ON LINE OHADA ENACTMENTS
UNIFORM ACT RELATING TO COMMERCIAL COMPANIES AND ECONOMIC INTEREST GROUP
UPDATED 2014 VERSION
(French version. English version not yet available)
The Council of Ministers of the Organization for the Harmonization of Business Law in Africa (OHADA),
Mindful of the Treaty on the Harmonization of Business Law in Africa, in particular Articles 2, 5, 6, 7, 8, 9, 10, 11 and 12 thereof;
Mindful of the report of the OHADA Permanent Secretariat and the observations of the Contracting States;
Mindful of the opinion of the Common Court of Justice and Arbitration dated 7 April 1997;
The Contracting States present have deliberated upon and unanimously adopted the Uniform Act set out below:PRELIMINARY CHAPTER SCOPE OF THE PROVISIONS OF THIS UNIFORM ACT
Every commercial company, including those in which the State or a corporate body governed by public law is a partner, whose registered office is located on the territory of one of the Contracting States to the Treaty on the Harmonization of Business Law in Africa (hereinafter referred to as "Contracting States") shall be subject to the provisions of this Uniform Act.
All economic interest groups shall equally be subject to the provisions of this Uniform Act.
Besides, commercial companies and economic interest groups shall be subject to the laws which are not contrary to the provisions of this Uniform Act applicable in the Contracting States of their registered office.Article 2
The provisions of this Uniform Act are mandatory, except in cases where the Act explicitly authorizes a sole partner or the partners of a company to substitute contractual provisions between them for those of this Uniform Act or to supplement the provisions of this Uniform Act with their own provisions.Article 3
Any persons, whatever their nationality, wishing to engage in a commercial activity in the form of a company on the territory of one of the Contracting States, shall choose a form of company which suits the activity envisaged from among those provided for by this Uniform Act.
The persons referred to in the preceding paragraph may also elect, under the conditions provided for by this Uniform Act, to form an economic interest group.
A commercial company shall be formed by two or more persons who agree, by contract, to assign assets in cash or in kind to an activity for the purpose of sharing profits or benefiting from savings that may derive therefrom. The partners of the company shall accept to bear losses under the conditions stipulated in this Uniform Act.
A commercial company shall be formed in the common interest of the partners.Article 5
A commercial company may also be created, as provided by this Uniform Act, by a single person, referred to a "sole proprietor", on the basis of a written document.Article 6
The commercial nature of a company shall be determined by its form or object.
Private Companies, Sleeping Partnerships, private limited companies and public limited companies are commercial companies by virtue of their form, irrespective of their object.TITLE 2 CAPACITY TO BE A PARTNER
Any natural person or corporate body may be a partner in a commercial company where he is not subject to any prohibition, incapacity or incompatibility as defined notably in the Uniform Act Relating to General Commercial Law.Article 8
Minors and legally incapacitated persons may not be partners in a company where their liability for the company's debts exceeds their contributions.Article 9
A husband and wife may not be partners in a company in which they shall be indefinitely or jointly and severally liable for the company's debts.
