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

(ii) The repurchase « forced » in the companies with dimensions

329. - In addition to the faculty of repurchase offered by the article L. 228-12 of the Commercial law and whose characteristics were evoked in the preceding developments, another mode of repurchase was envisaged by the writers of the ordinance of 24 June 2004, but specifically applicable to the companies whose actions preferably are registered with the negotiations on a regulated market.

The article L. 228-20 of the Commercial law lays out indeed that « when the actions preferably are registered with the negotiations on a regulated market, they can be repurchased or refunded, on the initiative of the company or the carrier, if the market is not liquid, under the conditions envisaged by the statutes ».

330. - There would be thus a new type of withdrawal for the carrier and a new type of repurchase for the company. From the start, a observation is essential : the text creates a new case of forced withdrawal ; withdrawal forced for the whole of the shareholders preferably if the company decides to implement it, withdrawal forced for the only company and limited to the petitioning shareholder- except contrary forecast of the statutes- when the initiative is taken by a shareholder preferably.

331. - The article L. 228-20 of the Commercial law enables with the statutes faculty to foresee the repurchase of the titles on the initiative of the company of the carrier. A condition however is fixed at such a repurchase : it is necessary that the market is not liquid. The criteria of appreciation of the absence of liquidity are specified in the report/ratio presented by the board of directors or the directory at the assembly general and carried in the statutes^620(*), and the auditor delivers his opinion on the matter^621(*).

332. - The objective is thus to protect the company counters erratic evolutions of the course because of the narrowness of the market and to protect the carrier which is likely to be unable to yield its actions, for lack of counterparts. The report of the absence of liquidity will undoubtedly call the intervention of the Authority of the financial markets, unless the statutes do not define the criteria of them^622(*).

333. - There exists, for the companies not - dimensioned, no provision of comparable nature that that of the article L. 228-20 of the Commercial law. One could see^623(*) that the company could « to offer » the repurchase with the shareholders preferably or to impose it, to suppose that its principle and its methods were defined in the statutes since the issue of the shares preferably^624(*). But one can wonder whether it would be possible to envisage, in the dimensioned companies, to some extent like the dimensioned companies, a faculty of repurchase to the liking of the carrier, and either of the transmitting company.

(iii) The repurchase with the liking of the carrier in the companies not - dimensioned

334. - If the transmitting company can reserve the possibility of proceeding to the repurchase of the actions preferably and of imposing it on the carriers, under the reserve that they accepted it, such stipulations can not satisfy all the investors. The imposed repurchase leaves the hand to the company indeed ; however, of the investors can prefer to him the voluntary repurchase, i.e. left with the liking of the carrier. This faculty is offered under certain conditions, in the dimensioned companies, by the article L. 228-20 of the Commercial law^625(*) ; one can wonder whether it is as much in the companies not - dimensioned.

335. - There is not any provision of comparable nature but the article L. 228-20 of the Commercial law for the companies not - dimensioned. However, their characteristics do not support the voluntary withdrawal clauses, since they are equipped with fixed assets.

336. - Thus, the principle of the intangibility of the capital characterizes the limited company^626(*).

To give to a shareholder, was he owner of actions preferably, the right to withdraw itself with its liking of the company, it is him to make it possible to cause an inescapable reduction of capital and thus to apply a clean clause in theory to the only companies with variable capital. However, the nonco-operative limited companies are not authorized any more, since the law of December 30, 1981^627(*), to adopt this characteristic^628(*).

Consequently, on this base, any clause would be criticizable which causes to preferably allow the direct withdrawal of a carrier of actions its initiative without the intervention of the extraordinary general assembly, since the titles will be repurchased by the company itself^629(*).

This reserve is not worth naturally if the repurchase envisaged is put at the load of other people. Such a solution, already practiced for a long time, does not have however the same effectiveness as the pure and simple disappearance of the actions preferably.

337. - The limited partnership with share capitals on the other hand is authorized to stipulate the variability of its capital^630(*). When a SCA adopts such a mode, the capital is not thus intangible any more by definition.

However, variability in general causes to cause fears with the eyes of the thirds. It is, moreover, probable that the company will not function in accordance with the rules which characterize the companies with variable capital with evolutions of the effective capital as well to the rise as with the fall ; if not, the faculty given to any associate to withdraw risk to weaken the company singularly.

On another side, it will be difficult to make admit by the associates whom management can increase the capital without the intervention of the associates. However, the doctrines estimate that a company could not be regarded as company with variable capital if its rules of operation are not in conformity with the legal definition^631(*).

338. - Following the example SCA, SAS can adopt the mode of the company with variable capital. Consequently, the observations emitted in connection with the first apply to the second.

Moreover, independently of this possible option to the mode of the company with variable capital, the provisions specific to SAS call some remarks. The article L. 227-18 of the Commercial law indeed contains an original rule by dissociating the possible purchase by the company of its own actions and the consecutive reduction of capital, intended them to cancel, this one intervening only if the acquired actions were not yielded within 6 month^632(*).

This text does not have however a general range, and appears inapplicable in the situation considered^633(*). The second subparagraph of the article L. 227-18, relating to the repurchase, indeed seems to supplement the first subparagraph, which aims exclusively certain operations^634(*). It would be thus be likely to want to make this text applicable to the assumption where a holder of actions preferably request the repurchase of its titles at the company, with its liking.

