Facts
[S.] resolved at its extraordinary General Meeting on November 22, 1994 to amend the capital structure by creating registered shares. Two shareholders, X. AG and Y., challenged this resolution, arguing that it was passed in disregard of statutory voting rights restrictions.
Shareholder [W.] then filed a lawsuit against [S.] with the aim of (1) declaring that invalid "no" votes were cast and counted in accordance with the articles of association, (2) declaring these votes invalid, and (3) correcting the minutes of the vote accordingly. Alternatively, he requested the annulment of the resolution on the amendment of the capital structure and a declaration that the Board of Directors' proposal was approved with the corrected voting result.
The Commercial Court of the Canton of Zurich did not enter into the lawsuit, as it found that the plaintiff did not have a sufficient legal interest in the requested claims.
Considerations
The Federal Supreme Court confirmed the decision of the Commercial Court. It stated that the lawsuit of shareholder [W.] did not have a sufficient legal interest, as he was not seeking to have the resolution annulled, but only to have the minutes of the vote corrected. The Federal Supreme Court clarified that the shareholder could participate in the challenge proceedings as an intervenor, but he did not have an independent claim to confirm the legality of the resolution.
Furthermore, the Federal Supreme Court explained that the company in the challenge proceedings has the possibility to prove the…