Over the past 12 months, Guinea’s M&A landscape has experienced notable activity, particularly in the telecommunications sector. A significant development was MTN Group’s strategic exit from Guinea-Conakry. On 30 December 2024, MTN concluded the sale of its operations in Guinea-Conakry to the State of Guinea. This move aligns with MTN’s broader strategy to optimise and simplify its portfolio, focusing on markets where it can achieve substantial growth and returns.

This divestment is part of MTN’s ongoing efforts to streamline its operations, having previously exited other markets such as Guinea-Bissau, Yemen, Syria and Afghanistan. The decision to withdraw from Guinea-Conakry reflects MTN’s assessment of its global footprint and its intention to concentrate resources on more lucrative markets.

Beyond the telecommunications sector, Guinea’s economic environment has been conducive to investment, particularly in mining and infrastructure. The International Trade Administration notes that new mining projects, port expansions, hotel constructions and other infrastructure initiatives have attracted fresh capital, boosting demand across multiple sectors.

In summary, while the M&A market in Guinea-Conakry has seen significant activity, especially with MTN’s exit, the broader economic landscape remains dynamic, with ongoing investments in key sectors driving growth and transformation.

Over the past 12 months, Guinea’s M&A landscape has been shaped by several key trends, as set out below.

Telecommunications Sector Activity

A significant development was MTN Group’s strategic exit from Guinea-Conakry. On 30 December 2024, MTN concluded the sale of its operations in Guinea-Conakry to the State of Guinea. This move aligns with MTN’s broader strategy to optimise and simplify its portfolio, focusing on markets where it can achieve substantial growth and returns.

Mining Sector Investments

The mining industry continues to be a cornerstone of Guinea’s economy, attracting substantial foreign investment. Notably, Rio Tinto has committed to a significant new iron ore mine in Guinea, marking a major strategic move that aligns them with China’s coal needs. This development underscores the country’s rich mineral resources and the global demand for its commodities.

Infrastructure Development

Guinea has seen increased investments in infrastructure projects, including port expansions and hotel constructions. These initiatives aim to bolster the country’s economic framework, enhance trade capabilities and support the growing tourism sector. Such developments not only improve domestic facilities but also make Guinea a more attractive destination for future investments.

Regulatory Environment

The Guinean government has been proactive in creating a conducive environment for M&A activities. Efforts to streamline business regulations, improve transparency and strengthen legal frameworks have been pivotal in attracting foreign investors and facilitating smoother transaction processes.

Diversification Efforts

Beyond its traditional sectors, Guinea is exploring diversification into areas such as agriculture and renewable energy. These efforts are aimed at reducing economic dependence on mining and creating sustainable growth avenues, thereby broadening the scope for future M&A activities.

In summary, the M&A landscape in Guinea over the past year has been dynamic, with significant activities in telecommunications, mining, and infrastructure. The government’s supportive policies and diversification initiatives further contribute to a promising outlook for future M&A in the country.

Over the past 12 months, Guinea has witnessed significant M&A activity, particularly in the following industries:

• telecommunications, with MTN Group’s strategic exit from Guinea;
• mining, with Rio Tinto’s involvement in the Simandou project; and
• infrastructure, with increased investments in major projects, including port expansions, hotel constructions, and road infrastructure improvements aimed at facilitating circulation in Conakry and beyond.

In summary, the telecommunications, mining, and infrastructure sectors have been at the forefront of M&A activity in Guinea over the past year, reflecting the country’s ongoing economic development and its appeal to both domestic and international investors.

Acquiring a company in Guinea can be done through various legal methods, mainly governed by the OHADA Uniform Act on Commercial Companies and Economic Interest Groups (AUSCGIE). Each method has different implications regarding asset transfer, liabilities, and taxation.

M&A (Absorption Mergers)

A merger is when two companies combine to form a single entity. This can happen in two ways: either by creating a new company, where both merging companies cease to exist, or by one company absorbing another, with the absorbed company disappearing and transferring all its assets and liabilities to the acquiring company. This process ensures a full transfer of assets and liabilities and results in the dissolution of the absorbed company without liquidation. However, creditors and minority shareholders have the right to object in order to protect their interests.

Acquisition Through Partial Asset Contribution

A partial asset contribution allows a company to transfer a specific business unit or assets to another company. In return, the acquiring company issues shares or equity to the transferring company, making it a shareholder. This method enables gradual restructuring without fully dissolving the transferring company. It is often used to separate different business activities or create strategic partnerships.

Buying Shares or Equity (Share Purchase)

An acquisition can also be completed by purchasing the shares (in the case of a public limited company ‒ SA) or equity stakes (in the case of a private limited company ‒ SARL) of the target company. By acquiring a majority or total stake, the buyer gains control of the company. This process requires compliance with the company’s statutes, which may include pre-emptive rights for existing shareholders or approval conditions. The transaction is formalised through a share purchase agreement, detailing the terms of the transfer and any guarantees.

Public Takeover Offer (PTO)

For publicly listed companies, an investor can acquire control by making a public takeover offer (PTO). This involves offering shareholders a set price, usually higher than the market rate, to encourage them to sell their shares. A PTO can be friendly, with the approval of the target company’s management, or hostile, where the existing management opposes the takeover.