339. - In spite of these critical observations, the general rule specific to the actions preferably- according to which the methods of repurchase can be laid down in the statutes^635(*) - lets think that the legislator did not exclude faculty to stipulate the repurchase with the liking of the carriers, even within the companies not - dimensioned^636(*). This opinion is corroborated besides by the provisions of article 206-5 of the decree of March 23, 1967^637(*) : if only the shareholders were qualified to make the decision of repurchase, the regulation would not take place to be.

In the state of the right, the stipulation of a clause of repurchase to the liking of the carriers thus appears allowed, but it is not to exclude that it can be discussed on the base of the intangibility of the capital.

340. - If the withdrawal clause is admitted, it is then necessary to wonder about the procedure to apply.

Initially, it is registered in the statutes by decision of the extraordinary general assembly on report/ratio of the board of directors or the directory^638(*). If its adoption is decided, like generally as of the issue of the shares preferably, it is not necessary to join together the special assembly of the carriers^639(*).

The procedure is then less clear. When a carrier asks for the repurchase of its titles, it appears necessary that the board of directors or the directory meets then to note the request, to decide the repurchase^640(*) and to draw up the report/ratio envisaged in the species^641(*) ; on his side, the auditor draws up the report/ratio concerned article 206-4 of the decree of March 23, 1967, to be put with the first report/ratio at the disposal of the shareholders according to statutory forecasts'. The decision of the body of direction is then deposited at the clerk's office to make run the time of opposition open to the creditors.

The repurchase is carried out and, in any assumption, in accordance with the common right, the shareholder is paid at the end of the time of opposition only. This procedure will be to renew, if necessary, each time a carrier appears.

341. - Conclusion. The creation of the actions preferably, innovation awaited by much, could not have been conceived without being accompanied by protective provisions of the shareholders- who they are the ordinary shareholders of the transmitting company or the future shareholders preferably-, so much this instrument of financing is likely to involve important upheavals on the rights of the shareholders. In the same spirit, it had not been conceivable not to be concerned with fate, in the long term, actions preferably ; also, the writers of the ordinance of June 24 2004 rightly framed the mode of the creation and the disappearance of the actions preferably, while arranging inter alia the information of the shareholders on the matter. Nevertheless, like the developments devoted to the contents of the actions preferably^642(*), force is to note that the courts will have to come to a conclusion about a certain number of questions which, in practice, will not fail to raise certain difficulties.

The birth and death are not however the only moments of the existence ; the actions preferably do not escape this obviousness. During their life, certain social operations are suitable for affect the actions preferably, which consequently brings to wonder about the protection of their holders at the time of such events. They are the same besides being oneself certain provisions of the right of the new issues of capital, which have consequences on the rights of the shareholders in the course of social life.

* ⁶²⁰ Art 206-5, Al 1st of the decree of 23 March 1967, introduced by the decree of February 10, 2005.

* ⁶²¹ Art 206-5, Al 2 of the decree of 23 March 1967, introduced by the decree of February 10, 2005.

* ⁶²² According to MEDEF, rep. préc, p. 8, «  the illiquidity could [...] to be evaluated expressed as a percentage of titles remaining by section of emission, for example a third during one or two exercises  ».

* ⁶²³ Supra n° 321 and S.

* ⁶²⁴ Or that they were accepted later on by the special assembly of the carriers of actions preferably.

* ⁶²⁵ Supra n° 329 and S.

* ⁶²⁶ V. Mr. COZIAN, A. VIANDIER and F. DEBOISSY, Company law, COp préc., n° 230 and S.

* ⁶²⁷ Law n° 81-1162 of December 30, 1981, taken pursuant to the second European directive.

* ⁶²⁸ Art L. 231-1, Al 1st C. Com.: «  It can be stipulated in the statutes of the companies which do not have the shape of limited company as in any co-operative company that the authorized capital is suitable for increase by successive payments of associated or admission of new associates and reduction by the recovery total or partial of the contributions carried out  ».

* ⁶²⁹ 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. 1212  ; P.D' HOIR, the reform of the transferable securities & new issues of capital, COp préc., p. 10.

* ⁶³⁰ Art L. 231-1 C. Com., préc.

* ⁶³¹ V. Mr. JEANTIN, JurisClasseur Companies, fasc. 167-10, n° 1.

* ⁶³² Art L. 227-18, Al 2 C. Com.  : «  When the actions are repurchased by the company, this one is held to yield them within six month or to cancel them  ».

* ⁶³³ 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. 1212.

* ⁶³⁴ Repurchases of actions after the defect of approval of a shareholder, the exclusion- and not the voluntary withdrawal- of a associate, forced withdrawal of an associated company whose control changed hands.

* ⁶³⁵ Art L. 228-12, Al 2 C. Com.

* ⁶³⁶ 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. 1212. Countered, P.D' HOIR, the reform of the transferable securities & new issues of capital, COp préc., p. 10, which is much more dubitative.

* ⁶³⁷ Art 206-5 of the decree of 23 March 1967, introduced by the decree of February 10, 2005  : the report/ratio presented by the board of directors or the directory at the general assembly called to register in the statutes the methods of repurchase must in particular contain the methods of provision of the shareholders of the detailed reports/ratios of the board of directors, the directory and the auditors on the methods of repurchase

* ⁶³⁸ Art 206-5 of the decree of 23 March 1967, introduced by the decree of February 10, 2005.

* ⁶³⁹ Supra n° 323.

* ⁶⁴⁰ Pursuant to the delegation of powers that gave him the extraordinary general assembly.

* ⁶⁴¹ Art 206-4 of the decree of 23 March 1967, introduced by the decree of February 10, 2005.

* ⁶⁴² Supra n° 118 and S.