Facts
In this case, it was about a public limited company (X. AG) that had to be restructured due to over-indebtedness. The company carried out a capital reduction to zero with a subsequent increase of the share capital to the original amount of CHF 500,000 (so-called "accordion"). A shareholder (Z.) filed a lawsuit against these resolutions of the extraordinary general meeting of February 18, 2008. The Federal Court concluded that the requirements for a capital reduction to zero under Art. 732a para. 1 CO were not met. Although the defendant was in need of restructuring, as it was over-indebted at the time of the general meeting, no restructuring concept was presented to the general meeting that, together with the capital increase, would have provided reasonable prospects for sustainable restructuring. Without knowledge of such a concept, the shareholders could not assess whether the "accordion" actually served the purpose of restructuring. Thus, the requirement of the restructuring purpose under Art. 732a para. 1 CO was not met, which is why the resolved "accordion" must be qualified as unlawful.Considerations
The Federal Court stated that a capital reduction to zero with a subsequent increase of the share capital under Art. 732a para. 1 CO is only permissible if this measure serves the purpose of restructuring. For this, either the capital increase alone must eliminate the over-indebtedness or further restructuring measures must be taken that, together with the capital increase, provide reasonable prospects for sustainable restructuring. Since in the present case no restructuring concept was presented to the general meeting, it could not assess whether the "accordion" actually served the purpose of restructuring. Furthermore, without knowledge of the…