Facts
[A. AG] , with its registered office in [X.] , has a share capital of 2.5 million Swiss francs, divided into 5,000 bearer shares and 5,000 registered shares. Since 1989, there has been a majority group with a shareholding of around 52% and a minority group in the company. In 1998, [D. AG] , the former subsidiary, merged with [B. AG] , with the latter taking over the assets and liabilities of the acquired company. On November 26, 1998, [B. AG] submitted a request to the Board of Directors of [A. AG] to transfer the 2,530 registered shares of the acquired company to its name. The Board of Directors rejected the request and offered to take over the shares at their fair value in accordance with Art. 685b para. 1 CO. Thereupon, [B. AG] filed a lawsuit with the Commercial Court.Considerations
The Federal Court held that the defendant ([A. AG] ) could exercise the statutory conditional right of purchase under Art. 685b para. 1 CO, as the company's articles of association made the transfer of the shares subject to the approval of the Board of Directors. However, the exercise of this right by the defendant violates the principle of equal treatment of shareholders under Art. 717 para. 2 CO, as it was not in the interest of the company, but rather unilaterally in favor of the…