Business Law
Shareholders' Agreements in Tunisia
A shareholders' agreement organises the relationships between a company's shareholders, clarifies their commitments and anticipates situations that could threaten the company's stability. It is especially important in a fundraising round, an acquisition, a joint venture or when a foreign investor joins the capital. In Tunisia, drafting must take into account the Commercial Companies Code, the company's articles of association and the parties' economic objectives.
Shareholders' Agreements in TunisiaWhat is a shareholders' agreement?
A shareholders' agreement is a contract entered into by some or all shareholders to frame their relationships and define the rules applying to certain strategic decisions.
Unlike the articles of association, which organise the company's operation under the applicable legal framework, the agreement allows contractual commitments among its signatories. Its scope nonetheless depends on its content, the capacity of the parties and compliance with mandatory rules.
- ✓Shareholders' rights and obligations
- ✓Governance and decision-making rules
- ✓Conditions for transferring shares or equity interests
- ✓Mechanisms to protect minority shareholders
- ✓Entry and exit conditions for investors
- ✓Procedures for resolving disagreements
What is the legal framework for shareholders' agreements in Tunisia?
The legal framework rests notably on Law No. 2000-93 of 3 November 2000 promulgating the Commercial Companies Code, as amended.
Article 2 of the Code recognises the validity of agreements concluded between partners when they govern rights that are personal to them and are not contrary to the articles. This rule is an essential starting point for determining the content and scope of the agreement.
For companies making a public offering of securities, the Code also provides specific notification obligations for certain agreements containing preferential purchase or sale conditions for securities. Verifying the framework applicable at the date of signature is therefore essential.
- ✓Corporate form: applicable rules differ depending on whether the company is an LLC (SARL), a joint-stock company (SA) or another form
- ✓Consistency with the articles: the agreement's provisions must not contradict the articles or circumvent mandatory legal rules
- ✓Enforceability against third parties: a contractual commitment among signatories does not automatically produce the same effects vis-à-vis the company or third parties
- ✓Special rules: certain transactions may be subject to specific requirements, notably regarding capital markets, regulatory control or investment
Which clauses should a shareholders' agreement include?
The content of the agreement must match the shareholding structure, each shareholder's role and the risks specific to the business.
Governance and strategic decisions
The agreement can organise shareholder participation in important decisions and set out voting commitments compatible with applicable law.
Veto rights and enhanced majorities must be defined with precision to preserve the balance between investor protection and the company's ability to manage its affairs.
- ✓Approval of the budget and business plan
- ✓Significant investments and new financings
- ✓Capital increases
- ✓Appointment of managers, where applicable rules allow
- ✓Acquisitions, disposals of material assets or restructurings
Share transfers: pre-emption, approval and restrictions
A transfer of shares can profoundly alter the balance among shareholders. The agreement can therefore provide mechanisms to frame transfers.
A pre-emption clause grants, on the agreed terms, priority to certain shareholders when another wishes to sell their shares.
An approval (agrément) clause organises the procedure for accepting a new shareholder, subject to compatibility with the corporate form and applicable legal and statutory provisions.
Transfer restrictions may impose conditions, time limits or notification procedures. They must be drafted with sufficient precision to avoid uncertainty as to their application.
Protection of minority shareholders
A minority investor may hold a significant financial stake without controlling the company. The agreement can help protect their interests.
These protections must remain compatible with the powers of the corporate bodies and the legal rules on shareholder rights.
- ✓Contractually organised access to certain financial information
- ✓Consultation or participation rights on certain decisions
- ✓Protections against certain dilutive transactions, within the limits of applicable law
- ✓Transparency commitments and prevention of conflicts of interest
- ✓Exit arrangements in the event of a change of control
Exit clauses: tag-along and drag-along
Exit clauses are particularly important in private equity, growth capital and external growth transactions.
A tag-along (co-sale) clause allows, on the agreed terms, a shareholder to require that their shares also be acquired when another shareholder sells their stake to a third party.
