COTE D’IVOIRE Law and Practice Contributed by: Andy Lionel Biaou, Evelyne Biaou and Marine Quintric, Houda Law Firm
Procedure for Regulated Agreements (in an SARL, an SA and an SAS) According to Article 438 of the AUSCGIE, the follow - ing agreements must be subject to prior authorisation by the board of directors of an SA: • any agreement between the SA and one of its directors, general managers or assistant general managers; • any agreement between a company and a share - holder who holds 10% or more of the company’s capital; • any agreement in which a director, general manag - er, deputy general manager or shareholder with a holding of 10% or more of the company’s capital is indirectly interested or in which they deal with the company through an intermediary; and • any agreement between a company and a busi - ness or legal entity, if one of the directors, the general manager, the assistant general manager or a shareholder holding a stake equal to or greater than 10% of the company’s capital is an owner of the business or an indefinitely liable shareholder, manager, director, general manager, assistant gen - eral manager, general manager, assistant general manager or other corporate officer of the contract - ing legal entity. Similar provisions apply to the SARL and the SA; regu - lated agreements must be approved by the ordinary general meeting (Articles 350 and 853-14 of the AUS - CGIE). 3.6 Legal Duties of Directors/Officers The AUSCGIE does not expressly codify directors’ duties as in certain jurisdictions; however, it establish - es a framework from which key duties may be derived, including duties of diligence, loyalty and proper man - agement. 3.7 Responsibility/Accountability of Directors SARL Managers The managers will be liable – individually or jointly and severally – as the case may be, to the company or to third parties, either: • for infringements of the legal or regulatory provi - sions applicable to private limited companies;
• for breaches of the articles of association; or • for faults committed in their management. If several managers have co-operated in the same acts, the competent court determines the contributory share of each of them in the remedy of the damage (Article 330 of the AUSCGIE). SA Directors The directors will be individually or jointly and sever - ally liable to the company or to third parties, either for infringements of the legal or regulatory provisions applicable to an SA or for violations of the provisions of the articles of association or for faults committed under their management. Where several directors have co-operated in the same acts, the competent court will determine the contribu - tory share of each of them in the remedy of the dam - age (Article 740 of the AUSCGIE). In an SAS The rules governing the liability of the members of the board of directors of an SA apply to the chair - person and officers of an SAS (Article 853-10 of the AUSCGIE). 3.8 Breach of Directors’ Duties Liability Actions Two types of actions are provided by the AUSCGIE. Individual action Pursuant to Articles 161 et seq of the AUSCGIE, third parties or shareholders may take individual action to hold a corporate officer liable for misconduct in the performance of their duties, without prejudice to the company’s potential liability. If several corporate offic - ers have participated in the same acts, they are jointly and severally liable to third parties. This individual action is an action for damages suf - fered by a third party or a shareholder, where the latter suffers a loss distinct from the company’s loss, result - ing from a fault committed individually or collectively by the corporate officers or directors in the exercise of their duties.
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