This section addresses the stockholder approval of incentive stock option plans required by
section 422(b)(1) of the Internal Revenue Code. (
Section 422 was added to the Code as
section 422A by section 251 of the Economic Recovery Tax Act of 1981, and was redesignated as
section 422 by section 11801 of the Omnibus Budget Reconciliation Act of 1990.) The approval of stockholders must comply with all applicable provisions of the corporate charter, bylaws, and applicable State law prescribing the method and degree of stockholder approval required for the issuance of corporate stock or options. If the applicable State law does not prescribe a method and degree of stockholder approval in such cases an incentive stock option plan must be approved:
(a) By a majority of the votes cast at a duly held stockholders’ meeting at which a quorum representing a majority of all outstanding voting stock is, either in person or by proxy, present and voting on the plan; or
(b) By a method and in a degree that would be treated as adequate under applicable State law in the case of an action requiring stockholder approval (i.e., an action on which stockholders would be entitled to vote if the action were taken at a duly held stockholders’ meeting).
Treas. Reg. § 1.422-5 — Permissible provisions. · CFR 2004 annual edition (revised as of 2004-04-01) · https://pensionresource.website/EAMain?content=EAMain.Law&id=cfr26-1.422-5&asof=2003-10-21 · printed Oct 16, 2026