<PAGE> 1
As filed with the Securities and Exchange Commission on April 14, 1999
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
U.S. PLASTIC LUMBER CORP.
(Exact name of Registrant as specified in its charter)
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<S> <C> <C>
NEVADA 3080 87-0404343
------------------------------- ---------------------------- ----------------------
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification Number)
</TABLE>
U.S. PLASTIC LUMBER CORP.
2300 W. Glades Road
Suite 440 W
Boca Raton, Florida 33431
(Address, including zip code of Registrant's principal executive offices)
U.S. PLASTIC LUMBER CORP.
1999 EMPLOYEE STOCK OPTION PLAN,
1999 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN AND
COMPENSATION ARRANGEMENTS WITH DIRECTORS,
EMPLOYEES AND IMPORTANT CONSULTANTS
(Full title of the Plan)
BRUCE C. ROSETTO
U.S. Plastic Lumber Corp.
2300 W. Glades Road
Suite 440 W
Boca Raton, FL 33431
(561) 394-3511
(Name, address and telephone number,
including area code, of agent for service)
Copies to:
JANE K. STORERO, ESQUIRE
Blank Rome Comisky & McCauley LLP
One Logan Square
Philadelphia, Pennsylvania 19103
(215) 569-5500
CALCULATION OF REGISTRATION FEE
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============================================================================================================================
AMOUNT PROPOSED MAXIMUM
TITLE OF EACH CLASS OF TO BE OFFERING PRICE PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED(1) PER SHARE OFFERING PRICE REGISTRATION FEE
============================================================================================================================
<S> <C> <C> <C> <C>
Common Stock................ 3,743,500 (2) $28,029,850 $7,793
- ----------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended, this
Registration Statement covers, in addition to the number of shares set
forth above, an indeterminate number of shares which, by reason of
certain events specified in the compensation arrangements with various
employees, directors and important consultants, may become subject to
the such options pursuant to the anti-dilution provision of such
arrangements.
(2) Estimated in accordance with Rule 457(h), solely for the purpose of
calculating the registration fee as follows: 400,000 shares are being
registered based upon an exercise price of $2.25 per share ($900,000 in
the aggregate), 5,000 shares are being registered at $2.50 per share
($12,500 in the aggregate), 701,000 shares are being registered at $3.50
per share ($2,453,500 in the aggregate), 400,000 shares are being
registered at a price of $4.00 per share ($1,600,000 in the aggregate),
150,000 shares are being registered at a price of $4.35 per share
($652,500 in the aggregate), 40,000 shares are being registered at $4.50
per share ($180,000 in the aggregate), 20,000 shares are being
registered at a price of $4.75 per share ($95,000 in the aggregate),
32,500 shares are being registered at a price of $5.00 per share
($162,500 in the aggregate), 20,000 shares are being registered at a
price of $5.625 per share ($112,500 in the aggregate), 10,000 shares are
being registered at a price of $6.00 per share ($60,000 in the
aggregate), 15,000 shares are being registered at a price of $7.22 per
share ($108,300 in the aggregate), and the remaining 1,950,000 shares
are being registered based upon the average of the bid and asked prices
of the common stock on the Nasdaq Stock Market of $7.875 per share on
April 12, 1999 ($15,356,250 in the aggregate).
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
The document(s) containing the information specified in Part I of Form
S-8 will be sent or given to option recipients specified by Rule 428(b)(1)
promulgated by the Securities and Exchange Commission (the "Commission") under
the Securities Act of 1933, as amended (the "Securities Act").
Such documents are not being filed with the Commission, but constitute
(along with the documents incorporated by reference into this Registration
Statement pursuant to Item 3 of Part II hereof) a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
The document(s) containing the information specified in Item 2 will be
sent or given to option recipients as specified in Rule 428(b)(1) and are not
required to be filed as part of this Registration Statement.
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<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents previously or concurrently filed by U.S.
Plastic Lumber Corp. ("USPL" or the "Company") with the Commission are hereby
incorporated by reference in this Registration Statement:
(i) The Company's Annual Report on Form 10-KSB for the fiscal
year ended December 31, 1998 (File No. 000-23855) filed
pursuant to Rule 13a-1 of the Securities Exchange Act of
1934, as amended (the "Exchange Act") and all amendments
thereto;
(ii) All other reports filed by the Company pursuant to Section
13(a) or 15(d) of the Exchange Act since the end of the
fiscal year covered by the Annual Report on Form 10-KSB
referred to in (i) above; and
(iii) The description of the Company's Common Stock, which is
incorporated by reference to the Company's Registration
Statement on Form 8-A (File No. 000-23855) filed with the
Commission on March 2, 1998 and all amendments or reports
filed for the purpose of updating such description.
