Private M&A Comparative Guide

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1 Deal structure

1.1 How are private M&A transactions typically structured in your jurisdiction?

The Companies Act, 2019 (Act 992)¹ provides for the two main merger forms:

• merger by absorption, where the business, assets and liabilities of a transferor company are transferred to another existing company; and
• merger by formation, where a new company is formed to which the business, property and liabilities of two or more companies are transferred.

Beyond this, the law provides for Short Form Mergers, which can be undertaken through two routes:

• Where two or more companies (merging entities) are wholly owned by the same company; or
• Where a company merges with its subsidiary(ies).²

There are two principal structures of private M&As in Ghana:

• Share Purchase, which involves the acquisition of the shares of the target company, thereby giving the buyer control over the entire business, including all assets and liabilities³, and
• Asset Purchase, which involves the acquisition of specific assets, undertakings and, where applicable, selected liabilities of the target company, without acquiring the company itself.⁴

1.2 What are the key differences and potential advantages and disadvantages of the various structures?

Share Purchase: In a share purchase, the buyer acquires all or a majority of the shares of the target company directly from shareholders. Since the buyer is essentially acquiring the legal entity as a whole, it is not necessary to identify all assets and liabilities of the target to be included or excluded. This generally makes the process potentially less complex. Additionally, there is no need to register a change in title to assets such as land since ownership remains with the target company.

The buyer also acquires the benefit of the target company's existing agreements, since the business continues to operate under the same legal entity. However, it is important to review the target company's agreements and licences for any change of ownership clauses that may require the acquisition of consent or trigger other obligations.

Pursuant to Schedule 1 of the Stamp Duty Act, 2005 (Act 689), share transfer transactions are exempt from stamp duty⁵. Conversely, stamp duty is payable on conveyancing agreements required to transfer title to property, which is relevant in asset purchase transactions.

Despite these advantages, share purchase transactions have some disadvantages, including:

• Exposure to liabilities: if the target has extensive liabilities or there is a risk of significant undisclosed or unknown liabilities, this may be disadvantageous to the buyer;
• Extensive due diligence: comprehensive due diligence is required to identify hidden risks and liabilities within the target company, which can be time-consuming and costly; and
• Shareholder approvals: the buyer may need a significant number of the target's shareholders to agree to sell their shares, potentially resulting in a prolonged acquisition process.

Asset Purchase: An asset purchase allows the buyer to select which assets and liabilities to acquire. This provides enhanced protection, as it helps the buyer avoid taking on unknown or unforeseen liabilities and supports business efficacy by enabling the acquisition of only those assets that align with the buyer's strategic business objectives.

The principal disadvantage of this structure is the complexity and time involved in identifying the specific assets, rights and liabilities to be transferred to the buyer. The legal formalities required to transfer title to the buyer may also be extensive. In addition, agreements relating to the relevant assets and liabilities must be reviewed for assignment of interest requirements.

1.3 What factors commonly influence the choice of transaction structure?

Various concerns, such as tax, commercial and legal considerations, influence the choice of transaction structure. In some situations, an asset purchase may be the preferred option for buyers for tax reasons, as the acquired assets may benefit from higher depreciation deductions arising from fair market value write-ups, thereby reducing the buyer's future tax obligations. However, asset purchases may be less attractive to sellers because they will be required to pay capital gains tax on the profit realised from the sale of the assets.⁶

Additionally, an asset purchase may be more favourable in circumstances where:

• the target is a division or business unit of a larger company, but is not a subsidiary; or
• the target is financially distressed or insolvent.

1.4 What specific considerations should be borne in mind where the sale is structured as an auction process?

In Ghana, the official liquidator of an insolvent target company is permitted to sell the company's property and assets by public auction. The auction sales must be undertaken in accordance with the Auction Sales Act, 1989 (PNDCL 230) (as amended). The Act requires the auctioneer to give at least seven days' notice to the District Chief Executive of the area where the auction will take place.⁷ The notice must specify:

• the location and time of the auction; and
• the catalogue of items to be sold.

The notice must also be circulated in the district prior to the scheduled date of the auction.

It is important to note that where the sale⁸:

1. constitutes a disposition of the company's assets; or
2. is likely to have the effect of the company incurring liabilities or obligations:

with a value exceeding 75% of the value of the company's assets immediately before the sale, then it will be considered a major transaction. In such cases, by law, prior approval, or completion contingent upon approval, by a special resolution of the company is required. Parties must be mindful of this when conducting due diligence in respect of the transaction.

2 Initial steps

2.1 What agreements are typically entered into during the initial preparatory stage of a private M&A transaction?

• Non-Disclosure Agreement / Confidentiality Agreement⁹: This protects confidential information shared or obtained to facilitate or during the transaction process and prevents its unauthorised use or disclosure.
• Letter of Intent / Term Sheet: This outlines the key terms of the proposed acquisition that the parties have agreed to in principle. It is usually prepared before detailed due diligence or negotiations of the final transaction documents begin. The document is generally non-binding, except for specifically identified provisions relating to:
• • exclusivity of the negotiations;
  • allocation of transaction costs; and
  • governing law.
• Exclusivity Agreement: Prospective buyers often invest significant time and resources in pursuing an acquisition, and may seek exclusivity to prevent the seller from negotiating with other potential buyers. Exclusivity agreements may also ensure require the seller to cease discussions with third parties and to restrict the disclosure of information about the target business.

2.2 Which advisers and stakeholders are typically involved in the initial preparatory stage of a private M&A transaction?

At the preparatory stage, legal advisers, accountants, financial advisers and compliance analysts typically support both buyers and sellers. The involvement of directors and shareholders is also essential in initiating and authorising the transaction process.

2.3 Can the seller pay adviser costs or is this limited by rules against financial assistance or similar?

Yes, generally, the seller can pay the advisers' costs, and this is not restricted by rules relating to financial assistance.

However, it is important to consider any potential conflicts of interest. Where such issues exist, conflict waivers may potentially be explored.

3 Due diligence

3.1 What due diligence is typically conducted in private M&A transactions in your jurisdiction and how is it typically conducted?

• Commercial (or business) due diligence: Commercial due diligence considers broader issues such as:
• • the market in which the target operates;
  • its competitors;
  • the target's strengths and weaknesses;
  • key industry-specific issues affecting the target; and
  • operational matters such as production, sales and marketing, and research and development.
• Commercial due diligence aims to:
• • test the assumptions already made in the buyer's acquisition plan; and
  • identify the management action required by the buyer to take effective control of and reduce risk in the business once the deal has closed.
• Financial due diligence: Financial due diligence focuses on areas of the target's financial affairs that are material to the buyer's decision to enable the buyer to assess:
• • the financial risks and opportunities of the deal; and
  • whether, given these risks and opportunities, the target will fit well into the buyer's strategy.
• Financial due diligence may also help to quantify:
• • potential synergies;
  • the best acquisition and financing structure; and
  • the impact of the acquisition on the buyer's performance metrics.
• Legal due diligence: Legal due diligence focuses on establishing the key legal issues affecting the target business, including:
• • the legal obligations and liabilities that the buyer will potentially be acquiring; and
  • any legal risks inherent in the transaction.
• The key areas typically addressed in a legal due diligence review include:
• • the corporate structure of the target group;
  • the capacity of the seller;
  • historic corporate actions and transactions;
  • legal compliance and anti-bribery and corruption matters;
  • material litigation affecting the target;
  • material contracts and agreements the target is a party to;
  • title to the assets being acquired;
  • IP rights and IT issues;
  • employment and pensions matters; and
  • data protection.
  • ESG due diligence: ESG due diligence assesses non-financial risks that may affect valuation, regulatory exposure, or long-term sustainability, and typically includes:
  • environmental matters such as emissions compliance, waste management, resource efficiency, and environmental permit procured;
  • social factors including labour practices, employee health and safety, community impacts, and supply-chain standards; and
  • governance issues such as anti-corruption controls, data protection controls, whistle-blowing mechanisms, and board oversight structures.

3.2 What key concerns and considerations should participants in private M&A transactions bear in mind in relation to due diligence?

