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1258 OF 2008
(December 5)
Official Journal No. 47.194 of 5 December 2008
CONGRESS OF THE REPUBLIC
By means of which the company is created by simplified actions.
COLOMBIA CONGRESS
DECRETA:
GENERAL PROVISIONS.
ARTICLE 1o. CONSTITUTION. The company for simplified actions may be constituted by one or more natural or legal persons, who will only be responsible to the amount of their respective contributions.
Except as provided for in Article 42 of this law, the shareholder or shareholders shall not be liable for the labor, tax or other obligations of the company.
ARTICLE 2o. LEGAL PERSONALITY. The company for simplified shares, once entered in the Trade Register, shall form a legal person other than its shareholders.
ARTICLE 3o. Nature. The company for simplified shares is a company of capital whose nature will always be commercial, regardless of the activities envisaged in its social object. For tax purposes, the company for simplified shares shall be governed by the rules applicable to public limited liability companies.
ARTICLE 4. FAILURE TO NEGOTIATE SECURITIES ON THE PUBLIC MARKET. Shares and other securities issued by the company for simplified shares may not be entered in the National Securities and Issuers Register or traded on a stock exchange.
CONSTITUTION AND PROOF OF SOCIETY.
ARTICLE 5o. CONTENT OF THE DOCUMENT OF INCORPORATION. The company for simplified shares shall be created by means of a contract or unilateral act consisting of a private document, registered in the Trade Register of the Chamber of Commerce of the place in which the company establish its principal address, in which the following shall be expressed at least:
1o. Name, identity card and address of shareholders.
2o. Social reason or name of the company, followed by the words "company for simplified shares"; or the letters S.A.S.;
3o. The head office of the company and that of the various branches established in the same act of incorporation.
4o. The term of duration, if it is not indefinite. If nothing is expressed in the act of incorporation, it shall be understood that the company has been established for an indefinite term.
5o. A clear and complete enunciation of the main activities, unless it is expressed that the society will be able to carry out any commercial or civil activity, licit. If nothing is expressed in the act of incorporation, it is understood that the company may carry out any lawful activity.
6o. The authorised, subscribed and paid capital, the class, number and nominal value of the shares representing the capital and the form and terms in which they are to be paid.
7o. The form of administration and the name, identity document and faculties of its administrators. In any case, at least one legal representative must be appointed.
PARAGRAFO 1o. The constitution document will be subject to authentication prior to registration in the Chamber of Commerce's Commercial Registry, by those who participate in its subscription. Such authentication may be done directly or through proxy.
PARAGRAFO 2o. When assets contributed to the company comprise goods whose transfer requires public writing, the constitution of the company must be done in the same way and also be entered in the records. corresponding.
ARTICLE 6o. CONTROL OF THE CONSTITUENT ACT AND ITS REFORMS. The Chambers of Commerce shall verify the conformity of the provisions of the constituent act, the acts of appointment and each of its reforms with the provisions of the law. Therefore, they shall refrain from entering the document by which it is constituted, an appointment is made or the statutes of the company shall be reformed, when any of the requirements laid down in the previous article or in the law are omitted.
Due to the registration of the public or private deed of incorporation, the contract or unilateral act cannot be contested, but due to the lack of essential elements or the failure to comply with the basic requirements, according to the 98 and 104 items in the Commerce Code.
ARTICLE 7o. COMPANY IN FACT. As long as the registration of the private or public document of incorporation in the Chamber of Commerce of the place where the company establishes its principal address is not effected, it will be understood for all legal effects that the society is in fact multiple partners. If it is a single person, he/she will be personally liable for the company's developing obligations.
ARTICLE 8o. PROOF OF EXISTENCE OF THE COMPANY. The existence of the company by simplified actions and the statutory clauses will be tested with certification by the Chamber of Commerce, where the company is not dissolved and the company is liquidated.
SPECIAL RULES ON CAPITAL AND STOCKS.
ARTICLE 9o. SUBSCRIPTION AND PAYMENT OF THE CAPITAL. The subscription and payment of the capital may be made in conditions, proportions and periods other than those provided for in the rules referred to in the Code of Commerce for public limited liability companies. However, in no case shall the time limit for the payment of the shares exceed two (2) years.
