Corporate M&A 2023

Last Updated April 20, 2023

Egypt

Law and Practice

Authors



Matouk Bassiouny is a leading, full-service MENA region law firm with offices in Egypt (Matouk Bassiouny & Hennawy), the United Arab Emirates (Matouk Bassiouny), Sudan (Matouk Bassiouny in association with AIH Law Firm) and Algeria (Matouk Bassiouny in association with SH-Avocats), as well as a country desk covering its Libya practice. The firm consists of 27 partners and over 200 fee earners. The firm’s attorneys specialise in advising multinationals, corporations, financial institutions and governmental entities on all legal aspects of investing and doing business in the MENA region. The Corporate and M&A practice group’s primary goal is to provide top-level general corporate and M&A advice to clients, including multinational corporations, private equity firms, fund managers and blue-chip investors in Egypt. Headed by Omar S Bassiouny, founding partner, and Tamer El Hennawy, group co-head, the group can assist corporate transactions, from initial term sheets and due diligence to negotiation, drafting and completion.

Notwithstanding the increased global and domestic market uncertainties generally and the significant devaluation of the Egyptian pound, Egyptian M&A continues to see reasonably strong interest and opportunities in the Egyptian market, preserving its momentum in deal making and further attracting local and international investors from across various sectors.

The second half of 2022 saw fewer transactions compared to the first half of 2022, which affected the full-year results compared to 2021. However, the total value of the transactions in 2022 remained steady, with a very slight dip compared to 2021.

The majority of M&A transactions in Egypt were inbound, which were mainly dominated by the Gulf.

To facilitate the market, several pieces of legislation were adopted by Parliament to create a more user-friendly environment for foreign investors. The governmental reforms include amendments to the Investment Law, the Capital Markets Law, the Companies Law and the Banking Law.

Political stability in Egypt has also played a major role in attracting investment over the past years compared to other countries globally. However, global recession, the war in Ukraine, other geopolitical tensions, supply chain disruptions and tightening regulatory scrutiny have affected the Egyptian market, whereby Egypt has witnessed adverse impacts that have affected the value of the Egyptian pound, as well as the prices of oil and gas.

In an attempt to stimulate the economy, the Egyptian government engaged with the International Monetary Fund (IMF) in an Extended Fund Facility programme, whereby Egypt is committed to granting the private sector a greater role to play in the Egyptian market in lieu of state-owned companies, which would give rise to more opportunities in the Egyptian M&A market.

The top trends for 2022 in Egypt were financial technology and renewable energy production, as well as healthcare, education and banking and financial services. The key trends for inbound activities were in the banking and financial industries. As for outbound activity, the leaders were energy and power.

Financial technology and renewable energy production, as well as healthcare, education and banking and financial services have been the most active sectors in the past 12 months.

Other key industries have been adversely affected by the significant devaluation of the Egyptian pound, such as manufacturing. The adverse impact is a result of the massive shortage in raw materials due to the multiple economic turbulences over the past 12 months.

The most common acquisition structures in Egypt involve the transfer of shares in joint stock companies (JSCs) and quotas in limited liability companies (LLCs).

JSC Share Transfer

Any transfer of shares of a JSC must take place through the Egyptian Exchange (EGX), regardless of whether or not the shares are listed. A licensed broker should be appointed to execute the share transfer in accordance with the transfer procedures set out by the EGX and the Financial Regulatory Authority (FRA).

Any transaction exceeding EGP20 million must be pre-approved by the EGX Pricing Committee, which convenes on a weekly basis to analyse and resolve on each envisaged transaction.

If the value of the transaction exceeds EGP100,000 or if the transfer involves a foreign party, the consideration of the transfer of unlisted shares must be deposited with a bank licensed by the Central Bank of Egypt (CBE). The competent committee at the EGX may, at its discretion, grant exceptions in this respect.

For the transfer of listed shares of a JSC, the Capital Markets Law provides that a person may acquire up to one third of the share capital or voting rights of a listed company through open-market transactions, voluntary tender offers or block trades. If the threshold of one third of the share capital is exceeded, whether through acquiring listed shares or shares in a company that has previously offered its shares by public subscription, the acquirer is obliged to submit a mandatory tender offer to the FRA to acquire up to 100% of the share capital of the company.

LLC Quota Transfer

Quotas of an LLC may be transferred through official or unofficial transfer agreements as prescribed under the articles of association of the company (with no involvement of the EGX). An official transfer agreement will require notarisation by a notary public and such notarisation will be subject to an ad valorem fee. Quotaholders of an LLC enjoy a statutory right of first refusal on any quotas subject to transfer.

Sales of quotas of an LLC are finalised via the annotation of the transfer in the company’s ledger. The articles of association of the LLC should also, for completeness, be amended to reflect the new shareholding structure.

The following authorities are deemed the primary regulators of M&A activity in Egypt:

  • the EGX;
  • the FRA;
  • the General Authority for Investment and Free Zones (GAFI); and
  • the Egyptian Competition Authority (ECA).

Depending on the activity undertaken by the target company and the geographic area from which it operates, other regulatory bodies might be involved; for example, the CBE.

Generally, foreigners can participate in the ownership of Egyptian companies pursuant to the applicable Egyptian laws. There are, however, specific activities that trigger foreign ownership restrictions, such as:

  • a restriction on ownership and management of commercial agencies – companies undertaking said activities shall be fully owned and managed by Egyptian nationals;
  • with regard to importation, the capital of companies importing for trading purposes must be at least 51% Egyptian-owned, while the remaining 49% may be held by non-Egyptians;
  • with regard to ownership of land and real estate in the Sinai Peninsula, there is a complete prohibition on the ownership of land or buildings by foreigners;
  • any commercial activity in the Sinai Peninsula must be made via an Egyptian JSC, with at least 55% of its share capital held by Egyptian nationals;
  • any company owning desert land must be at least 51% Egyptian-owned, and a single individual may not own more than 20% of the capital; any Arab country national may be given reciprocal treatment (equal to that of Egyptian nationals) with respect to the ownership of the desert land, by virtue of a presidential decree;
  • foreigners, whether natural or juristic persons, are prohibited from fully owning or holding usufruct rights for agricultural, arable or non-arable land located in Egypt; and
  • companies undertaking security and money transfer activities must be fully owned by Egyptian nationals or by companies that are fully owned by Egyptian nationals.

