GHANA Law and Practice Contributed by: Victoria Bright and Justice Oteng, Addison Bright Sloane
rights, anti-corruption practices, data protection, gov - ernance matters, and any outstanding legal issues. Financial due diligence entails assessing the target company’s overall financial performance. This includes reviewing financial statements, balance sheets, cash flow statements, settlements, and financial projec - tions, as well as considering the most efficient financ - ing structure for the acquisition and the impact of the acquisition on the buyer’s business. Tax due diligence focuses on reviewing the target company’s compliance with Ghana’s tax laws, iden - tifying any potential tax liabilities, and assessing the status of any government audits. Commercial due diligence involves examining the market in which the target company operates. This includes evaluating competition, industry trends, the target’s strengths and weaknesses, operational issues, and customer base. 5.4 Standstills or Exclusivity In practice, a standstill agreement is demanded to prevent any action that may interfere with the trans - action. Exclusivity, on the other hand, is not a standard demand in M&A transactions in Ghana. 5.5 Definitive Agreements It is permissible in practice for the terms and condi - tions of a tender offer in the context of a public M&A transaction to be negotiated and documented in a definitive agreement, often referred to as a transac - tion or implementation agreement, between the bidder and the target or its shareholders. This approach is commonly adopted in complex cross-border transac - tions, where such agreements are used to enhance deal certainty, allocate risk, and clearly define the parameters of the offer. However, the legally operative terms and conditions of the tender offer must be set out in a takeover docu - ment approved by the SEC, which serves as the pri - mary legal document governing the offer. This docu - ment contains all material terms and conditions of the offer, including the offer price, timelines, financing arrangements, and acceptance mechanics. It must be circulated to all shareholders to ensure transparency
and equal treatment. This document formally consti - tutes the offer to the market and governs shareholder acceptance. 6. Structuring 6.1 Length of Process for Acquisition/Sale There are no specific timelines for the acquisition and/or sale of businesses in Ghana. The duration of the process is determined by the particular industry involved and by whether regulatory approvals are required. For example, the acquisition or sale of insti - tutions regulated by the Bank of Ghana under the Banks and Specialised Deposit Taking Institutions Act (Act 930) requires the buyer to obtain a decision from the Bank of Ghana on whether it will approve or disap - prove the transaction. This decision must be issued within six months of the Bank of Ghana’s receipt of the application. 6.2 Mandatory Offer Threshold The Security and Exchange Commission Code for Takeovers and Mergers 2008 requires acquiring 30% or more voting shares of a public company within a period of 12 months or acquiring voting shares that result in ownership of more than 50% in a public com - pany. 6.3 Consideration Cash is the most commonly used form of considera - tion for acquiring an interest in a Ghanaian company. The Companies Act, 2019 requires merger proposals to specify the number of shares to be allotted to the transferee company as well as the amount of cash payable. To address valuation gaps, equity consid - eration such as shares, landed property, buyer loan notes, and capital equipment may also be used. Par - ties typically agree from the outset on the appointment of an independent valuer to assess the company’s assets, with the aim of minimising valuation disputes. 6.4 Common Conditions for a Takeover Offer In accordance with the Code on Takeovers and Merg - ers, no person shall make an offer to acquire shares or voting rights of a public company which, together with any shares or voting rights already held by that per - son or by persons acting in concert with them, would
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