EMPLOYEE STOCK PURCHASE PLANS

EMPLOYEE STOCK PURCHASE PLANS: EMPLOYMENT

Labor Concerns

To reduce the risk of potential claims from employees that they have entitlements under a Plan, employees should expressly agree that participation in the Plan is discretionary and that termination of employment will result in the loss of unvested rights. Discrimination based on gender or part-time status is prohibited.

Communications

All communications from employers to employees should be in the appropriate local language, namely, Dutch for the Flemish region, French for the Walloon region and French and/or Dutch for the Brussels region. Government filings may be required to be in French or Dutch. Electronic execution of award agreements may be acceptable under certain conditions.

EMPLOYEE STOCK PURCHASE PLANS: REGULATORY

Securities Compliance

A company that wishes to offer Stock to its employees need not publish a prospectus when:

  • the Stock is offered to no more than 149 employees; or
  • the employees each acquire stock with a total consideration of at least €100,000; or
  • the Stock is offered in minimum denominations of €100,000; or
  • the Stock is granted free of charge.

If there is no requirement to produce a prospectus, the company will instead be required to draft a document for its employees with information regarding the quantity and type of stock being offered, as well as the reasons for and logistics of the offering.

Even if none of the above exemptions apply, there will be no obligation to publish a prospectus where:

  • the employer (or a company of the group to which the employer belongs) grants Stock, that is already traded on a regulated market, to its previous or current directors or employees, on the condition that a document is available to the beneficiaries which details the quanity and type of Stock being offered as well as the reasons for and logistics of the offering; or
  • the employer (or a company of the group to which the employer belongs) grants Stock, that belongs to the same category as existing Stock traded on a regulated market outside the European Economic Area, to its previous or current directors or employees, on the condition that the total consideration of the offering is less than €2,500,000 and a document is available to the beneficiaries detailing the quantity and type of Stock being offered as well as the reasons for and logistics of the offering.

Foreign Exchange

There are no foreign exchange restrictions applicable to purchase plans.

Data Protection

In principle, the processing of personal data by the employer in connection with the administration of an employee stock purchase plan does not require consent from the employees or notification to the authorities, as it can be argued that the processing of any personal data is necessary to execute the employment contract and is done in the framework of payroll and personnel administration.

However, if the Plan is administered by a company other than the employer (e.g. a foreign holding company), it is recommended that the employees' explicit consent to the processing of personal data is obtained prior to such processing and that prior notification to the Belgian Privacy Commission is made.

EMPLOYEE STOCK PURCHASE PLANS: TAX

Employee Tax Treatment

The employee will be subject to tax on the discount or spread when the Stock is purchased. The employee will not be subject to tax on the sale of the Stock

Social Insurance Contributions

Social security contributions will apply if the costs of the Plan benefits are borne by the employer. Certain criteria will exempt Plan benefits from social security contributions.

Tax Favored Program

If the employee is required to hold the Stock for at least two years after the date of purchase and the Stock is traded on an exchange, then the value of the taxable benefit may be limited to the difference between 83.33% of the market value of the Stock acquired and the price paid by the employee.

Withholding and Reporting

If a non-resident company without an establishment in Belgium grants Stock to employees of a Belgian Subsidiary, no withholding tax is due. However, if the Belgian Subsidiary participates in the execution of the Plan set up by a non-resident company (e.g. by carrying out numerous administrative activities relating to the Plan, etc.), the Subsidiary will be subject to the obligation to withhold payroll taxes.

In those circumstances, the Belgian Subsidiary will also be subject to reporting requirements (i.e. to reportthe taxable benefit on fiscal slips).

Employer Tax Treatment

A deduction is allowed if the Issuer is reimbursed for the cost of Plan benefits. A formal reimbursement agreement is recommended.

Tax Rates

Income tax is charged at rates of up to 50%.

No social taxes are levied unless the Belgian Subsidiary is involved in the grant of the shares or the costs are charged back to the Belgian Subsidiary.

Where social taxes arise, these are levied at the following rates: 32% employer contributions for white-collar employees, 48% employer contributions for blue-collar employees and 13.07% employee contributions.

RESTRICTED STOCK and RSUs

RESTRICTED STOCK and RSUs: EMPLOYMENT

Labor Concerns

To reduce the risk of potential claims from employees that they have entitlements under a Plan, employees should expressly agree that participation in the Plan is discretionary and that termination of employment will result in the loss of unvested rights. Discrimination based on gender or part-time status is prohibited.

Communications

All communications from employers to employees should be in the appropriate local language, namely, Dutch for the Flemish region, French for the Walloon region and French and/or Dutch for the Brussels region. Government filings may be required to be in French or Dutch. Electronic execution of award agreements may be acceptable under certain conditions.

RESTRICTED STOCK and RSUs: REGULATORY

Securities Compliance

Neither the award nor the vesting of restricted stock or RSUs is likely to trigger any prospectus requirement, provided that the restricted stock or RSUs are awarded and vest free of charge.

Foreign Exchange

There are no foreign exchange restrictions applicable to restricted stock or RSU plans.

Data Protection

In principle, the processing of personal data by the employer in connection with the administration of a Plan does not require consent from the employees or notification to the authorities, as it can be argued that the processing of any personal data is necessary to execute the employment contract and is done in the framework of payroll and personnel administration.

However, if the Plan is administered by another company other than the employer (e.g. a foreign holding company), it is recommended that the employees' explicit consent to the processing of personal data is obtained prior to such processing and that prior notification to the Belgian Privacy Commission is made.

RESTRICTED STOCK and RSUs: TAX

Employee Tax Treatment

The employee should be subject to tax on the value of the Stock, as restricted, when the restricted stock is awarded. The employee should be subject to tax on the value of the Stock when the RSU award vests. The employee will not be subject to tax upon the sale of the Stock.

