As filed with the Securities Exchange Registration No.
Commission on May 4, 1995
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
AND POST-EFFECTIVE AMENDMENT NO. 3 TO
FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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PLYMOUTH RUBBER COMPANY, INC.
(Exact Name of Registrant as Specified in Its Charter)
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Massachusetts 04-1733970
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
104 Revere Street, Canton, MA 02021
(617) 828-0220
(Address of registrant's Principal Executive Offices)
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1995 Non-Employee Director Stock Option Plan
1995 Employee Incentive Stock Option Plan
(Full Title of the Plans)
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DUANE E. WHEELER, VICE PRESIDENT, FINANCE
Plymouth Rubber Co., Inc.
104 Revere Street, Canton, MA 02021
(617) 828-0220
(Name, Address and Telephone number of Agent For Service)
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Copies to:
PAUL BORK, ESQUIRE
FRIEDMAN & ATHERTON
Exchange Place, 53 State Street, 27th Floor, Boston, MA 02109
(617) 227-5540
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This Registration Statement on Form S-8 and this Post-Effective Amendment to
Registration Statements No. 33-60768 and 33-76126 on Form S-8 consists of 58
pages (including exhibits). The index to exhibits is set forth on
sequentially numbered Page 7.
C A L C U L A T I O N O F R E G I S T R A T I O N F E E
Proposed Proposed
Amount Maximum Maximum
Title of Each Class to be Offering Aggregate Amount
of Securities to be Registered Price Per Offering Registration
Registered (Shares)(1) Share (2) Price (2) fee
Class B Common Stock 270,000 $8.125 2,193,750 $756.50
$1.00 par value
(1) This Registration Statement also covers such indeterminable number of
additional shares of Common Stock as may become deliverable as a result
of stock splits, stock dividends or similar transactions in accordance
with the provisions of the Plans.
(2) Determined on the basis of the average of the high and low sales prices
of the Class B Common Stock reported in the American Stock Exchange,
Inc. quotations for the last known sale on April 4, 1995, solely for the
purposes of calculating the registration fee, in accordance with Rule
457 (c) under the Securities Act of 1933.
This Registration Statement will become effective automatically upon the
date of filing, pursuant to the provisions of Section 8 of the Securities Act
of 1933 and Rule 462 enacted thereunder, or such other day as the Commission
acting pursuant to said Section 8 may determine.
The approximate date of proposed sale to the public and cross reference
sheet called for by Items 501(a) and (b) of Regulation S-K are not applicable
and have been omitted.
E X P L A N A T O R Y N O T E
This Registration Statement on Form S-8 covers the registration of
270,000 shares of Class B Common Stock issued or to be issued pursuant to the
Company's 1995 Non-Employee Director Stock Option Plan and the Company's 1995
Employee Incentive Stock Option Plan (collectively, the "1995" Plans").
The Reoffer Prospectus included as part of this Registration Statement
also covers the reoffer and sale of shares of Class B Common Stock issued
under the Company's 1982 Employee Incentive Option Plan (the "1982 Plan") and
the Company's 1992 Employee Incentive Stock Option Plan (the 1992 Plan")
previously registered on Registration Statements of Form S-8 Nos. 33-60768
and 33-76126. To the extent necessary, this Registration Statement may be
deemed to be a Post Effective Amendment to Registration Nos. 33-60768 and 33-
76126.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
PART I
Pursuant to the instructions in Part I of Form S-8, the
information required by Item 1, Plan Information, and Item 2,
Registrant Information and Employee Plan Annual Information, of
Form S-8 has not been filed as part of this Registration Statement.
PART II
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Company with the
Securities and Exchange Commission pursuant to the Securities
Exchange Act of 1934 (the "Exchange Act") are incorporated by
reference in this Registration Statement:
(a) The Company's Annual Report on Form 10-K for the year
ended December 2, 1994;
(b) The Company's Quarterly Report on Form 10-Q for the
quarterly period ended March 3, 1995;
(c) The description of the Company's Common Stock included in
the Company's registration thereof under Section 12 of the Exchange
Act, including all amendments and reports amending such
description.
In addition, all documents 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 of this Registration Statement 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 to
be incorporated by reference in this Registration Statement and to
be a part hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this Registration Statement
to the extent that a statement contained therein or in any other
subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not
be deemed, except as so modified or superseded, to constitute part
of this Registration Statement.
1
The financial statements of the Company included in the
Company's Annual Report on Form 10-K for the fiscal year ended
December 2, 1994, have been audited by Price Waterhouse LLP,
independent auditors, as set forth in their report included therein
and incorporated herein by reference. Such financial statements
are, and audited financial statements to be included in
subsequently filed documents will be, incorporated herein by
reference in reliance upon the reports of Price Waterhouse LLP
pertaining to such financial statements (to the extent covered by
consents filed with the Securities and Exchange Commission) given
upon the authority of such firm as experts in auditing and
accounting.
Item 4. Description of Securities.
See Item 3(c) herein.
Item 5. Interests of Named Experts and Counsel.
To the best knowledge of the Registrant no expert or
counsel named herein or in the Information Statement delivered
pursuant to the requirements of Part I of the Registration
Statement has any substantial interest, direct or indirect, in any
matter connected with this Registration Statement and the
preparation and filing thereof.
Item 6. Indemnification of Officers and Directors.
Consistent with applicable provisions of the Massachusetts
Business Corporation Law, the Company's By-Laws provide that the
Company's directors and officers may be indemnified by the Company
from and against any claims, liabilities and expenses to which they
may become subject by reason of being an officer or director,
except with respect to any matter as to which such officer shall
have been adjudicated by a court of competent jurisdiction not to
have acted in good faith in the reasonable belief that his or her
action was in the best interests of the Company. The Company has
purchased and maintains insurance coverage under a policy insuring
directors and officers of the Company against certain liabilities
which they may incur as directors or officers of the Company, which
may include coverage for liabilities arising under the Securities
Act of 1933.
Item 7. Exemption From Registration Claimed.
Not applicable
2
Item 8. Exhibits.
Following is a list of all applicable exhibits filed with
this Registration Statement pursuant to the requirements of Item
601 of Regulation S-K:
4.1 Restated Articles of Organization - incorporated by
reference to Exhibit 3(i) to the Company's Annual Report
on Form 10-K for the year ended December 2, 1994.
4.2 Copy of the Company's By-Laws - incorporated by reference
to Exhibit 3(ii) to the Company's Annual Report on Form
10-K for the year ended November 26, 1993.
4.3 Copy of the Registrant's 1995 Non-Employee Director Stock
Option Plan.
4.4 Copy of the Registrant's 1995 Employee Incentive Stock
Option Plan.
4.5 Copy of Option Forms.
5. Opinion of Friedman & Atherton.
24.1 Consent of Friedman & Atherton - reference is made to
Exhibit 5.
24.2 Consent of Price Waterhouse LLP.
25.1 Power of Attorney (included in signature page hereto).
Item 9. Undertakings.
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 of 1933;
(ii) To reflect in the prospectus (as defined in Part I
of Form S-8) 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;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
3
Provided, however, that clauses (1)(i) and (1)(ii)
paragraph (1) do not apply to this registration statement on Form
S-8 because the information required to be included in a post-
effective amendment by those paragraphs is contained in periodic
reports filed by the registrant pursuant to section 13 or section
15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in this registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, 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.
The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of
1933, each filing of the registrant's annual report pursuant to
section 13(a) or 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
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.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
the registrant or expenses incurred or paid by a director, officer
or controlling person of the registrant 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 Act and will be governed by the final adjudication of such
issue.
4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the registration certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-
8 and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Boston, Commonwealth of Massachusetts, on the 20th day of
April, 1995.
PLYMOUTH RUBBER COMPANY, INC.
By: Maurice J. Hamilburg
Maurice J. Hamilburg, President
POWER OF ATTORNEY
Each of the undersigned officers and directors of Plymouth
Rubber Company, Inc. hereby constitutes and appoints Maurice J.
Hamilburg, Deborah K. Wizel, Esq. and Paul Bork, Esq., and each of
them singly, his or her true and lawful attorneys or attorney-in-
fact and agent, with full power of substitution and resubstitution,
for each of the undersigned and in each of their name, place and
stead, in any and all capacities, to sign any and all amendment
thereto (including post-effective amendments) to this Registration
Statement and all documents relating thereto and to file the same,
with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission. Each of
said attorney-in-fact shall have full power and authority to do and
perform each and every act and thing necessary or advisable to be
done in and about the premises, as fully and to all intents and
purposes as each of the undersigned might or could do in person,
hereby ratifying and confirming all that each said attorney-in-fact
and agent, or his substitutes, may lawfully do or cause to be done
by virtue hereof, and ratifying and confirming our signatures as
they may be signed by each attorney-in-fact and agent, or his
substitutes, to this Registration Statement and any and all
amendments thereto.
5
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in
the capacity and on the dates indicated.
Signature Title Date
Maurice J. Hamilburg President, Director and 4/20/95
Maurice J. Hamilburg Chief Executive Officer
Duane E. Wheeler Vice President, Finance, 4/20/95
Duane E. Wheeler Treasurer, Chief Financial
Officer and Chief Accounting
Officer
Joseph D. Hamilburg Director 4/20/95
Joseph D. Hamilburg
Jane H. Guy Director 4/20/95
Jane H. Guy
Melvin L. Keating Director 4/20/95
Melvin L. Keating
Susan Y. Friedman Director 4/20/95
Susan Y. Friedman
6
I N D E X T O E X H I B I T S
Exhibit If not filed herewith,
No. Description of Document incorporated by reference to
4.1 Restated Articles of Exhibit 3(i) to the
Organization Company's Annual
Report on Form 10-K
for the fiscal year
end December 2,
1994.
4.2 Company's By-Laws Copy of the
Company's By-Laws -
incorporated by
reference to Exhibit
3(ii) to the
Company's Annual
Report on Form 10-K
for the year ended
November 26, 1993.
4.3 Copy of the Company's 1995 Filed herewith
Non-Employee Director Stock
Option Plan.
4.4 Copy of the Company's 1995 Filed herewith
Employee Incentive Stock
Option Plan.
