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Dear Startups*,

 

Certain corporate housekeeping tasks are coming up to you. As your startup lawyers, we’d like to support you in the best possible way to make this process smooth and easy for you.

 

With this newsletter we want to provide you with useful templates and inform you about the most important tasks:

 

  • Annual General Meeting
  • Minutes of the Meeting of the Board of Directors
  • Lapse of Opting-Out of the Statutory Auditing
  • Commercial Register changes
  • Keeping a share register and register of beneficial owners
  • Storage of corporate documents / records
  • Capital Loss and Over-Indebtedness pursuant to Art. 725 CO
  • Updating Conditional Capital
  • Taxes

 

Of course, we are always at your disposal for information via e-mail/telephone.

 

Your Kellerhals Carrard Startup Desk

 

*If you are an investor or startup supporter, please feel free to forward this newsletter to your startup contacts.

 


 

Convocation

 

The AGM has to take place every year within six months after the end of the financial year, i.e. until 30 June for companies with a calendar year as fiscal year. The AGM is generally convened by the Board of Directors (the “BoD”), whereby the convocation period pursuant to the respective articles of association has to be observed (usually 20 calendar days); the convocation period can only be disregarded if all shareholders attend the AGM, either in person or through a proxy acting on the basis of a power of attorney (universal meeting). The AGM is convened in writing by invitation, stating the agenda items and motions of the BoD. The shareholders can be typically represented at the AGM by a proxy, and therefore a proxy form has to be enclosed with the invitation. Since the BoD determines the agenda items and has to insert its motions, a corresponding BoD resolution has to be passed before the invitation is sent out in which the convening of the AGM is decided together with the agenda items and motions. If not already done, the BoD must also approve the accounts submitted to the AGM.

 

The form in which the invitation to the AGM is delivered is generally governed by the provisions of the articles of association. In most cases, these allow the delivery by letter or even e-mail. However, no later than 20 days prior to the AGM, the annual report and audit report (if any) have to be made available for inspection by the shareholders at the offices of the company and shareholders with registered shares have to be notified of this in writing (i.e. by mail). Accordingly, invitations to the AGM have to be sent regularly by mail if you want to avoid legal risks.

 

If the company is subject to a full audit (ordentliche Revision), the auditor has to be invited to the AGM as well. However, the AGM may decide unanimously to waive the auditor's presence. If the company is subject to a limited audit (eingeschränkte Revision) or has made use of the opting-out, the presence of an auditor is not necessary. For the vast majority of startups, the second case applies.

 

Agenda / Proposals

 

Standard agenda items are:

  • Approval of the annual financial statements or the audit report, if the company has elected an auditor and/or is subject to an audit;
  • Approval of the consolidated financial statements and the management report, if these are to be prepared;
  • Allocation of the balance sheet profit or net loss;
  • Discharge to the BoD (and the management).

 

Optional agenda items as required or necessary:

  • Re-election or new election of the BoD (in the event of re-election, the statutory term of office, which usually is 1 or 3 years, has to be observed);
  • Re-election or election of the auditors (also here, the term of office has to be taken into account);
  • Other topics, if applicable, such as amendments to the articles of association.

 

Quorum

 

The law does not provide for an attendance quorum, i.e. the AGM is quorate as soon as only one shareholder participates. However, shareholders' agreements or articles of association may provide for such an attendance quorum, which has then to be observed accordingly. In such cases, we recommend – if necessary – obtaining powers of attorney so that the required quorum can be achieved.

 

The quorum for resolutions is primarily governed by the articles of association, whereby shareholders’ agreements often contain more extensive provisions, which must then be observed accordingly.

 

Templates

  • Approval Invitation AGM (EN) / (DE) / (FR)
  • Invitation AGM (EN) / (DE) / (FR)
  • Proxy/Admission Card (EN) / (DE) / (FR)
  • Power of Attorney AGM (EN) / (FR)
  • Minutes AGM (EN) / (DE) / (FR)

 

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By law, Board meetings must be recorded in minutes. These must be signed by the Chairman and the Secretary (who may be one and the same person). We know from experience that minutes are often neglected. In order to reduce the liability exposure of BoD members as much as possible, but also in order not to drop out completely within the scope of a legal due diligence, we recommend that you take minutes of BoD meetings cleanly. Slides can also be used, but they should be attached to a protocol note. We have created templates to log both, circular resolutions and meetings. Circular resolutions can also be taken electronically (via e-mail) on a regular basis, but for the sake of good order they should be ratified in a later formal protocol. More detailed information on how to proceed can also be found regularly in the Articles of Association and the Organizational Regulations.

