REGULATION GOVERNING ISSUANCE OF ESOPs BY OVERSEAS PARENT COMPANY

Sakshi Bhatt , Akshay Sharma

July 4, 2023

REGULATION GOVERNING ISSUANCE OF ESOPs BY OVERSEAS PARENT COMPANY

Introduction

Employee stock options (ESOPs) are a type of equity compensation offered by companies to their employees. They give employees the right to purchase company stock at a predetermined price, known as the exercise price, within a specified period of time. ESOPs are usually offered as a part of an employee's compensation package, especially in startups and large corporations. It is a valuable tool used by companies for retention and promoting efforts of their employees. It provides certain rights to their employees for subscription to the share capital of the company and may give them voting rights in the company.

Amid increase in setting up of subsidiary companies by foreign entities in India, this has increased the trend for issuance of ESOPs by foreign holding companies to the employees of their subsidiaries. The rise of startup culture, particularly in the technology industry, has contributed to the increased issuance of ESOPs. Startups often offer stock options as a way to attract talented employees who are willing to take risks in exchange for potential financial gains if the company succeeds.

Benefits for issuance of Employee Stock Options

There are several benefits of offering ESOPs to employees of a foreign subsidiary company in India, including but not limited to:

  • Employee Retention and Motivation: Offering stock options is an effective way to attract and retain talented employees. It provides employees with a sense of ownership and aligns their interests with the company's success. By giving employees a stake in the company's future, companies can motivate them to work harder and stay with the organization for the long term.
  • Incentivizing Performance: Stock options can be tied to performance metrics or milestones. This incentivizes employees to meet specific goals and objectives that contribute to the company's growth and profitability. It aligns the interests of employees with those of shareholders and encourages a focus on achieving company-wide success.
  • Talent Acquisition: In competitive job markets, companies use ESOPs as a competitive advantage to attract top talent. Prospective employees may be enticed by the potential for financial gain if the company performs well and its stock price increases. Stock options can be seen as a valuable benefit that enhances the overall compensation package.
  • Cash Conservation: Compared to traditional cash-based compensation, issuing stock options allows companies to conserve cash resources. By granting stock options, companies provide potential financial rewards to employees without immediate cash outflows. This can be especially beneficial for startups and companies with limited cash flow.
  • Long-Term Focus: ESOPs encourage employees to think about the long-term success of the company. Since options typically have a vesting period before they can be exercised, employees are more likely to stay with the company and contribute to its growth over an extended period. This can lead to stability and continuity within the workforce.
  • Employee Ownership Culture: Stock options foster an ownership culture within the Employees who hold stock options become shareholders and have a vested interest in the company's performance. This can lead to a stronger sense of loyalty, dedication, and commitment among employees, as they feel like they have a direct stake in the company's success.

Key factors to be considered while issuing ESOPs globally

ESOPs issued by foreign companies operate in a similar manner to those issued by domestic companies, but there are some additional considerations:

  • Jurisdiction and Laws: When dealing with ESOPs issued by a foreign company, employees need to be aware of the jurisdiction in which the company is incorporated and operates. Different countries have different laws and regulations regarding stock options, taxation, and employee rights. It's important to understand the specific rules and obligations applicable to the foreign company's stock option plan.
  • Tax Implications: Taxation of ESOPs issued by foreign companies can be complex. The tax treatment depends on the laws of the employee's home country, the country where the company is based, and any tax treaties between the two countries. Employees may be subject to taxation in both their home country and the foreign country, potentially leading to double taxation. Seeking advice from tax professionals who specialize in cross-border taxation is advisable to understand the tax implications fully.
  • Currency Exchange: Foreign companies may issue stock options denominated in a currency different from the employee's home currency. Currency exchange rates can impact the value of the options, the exercise price, and the potential gains or losses upon exercise and sale of the shares. Employees should consider the potential impact of currency fluctuations on the value of their stock options.
  • Reporting and Compliance: Employees holding stock options in foreign companies may have additional reporting and compliance requirements. They may need to report their foreign holdings to tax authorities in their home country or comply with other regulatory obligations. It's important to be aware of and fulfill any reporting or compliance requirements to avoid penalties or legal issues.
  • Communication and Documentation: Communication between the foreign company and employees becomes crucial in ensuring transparency and understanding of the stock option plan. Clear and comprehensive documentation outlining the terms, conditions, and procedures associated with the stock options should be provided to employees. Employees should seek clarification if any aspects of the plan are unclear or require further explanation.

