Ghana: Regulatory Overview Of Equity Capital Markets In Ghana

Last Updated: 11 June 2018
Article by Seth Asante

MAIN EQUITY MARKETS

Main Equity Markets

The Ghana Stock Exchange (GSE) and the Ghana Alternative Market (GAX) are the 2 exchanges in Ghana. Both exchanges are operated by the GSE.

GSE. The GSE is the main exchange and was established in 1989. It started trading in 1990. It is aimed at more established and capitalised companies and the listed companies are regulated in accordance with the listing rules and other directives issued by the GSE. The Securities and Exchange Commission (SEC) also exercises supervisory jurisdiction over the GSE and the listed companies in accordance with the Securities Industry Act, 2016 (Act 929) (Securities Act).

GAX. The GAX is the GSE's alternative market for start-ups and existing small and medium enterprises. It was established in 2013. The GAX has shortened listing procedures, reduced listing requirements (such as the minimum capital and minimum number of public shareholders) and incentives (such as waiver of regulatory fees and access to a listing fund) to attract the intended market. The companies listed on the GAX are regulated in accordance with the rules and other directives issued by the GSE. The SEC has supervisory jurisdiction over the GAX-listed companies in accordance with the Securities Act.

Market Activity and Deals

The GSE was the best performing exchange in Africa in terms of dollar returns to investors, with a market capitalisation of approximately GHS 6.1 billion, as at January, 2018. The GSE currently has 38 equity listings.

The following foreign companies are currently listed on the GSE:

  • Tullow Oil Plc.
  • Trust Bank (Gambia).
  • Golden Star Resources Limited.
  • Ecobank Transnational Incorporated.

The listing of Tullow Oil Plc in 2011 made the GSE the third largest exchange in Africa by market capitalisation after the Johannesburg and Lagos exchanges in that year. The GSE is currently one of the top ten largest exchanges in Africa by market capitalisation. The most recent equity listings were by Agricultural Development Bank Limited and Access Bank (Ghana) Plc.

The GAX is still relatively new and in its early stages of development. There have been 4 listings on the GAX since its establishment in 2013. However, there are a number of proposed equity listings. The companies currently listed on the GAX are Intravenous Infusions Plc, Hords Limited, Meridian- Marshalls Holdings Company Limited and Samba Foods Limited.

MAIN REGULATORS & RELEVANT LEGISLATION

Regulatory bodies

The SEC is the main equity markets regulator in Ghana. The SEC also regulates the GSE and the GAX. Other sector-specific regulators may also play a key role when the issuer is a regulated entity. For instance, the approval of the Bank of Ghana or the National Insurance Commission of Ghana will be required for an equity issuance or share transfer resulting in a person acquiring 5% or 10% of the issued shares of a bank or an insurance company respectively.

Legislative framework

The key legislation and rules applicable to listing and trading of equity securities in Ghana are the:

  • Securities Act.
  • SEC Regulations 2003 (L.I. 1728) (SEC Regulations).
  • SEC Compliance Manual for Broker-Dealers, Investment Advisers and Representatives.
  • Companies Act 1963 (Act 179) (as amended) (Companies Act).
  • GSE Rule Book issued by the GSE, which contains the listing rules, the dealing membership rules and the trading and settlement rules for the GSE.
  • GAX listing rules issued by the GSE.
  • Central Securities Depository Rules and Operational Procedures.

EQUITY OFFERINGS

Main requirements for primary listing

For a listing on the GSE or the GAX, a company is required to file a listing application, a prospectus, its regulations and other supporting documents with the GSE and the SEC. The company must also be a public limited liability company.

Primary listing on the GSE by a foreign company is generally not allowed unless the GSE is satisfied with the reason for the absence of an existing listing in the applicant's country of incorporation or in the country in which the majority of its shares are held. All the GSE listing requirements apply to foreign companies seeking primary or secondary listing on the GSE (with the exception of the requirements on minimum size and minimum shares for public shareholders) (see below).