 

Templates:

  • Minutes of the BoD-Meeting (EN) / (DE) / (FR)
  • Minutes of the BoD-Conference Call (EN) / (DE) / (FR)
  • Resolution by Written Consent of BoD (EN) / (DE) / (FR)

 

 

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Many startups (understandably) start without a formal auditor. However, this is only possible as long as (i) all shareholders agree, (ii) your company has less than 10 full-time equivalent (FTE) positions on an annual average and (iii) your company is not subject to a full audit based on article 727 of the Swiss Code of Obligations. You must therefore check whether these requirements were met in the 2018 financial year. Regarding the 10 FTE threshold, the majority opinion is that the percentages of all employment contracts (part time and full time) have to be added together.

 

If the requirements are no longer met, there is a (usually limited) audit obligation and therefore an extraordinary shareholders’ meeting must be held before the AGM for the year 2018 in order to elect an auditor. This must then be registered in the commercial register. If the required audit report is not available at the AGM, the resolutions approving the annual financial statements and the appropriation of retained earnings or losses are null and void.

 

 

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Certain changes must be notified to the Commercial Register for registration, including the following:

 

  • Resignations and elections to the BoD;
  • Election, dismissal or amendment of the auditors;
  • Change of domicile of the company;
  • Granting and/or deleting as well as changes of signatory powers;
  • Constitution of the BoD;
  • Change of personal data (name, home town, place of residence);
  • Changes with respect to share capital and purpose;
  • Change of company name.

 

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Every company with registered shares is obliged to keep a share register and a register of beneficial owners, whereby the second may be combined with the share register.

 

Regarding the register of beneficial owners: Every shareholder holding at least 25% of the issued share capital must notify the company of the natural person to whom the shares are beneficially attributable. In the case of natural persons as shareholders, this is usually the shareholder him-/herself. In the case of legal entities as shareholders, this is a natural person who holds at least 50% of the legal entity (shareholder). In some cases, it can be difficult to find out how the beneficial owner is to be determined. If in doubt, it is recommendable to seek advice in order to avoid the harsh consequences applicable in case of omitted reporting.  

  

Templates:

  • Share register (EN) / (DE) / (FR)
  • Notification BO legal entity (EN) / (DE) / (FR)
  • Notification BO natural person (EN) / (DE) / (FR)

 

 

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Every company should keep all corporate documents such as minutes, contracts of all transactions, share registers, extracts from the commercial register, complete proof of share transfers (share purchase contracts incl. declarations of assignment), any public documents incl. corresponding documents, agreements on loans, employment contracts, documents on IP/IT, shareholders' agreements, etc. The documents should be available at least in digital form and should be easily accessible. The exact requirements can be found in an Ordinance of the Federal Council (link). This is particularly important for any future due diligence. 

 

 

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The BoD is responsible for the financial management of the company. This means that the BoD is obliged to act in financial crisis situations and to initiate appropriate measures, which in turn requires regular monitoring of the company's financial situation by the BoD.

 

If the company's annual balance sheet shows that half of the share capital and the legal reserves are no longer covered by assets, the BoD must without delay convene a shareholders’ meeting and propose restructuring measures (Art. 725 para 1 CO).

 

Where there is good reason to suspect an over-indebtedness, i.e. if the liabilities are no longer covered by the assets at either going concern or liquidation values, the BoD must prepare an interim balance sheet and have it audited by a licensed auditor (also in the case of an opting-out). If the audited interim balance sheet shows an over-indebtedness of the company, the BoD is obliged to notify the court (over-indebtedness notification) unless company creditors subordinate their claims to those of all other creditors to the extent of the capital deficit (Art. 725 para. 2CO). The notification can be put off for a certain period of time if specific requirements are met. Given that failure to observe the duties under Art. 725 CO can lead to personal liability of the members of the BoD, specific legal advice should be sought in time.

 

While the accountant of the company can and will assist in monitoring the financial situation of the company, the BoD is ultimately responsible and must carry out the above actions on its own initiative.

 

 

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If the articles of association provide for conditional capital and shares out of the conditional capital have been issued in the financial year 2018 (e.g. as part of employee participation plans to employees), the share capital must be adjusted in the articles of association no later than three months after the end of the financial year (if not already done), i.e. by the end of March for companies with a calendar year as fiscal year, and must be filed with the Commercial Register for registration.

 

 

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Reserves from Capital Contributions (CR)

 

Changes in the reserves from capital contributions (Kapitaleinlagereserven) must be reported to the Federal Tax Authorities (FTA) with Form N°170 without being requested to do so. This can become applicable in case of repayments, or pratically more relevant for startups, in case of capital increases with a share premium (Agio). Repayments to shareholders must be reported within 30 days of the AGM resolving the repayment or (if no AGM resolution has been passed) no later than 30 days after the repayment. It should be noted that the conversion of reserves from capital contributions into share capital is also considered as a repayment and has as such to be reported accordingly. If there was a capital increase with a share premium in the business year 2018 only, Form N°170 must be submitted within 30 days after the AGM approving the annual financial statements for the business year 2018, together with the duly signed annual financial statements (which show the balance of the reserves from capital contributions at the end of the business year) and the corresponding account statements, duly signed as well. These declarations are necessary to allow a later distribution (or other use of the capital Investment) to be made in a tax-neutral manner. Maybe, your accountant has already pointed this out to you or will certainly be able to help you with the declaration.