It is important to consider key areas such as:

• the financial history and position of the company;
• disputes;
• tax position;
• general compliance and licensing;
• corporate compliance;
• ESG compliance considerations;
• material contracts;
• property title; and
• intellectual property.

It is also important to recognise specific sector-related issues that may vary depending on the operations of the target.

3.3 What kind of scope in relation to environmental, social and governance matters is typical in private M&A transactions?

In modern private M&A transactions, environmental, social and governance (ESG) considerations have evolved into a core component of deal assessment and execution. ESG now features across the transaction lifecycle, from due diligence, valuation, and drafting of transaction documentation to post-closing integration.

1. ESG Due Diligence: ESG due diligence typically examines environmental compliance (such as emissions and resource use), social factors (such as labour practices, health and safety, and supply-chain standards), and governance matters (such as anti-corruption, data protection, and board oversight).
2. Strategic ESG Integration in Deal Planning and Valuation: ESG considerations shape deal strategy and valuation, with many acquirers adjusting pricing or walking away entirely when ESG red flags appear.
3. ESG in Transaction Documentation: ESG factors increasingly influence the drafting of share or asset purchase agreements. Buyers typically seek representations and warranties relating to environmental compliance, labour standards, anti-bribery laws, and data security.
4. Post-Closing ESG Integration: After completion, buyers, particularly private equity firms, frequently incorporate ESG into post-merger integration plans. This may involve rolling out group-wide ESG policies, establishing governance structures, implementing remediation plans, and adopting recognized sustainability reporting frameworks.

4 Corporate and regulatory approvals

4.1 What kinds of corporate and regulatory approvals must be obtained for a private M&A transaction in your jurisdiction?

Generally, the requisite Board, Shareholders' and Creditors' Resolutions approving the merger must be obtained.¹⁰ Additionally, the Board of Directors of the merging companies must sign Certificates of Conformity affirming compliance with requisite statutory provisions.¹¹ The requisite documents and resolutions must be duly filed with the Office of the Registrar of Companies.

Furthermore, if the target is in a regulated industry, the relevant regulators may need to approve a change of control or at least be notified of it. Some key regulators include:

• Banking: Prior approval from the Bank of Ghana (BoG) is required for any M&A transaction.¹² The BoG's approval process for private M&A transactions consists of three stages: pre-merger/acquisition consent, provisional approval, and final approval.¹³ If the necessary approvals are not obtained before completion, the BoG has the authority to annul the M&A.¹⁴
• Upstream Petroleum: The Petroleum (Exploration and Production) Act, 2016 (Act 919) provides for the notification of the sector minister where a merger or acquisition would result in the creation of a new company. Written approval of the minister for energy or the Petroleum Commission is needed for a change in ownership of a contractor or subcontractor, respectively, where the acquiring company gains a controlling interest or at least a 5% shareholding in the contractor or subcontractor.¹⁵
• Downstream Sector: The National Petroleum Authority Act, 2005 (Act 691), establishes the National Petroleum Authority to regulate, oversee and monitor activities in the petroleum downstream industry. Under Section 17 of the Act, a licensee shall not transfer a license to another person without prior approval.
• Mining: Under the Minerals and Mining Act, 2006 (Act 703), a mineral right or interest shall not be transferred without the prior written approval of the sector Minister.¹⁶ The acquisition of a stake in a mining company, which vests in a person (alone or with an associate(s) control of more than 20% of the voting power in a mining company/its holding company, needs the approval of the sector minister.¹⁷
• Gold trading: The Ghana Gold Board Act, 2025 (Act 1140) establishes the Gold Board to oversee, monitor and undertake the buying, selling and export of gold and other precious minerals, and promote value addition to the gold and other precious minerals. Under Section 26, a person shall not engage in a business or a related activity in the gold trading and marketing industry unless that person has been granted a licence by the Gold Board. A licensee shall not transfer a license to another person without prior approval of the Gold Board.¹⁸ Further, a gold service provider shall not enter into an agreement or arrangement for the amalgamation or merger of the business of the gold service provider with another gold service provider unless approved by the Gold Board.¹⁹
• Energy: The Energy Commission Act, 1997 (Act 541), establishes the Energy Commission to regulate, manage, develop and utilise energy resources; and grant licences for the transmission, wholesale supply, distribution and sale of electricity and natural gas. Under Section 16 of the Act, a licensee shall not transfer a license to another person without prior approval.
• Fisheries: Fishing crafts operating in Ghana's coastal waters and rivers in connection with any fishing activity must obtain a licence for their activities.²⁰ These licences are not transferable without the permission of the Fisheries Commission.²¹ Consequently, where a merger or an acquisition leads to the formation of a new company, a licence granted to a fishing vessel cannot be transferred to the new company unless permission has been obtained.
• Telecommunication: Under the Electronic Communications Act, 2008 (Act 775), the National Communications Authority must approve the transfer of shares in a licensee company if the transfer would result in a change of control of that company and cause it to breach licence terms relating to its ownership structure.²²
• Insurance: In the insurance sector, the acquisition or sale of a significant interest in an insurance company requires the prior written approval of the National Insurance Commission.²³

4.2 Do any foreign ownership restrictions apply in your jurisdiction?

Foreign-owned companies must comply with minimum capital requirements to do business in Ghana²⁴ and must also take steps to register with the Ghana Investment Promotion Centre (GIPC).²⁵

Where the sector of the target is regulated, the approval of the regulator may be required, particularly where local content and/or foreign participation restrictions apply. For instance, the Bank of Ghana may impose a cap on ownership percentages or limitations on individuals who may acquire stakes in regulated financial institutions.²⁶ Further, for some operations like gold trading, foreign ownership is totally restricted and licences are only granted to Ghanaian citizens or wholly owned Ghanaian companies.²⁷

Regarding asset acquisition, certain limitations apply to the duration for which foreigners may hold an interest in land. Although foreigners are permitted to acquire land interests in Ghana, such interests are restricted to leasehold terms not exceeding 50 years at a time.²⁸ Under the Lands Act, 2020 (Act 1036), a company or corporate entity is considered non-citizen if more than forty percent of its equity shares or ownership is held by non-citizens.²⁹

4.3 What other key concerns and considerations should participants in private M&A transactions bear in mind in relation to consents and approvals?

If the M&A involves payments or financing in foreign currency to or from Ghana, whether between a resident and a non-resident, or between non-residents, such payments must be made through a local bank via transfer.³⁰ In some instances, where the BoG has reason to believe that an offence in contravention of the Foreign Exchange Act is likely to be committed or has been committed, the BoG may require a bank to obtain permission prior to the execution of any payment.³¹

Additionally, the government of Ghana has the responsibility to safeguard the country's assets and ensure the well-being of all citizens.³² Consequently, any M&A transactions that threaten national security or are not in the country's best interests may be restricted. Given this, certain state institutions have regulations that prevent M&A activities that could prejudice the public interest:

• Banking Sector: The BoG has the authority to disapprove a proposed transfer of shares to maintain the functioning and stability of the overall financial system.³³ It also considers whether the proposed M&A transaction could adversely affect the convenience and needs of the community served, as well as the target company's effectiveness in combating money laundering and terrorist financing.³⁴ The BoG may approve a proposed M&A transaction if it is not detrimental to the interests of depositors and other creditors.³⁵
• Mining Sector: The Minister may block the acquisition of a controlling interest in a mining company if it is deemed to prejudice the public interest.³⁶
• Insurance Sector: The NIC may disapprove a proposed significant change in ownership or control if it is likely to be prejudicial to policyholders or poses a significant systemic risk.³⁷

Some other key regulatory issues relevant to private M&A transactions include:

• minimum capital requirements;
• tax rules regarding the realisation of assets;
• thin capitalisation rules;
• local participation rules;
• local content requirements; and
• a prohibition on equity investments in some sectors, such as:
• • retail pharmaceuticals; and
  • segments of the downstream oil and gas sector.

5 Transaction documents

5.1 What documents are typically prepared for a private M&A transaction and who generally drafts them?

The documents typically prepared for a private M&A transaction will depend on the type of transaction.