4.5 Copy of Option Forms Filed herewith
5. Opinion of Friedman & Atherton Filed herewith
24.1 Consent of Friedman & Atherton Exhibit 5 herein
24.2 Consent of Price Waterhouse LLP Filed herewith
25.1 Power of Attorney Filed herewith
(included in signature page)
7
R E O F F E R P R O S P E C T U S
618,000 Shares
(Less Shares already exercised and sold, if any)
PLYMOUTH RUBBER COMPANY, INC.
Class B Common Stock
Par Value $1.00 per share
This Prospectus relates to an aggregate of 618,000 shares of
Class B Common Stock, par value $1.00 per share (the "Common
Stock"), of Plymouth Rubber Company, Inc., a Massachusetts
corporation (the "Company"), which may be offered by the persons
named under "Selling Shareholders" herein. The Selling
Shareholders may sell these shares at the prices existing from time
to time on the American Stock Exchange, Inc. All expenses incurred
in connection with their offering are being borne by the Company
other than applicable broker's commissions. See "Selling
Shareholder" herein for information concerning the Selling
Shareholders.
The Common Stock of the Company is traded on the American
Stock Exchange, Inc. ("AMEX"). On April 4, 1995, the last known
sale reported prior to this Reoffer Prospectus, the closing price
of the Company's Common Stock, as reported by AMEX was $8.125 per
share.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION OF THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is May 1, 1995.
AVAILABLE INFORMATION
The Company is subject to the information requirements of the
Securities Exchange Act of 1934, and in accordance therewith, files
reports and other information with the Securities and Exchange
Commission (the "Commission"). Reports and other information filed
by the Company can be inspected and copied at the public reference
facilities maintained by the Commission at Judiciary Plaza, 450
Fifth Street, N.W., Washington, D.C. 20549 and at the following
Regional Offices of the Commission: (i) New York Regional Office,
75 Park Plaza, 14th Floor, New York, New York, 10007; and (ii)
Chicago Regional Office, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60606; and copies of such material can be
obtained form the Public Reference Section of the Commission,
Washington, D.C. 20549 at prescribed rates. In addition, the
Company's securities are traded on the American Stock Exchange,
Inc. and reports and other information concerning the Company can
be inspected at 86 Trinity Place, New York, New York 10006-1881.
Certain documents field by the Company with the Commission
have been incorporated in this Prospectus by reference. See
Section entitled "Incorporation of Certain Information by
Reference." Upon either written or oral request, copies of all
documents incorporated by reference herein (other than exhibits to
such documents unless such exhibits are specifically incorporated
by reference into the document that the Prospectus incorporates)
will be provided without charge to each person, including any
beneficial owner, to whom this Prospectus is delivered. All such
requests should be directed to General Counsel, Plymouth Rubber
Company, Inc., 104 Revere Street, Canton, Massachusetts 02021,
Telephone Number (617) 828-0220.
THE COMPANY
The Company manufactures and supplies rubber and vinyl
products to a broad range of markets, including the electrical
supply industry, electric utilities, automotive, and Original
Equipment Manufacturing. The Company's principal executive offices
are located at 104 Revere Street, Canton, Massachusetts 02021, and
its telephone number is (617) 828-0220.
SELLING SHAREHOLDERS
This Prospectus relates to:
(a) the offering by affiliates of the Company (and individuals
who may hereafter become affiliates of the Company) of control
securities acquired or hereafter acquired under the Company's 1982
Employee Incentive Stock Option Plan (the "1982 Plan") and 1992
Employee Incentive Stock Option Plan (the 1992 Plan"); and the
Company's 1995 Non-Employee Director Stock Option Plan (the "1995
Director Plan"); and 1995 Employee Incentive Stock Option Plan (the
"1995 Plan").
(b) the offering of the individuals listed in the table below
of restricted securities acquired by such individuals upon the
exercise of stock options granted under the 1982 Plan, the 1992
Plan, the 1995 Director Plan, and the 1995 Plan.
The following table sets forth the name of each Selling
Shareholder, the nature of any position, office, or other material
relationship which the Selling Shareholder has had within the past
three years with the Company or any of its predecessors or
affiliates, the amount of Common Stock owned by such Selling
Shareholder prior to the offering, the amount to be offered for the
Selling Shareholder's account, the amount and (if one percent of
more) the percentage of the Common Stock to be owned by such
security holder after completion of the offering.
Percentage
Common Stock Number of Owner after
Selling Owner Prior Class B Shares Completion
Shareholder to Offering Being Offered of Offering
Class A Class B Class A Class B
Maurice J.
Hamilburg 1 485,464 363,178 75,000 59.8% 43.3%
Alan I.
Eisenberg 2 ------- 51,000 51,000 ----- 0%
Sheldon S.
Leppo 3 ------- 38,800 38,800 ----- 0%
Duane E.
Wheeler 4 ------- 25,000 25,000 ----- 0%
Fiore D.
DiGiovine 5 ------- 10,000 10,000 ----- 0%
Joseph D.
Hamilburg 6 472,698 340,183 15,000 58.3% 40.5%
1 Maurice J. Hamilburg has been the President and Chief Executive
Officer of the Company since 1987. Mr. Hamilburg is a member of the
Company's Executive and Compensation Committees. Mr. Hamilburg's beneficial
ownership of shares relate to several capacities: as a Trustee of the Plymouth
Rubber Company, Inc. Voting Trust, as trustee of various testamentary and other
trusts and directly. In many of the trust arrangements, Mr. Hamilburg acts as
a co-trustee with his mother, his brother or his sister.
2 Alan I. Eisenberg has been the Vice President of Sales and Marketing
of the Company since 1988.
3 Sheldon S. Leppo has been the Vice President of Research and
Development of the Company since 1970.
4 Duane E. Wheeler has been the Vice President of Finance since 1980.
5 Fiore D. DiGiovine has been a Vice President of the Company since 1976.
6 Joseph D. Hamilburg is the brother of Maurice J. Hamilburg and Jane H.
Guy. He has served as a Director of the Company since 1974. He is a member
of the Company's Executive and Audit Committees. His beneficial ownership of
shares relate to several capacities: as a Trustee of the Plymouth Rubber
Company, Inc. Voting Trust, as trustee of various testamentary and other
trusts and directly. In many of the trust arrangements, he acts as a co-
trustee with his mother, brother or his sister.
Percentage
Common Stock Number of Owner after
Selling Owner Prior Class B Shares Completion
Shareholder to Offering Being Offered of Offering
Class A Class B Class A Class B
Susan Y.
Friedman 7 200 15,000 15,000 ----- 0%
Jane H.
Guy 8 279,351 208,915 15,000 34.5% 24.9%
Melvin L.
Keating 9 ------- 15,000 15,000 ----- 0%
This Registration Statement also covers such indeterminable
number of additional shares of Common Stock as may become
deliverable as a result of stock splits, stock dividends or similar
transactions in accordance with the provisions of all of the Plans.
7 Susan Y. Friedman has been a director of the Company since 1993 and
serves on the Audit and Compensation Committees.
8 Jane H. Guy is the sister of Maurice J. Hamilburg and Joseph D.
Hamilburg. She has been a director of the Company since 1989. She is a
member of the Company's Executive Committee. Ms. Guy's beneficial ownership
of shares relate to several capacities: as a beneficiary of various testa-
mentary and other trusts and directly.
9 Melvin L. Keating has been a director of the Company since 1989. He
is a member of the Company's Audit and Compensation Committees.
EXPERTS
The financial statements of the Company included in the
Company's Annual Report on Form 10-K for the fiscal year ended
December 2, 1994 have been audited by Price Waterhouse LLP,
independent auditors, as set forth in their report included therein
and incorporated herein by reference. Such financial statements
are, and audited financial statements to be included in
subsequently filed documents will be, incorporated herein by
reference in reliance upon the reports of Price Waterhouse LLP
pertaining to such financial statements (to the extent covered by
consents filed with the Commission) given upon the authority of
such firm as experts in auditing and accounting.
LEGAL OPINION
Certain legal matters in connection with the offering of the shares
of Common Stock of the Company are being passed upon for the
Company by Friedman & Atherton, Exchange Place, 53 State Street,
Boston, Massachusetts 02109. Joel A. Kozol, Esq., a partner of
Friedman & Atherton, is Clerk of the Company.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission are hereby
incorporated by reference:
(a) The Annual Report of the Company on Form 10-K for the
year ended December 2, 1994; and
(b) Description of the Company's Common Stock included in the
Company's registration thereof under Section 12 of the Securities
Exchange Act of 1934, including all amendments and reports amending
such description.
(c) The Company's Quarterly Report on Form 10-Q for the
quarterly period ended March 3, 1995.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, 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 to be incorporated by reference herein and to be a part
hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not
be deemed, except as so modified or superseded, to constitute part
of this Prospectus.
Exhibit 4.3
1995 NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
OF
PLYMOUTH RUBBER COMPANY, INC.
1. Purpose. The purpose of the 1995 Non-Employee Directors'
Stock Option Plan (the "Plan") of Plymouth Rubber Company, Inc., a
Massachusetts corporation (the "Company") is to secure for the
Company and its stockholders the benefits of incentive inherent in
increased common stock ownership by the members of the Board of
Directors of the Company (the "Board") who are not employees or
officers of the Company or of any of its subsidiaries (the "Non-
Employee Directors").
2. Effective Date; Termination of Plan. This Plan shall
become effective after it has been adopted by the Board and
approved by the stockholders of the Company (the "Stockholders");
provided, however, that all grants of options under this Plan prior
to the approval of the Plan by the Stockholders at the 1995 Annual
Meeting of the Stockholders of the Company shall be subject to such
approval.
This Plan shall terminate upon the earliest to occur of (i)
ten (10) years after the date the Board adopts the Plan, (ii) the
date that all shares of Class B Stock (as defined below) which may
be issued under this Plan have been issued through the exercise of
options granted under this Plan, and (iii) such time as the Board
may determine.
3. Shares Subject to the Plan. The maximum number of shares
which may be issued through the exercise of options granted under
this Plan shall be one hundred twenty thousand (120,000) shares of
the Class B common stock of the Company, $1.00 par value (the
"Class B Stock"), subject to adjustment as provided in Section 7
below. The shares may be set aside out of the authorized but
unissued shares of Class B Stock not reserved for any other purpose
or out of shares of Class B Stock held in or acquired for the
treasury of the Company. Shares of Class B Stock subject to an
option granted under the Plan which for any reason is cancelled or
terminates unexercised shall again be subject to an option and
available for issuance pursuant to the terms of this Plan.