Social Insurance Contributions

For employees of a Belgian Subsidiary, social security contributions will be imposed if the costs of the Plan are recharged by the Issuer to the Belgian Subsidiary. Social security contributions could also be imposed if the Belgian Subsidiary bears the "legal" charge of the award (by making a commitment towards the employees regarding this award).

Tax Favored Program

If the employee is required to hold the restricted stock for at least two years after the date of award and the Stock is traded on an exchange, then the value of the taxable benefit may be limited to the difference between 83.33% of the market value of the Stock acquired and the price paid by the employee.

If the employee is required to hold the Stock for at least an additional two years beyond the date of vesting of the RSU award and the Stock is traded on an exchange, then the value of the benefit-in-kind may be limited to the difference between 83.33% of the market value of the Stock acquired and the price paid by the employee.

Withholding and Reporting

If a non-resident company without an establishment in Belgium grants restricted stock or RSUs to employees of a Belgian Subsidiary, no withholding tax is due. However if the Belgian Subsidiary participates in the grant of the restricted stock and/or the delivery of the RSUs, the Subsidiary will be subject to the obligation to withhold payroll taxes.

In those circumstances, the Belgian Subsidiary will also be subject to reporting requirements (i.e. to report the taxable benefits on fiscal slips).

Employer Tax Treatment

A deduction is allowed if the Issuer is reimbursed for the cost of administering the Plan. A formal reimbursement agreement is recommended.

Tax Rates

Income tax is charged at rates of up to 50%.

No social taxes are levied unless (i) the Belgian Subsidiary is involved in the grant of the shares, (ii) the costs are charged back to the Belgian Subsidiary, or (iii) the Belgian Subsidiary bears the "legal" charge of the award by making a commitment towards the employees regarding this award.

Where social taxes arise, these are levied at the following rates: 32% employer contributions for white-collar employees, 48% employer contributions for blue-collar employees and 13.07% employee contributions.

STOCK OPTIONS PLANS

STOCK OPTIONS PLANS: EMPLOYMENT

Labor Concerns

To reduce the risk of potential claims from employees that they have entitlements under a Plan, employees should expressly agree that participation in the Plan is discretionary and that termination of employment will result in the loss of unvested rights. Discrimination based on gender or part-time status is prohibited.

Communications

All communications from employers to employees should be in the appropriate local language, namely, Dutch for the Flemish region, French for the Walloon region and French and/or Dutch for the Brussels region. Government filings may be required to be in French or Dutch. Electronic execution of award agreements may be acceptable under certain conditions.

STOCK OPTIONS PLANS: REGULATORY

Securities Compliance

Neither the grant nor the exercise of employee options in Belgium is likely to trigger any requirement for securities filings, provided the options are granted free of charge.

Foreign Exchange

There are no foreign exchange restrictions applicable to option plans.

Data Protection

In principle, the processing of personal data by the employer in connection with the administration of a stock option plan does not require consent from the employees or notification to the authorities, as it can be argued that the processing of any personal data is necessary to execute the employment contract and is done in the framework of payroll and personnel administration.

However, if the Plan is administered by a company other than the employer (e.g. a foreign holding company), it is recommended that the employees' explicit consent to the processing of personal data is obtained prior to such processing and that prior notification to the Belgian Privacy Commission is made.

STOCK OPTIONS PLANS: TAX

Employee Tax Treatment

Income tax is chargeable at grant based on an assumed value of the option based on the value of the underlying shares. Employees have 60 days from the offer date to accept the option grant in writing. If the option grant is not accepted in writing within the 60-day period, it will be deemed an offer to purchase company Stock at a discount and should consequently be taxed upon exercise. If the option grant is accepted in writing before the end of the 60-day period (constituting a "qualifying stock option plan"), taxable income is recognized and taxed on the sixtieth day following the date of the offer. In the case of a qualifying stock option plan, the employee will not be subject to tax upon the exercise of the options or the sale of the Stock.

Social Insurance Contributions

In the case of a qualifying stock option plan, no social security contributions will apply, unless the Issuer recharges the cost of Plan benefits to the Belgian Subsidiary and the options are "in the money" (which means that the "exercise price" is less than the value of the underlying shares as determined on the date of offer). In the case of a non-qualifying stock option plan, social security contributions may be due upon exercise of the option on the gain realized at that time.

Tax Favored Program

Subject to certain conditions, the rate of 15% (which generally applies on grant) may be halved.

Withholding and Reporting

If a non-resident company without an establishment in Belgium grants stock options to employees of a Belgian Subsidiary, no withholding tax is due. However, if the Belgian Subsidiary participates in the execution of a Plan set up by a non-resident company (e.g. by carrying out numerous administrative activities relating to the Plan, etc.), the Subsidiary will be subject to the obligation to withhold payroll taxes.

Where a non-resident company without an establishment in Belgium grants stock options to an individual in respect of professional activities carried out on behalf of a Belgian Subsidiary, it is the Belgian Subsidiary that will be subject to reporting requirements (i.e. to report the taxable benefits on fiscal slips).

Employer Tax Treatment

A deduction is allowed if the Issuer is reimbursed for the cost of Plan benefits. A formal reimbursement agreement is recommended.

Tax Rates

Income tax is charged at rates of up to 50%.

No social taxes are levied unless (i) the Plan is a non-qualifying stock option plan and either the Belgian Subsidiary is involved in the grant of the shares or the costs are charged back to the Belgian Subsidiary, or (ii) the Plan is a qualifying stock option plan and the options are "in the money" (see above).

Where social taxes arise, these are levied at the following rates: 32% employer contributions for white-collar employees, 48% employer contributions for blue-collar employees and 13.07% employee contributions.