All reports and other documents subsequently filed by the Company with
the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange
Act, after the date hereof, and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold, shall be deemed
incorporated by reference into this Registration Statement and to be a part
thereof from the date of the filing of such documents. Any statement contained
in the documents incorporated, or deemed to be incorporated, be reference herein
or therein shall be deemed to be modified or superseded for purposes of this
Registration Statement and the Prospectus to the extent that a statement
contained herein or therein or in any other subsequently filed document which
also is, or is deemed to be, incorporated by reference herein or therein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement and the Prospectus.
II-1
<PAGE> 4
The Company shall furnish without charge to each person to whom the
Prospectus is delivered, on the written or oral request of such person, a copy
of any or all of the documents incorporated by reference, other than exhibits to
such documents (unless such exhibits are specifically incorporated by reference
to the information that is incorporated). Requests should be directed to Bruce
C. Rosetto, Secretary of the Company, U.S. Plastic Lumber Corp., 2300 W. Glades
Road, Suite 440 W, Boca Raton, Florida 33431, telephone number (561) 394-3511.
All information appearing in this Registration Statement and the
Prospectus is qualified in its entirety by the detailed information, including
financial statements, appearing in the documents incorporated herein or therein
by reference.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Bruce C. Rosetto, Esquire, the Vice President, General Counsel and
Secretary of the Company, will render the opinion regarding the legality of the
stock to be issued pursuant to this registration statement. Mr. Rosetto will not
receive any additional compensation for rendering such opinion. Mr. Rosetto was
granted an option to purchase 150,000 shares of the Company's common stock as
part of his compensation as an employee of the Company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Articles of Incorporation limit liability of its officers
and directors to the full extent permitted by the Nevada Business Corporation
Act.
Sections 18.7502 and 78.751 of the Nevada Business Corporation Act
provides that each corporation:
(1) may indemnify any person who was or is a party or is threatened to
be made party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, except an
action by or in the right of the corporation, by reason of the fact that he is
or was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses, including attorneys' fees, judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in connection
with the action, suit or proceeding if he acted in good faith and in a manner
which he reasonably believed to be in or not opposed to the best interests of
the corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, does not, of itself create a
presumption that the person did
II-2
<PAGE> 5
not act in good faith and in a manner which he reasonably believed to be in or
not opposed to the best interests of the corporation, and that, with respect to
any criminal action or proceeding, he had reasonable cause to believe that his
conduct was unlawful; and
(2) may indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in
the right of the corporation to procure a judgment in its favor by reason of the
fact that he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses, including amounts paid in
settlement and attorneys' fees actually and reasonably incurred by him in
connection with the defense or settlement of the action or suit if he acted in
good faith and in a manner which he reasonably believed to be in or not opposed
to the best interests of the corporation. Indemnification may not be made for
any claim, issue or matter as to which such a person has been adjudged by a
court of competent jurisdiction, after exhaustion of all appeals therefrom, to
be liable to the corporation or for amounts paid in settlement to the
corporation, unless and only to the extent that the court in which the action or
suit was brought or other court of competent jurisdiction, determines upon
application that in view of all the circumstances of the case, the person is
fairly and reasonably entitled to indemnity for such expenses as the court deems
proper.
To the extent that a director, officer, employee or agent of a Nevada
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Sections 1 and 2 above, or in defense
of any claim, issue or matter therein, he must be indemnified by the corporation
against expenses, including attorneys' fees, actually and reasonably incurred by
him in connection with the defense.
Any indemnification under Sections 1 and 2, unless ordered by a court
or advanced as provided by the Nevada statute and the Company's articles of
incorporation, must be made by the corporation only as authorized in the
specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances. The determination
must be made:
(a) By the stockholders;
(b) By the board of directors by majority vote of a quorum
consisting of directors who were not parties to the action,
suit or proceeding;
(c) If a majority vote of a quorum consisting of directors who
were not parties to the action, suit or proceeding so orders,
by independent legal counsel, in a written opinion; or
(d) If a quorum consisting of directors who were not parties to
the action, suit or proceeding cannot be obtained, by
independent legal counsel in a written opinion.
