Question on Employee Stock Option Plan

[TaxLawyer1978]

A client maintains an employee stock option plan which reads in relevant part as follows: 

Regular Termination.  If an Optionee ceases to be employed by the Corporation, or by a corporation (or a parent or subsidiary of any such corporation) issuing or assuming a stock option in a transaction to which Section 424(a) of the Code applies, for any reason other than death, disability or termination of his employment by the Corporation other than for Cause, his option shall immediately terminate; provided, however, that the Committee may, in its discretion, allow such option to be exercised (to the extent otherwise exercisable on the date of termination of employment) at any time within three months after the date of termination of employment, unless the option terminates by its original terms (or the Plan otherwise provides for earlier termination) prior to such exercise. 

NOTE: the error above.  It should read "other than death, disability or termination for Cause" (not "other than for Cause").  Essentially the language excepts regular termination, but is meant to address regular termination so it doesn't say what happens on regular termination.

Company wants to amend the plan to correct this typo but afraid employee will take position his option doesn't terminate and doesn't have to exercise within 3 months.  Agreement with employee says option is a non-statutory stock option, not an ISO so presumably even if Company allows him to exercise, he may not want to for he would have to pay tax on the spread.

Suggestions on how to handle? Can the company allow this employee to hold on to his options post-termination?  Per terms of the Plan, option terminates upon the earlier of 10 yrs from grant date or the last date for exercising the option following termination of employment (presumably not addressed by the paragraph above due to the typo).  

[XTitan]

This is the way I read it:

If the employee dies, the option does not immediately terminate.

If the employee becomes disabled, the option does not immediately terminate.

If the employee terminates for any reason other than for Cause, the option does not immediately terminate.

If there is a termination for any other reason not listed above, the option immediately terminates.  Termination for cause doesn't fit into any of the three exceptions listed above, so termination for cause would cause the option to immediately terminate.

Is there really a typo?

[TaxLawyer1978]

Yes XTitan.  All three - death, disability and termination for cause - are addressed in subsections (b) through (d) of Article 14.  

Also you're misreading the 3rd sentence (which is very confusing because of this typo) -- it reads: if employee terminates for any reason other than termination other than for Cause.  To me that means - if employee terminates for any reason other than no-cause termination (i.e, if employee terminates for cause? which is addressed separately in the subsequent paragraph).    I think what this should say consistent with the title of this paragraph is this: "if employee terminates for reason other than death, disability, or termination for cause, option shall immediately terminate"

Let me know your thoughts.  Thanks.  

[Luke Bailey]

The "other...other" makes it confusing, but I think what it says, and what they intended to say, and which is pretty typical, is that if you die, terminate on account of disability, or we terminate you other than for cause, you have a limited period (set out in portion of the plan doc or option agreement you have not provided, TaxLaywer 1978) to exercise. If you quit or we terminate you with cause, the option terminates immediately with your termination of employment.

[TaxLawyer1978]

That is correct.  I believe that's what it was meant to say.  Thanks.