Stock Option Agreement
How To Use
This review list is provided to inform you about the document in question and assist you in its preparation. Stock option agreements are a tricky business for a number of reasons:
Many states regard these agreements as falling under employment agreements and/or covenants which opens them up to examination by various labor boards in addition to the Attorney General’s office for fraudulent enticement and other matters. The argument is that Stock Options can be offered employees as “bait” to avoid receiving higher salaries. Therefore, this is an infringement of various rights, in the eyes of these states, their laws and statutes, and their enforcement officials.
Many employees view stock option offers in a similar manner and are not motivated by receiving them, and, to some extent are demotivated by the offer, especially after their families make derogatory comments about the “worth” of these options. In fact, I have had several employees resign when offered options because of personal upset caused by both the potential upside and more likely worthlessness of these options (a common result, of course; however, having said that, if the company works, the options can mean big bucks).
In addition, if the Corporation grants these options to any of its employees they then change their role, in part, to being an owner. This is an entirely different relationship than being an employee and often serves to confuse employer and employee alike, when employee turns the table on management and starts cross examining management (their absolute right as shareholders) and offering different suggestions than those of their immediate supervisor (another absolute right of a shareholder to offer suggestions, but in the appropriate forum of course, which is not in the course of their daily employment; but, these distinctions often get muddled among option holders).
The safest course is not to offer these at all. This is the unintended consequence of the events and facts enumerated above. However, it is not our role to advocate changing what is, but in suggesting how to deal with things as they are, until they are modified to become friendlier to the option-issuing corporation.
I have found the no option approach works best in our company and the last few we have set up. In fact, in classified ads seeking employees, my response level has always been higher and with a more qualified group when I offer regular employment versus when I offer regular employment plus an option or stock opportunity. People have become suspicious of these offers, rightfully or wrongfully. If you want to secure an employee’s commitment to the company, consider an outright issuance of stock so they have what they have and that is that. On the whole, though, you may find it wiser to not issue stock at all to employees. Pay them more instead. It will be simpler and probably cheaper in the long run. The above is business advice only.
Legally, you are issuing securities in this agreement and should have the agreement reviewed by an appropriately knowledgeable attorney in securities law. Have both parties sign the Agreement in duplicate, have these Agreements ratified by your Board and inserted into your minute book, and keep an extra copy in the employee’s or other person’s file in your company.
Stock Option Agreement
This Stock Option Agreement (“Agreement”) is made by and between ___________________________ (“Optionor”) and _________________________ (“Optionee”). The Optionor is the legal and beneficial owner of _______________________ authorized shares (“Optionor Shares”) in the capital stock of ________________________ (“Corporation”). The Optionor wishes to grant to the Optionee and the Optionee wishes to accept from the Optionor, an option to purchase _____________ of the Optionor Shares (“Optioned Shares”).
Therefore in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Optionor grants to the Optionee an option (the “Option”) to purchase the Optioned Shares at a purchase price (the “Purchase Price”) of $_______ per share for an aggregate Purchase Price of $____________, subject to the following terms and conditions:
1. Option Exercise Period.
The Option may be exercised by the Optionee in whole, not in part, at any time from the date of this Agreement until the day preceding the earlier of:
(ii) death of the Optionee, or
(iii), the Termination Date of this Option Exercise Period.
These options shall terminate on the Termination Date unless exercised by the Optionee prior to it.
2. Exercise of Option.
The Optionee shall, for the purposes of exercising the Option, give to the Optionor notice in writing (“Notice”), accompanied by a bank check payable to the Optionor in the amount of the Purchase Price.
3. Transfer of Optioned Shares.
Upon compliance by the Optionee with all of the terms and conditions of this Agreement and upon receipt by the Optionor of:
(i) the Notice, and
(ii) payment of the Purchase Price, the Optionor shall sell and transfer to the Optionee the Optioned Shares and as evidence of it, the Optionor shall execute in favor of the Optionee a form of transfer and an endorsement on the share certificates representing the Optioned Shares, together with other documents to evidence the sale and transfer as the Optionee requests.
The Optionor shall also cause the Corporation’s directors to consent to the sale and transfer of the Optioned Shares to the Optionee.
4. Non-Assignability of Option.
The Option is personal to the Optionee. Therefore, the Optionee may not sell, assign or otherwise transfer the Option or any of its rights under this Agreement without the prior written consent of the Optionor.
Any notice required by this Agreement or given in connection with it, shall be in writing and shall be given to the appropriate party by personal delivery or a recognized over night delivery service such as FedEx.
If to the Optionor: ___________________________________________________
If to the Optionee: ___________________________________________________
6. No Waiver.
The waiver or failure of either party to exercise in any respect any right provided in this agreement shall not be deemed a waiver of any other right or remedy to which the party may be entitled.
7. Entirety of Agreement.
The terms and conditions set forth herein constitute the entire agreement between the parties and supersede any communications or previous agreements with respect to the subject matter of this Agreement. There are no written or oral understandings directly or indirectly related to this Agreement that are not set forth herein. No change can be made to this Agreement other than in writing and signed by both parties.
8. Governing Law.
This Agreement shall be construed and enforced according to the laws of the State of _____________ and any dispute under this Agreement must be brought in this venue and no other.
9. Headings in this Agreement.
The headings in this Agreement are for convenience only, confirm no rights or obligations in either party, and do not alter any terms of this Agreement.
If any term of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement, including all of the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included.
In Witness whereof, the parties have executed this Agreement as of the date first written above.