The articles of incorporation, the bylaws or an agreement made by the
corporation may provide that the expenses of officers and directors incurred in
defending a civil or criminal action, suit or proceeding must be paid by the
corporation as they are incurred and in advance of the final disposition of the
action, suit or proceeding, upon receipt of an undertaking by or on behalf of
the
II-3
<PAGE> 6
director or officer to repay the amount if it is ultimately determined by a
court of competent jurisdiction that he is not entitled to be indemnified by the
corporation. The provisions of this Section do not affect any rights to
advancement of expenses to which corporate personnel other than director of
officers may be entitled under any contract or otherwise by law.
The indemnification and advancement of expenses authorized in or
ordered by a court: (a) does not exclude any other rights to which a person
seeking indemnification or advancement of expenses may be entitled under the
articles of incorporation or any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, for either an action in his official
capacity or an action in another capacity while holding his office, except that
indemnification, unless ordered by a court pursuant to subsection 2 or for the
advancement of expenses made pursuant to the requirements of the Nevada statute
and the Company's articles of incorporation, may not be made to or on behalf of
any director or officer if a final adjudication establishes that his acts or
omissions involved intentional misconduct, fraud or a knowing violation of the
law and was material to the cause of action, and (b) continues for a person who
has ceased to be a director, officer, employee or agent and inures to the
benefit of the heirs, executors and administrators of such a person.
The Company has obtained insurance to cover the Company's directors and
executive officers for liabilities which may be incurred in connection with the
offer, sale and registration of the Common Stock.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
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<PAGE> 7
ITEM 8. EXHIBITS.
The following exhibits are filed as part of this Registration Statement
or, where so indicated have been previously filed and are incorporated herein by
reference.
REGULATION S-B
EXHIBIT NUMBER DESCRIPTION
- -------------- -----------
4.1 Certificate of Incorporation of U.S. Plastic Lumber Corp.*
4.2 Bylaws of U.S. Plastic Lumber Corp.**
5 Opinion of Bruce C. Rosetto, Esquire regarding legality.
10.1 Form of Option Agreement.
10.2 1999 Employee Stock Option Plan.***
10.3 1999 Non-Employee Director Stock Option Plan.****
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Bruce C. Rosetto, Esquire (included in Exhibit 5).
24 Power of Attorney (included on the Signature Page).
- -----------------------------
* Incorporated hereby by reference to Exhibit 3.5 of the Company's
Registration Statement on Form SB-2 (File No. 333-22949) filed with the
Commission on March 7, 1997.
** Incorporated hereby by reference to Exhibit 3.6 of the Company's
Registration Statement on Form SB-2 (Registration No. 333-22949) filed
with the Commission on March 7, 1997.
*** Incorporated hereby by reference to Exhibit 10.36 of the Company's
Annual Report on Form 10-KSB (File No. 000-23855) for the fiscal year
ended December 31, 1998, filed with the Commission on March 30, 1999.
**** Incorporated hereby by reference to Exhibit 10.37 of the Company's
Annual Report on Form 10-KSB (File No. 000-23855) for the fiscal year
ended December 31, 1998 filed with the Commission on March 30, 1999.
II-5
<PAGE> 8
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
1. To file, during any period in which offers or sales
are being made, a post-effective amendment to this
Registration Statement:
(i) to include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) to reflect in the prospectus any facts or
events arising after the effective date of the
Registration Statement (or the most recent
post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change
in the information set forth in the Registration
Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered
(if the total dollar value of securities offered
would not exceed that which was registered) and any
deviation from the low or high end of the estimated
maximum offering range may be reflected in the form
of prospectus filed with the commission pursuant to
Rule 424(b) if, the aggregate, the changes in value
and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" Table in the
effective Registration Statement; and
(iii) to include any additional material information
on the plan of distribution not previously disclosed
in this Registration Statement or any material change
to such information in this Registration Statement.
2. That, for the purpose of determining any liability
under the Securities Act, each such post-effective
amendment shall be deemed to be a new registration
statement relating to the securities offered therein,
and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof.
3. To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
Provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) of this section do not apply if the
Registration Statement is on Form S-3, Form S-8 or
Form F-3 and the information required to be included
in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished
to the Commission by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated
II-6
<PAGE> 9
by reference in the Registration Statement.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities
Act, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act
of 1934, as amended (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the Registration Statement shall
be deemed to be a new registration statement to the securities
offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer
or controlling person in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the
final adjudication of such issue.
II-7
<PAGE> 10
SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and authorized this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Boca Raton, State of Florida on March 14, 1999.
U.S. PLASTIC LUMBER CORP.