Minimum size requirements

Companies listed on the GSE must have a minimum stated capital of GHS 1 million. Companies listed on the GAX must have a minimum stated capital of GHS 250,000.

Foreign companies listed on the GSE are required to have a minimum stated capital of the equivalent of USD1 million.

Trading record and accounts

For a listing on the GSE, companies must have filed accounts for three full financial years prior to applying for listing. It must also have made pre-tax profits throughout the three financial years. This rule also applies to foreign companies.

For a listing on the GAX, companies must have been operating for at least one year and have filed accounts for at least the latest financial year. However, start-ups can be admitted if they submit a three-year business plan demonstrating sustained viability.

For a listing on the GAX, companies are not required to show existing records of profits, they must show that they have the potential to make a profit by the third year of listing.

Minimum shares in public hands

The public float of companies listed on the GSE and the GAX must be a minimum of 25% of the issued shares. The number of public shareholders must be a minimum of:

  • 20 in respect of the GAX.
  • 100 in respect of the GSE.

Foreign companies listed on the GSE must have a minimum of 25% of their issued shares held by a minimum of 100 public shareholders.

Main requirements for secondary listing

The requirements are the same as for a primary listing (see Main requirements for primary listing).

The foreign company must also register with the Companies Registry in Ghana as an external company.

Minimum size requirements

The requirements are the same as for a primary listing (see Main requirements for primary listing).

Trading record and accounts

The requirements are the same as for a primary listing (see Main requirements for primary listing).

Minimum shares in public hands

The requirements are the same as for a primary listing (see Main requirements for primary listing).

Main ways of structuring an IPO

In Ghana, an IPO can be effected by either or both of the following:

  • An offer for subscription.
  • An offer for sale of issued shares held by the existing shareholders of the issuer.

Main ways of structuring a subsequent equity offering

Subsequent equity offerings are usually made by:

  • Rights issue. This is an offer of new shares made to the existing shareholders in proportion to their holdings and usually at a discounted price. In respect of listed equities, all rights issues are required to be renounceable.
  • Capitalisation or bonus issue. This is an issue of new shares to the existing shareholders in proportion to their existing holding and credited as fully paid. This is done when the company has transferred money from its surplus to its stated capital.
  • Public offer. This is an offer of new shares to the public.
  • Private placement. This is an offer of new shares to selected investors.

Advantages and Disadvantages of Rights Issues/Other Types of Follow on Equity Offerings

Public Offer

The key disadvantage for public offers is the time it takes to execute the whole process. An issuer requires a minimum of six months to complete the public offer process.

Rights Issue

A rights issue can be executed in a shorter period of time and also the disclosure requirements are not as detailed as for a normal public offer.

Private Placement

Private placements of unlisted securities can be executed within a shorter time frame and will also be significantly cheaper to execute due to the absence of regulatory oversight by the SEC.

Steps for a Company Applying for a Primary Listing of its Shares.

Procedure for a Primary Listing

The key steps for an application for a primary listing on the GSE are as follows:

  • Filing of the prospectus and regulations of the applicant with the GSE and the SEC.
  • Filing of the draft listing application and other supporting documents with the GSE.
  • Approval of the SEC for the public offer and conditional admission to listing by the GSE.
  • Filing a copy of the prospectus and the regulations of the applicant with the Companies Registry.
  • Issuance of the prospectus and commencement of the offer period.
  • Announcement of results and basis for allotment of shares.
  • Issuance of shares in accordance with allotment.
  • Admission and trading of shares on the GSE.

Procedure for a Foreign Company

The procedure is the same for a foreign company.

