Was bedeutet Kapitalherabsetzung?
A capital reduction means that the share capital of a stock corporation or the common stock of a LLC registered in the commercial register is reduced. In the case of a stock corporation, this can be done by reducing the nominal value or by destroying shares (Art. 653j Abs. 2 OR). In the case of a LLC, the rules of company law apply mutatis mutandis (Art. 782 Abs. 4 OR).
In practice, there are two typical cases. In a materiellen Kapitalherabsetzung, capital is released and can be returned to shareholders after the procedure has been completed. In a deklaratorischen Kapitalherabsetzung, no money flows out. The company reduces its capital in order to fully or partially eliminate an accumulated deficit resulting from losses. In the case of a stock corporation, the law provides for a simplified procedure if an authorized audit expert confirms that the reduction amount does not exceed the accumulated deficit (Art. 653p Abs. 1 OR).
Wer beschliesst die Kapitalherabsetzung?
In a stock corporation, the general meeting resolves to reduce the share capital. The board of directors prepares and implements the measure (Art. 653j Abs. 1 OR). In a LLC, the shareholders' meeting decides (Art. 782 Abs. 1 OR).
The resolution must be publicly certified. In particular, it must state the amount by which the capital is to be reduced, how the reduction is technically to be carried out and what the reduction amount is to be used for (Art. 653n OR).
For the ordinary capital reduction of a stock corporation, the law does not mention a general qualified majority in Art. 704 OR. Nevertheless, the articles of association are important because they can provide for stricter requirements. The same applies to LLCs. In addition, accompanying resolutions, such as a simultaneous capital increase or a restriction of subscription rights, can trigger their own majorities.
Wie läuft eine ordentliche Kapitalherabsetzung bei der AG ab?
First, the board of directors prepares the capital reduction. It clarifies the purpose, the amount of the reduction, compliance with the minimum capital and the necessary documents. If the balance sheet date at the time of the general meeting's resolution is more than six months in the past, an interim financial statement is required (Art. 653l OR).
This is followed by creditor protection. The board of directors draws the creditors' attention in the Swiss Official Gazette of Commerce to the fact that they can demand security upon filing their claims (Art. 653k Abs. 1 OR). The period is 30 days from publication (Art. 653k Abs. 2 OR). Security is not required if the company satisfies the claim or proves that the capital reduction does not endanger the satisfaction of the claim (Art. 653k Abs. 3 OR).
An authorized audit expert must confirm in writing that the claims of the creditors are fully covered despite the capital reduction (Art. 653m Abs. 1 OR). If this audit confirmation is already available at the general meeting, the board of directors informs about the result. The audit expert must be present unless the general meeting unanimously waives this requirement (Art. 653m Abs. 2 OR).
If all requirements are met, the board of directors amends the articles of association and establishes in a publicly certified deed that the law, the articles of association and the resolution of the general meeting have been complied with (Art. 653o Abs. 1 OR, Art. 653o Abs. 2 OR). The application to the commercial register must be made within six months of the resolution of the general meeting, otherwise the resolution becomes void (Art. 653j Abs. 4 OR).
The conclusion is important: released funds may only be paid out to shareholders after the capital reduction has been entered in the commercial register (Art. 653o Abs. 3 OR).
Welche Unterlagen verlangt das Handelsregister?
In the case of an ordinary capital reduction of a stock corporation, the public deed on the resolution of the general meeting, the public deed on the resolution of the board of directors, the audit confirmation and the amended articles of association must in particular be submitted to the commercial registry office (Art. 55 Abs. 1 HRegV).
Among other things, the entry in the commercial register states whether the reduction is carried out by reducing the nominal value or by destroying shares, how high the reduction amount is, what it is used for and what the share capital looks like after the reduction (Art. 55 Abs. 3 HRegV).
In the case of a LLC, this regulation applies mutatis mutandis to the ordinary reduction of common stock (Art. 77 HRegV). For capital reductions due to accumulated deficits or with simultaneous re-increase, Art. 78 HRegV and Art. 79 HRegV contain supplementary rules.
Was ist bei der GmbH anders?
In a LLC, the capital is called common stock. The basic logic remains similar because the provisions on the reduction of share capital apply accordingly (Art. 782 Abs. 4 OR).
