If an employee leaves, you might want the EMI option or the non-qualifying option to lapse since they are intended to motivate and encourage employees to stay with the company.
Good leavers and bad leavers
You might, however, decide that ‘good leavers’ can keep their options because the options are a part of their remuneration package. A ‘good leaver’ being someone who retires, leaves due to ill health or as decided by the board. Since the board of the company can decide who is or isn’t a good leaver, that may also be useful in encouraging positive behaviours from leavers.
You wouldn’t want ‘bad leavers’ (ie basically anyone else) to keep their options.
Options will need to be exercised within 90 days to preserve EMI tax benefits
What can be done for good leavers holding an EMI option will depend on the rules of the particular EMI scheme at the company. A major consideration being that a leaver will need to exercise the EMI option within 90 days of departure to preserve the EMI tax benefits. It’s important to have a clear agreement on what good leavers are entitled to, so as to avoid disputes later on.
Example: Good leavers could be allowed in the EMI option plan rules to exercise their EMI options within 90 days of departure and buy their shares. The shares could then be held by leavers until the business is sold, or could be bought back by the company or other shareholders.
As far as taxes are concerned:
- leavers don’t pay any tax when the EMI option is exercised to buy the shares (assuming that the exercise price was the same or higher as the HMRC agreed actual market value (AMV) of the shares when the EMI option was granted)
- on a sale of the shares, leavers generally pay tax at 20% on any capital gain above the annual exempt amount of £3,000 for higher and additional rate taxpayers. However, if the sale is within the 90 days of leaving, the tax rate is only 10% for EMI tax benefits.
But you will need to be comfortable with leavers owning shares in the company, and costs being incurred in arranging:
- a valuation of the shares when they are bought by leavers (as they will need to know the valuation at the point of exercise so that they can apply the different tax rates for the periods before and after the exercise of their options).
- any buy back by the company or shareholders. There will be legal fees and the buyer will obviously need funds to buy the shares.
As part of our services, we will assist you to ensure that leavers can’t block any sale of the company by holding onto their shares. They can be made to sell their shares to the buyer along with the majority shareholders by adding a ‘drag-along’ provision to the articles of the association of the company.
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Please Note: This article contains general information only and Simply Equity is not, through this article, issuing any advice, be it legal, financial, tax-related, business-related, professional or other. This article is not a substitute for professional advice and should not be used as such. Simply Equity does not assume any liability for reliance on the information provided in this article