Regulatory update
Shareholder agreements in the Colombian SAS: what they are, and why bylaws are not enough
Every Colombian SAS has bylaws, because without them there is no incorporated company. Very few also have a shareholder agreement: the document that governs the relationship among shareholders, not the relationship between the company and its shareholders. These are two different documents, governed by two different rules, and confusing them leaves a family business or a small company with shareholders and no written rule for the day a disagreement shows up.
Schedule a consultationBylaws and shareholder agreements: two documents that do not replace each other
Bylaws are public, are recorded with the Commercial Registry, and govern the relationship between the company and its shareholders: shareholder identification, capital, and management structure, among other minimum contents the law requires. A shareholder agreement is different: it is a contract among shareholders that the company must honor once deposited, and it governs the relationship among the shareholders themselves. It is not recorded with the Commercial Registry. Colombia's corporate regulator, the Superintendencia de Sociedades, has said these agreements can build alliances that run alongside the bylaws without contradicting them.
Article 24 of Law 1258, not article 70 of Law 222
Published material exists that confuses the two rules, and at least one source cites a nonexistent "article 70 of Law 1258 of 2008" for depositing the agreement with the Chamber of Commerce. Neither claim is correct. The rule governing shareholder agreements in an SAS is article 24 of Law 1258 of 2008, not article 70 of Law 222 of 1995: the Superintendencia de Sociedades itself has said so plainly, because Law 1258 already regulated the matter for this corporate type. The agreement is deposited with the legal representative to be kept at the company administrative office, never with the Chamber of Commerce. Article 24 also has a broader scope than article 70: it covers the purchase and sale of shares, the right of first refusal, transfer restrictions, voting, and representation, with a maximum term of ten years renewable by unanimous vote, and it may be signed by any shareholder, including one who is also a company officer.
What the agreement cannot do alone: four provisions that require bylaws
Some protections are reserved exclusively for the bylaws, not the shareholder agreement: the prohibition on trading shares for up to ten years, prior shareholder-meeting authorization to trade them, the automatic invalidity of a transfer made in breach of that restriction, the grounds for excluding a shareholder, and the arbitration clause for corporate disputes. These five provisions can only be added or changed with the vote of one hundred percent of the outstanding shares, meaning they are cheap to negotiate when the company is formed and practically impossible to negotiate afterward, since any shareholder can veto them. A company that only has a shareholder agreement, without these clauses in its bylaws, has none of the five actually protected.
The clauses that hold up a well-drafted agreement
The agreement can include lock-up clauses (a right of first refusal over another shareholder's shares) and exit clauses: drag-along (forcing a minority shareholder to sell alongside the majority shareholder) and tag-along (giving the minority shareholder the right to sell on the same terms). Neither figure is named in Colombian law: they live under the 'any other lawful matter' that article 24 allows. This has a practical consequence many agreements overlook: if a shareholder breaches a drag-along or tag-along clause set out only in the agreement, the sale that breaches it is not automatically invalid the way it would be if the restriction were in the bylaws. Whoever wants that stronger protection has to put it in the bylaws.
The agreement can also include a non-compete pact among shareholders. Here it is worth being precise about what exists and what does not: the Superintendencia de Industria y Comercio requires these pacts to be ancillary, time-limited, narrow in scope, necessary, and not overly restrictive relative to market size, but that criterion was developed for corporate integrations (mergers and acquisitions), not for shareholders of a closely held company. There is no pronouncement from either the SIC or the Superintendencia de Sociedades specifically addressing a non-compete pact among SAS shareholders. Applying those five parameters here is a reasonable analogy, not a rule verified point by point, and the agreement should be drafted with that caution in mind: the closer it stays to those five parameters, the less exposed it is to having its validity challenged.
For arbitration or amicable settlement of corporate disputes, the law requires the pact to be in the bylaws; being in the agreement alone is not enough, and including it also requires the vote of one hundred percent of the shares. It is the same logic as the four provisions already mentioned: negotiating it early costs one signature, negotiating it late can cost the entire operation.
What happens without an agreement: three real scenarios
In a company with two shareholders at fifty percent each, a disagreement blocks any decision that needs a majority, and the law only offers a partial answer: a vote cast purely to block can be found abusive and lead to nullity and damages before the Superintendencia de Sociedades, but winning that case does not, by itself, unblock the company. An agreement with a tie-breaking mechanism set in advance avoids the lawsuit altogether.
Without a restriction in the bylaws, selling shares to a third party is unrestricted. The strongest protection against this, the automatic invalidity of a sale that breaches the restriction, only exists if the restriction is in the bylaws, and adding it after the company is formed requires the vote of the very shareholder who wants to leave.
An SAS has no general right of withdrawal at a fixed price: that right only exists in a transformation, merger, spin-off, or a global sale of assets that impairs shareholders' equity. When a shareholder withdraws or is excluded outside those cases and there is no agreed valuation formula, the price of their shares ends up being argued in a proceeding. The Superintendencia de Sociedades has already resolved a case like this in an SAS (Ruling 801-50 of 2013): it favored the discounted cash flow method over book value, finding the latter technically unsound unless the company's specific structure justifies otherwise. Agreeing in advance on the valuation method, the appraiser, and the cutoff date keeps that proceeding from starting from zero.
None of these clauses requires a long negotiation when agreed at the time the company is formed, while the shareholders still agree on everything. The same clause, negotiated after a disagreement, requires a unanimity that no longer exists. The company reviewing its internal work regulations or its personal data compliance almost always has shareholders with not a single document governing what happens the day they stop agreeing.