According to article 825 of the OHADA Law of 2014, the founders shall publish, before undertaking any shares subscription transaction, a notice in newspapers authorized to publish legal notices in the State party of the headquarters office and, where appropriate, in States parties where the company launches a public offering.
The notice referred to in the foregoing article shall contain, in addition to the information provided in article 257 (1) of the same law, the following information:
1) The company purpose;
2) The duration of the company;
3) The number of shares to be subscribed for in cash and the amount immediately due including, where applicable, the issue premium;
4) The nominal value of shares to be issued, the distinction being made, where appropriate, between each class of shares;
5) A brief description of contributions in-kind, their overall assessment, and their method of payment, with an indication of the provisional nature of such assessment and the remuneration method;
6) Special benefits stipulated in the draft articles of association for the benefit of any person;
7) Conditions for admission to the meetings of shareholders and for exercising the voting right with, where appropriate, an indication of provisions relating to the allotment of the right to double vote;
8) Where appropriate, provisions relating to the approval of shares transferees;
9) Provisions relating to the distribution of profits, the constitution of reserves, and the distribution of the liquidation surplus;
10) The last and first names and address of the domicile of the notary or the name and the headquarters office of the bank in which proceeds of subscription shall be deposited;
11) Time limit open for subscription with an indication of the possibility of early closing in the event of full subscription before the said deadline;
12) Procedures for calling the organization meeting and the venue of the meeting.
The notice shall be signed by the founders who shall state:
13) in case they are natural persons, their last and first names, domicile, nationality, professional qualifications, professional activities, and management positions held during the last five (5) years;
14) in case they are legal entities, their name, form, their headquarters, and, where appropriate, the amount of their stated capital.
To inform the public about the forthcoming projected issuance of shares, a prospectus shall be prepared to detail the information contained in the notice referred to in article 826 of the law.
The prospectus shall mention the publication of the notice in newspapers authorized to publish legal notices in which such notice has been published. They shall provide their publication number in these newspapers.
Furthermore, the prospectus shall give details of the project of the founders about the use of proceeds from subscribed shares.
Posters and announcements in newspapers shall provide the same information or at least an extract of this information, concerning the notice and the issue number of newspapers authorized to publish legal notices in which it was published.
The draft articles of association shall be prepared and signed by one or several founders, who shall deliver a copy to the clerk of the competent court where the headquarters is located or to the competent authority in the State party.
No subscription may be accepted if the formalities relating to the notice and the draft articles of association have not been observed.
Persons deprived of the right to administer or manage a company or to whom the performance of these duties have been prohibited cannot be founders.
The capital must be fully subscribed.
Shares issued for cash shall be paid up, upon subscription of the capital, by at least a quarter of their nominal value. The balance shall be paid within a period which may not exceed three (3) years from the registration of the company with the register of commerce and securities following a decision of the board of directors and by the terms it sets.
Shares representing cash contributions not fully paid up shall remain in their nominative form.
Insofar as the capital is not fully paid, the company may neither increase its capital, unless such increase is achieved through contributions in-kind, nor issue bonds.
Contributions shares shall be fully paid upon the issue.
Shares may not represent contributions of services.
The subscription for cash shares shall be acknowledged in a subscription form.
The subscription form shall be dated and signed by the subscriber or his agent, who shall write in letters the number of shares subscribed. Two (2) original copies shall be established, one for the company being formed, and the other for the depositary in charge of keeping the funds. A copy made on plain paper shall be delivered to the subscriber.
The subscription form shall list the information on the notice.
Proceeds from the subscription of shares issued for cash shall be deposited by the persons that collected them on behalf of the company being formed, either at a notary’s office or in a duly accredited credit or microfinance institution domiciled in the State party of the headquarters of the company being formed, in a special account opened in the name of this company.
The deposit of funds must be made within eight (8) days from the receipt of funds.
The depositor shall provide the bank, at the time of the deposit of funds, a list containing the identity of the subscribers and stating, for each of them, the number of sums paid.
The depositary shall, until the withdrawal of funds, provide the list referred to in paragraph 3 above, to any subscriber that, after proving his subscription, so requests. The petitioner may review the notice and obtain, at his expense, a copy thereof.
