Facts
A. AG, a publicly listed company headquartered in Zug, notified the Commercial Register Office of the Canton of Zug on 16 November 2005 of a change for publication. This included a reduction of the share capital from CHF 3,838,386.30 to CHF 1,279,462.10 through a reduction in the par value of the shares, followed by an ordinary capital increase in two steps to a total of CHF 12,478,924.20. The Federal Office for the Commercial Register (FOCR) refused to approve the registration, as the in-kind contributions intended for the second capital increase were worth around CHF 9,700,000 less than assumed. Although the Board of Directors had initiated a forfeiture procedure against the defaulting shareholder B., the deficiency of the insufficient in-kind contribution could not be remedied.Considerations
The Federal Supreme Court confirmed the FOCR's rejection of the registration for the following reasons: 1. The CO provides for capital protection, which requires that the equity capital shown in the articles of association and the commercial register is actually fully available. However, the registration of the capital increase as fully paid-up contradicts the facts presented by the company itself, according to which the contributions were insufficient. 2. The Board of Directors disregarded the resolutions of the General Meeting…