ON LINE OHADA ENACTMENTS

UNIFORM ACT RELATING TO COMMERCIAL COMPANIES AND ECONOMIC INTEREST GROUP



Paragraph 3 Agenda

Article 800

The agenda shall be drawn up by the convenor. However, one or more bondholders representing at least one-thirtieth of the company's bonds shall have the option of requesting that draft resolutions be included on the agenda.

The draft resolutions shall be included on the agenda and submitted to the meeting by the chairman for approval.

The meeting may not deliberate on any matter which is not included on the agenda.

On the second invitation, the agenda may not be amended.

Paragraph 4 Representation

Article 801

Every bondholder shall be entitled to participate in the meeting or to be represented by any person of his choice.

Persons who may not represent the group by virtue of Article 787 of this Uniform Act may not represent bondholders in the meeting.

Paragraph 5 Conduct of meetings

Article 802

The meeting shall be presided over by a representative of the group. Where there are several representatives and there is disagreement among them, the meeting shall be presided over by a bondholder in attendance representing the highest number of bonds.

Where the meeting is convened by an attorney-in-fact, it shall be presided over by him.

The rules governing the conduct of shareholders' meetings shall apply, where appropriate, to bondholders' meetings.

Article 803

The ordinary meeting of bondholders shall deliberate on the appointment of the group's representatives, their term of office, a determination, where necessary, of their remuneration, their replacement, their convening and any other measure intended to ensure the defence of bondholders and the execution of the loan contract, on the management expenditure that such measures could incur and, in general, on all measures of a protective or administrative nature.

Article 804

The extraordinary meeting of bondholders shall deliberate on every recommendation likely to modify the loan contract, in particular the following :

(1) the change of object or form of the company ;

(2) its merger or scission ;

(3) any proposal of compromise or settlement of rights in dispute or rights which have been the subject of a court decision ;

(4) the total or partial modification of guarantees or extension of due date ;

(5) change of registered office ;

(6) winding up of the company.

Paragraph 6 Voting rights

Article 805

Voting rights attached to bonds shall be proportionate to the fraction of the amount of the loan which they represent.

Each bond shall give right to at least one vote.

Bondholders may vote by correspondence under the same conditions and form as shareholders in shareholders' meetings.

Article 806

A company holding at least 10% of the capital of the debtor company may not vote during the meeting using the bonds it holds.

Article 807

In case of dismemberment of ownership of the bonds, the voting right shall belong to the bare owner, unless otherwise provided by the parties.

Paragraph 7 Decisions of the meeting

Article 808

The meetings may neither increase the responsibility of bondholders nor practise unequal treatment between bonds of the same issue.

Article 809

Failing approval by the general meeting of bondholders of the proposals made by the company relating to an alteration of its form or objects, the company may proceed to redeem the bonds before implementing the change of its form and objects.

Article 810

Where the general meeting of bondholders fails to approve the company's proposals regarding its scission or split, the company may proceed further and the bondholders shall maintain their title as bondholders in the acquiring company or in the new company arising from the merger or in the companies arising from the scission, as the case may be.

Where the company decides to ignore the refusal of approval by the general assembly of bondholders, the chairman and managing director, the general manager or the managing director, as the case may be, shall inform the representative of the bondholders' group thereof by hand-delivered letter against a receipt or by registered letter with a request for acknowledgement of receipt.

The group of bondholders may lodge an objection to the merger or scission with the president of the competent court.

The said president shall reject the objection or order a refund of the bonds or a provision of guarantees if the acquiring company or the company being split offers any which are deemed to be sufficient.

Article 811

In case of winding up of the company without any threat of merger or split, refund of the bonds shall be immediately due.

Article 812

Legal redress of the company shall not put an end to the functioning or the role of the general assembly of bondholders.

Paragraph 8 Individual bondholders' rights

Article 813

Bondholders may not exercise individual control over the company's transactions or be sent company documents.

They shall have the right, at their own expense, to obtain from the company a copy of the report and attendance lists of bondholders' meetings of the group to which they belong.

Article 814

In the absence of special clauses in the contract of loan, the company may not force the bondholders to accept a prepayment of the bonds.

Paragraph 9 Guarantees granted to bonds.

Article 815

The general meeting of shareholders which decides to issue bonds may decide that the bonds will be secured.

The meeting shall determine what securities to offer or shall delegate to the board of directors or the managing director, as the case may be, the power to determine it.

Article 816

The securities shall be formed by the company before issue in a special deed for the benefit of the group of bondholders being formed.

The formalities of publishing the securities shall be complied with before any subscription of bonds takes place.

Article 817

The acceptance of the guarantee shall be evidenced only by subscription. It shall be retroactive on the date of registration for securities subject to registration and on the date of their subscription for the other securities.

Article 818

Within a period of six months from the opening of subscription, the result of the subscription shall be recorded in a notarial deed at the instance of the legal representative of the company.

Within a period of thirty days from the date of preparation of the deed, the results of the subscription shall be entered on the margin of the guarantee.

Where the issue of bonds is not realized because there is little or no subscription, the registration shall be cancelled.

Article 819

Renewal of the security shall be done at the expense of the company, under the responsibility of its legal representatives.

The representatives of the group shall be responsible for ensuring compliance with the provisions relating to renewal of registration.

Article 820

Release of the mortgage may only be done by the group's representatives and on condition that the loan has been repaid in full and that all the interest has been paid.

In addition, it shall be necessary for the representatives to be expressly authorized to release the mortgage by the general assembly of bondholders of the group.

Article 821

Any guarantees provided after the issue of bonds shall be conferred by the legal representatives of the company either upon the authorization of the ordinary general meeting of shareholders or, where the articles so provide, by the board of directors or the managing director.

They shall be expressly accepted by the group.

CHAPTER 4 OTHER TRANSFERABLE SECURITIES

Article 822

During the issue of securities representing claims on the issuing company or giving right to subscribe or acquire a transferable security representing claims, it may be provided that the said transferable securities shall only be redeemed after the other creditors have been paid off, excluding holders of equity-type loans.

