1. REGULATORY FRAMEWORK
1.1 What legislation and regulatory bodies govern M&A
activity in Ghana?
Public M&A activity is governed by: the Companies Act
1963 (Act 179); the Securities Industry Act 1993 (PNDCL 333) as
amended by the Securities Industry (Amendment) Act 2000 (Act
590); the Securities and Exchange Commission Regulations 2003
(LI 1728); the Takeovers and Mergers Code (Code); and, the
Central Securities Depository Act 2007 (Act 733).
There are also regulatory consent requirements in certain
industry-specific laws such as the Insurance Act 2006 (Act 724)
and the Banking Act 2004 (Act 673) as amended by the Banking
Act 2007 (Act 738).
M&A activities of public institutions are governed by
the Securities and Exchange Commission (SEC) of Ghana and the
Ghana Stock Exchange (GSE).
1.2 How, by whom, and by what measures, are takeover
regulations (or equivalent) enforced?
Takeover regulations are enforced by the SEC, which has the
power to give instructions on transactions governed by the
Code, grant exemptions and withdrawals from the offer, and
nullify the purchase of shares through a takeover, merger or
consolidation that violates the rules of the Code.
2. STRUCTURAL CONSIDERATIONS
2.1 What are the basic structures for friendly and hostile
Where a person or persons acting in concert: (i) acquires or
intends to acquire more than 30% but less than 50% of the
voting shares of a public company in any 12-month period; or
(ii) acquires or intends to acquire 50% or more of the voting
shares of a public company; or (iii) acquires a company that
holds effective control in the public company or together with
the shares already held, will result in acquiring effective
control of the public company, they will be obliged to make a
takeover offer of the public company and must comply with the
takeover procedures of the Code.
A person intending to acquire effective control of a public
company is required to make the same offer to all shareholders
of the same class of the public company intended to be
2.2 What determines the choice of structure, including in
the case of a cross-border deal?
The choice of structure is determined by the nature of the
acquisition, tax implications, or regulatory requirements.
2.3 How quickly can a bidder complete an acquisition? How
long is the deal open to competing bids?
Generally, an acquisition may take between 85 to 120 days
A competing offeror should be submitted at least 10 days
prior to the closure of the original offer period.
2.4 Are there restrictions on the price offered or its form
(cash or shares)?
There are no restrictions on the form of consideration to be
paid for the shares.
Where a takeover results in the offeror acquiring 90% or
more of the offeree's voting shares, the offeror must offer the
remaining shareholders a consideration that is equal to the
prevailing market price of the voting shares, or the price
offered to the other holders, whichever is higher.
The minimum offer should be the highest of the following (if
applicable): the highest price paid for shares in the target by
the offeror or parties acting in concert with it during the 26
weeks before the offer; the price paid under a preferential
allotment by the offeror or parties acting in concert with it
at any time during the 12 months before the closing date of the
offer; or, the average of the highest weekly price realised by
the shares of the target in the six-month period before the
date the offer was publicly announced.
2.5 What level of acceptance/ownership and other conditions
determine whether the acquisition proceeds and can
satisfactorily squeeze out or otherwise eliminate minority
The price, regulations of the company and conditions of the
offer are the key factors which determine whether the
acquisition proceeds or not.
Where a takeover results in the offeror acquiring 90% or
more of the offeree's voting shares, the offeror would be
required to offer the remaining shareholders a consideration
that is equal to the prevailing market price of the voting
shares, or the price offered to the other holders, whichever is
2.6 Do minority shareholders enjoy protections against the
payment of control premiums, other preferential pricing for
selected shareholders, and partial acquisitions, for example by
mandatory offer requirements, ownership disclosure obligations
and a best price/all holders rule?
Yes, all shareholders of the same class of shares are
treated equally under the takeover code.
2.7 To what extent can buyers make conditional offers, for
example subject to financing, absence of material adverse
changes or truth of representations? Are bank guarantees or
certain funding of the purchase price required?
Conditional offers can be made. The offeror must state in
the announcement the conditions of the takeover offer,
including conditions relating to acceptance, listing and
increase of capital. The offer can be made conditional upon
acceptance of a minimum percentage of shares being
3. TAX CONSIDERATIONS
3.1 What are the basic tax considerations and
Consideration received or receivable by a person from the
realisation of a chargeable asset inclusive of shares of a
resident company is subject to capital gain tax of 15%.
3.2 Are there special considerations in cross-border
Special considerations may arise. For example, in situations
where the home country of the offeror has entered into a double
taxation agreement with Ghana.
4. ANTI-TAKEOVER DEFENCES
4.1 What are the most important forms of anti-takeover
defences and are there any restrictions on their use?
Prior to an offer, changes to the company's regulations can
be made. The board of directors of the target may also
frustrate the process by recommending that the shareholders do
not accept the offer. Shareholders may institute legal action
(obstructive litigation) in a bid to frustrate the process.
Significant changes to the target's capital structure and
assets can also be made prior to the emergence of an offer.