ADVISERS: EQUITY OFFERING

Role of Advisers

The key advisers for an equity offering (including an IPO) are as follows:

  • Licensed Dealing Member (LDM). The LDM acts as the sponsor for the offering and is responsible for the filings and approvals required for the offering. The LDM can also act as the book runner and/or the underwriter for the offering.
  • Legal Adviser. Advises in connection with the offering and any related legal issues, conducts legal due diligence on the issuer, provides legal opinion and verifies the disclosures in the prospectus.
  • Reporting Accountant. Conducts financial due diligence on the issuer and provides an opinion on the financial status of the issuer.
  • Corporate Adviser. Required for equity listings on the GAX. The responsibilities of the corporate adviser include providing the issuer with advice and guidance on its continuing listing obligations and serving as the liaison between the issuer and the GAX. The corporate adviser must have experience in investment banking, accounting, finance or law or any other field agreed by the GAX.

Main Documents Produced in an Equity Offering

The key documents for an equity offering (including an IPO) are as follows:

  • Resolutions of the board of directors and the shareholders of the issuer authorising the issue and listing the new shares.
  • Listing application.
  • Prospectus.
  • Regulations of the issuer.
  • List of shareholders.
  • Copies of the material contracts of the issuer.
  • Tax clearance certificate issued by the Ghana Revenue Authority.
  • LDM's confirmation.
  • Legal adviser's compliance certificate.
  • Audited financial statements of the issuer covering the preceding three financial years.
  • Summary of the valuation pricing report.
  • Copy of the escrow agreement for an escrow account for the subscription proceeds.

EQUITY PROSPECTUS/MAIN OFFERING DOCUMENT

Prospectus (or other main offering document) required

A prospectus is required for any offer which is an invitation to the public. The prospectus must be approved by the SEC and also filed with the GSE and the Companies Registry.

An offer is deemed as an "invitation to the public" if it is:

  • Published or advertised in Ghana.
  • Made or circulated to person(s), whether they are selected as existing shareholders or clients of the issuer or in any other manner.
  • Made or circulated to person(s) on the terms that they can reject or assign the benefit of the invitation or of the shares in favour of any other person.
  • Made to any person(s) to acquire shares listed on an exchange or in respect of which the invitation states that an application for listing on an exchange has been or will be made.

Main publication, regulatory filing or delivery requirements

The prospectus must be approved by the SEC and also filed with the GSE and the Companies Registry.

Main exemptions from the requirements for publication or delivery of a prospectus (or other main offering document)

A prospectus must be filed and published for as long as the offer is an invitation to the public.

Main content or disclosure requirements for a prospectus (or other main offering document)

The key disclosure items for a prospectus include:

  • General information about the issuer, including the capital structure of the issuer, the historical development of the issuer and the organisation structure of the issuer.
  • Assets of the issuer.
  • Particulars of the directors and management of the issuer.
  • Details of any group or associates of the issuer.
  • Business overview of the issuer.
  • Details of the shareholding of the issuer.
  • Details of the employment structure.
  • Details of any related party transactions.
  • Details of the financial conditions and operating results of the issuer.
  • Details of any litigation or other legal proceedings involving the issuer.
  • Details of the taxation issues of the issuer.
  • Details of the offer, including the structure and the timetable.

The prospectus will also include the following:

  • Report of the reporting accountant.
  • Legal opinion of the legal advisers.
  • Declaration of the interests of the advisers in relation to the offer.
  • Declaration by the directors of the issuer of the accuracy of the facts contained in the prospectus.

The generally accepted accounting standards in Ghana are the International Accounting Standards. A working capital statement is not required.

How The Prospectus is Prepared (Who is responsible and/or may be liable for its contents)

The issuer and its advisers are responsible for the preparation of the prospectus. The LDM takes primary responsibility for the drafting and filing of the prospectus (see Role of Advisers).

The issuer (and its directors) can be liable for any civil and criminal actions resulting from misstatements or omissions in the prospectus.

Marketing Equity Offerings

Equity securities are usually marketed by any of the following methods:

  • Roadshows. (formal presentations by the management of the issuer to key potential investors).
  • One-on-one. (targeted meetings with key potential investors).
  • Publicity. (use of general advertising in respect of retail investors).

Potential liability for publishing research reports by participating brokers/dealers and ways to avoid such liability.

