According to article 347 of the OHADA Law of 2014, ordinary collective decisions are the ones whose purpose is to review the summary financial statements of the preceding fiscal year, to authorize management to carry out operations that are subordinated, under the articles of association, to the prior consent of members, to appoint and replace managers and, where applicable, the auditor, to approve agreements entered into by and between the company and one of its managers or members, and more generally, to decide on all matters which do not result in an amendment of the articles of association.
Where the company has only a single member, the provisions of articles 558 to 561 of the OHADA law, excluding those of the second paragraphs of articles 558 and 559 of the same law, shall apply. Provisions of this Chapter that are not contrary hereto shall also apply.
Annual ordinary general meeting
The annual ordinary general meeting shall be held within six (6) months from the close of the fiscal year. Managers may petition an extension of this time limit to the competent court ruling further to a motion.
Where members fail to meet within the above-mentioned period, the public prosecutor or any partner may petition the competent court ruling expeditiously to enjoin the managers, if need be under a fine, to call the meeting or appoint an ad hoc agent to carry out that task.
Rules about members ’ voting
In ordinary meetings or ordinary written consents, decisions shall be adopted by one or more members representing more than half of the capital.
Failure to attain this majority, and unless otherwise provided for in the articles of association, members shall be, as the case may be, called or consulted a second time and decisions shall be taken by a majority of votes cast, notwithstanding the share of the capital represented.
However, in all cases, the dismissal of managers may only be decided by an absolute majority.
Any decision taken in violation of this section shall be null.
Agreements between the company and one of its managers or members
The ordinary general meeting shall decide on agreements entered into by, directly, or through a third party, and between the company and one of its managers or members.
For this purpose, the manager (s) or the auditor, where there is one, shall present, at the ordinary annual general meeting, or attach to documents sent to partners, a report on agreements entered into, directly or through a third party, between the company and one of its managers or members.
The same shall apply to agreements concluded with:
- A sole proprietorship whose owner is simultaneously a manager or member of the private limited company;
- A company whose member with unlimited liability, manager, director, general manager, general director or other company management is simultaneously manager or member of the private limited company.
Where the company has only a single member and the agreement is concluded with him, it shall only be stated in the register of deliberations.
The manager shall notify the auditor, where there is one, of agreements referred to in the previous article, within a period of one (1) month from the signing of the said agreements.
Where the performance of agreements concluded during previous fiscal years continues over the last fiscal year, the auditor shall be informed of this situation within a period of one (1) month following the date of the end of the fiscal year.
The authorization of the ordinary general meeting is not needed where agreements relate to ordinary operations entered into under regular conditions.
Ordinary operations are those carried out routinely by a company in the ordinary course of business, as part of its activities.
Regular conditions are those applied for similar agreements of the company in question or, possibly, those applied by companies in the same sector.
The report of the manager or of the auditor, if there is one, shall contain:
1) A list of agreements submitted to approval of the meeting;
2) The identity of parties to the agreement and the name of managers or partners concerned;
3) The nature and purpose of the agreements;
4) The main terms of these agreements, including applicable prices or rates, discounts and commissions offered, payment terms granted, stipulated interest rates, security interests offered and all other relevant information enabling members to assess the interest attached in the conclusion of the agreements under review;
5) The importance of goods furnished or services provided as well as the amount of money paid or received during the fiscal year pursuant to the agreements entered into in previous years and whose performance continues during the last fiscal year.
Deliberations relating to the agreements referred to in article 350 of the law shall be null when they have been conducted without the report of the manager, or where there is on, of the auditor. They may be cancelled in case the report does not contain the information provided for in this article.
The ordinary general meeting shall decide on the agreements pursuant to articles 348 and 349 of the law.
The members concerned does not vote during the deliberation on the agreement, and his votes do not count in the calculation of majority.
Any deliberation conducted in violation of this article shall be null.
Agreements not approved by the general meeting shall nevertheless have effect, leaving it to the contracting manager or member to be individually or severally liable, as the case may be, of the consequences of the agreement that is detrimental to the company.
A suit for civil liability shall be filed within a period of three (3) years from the conclusion of the agreement, or where it was concealed, from its disclosure.
Under penalty of invalidity of the contract, it is forbidden to natural persons, managers or members to contract, under any form whatsoever, loans from the company, to obtain from the company an overdraft on a checking account or otherwise, as well as to have the company guarantee or endorse their commitments towards third parties.
This prohibition also applies to spouses, ascendants and descendants of the persons referred to in the first paragraph of this article, as well as to any intermediary.