-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, VezKE8VNR3kYqOgc8AH2+0q/yC4rEBVYTTFyPvN15fRV7qJQL6TGvQ9dffaho5c7 m0Y3Pyf7a0sma+dT441A4g== 0000079225-02-000008.txt : 20020509 0000079225-02-000008.hdr.sgml : 20020509 ACCESSION NUMBER: 0000079225-02-000008 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 7 FILED AS OF DATE: 20020509 EFFECTIVENESS DATE: 20020509 FILER: COMPANY DATA: COMPANY CONFORMED NAME: PLYMOUTH RUBBER CO INC CENTRAL INDEX KEY: 0000079225 STANDARD INDUSTRIAL CLASSIFICATION: FABRICATED RUBBER PRODUCTS, NEC [3060] IRS NUMBER: 041733970 STATE OF INCORPORATION: MA FISCAL YEAR END: 1127 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-87904 FILM NUMBER: 02639886 BUSINESS ADDRESS: STREET 1: 104 REVERE ST CITY: CANTON STATE: MA ZIP: 02021 BUSINESS PHONE: 6178280220 MAIL ADDRESS: STREET 1: PLYMOUTH RUBBER CO INC STREET 2: 104 REVERE ST CITY: CANTON STATE: MA ZIP: 02021 S-8 1 form_s8.txt FORM S-8 As filed with the Securities and Exchange Commission on May 9, 2002 Registration No. 333- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 _____________________ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 _____________________ PLYMOUTH RUBBER COMPANY, INC. (Exact Name of Registrant as Specified in Its Charter) Massachusetts 04-1733970 (State or Other Jurisdiction of (I.R.S. Employer Identification No.) Incorporation or Organization) 104 Revere Street, Canton, MA 02021 (Address of Principal Executive Offices) (Zip Code) 2002 STOCK INCENTIVE PLAN (Full Title of the Plan) ____________________ Joseph J. Berns Vice President, Finance PLYMOUTH RUBBER COMPANY, INC. 104 Revere Street Canton, MA 02021 (Name and Address of Agent For Service) (617) 828-0220 (Telephone Number, Including Area Code, of Agent For Service) ____________________ WITH A COPY TO: Paul Bork, Esq. FOLEY, HOAG & ELIOT LLP One Post Office Square Boston, Massachusetts 02109 (617) 832-1000 ____________________ CALCULATION OF REGISTRATION FEE - ----------------------------------------------------------------------------- Proposed Proposed Maximum Maximum Offering Aggregate Amount of Title of Securities Amount Price Per Offering Registration To Be Registered To Be Registered Share Price Fee - ----------------------------------------------------------------------------- Class B Common Stock, $1.00 par value (1) 300,000 $ 1.00 $ 300,000 $ 27.60 - ----------------------------------------------------------------------------- (1) In addition, pursuant to Rule 416 under the Securities Act of 1933, as amended (the "Securities Act"), this Registration Statement also relates to such indeterminate number of (i) additional shares of Common Stock of the Registrant as may be issuable as a result of stock splits, stock dividends or similar transactions, and (ii) interests to be offered or sold pursuant to the employee benefits plans described herein. (2) Calculated pursuant to Rule 457(c) and (h) under the Securities Act, solely for the purpose of computing the registration fee and, based on the average of the high and low prices of the Class B Common Stock as on May 2, 2002, as reported by the American Stock Exchange, Inc. This Registration Statement on Form S-8 is filed to register the sale of up to 300,000 shares of Class B Common Stock authorized pursuant to our 2002 Stock Incentive Plan (the "2002 Plan") approved by our stockholders on April 26, 2002. PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS Pursuant to the instructions in Part I of Form S-8, the information required by Item 1, Plan Information, and Item 2, Registration Information, of Form S-8 has not been filed as part of this Registration Statement. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT 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 the Registration Statement: (a) The Registrant's Annual Report on Form 10-K for the year ended November 30, 2001 (as filed on March 7, 2002); (b) The Registrant's Quarterly Report on Form 10-Q for the quarterly period ended March 1, 2002 (as filed on April 11, 2002); and the Registrant's definitive proxy statement in connection with its 2002 annual meeting of stockholders (as filed on March 28, 2002); and (c) The description of the Registrant's Class B Common Stock contained 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. 2 The financial statements of the Company included in the Company's Annual Report on Form 10-K for the fiscal year ended November 30, 2001, have been audited by PricewaterhouseCoopers 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 PricewaterhouseCoopers LLP pertaining to such financial statements (to the extent covered by consents filed with the Securities and Exchange Commission). 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. 3 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 2002 Stock Incentive Plan. 4.4(a) Form of Incentive Stock Option Grant and Agreement 4.4(b) Form of Non-Statutory Stock Option Grant and Agreement 4.4(c) Form of Restricted Stock Grant and Repurchase Agreement 5. Opinion of Foley, Hoag & Eliot LLP. 24.1 Consent of Foley, Hoag & Eliot LLP (included in Exhibit 5). 24.2 Consent of independent accountants PricewaterhouseCoopers LLP. 25.1 Power of Attorney (included in signature page). 4 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; 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. 5 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 26th day of April, 2002. PLYMOUTH RUBBER COMPANY, INC. /s/ MAURICE J. HAMILBURG By: Maurice J. Hamilburg President, Director and Co-Chief Executive Officer POWER OF ATTORNEY Each of the undersigned officers and directors of Plymouth Rubber Company, Inc. hereby constitutes and appoints Maurice J. Hamilburg, Joseph J. Berns, and Paul Bork, Esq., and each of them singly, his 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. 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 /s/ MAURICE J. HAMILBURG President, Director and Co- 4/26/02 Maurice J. Hamilburg Chief Executive Officer /s/ JOSEPH D. HAMILBURG Chairman, Director and Co- 4/26/02 Joseph D. Hamilburg Chief Executive Officer 6 /s/ JOSEPH J. BERNS Vice President, Finance, 4/26/02 Joseph J. Berns Treasurer, Chief Financial Officer and Chief Accounting Officer /s/ JANE H. GUY Director 4/26/02 Jane H. Guy /s/ MELVIN L. KEATING Director 4/26/02 Melvin L. Keating /s/ JAMES M. OATES Director 4/26/02 James M. Oates /s/ C. GERALD GOLDSMITH Director 4/26/02 C. Gerald Goldsmith /s/ EDWARD h. PENDERGAST Director 4/26/02 Edward H. Pendergast /s/ DUANE E. WHEELER Director 4/26/02 Duane E. Wheeler /s/ SUMNER KAUFMAN Director 4/26/02 Sumner Kaufman 7 INDEX TO EXHIBITS Exhibit Description of Document If not filed herewith, No. incorporated by reference to 4.1 Restated Articles of Exhibit 3(i) to the Company's Organization 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 2002 Filed herewith Stock Incentive Plan 4.4(a) Form of Incentive Stock Filed herewith Option Grant and Agreement 4.4(b) Form of Non-Statutory Stock Filed herewith Option Grant and Agreement 4.4(c) Form of Restricted Stock Filed herewith Grant and Repurchase Agreement 5 Opinion of Foley, Hoag Filed herewith & Eliot LLP 24.1 Consent of Foley, Hoag Filed herewith & Eliot LLP (included in Exhibit 5) 24.2 Consent of independent Filed herewith accountants PricewaterhouseCoopers LLP 25.1 Power of Attorney Filed herewith (included in signature page) 8 EX-4 3 exh4_3.txt EXHIBIT 4.3 EXHIBIT 4.3 PLYMOUTH RUBBER COMPANY, INC. 2002 STOCK INCENTIVE PLAN SECTION 1. General Purpose of the Plan; Definitions The name of the plan is the Plymouth Rubber Company, Inc. 2002 Stock Incentive Plan (the "Plan"). The purpose of the Plan is to encourage and enable officers and employees of, and other persons providing services to, Plymouth Rubber Company, Inc. (the "Company") and its Affiliates to acquire a proprietary interest in the Company. It is anticipated that providing such persons with a direct stake in the Company's welfare will assure a closer identification of their interests with those of the Company and its shareholders, thereby stimulating their efforts on the Company's behalf and strengthening their desire to remain with the Company. The following terms shall be defined as set forth below: "Affiliate" means a parent corporation, if any, and each subsidiary corporation of the Company, as those terms are defined in Section 424 of the Code. "Award" or "Awards", except where referring to a particular category of grant under the Plan, shall include Incentive Stock Options, Non-Statutory Stock Options, Restricted Stock Awards and Unrestricted Stock Awards. "Board" means the Board of Directors of the Company. "Cause" shall mean, with respect to any Award holder, a determination by the Company (including the Board) or any Affiliate that the Holder's employment or other relationship with the Company or any such Affiliate should be terminated as a result of (i) a material breach by the Award holder of any agreement to which the Award holder and the Company (or any such Affiliate) are parties, (ii) any act (other than retirement) or omission to act by the Award holder that may have a material and adverse effect on the business of the Company, such Affiliate or any other Affiliate or on the Award holder's ability to perform services for the Company or any such Affiliate, including, without limitation, the proven or admitted commission of any crime (other than an ordinary traffic violation), or (iii) any material misconduct or material neglect of duties by the Award holder in connection with the business or affairs of the Company or any such Affiliate. "Change of Control" shall have the meaning set forth in Section 13. "Code" means the Internal Revenue Code of 1986, as amended, and any successor Code, and related rules, regulations and interpretations. "Committee" shall have the meaning set forth in Section 2. "Disability means disability as set forth in Section 22(e)(3) of the Code. "Effective Date" means the date on which the Plan is approved by the Board of Directors as set forth in Section 15. "Eligible Person" shall have the meaning set forth in Section 4. "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended. "Fair Market Value" on any given date means the closing price per share of the Stock on such date as reported by such registered national securities exchange on which the Stock is listed, or, if the Stock is not listed on such an exchange, as quoted on NASDAQ; provided, that, if there is no trading on such date, Fair Market Value shall be deemed to be the closing price per share on the last preceding date on which the Stock was traded. If the Stock is not listed on any registered national securities exchange or quoted on NASDAQ, the Fair Market Value of the Stock shall be determined in good faith by the Committee. "Incentive Stock Option" means any Stock Option designated and qualified as an "incentive stock option" as defined in Section 422 of the Code. "Non-Employee Director" means any director who: (i) is not currently an officer of the Company or an Affiliate, or otherwise currently employed by the Company or an Affiliate, (ii) does not receive compensation, either directly or indirectly, from the Company or an Affiliate, for services rendered as a consultant or in any capacity other than as a director, except for an amount that does not exceed the dollar amount for which disclosure would be required pursuant to Rule 404(a) of Regulation S-K promulgated by the SEC, (iii) does not possess an interest in any other transaction for which disclosure would be required pursuant to Rule 404(a) of Regulation S-K, and (iv) is not engaged in a business relationship for which disclosure would be required pursuant to Rule 404(b) of Regulation S-K. "Non-Statutory Stock Option" means any Stock Option that is not an Incentive Stock Option. "Normal Retirement" means retirement from active employment with the Company and its Affiliates in accordance with the retirement policies of the Company and its Affiliates then in effect. "Outside Director" means any director who (i) is not an employee of the Company or of any "affiliated group," as such term is defined in Section 1504(a) of the Code, which includes the Company (an "Affiliated Group Member"), (ii) is not a former employee of the Company or any Affiliated Group Member who is receiving compensation for prior services (other than benefits under a tax-qualified retirement plan) during the Company's or any Affiliated Group Member's taxable year, (iii) has not been an officer of the Company or any Affiliated Group Member and (iv) does not receive remuneration from the Company or any Affiliated Group Member, either directly or indirectly, in any capacity other than as a director. "Outside Director" shall be determined in accordance with Section 162(m) of the Code and the Treasury regulations issued thereunder. 