TITLE 3 PROVISIONS SPECIFIC TO PUBLIC LIMITED COMPANIES CALLING FOR PUBLIC CAPITAL

CHAPTER 1 GENERAL PROVISIONS

Article 823

Without prejudice to the provisions which may govern the stock exchange and the acceptance of transferable securities on the exchange, incorporated companies or those in the process of calling a public capital by way of prospectus shall fall under the general rules governing public limited companies and the special provisions of this title.

The provisions of this title shall override the general provisions governing the form of public limited companies in case of incompatibility between the two sets of rules.

Article 824

The minimum capital of a company whose shares are listed on the stock exchange of one or more Contracting States or one calling for public capital for the sale of its shares in one or more Contracting States shall be one hundred million (100 000 000) CFA francs.

The registered capital may not be lower than the amount stipulated in the preceding paragraph unless the company changes into another form of company.

In case of failure to comply with the provisions of this article, any interested party may petition the court for the winding up of the company. Such winding up may not be pronounced where, on the day the court is ruling on the merits of the case, the matter has been regularized.

CHAPTER 2 FORMATION OF A COMPANY

Article 825

The founders shall publish, before the start of application for shares, a prospectus in newspapers empowered to publish legal notices in the Contracting State of the registered office of the company and, as the case may be, in the Contracting States where a call for the capital is made.

Article 826

The prospectus referred to in the preceding article shall bear the following details :

(1) the name of the company being formed, followed, where necessary, by its acronym ;

(2) the form of the company ;

(3) the registered capital ;

(4) the company's object ;

(5) the address of the registered office ;

(6) the duration of the company ;

(7) the number of shares subscribed to, for cash and the amount immediately due comprising, as the case may be, the agio on issue;

(8) the face value of the shares to be issued, with a distinction made, where necessary, between each category of shares ;

(9) a summary description of contributions in kind, their total valuation and their mode of remuneration, with an indication of the provisional nature of the said evaluation and the mode of remuneration ;

(10) the special benefits stipulated in the draft Articles of Association in the interest of any person ;

(11) the conditions of admittance to shareholders' meetings and of exercising the voting rights with an indication, where necessary, of the provisions relating to the granting of the double voting right ;

(12) where necessary, the clauses relating to the approval of transferees of shares ;

(13) the provisions relating to the sharing of profits, the building up of reserves and the sharing of the bonus after liquidation ;

(14) the full name and address of the domicile of the notary or the corporate name and registered office of the bank in which the funds from the subscription shall be deposited ;

(15) the time limit open for subscriptions with an indication of the possibility of early closing in case the full subscriptions are made before the expiry of the said time limit ;

(16) the procedure for convening the constituent general meeting.

The prospectus shall be signed by the founders and it shall indicate :

(1) in case of natural persons, their usual full name, domicile and nationality ;

(2) in case of corporate bodies, their name, form, registered office and, as the case may be, the amount of the registered capital.

Article 827

To inform the public about the forthcoming issue of shares, circulars shall be written reproducing the details of the prospectus provided for in Article 826 of this Uniform Act.

The circulars shall make mention of the insertion of the prospectus in the newspapers empowered to publish legal notices where the said prospectus has been published. They shall make reference to the publication number of the prospectus in the newspapers.

The circulars shall, in addition, make known the plans of the founders regarding the application of funds derived from the payments of the shares subscribed.

Posters and notices in newspapers shall reproduce the same information or at least extracts from such information with reference to the prospectus and an indication of the number of the newspapers empowered to publish legal notices in which the prospectus was published.

CHAPTER 3 FUNCTIONING OF THE COMPANY

Section 1 Administration of the company.


Article 828

Companies calling for public capital in order to sell their shares in one or more Contracting States or whose shares are listed on the stock exchange of one or more Contracting States shall be bound to have a board of directors.

Article 829

The board of directors of the companies referred to in Articles 828 to 853 of this Uniform Act shall, as of necessity, comprise at least three members and at most fifteen members where its shares are listed on the stock exchange.

However, in case of a merger involving one or more companies whose shares are quoted on the stock exchange of one or more Contracting States, the number fifteen may be exceeded to include the total number of directors in office for more than six months in the merged companies, but without exceeding twenty.

They shall neither appoint new directors nor replace directors who are deceased, dismissed or have resigned shall be replaced as long as the number of directors has not been reduced to fifteen where the shares of the company are quoted on the stock exchange of one or more Contracting States.

Where a company quoted on the stock exchange of one or more Contracting States is struck off from those stock exchanges, the number of directors shall be reduced to twelve as soon as possible.

Within the various limits fixed above, the number of directors shall be freely determined in the Articles of Association.

Article 830

The chairman and managing director, the general manager of a company whose shares are quoted on the stock exchange of one Contracting State and the natural persons or corporate bodies performing the duties of director in the company shall be required, within the time limit fixed in the second paragraph of this article, to obtain registered status for the shares belonging to them proper or those belonging to their unemancipated minor children issued by the company itself, by its subsidiaries, by the company of which it is a subsidiary or by the other subsidiaries of such company, where the shares are quoted on the stock exchange of one or more Contracting States.

The time limit referred to in the preceding paragraph shall be one month from the date on which the persons concerned acquire the capacity in which they are subject to the provisions stipulated by the preceding paragraph. The time limit shall be twenty days from the date of entry into possession where the persons concerned acquire the shares referred to in the first paragraph of this article.

The preceding provision shall apply to the permanent representatives of corporate bodies performing the duties of director in the companies whose shares are quoted on the stock exchange of one or more Contracting States as well as to the spouses, who are not separated from bed and board, of all the persons referred to in this article.

Failure to obtain the registered status for the shares, the persons concerned shall deposit them in a bank or with a stock broker.

