SENEGAL Law and Practice Contributed by: Khaled Abou El Houda, Malick Lo, Chadi Safieddine and Mohamed Kamil, SCP Houda & Associés
• Content This disclosure must include the balance sheet, income statement, and reports from the statutory auditors ( Commissaires aux Comptes ). • Pro forma information While not explicitly named “pro forma” in the general principles of the Regula - tion, the initiator is required to provide an activity program for the next two fiscal years. This involves forward-looking financial projections and the industrial/financial objectives pursued through the acquisition. • Target response The target company must also submit a report to the regulator within 15 days of notification, providing its own financial situation and the motivated opinion of its Board of Directors. Required Accounting Form and Standards • Financial statements in Senegal and the broader UEMOA zone must be prepared according to strictly defined regional standards. • SYSCOHADA The mandatory accounting frame - work is the OHADA Accounting System (SYSCO - HADA). All commercial companies registered in an OHADA member state must establish their sum - mary financial statements in accordance with this system. • IFRS for listed companies For companies listed on the BRVM, there is a requirement to align with international standards. Since the 2017/2018 reforms, OHADA has integrated IFRS standards for the consolidated financial statements of listed companies and those making a public appeal for savings. • Certification All financial statements included in disclosure documents must be certified by one or more authorised statutory auditors. • Interim statements If the last approved balance sheet is more than six months old at the time of a merger project or a public offer, the bidder may be required to provide intermediate financial state - ments or an updated accounting statement. 7.4 Transaction Documents In the Senegalese jurisdiction, the disclosure of trans - action documents for listed companies is primarily governed by the requirement to establish a compre - hensive Information Note ( note d’information ), rather than a requirement to publish all primary transaction
agreements (such as the SPA or Merger Agreement) in their entirety to the general public. While the public sees a summary, the AMF-UMOA (the regulator) has broader access. The initiator and target must submit the following. • Corporate resolutions Copies of the text of reso - lutions from the General Meetings (Ordinary or Extraordinary). • Full dossier The regulator can require “directly from candidates all additional information it deems useful” – this often includes the full text of binding agreements to ensure the irrevocable nature of the bid is legally supported. The duty of loyalty is the central pillar. Directors must act in the best interests of the company and not for their own personal gain or that of a specific majority shareholder. In a merger or acquisition, this means, for example, that any director with an interest in the transaction (eg, linked to the acquirer) must declare it and abstain from voting on deliberations relating to the transaction, or that directors are bound to strict secrecy regarding sensitive information revealed dur - ing due diligence, so as not to harm the value of the target in the event of a breakdown in negotiations. Duty to shareholders versus stakeholders Primacy of the corporate interest (corporate interest) Under OHADA law, directors must act primarily in the corporate interest of the legal entity. Although the interests of shareholders (value maximisation) are predominant, Senegalese case law and practice are increasingly incorporating a broader vision, particu - larly with regard to shareholders, who remain the main beneficiaries of directors’ duties, notably through the right to fair information and equal treatment, but also stakeholders. 8. Duties of Directors 8.1 Principal Directors’ Duties Principal Directors’ Duties Duty of loyalty and confidentiality
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