2 "Option" or "Stock Option" means any option to purchase shares of Stock granted pursuant to Section 5. "Restricted Stock Award" means an Award granted pursuant to Section 6. "SEC" means the Securities and Exchange Commission or any successor authority. "Stock" means the Class B Common Stock, $1.00 par value per share, of the Company, subject to adjustments pursuant to Section 3. "Unrestricted Stock Award" means Awards granted pursuant to Section 7. SECTION 2. Administration of Plan; Committee Authority to Select Participants and Determine Awards. (a) Committee. The Plan shall be administered by a committee of the Board (the "Committee") consisting of not less than two (2) persons each of whom qualifies as an Outside Director and a Non-Employee Director, but the authority and validity of any act taken or not taken by the Committee shall not be affected if any person administering the Plan is not an Outside Director nor a Non-Employee Director. Except as specifically reserved to the Board under the terms of the Plan, the Committee shall have full and final authority to operate, manage and administer the Plan on behalf of the Company. Action by the Committee shall require the affirmative vote of a majority of all members thereof. (b) Powers of Committee. The Committee shall have the power and authority to grant and modify Awards consistent with the terms of the Plan, including the power and authority: (i) to select the persons to whom Awards may from time to time be granted; (ii) to determine the time or times of grant, and the extent, if any, of Incentive Stock Options, Non-Statutory Stock Options, Restricted Stock and Unrestricted Stock, or any combination of the foregoing, granted to any one or more participants; (iii) to determine the number of shares to be covered by any Award; (iv) to determine and modify the terms and conditions, including restrictions, not inconsistent with the terms of the Plan, of any Award, which terms and conditions may differ among individual Awards and participants, and to approve the form of written instruments evidencing the Awards; provided, however, that no such action shall adversely affect rights under any outstanding Award without the participant's consent; (v) to accelerate the exercisability or vesting of all or any portion of any Award; 3 (vi) to extend the period in which any outstanding Stock Option may be exercised; and (vii) to adopt, alter and repeal such rules, guidelines and practices for administration of the Plan and for its own acts and proceedings as it shall deem advisable; to interpret the terms and provisions of the Plan and any Award (including related written instruments); to make all determinations it deems advisable for the administration of the Plan; to decide all disputes arising in connection with the Plan; and to otherwise supervise the administration of the Plan. All decisions and interpretations of the Committee shall be binding on all persons, including the Company and Plan participants. No member or former member of the Committee or the Board shall be liable for any action or determination made in good faith with respect to this Plan. SECTION 3. Shares Issuable under the Plan; Mergers; Substitution. (a) Shares Issuable. The maximum number of shares of Stock with respect to which Awards may be granted under the Plan shall be three hundred thousand (300,000). For purposes of this limitation, the shares of Stock underlying any Awards which are forfeited, cancelled, reacquired by the Company or otherwise terminated (other than by exercise) shall be added back to the shares of Stock with respect to which Awards may be granted under the Plan. Shares issued under the Plan may be authorized but unissued shares or shares reacquired by the Company. (b) Limitation on Awards. In no event may any Plan participant be granted Awards with respect to more than seventy-five thousand (75,000) shares of Stock in any calendar year. The number of shares of Stock relating to an Award granted to a Plan participant in a calendar year that is subsequently forfeited, cancelled or otherwise terminated shall continue to count toward the foregoing limitation in such calendar year. In addition, if the exercise price of an Award is subsequently reduced, the transaction shall be deemed a cancellation of the original Award and the grant of a new one so that both transactions shall count toward the maximum shares issuable in the calendar year of each respective transaction. (c) Stock Dividends, Mergers, etc. In the event that after approval of the Plan by the stockholders of the Company in accordance with Section 15, the Company effects a stock dividend, stock split or similar change in capitalization affecting the Stock, the Committee shall make appropriate adjustments in (i) the number and kind of shares of stock or securities with respect to which Awards may thereafter be granted (including without limitation the limitations set forth in Sections 3(a) and (b) above), (ii) the number and kind of shares remaining subject to outstanding Awards, and (iii) the option or purchase price in respect of such shares. In the event of any merger, consolidation, dissolution or liquidation of the Company, the Committee in its sole discretion may, as to any outstanding Awards, make such substitution or adjustment in the aggregate number of shares reserved for issuance under the Plan and in the number and purchase price (if any) of shares subject to such Awards as it may determine and as may be permitted by the terms of such transaction, or accelerate, amend or terminate such Awards upon such terms and conditions as it shall provide (which, in the case of the termination of the vested portion of 4 any Award, shall require payment or other consideration which the Committee deems equitable in the circumstances), subject, however, to the provisions of Section 13. (d) Substitute Awards. The Committee may grant Awards under the Plan in substitution for stock and stock based awards held by employees of another corporation who concurrently become employees of the Company or an Affiliate as the result of a merger or consolidation of the employing corporation with the Company or an Affiliate or the acquisition by the Company or an Affiliate of property or stock of the employing corporation. The Committee may direct that the substitute awards be granted on such terms and conditions as the Committee considers appropriate in the circumstances. Shares which may be delivered under such substitute awards may be in addition to the maximum number of shares provided for in Section 3(a). SECTION 4. Eligibility. Awards may be granted to officers and employees of, and consultants and advisers to, the Company or its Affiliates ("Eligible Persons"). SECTION 5. Stock Options. The Committee may grant to Eligible Persons options to purchase stock. Any Stock Option granted under the Plan shall be in such form as the Committee may from time to time approve. Stock Options granted under the Plan may be either Incentive Stock Options (subject to compliance with applicable law) or Non-Statutory Stock Options. Unless otherwise so designated, an Option shall be a Non- Statutory Stock Option. To the extent that any option does not qualify as an Incentive Stock Option, it shall constitute a Non-Statutory Stock Option. No Incentive Stock Option shall be granted under the Plan after the tenth anniversary of the date of adoption of the Plan by the Board. The Committee in its discretion may determine the effective date of Stock Options, provided, however, that grants of Incentive Stock Options shall be made only to persons who are, on the effective date of the grant, employees of the Company or an Affiliate. Stock Options granted pursuant to this Section 5(a) shall be subject to the following terms and conditions and the terms and conditions of Section 11 and shall contain such additional terms and conditions, not inconsistent with the terms of the Plan, as the Committee shall deem desirable. (a) Exercise Price. The exercise price per share for the Stock covered by a Stock Option granted pursuant to this Section 5(a) shall be determined by the Committee at the time of grant but shall be, in the case of Incentive Stock Options, not less than one hundred percent (100%) of Fair Market Value on the date of grant. If an employee owns or is deemed to own (by reason of the attribution rules applicable under Section 424(d) of the Code) more than ten percent (10%) of the combined voting power of all classes of stock of the Company or any subsidiary or parent corporation and an Incentive Stock Option is granted to such employee, the 5 option price shall be not less than one hundred ten percent (110%) of Fair Market Value on the grant date. (b) Option Term. The term of each Stock Option shall be fixed by the Committee, but no Incentive Stock Option shall be exercisable more than ten (10) years after the date the option is granted. If an employee owns or is deemed to own (by reason of the attribution rules of Section 424(d) of the Code) more than ten percent (10%) of the combined voting power of all classes of stock of the Company or any subsidiary or parent corporation and an Incentive Stock Option is granted to such employee, the term of such option shall be no more than five (5) years from the date of grant. (c) Exercisability; Rights of a Shareholder. Stock Options shall become vested and exercisable at such time or times, whether or not in installments, as shall be determined by the Committee at or after the grant date. The Committee may at any time accelerate the exercisability of all or any portion of any Stock Option. An optionee shall have the rights of a shareholder only as to shares acquired upon the exercise of a Stock Option and not as to unexercised Stock Options. (d) Method of Exercise. Stock Options may be exercised in whole or in part, by delivering written notice of exercise to the Company, specifying the number of shares to be purchased. Payment of the purchase price may be made by one or more of the following methods: (i) In cash, by certified or bank check or other instrument acceptable to the Committee; (ii) If permitted by the Committee, in its discretion, in the form of shares of Stock that are not then subject to restrictions and that have been owned by the optionee for a period of at least six months. Such surrendered shares shall be valued at Fair Market Value on the exercise date; or (iii) If permitted by the Committee, in its discretion, by the optionee delivering to the Company a properly executed exercise notice together with irrevocable instructions to a broker to promptly deliver to the Company cash or a check payable and acceptable to the Company to pay the purchase price; provided that in the event the optionee chooses to pay the purchase price as so provided, the optionee and the broker shall comply with such procedures and enter into such agreements of indemnity and other agreements as the Committee shall prescribe as a condition of such payment procedure. The Company need not act upon such exercise notice until the Company receives full payment of the exercise price; or (iv) By any other means (including, without limitation, by delivery of a promissory note of the optionee payable on such terms as are specified by the Committee) which the Committee determines are consistent with the purpose of the Plan and with applicable laws and regulations. The delivery of certificates representing shares of Stock to be purchased pursuant to the exercise of a Stock Option will be contingent upon receipt from the Optionee (or a purchaser acting in his stead in accordance with the provisions of the Stock Option) by the Company of the 6 full purchase price for such shares and the fulfillment of any other requirements contained in the Stock Option or imposed by applicable law. (e) Non-transferability of Options. Except as the Committee may provide with respect to a Non-Statutory Stock Option, no Stock Option shall be transferable other than by will or by the laws of descent and distribution and all Stock Options shall be exercisable, during the optionee's lifetime, only by the optionee. (f) Annual Limit on Incentive Stock Options. To the extent required for "incentive stock option" treatment under Section 422 of the Code, the aggregate Fair Market Value (determined as of the time of grant) of the Stock with respect to which Incentive Stock Options granted under this Plan and any other plan of the Company or its Affiliates become exercisable for the first time by an optionee during any calendar year shall not exceed $100,000. (g) Lockup Agreement. The Committee may in its discretion specify upon granting an Option that the optionee shall agree for a period of time (not to exceed 180 days) from the effective date of any registration of securities of the Company (upon request of the Company or the underwriters managing any underwritten offering of the Company's securities), not to sell, make any short sale of, loan, grant any option for the purpose of, or otherwise dispose of any shares issued pursuant to the exercise of such Option, without the prior written consent of the Company or such underwriters, as the case may be. SECTION 6. Restricted Stock Awards. (a) Nature of Restricted Stock Award. The Committee in its discretion may grant Restricted Stock Awards to any Eligible Person, entitling the recipient to acquire, for a purchase price determined by the Committee, shares of Stock subject to such restrictions and conditions as the Committee may determine at the time of grant ("Restricted Stock), including continued employment and/or achievement of pre-established performance goals and objectives. (b) Acceptance of Award. A participant who is granted a Restricted Stock Award shall have