The question of who is obliged under a stock option plan cannot be answered uniformly. In its judgment of May 28, 2008 ( 10 AZR 351/07 ), the Tenth Senate decided that claims arising from an agreement on the granting of stock options that the employee concludes with his employer are part of the employment relationship.
If the employer grants its managers stock options, the exercise conditions are subject to a content control in accordance with Section 305 ff. of the German Civil Code (BGB). In this content control, the principles developed for other special remunerations with regard to binding and forfeiture clauses cannot be used without restriction. In contrast to other special bonuses, stock options have a much more speculative character.
In principle, this also applies in the event of termination of employment by the employer for operational reasons. If the subscription right continues after the expiry of the period specified in Section 193 Para. Since the waiting period of at least two years prescribed in Section 2 No. 4 AktG is linked to the existence of an employment relationship that has not been terminated, this regulation generally does not put the employee at an unreasonable disadvantage. A compensation clause, according to which all claims arising from the employment relationship and on the occasion of its termination are settled, generally also covers claims from stock options if the subscription rights were granted by the employer.