As long as:
- The offer is not advertised or publicized
- The stock is not traded in Argentina
- The offer is limited to employees
- The offer is intended to compensate employees and not to raise capital, no securities law requirements apply
As long as:
The grant of purchase rights may trigger registration and disclosure requirements unless an exemption applies under the Corporations Act or specific relief is obtained from ASIC. In addition to statutory exemptions from disclosure requirements, specific class order relief (Class Order 14/1000 for listed companies and Class Order 14/1001 for unlisted companies) may be able to be relied upon. Where class order relief is relied upon, a filing must be made with ASIC and payroll deductions collected from the employees must be held in a segregated “trust” account with an approved bank. The Australian government is considering broadening the exemptions from the disclosure requirements for purchase rights, and further exemptions may come into place during the life of this publication.
The EU Prospectus Directive has been implemented into Austrian law. Even if purchase rights are considered securities that require a prospectus, they may nonetheless be exempt from the prospectus requirements (eg, the 150-person exemption or other exemptions).
The EU Prospectus Directive has been implemented into Belgian law. Even if stock purchase rights are considered securities that require a prospectus, they may nonetheless be exempt from the prospectus requirements (eg, the 150-person exemption).
The grant of purchase rights by entities incorporated abroad to the employees of Brazilian subsidiaries generally is not subject to securities law requirements.
In most instances, there should be no securities restrictions applicable to the offer of purchase rights due to available exemptions from the prospectus requirements. However, the issuer must ensure the requirements of applicable securities laws and exchange policies are satisfied, including the availability of a prospectus exemption.
As long as the offer of purchase rights constitutes a private offer, generally no affirmative securities law requirements are implicated.
Approval from the China Securities Regulatory Commission (CSRC) for the offer of stock awards by China listed companies is required. However, the Chinese securities laws are silent as to whetherthe offer of stock awards by overseas listed companies is subject to approval by CSRC, and there are no procedures for foreign issuers to obtain such approval. Although the CSRC has informally stated that the offer of purchase rights is not subject to approval requirements, given the CSRC's guidance is informal and non-binding, a company offering purchase rights should nonetheless consider measures to reduce the risk in the event that such an offer is deemed subject to CSRC approval.
As long as the award of stock purchase rights is not deemed to be a public offer, securities requirements generally do not apply. Awards addressed to more than 500 shareholders of the issuer entity must comply with public offer rules.
The new EU Prospectus Regulation has been implemented into Czech law. Generally, nontransferable purchase rights are not considered investment instruments. Even if stock purchase rights are considered securities that require a prospectus, they may nonetheless be exempt from the prospectus requirements (eg, the 150-person exemption).
Even if employee stock purchase rights are considered securities that require a prospectus, they may nonetheless be exempt from the prospectus requirements if one or more prospectus exemptions apply (eg, the 150-person exemption) in accordance with the EU Prospectus Regulation.
Pursuant to recent amendments to the Law, in a Simplified Stock Company, hereinafter “S.A.S.” (Sociedad de Acciones Simplificada) the Company may issue several types of shares. This could contemplate stock purchase rights. However, S.A.S.s cannot be listed.
Foreign stock purchase rights are not subject to Ecuadorian securities regulations.
In order to avoid securities law requirements, the underlying shares must not be listed on the Cairo or Alexandria Stock Exchanges.
The EU Prospectus Directive has been implemented into Finnish law and, as of July 21, 2019, the EU Prospectus Regulation is fully applicable. Even if purchase rights are considered securities that require a prospectus, they may nonetheless be exempt from the prospectus requirements (eg, the 150-person exemption).
The EU Prospectus Directive has been implemented into French law. Generally, purchase rights are considered transferable securities. Accordingly, unless an offer of purchase rights is otherwise exempt (eg, the 150-person exemption), a prospectus is required.
The EU Prospectus Directive has been implemented into German law. Purchase rights can qualify as transferable securities or an offer to purchase transferable securities (eg, shares). Accordingly, unless an offer of a purchase right is otherwise exempt (eg, the 150-person exemption), a prospectus is required.
