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  • Restricted stock and RSUs

    Securities

    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

    Foreign exchange

    There are no foreign exchange restrictions applicable to restricted stock or RSUs.

    Tax

    Employee

    The employee is taxed on restricted stock upon grant and on RSUs upon vesting (may include personal assets tax).

    The employee is subject to a flat tax of 15% on any net gain resulting from the sale of the shares by Argentine Tax residents, or, alternatively, 13.5% on the gross sale price by non-residents.

    Employer

    Withholding & reporting

    Tax withholding and reporting are required upon grant for restricted stock and upon vesting of RSUs.

    Deduction

    Argentine subsidiaries are allowed to deduct the amount reimbursed to the parent company for the cost of the benefits if a Reimbursement or Recharge Agreement is in place.

    Social insurance

    Social insurance contributions are generally payable by the employee and employer.

    Data protection

    Obtaining an employee's written consent for the processing and transfer of his or her personal data is the most common approach to comply with certain aspects of data protection requirements. The employer also is required to register any database that includes an employee's personal data with the Argentine privacy authorities.

    Labor

    Benefits received from restricted stock or RSUs may be considered part of the employment relationship and included in a severance payment if the awards are repeatedly granted to an employee. Upon involuntary termination of employment, an employee may be entitled to continued vesting and other rights with respect to his or her award. In order to reduce the risk of employee claims, the award agreement signed by an employee should provide, among other things, that vesting of restricted stock or RSUs ceases upon termination of employment, and that the plan and any awards under it are discretionary.

    Communications

    Although plan materials are not required to be translated into Spanish, it is recommended, to ensure that employees understand the terms of their awards. Award materials should be addressed to individual employees in order to avoid securities law requirements.

  • Stock options

    Securities

    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

    Foreign exchange

    There are no foreign exchange restrictions applicable to option plans.

    Tax

    Employee

    The employee is taxed on the spread upon exercise (including personal assets tax, if applicable). 

    The employee is subject to a flat tax of 15% on any net gain resulting from the sale of the shares by Argentine Tax residents, or alternatively 13.5% on the gross sale price by non-residents.

    Employer

    Withholding & reporting

    Tax withholding and reporting are required upon exercise.

    Deduction

    Argentine subsidiaries are allowed to deduct the amount reimbursed to the parent company for the cost of the benefits if a Reimbursement or Recharge Agreement is in place.

    Social insurance

    Social insurance contributions are generally payable by the employee and employer when an option is exercised.

    Data protection

    Obtaining an employee's written consent for the processing and transfer of his or her personal data is the most common approach to comply with certain aspects of data protection requirements. The employer is also required to register any database that includes an employee's personal data with the Argentine privacy authorities.

    Labor

    Benefits received from an option may be considered part of the employment relationship and included in a severance payment if options are repeatedly granted to an employee. Upon involuntary termination of employment, an employee may be entitled to continued vesting and other rights with respect to his or her option. In order to reduce the risk of employee claims, the award agreement signed by an employee should provide, among other things, that vesting of an option ceases upon termination of employment, and that the plan and any awards under it are discretionary.

    Communications

    Although plan materials are not required to be translated into Spanish, it is recommended, to ensure that employees understand the terms of their awards. Award materials should be addressed to individual employees in order to avoid securities law requirements.

  • Stock purchase rights

    Securities

    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

    Foreign exchange

    There are no foreign exchange restrictions applicable to stock purchase rights.

    Tax

    Employee

    The employee is taxed on the spread upon purchase.

    The employee is subject to a flat tax of 15% on any net gain resulting from the sale of the shares by Argentine Tax residents, or, alternatively, 13.5% on the gross sale price for non-residents.

    Employer

    Withholding & reporting

    Tax withholding and reporting are required upon purchase.

    Deduction

    Argentine subsidiaries are allowed to deduct the amount reimbursed to the parent company for the cost of the benefits if a Reimbursement or Recharge Agreement is in place.

