The shareholder loan: potential leverage for minority shareholders? – Comment

0

Background
Facts
Decision
Comment

In M&A operations where minority shareholders remain in the capital of a company following a change in control of the target, the acquirer must pay particular attention to shareholder loans.

Background

In French law:

  • “Management expertise” allows minority shareholders of certain types of companies to obtain additional information on specific management actions. As part of this procedure, a commercial court appoints a legal expert responsible for drawing up a report which assesses the specific management act on which the request for management expertise is based, with regard to its conformity with the object social of the company, its interests and the economic situation the advisability and the extent of the operation.
  • Agreements entered into, directly or through an intermediary, between a company and one of the following natural or legal persons are referred to as “regulated agreements”:
    • his legal representative;
    • one of its administrators;
    • one of its shareholders holding more than 10% of the voting rights; Where
    • when the shareholder is a legal entity, the company that controls it within the meaning of Article L. 233-3 of the Commercial Code.

These agreements are subject to a specific procedure and, depending on the type of company concerned, they require the prior agreement of the directors or the a posteriori approval of the shareholders, except in the case of “usual agreements” entered into under conditions normal. In any event, regulated agreements are also the subject of a report by the company’s auditor (if applicable), which is provided to the general meeting approving the annual accounts.

Facts

On September 25, 2019, the Bordeaux Court of Appeal ruled in favor of a minority shareholder who had obtained:

  • a management expert order relating to the plaintiff’s shareholder loan, which had been granted to one of the companies concerned; and
  • an injunction under penalty against the legal representative of two French companies to provide the plaintiff with the annual accounts and other corporate documents of the companies concerned.

Decision

On April 21, 2022, the Court of Cassation confirmed that a shareholder loan is a management act that may give rise to a request for management expertise.

In addition to ruling on this question, the Court recalled that any shareholder loan must be considered as a regulated agreement.

Comment

Two immediate conclusions can be drawn from this decision.

Firstly, in the event of an acquisition where there are minority shareholders in the capital of the target, the acquirer granting a shareholder loan to the target must consider whether the regulated agreement procedure must be complied with.

However, despite the generality of the assertion of the French Court of Cassation that shareholder loans are regulated agreements, it should be noted that this decision was rendered in restricted formation, which suggests that it is not is not a general decision that applies to a wide range of situations. Therefore, it could be argued that a more objective approach is needed to determine whether a shareholder loan is a regulated agreement or a “customary agreement” entered into at arm’s length.

Secondly, if the loan granted by a minority shareholder is not repaid following a change of control, the buyer must be aware that, as long as this loan remains in place, this could be a means for this minority shareholder to obtain a management expertise procedure .

For more information, please contact Gwenaelle de Kerviler, Alain Levy Where Nathalie Lastennet to AYACHE by phone (+33 1 58 05 38 05) or email ([email protected], [email protected] Where [email protected]). The AYACHE website can be accessed at www.ayachelaw.com.

Share.

Comments are closed.