COLOMBIA Law and Practice Contributed by: Jaime Trujillo, Andres Crump and Natalia Ponce de León, Baker McKenzie
7.3 Producing Financial Statements Bidders must include audited financial state - ments (of the last fiscal year), prepared in accord - ance with IFRS, as part of the offering booklet. 7.4 Transaction Documents The SFC has the power to request disclosure of the transaction documents in full. However, they are usually satisfied with detailed summaries of such documents. In a business combination, by way of acquisition, merger, or otherwise, directors of the potential buyer or merger party play an important role in leading the process. In both, private and listed companies, directors’ fiduciary duties are owed to the company, as opposed to the interest of shareholders alone. Note that directors of the targets do not necessarily play a role in an acquisition, as the decision to sell the shares of a company lies solely with the shareholders, and not with the board of directors or any other body of the target. 8. Duties of Directors 8.1 Principal Directors’ Duties Directors are generally held to the standard of an informed “good businessman” , which demands a level of care and diligence greater than that of an average individual. They should follow three fundamental principles of conduct: good faith, loyalty, and diligence. Good faith assumes the legitimacy of actions without deceit or malice, aligning with ethical standards. Loyalty requires administrators to advance the company’s objectives without yield - ing to conflicts of interest, maintaining integrity and prioritising the company’s welfare over per -
• information on the methodology used to value the securities offered as payment (if any); • certificates held by the bidder and its invest - ment bank on the accuracy of the offering memorandum and information on authorisa- tions to issue the offer; and • any other information requested by the SFC. Once a bidder files the public tender offer authorisation request, the SFC must notify the BVC to suspend the negotiation of the shares until the day after the publication of the tender offer notice. From this moment, the market will know that a public tender offer is to be launched. When approved by the SFC, the public tender offer can be made, and its content will become public. Further, when a bidder agrees to initiate a pub - lic tender offer and a shareholder commits to accepting the offer through “prearranged trans- actions” , the details of such agreements must be disclosed to the SFC, the BVC and the market at large at least one month before the date on which they are to be settled. 7.2 Type of Disclosure Required The public tender offer notice must be posted three times in the finance section of a national newspaper, the first within the five days follow - ing the expiration of the SFC’s term to make comments to the draft public tender offer notice and offering memorandum; the other postings cannot be spaced more than five calendar days apart. The public tender offer notice must also be posted in the official information bulletins issued by the BVC, on each day from the date the public tender offer notice is first published until the day set for acceptances.
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