Section 2 Shareholders' meetings

Article 831

Before the meeting of shareholders, companies calling for public capital to sell their shares or whose shares are registered in one or more Contracting States shall be required to publish in newspapers empowered to publish legal notices of the Contracting State hosting the registered office and, where necessary, of the other Contracting States where a public call for capital issue is made, a notice bearing :

(1) the commercial name followed, where necessary, by the acronym of the company ;

(2) the form of the company ;

(3) the amount of its capital ;

(4) the address of its registered office ;

(5) the agenda of the meeting ;

(6) the text of the draft resolutions which shall be presented to the assembly by the board of directors ;

(7) the place where the shares should be deposited ;

(8) except where the company sends out to shareholders a form for voting by correspondence, the places and conditions under which the said forms may be obtained.

Section 3 Modification of registered capital

Article 832

Shareholders and investors shall be informed of the issue of new share and the conditions thereof either by a notice inserted in the prospectus published in newspapers empowered to publish legal notices in the Contracting State of the head office and, as the case may be, of the other Contracting States in which a call for public capital is made or by hand-delivered letter against a receipt or by registered letter with a request for advice of delivery where the shares of the company are registered.

Article 833

The prospectus bearing the company's seal, and the hand-delivered letter against a receipt or by registered letter with a request for advice of delivery shall contain the following information :

(1) the name of the company followed, if need be, by its acronym ;

(2) the form of the company ;

(3) a summary of the company's objects ;

(4) the amount of the registered capital ;

(5) the address of the registered office ;

(6) the registration number of the company in the Trade and Personal Property Credit Register ;

(7) the normal expiry date of the company ;

(8) the amount of increase of capital ;

(9) the dates of commencement and close of subscription ;

(10) the full name or commercial name, the address of domicile or registered office of the depositary ;

(11) the categories of shares issued and their characteristics ;

(12) the face value of the shares to be subscribed for in cash and, where necessary, the amount of the agio on issue;

(13) the amount immediately due per share subscribed ;

(14) the existence for the benefit of shareholders of the pre-emptive right of subscription to new shares as well as the conditions for exercising the said right ;

(15) the special benefits stipulated by the Articles of Association in favour of any person ;

(16) as the case may be, the statutory clauses restricting the free transfer of shares ;

(17) the provisions relating to the sharing of profits, the building up of reserves and the sharing of bonus after liquidation ;

(18) the unredeemed amount of the other bonds issued before and the guarantees covering them ;

(19) the amount at the time of issue of the bond issues guaranteed by the company and, where appropriate, the guaranteed fraction of the said issues ;

(20) where necessary, a summary description, assessment and mode of remuneration of contributions in kind within the increase of capital, with an indication of the provisional nature of the assessment and mode of remuneration.

Article 834

A copy of the last balance-sheet, certified true by the legal representative of the company, shall be published in the annex to the prospectus referred to in Article 833 of this Uniform Act. Where the last balance-sheet has been published in a newspaper empowered to publish legal notices, a copy of the said balance-sheet may be replaced with an indication of the reference to the previous publication. Where a balance-sheet has not yet been drawn up, the prospectus shall so indicate.

Article 835

The circulars informing the public about the issue of shares shall reproduce the details of the prospectus referred to in Article 833 of this Uniform Act and shall contain a mention that the said prospectus has been inserted in newspapers empowered to publish legal notices together with the reference number in which it was published.

The notices and posters in the newspapers shall reproduce the same information or at least an extract from such information with reference to the prospectus and an indication of the newspapers empowered to publish legal notices in which it was published.

Article 836

An increase of capital by public call which takes place less than two years after the formation of a company without such public call shall be preceded, under the conditions laid down in Article 619 et seq. of this Uniform Act, by an audit of the assets and liabilities and, where necessary, of the special benefits granted.

Article 837

A public call without pre-emptive right of subscription to new shares which confer on their holders the same rights as old shares shall be subject to the following conditions:

(1) the call shall be realized within a period of three years from the date of the meeting which authorized it ;

(2) for companies whose shares are listed on the stock exchange, the call price shall be at least equal to the average price recorded for those shares for twenty consecutive days chosen from the forty days preceding the day call begins, after adjusting the average to take into account the difference in the date of enjoyment;

(3) for companies other than those referred to in paragraph (2) of this article, the issue price shall, at the company's choice, with account being taken of the difference in the date of enjoyment, be at least equal to the part of stockholders' equity per share as deduced from the last balance-sheet approved by the date of issue, or at a price fixed by an expert designated by the competent court giving a summary judgment.

Article 838

A public call without pre-emptive right of subscription to new shares which do not confer on their holders the same rights as old shares shall be subject to the following conditions :

(1) the call shall be realized within a period of two years from the date of the general meeting which authorized it ;

(2) the issue price or conditions for fixing such price shall be determined by the extraordinary general meeting upon the report of the board of directors and the special report of the auditor.

Where the issue is not realized on the date of the annual general meeting following the decision, an extraordinary general meeting shall decide, upon the report of the board of directors and the special report of the auditors, on the maintenance or adjustment of the issue price or on the conditions for determining such price, failing which, the decision of the first meeting shall lapse.

Article 839

The general meeting which decides on the increase of capital may, in the interest of one or more persons designated by name or not, cancel the pre-emptive right of subscription.

Beneficiaries of this provision may not, under penalty of the decision being declared void, take part in the vote. The required quorum and majority shall be calculated after deducting the shares they own.

The issue price or the conditions for fixing such price shall be determined by the extraordinary general meeting upon the report of the board of directors and the auditor.

Article 840

An increase of capital shall be deemed to have been carried out where one or more credit establishments, within the meaning of the law regulating banking activities, irrevocably guarantee its successful end. Payment of the paid-up fraction of the face value and of the totality of the agio on issue shall take place no later than the thirty-fifth day following the expiry of the time limit for subscription.

Section 4 Investment of bonds

Article 841

Where an investment of bonds is carried out by public issue in one or more Contracting States, the issuing company shall fulfil in the Contracting States before the opening of subscription and prior to any other publicity measures, the formalities specified in Articles 842 to 844 of this Uniform Act.

