Although the requirements to obtain approval for an equity plan from the State Administration of Foreign Exchange (SAFE) in China have relaxed over the past few years and, consequently, the approval process has become more predictable and faster, it still requires significant resources (both financially and from a staffing perspective to administer the ongoing requirements).
Therefore, many companies (especially those with a lower headcount in China) are still looking for strategies to avoid the SAFE requirements. And while there is never a perfect solution, most of these companies choose to grant cash awards. Cash awards can mean different things, so let's look at the different alternatives.
Cash-Settled vs. "Pure" Cash Award
Option 1 - Cash-Settled Award
The first alternative would be to grant a cash-settled award that mimics (to the extent possible) the terms of any stock-settled award the company is granting, but where payment at the time of vesting or exercise, as applicable, is made only in cash.
For example, this could encompass a cash-settled RSU where the cash payment at vesting would be equal to the value of the underlying shares at vesting. If the payment is made by the local entity in China (e.g., paid through local payroll), we take the position that such awards are not subject to the SAFE requirements, because there is no cross-border flow of funds (given that the Chinese entity is making the payment).
By contrast, if the cash payment is made by the foreign parent company (either into an offshore bank or brokerage account, or even if paid into an account in China), we believe that the award is still subject to the SAFE requirements (most likely as a phantom award), because the payment is based on the company's stock price and has been made from another country to the employee in China.
Option 2 - "Pure" Cash Award
The second alternative would be to grant a cash award for which payment is not based on the company's stock price. The award could still mimic some of the terms of a stock-settled award (such as vesting requirements), but the payment would be either a lump sum or dependent on performance metrics other than stock price. Again, if payment of such an award is made by the local entity in China, the SAFE requirements should not apply. If payment is made by the parent company, it is not certain if the SAFE requirements apply. On the one hand, we have a cross-border flow of funds. But on the other hand, we have a "pure" cash award not based on stock price. The SAFE requirements (which are regulated by Circular 7) apply to "equity incentive plans" which are defined as plans under which a company grants shares to its employees and other service providers.
As a result, it could be argued that, where payment of the award is not based on share price, the award is not offered under an equity incentive plan and, thus, not subject to the SAFE requirements. A few of our clients take this position, but it is not free from doubt. Therefore, there is some risk in implementing this alternative, both for the company and the employees who may encounter problems when trying to repatriate funds from such awards to China.
In light of the above, most of our clients will choose to grant cash-settled awards paid through local payroll, because these are most similar to their regular equity awards and because there is very little risk from a SAFE perspective. Companies that are extremely risk-averse may want to take it a step further and grant only cash awards (not based on stock price) paid through local payroll.
There are two obvious drawbacks to granting cash-settled awards for which payment is based on the stock price:
- First, such an award is subject to liability accounting (i.e., mark-to-market accounting) which introduces more volatility for the expense of the award.
- Second, the local entity in China will need to have sufficient funds at hand to pay for the awards upon vesting or exercise of the award (as applicable). If the stock price has done well, this can result in a significant expense for the local entity.
In this respect, although it is possible for the foreign parent company to make payments to the Chinese entity from time to time to fund its operations, the payment cannot ostensibly be made for the purpose of funding the equity award, because this would jeopardize our analysis that no cross-border flow of funds has taken place with respect to the award.
Note that the liability accounting issue would not apply to a lump sum cash award, but the funding problem remains the same (although the amount of the payment is predictable).
Not So Obvious Issues
If the company is willing and able to deal with these obstacles, a cash-settled award can be a good solution. However, there are still a few other issues to at least briefly consider, aside from the SAFE requirements: securities laws, labor/employment laws and tax issues.
Given that the employees have no right to the shares (i.e., if they can only receive a cash payment, even if the value of the payment is based on stock price), there is no concern under Chinese securities laws.
Labor / Employment Laws
If cash payments are made through local payroll, it is likely that such payments will be considered part of local compensation and part of the local employment relationship. In this case, the company may have to consult with the employee representatives (if any) before implementing the new awards.
In addition, there is a risk that employees could claim to become entitled to future cash awards (if cash awards have been granted more than once), but this risk can be mitigated by including appropriate disclaimer language in the grant materials. Finally, it is likely that the value of the cash awards will need to be included when calculating termination indemnities, if the cash award has been paid in the last 12 months prior to termination.
From a tax perspective, the main question is whether the company still has to complete a Notice 35 filing with the local tax office. As most of you know, these filings are not as complicated as a SAFE filing, but because of translation requirements, the cost of these filings is not insignificant, and certain ongoing reporting obligations also apply (depending on the tax office). Once completed, however, the company will be able to apply a favorable formula to the taxable income related to equity awards, which in most cases results in a reduced tax liability for the employee.
If the payment is not based on the value of the company's shares, it will not be necessary (or possible) to make a Notice 35 filing. On the other hand, this means the favorable tax treatment under Notice 35 also is not available. However, another favorable tax treatment is available for annual bonus payments. This is generally used in connection with any bonus payments made by the local entity, but if the timing of the payment for the cash award coincides with the payment of the annual bonus, it should be possible to apply the favorable tax treatment to both payments.
If the cash payment is based on the value of the company's shares, it is not certain if Notice 35 filings will be required or permitted. We are aware that some of the tax offices may permit the application of the favorable tax treatment under Notice 35 (provided the filings are completed), but this would have to be confirmed with the tax office.
Finally, please be aware that cash awards will be subject to social insurance contributions whereas equity awards likely are not subject to such contributions. However, the contribution ceiling for social taxes is relatively low, so it is likely that most employees will have already reached the ceiling with their regular compensation, meaning that the cash award would not trigger any additional social taxes.
As you can see, both cash-settled and pure cash awards paid by the Chinese entity are a good strategy to avoid the SAFE requirements, and especially a cash-settled award can achieve many of the same goals as a stock-settled award. We have dozens of clients that grant cash-settled awards in China and they are generally happy with this solution. However, I also see that, if the headcount in China grows, most of these companies will eventually bite the bullet and begin the SAFE registration process, most likely because the cash outlay for the local entity is becoming too big. As always, make sure to consider all of the relevant issues to determine which award is "right" for your company!