    Social insurance

    Social insurance contributions are generally payable by the employee and employer when the shares are purchased.

    Data protection

    Obtaining an employee's written consent for the processing and transfer of his or her personal data is the most common approach to comply with certain aspects of data protection requirements. The employer also is required to register any database that includes an employee's personal data with the Argentine privacy authorities.

    Benefits received from a purchase right may be considered part of the employment relationship and included in a severance payment if purchase rights are repeatedly granted to an employee. Upon involuntary termination of employment, an employee may be entitled to continued participation in the plan. In order to reduce the risk of employee claims, the offer document signed by an employee should provide, among other things, that participation in the plan ceases upon termination of employment, and that the plan and any awards under it are discretionary.

    In light of restrictions on payroll deductions, alternative arrangements may be necessary for contributions to the plan.

    Labor

    Not applicable.

    Communications

    Although plan materials are not required to be translated into Spanish, it is recommended, to ensure that employees understand the terms of their awards. Award materials should be addressed to individual employees in order to avoid securities law requirements.

  • Key contacts
    Guillermo Cabanellas
    Guillermo Cabanellas
    Senior Partner DLA Piper (Argentina) [email protected] T +5411 41145500 View bio
    Augusto Nicolás Mancinelli
    Augusto Nicolás Mancinelli
    Of Counsel DLA Piper (Argentina) [email protected] T +5411 41145500 View bio
    Dean Fealk is the global contact for Global Equity.
    Dean Fealk is the global contact for Global Equity.
    [email protected] View bio

Restricted stock and RSUs

Securities

Argentina

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

Australia

The grant of restricted stock and RSUs may trigger registration and disclosure requirements unless an exemption applies or specific relief is obtained. 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 the corporate regulator.

Austria

The EU Prospectus Directive has been implemented into Austrian law. In general, a prospectus will be required for an offering of transferable securities unless an exemption or exclusion applies. As long as no consideration is paid by the employee for the restricted stock or RSUs, the award should be exempt from prospectus requirements (eg, 150-person exemption; possible other exemptions). However, non-transferable free offers of restricted stock or RSUs are not considered "transferable securities" subject to the EU Prospectus Directive.

Belgium

The EU Prospectus Directive has been implemented into Belgian law. Even if restricted stock or RSUs are considered securities that require a prospectus, they may nonetheless be exempt from the prospectus requirements (eg, because no consideration is paid by the employee for restricted stock or RSUs, or due to the 150-person exemption).

Brazil

The grant of restricted stock or RSUs by entities incorporated abroad to the employees of Brazilian subsidiaries generally is not subject to securities law requirements.

Canada

In most instances there should be no securities law restrictions applicable to the offer of restricted stock and RSUs 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.

Chile

As long as the offer of restricted stock or RSUs constitutes a private offer, generally no affirmative securities law requirements are implicated.

China

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 restricted stock/RSUs by overseas listed companies is not subject to approval requirements, given the CSRC's guidance is informal and non-binding, a company offering such awards should nonetheless consider measures to reduce the risk in the event such offer is deemed subject to CSRC approval.

Colombia

As long as the award of Restricted Stock and RSUs is not deemed to be a public offer, securities requirements generally do not apply. Awards addressed to individual employees should not be deemed public offers, and therefore, said award shall not be addressed to more than 100 determined employees.

Czech Republic

The EU Prospectus Directive has been implemented into Czech law. As long as no consideration is paid by the employee for restricted stock or RSUs (ie, serves as a benefit) the award should be exempt from prospectus requirements subject to obligation to notify the Czech National Bank and further requirements set forth in Act No. 256/2004 Coll., as amended (Capital Market Undertakings Act). Effective as of July 20, 2017, the EU Prospectus Directive shall be repealed by EU Prospectus Regulation 2017/1129, further simplifying the regime for exemption from the obligation to publish a prospectus. Accordingly, changes in the Czech legislation reflecting the EU Prospectus Regulation are underway.