Article 842

The company shall publish in newspapers empowered to publish legal notices a prospectus bearing the following information :

(1) the name of the company followed, where necessary, by its acronym ;

(2) the form of the company ;

(3) the address of the registered office ;

(4) the amount of the registered capital ;

(5) the company's registration number in the Trade and Personal Property Credit Register ;

(6) a summary of the company's objects ;

(7) the normal expiry date of the company ;

(8) the undepreciated amount of bonds issued earlier and the guarantees attached to them ;

(9) the amount, during the issue, of the bond issues guaranteed by the company and, where necessary, the guaranteed fraction of such issues ;

(10) the amount of the issue ;

(11) the face value of the bonds to be issued ;

(12) the rate and mode of calculation of the interest and other proceeds, as well as the method of payment ;

(13) the period and conditions of possible repayment as well as the conditions of redemption of the bonds ;

(14) the guarantees provided, where necessary, for the bonds.

The prospectus shall bear the signature of the company.

Article 843

The following shall be appended to the prospectus referred to in Article 842 of this Uniform Act :

(1) a copy of the last balance-sheet approved by the general meeting of shareholders, certified by the legal representative of the company ;

(2) where the balance-sheet was closed on a date more than ten months before the start of issue, a statement of the company's assets and liabilities dating not more than ten months, drawn up under the responsibility of the board of directors or managers, as the case may be ;

(3) information on the progress of the company's business since the beginning of the current fiscal year and, where appropriate, on the preceding fiscal year where the ordinary general assembly required to adjudicate on the summary financial statements has not yet met.

Where no balance-sheet has yet been drawn up, the prospectus shall make mention thereof.

The annexes provided for in paragraphs (1) and (2) of this article may be replaced, depending on the case, by the reference to the publication in newspapers empowered to publish legal notices of the last balance-sheet or the interim financial statement of the balance-sheet drawn up on a date not more than ten months prior to the date of issue, where the balance-sheet or statement has already been published.

Article 844

The circulars informing the public about the issue of bonds shall reproduce the information in the prospectus referred to in Article 842 of the Uniform Act, indicating the issue price and bearing a statement about the insertion of the said prospectus in a newspaper empowered to publish legal notices, with reference to the number in which the prospectus was published.

The posters and notices in newspapers shall reproduce the same information or at least an extract from the said information with reference to the prospectus and an indication of the number of the newspapers empowered to publish legal notices in which it was published.

Section 5 Bondholders' meetings

Article 845

Before the session of the meeting of bondholders, the notices convening the bondholders published in newspapers empowered to publish legal notices of the Contracting State of the registered office and, where necessary, of the other Contracting States where a public issue is launched shall contain :

(1) the company's name followed, where necessary, by its acronym;

(2) the form of the company ;

(3) the amount of the company's capital ;

(4) the address of the registered office ;

(5) the registration number of the company in the Trade and Personal Property Credit Register ;

(6) the agenda of the meeting ;

(7) the day, time and venue of the meeting ;

(8) where necessary, the place or places where the bonds shall be submitted in order to obtain the right to take part in the meeting ;

(9) an indication of the loan subscribed to by the bondholders whose group is convened for the meeting ;

(10) the name and domicile of the person who took the initiative to convene the meeting and the capacity in which he acted ;

(11) where appropriate, the date of the court decision designating the representative responsible for convening the meeting.

Section 6 Publicity

Article 846

The provisions of this section shall apply to companies whose shares are listed partially or wholly in the stock exchange of one or more Contracting States.

Sub-section 1 Annual publicity

Article 847

The companies whose shares are listed on the stock exchange shall publish in a newspaper empowered to publish legal notices within a period of four months from the close of the fiscal year and no later than fifteen days before the date of the annual general meeting of shareholders, under a heading clearly showing that the publication concerns drafts not verified by the auditors :

(1) the summary financial statements (balance-sheet, profit and loss account, statement of source and expenditure of funds and annexed statement) ;

(2) the proposed allocation of income ;

(3) for companies with subsidiaries or holdings, the consolidated summary financial statements, where available.

Article 848

Companies whose shares are listed on the stock exchange shall publish in a newspaper empowered to publish legal notices within a period of forty-five days following the approval of the summary financial statements by the ordinary general meeting of shareholders the following documents :

(1) the approved summary financial statements, bearing the certificate of the auditors ;

(2) the decision on the allocation of income ;

(3) the consolidated summary financial statements bearing the certificate of the auditors.

However, where these are exactly identical to those published in pursuance of Article 765 of this Uniform Act, only one notice making reference to the first publication and bearing the certificate of the auditor shall be published in a newspaper empowered to publish legal notices.

Sub-section 2 Publicity at the end of the first half of the year

Article 849

Companies whose shares are listed on the stock exchange of one or more Contracting States shall, within a period of four months following the end of the first half of the fiscal year, publish in a newspaper empowered to publish legal notices of the Contracting States a statement of operations and income as well as a half-yearly progress report accompanied by a certificate from the auditor on the authenticity of the information provided.

Article 850

The statement of operations and income shall show the net amount of the turnover and income from the ordinary operations of the company before tax. Each item on the statement shall show the figure of the corresponding item during the previous fiscal year and the first half of that year.

Article 851

The half-yearly progress report of its activity shall annotate the data on the turnover and the income of the first half of the year. It shall also describe the company's operations during this period and provide a forecast of the development of the operations up to the close of the fiscal year. Any important events which happened during the just-ended half year shall also be included in the report.

Article 852

Companies drawing up consolidated summary financial statements shall be required to publish their statements on operations and income and their half-yearly progress reports in consolidated form accompanied by a certificate from the auditor on the authenticity of the information provided.

Sub-section 3 Publicity - Subsidiaries of listed companies

Article 853

Companies not listed on the stock exchange, half of whose shares are held by one or more listed companies having :

(1) a balance-sheet above two hundred million (200 000 000) CFA francs ; or

(2) a share portfolio with an inventory value or stock exchange value exceeding eighty million (80 000 000) CFA francs,

shall, within a period of forty-five days following the approval of the summary financial statements the meeting of shareholders, publish in a newspaper empowered to publish legal notices the documents, approved summary financial statements bearing the certificate of the auditors, and the decision to allocate the income.

BOOK 5 THE JOINT VENTURE

TITLE 1 GENERAL PROVISIONS

Article 854

A joint venture shall be an entity whose partners agree not to register it in the Trade and Personal Property Credit Register and not to give it a corporate personality. It shall not be subject to publicity.

