The provisions of this chapter shall apply to any liquidation of a commercial company organized amicably in accordance with the articles of association or by the agreement of the members or ordered by a court decision in accordance with paragraph 2°) of article 223 of the OHADA Law of 2014.
However, they shall not apply when the liquidation occurs within the framework of the provisions of the uniform Act with respect to insolvency proceedings.
The company shall be under liquidation from the moment of its dissolution for any reason whatsoever.
The words “company under liquidation” as well as the name of the liquidator (s) shall appear on all instruments and documents issued by the company to third parties, including letters, invoices, notices, and various publications.
The legal personality of the company shall continue to exist for purposes of the liquidation and until the completion of the liquidation process is published.
Where the liquidation is decided by the members, one or more liquidators shall be appointed:
1°) Unanimously by the partners, in general partnerships;
2°) Unanimously by the general partners and by the majority capital of limited partners, in limited liability partnerships;
3°) By the majority capital of members, in private limited companies;
4°) Under the quorum and majority requirements set forth for extraordinary general meetings, in share companies.
The liquidator may be selected among members or third parties. It may be a legal entity.
Where members are unable to appoint a liquidator, he shall be appointed by a court decision at the request of any interested party under the conditions set forth in articles 226 and 227 of the law.
Unless otherwise provided for in the appointment document, where several liquidators are appointed, they may perform their duties separately.
However, they shall prepare and present a joint report.
The compensation of the liquidator shall be set by the decision of the members or the competent court that appointed him.
The liquidator may be removed and replaced in accordance with the conditions provided for his appointment.
However, any member may petition the court for the removal of the liquidator where such a petition has legitimate grounds.
The appointment instrument of the liquidator shall be published in accordance with the conditions and time limits set forth in article 266 of the law.
The appointment and removal of the liquidator shall be enforceable to third parties only from the date of such publication.
Neither the company nor third parties shall, in order to evade their commitments, invoke an irregularity in the appointment of a liquidator, where his appointment was regularly published.
Unless there is unanimous consent of the members, the assignment of all or part of the assets of the company under liquidation to the person whose status within the company was once a name partner, general partner, manager, director, general director, general manager, or other company management or auditor shall only take place with the authorization of the competent court, the liquidator and the auditors after their hearings.
The assignment of all or part of the assets of the company under liquidation to the liquidator, its employees, or their spouses, descendants, or descendants is prohibited.
The overall assignment of the assets of the company or the contribution of assets to another company, notably through a merger, shall be authorized:
1°) Unanimously by partners, in general partnerships;
2°) Unanimously by general partners and by the majority capital of the limited partners, in limited liability partnerships;
3°) By the majority required to amend the articles of association, in private limited companies;
4°) Under the quorum and majority requirements set forth for extraordinary general meetings in share companies.
The liquidation shall be closed within a period of three (3) years from the date of the dissolution of the company.
Failing this, the public prosecutor or any interested party may petition the competent court within the jurisdiction in which the company headquarters is located for the liquidation of the company or if the process has started, for its completion.
Members shall be called at the end of the liquidation to decide on the final financial statements, evaluate the performance of the liquidator and discharge him and record the end of the liquidation.
Failing this, any member may petition the competent court, ruling expeditiously, to appoint an ad hoc agent to call the meeting.
Where the meeting to close the liquidation referred to in the preceding paragraph is unable to deliberate, or refuses to approve the financial statements of the liquidator, the competent court shall rule on such statements and, where appropriate, on the end of the liquidation, in lieu and place of the meeting of the members at the request of the liquidator or any interested party.
In such case, the liquidator shall file its financial statements with the registry of commerce and securities of the State party of the headquarters where any interested party may examine them and obtain a copy at their own expense.
The final accounts drawn up by the liquidator shall be filed with the registry of commerce and securities in the State party of the headquarters.
The decision of the meeting of the members on the account of the liquidation, the evaluation of the performance of the liquidator and his discharge, or, failing that, the court decision referred to in the preceding article, shall be attached to the final accounts.
Upon proving the completion of the formalities stipulated in the foregoing article, the liquidator shall request the removal of the company from the registry of commerce and securities within a period of one (1) month from the date of the publication of the close of the liquidation.
The liquidator shall be liable to the company and third parties for damaging consequences resulting from his wrongdoings during the performance of his duties.
Shareholders’ derivative lawsuit or individual suit for civil liability against the liquidator shall be time-barred after three (3) years, from the date of the damaging fact or, from the date of its disclosure in case it was concealed.
However, when the fact is deemed a crime, the lawsuit shall be time-barred after a period of ten (10) years.
Any lawsuit against members who are not liquidators or their surviving spouse (s), heirs, or successors, shall be time-barred after five (5) years from the date of the publication of the dissolution of the company in the registry of commerce and securities.