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stock-option-grant

起草公司股权激励计划下的ISO或NQSO股票期权授予协议。涵盖归属、行使机制、终止、税务（IRC §422/§409A）、证券合规以及控制权变更条款。在起草期权授予、股权补偿协议或股票期权奖励信时使用。

person作者: jakexiaohubgithub
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Stock Option Grant Agreement

Drafts a binding option grant agreement governing ISO or NQSO issuance, integrated with the company's equity incentive plan.

Prerequisites

Collect before drafting:

  • [ ] Adopted equity incentive plan (with amendments)
  • [ ] Board/committee resolution (grant date, share count, exercise price, recipient)
  • [ ] Certificate of incorporation + bylaws (authorized shares, stock classes)
  • [ ] Recipient's employment/consulting agreement (equity, acceleration, post-termination terms)
  • [ ] Cap table context (stockholders' agreement, ROFR/co-sale/drag-along)
  • [ ] 409A valuation (private) or closing price (public) establishing FMV at grant date
  • [ ] Insider trading / equity admin policies (if any)

Quick Start

  1. Confirm option type: ISO (§422) or NQSO — tax treatment diverges significantly
  2. Verify exercise price meets FMV floor (100% FMV for ISO; 110% for >10% shareholders)
  3. Draft agreement sections below in order
  4. Cross-check acceleration terms against all existing agreements

Document Sections

1. Caption & Recitals

Include: grant date (from board resolution), company legal name + state, optionee name, plan title with adoption/amendment dates, "Subject to and governed by the Plan" incorporation clause.

2. Definitions

| Term | Requirements | |---|---| | Option | ISO (§422) or NQSO; if ISO, savings clause converting excess to NQSO | | Shares | Class of stock (typically common) | | Continuous Service | Employee/director/consultant; parent/subsidiary service treatment | | Exercise Price | Per-share price + FMV methodology | | Vesting Commencement Date | Grant date, hire date, or specified date | | Cause | Dishonesty, fraud, felony, fiduciary breach, material policy violation | | Change in Control | Merger, asset sale, stock sale, board change — with threshold percentages |

3. Grant Terms

  • [ ] Number of shares and exercise price per share
  • [ ] ISO: exercise price ≥ 100% FMV (110% for >10% shareholders)
  • [ ] NQSO: exercise price ≥ FMV (§409A compliance)
  • [ ] Maximum term: 10 years (5 years for >10% shareholder ISOs)

4. Vesting Schedule

Standard four-year structure:

Cliff:     12 months — 0% before first anniversary
Year 1:    25% on first anniversary of Vesting Commencement Date
Years 2–4: 75% in 36 equal monthly installments
Condition: Continued Service through each vesting date

For performance vesting: specify milestones, verification method, certification process.

Acceleration provisions:

| Trigger | Type | Effect | |---|---|---| | Change in Control alone | Single-trigger | Specify % or full acceleration | | CiC + qualifying termination (12–18 mo) | Double-trigger | Specify % or full acceleration | | Death or Disability | Single-trigger | Per plan terms | | Involuntary w/o Cause (no CiC) | If applicable | Per employment agreement |

Confirm alignment with separate employment/severance/CiC agreements.

5. Exercise Procedures

Payment methods (include all that apply): cash/check, broker-assisted cashless, net exercise/share withholding, stock swap.

Post-exercise delivery: book-entry or certificate; private companies add securities law + stockholders' agreement legends; public companies add lock-up obligations.

6. Termination Matrix

| Scenario | Unvested | Vested — Exercise Period | |---|---|---| | Cause | Immediate termination | Immediate termination | | Voluntary resignation | Immediate termination | 30–90 days (not beyond max term) | | Involuntary w/o Cause | Terminate (unless acceleration) | 90 days (or per agreement) | | Death | Terminate (unless acceleration) | 12 months; estate/beneficiary exercises | | Disability | Terminate (unless acceleration) | 12 months |

Change in Control treatment:

  1. Assumed/substituted → vesting continues (+ acceleration terms)
  2. Not assumed → full vesting pre-closing; limited exercise window
  3. Cash-out → cancellation for spread payment
  4. All CiC provisions must comply with §409A

7. Tax Provisions

NQSO: Ordinary income at exercise (FMV − exercise price); income + employment tax withholding required; withholding is condition-precedent to exercise.

ISO: No ordinary income if holding periods met (2yr from grant + 1yr from exercise); AMT adjustment = spread at exercise; require disqualifying disposition notice to company.

Reporting: W-2 (employees), 1099 (consultants), Form 3921 (ISO exercises), Form 3922 (ESPP).

8. Securities Law Compliance

  • [ ] Unregistered shares; issued under §4(a)(2), Rule 701, or Reg D
  • [ ] Investment representations (acquiring for investment, not distribution)
  • [ ] Transfer restriction (non-transferable except by will/intestacy)
  • [ ] Reference stockholders'/ROFR/co-sale/drag-along agreements
  • [ ] §16 officers/directors: Rule 16b-3 compliance

9. Administrative Provisions

  • [ ] Governing law (state of incorporation)
  • [ ] Severability; plan controls over agreement; administrator interpretations final
  • [ ] Amendment requires written consent; company may amend unilaterally for §409A/securities/tax compliance
  • [ ] Notice mechanics with delivery method + deemed-received timing
  • [ ] At-will acknowledgment; data privacy consent
  • [ ] International addendum placeholder for non-US optionees

10. Execution & Exhibits

Signatures: Company authorized officer + optionee, with dates.

Optionee acknowledgment: receipt of plan document, opportunity to consult advisors, understanding option is subject to agreement and plan.

Exhibit A — Grant Summary:

Grant Date:                [DATE]
Option Shares:             [NUMBER]
Exercise Price Per Share:  $[PRICE]
Option Type:               [ISO / NQSO]
Vesting Commencement:      [DATE]
Vesting Schedule:          [CLIFF + MONTHLY/QUARTERLY]
Expiration Date:           [DATE]

Critical Rules

  • ISO $100K limit: Annual vesting cap of $100,000 FMV (measured at grant) first exercisable per year; excess auto-converts to NQSO [IRC §422(d)]
  • §409A floor: NQSO exercise price must never be below FMV at grant — discounted options trigger immediate taxation + 20% penalty
  • Private company valuation: Require current 409A valuation; safe harbor = independent appraisal within 12 months
  • >10% shareholder ISOs: 110% FMV exercise price + 5-year max term [IRC §422(c)(5)]
  • Tax disclaimer: Do not draft tax advice as legal advice — include disclaimer directing optionee to personal tax advisor
  • Preferred stock check: If company has outstanding preferred, confirm common stock class and any anti-dilution or protective provisions affecting option shares
  • Acceleration conflicts: Cross-check all acceleration terms against existing agreements