Governing Laws in India for issuance of ESOPs by overseas parent companies

The issuance of ESOPs by overseas parent companies to the employees of Indian subsidiary companies is subject to various laws and regulations. Here are the key legal aspects and governing laws, as may be amended from time to time, related to issuance ESOPs by overseas parent company in India:

  1. Foreign Exchange Management Act (FEMA): The issuance of ESOPs by overseas companies to employees in India falls under the purview of FEMA. The Reserve Bank of India (RBI) is the regulatory authority responsible for overseeing foreign exchange transactions and compliance with FEMA regulations.
  2. Income Tax Act, 1961: The Income Tax Act governs the taxation of ESOPs. The tax treatment of ESOPs depends on various factors such as the type of ESOP plan, the period of holding, exercise price, etc. Both the employee and the employer may have tax obligations associated with ESOPs.
  3. Double Taxation Avoidance Agreements (DTAA): If the overseas company has a presence in a country with which India has a DTAA, the provisions of the DTAA may impact the tax treatment of ESOPs. DTAA aims to eliminate or reduce double taxation on income arising in one country and received by residents of another country.

It's important for both the overseas company and the employee to comply with the applicable laws, regulations, and tax obligations.

Compliance Employee Stock Options Under FEMA

The issuance of ESOPs by overseas companies to the employees of their subsidiary companies in India is subject to the provisions of Foreign Exchange Management (Overseas Investment) Regulations, 2022 issued on 22nd August 2022 read with Foreign Exchange Management (Overseas Investment) Rules, 2022 issued by Ministry of Finance.

Any resident individual may make Overseas Direct Investment (ODI) by way of investment in equity capital or Overseas Portfolio Investment (OPI) in the manner provided under the provisions of in the Schedule III and unless otherwise provided hereunder, shall be subject to the overall ceiling under the Liberalised Remittance Scheme of the Reserve Bank.

A resident individual may make or hold Overseas Investment by way of acquisition of shares or interest under Employee Stock Ownership Plan or Employee Benefits Scheme. Provided further that such an acquisition of less than 10 (ten) percent of the equity capital, whether listed or unlisted, of a foreign entity without control, shall be treated as OPI.

A resident individual, who is an employee or a director of an office in India or branch of an overseas entity or a subsidiary in India of an overseas entity or of an Indian entity in which the overseas entity has direct or indirect equity holding, may acquire, without limit, shares or interest under Employee Stock Ownership Plan or Employee Benefits Scheme or sweat equity shares offered by such overseas entity, provided that the issue of Employee Stock Ownership Plan or Employee Benefits Scheme are offered by the issuing overseas entity globally on a uniform basis.

A person resident in India other than a resident individual making any Overseas Portfolio Investment (OPI) or transferring such OPI by way of sale shall report such investment or transfer of investment within 60 (sixty) days from the end of the half-year in which such investment or transfer is made as of September or March-end. Provided that in case of OPI by way of acquisition of shares or interest under Employee Stock Ownership Plan or Employee Benefits Scheme, the reporting shall be done by the office in India or branch of an overseas entity or a subsidiary in India of an overseas entity or the Indian entity in which the overseas entity has direct or indirect equity holding where the resident individual is an employee or director.

Conclusion

With the increasing globalization of businesses, companies are expanding their operations across borders. As a result, ESOPs are being issued by multinational companies to employees in different countries. This trend reflects the need to attract and retain talent globally and the desire to create a unified company culture and sense of ownership among employees worldwide. It's important to note that while the ease of issuing ESOPs can vary, it is typically recommended to consult with legal, financial, and tax professionals with expertise in the relevant jurisdiction to ensure compliance with applicable laws and regulations. They can provide guidance on the specific requirements and processes involved in issuing ESOPs, making the implementation process smoother.

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