PROCEDURE FOR MERGERS AND ACQUISITIONS IN NIGERIA
The Securities and Exchange Commission ("SEC") was the major agency in Nigeria responsible for mergers and acquisitions of both public and private enterprises prior to 2019
PROCEDURE FOR MERGERS, ACQUISITIONS IN NIGERIA
The Securities and Exchange Commission ("SEC") was the major agency in Nigeria responsible for mergers and acquisitions of both public and private enterprises prior to 2019. The Investment and Securities Act of 2007's merger-related clauses were eliminated with the passage of the Federal Competition and Consumer Protection Commission ("FCCPC") Act 2019, and the FCCPC took over as the primary agency in charge of overseeing mergers.
MERGERS AND ACQUISITIONS
When two firms decide to merge to form a new company or to keep one of the companies' previous names, a viable company either buys the other company outright or decides to acquire it.
Merger is defined by ISA as any amalgamation of the undertakings or any part of the undertakings or interest of two or more companies and one or more corporate bodies while Acquisition means the takeover by one company of sufficient shares in another company to give the acquiring company control over that other company.
THRESHOLDS AND CATEGORIES OF MERGERS
In accordance with Section 120 of the ISA, the Commission may, from time to time, prescribe a lower and upper threshold of combined annual turnover or assets, or a lower and upper threshold of combinations of turnover and assets in Nigeria generally or in relation to particular industries, for the purpose of determining merger categories. The SERR has established the following lower and upper thresholds:
SMALL MERGER
The lower threshold for a modest merger is either the combined assets or turnover of the merging companies being under 1 million naira.
INTERMEDIATE MERGER
The intermediate threshold is either the combined assets or the combined turnover of the merging companies, which ranges from 1 million to 5 million naira.
LARGE MERGER
The combined assets or turnover of the merging companies must be greater than 5 million naira to qualify as a significant merger.
PROCEDURE FOR INTERMEDIATE AND LARGE MERGER
The following measures are taken to ensure a successful merger for businesses with assets between N1 million and N5 million, and above N5 million:
The Board of Directors of the two Companies and the Companies will pass separate Resolution for Merger.
Both companies will make an application to SEC as pre-merger Notice attached with;
Complete merger Notification Form
A letter of intent signed by the merging companies
Board resolutions of the merging companies supporting the merger.
A copy of the letter appointing the financial adviser
Letter of no objection from the companies regulators (e. g CAC, Central Bank of Nigeria ("CBN") etc).
The audited account of the companies for the last 5 years.
A copy of the Memorandum and Article of Association of the merging entities.
A detailed information memorandum of the proposed transaction including all the background studies relating to the merger, and justification for it
Forward a copy of the Merger notification to any registered trade union that represents a substantial number of its employees, or the employees concerned or representatives of the employees concerned, if there are no such registered trade unions.
After the evaluation of the pre-merger notice with the documents attached, the Commission will grant an approval in principle to the merger after adequate consideration and direct the merging companies to make an application to the court to order separate meetings of shareholders of the merging companies in order to get their concurrence to the proposed Merger.
Make an application to court to order separate meetings of shareholders of the merging companies.
A majority representing not less than three quarters in value of the shares of members being present and voting either in person or by proxy at each of the separate meetings should pass a resolution agreeing to the scheme.
File with the Commission a formal application for approval of the Merger attached with the following documents;
Extract of the minutes of the court ordered meeting of the merging companies in support of the merger duly certified by the director and company secretary.
2 copies of the scheme document duly signed by the parties to the merger.
Evidence of the executed resolutions passed at the separate court ordered meetings.
Scrutineers report showing the result of voting and total number of votes cast.
After formal approval by the Commission, make an application to court for an order sanctioning the scheme.
Comply with post approval requirements.
A post-merger inspection will be conducted by the Commission three months after the Commission has given its approval to determine the degree of compliance with the scheme document's terms.
NB: This article is not a legal advice, and under no circumstance should you take it as such. All information provided are for general purpose only. For information, please contact chamanlawfirm@gmail.com
WRITTEN BY CHAMAN LAW FIRM TEAM
EMAIL: chamanlawfirm@gmail.com
TEL: 08065553671, 08024230080