GUINEA Law and Practice Contributed by: Yves Constant Amani, YAC & Partners
6.4 Common Conditions for a Takeover Offer Takeover offers in Guinea, governed by OHA - DA law, typically include shareholder approval, regulatory clearances and financial thresholds. Common conditions involve securing a mini - mum percentage of shares, obtaining regula - tory approvals and preventing material adverse changes before closing. While OHADA law does not explicitly restrict offer conditions, it emphasises shareholder pro - tection and fair competition. Companies in regu - lated sectors like banking, telecommunications, and mining may need approvals from authorities such as the BCRG and the Ministry of Mines and Geology. In summary, takeover conditions are permissible but must comply with OHADA governance prin - ciples and sectoral regulations. 6.5 Minimum Acceptance Conditions Guinea follows the OHADA framework, which governs corporate transactions, including ten - der offers. There is no statutory mandatory offer threshold, but in practice, a minimum accept - ance condition of 50% +1 share is commonly used to obtain majority control of the target company. This threshold ensures that the acquir - er can make binding decisions without minority shareholder obstruction. For companies with supermajority requirements, a 75% threshold may be necessary to approve major corporate actions, such as mergers, changes to the articles of association or liqui - dations. Additionally, sector-specific regulations may impose additional approval conditions, par - ticularly in regulated industries such as bank - ing, telecommunications and mining, where
• Finalisation and closing – negotiation and execution of the SPA, followed by regulatory filings and completion of conditions prec - edent. On average, a business acquisition in Guinea can take anywhere from three to six months, but more complex deals requiring extensive due diligence and regulatory approvals may extend beyond this timeframe. 6.2 Mandatory Offer Threshold In Guinea, while there is no statutory require - ment for a mandatory offer threshold, a com - pany’s articles of association may stipulate such provisions. These internal documents outline the rules for the company’s operations and can include specific obligations for shareholders regarding takeover offers. Therefore, it is essen - tial to review a company’s articles of association to determine if any mandatory offer requirements exist. 6.3 Consideration In Guinea, cash is the most commonly used consideration in M&A transactions, primarily due to the underdeveloped capital market and the absence of a local stock exchange. Cash trans - actions provide greater certainty and liquidity, making them preferable for both buyers and sell - ers. Share-based transactions are rare but may occur in private deals where companies agree on stock swaps or deferred equity payments. To bridge valuation gaps in industries with high valuation uncertainty, parties commonly use mechanisms such as earn-outs, which tie, a portion of the purchase price to the target com - pany’s future performance. Price adjustment clauses based on financial metrics or external factors are also employed.
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