CONGO-BRAZZAVILLE Law and Practice Contributed by: Louis-Raymond Gomes and Prince Kyssama, Cabinet Gomes
3.9 Other Claims/Enforcement Against Directors/Officers Each director is individually liable to third parties for any misconduct in the performance of their duties. This legal action may be brought by any person with a legitimate interest, including shareholders. The company itself, acting through its legal represent - atives, may bring proceedings against a director and seek damages in respect of the loss it has suffered. The liability of a director or officer may be limited in the articles of association. However, such a limitation is not enforceable against third parties acting in good faith. 3.10 Payments to Directors/Officers Apart from sums received under an employment con - tract, directors may receive the following amounts: • an annual fixed fee, freely determined by the ordinary general meeting as remuneration for their services; • exceptional remuneration for missions and man - dates entrusted to them, the amount of which is determined by the board of directors; and • reimbursement of travel expenses and other expenses incurred in the interests of the company, as authorised by the board of directors. If any sums are paid in breach of the above rules, the resolution authorising the payment may be annulled. The director may be ordered by the board of directors, the shareholders or even a court decision, to reim - burse the sums received. Under Congolese law, companies are not required to publish or disclose the amount of sums paid to direc - tors. 4. Shareholders 4.1 Companies and Shareholders Shareholders create the company and are the owner of its shares.
Article 438 of the Uniform Act provides for a list of operations subject to the board of directors authori - sation: • 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 share - holder holding a participation greater than or equal to 10% of the capital of the company; • any agreement in which a director, general manag - er, deputy general manager or a shareholder hold - ing a participation greater than or equal to 10% of the capital of the company has an indirect interest or in which he/she deals with the company through a proxy; and • any agreement between a company and a firm or a legal entity, if one of the directors, general man - ager, deputy general manager or a shareholder with an investment greater than or equal to 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 man - ager of the contracting legal entity. An authorisation is not required where the agreements relate to ordinary transactions carried out in the ordi - nary course of business. Ordinary transactions are those carried out by a company, in a customary way, as part of its activities. The board of directors has the power to transfer the head office of the company within the national terri - tory. However, such decision is subject to the ordinary general assembly ratification. 3.7 Responsibility/Accountability of Directors The directors owe their duties to the shareholders. Directors are only required to take into account the interest of the company that they represent. 3.8 Breach of Directors’ Duties Directors’ duties can be enforced by the board of directors and the shareholders through the general assembly.
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