no rights with respect to such Award unless the participant shall have accepted the Award within sixty (60) days (or such shorter date as the Committee may specify) following the award date by making payment to the Company of the specified purchase price, of the shares covered by the Award and by executing and delivering to the Company a written instrument that sets forth the terms and conditions applicable to the Restricted Stock in such form as the Committee shall determine. (c) Rights as a Shareholder. Upon complying with Section 6(b) above, a participant shall have all the rights of a shareholder with respect to the Restricted Stock, including voting and dividend rights, subject to non-transferability restrictions and Company repurchase or forfeiture rights described in this Section 6 and subject to such other conditions contained in the written instrument evidencing the Restricted Award. Unless the Committee shall otherwise determine, certificates evidencing shares of Restricted Stock shall remain in the possession of the Company until such shares are vested as provided in Section 6(e) below. (d) Restrictions. Shares of Restricted Stock may not be sold, assigned, transferred, pledged or otherwise encumbered or disposed of except as specifically provided herein. In the 7 event of termination of employment by the Company and its Affiliates for any reason (including death, Disability, Normal Retirement and for Cause), the Company shall have the right, at the discretion of the Committee, to repurchase shares of Restricted Stock which have not then vested at their purchase price, or to require forfeiture of such shares to the Company if acquired at no cost, from the participant or the participant's legal representative. The Company must exercise such right of repurchase or forfeiture within ninety (90) days following such termination of employment (unless otherwise specified in the written instrument evidencing the Restricted Stock Award). (e) Vesting of Restricted Stock. The Committee at the time of grant shall specify the date or dates and/or the attainment of pre- established performance goals, objectives and other conditions on which the non-transferability of the Restricted Stock and the Company's right of repurchase or forfeiture shall lapse. Subsequent to such date or dates and/or the attainment of such pre-established performance goals, objectives and other conditions, the shares on which all restrictions have lapsed shall no longer be Restricted Stock and shall be deemed "vested." The Committee at any time may accelerate such date or dates and otherwise waive or, subject to Section 11, amend any conditions of the Award. (f) Waiver, Deferral and Reinvestment of Dividends. The written instrument evidencing the Restricted Stock Award may require or permit the immediate payment, waiver, deferral or investment of dividends paid on the Restricted Stock. SECTION 7. Unrestricted Stock Awards. (a) Grant or Sale of Unrestricted Stock. The Committee in its discretion may grant or sell to any Eligible Person shares of Stock free of any restrictions under the Plan ("Unrestricted Stock") at a purchase price determined by the Committee. Shares of Unrestricted Stock may be granted or sold as described in the preceding sentence in respect of past services or other valid consideration. (b) Restrictions on Transfers. The right to receive unrestricted Stock may not be sold, assigned, transferred, pledged or otherwise encumbered, other than by will or the laws of descent and distribution. SECTION 8. Termination of Stock Options. (a) Incentive Stock Options: (i) Termination by Death. If any participant's employment by the Company and its Affiliates terminates by reason of death, any Incentive Stock Option owned by such participant may thereafter be exercised to the extent exercisable at the date of death, by the legal representative or legatee of the participant, for a period of one (1) year (or such longer period as the Committee shall specify at any time) from the date of death, or until the expiration of the stated term of the Incentive Stock Option, if earlier. (ii) Termination by Reason of Disability or Normal Retirement. 8 (A) Any Incentive Stock Option held by a participant whose employment by the Company and its Affiliates has terminated by reason of Disability may thereafter be exercised, to the extent it was exercisable at the time of such termination, for a period of one (1) year (or such longer period as the Committee shall specify at any time) from the date of such termination of employment, or until the expiration of the stated term of the Option, if earlier. (B) Any Incentive Stock Option held by a participant whose employment by the Company and its Affiliates has terminated by reason of Normal Retirement may thereafter be exercised, to the extent it was exercisable at the time of such termination, for a period of ninety (90) days (or such longer period as the Committee shall specify at any time) from the date of such termination of employment, or until the expiration of the stated term of the Option, if earlier. (C) The Committee shall have sole authority and discretion to determine whether a participant's employment has been terminated by reason of Disability or Normal Retirement. (iii) Termination for Cause. If any participant's employment by the Company and its Affiliates has been terminated for Cause, any Incentive Stock Option held by such participant shall immediately terminate and be of no further force and effect; provided, however, that the Committee may, in its sole discretion, provide that such Option can be exercised for a period of up to thirty (30) days from the date of termination of employment or until the expiration of the stated term of the Option, if earlier. (iv) Other Termination. Unless otherwise determined by the Committee, if a participant's employment by the Company and its Affiliates terminates for any reason other than death, Disability, Normal Retirement or for Cause, any Incentive Stock Option held by such participant may thereafter be exercised, to the extent it was exercisable on the date of termination of employment, for ninety (90) days (or such other period as the Committee shall specify) from the date of termination of employment or until the expiration of the stated term of the Option, if earlier. (b) Non-Statutory Stock Options. Any Non-Statutory Stock Option granted under the Plan shall contain such terms and conditions with respect to its termination as the Committee, in its discretion, may from time to time determine. SECTION 9. Tax Withholding. (a) Payment by Participant. Each participant shall, no later than the date as of which the value of an Award or of any Stock or other amounts received thereunder first becomes includable in the gross income of the participant for Federal income tax purposes, pay to the Company, or make arrangements satisfactory to the Committee regarding payment of any Federal, state, local and/or payroll taxes of any kind required by law to be withheld with respect to such income. The Company and its Affiliates shall, to the extent permitted by law, have the right to deduct any such taxes from any payment of any kind otherwise due to the participant. (b) Payment in Shares. A Participant may elect, with the consent of the Committee, to have such tax withholding obligation satisfied, in whole or in part, by (i) authorizing the 9 Company to withhold from shares of Stock to be issued pursuant to an Award a number of shares with an aggregate Fair Market Value (as of the date the withholding is effected) that would satisfy the minimum withholding amount due with respect to such Award, or (ii) transferring to the Company shares of Stock owned by the participant for a period of at least six months and with an aggregate Fair Market Value (as of the date the withholding is effected) that would satisfy the minimum withholding amount due. (c) Notice of Disqualifying Disposition. Each holder of an Incentive Option shall agree to notify the Company in writing immediately after making a disqualifying disposition (as defined in Section 421(b) of the Code) of any Common Stock purchased upon exercise of an Incentive Stock Option. SECTION 10. Transfer and Leave of Absence. For purposes of the Plan, the following events shall not be deemed a termination of employment: (a) a transfer to the employment of the Company from an Affiliate or from the Company to an Affiliate, or from one Affiliate to another; (b) an approved leave of absence for military service or sickness, or for any other purpose approved by the Company, if the employee's right to re-employment is guaranteed either by a statute or by contract or under the policy pursuant to which the leave of absence was granted or if the Committee otherwise so provides in writing. SECTION 11. Amendments and Termination. The Board may at any time amend or discontinue the Plan and the Committee may at any time amend or cancel any outstanding Award (or provide substitute Awards at the same or reduced exercise or purchase price or with no exercise or purchase price, but such price, if any, must satisfy the requirements which would apply to the substitute or amended Award if it were then initially granted under this Plan) for the purpose of satisfying changes in law or for any other lawful purpose, but no such action shall adversely affect rights under any outstanding Award without the holder's consent. This Plan shall terminate as of the tenth anniversary of its effective date. The Board may terminate this Plan at any earlier time for any reason. No Award may be granted after the Plan has been terminated. No Award granted while this Plan is in effect shall be altered or impaired by termination of this Plan, except upon the consent of the holder of such Award. The power of the Committee to construe and interpret this Plan and the Awards granted prior to the termination of this Plan shall continue after such termination. SECTION 12. Status of Plan. With respect to the portion of any Award which has not been exercised and any payments in cash, Stock or other consideration not received by a participant, a participant shall have no 10 rights greater than those of a general creditor of the Company unless the Committee shall otherwise expressly determine in connection with any Award or Awards. In its sole discretion, the Committee may authorize the creation of trusts or other arrangements to meet the Company's obligations to deliver Stock or make payments with respect to Awards hereunder, provided that the existence of such trusts or other arrangements is consistent with the provision of the foregoing sentence. SECTION 13. Change of Control Provisions. (a) Upon the occurrence of a Change of Control as defined in this Section 13: (i) subject to the provisions of clause (iii) below, after the effective date of such Change of Control, each holder of an outstanding Stock Option or Restricted Stock Award shall be entitled, upon exercise of such Award, to receive, in lieu of shares of Stock, shares of such stock or other securities, cash or property (or consideration based upon shares of such stock or other securities, cash or property) as the holders of shares of Stock received in connection with the Change of Control; (ii) the Committee may accelerate the time for exercise of, and waive all conditions and restrictions on, each unexercised and unexpired Stock Option and Restricted Stock Award, effective upon a date prior or subsequent to the effective date of such Change of Control, as specified by the Committee; or (iii) each outstanding Stock Option and Restricted Stock Award may be cancelled by the Committee as of the effective date of any such Change of Control provided that (x) notice of such cancellation shall be given to each holder of such an Award and (y) each holder of such an Award shall have the right to exercise such Award to the extent that the same is then exercisable or, in full, if the Committee shall have accelerated the time for exercise of all such unexercised and unexpired Awards, during the thirty (30) day period preceding the effective date of such Change of Control. (b) "Change of Control" shall mean the occurrence of any one of the following events: (i) any "person" (as such term is used in Sections 13(d) and 14(d)(2) of the Act) becomes, after the Effective Date of this Plan, a "beneficial owner" (as such term is defined in Rule 13d-3 promulgated under the Act) (other than the Company, any trustee or other fiduciary holding securities under an employee benefit plan of the Company, or any corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company), directly or indirectly, of securities of the Company representing fifty percent (50%) or more of the combined voting power of the Company's then outstanding securities; or (ii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation or other entity, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than fifty percent (50%) of the combined voting power of 11 the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation; or (iii) the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company's assets. SECTION 14. General Provisions. (a) No Distribution; Compliance with Legal Requirements. The Committee may require each person acquiring shares pursuant to an