激励对象参与股权激励的本质亦是一种投资行为，基于投资风险，激励对象应当结合自身的财务状况和风险承受能力划定安全边界，审慎确认最终认购的激励股权数量，并按照激励文件的约定向指定主体按时、足额支付股权激励认购价款。实务中，激励对象参与股权激励的资金来源有哪些？存在资金压力的激励对象可以向公司或实际控制人借款吗？针对上述问题，我们结合实务经验总结了如下操作指引。

　　The essence of incentive objects participating in equity incentives is also an investment behavior. Based on investment risks, incentive objects should set a safety boundary based on their own financial situation and risk tolerance, carefully confirm the final number of incentive equity subscribed, and pay the equity incentive subscription price to the designated entity on time and in full according to the provisions of the incentive documents. In practice, what are the sources of funds for incentive recipients to participate in equity incentives? Can incentive recipients with financial pressure borrow from the company or actual controller? In response to the above issues, we have summarized the following operational guidelines based on practical experience.

　　一、自有资金任何投资均存在风险，激励对象参与股权激励时更应量力而为，其中，可自主支配、无需外部借入的自有资金应为激励对象参与股权激励的主要资金来源，这种资金来源可以有效避免因外部借贷给激励对象带来的还款压力和潜在债务风险，无需支付利息等额外资金成本，形式主要包括个人积累的工资性收入、投资收益等。

　　1、 Any investment with self owned funds carries risks, and incentive recipients should act within their means when participating in equity incentives. Among them, self owned funds that can be independently controlled and do not require external borrowing should be the main source of funds for incentive recipients to participate in equity incentives. This source of funds can effectively avoid repayment pressure and potential debt risks caused by external borrowing to incentive recipients, without the need to pay additional capital costs such as interest. The forms mainly include personal accumulated wage income, investment income, etc.

　　二、银行贷款部分激励对象为缓解资金压力，可能会选择银行贷款的方式借钱参与股权激励，实务中，不少商业银行或金融机构也推出了类似产品，需要特别提示注意的是，尽管相关法律法规并不禁止或限制激励对象向银行等金融机构融资，但激励对象采取该种出资方案时应当关注如下问题：

　　2、 The incentive objects for bank loans may choose to borrow money through bank loans to participate in equity incentives in order to alleviate financial pressure. In practice, many commercial banks or financial institutions have also launched similar products. It should be noted that although relevant laws and regulations do not prevent or restrict incentive objects from financing from banks and other financial institutions, incentive objects should pay attention to the following issues when adopting this investment plan:

　　1. 资金成本通过银行等金融机构融资必然涉及利息，尽管股权激励可能带来潜在的收益，比如获得公司成长带来的价值增长，通过分红或转让取得相对可观的收益，但是，股权激励通常着眼于对员工的长期激励，如果公司仍处于早期阶段，每年尚未产生可分配收益或距离上市仍有一定时间，可能会导致激励对象短期内面临较大的资金成本和还款压力。

　　1. The cost of capital financing through financial institutions such as banks inevitably involves interest. Although equity incentives may bring potential benefits, such as gaining value growth from company growth and obtaining relatively considerable returns through dividends or transfers, equity incentives usually focus on long-term incentives for employees. If the company is still in the early stages, has not yet generated distributable income each year, or is still some time away from going public, it may lead to significant capital costs and repayment pressure for incentive recipients in the short term.

　　2. 提前还款风险如选择信用贷产品的，除了年化借款利率较高、借款周期较短、额度较低之外，还需关注该类产品对借款资金使用用途的限制，如明确禁止用于股票等风险投资的，可能面临违约及被要求提前还款的风险。我们不建议激励对象使用该种方式获得参与股权激励的资金。

　　2. Early repayment risk: For those who choose credit loan products, in addition to the high annualized loan interest rate, short loan period, and low amount, they also need to pay attention to the restrictions on the use of loan funds in such products. For example, if they are explicitly prohibited from being used for risky investments such as stocks, they may face the risk of default and being required to repay in advance. We do not recommend that incentive recipients use this method to obtain funds for participating in equity incentives.

　　三、第三方借款

　　3、 Third party borrowing

　　1. 公司针对公众公司，现行《上市公司股权激励管理办法》第21条及《非上市公众公司监管指引第6号——股权激励和员工持股计划的监管要求（试行）》均明确禁止公司为激励对象依据股权激励计划获取有关权益提供贷款以及其他任何形式的财务资助，包括为其贷款提供担保。

　　1. Regarding public companies, Article 21 of the current "Management Measures for Equity Incentives of Listed Companies" and "Regulatory Guidelines for Non Listed Public Companies No. 6- Regulatory Requirements for Equity Incentives and Employee Stock Ownership Plans (Trial)" both explicitly prohibit companies from providing loans and any other form of financial assistance, including providing guarantees for loans, to incentivized objects to obtain relevant rights and interests based on equity incentive plans.

　　本次新《公司法》的修订，删除了股份公司不得直接或者通过子公司向董事、监事、高级管理人员提供借款的规定，同时在第163条明确股份公司实施员工持股计划的，公司可以为其提供财务资助，并进一步明确：“为公司利益，经股东会决议，或者董事会按照公司章程或者股东会的授权作出决议，公司可以为他人取得本公司或者其母公司的股份提供财务资助，但财务资助的累计总额不得超过已发行股本总额的百分之十。董事会作出决议应当经全体董事的三分之二以上通过。”有限公司则不受限于该条规定，仍延续现行《公司法》的安排，对公司提供财务资助无禁止性规定。

　　The revision of the new Company Law has removed the provision that joint-stock companies are not allowed to directly or through subsidiaries provide loans to directors, supervisors, and senior management personnel. At the same time, Article 163 clarifies that if a joint-stock company implements an employee stock ownership plan, the company may provide financial assistance to it, and further clarifies: "For the benefit of the company, with the resolution of the shareholders' meeting or the resolution made by the board of directors in accordance with the company's articles of association or the authorization of the shareholders' meeting, the company may provide financial assistance to others to obtain shares of the company or its parent company, but the cumulative total amount of financial assistance shall not exceed 10% of the total issued share capital. The resolution made by the board of directors shall be passed by more than two-thirds of all directors." Limited liability companies are not limited by this provision and continue to be subject to the current situation. The arrangement of the Company Law, There is no prohibition on providing financial assistance to companies.