Denmark

The EU Prospectus Directive has been implemented into Danish law. As long as no consideration is paid by the employee for an award of restricted stock or RSUs, such award is exempt from the prospectus requirements.

Ecuador

Restricted stock and RSUs are not contemplated by the Ecuadorian law.

Egypt

In order to avoid securities law requirements, the underlying shares must not be listed on the Egyptian Exchange.

Finland

The EU Prospectus Directive has been implemented into Finnish law and as of July 21, 2019 the EU Prospectus Regulation is fully applicable.

France

The EU Prospectus Directive has been implemented into French law. As long as no consideration is paid by the employee for restricted stock or RSUs, the award should be exempt from the prospectus requirements.

Germany

The EU Prospectus Directive has been implemented into German law. As long as no consideration is paid by the employee for restricted stock or RSUs, the award should be exempt from the prospectus requirements. In each case, however, an analysis is required, whether the offer or assignment of restricted stock or RSU encompasses a hidden contribution. In this case a prospectus can be required, unless other exemptions from the prospectus requirement apply (eg, the 150-person exemption).

Greece

The EU Prospectus Directive has been implemented into Greek law. The award of restricted stock or RSUs is generally exempt from the prospectus requirements. However prior to the offer of such awards to the designated recipients an informative document with the basic principles of the relevant program may be submitted to the Hellenic Capital Market Commission.

Hong Kong

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.

Hungary

The EU Prospectus Directive has been implemented into Hungarian law. As long as no consideration is paid by the employee for restricted stock or RSUs, the award should be exempt from the prospectus requirements.

India

There generally are no affirmative securities requirements associated with the grant of restricted stock and RSUs.

Indonesia

A registration statement is required if the value of shares granted within a 12-month period is Rp 1 billion or more and either:

  • Shares are sold to over 50 Indonesians worldwide
  • The offer is made to more than 100 Indonesians worldwide

Ireland

The EU Prospectus Directive has been implemented into Irish law. As long as no consideration is paid, directly or indirectly (eg, in lieu of salary or cash bonus entitlements) by the employee for restricted stock or RSUs, the award should be exempt from prospectus requirements. Even if restricted stock or RSUs are issued for consideration, they may nonetheless be exempt from prospectus requirements of Irish law if:

  • the restricted stock or RSUs are structured other than as transferable securities or
  • the relevant offer falls within a safeharbour exemption (eg, where such securities are offered to fewer than 150 legal or natural persons in Ireland)

Under the provisions of the Irish Companies Law, directors may be subject to additional reporting requirements.

Israel

Restricted stock and RSUs generally are subject to securities restrictions. However, in most cases, exemptions are available.

Italy

The EU Prospectus Directive is effective in Italy. As long as no consideration is paid by the employee for restricted stock or RSUs, the award should be exempt from the prospectus requirements.

Japan

For an issuance of Restricted Stock or RSUs, securities filing requirements may be triggered, dependent upon 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 a share value in excess of ¥100 million, a detailed notification is required before the offering to employees and it will be publicly disclosed. An annual report may also be required after the offering.

For offers to 50 or more employees which consist of a share value of more than ¥10 million but less than ¥100 million, a summary notification is required.

Malaysia

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.

Mexico

The offer of restricted stock and RSUs is generally exempt from affirmative securities requirements.

Netherlands

The EU Prospectus Directive has been implemented into Dutch law.  As long as no consideration is paid by the employee for restricted stock or RSUs, the award should be exempt from the prospectus requirements.

New Zealand

Offers of Restricted stock and RSUs (shares) will require compliance with securities law. Reduced compliance may be available under certain exemption provisions. If the employee share exemption can be used, 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 that the financial statements are available from the offeror on request). Alternative exemptions may be available under certain circumstances.

