Facts
The association Canes brought an action against Nestlé S.A. to challenge the decision of the General Meeting of May 25, 1989 regarding the second increase of share capital through the issuance of reserve shares. Nestlé convened this General Meeting to approve various amendments to the Articles of Association, including this increase in capital from CHF 346.5 million to CHF 364 million through the issuance of 175,000 new shares of CHF 100 each. These reserve shares were intended to secure conversion or option rights resulting from future bond issues.
Canes concluded that the decision to increase the capital, as well as various other amendments to the Articles of Association, should be declared null and void on the grounds that these measures would be contrary to the law and the general principles of corporate law.
Considerations
The Federal Court partially upheld Canes' action. It annulled the General Meeting's decision to amend Article 15ter of the Articles of Association, in the sense that the last five words of paragraph 1 of this provision were deleted.
For the rest, the Federal Court dismissed the action. It notably considered that the issuance of reserve shares…