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

(ii) Obligation of the issue of shares preferably by SAS in certain situations

265. - Of course, no joint stock company, SAS or other, is held, as such, to emit actions preferably.

The question only aims at identifying, if necessary, the situations in which SAS would be- at the time of the installation of rights of nature particular to the profit of some associated- in the obligation to resort, with this intention, with the issue of shares preferably.

To answer this pleasing question to take again typology referred to above, while distinguishing according to whether SAS wishes to stipulate privileged rights of pecuniary nature, extra-pecuniary, even of the rights « mixed », likely to it pecuniary and extra-pecuniary time.

266. - In addition to the fact that it will probably not have interest there^495(*), SAS is by no means held to emit, being of the adjustment of extra-pecuniary rights, the actions preferably^496(*). No text imposes such a recourse indeed.

The modulation of the voting rights pertaining to associated of SAS does not imply the installation of any particular procedure : neither creation of classes of shares, neither respect of the procedure of the particular advantages, nor issue of shares preferably.

To claim the opposite would result in noting the implicit abrogation of a whole side of freedoms conferred specifically on SAS, in particular concerning the adjustment of the voting rights. If SAS were imperatively to carry out the issue of shares preferably to arrange the voting rights of the associates, it would indeed logically owe, in this case, to respect the entirety of the provisions applying to the known as actions, and in particular those relating to the articles L. 225-122 with L. 225-125 of the Commercial law- whose application however is expressly excluded within the framework from SAS^497(*).

Actually, the only case of obligatory recourse to the issue of shares preferably by SAS in order to arrange the extra-pecuniary rights of its associates aims that where the latter would wish to have particular rights in a third company^498(*). And still, on this subject, for little that the third company is itself SAS, the associates of the companies concerned will be able freely to arrange the extra-pecuniary rights of each one, without recourse to the issue of shares preferably, and with a much better effectiveness^499(*).

267. - Acting to know if the stipulation of advantages of pecuniary nature for the benefit of some associated of SAS obliges the latter to emit actions preferably, the answer seems also negative here^500(*).

On the one hand, the law does not lay out that any stipulation of a right particular to the profit of a associate, even from an action, passes obligatorily by the issue of shares preferably.

In addition, the ordinance does not repeal the article L. 225-99 of the Commercial law relating to the actions of category ; it made there, on the contrary, expressly reference^501(*). The doctrines agree in addition to consider that the action preferably is a class of shares, and that it profits so from the mode of protection which is attached to him^502(*). This report does not make it possible to conclude only the only classes of shares which it is possible to constitute necessarily gather of the actions preferably (or of the ordinary actions, by opposition). Under these conditions, the stipulation of particular rights of pecuniary nature should still be able to be consisted the creation of a class of shares, without issue of shares preferably^503(*).

Lastly, it is useful to recall that it is before all the provisions of articles 1844-1 and 1844-9 of the Civil code- and not the recourse to the issue of shares preferably- which make it possible associated with any company to dissociate the emoluments of the participation in the capital of each one^504(*). If the issue of shares preferably constitutes one obviously « contrary clause » within the meaning of articles 1844-1 and 1844-9, one can wonder about the point to know if it is the only possible one. The ordinance repealed certainly the article L. 228-11 of the old Commercial law relating to the preferred stocks, like the actions with priority dividend without voting rights, and substituted for these provisions those relating to the actions preferably ; but it leaves it there, and did not make any modification to the provisions specific to the particular advantages, the classes of shares, and even less with those aimed by articles 1844-1 and 1844-9 of the Civil code.

Nevertheless, beyond this very theoretical debate^505(*), it should be admitted that the stipulation of advantages of pecuniary nature without resorting to the issue of shares preferably, will not present, including in SAS, same legal safety as that conferred by the articles L. 228-11 and following of the Commercial law^506(*).

268. - Lastly, concerning the adjustment of rights « mixed », SAS will be able to have interest, even if it is not forced there, to emit actions preferably in order to arrange and to make safe the particular financial rights conferred on some associated ; contrary, the issue of such shares by SAS will obviously restrict the margin of freedom which this shape of company offers to modulate the voting rights of the aforesaid associates.

Also, to slice this discrepancy at the time of the stipulation of privileged rights « mixed » - likely to it pecuniary and extra-pecuniary time- « be likely to plunge the writers of the statutes of SAS in a exercise of style which confines with acrobatics »^507(*).