Furthermore, the acquisition of companies undertaking certain activities may require the prior approval of a competent authority or authorities, such as:

  • transferring or acquiring any microfinance portfolio or owning 10% or more of any company carrying out insurance and reinsurance activities requires the approval of the Prime Minister after obtaining the opinion of the competent minister;
  • owning 10% or more of the share capital of any bank in Egypt requires the prior approval of the CBE; and
  • any type of legal disposal of any private hospital or pharmaceutical factory requires the approval of the Ministry of Health and Population.

The Egyptian Competition Law has been amended, and these amendments entered into force on the day following their publication in the Official Gazette (ie, 30 December 2022) (the “Amendments”).

According to the Amendments, a transaction must be filed with the ECA and approved prior to closing in cases where the following requirements are satisfied.

Economic Concentration

The transaction must involve an economic concentration. The Amendments define “economic concentration” as any change in the control of a person or several persons resulting from (i) a merger, (ii) direct or indirect acquisition of the capacity to control a person(s) by virtue of an agreement or through the purchase of financial securities, assets, shares or any other means, or (iii) the establishment of a joint venture which would exercise its economic activities independently from the entities having established the same and on a long-lasting basis.

Further, the Amendments introduced a definition of “control” to be the capacity of a person(s) to exercise effective influence on another party by guiding the economic decisions of the said party either based on the majority of the voting rights or based on the capacity of the controlling person to prevent another person from taking an economic decision (veto rights), or any other method. Furthermore, control includes any event, agreement or ownership of shares (regardless of the number of owned shares) that results in the effective control of the management or decision-making of another person.

Additionally, the Amendments provided a definition of “Material Influence” to be the capacity of a person(s) to influence the policy of another person either directly or indirectly. This includes its strategic decisions or commercial objectives as determined by the to-be-issued Executive Regulation.

Financial Thresholds

The envisioned transaction must satisfy one of the following financial thresholds: 

Threshold number one

This threshold consists of two sub-thresholds that must be satisfied collectively as follows:

  • local threshold in relation to all the Concerned Parties – the achieved combined annual turnover or the combined assets in Egypt pertaining to the Concerned Parties of the last year as reflected in their audited consolidated financial statements pertaining to such year exceed EGP900 million; and
  • local threshold in relation to each of at least two of the Concerned Parties – the combined turnover of each of at least two of the Concerned Parties achieved in Egypt, as reflected in their latest audited consolidated financial statements, exceeds EGP200 million.

Threshold number two

This threshold consists of two sub-thresholds that must be satisfied collectively as follows:

  • worldwide threshold – the worldwide combined annual turnover or combined assets pertaining to the Concerned Parties of last year, as reflected in their audited consolidated financial statements pertaining to the said year, exceed EGP7.5 billion; and
  • local threshold – the combined turnover of at least one of the Concerned Parties achieved in Egypt, as reflected in its latest audited consolidated financial statements, exceeds EGP200 million.

The executive regulations of these Amendments (“Executive Regulations”) is expected to clarify (i) the concept of “Concerned Parties”; (ii) details related to the definition of economic concentration; and (iii) the method of calculating the above annual turnover and the combined assets.

The ECA published a press release on 4 January 2023 in relation to the entry into force before the issuance of the Executive Regulations, whereby:

  • transactions (mergers, acquisitions (including stock and asset deals), capital increases, and joint ventures) (“Transactions”) closed after 30 December 2022, but prior to issuance of the Executive Regulations shall not be subject to the pre-closing merger control regime; and
  • transactions that will be closed after the issuance of the Executive Regulations shall be subject to the pre-closing merger control regime, if they satisfy the filing requirements, regardless of whether the relevant transaction documentation was signed prior to issuance of these regulations. 

The ECA has already prepared the draft of Executive Regulations, which are expected to be enacted by the Prime Minister soon, pending the ministerial review of the draft.

The relationship between employers and employees is governed by the Egyptian Labour Law and the relevant decrees of the Ministry of Manpower.

Generally, the Labour Law favours and protects employees, as supported by court precedent rendered in favour of employees.

Although Egyptian law does not oblige employers to obtain the approval of, or consult, employees during the acquisition process, the applicable laws restrict an employer’s ability to make changes to the workforce during such time. In an acquisition, employees’ rights (including their acquired rights) remain protected and may not be discretionally limited or changed by the employer. Employee dismissals require a court order and are limited to specific instances where the fault of the employee can be proven.

For a foreign investor to invest in Egypt, whether a natural or juristic person, a security clearance, approving such person, shall be obtained.

The most significant legal developments in Egypt in the past three years related to M&A are as follows.

