Validity of clauses in a profit-sharing plan linking the exercise of options to the continuation of the employment contract

Facts

[A.] worked for X. Bank AG, a subsidiary of X. Holding AG (defendant), from 1992 to 1998. During this period, he concluded several contracts with X. Holding AG providing for the granting of stock options in that company. These options could only be exercised if [A.] was still bound by an employment contract with a company of the X. group at the time the options expired. After the termination of his employment contract with X. Bank AG, [A.] brought an action against X. Holding AG to obtain payment of the value of the options he was unable to exercise. He argues that these clauses are contrary to labour law and good morals.

Considerations

The Federal Court considers that profit-sharing plans must not circumvent the mandatory provisions of labour law. However, in this case, the protection of the worker does not apply because [A.] acted as an investor by accepting the risk associated with the acquisition of these participations. The options did not constitute an element of the salary, but a separate investment from the employment contract.

Furthermore, the Court considers that the clause providing for a 5-year period before the exercise of the options is not contrary to…