269. - The issue of shares preferably by SAS should thus appear a rather rare practice so much the advisability of emitting such actions is reduced taking into consideration possibility already offered by SAS. It is noted whereas the freedoms permitted by creation preferably are of limited interest since the transmitting company is not SA.

270. - Conclusion. Certain experts saw in the imperfections and the outdatedness of the French right of the transferable securities a source of uncertainties favourable with the expression of their creativity, others proposed the important risks related to the issue of securities to the dubious legal status, for very important sums however. The legislator, as for him, remained divided between the fact of taking note of creations resulting from the practice, in technical and compartmental texts, and the adoption of standards tallies enough vague to be able to hope to embrace creations present and future. It remains that the money market awaited the reform of June 24, 2004, was this to only guarantee, or at least to improve, the competitiveness of the French companies.

With the action preferably, the ordinance creates a new financial instrument thanks to which undertaken them French will be able to be financed, under conditions of legal safety and international competitiveness satisfactory. The actions preferably, as we saw, open the way for extremely flexible and varied installations emoluments and extra-pecuniary, and this under improved conditions of legal safety since statutory insertion offers the best guaranteed that insertion in a pact of shareholders^508(*). Ultimately, the statutes detailing the rights and obligations of the shareholders preferably will be able to replace, except obligation of confidentiality, the drafting of the pacts of shareholders and to constitute the true subject of negotiation between directing shareholder and financial investors. The company law anonymous and, therefore, the rights of the shareholders are some significantly upset.

However, it is necessary to take care not to think that the implementation of the new device will be free from difficulties. Taking into account the many questions mentioned in the developments preceding and lending to different interpretations, it will be advisable to observe the standpoint of the courts on the dispute, inevitable, to come.

271. - Even if all the requests of the professional organizations were not heard, these last estimate nevertheless that « the whole of these reforms must be greeted like a progress, within the framework of an increasingly moving capital market European and world and with an increasingly international shareholding ».

The adjustment of spaces of freedom in order to optimize the conditions of financing of the joint stock companies could not however be done without the installation of parapets necessary to the protection of the shareholders.

* ⁴⁹⁵ Supra n° 166 and n° 167.

* ⁴⁹⁶ Supra Nos 154, 162, 190, note n° 321.

* ⁴⁹⁷ Art L. 227-1 C. Com.

* ⁴⁹⁸ Supra n° 190.

* ⁴⁹⁹ Supra n° 200 and n° 201.

* ⁵⁰⁰ In this direction, G. OF TERNAY, «  SAS and actions preferably  : modus operandi  », art préc., n° 18.

* ⁵⁰¹ The article L. 228-17 of the Commercial law relating to the protection of the rights conferred to the holders of actions preferably in the event of fusion lays out indeed, in its subparagraph 2, that in the absence of exchange counters actions conferring of the equivalent particular rights, fusion or the scission is subjected to the approval of the special assembly envisaged with the article L. 225-99.

* ⁵⁰² A. VIANDIER, «  Actions preferably  », art préc., p. 1537  ; A. COURET and H. NABASQUE, Securities transferable- New issues of capital- Nouveau mode- Schedules of March 25 and June 24, 2004, COp préc., n° 543 and S.

* ⁵⁰³ In this direction, G. OF TERNAY, «  SAS and actions preferably  : modus operandi  », art préc., n° 19.

* ⁵⁰⁴ Article 1844-1 of the Civil code lays out indeed that «  the share of each associate in the benefit and its contribution to the losses are determined with proportion of its share in the authorized capital [...], the whole except contrary clause  ». Article 1844-9 lays out  : «  After payment of the debts and refunding of the authorized capital, the division of the credit is carried out between the associates in the same proportions as their participation in the profits, except clause or contrary convention  ».

* ⁵⁰⁵ G. OF TERNAY, «  SAS and actions preferably  : modus operandi  », art préc.  : «  Faculty to stipulate privileged financial rights specifically attached to the action, via the identification of a class of shares, without resorting for as much to the issue of shares preferably, is an interpretation of the texts, prone as such to contradiction, and thus to the risk which a divergent interpretation is not essential.  »

* ⁵⁰⁶ The stipulation of particular advantages is supplied with no legal device of protection of the rights granted the recipients.

* ⁵⁰⁷ G. OF TERNAY, «  SAS and actions preferably  : modus operandi  », art préc., n° 22.

* ⁵⁰⁸ Compared to what could exist before in the pacts of shareholders, these prerogatives henceforth being able to be envisaged by the statutes thus have a validity reinforced in particular because of their opposability to the thirds.