  • In February 2023, the CBE issued a decree requiring all companies, whether incorporated pursuant to the Companies Law or the Investment Law, to obtain the CBE’s prior approval in order to undertake activities related to e-payment.
  • In August 2022, the Egyptian Cabinet of Ministers issued a decree determining the criteria for a project to be deemed national or strategic in order to enable the company establishing such project to obtain the Golden Licence, which is issued by virtue of a decree of the Cabinet of Ministers to replace all licenses required for the establishment, management and operation, allocation of property and acquisition of building permits of the relevant investment project. In 2023, the Egyptian Cabinet of Ministers issued another decree adding new types of projects/sectors to obtain the Golden Licence.
  • In April 2022, foreigners who acquire 5% and its multiples of the shares or voting rights in listed companies that undertake activities in Sharm El-Sheikh, Dahab or Aqaba Gulf Touristic Area (which are all located in the Sinai Peninsula), are required to obtain the prior approval of the FRA, Ministry of Defense, Ministry of Interior and the General Intelligence Services.
  • In February 2022, a new law regulating and developing the use of financial technology in the non-banking financial sphere was issued, which aims to introduce long-awaited rules governing the provision of non-banking financial services through technology mediums and aligns with the government’s financial inclusion initiatives and its aim to foster the transition to a cashless society.
  • In February 2022, the FRA issued a decree requiring the prior approval thereof to commence a due diligence process on non-banking financial institutions.
  • In 2021, a new requirement was introduced by GAFI in relation to the incorporation of JSCs, whereby, as a prerequisite for incorporation, companies in the process of incorporation are now required to provide certain documents in respect of coding and registration with Misr for Central Clearing, Depositary and Registry. The shareholders must now be coded and have a custodian prior to incorporation.
  • In 2020, a new banking law was issued, in addition to the data protection law, that has an indirect impact on M&A by encouraging foreign investors to invest in similar businesses.
  • Finally, there have been legislative amendments that impact M&A, which include an amendment to the Companies Law in relation to preferred shares, whereby companies are now allowed to issue preferred shares, even if this was not provided for in their by-laws at incorporation, provided that the same is passed by an extraordinary general assembly (EGM) representing three quarters of the company’s capital. At the outset, it was understood that there could be preferred shares which could be issued without limitation; however, shortly after the issuance of the amendment, GAFI issued a circular to limit the voting powers of holders of preferred shares, capped at a two-to-one ratio.

The most significant changes introduced to the Capital Markets Law are, inter alia, an increase of the mandatory tender offer threshold in the shareholding of a public company from 2% to 5%, amendments to the scenarios that trigger a mandatory tender offer (MTO) and the removal of the MTO requirement where a shareholder involuntarily came to acquire shares or control the voting rights in one of the companies regulated under this section.

Other significant enactments include the requirement to obtain a number of governmental approvals in the event of the acquisition of 5% or more of the shares of a listed company that operates in the Sinai Peninsula.

The acquisition of a third or more of a stake in a company whose shares are listed on the EGX or a company that has previously undertaken an initial public offering (IPO) requires the launch of a tender offer by the bidder if the acquisition reaches the thresholds stipulated under the Capital Markets Law.

Stakebuilding is not common in Egypt; however, in the limited number of cases, stakebuilding did not exceed 5% or 25% of the capital of the target company in light of the disclosure obligations noted below.

Pursuant to the Executive Regulations of the Capital Markets Law, the main shareholder is defined as any shareholder owning 10% or more of the share capital of the company, whether directly or indirectly through its related parties.

According to the EGX Listing Rules, the main shareholders of a company whose shares are listed on the EGX are bound by a number of disclosure and reporting requirements, principally the following:

  • the main shareholders and their related parties shall disclose to the EGX their indirect ownership if it reaches 25% or more of the company’s share capital, or of the capital of any other entity holding shares in the company;
  • the main shareholders and their related parties shall notify the EGX if their shareholding exceeds or falls below 5% and its multiples of the company’s share capital or voting rights (including shares acquired via the purchase of subscription rights); such disclosure should include their direct ownership of shares or relevant global depository certificates;
  • the main shareholders and their related parties shall disclose to the EGX their future investment plan and the main shareholder’s views in relation to the management of the company if their acquired percentage reaches 25% or more of the company’s capital or voting rights; and
  • the main shareholders shall disclose to the EGX their ownership stake (directly or indirectly) and their related parties every six months (January and July).

Under Egyptian law, a company can introduce higher thresholds in connection with the voting threshold of the EGM. Other forms of hurdles include the entry into a management agreement and employee stock option plans vesting in the event of a change of control.

There is no express provision governing the trading or marketing of derivatives per se. A new amendment to the Capital Markets Law includes the regulation of futures and derivatives, but still awaits the incorporation of a futures exchange as per Article (26) of the Capital Markets Law. Derivatives are customarily traded between Egyptian banks or government agencies, such as the CBE and the Ministry of Finance. The trading or marketing of derivatives is deemed a “banking activity” by the CBE.

The trading and marketing of derivatives is still not sufficiently tested before Egyptian courts, and therefore legal opinions on derivatives will include qualifications that they may be considered gambling, insurance or an FRA-regulated activity.

There is no applicable information in this jurisdiction.

Acquisitions of Private Companies

Generally, a shareholder is not legally required to disclose the purpose of a potential acquisition. However, the non-binding offer/term sheet preceding the conclusion of definitive agreements may include the acquirer’s future plans and expansion strategy in respect of the potential transaction.

Acquisitions of Public Companies

Pursuant to the Capital Markets Law, the acquisition of shares of a listed company through the submission of a tender offer requires, inter alia, the disclosure of the offeror’s plans in the draft tender offer and the disclosure in the memorandum of information of the offeror’s general intentions vis-à-vis the minority shareholders.

There is no statutory requirement to make any public announcement and/or disclosure for target companies whose shares are not listed on the EGX. Nonetheless, it is customary that the parties to a transaction agree an announcement to be made to the public following completion of the transaction.

Target companies whose shares are listed on the EGX or that have previously undertaken public subscription shall notify the FRA and the EGX if:

  • the offeror has notified the target company of its intent to launch a tender offer, promptly upon becoming notified of the same;
  • a binding or non-binding memorandum of understanding or letter of intent or similar agreement has been signed;
  • a non-binding or binding agreement for conducting due diligence on the target company has been signed; or
  • negotiations regarding a potential MTO have taken place.

Any disclosure or reporting requirements shall be fulfilled by the relevant person within the legally prescribed timelines, which are only extendable at the sole discretion of the regulator.

There is no specific level of detail for a due diligence exercise as it depends on the following:

  • the size of the acquisition – a majority stake acquisition would entail a bigger scope and detailed level of due diligence rather than the diligence undertaken for a minority stake acquisition;
  • the commercial aspects of the deal as may be determined by the acquirer and subject to its risk appetite; and
  • the type of company – the scope of the due diligence would be more comprehensive for a private acquisition rather than for a publicly traded company.