The EU Prospectus Regulation applies in Greece from July 21, 2019. The Greek Parliament has published the Law 4706/2020, Part B Chapter C of which implemented certain provisions of the aforesaid Regulation. Consequently, the Hellenic Capital Market Commission currently applies the provisions of the EU Prospectus Regulation, as in force, in combination with the relevant provisions of Law 4706/2020. Even if purchase rights are considered securities that require a prospectus, they may nonetheless be exempt from the prospectus requirements (eg, the exemption concerning shares offered, allotted or to be allotted by an employer to its employees or the 150-person exemption). Prior to the offer of such rights to the designated recipients, an informative document with the basic principles of the relevant program should be submitted to the Hellenic Capital Market Commission.
Schemes related to securities listed on the Main Board and the Growth Enterprise Market (GEM) of the Stock Exchange of Hong Kong Limited shall comply with Chapter 17 of the Main Board Listing Rules and Chapter 23 of the GEM Listing Rules respectively.
The EU Prospectus Directive has been implemented into Hungarian law. As a general rule, non-transferable purchase rights are not considered a security subject to the Prospectus Directive. Even if purchase rights are considered securities that require a prospectus, they may nonetheless be exempt from the prospectus requirements (eg, the 150-person exemption). The Hungarian securities authority must be informed of each securities offer by the employer within 15 days of the grant date.
There generally are no affirmative securities law requirements associated with the grant of stock purchase rights.
A registration statement is required if the value of shares underlying the purchase rights granted within a 12-month period is IDR 1 billion or more and either:
The EU Prospectus Directive has been implemented into Irish law. Non-transferable rights to purchase shares are not considered transferable securities subject to the Prospectus Directive. Even if purchase rights, by virtue of their particular features, are considered transferable securities that require a prospectus, they may nonetheless be exempt from the prospectus requirements of Irish law if the relevant offer falls within a safe-harbor exemption (eg, where such securities are offered to less than 150 legal or natural persons in Ireland).
Purchase rights generally are subject to securities restrictions. However, in most cases, exemptions are available.
The EU Prospectus Directive is effective in Italy. Generally, non-transferable purchase rights are considered a security subject to the Prospectus Directive. Accordingly, unless an offer of purchase rights is otherwise exempt (eg, (i) offer of stock purchase rights to employees by either their employer or by a controlling entity, a subsidiary, affiliate or entity under common control, so long as a document providing information on the number and nature of the stock, reason and details of the stock plan is available; (ii) the 150-person exemption, etc.), a prospectus is required.
In principle, issuers can directly place their stock purchase rights with their employees or to employees of the local subsidiary – without the need to involve a financial intermediary authorized to place financial instruments – so long as such activity is carried out at their corporate offices/premises. Otherwise, the offer of financial instruments can be carried out only through a financial intermediary. The offer of financial instruments to employees of the issuer or of the local subsidiary made at distance, through means proprietary to the issuer/companies of its group when the access to the offer is granted exclusively to employees through the use of specific security measures, is also allowed. In addition, an Italian financial intermediary must be provided by the company to consult participants on their rights under the plan.
Where the nature of the purchase rights is similar to a stock option, regardless of the total number of employees and total value of the shares or units, offers to employees or directors who belong to issuing companies, wholly and directly owned first-tier subsidiaries or wholly and directly or indirectly owned second-tier subsidiaries are not subject to securities filing requirements.
In all other cases, securities filing requirements may be triggered depending on the number of offerees and the aggregate value of the shares. Offers to fewer than 50 employees generally are not subject to filing requirements. For offers to 50 or more employees which consist of the aggregate total amount of the issuing price and the exercise price of stock purchase right value in excess of JPY100 million, a detailed notification is required before offering to employees and it will be publicly disclosed. An annual report may be also required after the offering.
For offers to 50 or more employees which consist of a share value of more than JPY10 million but less than JPY100 million, a summary notification is required.
