New changes in Swiss corporate law lead to disclosure duties for holders of bearer shares.

1. Background

Following the revised Financial Action Task Force (FATF) recommendations of 2012 the Swiss Parliament was compelled to improve transparency in respect of legal entities by amending the corporate law and did particularly so by introducing disclosure duties in respect of certain shareholder groups (Art. 697i et seq. SCO). These duties entered into force on July 1, 2015.

2. Duty of Disclosure of Holders of Bearer Shares

As of July 1, 2015, the acquirer of bearer shares of a non-listed company limited by shares has to notify the company of its acquisition within one month, by reporting its name and surname or the company name and its address to the company (so-called simple duty of disclosure; Art. 697i para. 1 SCO). The shareholder thereby has to prove the possession of the bearer share and its identity: as a natural person, by means of an original or a copy of an official identification document with a photo or, as a legal entity, by means of a current certified excerpt of a (foreign) registry of commerce or an equivalent document (Art. 697i para. 2 SCO). The shareholder has to notify the company of any modification of its name and surname or company name or address (Art. 697i para. 3 SCO).

3. Duty of Disclosure in respect of Beneficial Owners

Persons, who acquire registered or bearer shares of a non-listed company limited by shares alone or jointly with third parties and thereby reach or exceed a limit of 25% of the share capital or the voting rights of the company, have to notify the company of the acquisition within one month, by reporting the name and surname and the address of the beneficial owner (natural person) of the shares (so-called qualified duty of disclosure; Art. 697j para. 1 SCO). Similar to the simple duty of disclosure, the shareholder has to notify the company of any modification of the name and surname or address of the beneficial owner (Art. 697j para. 2 SCO).

4. List of Holders of Bearer Shares and Beneficial Owners

The company has to keep a list of the reported holders of bearer shares and beneficial owners of an afore-defined majority holding (Art. 697l para. 1 OR).

This list contains the name and surname or company name and the address of the holder of the bearer shares and the beneficial owners. It further contains the nationality and date of birth of the holders of the bearer shares (Art. 697l para. 2 OR).

The documents underlying a notification pursuant to Articles 697i and 697j SCO have to be preserved for a period of ten years following the deletion of the shareholder from the list (Art. 697l para. 3 SCO).

5. Transitional Regime 

Furthermore, persons who already held bearer shares or a majority holding as aforementioned under Number 3 on July 1, 2015, have to comply with the simple resp. qualified duty of disclosure applicable to the acquisition of shares within one month (Art. 3 transitional regime SCO dated 12 December 2014).

6. Sanctions for Non-Compliance with Duty of Disclosure

The changes are insofar significant for the shareholders as the corporate law provides severe sanctions in order to punish the non-compliance with the shareholder duties of disclosure. In addition to the suspension of membership rights, shareholders can only assert their financial rights attached to the acquired shares if they have complied with their duties of disclosure (Art. 697m para. 1 and 3 SCO). If a shareholder fails to comply with his duties of disclosure within a month, the financial rights will be forfeited (Art. 697m para. 3 SCO). If the disclosure takes place at a later time, the shareholder can only assert those financial rights which arise from that moment on. The period for the forfeiture of financial rights of those shareholders already owning bearer shares on July 1, 2015, expires on December 31, 2015.

7. Need for Action

To ensure that the shareholders of Man Oil Group AG can exercise their entitled membership and financial rights, the shareholders are requested to comply with the described duties of disclosure. For this reason, the following documents should be transmitted to Man Oil Group AG by post (Man Oil Group AG, Gotthardstrasse 3, 6300 Zug):

  • Duty of disclosure for holders of bearer shares:
    • current statement of custodian account identifying the shareholdings; and
    • name and surname and the address of the shareholder; and
    • natural persons: copy of a valid official identification document with photo; or
    • legal persons: current excerpt of commercial register; or
    • foreign legal person: current certified excerpt of foreign commercial register or equivalent certificate.
  • Duty of disclosure of beneficial owner reaching or exceeding 25% of the share capital or voting rights of the company:
    • current statement of custodian account identifying the shareholdings reaching or exceeding 25%; and
    • name and surname and the address of the shareholder; and
    • copy of a valid official identification document with photo.