Why are incorporation documents so important?
The incorporation documents are formal proof that the company was lawfully established and can be registered in the commercial register. In the case of an AG, the founders declare in a public deed that they are establishing a stock corporation, defining the articles of association, and appointing the corporate bodies (Art. 629 Abs. 1 OR). In the case of a LLC, the establishment is very similar. There too, the founders declare in a public deed that they are establishing a limited liability company, defining the articles of association, and appointing the corporate bodies (Art. 777 Abs. 1 OR).
In practical terms, this means that the company does not arise simply through a private agreement between the parties involved. It requires a formal act of establishment, the correct supporting documents, and registration in the commercial register. The documents are therefore not mere bureaucracy, but the foundation of the new company.
Why incorporation documents does a LLC need?
For a LLC, you usually need the public deed of incorporation, the articles of association, the application for the commercial register, proof of the elected corporate bodies, if applicable documents regarding the auditors, a capital confirmation, and depending on the address, a declaration of acceptance of domicile.
The deed of incorporation is the central document for establishing a LLC. It is where the share capital is subscribed and the founders confirm, among other things, that all shares are validly subscribed and that the contributions correspond to the total issue price (Art. 777 Abs. 2 OR). In the case of a LLC, it is particularly important that the contribution for each share must be fully paid up (Art. 777c Abs. 1 OR). The share capital must be at least CHF 20'000 (Art. 773 Abs. 1 OR).
The articles of association are the basic document of the LLC. They must contain at least the company name and registered office, the purpose, the amount of share capital, the number and nominal value of the shares, as well as the form of communications to shareholders (Art. 776 OR). In practice, articles of association often additionally regulate topics such as management, representation, pre-emptive rights, or special rights and obligations of shareholders.
For the registration of the LLC, the Commercial Register Ordinance requires, in particular, the public deed of incorporation, the articles of association, where applicable evidence of acceptance of the election by the managing directors, where applicable the declaration of acceptance by the auditors, resolutions on the chairmanship and signatory powers, and, in the case of cash contributions, a bank certificate, unless the bank is already named in the public deed (Art. 71 Abs. 1 HRegV). If a c/o address is used as the legal domicile, a declaration by the domicile provider must additionally be submitted (Art. 117 Abs. 3 HRegV).
Why incorporation documents does a stock corporation need?
For a stock corporation, you also need a public deed of incorporation, articles of association, the application for the commercial register, election acceptances of the board members, where applicable a declaration of acceptance by the auditors, constitution minutes of the board of directors, a capital confirmation, and depending on the case, additional supporting documents.
The stock corporation has a share capital of at least CHF 100'000 (Art. 621 Abs. 1 OR). However, at the time of establishment, the entire share capital does not necessarily have to be paid in. At least 20 percent of the nominal value of each share must be paid in, and the paid-in contributions must in any case be at least CHF 50'000 (Art. 632 Abs. 1 OR and Art. 632 Abs. 2 OR). Cash contributions must be deposited with a bank for the sole use of the company, and the bank does not release the amount until the company is registered in the commercial register (Art. 633 Abs. 1 OR and Art. 633 Abs. 2 OR).
The articles of association of the stock corporation must contain at least the company name and registered office, the purpose, the amount and currency of the share capital, the amount of paid-in contributions, number, nominal value, and type of shares, as well as the form of communications to the shareholders (Art. 626 Abs. 1 OR). They thus form the legal framework of the company.
To register a stock corporation in the commercial register, you must submit, in particular, the public deed of incorporation, the articles of association, evidence of acceptance of the election by the members of the board of directors, where applicable the declaration of acceptance by the auditors, the minutes of the board of directors regarding its constitution, the regulation of the chairmanship, and the signatory powers, and, in the case of cash contributions, a bank certificate, unless the bank is already named in the public deed (Art. 43 Abs. 1 HRegV). In the case of a stock corporation, a declaration of acceptance of domicile is also required for a c/o address (Art. 117 Abs. 3 HRegV).
When are additional documents required?
