By: Norma Villalobos
Through the Legislative Decree No. 153, the Legislative Assembly recently approved amendments to the Commercial Code. The most relevant aspects of the approved amendments are the following:
- Articles 134 and 153 are amended eliminating bearer shares and establishing that all shares, as of the reform will be nominative.
- Article 155 is amended to establish the obligation of capital companies in general to keep a duly updated registry of the nominative shares they issue, which must contain the requirements outlined in said article. Besides adding to such companies the obligation to report on their shareholders and the distribution of dividends or profits, as provided in Art. 124 of the Tax Code.
- Article 158 is amended in its second paragraph, establishing that the nominative shares of a company that are fully paid may be transferred without the consent of the company, and even against an express agreement to the contrary.
- The first paragraph of Article 164 is amended in the sense that the company must consider as a shareholder the holder of the registered shares registered as such in the respective registry (Shareholders’ Registry Book of the company).
- The first paragraph of Article 212, the first part, and Roman IV are amended, establishing that the founder’s bonds will always be nominative and must contain the name or corporate name of the holder, the participation corresponding to the bond in the profits, and the period in which it must be paid.
- Article 338 related to the liquidation of corporations is amended to establish that the sums belonging to the shareholders and which it is not possible to pay at the General Meeting that approves the final balance sheet, in the manner expressed in Article 337, shall be deposited in a banking institution, to the order of the shareholder for which purpose, its number shall be indicated. Said deposit must be made within three working days from the date of approval of the final balance sheet, and if five years have elapsed without any person claiming delivery of the amounts deposited, the banking institution must deliver them to the General Fund of the State.
- The second paragraph of Art. 134 is repealed, which contemplated the shareholders’ right to demand that bearer shares be issued to them, provided that the corporate charter does not prohibit it once the nominal value of their shares has been fully paid.
- The final part of Article 154 and the second paragraph of Article 219, which established that the shares covered by bearer securities were transferable by the simple material delivery of the securities, and that bearer bonds do not require authorization to be transferred are repealed, since the amendments eliminate bearer securities, respectively.
- The following are established as transitory provisions:
- Companies that at the entry into force of the Decree have issued bearer shares or founder bonds must convert them into registered securities and modify their articles of incorporation, if applicable, within one year from the day following the entry into force of the Decree.
- Legal entities that distribute profits or dividends to the bearers of shares or bonds to the founder, under the bearer form within the term indicated in the previous paragraph, must inform the Tax Administration within the three months following the distribution.
- Once the period granted for the conversion of bearer shares or bonds to registered shares or bonds has ended, those companies that do not comply with such obligation shall be subject to the following:
– The entities supervised by the Superintendency of the Financial System may not carry out active, passive, or neutral operations whose capital is represented in bearer shares;
– The General Directorate of Internal Taxes will proceed to block the Single Taxpayers Registry (RUC) of the companies that have not carried out the conversion of the securities and will unblock them until they do so.
– The bearers of the founder’s shares and bonds may not participate with voting rights in shareholders’ meetings nor receive profits or dividends until the shares and bonds are registered as nominative and reported to the Tax Administration.
– Bearer bonds that are not converted into nominative may not be used to participate in the annual net profits to which Articles 210, 211, 213, and 215 of the Code of Commerce entitle them.
– The companies that, after six months from the expiration of the term provided, have not concluded the procedure for the conversion of bearer securities into registered securities, must immediately begin the process of dissolution and liquidation, according to the procedure provided in the Code of Commerce.
The amendments approved by the Legislative Assembly are already in effect and were published in the Official Gazette No. 185 Volume No. 432 dated September 29, 2021.