Facts

The X. AG company originated from a sole proprietorship. After the death of the owner, the sole proprietorship was converted into a public limited company. It was intended that the managing director S. would gradually take over the company. The transaction was accompanied by the V. AG company, and [W.] was elected as the Chairman of the Board of Directors. The widow of the former owner (T.) remained a shareholder and [U.] represented her interests on the Board of Directors.

By a purchase agreement dated May 18, 2005 and a transfer declaration dated January 9, 2006, the V. AG company acquired a block of shares in the X. AG company. On March 17, 2006, [U.] replaced [W.] as the Chairman of the Board of Directors.

On July 24, 2007, according to a public deed of the notary Y., a universal assembly was held, at which the relocation of the registered office of the X. AG company from B. (BE) to C. (TI) was resolved. Neither the V. AG company nor [W.] had been invited to this meeting, nor were they present or represented.

By submission dated August 2, 2007, the [Z. AG] company applied to the District Court V Burgdorf-Fraubrunnen for the opening of bankruptcy proceedings against the X. AG company and for the preparation of an inventory of assets. The [Z. AG] company claimed that the X. AG company had suspended its payments.

Considerations

The Federal Supreme Court first rejects the complaint of the X. AG company that the Higher Court had obviously incorrectly determined the composition of its shareholders at the time of the meeting on July 24, 2007. The Higher Court had found that at least the V. AG company was a shareholder.

According to the Federal Supreme Court, the share register has a legitimizing function, but its content only has the meaning of a rebuttable presumption. If a public limited company knows or should know that an entry in the share register is incorrect, it may not rely on this entry. In the present case, the Chairman of the Board of Directors [U.] was informed about the shareholder status of the V. AG company, which is why the X. AG company bears the risk for the omission of further clarifications.

The Federal Supreme Court considers the resolution of the universal assembly of July 24, 2007 to be null and void, as not all shareholders were present or represented. A…