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

b) Limits holding the interest of the recourse to the actions preferably in SAS

258. - The creation of the actions preferably opens a considerable field of freedom to modulate the rights of any nature attached to the detention of transferable securities. In this respect, this opening appreciably brings SA- or the SCA- closer to SAS, which one knew already the very great flexibility of operation.

259. - With the risk to fall into a certain confusion or the amalgam, the analogy must however stop there. It is not easy matter to achieve insofar as the provisions relating to the actions preferably are superimposed on the legal regulations specific to SAS.

To how determine the new provisions relating to the actions preferably can apply to SAS results in wondering about the interest which could present, for a company of this form, the issue of such shares (I), as on the obligation that havewould have SAS to preferably emit of the actions in certain situations (II).

(i) Interest of the issue of shares preferably by SAS

260. - If the legislator preferably authorizes the issue of shares by SAS, it is thus that its associates can there find an interest, which should logically result from comparative between the opportunities offered by the emission of actions preferably and those that the recourse to the social shape of SAS confers right now.

With this intention, it can be reasoned while classifying, according to a traditional typology, the particular rights in three categories : those conferring of the pecuniary prerogatives, those allowing to arrange the voting rights and those conferring of the political rights others that voting rights.

261. - With regard to the stipulation of pecuniary prerogatives, SAS does not show any characteristic specific compared to other shapes of joint stock companies.

SAS is thus placed on an equal footing with SA and the SCA when it decides to stipulate with the profit of a associate of the dividends préciputaires, rights privileged on the reserves or a priority apprehension of the profit of liquidation. It moreover was subjected, before the ordinance, with same legal uncertainties which weighed on the question of the implementation of the procedure of the particular advantages^484(*).

Now that the former restrictions and uncertainties were raised, the possibility for a joint stock company of preferably emitting actions to which various financial rights would be attached a real opportunity constitutes, whose SAS should not deprive itself if its associates wish to juridically make safe the financial advantage thus conferred.

262. - Being the adjustment of the voting rights, one of the principal characteristics of SAS resides in the fact that the law does not fix, in this matter, no rule preestablished, since it draws aside from the provisions applicable to SAS those envisaged with the articles L. 225-17 with L. 225-126 of the Commercial law- which are essential in addition on SA.

The rules relating to the proportionality between contribution and voting right^485(*), to the voting rights double^486(*) and the levelling off of the voting rights^487(*) are thus drawn aside. Also, and with the extreme, the holder of 1% of the authorized capital of SAS will be able to have voting rights conferring to him 99% of the voting rights^488(*). SAS thus makes it possible to very freely modulate the voting rights of the associates.

By comparison, the action preferably offers very reduced possibilities being adjustment of the voting rights, since this one must obey the provisions of the above mentioned articles^489(*). It does not allow the stipulation of multiple voting rights (except the voting rights doubles), nor the installation of a levelling off of the voting rights^490(*). Moreover, the provisions of the article L. 228-11, subparagraph 3 of the Commercial law, founding a ceiling as for the number of actions preferably likely to be private voting rights, must be respected^491(*).

Consequently, the interest for SAS to resort to the issue of shares preferably to arrange the voting rights of the associates is far from being obvious, since the potentialities offered by the aforementioned actions are in this matter quite less than those conferred on SAS as such, with less obviously than the associates of SAS decide to resort to it voluntarily, or that they are constrained there^492(*).

263. - Lastly, in connection with the political rights others that the voting rights, SAS allow, more than very other, to arrange the control of the evolution of the capital of the company, the methods of very decision-making and the management engineering of the company, and this almost unbounded.

Consequently, one can rightly wonder why SAS would emit it, under these conditions, of the actions preferably to manage these situations.

It is a potentiality of the action preferably that the simple recourse to SAS does not offer : the possibility of exerting the particular rights conferred by the aforementioned actions in a third company. However, this opportunity is of a complex use^493(*) and an interest more reduced than it does not appear to with it^494(*).

264. - The interest of the issue of shares preferably by SAS appears consequently very limited, at least being the adjustment of the political rights, in particular the voting rights.

But beyond the simple question of opportunity, it is advisable to wonder about the obligation to which SAS would be, the échant case, forced to emit actions preferably.

* ⁴⁸⁴ Supra n° 227.

* ⁴⁸⁵ Art L. 225-122 C. Com.

* ⁴⁸⁶ Art L. 225-123 C. Com.

* ⁴⁸⁷ Art L. 225-125 C. Com.

* ⁴⁸⁸ The only limit in this field lies in article 1844 of the Civil code, which imposes that any associate has the right to take part in the group decisions.

* ⁴⁸⁹ V. supra n° 154.

* ⁴⁹⁰ The doctrines however are divided on this point. V. supra n° 60.

* ⁴⁹¹ Supra n° 152.

* ⁴⁹² Infra n° 266.

* ⁴⁹³ Supra n° 182 and S.

* ⁴⁹⁴ In this direction, A. VIANDIER, «  Actions preferably  », art préc., p. 1533.