Generally, purchasers tend to undertake a full due diligence on the target company to examine the operations of the same from a legal standpoint. In addition to legal due diligence, a financial due diligence exercise is usually undertaken simultaneously to assess the financial status of the target company.

While vendors’ due diligence is common in Egypt, purchasers do not tend to rely on such report unless the transaction documentation contains provisions relating to the same.

Typically, acquirers sign a non-binding offer that includes an exclusivity clause or sign an exclusivity agreement with the sellers to secure deal exclusivity during a specific period.

Whilst it is not legally required to document the tender offer terms and conditions in a definitive agreement, the parties may mutually agree to conclude a share purchase agreement outlining the steps of the tender offer, which is common in negotiated transactions.

The transfer of shares process usually takes up to five business days from the receipt by the broker of the share transfer documents in good order. If the transaction completion requires substantive governmental approvals, the timeline for the issuance of the same varies.

Pursuant to the Executive Regulations of the Capital Markets Law, the acquisition of a stake in companies whose shares are listed on the EGX or companies that have previously undertaken a public offering of their shares requires the bidder to launch an MTO in any of the following events:

  • the acquisition of one third or more of the issued share capital of the voting rights of the target company;
  • where a person/entity owns solely, or together with its related parties, more than one third of the issued share capital or the voting rights of the target company and less than 50% of the issued share capital or the voting rights, and its shareholding or voting rights increase by more than 5% within 12 consecutive months;
  • the shareholding of a person/entity solely, or together with its related parties, reaches 50% of the share capital or voting rights of the target company;
  • a person/entity owns solely, or together with its related parties, more than 50% of the issued share capital or the voting rights of the target company and less than two thirds of the issued share capital or the voting rights, and its shareholding or voting rights increase by more than 5% within 12 consecutive months;
  • where a person/entity owns solely, or together with its related parties, more than two thirds of the issued share capital or the voting rights of the target company and less than 75% of the issued share capital or the voting rights, and its shareholding or voting rights increase by more than 5% within 12 consecutive months; and
  • where the shareholding of a person/entity solely, or together with its related parties, reaches 75% of the share capital or voting rights of the target company.

Cash consideration is the most common form of consideration; however, other forms may include share swaps and mixed (cash and shares) offers.

Common conditions for a takeover are limited to obtaining a majority of no less than 51% or 75%, as the case may be.

The minimum acceptance condition usual for tender offers is 51% or 75%, as the case may be.

The Capital Markets Law requires a mandatory tender offer to be final and not to be subject to conditions (with a few exceptions). With respect to financing as a condition, the offer proposal submitted to the FRA must include a confirmation from a licensed bank in Egypt evidencing the availability of the financial resources to fund and cover the offer. Accordingly, unless there is a confirmation of financial solvency, the FRA will not accept the offer proposal. Subject to the parties’ commercial agreement, financing may be structured as a condition (among other conditions) in asset-based transactions.

Deal security measures are agreed upon between the parties, including break-up fees and non-solicitation provisions. Furthermore, warranty and indemnity insurance is becoming more common in large transactions.

Minority shareholders have some rights conferred on them by the Companies Law and the articles of association of the company, which include the right of shareholders who hold at least 5% of the company’s share capital to request the suspension of the general assembly’s resolutions, noting that such request should have solid and serious grounds, such as that the resolutions should be prejudicial/detrimental to the minority shareholders or were issued for the benefit of a certain class of shareholders or for the personal benefit of board members or other parties.

Pursuant to the Companies Law, the articles of association may provide for a pro rata representation of shareholders on the board of directors of the company, not exceeding one seat per each 10% shareholding in the company’s share capital.

Pursuant to the Companies Law, minority shareholders holding at least 10% of the share capital are entitled to request the inspection of the company regarding any material breach imputed to the board of directors or to the auditor. Furthermore, the shareholders are entitled to examine the books and records of the company.

The rights based on specific shareholdings are as follows:

  • shareholders holding 5% of the share capital of a company are entitled to cause the board of directors to call an ordinary general assembly meeting to convene and include specific items on the agenda of such meeting;
  • shareholders holding 10% of the share capital of a company are entitled to cause the board of directors to call an EGM to convene and include specific items on the agenda of the meeting;
  • shareholders holding more than 25% of the share capital of a company may veto EGM resolutions pertaining to increases or decreases of the capital or liquidation/dissolution of the company before its term, or a change of the company’s objectives, or its spin-off; and
  • shareholders holding more than 33.33% of the share capital of a company may veto any EGM resolution.

A shareholder has the right to authorise another shareholder or any third party to attend a general assembly meeting and vote on their behalf by virtue of a written proxy, subject to any restrictions stipulated under the applicable laws and the articles of association of the relevant company. A shareholder who is not a member of the company’s board of directors shall not be entitled to authorise a board member to attend the general assembly on their behalf.

The squeeze-out mechanism is not recognised under Egyptian law; thus, there is no mechanism available to compel minority shareholders to sell their stakes. Conversely, the Capital Markets Law entitles minority shareholders to request and oblige majority shareholders to acquire their minority stake.

If a party, alone or through related parties, acquires 90% or more of the issued share capital and voting rights of a listed company, any of the remaining shareholders holding 3% of the issued share capital or at least 100 shareholders representing not less than 2% of the shares in circulation may, during the 12 months following the acquisition by a majority shareholder of the above-mentioned percentage, request the FRA to require the majority shareholder to launch a tender offer to acquire the shares held by the minority shareholders. If such a request is accepted by the FRA, it shall notify the majority shareholder, who shall be obliged to submit an MTO during the period determined by the FRA.

Also, pursuant to the Companies Law, any merger must be approved by an EGM resolution. Shareholders who objected to the resolution for the merger at such EGM or those who did not attend such EGM for a valid reason may demand the buyout of their shares by the company via a written request, which should be received by the company within 30 days from the date of publication of the merger decision.