Indirect Control Through Corporate Restructuring

A company can gain control over another indirectly by acquiring its parent company, which owns a majority stake in the target firm. This approach is often used in leveraged buyouts (LBOs), where the buyer finances the acquisition using borrowed funds, leveraging the target company’s assets as security. This method allows an investor to take control without needing significant upfront capital.

Privatisation of State-Owned Companies

In some cases, a company can be acquired through privatisation, where the government sells part or all of its stake in a public enterprise. This can happen through a share sale, a limited tender process, or a management concession to a private operator. This method is common in economic liberalisation policies aimed at improving efficiency in state-owned businesses.

Acquisition Through Capital Increase

An investor can also acquire control of a company by injecting new funds into it through a capital increase, which provides them with a significant ownership stake. This method is particularly useful when a company needs to raise capital while bringing in new investors. Depending on the investor’s stake, they may gain decision-making power over the company’s management and operations.

Legal and Tax Considerations

Regardless of the method chosen, several legal and tax factors must be considered. Creditor protection is crucial, as creditors may object to a merger or asset transfer if their interests are at risk. Tax implications can also be significant, with some restructuring transactions qualifying for exemptions or special tax treatments. Additionally, employment laws must be considered, as workers’ contracts may be transferred, requiring discussions with employees and trade unions.

In conclusion, choosing the right acquisition method depends on the buyer’s strategic goals, legal and tax constraints, and the target company’s situation. A comprehensive due diligence process is highly recommended before any transaction to assess potential legal and financial risks.

M&A activities in Guinea are governed by a combination of national and regional regulatory authorities, which oversee corporate transactions, competition compliance and sector-specific regulations. The primary regulators involved in M&A transactions in Guinea include the following.

National Regulators

The Ministry of Trade, Industry, and Small and Medium Enterprises (Ministère du Commerce, de l'Industrie et des PME) plays a central role in overseeing business transactions, including M&A. It is responsible for ensuring compliance with national trade and corporate laws and is also in charge of granting approvals for foreign direct investment (FDI) in Guinea.

The Comité National Consultatif Permanent de la Concurrence et des Prix (National Consultative Committee on Competition and Prices), created by Decree D/2023/0108, operates under the Ministry of Trade and serves as an advisory body on competition matters. It provides guidance on anti-competitive practices, price regulations and the structure of strategic goods pricing. However, the authors’ enquiries have not yet confirmed whether the Committee actively monitors M&A transactions or plays a direct regulatory role in M&A.

The Central Bank of the Republic of Guinea (Banque Centrale de la République de Guinée ‒ BCRG) regulates M&A transactions within the financial sector, including banking institutions, insurance companies and microfinance entities. Approvals from the BCRG are required for mergers involving financial institutions to ensure compliance with prudential and monetary regulations.

Depending on the industry, M&A may require approval from sectoral regulators. The Autorité de Régulation des Postes et Télécommunications (ARPT) is responsible for transactions in telecommunications. The Ministry of Mines and Geology oversees mergers in the mining sector. The Autorité de Régulation des Marchés Publics (ARMP) regulates transactions related to public contracts and concessions.

Regional and Supranational Regulators

Guinea is a member of OHADA, which provides a unified legal framework for corporate transactions across its member states. The AUSCGIE governs M&A activities in Guinea and establishes rules for mergers, acquisitions and corporate restructurings. The Cour Commune de Justice et d’Arbitrage (CCJA) serves as the highest judicial authority for disputes related to M&A transactions under OHADA law.

As part of the Economic Community of West African States ECOWAS (also known as CEDEAO), Guinea falls under the jurisdiction of the Regional Competition Authority (ERCA). The ERCA has exclusive authority over M&A transactions that involve multiple ECOWAS countries or meet the regional notification thresholds. Companies undergoing M&A transactions with a regional impact must seek clearance from the ERCA before finalising their operations.

The regulation of M&A transactions in Guinea is multi-layered, with oversight from national regulators such as the Ministry of Trade, the Central Bank, and sectoral authorities, alongside regional and supranational bodies like OHADA and the ERCA. Depending on the nature and scope of the transaction, businesses may require approvals at different levels to ensure compliance with corporate, financial and competition laws.

Foreign investment in Guinea is generally encouraged under the Investment Code, which guarantees full economic and competitive freedom to investors legally established in the country. Article 9 of the Investment Code affirms that investors are free to acquire assets, choose their business partners, and manage their operations without undue restrictions, provided they comply with applicable laws and regulations. However, despite this general openness, certain sector-specific restrictions and foreign ownership limitations apply.

Sector-Specific Restrictions

While foreign investors can own up to 100% of a company in most sectors, some industries impose ownership limits or require regulatory approvals.

• Mining sector: the Guinean government holds a minimum 15% free carried interest in all mining projects, as required by the Mining Code.
• Banking and insurance: investments in financial institutions require prior approval from the BCRG to ensure financial stability.
• Telecommunications: foreign investors must obtain licences from the ARPT.
• Land ownership: while foreign investors have the right to acquire land-use rights and real estate for business purposes, direct land ownership is subject to regulatory approvals and lease agreements.
• Private security services: this sector is exclusively reserved for Guinean nationals, and foreign participation is strictly prohibited.

Foreign Ownership Limits in Specific Sectors

Despite the general freedom granted by Article 9, Article 6 of the Investment Code imposes ownership restrictions in certain industries. Specifically, foreign ownership is capped at 40% in:

• media and publishing: this includes newspapers and periodicals covering general or political information; and
• broadcasting: this covers television and radio programme distribution.

