Shares of a defaulting shareholder in a SAS may be sold at his own risk through a commission agent

Regulatory rules regarding the default of a shareholder in the payment of its contributions in a SAS:

1. Bylaws of the Company
2. 45 of Law 1258 of 2008
3. Oficio 220-178665 dated December 26, 2019-.
4. Article 397 of the Commercial Code
5. Oficio 220-284848 dated December 15, 2017- Super Sociedades,
6. Oficio 220-202141 dated September 15, 2017- Super Sociedades.
7. Concept, 220-063549, 14/Mar/2022- Super Societies.

1. “What rights does the shareholder cease to exercise when he is in default of payment of his contributions (does he also cease to exercise the right of inspection?)”

In a simplified joint stock company, when a shareholder is in arrears in the payment of its contribution or part thereof, the consequences of non-compliance with the provisions of the bylaws of the company must be followed, and if nothing is provided in this regard, by reference to Article 45 of Law 1258 of 2008, to the provisions of Article 397 of the Code of Commerce which provides that the rights inherent to the quality of shareholder are suspended. One of the rights referred to in Article 379 of the Code of Commerce, and which is suspended, is the so-called right of inspection, contained in paragraph 4 thereof, in the following terms: “4. The right to inspect, freely, the corporate books and papers within fifteen working days prior to the meetings of the general assembly in which the year-end balance sheets are examined,”.

1. “It’s been more than two years and it’s still in arrears – should the assembly make a substantive decision? Or can we continue to wait for payment?”

In the first place, it is necessary to take into account that if the bylaws of the S.A.S. stipulate consequences for the failure of a shareholder to pay its contribution, such provisions must be applied. In the event that the matter is not regulated in the bylaws, it is incumbent upon the administrator of the simplified joint stock company, within its responsibilities, to persistently require the timely payment of the contributions of the associates and if this is not possible, it must necessarily resort to any of the remedies that are enshrined in Article 397 of the commercial legislation, by reference of Article 45 of Law 1258 of 2008.

1. “Can the defaulting shareholder sell his shares, having paid only one third of the total contribution? He showed up a few weeks ago after more than two years and intends to sell the shares.”

It is necessary to take into account that, as noted above, when a shareholder is in arrears in the payment of its shares, its rights inherent to the quality of shareholder are suspended under the terms of Article 397 of the Code of Commerce, among them, the right to freely negotiate its shares (numeral 3) In relation to this point, in Official Communication 220-284848 of December 15, 2017,2 this Office stated the following:

Subject. Provisional certificate of shares and alienation of subscribed and unpaid shares in SAS. “(…) “On the contrary, when the shareholder let the term granted for the payment of the subscribed shares expire without satisfying the obligation, he cannot exercise the rights inherent to them, including that of trading them freely, but in such case the company may do so, as was specified in Official Communication 220-202141 of September 15, 2017, in the following terms: “(vi) It is clear that the arbitrations contemplated in Article 397 ibidem, have as an essential purpose to ensure that the persons who become part of the capital of a corporation, timely comply with the obligation contracted with the company, which is the timely payment of their contributions, which leads to form the subscribed capital of the same, which constitutes the guarantee of the creditors. The aforementioned rule provides that the associates who do not timely pay the installments that lead to the total payment of the contribution to which they committed, cannot exercise the rights inherent to the quality of shareholders and the board of directors of the company (or in case the general meeting of shareholders or the legal representative) may resort to any of the aforementioned remedies.

1. “Does the defaulting shareholder owe interest to the corporation on the contributions owed? What kind of interest?”

When a shareholder is in arrears in the payment of shares, and if agreed in the share subscription contract or in the bylaws, the shareholder must pay the company default interest, notwithstanding the provisions of Article 397 of the Code of Commerce.

1. “Can we deduct 20% of the delinquent shareholder’s installments by way of indemnification and place the shares for sale corresponding to the delinquent installments; first offering them among the company’s shareholders?”

One of the remedies available to the company against the defaulting shareholder, in accordance with Article 397 of the Code of Commerce, is “to charge the sums received to the release of the number of shares corresponding to the quotas paid, after deduction of twenty percent by way of compensation for damages, which shall be presumed to have been caused”.

The shares that the company withdraws from the defaulting shareholder will be placed immediately, taking into account that, if the bylaws of the simplified stock corporation provide for the right of first refusal in the negotiation of shares, it is necessary to offer them first to the shareholders.

1. “Can we then apply Article 125; complying with the reimbursement procedure provided for in Articles 14 and 16 of Law 222 of 1995? G. Should we pay him interest on his contribution or is only the capital reimbursed?”

Being consistent with what has been stated throughout this document, we observe that Article 45 of Law 1258 of 2008, establishes that simplified joint stock companies are governed by the provisions of the bylaws, by the provisions for corporations and in their absence, while not contradictory, by the general provisions governing commercial companies in the Code of Commerce. In this order, it is clear that, in the silence of the bylaws on the issue related to the late payment of shares by a shareholder, we must necessarily resort to Article 397 of the Code of Commerce and Article 125 of the Code of Commerce is not applicable. In turn, according to the answers given to the previous questions, there is no place for the payment of interest to the delinquent shareholder. In the above terms, your request has been attended, with the effects described in Article 28 of the Code of Administrative Procedure and Administrative Disputes, not without first pointing out that in the web page of the Entity you can directly consult the regulations, the concepts that it issues on matters within its competence, among others.