Rejection of the registration of a shareholder by the Board of Directors

Facts

[C. AG] is the majority shareholder of A. AG (Defendant) and holds 997 of the total 1,400 registered shares. By a purchase agreement dated February 17, 1999, B. (Plaintiff) received a pre-emptive right in the event of the sale of the Hotel D. or A. AG. In 2013, [C. AG] sold its shares to [H.] and I., whereupon [B.] exercised her pre-emptive right. The Cantonal Court of Graubünden ordered [C. AG] to transfer the shares to B.

However, the Board of Directors of [A. AG] rejected the registration of [B.] as a shareholder. [B.] then sued [A. AG] for consent to the transfer and registration in the share register. The Regional Court and the Cantonal Court of Graubünden upheld the claim.

Considerations

The Federal Supreme Court held that under Art. 685a and Art. 685b of the Swiss Code of Obligations (CO), a company can reject a request for consent to the transfer of non-listed registered shares if it discloses an important reason stated in the articles of association or offers the seller the shares at their true value.

The Federal Supreme Court considers the reasons of the Board of Directors of [A. AG] for rejecting the registration to be reasonable. The Board of Directors could assume that the former hotel director [H.] would leave [A. AG] if [B.] became the majority shareholder. However, the mere apprehension of negative effects on the course of business is not sufficient as a valid reason according to case law.…