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

II. THE PROTECTION OF THE SHAREHOLDERS : NECESSARY COUNTERPART OF FREEDOM OCTROYEE

272. - The creation of the actions preferably, in what it allows to a very flexible adjustment of the pecuniary and extra-pecuniary prerogatives their holders, affects a great principle of the company law which is the equality of the shareholders.

The delegations with the bodies of direction as regards new issues of capital exhaust the principle of sovereignty of the general assembly of the shareholders for all the acts which engage the existence, the image or the development of the company.

273. - The ordinance of June 24, 2004, by sparing contractual and statutory spaces of freedom to the profit of the transmitters, was to take these considerations in account and to consider their impact on the rights of the shareholders.

It had indeed not been conceivable to make it possible to arrange the rights of the shareholders with a flexibility and a freedom news without envisaging protective limits and measurements with regard to the latter.

274. - Also, the new device took care to maintain, reinforce or set up certain parapets in order to protect the shareholders- ordinary shareholders of course, but also the new shareholders preferably. This preoccupation with a protection is translated in particular during the creation and of the disappearance of the actions preferably (A), but also, and more largely, during the social life, at the time of certain operations (B) suitable for affect the rights of the shareholders preferably or, when are implemented certain provisions of the right of the new issues of capital, all the shareholders.

A. The protection of the shareholders at the time of creation and the disappearance of actions preferably

275. - At the sides of the ordinary shareholders, having the traditional prerogatives attached to their quality of associates, there will be shareholders preferably, of which the financial and/or political rights will be often reinforced, beyond what the preferred stocks and priority dividend without voting rights allowed until now. Also, when it preferably creates actions to which are attached advantageous particular rights, the company- and its shareholders- must be conscious of the consequences which will result from this.

The legislator, concerned of these considerations, consequently surrounded creation of the actions preferably of protective provisions, for example by imposing the respect of the procedure of checking of the particular advantages when the actions preferably are emitted with the profit of one or more shareholders designated by name.

276. - The creation of actions preferably does not raise however only the question of the protection of the ordinary shareholders. Indeed, it is necessary to take care not to forget that the holders of actions preferably, if they often profit from the reinforced particular rights, will be also often subjected to obligations n the other hand of the granted rights ; they could besides preferably have only obligations attached to their actions, although that is not very conceivable in practice so much the interest of such an operation is difficult to perceive.

Also, it is advisable to preferably consider the protection of the future holders of actions themselves at the time of creation of the aforesaid actions. All is not allowed, which the law comes to recall to various recoveries.

277. - The protection of the shareholders is also appreciated on two levels- protection of the ordinary shareholders and protection of the shareholders preferably- at the time of the disappearance of actions preferably. Creation induces indeed, early or late, disappearance.

The article L. 228-11 of the Commercial law lays out that the actions preferably are matched particular rights of any nature being able to be it temporarily or permanent. But if the particular rights are permanent, they will preferably last only the life time of the actions which, they, are not necessarily brought to perdurer eternally. The question of their disappearance must be taken into account by the company, because they can more prove to be the ideal financial instrument in the long term^509(*).

Consequently, one is brought to wonder about the methods of the disappearance of the actions preferably. From the point of view of the ordinary shareholders, it seems necessary that these methods are envisaged ; failing this, it will be able to prove to be difficult to attack the rights of the carriers of actions preferably. Point of the shareholders preferably, the suppression of their rights could not be done without framing and protective measurements.

278. - These various questions consequently bring to preferably consider protective measurements at the time of the creation of actions (1) and those surrounding disappearance of such actions (2).

1. Protective measurements at the time of the creation of actions preferably

279. - The protection of the shareholders at the time of the creation of actions preferably brings to initially consider protective measurements of a general nature (A), for then considering the particular procedure of checking of the particular advantages (b).

a) Protective measurements of a general nature

280. - Like it was seen^510(*), the extraordinary general assembly of the shareholders is only qualified to decide the issue of shares preferably or the conversion of ordinary actions into actions preferably, pursuant to the article L. 228-12 of the Commercial law and in accordance with the article L. 225-96, subparagraph 1st of the same Code^511(*).

It can certainly delegate this power under the conditions fixed by the articles L. 225-129 to L. 225-129-6 of the Commercial law^512(*) ; but the article L. 228-11 requires that the particular rights of the actions preferably be defined in the statutes. Consequently, it is 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- the mode even of these actions^513(*). At most, in practice, the extraordinary general assembly will be able to confer a delegation of powers^514(*) on the body of 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.

281. - The exclusive competence of the extraordinary general assembly for the creation of actions preferably- at least to define in the statutes the characteristics of the rights which are attached there and their mode- is a particularly important for the existing shareholders, protective guarantee their rights, more especially as any violation of the terms of reference reserved for the extraordinary general assembly incurs the nullity of the acts which result from this^515(*).

If the article L. 228-11 had not imposed that the particular rights attached to the actions preferably are defined in the statutes, the body of direction which would have been seen granted a delegation would then have been able to define itself, almost discretionarily, the particular rights attached to the actions preferably. Such a situation would have been extremely deplorable in comparison with the protection of the rights of the shareholders.

Ultimately, the shareholders remain, in the sides of the leaders, associated the process of search for new investors and take part in the adjustment of the capital and the capacity operated by the actions preferably within the framework of the financial arrangements. One can only be pleased some.

282. - The general assembly rules within sight of a detailed report/ratio of the body of direction^516(*), which indicates the characteristics of the actions preferably and specifies the incidence of the operation on the situation of the holders of titles of capital and transferable securities giving access to the capital. This report/ratio must be in conformity with the rules posed by articles 154^517(*) and 155^518(*), like, according to cases', by articles 155-1^519(*) or 155-2^520(*) of the decree of 23 March 1967 modified by the decree of February 10, 2005.