Generally, any person who intends to make available, offer for subscription or purchase, or issue an invitation to subscribe for or purchase unlisted capital market products (which include securities that are not listed on the Malaysian stock exchange), is in principle, subject to the prior approval of the Securities Commission (SC) and prospectus registration requirements with the SC.
Nonetheless, such prior approval is not required if such offer for subscription or purchase of, or issuing of an invitation to subscribe or purchase of shares of a foreign corporation whose shares are listed on an exchange outside Malaysia is made pursuant to an employee share or employee share option scheme.
Full prospectus registration is also not required if such offer for subscription or purchase, or invitation to subscribe for or purchase securities qualifies as an "excluded offer" or "excluded invitation" pursuant to the Capital Markets and Services Act 2007. This includes an offer or invitation made to employees or directors of the offeror / issuer or its related corporation pursuant to an employee share or ESOS. However, where any information or material pertaining to the offer is distributed or issued to employees in Malaysia, such materials, constituting an information memorandum, should be filed with the SC within 7 days after its first issuance in Malaysia. Such materials include information describing the business and affairs of the employer issued in respect of the offer and any communications to the employee regarding the offer.
The offer of purchase rights is generally exempt from affirmative securities law requirements.
The EU Prospectus Directive has been implemented into Dutch law. Even if purchase rights are considered securities that require a prospectus, they may nonetheless be exempt from the prospectus requirements (eg, the 150-person exemption).
Offers of stock purchase rights will require compliance with securities law. Reduced compliance may be available under certain exemption provisions. If the employee share exemption can be utilised, compliance obligations are fairly light (including, providing the offeree with the prescribed warning statement and the financial statements of the offeror or a notice confirming the that the financial statements are available from the offeror on request). Alternative exemptions may be available under certain circumstances.
Generally, right issuance to existing shareholders is governed by the terms of issuance and subject to the express provision of the articles of association. Right issues by listed entities are tradable securities subject to prior approval of the Nigerian Securities and Exchange Commission and the rules of the relevant securities exchange.
As part of the European Economic Area, the EU Prospectus Directive has been implemented into Norwegian law. Even if purchase rights are considered securities that require a prospectus, they may nonetheless be exempt from the prospectus requirements (eg, the 150-person exemption).
Securities restrictions typically apply; however, exemptions for employee stock purchase rights are available. Offerings to fewer than 20 employees are exempt from securities registration requirements without any notice being required to be filed with the Philippine Securities and Exchange Commission. An exemption from registration requirements may be obtained for offerings to 20 or more employees where such offerings are considered of limited character.
The EU Prospectus Directive has been implemented into Polish law. Generally, purchase rights are considered transferable securities. Accordingly, unless an offer of purchase rights is otherwise exempt (eg, the 150-person exception), a prospectus is required.
Holders of stock options do not have an actual ownership interest in the company at the time of issuance as such stock options do not grant voting rights, rights to dividends or any other privileges or liabilities arising from ownership of stock.
As a rule, stock offers are subject to the Portuguese legal framework transposing the relevant European Directives, namely DIRECTIVE 2003/71/EC (the Prospectus Directive). The prospectus is not required for offers of securities for distribution to current or former employees by the relevant employer, by a company in a control or group relation with the latter or by a company subject to common control, provided the issuer has its registered or actual head office in the EU and that a document is made available containing information on the number and nature of the securities as well as the reasons for and details of the offer.
The same applies to securities offers issued by a company established outside the EU whose securities are admitted to trading on a regulated market authorized in the EU or in a third-country market, provided additional conditions are met.
Advertising materials in connection with a stock offer are subject to a pre-approval by the Portuguese Securities’ Market authority.
Generally, employee stock purchase rights in public companies are subject to securities law restrictions and currently there is no special exemption for the offering to the employees. Special rules and additional restrictions exist for offering of securities and other financial instruments by non-Russian issuers.
Stock awards in Russian private companies is not common and may be subject to different securities law restrictions depending on the nature of such private companies.
