Global Stock Options Survey. Gide Loyrette Nouel A.A.R.P.I. France

Transcription

1 Global Stock Options Survey Gide Loyrette Nouel A.A.R.P.I. France CONTACT INFORMATION: Philippe Desprès and Foulques de Rostolan Gide Loyrette Nouel A.A.R.P.I. 26, cours Albert Ier Paris, France and Telephone: and Are there any corporate actions that need to be taken by the Committee or the shareholders to establish the plan? Under French law, the extraordinary general meeting (EGM) of shareholders may authorize the board of directors or the executive board, as applicable, to grant stock options to some or all of the company's staff, on the basis of (i) a report from the board of directors or the executive board and (ii) the auditors' special report. The EGM determines the period during which said authorization may be used by the board of directors or the executive board, which shall not exceed 38 months. 2. Are there any requirements in your jurisdiction about the composition or authority of the Committee? In a stock company (société anonyme), the board of directors or the executive board, as applicable, may delegate the authority to grant options to a single individual (e.g. the Chairman of the board) or to a Committee (e.g. a Compensation Committee). This Committee should be composed of directors (administrateurs) or members of the executive board (membres du

2 directoire) or members of the supervisory board (membres du conseil de surveillance) of the granting company, as applicable. 3. What does the Committee have to publicly disclose about its Plan-related decisions and when must those disclosures be made? A special report informs the ordinary general meeting each year of the operations carried out in connection with stock option plans. It must indicate: (i) the number, expiry dates and price of the options, which, during the year, have been granted to (a) corporate officers and (b) each of the ten employees of the company who were granted the highest number of options; and (ii) the number and price of the shares acquired during the year upon exercise of options by (a) corporate officers and (b) each of the ten employees of the company who acquired the highest number of shares. 4. Is a participant subject to taxation: on receipt of the option; on exercise; or otherwise? Where the stock option grant is eligible for the favorable regime (see Question 11), the participant is taxed at the time the underlying shares are sold. Where the stock option grant does not comply with French law requirements, taxation may occur upon exercise of the stock options or at the time the underlying shares are sold, depending on the nature of the non-compliance. 5. Does the tax treatment vary depending on where the Participant resides or habitually exercises his duties (i.e. outside your jurisdiction)? Whether the gains made upon the exercise of stock options and the sale of the underlying shares will be taxed in France depends on where the Participant resides and habitually exercises his duties. Double taxation of the same gains in two different jurisdictions may be avoided through the application of double tax treaties. 6. Does the tax treatment vary depending on the type of option or specific Plan provisions concerning the option? No. For instance, the tax treatment does not vary depending on whether the options are performance-based or not. 7. Is Company X entitled to claim a deduction from (or other reduction of) taxable income with respect to the option and, if so, when and how is this calculated? Expenses that can be deducted from the taxable income of the granting company are (i) expenses incurred in respect of the purchase of shares that are intended for the employees, (ii) capital increase expenses in the case of a subscription option, (iii) managing costs of the shares that are

3 repurchased or issued until the date of exercise of the option and (iv) costs incurred due to the exercise by the employees of subscription or purchase options (e.g., agent's commissions). 8. Does the tax treatment under 7 vary depending on where the Participant resides or habitually exercises his duties (i.e. outside your jurisdiction?) No. 9. Are there special rules for significant shareholders (for example, more than 10% shareholders of the Company)? Stock options cannot be offered to employees or officers who hold 10% or more of the capital of the granting company. 10. What are the other principal tax considerations, if any, such as withholding for social insurance, employment taxes, unemployment taxes, etc., for Company X or its local subsidiary or branch office in your jurisdiction, and the participant? Two social security contributions on stock options were recently created: (i) a contribution to be borne by the employer, whose funding base equals, according to the employer's choice, either the value of the stock options as it appears in the company's consolidated accounts or 25% of the fair market value of the underlying shares on the date the stock options were granted, whose rate is 10% and which must be paid in the month following the stock option grant, and (ii) a contribution to be borne by the beneficiary, whose funding base equals the acquisition gain, whose rate is 2.5% and which must be paid in the month following the sale of the shares. 11. What needs to be done, if anything, under your local law so that Participants obtain the favorable tax treatment offered by your jurisdiction? The favorable social and tax treatment is available only if (i) the options were granted according to Articles L to L of the French Corporate Code, (ii) the shares acquired upon exercise are registered in the nominative form and (iii) the shares acquired through the exercise of the options are not sold less than 4 years after the date the options were granted. 12. What securities law, or other regulatory (or exchange) requirements are there, if any, such as: filing requirements; prospectus requirements; offering exemptions; size of offering limitations; and currency requirements? A company that grants shares to French employees under a stock option plan must file a prospectus with the French Financial Markets Authority unless (i) the offer of shares is addressed to fewer than 100 individuals, (ii) the offer's maximum value does not exceed certain thresholds, (iii) the offer is addressed to investors who each acquire the shares for a consideration above EUR50,000 (or the shares have an individual unit price of at least EUR50,000) or (iv) for listed