In general, a person who authorised a prospectus or other document in relation to an offering can be liable to pay damages for loss if the document contains any material misstatements or omissions. This can also attract a fine of up to GHS 12,000 or a term of imprisonment of up to 2 years.

Where the LDM or any person markets the offer by inducing or attempting to induce prospective subscribers using false or misleading statements, promises or forecasts (or by dishonestly concealing material facts), the LDM or that person can be liable to a term of imprisonment of up to seven years.

Under the Securities Act, it is also an offence to spread information that is false or misleading and that is likely to induce the purchase of shares. This offence attracts a fine of up to GHS 6,000.

Bookbuilding – how this is used

Both public and private equity offerings in Ghana usually involve bookbuilding. The lead manager for the offering will usually start the book building process as soon as the issuer appoints the lead management. The process often involves the lead manager contacting key investors and fund managers to get their views on the proposed offering. Key elements of the valuation and due diligence will often be shared with these targeted investors, who may then confirm their intention to participate through a letter of intent or some other satisfactory form of confirmation.

Underwriting: Equity Offering – how this is structured, key terms of underwriting agreement, relevant fees

It is not a requirement that an offering being listed on the GSE must be underwritten. Underwriting arrangements are not often utilised in the local equity market. This is mainly due to the local capitalisation of most of the LDMs.

However, an offering for listing on the GAX requires underwriting (of the minimum offer to be raised) by the LDM.

Timetable: Equity Offering

A typical equity offering (including an IPO) can take up to six months to complete. This process usually involves (i) the appointment of advisers, (ii) conduct of legal and technical due diligence on the issuer, (iii) the drafting and negotiation of the transaction documents, (iv) obtaining corporate approvals, (v) obtaining regulatory approvals, and (vi) issuance and/or listing of shares.

Rules on Price Stabilisation and Market Manipulation

Under the listing rules of the GSE, rumours in the market about any information held by or concerning an issuer, must be immediately disclosed by the issuer. It is also an offence under the Securities Act to engage in any transaction intended to maintain, inflate, depress, or cause fluctuations in the market price of listed shares.

Tax: Equity Issues

The key tax issues are as follows:

  • Capital duty of 0.5% is payable by the issuer on the increase in stated capital resulting from the issue of new shares.
  • Gains obtained from the realisation of capital or investment assets such as equity securities must be included in the assessable income of the tax payer for the year of assessment and is taxed at a graduated rate of up to 25%.
  • Stamp duty of GHS0.50 is payable by the issuer on any agreement executed in respect of the offer.

Continuing Obligations – Listed Companies

Listed companies have a general obligation to immediately disclose information that is likely to have a significant effect on the price of its shares. They are also required to make immediate disclosures in respect of the following:

  • Any decision on whether to declare dividends (including capitalisation or bonus issue). A disclosure of declaration of dividends must be accompanied by the issuer's full year or quarterly financial results.
  • Any meeting of the issuer.
  • All special resolutions to be approved by the shareholders at meetings of the issuer meetings (whether or not they were approved).
  • Any proposed changes to the regulations of the issuer.
  • Any rights issue and the related details.
  • Any notice of substantial shareholdings or changes received by the issuer.
  • Any court application for the winding up of the issuer or its subsidiaries or the appointment of a receiver or liquidator of the issuer or its subsidiaries.
  • Any acquisition of shares of another company.
  • Any purchase or sale of an asset.

Listed companies are also obliged to obtain the approval of the existing shareholders in respect of any issue of new shares or sale of treasury shares which has the effect of transferring a controlling interest in the issuer.

In addition, persons who acquire shares in a listed company are required to announce to the market when their holdings attain, exceed or fall below each 5% threshold (starting from 10%).

Continuing Obligations – Foreign Listed Companies and Issuers of Depositary Receipts

The continuing obligations apply unless specifically exempted by the GSE with the approval of the SEC. In addition, any information disclosed to the foreign company's primary exchange must be disclosed to the GSE at the same time. Circulars issued to any particular of its shareholders must be issued to its shareholders on the GSE unless the contents of the circulars are irrelevant to them.

