Except in case of death or removal, the term of office of directors shall end at the close of the ordinary general meeting reviewing the accounts of the fiscal year and held in the year in which their mandate expires.
Directors may be removed from office at any time by the ordinary general meeting.
The end of office by a director shall be published at the registry of commerce and securities.
Powers of the board of directors
Scope of powers
The board of directors shall define the guidelines of the company’s activities and ensure their implementation. Subject to the powers expressly granted to the shareholders’ meetings and within the limits of the company purpose, address any matters pertaining to the smooth running of the company, and shall solve, through deliberations, any matter thereof.
The board of directors shall perform controls and verifications it deems necessary.
The chairman of the board of directors of the company is required to provide to each director with all documents and information necessary for the performance of his duties.
The provisions of the articles of association or proceedings of the general meeting limiting the powers of the board of directors shall be unenforceable against bona fide third parties.
In its dealings with third parties, the company shall be bound including by decisions of the board of directors not relating to the company purpose, under the conditions and limits set forth in article 122 of the OHADA Law of 2014.
The board of directors may give to one or more of its members any special mandates for one or more specific matters.
It may decide to create committees of directors in charge of reviewing matters itself or its chairman submits to them for advice. It determines the composition and powers of the committees that operates under its responsibility.
During the creation of a committee, the board of directors may decide that the committee may seek the opinion of experts who are not directors.
The following shall be subject to the prior authorization of the board of directors:
- Any agreement between a public limited company and one of its directors, general managers and deputy general manager;
- Any agreement between a company and a shareholder holding a participation greater than or equal to ten percent (10%) of the capital of the company;
- Any agreement in which a director, general manager, deputy general manager or a shareholder holding a participation greater than or equal to ten percent (10%) of the capital of the company has an indirect interest or in which he deals with the company through a proxy;
- Any agreement between a company and a firm or a legal entity, if one of the directors, general manager, deputy general manager or a shareholder with an investment greater than or equal to ten percent (10%) of the capital of the company is the owner of the firm or a partner indefinitely liable, manager, director, general director, deputy general
director, general manager, deputy general manager or another manager of the contracting legal entity.
An authorization is not required where the agreements relate to ordinary transactions carried out in the ordinary course of business.
Ordinary transactions are those carried out by a company, in a customary way, as part of its activities.
The ordinary course of business are those that are applied for similar agreements, not only by the company in question, but also by other companies in the same field.
The director, general manager, deputy general manager or the shareholder concerned shall inform the board of directors as soon as he has knowledge of an agreement that has been submitted for authorization. He shall disclose his position and his personal interest in the agreement, by stating his holdings, his role and his personal relations with the other parties to the agreement and the extent to which he could personally benefit from it. He shall not take part in the vote on such authorization requested when he is a director and his vote shall not count in the calculation of quorum and majority during this deliberation. Failing this, the authorization shall be null.
The chairman of the board of directors or the chief executive officer shall notify the auditor, within a period of one (1) month following their signature, of any agreement authorized by the board of directors and submit it to the approval to the ordinary general meeting reviewing the financial statements of the past fiscal year.
The auditor shall present a special report on these agreements to the ordinary general meeting, which shall decide on the report and approve or disapprove the authorized agreements.
The report shall identify the agreements submitted for authorization to the ordinary general meeting, the name of directors, general managers, deputy general managers or interested shareholders, the nature and the object of the agreements, their essential terms notably the prices or rates in force, rebates or commissions granted, security interests conferred and any other information that would enable the shareholders to assess the interest in entering into such agreements. The report shall also state the importance of goods delivered and services provided as well as the amount of money paid or received during the fiscal year, as consideration for the agreements referred to in the third paragraph of this article.
The individual concerned shall not take part in the vote, and his shares shall not count in the calculation of quorum and majority. Any decision taken in violation of this paragraph shall be null.
Where the performance of agreements entered into and authorized in previous fiscal years continued during the last fiscal year, the auditor shall be informed of this situation within a period of one (1) month from the end of the fiscal year.
Deliberations relating to the agreements referred to in article 438 above shall be null where they are conducted without the special report of the auditor. They may be cancelled in the event the special report of the external auditor does not contain the information provided for in this article.
The auditor shall be ensure, under his professional responsibility, compliance with the provisions of articles 438 to 448 of the OHADA Law uniform Act and report any violation thereof to the general meeting.
The auditor shall prepare and deliver the special report provided for in articles 438 and 448 of the uniform Act at the headquarters at least fifteen (15) days before the meeting of the ordinary general meeting.
Agreements approved or disapproved by the ordinary general meeting are binding on co-contractors and third parties except when they are cancelled for fraud. However, and even in the absence of fraud, the harmful consequences from the regulated agreements on the company, including losses suffered by the company, and undue profits from the agreement, may be attributed to the director, general manager deputy general manager or the interested shareholder and, as the case may be, to the other members of the board of directors.
Without prejudice to the liability of the individual concerned, the agreements referred to in article 438 of same law and concluded without prior authorization of the board of directors may be cancelled if they have had harmful consequences on the company.
The action for invalidity shall be time barred after three (3) years from the date of the agreement. However, if the agreement was concealed, the starting point of the limitation period shall be deemed set the day it was revealed.
The action for invalidity may be initiated by the management or any shareholder acting individually.
The invalidity may be covered by a special vote of the ordinary general meeting acting upon presentation of the auditor’s special report stating the circumstances due to which the authorization procedure was not followed.
The director, general manager, deputy general manager or the interested shareholder shall not take part in the vote and its shares shall not be taken into account for the calculation of quorum and majority.
The provisions of articles 438 to 448 of the OHADA Law uniform Act of 2014 shall be applicable to the general manager and the deputy general manager.