Full EMI share options eligibility details for UK-based SMEs

Here are the full requirements you should be aware of if you are seeking eligibility for an EMI option scheme.

General requirements for EMI

There are a few general requirements an EMI option scheme must meet:

• The purpose of the scheme must be to retain or recruit employees and not to avoid tax.
• You may only grant an employee a max value of £250,000 in options, based on the unrestricted market value (or UMV).
• The most that a company can grant is £3m in unexercised options at any one time, based on UMV. If any options are granted over these limits, then they will not be qualifying.

Company requirements for EMI

You must also assess whether your company itself meets the criteria to qualify for EMI. The key criteria are as follows:

• Your company must be independent. More than 50% of the ordinary share capital must not be owned or controlled by another company, or any person connected to that company. Additionally, there should be no arrangements in place for such ownership or control to occur. A company or person is considered connected if: They have control of the company, or they, along with connected persons, have control of the company. According to section 993 of the ITA 2007, “connected persons” include a spouse, civil partner, or relative.
• If your company has any subsidiary companies, they must also qualify for EMI. If they are a property managing subsidiary, they must be at least 90% owned and controlled by your company.
• Your gross assets must not exceed £30m at time of EMI options being granted. If part of a group, all assets of the group must be included.
• You must have fewer than 250 full-time employees.
• Your business must have a permanent establishment in the UK.

Additionally, your business must not have a substantial part of its trading activities, or provide services or facilities for other businesses, in specific disqualifying industries. These industries are:

• Land, commodities, futures, shares, securities, or other financial instruments.
• Goods, other than ordinary trade of wholesale or retail distribution.
• Financial activities, including leasing, banking, insurance, money-lending, debt-factoring, and hire-purchase financing.
• Receiving royalties or other licence fees.
• Providing legal or accountancy services.
• Property development.
• Farming or market gardening.
• Forestry activities, including holding, managing or occupying woodlands, and timber production.
• Shipbuilding.
• Coal and steel production.
• Operating or managing hotels or comparable establishments.
• Operating or managing nursing homes or residential care homes.

Further details on qualifying businesses can be found on the GOV.UK website.

Employee requirements for EMI

Finally, you need to make sure your employees themselves qualify for your EMI options scheme. The key criteria to be aware of are as follows:

• Eligible individuals must be employees (or directors) who work at least 25 hours each week, or devote 75% of their total weekly working time to the company.
• Employees, either individually or together with an associate, must not have a beneficial or controlling interest (directly or indirectly) of more than 30% in the company, or have the rights to acquire such interest. For this purpose, associates are:
  • business partners;
  • spouses and civil partners;
  • parents, children and distant direct relatives;
  • trustees of trusts where the employee (or their relatives above) is or was the settlor;
  • in certain circumstances an employee benefit trust;
  • trustees of other discretionary trusts that hold an interest in the company, of which the employee falls within the class of beneficiaries, subject to certain specific exceptions.
• Employees must hold their equity, either as unexercised options or once exercised into shares, for at least 24 months in total from date of grant, for them to gain the maximum tax benefit of only being charged CGT at 10% at sale, over and above the value when granted.

Once you are certain that your business and its employees qualify for an EMI options scheme, your next step is to proceed with the scheme setup process. So take our EMI eligibility quiz today and get the ball rolling.

You can also book a free call with one of our equity consultants to discuss EMI schemes in more detail.