Any securities offer, including the grant of purchase rights, may be subject to securities law requirements. In many cases, exemptions to such requirements are available, if filings are made with local securities authorities.
Offers of purchase rights are generally exempt from securities registration requirements.
The EU Prospectus Directive has been implemented into Slovak law. As the EU Prospectus Directive has been repealed by a new EU Regulation on prospectuses, Slovak law regarding the prospectus was changed as of July 21, 2019. According to Slovak Securities Act the obligation to publish a prospectus shall apply after 21 July 2019 to public offers of securities only in case, if the total value of each such offer in the European Union, calculated over a period of 12 months exceeds EUR1 million.
Public offers of securities are subject to prospectus requirements, but exemptions are available under certain circumstances.
As long as purchase rights are only offered to employees or officers of a Korean affiliate for purposes of promoting their welfare in accordance with an employee stock purchase plan, there are no specific securities restrictions.
The EU Prospectus Regulation is directly applicable in Spain.
An offer to participate in the plan will trigger the need to produce a prospectus unless there is an exemption available under the EU Prospectus Regulation.
The most commonly relied upon exemption for an employee share plan is the “employee exemption” under Article 1(4)(i) of the EU Prospectus Regulation. This exemption states that no prospectus is required for an offer to existing or former employees or directors. To rely on the employee exemption, a document must made available to eligible employees which contains information on the number and nature of the securities and the reasons for and details of the offer.
The company making the offer may also rely on other exemptions from the prospectus requirement, being some of them
(i) an offer addressed to fewer than 150 people per Member State, other than qualified investors; or
(ii) an offer where the total consideration for the securities offered in the EU (considering together all the Member States where it is made) is less than EUR8 million (calculated over a period of 12 months), except for the credit institutions sector, for which the threshold is set at EUR5 million.
The EU Prospectus Directive has been implemented into Swedish law. As a general rule, nontransferable purchase rights are not considered securities subject to the Prospectus Directive. Even if purchase rights are considered securities that require a prospectus, they may nonetheless be exempt from the prospectus requirements (eg, the 150-person exemption).
There are generally no specific securities requirements, so long as purchase rights are awarded only to employees and the shares issued are not listed on a Swiss exchange or issued by a Swiss company.
Purchase rights are not subject to specific securities restrictions.
Non-Thai companies wishing to grant stock awards to employees or directors in Thailand must report certain details of the grant to the Thai SEC.
There are no specific securities law requirements, as long as the offer is not a public offer and the underlying shares are not listed on the Turkish Stock Exchange.
Generally, given that awards are provided by a non-Ukrainian issuer, no securities regulations apply.
In some cases, a prospectus may be required.
As long as the award options are not deemed to be a public offer, securities requirements generally do not apply. Awards addressed to individual employees should not be deemed public offers.
Vietnamese employees participating in a stock award plan of a foreign issuer are considered to be making an indirect offshore investment. Prior to granting an employee stock purchase right under the stock award plan, the foreign issuer of the stock award plan (through the implementing entity) must register such a plan with the State Bank of Vietnam (SBV). Such stock award plan can be implemented with respect to Vietnamese employees under the forms of
There is no definition of "preferential conditions;" however, the typical objective of such stock award plan is to serve as additional benefits for Vietnamese employees in order to retain and incentivize them to continue contributing to the implementing entity's operations in Vietnam. In practice, when Vietnamese employees are required to pay to foreign issuers in exchange for stock purchase rights, the SBV presumes that the price paid by such employees to foreign issuers should be lower than market price.
Within 15 days from the receipt of valid registration documents, the SBV will issue an approval or objection letter (in which the reason for such objection is detailed). In practice, plans for bonus stocks are easier to register than plans for right to purchase stocks with "preferential conditions." The former takes about 2-3 months, while the latter takes about 3-5 months because the SBV carefully reviews the stock award plan before issuing its approval. Note that the implementing entity can choose the commercial bank and indicate such bank in the registration application.