In these sectors, Guinean nationals residing in Guinea must hold effective management control of the company.

Guinea offers a generally open investment environment, with strong protections for investors as outlined in Article 9 of the Investment Code. However, foreign investors must comply with sector-specific ownership restrictions, regulatory approvals and local participation requirements in strategic industries. While economic freedom is broadly guaranteed, the mining, banking, telecommunications, land, security and media sectors require special considerations for foreign investors.

In Guinea, business combinations such as M&A are subject to antitrust regulations at both the national and regional levels to ensure fair competition and prevent market dominance.

National Antitrust Regulations

Guinea’s national framework for competition is primarily outlined in the Investment Code. While the Code promotes economic freedom, it also imposes certain restrictions to maintain market competitiveness. For instance, Article 6 limits foreign ownership to 40% in sectors like media and broadcasting, ensuring that control remains with Guinean nationals. Additionally, the Comité National Consultatif Permanent de la Concurrence et des Prix advises on competition matters, although its direct role in regulating M&A is not clearly defined..

Regional Antitrust Regulations

As a member of ECOWAS, Guinea adheres to regional competition laws. The ERCA oversees M&A that have a regional impact. According to the ECOWAS merger control regime, any business combination where the parties are present in at least two ECOWAS member states and meet certain financial thresholds must be notified to the ERCA. The transaction cannot be implemented until authorisation is obtained, ensuring that it does not significantly reduce competition within the common market.

Compliance Requirements

Businesses planning M&A in Guinea should do the following.

• Assess national regulations: businesses should ensure compliance with the Investment Code, especially regarding sector-specific ownership limitations.
• Notify regional authorities: if the transaction meets ECOWAS thresholds, businesses should notify the ERCA and obtain the necessary approvals before proceeding.

By adhering to these regulations, companies can ensure that their business combinations align with both national and regional antitrust laws, promoting fair competition and market integrity.

Under Guinean Labour Law (2014), the automatic transfer of employment contracts applies when a company undergoes a merger, acquisition or asset sale. This means employees cannot be terminated solely due to the transaction, and their rights and obligations transfer to the acquiring entity without modification.

Collective Redundancies in Asset Sales

When an M&A transaction leads to collective redundancies, the employer must comply with strict procedural obligations, including the following.

• Consultation with employee representatives – before implementing mass layoffs, the employer must consult with trade unions or employee representatives to discuss potential job losses and explore alternatives.
• Notification to labour authorities – employers must notify the Ministry of Labour in advance, providing a detailed explanation of the redundancies, including economic justifications and mitigation plans.
• Severance pay and compensation – affected employees are entitled to severance payments based on their years of service, as stipulated in the Labour Code.
• Social plan implementation – large-scale redundancies may require a social plan, outlining measures such as job retraining, redeployment or financial support for affected workers.

Regulatory Compliance and Sanctions

Failure to comply with redundancy procedures can result in fines, penalties and potential reinstatement orders for employees. Acquiring entities must conduct thorough labour due diligence to assess workforce liabilities and ensure compliance with employment laws and collective agreements before finalising the transaction.

Given these requirements, M&A parties should engage with legal counsel early to navigate workforce transitions smoothly and mitigate potential legal risks.

Guinea does not have a formalised national security review process specifically for M&A. However, certain sectoral restrictions function as de facto security measures to regulate foreign investments in industries deemed critical to national interests.

• Mining: the government holds a minimum 15% free carried interest in all mining projects, ensuring state oversight of strategic resources.
• Telecommunications: foreign investors must obtain licenses from the ARPT before acquiring stakes in telecom companies.
• Banking and financial services: mergers involving financial institutions require BCRG approval to safeguard economic stability.
• Private security services: this sector is exclusively reserved for Guinean nationals, barring foreign ownership entirely.

While no single agency is tasked with conducting a broad national security review of M&A transactions, these sector-specific regulations serve as protective mechanisms to maintain national interests and economic sovereignty.

A key recent development in Guinea’s M&A regulatory landscape is the operationalisation of the ERCA, which has introduced a merger control regime applicable to transactions with a regional impact.

Under this framework:

• M&A transactions involving multiple ECOWAS countries or meeting specific financial thresholds must be notified to the ERCA for approval before completion;
• the ERCA has the power to assess mergers for anti-competitive effects and impose conditions or prohibit transactions that could significantly reduce competition within the ECOWAS common market; and
• companies engaging in cross-border M&A must ensure compliance with both national regulators and ERCA, adding an additional layer of regulatory scrutiny.

This development enhances oversight and harmonises competition laws across ECOWAS countries, making regulatory approvals more complex for businesses pursuing regional expansion.

In Guinea, ERCA’s merger control requirements now play a crucial role in structuring deals, particularly for transactions involving multinational corporations operating in West Africa.

In the past 12 months, there have been no significant national-level changes to takeover laws in Guinea. However, a key development affecting M&A transactions is the increased role of the ERCA in reviewing M&A with a regional impact.

The ERCA merger control regime now requires companies engaged in cross-border M&A within ECOWAS to submit notifications and obtain clearance before completing transactions. This new regulatory layer could influence how takeovers are structured, particularly for multinational corporations operating in Guinea and other ECOWAS countries.