Date: March 14, 1999 By: /s/ Mark S. Alsentzer
--------------------------------
Mark S. Alsentzer, Chairman, President,
Chief Executive Officer and
Director (Duly Authorized Officer)
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Mark S. Alsentzer or Bruce C. Rosetto,
his true and lawful attorney-in-fact and agent with full power of substitution
or resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments to this Registration Statement, and
to file the same, with all exhibits thereto, and other documentation in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or their substitute or substitutes, may lawfully do or cause to be done
by virtue hereof.
In accordance with the requirements of the Securities Act of 1933, this
registration statement was signed by the following persons in the capacities and
on the dates stated.
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SIGNATURE CAPACITY DATE
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/s/ Mark S. Alsentzer
- ---------------------------------- Chairman, President, Chief Executive Officer March 14, 1999
Mark S. Alsentzer and Director (Principal Executive and
Operating Officer)
/s/ Michael D. Schmidt
- ---------------------------------- Vice President - Finance March 14, 1999
Michael D. Schmidt (Chief Accounting Officer)
/s/ John Poling
- ---------------------------------- Chief Financial Officer March 14, 1999
John Poling (Principal Financial Officer)
/s/ Gary J. Ziegler
- --------------------------------- Director March 14, 1999
Gary J. Ziegler
/s/ Roger N. Zitrin
- --------------------------------- Director March 14, 1999
Roger N. Zitrin
/s/ Louis J. Paolino, Jr.
- --------------------------------- Director March 14, 1999
Louis J. Paolino, Jr.
/s/ August C. Schultes, III
- --------------------------------- Director March 14, 1999
August C. Schultes, III
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<PAGE> 11
EXHIBIT INDEX
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REGULATION S-B
EXHIBIT NUMBER DESCRIPTION
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4.1 Certificate of Incorporation of U.S. Plastic Lumber Corp.*
4.2 Bylaws of U.S. Plastic Lumber Corp.**
5 Opinion of Bruce C. Rosetto, Esquire regarding legality.
10.1 Form of Option Agreement.
10.2 1999 Employee Stock Option Plan.***
10.3 1999 Non-Employee Director Stock Option Plan.****
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Bruce C. Rosetto, Esquire (included in Exhibit 5).
24 Power of Attorney (included on the Signature Page).
</TABLE>
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* Incorporated hereby by reference to Exhibit 3.5 of the Company's
Registration Statement on Form SB-2 (File No. 333-22949) filed with the
Commission on March 7, 1997.
** Incorporated hereby by reference to Exhibit 3.6 of the Company's
Registration Statement on Form SB-2 (Registration No. 333-22949) filed
with the Commission on March 7, 1997.
*** Incorporated hereby by reference to Exhibit 10.36 of the Company's
Annual Report on Form 10-KSB (File No. 000-23855) for the fiscal year
ended December 31, 1998, filed with the Commission on March 30, 1999.
**** Incorporated hereby by reference to Exhibit 10.37 of the Company's
Annual Report on Form 10-KSB (File No. 000-23855) for the fiscal year
ended December 31, 1998 filed with the Commission on March 30, 1999.
<PAGE> 1
BRUCE C. ROSETTO
Attorney At Law
2300 Glades Road
Suite 440W
Boca Raton, FL. 33431
561-394-3511
561-394-5335 Telefax
April 13, 1999
U.S. Plastic Lumber Corp.
2300 W. Glades Road
Suite 440 W
Boca Raton, FL 33431
Gentlemen:
I have acted as counsel to U.S. Plastic Lumber Corp. (the
"Company") in connection with the preparation of the Registration
Statement on Form S-8 ("Registration Statement") to be filed by the
Company with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, relating to the offering of up to
3,743,500 shares of common stock, par value $.0001 per share ("Common
Stock"), by the Company pursuant to compensation arrangements with its
employees and important consultants. This opinion is furnished pursuant
to the requirements of Item 601(b)(5) of Regulation S-B.
In rendering this opinion, I have examined the following
documents: (i) the Company's Certificate of Incorporation and Bylaws,
as amended and restated since the inception of the Company, (ii)
resolutions adopted by the Board of Directors related to the option
awards; (iii) the Registration Statement (including all exhibits
thereto); and (iv) a certification from the Company's transfer agent. I
have assumed and relied, as to question of fact and mixed questions of
law and fact, on the truth, completeness, authenticity and due
authorization of all documents and records examined and the genuineness
of all signatures.
