Shareholders' Agreement for Tunisian SARL | Complete Legal Guide & Drafting | Luca Pacioli Audit & Law Firm

Legal Review: Shareholders' Agreements in Tunisian SARLs – A Preventative Governance Instrument

By Luca Pacioli : Arcelin Ben Mahmoud Managning Partner of Luca Pacioli - Expert comptable Tunisia

And Mohamed Boussetta - IHEC Carthage' Student - Master Degree in Accounting

Summary

This article provides a comprehensive analysis of the shareholders' agreement, a crucial contractual instrument for the governance of Tunisian SARLs. It deciphers key clauses (capital control, minority protection, organized exit, governance) and their validity conditions under the Commercial Companies Code and relevant case law. As a private constitutional charter, a well-drafted agreement is a strategic tool to ensure business longevity and secure shareholder relationships.

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Within the framework of Tunisian corporate law, the shareholders' agreement (pacte d’associés) stands as a sophisticated contractual mechanism operating at the intersection of party autonomy and mandatory corporate law principles. Distinct from the corporate bylaws (statuts), this confidential instrument allows the members of a SARL—an entity characterized by a strong intuitu personae (consideration of the member's identity)—to refine and supplement their relational framework. This analysis provides a typology of its core clauses, examines their operational purposes, and assesses their validity conditions. It is grounded in a rigorous reading of the Tunisian Commercial Companies Code (C.S.C.) and the guiding principles derived from French case law, a major source of inspiration for Tunisian legal doctrine.

I. Capital Control and Transfer Clauses

Overarching Purpose: These clauses serve the cardinal function of preserving the personal balance (intuitu personae) foundational to the SARL by governing access to capital and filtering the entry of new members. They give concrete effect to the right to choose one's co-managers, an inherent principle of the company's contractual nature.

1• Approval Clause (Clause d’agrément)

Practical Finality:

To establish a collective filter against the entry of any third party, enabling existing shareholders to oppose a transfer that could disrupt the group's harmony or threaten the corporate interest. It aims to prevent the introduction of a discordant element into a closed circle.

Legal base & Mechanism :

Contrary to a common misconception, the approval clause is not a purely contractual creation. Article 109 of the Tunisian CSC provides its legal framework. It sets out the conditions for transfer to third parties (notification, required majority for approval, etc.) and states that the bylaws may provide for a limitation on transferability, provided the conditions are not more stringent than those set forth by law. The Code thus caps the severity of the clause (particularly the required majority) but explicitly allows for more flexible procedural adjustments, such as a shortening of time limits or a reduction of the required majority compared to the default legal threshold. The shareholders' agreement can reiterate, specify, or reinforce these statutory provisions.

Legal Risk & Validity:

The risk of abuse in refusing approval is significant. To be lawful, a refusal must be motivated by the corporate interest, not personal considerations. A bylaw or contractual clause imposing conditions stricter than Article 109 (e.g., unanimity where the law requires a majority) would be deemed void.

Example: "In accordance with Article 109 of the CSC, any transfer of shares to a third party is subject to the prior approval of shareholders representing at least half of the share capital. The bylaws provide for a response period of 60 days (shorter than the legal period - 3 months) and stipulate that approval is deemed granted if no motivated refusal is notified within this period."

French Conseil d'État Reference (Validity Principle):

The power of approval must be exercised "in the corporate interest" and not in a discretionary manner. An abusive refusal can engage the liability of those responsible (CE, Ass., 3 May 2000, Société Japy). This principle usefully complements the Tunisian legal framework for assessing the lawfulness of a refusal.

2• Pre-emption Clause (Clause de préemption)

Practical Finality:

To grant existing shareholders a right of first refusal to acquire the shares of a departing member before any offer is made to a third party. It allows for the consolidation of internal holdings and the maintenance of the circle's composition.

Mechanism:

Obliges the transferring shareholder to notify their intention and the terms of the transfer to other shareholders, who have a set period to exercise their priority purchase right.

Validity Condition:

The clause must be sufficiently precise in its modalities (time limits, proportionality, notification) to be enforceable. Its formal requirements are strict.

Example: "Any shareholder intending to transfer their shares must inform the company by extrajudicial act. The company relays this offer to other shareholders, who have a single, indivisible period of 45 days to exercise their pre-emption right in proportion to their existing shareholding."

French Conseil d'État Reference (Validity Principle):

Lawfulness requires a clear and unambiguous determination of the exercise modalities, guaranteeing equal treatment and legal certainty (General Principles of Law).

