According to article 309 of the OHADA Law of 2014, a private limited company is a company in which members are liable for the company debts only proportionally to their contributions and whose rights are represented by equity interests.
It may be formed by a natural person or legal entity, or by two or more natural persons or legal entities.
Collective decisions are taken at general meetings.
However, the articles of association may provide that some or all decisions shall be taken by written consent of members, except in the case of the annual general meeting. Decisions taken in violation of these provisions of the articles of association shall be null.
Representation of partners
Each member is entitled to participate in decision-making and shall have several votes equal to the number of company equity interests he holds. Where there is a sole partner, he shall take, alone, decisions falling within the competence of the general meeting.
A member may be represented by her spouse unless the partners of the company are two (2) spouses.
Except where there are only two (2) members, a member may be represented by another member. He may only be represented by another individual if the articles of association so provide.
The mandate given to another member or a third party shall be valid only for a single meeting or for several successive meetings called with the same agenda.
A member may not appoint a proxy to vote for a portion of his interests and vote in person for the other portion of his interests.
Deliberations conducted in violation of articles 334 and 335 of the OHADA Law of 2014 shall be null.
Calling general meetings
Right to call a meeting
Members are called to meetings by the manager. One or more members holding half of the equity interests, or holding, if they represent at least a quarter of the partners, a quarter of the equity interests, may demand the call of a general meeting.
Moreover, any member may petition the court for the appointment of an ad hoc agent responsible for calling the general meeting and setting the agenda.
Last, meetings may also be called by the auditor, where there is one after the latter has unsuccessfully requested, by hand-delivered letter against a receipt or by registered mail with a request for acknowledgement of receipt, the manager to call the meeting. Where the auditor calls the meeting, he shall set the agenda and may, for underlying reasons, choose a meeting venue other than the one possibly provided for in the articles of association. He shall explain the reasons for the meeting in a report to be read at the said meeting.
Terms for calling a meeting
Members are called at least fifteen (15) days before the meeting by hand-delivered letter against a receipt, by registered mail with a request for acknowledgement of receipt, by fax or electronic mail. Notices of meetings by fax and electronic mail shall be valid only where the partner has given his prior written consent, and communicated his fax number or electronic address, as the case may be. He may, at any time, expressly request to the company, by registered mail with a request for acknowledgement of receipt, that the abovementioned means of communication be replaced in the future by postal mail.
The notice of the meeting shall state the date, venue and agenda of the meeting.
Where the meeting is requested by members, the manager shall call the meeting and provide the agenda prepared by them.
By the forms and time limits outlined in the first paragraph of this article, members shall be able to exercise the right to communication stipulated in article 345 of the Law.
The meeting shall not discuss an item that is not included on the agenda.
However, it may, even if that question/issue is not on the agenda, remove the manager and choose his replacement.
Any deliberation conducted in violation of paragraph 1 of this article shall be null.
Sanctions for improper call of meetings
Any meeting improperly called may be cancelled. However, the action for invalidity is inadmissible where all members were present or represented.
In the event of written consent, the draft resolutions as well as documents necessary for members’ information shall be sent to each of them under the same conditions as those outlined in the first paragraph of article 338 of the OHADA Law of 2014.
Members shall have a minimum period of fifteen (15) days from the date of receipt of the draft resolutions to vote.
Chairmanship of the meetings
The members’ meeting shall be chaired by the manager or one of the managers. Where none of the managers is a member, the meeting shall be chaired by the member who is present and willing and who holds the largest number of equity interests and in case of equality, by the oldest member.
Deliberations of the general meetings shall be recorded in minutes stating the date and venue of the meeting, the first and last names of the members present, the documents and reports submitted for discussion, a summary of the proceedings, the text of the resolutions put to vote and the outcome of the votes.
Minutes shall be signed by each of the members present.
In the event of written consent, it shall be stated in the minutes to which shall be appended the response of each member, and which shall be signed by the manager (s).
Copies or extracts of the minutes of the members’ deliberations shall be duly certified by a single manager.