In the supplement to the Official Gazette No. 269 of March 15, 2023, the amendments to the Law on Companies for the Optimization and Promotion of Business and for the Promotion of Corporate Governance were published, the most relevant aspects are as follows:
a) Sole shareholder/member: Corporations and the limited liability companies may be incorporated by unilateral act by a single shareholder/member.
b) Transfer of units: Units issued by limited liability companies are freely transferable, provided the transfer is between members of the company, and may be carried out by means of a private document.
c) Pledge over units: Units issued by limited liability companies may be pledged with the unanimous consent of the members.
d) Suspension of dividend distribution: Foreign members/shareholders who do not disclose their chain of ownership until the corresponding beneficial owner is identified, in addition to the prohibition to attend, intervene and vote in the ordinary shareholders’ meetings, may not receive the corresponding dividends declared by the company until such information is provided.
e) Right of accretion: The bylaws of a corporation may recognize the right of accretion, i.e., a shareholder will have the possibility of subscribing the shares resulting from a capital increase that are not assumed by another shareholder, with priority to third parties. If there are several shareholders interested in assuming the shares offered, these will be allotted in proportion to the participation of each one of them in the capital of the company. In the event of silence in the bylaws, the general shareholders’ meeting, at the time of establishing the basis for the capital increase, may grant the shareholders the aforementioned right of accretion.
a) Sole shareholder/member: Corporations and the limited liability companies may be incorporated by unilateral act by a single shareholder/member.
b) Transfer of units: Units issued by limited liability companies are freely transferable, provided the transfer is between members of the company, and may be carried out by means of a private document.
c) Pledge over units: Units issued by limited liability companies may be pledged with the unanimous consent of the members.
d) Suspension of dividend distribution: Foreign members/shareholders who do not disclose their chain of ownership until the corresponding beneficial owner is identified, in addition to the prohibition to attend, intervene and vote in the ordinary shareholders’ meetings, may not receive the corresponding dividends declared by the company until such information is provided.
e) Right of accretion: The bylaws of a corporation may recognize the right of accretion, i.e., a shareholder will have the possibility of subscribing the shares resulting from a capital increase that are not assumed by another shareholder, with priority to third parties. If there are several shareholders interested in assuming the shares offered, these will be allotted in proportion to the participation of each one of them in the capital of the company. In the event of silence in the bylaws, the general shareholders’ meeting, at the time of establishing the basis for the capital increase, may grant the shareholders the aforementioned right of accretion.
f) Enforceability of shareholders’ agreements vis-à-vis third parties: As a general rule, shareholders’ agreements concerning any lawful matter shall be binding among the shareholders, but not enforceable against third parties. However, the agreement will become enforceable against a third party when it is proven that such third party knew of its existence and provisions. The breach of a shareholders’ agreement will give rise to the aggrieved counterparty’s right to request, at its discretion, the performance or termination of the agreement, and in both cases, compensation for damages.
g) Financial solvency report for capital reduction processes: When the general shareholders’ meeting resolves to reduce capital, it must simultaneously approve a solvency report of the company, prepared, and signed by its legal representative. This report must demonstrate, based on the company’s projected financial indicators, that after the capital reduction the company will continue to be able to meet its obligations and finance its operational activities. The legal representative who prepares a solvency report that is unfounded or does not accurately reflect the company’s financial situation shall be jointly and severally liable for the company’s obligations.
h) Suspension of the effects of the resolutions adopted by the general shareholders’ meeting: If upon a request of any shareholder, the Superintendence of Companies, Securities and Insurance establishes that: (i) the general shareholders’ meeting or any other body of the company approved one or more resolutions in contravention of the Law on Companies, its implementing regulations or the bylaws of the company; or that (ii) in their approval, the shareholders or managers incurred in abuse of their majority, minority or parity voting rights, the Superintendent shall issue a reasoned resolution in which he/she shall order the suspension of all the effects of the respective resolution. The suspension does not proceed if the resolution has been implemented when the petition was received.
i) Addition of items to the agenda: Shareholders who individually hold at least 5% of the capital stock are entitled to have an additional item included on the agenda of a duly called shareholders’ meeting. However, no more than five additional items may be included in addition to those included in the call to the meeting. If there are several requests, they will be dealt with in the order of their submission.
