Public Offerings by sdsdfqw21



Public offerings enable companies to raise money and finance their projects, notably by
issuing shares or bonds which may be acquired by either local or foreign investors1. OHADA
(‘Organisation poure l’Harmonisation dud rot des Affaires en Afrique’), is an international
organisation created by a Treaty signed in Port-Louis (Mauritius) on 17 October 1993 by
fourteen African States.

OHADA endeavours to harmonise the legal environment, inter alia, by issuing ‘Uniform
Acts’ on various aspects of the law.

Pursuant to Article 10 of the Treaty Uniform Acts are directly applicable and binding on the
Member States, and supersede any conflicting provision of national law. However, Public
Offerings in two of the OMVG Member States, Senegal and Guinea-Bissau are also regulated
by the regional and integration organisation ‘UEMOA’2 and three of the OMVG Member
States, Senegal, Guinea and Guinea-Bissau are also Member States ECOWAS3. Since each of
these organisations has its own rules, different sources of supra-national law need to be
consulted in order to understand the legal regime applicable to companies which want to seek
funding in the Member States. The legal concept of public offerings is referred to in the
Uniform Act. Articles 81 to 96 contain general provisions, Articles 823 to 853 contain
specific provisions applicable to companies having the status of a ‘Societé Anonyme’
(‘SAs’), and Article 905 contains criminal law provisions. In addition, UEMOA have put into
place an institutional and legal framework to promote and organise public offerings.

In the context of UEMOA, the regional financial market is organised around three major
institutional bodies: the Conseil Regional de l’Epargne Publique et des Marches Financiers
(Regional Council for Public Savings and Financial Markets or CREPMF), which is a public
body regulating and controlling public offerings; the Bourse regionale des Valeurs
Mobilieres (Regional Stock Exchange or BRVM) replacing the pre-existing Abidjan Stock
Exchange in Cote d’Ivoire; and the Depositaire Central/Banque de Reglement (Central
Depository/Settlement Bank or DC/BR), the latter two bodies being SAs which have been
granted a concession to operate a public service. Authorised societes de gestion et
d’intermediation (management and intermediation companies or SGI) also exist in each
UEMOA Member State.


    Three of the four OMVG Member States, Senegal, Guinea and Guinea-Bissau are also Member States of
    ‘Union Economique et Monétaire oust Africaine’

    The Economic Community of West African States

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    1.        DEFINITION

               Companies which make public offerings are defined as those which, in order t
               obtain funds, seek investment from the public. The establishment and operation
               of such companies is governed by specific rules aimed at protecting investors.
               The Uniform Act provides that there is presumed to be a public offering in any of
               the following three situations.

               •        The listing of securities on the official list of a stock exchange in a Member
                        State, i.e either the BRVM, the BCVM (‘Bourse Comerounaise des Valeurs
                        Mobilieres’) or the BVMAC (‘Bourse des Valeurs Mobilieres d’Afrique

               •        The public offering of securities through credit institutions or brokers, or
                        through canvassing and advertising; or

               •        The placing of securities with over 100 persons.

               In other words, it is possible for a company to be subject to the rules governing
               public offerings even if it is not listed on a stock exchange. In particular, issuers
               of securities must pay particular attention to the fact that a company will be
               deemed to make public offerings if it has a total of at least 100 shareholders and


              Only SAs are allowed to issue negotiable securities and offer them to the public.
              The Uniform Act specifies that SAs making public offerings must have a
              registered capital of not less than 100 million FCFA (currency of the CFA Franc
              Zone4) and must be administered by a board of directors.

              A peculiarity of the Uniform Act lies in the fact that any company with its
              registered office in any of the Member States may issue securities in any other
              Member States, offering them to residents in those other countries. The regime

         The Franc Zone is an economic and monetary area. In addition to France, its membership consists predominantly of former
         French colonies, although Equatorial Guinea and Guinea-Bissau are also members. There is monetary co-operation between
         France and the members of the CFA Franc Zone and also among the members of the CFA Franc Zone themselves, based on four
         •      Fixed parity of the CFA Franc, initially with the French Franc and now with the Euro, determined in consultation with
         •      A common issuing bank for each of the sub-zones: the West African Central Bank (BCEAO), the Bank of the Central
                African States (BEAC, and the Central Bank of the Comoros;
         •      Convertibility guaranteed by the French Treasury; and
         •      Free transferability within the Franc Zone (including transfers to and from France), whether the transfer is an everyday
                transaction or a movement of capital.
         The African banking authorities have not yet clearly indicated an opinion as to whether the rules of free transferability of funds
         will henceforth apply de jure to relations with the whole Euro Zone or whether they will continue to apply only with France.