It is common to obtain irrevocable commitments to tender or vote by principal shareholders of the target company in Egypt and the same usually takes place prior to disclosure of the transaction.

A bid is made public once the target company officially obtains the same or upon execution of any documentation requiring disclosure.

Furthermore, an MTO should be published on the EGX screens once it is approved by the FRA. The offeror should publish the MTO via the means of publication specified by the FRA (eg, in widely circulated newspapers) within two business days of the date of the FRA’s approval of the MTO.

Companies that are subject to the provisions of the Capital Markets Law shall notify the FRA in the event of the issuance of new shares and shall provide the FRA with all documents and information required in this respect. Similarly, companies subject to the provisions of the Companies Law shall notify GAFI in the event of the issuance of new shares by providing GAFI with the minutes evidencing the recommendations of the board and the approval of the shareholders.

Pursuant to the provisions of the Capital Markets Law, in the case of an acquisition through the submission of a tender offer, the memorandum of information submitted by the bidder to the FRA should include a summary of the financial statements of the offeror for the last three financial years (save for a cash tender offer) or from the date of incorporation (if the company has been incorporated for less than three years).

The financial statements of Egyptian companies should be prepared in accordance with Egyptian accounting standards as per the applicable laws.

Whilst generally there is no legal requirement to disclose transaction documents, in the case of an acquisition of shares through the submission of a tender offer, the memorandum of information submitted by the offeror to the FRA should include details of any related agreements concluded by the offeror, or of which the offeror is aware.

Directors have fiduciary duties towards the shareholders, and they must safeguard the company’s and shareholders’ interests. In relation thereto, directors must ensure that there is no conflict of interest between their actions and those of the company.

Special and/or ad hoc committees are not a common feature in the Egyptian market.

Business judgement rules are not common in the Egyptian market.

There is no compulsory advice to be obtained by the directors of a company. However, the officers of the company may obtain, subject to their discretion, an opinion from an adviser based in the jurisdiction in which the target or any of its affiliates is situated.

Whilst conflicts of interest of directors, managers, shareholders or advisers have been, and continue to be, the subject of regulatory scrutiny, they have not been subject to judicial review.

Hostile acquisitions are permitted but are not a common feature in the Egyptian market.

Defensive measures are not a common feature in the Egyptian market.

The Companies Law does not regulate directors, their roles, responsibilities and duties in the same manner as in other jurisdictions; therefore, defensive measures are not a common feature in the Egyptian market.

No information is available in this jurisdiction.

Directors can “just say no” and take action that prevents a business combination.

In Egypt, parties usually agree to arbitration as the method of dispute resolution for enforceability purposes since Egypt is a party to the New York Convention on the Recognition and Enforcement of Arbitral Awards. However, litigation/arbitration is not common in connection with M&A deals in Egypt.

There is no applicable information in this jurisdiction.

No information is available in this jurisdiction.

Shareholder activism is not common in Egypt. In the rare cases it occurs, it has been limited to board representation and scrutiny in connection with related-party transactions.

Due to confidentiality reasons, the details of most transactions are not known to the public or to any individual who is not connected to the transaction. Nonetheless, it is customary that the parties to a transaction agree on an announcement to be made to the public following completion of the transaction.

Activism is not common in Egypt.

Matouk Bassiouny & Hennawy

12 Mohamed Ali Genah
Garden City, Cairo
Egypt

+202 2796 2042

+202 2795 4221

info@matoukbassiouny.com www.matoukbassiouny.com
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Shahid Law Firm was established in 1987 by Counsellor Sarwat Abd El-Shahid, and is one of the leading international firms operating in Egypt and the African region, offering a full range of legal services and advice. By expanding its expert reach throughout the African continent, and particularly in Ethiopia (Shahid Law Firm in affiliation with Meseret and Associates Law Office) and Sudan (Shahid Law Firm in affiliation with Yousra Y. M. Elhassan Badi – Advocate), Shahid Law Firm manages to navigate its clients through their most complex multi-jurisdictional and local business challenges, offering constant on-the-ground support for its clients in their domestic and cross-boarders complex matters. Shahid Law Firm is highly regarded for its cross-border transactions and regulatory experience.

M&A Market Growth in 2022

The “State Property Document”

In December 2022, the Egyptian Cabinet announced the President’s approval of the “State Property Document”. The government plan is to promote the role of the private sector by completely withdrawing from 79 sectors within three years; and to reduce its investments in 45 others. As a result, acquisitions in Egypt increased; Egypt was the second largest host of foreign direct investment (FDI) on the continent during 2022.

The government’s efforts were fruitful. According to a report issued by Ernst & Young, Egypt witnessed a surge of 37% in domestic deal activity in terms of deal volume in the first nine months of 2022. The Egyptian government’s decision to sell several state-owned industries has attracted Gulf investors into the region and helped its struggling economy. The Gulf sovereign funds pledged to acquire stakes from companies listed on the Egyptian Exchange (EGX). Egypt signed cooperation agreements with Saudi Arabia worth USD10 billion focused on all sectors of the Egyptian state. Egypt also succeeded in attracting investments worth USD3.2 billion, mostly from Gulf funds and the proceeds of selling shares in government-owned companies. In addition, the Saudi Sovereign Fund acquired stakes ranging between 20% to 25% of three listed Egyptian companies worth USD1.3 billion.

In light of the foregoing, the government’s initiatives are moving towards bossing foreign investment, exports and reduction of dependence on hot money. The Egyptian government also introduced the “Golden Licence”, to boost certain strategic activities, particularly in underdeveloped areas in Egypt.

Introduction of the “Golden Licence”

The Investment Law No 72/2017 (the “Investment Law”) was enacted to improve the national economic growth and the domestic production rates, as well as the provision of employment opportunities, promotion of exports, and boosting of competitiveness which contribute to achieving comprehensive and sustainable development.

