On January 1, 2023, the Future Financing Act (Zukunftsfinanzierungsgesetz) (FFA) proposed by the German government and adopted by the German federal legislative bodies entered into force.
Alongside several other measures to promote investment and innovation in Germany, the FFA aims to lift various burdens on employment participation schemes which are subject to German (tax) laws in order to make Germany a more attractive market for start-ups and growth companies, given the popularity of such remuneration structures with early-stage companies.
This blog provides an overview of current obstacles when it comes to implementing employee share option plans (ESOPs) and virtual share option plans (VSOPs) in Germany (this being the German-equivalent of a ‘phantom’ plan), the typical workarounds and how the FFA might ease the situation.
Most employers, particularly large, established organizations, grant their employees, some form of variable remuneration in addition to base salary. Traditional bonus and commission payment structures remain prevalent in some sectors, but in others equity-linked incentive plans, or phantom arrangements which mirror these, are increasingly used in place of the more traditional remuneration structures. This is especially the case with early-stage companies where cash is limited and base salaries are lower, such that companies seek to incentivize their employees over time by aligning variable compensation with the longer term performance of the business.
II. ESOP – What are the obstacles?
As mentioned, the purpose of equity incentive schemes for employees is to allow employees to participate in the long-term appreciation of the company’s value and success, and to align shareholder and employee interests, thereby incentivizing employee retention and increasing their commitment to the longer term success of the company. From an employer’s perspective, ESOPs offer greater flexibility. Since ESOPs typically originate from the parent company, in Germany the works council is not required to be involved. This allows programs to be more easily modified or even discontinued for future employees. To a large extent, a choice of law with respect to the terms and conditions of the ESOP is also permissible with the exception that the issuance and transfer of the shares are mandatorily subject to German law. For start-ups, the granting of real (equity) participation rights (as opposed to phantom arrangements) represents a cash-flow neutral compensation element. In addition, the grant of equity participation rights is also attractive to the beneficiaries (i.e., management and employees) from a tax perspective, as such interests are not subject to wage tax (the personal maximum income tax rate can be up to 45%), but to the considerably lower tax rate for capital gains (25%), especially for top earners. The downside, however, is that the structure is complex and the restrictions of corporate law apply, for example with regard to the creation of capital/issue of shares to condition corresponding (employee stock) options.
Globally, such participation rights are predominantly granted by means of issuing actual shares (or stock options) in the company to management or (executive) employees (Management Equity Programs or ESOP). Whilst it is technically possible to operate participation programs in German companies in this way, implementation is difficult and subject to certain limits due to certain intricacies of German corporate and tax law.
Since German companies are largely organized in the legal form of a limited liability company (GmbH), especially in the case of start-ups, the transfer of shares or granting of share options requires the notarization of the underlying documents. Depending on the scope of the ESOP and the number of individual participants such preparation of the relevant documents and the notarization process can be long, costly and burdensome.
In addition, deferred taxation of the capital gains received by directors/employees when the shares acquired under the ESOP are sold is not a concept under German tax law. This results in up-front taxation of the discount at which the option shares are granted to the beneficiaries, even though the beneficiaries have not yet received any cash to pay such taxes. Such ‘dry income’ issues can be averted if the shares are acquired at their fair market value, though this then puts the entire risk on the beneficiaries.
III. VSOP – The alternative
The usual route to avoid such issues is the granting of ‘phantom shares’ under a VSOP. Under a VSOP, the beneficiaries receive a legal claim against the company for a cash payment in the same amount as if they were selling actual shares (minus a strike price) in the company. Such payment is conditional upon the occurrence of an exit or liquidity event, such as a sale of the majority shareholding in the company, IPO or similar events. The downside of this option is that the proceeds are taxable at the personal income tax level of the employee, which is usually significantly higher than capital gains tax.
IV. Reform of ESOPs by the FFA
Initial reforms in 2021 already sought to make ESOPs more attractive. In particular, the introduction of a concept of deferred taxation for ESOPs, in certain circumstances (provided the relevant conditions are met), to mitigate the dry income issue. Due to the onerous nature of certain of these conditions, the reform had little-to-no impact in practice. Building on the 2021 reform, the FFA now broadens the scope of the deferred taxation principle through the following measures:
- To-date, the deferred taxation was only applicable to companies with (i) less than 250 employees and (ii) having (x) revenue of not more than EUR 50 million, or (y) a balance sheet of not more than EUR 43 million. These thresholds are significantly increased by the FFA to companies with (i) less than 1,000 employees, and (ii) having (x) revenue of not more than EUR 100 million, or (y) a balance sheet of not more than EUR 86 million. These thresholds must not be surpassed in the previous six years and are determined on basis of the employing entity only (i.e., no other group companies are taken into account). In addition, the company must not be older than 20 years (this was 12 years pre-FFA).1
- The FFA further permits that the deferred taxation also applies to ESOPs offered by a direct shareholder of the employing entity. The offer of an ESOP by a shareholder/parent company may be of interest under labor laws for several reasons, for example, to avoid a claim against the employer (and thus the application of restrictions under labor law) or the co-determination of the works council of the employing company.
Payment of the tax deferred will ultimately be triggered:
- by a sale of the shares received under the ESOP,
- by a termination of the employment/service agreement (Leaver Event), or
- 15 years from the grant date (this was 12 years pre-FFA).
In the event of (ii) and (iii), the taxation of the beneficiary can be avoided, if the employer irrevocably declares vis-à-vis the financial authorities to be liable for any wage taxes when the shares are eventually sold in the event of (i).
In case of a Leaver Event, it is common for ESOPs to contain a call option in respect of the issued shares, ordinarily for a purchase price that is below fair market value. Where this is so, the FFA requires that the wage taxes are calculated on the basis of such agreed purchase price, instead of the fair market value at the issue date.
V. Conclusions and outlook
The FFA represents a move in the right direction, particularly given the increase of certain eligibility thresholds which were a real show stopper for many start-ups before the FFA. In addition, the FFA provides more flexibility to avoid early taxation in the case of a Leaver Event or due to a lapse of time (i.e. 15 years). Whether employers will actually be willing to bear the financial risks associated with the assumption of the liability vis-à-vis the financial authorities is, however, another matter. Also, whilst the option of shareholders to set-up ESOPs for employees of its direct subsidiaries is a welcome development, the draft bill had originally proposed to go further and extend that option to all affiliated companies.
To conclude, the FFA contains significant new features that will increase the attractiveness of ESOPs in Germany. However, considering the higher flexibility of VSOPs and the other matters that reduce the attractiveness of ESOPs which were not addressed in the FFA (i.e., notarization requirement and inflated cap table), it is unlikely that the FFA will result in a major shift in practice.
1The deferred taxation only applies to income taxes and not to social security contributions that remain due in the year of the grant date. However, as the income on which the social security contributions are calculated is capped at the contribution assessment ceiling (Beitragsbemessungsgrenze; currently EUR 90,600 p.a. in western Germany), such contributions are far less important, if any are triggered at all by the issuance of shares under the ESOP.