How to Draft Grant Agreement Templates for Employee Stock Options‍

Casey Fenton

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February 8, 2024

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A study by the National Center for Employee Ownership (NCEO) revealed that companies offering stock options see a 17% higher median productivity rate compared to those that don't. This statistic underscores the growing importance of equity compensation in today's workforce. 

As a company owner or startup founder, understanding the intricacies of employee stock options (ESOPs) is important, particularly when it comes to the legal framework of grant agreements. 

Feeling intimidated yet? Here’s a comprehensive guide to drafting and implementing grant agreement templates, ensuring your approach to employee stock options is not only legally robust but also a powerful tool for employee engagement and retention.

What is a Grant Agreement?

A grant agreement in the context of employee stock options is a legal document that outlines the terms under which stock options are offered to employees. It's a key component of equity compensation plans, serving as a motivational tool and a means of aligning employees' interests with those of the company.

Components of a Grant Agreement Document

When drafting a grant agreement for employee stock options, it's necessary to understand and clearly define each component. These elements form the backbone of the agreement and dictate the terms under which stock options are granted and exercised. Here are the key components:

1. Grant Date

This is the date when the stock options are officially granted to the employee. It's important because it often marks the start of the vesting period and can impact the exercise price in certain types of stock options.

2. Number of Options Granted

This specifies the total number of stock options being granted to the employee. It determines the potential ownership stake the employee could have in the company.

3. Type of Options

There are typically two types of stock options: Incentive Stock Options (ISOs) and Non-Qualified Stock Options (NSOs). Each has different tax implications and rules, which should be clearly stated in the agreement.

4. Exercise Price (or Strike Price)

This is the price at which the employee can purchase the stock. It's usually set at the market value of the stock on the grant date but can vary depending on the type of stock option and company policies.

5. Vesting Schedule

This outlines how and when the options become exercisable by the employee. It can include a cliff (a period after which a significant portion of options vests) and a gradual vesting period thereafter. The schedule should be clear to avoid any misunderstandings.

6. Expiration Date

This is the final date by which the vested options must be exercised before they expire. Employees must be aware of this date to take full advantage of their options.

7. Termination Provisions

These clauses define what happens to the options if the employee leaves the company, whether through resignation, termination, or retirement. Different terms may apply depending on the nature of the departure.

8. Change of Control Provisions

This part addresses what happens to the stock options if the company undergoes significant changes, such as a merger or acquisition. It's important for protecting both the company's and the employee's interests in such scenarios.

9. Legal Clauses

These include standard legal provisions such as dispute resolution methods, governing law, and the binding nature of the agreement.

10. Signature of Parties

The agreement should be signed by both the company representative and the employee, indicating their understanding and acceptance of the terms.

Tips to Creating Clear Grant Agreements

Creating clear and effective grant agreements is essential for ensuring that both the employer and the employee have a mutual understanding of the terms of the stock option grant. Here are some tips to help you draft clear and comprehensive grant agreements:

✔ Use Plain Language

Avoid legal jargon and complex language. The goal is to make the document understandable to individuals who may not have a legal background. Clear, concise language reduces the risk of misunderstandings and disputes.

✔ Be Specific and Detailed

Vague terms can lead to different interpretations. Be specific about every aspect of the agreement, including dates, numbers, procedures, and responsibilities. This specificity helps prevent ambiguities and ensures that all parties are on the same page.

✔ Include Definitions

If you need to use technical terms or industry-specific language, include a definitions section at the beginning of the agreement. This ensures that all parties have a common understanding of the terms used.

✔ Outline the Entire Process

Describe the entire lifecycle of the stock option grant, from the granting and vesting to the exercise and potential expiration of the options. This comprehensive approach helps employees understand not just the immediate implications but also the long-term aspects of their options.

✔ Address Common Scenarios

Include clauses that cover common situations, such as what happens if an employee quits the company or if the company is sold. Anticipating these scenarios and providing clear guidelines helps avoid confusion and potential legal issues in the future.

✔ Ensure Legal Compliance

Stay updated on laws and regulations related to employee stock options. Ensure that your grant agreements comply with both federal and state laws, as well as securities regulations. This not only protects your company legally but also ensures fair treatment of employees.

✔ Regularly Review and Update

Laws and company policies can change. Regularly review and update your grant agreements to reflect these changes. This practice ensures that your agreements remain relevant and legally sound.

✔ Seek Feedback

Before finalizing the agreement, consider getting feedback from different stakeholders, including legal experts, HR professionals, and potentially even employees. This can provide insights into how the agreement is understood and highlight areas that may need clarification.

✔ Use Visual Aids

Where appropriate, use charts or tables to illustrate complex concepts like vesting schedules. Visual aids can make it easier for employees to understand these concepts at a glance.

✔ Provide Context and Examples

When explaining complex terms or conditions, providing examples can be helpful. For instance, illustrating how the vesting schedule works with hypothetical scenarios can make it more tangible for the employee.

Template Language for Stock Option Grant Agreements

When drafting a stock option grant agreement, using standardized template language can be a helpful starting point. This language provides a framework that can be customized to suit your company's specific needs. Here are key sections with suggested template language:

1. Introduction

"This Stock Option Grant Agreement (the 'Agreement') is entered into as of [Grant Date] between [Company Name] ('the Company') and [Employee Name] ('the Participant'), pursuant to the [Company's Stock Option Plan]."