Some documents in equity/share purchases include share purchase agreements, Deeds of Transfer, merger agreements, merger proposals, Board and Shareholder Resolutions, Director Certificates etc, depending on the transaction structure.³⁸ In an asset purchase arrangement, the primary documents may include sale and purchase agreements. Where the assets include landed property, contracts for sale and sale indentures may be necessary. In a merger transaction, the main documents may be a merger agreement and a merger proposal.³⁹

The relevant documents are usually prepared by the legal advisors for the transaction.

5.2 What key matters are covered in these documents?

Below are some of the key matters covered in these documents.

• conditions;
• consideration and payment terms;
• shares or assets being transferred;
• the nature of the interests, rights, restrictions, and obligations of the parties;
• condition precedents and condition subsequent
• representations and warranties;
• indemnifications;
• non-compete clauses;
• dispute resolution and governing law; and
• terminations.

5.3 On what basis is it decided which law will govern the relevant transaction documents?

The following are some of the key factors that may influence the selection of the governing law for transaction documents:

• A party may select a particular governing law for various non-legal reasons, such as:
• • The familiarity of the market where the transaction takes place with the chosen law;
  • The availability of expert legal counsel in the relevant jurisdiction to advise on the transaction; and
  • The convenience of choosing a governing law that the party is familiar with.
• Legal considerations include the certainty and predictability in contract interpretation. Several factors may be considered when evaluating the clarity and consistency of contract interpretation, including:
• • The stability of the jurisdiction where the governing law applies;
  • The capacity of the governing law to address complex concepts and structures commonly found in certain M&A transactions; and
  • The governing law's alignment with established financial market practices and commercial requirements.
• Consistency between the governing law clause and the jurisdiction clause. Parties often find it advantageous if the courts designated to resolve disputes arising from the transaction are well-versed in the governing law.

6 Representations and warranties

6.1 What representations and warranties are typically included in the transaction documents and what do they typically cover?

In M&A transactions, the parties provide representations and warranties which typically cover the following areas:

• the authority to buy/sell;
• the accuracy of financial records and accounts, and confirmation that they have been prepared in accordance with the applicable laws or international standards;
• the accuracy of corporate information, including details on the capital, shareholding structure, company officers, statutory books and registers;
• possession of requisite licences or permits for conduct of business operations;
• compliance with legal requirements and governmental authorisations, and consents to enter into the transaction;
• the solvency of the seller;
• the ownership of IP rights;
• assignable contracts;
• material agreements and related person transactions;
• no litigation/legal proceedings;
• anti-bribery and corruption;
• the fulfilment of all tax liabilities;
• environmental compliance;
• labour and health and safety standards;
• sustainability, anti-corruption, and ethical conduct standards; and
• no material adverse changes.

6.2 What are the typical circumstances in which the buyer may seek a specific indemnity in the transaction documentation?

Buyers may seek specific indemnities for representations made on matters that could potentially affect the operation, running or value of the transaction. Indemnities in M&A transactions are typically backed by the promoter. Specific indemnities are most appropriate to cover specific risks which are of particular concern to the buyer. The indemnities may cover matters such as:

• the existence of any assets or liabilities;
• the title to any assets;
• the accuracy of any financial information;
• the legality of the transaction; and
• any restrictions on the transfer of ownership.

6.3 What remedies are available in case of breach and what is the statutory timeframe for bringing a claim? How do these timeframes differ from the market standard position in your jurisdiction?

In practice, the main remedy for a breach of a warranty in an acquisition agreement is damages. However, other remedies can be explicitly provided for in the contract and can include:

• the replacement of a defective asset;
• specific performance; or
• a refund.

Additionally, a warranty can limit or exclude certain types of damage claims, or a schedule of liquidated damages may be specified.

Normally, the acquisition agreement will expressly state the survival period for a warranty. In the absence of an express provision, the applicable sections of the relevant statute will apply to any claim made by either party.

In Ghana, under Section 4 of the Limitations Act, 1972 (NRCD 54), the statutory period for bringing an action relating to contracts and torts is within six years of the cause of action accruing. In practice, the timeframe for obtaining a court order for such matters is 18 to 24 months.

6.4 What limitations to liability under the transaction documents (including for representations, warranties and specific indemnities) typically apply?

Some of the limitations on liabilities that may be typically provided for include the following:

• De minimis amount: The de minimis amount specifies the minimum threshold that a single claim must exceed in order to become eligible for indemnification.
• Tipping basket: A tipping basket specifies the threshold that the aggregate amount of all claims must exceed before a party can bring any claim for indemnification. Once the threshold is exceeded, the indemnifying party will be liable for the entire amount of losses. Like the de minimis amount, baskets eliminate redress for relatively small claims.
• Deductible basket: A deductible basket specifies the threshold that the aggregate amount of all claims must exceed before a party can bring any claim for indemnification. However, once the threshold is exceeded, the indemnifying party will be liable only for losses that exceed the threshold amount. For example, if there is a GHS 1 million deductible and a party brings a claim for GHS 3 million, the indemnifying party will be responsible only for that portion of the claim exceeding the GHS 1 million deductible (ie, GHS 2 million).
• Indemnity cap: An indemnity cap limits the amount that an indemnifying party may be required to pay. The cap amount is generally calculated as a percentage of the purchase price, but may also be a specified amount.
• Liability cap: The liability cap clause defines an upper limit to the amount – referred to as the maximum liability limit or cap – to which the vendor is liable. In cases of deliberate intent, the cap does not apply, and the damage must be repaid in full.

6.5 What are the trends observed in respect of buyers seeking to obtain warranty and indemnity insurance in your jurisdiction?

Insurance companies do not typically provide warranty and indemnity insurance with respect to M&A transactions. There are no widespread instances of its use within the jurisdiction; however, it is possible for parties to consult with their preferred insurer to develop such products, since this is not expressly prohibited by law.

6.6 What is the usual approach taken in your jurisdiction to ensure that a seller has sufficient substance to meet any claims by a buyer?

A thorough due diligence investigation carried out on the seller may reveal the capacity of the seller to meet claims. However, some buyers may require the seller to take out indemnity insurance.

6.7 Do sellers in your jurisdiction often include restrictive covenants in the transaction documents? What timeframes are generally thought to be enforceable?

Non-compete covenants – also known as 'restraint of trade covenants' in Ghana – usually have a duration between two and five years. The right to work is constitutionally guaranteed under Article 24 of the 1992 Constitution. Accordingly, the courts in Ghana may deem unconscionable any agreement that seeks to perpetually restrain a person or entity from trade. The courts will usually uphold restraints of trade clauses provided they are reasonable, having regard to the peculiar facts of each case. Thus, such assessments are conducted by the court on a case-by-case basis.

6.8 Where there is a gap between signing and closing, is it common to include conditions to closing, such as no material adverse change (MAC) and bring-down of warranties?

Yes, it is typical to include such clauses to protect the interests of the buyer. In such cases, the agreement will include certain pre-closing covenants which may be in the interests of either party.

The seller may insist on certain clauses – for example, that the buyer agree to obtain all applicable governmental and third-party approvals and consents. It may also include requirements for the buyer to secure financing for the purchase price.

There are other common positive and restrictive covenants for the seller, such as the following:

• The seller will continue to operate the business in the ordinary course – no significant actions will be taken without the buyer's prior consent;
• The seller promises to notify the buyer if any events might cause a material adverse change for the target, its business or its assets; and
• The seller agrees to provide the buyer with reasonable access to the business. This may include the seller's premises, personnel and assets to assist the buyer in conducting due diligence on the target.