3• Lock-Up Clause (Clause d’inaliénabilité)

Practical Finality:

To guarantee the stability of the share capital during a critical phase (start-up, project development) by temporarily freezing the transferability of shares. It secures the initial commitment of the founders.

Mechanism:

Contractual prohibition on transferring shares for a determined period.

Mandatory Validity Condition:

To avoid being deemed contrary to the very nature of property rights, this clause must be limited in time and justified by a legitimate and serious interest of the company.

Example: "The founding shareholders undertake not to transfer their shares for a period of three years from the company's registration, to ensure the stability required for the implementation of the business plan."

French Conseil d'État Reference (Validity Condition):

A perpetual clause is void. Lawfulness is conditional upon its temporal limitation and the demonstration of a serious and legitimate interest (CE, 27 October 1972).

II. Financial Balance Protection Clauses

Overarching Purpose: To correct information and power asymmetries between shareholders by guaranteeing equitable treatment during sensitive operations (change of control, capital increase). They secure the position of minority shareholders and financial investors.

1• Tag-Along Clause

Practical Finality: To protect a minority shareholder by enabling them to "tag along" with a majority shareholder selling their controlling stake to a third party, under the same conditions and price. It prevents the majority from solely benefiting from a "control premium."

Mechanism:

Right for the minority shareholder to include their shares in the sale of the controlling block initiated by the majority.

Function:

A loyalty and fairness clause aimed at ensuring equal treatment in the event of a substantial transfer.

Example: "If one or several shareholders transfer a block of shares representing more than 50% of the capital to the same acquirer, they are obliged to secure from said acquirer the purchase, on the same terms, of the shares of any other shareholder wishing to exit."

French Conseil d'État Reference (Principle):

Considered a legitimate clause aimed at ensuring equality among shareholders during a change of control, provided its mechanism is effective.

2• Drag-Along Clause

Practical Finality:

To enable a majority shareholder to compel minority shareholders to sell their shares to an acquirer proposing to purchase 100% of the enterprise. It facilitates a full exit by removing the risk of a "hold-out" by a minority.

Mechanism:

Right to compel minorities to join in the sale of 100% of the capital.

Mandatory Validity Condition:

The clause must guarantee minority shareholders a fair price, typically determined by reference to the price paid to the majority or by an independent valuation.

Example: "In the event of a purchase offer for all outstanding shares, the shareholder or group of shareholders initiating the acceptance of the offer may oblige the other shareholders to transfer their shares at the same price per share. The price is presumed fair if determined by a valuation conducted by an independent expert."

French Conseil d'État Reference (Validity Condition):

Lawfulness is conditional upon the guarantee of a just price and a balance between the collective interest (full sale) and individual rights (CE, 21 March 2016).

3• Anti-Dilution Clause

Practical Finality:

To protect an investor against the devaluation of their percentage participation in the event of a capital increase at a price lower than their entry price. It preserves the economic value of their initial investment.

Mechanism:

An adjustment mechanism (typically "weighted average") granting the investor additional shares for free or at a reduced price to compensate for dilution.

Validity:

Admitted within the framework of contractual freedom, provided it does not create an unjustified inequality or a lesion unforeseeable at the time of contracting.

III. Conflict Resolution and Organized Exit Clauses

Overarching Purpose: To anticipate and legally frame the exit of a shareholder, a major source of conflict, by establishing contractual private arbitration mechanisms. They aim to avoid lengthy and uncertain judicial recourse.

1• Shotgun Clause (Buy or Sell)

Practical Finality:

To resolve a deadlock or intractable conflict between two shareholders or groups of equal strength, by forcing one party to exit at a price set by the other.

Mechanism:

One shareholder (A) offers a price to the other (B). B then chooses either to sell their shares to A at that price, or to buy A's shares at the same price.

Efficacy Condition:

Requires relative financial parity between the parties. The proposed price must be serious, lest it backfire on the offeror.

Example: "In the event of a persistent deadlock on a decision requiring unanimity, any shareholder may submit to the other an offer to purchase their shares at a specified price. The recipient has 60 days to either accept to sell at this price, or to purchase the offeror's shares at this same price."

French Conseil d'État Reference (Principle):

Validated as a private conflict prevention mechanism, provided it guarantees genuine reciprocity and a price set in good faith.

2• Put & Call Options

Practical Finality: Put Option:

To guarantee a shareholder (often a minority) a liquid exit at a pre-determined price upon a triggering event (failure to meet targets, disagreement). Call Option: To grant a shareholder (often a majority) a right of repurchase upon a triggering event (departure of a key member, breach of agreement).