The Articles of Association shall be established by a notarial deed or by any other instrument that ensures legal validity in the State of the company's registered office. Such instrument, together with a certification of the writing and signatures of all the parties, shall be deposited as originals in a notary's office. They may be amended only by the same procedure.Article 11
Where the Articles of Association are drawn up in a private document, as many original copies shall be established as shall be needed to deposit one copy in the company's registered office and to fulfil all the required formalities. A copy of the Articles of Association on plain unheaded paper shall be given to each partner. However, in the case of Private Companies and Sleeping partnerships, one original copy shall be given to each partner.Article 12
The Articles of Association shall either be a partnership deed, in the case where there are several partners, or a unilateral deed of intent, in the case of a sole proprietor.CHAPTER 2 CONTENTS OF THE ARTICLES OF ASSOCIATION - MANDATORY NFORMATION
The Articles of Association shall contain the following information:
(1) the form of the company;
(2) the name of the company, followed by its acronym where necessary;
(3) the nature and field of the company's activity which constitute its object;
(4) the company's registered office;
(5) its duration;
(6) the identity of contributors in cash and, for each of them, the amount of their contribution and the number and value of the shares handed over in exchange for each contribution;
(7) the identity of contributors in kind, the nature and value of the contribution made by each of them, the number and value of the shares handed over in exchange for each contribution;
(8) the identity of persons enjoying special benefits and the nature of such benefits;
(9) the amount of the registered capital;
(10) the number and value of shares issued, stating, where necessary, the various classes of shares;
(11) the provisions relating to the distribution of profits, the constitution of reserves and the distribution of the bonus after liquidation;
12) the rules governing the functioning of the company.CHAPTER 3 COMPANY NAME
Every company shall have a name which shall be mentioned in its Articles of Association.Article 15
Unless otherwise provided for in this Uniform Act, the name of one or more partners or former partners may be included in the company name.Article 16
A company may not take the name of another company which is already registered in the Trade and Personal Property Credit Register.Article 17
The company name shall appear on all deeds and documents from the company to third parties, especially letters, bills, notices and various publications. It shall be preceded or followed immediately by an indication of the form of the company, the amount of its registered capital, the address of its registered office and its registration number in the Trade and Personal Property Credit Register.Article 18
The company name may be changed under the conditions stipulated in this Uniform Act for amending the Articles of Association for each form of company.CHAPTER 4 OBJECT OF THE COMPANY
Every company shall have an object which shall constitute the company's activity and which shall be identified and described in the Articles of Association..Article 20
Every company shall have a lawful object.Article 21
Where the company is engaged in a regulated activity, it shall comply with the special regulations governing such activity.Article 22
The company's object may be changed under the conditions stipulated in this Uniform Act for amending the Articles of Association for each company.CHAPTER 5 REGISTERED OFFICE
Every company shall have a registered office which shall be indicated in the Articles of Association.Article 24
Partners shall decide on the location of the registered office either at the company's principal place of activity, or at the place where its administrative and financial services are concentrated.Article 25
The registered office may not consist solely in a postal address. It shall be localized by an address and or a specific and adequate geographic indication.Article 26
Third parties may rely on the statutory registered office but it may not be relied upon by the company as against them where the real registered office is located elsewhere.Article 27
The registered office may be changed under the conditions stipulated in this Uniform Act for amending the Articles of Association for each form of company. However, it may be transferred to a different location in the same town by a simple decision of the company's management or administration.CHAPTER 6 DURATION - EXTENSION
Every company shall be set up for a duration which shall be indicated in the Articles of Association.
The duration of the company may not exceed ninety-nine years.Article 29
The existence of a company shall begin on the date on which it is entered in the Trade and Personal Property Credit Register, unless otherwise provided by this Uniform Act.Article 30
The expiry of the term shall entail the automatic dissolution of the company, unless an extension has been decided upon the conditions laid down in Articles 32 et seq. of this Uniform Act.Article 31
The duration of the company may be changed under the conditions laid down in this Uniform Act for the amendment of the Articles of Association for each form of company.Section 2
The existence of a company may be extended one or more times.Article 33
The extension of the duration of the company shall be done under the conditions laid down in this Uniform Act for the amendment of the Articles of Association for each form of company.Article 34
The extension of the duration of a company shall not entail the creation of a new legal entity.Article 35
The partners shall be consulted at least one year before the date of expiry of the company to decide whether or not to extend the duration of the company.Article 36
Failing this, any partner may request the president of the competent court within whose jurisdiction the registered office is located to designate, by summary proceedings, a legal representative to initiate the consultation provided for in the preceding article.CHAPTER 7 CONTRIBUTIONS
Each partner shall contribute to the capital of the company.
Each partner shall owe the company what he has pledged to contribute in cash or in kind.Article 38
In return for their contribution, the partners shall receive shares issued by the company, as defined in Article 51 of this Uniform Act.Article 39
The provisions of this chapter shall apply to contributions made during the existence of the company, at the time of an increase of capital.Section 2
Types of contributions
Each partner may contribute to the company:
1) money, as a contribution in cash;
2) services, as a supply of labour;
3) rights on movable or immovable, tangible or intangible property, as a contribution in kind.
