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

b) The repurchase of the actions preferably

320. - The repurchase is a drastic mode of suppression of the actions preferably since the carrier does not exchange any more its quality of shareholder preferred for that of ordinary shareholder, but loses purely and simply the quality of associate.

This repurchase is considered in two manners by the ordinance of June 24, 2004, one common to all the joint stock companies (I), the other characteristic at the joint stock companies whose actions preferably are registered with the negotiations on regulated market (II) ; in addition, the question of the repurchase in the companies not - dimensioned calls some particular remarks (III).

(i) General rules applicable to the repurchase of actions preferably

321. - For all the joint stock companies, that their actions are registered or not with the negotiations on a regulated market, the article L. 228-12 of the Commercial law authorizes the repurchase of the actions preferably.

As as regards conversion^588(*), it is necessary to distinguish according to whether the repurchase were envisaged or not in the statutes or the contract of emission.

322. - The transmitting company has always faculty to decide the repurchase of the actions preferably during their existence, when well even the operation would not have been envisaged. In this case, the repurchase is decided directly by the extraordinary general assembly, which can however delegate this power under the conditions planned for the delegations conferred in order to increase the capital^589(*).

However, with the image of what applies to conversion into ordinary actions^590(*), such a repurchase could not intervene in the absence of approval of the special assembly of the carriers, as well on the principle of the repurchase as on its methods, by application of the article L. 225-99 of the Commercial law.

In such a situation- operation of repurchase not envisaged by the statutes or the contract of emission-, the repurchase is thus offered ; the carriers answer it or not.

323. - Generally however, one can think that the principle and the conditions of the repurchase of the actions preferably will be adopted ab.initio^591(*), i.e. fixed in the statutes or the contract of emission during the emission of the aforesaid actions.

In this case, it is necessary neither for an extraordinary general assembly of the shareholders, nor of a special assembly of the carriers at the time of the realization of the operation. The board of directors or the directory^592(*) then receives the capacities necessary to proceed to the repurchase under the conditions envisaged by the statutes.

Naturally, if the statutory clause making it possible the company to impose the repurchase on the carriers is inserted later on into the subscription of the actions preferably^593(*), the approval of the special assembly of the shareholders preferably, unanimously^594(*), will be necessary to validate the modification of their situation^595(*). Otherwise, the repurchase could not be imposed.

324. - The operation of repurchase involves consequences for the company and, therefore, the other shareholders, namely that it passes in theory by a reduction of the capital. The commentators however are divided on this question.

In the joint stock companies, with dimensions or not, except cases limitativement enumerated by the law^596(*), these companies cannot repurchase their own actions without cancelling them^597(*) ; as, the repurchase of any title of capital, as they are ordinary actions preferably or actions, passes in theory by a reduction of capital. Certain authors think that it is not a question there of a decision of strictly speaking but simple countable translation reduction of capital of the cancellation of part of the titles of capital ; consequently, there is not, according to them, to apply the procedure of common right of the reductions of capital not moved by losses^598(*), i.e. being recognized with the creditors it would not know a right of opposition^599(*)- contrary to what applies to conversion into ordinary actions^600(*). Other authors incline to think the opposite^601(*).

Into the only dimensioned companies, in addition to the repurchase offered by the company, the ordinance introduced a possibility of forced repurchase, being able to be imposed by the company on the carriers of actions preferably under certain conditions^602(*). The report/ratio with the President of the Republic specifies that, in this case, «  this repurchase is subject to the general rules of the repurchase of actions »^603(*). However, contrary to the companies not - dimensioned, the companies with dimensions are seen offering cases where they can repurchase their own actions without having to cancel them consequently^604(*). The question which thus arises is to know if, pursuant to the article L. 228-20 of the Commercial law, a company will be able to preferably impose the repurchase of the actions on their holders- provided the conditions of the repurchase are met-, without cancelling them thereafter. To our knowledge, only one author brought an answer there^605(*) ; according to him, the procedure of repurchase of the article L. 225-209 of the Commercial law- which authorizes a company dimensioned to buy its own actions within a certain limit and under certain conditions- would not apply when the article L. 228-20 is implemented, the two modes being distinct one from the other. It writes : « these two procedures of repurchase do not have the same objectives. We think that the repurchase of actions preferably has as a finality their cancellation, whereas a programme of repurchase of actions can have other finalities (attribution with the employees, creation of complex transferable securities,...) »^606(*).

