Enterprise Management Incentive (EMI) options

EMI options are intended to help smaller companies with growth potential to recruit and retain the best employees. They offer generous tax advantages to employees of those companies that qualify.

For companies and employees who meet the qualifying conditions, EMIs are a flexible and tax-favoured share incentive arrangement.

Which companies qualify?

There are a number of legal requirements which companies must satisfy in order for their share options to qualify as EMIs, including:

• the company must carry on a "qualifying trade" or be preparing to do so, and must have a UK permanent establishment. If the EMI options are to be granted to employees of a group of companies, at least one company in the group must satisfy these requirements;
• the company (or group of companies) must not have gross assets exceeding £30 million at the time the EMI option is granted;
• the shares over which EMI options are granted must be in an independent company. This means that, in the case of a group of companies, the EMI options must be over shares in the parent company. The only exception is that a company subject to an employee-ownership trust will be deemed independent. EMI options can be granted over both listed and unlisted shares; and
• the company (or group of companies) must have fewer than 250 full-time equivalent employees at the time the EMI option is granted.

The shares used for EMI options can be subject to restrictions, but they must be ordinary shares which are "fully paid up" (for company law purposes) and not redeemable or convertible.

What is a 'qualifying trade'?

Broadly speaking, a "qualifying trade" is one that is carried out with the intention of making a profit. Unless the company's business consists, wholly or to a substantial extent, of one of HMRC's listed "non-qualifying" activities, it will most likely be eligible. These non-qualifying activities include:

• dealing in land;
• financial trading;
• leasing; and
• property development.

Receiving royalties or licence fees is usually classed as a non-qualifying activity, unless the income is substantially generated from intellectual property belonging to the company or group of companies.

Companies can apply in advance to HMRC for an opinion as to whether a company or group of companies meets the EMI requirements. Companies with overseas activities may qualify to use EMI to recruit and retain UK staff, provided they have a "permanent establishment" in the UK.

250 employees restriction

The company or group of companies must have fewer than 250 full-time equivalent employees. A full-time employee is one who works 35 hours a week or more, and the company must include fractions representing part-time employees. Non-executive directors and overseas employees and employees of "qualifying subsidiaries" must also be counted.

Who can participate in EMIs?

In order to qualify, participating employees, including executive directors, must spend at least 25 hours per week or, if less, 75% of their working time, on the business of the company or group of companies. Employees must give written declarations confirming that they meet this working time requirement, and the company must retain those declarations.

Individuals with a "material interest" (broadly a 30% interest or more) in the company or any of its subsidiaries, either on their own or together with one or more associates, are also unable to participate.

Limits on grant of EMIs

There is a company limit of £3m on the total value of shares (as at the grant date) which may be available under EMI options at any given time. There is also an individual limit on the value of shares (as at the grant date) which any one employee may hold under the EMI option. This limit is currently £250,000. Options under any Company Share Option Plan (CSOP) operated by the company also count towards this limit.

Tax treatment of EMIs

EMIs offer generous tax advantages to both qualifying companies and participants, as follows:

• no income tax or National Insurance contributions (NICs) are payable on the grant of the EMI option;
• normally no income tax or NICs will be payable when an employee exercises the EMI option, unless the exercise price is less than the market value of the shares on grant. In those circumstances, the difference between the grant market value of the shares (or the current market value, if lower) and the exercise price will be chargeable to income tax and possibly NICs;
• capital gains tax (CGT) is payable on the sale of the EMI option shares;
• business asset disposal relief (BADR), which reduces the rate of CGT to 10% on the first £1m of lifetime gains, will potentially be available on the disposal of shares acquired pursuant to an EMI option, if the shares are sold more than 24 months after the grant of the EMI option. This is much less restrictive than the usual conditions for employee shareholders to enjoy BADR; and
• if the share option is exercised more than 90 days after a "disqualifying event", income tax (and, if appropriate, NICs) is payable on the increase in value of the shares between the date of the disqualifying event and the date of exercise.

Disqualifying events include:

• the company ceasing to carry out a qualifying trade;
• the optionholder ceasing to be a qualifying employee;
• optionholders being granted an additional tax-advantaged CSOP option, taking them over their individual (currently £250,000) EMI limit;
• the company being taken over; or
• certain alterations to the company's share capital.

In addition to these substantial tax advantages, the employer company may also be able to claim corporation tax relief on the option gain.

Share option requirements

Employees must be able to exercise EMI share options within 10 years from the date of grant. The EMI option terms must be set out in a written agreement which must detail any restrictions on the shares.

Each EMI option must be notified, electronically, to HMRC within 92 days after its grant in order to secure the tax reliefs. For EMI options granted on or after 6 April 2024, the time limit for notifying the grant will be extended from 92 days after the date of grant to 6 July following the end of the tax year in which the option was granted.
The company must deliver, electronically, an annual return to HMRC in respect of its EMI options.

Formalities

It is recommended that unlisted companies establish the market value of the shares before EMI options are granted. The value can be formally agreed with HMRC, or the company can use its own valuation although it would then be open to HMRC to query this. HMRC valuation agreements in advance of a taxable event are now only available in a few circumstances, including for a proposed EMI option grant.

HMRC must be notified electronically of any grants of EMI options within the time periods set out above.

HMRC has 12 months to make enquiries as to eligibility. If it does not make such enquiries, and all information provided is correct, then the EMI option is deemed to qualify.

Other arrangements available

If a company is too large to grant EMI options, it may still qualify to grant options under a tax-advantaged CSOP. For more information, see our separate Out-Law guide.

If a company or the employee does not meet the qualifying criteria for either EMIs or CSOPs, it can grant share options which have no eligibility criteria and are very flexible, but which are not tax-advantaged and are subject to income tax (and, if appropriate, NICs) on exercise of the share options. Alternatively, the company may consider other arrangements, for example growth shares or the Pinsent Masons' ExSOP™, which may offer a more favourable tax treatment than "non tax-advantaged" options. For more information, see our separate Out-Law guide.