UGANDA Law and Practice Contributed by: Onyango Owor, Miriam Babirye Kaggwa and Namugera Joel Peter, Onyango & Company Advocates
8. Disclosure 8.1 Making a Bid Public
which allows them to apply to deal in carbon trading. The documents to accompany the application include the project design, feasibility study or business plan, recommendation from the Ministry of Energy and Min- eral Development, and a benefit sharing plan. 7. Due Diligence/Data Privacy 7.1 Energy and Infrastructure Company Due Diligence Due Diligence In Uganda, due diligence of public companies must respect key principles like transparency, fairness and confidentiality. Public companies can share financial statements, operational data and project details with bidders dur- ing due diligence, subject to confidentiality agree- ments. To ensure a fair and transparent process, the public company must share the same information with all the bidders. The board’s role is to approve the infor- mation to be shared during the due diligence process and ensure a successful deal is obtained; however, in doing this, they need to balance the interests of the company and its shareholders as they ensure the nec- essary confidentiality is in place. There are no restric- tions limiting due diligence of an energy and infra- structure company except national security concerns or data privacy, depending on the facts of each case. Data Privacy In Uganda, data privacy restrictions impact due dili- gence processes in the energy and infrastructure sec- tor. The Data Protection and Privacy Act (DPPA) and Regulations require that any personal data disclosed when conducting due diligence must be handled in compliance with the DPPA, including obtaining con- sent, ensuring data minimisation, securing data, and ensuring the existence of proper safeguards before cross-border data transfer. This means the company’s data protection officer must be involved in the due diligence process. 7.2 Restrictions See 7.1 Energy and Infrastructure Company Due Diligence .
A bid may be subject to a publication requirement under the Capital Markets (Takeovers and Mergers) Regulations, which apply to voluntary offers made in respect of public companies registered in Uganda and listed on the USE. If a bidder intends or proposes to acquire effective control of a listed company, such bidder is required to publish (by press notice) their proposed offer within 24 hours: • from the resolution of its board to acquire effective control in the target company; or • after a decision to acquire effective control in the case of any other person (this could be a natural person or any other entity whose decisions are not made through a board resolution). The notice has to be published after a notice of inten- tion has been served on the target company, USE and the CMA. 8.2 Prospectus Requirements In Uganda, a prospectus is required for nearly all pub- lic offerings (with a few exceptions). If a stock-for- stock offer or any such other business combination offer is made in response to a public offering then it would be clear that the offeror made the offer upon reviewing the company’s prospectus. In a stock-to- stock takeover, the buyer’s shares do not need to be listed in the USE or foreign markets, provided the offer details the shares’ value, rights and risks, and such offer is approved by the CMA. 8.3 Producing Financial Statements Generally, in making a public bid, the bidder ought to provide information on how the offer will be financed. This includes its financial position, assets, etc, which are best presented in a bidder’s financial statements in their disclosure documents, as prepared under international financing reporting standards (IFRS). Pro forma statements for stock-to-stock deals should be produced to illustrate the combined entity’s financial position.
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