Employee participation in start-ups: legal structuring options

The participation of employees in the company’s success is a key issue for start-ups. From the start-up phase to the exit, the question regularly arises as to how employees can participate in the success of the company in an effective and legally compliant manner. Various models have become established in practice, each of which has specific legal and tax implications. For start-ups in particular, it is crucial to set the course for the future growth of the company at an early stage. An important factor here is the recruitment and retention of highly qualified employees, particularly in the management area. Founders will quickly realize that it can be difficult to attract experienced C-level employees to their own startup without attractive employee participation models.

Top talents are often not only interested in a competitive salary, but also want to participate in the long-term success of the company. A stake in the company creates incentives to show above-average commitment and lead the start-up to success. In addition, employee participation signals trust and appreciation on the part of the founders and thus promotes identification with the company. However, the implementation of an employee participation program also entails legal and tax challenges. Start-ups must carefully consider which participation model is best suited to their specific situation and how it can be structured in a legally compliant manner. Not only do corporate law and employment law aspects need to be considered, but also the tax implications for the company and its employees.

It is therefore essential for start-ups to consider the various employee participation options at an early stage. This is the only way they can develop an attractive and legally compliant participation model that helps them to attract the best talent to their company and retain them in the long term.

The most common employee participation models for start-ups are presented below and their legal and tax implications are examined. It will become clear that each model has specific advantages and disadvantages that need to be carefully weighed up.

Employee Stock Option Plan (ESOP)

An ESOP enables employees to acquire real shares in the company. The company grants employees the right to buy shares in the company at a fixed price and after a certain vesting period. These can be either shares or limited liability company shares, depending on the legal form of the company.

From a legal perspective, the implementation of an ESOP requires careful contract drafting. The exercise price, exercise period and vesting conditions must be precisely defined in the option agreement between the company and the employee. When the option is exercised, there is an actual transfer of company shares, which requires adjustments under company law such as resolutions to increase capital and amendments to the articles of association. The transfer of GmbH shares also requires notarization (Section 15 (3) GmbHG).

A key advantage of ESOPs is the strong bonding effect due to the genuine company participation. Employees become shareholders and therefore have a direct interest in the company’s success. This can lead to increased motivation and identification with the company.

However, an ESOP also entails challenges, particularly with regard to the administrative effort and dilution of existing shareholder interests. Depending on the legal form, the transfer of genuine shares requires notarization and entry in the commercial register, which entails additional costs and formalities.

For tax purposes, it should be noted that the granting of share options does not constitute an inflow of wages at the time they are granted. Only when the option is exercised does taxable wages arise in the amount of the monetary benefit resulting from the difference between the exercise price and the market value of the shares (Section 19 EStG). This can result in a tax burden for employees without them having already received cash from the shares (dry income problem).

ESOPs are often less suitable for early-stage start-ups in particular due to the tax disadvantages and the high administrative burden. Instead, many startups opt for virtual participation models, which are more flexible and require less bureaucracy.

Nevertheless, ESOPs can be an attractive option for start-ups in a later growth phase in order to retain key employees in the long term and share in the company’s success. Especially for C-level positions and other key executives, a real stake in the company can be a decisive incentive.

In any case, the implementation of an ESOP requires careful legal and tax planning. Startups should weigh up the pros and cons at an early stage and develop a solution tailored to their specific situation in order to attract and retain talented employees in the long term.

Virtual Stock Option Plan (VSOP)

VSOPs have established themselves as an alternative to ESOPs in which employees receive virtual shares or options rather than actual company shares. In legal terms, this is a contractual agreement that puts the employee on an equal footing with a shareholder in terms of property rights, without any actual participation taking place.

A key advantage of VSOPs lies in the flexibility of their structure. As no real shares are transferred, there is no administrative effort for notarizations and commercial register entries. In addition, there is no dilution of the existing shareholder structure.

Various concepts play an important role in the design of VSOPs in order to promote employee loyalty and motivation:

Vesting: Vesting refers to the period over which the virtual options are earned. A staggered vesting plan is usually agreed in which the options are earned in stages over a period of several years. This creates an incentive for the employee to remain with the company in the long term.

Cliff: The cliff is an initial vesting period during which no options are earned. If the employee leaves the company during the cliff, all options lapse. A typical cliff is 12 months.

Pooling: With pooling, the virtual options of all employees are combined in a common pool. The value of the pool is then calculated on the basis of the company value or defined key figures. This means that all employees share in the company’s success.

Strike price: The strike price is the price at which the virtual options can be exercised. It is usually set when the employee joins the company and is based on the current company value.

Exercise events: VSOPs provide for certain events in which the virtual options can be exercised and converted into a cash amount. Typical exercise events are a company sale (exit), an initial public offering (IPO) or the achievement of certain company targets.

For tax purposes, the non-cash benefit from a VSOP is only recognized as wages when it is actually paid out (Section 19 EStG). This means that the dry income problem does not arise, which makes VSOPs attractive for start-ups and their employees.

However, it should be noted that employees in a VSOP do not receive any real membership rights. They have no voting rights and do not participate in the company’s assets. The motivational effect can therefore be less than with an ESOP.

Another disadvantage of VSOPs is the complexity of the valuation. As no real shares are transferred, the value of the virtual options must be determined on the basis of company valuations or defined key figures. This can lead to uncertainties and discussions.