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           applicable to international public offerings within the OHADA region therefore
           does not raise any particular problems when the issuing company has its
           registered office in a Member State. However, foreign companies making public
           offerings in OHADA countries need to comply with UEMO or CEMAC
           regulations, as the case may be. For instance, Article 174 of the UEMO
           Regulation provides that no person, State-owned or privately owned entity or
           mutual fund which is not resident in the UEMO region may be listed on the
           regional stock exchange. Furthermore, for unlisted securities, Article 176 of the
           same Regulation provides that any offering of such securities to the public by or
           on behalf of a non-resident company is subject to the prior approval of the
           Regional Council.


           The Uniform Act provides that securities may be offered in the context either of a
           new issue or of a sale existing securities (‘titres’), without giving a definition of
           the word ‘titre’. Although in various other provisions rules are laid down for the
           issuance of both shares and bonds, and also shares in non-closed mutual funds, it
           should be borne in mind that the definitions of securities and instruments may
           differ depending on whether reference is made to the Uniform Act or to the
           UEMO or CEMAC regulations.

           In addition, although the Uniform Act has not created a specific regime, it may be
           possible in practice to create hybrid securities combining both shares and bonds
           and/or representing a receivable against the company. Such securities may for
           example be bonds reimbursable in shares or convertible into shares, or shares or
           bonds giving a right to subscribe for shares. In the context of the development of
           the African financial markets and/or venture capital transactions, these
           instruments may be very useful. However, in the absence of any specific OHADA
           regulations, it will be necessary to verify whether any national or other
           supranational regulations are applicable to such securities or may restrict the
           contractual freedom of shareholders and companies in this regard.


With a view to protecting investors the Uniform Act lays down certain procedures for public
offerings and creates certain requirements as to information and publication of offers made to
the public. The Uniform Act also requires increases in capital or the floating of new
securities to be made according to specific terms.


           Companies making public offerings must fulfil three main conditions, which are
           required as guarantees: (i) they must obtain a performance bond from one or more
           credit institutions in the country where the public offering is made, if the value of
           the public offering, regardless of its form, exceeds 50 million FCFA; (ii) they
           must use the services of any such credit institution to provide financial support
           and make a presentation of the public offering; and (iii) when the value of the
           public offering exceeds 50 million FCFA, they must appoint one or more auditors

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          in the Member State or States where the offering is made, to verify the financial
          statements and sign a prospectus.


          a. The Prospectus

              A company making a public offering must prepare a prospectus to inform the
              public, if the total value of the public offering exceeds 50 million FCFA. It
              must be prepared and distributed in every country where the public offering is
              to be made. The prospectus includes in particular information regarding the
              structure of the issuer, its financial standing, its activities and prospects for
              development, as well as any information relating to the securities offered to
              the public. However, it is not necessary to prepare a prospectus in the
              following circumstances:

          •     The amount of the public offering does not exceed 50 million FCFA;

          •     The offering is made in consideration for contributions made on the
                occasion of a merger or a partial business transfer;

          •     It concerns shares in non-closed mutual funds;

          •     It is addressed to particular persons in the context of their professional

          •     It relates to securities that are given free of charge in the event of payment
                of a dividend or incorporation of reserves in the share capital;

          •     The securities are offered as a result of the exercise of a right attached to
                securities which have already been the subject of a prospectus; or

          •     They are offered in replacement for shares in the same company and their
                issuance does not result in an increase of the share capital of the issuing

          The prospectus must be signed by the statutory auditor and/or by auditors
          appointed in the Member States where the transaction is being made. It is then
          submitted for approval to the competent stock exchange supervisory body in the
          Member State in which the issuer is registered and in each of the Member States
          where securities are being offered to the public (i.e in the UEMO countries to the
          Regional Council). If there is no such body, the draft memorandum is submitted
          for approval to the Ministry of Finance f the State or States concerned. The
          supervisory body may require amendments or order further investigations from
          the auditors or the insertion of a warning in the document, and may require the
          company to provide an appropriate guarantee if the public offering is made in a
          State other than the State where the company has its registered office.

          Approval must be granted or refused within one month of delivery of the
          prospectus to the supervisory body, unless further investigations are required, in
          which case the period may be increased to two months. Failure to respond is

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          deemed to be an approval of the document. Reasons must be given for any
          refusal, the usual reasons being either insufficient information given to the
          supervisory body or circumstances that do not sufficiently protect investors.

