CONGO-BRAZZAVILLE Law and Practice Contributed by: Louis-Raymond Gomes and Prince Kyssama, Cabinet Gomes
powers of these committees, which operate under its responsibility. 3.3 Board Composition Please refer to 3.1 Board Structure . 3.4 Appointment and Removal of Directors/ Officers Article 419 of the Uniform Act states the following: “The first directors shall be designated by the Articles of Association or, where necessary, by the constitu - ent general meeting. While the company is in exist - ence the directors shall be nominated by the ordinary general meeting. However, in case of a merger, an extraordinary general meeting may appoint new direc - tors. Any appointment in violation of the provisions of this article shall be null and void”. As regards restrictions on the appointment of direc - tors, the articles of association set out the terms and conditions of their election. However, no provision may deprive shareholders of their eligibility to sit on the board of directors, or deprive a class of shares of its representation on the board. A natural person who is a director in their own name, or the permanent representative of a legal entity that is a director, may not at the same time serve on more than five boards of directors of public limited compa - nies with their registered office in the OHADA area. Moreover, unless the articles of association pro - vide otherwise, an employee of a company may be appointed as a director where their employment con - tract relates to a genuine position. A director may be removed without cause by a deci - sion of the board of directors. However, if the removal is abusive, it may give rise to an award of damages in favour of the director. 3.5 Independence of Directors Unlike banking regulations, which expressly pro - vide for this concept (Article 2 al.3 of Regulation No 408cemac/Umac/Cobac Relating to Corporate Gov - ernance in Credit Establishments of the Economic and Monetary Community of Central Africa) in credit
establishments and financial companies of CEMAC, the Uniform Act does not address the issue of direc - tors’ independence (Articles 416 to 419 of the Uniform Act). However, Article 450 of the uniform act relating to the law of commercial companies and economic interest groups provides: “On pain of nullity of the agreement, directors, general managers and deputy general managers as well as their spouses, ascendants or descendants and other intermediary persons are prohibited from contracting, in any form whatsoever, loans from the company, from having an overdraft granted by it in a current account or otherwise, as well as from having their commit - ments towards third parties guaranteed or endorsed by it”. This prohibition does not apply to legal entities that are members of the board of directors. However, their permanent representative, when acting in a personal capacity, is also subject to the provisions of the first paragraph. This provision provides rules and requirements estab - lished for directors aimed at conflicts of interest and preventing abuse of corporate assets, thus preventing them from using the company to finance or guarantee their personal commitments. In the event of a conflict of interest of a director, he/ she may incur sanctions, either civil within the mean - ing of Article 740 of the AUDSCGIE, or criminal as provided for in Article 891 of the AUDSCGIE. 3.6 Legal Duties of Directors/Officers Pursuant to Article 435 of the Uniform Act, the board of directors determines the company’s business strat - egy and ensures that it is implemented. Subject to the powers expressly conferred on shareholders’ meet - ings and within the limits of the company’s corporate purpose, it deals with any matter relating to the proper operation of the company and, through its delibera - tions, resolves any such issue. The board of directors also carries out any checks and verifications it consid - ers necessary.
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