Facts
C. AG (the Plaintiff) was a shareholder of D. SA. The Board of Directors of C. AG consisted of A. (Defendant 1) as the President and B. (Defendant 2) as the Vice President. On October 15, 2009, the Defendants decided that they would each receive 1% of the sale price of the D. SA shares as a bonus, provided that the sale price exceeded CHF 4 million. Since the shares were sold for CHF 4.4 million, the Defendants received an additional CHF 44,000 each, on top of their regular compensation. The Plaintiff is demanding the reimbursement of these amounts.
Considerations
The Swiss Code of Obligations provides for the compensation of Board of Directors members only in the form of profit-sharing (Tantiemen), which is a formal distribution of profits. However, fixed compensation charged to the income statement is also permissible if there is a corresponding legal basis, such as a provision in the articles of association or an employment contract.
Pursuant to Art. 678 para. 2 of the Swiss Code of Obligations, Board of Directors members are obliged to reimburse "other payments" to the extent that they are in obvious disproportion to the consideration and the company's financial situation. The lower court found such an obvious disproportion, as the actual effort of the Defendants was low, and the sale price achieved was not substantially attributable to their activities.
The Federal Supreme Court confirmed this…