Extract
[...] This transmission is made by handisby automatic means, without any transfer deed or prior approval being necessary. Thus, to conclude, the merger between the two companies does not require the approval of the board of directors of the SA 'Lacto-Butter', in addition, the clause cannot be opposed to the shareholders of the absorbed company. Therefore, the conditions for the operation of this clause are not met, because the merger involves a universal transfer of shares, a rule that escapes approval. [...]
[...] To what extent can a statutory approval clause apply in the event of share transfer resulting from a merger? In the first place, it is necessary to examine the reregime gGeneral regime of the approval clause in joint-stock companies, detailing its functioning and scope of application Then, in a second time, we will analyze the exceptions to this regime, in particular the question of the transfer of shares in the context of a merger-absorption, and the possibility of applying an approval clause to this specific operation (II). [...]
[...] By a ruling of 22 February 2005, the commercial chamber of the Court of Cassation held that approval only applies to transmissions explicitly provided for in the statutes. A company cannot therefore extend the application of this clause to situations not provided for in the statutes. In the esisthis, the articles of association of Lacto-Beurre SA provide for an approval clause requiring the authorization of the board of directors for any transfer of shares to a non-shareholder third party. This clause is in compliance with the law. [...]
[...] This means that the merger involves a universal transfer of the assets of the absorbed company to the absorbing company, so all the assets and liabilities of the absorbed company are transferred to the absorbing company On December lthe Court of Cassation clarified that the approval clause only applies to the explicitly mentioned transmissions in the statutes. Thus, in the case of a merger, o the transmission of shares is done through the TUP, the approval clause should not apply, unless it explicitly mentions mergers as subject to approval. In addition, by a judgment of January the Court of Cassation recalled that in the context of a merger-absorption, the shares of the absorbed company are transmitted to the absorbing company by the TUP, without a prior approval being necessary. [...]
[...] In fact, in accordance with Article L. 228-23 of the Commercial Code, the company to the possibilityit is to impose such a clause in order to regulate the issue of shares and thus protect its capital and the composition of its shareholders. However, it will be necessary to see in the following part that this reportscheme ggenerally knows exceptions. In particular, in the context of certain share transfers, such as those resulting from a merger, the approval clause does not necessarily apply, as the transfer of shares in this case relates toisof a universal transfer of assets. [...]
