, Al 2 C. Com.

* ⁴⁰⁸ Art L. 228-15, Al 2 C. Com.