Facts
On 29 April 1993, the general meeting of the Schweizerische Bankgesellschaft (SBG) approved the creation of an authorized capital and a conditional capital. The board of directors was authorized to increase the share capital by issuing new shares, with the possibility of excluding the pre-emptive right of shareholders in certain circumstances. The BK Vision AG, a shareholder of the SBG, contested these decisions before the commercial court of the canton of Zurich, arguing that they were contrary to the law. The commercial court annulled the decisions, but the SBG appealed this judgment to the Federal Court.
The parties involved are the SBG, the BK Vision AG, and the commercial court of the canton of Zurich. The key dates are 29 April 1993, the date of the SBG's general meeting, and 15 September 1994, the date of the commercial court's judgment. The main issue is whether the delegation of the competence to suppress the pre-emptive right to the board of directors is in accordance with the law.
Considerations
Introduction
The Federal Court was seized of an appeal against the judgment of the commercial court of the canton of Zurich, which had annulled the decisions of the SBG's general meeting regarding the creation of an authorized capital and a conditional capital. The issue in dispute is whether the delegation of the competence to suppress the pre-emptive right to the board of directors is in accordance with the law.
Interpretation of the Law
The Federal Court examined the applicable legal provisions, in particular articles 650, 651, 652b, 653, 653b, and 698 of the Code of Obligations (CO). It found that the law provides that the decision to suppress or limit the pre-emptive right falls within the competence of the general meeting, but that the board of directors may be authorized to take this decision in certain circumstances.
Competence of the General Meeting and the Board of Directors
The Federal Court considered…