325. - The information of the ordinary shareholders- like preferably- was not forgotten. When the extraordinary general assembly comes to a conclusion about the inscription in the statutes of the methods of repurchase of the actions preferably, the board of directors or the directory draws up a report/ratio indicating the methods of repurchase as well as the justifications and the methods of the calculation of the price suggested^607(*). It is the same when the general assembly decides repurchase^608(*), this report/ratio being then transmitted to the special assembly of the carriers of actions preferably^609(*).

The auditor also delivers his opinion on the methods of repurchase inserted in the statutes^610(*) and on the offer of repurchase made if necessary^611(*).

It is noted that the device of information of the shareholders is particularly complete.

326. - Like it was known as, following the example conversion into ordinary actions^612(*), the statutes can envisage the methods of the repurchase, and thus determine the cases in which the actions preferably will disappear, as well as the rules of estimate of the counterpart to which right the carriers will have ; the statutes will be able thus usefully to envisage a method evaluation of the actions and a procedure of fixing of the price, for example by expertise.

However, the question of fixing in the statutes of the methods of price determination of the repurchase can raise certain difficulties. Indeed, if the methods of the price are inserted in the statutes, the company is obviously held there, but the carriers of actions preferably too. However, to some extent to ensure the control of their exit, the investors can wish to stipulate a price of determinable repurchase, even given. Such stipulations do not go however from oneself.

327. - In theory, the price of repurchase is given at the day when the operation is concluded, according to the social condition of the moment and of its prospects^613(*). Also, it appears possible to envisage a determinable price according to a mode of evaluation which pareillement takes into account the social condition at the time of the operations^614(*), even if it means to hold the recourse to the expertise in the event of difficulty of application of the adopted method.

On the other hand, any other clause is criticizable which would stipulate a determinable price, even given, according to data or of foreign criteria to the real situation of the transmitter at the time of the repurchase, a such price based on the cost price raised of an interest suggested or required by the investor^615(*). Such a clause would be likely to cause a discussion, during its execution, especially if, at that time, the price while resulting is without common measurement with the value of the social company, estimated according to usual criteria's. The leonine character or not of such a clause will feed the debate, and it is difficult to predict the application that will make the courts of them.

Traditionally, the civil and commercial rooms of the Supreme court of appeal do not have a homogeneous jurisprudence on the question ; the first bracket in an extensive way prohibition of the leonine clauses whereas the second tends to restrict the application of it^616(*). This divergence will not be however soon more because the commercial Room has to know near total of the litigations born of the application of the company law. It is thus important to take into account only the liberal thesis^617(*). However, the decisions which up to now devote this liberal thesis most clearly relate to conventions extrastatutaires, perhaps less exposed than the statutory clauses with the sanction, which causes to consider not written the clauses held for leonine.

Moreover, one can also wonder whether the stipulation of a given or determinable price according to the foreign criteria with the situation of the company does not cause to transform the title of capital into evidence of indebtedness, violation, consequently, of the prohibition envisaged by the article L. 228-91, subparagraph 5 of the Commercial law^618(*).

Nevertheless, if the commercial Room of the Supreme court of appeal follows the jurisprudence which it returned as regards pact extrastatutaire, it is completely conceivable that it draws aside criticisms above-mentioned, since the shareholder incurs the risk to see his actions disappearing during the time ranging between the subscription and the time from the repurchase^619(*).

328. - It is thus to provide that the methods of the repurchase of the actions preferably will be the ground of rough discussions, that it will doubtless rest with the courts to slice. Let us recall however that the repurchase, in the absence of statutory clauses or of stipulations in the contract of emission, could not be imposed on the carriers of actions preferably without the approval of their special assembly. It can however be of it differently in the companies with dimensions.

* ⁵⁸⁸ Supra n° 307 and S.

* ⁵⁸⁹ Art L. 225-129 with L. 225-129-6 C. COM on reference of art L. 228-12, Al 1st C. Com.

* ⁵⁹⁰ Supra n° 315.

* ⁵⁹¹ It was the case as regards actions with financial privileges. V.J. - J. DAIGRE, france MONOD and france BASDEVANT, «  Actions with financial privileges  », art préc., p. 10, n° 42.

* ⁵⁹² Or the qualified body of direction if it is of a SCA or SAS.

* ⁵⁹³ Or if the statutes did not expect that the principle of the repurchase without laying down of them the methods, which are inserted in the statutes or are proposed later on with the carriers of actions preferably

* ⁵⁹⁴ The forced repurchase is equivalent indeed to an exclusion which increases engagements of the shareholder, from where the requirement of the unanimity of the carriers of actions preferably in this case.

