According to article 853-1 of the OHADA Law of 2014, the simplified public limited company is formed by one or more shareholders whose articles of association freely prescribe the organization and operation of the company subject to the mandatory rules of this book. Shareholders of a simplified public limited company are liable for the company debts only to the extent of their contributions and their rights are represented by shares.
Where such a company has a single shareholder, it is referred to as a “sole shareholder”. The sole shareholder shall exercise the powers devolved to shareholders where this book provides for collective decision-making.
All decisions taken by the sole shareholder that may be subject to legal publicity if they were taken by a meeting shall be published following the same formalities.
The company shall be referred to by a name that shall immediately be preceded or followed by the words “simplified public limited company” or by the abbreviation “SAS” written in legible words.
Where the company has only a single shareholder, it shall be designated by a name which shall immediately be preceded or followed by the words “wholly owned simplified public limited company” or by the abbreviation “SASU” written in legible words.
Insofar as they are compatible with the specific provisions outlined in this book, the rules on the public limited company, except articles 387 paragraph 1, articles 414 to 561, 690, 751 to 753 of the same law, shall apply to the simplified limited company. For these rules and absent specific provisions in the articles of association, the duties of the board of directors or its chairman shall be exercised by the president of the simplified limited company or any member of the management that the articles of association designate for this purpose.
The simplified limited company shall not/may not launch a public offering.
The amount of stated capital as well as the nominal value of shares shall be set by the articles of association.
The simplified public limited company may issue inalienable shares resulting from the contribution of services. The articles of association shall set the terms of subscription and distribution of such shares.
The decision to transform into a simplified limited company shall be taken unanimously by shareholders. The same shall apply to the merger of a company by a simplified public limited company. Any decision taken in violation of this article shall be null.
The articles of association shall set the conditions under which the company is managed.
The company shall be represented by third parties, by a president appointed under the conditions outlined in the articles of association. The president is vested with the broadest powers to act in all circumstances on behalf of the company within the limits of the company’s purpose.
In its relations with third parties, the company shall be bound even by the actions of the president falling outside of the company’s’s purpose, under the conditions and limits outlined in article 122 of the same law.
The articles of association may provide for the conditions under which one or more individuals other than the president, with the title of general manager or deputy general manager, may exercise the powers entrusted to him by this article.
The provisions of the articles of association, and the decisions of legal representatives restricting the powers of the president, the general manager, or the deputy general manager shall not be enforceable against third parties.
Where a legal entity is appointed president or company manager of a simplified public limited company, the company management of the said legal entity shall be subjected to the same conditions and obligations and incur the same civil and penal responsibilities as if they were president or company manager in their name, without prejudice to the joint liability of the legal entity which they manage.
Rules on the liability of members of the board of directors of public limited companies apply to the president and management of the simplified public limited company.
The articles of association shall determine decisions that must be taken collectively by shareholders in the forms and conditions they stipulate. Decisions taken in violation of the provisions of the articles of association shall be null.
However, powers devolved to extraordinary and ordinary general meetings of public limited companies in respect of capital increase, amortization or reduction of capital, merger, demerger, the partial contribution of assets, dissolution, transformation into one company of another form, the appointment of auditors, annual accounts and accounts of profits shall be, under the conditions outlined in the articles of association, exercised collectively by shareholders. Decisions taken in violation of the provisions of this paragraph shall be null. They shall also be null where they are taken collectively but in violation of the conditions prescribed in the articles of association.
In companies with a sole shareholder, the management report, annual accounts, and, where appropriate, consolidated accounts shall be adopted by the president. The sole shareholder shall approve the accounts based on the auditor’s report, if there is one, within six (6) months from the end of the year. The sole shareholder may not delegate his powers. His decisions shall be archived in a special register. Decisions taken in violation of this paragraph may be canceled at the request of any interested party.
When the sole shareholder, a physical person, performs the duties of the company president, the deposit of the inventory and annual accounts duly signed within the same period at the registry of commerce and securities shall constitute approval of said accounts.
Each share shall carry at least one vote.
Shareholders may appoint one or more auditors under the conditions outlined in article 853-11 of the law.