The most important difference lies in the minimum capital. The common stock may only be reduced below CHF 20,000 if it is simultaneously increased again to at least this amount (Art. 782 Abs. 2 OR). For a stock corporation, the threshold of CHF 100,000 applies. The share capital may only fall below CHF 100,000 if it is simultaneously increased again to at least this amount (Art. 653j Abs. 3 OR).
In the case of a LLC, there is another point. If the common stock is to be reduced in order to eliminate an accumulated deficit resulting from losses, the shareholders must first have fully paid the additional capital contributions provided for in the articles of association (Art. 782 Abs. 3 OR).
Welche Rolle spielt die Kapitalherabsetzung bei einer Sanierung?
In restructurings, a capital reduction is often combined with a capital increase. This is then often referred to as a capital cut or a "Harmonika". In this process, the existing capital is reduced and new capital is created at the same time.
The law facilitates certain combinations. If the share capital is reduced and simultaneously increased to at least the previous amount without the amount of the contributions made being reduced, certain rules of the ordinary capital reduction do not apply (Art. 653q Abs. 1 OR). The provisions on ordinary capital increases apply accordingly (Art. 653q Abs. 2 OR).
The capital cut to zero is particularly delicate. If the share capital is reduced to zero for the purpose of restructuring and simultaneously increased again, the previous membership rights of the shareholders expire and the issued shares must be destroyed (Art. 653r Abs. 1 OR). However, the previous shareholders have a subscription right upon the re-increase, which cannot be withdrawn from them (Art. 653r Abs. 2 OR).
The Federal Supreme Court requires a genuine restructuring purpose for such a "Harmonika". If the capital increase alone is not sufficient, there must be a restructuring concept which, together with further measures, offers reasonable prospects of a sustainable turnaround. Without sufficient information to the general meeting and the shareholders, the resolution may be unlawful (BGE 138 III 204 E. 3.3.3, BGE 138 III 204 E. 3.4).
Gibt es bei der AG eine flexiblere Variante über das Kapitalband?
Yes. The articles of association of a stock corporation can authorize the board of directors to increase or reduce the share capital within a certain range for a maximum of five years (Art. 653s Abs. 1 OR).
The upper limit of the capital band may exceed the registered share capital by a maximum of half. The lower limit may fall below it by a maximum of half (Art. 653s Abs. 2 OR). If the board of directors is also to be authorized to reduce capital, the company must not opt out of the limited audit (Art. 653s Abs. 4 OR).
In the case of a reduction within the capital band, the rules on securing claims, interim financial statements and audit confirmation are applicable mutatis mutandis (Art. 653u Abs. 3 OR). There is no corresponding capital band for LLCs.
Fazit: Eine Kapitalherabsetzung ist planbar, aber formal anspruchsvoll
A capital reduction in Switzerland is a useful instrument when capital is to be returned, an accumulated deficit corrected or a restructuring structured. For a stock corporation, Art. 653j OR to Art. 653o OR regulate the ordinary process. For LLCs, Art. 782 OR largely refers to these rules, supplemented by special features on minimum common stock and statutory additional capital contributions.
Four points are decisive. The resolution must be publicly certified. Creditor protection must be respected. The audit confirmation must be correctly available. And the measure only becomes fully effective upon entry in the commercial register.
Häufige Fragen zur Kapitalherabsetzung
Wie lange dauert eine Kapitalherabsetzung?
The duration depends on preparation, audit confirmation and the commercial register. Legally important are above all the 30-day creditor period after SOGC publication (Art. 653k Abs. 2 OR) and the six-month filing period with the commercial register (Art. 653j Abs. 4 OR).
Darf eine AG ihr Aktienkapital unter CHF 100'000 senken?
Only if the share capital is simultaneously increased again to at least CHF 100,000 (Art. 653j Abs. 3 OR).
Darf eine GmbH ihr Stammkapital unter CHF 20'000 senken?
Only if the common stock is simultaneously increased again to at least CHF 20,000 (Art. 782 Abs. 2 OR).
Wann dürfen Gelder ausbezahlt werden?
In a stock corporation, released funds may only be paid out after entry in the commercial register (Art. 653o Abs. 3 OR). This rule applies mutatis mutandis to LLCs (Art. 782 Abs. 4 OR).