Mechanism:

Unilateral right to force a sale (put) or a purchase (call).

Mandatory Validity Condition:

Lawfulness is strictly contingent upon the objective determination of the exercise price or its calculation method, to avoid undue uncertainty or lesion.

Example (Put): "Should a defined profitability threshold not be met after 3 financial years, the minority investor holds a put option to sell its shares to the founders. The price is calculated according to the sector multiples method defined in Annex X."

French Conseil d'État Reference (Validity Condition):

Lawful if the price or its method of determination is fixed in advance in an objective manner, eliminating the risk of dispossession (Established case law on the necessity of price certainty).

IV. Governance and Decision-Making Control Clauses

Overarching Purpose: To tailor decision-making rules beyond default legal majorities, reflecting negotiated power balances and protecting the strategic interests of different parties.

1• Super-Majorities & Veto Rights

Practical Finality:

To establish protective "lock-in" mechanisms for critical decisions (major commitments, regulated agreements, key appointments) by requiring a quorum or majority higher than the legal default, or by granting an individual power of opposition.

Mechanism:

Substitution of default rules with conventional thresholds (e.g., 80%) or attribution of a veto right.

Absolute Legal Limit:

These clauses must not deprive a statutory corporate body (e.g., the manager) of its essential powers nor permanently paralyze the company's operations. An absolute and general veto right would be contrary to the corporate interest.

Example: "Decisions relating to the approval of regulated agreements pursuant to Article 200 C.S.C., a capital increase, or amendments to the bylaws, require the consent of shareholders holding 90% of the shares. Investor X holds a veto right over the annual investment budget exceeding TND 500,000."

French Conseil d'État Reference (Limit):

No clause may confer an absolute veto right against the manifest corporate interest. Abuse in its exercise is sanctionable (CE, 7 July 1976).

V. Protection of Corporate Assets and Loyalty Clauses

Overarching Purpose: To protect intangible assets essential to the company's competitiveness (know-how, strategic information, client relationships) against opportunistic behavior by shareholders or managers.

1• Non-Compete & Confidentiality Clause

Practical Finality:

Non-Compete: To prevent a departing shareholder from exploiting a competitive advantage gained through the company. Confidentiality: To ensure the strict retention of sensitive information.

Validity Condition (Non-Compete - Mandatory):

To be valid, it must be: 1) Indispensable to protecting the company's legitimate interests; 2) Limited in time (reasonable duration); 3) Limited in geographic scope (relevant territory); 4) Limited in its subject matter (genuinely competing activities). A financial consideration is highly advisable.

Example: "During their association and for 24 months following their exit, the shareholder-manager is prohibited from engaging in a similar or complementary activity within Tunisia. In consideration for this restriction, they will receive a monthly indemnity equivalent to 40% of their average remuneration over the last 12 months for a period of 12 months."

French Conseil d'État Reference (Validity Condition):

Very strict scrutiny. The clause must be indispensable, limited, and provide financial consideration to the signatory (CE, Sect., 18 December 1985). Confidentiality stems from the general duty of loyalty.

Towards a Strategic Approach to the Shareholders' Agreement

The shareholders' agreement is far more than an ancillary contract. It is the private constitutional charter governing the relationship inter socios. Its drafting demands dual expertise: technical mastery of contractual mechanisms and a strategic vision of the company's economic and human balances. Under Tunisian law, its efficacy is conditioned by scrupulous respect for the fundamental principles of the C.S.C. and the Code of Obligations and Contracts (C.O.C.). French jurisprudence, through its precision and search for balance, provides a valuable analytical framework for anticipating the lawfulness control to which a Tunisian judge might subject it. A well-crafted agreement is thus an investment in legal security and sustainable governance.

Drafting an effective, tailor-made shareholders' agreement requires sharp expertise in corporate law and a strategic vision of your company's human and economic dynamics. Luca Pacioli Accounting, Audit & Advisory Law Firm provides comprehensive support in the design, negotiation, and secure drafting of this foundational act. Our specialized lawyers analyze your objectives to build a robust contractual architecture that protects your interests and is fully enforceable. Contact us to audit your existing agreement or to create your bespoke governance charter.

Read more about us : M&A & Deal Advisory in Tunisia – Buy&Sell Business - Luca Pacioli - Advisory & Business Development Tunisia - Luca Pacioli

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