At the OHADA level, there have been ongoing discussions regarding potential amendments to the AUSCGIE. While no formal changes have been enacted, these discussions suggest a possible future shift in takeover regulations, particularly concerning shareholder protections, disclosure obligations, and corporate governance standards.

For now, businesses should monitor regulatory updates and ensure compliance with both Guinean law and ERCA requirements when planning M&A transactions.

In Guinea, stakebuilding prior to launching a takeover offer is not a common practice, primarily due to the legal framework established by the AUSCGIE. This framework applies to all OHADA member states, including Guinea, and emphasises transparency, shareholder protection and equal treatment of investors, making pre-bid stakebuilding less prevalent.

Under OHADA law, shareholders must disclose their holdings when reaching specific ownership thresholds. The key thresholds include 10% ownership as stipulated in Article 176 of AUSCGIE, which requires any shareholder acquiring 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 companies from holding more than 10% of each other’s share capital to ensure corporate independence. 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 directors of the target company and file a declaration 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.

Foreign investors acquiring significant stakes in regulated sectors, such as mining, banking 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 Geology for investments in the mining sector.

Under OHADA law, which governs corporate activities in Guinea, companies have limited flexibility in modifying shareholding disclosure thresholds. The AUSCGIE establishes mandatory 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 incorporation 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 modifications 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 investors seeking to build a stake in a Guinean company. 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 ownership restrictions or require government approval before acquiring significant stakes. For instance, investors in sectors such as mining, banking and telecommunications may need regulatory authorisation.

Some companies, especially private companies, may include board approval clauses in their by-laws, requiring prospective buyers to obtain approval before acquiring significant stakes. Under Article 177 of AUSCGIE, two companies cannot own more than 10% of each other’s share capital, which restricts cross-shareholding strategies.

In conclusion, companies in Guinea may impose stricter disclosure obligations in their by-laws but cannot override statutory thresholds set by OHADA law. Stakebuilding in Guinea may also be constrained by pre-emptive rights, sector-specific restrictions, mandatory disclosure obligations and board approval requirements. Investors should carefully review a company’s governing documents and applicable regulations before attempting to build a stake.

Derivatives trading in Guinea remains largely undeveloped due to the absence of a formal capital market infrastructure, such as a stock exchange. The financial sector in Guinea is primarily governed by OHADA law, which applies to all OHADA member states, as well as Guinea’s national financial regulations.

The AUSCGIE and the Uniform Act on Accounting Law and Financial Information (AUDCIF) recognise financial instruments such as shares, bonds and other securities. However, there is no specific regulatory framework governing derivatives trading, including instruments such as futures, options or swaps, within Guinea’s financial markets.

The BCRG oversees financial institutions, including banks and microfinance entities. However, its regulations primarily focus on traditional banking operations, lending and foreign exchange transactions, rather than complex financial instruments like derivatives.

Given the lack of a stock exchange or an established securities market, the use of derivatives in Guinea is highly limited. While derivatives trading is not explicitly prohibited, no specific regulatory framework exists to oversee such transactions, making their legal enforceability uncertain.

In summary, while there are no formal prohibitions against derivatives trading in Guinea, the lack of a structured capital market and specific regulations makes their use uncommon and largely impractical within the jurisdiction.

Guinea does not have a specific legal framework for derivatives under securities disclosure or competition laws. The absence of a stock exchange and a developed capital market limits formal regulation. However, general financial disclosure requirements under OHADA law, AUDCIF and the BCRG may apply.

Companies and financial institutions must comply with OHADA accounting standards (SYSCOHADA), report significant financial transactions, and disclose financial risks in their periodic filings. The BCRG oversees financial institutions and may impose reporting requirements for transactions affecting risk exposure or capital adequacy.

While derivatives are not explicitly regulated under competition law, transactions impacting market concentration or pricing may require reporting to the Ministry of Trade or OHADA 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.

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.

Under OHADA law, companies are not required to disclose a merger at the initial approach, during 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’ meeting.

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 merger 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, officially 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.

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.

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 operational 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 several 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 liabilities being acquired. Heavily regulated industries require additional scrutiny to ensure compliance with local laws and sectoral regulations.

A key component of due diligence is the legal review, which examines corporate governance, commercial contracts, pending litigation, regulatory compliance and potential liabilities. Financial due diligence assesses financial statements, tax obligations and funding structures. If necessary, specialised due diligence is conducted in areas such as environmental impact, intellectual property, employment matters and cybersecurity risks.

Due diligence findings can influence the transaction by adjusting the purchase price, modifying representations and warranties, introducing indemnities or even terminating the deal if significant risks are identified. The process is often staged, beginning with an initial review and expanding as the likelihood of deal completion increases, with the buyer’s legal team co-ordinating document requests, management interviews and financial analysis.

In negotiated business combinations in Guinea, standstill agreements and exclusivity clauses are commonly requested, depending on the negotiation dynamics and the interests of the parties involved.

Standstill agreements are typically sought by the target company to prevent a potential buyer from increasing its stake in the company or launching a hostile takeover while negotiations are ongoing. This is particularly relevant when the seller is considering multiple offers and wants to retain control over the sale process. In private M&A, standstills may also restrict the buyer from engaging directly with shareholders or management outside the agreed negotiation framework.

Exclusivity clauses, on the other hand, are more commonly requested by the buyer to ensure that the seller does not negotiate with other potential buyers during a specified period. This enables the buyer to conduct thorough due diligence and negotiate deal terms without the risk of being outbid or losing the opportunity to a competitor. Exclusivity is especially crucial in complex transactions, where due diligence is extensive and requires significant investment of time and resources.

