According to article 573 of the OHADA Law of 2014, Shares carry a pre-emptive subscription right to capital increases.
Shareholders have, proportionally to the number of their shares, a pre-emptive right to subscribe for shares issued for cash to achieve an increase in capital. This right shall be irreducible.
During the subscription period, the pre-emptive subscription right shall be negotiable where it is detached from shares that are also negotiable.
Otherwise, such right shall be transferable under the same conditions as the share itself.
Where the general meeting so expressly decides, shareholders shall also have a pre-emptive subscription right to new excess shares which could not have been subscribed for on an irreducible basis.
Excess shares shall be allotted to shareholders who subscribed for several shares greater than they could subscribe on an irreducible basis and, in any case, within the limits of their request.
The deadline for shareholders to exercise their pre-emptive subscription right may not be less than twenty (20) days. This period runs from the date of the opening of the subscription.
This period shall close early as soon as all the irreducible subscription rights and, where appropriate, reducible rights have been exercised, or where the capital increase was fully subscribed after individual waiver of their subscription rights, by shareholders who did not subscribe.
Where irreducible subscriptions and, where applicable, reducible subscriptions have not absorbed the total increase in the capital:
1) the amount of the capital increase may be limited to the number of subscriptions made under the double condition that this amount reach three-fourths at least of the increase anticipated by the general meeting which decided or authorized the capital increase and such option was expressly provided for by the meeting during the issue;
2) unsubscribed shares may be freely distributed, in whole or in part, unless otherwise decided by the Meeting;
3) unsubscribed shares may be offered to the public, in whole or in part, where the meeting has expressly provided for such an option.
The board of directors or the general director, as the case may be, may use, in the order which he shall determine, the options provided for in article 579 of the law or some of them only.
The capital increase is not carried out when, after exercising these options, the amount of subscriptions received does not cover the totality of the increase of capital, or, in the case provided for in point 1 °) of article 579 of the OHADA Law, three-quarters of such increase.
However, the board of directors or the general director shall, as the case may be, ex officio and in all cases, limit the increase of capital to the amount reached, where shares subscribed for represent ninety-seven percent (97%) of the capital increase.
Usufruct
When old shares have usufruct attached to them, the usufructuary and the underlying title holder may set the conditions for exercising the pre-emption right and allocation of new shares as they see fit.
Failing an agreement between the parties, the provisions of articles 582 to 585 of the OHADA Law are applicable.
These provisions also apply, where the parties fail to act, in the case of allotment of bonus shares.
The pre-emptive subscription right attached to old shares belongs to the underlying title holder.
In the event the underlying title holder sells his subscription rights, the proceeds from the transfer or assets acquired as a result of reinvestment of these sums shall be subject to the usufruct.
Where the underlying titleholder fails to exercise his pre-emptive subscription right, the usufructuary may replace him to subscribe for the new shares or sell the subscription rights.
Where the usufructuary sells the subscription rights, the underlying title holder may demand reinvestment of the proceeds of the transfer. The assets, thus acquired, shall be subject to the usufruct.
The underlying title holder of shares is deemed, vis-à-vis the usufructuary, to have failed to exercise the pre-emptive subscription right for the new shares issued by the company where he neither subscribed for new shares nor sold the rights of subscription at least eight (8) days before the expiration of the subscription deadline granted to shareholders.
The new shares shall belong to the underlying title holder for the underlying title and to the usufructuary for the usufruct. However in the event the underlying title holder or the usufructuary provides funds to make or finalize a subscription, the new shares shall belong to the underlying title holder and the usufructuary only up to the limit of the subscription rights: the excess of the new shares shall belong, as a freehold, to the party who paid for them.
Removal of pre-emptive rights
The general meeting that decides or authorizes a capital increase may, in favor of one or several beneficiaries specifically named, cancel the pre-emptive subscription right for the entirety of the capital increase or for one or several portions of such increase.
Beneficiaries when they are also shareholders shall take part in the vote neither for themselves nor as agents and, their shares are not taken into account for the calculation of quorum and majority.
The decision on the conversion of preferred shares entails the waiver of shareholders’ preemptive subscription right to shares issued from the conversion.
The decision to issue securities giving access to capital also entails a waiver by shareholders’ pre-emptive subscription right to shares to which the issued securities give rights.