Qimonda administrator brings action against Infineon

The action asserts that, in connection with the carve-out of the memory business to Qimonda AG, Infineon utilized a previously formed shell company and “economically re-established” this company through the transfer of the memory business. The action further asserts that Infineon neglected to provide the company register with the declaration required by German company law in these circumstances and that, as a consequence of the alleged breach of this register-related legal formality, Infineon is obliged to refund to Qimonda the amount by which the actual company assets of Qimonda at the time insolvency proceedings were opened were less than Qimonda’s equity capital (i.e, a liability for impairment of capital). The action seeks to establish a basic obligation to pay on the part of Infineon, as the administrator does not currently consider himself to be in a position to put a concrete figure on the amount of his alleged claim.  Infineon regards the action as without merit, based on the expert opinions of a prominent law firm and a respected professor of jurisprudence. The requirements for the “economic re-establishment” of a shell company were not present in these circumstances. The contribution of the memory business to Qimonda AG was carried out in compliance with all register-related requirements and no objection was raised by the competent court at the time of the carve-out. Even if the requirements for the “economic re-establishment” were present, the legal consequences asserted are entirely disproportionate as the action merely claims the omission of a register-related formality. Infineon had refuted the circumstances alleged and the legal consequences deriving from these already before the action was brought and intends to defend itself vigorously against this action through all stages of the proceedings.