          Once the prospectus has been approved by the relevant authorities it must be
          published in a legal journal and a brochure must be made available to any
          interested person at the registered office or the issuing company.

          b. The Notice and Circulars

             A notice must be prepared when the public offering is to be made either to
             establish an SA, to increase the capital of a company which already makes
             public offerings or to make a bond issue. This notice is published in legal
             journals in the Member States concerned. Circulars must also be prepared,
             which are more generally aimed at informing the public of the envisaged
             public offering.

          c. Publication Obligations during the life of the company

             Any listed company and, in certain circumstances, its unlisted subsidiaries,
             must publish its accounting and financial statements in a legal journal.


          a. Procedure

             Any company which increases its capital by means of a public offering must
             prepare a prospectus and a notice with a specific content as well as circulars to
             inform the public of the transaction.

             If the company which increases its capital by means of a public offering must
             prepare a prospectus and a notice with a specific content as well as circulars to
             inform the public of the transaction.

             If the company was created without any public offering, and if the public
             offering is made less than two years after the creation of the company, i.e.
             within two years of signature of its articles of association, any particular
             benefits granted at the time the company was created must be valued by an in-
             kind contributions appraiser, who must also audit the assets and liabilities of
             the company.

             The payment of the paid-up fraction of the face value of the shares and of the
             whole of any share premium must occur not later than 35 days following the
             deadline for subscriptions.

          b. Pre-emptive subscription right

             In principle, shareholders have a pre-emptive right to subscribe for any new
             issue of shares. However, the extraordinary general meeting of shareholders
             may decide to cancel this pre-emptive subscription right in favour of one or

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              more identified or unidentified persons. In such an event, the meeting decides
              upon the price at which the new shares will be issued, after hearing reports
              from the board of directors and the statutory auditor.

              Certain conditions are laid down for such increases in capital where shares are
              issued to the public without the existing shareholders exercising their pre-
              emptive subscription right, as follows:

              (i)     if the new shares are to carry the same rights as the existing shares, the
                      company must issue them within three years of the decision by the
                      general meeting to issue them. If the company’s shares are already
                      listed, the issuing price must be calculated by reference to the average
                      quoted price of the shares over 20 consecutive days chosen within the
                      40-day period preceding the issuance. If the shares are not listed, the
                      issuing price must be equal to the equity that each share represents in
                      the latest balance sheet, or must be determined by a court-appointed

              (ii)    If the new shares do not carry the same rights as the existing shares,
                      they must be issued within two years of the decision by the general
                      meeting to issue them. The issuing price will be determined by the
                      extraordinary general meeting on the basis of a report by the board of
                      directors and a special report by the statutory auditor. If the issuance
                      has not been completed as of the date of the annual general meeting
                      following that extraordinary general meeting, a further extraordinary
                      meeting must be held to decide whether to maintain or adjust the price.

           c. Penalties

              Any person having an interest may apply for the winding-up of a listed
              company if the legal requirements regarding its minimum capital have not
              been complied with.

              In addition, the management of a company which makes a public offering
              without complying with the publication procedures and/or publishing the
              information required under the Uniform Act may be subject to criminal
              penalties. In this regard the individual Member States are free to determine the
              applicable penalties.


The most recently enacted Uniform Act is the Uniform Act on Accounting Law which was
adopted in Yaoundé on 24 March 2000. It lays down a harmonised accounting system for
companies located in the Member States, setting out comprehensive provisions for
accounting organisation, the obligation to present annual accounts, rules for the evaluation
and determination of net income, auditing, publication of accounting information,
consolidated accounts and criminal penalties.

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The Uniform Act entered into force on the following dates:

•    1 January 2001 for companies’ individual accounts, i.e. those which are not
     consolidated or combined with the accounts of any other company, with regard to
     transactions and corporate accounts for the financial year open as of the date; and

•    1 January 2002 for consolidated and combined accounts, with regard to transactions
     and corporate accounts for the financial year open as of that date.


The Uniform Act provides that the following types of companies must keep financial
accounts: companies governed by commercial law; public, para-public and semi-public
companies; cooperatives; and more generally any entity manufacturing or producing
marketable or non-marketable goods and services, if that entity habitually exercises an
economic activity (whether for financial gain or otherwise, and whether the activity
concerned is its main activity or merely accessory to its main activity). An express exception
excludes from this list companies that are subject to public accounting rules applicable in the
Member State concerned.


The general accounting principles laid down by the Uniform Act will be familiar to those
who have some knowledge of modern accounting systems. Their fundamental aim is to
ensure the reliability, clarity and comparability of financial information both within the
company itself as supplied to the public.