You need additional incorporation documents primarily when the establishment does not take place solely through a simple cash contribution. This applies in particular to contributions in kind, set-offs, or special privileges.
A contribution in kind occurs when the capital is not paid, or not paid only, in money, but for example in the form of machinery, vehicles, software, receivables, or other assets. In the case of a stock corporation, assets of a contribution in kind are only considered coverage if they can be balanced, transferred, and exploited, and if the company can freely dispose of them after registration (Art. 634 Abs. 1 OR). The contribution in kind must be agreed upon in writing, and the articles of association must state the subject matter, the valuation, the name of the contributor, and the shares issued in return (Art. 634 Abs. 2 OR and Art. 634 Abs. 4 OR). For the LLC, the provisions of stock corporation law concerning the making and auditing of contributions apply mutatis mutandis (Art. 777c Abs. 2 OR).
In such qualified cases, an incorporation report and an audit confirmation are additionally required. In the incorporation report, the founders account, in particular, for the type and condition of contributions in kind, the appropriateness of the valuation, the existence and offsetability of a debt, or special privileges (Art. 635 OR). A licensed auditor reviews this report and confirms in writing that it is complete and correct (Art. 635a OR). In the case of contributions in kind, set-offs, or special privileges, the Commercial Register Ordinance additionally requires the agreements on contributions in kind, the signed incorporation report, and the unqualified audit confirmation (Art. 43 Abs. 3 HRegV). This rule applies mutatis mutandis to the LLC (Art. 71 Abs. 3 HRegV).
What about the auditors and opting out?
Many small companies want to start without auditors. This is possible if the legal requirements are met. If the requirements for an ordinary audit are not met, the company fundamentally requires a limited audit (Art. 727a Abs. 1 OR). However, with the consent of all shareholders, the limited audit can be waived if the company does not have more than ten full-time positions on an annual average (Art. 727a Abs. 2 OR).
For the incorporation documents, this means: Either auditors are elected and their acceptance of election is submitted, or a valid waiving of the audit is documented. In the case of a stock corporation, the public deed of incorporation must also state that the auditors have been elected or that an audit is being waived (Art. 44 lit. f HRegV). For the LLC, this is also part of the public deed (Art. 72 lit. g HRegV).
LLC and stock corporation in direct comparison
The incorporation documents for LLC and stock corporation are highly similar, but differ in some important details. For both legal forms, a public deed, articles of association, details of the corporate bodies, evidence of capital, and registration in the commercial register are required. For the LLC, the focus is on the full paying up of the share capital of at least CHF 20'000. For the stock corporation, the minimum capital is CHF 100'000, whereby at least CHF 50'000 must be paid in at the time of establishment.
Another difference lies in the corporate bodies. The stock corporation needs a board of directors. For registration in the commercial register, minutes of the board of directors regarding constitution, chairmanship, and signatory powers are therefore also required (Art. 43 Abs. 1 lit. e HRegV). In the case of the LLC, it is about the managing directors and, where applicable, resolutions on the chairmanship of the management and the appointment of other persons authorized to represent (Art. 71 Abs. 1 lit. c HRegV, Art. 71 Abs. 1 lit. e HRegV and Art. 71 Abs. 1 lit. f HRegV). If you need support with incorporation, Jurata is always happy to help. Jurata takes care of drafting all necessary incorporation documents for you and coordinates the entire remaining process from A to Z – and that starting from just CHF 100.
Conclusion: Proper incorporation documents prevent delays
The most important incorporation documents for LLC and stock corporation are the public deed of incorporation, the articles of association, the application for the commercial register, the election acceptances of the bodies, the capital confirmation, and, depending on the situation, additional proofs regarding the audit, domicile, or contributions in kind. For simple cash incorporations, the documentation effort remains manageable. As soon as contributions in kind, set-offs, special privileges, c/o addresses, or special statutory regulations are added, the coordination effort increases significantly.
It is best to clarify before the notary appointment how the capital will be paid, who will assume which function, whether auditors will be elected or an opting-out declared, and whether the legal domicile is an own address or a c/o address.