I have not made any independent investigation in rendering
this opinion other than the document examination described. My opinion
is therefore qualified in all respects by the scope of that document
examination. I make no representation as to the sufficiency of our
investigation for your purposes. This opinion is limited to the Nevada
Business Corporation Act. In rendering this opinion I have assumed (i)
compliance with all other laws, including federal laws, and (ii)
compliance with all Nevada securities and antitrust laws.
<PAGE> 2
U.S. Plastic Lumber Corp.
April 13, 1999
Page -2-
Based upon and subject to the foregoing, I am of the opinion
that:
The shares of Common Stock of the Company which are being
offered by the Company pursuant to the Registration Statement,
when sold in the manner and for the consideration contemplated
by the Registration Statement, will be legally issued, fully
paid and non-assessable.
This opinion is given as of the date hereof. I assume no
obligation to update or supplement this opinion to reflect any facts or
circumstances which may hereafter come to my attention or any changes
in laws which may hereafter occur.
This opinion is strictly limited to the matters stated herein
and no other or more extensive opinion is intended, implied or to be
inferred beyond the matters expressly stated herein.
I consent to the filing of this opinion as an exhibit to the
Registration Statement.
Sincerely,
/s/ Bruce C. Rosetto
-------------------------------
Bruce C. Rosetto, Esquire
<PAGE> 1
Exhibit 10.1
EMPLOYEE NON-QUALIFIED STOCK OPTION
To:
- --------------------------------------
ADDRESS
Date of Grant:
WHEREAS, ______________ (the "Optionee") is an employee of U.S. Plastic
Lumber Corp., a Nevada Corporation or any of it subsidiary companies (the
"Company");
WHEREAS, the execution of a Non-Qualified Stock Option Agreement in the
form hereof has been duly authorized by a resolution of the Board of Directors
(the "Board") of the Company duly adopted on March 10, 1999; and
WHEREAS, the granting of this Option is subject to shareholder approval
on or about May 5, 1999 at the Annual Meeting of the Company; and
NOW, THEREFORE, pursuant to the terms hereof, the Company hereby grants
to the Optionee an Option (the "Option") to purchase ____________ shares of the
Company's non-registered Common Stock, par value $0.0001 per share ("Common
Shares"), at the price of __________($ ) per share (the "Exercise Price"),
and agrees to cause certificates for any Common Shares purchased hereunder to be
delivered to the Optionee upon full payment of the Exercise Price, subject to
the applicable terms and conditions hereinafter set forth.
1. VESTING OF OPTIONS.
(a) Unless and until terminated as hereinafter provided, the Option shall
vest, 33 1/3% on a date one year from the date of grant of this Option ("Vesting
Date") and with respect to an additional 33 1/3% of the number of total shares
granted on each of the next two succeeding anniversaries of the Vesting Date;
provided however, that in the event the Optionee dies or becomes permanently
disabled while in the employ of the Company, the Options shall automatically
fully vest. To the extent that the Option shall have so become exercisable, it
may be exercised in whole or in part from time to time.
(b) Upon the occurrence of a change in control of U.S. Plastic Lumber
Corporation (as defined in the Plan) outstanding options will be, immediately
exercisable in full. Following a change in control, unless waived in advance of
such change in control by the Committee, and optionee may require it U.S.
Plastic Lumber Corporation or its successor to pay a cash amount in cancellation
of the option equal to the fair market of the shares of Common Stock covered by
the option reduced by the aggregate exercise price. Under the Plan, a change in
control is deemed to occur (i) if any person, other than Stout Partnership,
shall acquire direct or indirect beneficial ownership of more than 40% of the
total combined voting power with respect to the election of directors of the
issued and
<PAGE> 2
outstanding stock of USPL (except that no Change in Control shall be deemed to
have occurred if the persons who are stockholders of USPL immediately before
such acquisition own all or substantially all of the voting stock or other
interests of such person immediately after such transaction), or (ii) have the
power (whether as result of stock ownership, revocable or irrevocable proxies,
contract or otherwise) or ability to elect or cause the election of directors
consisting at the time of such election of the majority of the Board. A "person"
for this purpose shall mean any person, corporation, partnership, joint venture
or other entity or any group (as such term is defined for purposes of Section
13(d) of the Exchange Act) and a person shall be deemed to be a beneficial owner
as that term is used in Rule 13d-3 under the Exchange Act. The amount payable
under this Section 10(d) shall be remitted by USPL in cash or by certified or
bank check, reduced by applicable tax withholding.