2. Grant of Option

"The Company hereby grants to the Participant an option (the 'Option') to purchase a total of [Number of Shares] shares of the Company's [Common/Preferred] Stock (the 'Shares'), at an exercise price of [Price] per Share. This Option is granted under and governed by the terms and conditions of the [Company's Stock Option Plan] and this Agreement."

3. Vesting Schedule

"The Option granted hereby shall vest and become exercisable according to the following schedule: [X]% of the Shares shall vest on the [one-year anniversary of the Grant Date], and the remaining [Y]% of the Shares shall vest in equal monthly installments over the next [Z] months, subject to the Participant's continuous service with the Company."

4. Exercise of Option

"The Participant may exercise the vested portion of the Option by delivering a written notice of exercise to the Company, specifying the number of Shares to be purchased and accompanied by payment of the aggregate exercise price for such Shares."

Termination of Service:

"In the event of termination of the Participant's service with the Company for any reason, the unvested portion of the Option shall expire and the vested portion shall remain exercisable for a period of [X] days following the date of termination."

5. Change of Control

"In the event of a merger, acquisition, or other change of control of the Company, the vesting of the Option may be accelerated, and/or the Option may be assumed or substituted by the successor entity, as determined by the Company in its sole discretion."

6. Governing Law

"This Agreement shall be governed by and construed in accordance with the laws of the State of [State], without regard to its conflict of law principles."

7. Entire Agreement

"This Agreement, together with the [Company's Stock Option Plan], constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements or understandings, both written and oral, between the parties with respect to its subject matter."

This template language serves as a guideline and should be adapted to fit the specific circumstances and requirements of your company. It's important to consult with legal counsel to ensure that your grant agreement is compliant with applicable laws and regulations and meets the needs of your company and its employees.

RSU Grant Agreement Template

Alternatively, you may also consider Restricted Stock Units (RSUs), another common form of equity compensation. RSUs are a promise to grant a set number of shares of the company's stock or the cash equivalent at a future date, based on certain conditions, typically including a vesting schedule.

RSU grant agreements differ from stock option agreements in that they grant actual shares (or cash equivalent) upon vesting, not just the option to purchase shares. They are often used because of their straightforward value proposition to employees and simpler tax handling compared to stock options. Key components of an RSU grant agreement typically include the grant date, number of RSUs granted, vesting conditions, and settlement details.

RSU Grant Agreement Template

Here is a basic template for an RSU grant agreement, which can be customized to fit your company's specific needs:

This Restricted Stock Unit Agreement (the 'Agreement') is made as of [Grant Date] by and between [Company Name] ('the Company') and [Employee Name] ('the Participant'), under the [Company's Equity Incentive Plan].

The Company hereby grants to the Participant [Number of RSUs] Restricted Stock Units ('RSUs'), subject to the terms and conditions of the [Company's Equity Incentive Plan] and this Agreement. Each RSU represents the right to receive one share of the Company's [Common/Preferred] Stock upon vesting.

The RSUs granted hereby shall vest according to the following schedule: [X]% of the RSUs shall vest on the [one-year anniversary of the Grant Date], and the remaining [Y]% of the RSUs shall vest in equal [monthly/quarterly/annual] installments over the next [Z] [months/years], subject to the Participant's continuous service with the Company.

Upon vesting, the Company shall issue to the Participant one share of the Company's [Common/Preferred] Stock for each vested RSU, subject to applicable tax withholding.

In the event of the Participant's termination of service with the Company for any reason, the unvested RSUs shall be forfeited. The vested RSUs, if any, shall be settled in accordance with the terms of this Agreement.

In the event of a merger, acquisition, or other change of control of the Company, the vesting of the RSUs may be accelerated, and/or the RSUs may be assumed or substituted by the successor entity, as determined by the Company in its sole discretion.

This Agreement shall be governed by and construed in accordance with the laws of the State of [State], without regard to its conflict of law principles.

This Agreement, together with the [Company's Equity Incentive Plan], constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements or understandings, both written and oral, between the parties with respect to its subject matter.

Draft Grant Agreements with Ease

Designing an equity compensation can be a challenging yet rewarding endeavor for any company owner or startup founder. Whether you're drafting a stock option grant agreement or an RSU grant agreement, the key lies in creating clear, legally sound, and mutually beneficial documents. You can leverage templates and guidelines that help create a solid foundation for your equity compensation plans.

However, take note that these templates are starting points and should be customized to fit the unique needs of your company and its employees. Always consult with legal professionals to ensure compliance with current laws and regulations. With well-crafted agreements, you can effectively motivate, retain, and align your employees' goals with the growth and success of your company, fostering a committed and productive workforce.

If you happen to be curious about RSUs as an alternative to stock options, you’re a step away from achieving your company goals with a carefully crafted grant agreement. Head on to Upstock or book a demo to see how they fare against other forms of ESOPs.

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ABOUT THE AUTHOR

Casey Fenton

Founder, Upstock & Couchsurfing, AI and Equity Innovator

Casey Fenton, the founder of Upstock & Couchsurfing and an AI and equity innovator, has revolutionized how we perceive and implement equity in the workplace. His foresight in creating platforms that not only connect people but also align their interests towards communal and corporate prosperity has established him as a pivotal figure in technology and community building. Casey speaks worldwide on topics including ownership mindset, worker equity, With Upstock and Couchsurfing, he has demonstrated an unparalleled expertise in harnessing technology for the betterment of community interaction and organizational benefits.

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