Shareholder agreements in Simplified Joint Stock Companies may not supersede Corporate Statutes

In Concept dated March 19, 2015, the Superintendence of Companies confirms that lawfully entered into shareholder agreements may not supersede preference rights established in the corporate statutes. In fact, article 70 of Law 222 of 1995, which refers to shareholder agreements, establishes these agreements shall not prevail over corporate statutes.

Now then, pursuant to Law 1258 of 2008, shareholder agreements within the framework of Simplified Joint Stock Companies (S.A.S. for its acronym in Spanish) may address issues such as preference rights as long as they do not run contrary to or supersede corporate statutes. Thus, the principle of precedence of corporate statutes over shareholder agreements introduced in 1995 is preserved, even in the context of Simplified Joint Stock Companies.

Consequently, shareholder agreements establishing that the parties may only sell their shares to other parties to the agreement shall be deemed null and void if corporate statutes had already established determined preference rights. The foregoing, taking into account that Simplified Joint Stock Companies are governed by provisions established in its statutes, provided that the issue under consideration is not regulated by Law 1258 of 2008, as in the present case.

In short, shareholder agreements in Simplified Joint Stock Companies shall not prevail over applicable law and/or its statutes. Provisions within such agreements contrary to preference rights established in its statutes shall be deemed null and void.

This update is intended as a complementary guide to Simplified Joint Stock Companies, to the extent that it highlights the need to amend corporate statutes with regard to preference rights, which cannot be countered or modified through shareholder agreements.