IBA Guide on Shareholders Agreements

Transcription

1 IBA Guide on Shareholders Agreements Morocco José Ignacio García Muniozguren Jaàfar Laidi Garrigues Maroc 1. Are shareholders agreements frequent in Morocco? Shareholders agreements are quite frequent in medium and large joint venture companies. 2. What formalities must shareholders agreements comply with in Morocco? Moroccan law does not provide for any formal requirements for shareholders agreements. It is however advisable for signatures in the agreement to be legalized. Signatures are usually legalized before a commune (local administration). 3. Can shareholders agreements be brought to bear against third parties such as purchasers of shares or successors? As a general rule, shareholders agreements are only binding upon their signatories. It is however possible to provide that new shareholders will have to adhere to an existing agreement. Shareholders agreements lack a specific regulation, so they are governed by the general rules applicable to contracts and by company law. Page 1

2 4. Can a shareholders agreement regulate non-company contents? The law does not prevent shareholders agreements from regulating noncompany matters. It is quite common for shareholders agreements to deal with provisions of goods or services to the company or transfer pricing matters. 5. Are there limits on the term of shareholders agreements under the law of Morocco? No. 6. Are shareholders agreements related to actions by directors valid in Morocco? Yes. However, such provisions cannot be opposed to third parties. A Moroccan Société Anonyme S.A. (the type of company most widely used for a joint venture) is bound by the acts of its general manager even when these are not within the social purpose unless it can be proven that the third parties that entered into the corresponding agreement knew this or could not ignore it given the circumstances. The publication of the bylaws is not a sufficient evidence for these purposes. Bylaws provisions, decisions from the board of directors or provisions in shareholders agreements that limit the powers of the general manager cannot be opposed to third parties. 7. Does the law of Morocco permit restrictions on transfer of shares? Restrictions on transfers of shares in an S.A. are permitted except when the transfer is made in favor of the consorts, ascendants or descendants up to the second degree. Page 2

3 8. What mechanisms does the law of Morocco permit for regulating share transfers? Unless in the cases discussed under 7 above, transfer of shares in an S.A. can be subject to prior approval by the board of directors. Shares must be nominative for this restriction to be available. Preferential acquisition rights can also be provided for. 9. In Morocco do bylaws tend to be tailor-drafted, or do they tend to use standard formats? Bylaws are usually standard. However, if a shareholders agreement is entered into, it is advisable to reflect in the bylaws the provisions in the agreement that can be included therein. 10. What are the motives in Morocco for executing shareholders agreements? The main motive is to tackle matters that cannot be adequately dealt with in the bylaws (e.g., because they do not bind all shareholders or for confidentiality reasons) 11. What contents tend to be included in shareholders Mainly those that (i) do not fit in the somewhat rigid structure of bylaws or (ii) shareholders want to keep confidential. 12. What determines the content included in shareholders The main issues that determine the content of shareholders agreements are as follows: (i) whether the agreement is binding upon all shareholders or only some of them; (ii) whether the agreement includes corporate and non corporate issues; (iii) confidentiality; (iv) flexibility vis-à-vis future changes; (iv) term of he agreement. Page 3

4 13. What are the most common types of clauses in shareholders These are mainly: (i) corporate governance matters (voting at shareholders meetings, election of board of directors, voting at board of directors); (ii) financial engagements of the shareholders towards the company; (iii) put and call options; (iv) drag along and tag along clauses; (v) provisions to unblock decisions of the shareholders meetings and of the board of directors; (vi) share of functions within the company; (vii) dividend policy. 14. What mechanisms does the law of Morocco permit to ensure participation of minorities on the board of directors and its control? Practically none. Majority ownership interests in a S.A. permit to appoint the whole board of directors. 15. Is it possible in Morocco to ensure minority shareholder control by means of a shareholders agreement? Yes. Clauses in shareholders agreements providing for reinforced majorities in shareholders meetings or for a right to appoint directors beyond that provided by law can ensure minority shareholder control. 16. What are the usual valuation mechanisms in connection with rights of first refusal or share transfer regulations? These are those usually used internationally, that is, value based on future earnings, value based on a multiple of EBITDA or EBIT, comparable market value, third party expert assessment, etc. 17. Is it admissible for a shareholders agreement clause to refer dispute resolution to the courts other than those of Morocco and/or under a law other than that of Morocco? No specific restrictions exist in this respect. Page 4

5 18. Is it admissible for a shareholders agreement to include an arbitration clause with seat outside Morocco and/or under a law other than that of Morocco? If the agreement is an international one, arbitration abroad and/or under a foreign law is admissible. Morocco is a party to the 1958 New York Convention on Recognition and Enforcement of Foreign Arbitral Awards. Courts of justice recognize arbitration decisions handed down by foreign courts if those decisions are not contrary to the Moroccan public order. July 22, 2011 Page 5