Facts
Hotel [A. AG] is a public limited company with a share capital of CHF 500,000, divided into 380 registered shares of CHF 1,000 (ordinary shares) and 1,200 registered shares of CHF 100 (voting shares). The shareholders are siblings. At the ordinary general meeting on June 30, 2015, the holders of the voting shares (C.B. and D.B.) voted for the re-election of the existing auditor, while the plaintiff E.B. (holder of 225 ordinary shares) voted against it. As this resulted in a tie, no auditor was elected.
The Board of Directors then decided to convene an extraordinary general meeting to amend the articles of association and propose the re-election of the existing auditor. At this extraordinary general meeting on September 9, 2015, C.B. and D.B. voted in favor of amending Art. 12 para. 1 of the articles of association, which introduced the casting vote of the Chairman of the Board of Directors in elections. Subsequently, C.B. and D.B. voted for the re-election of the existing auditor, while E.B. voted against it. The auditor was elected with the casting vote of the Chairman of the Board of Directors.
E.B. filed a lawsuit with the Commercial Court of the Canton of Aargau and requested the annulment of these two resolutions.
Considerations
The Federal Supreme Court dismisses the appeal of Hotel [A. AG] and confirms the decision of the Commercial Court.
Firstly, the election of the auditor with the casting vote of the Chairman of the Board of Directors is inadmissible under Art. 693 para. 3 no. 1 CO. For the election of the auditor, the voting rights are to be measured according to the nominal value of the shares, and the majority of capital decides. A casting vote of the Chairman of the Board of Directors that deviates from the majority of votes is therefore…