In the statutes of companies for simplified shares, percentages or minimum or maximum amounts of capital may be established which may be controlled by one or more shareholders, either directly or indirectly. In the event of the establishment of these variable capital rules, the statutes may contain provisions governing the effects of non-compliance with those limits.
ARTICLE 10. CLASSES OF SHARES. Various classes and series of shares may be created, including the following, in accordance with the terms and conditions laid down in the respective legal rules: (i) privileged shares; (ii) shares with a preferential dividend and without the right to vote; (iii) shares with a fixed annual dividend and (iv) payment actions.
On the back of stock titles, they will consist of the rights attached to them.
PARAGRAFO. In the event that the payment actions are used against labor obligations, the strict and precise limits provided for in the Substantive Labor Code for the payment in kind must be met.
ARTICLE 11. A SINGULAR OR MULTIPLE VOTE. In the statutes, the voting rights that correspond to each class of actions shall be expressed, with an express indication of the attribution of single or multiple voting, if there is a place.
ARTICLE 12. TRANSFER OF SHARES TO COMMERCIAL FIDUCIAS. The shares in which the capital of the company is divided by simplified shares may be based on a commercial trust, provided that the book of shareholders ' registration identifies the trust company, as well as the beneficiaries of the autonomous heritage together with their corresponding percentages in the fiducia.
The rights and obligations which, due to their status as a partner, are attended by the trustee shall be exercised by the trust company which carries the representation of the autonomous patrimony, in accordance with the instructions given by the beneficiary, as the case may be.
ARTICLE 13. RESTRICTIONS ON THE TRADING OF SHARES. The statutes may stipulate the prohibition of the trading of shares issued by the company or any of its classes, provided that the validity of the restriction does not exceed the term of ten (10) years, counted from the issue. This term may only be extended for additional periods not longer than (10) years, by the unanimous will of all shareholders.
On the back of the titles you will have to make an express reference to the restriction referred to in this article.
ARTICLE 14. AUTHORIZATION FOR THE TRANSFER OF SHARES. The statutes may subject any negotiation of shares or of any kind thereof to the prior authorization of the assembly.
ARTICLE 15. VIOLATION OF RESTRICTIONS ON NEGOTIATION. Any negotiation or transfer of actions in contravention of the provisions of the statutes shall be ineffective in full.
ARTICLE 16. CHANGE OF CONTROL IN THE SHAREHOLDER COMPANY. In the statutes, the obligation of the shareholders to inform the legal representative of the respective company for simplified actions can be established in the statutes. any operation involving a change of control with respect to those, as provided for in Article 260 of the Trade Code.
In these cases of change of control, the assembly will be empowered to exclude the shareholders whose control situation was modified, by decision adopted by the assembly.
Failure to fulfil the duty of information referred to in this Article by any of the shareholders, in addition to the possibility of exclusion under Article 39 of this Law, may result in a deduction of twenty per year. (20%) in the value of the reimbursement, as a penalty.
PARAGRAFO. In the cases referred to in this article, determinations regarding exclusion and the imposition of financial penalties will require approval of the shareholders ' assembly, which is imparted with the vote. (a) in favour of one or more shareholders representing at least half of the shares present in the respective meeting, excluding the vote of the shareholder who is the subject of those measures.
ORGANIZATION OF SOCIETY.
ARTICLE 17. ORGANIZATION OF THE COMPANY. In the statutes of the company for simplified actions, the organic structure of the company and other rules governing its operation will be determined freely. In the absence of a statutory stipulation, it is understood that all the functions provided for in Article 420 of the Trade Code shall be exercised by the assembly or the sole shareholder and that of administration be in charge of the legal representative.
PARAGRAFO. During the time when the company has a single shareholder, it may exercise the powers conferred on the various social bodies by law, as soon as they are compatible, including those of the legal representative.
ARTICLE 18. MEETINGS OF THE SOCIAL BODIES. The shareholders ' assembly may meet at or outside the main address, even if a universal quorum is not present, provided that the quorum and convocation requirements provided for in this Article are met. items 20 and 22 of this law.
ARTICLE 19. MEETINGS BY SIMULTANEOUS COMMUNICATION AND WRITTEN CONSENT. Meetings may be held by simultaneous or successive communication and by written consent. In the event of no statutory mechanisms for the conduct of meetings by simultaneous or successive communication and written consent, the rules provided for in Articles 19 to 21 of Act 222 of 1995. In no case will it be required delegate of the Superintendence of Societies for this effect.
