The issue price of new shares or the conditions for fixing such price must be determined by the extraordinary general meeting based on the report of, as the case may be, the board of directors, the general director or the auditor.
The report of the board of directors or of the general director pursuant to article 588 of the OHADA Law of 2014 shall state:
1°) The maximum amount and the reasons for the proposed increase of capital;
2°) The reasons for the proposed removal of the pre-emptive subscription right;
3°) The name of the beneficiaries of the new shares, the number of instruments assigned to each of them and, with its justification, the issue price.
When the meeting itself prescribes all the terms of the capital increase, the report referred to in article 588 of the law shall also state the impact on the financial situation of shareholders, the proposed issue, in particular with regard to its share of equity at the close of the last fiscal year.
If the close of the fiscal year precedes the planned transaction by more than six (6) months, such impact shall be assessed in the light of a mid-term financial report established over the last six months according to the same procedures and the same layout as the last annual balance sheet.
Resolutions passed without the auditor’s report or that of the general director, as the case may be, as provided for in article 588 of the law, shall be null. Resolutions may be cancelled in case the report does not contain all particulars provided for in this article and article 589 of the same law.
The auditor shall give his opinion on the proposal to remove the pre-emptive subscription right, the choice of items for calculating the issue price and its amount, as well as the impact of the issuance on the financial situation of shareholders assessed in relation to the company equity.
He shall verify and certify the fairness of information derived from the company accounts on which his opinion is based.
Resolutions passed without the auditor’s report as provided for in article 588 of the law, and in the present article, shall be null. The resolutions may be cancelled in case these reports do not contain all particulars provided in this article.
When the general meeting has delegated its powers under the conditions set forth in article 568 of the law, the board of directors or the general director, as the case may be, prepares, at the time when it uses its authorization, an additional report describing the final terms of the transaction set up in accordance with the authorization given by the meeting. The report shall also include the information provided in article 589 of the law.
The auditor shall verify notably the compliance of the terms of the transactions with the authorization and particulars given by the meeting. He shall also give his opinion on the choice of items to calculate the issue price and on its final amount, as well as the impact of the issue on the financial situation of the shareholder, in particular concerning such shareholders’ share percentage in relation to the company equity at the close of the last fiscal year.
These additional reports shall be immediately put at the disposal of shareholders at the headquarters no later than fifteen (15) days following the meeting of the board of directors or the resolution of the general director, and communicated to them at the very next meeting.
The capital increase may be cancelled in the event of a violation of the provisions of this article.