In Germany, too, restricted stock units (RSUs) are becoming increasingly important as share-based compensation instruments for management boards and employees of stock corporations.
While they have been used in the US for years as a proven means of retaining talent and providing performance-based compensation, they are still much less widespread in Germany – especially compared to traditional stock options.
What awaits you:
- Pregnancy: Disclosure only permitted with consent
- Unauthorized disclosure of pregnancy: Fines possible in labor law: The 10 most important success factors
- Advantages of Restricted Stock Units (RSUs) – Flexible compensation element for public companies
- Conclusion: Restricted Stock Units as a flexible instrument for employee compensation
What are Restricted Stock Units?
Restricted Stock Units (RSUs) are virtual commitments to company shares that are usually only converted into real shares after certain periods of time or when certain conditions are met.
Their value is usually based on the stock's market price, making RSUs a performance-based form of compensation that directly participates in the company's success.
Disadvantages of stock options from conditional capital or treasury shares – legal limits and labor law challenges
The issue of stock options from conditional capital requires a capital increase resolution in accordance with Section 193 (2) No. 4 of the German Stock Corporation Act (AktG).
This must contain detailed regulations in advance, including:
- Allocation of subscription rights between the Board of Directors, management and employees
- Determination of concrete key performance indicators
- Definition of acquisition and exercise periods
- Minimum waiting period of four years until the option is exercised for the first time
Similar requirements apply to programs that are carried out using treasury shares pursuant to Section 71 (1) No. 8 Sentence 3 of the German Stock Corporation Act (AktG).
In addition, both the conditional capital and the repurchase of own shares are subject to an upper limit of 10% of the share capital (Section 192 (3) Sentence 1 AktG; Section 71 (2) Sentence 1 AktG).
In practice, these legal requirements lead to several disadvantages:
- Limited flexibility in the design of stock option programs
- Long waiting times that prevent short-term compensation
- High administrative and legal effort for structuring and approval
- Competitive disadvantages in international comparison, especially in the competition for skilled workers from countries such as the USA, where significantly shorter vesting periods are common
This can pose a significant problem for internationally active companies or those with ambitious growth targets – especially in the global “war for talent”.
Advantages of Restricted Stock Units (RSUs) – Flexible compensation element for public companies
Restricted stock units generally represent payment claims whose value is based on the price development of the company's shares.
The granted entitlement is converted into a specific number of RSUs by dividing the amount by the current stock market price.
Unlike traditional stock options, RSUs retain their value even when prices fall – a total loss is impossible.
Advantage: RSUs offer a stable investment with a predictable effect and are therefore particularly suitable for short- and medium-term incentive systems.
Greater legal certainty and fewer regulatory restrictions
The strict requirements of Section 193 Para. 2 No. 4 AktG or Section 192 Para. 3 Sentence 1 AktG do not apply to RSUs, as they are not classic subscription rights.
The company can design the programs much more freely and flexibly.
Advantages:
- Shorter vesting periods possible (e.g. 12 months)
- No mandatory performance targets required
- Individually adaptable regulations in the event of employees or board members leaving the company
Targeted design options for companies
RSU programs can be tailored precisely to company-specific requirements.
They can be designed with or without performance targets, have a short-term or long-term duration, and contain individual vesting arrangements, exit clauses, or holding periods.
Advantage: Tailor-made programs for different employee groups – from the operational level to the board.
Flexible service – in cash or shares
RSUs can be settled either in cash or through the allocation of shares.
The shares come either from authorized capital or from the company's own holdings.
For the issue of shares, only an authorization for a capital increase is required – thus the implementation remains manageable.
Advantage: Adaptation of the service model to liquidity, company phase and strategic goals.
Conclusion: Restricted Stock Units as a flexible instrument for employee compensation
Restricted Stock Units (RSUs) offer public companies an extremely flexible compensation element that can be precisely adapted to corporate goals and different employee groups.
Neither statutory minimum waiting periods nor mandatory performance targets restrict the design.
Thanks to this legal freedom, RSUs are particularly attractive – especially for listed companies that want to modernize their compensation mix while ensuring legal certainty.
Would you like to use restricted stock units as part of your compensation strategy? Our employment law firm offers comprehensive advice on legally compliant introduction and implementation. Contact us now.