The existence of a joint venture may be proved by any means.

Article 855

The partners shall freely agree on the object, duration, conditions of functioning, rights of partners and termination of the joint venture, subject to there being no derogation from the mandatory rules of the provisions common to companies, with the exception of those relating to corporate personality.

TITLE 2 RELATIONS AMONG PARTNERS

Article 856

Unless a different organization has been provided for, the relations between partners shall be governed by the provisions applicable to private companies.

Article 857

The assets necessary for the company's activity shall be placed at the disposal of the manager of the company. However, each partner shall remain owner of the assets he places at the disposal of the company.

Article 858

The partners may agree to put certain assets in joint ownership or that one of the partners, in relation to third parties, shall be owner of all or part of the assets he acquires with a view to the realization of the company's object.

Article 859

The assets acquired by application of funds or re-investment of joint earnings shall be deemed to be joint holdings throughout the duration of the company, as well as assets which were joint before being placed at the disposal of the company.

The same shall apply to assets which the partners may have agreed to put into joint ownership.

Article 860

Unless otherwise provided for by the articles, no partner may request the sharing of joint assets as long as the company is not wound up.

TITLE 3 RELATIONS WITH THIRD PARTIES

Article 861

Each partner shall contract in his personal name and shall be solely liable to third parties.

However, where the partners act expressly in their capacity as partners towards third parties, each of those who acted shall be liable for the commitments of the others.

Any bonds subscribed to under these conditions shall commit them indefinitely, jointly and severally.

The same shall apply to a partner who, by interference, has made the contracting partner believe that he intended to commit himself on the partner's behalf and it is proved that he reaped profit from the enterprise.

TITLE 4 WINDING UP OF THE COMPANY

Article 862

A joint venture shall be dissolved by the same events which terminate a private company.

The partners may, however, agree in the Articles of Association or in a subsequent deed that the company will continue in business in spite of such events.

Article 863

Where the company is of an unspecified duration, its winding up may come at any time after notification, by hand-delivered letter against a receipt or by registered letter with acknowledgement of receipt, from one partner to all the others, provided that the notification shall be in good faith and not at the wrong moment.

BOOK 6 DE FACTO PARTNERSHIP

Article 864

A de facto partnership shall exist where two or more natural persons or corporate bodies act as partners without having formed between themselves one of the companies recognized by this Uniform Act.

Article 865

Where two or more natural persons or corporate bodies form between themselves a company recognized by this Uniform Act but have not fulfilled the constituent legal formalities, or have formed between them a company not recognized by this Uniform Act, a de facto partnership shall exist.

Article 866

Any interested party may petition the competent court of the principal place of activity of a de facto partnership for a recognition of a de facto partnership between two or more persons ; He shall produce the identity or the commercial name of the partnership.

Article 867

The existence of a de facto partnership shall be proved by any means.

Article 868

Where the existence of a de facto partnership is recognized by the judge, the rules governing private companies shall apply to the partners.

BOOK 7 THE ECONOMIC INTEREST GROUP

TITLE 1 GENERAL PROVISIONS

Article 869

An economic interest group shall be one which has the exclusive object of putting in place for a specified duration all the means necessary to facilitate or develop the economic activity of its members and to improve or increase income from the said activity.

Its activity shall mainly be connected with the economic activity of its members and shall not be of an auxiliary nature in relation thereto.

Article 870

The economic interest group shall not by itself give rise to the realization or sharing of profits.

It may be formed without capital.

Article 871

Two or more natural persons or corporate bodies, including persons exercising a liberal profession governed by a legislative or statutory instrument or whose title is protected, may form between them an economic interest group.

The rights of members of the group may not be represented by negotiable instruments. Any clause to the contrary shall be deemed to be unwritten.

Article 872

An economic interest group shall have corporate personality and full capacity with effect from registration in the Trade and Personal Property Credit Register.

Article 873

The members of the economic interest group shall be liable for the debts of the group on their assets proper. However, a new member may, where the contract permits, be exempted from the debts contracted before he joined the group. The exoneration decision shall be published.

The members of the economic interest group shall be jointly and severally liable for payment of the debts of the group, unless otherwise agreed with a contracting third party.

Article 874

The creditors of the group may take action for the settlement of debts against a partner only after unsuccessfully notifying the group by an extra-judicial act.

Article 875

An economic interest group may issue bonds under the general conditions of issue of such bonds where the group exclusively comprises companies authorized to issue bonds.

Article 876

Subject to the provisions of this Uniform Act, a contract shall determine the organization of the economic interest group and shall freely lay down the contribution of each member to the debts of the group. Failing this, each member shall bear an equal part of the debt.

During its existence, the group may accept new members under the conditions laid down by contract.

Any member may withdraw from the group under the conditions laid down in the contract, subject to having fulfilled his obligations.

The contract shall be in writing and shall be subject to the same conditions of publicity as the companies concerned by this Uniform Act.

It shall in particular contain the following details :

(1) the name of the economic interest group ;

(2) the name, trade name or corporate name, legal form, address of the domicile or head office and, as the case may be, the registration number in the Trade and Personal Property Credit Register of each member of the economic interest group ;

(3) the duration for which the economic interest group is formed ;

(4) the object of the economic interest group ;

(5) the address of the registered office of the economic interest group.

Any amendments to the contract shall be drawn up and published under the same conditions as the contract itself. They shall be demurrable to third parties from the date of such publicity.

The deeds and documents emanating from the economic interest group intended for third parties, in particular letters, invoices, various notices and publications shall clearly show the name of the group, followed by the words " economic interest group " or the acronym " E.I.G. "

Any violation of the provisions of the above paragraph shall be punished with penalty for simple offences.

Article 877

The general meeting of members of the economic interest group shall be competent to take any decision, including premature winding up or extension of the existence of the group under the conditions laid down in the contract.

The contract may provide that all or some decisions shall be taken under the conditions of quorum and majority it shall determine. Where the contract is silent, decisions shall be taken unanimously.