6.9 What other conditions precedent are typically included in the transaction documents?

Conditions precedent that are typically included in M&A transaction documents include the following:

• Internal approvals for the M&A transaction: Parties may be required to provide evidence of approvals authorising the execution, delivery and performance of the sale and purchase agreement. Where the transaction constitutes a major transaction under the Companies Act, 2019 (Act 992), a special resolution may be required.
• Written approval from the competent authorities: In regulated industries – including the mining, petroleum, banking and insurance industries – the prior notification/consent of the relevant regulators may be required for M&A transactions. For any M&A transaction where the buyer is a foreign investor, a company may be obliged to register with the GIPC in order to operate the business with foreign participation.
• Tax clearance from the Ghana Revenue Authority and confirmation that there exists no financial obligations to any third parties: The seller commits that:
• • it is not hiding any tax obligations and/or financial obligations besides what is included in the sale and purchase agreement; and
  • as the case may be, it will pay any pending tax obligations and/or financial obligations before the buyer makes payment.
• Social Security and National Insurance Trust clearance. This is a confirmation that the company is compliant in relation to its pension payments and obligations to the Social Security and National Insurance Trust.
• Regularisation of company records and information, particularly at the Office of the Registrar of Companies, and ensuring that all mandatory filings have been completed.

7 Financing

7.1 What types of consideration are typically offered in private M&A transactions in your jurisdiction?

The main types of consideration used in private M&A transactions in Ghana include:

• Cash, which is the most common form of consideration;
• Shares; and
• Buyer loan notes.

7.2 What are the key differences and potential advantages and disadvantages of the various types of consideration?

Cash as consideration: The primary advantage of cash consideration is purchase price certainty. The seller receives the purchase price in cash and has no continuing exposure to the performance, risks, or synergies of the combined business post-completion.

However, buyers may need to take on additional debt to fund the transaction, increasing their liabilities. Cash payments may also reduce the buyer's liquidity or cash reserves. Additionally, tax consequences may reduce net earnings.

Shares as consideration: Share consideration eliminates the need for loan financing and is often preferred where the buyer lacks sufficient cash or is unable to raise additional funds from shareholders or third-party financiers.⁴⁰ Under equity consideration, the seller continues to hold an equity interest in the company and therefore retains exposure to both the risks and the potential upside of the target's future performance. A key drawback is the seller's exposure to fluctuations in the value of the consideration shares after completion.

Buyer loan notes: The buyer issues loan notes to the seller, representing a contractual promise to repay the amount owed. Sellers may prefer loan notes because their capital value is generally less volatile than shares. Loan notes also often have a fixed redemption date. Also, as creditors, the sellers would rank ahead of shareholders in an insolvency scenario.⁴¹

7.3 What factors commonly influence the choice of consideration?

Factors that typically influence the choice of consideration include:

• tax implications;
• regulatory requirements;
• prevailing market conditions; and
• business strategy.

7.4 How is the price mechanism typically agreed between the seller and the buyer? Is a locked-box structure or completion accounts structure more common?

The locked-box structure is more commonly used in practice, largely because of the filing requirements and pre-merger approvals that are involved. However, completion accounts structures may be adopted in transactions with strict timelines.

7.5 Is the price typically paid in full on closing or are deferred payment arrangements common?

Payment arrangements vary based on the parties' agreement. Deferred consideration or performance-based payments are increasingly desirable, particularly for private equity buyers. This is so because these arrangements reduce the need to have the full purchase price available at completion and help manage buyer cash-flow constraints.

7.6 Where a deferred payment/earn-out payment is used, what typical protections are sought by sellers (eg, post-completion veto rights)?

Sellers typically seek the following protections:

• Post-Completion veto rights or approval rights over material decisions that may affect the earn-out calculation or the value of the business.
• Access to financial information including periodic management accounts and audited financial statements during the earn-out period.
• Non-compete and non-solicitation obligations restricting the buyer's ability to undermine the business during the earn-out period.
• Operational or management input, to help ensure the business is run in a manner consistent with maximising the earn-out.
• Escrow arrangements for part or all of the deferred consideration.
• Security or collateral, particularly where the buyer's ability to meet future payment obligations is uncertain.

7.7 Do any rules on financial assistance apply in your jurisdiction, and what are their implications for private M&A transactions?

Generally, a company is prohibited from providing financial assistance, directly or indirectly, for the purchase of its own shares or the shares of its holding company.⁴²

Additional sector-specific restrictions apply in the banking and insurance industries:

• Banking sector: Banks or specialised deposit-taking institutions may not issue shares funded through loans from the same bank or specialised deposit-taking institution. as such, they cannot provide financial assistance for:
• • the purchase of their own shares; or
  • financing an M&A transaction to which they are a party.
• Insurance sector: Restrictions apply to share purchases and the advancement of loans, which may impact the provision of financial assistance in M&A transactions. Further, the prior regulatory approval is mandatory for such transactions.

For companies operating in regulated industries, financial assistance may be outrightly prohibited or may require prior approval from the industry-specific regulator. Such approvals or consents are usually at the discretion of the regulator(s).

7.8 What other key concerns and considerations should participants in private M&A transactions bear in mind from a financing perspective?

Key considerations include:

• Choice of source of financing.
• Risks associated with the financing, including:
• • risk of default on consideration payments;
  • interest rate fluctuations;
  • reduction in target's valuation; and
  • deteriorations in the target's financial performance.
• Financing terms for the M&A transaction, including:
• • applicable interest rates;
  • repayment schedules; and
  • covenants or other lender-imposed restrictions.
• Impact on the buyer's financial position, including increased leverage and potential effects on credit ratings, borrowing capacity, and overall financial health.
• Target valuation, including:
• • the need for thorough due diligence; and
  • a reliable valuation of the shares or assets being acquired.
• Tax implications of the chosen financing structure for both the buyer and the seller.

8 Deal process

8.1 How does the deal process typically unfold? What are the key milestones?

Specifically considering share purchases, the deal process is characterised by the following stages:

1. the preliminary agreements/ pre-merger stage;
   
   1. due diligence
   2. disclosures
2. the consents and approvals stage;
   
   1. regulatory approvals and consents
   2. corporate approvals and consents
3. the execution and acquisition stage;
4. the signing and closing stage; and
5. Final Compliance regularisation

In the preliminary stages, parties may execute Heads of Terms, Exclusivity Agreements, Non-Disclosure Agreements, and Non-Competition Agreements to safeguard their interests, allowing them to negotiate the terms of the M&A with ease of mind.

In a merger transaction, the deal process is initiated with the passage of a special resolution by the parties. After this, a merger proposal is drafted for approval. Subsequently, the merger agreement is prepared and signed, outlining the binding terms of the transaction. It is essential for the parties to obtain the necessary approvals from relevant regulators, if required; and file all relevant documents with the ORC. Upon completion of the process, a merger certificate will be issued to the merged entity.

8.2 What documents are typically signed on closing? How does this typically take place?

On closing, the parties to the transaction ensure that all conditions precedent to the completion of the M&A transaction have been duly performed. The parties then execute all relevant merger agreements and proceed to obtain a merger certificate from the ORC.

The following documents are required by the ORC to obtain a merger certificate:

• the merger proposal;
• a certificate signed by the directors of each transferor company, confirming that the merger has been approved in accordance with Act 992 and the constitution of the company;
• a certificate signed by the directors or proposed directors of the transferee company stating that no creditor will be prejudiced if the creditor claims to asset value ratio of the transferee company exceeds that of the transferor company;
• consent letters of the new directors and secretary of the merged entity; and
• a report regarding the fairness of the merger issued by an insolvency practitioner.

In an acquisition transaction, the documents executed by the parties at closing will depend on whether the acquisition is a share purchase or an asset purchase.

Share Purchase: both parties must execute and exchange the Share Purchase Agreement ("SPA")⁴³ or exchange the executed and stamped Deed of Transfer (share transfer instrument).⁴⁴ The buyer will also be issued a share certificate for the shares purchased.⁴⁵ Both the instrument and the share certificate will then be submitted for registration.⁴⁶

Asset Purchase: both parties must execute the Asset Purchase Agreement ("APA") or Asset Sale and Purchase Agreement ("ASPA"),⁴⁷ and the seller must deliver the documents required to transfer title to the assets to the buyer.⁴⁸ The specific documents necessary to perfect the transfer of assets will depend on the nature of the assets being transferred. Additionally, other documents that must be executed at the completion stage include novation and assignment agreements related to any transferred third-party contracts and services.