4. Formula Grant of Options. (a) Subject to the
approval of this Plan by the Stockholders as provided in Section 2
hereof, an option for fifteen thousand (15,000) shares of Class B
Stock shall be automatically granted under this Plan to each person
who is (i) newly elected a Non-Employee Director at the Annual
Meeting of the Stockholders of the Company in each of the years
1995 through 2004, or (ii) newly appointed a Non-Employee Director
in the years 1995 through 2004; provided, however, that each Non-
Employee Director who was elected a Non-Employee Director at the
1994 Annual Meeting of the Stockholders of the Company or was
serving as a Non-Employee Director during 1994 and who is serving
on the Board on the date this Plan is approved (the "Current Non-
Employee Directors") shall be automatically granted an option for
fifteen thousand (15,000) shares of Class B Stock.
(b) The options granted under this Plan shall be in addition
to regular director's fees and other benefits provided to the Non-
Employee Directors.
5. Type of Option; Terms and Conditions. (a) Options
granted under this Plan shall not be considered incentive stock
options as defined in Section 422 of the Internal Revenue Code of
1986, as amended (the "Code").
(b) Except as hereinafter provided, all options granted
pursuant to this Plan shall be subject to the following terms and
conditions:
(i) Exercise Price. The exercise price for the shares of
Class B Stock issuable upon the exercise of an option granted under
this Plan shall be the closing price of the Class B Stock on the
last trading day prior to (A) the date of Annual Meeting of the
Stockholders of the Company on which a Non-Employee Director is
first elected to the Board of Directors or (B) February 1, 1995 in
the case of Current Non-Employee Directors. The exercise price
shall be paid in full at the time of the exercise of the option, in
(X) cash, (Y) shares of Class B Stock valued at their fair market
value on the date of purchase or (Z) any combination of cash and
Class B Stock. The exercise price shall be subject to adjustment,
but only as provided in Section 7 hereof.
(ii) Exercise of Options. Except as provided in subsection
5(b)(iii) below, each option granted under this Plan shall become
exercisable in an amount equal to one-third (1/3) of the shares of
Class B Stock covered by such option on the first anniversary of
the date of grant; and thereafter an additional one-third (1/3) of
the total number of shares of Class B Stock covered by such option
shall become exercisable on each subsequent anniversary of the date
of grant until on the third anniversary of the date of grant the
total number of Class B Stock covered by such option shall be
exercisable; provided, however, that with regard to Current Non-
Employee Directors, for each year (or partial year) of service on
the Board prior to the 1995 Annual Meeting of the Stockholders of
the Company one-third (1/3) of the Class B Stock covered by such
option shall become exercisable (and all Class B Stock covered by
such option which does not become exercisable under this proviso
shall become exercisable as set forth in the clauses immediately
preceding this proviso). In the event that the Company and/or the
Stockholders enter into an agreement to dispose of all or
substantially all of the assets of the Company or an amount of the
outstanding capital stock of the Company sufficient to constitute
effective control of the Company by means of a sale, merger,
reorganization, separation, liquidation or any other transaction,
the total number of shares of Class B Stock covered by all options
under this Plan shall become exercisable.
(iii) Termination of Option. All options granted under this
Plan shall terminate ten (10) years subsequent to the date of
grant. In the event that any Non-Employee Director to whom an
option has been granted under this Plan ceases to be a member of
the Board while holding an option that has not expired and has not
been fully exercised, the right to exercise such option shall be
only as follows:
(A) Death. If a Non-Employee Director ceases to be a
member of the Board by reason of death, his or her estate
shall have the right for one year following the date of death
(but in no event subsequent to ten (10) years after the date
of grant) to exercise the option with respect to all or any
part of the shares of Class B Stock subject thereto,
regardless of whether the right to purchase such shares had
accrued on the date of his or her death. The term "estate"
when used in this Plan with respect to any Non-Employee
Director shall mean the legal representatives of the Non-
Employee Director's estate or any person or persons who
acquire the right under the laws of descent and distribution
to exercise an option by reason of the Non-Employee Director's
death.
(B) Retirement or Disability. If a Non-Employee Director
ceases to be a member of the Board by reason of his or her (1)
attaining the age at which the Company's policy precludes re-
election as a director or (2) becoming disabled within the
meaning of that term as defined in Section 22(e)(3) of the
Code, then such Non-Employee Director, or his or her estate
(in the event of his or her death after such cessation), shall
have the right for a period of six (6) months following such
cessation of service (but in no event subsequent to ten (10)
years after the date of grant) to exercise the option with
respect to all or any part of the shares of Class B Stock
subject thereto, regardless of whether the right to purchase
such shares had accrued prior to such Non-Employee Director
ceasing to be a member of the Board.
(C) Other Reasons. If a Non-Employee Director ceases to
be a member of the Board for any reason other than those
provided under "Death" and "Retirement or Disability" above,
such Non-Employee Director, or his or her estate (in the event
of his or her death after such cessation), shall have the
right for three (3) months following such cessation of service
(but in no event subsequent to ten (10) years after the date
of grant) to exercise the option with respect to only such
number of shares of Class B Stock as to which the right of
exercise had accrued prior to such Non-Employee Director
ceasing to be a member of the Board.
(iv) Transferability of Option. All options granted under
this Plan shall be transferable only by will or the laws of descent
and distribution and shall be exercisable during the Non-Employee
Director's lifetime only by him or her or by his or her guardian,
conservator or legal representative.
6. Rights of a Shareholder. A Non-Employee Director shall
have no rights as a shareholder with respect to any shares issuable
or transferable upon the exercise of an option granted under this
Plan until the date of issuance of a stock certificate for such
shares. Except as otherwise provided pursuant to Section 7 hereof,
no adjustment shall be made for dividends or other rights for which
the record date is prior to the date of such stock certificate.
7. Adjustment of and Changes in Class B Stock. In the event
that the shares of Class B Stock, as presently constituted, shall
be changed into or exchanged for a different kind of shares of
stock or other securities of the Company or of another corporation
(whether by reason of merger, consolidation, split-up,
recapitalization, reclassification, subdivision of shares,
combination of shares, or otherwise) or if the number of such
shares of Class B Stock shall be increased through the payment of
a stock dividend or a dividend on the shares of Class B Stock or
rights or warrants to purchase securities of the Company shall be
made, then there shall be substituted for or added to each share of
Class B Stock theretofore appropriated or thereafter subject or
which may become subject to an option under this Plan, the number
and kind of shares of stock or other securities into which each
outstanding share of Class B Stock shall be so changed, or for
which each such share shall be exchanged, or to which each such
share shall be entitled, as the case may be, and references herein
to the Class B Stock shall be deemed to be references to any such
stock or other securities as appropriate. Outstanding options
shall also be appropriately amended as to price and other terms as
may be necessary to reflect the foregoing events. In the event
that there is any other change in the number or kind of the
outstanding shares of Class B Stock, or of any stock or other
securities into which such Class B Stock shall have been changed or
for which it shall have been exchanged, then if the Board shall, in
its sole discretion, determine that such change equitably requires
an adjustment in any option theretofore granted under this Plan,
such adjustment shall be made in accordance with such
determination. Fractional shares resulting from any adjustment in
options pursuant to this Section 7 may be settled in cash or
otherwise as the Board shall determine. Notice of any adjustment
shall be given by the Company to each holder of an option which has
been so adjusted and such adjustment (whether or not such notice is
given) shall be effective and binding for all purposes of this
Plan.
8. Securities Act Requirements. No option granted pursuant
to this Plan shall be exercisable, in whole or in part, and the
Company shall not be obligated to sell any shares of Class B Stock
subject to any such option, if such exercise and sale would, in the
opinion of counsel for the Company, violate the Securities Act of
1933 (or other federal or state statutes having similar
requirements), as in effect at that time. Each option shall be
subject to the further requirement that, if at any time the Board
shall determine in its discretion that the listing or qualification
of the shares of Class B Stock subject to such option under the
requirements of any securities exchange (including, without
imitation, any listing under any rule of the American Stock
Exchange) or under any applicable law, or the consent or approval
of any governmental regulatory body, is necessary or desirable as
a condition of, or in connection with, the granting of such option
or the issuance of shares thereunder, such option may not be
exercised in whole or in part unless such listing, qualification,
consent or approval has been effected or obtained free of any
conditions not acceptable to the Board.
9. Withholding. Appropriate provision (which may, in
accordance with the procedures determined by the Board, and subject
to its approval or the approval of the Committee (as defined
below), include the election by a Non-Employee Director to have the
Company withhold from the shares of Class B Stock otherwise to be
issued to the Non-Employee Director upon exercise, such number of
shares as would satisfy the withholding amount due or to deliver to
the Company shares of Class B Stock already owned to satisfy the
withholding amount, with all Class B Stock valued at the fair
market value of the Class B Stock on the date of exercise) shall be
made for all taxes required to be withheld from the shares of Class
B Stock issued under this Plan under the applicable laws or other
regulations of any governmental authority, whether federal, state
or local, and domestic or foreign. To that end, the Company may at
any time take such steps as it may deem necessary or appropriate
(including the sale or retention of shares) to provide for the
payment of such taxes.
10. Administration an Amendment of Plan. The Board may from
time to time adopt rules and regulations to administer this Plan
and may designate a committee of the Board of Directors (the
"Committee") to administer the Plan and to adopt such rules and
regulations. The interpretation and construction by the Board, or
the Committee if the same has been designated by the Board, of any
provision of this Plan, or any option granted pursuant hereto,
shall be final and conclusive. No member of the Board, or of the
Committee, shall be liable for any action or determination made in
good faith with respect to this Plan or any option granted pursuant
hereto. The Board may from time to time make such changes in and
additions to this Plan and, with the written consent of the
affected Non-Employee Director or the estate of the Non-Employee
Director, to the terms and conditions of any option granted under
this Plan as it may deem proper and in the best interests of the
Company, without further action on the part of the Stockholders;
provided, however, that, except as provided in Section 7 hereof,
unless the Stockholders shall have first approved thereof, (i) the
total number of shares of Class B Stock subject to this Plan shall
not be increased and the minimum purchase price shall not be
changed, (ii) no option shall be exercisable more than ten (10)
years after the date it is granted, (iii) the expiration date of
this Plan shall not be extended, and (iv) no amendment of this Plan
or of any option granted under this Plan may materially increase
the benefits accruing to Non-Employee Directors under this Plan;
and provided, further, that Sections 4 and 5 hereof may not be
amended more often than once every six (6) months unless such
amendment is required to comport with changes in the Code or the
regulations promulgated thereunder.
