The question that arises is: to what extent are agreements in which a share buyer acquires the right to resell his shares for a pre-regulated price (i.e. the initial investment price), the so-called « put » option, able to pass the Leonine clause test? As you know, the administration of justice in the preliminary instances was initially strict and safe maintenance (exclusion of losses) was simply prohibited. However, two judgments of the Court of Cassation were revolutionary because, for the first time, they allowed a partner to take a risk-free stake in a company. The first judgment of the Court of Cassation is a judgment of 5 November 1998, known as the Torraspapel judgment. That judgment is characterised by the `criterion of independence of cause and effect`, the Court of Cassation `holding that only a clause which disturbs the balance of the social agreement within the meaning of Article 1855(2) para. Civ. The code or that, although it actually seems to have another subject, has the same purpose, is prohibited. « In its judgment of 29 May 2008, also known as the Amon Ra judgment, the Court of Cassation established a new theory centred on the interests of the company: an agreement in which one party acquires a stake in a company, provided that the other partners undertake to take those shares against a predetermined price at the end of a certain period or if a specific condition is met, redeem. does not fall within the prohibition in Article 32 of the Comp. Code « if this agreement serves only the interests of the company ». In that sense, an agreement authorising the holding fund to resell to shareholders its stake acquired as part of a capital increase, against a predetermined price, was considered to be `non-leonine`.
After all, this was part of the company`s financing needs and the holding fund was never designed to develop a coexistence of companies. However, apart from these financings, agreements containing put options may be justified in the light of the company`s requirements. For example, a stabilization of stock holdings can serve the interest of the company. In 2015, the theory of the pure and simple interest of the company is gaining ground because of its practical approach in the courts. The concept of « business interest » is a broad and flexible concept in Belgian company law. The need to link them to the real intention of the parties is much lower than for the criterion of cause and effect independence: the question is whether the put option provides an advantage to the enterprise. Of course, the option holder will always have their own interest in obtaining this sell option, but this should not outweigh the company`s interest in this agreement. For each situation, it is necessary to consider whether a partner is exempt from any contribution to the loss, taking into account the actual circumstances of the option, in particular the duration of the option, the option price, the objective, but also the interpretation of the concept of « loss ». In general, the purpose of each partner`s contribution must be subject to the risk of the company`s activity. If the pricing provision contained in the option agreement allows the option beneficiary to leave the company for a price that guarantees that he will not suffer a loss on his initial contribution, that agreement could be concluded under Article 32 of the Companies Code (`comp. .