8.3 In case of a share deal, what is the process for transferring title to shares to the buyer?

In a share acquisition transaction, it is essential to verify that the seller's constitution does not impose any restrictions on the transfer of shares. Resolutions must be passed to approve the transaction. Following this:

• the value of the shares must be determined and agreed upon by the parties;
• the share purchase agreement or deed of transfer must be drafted and finalised;
• the share certificate must be issued; and
• the relevant changes must be filed at the ORC.

8.4 Post-closing, can the seller and/or its advisers be held liable for misleading statements, misrepresentation, omissions or similar?

Yes, if the seller makes misleading statements, misrepresentations, or omissions during the transaction, and the buyer relies on these statements to their detriment, the buyer may seek remedies under the agreement.

Additionally, if the seller's advisers are negligent in making or omitting statements or representations, and the buyer relies on these statements to their detriment, the advisers could be liable for negligent misstatement.⁴⁹

Any misleading statements will also constitute a breach that triggers the warranties in the contract, entitling the buyer to sue for damages.⁵⁰

8.5 What are the typical post-closing steps that need to be taken into consideration?

Post-closing, it is crucial for the relevant parties to provide the necessary notices to the relevant regulatory agencies regarding the change in structure and particulars of the merged or acquired entity.

The parties must also take steps to update the bank mandate of the merged or acquired entity to align with the agreed terms of the M&A transaction. Share certificates should be issued to the new shareholders,⁵¹ and relevant filings must be made at the ORC to formally register these changes. The company register of the merged or acquired entity must also be updated to reflect the changes resulting from the M&A transaction, including the names of new members⁵² and any changes to key officers as required by Act 992. Additionally, the accounts of the merged or acquired entity must be transferred to the new owner, and customers of the acquired entity should be notified of the change in ownership.

9 Competition

9.1 What competition rules apply to private M&A transactions in your jurisdiction?

Ghana has no comprehensive competition legislation; rather, a number of laws have been passed which have an impact on competition and certain sector-specific laws contain provisions akin to competition laws. For instance:

• The Protection Against Unfair Competition Act, 2000 (Act 589) prohibits activities that cause confusion about another person's business or its operations, damage their goodwill or reputation, or mislead the public. However, Act 589 has significant limitations, as it does not include provisions that:
• • prohibit anti-competitive agreements, abuse of a dominant market position, merger regulation, or cartels and price-fixing; or
  • protect consumer interests.
• Section 43(3) of the National Petroleum Authority Act, 2005 (Act 691) prohibits an agreement between or combination of companies in the downstream petroleum industry if it establishes a monopoly over a particular product or market in the downstream petroleum industry.
• Section 52 of the Insurance Act, 2021 (Act 1061) stipulates that a person cannot become a significant owner in an insurance company without first obtaining the written approval of the NIC. The licensed insurer or reinsurer must submit an application for approval on behalf of the individual seeking to acquire the shares. Furthermore, an insurer cannot issue or allot any shares or consent to any reorganization of its share capital without the prior written approval of the NIC if such actions would result in a person acquiring a significant interest in the insurance business or increasing or decreasing their existing interest.
• Under Section 49(2) of the Banks and Specialized Deposit-Taking Institutions Act, 2016 (Act 930), no person shall, without prior written approval from the Bank of Ghana:
• • Acquire shares in a bank, specialized deposit-taking institution, or financial holding company, either directly or indirectly, alone or in concert with others, if the acquisition, combined with any existing holdings, results in a significant shareholding;
  • Increase their ownership interest in a bank, specialized deposit-taking institution, or financial holding company, either directly or indirectly, alone or in concert with others, if the total ownership exceeds one of the regulatory thresholds;
  • Sell or transfer shares in a bank, specialized deposit-taking institution, or financial holding company to another person, either directly or indirectly, alone or in concert with others, if the sale causes the shareholding to fall below a regulatory threshold or cease being significant, in the case of a significant shareholder; or
  • Enter into any agreement or arrangement that would lead to a change in the control of a financial holding company.

9.2 What key concerns and considerations should participants in private M&A transactions bear in mind from a competition perspective?

There is currently no competition authority that regulates competition in Ghana. Competition regulations are primarily enforced within individual sectors by the respective regulators. Participants must therefore pay attention to sector-specific laws that contain provisions akin to competition laws as well as directives that may be issued by regulators to avoid regulatory pitfalls.

Ghana is in the process of passing the Competition and Fair Trade Practices Bill, 2023. This legislation is set to introduce measures aimed at protecting consumers from unfair trade practices and fostering a competitive market environment. The Bill proposes the creation of the Competition Commission of Ghana, which will be responsible for monitoring and regulating trading practices, ensuring fairness, and preventing restrictive trade practices across the country.

10 Employment

10.1 What employee consultation rules apply to private M&A transactions in your jurisdiction?

While there are no specific employee consultation rules that apply to private M&A transactions, the Labour Act, 2003 (Act 651) ("the Labour Act") and its accompanying regulations which govern employment-related matters in Ghana are instructive.

Under Section 65(1) of the Labour Act, where an employer contemplates the introduction of major changes in production, programme, organisation, structure or technology of a business that are likely to entail terminations of employment of workers, the employer must consult the trade union concerned on measures to be taken:

• to avert or minimise the termination; and
• to mitigate the adverse effects of any terminations on the workers concerned, such as finding alternative employment.

The effect of M&As often lead to significant changes in the structure, organization, or programmes of an entity. An employer who anticipates that these changes might result in job losses, is required to consult with the trade union. The focus of this consultation is to take steps to minimize layoffs and mitigate the negative impact on affected workers and not the substance of the M&A.

10.2 What transfer rules apply to private M&A transactions in your jurisdiction?

It is not set in stone that the employees of an acquired entity will automatically be transferred to the acquiring entity or, in the case of a merger, that the employees of the parties to the transaction will be retained as employees of the merged entity. Section 65(1) of the Labour Act acknowledges that during a merger or acquisition, employees may lose their jobs.

Whether an employee will be transferred or retained depends on:

• the terms of the existing employment contract; and
• the terms of the transaction.

To uphold the concept of party autonomy, the new entity which is the product of the M&A transaction must enter into new employment contracts with the employees of the transacting entities. These new employment contracts must spell out the terms and conditions that will govern the new employment relationship that will exist following an agreement between the parties.

In cases where an employment contract is assigned due to a private M&A transaction, the employee's consent and endorsement of the Chief Labour Office are necessary for the agreement to be valid, as stated in Regulation 30(1) of the Labour Regulations, 2007 (LI 1833).

Employees who are not retained or do not provide their consent shall be entitled to redundancy compensation as specified in Section 65(2) of the Labour Act.

10.3 What other protections do employees enjoy in the case of a private M&A transaction in your jurisdiction?

Under Section 65(2) of the Labour Act, employees are entitled to compensation known as redundancy pay if:

• the company closes down or undergoes an arrangement or amalgamation;
• the closedown, arrangement or amalgamation causes a severance of the legal employment relationship that existed immediately before the closedown, arrangement or amalgamation; and
• as a result of and in addition to the severance, the employee becomes unemployed or suffers any diminution in the terms and conditions of employment.

Additionally, employees are entitled to fully paid leave for any calendar year of continuous service. Changes in ownership or management cannot be a basis for the interruption of continuous service, allowing employees to retain their leave benefits pursuant to Section 21 of the Labour Act.

Furthermore, the assignment of employment contracts requires the consent of employees and endorsement of the Chief Labour Officer pursuant to Regulation 30(1) of the LI 1833.

10.4 What is the impact of a private M&A transaction on any pension scheme of the seller?

Pension schemes in Ghana are governed by the National Pensions Act, 2008 (Act 766).

In the case of the outright acquisition of an entity by the buyer, the seller's obligation to make regular contributions to the Social Security and National Insurance Trust (SSNIT) on behalf of its employees under Act 766 will be relinquished after the employment relationship between the employees and the seller is terminated.

Where the buyer has acquired the seller, the seller is no longer an employer of the employees. Where the buyer retains the employees of the seller with their consent, the buyer – as the new employer – is required by law to notify SSNIT and have a pension scheme for its employees. As such, the buyer may choose either:

• to maintain the exact scheme of the seller; or
• to adopt it with slight variations.