The Investment Law regulates guarantees and incentives granted to investors who establish presence in Egypt engaging in specific activities and/or in certain areas in Egypt (ie, underdeveloped areas, public and private free zones, technological zones and investment areas (all defined under the Investment Law)). 

In June 2022, the Cabinet amended the Executive Regulations of the Investment Law, to introduce the “Single Licence”, also known as the “Golden Licence”. The Golden Licence enables investors to establish, operate and manage their project, including erecting buildings and/or allocation of lands for their project without the need to obtain any further approvals, licences or authorisations. This Golden Licence is sufficient. Once the Golden Licence is obtained, an investor is exempted from having to deal with any governmental body to operate its activity. This means that bureaucratic hurdles rendering an investor reluctant to do business in Egypt are no longer an issue for “strategic projects”.

A project may be strategic if (i) it is deemed a national project contributing to achievement of the sustainable development in specific areas determined in the Investment Plan (as regularly updated and published by the regulator), or (ii) it is a joint venture with public sector entities or public business sector companies in the development of public utilities, infrastructure and/or clean energy, roads, transports, ports, communications and/or information technology.

Subsequent cabinet decrees determining the criteria based on which a project is considered as a “strategic project” were issued in 2022. In March 2022, a decree was issued in this respect, where eco-friendly and clean energy projects dominated the list of activities. For instance, the production, exportation and warehousing of green hydrogen and green ammonia is on the top of the list of deemed “strategic activities”, followed by the manufacturing of electric vehicles including all industries supporting it, the manufacturing of single-use, eco-friendly plastic products and waste management projects. In August 2022, another Cabinet Decree was issued widening the above-mentioned criteria as additional activities in different sectors were added (eg, tourist, industrial, transportation, electricity and renewable energy sectors).

From a procedural standpoint, the General Authority for Investment and Free Zones (GAFI), being the regulator, studies licence applications and ensures that the conditions set out in the Executive Regulations of the Investment Law are met. GAFI, internally, co-ordinates with all relevant and competent governmental authorities (eg, Ministry of Environment, Ministry of Internal Affairs, Civil Defence Authority) to ensure that the project meets all required conditions to, ultimately, grant the Golden Licence to the investor. Thus, and in light of these recent decrees, the applicant for a Golden Licence does not have to deal with governmental authorities, except for GAFI.

GAFI launched a web portal to promote investment in Egypt and for sharing success stories, giving reasons to invest in Egypt and offering investment opportunities, among other services. On this web portal, one of the interesting features is the investment map through which investors may search an area for their investment.

In addition to granting special incentives to clean energy projects, the government and legislature exert significant efforts with respect to preserving the environment. Egypt hosted the COP 27 in Sharm El Sheikh, which 129 delegations from around the globe attended, for the purpose of discussing and resolving on the optimum way to reduce human impact on the environment.

Legislative reform to the environmental legal framework

Egypt has shown a remarkable interest in addressing environmental issues to prevent environmental catastrophes. The Law No 162 for 2022, issued in October 2022, is promulgated to establish the Supreme Council for Eco-friendly Cars. The main aim of the Council is to, inter alia, determine the legal framework for the manufacturing of eco-friendly cars, and the incentives to be granted to companies established for the purpose of manufacturing them.

In spite of the delay in the issuance of the Executive Regulations until 2022, the Egyptian legislature promulgated the first standalone law regulating waste management in 2020. Waste management was briefly regulated under the Environmental Law. The recently created regulator, namely the Waste Management Regulatory Authority (WMRA) is now formed to, among other authorities, supervise manufacturing facilities’ adopted systems to deal with their solid and liquid waste; and to regulate the establishment and licensing of companies engaging in the waste management activity. The issuance of the Executive Regulations was crucial, given that, according to the studies, manufacturing facilities rank second in the most pollutants after vehicles emissions.

The Waste Management Law regulates, in detail, the waste management system that must be implemented in each manufacturing facility generating waste, whether hazardous or not. Now manufacturing facilities are obliged to keep specific records and have them regularly updated for inspection purposes by WMRA’s officers. Furthermore, industrial entities are obliged to conclude agreements with specialised and licensed companies to handle the disposal of their waste in an environment-friendly manner (as specifically and technically demonstrated under the Waste Management Law, its Executive Regulations and the latter’s annexes).

The legislature also encouraged investors to engage in the activity of waste management by adding such activity as one of the strategic activities that enjoy guarantees and incentives set out under the Investment Law.

The Egyptian government and legislature aim, not only to attract expats to do business in Egypt and contribute to its development, but also to attract them to visit Egypt. Hence, the government is also working on keeping abreast of all developments that occurred in the tourism sector during the past decades.

Developments in the tourism sector

The developments occurring in the tourism sector required significantly enhancing the former law regulating licensing of hotels and tourist establishments in a way that improves Egypt’s competitive ability to attract both investments and visitors.

In March 2022, the legislature promulgated the Law No 8 for 2022 (the “New Law”) regulating licensing of hotels and tourist establishments to develop the licensing system to make it easier for the licence applicant to deal with one entity in accordance with clear and specific controls, procedures and fees. The Executive Regulations interpreting and completing the New Law were issued on 21 February 2023.

The New Law provided for forming the “Ministerial Committee for Tourism”, a committee chaired by the Prime Minister, with the membership of ministers having a relation with the tourism sector (eg, Minister of Interior Affairs, Minister of Health, Minister of Finance, Minister of Transportation, Minister of Civil Aviation).

The Ministerial Committee for Tourism has the capacity to, inter alia, determine the required conditions to obtain a licence for a tourist establishment and hotel, determine the range of governmental fees to be incurred for obtaining a licence; and aims to eliminate any hurdles that a licence applicant may face, from a bureaucratic standpoint.

On a related note, the New Law provided for forming another permanent committee chaired by the Minister of Tourism, having the jurisdiction to, among other authorities, determine the conditions that must be met in a tourist establishment and/or a hotel, in order to grant it a licence, determine the licensing fees, prepare guidelines with all technical requirements that need to be available in tourist establishments and hotels, facilitate granting the licence and study complaints and appeals that may be filed in relation with refusal of granting a licence.

