Since the introduction of SAS and SASU by the OHADA (art. 853-1 to 853-24/new book 4-1), the observation I have made is that this form of membership is not widely used in Senegal and the sub region.
This trend is due to a lack of knowledge of the texts around the SAS or to non-awareness about the benefits of this form of membership, the questions remain and remain unanswered.
Still, the SAS did not take flight as it should. Its creation responds to various objectives whose aims were to facilitate the setting up of more modern trading companies with conditions of incorporation and simplified operation (decided upstream by the partners). The SAS also allows to raise the standards of governance and strengthen the rights of the partners. It remains a form of society very adapted to our socio-cultural realities in the measure of a Time It is permissible for us to be able to shape things that we are not taxed from the West (possibility of inserting clauses adapted to our realities Etc.)
In the aftermath, does this inability to create SAS show Our limit:
- à Working together on joint partnerships or projects, (A lot of SARL, Little SAS and SA)
- à Set our own rules of governance and to a lesser extent know how to respect them after downstream,
- à Know how to transmit or transfer our shares throughout the life of a company
- à Set up shareholder pacts irrespective of statutory rules;
Brief summary of the characteristics of the SAS:
- Flexibility Contractual: Freedom granted to partners to determine the rules for the operation and transmission of shares.
- Simplification of formalism in SASU.
- Shareholder liability Limited to contributions.
- Structure Evolution that facilitates partnership.
- Possibility of constituting a SAS with only one partner (and thus to create a subsidiary at 100%).
- option to purchase or buy shares from the company’s executives and/or employees.
- Credibility in relation to partners (bankers, customers, suppliers).
Interest of the SAS:
- To Entrepreneurs looking for a low-binding legal status
- To Companies and/or associates who seek to organize their cooperation without indefinitely and jointly committing their responsibility;
- To Groups of companies for their subsidiaries located in West Africa;
- To Entrepreneurs who were in SARL and would like to relax some of their operating rules (the legal aspect Etc.)
Number of associates:
- In the SAS with many shareholder minima just two partners.
- It is possible to create a simplified share company with a single shareholder (SASU).
Social Capital (new article 853-5):
- The amount of the share capital as well as that of the nominal shares is fixed by the statutes (freely by the shareholders);
- The stock company Simplified can issue inalienable shares resulting from contributions to industry: What is an undeniable opportunity to involve employees in capital who have a technical expertise indispensable to the good running of the company;
- The statutes shall determine the arrangements for the subscription and distribution of these shares
- The company Per share Simplified cannot make public use of savings (guarantee indispensable for savers, given the freedom in the organisation of the SAS)
Operation of the SAS
are applicable to the SAS:
- The Sections 694 to 822; 853-1 to 853-25 of the AUSCGIE;
- The Rules concerning the Constitution (release, publicity) The control, the dissolution, the liquidation of the S. A as well as those relating to securities;
- The General provisions on commercial companies (arts. 4 to 269) and those of the AUSCGIE which do not derogate therefrom.
For the application of these rules and in the absence of specific statutory provisions, the powers of the board of Directors or its President shall be exercised by the President in the simplified stock company Or those of its leaders that the statutes designate for this purpose (For Example a DG or an DGA).
A new Article 853-7 States that the management bodies of the company are set in Any Freedom by the Statutes (Decisions Partners upstream, hence the need to discuss it with a notary and/or an accountant.
Moreover, the extra-statutory pacts (very rare in our OHADA environment) therefore set the conditions under which the company is governed.
And The article 853-8 New to specify that:
- The President, who is the only mandatory body, May be A natural person or a person Moral;
- Recovery of the solution given for the SA by art. 465, 4 With regard to the responsibilities of the President of the SAS;
- Transposition of the solution given for the SA by art. 465, 5.
The project provides that the SAS is represented in respect of third parties by a President-designate in the conditions Planned Talk Statutes.
The president is invested the widest powers to act in any Circumstance at Name of the company within the limit of the social object.
Statutory decisions (Some Features)
Are, however, compulsorily or must be subject to unanimity, decisions concerning:
- The exclusion of a partner,
- The Transformation of a pre-existing company into SAS,
- The increase Commitments of all partners,
- The Transfer of the head office abroad.
Decisions that would be made in violation of legal or statutory provisions relating to the conditions of validity of collective decisions, can be Cancelled at the request of any Interested.
In the same way, the only body managerial obligatory is the president who can benefit Contract of employment prior to or after the Appointment (Even if he owns 99% of the shares of the company or if he is the sole shareholder, he benefits from the tax and social system of the employees)
And in the societies Multi-Personal, the general meeting of shareholders shall fix the remuneration of the President every year. This must be included in the Minutes.
NB: A Board of directors is not obligatory as in the S.A.
In the case of the partners, another advantage of the SAS is the possibility for The company to decide The exclusion of an Associated with.
In addition, the statutes may provide for the conditions under which an associate may withdraw from the company, the latter having to redeem his shares.
It is also possible, to ensure a certain stability for society, to include in the statutes a Clause Of the withdrawal of shares, for a maximum duration of ten years.
Responsibility of the President and/or leaders
In its dealings with third parties, the company is engaged by the acts of the president which do not fall within the scope of the social object, under the conditions and limits laid down in article 122 of the AUSCGIE.
Where a legal person is appointed president or officer of a simplified company, the officers of the said legal person are subject to the same conditions and obligations and incur The same civil and criminal responsibilities as if they were president or officer in their own name, without prejudice to the joint and several liability of the legal person they direct (Provision is intended to ensure a guarantee for both the company, the partners and the third parties to the
The rules governing the liability of the members of the Board of Directors of Public limited companies are applicable to the president and the executives of the SAS.
And In the same way, article 853-10 New stipulates that the rules governing the liability of the members of the Board of Directors of Public limited companies are applicable to the President and officers of the SAS.
- The company’s statutes may provide for the inalienability Of Actions For a period not exceeding Ten years (New article 853-17)
- The statutes may, under the conditions which they determine, submit any transfer of shares to TheApproval The Partners ‘ prior Right de Pre-emption (new article 853-18), which is also advisable at this stage.
- Any transfer of shares made in violation of the statutory clauses is Zero.
- Under the conditions which they determine, the statutes may provide that a shareholder may be required to transfer his shares. Where the statutes subordinate this measure to a collective decision of the shareholders, they may not deprive the partner whose exclusion is proposed from his Right to participate in this decision and to vote on the proposal.
- They may also provide for the Suspension of non-pecuniary rights of that partner as long as he did not proceed with the assignment.
- The article 853-22 New Offers a Guarantee for partners excluded from the SAS.
- Thus, if the articles do not specify the terms of the transfer price of the shares when the company puts into Work A clause introduced pursuant to new articles 853-18, 853-20 and 853-21, This Price Is Fixed By Agreement Between The Parties Or, failing that, determined by A Expert Designated, either in accordance with the provisions of the Articles of Association of the company, either by the parties or in the absence of agreement between them, by order of the President of the Court [of the competent court of the head office] without recourse.
- When the shares are redeemed by the company, they are required to give them up within six months or to cancel them
To end this, I would like to make the Senegalese notaries aware of Work To the extension of this corporate form, depending on the needs of their clients and Their expectations (right to good advice).