SENEGAL Law and Practice Contributed by: Khaled Abou El Houda, Malick Lo, Chadi Safieddine and Mohamed Kamil, SCP Houda & Associés
Commonality and Nature of Undertakings It is common practice to obtain such commitments (often called “irrevocable undertakings” or “hard/soft lock-ups”) to ensure that the necessary thresholds for control are met. • For listed companies (BRVM) Commitments typi - cally take the form of an undertaking to tender shares to a public offer ( offre publique d’achat – OPA). • For private companies Commitments usually involve an undertaking to vote in favour of a merger or a direct agreement to sell shares. • Legal basis These undertakings are governed by the principle of freedom of contract and the ability of shareholders to conclude extra-statutory agree - ments to organise the transfer of securities. Stage of Negotiations Negotiations for these commitments generally occur at the pre-announcement stage, as follows. • Listed context Negotiations are undertaken before the official filing of the draft offer with the AMF- UMOA, allowing the offeror to announce that they have already secured a significant percentage of the capital. • Confidentiality During this phase, strict confidenti - ality must be maintained to avoid market manipula - tion or insider trading. • Private context They are often negotiated simulta - neously with the Letter of Intent (LOI) or the defini - tive share purchase agreement (SPA).
Once the bid receives the approval (visa) of the AMF- UMOA, the Bourse publishes the avis d’ouverture de l’offre publique , officially opening the offer period. The duration of the offer and any extensions are also announced publicly. All subsequent stages, including submission of securities, final results, or the decla - ration of a bid as without result, are communicated through official notices to ensure transparency and equal access to information for all investors. 7.2 Type of Disclosure Required In Senegal, the issuance of shares as part of a busi - ness combination, such as a merger, acquisition, or exchange of capital, is subject to multiple layers of disclosure under OHADA/AUSCGIE and UMOA capi - tal market regulations for listed companies. The goal is to ensure transparency, protect shareholders, and maintain market integrity. For unlisted companies, disclosure is primarily gov - erned by the AUSCGIE, which requires the board and management to inform shareholders about the pur - pose and terms of the proposed capital issuance, in order for them to vote for or against the transaction. This information is usually communicated in board reports, general meeting notices, and statutory filings. For listed companies on the BRVM, disclosure is more formalised. A public notice is published via the BRVM, detailing the number of shares issued, subscription In the Senegalese jurisdiction, bidders are required to provide comprehensive financial disclosure within the framework of OHADA law and the AMF-UMOA (formerly CREPMF) regional market regulations. Requirement for Financial Statements Bidders must include detailed financial information in their disclosure documents, particularly the Infor - mation Note ( note d’information ) required for public offers. • Mandatory inclusion For any public offer (OPA/ OPE), the initiator must present financial state - ments for the last two fiscal years. terms, exchange ratios, and schedule. 7.3 Producing Financial Statements
7. Disclosure 7.1 Making a Bid Public
For companies listed on the BRVM, a bid is made pub - lic through a formal process managed by the Bourse Régionale under the supervision of the AMF-UMOA. The process begins with the publication of an avis de dépôt du projet d’offre , which presents the main terms of the bid, including the identity of the initiator, the securities involved, the price or exchange terms, and the intermediary SGI handling the offer.
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