GUINEA Law and Practice Contributed by: Yves Constant Amani, YAC & Partners
competition authorities. Banks must comply with prudential regulations when dealing with structured financial instruments. In summary, while derivatives are not directly regulated, financial institutions must ensure compliance with general financial disclosure and competition rules under OHADA and BCRG regulations. 4.6 Transparency Under OHADA law, shareholders acquiring a significant stake in a company are required to disclose their holdings upon reaching specific thresholds, but they are not explicitly required to disclose their intentions regarding control of the company. 5. Negotiation Phase 5.1 Requirement to Disclose a Deal Under OHADA law, companies are not required to disclose a merger at the initial approach, dur - ing negotiations or upon signing a non-binding letter of intent. Disclosure becomes mandatory when the merger plan is officially filed with the Commercial and Credit Register and publicly announced in a legal announcement journal at least one month before the shareholders’ meet - ing. Creditors must be informed and have thirty days to oppose the merger. Shareholder approval is required, with capital-based companies voting in a general assembly, while partnerships need unanimous consent. Once approved, the merg - er must be formalised through a declaration of conformity filed with the court. Failure to comply results in the automatic nullity of the merger. A second publication confirms its completion, offi - cially informing the public.
Thus, under OHADA law, disclosure is only required when the merger is formally registered and made public, ensuring transparency and stakeholder protection. 5.2 Market Practice on Timing Market practice often leads to earlier disclosure than required by OHADA law. While the law mandates disclosure only when the merger plan is officially filed and published, publicly traded companies and competitive industries may announce mergers earlier due to stock exchange rules, investor expectations or strategic reasons. Early disclosure can build market confidence but also carries risks like regulatory scrutiny and business disruptions. Ultimately, while OHADA law sets the legal threshold, market norms may encourage earlier announcements. 5.3 Scope of Due Diligence In Guinea, the scope of due diligence conducted in a negotiated business combination typically includes a comprehensive assessment of the target company’s financial, legal and operation - al aspects. The process is designed to confirm the legitimacy of the seller’s ownership of assets or equity, identify liabilities and risks, evaluate the business’s value, and determine integration steps. The extent of due diligence depends on sev - eral factors, including the structure of the deal, industry-specific risks, regulatory requirements and the global presence of the target business. If the transaction involves a stock purchase or merger, the review covers the entire company, including subsidiaries. In an asset purchase, the focus is limited to the specific assets and liabili - ties being acquired. Heavily regulated industries require additional scrutiny to ensure compliance with local laws and sectoral regulations.
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