4 companies, the underlying shares belong to the same category as the listed shares and information is made available regarding (a) the number and nature of the shares and (b) the reasons for and the details of the offer. 13. Is a cashless exercise permissible? Yes. 14. Are there any rules in your jurisdiction that prohibit or discourage a foreign subsidiary of Company X from granting options to acquire shares of common stock of Company X to the subsidiary's executives? No. As a rule, stock options may be granted to the employees of companies having at least 10% of their shares or voting rights directly or indirectly held by the company granting the options. This rule applies irrespective of whether the subsidiary of the company granting the options is a French subsidiary or a foreign subsidiary. 15. Are the rules addressed in this survey applied differently based on whether the multinational operates in a particular jurisdiction as a branch office or as a domestic subsidiary? If so, what are these differences? Where a company complies with Articles L to L of the French Commercial Code and is therefore legally entitled to grant stock options, it may grant such options to its France-based employees as well as to its employees based in foreign branch offices. Conversely, where the foreign-based beneficiaries of the options are employed by a subsidiary of the company granting the options, the abovementioned rules (see Question 14) apply. 16. Do executive employees in other jurisdictions need to be covered by a plan of the subsidiary or a plan separate from your Plan to comply with your jurisdiction's law? No. Conversely, it is customary to draft a sub-plan to adapt a French plan to specific foreign law requirements. 17. If known, please comment on the accounting issues which are relevant for this Plan. Not known. 18. List any other requirements of importance in your jurisdiction. (1) The board must either state that corporate officers cannot exercise their options before termination of their duties or state what portion of the shares acquired upon exercise of the options corporate officers must hold until termination of their duties. (2) The total number of outstanding options may not entitle to subscribe for a number of shares exceeding 1/3rd of the stock of the granting company. (3) For listed companies, stock options cannot be granted during

5 certain periods, e.g. during the ten trading days preceding and following the date on which the accounts are published. 19. Severance Risks: Will the value of granted options legally need to be included in severance calculations? No, except if the grant does not comply with French law requirements for the favorable regime and the exercise gain is subsequently taxed as salary (upon exercise of the options or the sale of the underlying shares - see Question 4). Moreover, employees, whose dismissal is held unfair by the courts and who lost vested or unvested stock options as a result of their dismissal, are entitled to specific damages to compensate them for the loss of a potential gain. These damages, whose amount can be extremely high, come in addition to damages for unfair dismissal. 20. Acquired Rights: Will Plan participants become legally entitled to future grants or immediate vesting at termination of employment or service? As a rule, the beneficiary of a stock option grant (i) is not automatically entitled to future grants and (ii) does not benefit from immediate vesting of his options at the time of termination. On the contrary, stock option plans generally provide for the cancellation of unvested options at the time of termination. However, if the termination was at the employer's initiative and if it is deemed unfair by a Court, the beneficiary is entitled to damages (see Question 19). 21. Data Privacy: Will Company X or the local subsidiary or branch office need to take any additional measures to adhere to local data privacy laws? According to the 1978 Data Protection Act, any personal database administered through automatic data processing must be declared to the French Data Protection Agency (CNIL). Therefore, if the administration of Company X's stock option plan involves the automatic processing of personal data, a declaration must be made to the French Data Protection Agency.