In the instance where the M&A leads to the creation of an entirely new establishment, the new establishment will be required to register with SSNIT and subsequently register all employees in accordance with Act 766.

10.5 What considerations should be made to ensure there are no concerns over the potential misclassification of employee status for any employee, worker, director, contractor or consultant of the target?

The buyer may prevent the potential misclassification of employee status by conducting due diligence on the target. This will involve a review of all employment contracts and company policies and manuals vis-à-vis the applicable labour laws of Ghana. This will help ensure that the classifications (eg, employee, independent contractor, consultant) are appropriate based on:

• the nature of the work; and
• the definitions within the applicable laws.

Considerations as to the length of continuous employment and the nature of instruction and control that the employer has over the employee are extremely relevant, irrespective of whatever classification has been given to the employee in the employment contract. For example, per Section 75 of the Labour Act, a temporary worker who is employed by the same employer for a continuous period of six months or more must be treated as a permanent worker.

10.6 What other key concerns and considerations should participants in private M&A transactions bear in mind from an employment perspective?

Participants in private M&A transactions should carefully review existing employee contracts and the Labour Act to ensure compliance with legal provisions. Additionally, they must consider any sector-specific employment laws that may apply to their activities to address concerns effectively during the transaction.

For instance, the Mining and Minerals Act⁵³ mandates that mining lease holders submit detailed programs for the recruitment and training of Ghanaian personnel, ensuring compliance with localization policies.

Reviewing existing contracts, labour laws, and sector-specific employment legislation is vital for participants in an M&A as it ensures legal compliance, identifies potential liabilities, and aids in effective integration planning. Ultimately, this will help mitigate risks associated with regulatory non-compliance and allow for a clearer assessment of employment obligations.

11 Data protection

11.1 What key data protection rules apply to private M&A transactions in your jurisdiction?

In Ghana, the primary legislation governing data protection is the Data Protection Act, 2012 (Act 843), which was enacted to safeguard personal data and privacy in line with the 1992 Constitution. The Act regulates the collection, use and storage of personal data and applies to all organisations that process personal data. The Data Protection Commission serves as the regulatory body responsible for enforcing compliance with the Act.⁵⁴

Stakeholders involved in M&A transactions must ensure that any information exchanged that contains personal data complies with Act 843. This includes protecting the personal data of third parties such as employees, suppliers and customers.

Businesses must adhere to key data protection principles, including:

• Informed Consent⁵⁵: Companies must obtain explicit, informed consent from data subjects before collecting and processing their personal data.
• Data Minimality⁵⁶: Only data that is necessary for a clearly defined and specific purpose may be collected in order to limit the amount of personal data that is stored and the duration for which it is retained to achieve the purpose of collection.
• Data Security Measures⁵⁷: Appropriate data security measures must be implemented to protect personal data. Compliance with regulatory guidelines and the adoption of preventative security practices help minimise the risk of data breaches or cyberattacks.

Personal data may only be processed:

• lawfully;
• in good faith; and
• in a fair and proportionate manner.

The relevant test remains whether the receiving party needs to know the information at a particular stage of the transaction. To safeguard trade secrets, IP rights and sensitive information which are worth protecting from disclosure, parties typically execute non-disclosure agreements.

Under Section 92 of the Evidence Act, 1975, confidential information may be disclosed pursuant to a court order. In the event of a breach, an injunction can be sought to prevent further disclosure.⁵⁸ The injunctive relief may be obtained in addition to the award of damages by a court.⁵⁹

Following completion of a merger, parties must ensure that any required registration as a data controller,⁶⁰ notifications of changes in registered particulars⁶¹ on the Data Protection Register, are filed with the Data Protection Commission.

It is also important to note that the Data Protection Bill, 2025 (the "Bill"), which is intended to repeal and replace Act 843, was introduced in the second half of 2025. The Bill imposes more stringent compliance obligations, expands the rights of data subjects, and widens the categories of entities considered data controllers.

Key proposed changes include:

• a mandatory seventy-two-hour reporting window for the notification of data breaches upon discovery;
• significantly heightened penalties for non-compliance, including fines of up to 100,000 penalty units (equivalent to GHS 1,200,000.00); and
• the establishment of the Data Protection Authority as the sector regulator, with powers to investigate breaches, issue enforcement notices, and impose penalties.

Once enacted, the Bill will significantly modernise Ghana's data protection regime and create a more robust framework for the governance and protection of personal data.

11.2 What other key concerns and considerations should participants in private M&A transactions bear in mind from a data protection perspective?

Participants in private M&A transactions should:

• identify and assess potential data protection risks and liabilities, particularly during due diligence; and
• ensure that the transaction documents include appropriate data protection representation, warranties and indemnities to allocate risk effectively.

Additionally, parties should consider whether the transaction involves the cross-border transfer of personal data and ensure that adequate safeguards and data security measures are implemented in accordance with applicable laws and international best practices.

12 Environment

12.1 Who bears liability for the clean-up of contaminated sites? How is liability apportioned as between the buyer and the seller in case of private M&A transactions?

There is a constitutional duty to protect and safeguard the environment under Article 41(k) of the Constitution of Ghana, 1992.

The primary legislation on the protection of the environment in Ghana is the Environmental Protection Act, 2025 (Act 1124), which imposes liability for environmental contamination on undertakings or entities, with the Environmental Protection Authority (EPA) as the regulatory body.

Pursuant to Section 35(2) of Act 1124, the EPA may serve an enforcement notice on the person responsible for a business where the activities of the business pose a serious threat to the environment or public health. The notice requires the person responsible to take certain steps to prevent or stop the activities. Non-compliance with an enforcement notice attracts an administrative penalty of GHS 12,000 for small-scale undertakings and GHS 60,000 for large scale undertakings. (Section 35(4), 13th Schedule to Act 1124). Failure to pay the administrative penalty is an offence punishable with a minimum penalty of GHS 60,000 and a maximum penalty of GHS 180,000 or imprisonment for a minimum and maximum term of five and ten years, respectively. (Section 35(5))

In accordance with the concept of party autonomy, the parties to the M&A transaction usually spell out their individual obligations in respect of ensuring that contaminated sites are cleared up, barring the imposition of those duties on either party by any statute. Where there are no expressly stated obligations, it is usually the party that may incur a greater liability for contamination that has the greater burden of cleaning up the contaminated sites.

For instance, within the upstream petroleum sector, pursuant to Sections 83 and 84 of the Petroleum (Exploration and Production) Act of 2016, a licensee or contractor is strictly liable for any pollution damage caused by or resulting from petroleum activities. Further, where the pollution damage was caused by unauthorised activity, the person who conducted the petroleum activity and any other person who took part in the petroleum activity and knew or ought to have known that the activity was conducted without authorisation will be strictly liable.

12.2 What other key concerns and considerations should participants in private M&A transactions bear in mind from an environmental perspective?

Where the M&A transaction may have adverse environmental implications, the participants must acquire a permit before they commence their activities per the Environmental Assessment Regulations, 1999 (LI 652), as amended.

A person cannot undertake some businesses in sectors such as agriculture, mining, manufacturing, wholesale trade, accommodation and food and beverages without an environmental permit.⁶² A permit can only be issued following an environmental impact assessment.⁶³

Consideration should also be given to:

• the potential basis for revocation or suspension of an environmental permit⁶⁴; and
• the duties of permit holders – for example, the submission of an annual environmental report to the EPA every 12 months.⁶⁵

The EPA should be informed if:

• the M&A transaction will result in the creation of a new company; or
• the transferor company has acquired all the relevant permits and reports.

Additionally, participants must take note of the various sector-specific laws of the industries within which they operate to confirm whether there is a need to acquire any specific environmental permits before they commence their activities. For example, for participants in the mining sector, the holder of a mineral right must obtain the necessary approvals and permits from the Forestry Commission and the EPA for the protection of natural resources, public health and the environment prior to undertaking activities or operations under a mineral right in accordance with Section 18 of the Minerals and Mining Act, 2006.

Again, participants can also:

• assess the target's environmental compliance and liabilities;
• evaluate the potential environmental risks and liabilities associated with the transaction; and
• incorporate environmental representations and warranties into the transaction document.

