Can Options be accelerated after they expire?

[HCE]

We have an issue.  Stock options were granted and, under the terms of the options, they were scheduled to vest next month or expire if the participant is terminated before vesting.  Several employees terminated last month, under the understanding that vesting would accelerate to vest on their termination dates (giving the participants up to 3 months to exercise post-termination), subject to board approval.

We have not yet received board approval, but it is soon forthcoming.  So, now, we have a issue that the options technically expired before they were officially accelerated, even though acceleration was anticipated (subject to board approval) prior to them expiring.

Would it be at all advisable for the board to approve the acceleration now?  Or have we already blown it with respect to ISO status and 409A compliance (assume the stock price has gone up since grant, so they would not have an exercise price of FMV if treated as a new grant today).  Alternatively, can we treat them as accelerated prior to termination (and, consequently, expiration of the options), and the acceleration was simply ratified by the Board at a later date?

Thank you!

[Bob the Swimmer]

What does the plan document say, which is usually fairly broadly worded ?  Also, what does the Participant agreement say ?

[HCE]

1 hour ago, Bob the Swimmer said:

What does the plan document say, which is usually fairly broadly worded ?  Also, what does the Participant agreement say ?

Plan doc allows acceleration with Board approval.  The agreement just has standard terms, but says options expire on termination of employment.

I would like to treat this as amended before termination, and ratified by the Board thereafter.  However, Board approval (or ratification, if you prefer) will not be final until after termination (which has already occurred), so it may be too late.