Any other contribution shall be forbidden.Section 3
Realization of Contributions in cash
Contributions in cash shall be effected by the partner transferring to the company the ownership of the amount of money that he has pledged to contribute.
Unless otherwise provided in this Uniform Act, contributions in cash shall be fully paid up at the time of formation of the company.Article 42
The only cash contributions that shall be considered as fully paid up are those over which the company has acquired ownership and which are fully and finally placed in its coffers.Article 43
In case of a delay in payment, the balance due to the company shall automatically bear interest at the official rate from the date on which the payment was due, without prejudice to the payment of damages, if any.Article 44
Contributions in cash at the time of an increase of capital of a company may, unless forbidden by the Articles of Association, be realized through off-set with an unquestionable, liquid and due claim on the company.Section 4
Realization of Contributions in kind
Contributions in kind shall be made by the transfer of real or personal rights in the property contributed and the effective conveyance to the company of the property to which those rights are attached.
Contributions in kind shall be fully paid up at the time of formation of the company.Article 46
Where the contribution is in the form of property, the contributor shall stand security for the company as a vendor for the buyer.Article 47
Where the contribution is in the form of a leasehold, the contributor shall stand security for the company like a lessor for the lessee. However, where the contribution is in the form of interchangeable goods or any other property which normally needs to be renewed during the existence of the company, the contract shall transfer ownership of the property to the company, on condition that it gives an equal quantity, quality and value in return. In that case, the contributor shall stand security for the company under the conditions provided in the preceding article.Article 48
Contribution by property or a right subject to publication before it may be relied upon as against third parties may be published before the company is registered. The retroactive effect of this formality can only begin from the date the company is registered.Article 49
The partners shall evaluate the contributions in kind.
In the cases provided for by this Uniform Act, such evaluation shall be checked by a contributions assessor.Article 50
The Articles of Association shall make provision for the evaluation of contributions in kind, under the conditions laid down in this Uniform Act.CHAPTER 8 COMPANY SHARES
A company shall issue shares in return for its partner's contributions. Such shares shall represent the partners' rights and shall be referred to as shares in joint-stock companies, and stocks in the other companies.Section 2
Company shares shall be personal property.Section 3
Rights and obligations attached to shares
Company shares shall confer on their holders the following rights and obligations:
(1) a right to a share of the company's profits whenever they are distributed;
(2) a right to the company's net assets when shared following the dissolution of the company or where the company's share capital is reduced;
(3) where necessary, the obligation to share in the company's losses under the conditions laid down for each form of company;
(4) the right to participate in and vote on the collective decisions of the partners, unless otherwise provided by this Uniform Act for certain classes of shares.Article 54
Unless otherwise provided in the Articles of Association, the rights and obligations of each partner as stipulated in Article 53 of this Uniform Act shall be proportional to the amount of his contributions, whether such contributions were made during the formation of the company or during the existence of the company.
However, provisions attributing all of the company's profits to a partner, or exonerating a partner from all liability for losses, as well as those excluding a partner from sharing in the profits or charging all losses to one partner shall be deemed to be unwritten.Article 55
The rights referred to in Article 53 of this Uniform Act shall be exercised under the conditions laid down for each form of company. Such rights may only be suspended or cancelled by express provisions of this Uniform Act.Section 4
The shares issued by a company shall have the same face valueSection 5
Negotiability - Transferability
Company stocks shall be transferable. Shares shall be transferable or negotiableArticle 58
Public limited companies shall issue negotiable shares.
It shall be forbidden for companies other than those referred to in paragraph one of this article to issue such shares, under penalty of the contracts signed or the shares issued being null and void. It shall also be forbidden for such companies to underwrite the issue of negotiable instruments, under penalty of such underwriting being null and void.Article 59
Where there is provision for a partner's rights to be transferred or redeemed by the company, the value of such rights shall be determined, where the parties fail to agree, by an expert designated either by both parties or, failing that, by order of the competent court through summary proceedings.Section 6
Sole ownership of shares
In the case of companies in which sole proprietorship is not allowed by this Uniform Act, the ownership of all the shares by a single person shall not entail the automatic dissolution of the company. Any party concerned may petition the president of the competent court for such dissolution where the situation is not regularized within a period of one year. The court may grant the company a maximum period of six months to regularize the situation. It may not order the dissolution where, on the date of ruling on the merits of the case, the situation has been regularized.CHAPTER 9
Every company shall have a registered capital which shall be indicated in its Articles of Association, in accordance with the provisions of this Uniform Act.Article 62
The registered capital shall represent the amount of capital contributions made by the partners to the company, plus, where necessary, capitalization of reserves, profits or issue premiums.Article 63
In return for the contributions, the company shall allot to each contributor, shares of a value equal to the value of his contributions.
