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 stock options 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. The Australian government is considering broadening the exemptions from the disclosure requirements for stock options, 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 options are considered securities that require a prospectus, they may nonetheless be exempt from the prospectus requirements (eg, the 150-person exemption or other exemptions). However, non-transferable free offers of restricted stock or RSUs are not considered "transferable securities" subject to the EU Prospectus Directive.
The EU Prospectus Directive has been implemented into Belgian law. Even if stock options are considered securities that require a prospectus, they may nonetheless be exempt from the prospectus requirements (eg, the 150-person exemption).
The grant of options 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 law restrictions applicable to the offer of stock options 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 options 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 whether the 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 options is not subject to securities law requirements, given the CSRC's guidance is informal and non-binding, a company offering stock options should nonetheless consider measures to reduce the risk (eg, mandate cashless exercise) in the event such an offer is deemed subject to CSRC approval.
As long as the award of stock options 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.
The new EU Prospectus Regulation has been implemented into Czech law. Generally, stock options are considered as transferable investment instruments. If no consideration is paid by the employee for restricted stock or RSUs, the award should be exempt from the prospectus requirements. Even if options are considered securities that require a prospectus (eg, an employee pays consideration), they may nonetheless be exempt from the prospectus requirements (eg, if is addressed to fewer than 150 persons per country).
Even if employee stock options 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 may contemplate stock options. However, S.A.S.s cannot be listed.
Foreign stock options are not subject to Ecuadorian securities regulations.
In order to avoid securities law requirements, the underlying shares must not be listed on the Egyptian Exchange.
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 stock options are considered securities that require a prospectus, they may nonetheless be exempt from the prospectus requirements (eg, through the 150-person exemption).
The EU Prospectus Directive has been implemented into French law. As a general rule, non-transferable options are not considered transferable securities subject to the Prospectus Directive. Even if options 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 German law. Generally, options are considered transferable securities. Accordingly, unless an offer of options 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 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 options 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 issuer to the members of its board of directors or to its employees or the 150-person exemption). Prior to the offer of such options 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 options are not considered a security subject to the Prospectus Directive. Even if options are considered securities that require a prospectus, they may nonetheless be exempt from the prospectus requirements (eg, the 150-person exemption).
There generally are no affirmative securities requirements associated with the grant of stock options.
A registration statement is required if the value of shares underlying options 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 options are not generally considered transferable securities subject to the EU Prospectus Directive. Even if options, by virtue of their particular features, are considered transferable securities, 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).
Under the provisions of the Irish Companies Law, directors may be subject to additional reporting requirements.
Options are generally subject to securities restrictions. However, in most cases, exemptions are available.
The EU Prospectus Directive is effective in Italy. Generally, non-transferable options are considered a security subject to the Prospectus Directive. Accordingly, unless an offer of options is otherwise exempt (eg, (i) offer of options 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 options, reason and details of the stock plan is available; (ii) through the 150-person exemption), a prospectus is required.
In principle, issuers can directly place options 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. Unless the full cashless exercise method is required, an Italian financial intermediary must be engaged to advise optionees on their rights under the plan.
Regardless of the total number of employees and total value of 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 are generally 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 prices of stock options in excess of JPY100 million, a securities registration statement (yukashoken todokedesho) 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 the aggregate total amount of the issuing price and the exercise price of stock options 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 options generally is exempt from affirmative securities requirements.
The EU Prospectus Directive has been implemented into Dutch law. Even if options are considered securities that require a prospectus, they may nonetheless be exempt from the prospectus requirements (eg, the 150-person exemption).
Offers of stock options 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 the that the financial statements are available from the offeror on request). Alternative exemptions may be available under certain circumstances.
For listed companies, the grant of stock options to employees triggers registration and disclosure requirements with the Nigerian Stock Exchange (NSE). A listed company in Nigeria may only reserve a maximum of 10 percent of its issued share capital for its employees. Where a proportion of the shares in a placement or public offer is reserved for employees, the company shall provide the stock exchange along with the General Undertaking, a list of members of staff who have been allotted shares, the number of such shares, the capacity in which they work for the company and the number of years of service with the company.
For non-listed entities, however, the Nigerian Code of Corporate Governance 2018 provides that the remuneration of executive directors should comprise components that are related to long-term performance and may include share options and bonuses that should, however, be disclosed in the company’s annual reports.
Relatedly, where stocks are granted to directors and executives of a listed company as part of their remuneration, the board of the company shall ensure that the security is not priced at a discount except with the approval of Securities and Exchange Commission. Additionally, the limit of such share option must be determined in any given financial year and subject to the approval of the shareholders of the company in a general meeting.
As part of the European Economic Area, the EU Prospectus Directive has been implemented into Norwegian law. Even if options 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 stock options 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, options are considered transferable securities. Accordingly, unless an offer of options is otherwise exempt (eg, the 150-person exemption), 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, 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.
Any securities offer, including the grant of an option, 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 options 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. As a general rule, non-transferable options are not considered securities pursuant to Slovak law. According to the Slovak Securities Act, the obligation to publish a prospectus shall apply after July 21, 2019 to public offers of securities only if the total value of each offer in the EU, 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 options are only offered to employees or officers of a Korean affiliate for purposes of promoting their welfare in accordance with a stock option plan, there are no specific securities restrictions.
The EU Prospectus Regulation is directly applicable in Spain.
The grant of an option 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, non-transferable options are not considered securities subject to the Prospectus Directive. Even if options 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 options are awarded only to employees and the shares issued are not listed on a Swiss exchange or issued by a Swiss company.
Options 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 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.
As a general rule, the grant of non-transferable options to employees does not require a prospectus.
As long as the purchase rights are not deemed to be a public offer, securities law 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 indirect offshore investment. Prior to granting restricted stock and RSUs under the stock award plan to Vietnamese employees, foreign issuer (through the implementing entity) must register such a plan with the SBV. Such stock award plan can be implemented with respect to Vietnamese employees under the forms of
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. 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.