The Board shall have the power, in the event of any
disposition of substantially all of the assets of the Company, its
dissolution or of any consolidation or merger of the Company with
or into any other corporation, to amend all outstanding options
granted under this Plan prior to the effective date of any such
transaction and to terminate such options as of such effective
date. If the Board shall exercise such power, each option then
outstanding shall be deemed to have been amended to permit the
exercise thereof in whole or in part by the Non-Employee Director
to whom it was issued or his or her estate as provided herein at
any time or from time to time as determined by the Board prior to
the effective date of such transaction and such option shall be
deemed to terminate upon such effective date.
Exhibit 4.4
PLYMOUTH RUBBER COMPANY, INC.
1995 EMPLOYEE INCENTIVE STOCK OPTION PLAN
1. PURPOSE. In order to retain the services of various
officers and key employees, induce desirable personnel to become
officers and employees of PLYMOUTH RUBBER COMPANY, INC., a
Massachusetts corporation (the "Company") and of any parent or
subsidiary thereof, motivate officers and employees to outstanding
performance, reward officers and employees for outstanding service
to the Company and encourage stock ownership in the Company by
those officers and key personnel who will be responsible for its
growth and success, the board of directors of the Company (the
"Board of Directors") may from time to time hereafter grant options
to purchase Class B common stock, $1.00 par value of the Company
(the "Common Stock") to any officer or other employee who meets the
eligibility requirements of Section 4 hereof. The terms "parent"
or "subsidiary" as used in this instrument shall mean a parent
corporation or a subsidiary corporation as each of said terms is
defined in Section 424 of the Internal Revenue Code of 1986, as
amended (the "Code").
2. ADMINISTRATION. The plan adopted hereunder (the "Plan")
shall be controlled and administered by the Board of Directors, and
the Board of Directors shall have, subject to, and within the
limits of, the express provisions of the Plan, the following
powers:
(a) To determine from time to time who, of the eligible
persons, shall be granted options under the Plan, the time or
times when and the number of shares for which, an option or
options shall be granted to such eligible personnel and the
exercise price thereof; provided, however, that the selection
of officers and directors to whom options may be granted and
all decisions as to the timing, pricing and amount of a grant
or grants to an officer or director shall be made solely by a
committee of two or more directors of the Company each of whom
is a disinterested person, as defined in Rule 16b-3(c)(2)(i)
promulgated by the Securities and Exchange Commission (the
"Commission") under the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
(b) To construe and interpret the Plan and options granted
thereunder; to establish, amend and revoke rules and regulations
for its administration; and to make all other determinations
necessary or advisable for the administration of the Plan. The
Board of Directors, in the exercise of this power, may correct any
defect, or supply any omission, or reconcile any inconsistency in
the Plan, or in any option agreement issued pursuant to the Plan,
in a manner and to the extent it shall deem necessary or expedient
to make the Plan fully effective and to carry out the provisions of
the Plan in a manner consistent with its expressed purposes and
intentions. All determinations, interpretations and decisions made
by the Board of Directors shall be binding and conclusive on all
participants hereunder.
(c) Subject to the provisions of Section 2(a) and except
as otherwise further provided herein, to prescribe the terms,
conditions and provisions of each option granted hereunder,
which terms, conditions and provisions need not be identical
with respect to each grantee.
(d) To delegate from time to time, to an option
committee or such other committee or committees as the Board
of Directors may designate, consisting of not less than two
(2) members of the Board of Directors, all or any portion of
the powers and duties of the Board of Directors with respect
to the administration of this Plan, or all or any portion of
any other powers or duties of the Board of Directors under
this Plan, the terms, conditions and provisions of any such
delegation to be as the full Board of Directors shall
determine in any instance or from time to time. The power of
delegation herein provided shall, without limiting the
generality of the foregoing, include the power to grant
options hereunder and to determine the number of such options
to be granted, the exercise price thereof (subject to the
provisions of Section 5 hereof) and, subject to the provisions
of Section 2(a) hereof, the persons to whom the same shall be
granted.
(e) Generally, to exercise such powers and to perform
such actions as are deemed necessary or expedient in
connection with the operation of this Plan and as the Board of
Directors deems to be in the best interest of the Company.
(f) Solely and finally to determine all questions of
policy and expediency that may arise in the administration of
the Plan.
3. SHARES SUBJECT TO THE PLAN. Subject to the provisions of
Section 9 hereof, the stock which may be sold by the Company
pursuant to options granted hereunder shall not exceed in the
aggregate of One Hundred Fifty Thousand (150,000) shares of the
authorized Common Stock, and may be authorized but unissued shares
or reacquired shares held in the Company's treasury or shares
purchased on the market for the purpose of issuance under the Plan.
If any option granted hereunder shall for any reason terminate or
expire without having been exercised in full, the shares not
purchased under such option shall be available again for the
purpose of this Plan.
4. ELIGIBILITY. Options may be granted hereunder only to
officers and other key employees of the Company and any parent or
subsidiary thereof. A director of the Company or of any parent or
subsidiary of the Company shall be eligible only if he or she is
otherwise eligible as an officer or a key employee. Key employees
shall consist of executive and managerial personnel, department
heads, assistant department heads, research and product development
personnel and managerial sales personnel.
5. TERMS, CONDITIONS AND PROVISIONS OF OPTIONS. Except as
otherwise provided herein, each option issued hereunder shall be in
such form and shall contain such provisions as the Board of
Directors, or the option or other committee to which such power may
have been delegated by the Board of Directors, shall deem
appropriate. The form, terms and conditions of such options need
not be identical with respect to each grantee, but all Incentive
Stock Options, as defined below, shall be on the following terms
and conditions, except as otherwise provided, and shall, where
required or appropriate to cause options granted hereunder to
qualify as "incentive stock options" under Section 422 of the Code
("Incentive Stock Option or Options"), include the substance
thereof:
(a) All Incentive Stock Options granted pursuant to this
Plan shall provide for purchase of Common Stock at a price
which shall be at least equal to the fair market value thereof
as of the date on which the grant is made. The fair market
value at any given time shall be determined in accordance with
applicable United States Treasury Department Regulations.
Options may provide that shares of the Common Stock purchased
upon any exercise of an option may be paid for either (i) in
cash, or (ii) by the surrender of other shares of Common Stock
then owned by the grantee, or by the surrender of shares of
Class A common stock, $1.00 par value, of the Company then
owned by the grantee, taken at a value equal to the closing
price of such stock on the last previous trading day of such
stock as reported in the American Stock Exchange for that day,
or (iii) partly in cash and partly in other common stock of
the Company as aforesaid.
(b) Options granted hereunder may be designed to qualify
as Incentive Stock Options or as non-incentive options, as the
Board of Directors, or an authorized committee, may determine
in connection with each grant. An option designated as not to
be deemed an Incentive Stock Option shall not be construed as
an Incentive Stock Option, notwithstanding that its terms and
provisions may qualify it as such. Subject to the provisions
of Section 2(a), options shall be exercisable at such time or
times and shall expire at such time or times as the Board of
Directors, or an authorized committee, may designate at the
time of grant. An option designed as an Incentive Stock
Option shall in no event be exercisable after the expiration
of ten (10) years from the date on which such option is
granted.
(c) For the sole purpose of complying with the
provisions of the Securities Act of 1933, as amended (the
"Act") and/or other applicable laws relating to issuance or
sale of securities, all options granted hereunder shall be
granted on the condition that such option and the underlying
shares are acquired by the grantee for his or her private
investment only and not for resale or other distribution to
the public in any manner involving a public offering within
the meaning of the Act; provided, however, that this condition
may be eliminated (i) if at any time the Company registers the
Plan and the options, and/or the underlying shares, granted
hereunder with the Commission under the Act or any other
applicable securities laws, or (ii) if the Company, upon
advice of its counsel, deems that this condition is not
required for the valid and lawful issuance of such option and
the underlying shares. Cessation of any exemption pursuant to
which the Company may issue shares underlying options granted
hereunder without registration under the Act or the inability
of the Company to obtain and/or maintain an effective
registration or to obtain and maintain in effect the authority
to issue shares upon the exercise of options granted hereunder
pursuant to an available exemption under the Act shall relieve
the Company from any liability for failure to issue to the
holder of an option granted hereunder the stock required to
satisfy an exercise of such option until such time as the
required registration is effective or re-effective or the
required exemption from registration or other authority for
such issuance becomes available and is obtained.
(d) The Company shall at all times keep available
for issuance hereunder the number of shares of the Common
Stock required to satisfy all options granted and outstanding
under the Plan.
(e) No option granted hereunder shall be transferable by
the grantee except (i) by his or her last will and testament,
(ii) by the laws of descent and distribution, or (iii)
pursuant to a qualified domestic relations order under Section
401 (a)(12)(B) of the Code or Title I of the Employment
Retirement Income Security Act, and the rules thereunder.
During the lifetime of the grantee the option shall be
exercisable by him or her alone.