In Guinea, as in other OHADA jurisdictions, exclusivity clauses are frequently used, particularly in transactions involving strategic assets or highly regulated industries. Buyers often seek binding exclusivity periods to protect their investment in the due diligence process. Standstill agreements, though less common, may be required where the seller wants to maintain control over the process, especially when multiple bidders are involved.

Ultimately, whether a standstill or exclusivity clause is included depends on the bargaining power of the parties and the competitive dynamics of the transaction.

Under OHADA law and market practice in Guinea, it is both permissible and standard practice for the terms and conditions of a tender offer to be documented in a share purchase agreement (SPA), particularly in negotiated transactions. The SPA serves as the primary legal document in M&A, detailing the terms of the sale, conditions precedent, and transaction structure.

There is no legal restriction under OHADA corporate law preventing the documentation of tender offer terms in an SPA. While a tender offer is typically structured as a public offer to acquire shares, it can also be preceded by a negotiated agreement between the buyer and key shareholders. The SPA plays a critical role in these transactions by formalising binding commitments, 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, sectoral 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 transaction.
• Warranties, representations and indemnities – unlike purely public tender offers, negotiated transactions allow the buyer to obtain warranties and indemnities from the seller regarding the target’s business, liabilities and compliance with local laws.
• Post-closing obligations – the SPA often includes non-compete clauses, transition 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-solicitation 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 requirements and regulatory filings, with shareholders deciding individually whether to tender their shares.

In summary, in Guinea, as in other OHADA jurisdictions, 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.

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 complexity of the transaction.
• Regulatory approvals – compliance with OHADA corporate laws, sectoral regulations and competition clearances may be required, adding to the timeline.
• Finalisation and closing – negotiation and execution of the SPA, followed by regulatory filings and completion of conditions precedent.

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.

In Guinea, while there is no statutory requirement for a mandatory offer threshold, a company’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 essential to review a company’s articles of association to determine if any mandatory offer requirements exist.

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 transactions provide greater certainty and liquidity, making them preferable for both buyers and sellers. 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 company’s future performance. Price adjustment clauses based on financial metrics or external factors are also employed.

Takeover offers in Guinea, governed by OHADA law, typically include shareholder approval, regulatory clearances and financial thresholds. Common conditions involve securing a minimum percentage of shares, obtaining regulatory approvals and preventing material adverse changes before closing.

While OHADA law does not explicitly restrict offer conditions, it emphasises shareholder protection and fair competition. Companies in regulated 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 principles and sectoral regulations.

Guinea follows the OHADA framework, which governs corporate transactions, including tender offers. There is no statutory mandatory offer threshold, but in practice, a minimum acceptance condition of 50% +1 share is commonly used to obtain majority control of the target company. This threshold ensures that the acquirer 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 liquidations. Additionally, sector-specific regulations may impose additional approval conditions, particularly in regulated industries such as banking, telecommunications and mining, where government or regulatory body approval may be required.

There is no explicit restriction preventing a business combination from being conditional on the bidder obtaining financing.

In Guinea, deal security measures such as break-up fees, match rights, force-the-vote provisions and non-solicitation clauses are generally permissible, provided they comply with OHADA corporate governance principles and contract law.

Break-up fees are enforceable when structured as penalty clauses, ensuring compensation for deal termination costs. Match rights allow an initial bidder the opportunity to counter competing offers. Force-the-vote provisions can be used to ensure shareholders vote on an agreed deal, although shareholder protection rules under OHADA law may limit their enforceability. Non-solicitation provisions are typically included in transaction agreements to prevent the target from seeking competing offers during negotiations.

Regarding interim periods, there have been no major regulatory changes impacting their length in Guinea.

Under OHADA law, a bidder who does not acquire 100% ownership of a target company can still negotiate additional governance rights beyond its shareholding. These rights are typically secured through shareholders’ agreements, board representation and contractual protections.

Common governance rights include board seats, where the bidder can appoint directors to influence key decisions. Veto rights over strategic matters, such as mergers, asset sales or capital increases, are often granted to protect the bidder’s interests. Reserved matters clauses may require the bidder’s consent for significant business changes. Additionally, information rights ensure the bidder has access to financial and operational reports beyond standard shareholder disclosures.

Shareholders in Guinea can vote by proxy in general meetings.

In OHADA corporate law, majority shareholders can remove minority shareholders who did not tender their shares after a takeover through squeeze-outs, simplified mergers, capital reductions or forced share acquisitions.

A squeeze-out allows a majority shareholder to compel minority shareholders to sell their shares for compensation. Under OHADA law, this is only possible in specific cases, such as disputes over a company’s validity, where a court may approve the buyout. Article 249(1) of the AUSCGIE permits a company or shareholder to request court-ordered measures, including share buyouts, to resolve conflicts. Unlike in France, where squeeze-outs are more common, OHADA law limits their use.

A merger by absorption is another way to remove minority shareholders. Here, the target company merges into another, and minority shareholders receive new shares or cash compensation. Under OHADA law, simplified mergers occur when the acquiring company owns 100% of the target’s shares. If it holds at least 90% of voting rights, the process is streamlined, and minority shareholders may be forced to sell. Article 191(2) of the AUSCGIE allows cash compensation in place of shares, up to 10% of the total issued value.