ARTICLE 20. NOTICE TO THE SHAREHOLDERS ' ASSEMBLY. Except as a statutory provision to the contrary, the assembly shall be convened by the legal representative of the company, by means of written communication to each shareholder with a minimum advance of five years. (5) working days. The notice of call will insert the order of the day for the meeting.
Where end-of-year balance sheets or processing, merger or division operations have to be approved, the shareholders ' right of inspection may be exercised during the five (5) working days preceding the meeting, unless in the A higher term is required.
PARAGRAFO. The first call for a meeting of the shareholders ' assembly may also include the date on which a second call meeting will be held in the event of the first meeting being held. meeting due to lack of quorum. The second meeting may not be fixed for a date prior to the ten (10) working days following the first meeting, nor after the thirty (30) working days counted from that time.
ARTICLE 21. shareholders may waive their right to be called to a particular meeting of the assembly, by written communication sent to the legal representative of the company before, during or after the meeting corresponding. Shareholders may also waive their right of inspection in respect of the matters referred to in Article 20 2) of this Act, by the same procedure indicated.
Although they have not been summoned to the assembly, it is understood that the shareholders attending the corresponding meeting have renounced the right to be called, unless they manifest their inconformity with the lack of convocation before the the meeting takes place.
ARTICLE 22. QUORUM AND MAJORITIES IN THE SHAREHOLDERS ' ASSEMBLY. Unless otherwise stipulated, the assembly shall deliberate with one or more shareholders representing at least half of the shares subscribed.
The determinations shall be adopted by voting in favour of a singular or plural number of shareholders representing at least half of the shares present, unless the statutes provide for a higher decision-making majority for the some or all of the decisions.
PARAGRAFO. In companies with a single shareholder, the determinations that correspond to the assembly shall be adopted by the assembly. In such cases, the shareholder shall record such determinations in duly settled minutes in the relevant book of the company.
ARTICLE 23. VOTING FRACTIONATION. When it comes to the choice of boards or other collegiate bodies, the shareholders will be able to split their vote.
ARTICLE 24. SHAREHOLDERS 'AGREEMENTS. The shareholders' agreements on the purchase or sale of shares, the preference to acquire them, the restrictions to transfer them, the exercise of the right to vote, the person to represent the shares in the assembly and any other legal matter, must be complied with by the company when they have been deposited in the offices where the administration of the company works, provided that its term is not more than ten (10) years, extendable by unanimous will of your subscribers for periods not exceeding ten (10) years.
The shareholders of the agreement shall indicate, at the time of deposit, the person to represent them in order to receive information or to supply it when it is requested. The company may require in writing the representative clarifications on any of the terms of the agreement, in which case the answer must be provided, also in writing, within five (5) days of the receipt of the request.
PARAGRAFO 1o. The President of the assembly or the company's collegiate deliberation body will not compute the vote proffered in contravention of a duly deposited shareholder agreement.
PARAGRAFO 2o. Under the conditions provided for in the agreement, the shareholders may promote before the Superintendence of Societies, through the processing of the summary verbal process, the specific execution of the obligations agreed in the agreements.
ARTICLE 25. BOARD OF DIRECTIVE. The company for simplified shares will not be required to have a board of directors, except for statutory forecasts to the contrary. If the creation of a board of directors is not stipulated, the entire administrative and legal representation functions shall correspond to the legal representative appointed by the assembly.
PARAGRAFO. In the event of the creation of a board of directors, the creation of a board of directors may be integrated with one or more members in respect of which the following may be established. The directors may be appointed by means of election, majority voting or any other method provided for in the statutes. The rules governing their operation shall be determined freely in the statutes. In the absence of statutory provision, this body shall be governed by the provisions of the relevant legal rules.
ARTICLE 26. LEGAL REPRESENTATION. The legal representation of the company by simplified actions shall be carried out by a natural or legal person, designated in the form provided for in the statutes. In the absence of any provision, it shall be understood that the legal representative may conclude or execute all the acts and contracts included in the social object or which relate directly to the existence and functioning of the company. In the absence of a statutory provision for the appointment of the legal representative, the choice of the legal representative shall be the sole shareholder or assembly.