13 Tax

13.1 What taxes are payable on private M&A transactions in your jurisdiction? Do any exemptions apply?

The Income Tax Act, 2015 (Act 896) (as amended) regulates Ghana's tax regime. The tax treatment of the realisation of assets as a result of a change in ownership of an entity through sale, acquisition, merger, amalgamation or reorganisation is provided for under Sections 38(2), 47 and 62 of Act 896.

For an outright sale or acquisition, any realisation that results from the transaction is subject to tax. Where a gain or profit is made, the amount realised will be added to the income and taxed appropriately. However, if there is a loss, the quantum of the loss may be carried forward.

In the case of a merger, a gain on the realisation of an asset that accrues to, or is derived by, a company will be either exempt from or subject to tax depending on the ownership of the asset. The gain is:

• exempt from tax where there is a continuity of at least 50% of the underlying ownership in the asset; and
• subject to tax where there is a continuity of less than 50% of underlying ownership in the asset.

A realisation of assets and liabilities is deemed to have taken place where, within three years, there is a change in the share structure of an entity by more than 50% under Section 62 of Act 896. Tax laws relating to the disposal of assets and liabilities will then apply.

In a transaction which involves the transfer of shares, the company is exempt from stamp duty. However, Schedule 1 of the Stamp Duty Act imposes specific stamp duty rates on the conveyance or transfer of the sale of property.

Where the chargeable income of an individual includes a gain from the realisation of an investment asset not charged elsewhere, the individual can elect that the gain from the realisation of the investment asset be taxed at 15%, as outlined in paragraph 3(a) of the First Schedule to the Income Tax Act.

13.2 What other strategies are available to participants in a private M&A transaction to minimise their tax exposure?

Under Section 47 of the Income Tax Act, a change in underlying ownership by more than 50% may trigger capital gains tax on the realisation of assets, unless there is continuity of at least 50% of the underlying ownership in the asset. This is an important consideration when structuring private M&A transactions.

13.3 Is tax consolidation of corporate groups permitted in your jurisdiction? Can group companies transfer losses between each other for tax purposes?

Currently, there are no tax consolidation provisions in Ghana's tax regime. Each company is a separate legal entity under Ghanaian law and, as such, is categorised and taxed differently.

13.4 What other key concerns and considerations should participants in private M&A transactions bear in mind from a tax perspective?

Where a merger is structured as a share transfer, stamp duty is not payable at the Companies Registry for the registration of the share transfer. Furthermore, instruments related to the transfer of shares are specifically exempt from stamp duty under the First Schedule of the Stamp Duty Act, 2005 (Act 689) (As amended). Therefore, if the merger involves the acquisition of shares, generally no stamp duty is applicable on the share transfer documentation in Ghana, making this a potentially tax-efficient structure for mergers.

If a merger involves the transfer of the underlying assets and liabilities of a business, the sale of assets that are taxable is subject to Value Added Tax (VAT). However, a notable exemption applies to asset transfers if the transaction qualifies as a Transfer Of a Going Concern (TOGC). A transfer qualifies as a TOGC where:

• The business is an active, income-generating activity capable of operating without interruption after the transfer.
• The transfer involves the entire taxable activity (or a portion that can operate as a going concern) of the supplier.⁶⁶

If the conditions for TOGC are met, the transaction can be treated as outside the scope of VAT or zero-rated.⁶⁷

Additionally, it must be noted that withholding tax is payable on any consideration paid to another person in respect of the realisation of an asset or liability where the payment has a source in the country.⁶⁸

Furthermore, under Section 47 of the Income Tax Act, the gains on the realisation of an asset accruing to or derived by a company arising from the amalgamation, reorganisation or merger of a company are exempt from tax where there is continuity of at least 50% of the underlying ownership in the asset. This is a pointer for structuring deals to avoid paying taxes on the realisation event.

14 Trends and predictions

14.1 How would you describe the current M&A landscape and prevailing trends in your jurisdiction? What significant deals took place in the last 12 months?

Over the past year, Ghana has experienced notable economic growth and increased stability, driven in part by the stabilisation of the Cedi and improved control of inflation.⁶⁹ This economic upswing has contributed to higher revenues for businesses, renewed investor confidence, and greater access to capital. These favourable conditions have, in turn, led to an increase in M&A activity as companies pursue strategic acquisitions to support their expansion efforts.⁷⁰ Notable transactions completed in the past year include:

• Engineers & Planners Company Limited completed its US$100 million acquisition of Azumah Resources Ghana in October 2025. This transaction gives E&P full ownership of the Black Volta and Sankofa gold mining projects, establishing the operation as the first wholly Ghanaian-owned large-scale gold mine.⁷¹
• In September 2025, EverCorp Industries Limited, a member of the emPLE Group, acquired 100% of the shares in Metropolitan Life Insurance Ghana Limited, 85% of the shares in Metropolitan Health Insurance Ghana Limited, and the full interest of Metropolitan Ghana Limited in Metropolitan Pensions Trust Ghana.⁷²
• In August 2025, Newmont Corporation completed the US$1 billion divestment of its Akyem Gold Mine to Zijin Mining Group. This transaction forms a key component of Newmont's broader portfolio-optimisation agenda and highlights emerging trends in the global gold-mining sector amid shifting gold-price movements.⁷³

14.2 Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?

It is projected that Ghana's economy will continue to grow in 2026, maintaining a favourable environment for existing businesses seeking to expand their operations and providing the confidence new investors need to make strategic investments through the acquisition of established enterprises.⁷⁴ Consequently, an increase in M&A transactions is expected in the coming year, as both existing businesses and new investors would seek to take advantage of the country's economic growth and stability to enhance returns and grow their investments.

Regarding legislative reforms, the proposed amendments to the Ghana Investment Promotion Centre Act, 2013 (Act 865), which seek to remove the minimum capital requirements for foreign participation in Ghanaian businesses and eliminate existing restrictions on foreign involvement in certain sectors, are expected to significantly increase foreign investment in Ghana.⁷⁵ It is reasonable to expect that new foreign investors may prefer to acquire existing businesses in order to benefit from the advantages that established operations offer over start-ups. Consequently, once these amendments are enacted, an increase in M&A transactions is anticipated within the next 12 months. However, it is anticipated that the Government will strengthen its foreign exchange regime in the coming year. This may impact payment arrangements in respect of such transactions.

Additionally, recent tax reforms, including the abolishing of the E-Levy, the COVID-19 Health Recovery Levy, the Emissions Levy, and the adjustments to VAT, are expected to ease the cost of conducting business in Ghana. These changes are expected to make the investment landscape more attractive to both domestic and foreign investors and help create a more enabling environment for M&A transactions.

Accordingly, it is anticipated that there will be a rise in M&A activity over the next year, driven by the combined effect of the favourable economic outlook and the legislative reforms aimed at promoting investment and reducing the cost of doing business in Ghana.

15 Tips and traps

15.1 What are your top tips for the smooth closing of private M&A transactions and what potential sticking points would you highlight?

• When conducting due diligence for an M&A transaction, it is essential for participants to consider key regulatory issues and sector-specific requirements to ensure full compliance. Some of the key sector-specific considerations include obtaining the necessary approvals from sector regulators, meeting sector-specific local participation and minimum capital requirements, compliance with sector-specific laws on employment, and complying with all applicable notification obligations.
• A foreign company seeking to acquire an equity stake in an existing Ghanaian company must comply with the applicable minimum capital requirements and other foreign participation obligations, as well as all sector-specific requirements relating to acquisitions.
• Although Ghana does not have a comprehensive competition regime or a centralised competition authority, sector regulators ensure compliance with competition rules within their respective sectors. It is therefore important to ensure that M&A transactions comply with competition requirements by appropriately engaging the relevant regulators, obtaining the necessary approvals, and adhering to any applicable notification obligations.