(f) Any option granted hereunder shall terminate and become
null and void and of no further force and effect at such time
as the grantee ceases to be employed by the Company or by any
parent or subsidiary thereof; provided, however, that:
(i) if the grantee's employment ceases by
reason of his or her discharge by the Company or any
parent or subsidiary thereof, other than for dishonesty,
or by reason of his or her voluntary resignation approved
by the Board of Directors, he or she may at any time
within three (3) months after termination of employment
exercise the option but only to the extent that it was
exercisable on the date of termination of employment and
then only to the extent that the portion or portions of
the option so exercised have not expired at the time of
exercise; and
(ii) if the grantee's employment ceases by
reason of his or her disability, within the meaning of
that term as defined in Section 22(e)(3) of the Code, he
or she may at any time within one (1) year afterthe date
of termination of employment exercise the option, but
only to the extent that it was exercisable on the date of
termination of employment, and then only to the extent
that the portion or portions of the option so exercised
have not expired at the time of exercise; and
(iii) if the grantee's employment ceases by
reason of his or her death while in the employ of the
Company or any parent or subsidiary thereof, or if he or
she dies within three (3) months after his or her
discharge by the Company or any parent or subsidiary
thereof, other than for dishonesty, or if he or she dies
within three (3) months after his or her voluntary
resignation approved by the Board of Directors, or if he
or she dies within one (1) year of the date of
termination of his or her employment by reason of
disability, within the meaning of that term as defined in
Section 22(e)(3) of the Code, the option may be exercised
at any time within six (6) months following his or her
death, such exercise to be effected only by his or her
estate or by the person or persons to whom his or her
rights under the option may pass by his or her last will
and testament or by the laws of descent and distribution,
but only to the extent that the option was exercisable on
the date of cessation of employment, and then only to the
extent that the portion or portions of the option so
exercised have not expired at the time of exercise; and
(iv)nothing contained in this Plan or in any option
granted hereunder shall be construed to confer upon any
employee or option holder any right with respect to the
continuation of the grantee's employment with the Company
or any parent or subsidiary thereof, or to interfere in
any way with the right of the Company or other employer
of an option holder at any time to terminate such
employment.
(g) Neither a person to whom an option is granted
hereunder nor his or her legal representative, heir, legatee
or distributee shall be deemed to be the holder of or to have
any of the rights of a holder with respect to, any shares
subject to such option unless and until the grantee has
exercised such option and has received a certificate or
certificates for the shares issuable upon such exercise.
6. LIMITATION ON GRANTS.
(a) No Incentive Stock Option may be granted to an
employee hereunder if at the time of the grant such employee
directly or indirectly owns stock of the Company possessing more
than ten percent (10%) of the total combined voting power of all
classes of stock of the Company or of any parent or subsidiary
thereof, unless the exercise price thereof is at least one hundred
ten percent (110%) of the fair market value of the Common Stock at
the time of the grant and neither such option nor any portion
thereof is exercisable after the expiration of five (5) years from
the date such option is granted.
(b) All Incentive Stock Options granted hereunder shall
provide that such option or any installment thereof shall not be
exercisable in any calendar year to an extent which would cause
such exercise to exceed the limitation set forth in Section 422(d)
of the Code and the regulations promulgated thereunder on the
aggregate fair market value of stock for which Incentive Stock
Options are exercisable by the grantee for the first time in any
calendar year.
7. USE OF PROCEEDS. The proceeds from the sale of the
Common Stock pursuant to the exercise of options granted under the
Plan shall constitute general funds of the Company to be used for
its general business purposes.
8. TIME OF GRANTING OPTIONS. Unless otherwise designated in
the granting vote, each option granted and issued hereunder shall
be deemed to have been granted on the date on which the Board of
Directors, or the option or other committee authorized to grant
same, as the case may be, votes to grant such option, and each such
option shall be dated as of such date.
9. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION.
(a) In case of any subdivision, combination,
reclassification or other change of outstanding shares of the
Common Stock issuable upon the exercise of any option granted
hereunder (other than a change in par value, or from par value to
no par value, or from no par value to par value), or in case the
Company declares or pays in respect of such outstanding Common
Stock any dividend payable in any kind of shares of stock of the
Company, or in case of any reorganization, consolidation or merger
of the Company with another corporation (other than a consolidation
with a subsidiary in which consolidation the Company is the
continuing corporation and which does not result in any
reclassification or change of outstanding shares of the Common
Stock issuable upon the exercise of the option) wherein the Company
is the surviving corporation, then the number and kind of shares
for the purchase of which options may be granted under the Plan,
including the maximum number that may be granted, shall be
correspondingly and proportionately adjusted. In addition, if any
of the above-described events shall occur while any option granted
hereunder is outstanding, the number and kind of shares, and the
price per share, issuable upon exercise of such outstanding options
shall be appropriately and proportionately adjusted, so that, upon
exercise of the option, the option holder shall be entitled to
receive for the same aggregate purchase price the same total number
and kind of shares as he or she would have owned had he or she
exercised his or her option prior to the occurrence of such event
and had continued to hold the shares so purchased until after they
had been affected by such event.
(b) In case of any consolidation, merger or
reorganization of the Company with another corporation wherein the
Company is not the surviving corporation, or in case of any sale or
conveyance to another corporation of the property of the Company as
an entirety or substantially as an entirety, or in case of any
liquidation and dissolution of the Company, the Company shall give
notice thereof to holders of outstanding options hereunder at least
ten (10) days prior to the effective date of such consolidation,
merger, reorganization, sale, conveyance, liquidation or
dissolution. After the Company gives the notice, any time
limitation contained in such outstanding options with respect to
the time when they become exercisable, other than the limitation
imposed and required by Section 6(b) hereof (which limitation,
however, may be waived by the grantee), shall be inapplicable and
such options shall, subject to the limitation imposed and required
by Section 6(b) hereof (unless waived by the grantee), be
exercisable by the holders with respect to any unexercised portions
thereof from the time of such notice until the close of business on
the third business day preceding the date such transaction is to be
effective, so as to permit any such holder, if he or she so
desires, to participate as a stockholder in such transaction;
provided, however, that the right to exercise any such outstanding
option or the portion thereof sought to be exercised has not
otherwise expired pursuant to the provisions of such option.
(c) Adjustments pursuant to the foregoing provisions
hereof shall be determined by the Board of Directors, whose
determination as to what adjustments shall be made, and the extent
thereof shall be final, binding and conclusive on all participants
hereunder. Any fractional shares or units of securities resulting
from any adjustment shall be rounded out to the nearest whole share
or unit, with a fraction of one-half (1/2) being rounded out to the
next highest whole number. All adjustments hereunder or in any
option outstanding hereunder shall be made in such manner as not to
constitute a "modification" within the meaning of said term as
defined in Section 424 of the Code.
10. AMENDMENT. The Board of Directors at any time and from
time to time may amend the Plan, provided, however, that (except as
provided in Section 9 hereof) no amendment shall be made except
upon approval of a majority of the stockholders voting at any
meeting called for such purpose and at which a quorum is present
and voting which shall (i) change the class of Common Stock subject
to the Plan, (ii) increase the number of shares reserved for
options under the Plan, (iii) reduce the option exercise price
below the prices provided for in Section 5(a) hereof, (iv) change
in substance the provisions of Section 4 hereof, or (v) materially
increase the benefits which accrue to eligible participants in the
Plan. Any rights and obligations under an option granted prior to
any amendment of the Plan shall not be altered or impaired by the
amendment except with the consent of the grantee of such option or
of the estate or other legal representative of such grantee if the
grantee is then deceased and such option is still exercisable.
11. EFFECTIVE DATE AND TERMINATION. This Plan shall become
effective as of February 1, 1995, subject, however, to the approval
of the holders of a majority of the outstanding Common Stock
entitled to vote on the matter obtained in the manner required
pursuant to the provisions of Rule 16b-3(b) promulgated by the
Commission under the Exchange Act. Any options granted hereunder
prior to such stockholder approval shall be granted subject to the
procurement of such approval and shall be exercisable only after
such approval is obtained. If such approval is not obtained within
twelve (12) months from the date of adoption hereof, as set forth
above, the Plan and any options theretofore granted hereunder shall
become null and void and of no further force and effect. Subject
to said stockholder approval, the Plan shall remain in effect until
all shares authorized for issuance hereunder shall have been
issued, unless sooner terminated by the Board of Directors, it
being understood, however, that any option granted hereunder after
the expiration of ten (10) years from the effective date hereof
shall not qualify as an Incentive Stock Option.
12. CONSTRUCTION. It is intended that the provisions
of the Plan shall enable the Company to grant options hereunder
which shall qualify as Incentive Stock Options as well as options
which do not qualify as such; and the terms, conditions and
provisions hereof shall be construed, and all questions with
respect thereto shall be resolved, accordingly.
13. WITHHOLDING TAXES. The Company shall have the right to
deduct any sums required by federal, state and local tax law to be
withheld with respect to the exercise of any option or with respect
to the disposition of the Common Stock issued hereunder or, in the
alternative, to require the grantee to pay such sums to the
Company.
14. GOVERNING LAW. This Plan and any options granted
hereunder shall be governed and construed in accordance with the
laws of the Commonwealth of Massachusetts.
Exhibit 4.5
No. IS095-
INCENTIVE STOCK OPTION
FOR THE PURCHASE OF CLASS B COMMON STOCK
$1.00 PAR VALUE
OF
PLYMOUTH RUBBER COMPANY, INC.
THIS IS TO CERTIFY THAT, FOR VALUE RECEIVED
___________________________________
(herein referred to as the "Grantee", which term shall include the
Grantee's estate or other person eligible to exercise this option,
where the context so permits or requires) is entitled to purchase
up to _____ shares of Class B common stock, $1.00 par value
(hereinafter referred to as the "Common Stock"), of Plymouth Rubber
Company, Inc., a Massachusetts corporation (hereinafter referred to
as the "Company", which term shall include any parent or subsidiary
of the Company), at $____ per share, all subject to the following
terms and conditions hereof:
1. Term and Expiration. This option (the "Option") shall be
deemed divided into four (4) equal parts, each such part
(hereinafter referred to as an "Increment") covering one-fourth
(1/4) of the aggregate number of shares of Common Stock subject
hereto. One Increment shall become exercisable one year from the
date hereof and one Increment shall become exercisable on the same
day of each succeeding year thereafter until the Option has become
exercisable in full. Upon becoming exercisable, each Increment, or
the Option, as the case may be, shall remain exercisable until the
expiration of ten (10) years from the date hereof, and neither the
Option, nor any Increment, as the case may be, may be exercised
thereafter. Within the limits of the foregoing, the Option and any
of its Increments may be exercised from time to time, either in
whole or in part, until the expiration hereof.
THIS OPTION IS ENTIRELY VOID AFTER .
2. Manner of Exercise. Subject to the terms and conditions
hereof, the Option, or any portion thereof, may be exercised by
written notice, substantially in the form attached hereto,
delivered to the Company at its then current executive offices,
such notice to be accompanied by full payment of the purchase price
of the shares so purchased. Upon such exercise the Grantee hereof,
or other person then having the right of exercise, shall be
entitled to receive a certificate or certificates representing the
shares so purchased. Payment of the purchase price shall be made
in cash; provided, however, that payment may be made, if permitted
by the Company at its sole discretion, (i) by the surrender to the
Company of other common stock, of any class, of the Company then
owned by the Grantee, taken at a value equal to the closing price
of such common stock on the last previous trading day of such
stock, as reported by the American Stock Exchange trading listings
for that day, or (ii) partly in cash and partly by surrender of
such common stock, valued as aforesaid.