2. PAYMENT OF EXERCISE PRICE. An Option that is exercisable hereunder
may be exercised by delivery to USPL on any business day, at its principal
office, addressed to the attention of the Vice President and General Counsel, of
written notice of exercise, which notice shall specify the number of shares with
respect to which the Option is being exercised, and shall be accompanied by
payment in full of the Option Price of the shares for which the Option is being
exercised, except as provided below. The minimum number of shares of Stock with
respect to which an Option may be exercised, in whole or in part, at any time
shall be the lesser of 100 shares or the maximum number of shares available for
purchase under the Option the time of exercise.
Payment of the Option Price for the shares of Stock purchased pursuant
to the exercise of an Option shall be made (i) in cash or in cash equivalents;
(ii) through the tender to USPL of shares of Stock, which shares shall be
valued, for purposes of determining the extent to which the Option Price has
been paid thereby, at their fair market value (determined in the manner
described in the Plan) on the date of exercise; (iii) by delivering a written
direction to USPL that the Option be exercised pursuant to a "cashless"
exercise/sale procedure (pursuant to which funds to pay for exercise of the
Option are delivered to USPL by a broker upon receipt of stock certificates from
USPL) or a cashless exercise/loan procedure (pursuant to which the Optionees
would obtain a margin loan from a broker to fund the exercise) through a
licensed broker acceptable to USPL whereby the stock certificate or certificates
for the shares of Stock for which the Option is exercised will be delivered to
such broker as the agent for the individual exercising the Option and the broker
will deliver to USPL cash (or cash equivalent acceptable to USPL) equal to the
Option Price for the shares of Stock purchased pursuant to the exercise of the
Option plus the amount (if any) of federal and other taxes that USPL, may, in
its sole judgment, be required to withhold with respect to the exercise of the
Option; (iv) to the extent permitted by applicable law and under the terms of
the Option Agreement with respect to such Option, by the delivery of a
promissory note of the Optionee to USPL on such terms as shall be set out in
such Option Agreement and as shall be acceptable to the Company in its sole
discretion; or (v) by combination of methods described in (i), (ii), (iii) and
(iv). Payment in full of the Option Price need not accompany the written notice
of exercise if the Option is exercised pursuant to the cashless exercise/sale
procedure described above. An attempt to exercise any Option
<PAGE> 3
granted hereunder other than as set forth above shall be invalid and of no force
and effect. Promptly after the exercise of an Option, the individual exercising
the Option shall be entitled to the issuance of the Stock certificate or
certificates evidencing his ownership of such shares. A separate Stock
certificate or certificates shall be issued for any shares purchased pursuant to
the exercise of an Option that is intended to be an Incentive Stock Option,
which certificate or certificates shall not include any shares purchased
pursuant to the exercise of an Option that is not an Incentive Stock Option. An
individual holding or exercising an Option shall have none of the rights of a
shareholder until the shares of Stock covered thereby are fully paid and issued
to him and, except as provided in Section 18 below, no adjustment shall be made
for dividends or other rights for which the record date is prior to the date of
such issuance.
Nonforfeitable, nonrestricted shares of Common Stock that are
transferred by the Optionee in payment of all or any part of the Exercise Price
shall be valued on the basis of their fair market value of Common Stock of the
Company on the date of delivery of such certificates to the Company, accompanied
by an assignment of stock to the Company. Any assignment of stock shall be in a
form and substance satisfactory to the Secretary of the Company, including
guarantees of signature(s) and payment of all transfer taxes if he deems such
necessary or desirable. The requirement of payment in cash shall be deemed
satisfied if the Optionee shall have made arrangements satisfactory to the
Company with a broker that is a member of the National Association of Securities
Dealers, Inc. to sell a sufficient number of the Common Shares, which are being
purchased pursuant to the exercise, so that the net proceeds of the sale
transaction will at least equal the aggregate Exercise Price, plus interest at
the Applicable Federal Rate (as that term is defined in Section 1274 of the
Code) for the period from the date of exercise to the date of payment, and
pursuant to which the broker undertakes to deliver the aggregate Exercise Price,
plus such interest, to the Company not later than the date on which the sale
transaction will settle in the ordinary course of business.
3. TERMINATION OF OPTION. The Option shall terminate on the earliest of
the following dates:
(a) Thirty (30) days after the Optionee ceases to be an employee of the
Company for any reason other than death or permanent disability;
(b) Twelve months after the death, or termination of Optionee's
employment by reason of his becoming permanent disabled within the meaning of
Section 22(e)(3) of the Internal Revenue Code of 1986, if the Optionee dies or
becomes permanently disabled while an employee of the Company. Your executor,
administrator, guardian or custodian must present proof of his authority
satisfactory to the Company prior to being allowed to exercise this option; or
(c) Ten years from the Date of Grant.
