Disclosure of the business valuation report in the proceedings relating to a claim based on Art. 105 MergA

Facts

X. AG took over [Y. AG] by way of a merger by absorption in accordance with the merger agreement signed on 12 November 2005 and the approval decisions of their respective general meetings on 16 and 17 December 2005. According to the merger agreement, the merging companies set an exchange ratio of 1 X. share for 5 [Y.] shares or 1 X. share for 1 [Y.] share after a 1:5 share split at X. AG.

[A.], a former shareholder of X. AG, requested the president of the district court N. to order the company V. AG (the company resulting from the merger, hereinafter referred to as the "appellant company") to pay him, as well as all other former shareholders of X. AG, fair compensation in accordance with Art. 105 MergA, on the grounds that the exchange ratio was disproportionate to their detriment. To support his claim, [A.] in particular requested the production of the business valuation report held by the appellant company.

The appellant company objected to the disclosure of this report, citing the protection of its trade secrets. The cantonal authorities ordered the production of the report for the benefit of [A.] and the interveners.

Considerations

The Federal Tribunal considers that Arts. 14 and 16 MergA do not allow the conclusion that the Merger Act would treat a valuation report as a trade secret that should not be disclosed in its entirety. In the proceedings relating to a claim based on Art. 105 MergA, the claimant must be able to provide evidence by…