All of French Company Law: ordinary law of companies and specific regime for different types of companies

Company Law (en cours)

The preemption clause is one by which the shareholder who wishes to transfer their shares undertakes to offer them first to the other shareholders of the company . The stated objective of such a clause is to maintain the existing dynamics of capital distribution. Preemption clauses can be included in the statutes  and are thus binding on all shareholders , or in extrastatutory agreements such as s …

Validity and operation

LE CANNU, Validity and effects of a statutory preemption clause in a non-listed joint stock company, BJS 1990, 325; BOUERE, Some remarks on statutory preemption clauses reserved for a specific category of shareholders, BJS 1992, 376.

The preemption clause is one by which the shareholder who wishes to transfer their shares undertakes to offer them first to the other shareholders of the company . The stated objective of such a clause is to maintain the existing dynamics of capital distribution. Preemption clauses can be included in the statutes  and are thus binding on all shareholders , or in extrastatutory agreements such as shareholders' agreements, which bind only their signatories.

Jurisprudence has long accepted the validity, considering that a statutory preemption right established for the benefit of capital holders is not subject to invalidity on the grounds that it would constitute a disguised approval clause, even if the transferor is required to notify the name of the transferee, as long as the clause does not subject the preemption to the decision of the company's governing bodies but leaves it to the individual initiative of the shareholders, solely to allow them to verify the reality, seriousness, and terms of the transfer project, and that the transferee, when it is a shareholder, is not prevented from acquiring shares since they can, concurrently with other partners and without any discrimination among them, exercise their own preemption right . Given the silence of the law, practice tends to subject them to the same rules that govern approval clauses insofar as they lead to the same result encountered in the event of a refusal of approval.

The non-compliance with a preemption clause concerning the transfer of shares, within the scope of a merger by absorption operation, causes harm to its beneficiary, who is deprived of their position as an equal shareholder and the ability to resell the shares in question as a block offering decision-making power in the company's life . As a third party to the preemption agreement, the excluded purchaser, who has no legal connection with the beneficiary, does not have standing to seek annulment of the preemption decision or the transfer of shares in their favor .

Cass. com., 15 December 2009, LawLex202200001646JBJ.

Cass. com., 17 March 2009, LawLex202200004742JBJ.

Cass. com., 15 February 1994, LawLex202300012005JBJ.

Paris, 14 March 1990, LawLex202300012010JBJ.

Paris, 21 January 2005, LawLex202300012008JBJ.

Cass. com., 2 February 2016, LawLex202300005774JBJ.

Company Law (en cours)

472. Validity and operation(1)

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

472. Validity and operation.css-17rnqzd{cursor:pointer;margin-left:4px;-webkit-text-decoration:underline;text-decoration:underline;}(1).css-1exptwg{z-index:1500;color:#FFFFFF;font-family:IBM Plex Sans,sans-serif,Playfair Display,serif;font-size:16px;line-height:body1.lineHeight;}

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

472. Validity and operation(1)

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise