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

b) Procedure of the particular advantages

289. - Under article L. 228-15 of the Commercial law, « the creation of these actions gives place to the application of the articles L. 225-8, L. 225-14, L. 225-147 and L. 225-148 relating to the particular advantages when the actions are emitted with the profit of one or more shareholders designated by name. In this case, the police chief with the contributions envisaged by these articles has been an auditor not having realized for five years and not carrying out a mission within the company ».

This procedure thus consists in the appointment of a police chief to the particular advantages who draws up, under his responsibility, a report/ratio on the evaluation of the advantage in order to appreciate the possible consistency and incidences of them on the situation of the shareholders^528(*).

290. - Under the empire of the preceding drafting of the article L. 228-11 of the Commercial law, a controversy existed on the fact of knowing if the creation of a class of shares known as of «priority» required or not to follow the procedure of the particular advantages. Certain authors thought that the creation of actions «of priority» always constituted an advantage particular to the reason which it was about a rupture of the equality between totality of the shareholders and by way of consequences, of the attribution of a particular advantage. Others^529(*) pointed out that the rupture of equality was appreciated inside a class of shares and that there was a difference in nature between the preferred stocks and the advantages particular according to whether the right is attached to the action and thus transmissible or is attached to the holder and thus is not transmissible. It was necessary thus to apply this procedure only on the assumption that the rights attached to the actions are it only according to the identity and of the quality of the holder of the aforesaid actions and that these rights disappear when the holder transfers his actions or loses the quality which had justified the attribution of this particular advantage.

291. - Being the actions preferably, « to raise the interrogations of the experts »^530(*) and to avoid the useless baffles, the writers of the ordinance thus have « envisaged explicitly that the procedure of the particular advantages is applicable only when the actions preferably are emitted with the profit of identified people »^531(*).

The ordinance thus puts fine at the controversy, accrediting with the passage the absence of obligation to observe the procedure considered when the advantages are allotted intuitus rei. It is not because there is that the procedure must be observed but only because of the particular character of this privilege which benefits with a person or a determined group of people^532(*). The text has clearly vocation to protect the shareholders excluded from the closed issue and to preferably draw their attention to the consequences of an issue of shares.

292. - Thus, whatever the emission mode^533(*) retained, the special procedure of the particular advantages applies since these actions are emitted « with the profit of one or more shareholders designated by name ». This formula caused some debates. The expression could indeed let think that the procedure of the particular advantages does not have to be followed if the emission takes place in favor of a third not shareholder.

It of it is nothing. As in the phase of formation of the company where the founders are not shareholders but become it by subscribing the actions, the creation of actions preferably to the profit of an indicated third passes by the implementation of the procedure and the appointment of a police chief to the particular advantages. The Minister for Justice indeed specified that the article L. 228-15 of the Commercial law aims the already existing shareholders and the shareholders who become it at the time of the subscription, at condition however that these shareholders are designated by name^534(*). The intervention of the police chief to the particular advantages is essential consequently for any new issue of capital reserved on the profit of a shareholder or a third per way of issue of shares conferring a pecuniary preference or not envisaged in the statutes.

It goes without saying if the recipients are identifiable at the time of the creation of the actions preferably, the procedure must also be observed, thus case in which « the privilege is granted to all the actions of a category had by a person »^535(*), or among that in which the promoters of the project know perfectly the name of the potential subscribers to actions preferably, would be this only to have negotiated their entry in the capital of the company^536(*).

293. - The police chief with the contributions envisaged has been an auditor^537(*) not having realized for five years and not carrying out a mission within the company^538(*) ; the Minister for Justice specified that this provision excludes designation from an auditor having carried out any mission within the company, including under the terms of a legal designation^539(*) It is indicated and achieves its mission under the conditions envisaged in article 64, subparagraph 2 of the decree of March 23, 1967^540(*).

The police chief with « particular advantages » appreciates, under its responsibility, the particular advantages^541(*). « The report/ratio described and appreciates each particular advantage or of the particular rights attached to the actions preferably. If it is necessary, he indicates, for these particular rights, which mode of evaluation was retained and why it was retained, and justifies that the value of the particular rights corresponds at least to the face value of the actions preferably to emit increased possibly issue premium »^542(*). The drafting of the decree leaves perplexed^543(*) : the calculation of the value of the particular rights is not easy matter to achieve ; worse, in certain cases, these rights cannot be developed. Indeed, it « preference » related to these actions can take various forms : the emoluments, such as a priority dividend are obviously likely to be developed ; on the other hand, of the variations of rights political such as the temporary suppression of the voting rights or an additional right to information cannot be the subject of a valorization. The text thus states that this evaluation is only given « if it is necessary »^544(*).

The report/ratio of the police chief to the contributions is held at the disposal of the shareholders to the registered office at least eight days before the date of the extraordinary general assembly, of kind to guarantee their good information within a reasonable time^545(*). However, this time can be reduced if all the shareholders agree to it, in writing, before the police chief nomination to the contributions^546(*).

