Facts
The public limited company A. in Zug carried out an ordinary increase of its share capital in two stages. The first stage consisted of a reduction of the capital from CHF 3'838'386.30 to CHF 1'279'462.10 followed by an increase to CHF 2'558'924.20 through the issuance of 127'946'210 fully paid-up registered shares. The second stage provided for an additional increase from CHF 9'920'000.- to CHF 12'478'924.20 through the issuance of 992'000'000 registered shares with a nominal value of CHF 0.01, to be paid up by contributions in kind and in cash. However, the contribution in kind did not reach the value provided for in the contribution in kind agreement. The board of directors then initiated a forfeiture procedure, but this did not allow the defect to be corrected. The FSCA therefore confirmed the refusal of the CRO to approve the registration of this capital increase in the commercial register.Considerations
According to established case law, the commercial register must verify whether the legal conditions for registration are met. If these are mandatory legal provisions, protecting the public interest or third parties, the commercial register must ensure compliance with them. In the present case, the rules on the effective payment of the share capital in the event of an ordinary increase are provisions of public order. The share capital can only be registered as fully paid up if the company effectively has assets of at least equal value to the amount of the capital. However,…