In the event that the Optionee commits an act that the Compensation
Committee of the Board of Directors of the Company ("Committee") acting in good
faith determines
<PAGE> 4
to have been intentionally committed and materially adverse to the interests of
the Company, the Option shall terminate as of the time of the commission of that
act, notwithstanding any other provision of this Agreement.
After the date your employment status terminates for any reason, this
option may be exercised only for the number of shares which you had a right to
purchase on the date your employment ceased.
4. COMPLIANCE WITH LAW. The Company shall make reasonable efforts to
comply with all applicable federal and state securities laws; provided, however,
notwithstanding any other provision of this Agreement, the Option shall not be
exercisable if the exercise thereof would result in a violation of any such law.
5. TRANSFERABILITY AND EXERCISABILITY. Neither the Option nor any
interest therein may be transferred by the Optionee, except by will or the laws
of descent and distribution, or as otherwise set forth herein. The Option may
not be exercised during the lifetime of the Optionee except by the Optionee or,
in the event of his legal incapacity, by his guardian or legal representative
acting on behalf of the Optionee in a fiduciary capacity under state law and
court supervision. Non-Qualified Stock Options granted under the Plan may be
transferred only by gift or qualified domestic relations order to a family
member (as defined below) of a director of the Company. The term "family member"
includes any child, stepchild, grandchild, parent, step parent, grandparent,
spouse, former spouse, sibling, niece, nephew, mother-in-law, father-in-law,
son-in-law, daughter-in-law, brother-in-law, or sister-in-law, including
adoptive relationships, any person sharing the employee's household (other than
a tenant or employee), a trust which these persons have more than 50 percent of
the beneficial interest, a foundation which these persons (or the employee)
control management of assets, and any other entity in which these persons (or
the employee) own more than 50 percent of the voting interest.
Until the option price has been paid in full pursuant to due exercise
of this option and the purchase shares are delivered to you, you do not have any
rights as a stockholder of the Company. The Company reserves the right not to
deliver to you the shares purchased by virtue of exercise of this option during
any period of time in which the Company deems, in its sole discretion, that such
delivery would violate a federal, state, local or securities exchange rule,
regulation or law.
6. ADJUSTMENTS. The Committee may make such adjustments in the Exercise
Price and the number and kind of shares of stock or other securities covered by
the Option as the Committee may in good faith determine to be equitably required
in order to prevent any dilution or expansion of the Optionee's rights under
this Agreement that otherwise would result from any (a) stock dividend, stock
split, combination of shares, recapitalization or other change in the capital
structure of the Company, (b) merger, consolidation, spin-off, reorganization or
partial or effect similar to any of the foregoing.
7. WITHHOLDING TAXES. If the Company shall be required to withhold any
federal, state, local or foreign tax in connection with an exercise of the
Option, the Optionee shall
<PAGE> 5
pay the tax or make provisions that are satisfactory to the Company for the
payment thereof.
8. RIGHT TO TERMINATE EMPLOYMENT AND ADJUST COMPENSATION. No provision
of this Agreement shall limit in any way whatsoever any right that the Company
may otherwise have to terminate the employment or adjust compensation of the
Optionee at any time.
9. CONDITIONS PRECEDENT TO EXERCISABILITY OF OPTION. Notwithstanding
anything to the contrary contained herein, this option is not exercisable until
all the following events occur and during the following periods of time:
(a) Until the Plan is approved by the stockholders of the Company in
the manner prescribed by the Code and the regulations thereunder;
or
(b) Until this option and the optioned shares are approved and/or
registered with such federal, state and local regulatory bodies
or agencies and securities exchanges as the Company may deem
necessary or desirable; or
(c) During any period of time in which the Company deems that the
exercisability of this option, the offer to sell the shares
optioned hereunder, or the sale thereof, may violate a federal,
state, local or securities exchange rule, regulation or law, or
may cause the Company to be legally obligated to issue or sell
more shares than the Company is legally entitled to issue or
sell.