Award to represent to and agree with the Company in writing that such person is acquiring the shares without a view to distribution thereof. No shares of Stock shall be issued pursuant to an Award until all applicable securities laws and other legal and stock exchange requirements have been satisfied. The Committee may require the placing of such stop orders and restrictive legends on certificates for Stock and Awards as it deems appropriate. (b) Delivery of Stock Certificates. Delivery of stock certificates to participants under this Plan shall be deemed effected for all purposes when the Company or a stock transfer agent of the Company shall have delivered such certificates in the United States mail, addressed to the participant, at the participant's last known address on file with the Company. (c) Other Compensation Arrangements; No Employment Rights. Nothing contained in this Plan shall prevent the Board from adopting other or additional compensation arrangements, including trusts, subject to stockholder approval if such approval is required; and such arrangements may be either generally applicable or applicable only in specific cases. The adoption of the Plan or any Award under the Plan does not confer upon any employee any right to continued employment with the Company or any Affiliate. SECTION 15. Effective Date of Plan. This Plan shall become effective upon its adoption by the Company's Board of Directors and shall be submitted to the shareholders of the Company for approval within twelve months following the adoption of this Plan by the Board If such shareholder approval is not obtained within twelve months after the Board's adoption of the Plan, no Options previously granted under the Plan shall be deemed to be Incentive Stock Options and no Incentive Stock Options shall be granted thereafter. SECTION 16. Governing Law. This Plan shall be governed by, and construed and enforced in accordance with, the substantive laws of the Commonwealth of Massachusetts without regard to its principles of conflicts of laws. * * * 12 EX-4 4 exh4_4a.txt EXHIBIT 4.4(A) EXHIBIT 4.4(a) Grant Date: Incentive Stock Option Granted by Plymouth Rubber Company, Inc. Under the 2002 Stock Incentive Plan For valuable consideration, the receipt of which is hereby acknowledged, Plymouth Rubber Company, Inc., a Massachusetts corporation (hereinafter together with its subsidiaries, where the context permits, referred to as the "Company"), hereby grants to the Holder named in Schedule A attached hereto the following Incentive Stock Option: Section 1. Grant of Option. Subject to the terms and conditions hereinafter set forth, the Holder is hereby given the right and option to purchase from the Company shares of the Company's Class B Common Stock, $1.00 par value per share (the "Common Stock"). Schedule A attached hereto and hereby incorporated herein sets forth with respect to this option (i) its expiration date, (ii) its exercise price per share, (iii) the maximum number of shares that the Holder may purchase upon exercise hereof, (iv) the vesting schedule, and (v) certain other terms and conditions applicable to this option and incorporated herein. This option shall terminate in all respects, and all rights and options to purchase shares hereunder shall terminate, ten years from the Grant Date set forth above. The right to purchase shares hereunder shall be cumulative. This option is and shall be subject in every respect to the provisions of the Company's 2002 Stock Incentive Plan (the "Plan"), as amended from time to time, which is incorporated herein by reference and made a part hereof. In the event of any conflict or inconsistency between the terms hereof and those of the Plan, the latter shall prevail. References herein to the Committee shall mean the Committee as defined in the Plan. Section 2. Exercise of Option. This option shall be exercised by the delivery of written notice to the Company (the "Notice") setting forth the number of shares with respect to which the option is to be exercised and the address to which the certificates for such shares are to be mailed, together with (i) cash or check payable to the order of the Company for an amount equal to the option price for the number of shares specified in the Notice, or (ii) with the consent of the Committee, shares of Common Stock of the Company which (a) either have been owned by the Holder for more than six (6) months on the date of surrender or were not acquired, directly or indirectly, from the Company, and (b) have a fair market value on the date of surrender not greater than the option price for the shares as to which such option is being exercised, or (iii) with the consent of the Committee, delivery of such documentation as the Committee and a broker, if applicable, shall require to effect an exercise of the option and delivery to the Company of the sale or loan proceeds required to pay the option price of the shares for which the option is being exercised, or (iv) with the consent of the Committee, such other consideration which is acceptable to the Committee and which has a fair market value equal to the option price for the shares as to which the option is being exercised, or (v) with the consent of the Committee, a combination of (i), (ii), (iii), (iv) and/or (v). For the purpose of the preceding sentence, the fair market value per share of the Common Stock so delivered to the Company shall be the closing price per share on the date of delivery as reported by such registered national securities exchange on which the Common Stock is listed, or, if the Common Stock is not listed on such an exchange, as quoted on NASDAQ; provided, that, if there is no trading on such date, the fair market value shall be deemed to be the closing price per share on the last preceding date on which the Common Stock was traded. If the Common Stock is not listed on any national registered securities exchange or quoted on NASDAQ, the fair market value of the Common Stock shall be determined in good faith by the Committee. Section 3. Conditions and Limitations. The Company, in its discretion, may file a registration statement on Form S-8 under the Securities Act of 1933 to register shares of Common Stock reserved for issuance under the Plan. At any time at which such a registration statement is not in effect, it shall be an additional condition precedent to any exercise of this option that the Holder shall deliver to the Company a customary "investment letter" satisfactory to the Company and its counsel in which, among other things, the Holder shall state that the Holder is purchasing the shares for investment and acknowledges that they are not freely transferable except in compliance with state and federal securities laws. Section 4. Delivery of Shares. Within a reasonable time after receipt by the Company of the Notice and payment for any shares to be purchased hereunder and, if required as a condition to exercise, the investment letter described in Section 3, the Company will deliver or cause to be delivered to the Holder (or if any other individual or individuals are exercising this option, to such individual or individuals) at the address specified in the Notice a certificate or certificates for the number of shares with respect to which the option is then being exercised, registered in the name or names of the individual or individuals exercising the option, either alone or jointly with another person or persons with rights of survivorship, as the individual or individuals exercising the option shall prescribe in writing to the Company at or prior to such purchase; provided, however, that if any law or regulation or order of the Securities and Exchange Commission or other body having jurisdiction in the premises shall require the Company or the Holder (or the individual or individuals exercising this option) to take any action in connection with the shares then being purchased, the date for the delivery of the certificates for such shares shall be extended for the period necessary to take and complete such action, it being understood that the Company shall have no obligation to take and complete any such action. The Company may imprint upon such certificate the legend set forth in the Plan or such other legends referencing stock transfer restrictions which counsel for the Company considers appropriate. Delivery by the Company of the certificates for such shares shall be deemed effected for all purposes when the Company or a stock transfer agent of the Company shall have deposited such 2 certificates in the United States mail, addressed to the Holder, at the address specified in the Notice. Section 5. Adjustments Upon Changes in Capitalization. The existence of this option shall not affect in any way the right or power of the Company or its stockholders to make or authorize any or all adjustments, recapitalizations, reorganizations or other changes in the Company's capital structure or its business, or any merger or consolidation of the Company, or any issue of Common Stock, or any issue of bonds, debentures, preferred or prior preference stock or other capital stock ahead of or affecting the Common Stock or the rights thereof, or the dissolution or liquidation of the Company, or any sale or transfer of all or any part of its assets or business, or any other corporate act or proceeding, whether of a similar character or otherwise. If the Company shall effect a stock dividend, stock split or similar change in capitalization affecting the shares of Common Stock outstanding, in any such case without receiving compensation therefor in money, services or property, then the number, class, and price per share of shares of Common Stock subject to this option shall be appropriately adjusted in such a manner as to entitle the Holder to receive upon exercise of this option, for the same aggregate cash consideration, the same total number and class of shares as the Holder would have received as a result of the event requiring the adjustment had the Holder exercised this option in full immediately prior to such event. Except as hereinbefore expressly provided, the issue by the Company of shares of stock of any class, or securities convertible into shares of stock of any class, for cash or property, or for labor or services, either upon direct sale or upon the exercise of rights or warrants to subscribe therefor, or upon the conversion of shares or obligations of the Company convertible into such shares or other securities, shall not affect, and no adjustment by reason therefor shall be made with respect to, the number or price of shares of Common Stock then subject to option. Section 6. Effect of Certain Transactions. After a merger of one or more corporations with or into the Company or after a consolidation of the Company and one or more corporations in which the stockholders of the Company immediately prior to such merger or consolidation own after such merger or consolidation shares representing at least fifty percent (50%) of the voting power of the Company or the surviving or resulting corporation, as the case may be, the Holder shall, at no additional cost, be entitled upon exercise of this option to receive in lieu of the shares of Common Stock as to which this option was exercisable immediately prior to such event, the number and class of shares of stock or other securities, cash or property (including, without limitation, shares of stock or other securities of another corporation or Common Stock) to which the Holder would have been entitled pursuant to the terms of the agreement of merger or consolidation if, immediately prior to such merger or consolidation, the Holder had been the holder of record of a number of shares of Common Stock equal to the number of shares for which this option shall be so exercised. If the Company is merged with or into or consolidated with another corporation, other than a merger or consolidation in which the stockholders of the Company immediately prior to such merger or consolidation continue to own after such merger or consolidation shares representing at least fifty percent (50%) of the voting power of the Company or the surviving or resulting corporation, as the case may be, or if the Company is liquidated, or sells or otherwise 3 disposes of substantially all its assets to another corporation while this option remains outstanding, then (i) subject to the provisions of clause (iii) below, after the effective date of such merger, consolidation, liquidation, sale or disposition, as the case may be, the Holder of this option shall be entitled, upon exercise of this option, to receive, in lieu of the shares of Common Stock as to which this option was exercisable immediately prior to such event, the number and class of shares of stock or other securities, cash or property (including, without limitation, shares of stock or other securities of another corporation or Common Stock) to which the Holder would have been entitled pursuant to the terms of the merger, consolidation, liquidation, sale or disposition if, immediately prior to such event, the Holder had been the holder of a number of shares of Common Stock equal to the number of shares as to which such option shall be so exercised; (ii) the Committee may accelerate the time for exercise of this option, so that