What is the average share capital

GmbH: liability, share capital, establishment

The GmbH is subject to double taxation. It is taxable on the net profit, and the shareholders must tax the distributed profit as income. The GmbH and the shareholders also owe property taxes on the share capital.

Share capital

The share capital of the GmbH (share capital) must be at least CHF 20,000 (Art. 773 OR). When the company is founded, the share capital must have been fully paid up. This does not necessarily have to be done as a cash deposit. The capital can also be brought in in the form of contributions in kind (e.g. real estate, machines, etc.).

When founding a GmbH, the founder (s) must open a blocked account with a bank. This is a bank account in which the capital of the emerging company is deposited until it is entered in the commercial register. A capital payment confirmation is issued and the money remains in the blocked account until the establishment of the company has been published in the commercial register. To open a blocked account at a bank, you need an officially certified copy of your ID or a signature from the person who signed the application.

After the company formation is published in the Swiss Official Gazette of Commerce, the money is transferred to the company's business account and the blocked account is closed. The transfer takes place at the earliest on the first working day after publication in the Swiss Official Gazette of Commerce. The payment of the capital by the bank takes place on presentation of an extract from the commercial register in the original or as a certified copy, from which the entry of the company can be seen.

Several shareholders can participate in the company capital as they wish. Your name will be entered in the commercial register as a shareholder. The nominal value of the ordinary shares of a GmbH must be at least CHF 100 (Art. 774 OR).

If the stake reaches or exceeds 25 percent of the share capital, the holder or the acquirer must notify their company of the beneficial owner. The GmbH itself has to keep a register of the beneficial owners of the basic shares.

A GmbH can resolve to increase the share capital at a shareholders' meeting. In this case, the equity base is strengthened by adding new shareholders. Formally, an amendment to the articles of association and entry in the commercial register (Art. 781 OR) is required.

External financing with credits and loans is usually also possible with a corporation provided the desired collateral is provided. The creditworthiness determines the amount of the interest rate to be paid by the borrower.

In addition to the above-mentioned company law options for accepting external investors, there are financing options that range between debt and equity. Such mezzanine capital is granted in the form of convertible and option loans or loans with a performance-related interest rate (profit-sharing loans).

Formation of reserves

5% of the annual profit of a GmbH must be allocated to the legal reserves until these accumulate 20% of the share capital. In the event of an annual loss, there is no 5% allocation to the statutory reserves. The GmbH can also create so-called special reserves (OR 671, OR 672).

The basic dividend is 5% of the share capital. A freely determinable variable distribution in excess of this 5% is called a super dividend. On this in turn, legal reserves amounting to 10% of the super dividend must be created.

The profit shares for the management (bonuses) are variable and may only be distributed once the basic dividend has been paid out. Legal reserves of 10% of the royalties must also be created for royalties.

Bookkeeping

A GmbH that exceeds two of the following threshold values ​​in two consecutive financial years is subject to an ordinary audit (Art. 727 OR):

  • Balance sheet total: CHF 20 million
  • Turnover: CHF 40 million
  • Full-time positions: 250

In addition, public companies and those that are obliged to prepare consolidated financial statements must always carry out a proper audit.

The rest are subject to limited revision. You can also dispense with an audit entirely if you employ fewer than ten people on an annual average.

The shareholders' meeting

The shareholders' meeting is the supreme body of the GmbH and determines the statutes, the managing directors and the auditors. It also approves the profit and loss account and the balance sheet, decides on the use of the profit and discharges the manager (s). GmbHs are subject to the same accounting regulations that apply to AGs. The management of the GmbH corresponds to the board of directors of an AG. In principle, all shareholders are entitled and obliged to jointly manage and represent the company. You may also entrust third parties (i.e. non-shareholders) with the management of the company.

Since July 1, 2015, every Swiss GmbH must be able to be represented by a person who is domiciled in Switzerland. This must have access to the directory of the shareholders and the beneficial owners reported to the company. Like the board of directors of an AG, the managing directors of a GmbH are personally liable for damage caused by intentional or negligent breach of duty.

Exit, succession plan

A GmbH can only be transferred through the written transfer of the shares (OR 785). The assignment of the shares requires the approval of the shareholders' meeting. Unless otherwise stipulated in the articles of association, approval is given with a quorum of at least two thirds of the votes represented and with an absolute majority of the entire share capital with which an exercisable voting right is associated (OR 786, 808b I No. 4).

In material terms, all or part of the business operations are sold through the transfer of assets and liabilities. The takeover of the assets or the business of a GmbH is based on the provisions of the Merger Act (OR 181 IV). For the transfer of employment relationships, OR 333 is binding.

The chosen company name can be used indefinitely. In the case of partnerships, the change of a partner has no effect on the company name and the choice of another legal form ideally only affects the specification of this legal form (Art. 954 OR).