According to article 415 of the OHADA Law of 2014, the public limited company with a board of directors shall be managed by either a chief executive officer or by a chairman of the board of directors and a general manager.
Number and appointment of directors
The public limited liability company may be managed by a board of directors consisting of at least three (3) members, and twelve (12) members at most, shareholders or not.
The articles of association may require that each director holds several shares of the company which they shall determine. This provision shall not apply in the case of employees-appointed directors.
Any director who, on the day of his appointment, does not hold the number of shares required by the articles of association, or while in office, ceases to be the owner thereof, is infringing the provisions of the preceding paragraph. In such case, he must resign from his position, within three (3) months of his appointment or if the offense occurs during his term in office within three (3) months from the date of transfer of shares that caused the violation. Upon the expiration of this period, he is deemed to have resigned from his office and shall return compensation received, in any form whatsoever without the validity of the proceedings in which he took part being called into question.
Auditors shall, subject to their professional responsibility, ensure compliance with the provisions of this article and report any violation in their report to the annual general meeting.
The number of directors of the public limited company may temporarily be exceeded the limit, in the event of a merger with one or more companies, up to the total number of directors in office for more than six (6) months in the merged companies, without exceeding twenty-four (24).
Deceased directors or who have left their office may not be replaced, at the same token, as new directors may not be appointed, except during a new merger, as long as the number of directors in office has not been reduced to twelve (12).
The first directors shall be appointed by the articles of association or, where appropriate, by the general organization meeting.
During the company life, directors shall be appointed by the ordinary general meeting.
However, in the event of a merger, the extraordinary general meeting may appoint new directors.
Any appointment made in violation of the provisions of this article shall be null.
Directors’ term of office
The directors’ term of office is freely set by the articles of association, but shall not exceed six (6) years in the case of an appointment during the life of the company, and two (2) years in the case of an appointment by the articles of association or by the general organization meeting.
Appointment of the permanent representative of the legal entity member of the board of directors and term of his office
A legal entity may be appointed director. Upon its appointment, it must appoint, by hand-delivered letter against a receipt or by registered mail with a request for acknowledgment of receipt addressed to the company, for the duration of its term, a permanent representative. Although such a permanent representative is not personally a director of the company, he is subject to the same conditions and obligations and shall incur the same civil and criminal liability as if he was a director in his name, without prejudice to the joint liability of the legal entity that he represents.
The permanent representative may or may not be a shareholder of the company.
The permanent representative shall hold office for the term of office of the legal entity that he represents.
At each renewal of its mandate, the legal entity must indicate whether it maintains the same natural person as a permanent representative or immediately appoint another permanent representative.
When the legal entity terminates the mandate of its permanent representative, it shall notify the company without delay, by hand-delivered letter against a receipt or by registered mail with a request for acknowledgment of receipt, of such termination, and disclose the identity of its new permanent representative.
The same shall apply in the event of the death or resignation of the permanent representative or for any other reason that prevents him from performing his duties.
Elections procedures for directors shall be freely set by the articles of association, which may provide for a distribution of seats based on the classes of shares. However, and subject to provisions of this uniform Act, this distribution shall neither deprive shareholders of their eligibility to the board nor deprive a class of shares of its representation on the board.
Directors may be re-elected unless otherwise provided for by the articles of association.
Any appointment made in violation of the provisions of this article shall be null.
A natural person, who is a director in his name or a permanent representative of a legal entity that is a director, shall not serve simultaneously on more than five (5) boards of directors of public limited companies having their headquarters in the territory of the same State party.
Notwithstanding the provisions of the first paragraph, shall not be taken into account, for the director’s duties performed by that individual in companies controlled, within the meaning of article 175 of the OHADA Law, by the company in which he is a director.
Any natural person who, upon taking up a new role, infringes the provisions of the first paragraph of this article shall resign from one of the board of directors within three (3) months of his appointment.
At the expiration of this period, he shall be deemed to have resigned from his new office and shall pay back all compensation received, in any form whatsoever, without the validity of the proceedings in which he took part being called into question.
Unless otherwise provided for in the articles of association, an employee of the company may be appointed director if his employment agreement corresponds to an actual job. Likewise, a director may sign an employment agreement with the company if such an agreement corresponds to an actual job. In this case, the agreement is subject to the provisions of Article 438 of the OHADA Law.
The appointment of directors must be published in the registry of commerce and securities.
The appointment of the permanent representative shall be subject to the same publication formalities as if he was a director in his name.
Decisions taken by a board of directors improperly constituted shall be null.
A vacancy on the board of directors
In the event of a vacancy of one or more directors, due to death or resignation, the board of directors may appoint new directors between two meetings.
Where the number of directors falls below the minimum set in the articles of association, the board of directors must, within three (3) months from the day the vacancy occurs, appoint new directors to complete the number of members. Board resolutions passed during such period shall remain valid.
When the number of directors falls below the statutory minimum, the remaining directors shall immediately call the ordinary general meeting to complete the number of members of the board of directors.
Where the board neglects to proceed with the required appointments, or to call the general meeting to this effect, any interested party file a motion with the competent court for the appointment of an agent in charge of calling the ordinary general meeting to proceed with the appointments prescribed in this article or to ratify them.
The vacancy and appointments of new directors shall take effect only at the end of the meeting of the board of directors held for this purpose.
Appointments by the board of new directors are subject to ratification by the next ordinary general meeting.
In the event the ordinary general meeting refuses to ratify the new appointments, the decisions taken by the board of directors shall remain valid and produce their effect with the respect to third parties.
Apart from sums received in connection with an employment agreement, directors shall not receive for their position any other compensation, permanent or not, other than the ones referred to in articles 431 and 432 of the OHADA Law.
The provisions of this article shall not apply to dividends that are evenly divided among shareholders.
Any decision taken in violation of the first paragraph of this article shall be null.
The ordinary general meeting may grant directors, as compensation for their service, an annual fixed duty allowance, which it fixes freely.
Directors who are shareholders may take part in the vote of the meeting and their shares are taken into account in the calculation of quorum and majority.
Unless otherwise provided by the articles of association, the board of directors shall freely distribute duty allowances among its members.
The board of directors may grant to the directors who are members of committees provided for in article 437 of the law, a greater share than that of the other directors.
The board of directors may also grant its members exceptional compensations for missions and mandates entrusted to them, or authorize reimbursement of travel expenses and those incurred in the interest of the company subject to the provisions of articles 438 of the law.
These compensations and expenses shall result in a special report of the auditors intended for the meeting.
Other powers of the board of directors
The relocation of the headquarters within the territory of the same State party may be decided by the board of directors, which shall amend the articles of association accordingly, subject to the ratification of this decision by the very next ordinary general meeting. The such a decision grants the power to amend the articles of association. Related publicity formalities referred to in articles 263 and 264 of the OHADA Law are applicable.
Where the general meeting does not ratify the relocation of the headquarters, the decision of the board of directors becomes void. New publicity formalities shall therefore be accomplished to inform third parties of the move to the old headquarters.
The board of directors shall adopt the summary financial statements and the management report on the company activities, which shall be submitted to the ordinary general meeting for approval.