A drag-along (forced co-sale) clause may allow a shareholder or group of shareholders meeting the agreed conditions to require the others to join a global sale.
These mechanisms must specify trigger thresholds, the price or price-determination rules, notification arrangements, required warranties and the completion timetable.
Managing deadlocks between shareholders
Disagreement over the budget, a capital increase or development strategy can paralyse decision-making. The agreement can establish a progressive deadlock-resolution procedure.
The aim is to limit the risk that a conflict among shareholders compromises the continuity of the business.
- ✓Negotiation between the shareholders' representatives
- ✓Intervention of a manager or designated third party, where appropriate
- ✓Mediation or another dispute-resolution mechanism
- ✓An exit mechanism or last-resort contractual solution, where its validity and terms allow
Confidentiality, non-compete and conflicts of interest
The agreement may also provide confidentiality commitments, rules for declaring conflicts of interest and, where legally permissible, restrictions on certain competing activities.
These clauses must be tailored to the parties' situation and proportionate to the objective pursued. Their duration, scope and conditions of enforcement must be carefully defined.
Shareholders' agreement and articles of association: what are the differences?
The two documents fulfil complementary functions but are not interchangeable.
The articles organise the company under applicable rules; the agreement frames the signatories' commitments. The parties concerned, the content (corporate organisation versus governance, transfers, protection and exit), amendment procedures and enforceability differ: the agreement is in principle limited to the parties, subject to applicable rules.
In practice, the articles and the agreement must be reviewed together. A clause poorly coordinated with the articles can reduce the intended effectiveness or create a risk of challenge.
Why is the agreement essential for foreign investors and private equity deals?
When an investor joins the capital of a Tunisian company, the negotiation is not only about the size of the stake. It also covers control, information, protection of the investment and exit conditions.
In a cross-border transaction, applicable law, competent jurisdiction or arbitration, and the compatibility of clauses with Tunisian mandatory rules must also be examined.
These checks are particularly important in M&A, equity investments and joint ventures between Tunisian and foreign partners.
- ✓Define the investor's governance rights
- ✓Frame future capital increases and dilution risks
- ✓Organise the circulation of shares
- ✓Determine the conditions of a future sale
- ✓Allocate contractual responsibilities between founders and investors
- ✓Provide dispute-resolution mechanisms
When should a shareholders' agreement be drafted?
It is preferable to negotiate the agreement before the parties' interests diverge or a major transaction is launched.
An existing agreement should also be reviewed when the capital structure, governance or economic objectives of the company evolve.
- ✓When incorporating a company among several founders
- ✓When a new investor joins the capital
- ✓In a fundraising round or private equity investment
- ✓In the context of an acquisition or joint venture
- ✓Upon a reorganisation of the shareholding
- ✓Before a disposal or investor exit
How does ANILF support the drafting of a shareholders' agreement in Tunisia?
ANILF advises companies, managers, investors and international partners on the legal structuring of relationships among shareholders.
For transactions involving foreign investors or several jurisdictions, support may also include coordination with international legal counsel.
- ✓Drafting and negotiating the agreement: defining rights, obligations and protection mechanisms tailored to the deal
- ✓Auditing the articles and existing commitments: identifying inconsistencies and legal risks
- ✓Structuring investment transactions: support in fundraising, acquisitions or joint ventures
- ✓Governance and investor rights: organising strategic decisions and control mechanisms
- ✓Transfer and exit clauses: structuring pre-emption, co-sale and share-transfer mechanisms
- ✓Preventing and managing disputes: designing contractual mechanisms suited to shareholder relationships
Secure your shareholders' agreement in Tunisia
An effective shareholders' agreement must protect the parties' interests without compromising the company's operation. Drafting requires analysis of the shareholding, the objectives of the transaction, the articles and the applicable legal framework.
Are you preparing a capital entry, a fundraising round, an acquisition or a joint venture in Tunisia? ANILF can support you in analysing, negotiating and drafting your shareholders' agreement. Contact our firm to review your project and define a legal structure suited to your objectives.
Frequently asked questions
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