GUINEA Law and Practice Contributed by: Yves Constant Amani, YAC & Partners
ean law and ERCA requirements when planning M&A transactions.
Foreign investors acquiring significant stakes in regulated sectors, such as mining, bank - ing or telecommunications, may be subject to additional filing and approval requirements from sectoral regulators. These include the BCRG for financial institutions, the ARPT for telecoms companies, and the Ministry of Mines and Geol - ogy for investments in the mining sector. 4.3 Hurdles to Stakebuilding Under OHADA law, which governs corporate activities in Guinea, companies have limited flexibility in modifying shareholding disclosure thresholds. The AUSCGIe, establishes manda - tory shareholding disclosure thresholds, such as the 10% and 50% ownership thresholds, requiring shareholders who acquire such stakes to notify the company and relevant authorities. While companies cannot lower these statutory thresholds, they may introduce higher internal disclosure requirements in their articles of incor - poration or by-laws, provided these additional rules do not conflict with OHADA’s mandatory provisions. For example, a company may require shareholders to disclose acquisitions starting from 5% ownership rather than the standard 10% threshold. However, any such modifica - tions must be explicitly stated in the company’s governing documents and approved by the shareholders. In addition to regulatory disclosure requirements, several factors may create obstacles for inves - tors seeking to build a stake in a Guinean com - pany. In private companies (SARL, SA, SAS), existing shareholders often have pre-emptive rights, allowing them to purchase shares before they are offered to new investors. This can limit external stakebuilding opportunities. Certain sectors in Guinea are subject to foreign owner - ship restrictions or require government approval
4. Stakebuilding 4.1 Principal Stakebuilding Strategies In Guinea, stakebuilding prior to launching a takeover offer is not a common practice, pri - marily due to the legal framework established by the AUSCGIE. This framework applies to all OHADA member states, including Guinea, and emphasises transparency, shareholder protec - tion and equal treatment of investors, making pre-bid stakebuilding less prevalent. 4.2 Material Shareholding Disclosure Threshold Under OHADA law, shareholders must disclose their holdings when reaching specific owner - ship thresholds. The key thresholds include 10% ownership as stipulated in Article 176 of AUS - CGIE, which requires any shareholder acquir - ing at least 10% of a company’s share capital to notify the company and relevant regulatory authorities. Article 177 of AUSCGIe, establishes a reciprocal shareholding limit, prohibiting com - panies from holding more than 10% of each other’s share capital to ensure corporate inde - pendence. Additionally, Article 178 of AUSCGIe, mandates that any entity holding more than 50% of another company’s capital must disclose this status and comply with governance obligations. Upon reaching these disclosure thresholds, shareholders must notify the board of direc - tors of the target company and file a declara - tion with the Registre du Commerce et du Crédit Mobilier (RCCM) to update corporate records. For listed companies, shareholders must submit the necessary disclosure to the relevant financial authority.
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