from and after a date prior to the effective date of such merger, consolidation, liquidation, sale or disposition, as the case may be, specified by the Committee, such accelerated options shall be exercisable in full; or (iii) this option may be canceled by the Committee as of the effective date of any such merger, consolidation, liquidation, sale or disposition provided that (x) notice of such cancellation shall be given to the Holder and (y) the Holder shall have the right to exercise this option to the extent that the same is then exercisable or, if the Committee shall have accelerated the time for exercise of this option pursuant to clause (ii) above, in full during the 10-day period preceding the effective date of such merger, consolidation, liquidation, sale or disposition. Section 7. Rights of Holder. No person shall, by virtue of the granting of this option to the Holder, be deemed to be a holder of any shares purchasable under this option or to be entitled to the rights or privileges of a holder of such shares unless and until this option has been exercised with respect to such shares and they have been issued pursuant to that exercise of this option. The Company shall, at all times while any portion of this option is outstanding, reserve and keep available, out of shares of its authorized and unissued stock or reacquired shares, a sufficient number of shares of its Common Stock to satisfy the requirements of this option; shall comply with the terms of this option promptly upon exercise of the option rights; and shall pay all fees or expenses necessarily incurred by the Company in connection with the issuance and delivery of shares pursuant to the exercise of this option. Section 8. Transfer and Termination. This option is not transferable by the Holder otherwise than by will or under the laws of descent and distribution. The granting of this option shall not impose upon the Company any obligation to employ or to continue to employ the Holder. The right of the Company to terminate the employment of the Holder shall not be diminished or affected by reason of the fact that this option has been granted to such Holder. This Option is exercisable, during the Holder's lifetime, only by the Holder, and by the Holder only while the Holder is an employee of the Company, except that if the Holder's employment by the Company terminates for any reason other than death, Disability (as defined in the Plan) or for Cause, the Holder shall have the right to exercise this Option within ninety (90) days after the date of such termination of employment (but not later than the expiration date of this Option) with respect to shares which were purchasable by the Holder by exercise of this Option at the time of said termination of employment. 4 As used herein, "Cause" shall mean (x) any material breach by the Holder of any agreement to which the Holder and the Company (or any parent or subsidiary) are both parties, (y) any act (other than retirement) or omission to act by the Holder which may have a material and adverse effect on the business of the Company (or any parent or subsidiary) or on the Holder's ability to perform services for the Company (or any parent or subsidiary), including, without limitation, the commission of any crime (other than ordinary traffic violations), or (z) any material misconduct or material neglect of duties by the Holder in connection with the business or affairs of the Company (or any parent or subsidiary) or any affiliate of the Company (or any such parent or subsidiary). In the event of the death or Disability of the Holder while the Holder is in the employ of the Company (or any parent or subsidiary of the Company) and before the expiration date of this option, this option shall terminate on the earlier of its expiration date or a date one (1) year after the date of his death or Disability. After the death of the Holder, the Holder's executors, administrators or any person or persons to whom the Holder's option has been transferred by will or by the laws of descent and distribution shall have the right to exercise this option at any time prior to the earlier of the date of expiration of this option or one (1) year after the date of the death of the original Holder. Section 9. Notification of Disqualifying Disposition. The Holder agrees to notify the Company in writing immediately after making a Disqualifying Disposition of any shares of Common Stock received pursuant to the exercise of this Option. The Holder also agrees to provide the Company with any information that the Company shall request concerning any such Disqualifying Disposition. 9.1 Disqualifying Disposition. A "Disqualifying Disposition" shall have the meaning specified in Section 421(b) of the Internal Revenue Code of 1986, as amended, or any successor provision; as of the date of grant of this Option, a Disqualifying Disposition is any disposition (including any sale) of such shares before the later of (a) the second anniversary of the date of grant of this Option or (b) the first anniversary of the date on which the Holder acquired such shares by exercising this Option, provided that such holding period requirements terminate upon the death of the Holder. 9.2 Forfeiture of Favorable Tax Treatment. The Holder acknowledges that he or she will forfeit the favorable income tax treatment otherwise available with respect to the exercise of this Option if he or she makes a Disqualifying Disposition of shares received upon exercise of this Option. Section 10. Withholding of Taxes. 10.1 Upon a Disqualifying Disposition. If the Company in its discretion determines that it is obligated to withhold tax with respect to a Disqualifying Disposition of shares of Common Stock received on exercise of this Option, the Holder agrees that the Company may withhold from the Holder's wages, or other amounts due to the Holder from the 5 Company, the appropriate amount of federal, state or local withholding taxes attributable to such Disqualifying Disposition. 10.2 Upon Treatment as a Non-Statutory Option. If any portion of this Option is treated as a Non-Statutory Option (as defined in the Plan), the Holder hereby agrees that the Company may withhold from the Holder's wages, or other amounts due to the Holder from the Company, the appropriate amount of federal, state and local withholding taxes attributable to the Holder's exercise of such Non-Statutory Option. 10.3 Election as to Method of Satisfying Withholding Obligation. At the Holder's election, the amount required to be withheld may be satisfied, in whole or in part, by (a) authorizing the Company to withhold from shares of Common Stock to be issued pursuant to the exercise of such Non-Statutory Option a number of shares with an aggregate fair market value that would satisfy the withholding amount due with respect to such exercise, or (b) transferring to the Company shares of Common Stock owned by the Holder for a period of at least six months and with an aggregate fair market value that would satisfy the withholding amount due. 10.4 Agreement to Reimburse Company for Withholding Obligation. The Holder further agrees that, if the Company does not withhold an amount from the Holder's wages sufficient to satisfy the Company's withholding obligation, the Holder will reimburse the Company on demand, in cash, for the amount underwithheld. Section 11. Notice. Any notice to be given to the Company hereunder shall be deemed sufficient if addressed to the Company and delivered by hand or by mail to the Treasurer of the Company, 104 Revere Street, Canton, Massachusetts 02021 or such other address as the Company may hereafter designate. Any notice to be given to the Holder hereunder shall be deemed sufficient if addressed to and delivered in person to the Holder or when deposited in the mail, postage prepaid, addressed to the Holder at the Holder's address furnished to the Company. Section 12. Government and Other Regulations. This option is subject to all laws, regulations and orders of any governmental authority which may be applicable thereto and, notwithstanding any of the provisions hereof, the Holder agrees that the Holder will not exercise the option granted hereby nor will the Company be obligated to issue or sell any shares of stock hereunder if the exercise thereof or the issuance or sale of such shares, as the case may be, would constitute a violation by the Holder or the Company of any such law, regulation or order or any provision thereof. The Company shall not be obligated to take any affirmative action in order to cause the exercise of this option or the issuance or sale of shares pursuant hereto to comply with any such law, regulation, order or provision. Section 13. Governing Law. This option shall be governed by, and construed and enforced in accordance with, the substantive laws of The Commonwealth of Massachusetts. 6 IN WITNESS WHEREOF, the Company has caused this instrument to be executed in its name and on its behalf as of the date first written above. Plymouth Rubber Company, Inc. By:_______________________________ Its:______________________________ 7 Schedule A Plymouth Rubber Company, Inc. Incentive Stock Option Date of Grant:__________________________________________________________ Name of Holder:_________________________________________________________ Address:________________________________________________________________ City, State, Zip:_______________________________________________________ Social Security Number:_________________________________________________ Maximum number of shares for which this option is exercisable:_____________________________________________ Exercise (purchase) price per share: the greater of (a) the par value of a share at the time of exercise; and (b) $___________________________ Expiration date of option:______________________________________________ Vesting Rate:___________________________________________________________ Position in, or relationship to, the Company:___________________________ Other terms and conditions: The Holder agrees that upon request of the Company or the underwriters managing any underwritten offering of the Company's securities, the Holder shall agree in writing that for a period of time not to exceed one hundred eighty (180) days from the effective date of any registration of securities of the Company the Holder will not sell, make any short sale of, loan, grant any option for the purchase of, or otherwise dispose of any shares of Common Stock issued pursuant to the exercise of this option without the prior written consent of the Company or such underwriters, as the case may be. * * * The undersigned Holder acknowledges receipt of the stock option of which this Schedule A is a part. _______________________________ Holder's Signature Print Name: 8 EX-4 5 exh4_4b.txt EXHIBIT 4.4(B) EXHIBIT 4.4(b) Grant Date: Non-Statutory Stock Option Granted by Plymouth Rubber Company, Inc. Under the 2002 Stock Incentive Plan For valuable consideration, the receipt of which is hereby acknowledged, Plymouth Rubber Company, Inc., a Massachusetts corporation (hereinafter together with its subsidiaries, where the context permits, referred to as the "Company"), hereby grants to the Holder named in Schedule A attached hereto the following Non-Statutory Stock Option: Section 1. Grant of Option. Subject to the terms and conditions hereinafter set forth, the Holder is hereby given the right and option to purchase from the Company shares of the Company's Class B Common Stock, $1.00 par value per share (the "Common Stock"). Schedule A attached hereto and hereby incorporated herein sets forth with respect to this option (i) its expiration date, (ii) its exercise price per share, (iii) the maximum number of shares that the Holder may purchase upon exercise hereof, (iv) the vesting schedule, and (v) certain other terms and conditions applicable to this option and incorporated herein. This option shall terminate in all respects, and all rights and options to purchase shares hereunder shall terminate, ten years from the Grant Date set forth above. The right to purchase shares hereunder shall be cumulative. This option is and shall be subject in every respect to the provisions of the Company's 2002 Stock Incentive Plan (the "Plan"), as amended from time to time, which is incorporated herein by reference and made a part hereof. In the event of any conflict or inconsistency between the terms hereof and those of the Plan, the latter shall prevail. References herein to the Committee shall mean the Committee as defined in the Plan. Section 2. Exercise of Option. This option shall be exercised by the delivery of written notice to the Company (the "Notice") setting forth the number of shares with respect to which the option is to be exercised and the address to which the certificates for such shares are to be mailed, together with (i) cash or check payable to the order of the Company for an amount equal to the option price for the number of shares specified in the Notice, or (ii) with the consent of the Committee, shares of Common Stock of the Company which (a) either have been owned by the Holder for more than six (6) months on the date of surrender or were not acquired, directly or indirectly, from the Company, and (b) have a fair market value on the date