To accelerate and simplify the procedures for applying for a licence, a pre-prepared application needs to be filled in by the applicant with all information in accordance with the conditions that will be determined and set out under the Executive Regulations, guidelines and subsequent ministerial decrees. The resolution in relation to the approval or the refusal to grant a licence must be issued within a period not exceeding 30 business days, from the date of filing the application and relevant documents evidencing meeting the required licensing conditions. In case of no response, then an initial approval is deemed issued.

Once the initial approval is (explicitly or implicitly) issued, the Ministry of Tourism must notify the applicant with the list of general and specific conditions that must be met in the relevant tourist establishment/hotel. Upon receipt of the notification, the applicant must pay an examination fee ranging from EGP500 to EGP100,000, depending on the type and size of establishment to be licensed. Once the applicant meets the list of conditions in a manner satisfactory to the Ministry of Tourism, the latter will grant the applicant with the final licence, provided the payment of the licensing fee ranging from EGP1000 and EGP1 million, is received. Clearly, the range of the governmental expenses is vast; however, the New Law’s Executive Regulations clarifies that the fees’ value depends on the size and type of the tourist establishment/hotel.

It is worth noting that the law did not provide for any nationality restrictions, or a minimum ownership percentage secluded for Egyptian nationals. This remains unchanged under the Executive Regulations, which incentivises foreign investors to fully own and manage a tourist project in Egypt.

Moreover, in order to upgrade the tourism system in Egypt, and to promote and preserve the unique Egyptian cultural heritage for future generations, another law establishing the Tourism and Antiquities Support Fund was promulgated in 2022 (ie, Law No 19 of 2022). This Law aims to establish a fund to contribute, with the concerned authorities, in:

  • supporting and financing activities that raise the capacities and quality of tourism;
  • developing and reviving tourism;
  • developing tourist services and areas;
  • supporting projects of the Supreme Council of Antiquities related to the restoration;
  • preservation and maintenance of antiquities; and
  • developing archaeological sites and areas, as well as building and developing museums.

Along with attracting FDI in different sectors, the protection of investors’ intellectual property in Egypt must also be adopted. It is one of the most important matters for an investor.

Intellectual property considerations to attract FDI

The protection of intellectual property changed significantly when Egypt became a party to several international treaties to ensure the protection of intellectual property.

Egypt is one of the signatory states to the world’s most important intellectual property treaties, such as:

  • the Paris Convention;
  • the Patent Co-operation Treaty;
  • the Madrid Convention – of 1954;
  • the Berne Convention of 1886 (with a reservation to Article 33 regarding the jurisdiction of the International Court of Justice); and
  • the Convention for the Protection of Producers of Phonograms against Unauthorised Duplication of their Phonograms – of 1971.

Furthermore, Egypt is a member of the World Intellectual Property Organization (WIPO). It is worth noting that in September 2022, the Prime Minister launched the national IP strategy consisting of a set of measures formulated, and to be implemented by the Egyptian government. These measures encourage and facilitate the effective creation, development, management and protection of IP at the national level. The Director General of WIPO, Mr Daren Tang, expressed great happiness with Egypt’s launch of the National Intellectual Property Strategy: “I feel great pride to see Egypt launch the National Intellectual Property Strategy, as Cairo made many efforts in that, and a number of countries joined it”.

In November 2022, the Cabinet approved a draft law to establish the “Egyptian Authority for Intellectual Property” which will be a public body specialised in regulating and protecting intellectual property rights in Egypt, in light of Egypt’s relevant international obligations, while working to implement the intellectual property system in a manner ensuring the optimum protection of those rights.

The draft law determines the powers of the “Egyptian Authority for Intellectual Property”; so that it may be entitled to update the National Strategy for Intellectual Property, setting up the necessary executive mechanisms to enforce the strategy’s implementation in co-operation with the relevant ministries and authorities, registering, filing and granting protection documents for intellectual property rights as set forth in the Protection Law.

This step is taken to encourage researchers, inventors, start-ups and owners of medium projects and small and micro companies, to register their research outputs, inventions, creations and other intellectual property rights, and to obtain the necessary protection documents for them, to ultimately maximise their economic benefits.

Fintech recent regulations

The Egyptian House of Representatives (EHoR) has recently enacted the Law No 5 for 2022 regulating and developing the use of financial technology (“fintech”) in non-banking financial activities (the “Fintech Law”). The Fintech Law is a significant development in the modernisation of the legislative infrastructure regulating the Egyptian fintech sector.

The Fintech Law applies to the companies and entities already engaging in, or desiring to engage in, non-banking financial activities in the Egyptian market, as well as the non-resident companies that provide the activities (eg, insurance activities, financial lease, consumer finance and real-estate finance) through fintech to residents in Egypt.

Fintech is defined under the Fintech Law as a mechanism that uses modern and innovative technology in the non-banking financial sector to support and facilitate financial, financing and insurance activities and services through applications, programmes, digital platforms, artificial intelligence or electronic records.

Furthermore, the Fintech Law widely empowers the Financial Regulatory Authority (FRA), as the competent regulatory authority, to supervise and monitor the enforcement of the Fintech Law.

Fintech can only be used in the above-mentioned companies, upon obtaining the relevant licence from the FRA. Hence, the FRA is entitled to, among other authorities:

  • issue licences and put forward procedures for the establishment of companies;
  • create a testing and regulatory environment for fintech applications; and
  • provide data and devices security regulations.

For institutions and start-ups wishing to operate in fintech, the Fintech Law allows such institutions to operate, subject to the satisfaction of the technical infrastructure required by the FRA and payment of the licence fees.

The FRA will also create a testing environment for the fintech software so that these innovative fintech apps can be tested with customers before the apps are released to the public, commonly known as “sandboxing”.