Footnotes

1. Companies Act, 2019 (Act 992), Section 383 (First Schedule)

2. Ibid, Section 244

3. Corporate Finance Institute: M&A Deal Structures ( https://corporatefinanceinstitute.com/resources/valuation/ma-acquisition-deal-structure/) accessed on 27th November 2025; Stock v Asset Purchase- Considerations for M&A ( https://www.trenam.com/stock-vs-asset-purchase-considerations-for-ma/ ) accessed on 27th November 2025

4. Ibid

5. Stamp Duty Act, 2005 (Act 689), Schedule 1

6.Stock v Asset Purchase- Considerations for M&A ( https://www.trenam.com/stock-vs-asset-purchase-considerations-for-ma/ ) accessed on 28th November 2025

7.Auction Sales Act, 1989 (PNDCL 230) (as amended), Section 12

8. Companies Act, 2019 (Act 992), Section 145

9. Practical Law: Key Documents for Acquiring a Private Company ( https://uk.practicallaw.thomsonreuters.com/w-034-9184?comp=pluk&transitionType=Default&contextData=%28sc.Default%29#co_anchor_a844033) accessed on 27th November 2025

10. Companies Act, 2019 (Act 992), Sections 243, 244, Sections 189(1)(b), 145 and 238

11. Ibid, Sections 243(2), 244(5), 245(e)

12. Banks and Specialised Deposit-Taking Institutions Act, 2016 (Act 930), Sections 49 and 52.

13. Bank of Ghana, Mergers and Acquisitions Directive, 2021 at p 10, available at https://www.bog.gov.gh/wp-content/uploads/2021/08/Mergers-and-Acquistions-Directive-Final-for-publication-05-08-2021-1.pdf last accessed 19th November 2025.

14. Banks and Specialised Deposit-Taking Institutions Act, 2016 (Act 930), Section 55(1)

15. Petroleum (Exploration and Production) Act, 2016 (Act 919), Section 15

16. Minerals and Mining Act, 2006 (Act 703), Section 14

17. Ibid, Sections 52 and 111

18. Ghana Gold Board Act, 2025 (Act 1140), Section 33

19. Ibid, Section 39

20. Fisheries Act, 2002 (Act 625), Section 46.

21. Ibid, Section 75.

22. Act 775, Sections 5 and 10

23. Insurance Act, 2021 (Act 1061), Sections 52 and 85

24. Ghana Investment Promotion Centre Act, 2013 (Act 865), Section 28

25. Ibid, Section 24

26. Banks and Specialised Deposit-Taking Institutions Act, 2016 (Act 930), Sections 51.

27. Ghana Gold Board Act, 2025 (Act 1140), Section 28

28. Constitution 1992, Article 266 (4); Lands Act, 2020 (Act 1036), Section 10(6)

29. Lands Act, 2020 (Act 1036), Section 10(10)

30. Foreign Exchange Act, 2006 (Act 723), Section 15

31. Ibid, Section 16(1)

32. The 1992 Constitution of Ghana, Article 35(2)

33. Banks and Specialised Deposit-Taking Institutions Act, 2016 (Act 930), Sections 3(1)(c), 50 and 54

34. Ibid, Section 54

35. Bank of Ghana, Mergers and Acquisitions Directive, 2021 at p 8, available at https://www.bog.gov.gh/wp-content/uploads/2021/08/Mergers-and-Acquistions-Directive-Final-for-publication-05-08-2021-1.pdf last accessed 19th November 2025

36. Minerals and Mining Act, 2006 (Act 703), Section 53

37. Insurance Act, 2021 (Act 1061), Section 53

38. F D Adadzi, Modern Principles of Company Law in Ghana (Revised edn, Ghana Publishing Company Ltd 2022) at p 985.

39. Companies Act, 2019 (Act 992), Section 242

40. Practical Law Corporate, Structuring the purchase price: acquisitions, Practical Law UK, https://uk.practicallaw.thomsonreuters.com/Document/I8827c9322dfa11e498db8b09b4f043e0/View/FullText.html?comp=pluk&transitionType=SearchItem&contextData=(sc.Search)&OWSessionId=50b4283a264d4affac2ff77fac8da865&skipAnonymous=true&firstPage=true#co_anchor_a853831 accessed on 28th November 2025

41. Ibid

42. Companies Act, 2019 (Act 992), Section 58(1)(c)

43. F D Adadzi, Modern Principles of Company Law in Ghana (Revised edn, Ghana Publishing Company Ltd 2022) at p 1023

44. Ibid, at p 1023

45. Companies Act, 2019 (Act 992), Section 55

46. Ibid, Section 101; F D Adadzi, Modern Principles of Company Law in Ghana (Revised edn, Ghana Publishing Company Ltd 2022) at p 1023

47. F D Adadzi, Modern Principles of Company Law in Ghana (Revised edn, Ghana Publishing Company Ltd 2022) at p 1022

48. F D Adadzi, Modern Principles of Company Law in Ghana (Revised edn, Ghana Publishing Company Ltd 2022) at p 1022

49. K Kumado, Introduction to the Law of Torts in Ghana (2nd edn, Black Mask Ltd 2019) at pp 212 and 217-218

50. C Dowuona-Hammond, The Law of Contract in Ghana (Frontiers Printing and Publishing Company 2011) at p 143

51. Companies Act, 2019 (Act 992), Section 55

52. Ibid, Section 33, 35 and 101

53. Minerals and Mining Act, 2006 (Act 703), Section 50(1)

54. Data Protection Act, 2012 (Act 843), Sections 2 and 3

55. Ibid, Sections 20, 23, 27, 35

56. Ibid, Section 22

57. Ibid, Sections 28 and 30

58. See Ibid, Section 31

59. Ibid, Section 43

60. Ibid, Section 46

61. Ibid, Section 55

62. Environmental Assessment Regulations, 1999 (LI 652), Regulation 1, First Schedule

63. Ibid, Regulation 3

64. Ibid, Regulation 26

65. Ibid, Regulation 25

66. Value Added Tax Regulations, 2016 (L.I. 2243), Regulation 8

67. Value Added Tax Act, 2013 (Act 870), Section 18(4); Value Added Tax Regulations, 2016 (L.I. 2243), Regulation 8

68. Income Tax Act, 2015 (Act 896), As amended, Section 115(1)

69. World Bank, "Ghana's Economy Shows Resilience amid a Challenging Environment", World Bank Group, 25 Aug. 2025, www.worldbank.org/en/news/press-release/2025/08/14/ghana-economy-shows-resilience-amid-a-challenging-environment

70. Vaughan, T., "The Impact of Economic Cycles on Acquisition Activity", MERGERS, 5 March 2025, www.mergers.co.uk/post/the-impact-of-economic-cycles-on-acquisition-activity Accessed 2 December 2025

71. Arthur, R., "$100million Deal Sealed: E&P Buys out Azumah Resources - Entity Now Wholly Ghanaian." Graphic Online, 20 October. 2025, www.graphic.com.gh/business/business-news/ghana-news-100-deal-sealed-e-p-buys-out-azumah-resources-entity-now-wholly-ghanaian.html Accessed 2 December 2025

72. Etefe, J., "Metropolitan Ghana Acquired in Strategic Deal with EmPLE", The Business & Financial Times, 15 September 2025, https://thebftonline.com/2025/09/15/metropolitan-ghana-acquired-in-strategic-deal-with-emple/ Accessed 2 December 2025

73. African Mining Market, "Newmont Finalises Its US$1 Billion Sale of the Akyem Gold Mine to Zijin Mining Group", African Mining Market, 4 August 2025, https://africanminingmarket.com/newmont-finalises-its-usd1-billion-sale-of-the-akyem-gold-mine-to-zijin-mining-group/23130/ . Accessed 3 December 2025

74. Embassy of the Republic of Ghana Beijin, China, "2026 Budget: Ghana's Economic Expansion and China Partnership Set to Outpace Emerging Markets", Ghana Embassy - Beijing, China, December 2025, https://beijing.mfa.gov.gh/2026-budget-ghanas-economic-expansion-and-china-partnership-set-to-outpace-emerging-markets/ Accessed 3 December 2025

75. Afriwise, "Foreign Investment in Ghana: Key Changes Proposed under the GIPC Amendment Bill, 2023." Afriwise.com, 2023, www.afriwise.com/blog/foreign-investment-in-ghana-key-changes-proposed-under-the-gipc-amendment-bill-2023

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