NIGERIA Law and Practice Contributed by: Tosin Ajose, Izuchukwu Ubadinma, Deborah Leshi and Precious Omope, DealHQ Partners
4.14 Timing of the Takeover Offer A takeover or tender offer may be extended in Nigeria where it cannot be completed within the initial offer period due to pending regulatory or antitrust approv- als. Any extension must be approved by the SEC and publicly disclosed to shareholders, indicating the rea- son and the new closing date. It is also common practice for parties to announce the transaction while regulatory approvals – such as those from the SEC, Federal Competition and Consumer Protection Commission (FCCPC) or sector regula- tors – are still being processed, but the offer cannot be formally launched or closed until such approvals are obtained. This ensures regulatory compliance and prevents premature completion of the transaction. 4.15 Privately Held Companies Privately held companies in Nigeria are most com- monly acquired through share purchases or asset purchases. In a share acquisition, the buyer acquires ownership by purchasing shares directly from exist- ing shareholders, thereby assuming control over the company and its liabilities. In an asset acquisition, the buyer selectively acquires the company’s assets and business operations, often excluding liabilities unless specifically agreed. Key considerations include due diligence (legal, tax and financial), valuation, consent of shareholders and directors, regulatory compliance (including FCCPC notification thresholds where applicable), and tax implications of the chosen structure. For foreign buy- ers, compliance with foreign investment laws and exchange control regulations under the CBN’s regime is also essential. 5. Overview of Regulatory Requirements 5.1 Regulations Applicable to Energy and Infrastructure Companies Regulations for setting up new companies in the energy and infrastructure industry vary depending on the specific subsector of operation. As a general requirement, all companies must first be incorporated with the CAC, after which they are required to obtain
the necessary licences and permits from the relevant regulatory agencies, in line with the sector-specific regulatory frameworks governing their operations. Power The power sector is governed by the Electricity Act 2023, which empowers the NERC to issue licences for relevant operations. such as generation (on-grid generation licence, embedded generation licence, off grid generation licence), a transmission licence, a trading licence and a system operations licence. The licences are required to be issued within six months from receipt of their application. In states that have established devolved electricity markets, the respec- tive State Electricity Regulatory Commissions perform equivalent licensing and oversight functions. Oil and Gas The Petroleum Industry Act 2021 provides the legal and institutional framework governing Nigeria’s oil and gas sector, with the NUPRC regulating upstream activities and the NMDPRA overseeing midstream and downstream operations. Companies engaging in upstream operations must obtain the appropriate licences (Petroleum Exploration Licence, Petroleum Prospecting Licences or Petroleum Mining Lease), through a transparent, competitive process managed by the NUPRC, with final approvals granted by the Minister of Petroleum Resources. Recent licensing rounds, such as the 2024 round, followed a six to eight-month timeline from pre-qualification to award. Midstream and downstream licences for refining, gas processing, transport, storage and marketing are issued by the NMDPRA, with processing timelines varying by licence type. Infrastructure Setting up and commencing operations is subject to project-specific regulatory oversight and may require permits or approvals from either federal or state-level ministries and agencies. Where the project involves a public-private partnership, the Infrastructure Conces- sion Regulatory Commission (ICRC) provides over- sight under the ICRC Act 2005, and developers are required to obtain an Environmental Impact Assess- ment certificate administered by the Federal Ministry of Environment through its Environmental Assessment Department.
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