COLOMBIA Law and Practice Contributed by: Gabriela Mancero, Daniel Peña, Maria Fernanda González and Andrea Sánchez Gallardo, Peña Mancero Abogados
In the case of simplified joint stock companies, these agreements may deal with the purchase or sale of shares, the preference for acquiring them, the restrictions for transferring them, the exercise of voting rights, the person who will represent the shares at the meeting and any other lawful matter. For other types of corporations, shareholders’ agreements typically address voting in a uniform or specific manner during shareholders’ meet- ings. Such agreements may include provisions that enable one or more shareholders, or a third party, to represent all shareholders at those meetings. 6.12 Irrevocable Commitments The possibility of making pre-agreements is provided for, in which case compliance with the rules regarding good practices and uses must be observed, and a copy of the executed con- tract must be sent or – if it is not in writing – a document that accurately describes everything agreed upon. The pre-agreement may not con- tain clauses that prevent, hinder or make the participation of shareholders of the affected company in competing offers more burdensome. When an ongoing offer is improved, the recipi- ents of the offer who have already accepted it will automatically benefit from the conditions of the modification. 6.13 Securities Regulator’s or Stock Exchange Process Prior to carrying out the tender offer, the offeror must request authorisation for the transaction from the FSC, which will have five business days from the date the application is filed to make any pertinent observations. The offer notice must be published within five days following the expira- tion of this period, provided that the FSC has
raised no objections. If objections are raised, the term for publishing the notice begins from the date on which the FSC confirms its approval of the information, data and clarifications request- ed. Authorisation is granted for the transaction as a whole; neither the price nor other terms are subject to the FSC’s approval. Timeline The timeline for the tender offer is defined by regulations that set a maximum period for accepting the public acquisition offer; however, the offeror may set the acceptance period with- out exceeding the maximum limit stipulated by law. On the other hand, if a competing offer is announced, it must follow the same procedure established for the preceding acquisition offer, and the first offer notice must be published no later than two business days before the expira- tion of the acceptance period for the preceding offer. Therefore, the timeline for each offer pro- ceeds independently. 6.14 Timing of the Takeover Offer The offeror may extend the initially established acceptance period for the offer, provided that notice is given at least three business days before the initial period expires and the FSC is informed in advance. This extension, combined with the initial period, must not exceed the maxi- mum time limit specified. If the tender offer requires authorisation or an opinion from an administrative authority, includ- ing a decision by the SIC on the acquisition pro- ject, the offeror must submit this opinion to the FSC along with the authorisation request.
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