SENEGAL Law and Practice Contributed by: Khaled Abou El Houda, Malick Lo, Chadi Safieddine and Mohamed Kamil, SCP Houda & Associés
6.4 Common Conditions for a Takeover Offer In Senegal, public tender offers (OPAs) on BRVM-list - ed companies are generally structured with several standard conditions to protect both the acquirer and the target, while ensuring transparency for the market. Common Conditions • Regulatory approvals Completion may be subject to approvals from the AMF-UMOA, BRVM, or rel - evant sectoral ministries for strategic sectors. • Minimum acceptance threshold The offer may specify that it will only proceed if a certain percent - age of the target’s shares are tendered, often linked to control or governance considerations. • Financing conditions Offers often depend on the acquirer securing adequate financing to complete the transaction. • Other customary conditions For example, con - firmation of representations and warranties, no breach of covenants, or absence of legal proceed - ings that could materially affect the target. Regulatory Restrictions The AMF-UMOA and BRVM impose disclosure and fairness requirements but generally do not prohibit the inclusion of conditions, provided they are clearly stated, objective, and not designed to evade transpar - ency obligations. Conditions cannot circumvent mandatory disclo - sure thresholds or mislead shareholders. Any condi - tion must also comply with sector-specific rules and OHADA corporate law. 6.5 Minimum Acceptance Conditions Minimum Acceptance Condition & Control Thresholds The usual minimum acceptance (or waiver) threshold is set at 50% of the capital or voting rights. Crossing the 50% threshold legally marks the effective takeover of the target company. 6.6 Requirement to Obtain Financing Financing Conditions in Business Combinations Use of conditions precedent (CPs) It is permissible in the Senegalese market for a busi - ness combination to be subject to a condition prec -
edent (CP) regarding the bidder obtaining necessary financing. In private M&A transactions governed by the OHADA Uniform Act, parties enjoy broad contrac - tual freedom to include a “financing out” clause. This allows the acquirer to withdraw from the transaction without penalty if they fail to secure the required funds from banking institutions or investors within a speci - fied timeframe, provided they have acted in good faith to obtain such financing. Market Practice and Certainty While financing CPs are common, sellers often push for high standards of “certainty of funds” to mini - mise execution risk. Furthermore, the clause is often drafted to require the bidder to demonstrate that they have made all reasonable efforts to secure the loan, sometimes including a “break-up fee” if the deal fails specifically due to a lack of financing despite these efforts. 6.7 Types of Deal Security Measures Deal Security Measures Common contractual protections Bidders in Senegal frequently seek various deal secu - rity measures to protect their investment during the interim period. Non-solicitation provisions (or “no- shop” clauses) are standard, prohibiting the target or its shareholders from actively seeking alternative bids. While matching rights (allowing the initial bidder to meet a competing offer) are frequently negotiated, “force-the-vote” provisions are less common due to the high concentration of shareholding in most Sen - egalese private companies, where the support of a few key blocks is usually sufficient. Regulatory impact on interim periods The regulatory environment has significantly evolved, impacting the length of interim periods between sign - ing and closing. The most notable change is the full operationalisation of the ECOWAS Regional Competi - tion Authority (ERCA). Since 2024/2025, the require - ment for regional merger clearance for large-scale transactions has standardised interim periods to align with the ERCA’s review timelines (typically 60 to 90 days). This supra-national oversight, combined with sector-specific requirements for example in the ener - gy sector, has generally extended the “gap” period,
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