*By Evelyn Tamy Macedo
Fundamental for any company, human capital can be crucial to the success or failure of a business. Motivated and engaged employees contribute directly to achieving results, helping to achieve goals, as well as strengthening the culture of long-term professional relationships.
in the market of software, the reasoning could not be otherwise. The need to attract and retain talent is evident, given the current scenario of increasing harassment by foreign companies in hiring Brazilian professionals in the sector.
In this sense, the implementation of a stock option plan – in English, “stock options plan” – is shown to be an important tool in the process of attracting and retaining talent, in addition to being a measure that requires few resources for implementation. . In the mechanism applicable to stock options, the employee and/or service provider is granted the possibility of acquiring shares in the company in the future, at a pre-established price, upon the formalization of a share grant agreement.
Although provided for in sparse legislation, such as the Corporate Law (Law No. 6,404/76), the absence of consolidated regulation in Brazil regarding the stock option plan ends up generating legal uncertainty regarding the judicial decisions rendered - mainly in the spheres of labor and tax law. Nor does it contribute to the establishment of measures to promote the business environment and increase the supply of capital for investment in innovative entrepreneurship. Thus, it is understood as necessary and urgent the legal formalization of points related to the stock options, providing for important issues regarding the implementation and/or amendment of existing legislation.
Among the fundamental points that need to be regulated are: the possibility that the established remuneration can be complemented with bonuses that consider the efficiency and productivity of the company, the employee (or the team of employees), or other objectives and parameters that the parties they come to agree, including the remuneration deriving from the granting of the stock option; the taxation of stock options only in the event of a capital gain, and not when it is granted; and adequacy to the precepts related to the stock options, established in the Consolidation of Labor Laws (Decree Law No. 5,452 of the CLT, of May 1, 1943).
Thus, it is concluded that the definition of objective legal criteria relating to thetock options it will certainly serve as a stimulus for the long-term alignment between business and employees' objectives, allowing the generation of value, direct jobs, increased taxes on revenues, among other benefits. With effective regulation, the entrepreneur will win, the worker will win and, above all, the Brazilian market will win, which will finally be able, with assertiveness, to retain its talents.
*Evelyn Tamy Macedo is a member of the Startups Committee of the Brazilian Association of Software Companies – ABES and a lawyer in the area of Innovation and Startups at Elias Matias Advogados. Specialist in Business Law from FGVlaw, extension in Data Protection and Privacy by Insper, and co-author of the book “Marco Legal das Startups: Complementary Law 182/2021 and the promotion of innovative entrepreneurship in Brazil”.
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