Shares of shareholder that has not paid his shares in a SAS may be sold at his own risk and expense through a commission agent

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

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

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 his contribution or part of it, the consequences of non-compliance with the company's bylaws 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 in 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 of the same, in the following terms: "4. The right to freely inspect the corporate books and papers within fifteen working days prior to the meetings of the general assembly at which the year-end balance sheets are examined,".

1. "More than two years have passed and it is still in arrears. Should the assembly take a substantive decision? Or can we continue to wait for payment?"

 First of all, it should be borne in mind that if in the articles of association of the S.A.S., consequences were stipulated in the event of a shareholder's default in payment of his contribution, such provisions should be applied. In the event that the matter is not regulated in the articles of association, it is up to 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 shareholder in default sell his shares, having paid only one third of the total contribution? He appeared a few weeks ago after more than two years and intends to sell the shares".

It should be borne in mind that, as noted above, when a shareholder is in arrears in the payment of his shares, his 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 his shares (numeral 3) In relation to this point, in Official Communication 220-284848 of 15 December 2017,2 this Office stated the following:

Subject. Provisional certificate of shares and disposal 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 can do so, as was specified in Oficio 220-202141 of 15 September 2017, in the following terms: "vi) It is clear that the essential purpose of the arbitrations contemplated in article 397 ibidem, is to ensure that the persons who become part of the capital of a limited company, comply in a timely manner with the obligation contracted with the company, which is the timely payment of their contributions, which leads to forming the subscribed capital of the company, which constitutes the guarantee of the creditors. The aforementioned rule stipulates that members who do not pay in a timely manner the quotas that lead to the total payment of the contribution to which they committed themselves, 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) can resort to any of the aforementioned remedies.

1. "Does the defaulting shareholder have to pay interest to the company on the contributions he owes? What kind of interest?"

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

1. "Can we deduct 20% of the shareholder in arrears by way of compensation and place the shares for sale corresponding to the shares in arrears; first by offering them among the company's shareholders?"

 One of the remedies available to the company against the defaulting shareholder, in accordance with the provisions of 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 shall be placed immediately, taking into account that, if the bylaws of the simplified joint-stock company enshrine 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 brief, we note that article 45 of Law 1258 of 2008, enshrines that simplified joint stock companies are governed by the provisions of the articles of association, by what is indicated 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, if the articles of association are silent on the issue of 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 interest to be paid to the defaulting shareholder. In the above terms, your request has been dealt with, with the effects described in article 28 of the Code of Administrative Procedure and Administrative Disputes, not without first pointing out that on the web page of the Entity you can directly consult the regulations, the concepts that it issues on matters within its competence, among others.