* ⁵⁹⁵ Art L. 225-99 C. Com.

* ⁵⁹⁶ For example, attribution with paid (art L. 225-208 C. Com.). The companies with dimensions profit however from exemptions more important than the companies not - dimensioned.

* ⁵⁹⁷ Art L. 225-207 C. Com.

* ⁵⁹⁸ Art L. 225-205 C. Com.

* ⁵⁹⁹ In this direction, A. VIANDIER, «  Actions preferably  », art préc., p. 1538  ; B. MERCADAL and pH. JANIN, commercial Companies, COp préc., n° 18616 and S.

* ⁶⁰⁰ Supra n° 305.

* ⁶⁰¹ A. GUENGANT, D. DAVODET, P. ENGEL, S. of VENDEUIL and S. PAVEC, «  Actions preferably  : questions of experts  (2nd part) «, art préc., p. 1212  ; The memorandum of the limited company, COp cit, n° 284  ; ANSA, legal Committee, opinion of November 3, 2004.

* ⁶⁰² Art L. 228-20 C. Com. V. will infra n° 329 and S.

* ⁶⁰³ Rep. préc. - The report/ratio is dumb being the procedure of repurchase «  offered  » and brings precision only when the repurchase is decided, in the dimensioned companies, pursuant to the article L. 228-20 of the Commercial law. Also, when the repurchase is «  offered  », we return to the second subparagraph of paragraph 324.

* ⁶⁰⁴ Art L. 225-209 C. Com.

* ⁶⁰⁵ P.D' HOIR, the reform of the transferable securities & new issues of capital, COp préc., p. 10. - The other commentators did not raise the question, estimating that, companies dimensioned or not, the repurchase of the actions preferably, whether it is offered or forced, necessarily results in a reduction of capital.

* ⁶⁰⁶ In any assumption, cancellation would be obligatory in the case where, following a repurchase, the company would come to preferably hold more than 10% of the actions of the same category (art L. 225-210 C. Com.).

* ⁶⁰⁷ Art 206-5, Al 1st of the decree of 23 March 1967, introduced by the decree of February 10, 2005.

* ⁶⁰⁸ Art 206-4, Al 1st of the decree of 23 March 1967, introduced by the decree of February 10, 2005.

* ⁶⁰⁹ Art 206-6 of the decree of 23 March 1967, introduced by the decree of February 10, 2005.

* ⁶¹⁰ Art 206-5, Al 2 of the decree of 23 March 1967, introduced by the decree of February 10, 2005.

* ⁶¹¹ Art 206-4, Al 2 of the decree of 23 March 1967, introduced by the decree of February 10, 2005.

* ⁶¹² Supra n° 307.

* ⁶¹³ For example, art L. 228-35-10, Al 3 C. Com. applicable to the actions with priority dividend without voting rights  : «  The value of the actions with priority dividend without voting rights is given at the day of the repurchase by mutual agreement between the company and a special assembly of the shareholders salesmen, ruling according to conditions' of quorum and majority envisaged with the article L. 225-99. In the event of dissension, it is made application of article 1843-4 of the civil code  ».

* ⁶¹⁴ In this direction, A. GUENGANT, D. DAVODET, P. ENGEL, S. of VENDEUIL and S. PAVEC, «  Actions preferably  : questions of experts  (2nd part) «, art préc., p. 1213  ; A. VIANDIER, «  Actions preferably  », art préc., p. 1538.

* ⁶¹⁵ For example, the internal yield (TRI).

* ⁶¹⁶ For an example where the commercial Room took into account expressly the quality of backer of the investor in connection with an undertaking to purchase, v. Case. Com., November 16, 2004  : RJDA 2005, n° 260, p. 217.

* ⁶¹⁷ In this direction, A. GUENGANT, D. DAVODET, P. ENGEL, S. of VENDEUIL and S. PAVEC, «  Actions preferably  : questions of experts  (2nd part) «, art préc., p. 1213  ; A. VIANDIER, «  Actions preferably  », art préc., p. 1538.

* ⁶¹⁸ Art L. 228-91, Al 5 C. Com.  : «  The titles of capital cannot be converted or transformed into transferable securities representative of credits. Any contrary clause famous is not written  ».

* ⁶¹⁹ V. Case. Com., February 22, 2005  : Dalloz 2005, p. 973, in connection with the validity of the unilateral promises of purchase of actions at bottom price.