Options croisées en cas d’impasse (deadlock)

C’est une clause qui assure aux actionnaires, dont le rapport de forces est identique, un mécanisme leur permettant de mettre fin à situation de paralysie des organes de prise de décision de la société.

Par cette clause, les parties s’engagent mutuellement, en cas de blocage, à se céder leurs actions selon certaines modalités. Plusieurs variantes existent.

Avocats liés

Quentin de Bournonville

Example 1

Article 12. Deadlock and Deadlock resolution
12.1. There is a deadlock if a resolution is proposed to the General Meeting and one of the following applies by reference to article 4.2:
(a) at a properly convened meeting of Shareholders, a resolution on a Reserved Matters is blocked.
12.2. Any party may within 28 days of the meeting at which the deadlock arises or within 28 days of the date of the resolution in respect of which the deadlock arises (as the case may be) serve notice on the other party (Deadlock Notice):
(a) stating that in its opinion a deadlock has occurred; and
(b) identifying the matter giving rise to the deadlock.
12.3. The parties undertake that they shall use all reasonable endeavours in good faith to resolve the deadlock.
12.4. If the Parties are unable to resolve a deadlock within 14 days, then any Party may within 28 days of the expiry of the 14 day period serve a Deadlock Resolution Notice on the other.
12.5. A Deadlock Resolution Notice is a notice served, by registered letter only, by one party on the other in which the server offers, at the price for each share specified in the notice (in cash and not on deferred terms), either to sell all its shares in the Company to the recipient of the notice or to buy all the recipient’s shares in the Company.
A Deadlock Resolution Notice may not be revoked.
12.6. The recipient of a Deadlock Resolution Notice may choose to do either of the following, at the price for each share specified in the Deadlock Resolution Notice, by serving a counter-notice within 28 days of receiving the Deadlock Resolution Notice:
(a) buy all the shares in the Company of the server of the Deadlock Resolution Notice; or
(b) sell all its shares in the Company to the server of the Deadlock Resolution Notice.
12.7. If no counter-notice is served within the period of 28 days available, the recipient of the Deadlock Resolution Notice is deemed to have accepted the offer in the Deadlock Resolution Notice at the expiry of that period.
12.8. The service of a counter-notice, or deemed acceptance of the Deadlock Resolution Notice, shall bind the parties to buy and sell the shares (as the case may be).
12.9. If several parties serve a Deadlock Resolution Notice, only the first Deadlock Resolution Notice to be served shall be effective, based on the date shown on the receipt of sending of a registered letter .
12.10. If at the end of the 28 day period referred to in article 12.4, neither party has served a Deadlock Resolution Notice, other Shareholders can serve a Deadlock Resolution Notice. If at the end of this additional 28 day period, no party has served a Deadlock Resolution Notice, any Party may elect by written notice served on the other parties for the Company to be wound up.
12.11. The party acquiring the Shares shall notify the other Shareholders and the Company of the acquisition of the Shares. Interested Shareholders will have 28 days to decide whether they wish to exercise a right of first refusal in respect of the newly acquired Shares. This right is exercised on a pro rata basis.
12.12. References in this article to shares held by a party in the Company are to all the shares in the Company by that party and not to some only of those shares.