Global Stock Options Survey. Wardynski & Partners Poland

Transcription

1 Global Stock Options Survey Wardynski & Partners Poland CONTACT INFORMATION: Tomasz Wardynski and Danuta Pajewska Wardynski & Partners Ujazdowskie 10, Warsaw, Poland and Telephone: and Are there any corporate actions that need to be taken by the Committee or the shareholders to establish the plan? Polish commercial law does not foresee the need to take any corporate action by the Committee or shareholders. However, the statutes of Company X can provide that, in order to give the option to buy shares to Participants, the Committee must obtain prior consent of the Management Board, Supervisory Board or the General Meeting of Shareholders (note that under Polish commercial law, the executive body is the Management Board whereas supervisory functions are performed by the Supervisory Board). 2. Are there any requirements in your jurisdiction about the composition or authority of the Committee? Generally, Polish commercial law does not provide any special requirements about the composition or authority of the Committee. However, the statutes of Company X or regulations of the Management Board can impose certain requirements as to the rights and functions of the Committee and authorize the Management Board to appoint the Committee. In addition, the General Meeting of Shareholders, also on the basis of a resolution, can authorize the Management Board to appoint the Committee.

2 3. What does the Committee have to publicly disclose about its Plan-related decisions and when must those disclosures be made? Generally, there are no special requirements in Poland regarding public disclosure of Planrelated decisions. However, if such decisions are addressed to at least 100 Participants in Poland, the obligations described in the answer to question no. 12 must be met. Additionally, if Planrelated decisions are introduced as part of employment remuneration or additional employment benefits, the Committee will need to formally introduce these decisions in accordance with its internal division of authority and present it to employees on non-discriminatory basis. 4. Is a participant subject to taxation: on receipt of the option; on exercise; or otherwise? A participant who is a Polish tax resident is subject to taxation twice: at the moment of exercise of an option and at the moment of sale of shares. However, the approach of tax authorities in this respect is not fully established and another interpretation is possible (e.g. a participant is subject to taxation only at the moment of a sale of shares bought as a result of option exercise). In the case of Polish tax non-residents, please refer to point Does the tax treatment vary depending on where the Participant resides or habitually exercises his duties (i.e. outside your jurisdiction)? Yes. The exercise of an option and subsequent sale of shares will always be considered subject to taxation for Polish tax residents. As for Polish tax non-residents, taxation will depend on the situation of a given Participant and provisions of a relevant double tax treaty. If there is no treaty in place, income will be subject to taxation in Poland as income from a Polish source. 6. Does the tax treatment vary depending on the type of option or specific Plan provisions concerning the option? In case of stock option plans where options are granted on the basis of a Shareholder Meeting resolution and when new shares are issued for this purpose, a Participant is subject to taxation only at the moment of sale of shares bought under an option plan. Thus, there is no taxation at the moment of option exercise. 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? Company X should be entitled to deduct all costs connected to an option plan from its taxable income (these costs should be deducted at the moment when they were incurred). However, the approach of tax authorities in this respect is not fully established and other less favorable interpretations are possible.

3 8. Does the tax treatment under 7 vary depending on where the Participant resides or habitually exercises his duties (i.e. outside your jurisdiction?) The costs of an option should be tax deductible as long as they are connected (even indirectly) with income of Company X. As a consequence, if Company X has some costs concerning stock option plans for Company employees performing their duties outside of Poland, such costs, as a rule, should be tax deductible. 9. Are there special rules for significant shareholders (for example, more than 10% shareholders of the Company)? There are no special tax regulations with regard to stock options for significant shareholders. 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? The income from an option should qualify as a capital gain. It is not subject to social security contributions or employment taxes. Capital gains in Poland are taxed at a flat 19% rate. In case of exercise of option, the basis for taxation is the difference between costs of option exercise and the market value of shares. As for the sale of shares, the difference between costs of acquisition of shares (and additional administrative costs) and the price of their sale would be subject to taxation. In the past some tax rulings were issued under which income from an option should be qualified as employment income and as subject to social security and income tax up to 40%. Such an approach is rare. 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 only favorable treatment is the one indicated in point 6 of the survey. In order to benefit from this solution two conditions must be met, i.e. options are granted on the basis of a Shareholder Meeting resolution and new shares are issued for this purpose. 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? If options are offered to at least 100 Participants in Poland, there is a requirement to issue an information memorandum. Polish law provides that it is not necessary to issue a prospectus or information memorandum if the total value of shares calculated per their issue or selling price does not exceed - over a period of consecutive 12 months - EUR 100,000 or the PLN equivalent thereof. Issuing/selling shares by Company X abroad does not require a foreign exchange permit in Poland unless a Participant has a residence in a country outside the EEA or OECD or a

4 country with which Poland has concluded an investment protection agreement. For further information see Point Is a cashless exercise permissible? Cashless exercise is permissible under Polish law. However, under the Polish Commercial Companies Code, the Company X is not allowed to purchase own shares through cashless exercise unless it can benefit from exemptions specified therein, especially by exchanging options for shares to redeem those shares or exchanging options for shares which will then be offered, against payment, to employees or persons who were employed for at least 3 years. The relevant decision is to be made by shareholders. 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? Polish Foreign Exchange Law provides that a foreign subsidiary and its executives will be considered non-residents if they have their seat/residence abroad. In effect, there will be no restrictions in Poland which will prohibit the subsidiary from granting options. However, if the options will be granted directly in Poland by the Company X and the foreign subsidiary and its executives have their residence in a country from outside the EEA or OECD, or a country with which Poland has concluded an investment protection agreement, a foreign exchange permit will be required. 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? If the multinational operates in a particular jurisdiction as a branch office, then the statutes of Company X decide on the organization of the branch office and the method of adopting the decisions by the branch office (e.g. whether it is necessary to approve the branch office decisions by the Company X bodies). Please note that Polish legal provisions on public offerings or foreign exchange do not differentiate between a branch office and a domestic subsidiary established abroad. 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? Polish labor law is silent. 17. If known, please comment on the accounting issues which are relevant for this Plan. Not applicable. 18. List any other requirements of importance in your jurisdiction.

5 Capital market matters: Under Polish law, especially if the total value of shares calculated per their issue or selling price does not exceed - over a period of consecutive 12 months - EUR 2,500,000 or the PLN equivalent thereof, the issuer is not obliged to submit an issue prospectus, but should submit an appropriate notice with an information memorandum. Tax matters: Polish tax provisions are in many places unclear. As a consequence, tax treatment frequently depends on tax rulings issued by tax authorities and administrative courts. 19. Severance Risks: Will the value of granted options legally need to be included in severance calculations? Polish labor law is silent. Whether the value of granted options is included in severance pay calculations depends on the provisions of the Plan, and the contract between the executive and the company. 20. Acquired Rights: Will Plan participants become legally entitled to future grants or immediate vesting at termination of employment or service? Polish labor law is silent. Whether the Plan Participants are entitled to future grants, or immediate vesting at termination of employment, or service, depends on the provisions of the Plan, and the contract between the executive and the company. 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? Personal data of Polish Participants can be transferred for processing outside of Poland only if personal data protection law in the country of the registered office of the entity which will be processing that data guarantees protection at least equal to that in Poland, and provided that the Participant whose personal data will be processed abroad consents to that in writing. Otherwise, a prior consent of the competent authority will be required.