3. Assignability. The Option is not transferable or
assignable by the Grantee except by last will and testament or by
the laws of descent and distribution or pursuant to a qualified
domestic relations order under Section 401(a)(12)(B) of the
Internal Revenue Code of 1986, as amended (the "Code") or Title I
of the Employment Retirement Income Security Act, and the rules
thereunder; and during the lifetime of the Grantee the Option may
be exercised only by the Grantee. Without in any way limiting the
generality of the foregoing, the Option may not be pledged or
hypothecated in any way, shall not be assignable by operation of
law, and shall not be subject to execution, attachment or similar
process.
4. Option Registration. The shares of Common Stock
purchasable hereunder shall be registered with the United States
Securities and Exchange Commission pursuant to an effective
Registration Statement on Form S-8. Subsequent to such
registration, a copy of said Registration Statement shall be
delivered to the Grantee, together with a copy of the Information
Statement related thereto, receipt of each of which the Grantee, by
his acceptance of the Option, acknowledges.
5. Termination. The Option shall terminate, expire and
become null and void and of no further force and effect at any time
that the Grantee ceases to be employed by the Company; provided,
however, that:
(a) if such employment ceases by reason of the Grantee's
discharge by the Company, other than a discharge for dishonesty, or
by reason of the Grantee's voluntary resignation approved by the
board of directors of the Company (the "Board of Directors"), the
Grantee may exercise the Option at any time within three (3) months
after such termination of employment, but only to the extent that
the Option was exercisable on the date of such termination and then
only to the extent that the portion or portions thereof so
exercised have not expired at the time of exercise; and
(b) if such employment ceases by reason of the Grantee's
disability, within the meaning of that term as defined in Section
22(e)(3) of the Code, the Grantee may exercise the Option at any
time within one (1) year after the date of termination of
employment, but only to the extent that the Option was exercisable
on the date of such termination of employment and then only to the
extent that the portion or portions of the Option so exercised have
not expired at the time of exercise; and
(c) if such employment ceases by reason of (i)
the death of the Grantee while in the employ of the Company, or
(ii) the death of the Grantee within three (3) months after being
discharged by the Company for reasons other than dishonesty, or
(iii) the death of the Grantee within three (3) months after the
Grantee's voluntary resignation approved by the Board of Directors,
or (iv) the death of the Grantee within one (1) year after
termination of employment by reason of disability, as defined in
subparagraph (b), then the Option may be exercised at any time
within six (6) months following such death by the estate of the
Grantee or by the person or persons to whom the Grantee's rights
under the Option may pass by last will and testament or by the laws
of descent and distribution, but only to the extent that the Option
was exercisable by the Grantee on the date of death or termination
of employment and then only to the extent that the portion or
portions of the Option so exercised have not expired at the time of
such exercise.
6. Exercise Limitations. Notwithstanding any other
provision herein, including, but not limited to, the provisions of
Section 1, neither the Option nor any Increment may be exercised in
any calendar year to an extent which would cause such exercise to
exceed the limitation set forth in Section 422(d) of the Code and
the regulations promulgated thereunder on the aggregate fair market
value of the stock for which all incentive stock options for
purchase of the Common Stock then held by the Grantee are
exercisable for the first time by the Grantee in any calendar year.
7. Adjustments upon Changes in Capitalization.
(a) In case of any subdivision, combination,
reclassification or other change of outstanding shares of Common
Stock issuable upon the exercise of the Option (other than a change
in par value, or from par value to no par value, or from no par
value to par value), or in case the Company declares or pays in
respect of its outstanding Common Stock any dividend payable in any
kind of shares of stock of the Company, or in case of any
reorganization, consolidation or merger of the Company with another
corporation (other than a consolidation with a subsidiary in which
consolidation the Company is the continuing corporation and which
does not result in any reclassification or change of outstanding
shares of the Common Stock issuable upon the exercise of the
Option) wherein the Company is the surviving corporation, the
number and kind of shares, and the price per share, issuable upon
exercise of the Option shall be appropriately and proportionately
adjusted, so that, upon exercise of the Option or any portion
thereof, the Grantee shall be entitled to receive for the same
aggregate purchase price the same total number and kind of
securities as the Grantee would have owned had the Option, or such
portion thereof, been exercised prior to the occurrence of such
event and had the Grantee continued to hold the shares so purchased
until after they had been affected by such event.
(b) In case of any consolidation, merger or
reorganization of the Company with another corporation wherein the
Company is not the surviving corporation, or in the case of any
sale or conveyance to another corporation of the property of the
Company as an entirety or substantially as an entirety, or in case
of any liquidation and dissolution of the Company, the Company
shall give notice thereof to the Grantee at least ten (10) days
prior to the effective date of such consolidation, merger,
reorganization, sale, conveyance, liquidation or dissolution.
After the Company gives notice, any time limitation contained
herein with respect to the time when any Increment hereof becomes
exercisable, other than the time limitation imposed by the
provisions of Section 6 hereof, shall be inapplicable, and, subject
to the provisions of Section 6 hereof, the Option shall be
exercisable by the Grantee with respect to any unexercised portion
hereof from the time of such notice until the close of business on
the third business day preceding the date such transaction is to be
effective, so as to permit the Grantee, if the Grantee so desires,
to participate as a stockholder in such transaction; provided,
however, that the Option or any portion thereof shall be so
exercisable only to the extent that the Option or the portion
thereof sought to be exercised has not, on the date of such
exercise, otherwise expired pursuant to the provisions of Section
1 hereof.
(c) Adjustments pursuant to the foregoing provisions
hereof shall be determined by the Board of Directors, whose
determination as to what adjustments shall be made, and the extent
thereof, shall be final, binding and conclusive on the holder
hereof. Any fractional shares or units of securities resulting
from any adjustment shall be rounded out to the nearest whole share
or unit, with a fraction of one-half (1/2) being rounded out to the
next highest whole number. In the discretion of the Board of
Directors, adjustments hereunder may be made in such a manner as
not to constitute a "modification" within the meaning of said term
as defined in Section 424 of the Code.
8. General Provisions.
(a) The Company covenants that it shall at all times reserve and
keep available, out of its duly authorized but unissued Common
Stock, for issuance in the event of the exercise of the Option such
number of shares of Common Stock as shall from time to time be
sufficient therefor.
(b) Neither the Grantee nor any legal representative,
heir, legatee or distributee of the Grantee shall be deemed to be
the holder of, or to have any of the rights of a holder with
respect to, any of the shares of the Common Stock subject to the
Option, unless and until the Option has been exercised and the
Grantee or such legal representative, heir, legatee or distributee,
as the case may be, shall have received a certificate or
certificates for the shares issuable upon such exercise.
(c) In the event the Option shall be exercised, pursuant
to the provisions hereof, by any person or persons other than the
designated Grantee hereof, the notice of exercise required
hereunder shall be accompanied, in addition to the purchase price,
by appropriate proof of the right of such person or persons to
exercise the Option. The Company shall have the right to request
such additional documents or instruments or proof as it may
reasonably require.
(d) The Option is intended to qualify as an incentive
stock option within the meaning of Section 422 of the Code, and all
terms, conditions and provisions hereof shall be construed, and all
questions with respect thereto, shall be resolved accordingly.
IN WITNESS WHEREOF, the Company has caused the Option to
be executed by its undersigned officers thereunto duly authorized
and its corporate seal to be hereunto affixed and attested this ___
day of _____________, 199_.
PLYMOUTH RUBBER COMPANY, INC.
By: _______________________________
Its: ______________________________,
duly authorized
Attest:
______________________
Assistant Secretary
EXERCISE OF OPTION
__________________, 199_
The undersigned hereby exercises incentive stock option No.
_______ dated _________________, 199_, issued by Plymouth Rubber
Company, Inc. to __________________________ to the extent of
______________ shares covered thereby and tenders herewith the
purchase price hereof.
WITNESS: GRANTEE:
_________________________ _________________________*
Address: _________________________
_________________________
SSN: _________________________
*If this option exercise form is executed by a person other
than the registered option holder, appropriate proof of such
person's right to exercise the subject option in accordance
with its terms must be furnished with this exercise form. The
Company reserves the right to request any additional documents
or instruments of proof as it may require.
No. NQ095-
NON-QUALIFIED STOCK OPTION
FOR THE PURCHASE OF CLASS B COMMON STOCK
$1.00 PAR VALUE
OF
PLYMOUTH RUBBER COMPANY, INC.
THIS IS TO CERTIFY THAT, FOR VALUE RECEIVED
___________________________________
(herein referred to as the "Grantee", which term shall include the
Grantee's estate or other person eligible to exercise this option,
where the context so permits or requires) is entitled to purchase
up to Fifteen Thousand (15,000) shares of Class B common stock,
$1.00 par value (hereinafter referred to as the "Class B Stock"),
of Plymouth Rubber Company, Inc., a Massachusetts corporation
(hereinafter referred to as the "Company"), at $____ per share, all
subject to the following terms and conditions hereof:
1. Term and Expiration. This option (the "Option") shall be
deemed divided into three (3) equal parts, each such part
(hereinafter referred to as an "Increment") covering one-third
(1/3) of the aggregate number of shares of Class B Stock subject
hereto. One Increment shall become exercisable one year from the
date hereof and one Increment shall become exercisable on the same
day of each succeeding year thereafter until the Option has become
exercisable in full. Upon becoming exercisable, each Increment, or
the Option, as the case may be, shall remain exercisable until the
expiration of ten (10) years from the date hereof, and neither the
Option, nor any Increment, as the case may be, may be exercised
thereafter. Within the limits of the foregoing, the Option and any
of its Increments may be exercised from time to time, either in
whole or in part, until the expiration hereof. In the event that
the Company and/or the stockholders of the Company enter into an
agreement to dispose of all or substantially all of the assets of
the Company or an amount of the outstanding capital stock of the
Company sufficient to constitute effective control of the Company
by means of a sale, merger, reorganization, separation, liquidation
or any other transaction, the total number of shares of Class B
Stock covered by this Option shall become exercisable.
