Decision of the holder of bearer shares to exercise their corporate rights

Facts

The company Interwo-Finanz AG, domiciled in Glarus, was founded in 1971 by lawyer Friedrich Baumgartner with a share capital of CHF 50,000. In 1972, the capital was increased by CHF 400,000, with Götz and Baumgartner each acquiring 200 shares. An extraordinary general meeting on August 13, 1974 decided to convert the bearer shares into registered shares and to subject them to a consent clause. However, these decisions were deemed invalid for lack of having been passed in authentic form. They were validly confirmed at a new extraordinary general meeting on October 21, 1980. In the meantime, Götz had transferred his 249 bearer shares to the company Bau und Touristik AG, represented by the fiduciary Dr. Schech. The board of directors of Interwo-Finanz AG refused to exchange Dr. Schech's bearer shares for registered shares and to register him in the share register, on the grounds that Götz had not fully paid up his shares. Bau und Touristik AG then filed a lawsuit to have it established that it was the owner or possessor of these 249 shares.

Considerations

The Civil Court of Glarus upheld the claim, finding that Bau und Touristik AG was the owner of the 249 bearer shares and declaring the decisions of the extraordinary general meeting of October 21, 1980 regarding the conversion of bearer shares into registered shares and the cancellation of the issued bearer shares to be invalid. The Court of Appeal of the Canton of Glarus dismissed the appeal filed by Interwo-Finanz AG.

The Federal Tribunal considers that the question of the release of the disputed bearer shares must be examined first, as these shares would be null if they had been issued before the full payment of their nominal value. However, the lower instances have considered that the release had been validly established by the decisions of the general meetings, which the company does not sufficiently contest.

The…