In return for the capitalization of reserves, profits and issue premiums, the company shall issue shares or raise the face value of existing shares. These two procedures may be carried out concurrently.Article 64
The registered capital shall be divided into shares or stocks, depending on the form of the company.Section 2
Amount of the registered capital
The amount of the registered capital shall be freely determined by the partners.
However, this Uniform Act may fix a minimum registered capital according to the form or object of the company.Article 66
Where the capital of the company being formed is less than the minimum amount fixed by this Uniform Act, the company may not be validly formed.
Where, after being formed, the company's capital drops to an amount below the minimum fixed by this Uniform Act for that form of company, the company shall be dissolved, unless the capital is raised to an amount at least equal to the fixed minimum amount, under the conditions stipulated by this Uniform Act.Section 3
Modification of the capital
The registered capital shall be fixed. However, it may be increased or reduced under the conditions laid down by this Uniform Act for the amendment of the Articles of Association of each form of company.Article 68
The registered capital may be increased where new contributions are made to the company or where reserves, profits and issued premiums are capitalized.Article 69
The registered capital may be reduced under the conditions laid down by this Uniform Act, by refunding part of the partners' contributions or by imputing losses to the company.Article 70
Where this Uniform Act authorizes the reduction of capital by the refund of part of the partners' contributions, this may be done either by a cash refund or by allotment of assets.Article 71
Reduction of capital shall be subject to the conditions stipulated in Articles 65 and 66 of this Uniform Act.CHAPTER 10 AMENDMENT OF THE ARTICLES OF ASSOCIATION
The Articles of Association may be amended under the conditions stipulated by this Uniform Act for each form of company.
A partner's commitments may, under no circumstances, be increased without his consent.CHAPTER 11 DECLARATION OF REGULARITY AND CONFORMITY OR NOTARIAL STATEMENT OF SUBSCRIPTION AND PAYMENT
The founders and first members of the management organs of the company, directors and managing directors shall deposit at the Trade and Personal Property Credit Register a declaration in which they describe all the actions carried out towards the regular formation of the company and by which they affirm that such formation has been carried out in conformity with this Uniform Act.
This document shall be referred to as the "declaration of regularity and conformity". It shall be presented under penalty of rejection of the application for registration of the company in the Trade and Personal Property Credit Register.
The declaration shall be signed by its authors. However, it may be signed by one of the said persons or several of them provided they are empowered to do so.Article 74
The provisions of the preceding article shall not apply where a notarial statement of subscription and payment has been drawn up and deposited under the conditions stipulated by this Uniform Act and by the Uniform Act relating to General Commercial Law.CHAPTER 12 NON-COMPLIANCE WITH FORMALITIES - RESPONSIBILITIES
Where the Articles of Association do not contain all the information stipulated by this Uniform Act or where a formality prescribed by this Act for the formation of the company is neglected overlooked or is improperly fulfilled, any interested party may petition the competent court within whose area of jurisdiction the company's registered office is located to order, under financial compulsion, the proper formation of the company. The public prosecutor may also initiate action to the same end.Article 76
The provisions of Articles 73 and 74 of this Uniform Act shall apply in the case of amendment of the Articles of Association.Article 77
The action for regularization shall lapse after a period of three years from the date of registration of the company or from the date of publication of the deed amending its Articles of Association.Article 78
The founders, as well as the first members of the management organs of the company, directors or managing director shall be jointly and severally liable for torts deriving either from the omission of a mandatory detail in the Articles of Association, or from the omission or improper fulfilment of a prescribed formality in the formation of the company.Article 79
In the event of amendment of the Articles of Association, the members of the management organs, directors or managing directors in office at the time shall incur the same liabilities as those laid down in the preceding article.Article 80
The liability action provided in Articles 78 and 79 of this Uniform Act shall lapse after five years from the date of registration of the company or of publication of the act to amend the Articles of Association, as the case may be.TITLE 4 PUBLIC CALLS FOR CAPITAL
CHAPTER 1 SCOPE OF PUBLIC CALLS FOR CAPITAL
The following shall be deemed to be making a public call for capital:
- companies whose shares are listed on the stock exchange of a Contracting State, from the date of registration of such shares;
- companies which, in order to offer any type of shares to the public in a Contracting State, resort to credit establishments or stock brokers, or use any form of publicity or canvassing.
