One of the major innovations in the new Companies Code is the more flexible regulation of companies, including the start-up thereof. For example, you no longer need starting capital and you have greater options in your statutes. However, the disappearance of the mandatory start-up capital naturally also means that new rules have been introduced for start-ups.

Background

If you started a new bvba before 1 May 2019, you were required to provide a minimum capital of EUR 18,600, of which 6,200 had to be paid up immediately. From 1 May 2019, for the start-up of a company, for example, you must have "sufficient initial capital" and have a financial plan that must meet a number of conditions that are stricter than under previous legislation.

Sufficient initial capacity: who, what, where, when?

As the founder of a private limited company, you must ensure that, for example, when you form the deed and, therefore, when the authentic deed is executed at the notary, you have equity that is "sufficient" to cover a period of 2 years . If this equity consists of a contribution, the contribution must be paid up immediately, unless the articles of association provide otherwise.

In addition to your own contribution, you can of course also call on other sources of financing such as: a subordinated loan (eg a loan through friends / family) or pump money yourself into the company (or better lend to the company) on the basis of a current account, ... In addition, it is also possible to make a "contribution of industry", this is actually a contribution in kind of your (or that of one of the other founders') work. Unfortunately, the tax treatment of such a contribution to industry is not that interesting ...

This sufficient initial capital must of course be gathered together by the founders , but it is also possible to be included in the deed of incorporation as a normal "tenderer" . A tenderer is someone who makes a contribution in cash to the company, but who is not a founder of the BV and for that reason cannot be held liable under the founder's liability. This is therefore a new, interesting and, above all, safe option if you invest in a company in which you do not wish to take an active role yourself. Please note that shareholders who are founders must together hold at least one third of the shares.

Financial plan: what should it contain?

In addition to sufficient initial capital, you are also required to draw up a financial plan and to submit it to the notary at the time of incorporation. The following elements are a mandatory part of your financial plan:

Description of the proposed activity, overview of sources of financing and securities provided; opening balance sheet and projected balance sheet after 12 and 24 months (same as for the income statement); a cash-flow projection for at least 2 years after incorporation; Description of the hypothesis used for revenue / profitability forecast.

It is not mandatory to use a financial adviser (eg an accountant, accountant, etc.) to prepare this plan, but of course this is recommended. After all, your financial plan will be the touchstone for your liability as a founder if you went bankrupt within 3 years of being established. In addition, a strong financial plan forms the basis for a financially healthy company.

When things go wrong: founder's liability

If the company goes bankrupt within 3 years after the incorporation, the founders may in certain cases be held liable if it appears that the capital at the incorporation was apparently insufficient for the normal exercise of the activity over at least 2 years. In this situation, the notary may also be asked to submit the financial plan that was filed at the time of incorporation to the court to check whether this was realistic. The preparation of a sound plan, whether or not with the help of an adviser, will therefore also be important with regard to your possible founder's liability.