SENEGAL Law and Practice Contributed by: Khaled Abou El Houda, Malick Lo, Chadi Safieddine and Mohamed Kamil, SCP Houda & Associés
mine whether there is a change of control. If the exercise of derivative rights exceeds concentration thresholds (generally based on cumulative turnover in the Union), prior notification is mandatory. • Price transparency Although the OTC derivatives market is private, pricing practices or agreements involving financial instruments could theoretically fall under the prohibitions on abuse of dominant position or anti-competitive agreements if they distort the regional market. 4.6 Transparency Disclosure of Acquisition Purpose – Private Companies (Non-Listed) For private companies governed by the OHADA Uni - form Act, shareholders are under no legal obligation to disclose the purpose of their acquisition or their intentions regarding future control. The transaction is primarily a contractual matter between the buyer and the seller. Any such transparency requirements would have to be specifically stipulated in the com - pany’s articles of association or a private sharehold - ers’ agreement. Disclosure of Shareholdings (Listed Companies) Mandatory statement of intent A critical component of the notification (specifically via the official Form I-P) is the declaration of objectives for the next 12 months. 5. Negotiation Phase 5.1 Requirement to Disclose a Deal Absence of Mandatory Disclosure Stages (Non- Listed) Under the OHADA legal framework, there is no spe - cific statutory rule defining a precise stage at which a private target company must disclose a potential transaction. Neither the initial approach, the start of negotiations, nor the signing of a non-binding letter of intent triggers a formal disclosure obligation to the public. This lack of a legal “trigger” allows parties to maintain a high degree of confidentiality throughout the sensitive preliminary phases of an acquisition. While there is no general public disclosure rule, the target must strictly adhere to the notification proce -
dures set forth in its own articles of association ( stat - uts ). These internal “disclosure” requirements typically arise when pre-emption or board approval ( agrément ) clauses are triggered, which often occurs just before or upon the signing of definitive agreements. Failing to notify existing shareholders or the board according to these specific contractual timelines can jeopardise the legal validity of the entire share transfer. Disclosure Stages for Listed Companies For listed companies in Senegal (BRVM/UEMOA con - text), the timing of disclosure is primarily governed by the AMF-UMOA General Regulation and the OHADA Uniform Act on Commercial Companies (AUSCGIE). In this jurisdiction, the requirement to disclose a deal follows a strict “permanent information” principle. First approach and early negotiations At the stage of a first approach or initial negotiations, there is no immediate requirement to disclose the deal. The target company and the acquirer typically maintain strict confidentiality to protect the integrity of the negotiations and prevent premature market speculation. Leak or abnormal market activity Under the principle of Permanent Information, listed issuers must bring to the public’s knowledge “as soon as possible” any precise information that, if made public, would likely have a significant influence on the share price. Non-binding letter of intent (LOI) A non-binding LOI does not generally trigger a dis - closure obligation unless it contains a firm intention to launch a public offer or represents a “material fact” that has become certain enough to impact the market. Definitive agreement (signing) Disclosure is mandatory and immediate upon the signing of definitive agreements (eg, a Merger Agree - ment or a Share Purchase Agreement) The target must publish a press release via the BRVM to inform the market of the transaction’s terms, price, and strategic rationale.
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