There shall equally be a public call for capital where the shares are distributed beyond a radius of one hundred (100) persons. In determining this figure, each company or collective bodies investing transferable securities shall be considered as a single entity.Article 82
It shall be forbidden for companies not authorized by this Uniform Act to launch public calls for capital by registering their securities on the stock exchange of a Contracting State or by investing their shares as part of an issue.Article 83
The share offer referred to in Article 81 of this Uniform Act shall mean the investment of shares either in the form of an issue or a transfer.Article 84
A company whose registered office is located in a Contracting State may invest its shares in one or more other Contracting States by making public offers. In such case, it shall be subject to the provisions of Articles 81 to 96 of this Uniform Act in the Contracting State of its registered office and in said other Contracting States.
Where the public offer of shares is not made by the issuer, the company making the offer shall be subject to the provisions of Articles 81 to 96 of this Uniform Act in the Contracting State of the issuer and in the other Contracting States where the public offer is made.Article 85
Where a company whose registered office is located in one Contracting State launches a public issue in another Contracting State, one or more credit establishments in that other Contracting State shall guarantee the proper performance of the operation where the total amount of the offer is more than fifty million (50 000 000) CFA francs.
Such a company shall, in any case, be required to have financial backing for the operation from one or more credit establishments in that other Contracting State.
Where the total amount of the operation exceeds 50,000,000 (fifty million) CFA francs, the company shall designate, from the list of auditors in that other Contracting State, one or more auditors to verify the financial statements. The auditor(s) shall sign the information document provided in Article 86 of this Uniform Act, amended or supplemented, as the case may be, in accordance with the provisions of Article 90 of this Uniform Act.CHAPTER 2 INFORMATION DOCUMENT
Any company which makes public calls for capital shall, first of all, publish in the Contracting State of the registered office of the issuer and, where necessary, in every other Contracting State where the call for capital is launched, a document aimed at informing the public and dealing with the organization, financial situation, activity and prospects of the issuer as well as the rights attached to the securities being offered to the public.Article 87
Where a company makes public calls for capital in a Contracting State other than that of its registered office, the information document presented to the authorities referred to in Article 90 of this Uniform Act shall contain information specific to the market of that Contracting State.
Such information shall, in particular, deal with the income tax schedule, the establishments which provide financial backing to the issuer in that Contracting State, and the manner of publication of notices intended for investors.
The information document shall contain a detailed presentation of the financial guarantors referred to in Article 85 of this Uniform Act, who, in turn, shall provide the same information as the company whose securities are being offered, with the exception of information relating to the shares to be offered to the public.Article 88
Some information may not be included in the information document where:
(1) such information is of lesser importance and is unlikely to influence the appraisal of the assets, financial situation, performance or prospects of the issuer;
(2) disclosure of such information is contrary to public interest;
(3) disclosure of such information may cause serious harm to the issuer and where failure to publish same would not mislead the public;
(4) the person making the offer is not the issuer and does not have access to such information.Article 89
The investment memorandum may refer to any other information document approved by the authorities referred to in Article 90 of this Uniform Act less than one year before where the said document was drawn up for securities of the same category and contains the latest approved annual financial statements of the issuer and all the information required under Articles 87 and 88 of this Uniform Act.
