Implementation of Equity Impairment and Insolvency Risk Indicators

Recently, the Colombian Superintendence of Corporations referred to the obligation of implementing equity impairment and insolvency risk indicators in the analysis of companies’ financial information. In this regard, it recalled that, in accordance with the provisions of Law 2069 of 2020 and Decree 1378 of 2021, the directors of commercial companies have the obligation to monitor the financial statements, financial information and projections of the company. Likewise, they have the obligation to determine if the indicators established in the aforementioned Decree 1378 on equity impairment and insolvency risks are applicable to the company, in accordance with its business model and the commercial sector in which it develops its corporate purpose. If these indicators are applicable, they are of mandatory implementation and doing so demonstrates proper management by the corporate directors. Therefore, in the event that they are not implemented when there is an obligation to do so, it will be considered a breach of the directors’ duties, who may be liable for damages caused to the company, to partners or to third parties by said breach.

In addition, the superintendence established that, once these indicators are implemented and analyzed, the following conclusions can be reached: (i) that there is no equity impairment or insolvency risk, (ii) that there is both equity impairment and insolvency risk, (iii) that there is equity impairment but no insolvency risk, or (iv) that there is no equity impairment but there is risk of insolvency. Additionally, it specified that the implementation of these indicators is not a simple formality, since the results of the analysis must be shared with the company’s highest corporate body (shareholders’ assembly or meeting of partners). The foregoing, in order to allow it to clearly know the company’s situation and risks and to take the decisions it deems appropriate based on the information provided by the company’s directors.

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Share Capital Reduction with Reimbursement of Contributions

On April 27th, the Superintendence of Corporations issued Opinion No. 220-106568 on the share capital reduction of a Colombian company with reimbursement of contributions, in which it relates its previously issued opinions on this matter. Bear in mind that the share capital of a company is made up of the contributions that the partners or shareholders have made, which then become part of the assets of the entity, which can use these good to pursue its corporate purpose.[1] In accordance with article 122 of the Colombian Commercial Code, this decrease in share capital requires the company’s by-laws to be reformed, therefore, in addition to requiring the approval of the partners or shareholders to proceed with this measure, it must comply with what the by-laws and the law establish for the approval and formalization of by-laws reforms[2]. Additionally, the reimbursement of contributions refers to the repayment to associates of the amount of the contribution they previously made to the company. This amount will be calculated depending on the share capital reduction that is effectively enacted and in proportion to each associate’s participation, if something different has not been established in the by-laws[3].

In addition to the above, the Superintendence of Corporations has established in its Basic Legal Memorandum that, in accordance with article 145 of the Colombian Commercial Code, it authorizes, in a general manner, the share capital reduction of all companies that are subject to its inspection, surveillance or control and that are included in one of the following circumstances: (i) the company does not have external liabilities, (ii) the company does have external liabilities, but once the capital reduction is made, the company assets are at least double the external liabilities, or (iii) the creditors expressly accept in writing the share capital reduction, regardless of the company’s assets amount. However, in the event that the above is not met, the company must submit in writing a special request for the superintendence to authorize the intended share capital reduction with reimbursement of contributions. Additionally, in the event that the external liabilities of the company stems from social benefits, the competent labor authority must give its approval.

The reimbursement of contributions to interested partners or shareholders can be made through the delivery of money or goods. However, the way in which this reimbursement will be made and the appraisal of the assets that will be delivered to the associates, must be discussed and approved by the highest social body (shareholders’ assembly or meeting of partners), since there is no legal provision that indicates the procedure to be followed.

Finally, it is important to bear in mind that the company’s legal representative and statutory auditor (if appointed), are liable for any damages caused to the associates that do not participate in the reimbursement, or to the company itself, with the execution of this operation. Likewise, they must ensure that the pursuit of the company’s purpose is not adversely affected by the realization of this reimbursement operation.

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[1] Official Letter 220-53255 of 2001, Colombian Superintendence of Corporations.

[2] Article 147, Colombian Commercial Code.

[3] Article 144, Colombian Commercial Code.