A capital reduction through share buybacks and cancellations can also remove minority shareholders. Article 647 of the AUSCGIE permits companies to repurchase up to 1% of their share capital for cancellation. However, this is not viable for large-scale buyouts unless combined with a merger or restructuring.

OHADA law also grants minority shareholders an exit right in some cases. If they oppose a merger, they can request the acquiring company to buy their shares, though this is not automatic and depends on company decisions and governance rules.

Overall, OHADA law provides several ways to remove minority shareholders after a takeover. Squeeze-outs require court approval and are rarely used. Mergers, particularly simplified mergers, offer a structured approach when majority ownership thresholds are met. Capital reductions and share buybacks provide another route but have limitations. Minority shareholders may also request a buyout in merger disputes, but this is not guaranteed.

In OHADA corporate law, securing irrevocable commitments from principal shareholders to tender their shares or vote in favour of a takeover or merger is common to enhance deal certainty and discourage competing bids. These commitments are usually negotiated before the public announcement of the offer, particularly in friendly takeovers, to ensure key shareholder support. They typically take the form of lock-up agreements, irrevocable tender commitments or voting agreements, sometimes including standstill provisions to prevent shareholders from selling to competing bidders. While generally binding, some agreements include fiduciary outs or superior offer clauses, allowing shareholders to withdraw if a better offer arises, often with a right for the initial acquirer to match it. Such commitments must comply with OHADA’s equal treatment of shareholders and disclosure rules in public offers.

Under OHADA law, mandates that an offer be disclosed via an information document, which must be approved by the relevant stock market authority or, in its absence, by the finance minister of the concerned OHADA member state.

According to Article 93 of the AUSCGIE, once approved, the bid must be published in legal announcement journals, on the company’s website, and, if applicable, on stock exchange platforms. The document must also be made available at the company’s registered office and through financial intermediaries involved in the transaction.

Regarding the timing of the public announcement, Article 93 stipulates that disclosure must take place as soon as possible and no later than the start of the offer period. For companies undergoing their first public listing, the same article requires that the information document be made available at least six working days before the offer closes.

Additionally, Article 94 governs the advertising and promotional communication of bids, ensuring that all public announcements reference the existence of the information document and specify where it can be accessed. Any oral or written communication regarding the bid must be consistent with the details in the official information document.

Under OHADA law, the issuance of shares in a business combination, such as a merger, demerger or asset contribution, requires the publication of an information document if the shares are offered to the public. According to Article 95 of the AUSCGIE, this obligation does not apply if the issuer provides an equivalent document that has been reviewed and approved by the relevant authority, ensuring it contains all required details.

The required disclosure must include information on the number and nature of the shares issued, the rationale behind the issuance, and the conditions of the offer. Additionally, under Article 834, a certified copy of the company’s latest financial statements must be published as an annex to the disclosure notice. If no financial statements exist, the notice must explicitly state this.

Moreover, Article 94 governs the advertising and promotional communication related to the issuance, ensuring that all public announcements reference the availability and location of the information document and that the content is consistent with the approved disclosure.

Under OHADA law, bidders are required to include financial statements in their disclosure documents when making a public offer or issuing securities. According to Article 848 of the AUSCGIE, companies whose securities are listed on a stock exchange must publish their audited financial statements within 45 days following their approval by the general shareholders’ meeting. These must include the consolidated financial statements, if applicable, and must be accompanied by the statutory auditor’s certification.

For companies issuing securities in a business combination or takeover bid, the disclosure document must include a comprehensive financial presentation of the company, detailing its assets, liabilities and financial performance. This information is crucial for investors to assess the transaction and is typically included in an information memorandum or prospectus required under Article 86 of the AUSCGIE.

Regarding accounting standards, OHADA law mandates that financial statements must be prepared following the OHADA accounting system (SYSCOHADA), which has been aligned with International Financial Reporting Standards (IFRS) for consolidated accounts. Article 847 of the AUSCGIE further requires listed companies to publish their semi-annual financial performance reports within four months of the end of the first half of the fiscal year.

Under OHADA law, full disclosure of transaction documents is not always required, but key documents must be made available to shareholders in M&A. Article 674 of the AUSCGIE mandates access to the merger plan, financial statements and auditor reports at least 15 days before the shareholder vote. Article 672 also requires a court-appointed auditor’s report on the fairness of the exchange ratio. For public offers, Article 94 ensures that promotional communications reference the availability of disclosure documents but does not require full publication.

Directors in a business combination have fiduciary duties primarily to the company and its shareholders, but also to creditors and other stakeholders in certain cases. These duties include acting in the company’s best interests, ensuring fair treatment of shareholders, and complying with legal and financial regulations.

Under Article 672 of the AUSCGIE, directors must ensure the merger auditor’s report is available to shareholders, verifying the fairness of the exchange ratio and valuation methods. Article 674 further requires them to provide shareholders with key transaction documents, including financial statements and merger plans, at least 15 days before approval.

Article 330 holds directors personally liable for breaches of legal duties, statutory violations or management misconduct, with courts determining responsibility in cases involving multiple directors. Additionally, under Article 680, creditors may challenge mergers that affect their claims, seeking reimbursement or guarantees, highlighting directors’ broader duty to stakeholders when financial stability is at risk.

