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

3. Limits with contractual freedom

240. - The liberal inspiration of the ordinance of June 24, 2004 obliges to reconcile, in an always delicate exercise, has freedom offered with the great principles of the company law which of course remains, just like the general law and order.

It is thus legal limits with the creativity of the experts, freedom not being absolute, all not being allowed.

241. - Moreover, so obviously the actions preferably were conceived to answer, successfully, at problems met, particularly, by SA^448(*), the issue of such shares by certain types of companies, in particular SAS^449(*), presents less attractions, in particular because of the specific characteristics to the latter.

Consequently, the question of the interest of the issue of shares preferably, when the company concerned is SAS, pleasing to note that this social form is in itself a limit with the creation of such actions.

242. - As, it is noted as the limits with contractual freedom surrounding the issue of shares preferably do not proceed only of the respect of the law and order (A) ; SAS in itself also constitutes a limit with the interest of the recourse to the actions preferably (b).

a) Limits holding with the law and order

243. - If « the major axis of the reform is a liberalization of the emission of the transferable securities »^450(*), the article L. 228-11 of the besides evoking Commercial law « particular rights of any nature », it should not be concluded from it that beyond the restrictions relating to the voting rights enumerated on the same article^451(*), all is allowed.

244. - Freedom surrounding creation of the actions preferably is inclined indeed in front of the general law and order (I), the protective law and order of the thirds (II) and the law and order of the company law (III).

(i) The general law and order

245. - With the number of the conceivable adjustments of the particular rights attached to the actions preferably, one could imagine that these last are supplied with a clause of inalienability^452(*), preventing their free transferability.

Such a clause is possible, subject respecting the provisions of law and order relating to the clauses of inalienability^453(*). The prohibition of transfer will have thus, on the one hand, to be justified by a serious and legitimate social interest and, on the other hand, to be limited in time^454(*).

However, in SAS, the legislator expressly the possibility envisaged of inserting in the statutes a clause of inalienability : prohibition for the associates to yield their titles for one given length of time can be envisaged in the statutes in the only condition that this one does not exceed ten years^455(*). The condition of common right relating to the serious interest of the clause of inalienability is thus not required within the framework of SAS^456(*).

246. - Another possible adjustment of the particular rights attached to the actions preferably would be to provide that the price of their transfer is indexed.

Such a clause, known as escalator clause or escalator clause, are licit only if the selected index is in direct relationship with the object of convention or the activity of the one of the parts, being specified that this index should not be founded on the SMIC or the general level of the prices or the wages^457(*).

One will be able to then admit, for example, that the indexing of the delivery price of the actions preferably is founded on the value of the point of executive retirement plan fixed by the provident fund whose yielding it a retirement touches^458(*).

It will on the matter be necessary to be careful because the sanction attached to the irregular escalator clauses is absolute nullity, without possibility of confirmation^459(*).

247. - Another requirement holds with the absence of any potestativity or, if one prefers, with the checking of the given or determinable character of the particular right recognized to the action preferably and of its methods of calculation. Let us recall indeed that any obligation is null when it was contracted under a potestative condition on behalf of that which obliges^460(*).

This point returns to the debates which have course as regards delivery price of the actions when this price depends on countable or financial data specific to the company, approaches acceptable since these data do not depend on the will of the one on the parts^461(*). If these orientations are followed, one will be able to accept a financial right whose amount, even existence, depend on data like the EBITDA^462(*), provided that this concept is precisely defined if one wants to avoid the countable quibblings ; but one will refuse to condition the financial right by the realization of objectives subjected partly to arbitrary of the social leaders, thus of the evolution of a level of debt or realization of a programme of transfer of credits.

Here also, the greatest prudence is essential because of the absolute nullity which strikes the purely potestative clauses^463(*).

* ⁴⁴⁸ Modulation of the voting rights attached to the actions, dubious legal status of the preferred stocks, outdatedness of the actions with priority dividend without voting rights, etc

* ⁴⁴⁹ But it is also the case of the SCA, which, being the separation of the capital and the capacity, offer solutions more distinct than the issue of shares preferably.

* ⁴⁵⁰ Report/ratio with the President the Republic, rep. préc.

* ⁴⁵¹ Supra n° 152 and n° 154.

* ⁴⁵² Supra n° 176.

* ⁴⁵³ B. MERCADAL and pH. JANIN, commercial Companies, COp préc., n° 18510  ; B. MERCADAL, right Contracts and of the company, Lefebvre Memorandum, 2004, n° 8029.

* ⁴⁵⁴ These conditions, affirmed by article 900-1 of the Civil code for the clauses of inalienability affecting a given or bequeathed good, result from the decisions of the courts for the clauses introduced into sales, in particular of the transfers of shares, or in other contracts. V. in particular CA Paris, May 4, 1982  : Gas. Stake. 1983, p. 152.

* ⁴⁵⁵ Art L. 227-13 C. Com.

* ⁴⁵⁶ B. MERCADAL and pH. JANIN, commercial Companies, COp préc., n° 16125. 

* ⁴⁵⁷ Art L. 112-2, Al 1st C. my. end. - V.B. MERCADAL and pH. JANIN, commercial Companies, COp préc., n° 2864  ; B. MERCADAL, right Contracts and of the company, COp cit., n° 5775 and S.

* ⁴⁵⁸ V. Case. 1ère civ., October 6, 1982  : Bull. civ. I, n° 276.

* ⁴⁵⁹ Case. Com., November 3, 1988  : Dalloz 1989, n° 93, Malaurie NOTE.

* ⁴⁶⁰ Art 1174 C. civ.

* ⁴⁶¹ Case. Com., June 18, 1996  : BRDA 15/96, p. 3  : validity of a clause of fixing of the price compared to a future assessment  ; Case. Com., January 16, 2001  : Bull. Jolly 2001, p. 391  : validity of a price variation clause according to a rectifying assessment established by a professional, assignees having a right of control  ; CA Versailles, June 27, 2003  : RJDA January 2004, n° 52  : validity of a formula of price referring to an average of results.

* ⁴⁶² The EBITDA (Earning before interest tax depreciation and amortization) is the operational result (EBIT) before depreciation and damping. This concept is thus rather close to the concept of rough surplus of exploitation (EBB) in the French practices. It measures the pre-tax cash flow (before tax on the result) and financial elements. The EBITDA is thus systematically higher than the EBIT and can be regarded as a very good indicator of economic profitability.

* ⁴⁶³ Case. plowshare, July 9, 1996  : Bull. civ. IV, n° 269.