In this article we will first explain the sale of shares and then go into more detail on the sale of capital contributions.
Sales of shares
In the case of shares, it is important to make a distinction between certificated (physically existing) and uncertificated (only virtual) existing shares. If a share is certificated, the transfer takes place in a different way than if no physical share is available.
The sale of bearer shares is relatively simple. A purchase contract, the transfer of the share and the right of disposal of the seller of the shares are required. This means that bearer shares can be sold at any time without the consent of the shareholders.
In principle, registered shares are sold in the same way as bearer shares, with one single exception - an endorsement is also required. This means that the change of shareholder must be noted on the shares. Thus, ownership passes to the new purchaser when this endorsed paper is handed over.
A special feature is the registered share with restricted transferability. In this case, the transfer is statuary restricted by a so-called transfer restriction. For the sale, this means that an additional approval of the company is required, i.e. the Board of Directors must approve the sale in advance for it to be valid.
The situation is different as soon as the shares are not certificated in a security. Registered shares not represented by certificates may only be sold by assignment. Here, too, a purchase contract is required, but instead of the transfer of the share, the assignment, or also called assignment, takes place. It is stated in writing that the seller assigns or transfers the affected shares to the buyer and that the buyer also accepts the transfer or assignment. This part is often forgotten and if uncertificated shares are sold, only the "sale", but not the assignment, is recorded in writing. However, the assignment is necessary for the sale to be valid and for this reason it is important to consult a legal expert.
Sales of capital contributions
Capital contributions are the counterpart to the shares in a limited liability company. A shareholder holds an interest in the capital of the LLC through a capital share. According to Article 774 of the Swiss Code of Obligations (CO), the nominal value of the ordinary shares must be at least CHF 100, whereas a nominal value of one centime is sufficient for one share. This difference can also be seen in the sale, because capital contributions are not as easy to sell as shares.
The acquisition of capital contributions can basically be divided into the following steps:
1. check bylaws of the company
First of all, the articles of association must check whether there is any provision regarding the assignment or sale of capital contributions. If no special provision is included, the transfer shall be made in accordance with the law.
2. written assignment agreement
First, a contract must be concluded between the old and new owner. This contract contains the obligation to sell and the subsequent assignment. In addition, the rights and obligations of the shareholder must be pointed out in the contract. This includes any pre-emption rights, prohibitions of competition or other obligations that the shareholder must fulfil. The Articles of Association provide information on the existence of such rights and obligations.
3. approval of the shareholders' meeting
The shareholders' meeting must in principle approve the sale of the capital contributions. The assignment only becomes effective with the approval of the shareholders' meeting. Under the Swiss Code of Obligations, at least two-thirds of the shareholders present and an absolute majority of the total voting capital must vote in favour. The minutes of the shareholders' meeting constitute the approval of the sale.
If the legally required approval of the shareholders' meeting is to be waived, this is possible. To this end, the Articles of Association must be amended accordingly.
4. Trade Register Office
If the signed deed of assignment and the minutes of the shareholders' meeting are held in the hand, the management submits these two documents to the Commercial Register Office with an application to amend the application for registration. After an examination by the Office, the sale and transfer of the capital contributions is entered in the commercial register. They are also published in the Swiss Official Gazette of Commerce.
In contrast to the transfer of capital contributions, the transfer of shares is therefore public.
It quickly becomes clear that the sale of shares and capital contributions is not easy and involves a number of pitfalls. Therefore, it is all the more important to have a sale examined by an expert on a case-by-case basis.