There are a growing number of options for starting a business online at low cost. This isn't always a good idea.
In a short blog series, we will provide examples of circumstances that require in-depth consideration and professional support if unpleasant surprises are to be avoided as much as possible.
In the last article, we discussed aspects of the multiple ownership structure, which, as the name suggests, is what companies are designed for. Capital is needed to establish most businesses, and in the initial stages, this capital is almost always risk capital. The primary form of financing provided for by the legal system for this is company participation, i.e., GmbH shares or stocks.
Whether you establish a GmbH (limited liability company) or a stock corporation (AG) or something else, or remain a sole proprietorship, has a major impact on your ability to obtain venture capital. The most important difference between an AG and a GmbH (limited liability company) is the capital marketability of the shares (particularly because they cannot be changed).
Although, like stocks (Art. 622 para. 4 CO) , GmbH shares ( Art. 774 para. 1 CO ) can have any nominal value greater than zero, the same applies. However, in the case of capital increases, GmbH shares may not be offered publicly ( Art. 781 para. 3 CO) . This is not further defined. The search for individual additional shareholders in specialist journals and newspapers should not be considered an impermissible public subscription offer within the meaning of the provision (see, for example, BBl 2002 3148 (3181) . Whether the prohibition on public placement also applies to the formation of a company does not appear to be certain.
The transfer of registered shares is considerably more complex than that of shares because the transfer agreement must contain specific provisions ( Art. 785 para. 2 in conjunction with Art. 777a of the Swiss Code of Obligations ) and the identity of the shareholders, along with the number and nominal value of their registered shares, must be recorded in the commercial register ( Art. 791 of the Swiss Code of Obligations). This results in another difference: that of the lack of anonymity: In a GmbH (limited liability company), unlike in a AG (stock corporation), shareholders and the transfer of shares are publicly accessible. This makes some types of transactions currently possible with shares impossible or difficult (e.g., derivatives, tokens) and increasingly exposes the parties to arbitrary official action (see https://msmgroup.ch/mantelhandel-bedenkliche-behoerdenpraxis/ ).
In many other respects, however, the AG and GmbH can be significantly modified compared to the statutory model. It's worth considering how this flexibility can be utilized for the benefit of the company in a specific case, rather than simply using standard statutes.
If you start a business on your own without legal expertise, there is a high risk that you will later have problems with growth and financing because you were initially reluctant to put in the effort to remove the gears and instead lubricate the gearbox (yes, the old petrol cars still had those...) with suitable means.
If you need support or have any questions, please feel free to contact us.
I am interested (email to sekretariat@m-win.ch; we will get back to you)
Note: This article was published on our blog by the independent law firm « Martin Rechtsanwälte GmbH ».
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