　　鉴于在公众公司话语体系下，“员工持股计划”与“股权激励”并不完全相同，新《公司法》规定的“员工持股计划”是否包含“股权激励”，有待相关配套规定予以进一步明确。

　　Given that in the discourse system of public companies, "employee stock ownership plans" and "equity incentives" are not completely the same, whether the "employee stock ownership plans" stipulated in the new Company Law include "equity incentives" needs further clarification from relevant supporting regulations.

　　在相关事项明确前，我们建议公众公司仍遵循现有的监管规则，避免由公司向激励对象提供财务资助；非公众公司如有明确上市计划的，谨慎操作；非公众公司中暂无上市计划的有限公司，公司可为激励对象提供财务资助，但执行过程中应注意如下事项：

　　Until the relevant matters are clarified, we suggest that public companies still follow existing regulatory rules and avoid providing financial assistance to incentive recipients by the company; Non public companies with clear listing plans should operate with caution; Limited companies that do not have a listing plan among non-public companies may provide financial assistance to incentive recipients, but the following should be noted during the implementation process:

　　（1）履行相应决策程序。激励对象如为公司董监高或其关联方的，依据新《公司法》第182条的规定，其与公司发生的借款事项属于关联交易，应当就该事项向董事会或者股东会报告，并按照公司章程的规定履行相应的董事会或者股东会决策程序；

　　(1) Perform the corresponding decision-making procedures. If the incentive targets are the company's directors, supervisors, senior executives or their affiliated parties, according to Article 182 of the new Company Law, the borrowing matters between them and the company belong to related party transactions, and they should report the matter to the board of directors or shareholders' meeting, and follow the corresponding decision-making procedures of the board of directors or shareholders' meeting in accordance with the provisions of the company's articles of association;

　　（2）把握借款比例，不建议全部出资均来源于公司借款；

　　(2) Grasp the loan ratio and do not recommend that all capital comes from company loans;

　　（3）确保交易流水清晰可查。公司提供借款、激励对象对公司增资建议分别进行，避免以抵销等方式处理为无实际资金转移过程而被认定为虚假出资；

　　(3) Ensure clear and traceable transaction records. The company provides loans and incentive targets to propose capital increase separately, in order to avoid being identified as false capital contributions due to the lack of actual fund transfer process through offsetting and other means;

　　（4）还款计划需明确可执行，激励对象未偿还借款前，取得的激励股权建议锁定处理，不能依约偿还的公司应及时回购注销。

　　(4) The repayment plan should be clear and executable. Before the incentive object repays the loan, it is recommended to lock up the incentive equity obtained. Companies that cannot repay according to the agreement should promptly repurchase and cancel it.

　　2. 股东借款无论是公众公司还是非公众公司，现行法律法规均不禁止股东为激励对象提供借款等财务资助事项，法不禁止皆可为，我们理解该种操作具备可行性。需特别提示注意的是，对于拟上市公司而言，股东尤其是实际控制人向激励对象提供财务资助的，可能会被监管部门质疑是否存在股权代持，需要谨慎为之，确实无法避免的，执行过程中应注意如下事项：

　　2. Whether it is a public company or a non-public company, current laws and regulations do not prohibit shareholders from providing financial assistance such as loans to incentive targets. Any action that is not prohibited by law is acceptable, and we understand that this operation is feasible. It should be noted that for companies planning to go public, shareholders, especially actual controllers, who provide financial assistance to incentive targets may be questioned by regulatory authorities about the existence of equity proxy holdings. Caution should be exercised, and if it is indeed unavoidable, the following precautions should be taken during the execution process:

　　（1）双方应签订书面《借款协议》；

　　(1) Both parties shall sign a written Loan Agreement;

　　（2）借款期限的约定不得偏离市场惯例；

　　(2) The agreement on the loan term shall not deviate from market practices;

　　（3）借款利息的约定建议比照银行同期借款利率，无息或低息借款需有合理解释；

　　(3) The agreement on loan interest is recommended to be based on the same period loan interest rate as the bank, and there should be a reasonable explanation for interest free or low interest loans;

　　（4）还款计划需明确可执行，借款及还款流水的凭证应清晰可查。

　　(4) The repayment plan should be clear and executable, and the vouchers for the loan and repayment records should be clear and traceable.

　　总结

　　summary

　　综上所述，投资有风险，入场需谨慎。激励对象参与股权激励的资金来源主要包括自有资金和自筹资金，在合法合规的前提下，自筹资金包括但不限于银行融资、公司及股东提供的财务资助，激励对象应当结合自身财务情况、风险承受能力，审慎确认参与股权激励的额度、合理规划认购资金来源。

　　In summary, investment carries risks and entry should be cautious. The main sources of funds for incentive recipients to participate in equity incentives include self owned funds and self raised funds. Under the premise of legality and compliance, self raised funds include but are not limited to bank financing, financial assistance provided by companies and shareholders. Incentive recipients should carefully confirm the amount of participation in equity incentives and reasonably plan the source of subscription funds based on their own financial situation and risk tolerance.

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