j) Shareholders’ non-compete obligation: The bylaws of a corporation may prohibit its shareholders from participating in acts or operations that imply competition with the company, or from taking business opportunities that correspond to the company, unless expressly authorized by the shareholders’ meeting. This non-compete obligation may also be included in a shareholder’s agreement.
k) Limits on the provision of services by external auditors: The external auditor may not provide any other service or collaboration to the audited company, through individuals or entities, directly or indirectly related, as long as it continues to be hired as external auditor. An individual or entity who has rendered services other than external auditing services to the audited company in the immediately preceding year may not be an external auditor of a company. Likewise, the external auditor may not, within the year following the termination of its agreement, render any other service to the audited company. No person or auditing firm may perform external audits for more than five consecutive years for the same company.
l) Effects of the merger and subrogation of operating permits: In cases of merger, the absorbing company shall automatically subrogate the contractual and non-contractual rights and obligations of the absorbed companies in the exercise of their business activity. It will also be subrogated over any operating licenses, permits, property titles, or other authorizations that may have been granted to the absorbed company in the exercise of its operational activity, provided that the absorbing company has all the necessary powers or capacity to exercise rights with respect to such operating licenses, permits, property titles, authorizations, etc.
m) Effects of the change of domicile of a foreign company to Ecuador with respect to its branch: If a foreign company decides to transfer its corporate domicile to Ecuador and it already has a branch in the country, the Superintendence of Companies, Securities and Insurance will provide, at the time of approving the change of domicile, the revocation of the operating permit granted to the foreign company, without liquidation, and the cancellation of the documents related to the branch in the country. The company domiciled in Ecuador will be responsible for the obligations previously acquired by its branch.
n) Corporate acts by private instrument: Limited liability companies and corporations may be incorporated either by public deed or by means of a private document, which shall not be subject to any notarial process. Likewise, any corporate act subsequent to the incorporation of the aforementioned companies may be executed in a private document, without being subject to any notarial process. The public deed or the private document must be registered in the corresponding registries. When the assets contributed include assets whose transfer requires a public deed, the incorporation of the aforementioned companies and the amendments to the by-laws must observe said formality. The companies that carry out activities related to financial, stock market and insurance operations must be incorporated and their bylaws must be amended by public deed.
o) Elimination of grounds for dissolution due to losses: The grounds for dissolution due to losses are eliminated as well as the grounds for revocation of the operating permit of branches of foreign companies due to losses.
p) Term for the issuance of the taxpayer number: The Internal Revenue Service, upon request of a party, shall issue the taxpayer number (RUC) within a non-extendable term of 24 hours from the registration of a simplified stock corporation in the Superintendence of Company’s Company Registry, and of any other type of company in the Commercial Registry.
q) Joint and several liability of the legal representative: The company’s legal representatives will not be liable for labor obligations or of any other nature incurred by the company. However, Article 36 of the Labor Code establishes that the employer and its representatives will be jointly and severally liable in their relations with the employee.
r) Sole shareholders and wholly-owned companies: In corporations in which a an individual or an entity is the sole shareholder, it will not be mandatory to hold shareholders’ meetings. In these cases, the shareholder will record the resolutions approved in minutes signed by him.
In the case of a merger, if the absorbing company is the holder of all the shares or equity interests issued by the absorbed company or companies, or when the absorbed and absorbing companies are owned, directly or indirectly, by the same partner or shareholder, the operation may be carried out by a resolution adopted by the legal representatives or by the boards of directors of the absorbing company and without the approval of the merger by the shareholders’ meeting of the absorbed company or companies.
g) Financial solvency report for capital reduction processes: When the general shareholders’ meeting resolves to reduce capital, it must simultaneously approve a solvency report of the company, prepared, and signed by its legal representative. This report must demonstrate, based on the company’s projected financial indicators, that after the capital reduction the company will continue to be able to meet its obligations and finance its operational activities. The legal representative who prepares a solvency report that is unfounded or does not accurately reflect the company’s financial situation shall be jointly and severally liable for the company’s obligations.