The approved investment memorandum shall then be supplemented by an operation memorandum comprising:
(1) information on the shares offered;
(2) any accounting data published after the initial approval;
(3) data on new significant events likely to influence the evaluation of the shares being offered.Article 90
The draft information document shall be submitted for the approval of the stock exchange control authority in the Contracting State of the issuer's registered office and, where necessary, in the other Contracting States in which the public calls for capital are made. Where there is no such authority, it shall be submitted to the minister in charge of finance of the Contracting States for endorsement.
The said authorities shall ensure that the operation does not contain any irregularities and does not entail acts contrary to the interests of investors in the Contracting States of the issuer's registered office and, where necessary, in the other Contracting States in which the public call is made.
The authorities shall indicate the statements to be corrected or details to be included. They may also request explanations or justification, particularly as concerns the situation, activity and performance of the company. They may request that the auditors carry out further investigations at the expense of the company, or a review by an independent expert designated with their approval, where they feel the auditors are not diligent enough.
They may request that a warning drafted by them be included in the information document. They may also ask for any appropriate guarantees in pursuance of Article 85 of this Uniform Act.
The authorities referred to in this article shall grant the approval provided for in paragraph one within a period of one month following the date of acknowledgement of receipt of the information document. This time limit may be extended to two months where the authorities request further investigations. The acknowledgement of receipt of the information document shall be issued on the day the document is received.
Where the stock exchange control authority or, failing this, the minister in charge of finance decides not to grant the approval, the company shall be notified of the reasons therefor within the same time limit.Article 91
Approval shall not be granted where the demands made by the stock exchange control authority or, failing this, the minister in charge of finance of the Contracting State of the issuer's registered office and, where necessary, of the other Contracting States in which the public calls for capital are not met, or where the operation entails acts contrary to the interests of the investors in the Contracting State of the registered office or, where necessary, of the other Contracting States where the public call is made.Article 92
Where important new events likely to affect the evaluation of the public issue occur between the date of approval and the beginning of the planned operation, the issuer or the initiator of the offer shall draw up an additional updated document which, before circulation, shall be submitted for approval to the stock exchange control authority or, failing this, the minister in charge of finance of the Contracting State of the issuer's registered office and, where necessary, of the other Contracting States in which the public issue is launched.Article 93
The information document shall be effectively circulated in the following forms in the Contracting State of the issuer's registered office and, where necessary, in the other Contracting States where the public call is made:
1) publication in newspapers empowered to publish legal notices;
2) placement of a brochure at the disposal of any person wishing to consult it at the registered office of the issuer and in the institutions providing financial backing for the securities; a copy of the document shall be sent free of charge to any interested party.Article 94
Advertisements of the operation shall mention the existence of the approved information document and how to obtain one.Article 95
An information document shall not be required where:
(1) the offer is intended for persons within the framework of their professional activities;
(2) the total amount of the offer is less than fifty million (50,000,000) CFA francs;
(3) the offer concerns shares or stock of collective bodies investing transferable securities other than closed-end ones;
(4) the offer is intended as transferable securities in return for contributions made during a merger or as partial contributions of capital;
(5) the issue concerns capital stock allotted freely during the payment of dividend or capitalization of reserves;
(6) the transferable securities offered come from the exercise of a right over transferable securities whose issue gave rise to the drawing up of an information document;
(7) the transferable securities are issued as a substitute for shares in the same company and their issue does not entail an increase of capital by the issuer.Article 96
The provisions of Articles 81 to 96 of this Uniform Act shall apply to any offer of security by public calls for capital, except the investment of securities by each Contracting State on its territory.TITLE 5 REGISTRATION - LEGAL PERSONALITY
CHAPTER 1 GENERAL PROVISIONS
With the exception of Sleeping partnerships, all companies shall be registered in the Trade and Personal Property Credit Register.Article 98
All companies shall have a legal personality with effect from the date of registration in the Trade and Personal Property Credit Register, unless otherwise provided for in this Uniform Act.Article 99
The regular transformation of a company from one form of company into another shall not entail the creation of a new legal entity. The same shall apply to an extension of the existence of a company or any other amendments of the Articles of Association.
A company shall be deemed to be under formation where it has not yet been incorporated
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