ARTICLE 27. RESPONSIBILITY OF ADMINISTRATORS. The rules regarding the liability of administrators contained in Law 222 of 1995, will apply to them both the legal representative of the company simplified as to its board of directors and other administrative bodies, if any.
PARAGRAFO. Natural or legal persons who, without being administrators of a company by simplified actions, meddle in a positive activity of management, administration or management of the company, will incur in the same responsibilities and penalties applicable to administrators.
ARTICLE 28. TAX REVIEW. In the event that, by requiring the law, the charge of a tax reviewer has to be provided, the person in charge must be a public accountant entitled with a valid professional card.
In any case, the profits shall be justified in financial statements prepared in accordance with the accounting principles generally accepted and delivered by an independent public accountant.
STATUTORY REFORMS AND REORGANIZATION OF SOCIETY.
ARTICLE 29. STATUTORY REFORMS. The statutory reforms will be approved by the assembly, with the favorable vote of one or more shareholders representing at least half of the shares present in the respective meeting. The respective determination shall be recorded in a private document registered in the Trade Register, unless the reform involves the transfer of goods through public deed, in which case it shall be governed by such formality.
ARTICLE 30. RULES APPLICABLE TO THE CONVERSION, MERGER AND DIVISION. Without prejudice to the special provisions contained in this law, the rules governing the conversion, merger and division of companies shall be applicable to the company in question. simplified actions, as well as the own provisions of the right of withdrawal contained in Law 222 of 1995.
PARAGRAFO. The shareholders of the acquired or spun-off companies may receive cash, shares, social shares or shares in any company or any other asset, as the sole consideration in the merger or spin-off processes that are brought forward by simplified shares.
ARTICLE 31. TRANSFORM. Any company may be transformed into a company by simplified shares, before dissolution, provided that it is decided by its assembly or board of members, by means of unanimous determination of the associated members of the entire of the subscribed shares. The corresponding decision shall be entered in a private document registered in the Trade Register.
In the same way, the company for simplified shares can be transformed into a company of any of the types provided for in the Second Book of the Commercial Code, provided that the respective determination is adopted by the assembly, by means of Unanimous decision of the associated holders of the entire subscribed shares.
PARAGRAFO. The unanimity requirement for the subscribed actions will also be required in those cases where, by virtue of a merger or spinoff process or by any other legal business, the transit from a company for simplified shares to another company type or vice versa.
ARTICLE 32. GLOBAL ASSET DISPOSAL. It is understood that there is a global disposal of assets when the company for simplified shares proposes to dispose of assets and liabilities representing fifty (50%) or more of the company's liquid assets in the date of disposal.
The overall disposal will require approval by the assembly, given the favorable vote of one or more shareholders representing at least half of the shares present in the respective meeting. This operation will result in the right of withdrawal in favour of absent shareholders and dissenters in the event of wealth loss.
PARAGRAFO. The global asset disposal will be subject to enrollment in the Mercantile Registry.
ARTICLE 33. SHORT MERGER. In cases where a company holds more than ninety (90%) of the shares of a company for simplified shares, the company may absorb that company by means of a determination made by the legal representatives or by the boards of the companies involved in the merger process.
The merger agreement may be made by private document registered in the Commercial Registry, unless the assets transferred are goods whose disposal requires public deed. The merger may result in the right of withdrawal in favor of the absent and dissenters in the terms of Law 222 of 1995, as well as the action of judicial opposition provided for in the article 175 of the Commerce Code.
The text of the abbreviated merger agreement will have to be published in a journal of wide circulation as established by Law 222 of 1995, within that same term there will be place to the opposition by third parties who may require necessary and/or sufficient guarantees.
DISSOLUTION AND SETTLEMENT.
ARTICLE 34. DISSOLUTION AND LIQUIDATION. The company for simplified shares will be dissolved:
1o. By the expiry of the term laid down in the statutes, if any, unless it is extended by document entered in the Register before its expiry.
2o. Because it is impossible to carry out the activities envisaged in its social object.
3o. For the initiation of the judicial settlement procedure.
4o. For the causals provided for in the statutes.
5o. By the will of the shareholders adopted in the assembly or by decision of the single shareholder.
6o. By order of competent authority, and
7o. For losses that reduce the net worth of the company below fifty percent of the subscribed capital.