The contract may also allocate to each member of the economic interest group a number of votes different from that allocated to others. Failing this, each member shall have one vote.

Article 878

The meeting shall meet as of right at the request of at least one quarter of the members of the economic interest group.

TITLE 2 ADMINISTRATION

Article 879

The economic interest group shall be administered by one or more natural persons or corporate bodies, provided that in the case of a corporate body, such corporate body shall designate a permanent representative, who shall incur the same civil and criminal liabilities as if he were a director in his own name.

Subject to this reserve, the contract or, failing that, the general meeting of members of the economic interest group shall freely organize the administration of the group and appoint the directors whose duties, powers and conditions of dismissal it shall determine.

In relations with third parties, a director shall commit the economic interest group for any act connected with the object of the group. No limitation of powers may be invoked against third parties.

TITLE 3 AUDIT

Article 880

The audit of management and of the summary financial statements shall be carried out under the conditions laid down by the contract.

However, where an economic interest group issues bonds under the conditions provided for in Article 874 of this Uniform Act, the management audit shall be carried out by one or more natural persons appointed by the meeting.

Their term of office and powers shall be determined by the contract.

The audit of the summary financial statements shall be conducted by one or more auditors chosen from the official list of auditors and appointed by the meeting for a term of six fiscal years.

Subject to the regulations proper to the economic interest group, the auditor shall have the same status, duties and responsibilities as the auditor of a public limited company.

Article 881

In case of issue of bonds by the economic interest group, the punishment of offences relating to the obligations provided for in this Uniform Act shall be applicable to the executives of the economic interest group as well as to natural persons managing the member companies or permanent representatives of the corporate bodies managing these companies.

TITLE 4 TRANSFORMATION

Article 882

Any company or association whose object corresponds to the definition of the economic interest group may be transformed into an economic interest group. It shall not be necessary to wind up the company or to set up a new corporate body.

An economic interest group may be transformed into a private company without having to wind up the group or to set up a new corporate body.

TITLE 5 DISSOLUTION

Article 883

The economic interest group shall be dissolved :

(1) by the end of the term ;

(2) by the realization or extinction of its object ;

(3) by decision of its members under the conditions laid down in Article 877 of this Uniform Act ;

(4) by court decision, for justifiable reasons ;

(5) by death of a natural person or dissolution of a corporate body which is member of the economic interest group, unless otherwise provided for in the contract.

Article 884

Where one of the members becomes incapacitated, personally bankrupt or is banned from directing, managing, administering or controlling an enterprise, whatever its form or object, the economic interest group shall be dissolved, unless its continuation is provided for in the contract or the other members so decide unanimously.

Article 885

The dissolution of the economic interest group shall entail its liquidation. The personality of the group shall subsist for the purposes of the liquidation.

The liquidation shall be carried out in accordance with the provisions of the contract. Failing this, a liquidator shall be appointed by the general meeting of the members of the economic interest group or, where the meeting is unable to make such appointment, by decision of the president of the competent court.

After settlement of the debts, the surplus of assets shall be shared among the members under the conditions laid down by the contract. Failing this, the sharing shall be done in equal parts.

PART 3 PENAL PROVISIONS

TITLE 1 OFFENCES RELATING TO THE FORMATION OF COMPANIES


Article 886

A criminal offence shall be committed where the founders, chairman and managing director, general manager, managing director or assistant managing director of a public limited company issue shares before registration of the company or at any time whatsoever where registration is obtained by fraud or the company is irregularly formed.

Article 887

Whoever --

(1) knowingly, by the establishment of the notarial statement of subscription and payment or of the depositary's certificate, certifies as true and authentic subscriptions he knows are fictitious or declares that the funds which have not been placed definitely at the disposal of the company have been effectively paid ; or

(2) hands over to the notary or to the depositary a list of shareholders or statements of subscription and payment bearing fictitious subscriptions or payment of funds which have not been definitely made available to the company ; or

(3) knowingly, by fictitious subscriptions or payments or by publication of non-existent subscriptions or payments or by any other false acts obtains or attempts to obtain subscriptions or payments ; or

(4) knowingly, in order to obtain subscriptions or payments, publishes the names of persons falsely designated as being or expected to be linked to the company in any capacity whatsoever; fraudulently, causes a contribution in kind to be given an assessment above its real value --

shall incur a punitive sanction.

Article 888

Whoever knowingly negotiates --

(1) registered shares which have not remained in the registered form until they were fully paid up ; or

(2) initial shares before the expiry of the time limit during which they are not negotiable ; or

(3) shares issued for cash for which payment of a quarter of the face value has not been made shall incur a punitive sanction.

TITLE 2 OFFENCES RELATING TO THE MANAGEMENT, ADMINISTRATION AND DIRECTING OF COMPANIES

Article 889

Any company executives who, in the absence of an inventory or by means of a fraudulent inventory, knowingly share fictitious dividends among shareholders or partners of the company, shall incur a punitive sanction.

Article 890

Any company executives who, knowingly, even without any sharing of dividends, publish or present to the shareholders or partners, with a view to hiding the true situation of the company, summary financial statements not showing, for each fiscal year, an accurate picture of the transactions of the year, of the financial situation and of the situation of the estate of the company at the expiry of the said period, shall incur a punitive sanction.

Article 891

Any manager of a private limited company, directors, chairman and managing director, general manager, managing director or assistant managing director who, in bad faith, use the assets or credit of the company in a way they know is against the interests of the company, for personal, material or moral ends, or in favour of another corporate body in which they have an interest directly or indirectly, shall incur a punitive sanction.

TITLE 3 OFFENCES RELATING TO GENERAL MEETINGS

Article 892

Whoever, knowingly, prevents a shareholder or a partner from participating in a general meeting shall incur a punitive sanction.

