Q&As

Can an enterprise management incentives share option be structured so that, if the personal representative does not exercise it within 12 months of the option holder's death, the option can continue to subsist as an unapproved option?

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Published on LexisPSL on 03/12/2020

The following Share Incentives Q&A provides comprehensive and up to date legal information covering:

  • Can an enterprise management incentives share option be structured so that, if the personal representative does not exercise it within 12 months of the option holder's death, the option can continue to subsist as an unapproved option?

This Q&A has been answered on the basis that the reader is seeking to draft the terms of a new enterprise management incentives (EMI) share option rather than interpret the terms of an existing EMI option which has already been granted.

Paragraph 38(a) of Schedule 5 to the Income Tax (Earnings and Pensions) Act 2003 (ITEPA 2003) states:

‘The terms on which the option is granted—

(a) must prohibit the person to whom it is granted from transferring any of that person's rights under it, and

(b) if they permit it to be exercised after that person's death, must not permit it to be exercised more than one year after the date of t

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