 

Withholding tax / dividends

 

If (a) the balance sheet total of the annual financial statements 2018 exceeds 5 million, (b) the AGM concerning the financial year 2018 approves a taxable dividend, (c) distributions to shareholders that are subject to withholding tax have been made in the financial year 2018, (d) the company claims the participation exemption or (e) claims benefits according to a double taxation agreement, the FTA must be notified within 30 days after the AGM. After the annual financial statements have been approved, Form N°103 must be sent together with the signed financial statements to the FTA without being requested to do so.  If a taxable distribution has been made, the withholding tax has to be notified and the taxes of 35% must be paid already within 30 days after the due date of the distribution. Furthermore, please be aware, that also interest payment (e.g. made on convertible loans) might be subject to withholding taxes in certain cases. If you have any questions or do need support with the filings, we and your accountant will certainly be glad to help you.

 

Correct issuance of salary statements for employee stock ownership plans (ESOP)

 

All startups which have allocated shares, options, phantom stocks, stock appreciation rights or other forms of equity-based participations (employee participation) to their employees or board members must comply with the provisions of the "Ordinance on Attestation Requirements for Employee Participations" (MBV). Annually, together with the annual salary statements, the company has to provide to all holders of any kind of employee participation (and in some Cantons to the tax authorities) an attachment to the salary statement, declaring the number and certain specifications regarding the employee participation rights, the holder holds at the end of the taxable year. Furthermore, in any year an employee or member of the BoD realizes taxable income in connection with an employee participation (e.g. allocation/sale of employee shares, exercise of options, settlement of phantom shares, etc.) an additional certificate has to be provided regarding the taxable income generated. Furthermore, any taxable income generated by the means of employee participation has to be mentioned in the salary statement (cipher 5) and is subject to withholding taxes, if the ordinary salary of the employee is subjected thereto as well. However, if an employee acquires employee participation right without triggering taxable income, this also has to be mentioned in the salary statement (cipher 15). In summary, a certificate must be issued each year concerning the rights held by the employee in question and an additional certificate has to be issued concerning any income realized for tax purposes in the past year in connection with such rights (if any).

 

It should also be noted that copies of the attachment to be prepared for the salary statement relating to employee participation must also be attached to the social insurance statements.

 

The issuance of the certificates may seem to be somewhat complicated in individual cases or if they are done for the first time. For this reason, it might be worth seeking advice at an early stage before submitting the certificates.

 

Stamp duties

 

Deposits in companies are generally subject to stamp duties of 1% and must therefore always be reported to the FTA. If they are provided on the occasion of incorporation and capital increases, the company might benefit once from a tax exempted amount of CHF 1 million. Only after this amount has been reached (it can be split acrossseveral capital increases) stamp duties become due (only upon the exceeding amount). The tax is generally calculated upon the fair market value of the contribution (in case of a capital contribution made in cash, the nominal value incl. premium) after deduction of the issuing costs and must be paid to the FTA within 30 days after the end of the calendar quarter in which the capital increase was registered in the commercial register. Within the same period, Form 3, including copies of the relevant documentation (e.g. notary deeds) relating to the formation or capital increase, must be submitted to the FTA.

 

Informal contributions by shareholders (to the reserves from capital contributions of the company), e.g. waivers of claims or the transfer of shares from shareholders to the company without consideration, also trigger stamp duties. However, in such a case there is no tax exempted amount the company could benefit from. Rather Form 4 must be submitted to the FTA together with a documentation regarding the contribution. The deadline for submitting the form and paying the taxes is 30 days after the contribution has been made.

 

In the case of a financial recovery, it might be possible to benefit from an additional tax exempted amount (up to CHF 10 million) and, if necessary, even to apply for a relief regarding the remaining stamp duty. However, these measures require that the contributions be offset with losses. Therefore, it is impossible to create reserves from capital contributions with contributions benefitting from the additional tax exemption or a relief. For these reasons, it first has to be clarified on a case-by-case basis whether the stamp duty could be reduced with the aforementioned measures at all and, if so, secondly, whether the reduction of the stamp duty or the creation of reserves from capital contributions is preferred by the company and its shareholders. 

 

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The information provided with this newsletter is for general information purposes only and does not constitute legal advice tailored to your specific case. You should not act upon any information given in this newsletter or make use of the templates without first seeking professional legal advice on your specific matter. Kellerhals Carrard disclaims any liability in connection with the general use of the information and templates provided with this newsletter.

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