TITLE 4 OFFENCES RELATING TO VARIATION OF THE CAPITAL OF PUBLIC LIMITED COMPANIES

CHAPTER 1 INCREASE OF CAPITAL

Article 893

Any directors, chairman of the board of directors, chairman and managing director, general manager, managing director or assistant managing director of a public limited company who, on the occasion of an increase of capital, issue shares or share denominations --

(1) before the establishment of the depositary's certificate ; or

(2) without due compliance with the preliminary formalities for an increase of capital ; or

(3) without the previously subscribed capital of the company having been fully paid up ; or

(4) without the new initial shares having been fully paid-up before the registration of the amendment in the Trade and Personal Property Credit Register ; or

(5) without one quarter of the face value of the new shares having been paid up at the time of subscription ; or

(6) where necessary, without the total agio on issue having been fully paid up at the time of subscription --

shall incur a punitive sanction.

Penalties shall also be applied against persons referred to in this article who fail to maintain the shares issued for cash in registered form until they are fully paid up.

Article 894

Any company executives who, at the time of an increase of capital --

(1) fail to enable shareholders to benefit, proportionately to the amount of their shares, from the pre-emptive right of subscription for shares issued for cash where such right has not been repealed by the general meeting and where the shareholders have not renounced it ; or

(2) fail to reserve a deadline of at least twenty days for shareholders from the opening of subscription, unless such deadline has expired prematurely ; or

(3) fail to allot the shares which become available, because of insufficient number of subscriptions as of right, to shareholders who have subscribed for excess shares which outnumber the shares they subscribed for as of right, proportionately to the rights which they enjoy ; or

(4) fail to reserve the rights of holders of subscription certificates --

shall incur punitive sanctions.

Article 895

Any company executives who, knowingly, give or confirm incorrect information in the reports presented to the general meeting convened to decide on the repeal of the pre-emptive right of subscription, shall incur a punitive sanction.

CHAPTER 2 REDUCTION OF CAPITAL

Article 896

Any directors, chairman and managing director, general manager, managing director or assistant managing director who, knowingly, carry out a reduction of capital --

(1) without respecting the equality of shareholders ; or

(2) without communicating the proposed reduction of capital to the auditors forty-five days before the holding of the general meeting convened to decide on the reduction of capital --

shall incur a punitive sanction.

TITLE 5 OFFENCES RELATING TO THE AUDIT OF COMPANIES

Article 897

Any company executives who fail to have auditors appointed for the company or not to convene them to the general meetings of shareholders, shall incur a punitive sanction.

Article 898

Whoever, in his own name or as a member of an auditors company, knowingly accepts, performs or maintains the duties of auditor, notwithstanding legal incompatibilities, shall incur a punitive sanction.

Article 899

Any auditor who, either in his own name or as a member of an auditors' company, knowingly gives or confirms false information on the situation of the company or fails to reveal to the public prosecutor's office any offences which may have come to his knowledge, shall incur a punitive sanction.

Article 900

Any company executives or any person in the service of a company who knowingly, obstruct verifications or audit by auditors or refuse to communicate to them on the spot, all the documents needed for the performance of their duty, in particular all contracts, books, accounting documents and minutes registers, shall incur a punitive sanction.

TITLE 6 OFFENCES RELATING TO THE DISSOLUTION OF COMPANIES

Article 901

Any company executives who, knowingly, fail, where the shareholders' equity of the company falls below half the registered capital due to losses recorded in the summary financial statements to --

(1) have an extraordinary general meeting convened, within a period of four months following the approval of the summary financial statements in which the losses appear to order, where necessary, the premature dissolution of the company ; or

(2) file at the registry of the court responsible for commercial matters, register in the Trade and Personal Property Credit Register and publish in a newspaper empowered to publish legal notices the premature dissolution of the company --

shall incur punitive sanctions.

TITLE 7 OFFENCES RELATING TO THE LIQUIDATION OF COMPANIES

Article 902

Any liquidator of a company who, knowingly --

(1) fails within a time limit of one month from the date of his appointment, to publish in a newspaper empowered to publish legal notices of the place of the registered office of the company, the document appointing him liquidator and to enter the decisions pronouncing the dissolution of the company in the Trade and Personal Property Credit Register ; or

(2) fail to convene the members of the company at the end of liquidation to adjudicate on the final liquidation account, the final discharge of his management and of his terms of reference and to record the close of the liquidation ; or

(3) fails, in the case provided for in Article 219 of this Uniform Act, to deposit final accounts at the registry of the court responsible for commercial matters of the place of the registered office, or to petition the court for the approval of the accounts --

shall incur a punitive sanction.

Article 903

Any liquidator who, where liquidation is ordered by a decision of a court, knowingly --

(1) fails to present, within a period of six months of his appointment, a report on the situation of the assets and liabilities of the company under liquidation and on the pursuit of liquidation transactions, or to apply for the authorizations needed to end them ; or

(2) fails to establish, within a period of three months following the close of each financial year, the summary financial statements upon the inventory and a written report in which he gives account of the liquidation transactions during the just-ended financial year ; or

(3) fails to enable the members of the company to exercise, during the liquidation period, their right to receive the company's documents under the same conditions as before ; or

(4) fails to convene the members of the company, at least once a year, to give them an account of the summary financial statements in the case where the company continues in business ; or

(5) fails to deposit in a bank account opened in the name of the company under liquidation, within a time limit of fifteen days following the decision to share the sums allocated for the partners and the creditors of the company ; or

(6) fails to deposit in a deposit account opened in the accounts of the Treasury, within a time limit of one year from the close of the liquidation, the sums allocated to the creditors or partners of the company but not claimed by them --

shall incur a punitive sanction.

Article 904

Any liquidator who, in bad faith --

(1) uses the assets or credit of a company under liquidation in a way he knows is contrary to the interests of the company, for personal ends or in the interest of another corporate body in which he has a stake directly or indirectly ; or

(2) transfers all or part of the assets of a company under liquidation to a person who has had in the company the status of partner in name, active partner, manager, member of the board of directors, managing director or auditor, without having obtained the unanimous consent of the partners or failing this, the authorization of the competent court --

shall incur a punitive sanction.