of surrender not greater than the option price for the shares as to which such option is being exercised, or (iii) with the consent of the Committee, delivery of such documentation as the Committee and a broker, if applicable, shall require to effect an exercise of the option and delivery to the Company of the sale or loan proceeds required to pay the option price of the shares for which the option is being exercised, or (iv) with the consent of the Committee, such other consideration which is acceptable to the Committee and which has a fair market value equal to the option price for the shares as to which the option is being exercised, or (v) with the consent of the Committee, a combination of (i), (ii), (iii), (iv) and/or (v). For the purpose of the preceding sentence, the fair market value per share of the Common Stock so delivered to the Company shall be the closing price per share on the date of delivery as reported by such registered national securities exchange on which the Common Stock is listed, or, if the Common Stock is not listed on such an exchange, as quoted on NASDAQ; provided, that, if there is no trading on such date, the fair market value shall be deemed to be the closing price per share on the last preceding date on which the Common Stock was traded. If the Common Stock is not listed on any national registered securities exchange or quoted on NASDAQ, the fair market value of the Common Stock shall be determined in good faith by the Committee. Section 3. Conditions and Limitations. The Company, in its discretion, may file a registration statement on Form S-8 under the Securities Act of 1933 to register shares of Common Stock reserved for issuance under the Plan. At any time at which such a registration statement is not in effect, it shall be an additional condition precedent to any exercise of this option that the Holder shall deliver to the Company a customary "investment letter" satisfactory to the Company and its counsel in which, among other things, the Holder shall state that the Holder is purchasing the shares for investment and acknowledges that they are not freely transferable except in compliance with state and federal securities laws. Section 4. Delivery of Shares. Within a reasonable time after receipt by the Company of the Notice and payment for any shares to be purchased hereunder and, if required as a condition to exercise, the investment letter described in Section 3, the Company will deliver or cause to be delivered to the Holder (or if any other individual or individuals are exercising this option, to such individual or individuals) at the address specified in the Notice a certificate or certificates for the number of shares with respect to which the option is then being exercised, registered in the name or names of the individual or individuals exercising the option, either alone or jointly with another person or persons with rights of survivorship, as the individual or individuals exercising the option shall prescribe in writing to the Company at or prior to such purchase; provided, however, that if any law or regulation or order of the Securities and Exchange Commission or other body having jurisdiction in the premises shall require the Company or the Holder (or the individual or individuals exercising this option) to take any action in connection with the shares then being purchased, the date for the delivery of the certificates for such shares shall be extended for the period necessary to take and complete such action, it being understood that the Company shall have no obligation to take and complete any such action. The Company may imprint upon such certificate the legend set forth in the Plan or such other legends referencing stock transfer restrictions which counsel for the Company considers appropriate. Delivery by the Company of the certificates for such shares shall be deemed effected for all purposes when the Company or a stock transfer agent of the Company shall have deposited such certificates in the United States mail, addressed to the Holder, at the address specified in the Notice. 2 Section 5. Adjustments Upon Changes in Capitalization. The existence of this option shall not affect in any way the right or power of the Company or its stockholders to make or authorize any or all adjustments, recapitalizations, reorganizations or other changes in the Company's capital structure or its business, or any merger or consolidation of the Company, or any issue of Common Stock, or any issue of bonds, debentures, preferred or prior preference stock or other capital stock ahead of or affecting the Common Stock or the rights thereof, or the dissolution or liquidation of the Company, or any sale or transfer of all or any part of its assets or business, or any other corporate act or proceeding, whether of a similar character or otherwise. If the Company shall effect a stock dividend, stock split or similar change in capitalization affecting the shares of Common Stock outstanding, in any such case without receiving compensation therefor in money, services or property, then the number, class, and price per share of shares of Common Stock subject to this option shall be appropriately adjusted in such a manner as to entitle the Holder to receive upon exercise of this option, for the same aggregate cash consideration, the same total number and class of shares as the Holder would have received as a result of the event requiring the adjustment had the Holder exercised this option in full immediately prior to such event. Except as hereinbefore expressly provided, the issue by the Company of shares of stock of any class, or securities convertible into shares of stock of any class, for cash or property, or for labor or services, either upon direct sale or upon the exercise of rights or warrants to subscribe therefor, or upon the conversion of shares or obligations of the Company convertible into such shares or other securities, shall not affect, and no adjustment by reason therefor shall be made with respect to, the number or price of shares of Common Stock then subject to option. Section 6. Effect of Certain Transactions. After a merger of one or more corporations with or into the Company or after a consolidation of the Company and one or more corporations in which the stockholders of the Company immediately prior to such merger or consolidation own after such merger or consolidation shares representing at least fifty percent (50%) of the voting power of the Company or the surviving or resulting corporation, as the case may be, the Holder shall, at no additional cost, be entitled upon exercise of this option to receive in lieu of the shares of Common Stock as to which this option was exercisable immediately prior to such event, the number and class of shares of stock or other securities, cash or property (including, without limitation, shares of stock or other securities of another corporation or Common Stock) to which the Holder would have been entitled pursuant to the terms of the agreement of merger or consolidation if, immediately prior to such merger or consolidation, the Holder had been the holder of record of a number of shares of Common Stock equal to the number of shares for which this option shall be so exercised. If the Company is merged with or into or consolidated with another corporation, other than a merger or consolidation in which the stockholders of the Company immediately prior to such merger or consolidation continue to own after such merger or consolidation shares representing at least fifty percent (50%) of the voting power of the Company or the surviving or resulting corporation, as the case may be, or if the Company is liquidated, or sells or otherwise disposes of substantially all its assets to another corporation while this option remains outstanding, then (i) subject to the provisions of clause (iii) below, after the effective date of such merger, consolidation, liquidation, sale or disposition, as the case may be, the Holder of this 3 option shall be entitled, upon exercise of this option, to receive, in lieu of the shares of Common Stock as to which this option was exercisable immediately prior to such event, the number and class of shares of stock or other securities, cash or property (including, without limitation, shares of stock or other securities of another corporation or Common Stock) to which the Holder would have been entitled pursuant to the terms of the merger, consolidation, liquidation, sale or disposition if, immediately prior to such event, the Holder had been the holder of a number of shares of Common Stock equal to the number of shares as to which such option shall be so exercised; (ii) the Committee may accelerate the time for exercise of this option, so that from and after a date prior to the effective date of such merger, consolidation, liquidation, sale or disposition, as the case may be, specified by the Committee, such accelerated options shall be exercisable in full; or (iii) this option may be canceled by the Committee as of the effective date of any such merger, consolidation, liquidation, sale or disposition provided that (x) notice of such cancellation shall be given to the Holder and (y) the Holder shall have the right to exercise this option to the extent that the same is then exercisable or, if the Committee shall have accelerated the time for exercise of this option pursuant to clause (ii) above, in full during the 10-day period preceding the effective date of such merger, consolidation, liquidation, sale or disposition. Section 7. Rights of Holder. No person shall, by virtue of the granting of this option to the Holder, be deemed to be a holder of any shares purchasable under this option or to be entitled to the rights or privileges of a holder of such shares unless and until this option has been exercised with respect to such shares and they have been issued pursuant to that exercise of this option. The Company shall, at all times while any portion of this option is outstanding, reserve and keep available, out of shares of its authorized and unissued stock or reacquired shares, a sufficient number of shares of its Common Stock to satisfy the requirements of this option; shall comply with the terms of this option promptly upon exercise of the option rights; and shall pay all fees or expenses necessarily incurred by the Company in connection with the issuance and delivery of shares pursuant to the exercise of this option. Section 8. Transfer and Termination. This option is not transferable by the Holder otherwise than by will or under the laws of descent and distribution. The granting of this option shall not impose upon the Company any obligation to employ or to continue to employ the Holder. The right of the Company to terminate the services of the Holder shall not be diminished or affected by reason of the fact that this option has been granted to such Holder. This Option is exercisable, during the Holder's lifetime, only by the Holder, and by the Holder only while the Holder is providing services to the Company, except that if the Holder's services with the Company terminate for any reason other than death, Disability (as defined in the Plan) or for Cause, the Holder shall have the right to exercise this Option within ninety (90) days after the date of such termination of services (but not later than the expiration date of this Option) with respect to shares which were purchasable by the Holder by exercise of this Option at the time of said termination of services. 4 As used herein, "Cause" shall mean (x) any material breach by the Holder of any agreement to which the Holder and the Company (or any parent or subsidiary) are both parties, (y) any act (other than retirement) or omission to act by the Holder which may have a material and adverse effect on the business of the Company (or any parent or subsidiary) or on the Holder's ability to perform services for the Company (or any parent or subsidiary), including, without limitation, the commission of any crime (other than ordinary traffic violations), or (z) any material misconduct or material neglect of duties by the Holder in connection with the business or affairs of the Company (or any parent or subsidiary) or any affiliate of the Company (or any such parent or subsidiary). In the event of the death or Disability of the Holder while the Holder is in the employ of the Company (or any parent or subsidiary of the Company) and before the expiration date of this option, this option shall terminate on the earlier of its expiration date or a date one (1) year after the date of his death or Disability. After the death of the Holder, the Holder's executors, administrators or any person or persons to whom the Holder's option has been transferred by will or by the laws of descent and distribution shall have the right to exercise this option at any time prior to the earlier of the date of expiration of this option or one (1) year after the date of the death of the original Holder. Section 9. Withholding of Taxes. 9.1 Non-Statutory Option. The Holder hereby agrees that the Company may withhold from the Holder's wages, or other amounts due to the Holder from the Company, the appropriate amount of federal, state and local withholding taxes attributable to the Holder's exercise of this Option. 