In the case provided for in the ordinal 1 or above, the dissolution will take place in full right from the expiry date of the term of duration, without the need for special formalities. In other cases, the dissolution shall occur from the date of registration of the private document or the execution of the act containing the decision of the competent authority.
ARTICLE 35. ENERGY OF DISSOLUTION CAUSES. The dissolution of the society may be avoided by the adoption of the measures to be taken, depending on the causal effect, provided that the energy of the causation occurs during the six (6) months following the date on which the assembly recognizes its occurrence. However, this period shall be eighteen (18) months in the case of the causation provided for in the ordinal 7o of the preceding article.
PARAGRAFO. The causes of dissolution by one-personality over-coming or reduction of the minimum pluralities in the other types of society provided for in the Code of Commerce may also be energized by the transformation in society by simplified actions, provided that the remaining partners decide unanimously or the associated superstition.
ARTICLE 36. LIQUIDATION. The liquidation of the assets shall be carried out in accordance with the procedure laid down for the liquidation of limited liability companies. He shall act as liquidator, legal representative or person appointed by the shareholders ' assembly.
FINAL PROVISIONS.
ARTICLE 37. APPROVAL OF FINANCIAL STATEMENTS. Both general or special purpose financial statements such as management reports and other social accounts shall be submitted by the legal representative to the shareholders ' meeting. for approval.
PARAGRAFO. In the case of companies for simplified shares with sole shareholder, it will approve all social accounts and record such approval in duly settled minutes in the book. of the company.
ARTICLE 38. DELETING BANS. The prohibitions contained in items 155, 185, 202, 404, 435 , and 454 of the Commerce Code will not be applied to companies for simplified actions, unless in the statutes are otherwise provided.
ARTICLE 39. EXCLUSION OF SHAREHOLDERS. The statutes may provide for the cause of exclusion of shareholders, in which case the reimbursement procedure provided for in Articles 14 to 16 of Act 222 of 1995.
If the reimbursement will involve a reduction in capital, it must also be met in accordance with Article 145 of the Trade Code.
PARAGRAFO. Unless a different procedure is established in the statutes, the exclusion of shareholders will require approval by the assembly, imparted with the favorable vote of one or more shareholders representing at least half of the shares present in the respective meeting, without counting the vote of the shareholder or shareholders that are the subject of this measure.
ARTICLE 40. RESOLUTION OF SOCIAL CONFLICTS. The differences that occur to the shareholders with each other, or with the company or its directors, in the development of the social contract or the unilateral act, including the impeachment of assembly determinations or a board of directors based on any of the legal causes, may be subject to an arbitration or an amicable decision, if this is agreed in the statutes.
626 of Law 1564 of 2012 >
ARTICLE 41. UNANIMITY FOR AMENDMENT OF STATUTORY PROVISIONS. The clauses enshrined in the statutes as provided for in Articles 13, 14, 39 and 40 of this law can only be included or modified by determining the percent percent (100%) holders of the subscribed actions.
ARTICLE 42. DISMISSAL OF THE LEGAL PERSONALITY. When the company is used for simplified actions in fraud against the law or for the detriment of third parties, shareholders and administrators who have made, participated or facilitated the acts They shall be jointly and severally liable for the obligations arising out of such acts and for the damage caused.
The declaration of nullity of the fraudulent acts will be brought forward to the Superintendence of Societies, through the summary verbal procedure.
The action to compensate for the possible damages resulting from the fraudulent acts will be of competition, prevention, the Superintendence of Societies or the civil judges of the specialized circuit, and in the absence of these, by the civil of the circuit of the plaintiff's domicile, through the processing of the summary verbal process.
ARTICLE 43. ABUSE OF THE RIGHT. Shareholders shall exercise the right to vote in the interest of the company. The vote exercised for the purpose of causing damage to the company or other shareholders or to obtain for itself or for an unjustified third advantage, as well as that vote of which may result to the detriment of the company or to the company, shall be considered to be abusive. other shareholders. Those who abuse their shareholder rights in the decisions taken in the assembly shall be liable for any damages caused, without prejudice to the Superintendence of Societies, which may declare the absolute nullity of the determination adopted by the The object's illiteness.
The action of absolute nullity and compensation for damages of the respective determination may be exercised both in cases of abuse of majority, as in the cases of minority and parity. The corresponding procedure will be brought forward to the Superintendence of Societies through the summary verbal process.
