All about shareholder pacts in Morocco
What are the main clauses of a shareholders' agreement?
What is an associates'/shareholders' pact?
The partners' pact is a contract established between the partners of a company to determine and guarantee the rights of the signatories, define their responsibility and govern formalize their commitments on the company's project.
Document which supplements the statutes, the pact of associates manages the relations between the associates of the company in particular the distribution of powers. Its objective is to govern the relations between partners on all the strategic elements of the business plan.
It is a question of setting up rules between associates or shareholders which go beyond the statutory rules as regards entry or exit of the capital, governance or the long-term strategy of the company.
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What is a partnership agreement used for?
The shareholders' agreement deals both with the organization of the control of the company by the managers and the shareholders, and above all with the different situations in which the capital is withdrawn. In this case, it also classifies the shares held by the parties, and this classification can also be specified in a statutory manner.
The shareholders' agreement is a private contract. Consequently, it is not in principle consultable by third parties as is the case for the statutes of the company. This partly explains its success with investors.
What are the main clauses of the shareholders' agreement?
The content of a shareholders' agreement is organized around three main categories of clauses relating to the exercise of the right to vote, the management of the company as well as the movement of securities.
The main clauses of a shareholders' agreement are generally:
The approval clause, in the event of transfer, the partner must obtain the company's prior agreement.
The pre-emption clause, giving the partners the priority right when redeeming the shares sold.
The pull-in clause minority shareholders must sell their shares at the same time as the majority shareholders to avoid any blockage during a sale.
The joint exit clause, the minority shareholders impose on the transferor that they also obtain the acquisition of their shares in the same proportions.
The control clause of the management team: which makes it possible to monitor the way in which financial resources are spent by the management.
Read also: All about business domiciliation in Morocco
When should a partners'/shareholders' agreement be drafted?
A shareholders' agreement is generally drawn up:
During the creation of the company when it is an investment carried by several investors or pools of investors, and there is a need to formalize operating rules that go beyond what is planned by company law and company statutes
When opening the capital of a company to investors (investment funds, institutional or private) while maintaining a shareholding structure that includes the founding partners. In this case, the shareholders' agreement is a fundamental element even for the operation of entry into the capital (valuation, commitment of result, etc.)
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How effective are shareholder pacts?
The effectiveness of the shareholders' pact results from its effects. Like any contract, the pact must be applied by the parties.
The parties bound to the agreement are required to perform the services to which they have committed, and in particular to keep their promises.
As the shareholders' agreement is binding on the signatory shareholders, its non-execution or violation may give rise to compensation in the form of damages, moreover the parties may agree in advance, in the form penalty clause inserted in the agreement, the amount of compensation that will be due by the shareholder who has not fulfilled his commitments .
The purpose of this compensation may be to repair the damage suffered, or even to encourage the debtor to fulfill his commitments under penalty of having to pay higher compensation to the co-contracting party.
Thus in the event of voluntary non-execution by the shareholder of his voting commitment, his co-contracting party has, by application of the common law of obligations and contracts (the DOC), in particular articles 259 and 26, a legal action for the compel the execution of the contract, as well as the possibility of requesting the resolution of the pact or even to claim damages.
What is the benefit of a shareholders' agreement for my SARL?
The partners' pact, being a confidential document, has the advantage of managing the relationship between partners as well as controlling the transfer and transmission of titles to guarantee the proper functioning of the company.
The partner pact is drawn up by all the partners either for a fixed or indefinite period. In the event that there is a breach of the pact, several methods allow the partners to break their commitment:
Joint exit: a partner assigns his rights to the exit of another partner.
Forced exit: redemption of shares of minority partners.
The exclusion of a partner: by the majority of the partners.
Despite the fact that the common law governs in a relatively precise way the relations between partners of an LLC, the partners' pact has a complementary role:
to address topics on which there is a regulatory vacuum
to prevent future blocking situations that may be harmful to society
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