Nevertheless, VSOPs have established themselves as an attractive instrument for employee participation, especially for start-ups. They offer a high degree of flexibility, low administrative effort and avoid dilution of the shareholder structure. Carefully designed with vesting, cliff and pooling, startups can create an effective participation program that retains and motivates employees in the long term.

Excursion to similar aspects: Employee participation in partnerships

In addition to the classic participation models for corporations, such as ESOP (Employee Stock Option Plan) and VSOP (Virtual Stock Option Plan), there are also interesting opportunities for employee participation in partnerships. One example of this is the participation of employees as limited partners in a limited partnership (KG).

The advantage of a limited partnership is that employees share in the profits and losses of the company, but are only liable to a limited extent to the amount of their contribution (Section 171 HGB). In addition, the KG offers great flexibility in the structuring of shareholder rights.

In order to avoid personal liability on the part of employees, the KG can be structured in the form of a GmbH & Co. In this case, a general partner GmbH is appointed as the personally liable partner, while the employees act as limited partners.

Compared to ESOPs and VSOPs, there are some differences in the limited partnership interest:

– Employees receive real company shares and are entered in the commercial register
– Transfer of limited partner shares does not require notarization, but only a commercial register entry
– Limited partners generally have control rights and are entitled to profit sharing
– Profit shares are taxed directly with the limited partner in accordance with the transparency principle

Whether a limited partnership participation or rather an ESOP or VSOP is suitable for employee participation depends on the specific objectives and framework conditions of the company. In a separate blog post, I will examine the differences between these models in more detail and show which factors need to be taken into account when selecting a suitable participation model.

Further participation models

In addition to ESOPs and VSOPs, there are other common options for employee participation that can be considered depending on the phase and objective of the company:

Restricted stock units (RSUs)

RSUs are a promise to transfer company shares after certain conditions have been met, such as the achievement of performance targets or remaining with the company for a set period of time. The advantage of RSUs is that they offer employees a guaranteed value, provided the vesting conditions are met. In contrast to share options, RSUs also have a value if the share price falls.

For tax purposes, the inflow of RSUs generally only occurs when the shares are actually transferred. The market value of the exercisable units is then treated as ordinary income. Subsequent gains or losses on the sale of the units are subject to the relevant tax laws and are treated as capital gains or losses.

Another advantage of RSUs is their flexibility in terms of structure. As they are not subscription rights, the restrictions of Section 193 para. 2 no. 4 AktG and Section 192 para. 3 sentence 1 AktG do not apply. The company can therefore, for example, set a short waiting period until the first exercise and decide freely whether the exercise should be subject to performance targets.

Employee loans for the acquisition of shares

Here, the company grants employees low-interest loans to acquire shares in the company. The advantage is that employees do not have to raise their own funds to acquire a stake in the company. In addition, the company can link the repayment of the loan to remaining with the company and thus achieve a binding effect.

Legally, the provisions of §§ 488 ff. BGB must be observed. In particular, the loan must bear appropriate interest in order to avoid a hidden profit distribution. For tax purposes, the benefit from the discounted loan is treated as a non-cash benefit and is subject to income tax.

Profit participation rights

Profit participation rights are debt-based financing instruments that grant asset rights such as profit participation or capital appreciation rights without any participation under company law. The advantage of profit participation rights is that they can be structured flexibly. For example, the term, interest rate and repayment modalities can be determined individually.

For tax purposes, the treatment of profit participation rights depends on their specific structure. If they qualify as a financing instrument, the distributions are deductible as business expenses for the company. The income is then subject to income tax for the employee. If, on the other hand, the profit participation rights are classified as employee remuneration, they are taxed in accordance with Section 19 EStG.

Silent partnership

In the case of a silent partnership, the employee participates in the profit and loss of the company without this being visible to the outside world. The silent partner has no co-determination rights and does not act as a shareholder. The advantage of a silent partnership is that it does not require publicity and the shareholder structure remains unchanged.

For tax purposes, a distinction must be made between a typical and an atypical silent partnership. In the case of a typical silent partnership, the employee earns income from capital assets, which is subject to withholding tax. In the case of an atypical silent partnership, on the other hand, the income is classified as commercial income and is subject to income tax.

Employee participation fund

In this case, employees participate indirectly via a fund that in turn holds shares in the company. The advantage is that the risk is spread for the employees and they do not have to participate directly in the management of the shareholding.

The legal structure of an employee participation fund is complex. It requires the establishment of a special AIF in accordance with the KAGB, which is associated with considerable costs and administrative effort. From a tax perspective, taxation is transparent, i.e. the income is attributed directly to the individual investor.

Overall, it can be seen that there are many other options for employee participation in addition to ESOPs and VSOPs. Which model is suitable in each individual case depends on the specific objectives and framework conditions of the company. In any case, a careful legal and tax analysis in advance is essential in order to avoid risks later on.

Conclusion

The choice of a suitable participation model requires careful consideration of legal, tax and economic aspects. Sound legal advice is essential in order to implement a model that meets both the company’s objectives and the interests of the employees while at the same time being legally compliant. In particular, the tax implications, labor law regulations and the necessary flexibility for future developments must be taken into account.

Ultimately, the success of an employee participation program depends not only on its legal structure, but also on clear and transparent communication with employees. Only if the functioning and the opportunities, but also the risks of the chosen model are communicated in an understandable way can it develop its full motivational and retention effect.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.