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

(iii) Distribution of dividend in the form of titles of capital

216. - The article L. 228-18 of the Commercial law lays out that « The distributed dividend, if necessary, to the holders of actions preferably can be granted in titles of capital, according to methods' laid down by the extraordinary general assembly or the statutes «.

217. - In the past, this point had been very disputed in connection with the certificates of investment^409(*) ; certain authors thought indeed that the distribution of dividend in the form of titles of capital was not possible to remunerate the carriers of certificates of investment since the latter were not shareholders. The article L. 228-18, by aiming the distribution of the stock dividends at shareholders preferably, poses, him, no problem. Moreover, the article L. 232-18, subparagraph 2, lays down already the possibility of taking account of the classes of shares for such a distribution^410(*).

218. - On this subject, an interrogation is posed when one tries to put in prospect the articles L. 228-18 and L. 232-18 : the intention of the writers of the ordinance, by introducing the article L. 228-18, it was to preferably conceive for the carriers of actions a mode of distribution of the derogatory stock dividend to the common right (article L. 232-18), whose mode would be fixed by the statutes or the decision of the extraordinary general assembly ?

Certain authors answer by the affirmative^411(*). Concretely, that means that it would be in particular possible to preferably limit the offer of payment of the stock dividend to the only shareholders, contrary to the regulations of the article L. 232-18, subparagraph 3^412(*)- similar advantage being likely to constitute besides one of the particular rights attached to the action preferably.

In the same way, whereas this faculty was refused with the ordinary shareholders by the practice^413(*) and the authority of market^414(*), one should admit, if the statutory stipulation is in this direction, the possibility for the shareholder preferably of exerting partially his option of payment of the dividend in titles of capital.

219. - The distributed titles are « titles of capital », which makes it possible to preferably envisage the attribution of ordinary actions like actions. Mixing will be able to prove to be necessary to respect the ceilings of the article L. 228-11 of the Commercial law when the actions preferably are deprived of voting rights^415(*).

220. - Lastly, the article L. 228-18 leaving the care with the statutes or the decision of the extraordinary general assembly to lay down the methods of the distribution in the shape of titles of capital, it seems logical to admit that the price determination of issue of the new shares is freed from the constraints posed by the article L. 232-19 of the Commercial law^416(*).

This is justified indeed by the derogatory nature of the article L. 228-18.

* ⁴⁰⁹ V.B. MERCADAL and pH. JANIN, commercial Companies, COp préc., n° 21440.

* ⁴¹⁰ Art L. 232-18, Al 2 C. Com.  : «  When there are categories different of actions, the general assembly ruling on the accounts of the exercise to faculty to decide that the subscribed actions will be same category as the actions having given right to the dividend or the installments on dividend «.

* ⁴¹¹ V.A. VIANDIER, «  Actions preferably  », art préc., p. 1535. 

* ⁴¹² Art L. 232-18, Al 3 C. Com.  : «  Of payment of the dividend or the installments on stock dividend must be quoted simultaneously with all the shareholders  ».

* ⁴¹³ B. MERCADAL and pH. JANIN, commercial Companies, COp préc., n° 25215.

* ⁴¹⁴ Bull. COB May 1983, p. 5.

* ⁴¹⁵ Supra n° 152.

* ⁴¹⁶ In this direction, A. VIANDIER, «  Actions preferably  », art préc., p. 1535.