THIS OPTION IS ENTIRELY VOID AFTER .
2. Manner of Exercise. Subject to the terms and conditions
hereof, the Option, or any portion thereof, may be exercised by
written notice, substantially in the form attached hereto,
delivered to the Company at its then current executive offices,
such notice to be accompanied by full payment of the purchase price
of the shares so purchased. Upon such exercise the Grantee hereof,
or other person then having the right of exercise, shall be
entitled to receive a certificate or certificates representing the
shares so purchased. Payment of the purchase price shall be made
(i) in cash; or (ii) by the surrender to the Company of other Class
B Stock then owned by the Grantee, taken at a value equal to the
closing price of such Class B Stock on the last previous trading
day of such stock, as reported by the American Stock Exchange
trading listings for that day; or (iii) partly in cash and partly
by surrender of such Class B Stock, valued as aforesaid.
3. Assignability. The Option is not transferable or
assignable by the Grantee except by last will and testament or by
the laws of descent and distribution or pursuant to a qualified
domestic relations order under Section 401(a)(12)(B) of the
Internal Revenue Code of 1986, as amended (the "Code") or Title I
of the Employment Retirement Income Security Act, and the rules
thereunder; and during the lifetime of the Grantee the Option may
be exercised only by the Grantee. Without in any way limiting the
generality of the foregoing, the Option may not be pledged or
hypothecated in any way, shall not be assignable by operation of
law, and shall not be subject to execution, attachment or similar
process.
4. Option Registration. The shares of Class B Stock
purchasable hereunder shall be registered with the United States
Securities and Exchange Commission pursuant to an effective
Registration Statement on Form S-8. Subsequent to such
registration, a copy of said Registration Statement shall be
delivered to the Grantee, together with a copy of the Information
Statement related thereto, receipt of each of which the Grantee, by
his acceptance of the Option, acknowledges.
5. Termination. The Option shall terminate, expire and
become null and void and of no further force and effect at any time
that the Grantee ceases to be a member of the Board of Directors of
the Company (the "Board"); provided, however, that:
(A) If the Grantee ceases to be a member of the Board by
reason of death, his or her estate shall have the right for
one year following the date of death (but in no event
subsequent to ten (10) years after the date of grant) to
exercise the option with respect to all or any part of the
shares of Class B Stock subject thereto, regardless of whether
the right to purchase such shares had accrued on the date of
his or her death. The term "estate" shall mean the legal
representatives of the Grantee's estate or any person or
persons who acquire the right under the laws of descent and
distribution to exercise an option by reason of the Grantee's
death.
(B) If a Grantee ceases to be a member of the Board by
reason of his or her (1) attaining the age at which the
Company's policy precludes re-election as a director or (2)
becoming disabled within the meaning of that term as defined
in Section 22(e)(3) of the Code, then such Grantee, or his or
her estate (in the event of his or her death after such
cessation), shall have the right for a period of six (6)
months following such cessation of service (but in no event
subsequent to ten (10) years after the date of grant) to
exercise the option with respect to all or any part of the
shares of Class B Stock subject thereto, regardless of whether
the right to purchase such shares had accrued prior to such
Grantee ceasing to be a member of the Board.
(C) If a Grantee ceases to be a member of the Board for
any reason other than those provided under subsections (A) or
(B) above, such Grantee, or his or her estate (in the event of
his or her death after such cessation), shall have the right
for three (3) months following such cessation of service (but
in no event subsequent to ten (10) years after the date of
grant) to exercise the option with respect to only such number
of shares of Class B Stock as to which the right of exercise
had accrued prior to such Grantee ceasing to be a member of
the Board.
6. Adjustments of and Changes in Class B Stock. In the
event that the shares of Class B Stock, as presently constituted,
shall be changed into or exchanged for a different kind of shares
of stock or other securities of the Company or of another
corporation (whether by reason of merger, consolidation, split-up,
recapitalization, reclassification, subdivision of shares,
combination of shares, or otherwise) or if the number of such
shares of Class B Stock shall be increased through the payment of
a stock dividend or a dividend on the shares of Class B Stock or
rights or warrants to purchase securities of the Company shall be
made, then there shall be substituted for or added to each share of
Class B Stock theretofore appropriated or thereafter subject or
which may become subject to this Option, the number and kind of
shares of stock or other securities into which each outstanding
share of Class B Stock shall be so changed, or for which each such
share shall be exchanged, or to which each such share shall be
entitled, as the case may be, and references herein to the Class B
Stock shall be deemed to be references to any such stock or other
securities as appropriate. This Option shall also be appropriately
amended as to price and other terms as may be necessary to reflect
the foregoing events. In the event that there is any other change
in the number or kind of the outstanding shares of Class B Stock,
or of any stock or other securities into which such Class B Stock
shall have been changed or for which it shall have been exchanged,
then if the Board shall, in its sole discretion, determine that
such change equitably requires an adjustment in this Option, such
adjustment shall be made in accordance with such determination.
Fractional shares resulting from any adjustment in this Option
pursuant to this Section 6 may be settled in cash or otherwise as
the Board shall determine. Notice of any adjustment shall be given
by the Company to each holder of an option which has been so
adjusted and such adjustment (whether or not such notice is given)
shall be effective and binding for all purposes of this Option.
7. Withholding. Appropriate provision (which may, in
accordance with the procedures determined by the Board, and subject
to its approval or the approval of the Committee (as defined in the
Plan), include the election by the Grantee to have the Company
withhold from the shares of Class B Stock otherwise to be issued to
the Grantee upon exercise, such number of shares as would satisfy
the withholding amount due or to deliver to the Company shares of
Class B Stock already owned to satisfy the withholding amount, with
all Class B Stock valued at the fair market value of the Class B
Stock on the date of exercise) shall be made for all taxes required
to be withheld from the shares of Class B Stock issued under this
Option under the applicable laws or other regulations of any
governmental authority, whether federal, state or local, and
domestic or foreign. To that end, the Company may at any time take
such steps as it may deem necessary or appropriate (including the
sale or retention of shares) to provide for the payment of such
taxes.
8. General Provisions.
(a) The Company covenants that it shall at all times reserve and
keep available, out of its duly authorized but unissued Common
Stock, for issuance in the event of the exercise of the Option such
number of shares of Common Stock as shall from time to time be
sufficient therefor.
(b) Neither the Grantee nor any legal representative,
heir, legatee or distributee of the Grantee shall be deemed to be
the holder of, or to have any of the rights of a holder with
respect to, any of the shares of the Common Stock subject to the
Option, unless and until the Option has been exercised and the
Grantee or such legal representative, heir, legatee or distributee,
as the case may be, shall have received a certificate or
certificates for the shares issuable upon such exercise.
(c) In the event the Option shall be exercised, pursuant
to the provisions hereof, by any person or persons other than the
designated Grantee hereof, the notice of exercise required
hereunder shall be accompanied, in addition to the purchase price,
by appropriate proof of the right of such person or persons to
exercise the Option. The Company shall have the right to request
such additional documents or instruments or proof as it may
reasonably require.
IN WITNESS WHEREOF, the Company has caused the Option to
be executed by its undersigned officers thereunto duly authorized
and its corporate seal to be hereunto affixed and attested this ___
day of _____________, 199_.
PLYMOUTH RUBBER COMPANY, INC.
By: _______________________________
Its: ______________________________,
duly authorized
Attest:
______________________
Assistant Secretary
EXERCISE OF OPTION
__________________, 199_
The undersigned hereby exercises non-qualified stock option
No. _______ dated _________________, 199_, issued by Plymouth
Rubber Company, Inc. to __________________________ to the extent of
______________ shares covered thereby and tenders herewith the
purchase price hereof.
WITNESS: GRANTEE:
_________________________ _________________________*
Address: _________________________
_________________________
SSN: _________________________
*If this option exercise form is executed by a person other
than the registered option holder, appropriate proof of such
person's right to exercise the subject option in accordance
with its terms must be furnished with this exercise form. The
Company reserves the right to request any additional documents
or instruments of proof as it may require.
No. NQ095-
NON-QUALIFIED STOCK OPTION
FOR THE PURCHASE OF CLASS B COMMON STOCK
$1.00 PAR VALUE
OF
PLYMOUTH RUBBER COMPANY, INC.
THIS IS TO CERTIFY THAT, FOR VALUE RECEIVED
___________________________________
(herein referred to as the "Grantee", which term shall include the
Grantee's estate or other person eligible to exercise this option,
where the context so permits or requires) is entitled to purchase
up to Fifteen Thousand (15,000) shares of Class B common stock,
$1.00 par value (hereinafter referred to as the "Class B Stock"),
of Plymouth Rubber Company, Inc., a Massachusetts corporation
(hereinafter referred to as the "Company"), at $8.88 per share, all
subject to the following terms and conditions hereof:
1. Term and Expiration. This option (the "Option") shall be
deemed divided into three (3) equal parts, each such part
(hereinafter referred to as an "Increment") covering one-third
(1/3) of the aggregate number of shares of Class B Stock subject
hereto. One Increment shall become exercisable one year from the
date hereof and one Increment shall become exercisable on the same
day of each succeeding year thereafter until the Option has become
exercisable in full; provided, however, that for each year (or
partial year) of service to the Board of Directors prior to the
1995 Annual Meeting of the Stockholders of the Company one-third
(1/3) of the Class B Stock covered by this Option shall be come
exercisable (and all Class B Stock covered by this Option which
does not become exercisable under this proviso shall become
exercisable as set forth in the terms immediately preceding this
proviso). Upon becoming exercisable, each Increment, or the
Option, as the case may be, shall remain exercisable until the
expiration of ten (10) years from the date hereof, and neither the
Option, nor any Increment, as the case may be, may be exercised
thereafter. Within the limits of the foregoing, the Option and any
of its Increments may be exercised from time to time, either in
whole or in part, until the expiration hereof. In the event that
the Company and/or the stockholders of the Company enter into an
agreement to dispose of all or substantially all of the assets of
the Company or an amount of the outstanding capital stock of the
Company sufficient to constitute effective control of the Company
by means of a sale, merger, reorganization, separation, liquidation
or any other transaction, the total number of shares of Class B
Stock covered by this Option shall become exercisable.
THIS OPTION IS ENTIRELY VOID AFTER .
