According to article 81 of the OHADA Law of 2014, are deemed to trade securities publicly:
- Companies whose securities are admitted to trading at the stock exchange of a State party from the date of the admission of such securities;
- Companies or any person who offers its securities to the public of a State party under the conditions set out in article 83 of the same law.
When a financial market covers several States parties, these states shall be deemed as constituting a single State party for the purpose of this title.
The following shall not constitute a public offering within the meaning of article 83 of the law, the offer on securities:
a) Whose total amount in the States parties is less than fifty million (50,000,000) CFA francs, such amount being calculated over a period of twelve (12) months;
b) Or an offering that targets qualified investors trading for their own account, or less than one hundred (100) individuals or legal entities trading for their own account, other than qualified investors by regional stock exchanges of State parties or, for State parties which are not members of such a market, by a State party.
Within the meaning of this uniform Act, a qualified investor is a person or a legal entity with appropriate skills and resources to understand the risks inherent in transactions involving financial instruments, such as credit institutions and other intermediaries or financial institutions authorized or regulated in the States parties, investment funds and their management companies, insurance and reinsurance companies, group insurance companies, health insurance companies and a coalition of health insurance companies as well as pensions and contingency funds.
Any resale of securities having already been the subject of more than one type of offer referred to in article 81-1 above shall be deemed a separate offering and may constitute an offer to the public if it is undertaken in connection with operations referred to in article 83 of the Law.
Investment of securities by financial intermediaries shall be subject to the publication of a disclosure document stipulated in chapter 2 of this Title, if none of the conditions listed in paragraphs a) and b) above is met for final investment.
No other disclosure document shall be required during a subsequent securities resale or during the final investment of securities by financial intermediaries as long as a valid disclosure document is available and the issuer or the person responsible for drafting the said disclosure document gives written consent for its use.
It is prohibited for companies not authorized by the OHADA Law uniform Act to make public offerings.
It is also prohibited for any person to transfer, through a public offering, securities of a company not authorized by the uniform Act to make a public offering.
Any transaction carried out in infringement of the provisions of this section shall be null.
The public offering of securities referred to in article 81 above is made up by one of the following transactions:
- A communication sent in any form and by any means whatsoever to persons with sufficient information on the terms of offering and securities to be offered, that might enable a person to purchase or subscribe to these securities;
- Investment of securities by financial intermediaries in connection with either an issue or a transfer.
A company whose headquarters is located in a State party may invest its securities in one or several other States parties by soliciting their public.
In such a case, it shall be subject to the provisions of articles 81 through 96-1 of the OHADA Law uniform Act in the State party of the headquarters and in this other States parties.
Where the public offering of securities is not made by the issuer, the company making the offer shall be subject to the provisions of articles 81 through 96-1 of the Uniform Act in the State party of the issuer and in the other States parties where the public is solicited.
Where a company whose headquarters is located in a State party makes a public offering in another State party, one or several credit institutions in that other State party shall guarantee the successful completion of the operation if the total amount of the offer exceeds fifty million (50,000,000) CFA Francs.
Such a company shall, in all cases, resort in that other State party to one or several financial intermediaries to guarantee the financial service of the operation.
The company shall designate, if the total amount of the transaction exceeds fifty million (50,000,000) CFA Francs, one or several auditors, from the list of auditors of that other State party, to verify the financial statements. The auditor (s) shall sign the disclosure document referred to in article 86 of the law, as amended or supplemented, if applicable, in accordance with the provisions of article 90 of the same law.