9.2 Election as to Method of Satisfying Withholding Obligation. At the Holder's election, the amount required to be withheld may be satisfied, in whole or in part, by (a) authorizing the Company to withhold from shares of Common Stock to be issued pursuant to the exercise of such Non-Statutory Option a number of shares with an aggregate fair market value that would satisfy the withholding amount due with respect to such exercise, or (b) transferring to the Company shares of Common Stock owned by the Holder for a period of at least six months and with an aggregate fair market value that would satisfy the withholding amount due. 9.3 Agreement to Reimburse Company for Withholding Obligation. The Holder further agrees that, if the Company does not withhold an amount from the Holder's wages sufficient to satisfy the Company's withholding obligation, the Holder will reimburse the Company on demand, in cash, for the amount underwithheld. Section 10. Notice. Any notice to be given to the Company hereunder shall be deemed sufficient if addressed to the Company and delivered by hand or by mail to the Treasurer of the Company, 104 Revere Street, Canton, Massachusetts 02021 or such other address as the Company may hereafter designate. Any notice to be given to the Holder hereunder shall be deemed sufficient if addressed to and delivered in person to the Holder or when deposited in the mail, postage prepaid, addressed to the Holder at the Holder's address furnished to the Company. 5 Section 11. Government and Other Regulations. This option is subject to all laws, regulations and orders of any governmental authority which may be applicable thereto and, notwithstanding any of the provisions hereof, the Holder agrees that the Holder will not exercise the option granted hereby nor will the Company be obligated to issue or sell any shares of stock hereunder if the exercise thereof or the issuance or sale of such shares, as the case may be, would constitute a violation by the Holder or the Company of any such law, regulation or order or any provision thereof. The Company shall not be obligated to take any affirmative action in order to cause the exercise of this option or the issuance or sale of shares pursuant hereto to comply with any such law, regulation, order or provision. Section 12. Governing Law. This option shall be governed by, and construed and enforced in accordance with, the substantive laws of The Commonwealth of Massachusetts. IN WITNESS WHEREOF, the Company has caused this instrument to be executed in its name and on its behalf as of the date first written above. Plymouth Rubber Company, Inc. By:_______________________________ Its:______________________________ 6 Schedule A Plymouth Rubber Company, Inc. Non-Statutory Stock Option Date of Grant:__________________________________________________________ Name of Holder:_________________________________________________________ Address:________________________________________________________________ City, State, Zip:_______________________________________________________ Social Security Number:_________________________________________________ Maximum number of shares for which this option is exercisable:_____________________________________________ Exercise (purchase) price per share: the greater of (a) the par value of a share at the time of exercise; and (b) $___________________________ Expiration date of option:______________________________________________ Vesting Rate:___________________________________________________________ Position in, or relationship to, the Company:___________________________ Other terms and conditions: The Holder agrees that upon request of the Company or the underwriters managing any underwritten offering of the Company's securities, the Holder shall agree in writing that for a period of time not to exceed one hundred eighty (180) days from the effective date of any registration of securities of the Company the Holder will not sell, make any short sale of, loan, grant any option for the purchase of, or otherwise dispose of any shares of Common Stock issued pursuant to the exercise of this option without the prior written consent of the Company or such underwriters, as the case may be. * * * The undersigned Holder acknowledges receipt of the stock option of which this Schedule A is a part. _______________________________ Holder's Signature Print Name: 7 EX-4 6 exh4_4c.txt EXHIBIT 4.4(C) EXHIBIT 4.4(c) RESTRICTED STOCK GRANT AND REPURCHASE AGREEMENT This Agreement made this ___ day of _________ (the "Agreement"), by and between Plymouth Rubber Company, Inc., a Massachusetts corporation (the "Company"), and _____________ of ______________ ("Employee"). WHEREAS, the Company proposes to sell to Employee ________ shares (the "Stock") of the Company's Class B Common Stock, $1.00 par value per share, at a purchase price of $_____ per share (the "Purchase Price"); and WHEREAS, the Company and Employee wish to restrict the transfer by Employee of the Stock so acquired by Employee and to give to the Company certain rights to repurchase the Stock in the event of termination of Employee's employment with the Company; NOW, THEREFORE, for valuable consideration, the receipt of which is hereby acknowledged, the Company and Employee agree as follows: 1. Repurchase Option. 1.1. If Employee's employment with the Company shall hereafter terminate at any time, for any reason, whether because of any action of the Company or Employee, the death or disability of Employee or otherwise (the "Termination"), the Company shall have the option to repurchase (the "Repurchase Option") the Unvested Shares in accordance with the procedure set forth in this Section 1. As used in this Agreement, the term "Termination" shall refer to the date on which termination of Employee's employment becomes effective. The number of shares of the Stock covered by the Repurchase Option (the "Unvested Shares") shall equal that number of shares of the Stock that have not yet vested as of the Termination according to the following schedule: 1.2. The Company may repurchase each of the Unvested Shares at a price equal to the Purchase Price. 1.3. In the event of the Employee's Termination, the Company may send to Employee a written notice, within 60 days after the date of Termination, specifying the number of Unvested Shares the Company elects to repurchase pursuant to the Repurchase Option and a date for the closing under this Section 1.3, which date shall not be more than 30 days after the date of such notice. The closing shall take place at the offices of the Company or at such other location as the Company and Employee shall agree. At the closing, Employee shall transfer to the Company the number of Unvested Shares specified in the Company's notice, free of all liens, encumbrances and rights of others, by delivery of certificates representing such number of Unvested Shares, duly endorsed for transfer or accompanied by duly executed stock powers. Upon completion of such transfer and its receipt of such certificates so endorsed, the Company shall pay for such Unvested Shares by any of the following methods: (a) by delivery to Employee of a check in the amount of the aggregate repurchase price for such Unvested Shares, (b) by cancellation of indebtedness of Employee to the Company in such amount, (c) by delivery of the Company's three-year promissory note in such amount, with interest thereon at the prime rate of interest charged by [identify money center bank] for short-term loans to its most creditworthy borrowers, as such rate may be in effect from time to time, such note to be in such form and to contain such other terms as shall be satisfactory to the Company, or (d) by any combination of the above methods. The method or methods of payment for such Unvested Shares shall be chosen by the Company in its sole discretion. Upon delivery by the Company of notice of exercise of the Repurchase Option, the Company's sole obligation with respect to the Unvested Shares as to which the Repurchase Option is being exercised shall be to make payment of the repurchase price therefor. The Company shall not be required thereafter to treat Employee as the owner of such Unvested Shares, or to accord the right to vote to Employee with respect thereto or to receive any dividends thereon. 1.4. If, within 60 days after Termination the Company does not notify Employee that it elects to exercise its Repurchase Option, or if the Company does not exercise its Repurchase Option as to all of the Unvested Shares, Employee shall hold the remaining Unvested Shares free of the Repurchase Option but subject to the other terms of this Agreement. 2. Prohibited Transfers. Employee shall not sell, assign or transfer, by gift, operation of law or otherwise, all or any part of the Unvested Shares now or hereafter owned by Employee; provided, however, that the Employee may transfer unvested Shares to (i) the Employee's spouse, children or grandchildren (collectively, the "Immediate Family"); (ii) a trust solely for the benefit of the Employee or his or her Immediate Family; or (iii) a partnership or limited liability company whose only partners or shareholders are one or more of the Employee and his or her Immediate Family members (each transferee described in clauses (i), (ii) and (iii) above is hereinafter referred to as a "Permitted Transferee"); provided that Employee gives the Company advance written notice describing the terms and conditions of the proposed transfer and the Company notifies the Employee in writing that such a transfer would comply with the requirements of this Agreement. The terms of this Agreement shall apply to the Permitted Transferee (including the Permitted Transferee's beneficiary, executor or administrator) except that Permitted Transferees shall not be entitled to transfer the Unvested Shares, other than by will or the laws of descent and distribution. The Company shall not be required to transfer on its books any Unvested Shares which have been transferred in violation of this Agreement, or to treat as owner of such Shares, or to accord the right to vote as such owner, or to pay dividends to any person or entity to which such Shares shall have been sold, assigned or otherwise transferred in violation of this Agreement. 2 3. Escrow Arrangement. As security for the faithful performance by Employee of the terms of this Agreement and to ensure the availability for delivery of the Unvested Shares upon exercise of the Repurchase Option, Employee agrees to deliver to and deposit with [ ], as escrow agent in this transaction (the "Escrow Agent"), concurrently with the execution hereof, a stock assignment duly endorsed to the Company (with date and number of shares blank), together with the certificate or certificates evidencing the Unvested Shares. Said documents are to be held by the Escrow Agent and delivered by the Escrow Agent pursuant to the following terms: 3.1. In the event the Company exercises its Repurchase Option, the Company shall give to the Escrow Agent a written notice specifying the number of Unvested Shares which it is electing to repurchase and the time and place of the closing. The Company and Employee irrevocably authorize and direct the Escrow Agent to complete the transaction contemplated by such notice in accordance with the terms of said notice. At the closing, the Escrow Agent shall complete the stock assignment held in escrow and endorsed by Employee and shall deliver the same, together with any certificates evidencing the Unvested Shares to be transferred, to the Company against the simultaneous delivery to the Escrow Agent of payment to Employee of the aggregate purchase price for the Unvested Shares which the Company has repurchased. Upon receipt of such payment, the Escrow Agent shall promptly deliver such payment to Employee. 3.2. Employee irrevocably authorizes the Company to deposit with the Escrow Agent any certificates evidencing Stock to be held by the Escrow Agent hereunder and any securities issued in exchange for or in respect of said Stock. Employee does hereby irrevocably constitute and appoint the Escrow Agent as his attorney-in-fact and agent for the term of this escrow to execute with respect to such securities all documents necessary or appropriate to make such Stock and other securities negotiable and to complete any transactions herein contemplated. Subject to the provisions of this Section 3, Employee shall exercise all rights and privileges of a stockholder of the Company while the Stock is held by the Escrow Agent. 3.3. This escrow shall terminate upon the earliest to occur of (i) the expiration of the Repurchase Option pursuant to Section 1.4, or (ii) full vesting of the Stock pursuant to Section 1.1. If at the time of such termination the Escrow Agent should have in its possession any documents, securities or other property belonging to Employee, it shall deliver all of the same to Employee and shall be discharged of all further obligations hereunder. 3.4. The Escrow Agent's duties hereunder may be altered, amended, modified or revoked only by a writing signed by the Company and Employee. 