Calling a meeting
According to article 516 of the OHADA Law of 2014, the meeting of the shareholders shall be called by the board of directors or the general director, as the case may be.
Failing this, it may be called:
1) By the auditor, after he has unsuccessfully requested that the board of directors or the managing director as the case may be, calls the meeting, by hand-delivered letter against a receipt or by registered mail with a request for acknowledgement of receipt. Where the auditor calls such a meeting, he shall set the agenda and may, for vital reasons, choose a
meeting venue other than the one possibly stipulated in the articles of association. He shall state the reasons for the meeting in a report to be read at the meeting;
2) By an agent appointed by the competent court, ruling expeditiously, at the request of any interested party in case of an emergency, or of one or more shareholders representing at least one-tenth of the stated capital if it is a general meeting or a tenth of the shares of the category concerned if it is a special meeting;
3) By the liquidator.
Unless otherwise provided for in the articles of association, meetings of shareholders shall be held at the headquarters or in any other location within the territory of the State party where the headquarters is located.
Subject to the provisions of this article, the articles of association shall set forth the rules for calling the meetings of shareholders.
A meeting is called a notice of meeting published in a newspaper authorized to publish legal notices.
If all shares are nominatives, such publication may be replaced by notice of meeting sent, to be paid by the company, by hand-delivered letter against a receipt or by registered mail with request for acknowledgement of receipt, by facsimile or electronic mail. Notice of meeting by facsimile and electronic mail is valid only if the partner has previously given his written consent and communicated his facsimile number or electronic address, as applicable. He may, at any time, request expressly to the company by registered mail with a request for acknowledgement of receipt that the aforementioned means of communication referred be replaced in the future by postal mail.
The notice of the meeting shall state the date, the venue of the meeting and the agenda.
The notice of the meeting shall reach or be communicated to shareholders fifteen (15) days at least before the date of the meeting for the first notice of the meeting and, where appropriate, six (6) days at least for subsequent notice of meetings.
Where the meeting is called by an ad hoc agent, the judge may set a different deadline.
The meeting notice shall state the name of the company, followed by, where appropriate, its acronym, the form of the company, the amount of stated capital, the headquarters address, the registration number at the registry of commerce and securities, the date, the time and the venue of the meeting, as well as its nature either ordinary, extraordinary and its agenda.
When applicable, the notice shall state where bearer shares or the certificate of deposit of these shares are to be delivered, to obtain the right to participate in the meeting, as well as the date the delivery must be done.
Co-owners of jointly owned shares, underlying title holders and usufructuary of shares shall be called according to the above-mentioned forms.
Any meeting improperly called may be cancelled. However, the action for invalidity, set out under the conditions provided for in article 246 of the 2014 OHADA Law, shall not be admissible if all the shareholders were present or represented.
The agenda of the meeting shall be set by the person that calls the meeting.
However, when the meeting is called by an ad hoc agent, the agenda shall be set by the competent court that appointed him.
Likewise, one or more shareholders have the option to request the inclusion of a draft resolution in the agenda of the general meeting when they represent:
1) 5% of the capital if the company’s capital is less than one billion (1,000,000,000) CFA Francs;
2) 3% of the capital if the capital is between one billion (1,000,000,000) and 2 billion (2,000,000,000) CFA Francs;
3) 0.50% of the capital, if it exceeds 2 billion (2,000,000,000) CFA Francs;
4) The request shall contain:
5) The draft resolution together with a brief explanatory statement;
6) Proof of ownership or representation of the fraction of the capital required under this article;
7) When the draft resolution concerns the presentation of a candidate for the office of director or general director, the information required in article 523 of the same law.
Draft resolutions shall be sent to the headquarters by hand-delivered letter against a receipt, by registered mail with a request for acknowledgement of receipt or by fax, ten (10) days at least before the date of the general meeting to submit them to the vote at the meeting.
Deliberations of the general meeting shall be void where the draft resolutions sent by the provisions of this section are not submitted to the vote at the meeting.
The meeting may not deliberate on a matter not included in its agenda. Any decision taken in violation of this paragraph shall be null.
By derogation from the preceding paragraph, the meeting may, at all times, remove one or several members of the board of directors or, where applicable, the general director or the deputy general director and appoint their replacements.
Where the general meeting is held to introduce candidates to the office of director or managing director, as the case may be, it shall state their identity, their professional background, their professional activities and offices held over the last five years.
The agenda of the general may not be amended on the second notice of meeting or, where applicable, for extraordinary general meetings, on the third notice of meeting. Any deliberation conducted in violation of this section shall be null.