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

(iii) The protection of certain stockholders of credit or titles of capital

230. - Before with the ordinance of June 24, 2004, in the event of convertible obligation, the transmitting company could not « to modify the distribution of the benefit »^429(*), except the case of creation of actions to priority dividend^430(*). The same device existed for the other made up transferable securities^431(*). There it was a question of protecting the carriers from such titles.

231. - The ordinance took again this device in the softener. The article L. 228-98 of the Commercial law states indeed, with the second subparagraph : « [the transmitting company] cannot [...] to modify the rules of distribution of its benefit [...] unless being authorized there by the contract of emission [...] and subject making the provisions necessary to the maintenance of the rights of the holders of the transferable securities giving access to the capital under the conditions defined in the article L. 228-99 ».

The following subparagraph adds, in connection with the actions preferably : « Under these same reserves, it can however create actions preferably ».

232. - It seems that the protection of the rights of the carriers must be guaranteed while at the same time the issue of the shares preferably would be reserved. However, this conclusion results in to grant more rights to prospective shareholders than to the existing shareholders. For certain authors, such a protection of the rights of the carriers appears to have direction only insofar as the creation of the actions preferably affects the distribution of the benefit as seems to suggest it the article L. 228-99, subparagraph 1st in fine of the Commercial law^432(*).

233. - It is necessary also to take care of the protection of the shareholders preferably preexistent. It can indeed happen that after having emitted actions preferably together with particular financial rights, the company wishes to preferably give a priority higher than new actions, to some extent degrading the statute of the carriers of the initial category.

That preferably poses the problem of the protection of the carriers of actions in general ; also, we return to the later developments devoted to this protection^433(*).

(iv) The emission within the framework of a group of companies

234. - The issue of shares preferably within the framework of groups of companies^434(*) calls some particular requirements, in addition to those mentioned in the preceding developments.

235. - There is initially a basic condition, which is due to the existence of a majority bond in capital^435(*) : the actions preferably of the mother can confer particular rights in the subsidiary company, or reciprocally, if the first holds more half of the capital of the second^436(*)- what is the criterion even of the definition of the subsidiary company according to the article L. 233-1 of the Commercial law.

The article L. 228-13 aims at the direct and indirect possession. The concept of indirect possession must be appreciated in chain, company by company^437(*). Thus, each company must hold at least half of the capital of following so that indirect detention is characterized. Conversely, if one of the companies holds less than 50% of the capital of the following company, indirect detention cannot be characterized, the chain of majority detentions being broken^438(*).

This requirement of bond in capital is not a simple contemporary constraint of the emission, but a condition having to be satisfied during all the lifespan with the actions preferably^439(*).

236. - On the other hand, the shape of the third company is indifferent : since the transmitting company is a joint stock company, the nature of the subsidiary third- company or holding- imports little^440(*). It could be a question of a civil or commercial company, among these last SAS offering of the facilities suitable to more easily allow the exercise of the particular rights whose action preferably is matched.

The article L. 228-13, subparagraph 3 of the Commercial law lays down however the intervention of the auditor of the third company. Also, the third company, whatever its form, will have to be equipped with an auditor or will have to indicate one of them beforehand. Moreover, its own mode will not have obviously to make obstacle with the execution in its center of the particular rights attached to the actions preferably.

237. - Being the formal requirements, the issue of shares preferably follows, at the transmitting company, the same applicable mode as that when the particular rights are exerted within the transmitting company itself^441(*).

In addition, under article L. 228-13, subparagraph 2 of the Commercial law, the extraordinary general assembly of the third company must authorize the emission^442(*), ruling within sight of the special report/ratio of the auditor^443(*). This decision preferably recognizes the existence of the actions and the opposability of the particular rights with which they are equipped^444(*).

238. - Whereas the procedure of the particular advantages must be possibly observed on the level of the transmitting company, by application of the article L. 228-15 of the Commercial law^445(*), nothing is not says being the assembly of authorization within the third company. The silence of the legislator could not however be worth exemption to observe the aforementioned procedure since the conditions are met by it^446(*).

This conclusion is worth only if the third company is a joint stock company and among those is still necessary it to treat SAS distinctly, within which the particular provisions relating to the political rights do not constitute particular advantages^447(*).

239. - The issue of shares preferably in SAS is besides far from being of same interest that in SA and causes, moreover, various interrogations which do not have, seems it, not anticipated by the writers of the ordinance of June 24, 2004.

There one can see there a limit with the contractual freedom offered by the actions preferably, just like one must keep in mind which it is not possible to create of the actions preferably to the contents various without taking care to respect the law and order, and in particular that of the company law.

* ⁴²⁹ Old art L. 225-161, Al 5 C. Com.

* ⁴³⁰ In the condition however of reserving the rights of the bond-holders who would choose conversion.

* ⁴³¹ Old art L. 225-153 and L. 225-174 C. Com.

* ⁴³² A. GUENGANT, D. DAVODET, P. ENGEL and S. OF VENDEUIL, «  Transferable securities giving access to the capital after the ordinance of June 24, 2004  », JCP E 2005, 1129.

* ⁴³³ Infra n° 280 and S.

* ⁴³⁴ V. supra n° 182 and S.

* ⁴³⁵ Art L. 228-13 C. Com.

* ⁴³⁶ The number of voting rights is indifferent.

* ⁴³⁷ 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. 1216.

* ⁴³⁸ For example, A holds 51% of B which holds 30% of C, A also holds 30% of C  ; the calculation of detention is done by addition of the participations in C  ; company A holds indirectly more half of the capital of the company C by addition of direct participation in the company C and of its indirect participation in the company C via the company B

* ⁴³⁹ Supra n° 192.

* ⁴⁴⁰ 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. 1217  ; A. VIANDIER, «  Actions preferably  », art préc., p. 1533.

* ⁴⁴¹ Supra n° 222 to 224.

* ⁴⁴² It is of the decision of authorization, and not about the decision of emission which, it, intervenes on the level of the transmitting company.

* ⁴⁴³ Art L. 228-13, Al 3 C. Com.- the contents of this report/ratio is not specified by the decree of February 10, 2005. According to A. GUENGANT, D. DAVODET, P. ENGEL, S. of VENDEUIL and S. PAVEC, «  Actions preferably  : questions of experts (2nd part)  », art préc., p. 1217, the report/ratio must specify, the incidence of the operation on the situation of the holders of titles of capital and possibly on that of the holders of transferable securities giving access to the capital.

* ⁴⁴⁴ For lack of provision express, the absence of decision of the third company is not the cause of nullity. That the particular rights matching the actions preferably will not be opposable, therefore exerçables thus should be considered, in the third company, if the authorization were not granted or if it were it by an imperfect resolution.

* ⁴⁴⁵ Supra n° 225 and S.

* ⁴⁴⁶ 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. 1217  ; A. VIANDIER, «  Actions preferably  », art préc., p. 1533.

* ⁴⁴⁷ Infra n° 262 and n° 263.