She rules moreover within sight of a special report/ratio of the auditor^521(*) which delivers his opinion on the new issue of capital considered, the characteristics of the actions preferably and the incidence of the operation on the situation of the holders of titles of capital and transferable securities giving access to the capital^522(*).

The objective of these provisions is as well as possible to inform the extraordinary general assembly in her decision-making.

283. - If there are stock-options, it will be necessary, if necessary, with adjustment of the bases of attribution according to conditions' under which the actions preferably are created and according to the nature of the allotted particular rights.

The same concern is essential when the company allotted free shares to the profit of its employees or social agents.

284. - When the issue of shares preferably is carried out within the framework of a group of companies, pursuant to the article L. 228-13 of the Commercial law^523(*), in addition to the decision of emission of the extraordinary general assembly of the transmitting company, the emission must be the decision object of authorization- and not of emission- of the extraordinary general assembly of the third company.

An auditors' certificate of the third company is in addition required, being added to that of the auditor of the transmitting company^524(*). One then notes the importance attached by the legislator to the information of the shareholders.

285. - The protection of the ordinary shareholders, but also of the future carriers of actions preferably, also finds to appear within the limits surrounding installation of the particular rights. The prohibition of the leonine clauses, the limitations relating to the voting rights and, more generally, the imperative provisions of the company law and the general law and order must be respected during the creation of actions preferably^525(*).

They are fundamental guarantees which recall that, if freedom is large, all is not therefore possible.

286. - The ordinance also organized the protection of the carriers of actions preferably existing. Indeed, if actions preferably were already created, the issue of new shares preferably is of course possible, in condition however, in the event of new issue of capital, to observe the conditions of the article L. 228-16 of the Commercial law which lays out that « in the event of modification or of damping of the capital, the extraordinary general assembly preferably determines the incidences of these operations on the rights of the carriers of actions » and that these incidences can also be noted in the statutes.

Such a provision appears to be essential : insofar as the issue of new shares preferably is likely to modify the particular rights of the shareholders preferably existing, it seems normal to establish which will be the incidences of this new emission on these existing rights.

The ordinance supplements this device by specifying that, in the event of creation of actions preferably, that it is by new issue of capital or conversion, the authorization of the special assembly of the carriers of actions preferably already created is necessary if the rights of the new actions preferably are likely to modify the rights of the actions preferably existing^526(*).

287. - Let us announce finally that each time the creation of actions preferably proceeds of a new issue of capital in cash, it is necessary to check that the existing capital is entirely released^527(*)

288. - The new device grants moreover a very particular protection when the actions preferably are emitted with the profit of certain people.

* ⁵⁰⁹ The actions preferably allow certain assemblies, in particular an adjustment of the relations between the capacity and the capital, and are likely to support the arrival of investors within the company. However, any economic and financial project A a term. With the exit of this term, the rights carried by the actions preferably emitted will not be necessarily any more adapted to the situation of the company, either that will have to be reorganized these rights, or that they will have to be removed.

* ⁵¹⁰ Supra n° 222 and n° 223.

* ⁵¹¹ In SAS, the article L. 227-9 of the Commercial law lays out that «  attributions reserved for the extraordinary and ordinary general assemblies of the limited companies, as regards increase, of damping or reduction of capital [...]are, under the conditions envisaged by the statutes, collectively exerted by the associates  », hardly of nullity.

* ⁵¹² Supra n° 224.

* ⁵¹³ In this direction, A. GUENGANT, D. DAVODET, P. ENGEL, S. of VENDEUIL and S. PAVEC, «  Actions preferably  : questions of experts  », art préc., p. 1157  ; P.D' HOIR, the reform of the transferable securities & new issues of capital, COp préc., p. 18  ; ANSA, legal Committee, opinion of November 3, 2004.

* ⁵¹⁴ Art L. 225-129-1 C. Com.- V. supra 30 and S.

* ⁵¹⁵ Art L. 225-121, Al 1st C. Com.

* ⁵¹⁶ Art 206-2, Al 1st of the decree n° 67-236 of 23 March 1967, introduced by the decree n° 2005-112 of February 10, 2005.

* ⁵¹⁷ Report/ratio of the board of directors or the directory at the extraordinary general assembly indicating the reasons for the increase in the capital proposed as well as precise details on the walk of the social affairs since the beginning of the current year

* ⁵¹⁸ Report/ratio of the board of directors or the directory at the extraordinary general assembly when this one decides or authorizes a new issue of capital and removes the preferential duty of subscription.

* ⁵¹⁹ Report/ratio of the board of directors or the directory at the general assembly when this one fixes itself all the methods of the new issue of capital with suppression of the preferential duty of subscription

* ⁵²⁰ Report/ratio of the board of directors or the directory at the general assembly when it received a delegation of powers or competence and that it makes use of it.

* ⁵²¹ Art 206-2, Al 2 of the decree n° 67-236 of 23 March 1967, introduced by the decree n° 2005-112 of February 10, 2005.

* ⁵²² If necessary, this report/ratio is in conformity with the rules posed by article 155, like, according to cases', by articles 155-1 or 155-2 of the decree of March 23, 1967.

* ⁵²³ Supra n° 234 and S.

* ⁵²⁴ Art L. 228-13, Al 3 C. Com.

* ⁵²⁵ Supra n° 243 and S.

* ⁵²⁶ Art L. 225-99, art L. 228-16 C. Com.

* ⁵²⁷ Art L. 225-131 C. Com.