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

b) General rules applicable to the creation of actions preferably

221. - They are rules of procedure, having milked with the competence of the extraordinary general assembly (I), with the respect of the procedure of the particular advantages (II) and with the safeguard of the rights of certain capital or credit, stockholders (III). Moreover, the case of an emission within the framework of groups of companies calls certain particular remarks (iv).

(i) The competence of the extraordinary general assembly

222. - Under article L. 228-12 of the Commercial law ; « the extraordinary general assembly of the shareholders is only qualified to decide the issue of the shares preferably »^417(*). The solution is also worth for the conversion of the ordinary actions, in accordance with the rules controlling the competence of the extraordinary assembly, and by analogy with the opposite operation of conversion of the actions preferably into ordinary actions^418(*).

223. - The extraordinary general assembly rules within sight of a report/ratio of or directory and the special report/ratio board of directors of the auditors^419(*), the contents of these reports/ratios having been specified by decree^420(*).

The special report/ratio of the auditors has in particular as an aim to make it possible to the shareholders to become aware of the sacrifices which they will have to authorize taking into account the particular rights which will be recognized with the shareholders preferably.

224. - If the article L. 228-12 of the Commercial law lays down the competence of principle of the extraordinary general assembly to decide issue of shares preferably, it specifies then that the assembly can, as for any new issue of capital^421(*), to delegate this power to the board of directors or to the directory, in accordance with the rules applicable to the new issues of capital^422(*).

However, the article L. 228-11 requires that the particular rights of the actions preferably be defined in the statutes. It is thus not easily conceivable that the extraordinary general assembly can delegate her competence to emit actions preferably without a statutory clause defining the characteristics beforehand- in particular the nature of the allotted rights- and the mode even of these actions^423(*).

Also, generally, the extraordinary general assembly will confer a delegation of powers on the body of administration or direction to carry out the operation, after it fixed itself the characteristics of the titles to emit and amend under the condition of the final realization of the operation.

(ii) Procedure of checking of the particular advantages

225. - The article L. 228-15 of the Commercial law lays out that « creation [of the actions preferably] gives place to the application of the articles L. 225-8, L. 225-14, L. 225-147 and L. 225-148 relating to the particular advantages when the actions are emitted with the profit of one or more shareholders designated by name. In this case, the police chief with the contributions envisaged by these articles has been an auditor not having realized for five years and not carrying out a mission within the company. »

226. - This text thus imposes the respect of the procedure of checks of the particular advantages^424(*) when the right constitutes an advantage and since the possibility of acquiring actions preferably, by subscription or conversion, is not recognized with all the shareholders- i.e. in the most frequent case.

227. - Many debates surrounded this procedure, that some judge long and expensive^425(*), even awkward because paralyzing the need to act quickly. The controversy existed in connection with the old article L. 228-11 of the Commercial law relating to the actions known as of priority ; the question was to know, for lack of precision in the text, if it were necessary or not to observe the procedure of checking of the particular advantages in the event of creation of preferred stocks^426(*).

The article L. 228-15 met fine with the quarrel by settling the question explicitly.

228. - Taking into account the will of innovation desired by the text of the ordinance, and the legal framework specific founded by the articles L. 228-11 to L. 228-20 of the Commercial law, logical interpretation consists in admitting that the procedure of the particular advantages envisaged with the article L. 225-147 and required by the article L. 228-15 of the Commercial law has only like vocation to protect the shareholders excluded from the closed issue and to preferably draw their attention to the consequences of an issue of shares^427(*).

This is why we reserve thorough developments on the implementation of this procedure in the chapter devoted to protective measurements of the shareholders^428(*).

229. - However, this drafting can only astonish the expert, because in particular of the consequences which the application of the rule would generate on the assumption that the emission is made with the profit of one or more shareholders designated by name at the same time as with thirds (closed issue)- current case of figure at the time of several turns of financings in which the old shareholders take part with new investors. On this assumption, the application of the article L. 228-15 of the Commercial law would result in not applying the same procedure to all the subscribers to the same emission : for the shareholders it will be necessary to apply the procedure of the particular advantages, but not for the new third subscribers.

In addition, this rule would apply in cascade during the later new issues of capital reserved to the profit of third and shareholders. Thus, in turn, the thirds become shareholders and if they take part in a new emission at the same time as of the new investors, it is necessary to apply the procedure of the particular advantages to them.

* ⁴¹⁷ In SAS, attributions reserved for the extraordinary general assemblies of matter SA in particular of new issue of capital and, consequently, creation of actions preferably in the course of social life are exerted by the associates under the conditions envisaged by the statutes (assembled, written consultation, decision in an act, etc)

* ⁴¹⁸ V. art L. 228-12, Al 1st C. Com.

* ⁴¹⁹ Art L. 228-12, Al 1st C. Com.

* ⁴²⁰ Art 206-2 of the decree n° 67-236 of 23 March 1967, introduced by the decree n° 2005-112 of February 10, 2005.

* ⁴²¹ Infra n° 37 and S.

* ⁴²² Art L. 228-12, Al 1st C. Com.  : «  [...].Elle can delegate this power under the conditions fixed by the articles L. 225-129 to L. 225-129-6  ».

* ⁴²³ In this direction, A. GUENGANT, D. DAVODET, P. ENGEL, S. of VENDEUIL and S. PAVEC, «  Actions preferably  : questions of experts  », art préc., p. 1157  ; ANSA, legal Committee, opinion of November 3, 2004.

* ⁴²⁴ Art L. 225-8, L. 225-14, L. 225-147 and L. 225-148 C. Com.

* ⁴²⁵ V. Mr. GERMAIN, «  Actions preferably  : the new mode of creation and suppression «, in the new right of the transferable securities after the reform of June 24, 2004, art préc.

* ⁴²⁶ On this question, v. J. - J. DAIGRE, france MONOD and france BASDEVANT, «  Actions with financial privileges  », art préc., p. 4, n° 14. 

* ⁴²⁷ In this direction, france MONOD and R. ARAKELIAN, «  Actions preferably: how to use the procedure of particular advantages?  », Small Posters 2004, n° 219, p. 8.

* ⁴²⁸ Infra n° 289 and S.