294. - Being oneself the rules of vote, if the recipient of the actions preferably to be created, indicated by name, is already shareholder of the company, they are private voting rights for itself and like agent, and its actions are not taken into account for the calculation of the quorum and the majority^547(*).

In the same way, in the event of conversion of ordinary actions, the holders of actions having to be converted into actions preferably category to create cannot, under penalty of nullity of the deliberation, to take share with the vote on the creation of this class of shares. The actions which they hold are not taken into account for the calculation of the quorum and the majority, unless the whole of the actions are the subject of a conversion into actions preferably^548(*).

295. - It is specified that the statutes of the company must contain the identity of the recipients of particular advantages and the nature of those, according to general rules' applicable to the granting of such advantages^549(*).

296. - Lastly, two characteristics will be noted.

On the one hand, the application of the procedure of the advantages particular to the case of creation of actions preferably comes in exemption from the provisions of the article L. 225-138, I, subparagraph 1st of the Commercial law^550(*) which provides that in the event of closed issue the procedure of the particular advantages envisaged with the article L. 225-147 of the Commercial law does not have to be followed.

In addition, there is another form of closed issue under article L. 225-138, I, subparagraph 2 of the Commercial law^551(*), when they are one or more categories of people meeting characteristics fixed by the assembly. It will then be a question of defining the category, but nothing seems to prohibit that shareholders are included in the definition of the category. On this assumption the shareholders «not being indicated by name», it would not be necessary to apply the procedure of the particular advantages^552(*).

297. - The protection of the shareholders- ordinary shareholders like shareholders preferably- also appears, in addition to during the creation of actions preferably, at the time of disappearance of the aforesaid actions.

* ⁵²⁸ V.H. NABASQUE, «  Leaves the actions preferably emitted to the profit of shareholders designated by name  », Banking RD and financier 2005, p. 31.

* ⁵²⁹ J. - J. DAIGRE, france MONOD and france BASDEVANT, «  Actions with financial privileges  », art préc.

* ⁵³⁰ Report/ratio with the President of the Republic, rep. préc.

* ⁵³¹ Report/ratio with the President of the Republic, rep. préc.

* ⁵³² A. VIANDIER, «  Actions preferably  », art préc., p. 1536.

* ⁵³³ The article L. 228-15 of the Commercial law aims «  creation  » of the actions preferably.

* ⁵³⁴ Reference mark. Min. Justice with Mrs. GROSSKOST n° 43987, JOAN Q, August 24, 2004, p. 6685  ; Reference mark. Min. Justice with Mr. ADNOT n° 13315, OJ Senate Q, May 19, 2005, p. 1441. 

* ⁵³⁵ HOUPIN and BOSVIEUX, Treated, t.2, Sirey, 1927, n° 1297.

* ⁵³⁶ In this direction, A. VIANDIER, «  Actions preferably  », art préc., p. 1536.

* ⁵³⁷ It is about an exemption from the general provisions relating to the procedure of the particular advantages.

* ⁵³⁸ Art L. 228-15, Al 1st C. Com. on reference with art L. 225-8 and L. 225-14 C. Com. in the event of emission at the time of the formation of the company and L. 225-147 C. Com. in the event of emission by new issue of capital.

* ⁵³⁹ Reference mark. Min. Justice with Mr. ADNOT n° 13389, OJ Senate Q, December 23, 2004, p. 2970.

* ⁵⁴⁰ On reference of article 169, Al 2 of the decree of March 23, 1967.

* ⁵⁴¹ Similar mission is very close to that assigned to the auditors (supra n° 282) and one can wonder, if the procedure of checking of the particular advantages must be observed, if the auditors' certificate were quite necessary.

* ⁵⁴² Art 169, Al 3 of the decree of 23 March 1967, modified by the decree of February 10, 2005.

* ⁵⁴³ V.A. GUENGANT, D. DAVODET, P. ENGEL, S. of VENDEUIL and S. PAVEC, «  Actions preferably  : questions of experts  », art préc., p. 1158.

* ⁵⁴⁴ This interpretation is confirmed by the Minister for Justice  : Reference mark. Min. Justice with Mr. ADNOT n° 13315, OJ Senate Q, May 19, 2005, p. 1441.

* ⁵⁴⁵ Art 169, Al 4 of the decree of 23 March 1967, modified by the decree of February 10, 2005.

* ⁵⁴⁶ Art 169, Al 5 of the decree of 23 March 1967, modified by the decree of February 10, 2005.

* ⁵⁴⁷ Art L. 225-10, Al 1st C. Com. on reference of art L. 228-11, Al 1st C. Com.

* ⁵⁴⁸ Art L. 228-15, Al 2 C. Com.

* ⁵⁴⁹ Art 55, 5° of the decree of March 23, 1967.

* ⁵⁵⁰ Case of new issues of capital reserved for one or more people designated by name or categories of people meeting given characteristics.

* ⁵⁵¹ Case of new issues of capital reserved for one or more people designated by name or categories of people meeting determined characteristics, with suppression of the preferential duty of subscription.

* ⁵⁵² In this direction, france MONOD and R. ARAKELIAN, «  Actions preferably: how to use the procedure of particular advantages?  », art préc.