Under OHADA law, boards of directors commonly establish special or ad hoc committees in business combinations, especially when conflicts of interest arise. Article 437 of the AUSCGIE allows boards to create committees composed of directors to handle specific matters, including M&A, ensuring informed decision-making and compliance with governance principles.

Additionally, Article 167 provides for the appointment of an ad hoc representative when a conflict exists between the company and its legal representatives, preventing undue influence from interested directors.

While not mandatory, such committees are often used to enhance transparency, protect shareholder interests and mitigate risks in business combinations.

Under OHADA law, courts generally defer to the business judgement of the board of directors in takeover situations, limiting their review to procedural compliance and fairness rather than second-guessing business decisions.

Courts do not have the authority to determine whether the exchange ratio in a merger is fair, nor do they reassess the board’s valuation. Instead, their role is limited to verifying whether shareholders and auditors received adequate information and whether the valuation methods followed legal and regulatory requirements. In this regard, courts ensure that directors acted in good faith, followed proper procedures, and did not breach their fiduciary duties.

While courts may intervene in cases of fraud, conflicts of interest or procedural irregularities, they do not substitute their judgement for that of the board. This approach aligns with the business judgement rule found in jurisdictions like the United States, reinforcing board discretion in managing corporate affairs.

Under OHADA law, directors commonly seek independent outside advice in business combinations to ensure compliance, fairness and proper valuation. The most common forms of independent advice include legal, financial and audit expertise.

According to Article 672 of the AUSCGIE, a court-appointed merger auditor must provide an independent report on the exchange ratio and valuation methods used in the transaction.

Additionally, Article 674 requires that shareholders receive access to financial reports and expert assessments before voting on the transaction.

Companies also rely on legal advisors to assess regulatory risks and financial advisors for valuation and due diligence. External accountants or auditors may be engaged to validate financial data and ensure transparency in the merger process. These measures help directors mitigate liability and protect shareholder interests.

Conflicts of interest involving directors, managers, shareholders and advisers have been subject to judicial and regulatory scrutiny under OHADA law.

Under Article 438 of the AUSCGIE, transactions between a company and its directors, general managers or shareholders holding at least 10% of the capital require prior board approval to prevent conflicts of interest. If such transactions are unauthorised or detrimental to the company, they may be annulled under Article 444, and those involved can be held personally liable for financial losses suffered by the company.

Additionally, Article 853-14 requires the statutory auditor to prepare a special report on agreements between the company and its executives, significant shareholders or related parties. If such agreements cause losses, courts may hold the responsible parties financially liable.

Non-compliance with these rules can result in litigation, annulment of transactions, financial penalties or director liability claims. These provisions promote corporate transparency and fairness in handling conflicts of interest.

While OHADA law does not prohibit hostile takeovers, the corporate governance framework in Guinea makes them difficult to execute in practice due to various protective mechanisms embedded in company laws.

Key barriers include the following.

• Pre-emptive rights: existing shareholders often have pre-emptive rights, allowing them to purchase newly issued shares before external investors, thereby limiting the ability of an outsider to gain control through share purchases.
• Share transfer restrictions: companies can introduce statutory restrictions on share transfers, requiring board or shareholder approval before a significant stake is sold.
• Board discretion: the board of directors often plays a central role in approving or rejecting significant transactions, and defensive strategies such as staggered boards or golden shares can deter hostile bids.
• Sectoral approvals: certain industries, such as banking, telecommunications and mining, require regulatory approvals for significant share acquisitions, further complicating hostile takeovers.

Although legally possible, hostile takeovers are rare in Guinea due to these governance protections, and most acquisitions occur through negotiated transactions rather than unsolicited bids.

Under OHADA law, directors are allowed to implement defensive measures against hostile takeovers, provided they act in the best interests of the company and shareholders.

While the AUSCGIE does not explicitly list anti-takeover defences, it allows companies to adopt protective measures in their bylaws, such as shareholder rights plans, staggered boards and capital restructuring. Article 822-10 provides mechanisms for adjusting share rights and distribution of reserves to protect existing shareholders.

Additionally, Article 853-17 allows companies to include transfer restrictions on shares, which can be used to deter hostile acquisitions.

However, directors must ensure that any defensive action complies with their fiduciary duties and does not unfairly discriminate against shareholders or violate market fairness principles. Courts may invalidate abusive measures if they are deemed to unfairly restrict shareholder rights or entrench management.

Companies can adopt various defensive measures to resist hostile takeovers, provided they comply with corporate governance principles and protect shareholder interests.

One common defence is the restriction on share transfers, as allowed under Article 853-17 of the AUSCGIE, which permits companies to include clauses in their bylaws preventing the transfer of shares for up to ten years. Similarly, Article 853-18 allows for a pre-approval mechanism where the company or shareholders must approve any share transfers.

Another strategy involves capital restructuring, such as issuing new shares with preferential subscription rights for existing shareholders, as permitted under Article 822-10. This dilutes the hostile bidder’s stake and makes the acquisition less attractive.

Companies may also implement golden shares or supermajority voting requirements, making it difficult for an acquirer to gain control. Additionally, the board can use share buyback programmes under Article 647, allowing the company to repurchase up to 1% of its capital to reduce the bidder’s influence.

While these defensive measures are legal, they must not violate shareholder rights or market fairness principles, as courts may invalidate any abusive tactics.

Directors enacting defensive measures against takeovers must act in good faith and prioritise the company’s best interests while ensuring compliance with corporate governance principles.