4.2 How do targets use anti-takeover defences?
See 4.1 above.
4.3 Is a target required to provide due diligence
information to a potential bidder?
4.4 How do bidders overcome anti-takeover defences?
Where the board of directors of the target company attempts
to frustrate the process, bidders may threaten existing
directors with actions for breach of duties. Attempts to
replace incumbent directors can also be made.
4.5 Are there many examples of successful hostile
Hostile takeovers are rare in Ghana.
5. DEAL PROTECTIONS
5.1 What are the main ways for a friendly bidder and target
to protect a friendly deal from a hostile interloper?
In practice it is difficult. However, a friendly bidder and
target may protect a friendly deal by having a break fee
5.2 To what extent are deal protections prevented, for
example by restrictions on impediments to competing bidders,
break fees or lock-up agreements?
To a large extent. An offer must be open for 30 days and a
competing bid can be made as late as 10 days from the end of
the offer period.
6. ANTITRUST/REGULATORY REVIEW
6.1 What are the antitrust notification thresholds in
Ghana does not have a comprehensive competition regulation.
However, the Protection Against Unfair Competition Act 2000
(Act 589) provides for protection against unfair competition
and related matters in the course of industrial and commercial
6.2 When will transactions falling below those thresholds
6.3 Is an antitrust notification filing mandatory or
6.4 What are the deadlines for filing, and what are the
penalties for not filing?
6.5 How long are the antitrust review periods?
6.6 At what level does your antitrust authority have
jurisdiction to review and impose penalties for failure to
notify deals that do not have local competition effect?
6.7 What other regulatory or related obstacles do bidders
face, including national security or protected industry review,
foreign ownership restrictions, employment regulation and other
The Ghana Investment Promotion Centre Act 2013, Act 865,
reserves certain activities such as the retail of finished
pharmaceutical products and the printing of recharge scratch
cards for Ghanaians and Ghanaian-owned businesses.
Under Ghana's labour laws, where the offer may result in
redundancies, the target company will be required to inform the
chief labour officer and trade union concerned and that may
prolong the process.
7. ANTI-CORRUPTION REGIMES
7.1 What is the applicable anti-corruption legislation in
There are various laws aimed at curbing corruption in
The Constitution of Ghana as well as several other
legislations such as the Criminal Offences Act 1960 (Act 29),
Whistleblower Act 2006 (Act 720) and the Anti-Money Laundering
Act 2008 (Act 749) have provisions governing anti-corruption in
The Parliament of Ghana ratified the United Nations
Convention against Corruption and the African Union Convention
on Preventing and Combating Corruption on October 18 2002.
7.2 What are the potential sanctions and how stringently
have they been enforced?
Criminal and civil sanctions may be imposed. The Criminal
Offences Act 1960 (Act 29) provides for sanctions for
corruption in general.
8. OTHER MATTERS
8.1 Are there any other material issues in your
jurisdiction that might affect a public M&A
Bureaucracy in dealing with public agencies is always a
challenge in any M&A in Ghana, especially where some
regulatory approval is required.
8.2 What are the key recent M&A developments in your
The acquisition of Provident life and Express Life by Old
Mutual and Prudential respectively; and, the acquisition of Fan
Milk International by Abraaj.
There have also been issues surrounding the proposed
takeover of HFC Bank Ghana by Republic Bank of Trinidad and
Founder and senior partner, Ntrakwah & Co
T: +233 208127789
Felix Ntrakwah is the founder and senior partner of
Ntrakwah & Co, and one of Ghana's leading experts
in corporate and commercial law. He has advised local
and foreign clients and conducted litigation on various
corporate, commercial and intellectual property law
issues. He is among the committee of experts in Ghana
who drafted the new Companies Bill, yet to be passed by
parliament. He is an alternate member of the
International Chamber of Commerce Court of
International Arbitration in Paris, and he established
the Corporate Law Institute in Ghana to promote the
development of corporate law practice in the
Kwadwo Gyasi Ntrakwah
Partner, Ntrakwah & Co
Kwadwo Gyasi Ntrakwah is a member of the Honourable
Society of the Middle Temple, London, and the Chartered
Institute of Arbitrators, and a member of the bars of
England, Wales and Ghana. He obtained his LLB (Hons)
degree from the University of Reading and his LLM in
international business law from the University of
Ntrakwah advises clients on a wide range of legal
issues including M&A, commercial and contractual
disputes, corporate transactions, construction law and
international commercial arbitration. He has advised
local and foreign companies on M&A in Ghana.
Joyce Franklyn Thompson
Junior associate, Ntrakwah & Co
T: +233 243 643179
Joyce Franklyn Thompson is a junior associate at
Ntrakwah & Co, and is attached to the corporate and
commercial department. She assists in advising local
and foreign companies on various company law issues,
labour law, banking and finance, and M&A. She has a
keen interest in company formation and corporate
governance, intellectual property and international
business law. She also works with Ntrakwah & Co's
subsidiaries, Corporate Profile and the Corporate Law