Simplified public limited companies which meet, at the end of the fiscal year, two of the following conditions must appoint at least one (1) auditor:
1) The balance sheet total is greater than one hundred twenty-five million (125,000,000) CFA Francs;
2) The annual turnover is greater than two hundred fifty million (250,000,000) CFA Francs;
3) The number of permanent staff is greater than fifty (50) people.
The company is not required to appoint an auditor if it has not met two (2) of the conditions set forth above for two (2) years immediately preceding the expiration of the mandate of the auditor.
Simplified public limited companies which control, within the meaning of article 174 above, one or more companies, or that are controlled by one or more companies, are also required to appoint at least one auditor.
Even if the conditions outlined in the foregoing paragraphs are not met, the appointment of an auditor may be demanded in court by one or more shareholders representing at least one-tenth of the capital.
If upon a capital increase by the offset of claims against the company, the latter does not have an auditor, the stated accounts prepared by the president shall be certified true by an auditor.
The auditor or, where there is none, the company president shall present to shareholders a report on agreements concluded directly between the company and its president, one of its managers, one of its shareholders holding a fraction of voting rights higher than ten percent (10%) or, if it is an affiliated company, the company controlling it within the meaning of article 174 of the law.
The same rule shall apply to agreements where one of the persons referred to in the first paragraph has an indirect interest or deals with the company through an intermediary.
Shareholders shall act on the report. Those with direct or indirect interests shall not take part in the vote and their shares shall not be taken into account for the calculation of quorum and majority. Decisions taken in violation of this article shall be null.
Unapproved agreements shall nevertheless produce their effect, leaving it to the individual with a direct interest, and possibly the president and other managers shall be liable for the harmful consequences to the company.
Any resolution passed without the auditor’s or the president’s report shall be null.
By derogation to the provisions of the first paragraph, where the company has only a sole shareholder, agreements concluded directly or through an intermediary between the company and its officer or one of its officers shall only be mentioned in the special register of decisions.
When the agreement is concluded with the sole shareholder, no mention shall be made in the register and the auditor is not required to prepare a report.
Exceptions to the provisions of the preceding article are the agreements relating to regular operations entered into under normal conditions.
Under penalty of invalidity of the agreement, the president and officers, as well as their spouses, ascendants or descendants, and other intermediaries are prohibited to contract, in any form whatsoever, loans from the company, to have it consent overdrafts on a current account or otherwise, as well as have the company guarantee or endorse their commitments to third parties.
This prohibition does not apply to legal entities, which are officers.
The articles of association may provide for the inalienability of shares or securities which grant access to capital for a period not exceeding ten (10) years.
The articles of association may, under conditions which they determine, subject any transfer of shares or securities giving access to capital to the prior approval of the company and a preemptive right.
Under the conditions that they determine, the articles of association may provide that a shareholder be required to transfer his shares.
The articles of association may also provide for the suspension of non-monetary rights of the such shareholder as long as he has not carried out this transfer.
Any transfer of shares or securities which give access to capital carried out in violation of a provision of the articles of association introduced in the application of articles 853-17, 853-18, and 853-19 of the law shall be null.
The articles of association may provide that the affiliated company whose control has changed shall, as soon as this change occurs, notify the company. The latter may decide, under the conditions outlined in the articles of association, to suspend the exercise of non-monetary rights of that shareholder and exclude it.
Provisions of the preceding paragraph may apply, under the same conditions, to a shareholder that has acquired such status further to a merger, demerger, or dissolution operation.
Where the articles of association do not set the terms for sale prices of shares when the company is implementing a provision introduced in the application of articles 853-18, 853-19, and 853-20 of the law, such price shall be fixed by an agreement between the parties or, failing this, by a designated expert, either according to the provisions of the company articles of association, or by the parties, or failing agreement between them, by a decision of the competent court ruling expeditiously within the jurisdiction where the headquarters is located.
Where shares are repurchased by the company, the latter shall transfer them within six (6) months or cancel them.
The statutory provisions referred to in articles 853-17, 853-18, 853-19, and 853-20 of the law may be adopted or amended only unanimously by the shareholders. Any deliberation or decision taken in violation of this article shall be null.
Articles 853-17 to 853-20 of the law shall not apply to companies with only a sole shareholder.