3.5. The Escrow Agent shall be obligated only for the performance of such duties as are specifically set forth herein and may rely and shall be protected in relying or refraining from acting on any instrument reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties. The Escrow Agent shall not be personally liable for any act it may do or refrain from doing hereunder as Escrow Agent or as attorney-in-fact for Employee, provided that the Escrow Agent acts in good faith and in the exercise of its own good judgment, and any act which it does or refrains from doing pursuant to the advice of its own attorneys shall be conclusive evidence of such good faith. 3 3.6. The Escrow Agent is hereby expressly authorized to comply with and obey orders, judgments or decrees of any court. In case it obeys or complies with any such order, judgment or decree, it shall not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such compliance, notwithstanding any such order, judgment or decree being subsequently reversed, modified, annulled, set aside, vacated or found to have been entered without jurisdiction. 3.7. The Escrow Agent shall be entitled to employ such independent legal counsel and other experts as it may deem necessary to advise it in connection with its obligations hereunder, may rely upon the advice of such counsel, and may pay such counsel reasonable compensation therefor. 3.8. The Escrow Agent reserves the right, upon notice to Employee and the Company, to resign from its duties as Escrow Agent. Upon receipt of such notice, the Company, with the consent of Employee, which consent shall not be unreasonably withheld, shall appoint a substitute escrow agent, whose fees and expenses, if any, shall be paid by the Company. 3.9. If the Escrow Agent reasonably requires other or further instruments in connection with this Section 3 or obligations in respect hereto, the necessary parties hereto shall join in furnishing such instruments. 3.10. It is understood and agreed that should any dispute arise with respect to the delivery, ownership or right of possession of the Stock or other securities held by the Escrow Agent hereunder, it is authorized and directed to retain in its possession without liability to any one all or any part of said Stock or other securities until such dispute shall have been settled either by mutual written agreement of the parties concerned or by a final order, decree or judgment of a court of competent jurisdiction after the time for appeal has expired and no appeal has been perfected, but it shall be under no duty whatsoever to institute or defend any such proceedings. 3.11. All reasonable costs, fees and disbursements incurred by the Escrow Agent in connection with the performance of its duties hereunder shall be borne by the Company. 3.12. By signing below, the Escrow Agent becomes a party to this Agreement only for the purpose of this Section 3. 3.13. Upon receipt of a notice by the Escrow Agent, signed by the Company and Employee, setting forth such number of shares of Stock to be released from escrow (all of such Stock to be fully vested), the Escrow Agent shall deliver to the Company a certificate representing at least the number of shares of Stock to be released to the Employee. The Company shall deliver to Employee a certificate for the number of shares of Stock set forth in such notice and shall deliver to the Escrow Agent a certificate for the balance of the Shares to be held in escrow. 4 4. No Registration. Employee understands that the Stock has not been registered under the Act or qualified under the securities or "blue sky laws of any jurisdiction, and the Company is not, nor will it be, under any obligation to register the Stock under the Act or the "blue sky" laws of any jurisdiction. Employee further understands that the Stock will constitute "restricted securities" within the meaning of Rule 144 promulgated under the Act and that, as such, the Stock must be held indefinitely unless it is subsequently registered under the Act or unless an exemption from the registration requirements thereof is available. 5. Lock-up Agreement. The provisions of this Agreement are in addition to any restrictions imposed by any lock-up agreements that may be required by the underwriters of any public offering registered by the Company under the Act. Employee hereby agrees to be bound by any such lock-up agreement and, upon the request of the Company or such underwriters, to execute and deliver a separate lock-up agreement in such form as the Company or such underwriters shall request, provided that the restrictions imposed by any such lock-up agreement shall terminate not later than 180 days after the closing date of the related public offering. 6. Investment Purposes. Employee is acquiring the Stock for Employee's own account for investment and not for, with a view to, or in connection with any resale or distribution thereof. 7. Restrictive Legend. The certificate for the Stock will be imprinted with legends in substantially the following form: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR REGISTERED OR QUALIFIED UNDER THE SECURITIES OR "BLUE SKY" LAWS OF ANY JURISDICTION. THESE SECURITIES MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF SUCH REGISTRATION OR QUALIFICATION OR AN EXEMPTION THEREFROM UNDER SUCH ACT AND SUCH BLUE SKY LAWS AND AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO THE COMPANY TO SUCH EFFECT. THE SALE OR OTHER DISPOSITION OF ANY OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS RESTRICTED BY THE TERMS OF A STOCK RESTRICTION AND REPURCHASE AGREEMENT DATED AS OF ____, (THE "AGREEMENT"). A COPY OF THE AGREEMENT IS AVAILABLE FOR INSPECTION FROM THE SECRETARY OF THE COMPANY. 8. Adjustments for Stock splits, Stock Dividends, etc. 8.1. If from time to time during the term of this Agreement there is any stock split-up, stock dividend, stock distribution or other reclassification of the Common Stock of the Company, any and all new, substituted or additional securities to which the Employee is entitled by reason of his ownership of the Unvested Shares shall be immediately subject to 5 the Repurchase Option, the restrictions on transfer and other provisions of this Agreement in the same manner and to the same extent as the Unvested Shares and the repurchase price of Section 1.2 shall be appropriately adjusted. 8.2. If the Unvested Shares are converted into or exchanged for, or stockholders of the Company receive by reason of any distribution in total or partial liquidation, securities of another corporation, or other property (including cash), pursuant to any merger of the Company or acquisition of its assets, then the rights of the Company under this Agreement shall inure to the benefit of the Company's successor and this Agreement shall apply to the securities or other property received upon such conversion, exchange or distribution in the same manner and to the same extent as the Unvested Shares. 9. Withholding Taxes. 9.1. If the Company in its discretion determines that it is obligated to withhold any tax in connection with the transfer of, or the lapse of restrictions on, the Unvested Shares, the Employee hereby agrees that the Company may withhold from the Employee's wages or other remuneration the appropriate amount of tax. At the discretion of the Company, the amount required to be withheld may be withheld in cash from such wages or other remuneration. The Employee further agrees that, if the Company does not withhold an amount from the Employee's wages or other remuneration sufficient to satisfy the withholding obligation of the Company, the Employee will make reimbursement on demand, in cash, for the amount underwithheld. The Employee acknowledges that he has been informed of the advisability of making an election in accordance with Section 83(b) of the Internal Revenue Code of 1986, as amended; that such election must be filed with the Internal Revenue Service within 30 days of the transfer of shares to the Employee; and that the Employee is solely responsible for making such election. The Employee hereby agrees to deliver to the Company a signed copy of any document he may execute and file with the Internal Revenue Service evidencing an election under Section 83(b) of the Internal Revenue Code of 1986, as amended. 10. Sale or Transfer in Violation of this Agreement. The Company shall not be required to transfer any shares of the Stock on its books which shall purportedly have been sold, assigned or otherwise transferred in violation of this Agreement, or to treat as owner of such shares, or to accord the right to vote as such owner or to pay dividends to, any person or organization to which any such shares shall purportedly have been sold, assigned or otherwise transferred in violation of this Agreement. 11. No Obligation to Employ. Employee understands and agrees that the ownership of any Stock by Employee shall not impose upon the Company any obligation to employ or continue to employ Employee. 6 12. Severability. If any provision of this Agreement shall be determined to be invalid, illegal or otherwise unenforceable by any court of competent jurisdiction, the validity, legality and enforceability of the other provisions of this Agreement shall not be affected thereby. Any invalid, illegal or unenforceable provision of this Agreement shall be severable, and after any such severance, all other provisions hereof shall remain in full force and effect. 13. Equitable Relief. Employee acknowledges that money damages alone will not adequately compensate the Company for breach of any of Employee's covenants and agreements herein and, therefore, agrees that in the event of the breach or threatened breach of any such covenant or agreement, in addition to all other remedies available to the Company, at law, in equity or otherwise, the Company shall be entitled to injunctive relief compelling specific performance of, or other compliance with, the terms hereof. 14. Modification or Amendment. This Agreement and the provisions contained herein may be modified or amended, and any provision hereof may be waived, only by an instrument in writing signed by the Employee and an authorized officer of the Company. 15. Further Assurances. The parties agree to execute such further instruments and to take such further actions as may reasonably be necessary to carry out the intent of this Agreement. 16. Entire Agreement. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, written or oral, between them with respect to such subject matter. 17. Notices. All notices and communications hereunder given or made by any party hereto shall be in writing and shall be deemed sufficiently given if delivered personally or if sent by registered or certified mail, return receipt requested, by nationally recognized overnight delivery service, or by facsimile with confirmation of transmission as follows: If to the Company, to: Plymouth Rubber Company, Inc. Address: 104 Revere Street Canton, Massachusetts 02021 Facsimile: Attention: President If to Employee, to: Address: 7 18. Binding Effect and Assignment. This Agreement shall be binding upon, and inure to the benefit of, the parties hereto and their respective heirs, legal representatives, successors and permitted assigns. The Company may, in its sole discretion, assign its rights and obligations under this Agreement, or any part thereof, to any person or entity. Except as otherwise provided in this Agreement, neither this Agreement nor any rights or obligations hereunder may be assigned or otherwise transferred by Employee without the prior written consent of the Company's Board of Directors. 19. Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with, the substantive laws of The Commonwealth of Massachusetts without regard to its principles of conflicts of laws. 20. Counterparts. This Agreement may be signed in counterparts, each of which shall be an original and all of which shall together constitute the same Agreement. 8 IN WITNESS WHEREOF, the parties hereto have executed this Restricted Stock Grant and Repurchase Agreement as a contract under seal on the date first above written. PLYMOUTH RUBBER COMPANY, INC. _______________________________________ By: Its: _______________________________________ Employee For purposes of Section 3 only: [ ], Escrow Agent _______________________________________ By: 9 EX-5 7 exh_5.txt EXHIBIT 5 EXHIBIT 5 May 8, 2002 Plymouth Rubber Company, Inc. 104 Revere Street Canton, MA 02021 Ladies and Gentlemen: 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 2002 Stock Incentive Plan (the "Plan") and 300,000 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 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 in accordance with the Plan and the terms of the grants of options and restricted stock thereunder, will be legally and validly issued, fully paid and nonassessable shares of Class B Common Stock of the Company. 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. Sincerely, FOLEY, HOAG & ELIOT LLP By: Paul Bork Paul Bork, Esq. a Partner 2 EX-24 8 consent.txt EXHIBIT 24.2 EXHIBIT 24.2 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated February 1, 2002 relating to the financial statements and financial statement schedules of Plymouth Rubber Company Inc. which appears in Plymouth Rubber Company Inc.'s Annual Report on Form 10-K for the year ended November 30, 2001. PricewaterhouseCoopers LLP Boston, MA May 9, 2002 -----END PRIVACY-ENHANCED MESSAGE-----