The "Flexible Kapitalgesellschaft" ("FlexKapG" or "FlexCo" for short) builds on international examples and was created for the specific needs of start-ups and young entrepreneurs. It should not be forgotten that existing limited liability companies or stock corporations can also be converted into a FlexCo. The FlexCo is basically based on the legal form of the GmbH. The Austrian GmbH Act also applies to the FlexCo on a subsidiary basis. Nevertheless, some tried and tested provisions from Austrian stock corporation law have been adopted, making the FlexCo more flexible and therefore more attractive.
Formation of a FlexKapG
FlexCo can be founded for any legally permissible purpose. The statutory minimum share capital of FlexCo is EUR 10,000, whereby one quarter of the share capital, but at least EUR 5,000, must be raised in the case of a cash foundation. In addition to the traditional shares, FlexCo can also issue a new, non-voting share class, the so-called "Enterprise Value Shares", amounting to less than 25 percent of the share capital. This enables non-voting participation in the success of FlexCo, which is particularly suitable for employees. The holders of the company value shares are not entered in the company register, but only in a share register kept by the management. The owners can transfer their company value shares by means of a simple written contract; the involvement of a notary or lawyer is not required.
Flexible financing instruments
The capital and financing measures that were previously only possible for stock corporations are now also permitted for FlexCo. These include the instruments of conditional capital increases and "authorized capital". The acquisition of own shares, which was previously only possible for public limited companies, is now also permitted for FlexCo. The transfer of shares in FlexCo has been simplified in that a notarial deed is no longer required for a share transfer. Instead of a notarial deed, a private deed drawn up by a lawyer is sufficient, and the written adoption of resolutions by circulation has also been simplified. The articles of association can stipulate that the consent of all shareholders is not required for a vote by written circulation. The articles of association can also stipulate that voting in text form (e.g. by email) is sufficient. The holding of virtual meetings in the form of video conferences has now also been made possible by law.
This guest commentary originally appeared in Austria Innovativ on March 7, 2024.