Penalties for Breaching Continuing Obligations

There are no specific fines for breaching the continuing obligations. However, the listing rules of the GSE allow the GSE to suspend listing of the shares, or de-list the shares, of the defaulting issuer.

MARKET ABUSE AND INSIDER DEALING

Restrictions on market abuse/insider dealing

Under the Securities Act, insider dealing occurs when a person deals in the shares of an issuer within six months of obtaining information concerning that issuer. This is where the information is generally not available and is likely to materially affect the price of the securities of that issuer and which was obtained as a result of having been connected with the issuer.

Under the Securities Act, it is also an offence to create a false or misleading appearance of active trading on the GSE or the GAX, or in respect of the price of listed shares.

Penalties for market abuse/insider dealing

The offences of insider trading and market abuse attract a fine of not less than GHS12,000 and not more than GHS30,000. In the case of individuals, there may be an additional sanction of a term of imprisonment of not less than 4 years and not more than 5 years.

De-listing

Under the listing rules of the GSE, de-listing can be either compulsory or voluntary.

Compulsory de-listing. This can be effected by the GSE on any of the following grounds:

  • The issuer has disposed of its key assets, has ceased to be an operating company, or has discontinued a substantial portion of its operation or business without shareholder authorisation.
  • The public float has reduced to below 5% of its issued shares.
  • It has failed to comply with the continuing listing obligations.
  • The management of the issuer does not comply with the GSE's policy on quality of management.
  • If the issuer has failed to comply with the GSE rules or any agreements with the GSE.
  • If the company has failed to pay any applicable fees to the GSE.
  • If the issuer's financial situation is significantly threatened.
  • If the issuer is consistently and persistently non-compliant with GSE and SEC rules and directives.

The GSE will notify the affected issuer in writing. The affected issuer will be given the opportunity to provide an explanation. If the GSE is dissatisfied with the explanation, it will go ahead and set an effective date for the de-listing and provide written notification to the issuer and the public. Where the issuer is dissatisfied with the decision of the GSE, it can apply to the SEC for a review of the decision.

Voluntary de-listing. This can be effected by an issuer on obtaining the approval of the GSE. An application for de-listing must be made to the GSE three months' prior to the intended date for de-listing. The application must be supported by the following:

  • Copies of the board resolution and the special resolution of the shareholders authorising the de-listing.
  • A draft press release in respect of the de-listing.

The issuer must also ensure that:

  • The majority shareholders make arrangements to purchase shares from the other shareholders who want to sell. The purchase price will be the higher of either the average market price of the preceding twelve weeks or the market price at the date of the shareholder meeting which approved the de-listing.
  • Payment is made to selling shareholders from an escrow account opened for that purpose.
  • The GSE is notified of the completion of all requirements including the payment of de-listing fees.
  • The GSE has given its approval for the de-listing.
  • A press release is issued to de-list on the effective date.

For the de-listing by foreign companies, the GSE must be provided with sixty days' notice which must contain alternative arrangements to give liquidity to shareholders who may want to exit as a result of the de-listing.

Suspensions

See above on "Compulsory de-listing".

REFORM

Recent Developments

The Companies (Amendment) Act, 2016 (Act 920) has been passed to amend the Companies Act. The amendment is to introduce the recording of the details of the beneficial owners of the issued shares of a company in the register of members of the company.

The Securities Act was recently passed to replace the Securities Industry Act, 1993 (P.N.D.C.L. 333). The Securities Act seeks to improve the industry, includes provisions on information sharing and cooperation with other regulatory bodies, sanctions for illegal operators in the capital markets and the inclusion of new provisions on the regulation of derivatives, commodity exchanges and nominee accounts among others.

Proposals for Reform

There is an on-going review of the Companies Act to synchronise the provisions on invitations to the public with the requirements under the SEC Regulations (among others).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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