Subscriptions and payments shall be acknowledged in a notarial statement of subscription and payment established, at the time of the deposit of the funds, upon presentation of the subscription forms.
After the issue of the notarial statement of subscription and payment or the depository certificate, the founders shall call the subscribers to the organization meeting.
The notice of the meeting shall be sent by hand-delivered letter against a receipt or by registered mail with a request for acknowledgment of receipt, fax, or electronic mail. Notice of meeting by fax or electronic mail shall be valid only on the express condition that the subscriber had given his prior written consent, provided his electronic address, and after confirmation of receipt by the recipient subscriber.
The notice of the meeting shall indicate the date, the venue of the meeting, and the agenda. It shall be sent to each subscriber fifteen (15) days at least before the date of the meeting.
The notice of the meeting shall also be published in a newspaper authorized to publish legal notices in the State party of the headquarters fifteen (15) days at least before the date of the meeting.
The meeting shall ascertain that the capital is fully subscribed and the amount due for shares is fully paid up.
It shall rule on the adoption of the articles of association, which can only be amended unanimously by all subscribers and appoint the first directors and auditors.
The meeting agenda must include information on the identity, professional references, professional activities, and management positions held by the candidates for the office of director over the last five (5) years.
Minutes of the meeting session shall record, where applicable, the acceptance of duties by the directors and auditors.
In the event of contributions in-kind as for stipulation of special benefits for persons shareholders or not, one or more contributions auditor (s) shall be appointed by a court decision at the request of the founders or one of them.
Contributions auditors shall be selected among auditors or experts included on one of the lists established by the competent courts.
They shall be appointed by the competent court, ruling further to a motion.
They may be assisted, in the performance of their duties, by one or more experts of their choice. The fees of these experts shall be borne by the company.
They are subject to the incompatibilities outlined in articles 697 et seq. of the law.
The auditors shall appraise, under their responsibility, the value of contributions in-kind and of special benefits.
The report of contributions auditors shall describe each contribution in-kind and/or special benefits, state the valuation procedure used, and why it was selected. He shall certify that the value of contributions corresponds to at least the nominal value of shares to be issued, increased possibly by the share premium.
In the event it is not possible to assess the special benefits, the contributions auditors shall appraise the consistency thereof and the impact on shareholders’ position.
The report of the contributions auditors shall be deposited eight (8) days at least before the date of the organization’s general meeting at the selected headquarters address mentioned in the subscription form and the registry of commerce and securities of the place of the headquarters.
It shall be made available to subscribers that may review it or receive a partial or complete copy thereof.
The general organization meeting shall rule on the valuation of contributions in-kind and the granting of special benefits. It may reduce them only by unanimous decision of all the subscribers.
Failing the express approval of contributors and beneficiaries of special benefits, referred to in the minutes, the company is not formed.
Subscribers of shares shall take part in the vote or may be represented.
The provisions of articles 133-1 and 133-2 above do not apply to organization meetings.
The organization meeting shall be chaired by the subscriber with the highest number of shares or, failing that, by the oldest member.
It shall deliberate under the quorum and majority requirements for extraordinary meetings.
Where the meeting deliberates on the approval of a contribution in-kind or the granting of a special benefit, the shares of the contributor or the beneficiary shall not be taken into account for the calculation of the majority.
The contributor or the beneficiary shall not vote either for himself or as a proxy.
Any organization meeting improperly called may be canceled under the conditions outlined in articles 242 et seq. of the Law.
However, the action for invalidity is not admissible where all the subscribers were present or represented.
Withdrawal of funds from subscriptions paid in cash may occur only after the registration of the company with the registry of commerce and securities. It shall be carried out, as the case may be, by the chief executive officer, the general manager, or any company representative upon presentation to the depositary of the clerk or the competent authority’s certificate attesting that registration of the company with the registry of commerce and securities.
Any subscriber, six (6) months after payment of funds, may seek an order through a summary hearing to the competent court for the appointment of a director in charge of withdrawing the funds to return them to subscribers, subject to deduction of the costs of distribution, if, on that date, the company is not registered.