Operations referred to in articles189 to199 of the OHADA Law of 2014 and carried out solely between public limited companies, are subject to the provisions of this chapter.
The mergers are decided by the extraordinary general meeting of each company involved in the transaction.
The merger is subject, where applicable, in each company involved in the transaction, to ratification by the special meetings of shareholders referred to in article 555 of the OHADA Law of 2014.
Any decision taken in violation of the first and second paragraphs of this article shall be null.
The board of directors or, where applicable, the general director of each of the companies involved in the transaction shall prepare a report that is made available to the shareholders.
Such a report shall explain in detail and justify the project from a legal and economic standpoint, especially about the share-exchange ratio and methods of evaluation used, which have to be the same for all the companies concerned and, where appropriate, specific valuation difficulties. Such deliberations conducted without the report of the board of directors or, where appropriate, the general director shall be null.
Decisions may be cancelled in the event the report does not contain all the information contemplated in this paragraph.
One or more merger auditor (s), appointed by the competent court, shall prepare, under their professional responsibility, a written report on the terms of the merger.
They may obtain all relevant documents from each company and carry out all necessary enquiries. They shall be subject, concerning the participating companies, to the incompatibilities outlined in article 698 of the law.
The merger auditor (s) shall verify that the values attributed to the shares of the companies involved in the transaction are fair and reasonable and that the exchange ratio is equitable. The report (s) of the merger auditors shall be made available to shareholders and shall state:
1°) The method (s) used to determine the proposed exchange ratio;
2°) Whether such method (s) is/are adequate in this case and the values to which each of these methods leads, an opinion shall be given on the relative materiality attributed to the such method (s) in the determination of the retained value;
3°) Specific valuation difficulties if any.
Resolutions passed by the general meeting without the report of the merger auditor shall be null. Resolutions may be cancelled in the event the report does not contain all the information contemplated in this paragraph.
The merger auditor (s) shall be appointed and shall perform his/their duties under the conditions outlined in articles 619 et seq of the law. The merger auditor may not be selected among the auditors of the companies involved in the transaction.
In case a single report is prepared for the whole transaction, the appointment is made at the joint request of all the participating companies.
Any public limited company involved in a merger transaction shall make available to its shareholders, at the headquarters, fifteen (15) days at least before the date of the general meeting called to decide on the project, the following documents:
1°) The draft merger instrument;
2°) Reports referred to in articles 671and 672 of the OHADA Law of 2014;
3°) The summary financial statements approved by general meetings as well as the last three (3) year management reports of the companies involved in the transaction;
4°) An accounting report prepared based on the same methods and the same layout as the last annual balance sheet, adopted on a date which, if the last summary financial statements pertain to a fiscal year whose end is earlier than more than six (6) months on the date of the proposed merger, must be earlier than less than three (3) months from the date of this project.
Any shareholder may obtain, at his expense, on-demand, a copy of all or part of the abovementioned documents. Documents listed above may be made available to shareholders electronically.
The general meeting may be cancelled in the event of non-compliance with the provisions of this article.
The extraordinary general meeting of the acquiring company shall rule on the approval of contributions in-kind, by the provisions of articles 619 and seq. of the law. Any decision taken in violation of this article shall be null.
Where, from the time the draft merger instrument is filed with the registry of commerce and securities and until the completion of the transaction, the acquiring company permanently holds the entire capital of the acquired company or companies, there is no need for the approval of the merger by the extraordinary general meeting of the acquired companies or preparation of the reports referred to in articles 671 and 672 of the law.
Where the merger is realized by creating a new company, the latter may be formed without any other contributions than those of the merging companies.
In all cases, the draft articles of association of the new company shall be approved by the extraordinary general meeting of each of the companies that are disappearing. There is no need for the approval of the transaction by the general meeting of the new company. Any decision taken in violation of this paragraph shall be null.
The proposed merger shall be submitted to the meetings of bondholders of the acquired companies unless reimbursement of securities on demand is offered to said bondholders. The merger transaction carried out in violation of this paragraph shall be null.
When bonds are refundable on demand, the acquiring company shall become the debtor of the bondholders of the acquired company.
The offer of reimbursement of bonds on demand of bondholders provided for above shall be published in a newspaper authorized to publish legal notices in the State party.
Any bondholder that did not request the reimbursement within the time limit set shall retain his status in the acquiring company under the conditions outlined in the merger agreement.
The acquiring company shall be the debtor of creditors that are not bondholders of the acquired company instead of the latter, without such substitution entailing novation on their part.
Creditors that are not bondholders of the companies involved in the merger transaction, including landlords of rented premises of acquired companies, and whose claim was contracted precedes the publication of the projected merger, may object to it before the competent court within thirty (30) days from the date of such publication.
The competent court shall reject the objection or order, either repayment of debts, or the provision of guarantees, if the company offers them and if they are deemed sufficient.
Failing repayment of debts or provision of guarantees ordered, the merger shall not be enforceable against this creditor.
The objection filed by a creditor operates as a prohibition for the continuation of the merger transaction.
The provisions of article 679 of the law do not preclude the application of agreements authorizing the creditor to demand immediate repayment of his claim in the event of a merger of the debtor company with another company.
The proposed merger shall not be submitted to the meetings of bondholders of the acquiring company.
However, the general meeting of bondholders may give a mandate to representatives of the group of bondholders to file an objection to the merger under the conditions and effects provided for in articles 679 and 680 of the law.
A creditor’s objection to the merger under the conditions set in articles 679 and 681 of the law shall be filed within thirty (30) days from the date of the publication provided for in article 265 of the law.
The objection of the representatives of the bondholders to the merger provided for in article 681 of the law shall be filed within the same time limit.