EMI are considered the gold standard of share option schemes and, if the qualifying conditions are met, are often the first choice for option incentivisation. This is because of the tax efficiency associated with the options.
Conditions of EMI schemes
EMI have conditions which must be satisfied by the company whose shares are being offered and have conditions which need to be satisfied by the employee who is being granted the options.
There are company conditions attached to the size of the company and its numbers of employees. These conditions are broadly designed to ensure that the company is within the SME sector. The company must have a connection with the UK and it is only the top company of a group which can issue the options. This does not prevent options being issued to employees of a subsidiary. The company must be a trading company and cannot undertake certain prohibited trades. The restriction on acceptable trades is to ensure that there is an element of risk associated with share ownership.
The purpose of the options must be to incentivise employees and there are conditions which ensure that the employee has reasonable employment duties and cannot have a connection with the company which allows more than a 30% ownership interest in it.
Benefit of EMI
The benefit of EMI is that capital growth can be subject to capital gains at a 10% rate of tax.
Ultimately this is the fiscal incentivisation for the option holder to exercise options. Assuming that the employee pays full market value for the shares (with that value being determined at the day the options are granted) then any growth between grant and exercise of the option is not taxed until the shares are sold. That growth, together with any further growth from holding the shares after exercise of the option, is subject to capital gains tax.
Share growth would be subject to a 10% rate of tax as shares arising from EMI options attract Entrepreneurs Relief. This applies even if the options are not exercised until a time immediately prior to a company sale with many EMI plans are structured as being “exit only” to provide employees the ability to participate in a share sale.
The terms of EMI options must be recorded in writing and this is an opportunity to provide conditionality on their exercise. Options can be tailored for individual employees and therefore provide targets which are under the control of the employee. For example a sales director may be able to exercise options if X leads are converted into customers within a timeframe or a member of the HR team might have the ability to exercise options once the head count exceeds Y employees.
Whatever the conditions attached for options they need to be able to be satisfied within ten years of grant of the option.
Once options are granted there are administrative requirements to notify HMRC of their existence, both after their grant and annually thereafter. From an accounting perspective EMI options are included within the cost of employee rewards and there is annual accounting to determine how much reward should be charged to company accounts. As this accounting entry does not lead to tax relief until exercise of the option there are consequential deferred tax considerations.
In summary EMI options are often the first choice for incentivisation but they come with conditions, administration and accounting obligations.