TITLE 8 OFFENCES RELATING TO PUBLIC CALL FOR CAPITAL

Article 905

Any chairmen, directors or general managers of companies who issue transferable securities offered to the public --

(1) without a notice being inserted in a newspaper empowered to publish legal notices before any publication measure ; or

(2) without prospectuses and circulars reproducing the information in the notice referred to in paragraph (1) of this article and bearing a mention of the insertion of such notice in a newspaper empowered to publish legal notices with reference to the number under which it was published ; or

(3) without posters and notices in newspapers reproducing the same information in or at the very least an extract of the information with reference to the said notice and indications of the number of the newspaper empowered to publish legal notices in which it was published ; or

(4) without posters, prospectuses and circulars mentioning the signature of the person or the representative of the company making the offer and specifying whether the securities are quoted or not and, where quoted, on which stock exchange --

shall incur a punitive sanction.

The same penalty shall be applicable to persons who act as an accessory in the transfer of transferable securities in violation of the provisions of this article.

PART 4 FINAL AND TRANSITIONAL PROVISIONS

BOOK 1 MISCELLANEOUS PROVISIONS

Article 906

The CFA franc shall, within the meaning of this Uniform Act, be the basic currency of OHADA. The exchange rate in the national currency of Contracting States which do not have the CFA franc as their monetary unit, shall initially be the one determined by application of the parity in force between the CFA franc and the national currency of the said Contracting States on the date of adoption of this Uniform Act. The exchange rate shall be rounded up to the next higher unit where the conversion shows a decimal number.

The Council of Ministers of the Contracting States to the Treaty on the Harmonization of Business Law in Africa, on the proposal of the Finance Ministers of the Contracting States, shall, as and when necessary, examine and, where necessary, revise the amounts in this Uniform Act expressed in CFA francs, depending on the economic and monetary developments in the said Contracting States. The exchange rate in the national currency shall, where necessary, be that determined by application of the parity in force between the CFA franc and the national currency of the said Contracting States on the day of adoption of the revised amounts in this Uniform Act.

BOOK 2 TRANSITIONAL AND FINAL PROVISIONS

Article 907

This Uniform Act shall be applicable to companies and economic interest groups which shall be formed on the territory of one of the Contracting States from the date of its entry into force in the said Contracting State.

However, any formalities towards the formation of a company accomplished prior to the entry into force of this Uniform Act shall not be repeated.

Article 908

Companies and economic interest groups formed prior to the entry into force of this Uniform Act shall be subject to its provisions. They shall be required to harmonize their Articles of Association with the provisions of this Uniform Act within a period of two years following its entry into force.

Partnerships limited by shares existing regularly in one of the Contracting States shall be transformed, within the same time limit of two years, into public limited companies, under penalty of being dissolved as of right on the expiry of the said time limit.

Article 909

The purpose of harmonization shall be to repeal, amend and replace, where necessary, the provisions of the Articles of Association contrary to the mandatory provisions of this Uniform Act and to include therein the supplements warranted by this Uniform Act.

Article 910

Harmonization may be carried out through amendment of the old Articles of Association or through adoption of redrafted Articles of Association.

Harmonization may be decided upon by the meeting of shareholders or of partners sitting under the conditions of validity of ordinary decisions, notwithstanding any legal or statutory provisions to the contrary, provided there shall be amendment in substance of only those clauses which are incompatible with the new law.

Article 911

Transformation of the company or an increase of its capital by any means other than incorporation of reserves, profits or agio on issue may only be carried out under the conditions normally required for the amendment of the Articles of Association.

Article 912

Where, for any reason whatsoever, the meeting of shareholders or of partners has been unable to reach a valid decision, the proposed harmonization of the articles shall be submitted for the approval of the president of the competent court sitting at the request of the legal representatives of the company.

Article 913

Where harmonization is unnecessary, the fact shall be duly noted by the meeting of shareholders or of partners whose decision shall be subject to the same publication as for the decision to amend the Articles of Association.

Article 914

Where private limited companies and public limited companies fail to increase their registered capital by at least the minimum amount stipulated respectively in Articles 311 and 387 of this Uniform Act, they shall, where their capital is below the said amounts, pronounce, before the expiry of the time limit specified in Article 908 of this Uniform Act, their dissolution or be transformed into another form of company for which this Uniform Act does not require minimum capital above the existing capital.

Companies which do not comply with the provisions of the preceding paragraph shall be dissolved as of right upon the expiry of the stipulated time limit.

Article 915

Where the Articles of Association of a company are not harmonized with the provisions of this Uniform Act within a period of two years from the date of entry into force, the clauses of the articles repugnant to these provisions shall be deemed to be unwritten.

Article 916

This Uniform Act shall not repeal laws applicable to companies subject to a special scheme.

The clauses of the articles of such companies which conform to the provisions repealed by this Uniform Act but which are repugnant to the provisions of this Uniform Act and which are not provided for by the special scheme of the said companies, shall be harmonized with the provisions of this Uniform Act under the conditions laid down in Article 908 of this Uniform Act.

Article 917

This Uniform Act shall not derogate from the laws relating to the minimum amount of company shares issued by the companies formed prior to its entry into force.

Article 918

Partnership shares or founder's shares issued before the entry into force of this Uniform Act shall remain governed by the instruments concerning them.

Article 919

All laws repugnant to the provisions of this Uniform Act shall be repealed, subject to their application transitionally for a period of two years from the date of entry into force of this Uniform Act to the companies which have not harmonized their Articles of Association with the provisions of this Uniform Act.

However, notwithstanding the provisions of Article 10 of this Uniform Act, each Contracting State may, during a transitional period of two years from the date of entry into force of this Uniform Act, maintain its national law applicable for the procedure of establishing the

Articles of Association

Article 920

After consideration, the Council of Ministers of the Contracting States present and voting, in accordance with the provisions of the Treaty of 17 October 1993 on the Organization for the Harmonization of Business Law in Africa, hereby adopts unanimously this Uniform Act.

This Uniform Act shall be published in the Official Gazette of OHADA and of the Contracting States. It shall enter into force on 1 January 1998.


Done at Cotonou on 17 April 1997.

 

On line Ohada Proceedings Summary Charts On line Ohada Case-law Back to On line Ohada Law Documents Back to Home page English

2001 - © Ohadalegis.com. All Rights Reserved.