In order to achieve this aim, companies are required to prepare their accounts in accordance
with the terminology and guiding principles set out by the Uniform Act. In particular, they
must comply with the obligations of regularity, accuracy and transparency. Article 6 of the
Uniform Act requires further that:

•    The principle of conservatism is to be complied with at all times, meaning that a
     realistic assessment must be made of the events and transactions to be entered into the
     accounts for each financial year;

•    The company should comply in good faith with all applicable rules and procedures;

•    The persons in charge of the accounts should establish and implement internal audit
     procedures, in order to be properly informed as to the reality and importance of all
     events, transactions and situations pertaining to the company’s activity;

•    The information should be presented and circulated in a clear form without any attempt
     to conceal the reality of the situation

Annual financial statements must be prepared for each financial year, which must coincide
with the calendar year unless it is the first year of the company’s existence or the company is
in liquidation. These statements comprise a balance sheet, a statement of profit and loss, a
financial table showing the sources and uses of funds, and an annexure indicating any facts
that are not apparent in the other financial documents and that may have a significant bearing
on the assets, the financial situation or the financial results of the company. In particular,

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further information or justification must be provided in this annexure in cases where
application of an OHADA accounting rule is not sufficient or is inappropriate to give a
truthful image of the situation and transactions of the company.

The annual financial statements are considered as an unseverable whole. They must describe
properly and truthfully the events, transactions and situations pertaining to the financial year
in question, in such a way as to give an accurate image of the company’s assets, financial
situation and results, based on an appropriate, honest, clear, accurate and comprehensive
description of such events, transactions and situations.

In order to enable a proper comparison of financial statements for one year with those for
another, the same terminology and methods for describing the events, transactions and
situations should always be used.

Detailed provisions for complying with these general principles are set out in Chapters II-V
of the Uniform Act.


Two new sets of obligations created by the Uniform Act are noteworthy. First, the Act
provides for three different tiers of accounting obligations depending on the size of the
company. Second, it provides for the preparation of consolidated or combined accounts in
respect of groups of companies.

a.       The three-tier system of accounting obligations

         The ordinary system for presenting financial statements and keeping accounts
         applies to all companies, unless the small size of a company allows a simplified
         system to be applied. In this context, a company’s size is assessed by reference to its
         turnover during the financial year in question.

         A company may thus use the simplified system instead of the ordinary system it is
         turnover during the financial year in question does not exceed 100 million FCFA.

         Very small businesses may use a third system instead of either of the above two
         systems. This is known as the minimum cash-based system, and constitutes an
         exception to the general provisions laid down by the Uniform Act. For a company to
         be allowed to use this system, the year’s income must not exceed a threshold of
         between 10 million and 30 million FCFA, depending upon the type of activity of the

         Financial statements are to be prepared in accordance with models set out in the
         appendix to the Uniform Act, except in the case of banks and other financial
         establishments and insurance companies, which are subject to specific accounting
         models. The information contained in these statements is divided into several
         categories, which are in turn further sub-divided.

         The models have been prepared for each of the three systems outlined above as

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        •      The ordinary system includes a balance sheet, a statement of profit and loss, a
               financial table of resources and uses of funds, a statistical annexure, and an
               annexure providing information additional to that given in the other financial

        •      The simplified system includes a balance sheet, a statement of profit and loss,
               and the annexure providing additional information. All of these documents are
               simplified in accordance with the provisions of the Uniform Act.

        •      The minimum cash-based system consists of a statement summarising the
               income and expenditure of the financial year and showing the net profit or loss
               of that financial year. The statement is prepared on the basis of the cash-based
               accounting that all companies applying this system are required to use.

        b.     Consolidated accounts and combined accounts

               The Uniform Act provides for an obligation to prepare consolidated accounts
               when a company having its registered office or main activity in one of the
               Member States controls, either alone or with others, one or more other
               companies or when it exerts a significant influence over them. Detailed
               procedures are laid down for the preparation of consolidated accounts.

               Two or more companies must prepare combined accounts (i.e. as though they
               were a single company) if, in one region of the OHADA area, they form an
               economic whole with a single strategic decision-making centre situated
               outside that region, and on condition that there is no legal domination of any
               of the companies by another. These accounts are to be prepared in accordance
               with the detailed rules applicable to consolidated accounts, except where
               otherwise specified.


Specific accounting requirements have also been laid down by other regional organisations.
For example, UEMOA has established an accounting system referred to as SYSCOA. Given
the existence of SYSCOA, and also the current trend towards adopting international
accounting standards, the utility of the Uniform Act might be questioned. The answer may
simply lie in the fact that the Treaty, which dates from 1993 and thus pre-dates SYSCOA,
specifically mentions accounting law as one of the areas of law to be harmonised by
OHADA. In ay event, in order to avoid any potential conflict, the UEMOA authorities and
the Permanent Secretary of OHADA will need to ensure that there is full consultation and
cooperation in this and other subjects that involve both organisations.

Finally, specific accounting obligations may be established in relation to certain sectors such
as insurance (under the auspices of CIMA) and banking (under the auspices of UEMOA and

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