BENIN Law and Practice Contributed by: Nicolin Assogba, D2A SCPA
3.10 Payments to Directors/Officers Approval and Restrictions
Public Disclosure of Shareholdings There is no public register giving access to the identity of all the shareholders of a company. For the SARL, the articles filed with the Trade and Personal Property Credit Register set out the allocation of shares, while for the SA, the company keeps a register of its reg - istered shares without general publicity. The identifi - cation of beneficial owners now falls within the AML regime, examined in 5.4 Global Anti-Money Launder- ing . 4.2 Role of Shareholders A Power of Principle, Not of Management Members do not carry out the day-to-day manage - ment of the company, which falls to the administra - tion and management bodies. Their role is exercised collectively, in meetings, where they approve the accounts, appoint and remove officers and decide on structural transactions. In principle, they cannot impose a specific management decision on the offic - ers. Adjustments in the Articles and by Agreement The articles or a shareholder agreement may, how - ever, make certain important decisions – major invest - ments, borrowing, asset disposals – subject to prior authorisation by the members or by a body represent - ing them. Such clauses, particularly useful to minority investors, do not displace the officers’ own liability. In public enterprises, the state exercises its influence through its representatives on the board and through supervision, rather than through direct instructions. 4.3 Shareholder Meetings Mandatory Meetings Holding meetings is mandatory. The ordinary gen - eral meeting must be held at least once a year, within six months of the financial year-end, to approve the accounts and decide on the allocation of profit. The extraordinary general meeting is convened whenever an amendment to the articles is contemplated. Convening, Quorum and Majority Convening is subject to time-limit and advance-infor - mation rules designed to allow an informed vote. The ordinary meeting decides by a majority of the votes cast, while the extraordinary meeting requires an enhanced quorum and a two-thirds majority. Mem -
In the public limited company, directors receive a function allowance granted by the general meeting, while the remuneration of the chairperson and the managing director is set by the board of directors. Exceptional remuneration paid for specific assign - ments falls within the regulated-agreements proce - dure. Loans and guarantees for the benefit of officers who are natural persons remain prohibited, as indi - cated in 3.5 Independence of Directors . The Case of Public Enterprises Law No 2020-20 provides that directors of public enterprises receive an annually fixed function allow - ance, with exceptional remuneration capable of being granted for special assignments, in accordance with rules set by decree adopted in the Council of Minis - ters. The remuneration of the managing director is set Companies account for the remuneration paid in their financial statements and notes. For listed companies, the BRVM Governance Code adds expectations of transparency regarding directors’ remuneration pol - icy. Failure to comply with the approval procedures exposes the agreements concerned to nullity and engages the liability of those involved. by the board of directors. Transparency Obligations
4. Shareholders 4.1 Companies and Shareholders The Framework of the Relationship
The relationship between the company and its mem - bers is governed by the AUSCGIE, by the articles and, where applicable, by shareholder agreements con - cluded outside the articles. Members hold financial rights (participation in profits and in any liquidation surplus), political rights (voting and information) and the right to transfer their shares, under the conditions laid down by law and the articles. Shareholder agree - ments, common in transactions involving an opening of capital, organise in particular the transfer of shares, governance and investor exit.
34 CHAMBERS.COM
Powered by FlippingBook