2. Manner of Exercise. Subject to the terms and conditions
hereof, the Option, or any portion thereof, may be exercised by
written notice, substantially in the form attached hereto,
delivered to the Company at its then current executive offices,
such notice to be accompanied by full payment of the purchase price
of the shares so purchased. Upon such exercise the Grantee hereof,
or other person then having the right of exercise, shall be
entitled to receive a certificate or certificates representing the
shares so purchased. Payment of the purchase price shall be made
(i) in cash; or (ii) by the surrender to the Company of other Class
B Stock then owned by the Grantee, taken at a value equal to the
closing price of such Class B Stock on the last previous trading
day of such stock, as reported by the American Stock Exchange
trading listings for that day; or (iii) partly in cash and partly
by surrender of such Class B Stock, valued as aforesaid.
3. Assignability. The Option is not transferable or
assignable by the Grantee except by last will and testament or by
the laws of descent and distribution or pursuant to a qualified
domestic relations order under Section 401(a)(12)(B) of the
Internal Revenue Code of 1986, as amended (the "Code") or Title I
of the Employment Retirement Income Security Act, and the rules
thereunder; and during the lifetime of the Grantee the Option may
be exercised only by the Grantee. Without in any way limiting the
generality of the foregoing, the Option may not be pledged or
hypothecated in any way, shall not be assignable by operation of
law, and shall not be subject to execution, attachment or similar
process.
4. Option Registration. The shares of Class B Stock
purchasable hereunder shall be registered with the United States
Securities and Exchange Commission pursuant to an effective
Registration Statement on Form S-8. Subsequent to such
registration, a copy of said Registration Statement shall be
delivered to the Grantee, together with a copy of the Information
Statement related thereto, receipt of each of which the Grantee, by
his acceptance of the Option, acknowledges.
5. Termination. The Option shall terminate, expire and
become null and void and of no further force and effect at any time
that the Grantee ceases to be a member of the Board of Directors of
the Company (the "Board"); provided, however, that:
(A) If the Grantee ceases to be a member of the Board by
reason of death, his or her estate shall have the right for
one year following the date of death (but in no event
subsequent to ten (10) years after the date of grant) to
exercise the option with respect to all or any part of the
shares of Class B Stock subject thereto, regardless of whether
the right to purchase such shares had accrued on the date of
his or her death. The term "estate" shall mean the legal
representatives of the Grantee's estate or any person or
persons who acquire the right under the laws of descent and
distribution to exercise an option by reason of the Grantee's
death.
(B) If a Grantee ceases to be a member of the Board by
reason of his or her (1) attaining the age at which the
Company's policy precludes re-election as a director or (2)
becoming disabled within the meaning of that term as defined
in Section 22(e)(3) of the Code, then such Grantee, or his or
her estate (in the event of his or her death after such
cessation), shall have the right for a period of six (6)
months following such cessation of service (but in no event
subsequent to ten (10) years after the date of grant) to
exercise the option with respect to all or any part of the
shares of Class B Stock subject thereto, regardless of whether
the right to purchase such shares had accrued prior to such
Grantee ceasing to be a member of the Board.
(C) If a Grantee ceases to be a member of the Board for
any reason other than those provided under subsections (A) or
(B) above, such Grantee, or his or her estate (in the event of
his or her death after such cessation), shall have the right
for three (3) months following such cessation of service (but
in no event subsequent to ten (10) years after the date of
grant) to exercise the option with respect to only such number
of shares of Class B Stock as to which the right of exercise
had accrued prior to such Grantee ceasing to be a member of
the Board.
6. Adjustments of and Changes in Class B Stock. In the
event that the shares of Class B Stock, as presently constituted,
shall be changed into or exchanged for a different kind of shares
of stock or other securities of the Company or of another
corporation (whether by reason of merger, consolidation, split-up,
recapitalization, reclassification, subdivision of shares,
combination of shares, or otherwise) or if the number of such
shares of Class B Stock shall be increased through the payment of
a stock dividend or a dividend on the shares of Class B Stock or
rights or warrants to purchase securities of the Company shall be
made, then there shall be substituted for or added to each share of
Class B Stock theretofore appropriated or thereafter subject or
which may become subject to this Option, the number and kind of
shares of stock or other securities into which each outstanding
share of Class B Stock shall be so changed, or for which each such
share shall be exchanged, or to which each such share shall be
entitled, as the case may be, and references herein to the Class B
Stock shall be deemed to be references to any such stock or other
securities as appropriate. This Option shall also be appropriately
amended as to price and other terms as may be necessary to reflect
the foregoing events. In the event that there is any other change
in the number or kind of the outstanding shares of Class B Stock,
or of any stock or other securities into which such Class B Stock
shall have been changed or for which it shall have been exchanged,
then if the Board shall, in its sole discretion, determine that
such change equitably requires an adjustment in this Option, such
adjustment shall be made in accordance with such determination.
Fractional shares resulting from any adjustment in this Option
pursuant to this Section 6 may be settled in cash or otherwise as
the Board shall determine. Notice of any adjustment shall be given
by the Company to each holder of an option which has been so
adjusted and such adjustment (whether or not such notice is given)
shall be effective and binding for all purposes of this Option.
7. Withholding. Appropriate provision (which may, in
accordance with the procedures determined by the Board, and subject
to its approval or the approval of the Committee (as defined in the
Plan), include the election by the Grantee to have the Company
withhold from the shares of Class B Stock otherwise to be issued to
the Grantee upon exercise, such number of shares as would satisfy
the withholding amount due or to deliver to the Company shares of
Class B Stock already owned to satisfy the withholding amount, with
all Class B Stock valued at the fair market value of the Class B
Stock on the date of exercise) shall be made for all taxes required
to be withheld from the shares of Class B Stock issued under this
Option under the applicable laws or other regulations of any
governmental authority, whether federal, state or local, and
domestic or foreign. To that end, the Company may at any time take
such steps as it may deem necessary or appropriate (including the
sale or retention of shares) to provide for the payment of such
taxes.
8. General Provisions.
(a) The Company covenants that it shall at all times reserve and
keep available, out of its duly authorized but unissued Common
Stock, for issuance in the event of the exercise of the Option such
number of shares of Common Stock as shall from time to time be
sufficient therefor.
(b) Neither the Grantee nor any legal representative,
heir, legatee or distributee of the Grantee shall be deemed to be
the holder of, or to have any of the rights of a holder with
respect to, any of the shares of the Common Stock subject to the
Option, unless and until the Option has been exercised and the
Grantee or such legal representative, heir, legatee or distributee,
as the case may be, shall have received a certificate or
certificates for the shares issuable upon such exercise.
(c) In the event the Option shall be exercised, pursuant
to the provisions hereof, by any person or persons other than the
designated Grantee hereof, the notice of exercise required
hereunder shall be accompanied, in addition to the purchase price,
by appropriate proof of the right of such person or persons to
exercise the Option. The Company shall have the right to request
such additional documents or instruments or proof as it may
reasonably require.
IN WITNESS WHEREOF, the Company has caused the Option to
be executed by its undersigned officers thereunto duly authorized
and its corporate seal to be hereunto affixed and attested this ___
day of _____________, 199_.
PLYMOUTH RUBBER COMPANY, INC.
By: _______________________________
Its: ______________________________,
duly authorized
Attest:
______________________
Assistant Secretary
EXERCISE OF OPTION
__________________, 199_
The undersigned hereby exercises non-qualified stock option
No. _______ dated _________________, 199_, issued by Plymouth
Rubber Company, Inc. to __________________________ to the extent of
______________ shares covered thereby and tenders herewith the
purchase price hereof.
WITNESS: GRANTEE:
_________________________ _________________________*
Address: _________________________
_________________________
SSN: _________________________
*If this option exercise form is executed by a person other
than the registered option holder, appropriate proof of such
person's right to exercise the subject option in accordance
with its terms must be furnished with this exercise form. The
Company reserves the right to request any additional documents
or instruments of proof as it may require.
Exhibit 5.0
May 1, 1995
Plymouth Rubber Company, Inc.
104 Revere Street
Canton, MA 02021
Dear Sirs:
We have acted as counsel for Plymouth Rubber
Company, Inc, (the "Company") in connection with the
Registration Statement on Form S-8 (the "Registration
Statement"), to be filed by the Company with the
Securities and Exchange Commission under the Securities
Act of 1933, with respect to the Company's 1995 Non-
Employee Director Stock Option Plan and the Company's
1995 Employee Incentive Stock Option Plan (the "Plans")
and 270,000 shares of the Company's Class B Common Stock,
$1.00 par value ("Class B Common Stock"), reserved by the
Company for issuance upon the exercise of options granted
under the Plans. In this capacity, and in connection
with the opinion hereinafter expressed, we have reviewed
the Company's Restated Articles of Organization, its By-
Laws, as amended, and other pertinent documents,
corporate records and proceedings; and we are familiar
with the additional proceedings in connection with the
preparation and filing of the Registration Statement.
Based on the foregoing, and subject to the proposed
additional proceedings being taken as now contemplated by
us as counsel for the Company, we are of the opinion
that:
1. The Company is a corporation duly organized and
existing under the laws of the Commonwealth of
Massachusetts and in good standing under the corporate
laws thereof.
2. The shares covered by the Registration
Statement and to be offered and sold pursuant to the
Prospectus (as defined in Part I of Form S-8) constitute
duly authorized capital stock of the Company, and when
issued by the Company upon the exercise of options
granted under the Plans and against receipt of the Option
exercise price and otherwise, in accordance with the
provisions of the options so exercised, will be legally
and validly issued, fully paid and nonassessable shares
of Class B Common Stock of the Company.
Plymouth Rubber Company, Inc.
May 1, 1995
Page 2
We hereby consent to the filing of this opinion as
an exhibit to the Registration Statement, and we further
consent to the use of our name in the Information
Statement which constitutes a part of the Prospectus
related to the Registration Statement.
Very truly yours,
FRIEDMAN & ATHERTON
Exhibit 24.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 and this Post-Effective
Amendment to Registration Statements No. 33-60768 and No. 33-76126
on Form S-8 of our report dated February 1, 1995 appearing on page
16 of Plymouth Rubber Company's Annual Report on Form 10-K for the
fiscal year ended December 2, 1994. We also consent to the
reference to us under the heading "Experts".
PRICE WATERHOUSE LLP
Boston, Massachusetts
May 1, 1995