From an M&A perspective, investors targeting companies or start-ups operating in the fintech industry in Egypt shall consult with their advisors to take into account the licensing status of such companies/start-ups during the due diligence phase to address the possible risks in the transaction documents. In all cases, the FRA’s approval may be needed prior to conducting a due diligence over companies engaging in non-banking financial activities, as per the FRA’s board resolution No 25 for 2022.

While the government is seeking to attract FDI in different sectors, it must also ensure the free competition in the Egyptian market. To this end, recent amendments are now introduced to the Egyptian Competition Law, whereby certain transactions must be pre-approved upon scrutinisation by the Egyptian Competition Authority.

Recent amendments to the Competition Law

On 29 December 2022, the House of Representatives promulgated the recent amendments to the Egyptian Competition Law (the “New Competition Law”) to introduce the concept of ECA’s Merger Control Bill (the “Bill”).

While prior to the recent amendments, the Competition Law empowered the Egyptian Competition Authority (ECA), being the competition regulator, to only raise flags about a transaction after its consummation; the recent amendments now grant ECA a veto right over transactions that it deems anti-competitive. From now on, ECA has the power to block M&As and JVs that it thinks could harm the free competition in the market and/or promote monopolistic practices.

As of the issuance of the amended Executive Regulations, clarifying certain ambiguities in the Law’s amendment, any transaction creating an economic concentration (as defined under the New Competition Law) must be scrutinised and pre-approved by ECA, prior to being consummated.

The term “economic concentration” is defined as any change of control or the material influence that a person may have over a company, if resulted from JVs and/or M&As; and if the pre-approval benchmarks are met.

A transaction must be pre-approved by ECA if:

  • the relevant parties’ combined assets or aggregate annual turnover generated in Egypt exceed EGP900 million as reflected in their consolidated financial statements; provided that the annual turnover of each of at least two of the relevant parties generated in Egypt exceeds EGP200 million for the latest fiscal year, as reflected under the consolidated financial statement; or if
  • the generated annual turnover or the combined assets all over the world of the relevant parties is in excess of EGP7.5 billion as reflected under the consolidated certified financial statements for the latest fiscal year; provided that the annual turnover generated in Egypt of each of the relevant parties exceeds EGP200 million, as reflected under the latest consolidated certified financial statements.

The Executive Regulations will clarify the way to calculate the annual turnover and the value of the consolidated assets, once issued.

Notwithstanding the above benchmarks, it is possible for ECA to claim jurisdiction if it is established or there are suspicions that a transaction is to have a negative impact on the free competition in the Egyptian market. This exception is widening even more the supervisory power of ECA. However, in all cases, this power may not be extended to entities subjected to the supervision of the FRA, as they are explicitly carved out under the New Competition Law.

It must also be noted that ECA may authorise the implementation of an economic concentration if the failure of its implementation would result in the exit of investors from the Egyptian market; or if it is established that the economic concentration would (i) result in economic efficiency that outweighs the effects of limiting competition; or (ii) achieve considerations related to protecting national security; all in accordance with terms and conditions to be further clarified under the amended Executive Regulations; and after obtaining the cabinet’s approval on the economic concentration.

As for the timeframe for obtaining the approval on the transaction, the examination is to take 30 days from the date of filing the list of required documentation. This period may be extended to an additional 15 days, in case the relevant persons are to provide ECA with undertakings, in the manner to be further clarified under the Executive Regulations, when issued.

In certain cases, the file may be referred to a second committee, in which case, the examination period is extended to an additional 60 days, so that such second committee may finalise its examination. In case no response is issued from ECA during this period, this is deemed an approval of the transaction, hence, the parties may proceed with it.

In the event the parties did not observe the Bill, a fine is imposed of not less than 1% and not exceeding 10% of the total turnover, the combined assets or the transactions’ value, whichever is greater. In the event of difficulty to calculate the values of the foregoing, a fine of not less than EGP30 million and not exceeding EGP500 million is to be imposed on whoever:

  • did not observe the obligation to file the documentation of the transaction involving an economic concentration;
  • proceeded with the transaction during the examination period;
  • breached a conditioned approval;
  • breached a refusal resolution; or
  • obtained an approval based on false or misleading information or untrue documents.

In conclusion, the Egyptian government and the House of Representatives demonstrate the use of their best endeavours to attract foreign investors to either enter joint ventures, acquire or establish entities in Egypt, while at the same time granting them with IP protections and making sure that the free competition in the Egyptian market is preserved.

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Law and Practice

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Matouk Bassiouny is a leading, full-service MENA region law firm with offices in Egypt (Matouk Bassiouny & Hennawy), the United Arab Emirates (Matouk Bassiouny), Sudan (Matouk Bassiouny in association with AIH Law Firm) and Algeria (Matouk Bassiouny in association with SH-Avocats), as well as a country desk covering its Libya practice. The firm consists of 27 partners and over 200 fee earners. The firm’s attorneys specialise in advising multinationals, corporations, financial institutions and governmental entities on all legal aspects of investing and doing business in the MENA region. The Corporate and M&A practice group’s primary goal is to provide top-level general corporate and M&A advice to clients, including multinational corporations, private equity firms, fund managers and blue-chip investors in Egypt. Headed by Omar S Bassiouny, founding partner, and Tamer El Hennawy, group co-head, the group can assist corporate transactions, from initial term sheets and due diligence to negotiation, drafting and completion.

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Shahid Law Firm was established in 1987 by Counsellor Sarwat Abd El-Shahid, and is one of the leading international firms operating in Egypt and the African region, offering a full range of legal services and advice. By expanding its expert reach throughout the African continent, and particularly in Ethiopia (Shahid Law Firm in affiliation with Meseret and Associates Law Office) and Sudan (Shahid Law Firm in affiliation with Yousra Y. M. Elhassan Badi – Advocate), Shahid Law Firm manages to navigate its clients through their most complex multi-jurisdictional and local business challenges, offering constant on-the-ground support for its clients in their domestic and cross-boarders complex matters. Shahid Law Firm is highly regarded for its cross-border transactions and regulatory experience.

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