h) Suspension of the effects of the resolutions adopted by the general shareholders’ meeting: If upon a request of any shareholder, the Superintendence of Companies, Securities and Insurance establishes that: (i) the general shareholders’ meeting or any other body of the company approved one or more resolutions in contravention of the Law on Companies, its implementing regulations or the bylaws of the company; or that (ii) in their approval, the shareholders or managers incurred in abuse of their majority, minority or parity voting rights, the Superintendent shall issue a reasoned resolution in which he/she shall order the suspension of all the effects of the respective resolution. The suspension does not proceed if the resolution has been implemented when the petition was received.
i) Addition of items to the agenda: Shareholders who individually hold at least 5% of the capital stock are entitled to have an additional item included on the agenda of a duly called shareholders’ meeting. However, no more than five additional items may be included in addition to those included in the call to the meeting. If there are several requests, they will be dealt with in the order of their submission.
j) Shareholders’ non-compete obligation: The bylaws of a corporation may prohibit its shareholders from participating in acts or operations that imply competition with the company, or from taking business opportunities that correspond to the company, unless expressly authorized by the shareholders’ meeting. This non-compete obligation may also be included in a shareholder’s agreement.
k) Limits on the provision of services by external auditors: The external auditor may not provide any other service or collaboration to the audited company, through individuals or entities, directly or indirectly related, as long as it continues to be hired as external auditor. An individual or entity who has rendered services other than external auditing services to the audited company in the immediately preceding year may not be an external auditor of a company. Likewise, the external auditor may not, within the year following the termination of its agreement, render any other service to the audited company. No person or auditing firm may perform external audits for more than five consecutive years for the same company.
l) Effects of the merger and subrogation of operating permits: In cases of merger, the absorbing company shall automatically subrogate the contractual and non-contractual rights and obligations of the absorbed companies in the exercise of their business activity. It will also be subrogated over any operating licenses, permits, property titles, or other authorizations that may have been granted to the absorbed company in the exercise of its operational activity, provided that the absorbing company has all the necessary powers or capacity to exercise rights with respect to such operating licenses, permits, property titles, authorizations, etc.
m) Effects of the change of domicile of a foreign company to Ecuador with respect to its branch: If a foreign company decides to transfer its corporate domicile to Ecuador and it already has a branch in the country, the Superintendence of Companies, Securities and Insurance will provide, at the time of approving the change of domicile, the revocation of the operating permit granted to the foreign company, without liquidation, and the cancellation of the documents related to the branch in the country. The company domiciled in Ecuador will be responsible for the obligations previously acquired by its branch.
n) Corporate acts by private instrument: Limited liability companies and corporations may be incorporated either by public deed or by means of a private document, which shall not be subject to any notarial process. Likewise, any corporate act subsequent to the incorporation of the aforementioned companies may be executed in a private document, without being subject to any notarial process. The public deed or the private document must be registered in the corresponding registries. When the assets contributed include assets whose transfer requires a public deed, the incorporation of the aforementioned companies and the amendments to the by-laws must observe said formality. The companies that carry out activities related to financial, stock market and insurance operations must be incorporated and their bylaws must be amended by public deed.
o) Elimination of grounds for dissolution due to losses: The grounds for dissolution due to losses are eliminated as well as the grounds for revocation of the operating permit of branches of foreign companies due to losses.
p) Term for the issuance of the taxpayer number: The Internal Revenue Service, upon request of a party, shall issue the taxpayer number (RUC) within a non-extendable term of 24 hours from the registration of a simplified stock corporation in the Superintendence of Company’s Company Registry, and of any other type of company in the Commercial Registry.
q) Joint and several liability of the legal representative: The company’s legal representatives will not be liable for labor obligations or of any other nature incurred by the company. However, Article 36 of the Labor Code establishes that the employer and its representatives will be jointly and severally liable in their relations with the employee.
r) Sole shareholders and wholly-owned companies: In corporations in which a an individual or an entity is the sole shareholder, it will not be mandatory to hold shareholders’ meetings. In these cases, the shareholder will record the resolutions approved in minutes signed by him.
In the case of a merger, if the absorbing company is the holder of all the shares or equity interests issued by the absorbed company or companies, or when the absorbed and absorbing companies are owned, directly or indirectly, by the same partner or shareholder, the operation may be carried out by a resolution adopted by the legal representatives or by the boards of directors of the absorbing company and without the approval of the merger by the shareholders’ meeting of the absorbed company or companies.
Specialist in Corporate
Milton Carrera, junior partner at CorralRosales
mcarrera@corralrosales.com
+593 2 2544144
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