Jun 6 2025
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The auditor was appointed to review two books of Avícola Las Margaritas, S.A. (Tax ID 6795587): the Shareholder Registry and the Assembly Minutes Book. The examination took place at the company's offices at 42 calle 20-91, zone 12, Guatemala City. The auditor stated his independence from both Avícola Las Margaritas, S.A. and Lisa, S.A. and indicated that the review was conducted in accordance with the International Standards on Auditing (ISAs).
The auditor found that folio 0002 of the Shareholder Registry records Lisa, S.A. as a shareholder of Avícola Las Margaritas, S.A., holding share certificate number 3 for a total of 375 shares. The reverse of the same folio contains annotations of judicial embargoes on Lisa, S.A.'s shares, dividends, and profits.
The auditor identified six judicial embargoes recorded in the Shareholder Registry, all encumbering Lisa, S.A.'s shares, dividends, and profits:
The auditor confirmed that the Shareholder Registry contains no record of any of these embargoes having been lifted or terminated by judicial order. All six embargoes, annotated between 2000 and 2012, remain in effect according to the records of the plaintiff entity itself. The entities that obtained the 2012 embargoes belong to the Avícola Villalobos Group, the same corporate group to which Avícola Las Margaritas, S.A. belongs, and which now seeks to declare time-barred the very dividends that its own affiliated companies have kept under embargo.
The auditor found that the Minutes Book contains up to assembly minute number 20. Minute number 19, corresponding to the annual ordinary general assembly held on June 10, 2014, approved (under item seven) the distribution of profits for fiscal year 2013. However, the auditor confirmed that this item did not specify the date or form of payment, nor the amount of dividends corresponding to Lisa, S.A. as a shareholder. The minutes further record Lisa, S.A.'s objection: it requested accounting information to determine the correct calculation of dividends, but this information was not provided.
The auditor included a technical observation: under standardized accounting principles, when the Shareholders' Assembly approves a dividend distribution, it is the Management and the persons responsible for the Governance of the Entity who, with knowledge of the company's cash flow position, determine the form, date, and amount of payment. Once distribution is decreed and approved, Management is obligated to announce these details to shareholders. This finding reinforces Lisa, S.A.'s position that the payment obligation was never enforceable, because the Board of Directors under the articles of incorporation (clause sixteen, subsection d) never set a date or form of payment, a necessary condition for exigibilidad to arise.