ETASSUM33230 | Schedule 3 SAYE option schemes: Shares to which schemes can apply: Open market test

For companies with more than one class of shares, if the scheme shares are not “employee-control” shares, they must satisfy the “open market test” in paragraph 22(3)(a). This means that the majority of the shares of the scheme class must be held by what can be summarised as “outsiders”, specifically:

• persons who did not acquire their shares “as a director or employee” of any company (paragraph 22(3)(a)) (see ETASSUM33240),

• persons who acquired their shares in pursuance of an offer to the public (paragraph 22(3)(a)),

• trustees - but excluding the shares they hold on behalf of persons who acquired their interests in the shares “as a director or employee” and not in pursuance of an offer to the public (paragraph 22(3)(b)),

• companies - but excluding, if the shares to be used in the scheme are in an unlisted subsidiary company, shares held by companies which control or are associated with that company (paragraph 22(3)(c)).