GUINEA Law and Practice Contributed by: Yves Constant Amani, YAC & Partners
key shareholders. The SPA plays a critical role in these transactions by formalising binding com - mitments, addressing regulatory approvals and outlining the purchase mechanism. In negotiated transactions, it is common for the tender offer terms to be documented in an SPA, especially in the following scenarios. • Major shareholder agreements – in friendly acquisitions, the buyer negotiates an SPA with controlling shareholders to secure their commitment to tender their shares under specific terms. • Regulatory and closing conditions – the SPA includes conditions precedent for regulatory approvals (eg, competition clearance, secto - ral approvals) that must be satisfied before closing. • Purchase price and payment structure – the SPA formalises the offer price, payment schedule and price adjustments, ensuring clarity on the financial terms of the transac - tion. • Warranties, representations and indemnities – unlike purely public tender offers, negotiated transactions allow the buyer to obtain warran - ties and indemnities from the seller regarding the target’s business, liabilities and compli - ance with local laws. • Post-closing obligations – the SPA often includes non-compete clauses, transi - tion arrangements and employee retention provisions, which are particularly relevant for maintaining business continuity. • Break fees and deal protections – to protect against deal failure, the SPA may include provisions such as break-up fees, non-solici - tation clauses and exclusivity terms, ensuring deal certainty.
In hostile tender offers, where the acquirer bypasses the target company’s board and approaches shareholders directly, there is no negotiated SPA with the target. Instead, the transaction relies on public disclosure require - ments and regulatory filings, with shareholders deciding individually whether to tender their shares. In summary, in Guinea, as in other OHADA juris - dictions, documenting tender offer terms in an SPA is both permissible and standard practice in negotiated business combinations. The SPA serves as the primary contractual framework, defining the rights and obligations of the parties. However, in hostile takeovers, an SPA is typically not used, as the transaction is executed through public tender offer procedures. 6. Structuring 6.1 Length of Process for Acquisition/ Sale The process of acquiring or selling a business in Guinea generally varies depending on factors such as regulatory approvals, due diligence complexity and negotiation timelines. Based on OHADA regulations and market practice, the process typically includes the following. • Preliminary negotiations – this phase involves initial discussions, confidentiality agreements and possibly a non-binding letter of intent. • Due diligence – conducting legal, financial and tax due diligence, which can take several weeks to months, depending on the complex - ity of the transaction. • Regulatory approvals – compliance with OHADA corporate laws, sectoral regulations and competition clearances may be required, adding to the timeline.
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