The following two paragraphs shall be applicable if, on the date of
exercise of this option, the Common Stock to be purchased pursuant to such
exercise has not been registered under the Securities Act of 1933, as amended,
and under applicable state securities laws, and shall continue to be applicable
for so long as such registration has not occurred:
(a) The Optionee hereby agrees, warrants and represents that he will
acquire the Common Stock to be issued hereunder for his own
account for investment purposes only, and not with a view to, or
in connection with, any resale or other distribution of any of
such shares, except as hereafter permitted. The Optionee further
agrees that he will not at any time make any offer, sale,
transfer pledge or other disposition of such Common Stock to be
issued hereunder without an effective registration statement
under the Securities Act of 1933, as amended, and under any
applicable state securities laws or an opinion of counsel
acceptable to the Company to the effect that the proposed
transaction will be exempt from such registration. The Optionee
shall execute such instruments, representations, acknowledgements
and agreements as the Company may, in its sole discretion, deem
advisable to avoid any violation of federal, state, local, or
securities exchange rule, regulation or law.
<PAGE> 6
(b) The certificates for Common Stock to be issued to the Optionee
hereunder shall bear the following legend:
"The shares represented by this certificate have not been registered under
the Securities Act of 1933, as amended, or under applicable state securities
laws. The shares have been acquired for investment and may not be offered, sold,
transferred, pledged or otherwise disposed of without an effective registration
statement under the Securities Act of 1933, as amended, and under any applicable
state securities laws or an opinion of counsel acceptable to the Company that
the proposed transaction will be exempt from such registration."
The foregoing legend shall be removed upon registration of the legended
shares under the Securities Act of 1933, as amended, and under any applicable
state laws or upon receipt of an opinion of counsel acceptable to the Company
that said registration is no longer required.
The sole purpose of the agreements, warranties, representations and
legend set forth in the two immediately preceding paragraphs is to prevent
violations of the Securities Act of 1933, as amended, and any applicable state
securities laws.
10. ARBITRATION. Any dispute or disagreement between you and the
Company with respect to any portion of this option or its validity,
construction, meaning, performance or your rights hereunder shall be settled by
arbitration you will attempt to resolve any disputes or disagreements with the
Company over this option amicably and informally, in good faith, for a period
not to exceed two weeks. Thereafter, the dispute or disagreement will be
submitted to arbitration. At any time prior to a decision from the arbitrator(s)
being rendered, you and the Company may resolve the dispute by settlement. You
and the Company shall share equally the costs charged by the American
Arbitration Association or its successor, but you and the Company shall
otherwise be solely responsible for your own respective counsel fees and
expenses. The decision of the arbitrator(s) shall be made in writing, setting
forth the award, the reasons for the decision and award and shall be binding and
conclusive on you and the Company. Further, neither you nor the Company shall
appeal any such award. Judgment of a court of competent jurisdiction may be
entered upon the award and may be enforced as such pursuant to the provisions of
the award.
11. MISCELLANEOUS.
This option shall not be an "incentive stock option" as that term is
used in Section 422 of the Code and the regulations thereunder.
This option shall be subject to the terms set forth herein and in any
resolution approving the grant, which resolution is hereby incorporated herein
by referenced and made a part hereof.
<PAGE> 7
This option constitutes the entire understanding between the Company
and you with respect to the subject matter hereof and no amendment, modification
or waiver of this option, in whole or in part, shall be binding upon the Company
unless in writing and signed by the President of the Company.
In the event that one or more provisions of this Agreement shall be
invalidated for any reason by a court of competent jurisdiction, any provision
so invalidated shall be deemed to be separable from the other provisions hereof,
and the remaining provisions hereof, continue to be valid and fully enforceable.
This option and the performance of the parties hereunder shall be
construed in accordance with and governed by the laws of the State of Nevada.
Please sign the copy of this option and return it to the Company's
Secretary, thereby indicating your understanding of and agreement with its terms
and conditions.
U.S. Plastic Lumber Corporation
By:___________________________
Bruce C. Rosetto
Vice President and General Counsel
I hereby acknowledge receipt of a copy of the foregoing stock option and, having
read it hereby signify my understanding of, and my agreement with, its terms and
conditions.
- --------------------------- ---------------------------------
Date
<PAGE> 1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
U.S. Plastic Lumber Corp.
Boca Raton, Florida
As independent certified accountants, we hereby consent to the
incorporation by reference in this Registration Statement on Form S-8 of our
report, dated February 19, 1999, included in U.S. Plastic Lumber Corporation's
Form 10-KSB for the year ended December 31, 1998 and to all references to our
Firm included in this Registration Statement.
/s/ Arthur Andersen LLP
-----------------------
ARTHUR ANDERSEN LLP
Miami, Florida
April 14, 1999