According to Article 330 of the AUSCGIE, directors are personally liable for violations of statutory obligations, mismanagement or breaches of fiduciary duties.

Defensive strategies must be used to protect the company and its shareholders, not to entrench management or unfairly restrict shareholder rights.

Additionally, Article 822-10 requires that any modification of capital structure ‒ such as issuing new shares to deter a takeover ‒ must consider the interests of existing shareholders and ensure transparency. If defensive actions result in unfair treatment or financial harm to shareholders, courts may review the board’s decisions for abuse of power or breach of fiduciary duty.

Failure to adhere to these duties can result in legal liability, financial penalties or annulment of decisions, ensuring that anti-takeover measures serve a legitimate corporate purpose.

Directors cannot unilaterally reject a business combination but may take defensive measures if they act in the best interests of the company and its shareholders.

The AUSCGIE does not explicitly grant boards the power to “just say no” to a takeover without consulting shareholders. However, Article 822-10 allows directors to adjust share rights or issue new shares to existing shareholders, which can serve as a defence against hostile takeovers.

Additionally, Article 853-17 permits companies to restrict share transfers through their bylaws, making acquisitions more difficult.

Despite these provisions, directors remain bound by their fiduciary duties under Article 330, which holds them personally liable for decisions that harm shareholder interests. If a board blocks a takeover without a legitimate corporate purpose, shareholders may challenge the decision in court.

In conclusion, while directors cannot outright reject a business combination, they may implement defensive strategies, provided these actions comply with corporate governance principles and fiduciary duties.

Litigation related to M&A transactions in Guinea is not as frequent as in some other legal systems, but it does occur, particularly in cases involving shareholder disputes, minority rights and regulatory compliance.

According to Article 198 of the AUSCGIE, failure to comply with mandatory disclosure requirements or the declaration of regularity and conformity can result in the nullification of the merger. Additionally, Article 251 provides that shareholders have six months from the last registration of the merger to challenge its validity in court.

Litigation may also arise from conflicts of interest, particularly when directors or majority shareholders approve mergers that disadvantage minority shareholders. Under Article 853-14, the statutory auditor must prepare a special report on related-party transactions, which can be used in legal challenges if conflicts of interest are identified.

Furthermore, creditors have legal recourse if a merger negatively affects their claims. Article 680 allows creditors to demand guarantees or reimbursement before a merger is finalised.

Overall, while M&A litigation in OHADA jurisdictions is relatively limited, legal actions typically focus on disclosure failures, minority shareholder rights, conflicts of interest and creditor protections.

In OHADA jurisdictions, litigation related to M&A transactions is typically brought at three key stages.

• Pre-approval stage (before shareholder vote) – shareholders or regulatory authorities may challenge the disclosure process if key transaction documents, such as financial statements, merger plans or auditor reports, are not properly disclosed. Under Article 198 of the AUSCGIE, failure to comply with disclosure requirements can result in the nullification of the merger.
• Post-approval stage (within six months of registration) – once the merger is finalised, Article 251(3) of the AUSCGIE allows shareholders to challenge the validity of the transaction within six months of its registration. These claims typically involve conflicts of interest, unfair treatment of minority shareholders or procedural violations.
• Post-transaction stage (creditor challenges) – creditors may file legal actions if the merger adversely affects their claims. Article 680 of the AUSCGIE grants them the right to seek guarantees or demand reimbursement before the merger takes effect.

While M&A litigation in OHADA jurisdictions is relatively rare, challenges are most commonly filed before the shareholder vote or within six months post-approval, focusing on disclosure failures, minority shareholder rights and creditor protections.

The authors are not aware of any major disputes related to M&A transactions in Guinea since 2020. While general principles governing disclosure obligations, shareholder rights and creditor protections remain relevant, there have been no widely reported cases or significant judicial decisions impacting M&A litigation trends in recent years.

The authors are not aware of significant shareholder activism interventions in Guinea. The country’s corporate landscape has not witnessed notable instances of shareholders pressuring management on governance issues or directly impacting M&A transactions.

Shareholder activism in Guinea is relatively uncommon, mainly due to the corporate structure and governance framework under OHADA law. However, in recent years, there has been increasing engagement from institutional investors and minority shareholders in key sectors such as mining, telecommunications and banking.

Activist shareholders may influence corporate decisions, including M&A transactions, spin-offs and divestitures, by exercising their rights through General Meetings of Shareholders, as prescribed by the AUSCGIE. Under Articles 520 and 521 of AUSCGIE, shareholders holding a certain percentage of capital can request specific resolutions to be included in the agenda. Additionally, shareholder derivative lawsuits under Articles 166 and 167 provide a legal mechanism to challenge management decisions and ensure corporate accountability.

While organised shareholder activism remains in its early stages, its presence is gradually increasing, especially in sectors where corporate governance, transparency and ESG concerns are gaining importance.

Shareholder activism in Guinea is relatively rare due to OHADA’s legal framework, though it is gradually increasing in sectors like mining, banking and telecommunications. Activist investors rarely interfere in transactions, as OHADA law restricts aggressive shareholder actions and imposes procedural challenges. However, institutional and minority shareholders are raising concerns over governance, ESG compliance, and transparency. While activism in M&A remains limited, investor awareness is growing, with greater efforts to influence corporate decisions through shareholder meetings, board elections and legal actions.