Norway

As part of the European Economic Area, the EU Prospectus Directive has been implemented into Norwegian law. As long as no consideration is paid by the employee for restricted stock or RSUs, the award should be exempt from prospectus requirements.

Philippines

Securities restrictions typically apply; however, exemptions for restricted stock and RSUs are available. Offerings to fewer than 20 employees are exempt from securities registration requirements without any notice 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.

Poland

The EU Prospectus Directive has been implemented into Polish law. As long as no consideration is paid by the employee for restricted stock or RSUs, the award should be exempt from prospectus requirements.

Portugal

Portuguese entities cannot issue Restricted Stock or RSUS. Under Portuguese Law, the only securities that could be subject to restrictions as to the rights of their holders are:

  • Preference Shares with no Voting Rights (Ações Preferenciais sem Voto): allow for their holders the right to receive the company's dividends prior to the remaining shareholders. Preferred Shares' shareholders have all shareholders' rights and liabilities, save for voting rights
  • Fixed-Term Preference Shares (Ações Preferenciais Remíveis): allow their holders to have a preference right of a financial nature but are subject to extinction with a pre-fixed term, or as so resolved by the shareholders' meeting of the relevant company

None of the above are specifically linked to a particular group, such as companies' employees. 

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 European Union and that a document is made available containing information on the number and nature of the securities and 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.

Russia

Generally, stock awards 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 are not common, and may be subject to different securities law restrictions depending on the nature of such private companies.

Saudi Arabia

Any securities offer, including the grant of restricted stock or RSUs, may be subject to securities law requirements. In many cases, exemptions to such requirements are available, if filings are made with local securities authorities.

Singapore

Offers of restricted stock and RSUs are generally exempt from securities registration requirements.

Slovak Republic

The EU Prospectus Directive has been implemented into law of the Slovak Republic. As the EU Prospectus Directive has been repealed by a new EU Regulation on prospectuses, Slovak law regarding the prospectus will be changed as of July 21, 2019. In general, public offering of securities to employees should be exempted from prospectus requirements.

South Africa

Public offers of securities are subject to prospectus requirements, but exemptions are available under certain circumstances.

South Korea

As long as restricted stock and RSUs are only offered to employees or officers of a Korean affiliate, for purposes of "promoting their welfare" in accordance with an award plan, there are no specific securities restrictions.

Spain

The EU Prospectus Directive has been implemented into Spanish law. As long as no consideration is paid by the employee for restricted stock or RSUs, the award should be exempt from prospectus requirements.

Sweden

The EU Prospectus Directive has been implemented into Swedish law. As long as no consideration is paid by the employee for restricted stock or RSUs, the award should be exempt from prospectus requirements.

Switzerland

There generally are no specific securities requirements, so long as the restricted stocks and the RSUs are awarded only to employees and the shares issued are not listed on a Swiss exchange or by a Swiss company.

Taiwan

Restricted stock and RSUs are not subject to specific securities restrictions.

Thailand

Non-Thai companies wishing to grant restricted stock/RSUs to employees or directors in Thailand must report certain details of the grant to the Thai SEC.

Turkey

There are no specific securities requirements, as long as the offer is not a public offer and the underlying shares are not listed on the Turkish Stock Exchange.

United Kingdom

As long as no consideration is paid by the employee for restricted stock or RSUs, the award should be exempt from prospectus requirements.

Venezuela

As long as the award of restricted stock and RSUs is not deemed to be a public offer, securities requirements generally do not apply. Awards addressed to individual employees should not be deemed public offers.

Vietnam

Vietnamese employees participating for stock of a foreign issuer are considered to be making indirect offshore investment. Prior to granting restricted stock and RSUs under the stock award plan to Vietnamese employees, foreign issuer (through its Vietnam entity, representative office or branch in Vietnam, collectively called 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

  • bonus stocks and
  • right to purchase stocks with "preferential conditions"

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. Restricted stock and RSUs generally are considered bonus stocks.

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.