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EXHIBIT 10.2
SUMMA INDUSTRIES
PLASTRON ACQUISITION STOCK OPTION PLAN
1. PURPOSE. The Corporation recently entered into an agreement
whereby Plastron Industries, Inc., a Delaware corporation and wholly-owned
subsidiary of the Corporation ("Plastron"), will acquire substantially all of
the assets of Plastron Industries, L.P., a Delaware limited partnership ("Old
Plastron"). In connection with the asset acquisition, the Corporation shall
grant to certain employees and consultants of Plastron options to purchase
shares of the Common Stock (defined below) of the Corporation. This Plan is
intended to set forth the terms and conditions upon which such options would be
granted, to encourage proprietary interest in Plastron and the Corporation, to
encourage such employees to remain in the employ of Plastron, and to afford
additional incentive to consultants to increase their efforts in providing
significant services to Plastron and the Corporation.
2. DEFINITIONS.
(a) "Board" shall mean the Board of Directors of the
Corporation.
(b) "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(c) "Committee" shall mean the committee, if any, appointed
by the Board in accordance with Section 4 of the Plan.
(d) "Common Stock" shall mean the Common Stock, par value
$.001 per share, of the Corporation.
(e) "Corporation" shall mean Summa Industries, a Delaware
corporation.
(f) "Disability" shall mean the condition of an Employee who
is unable to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a continuous
period of not less than twelve (12) months.
(g) "Employee" shall mean an individual who is employed
(within the meaning of Code Section 3401 and the regulations thereunder) by the
Corporation or a Subsidiary.
(h) "Exercise Price" shall mean the price per Share of
Common Stock, determined by the Board or the Committee, at which an Option may
exercised.
(i) "Fair Market Value" shall mean the value of one (1)
Share of Stock as determined by the price at which the Shares traded at the
close of business on the date of valuation, or if not listed on an exchange, the
fair market value as determined by the Board or the Committee in good faith.
Such determination shall be conclusive and binding on all persons.
(j) "Incentive Stock Option" shall mean an option described
in Section 422 of the Code.
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(k) "Nonstatutory Stock Option" shall mean an option not
described in Section 422(b), 422A(b), 423(b) or 424(b) of the Code.
(l) "Option" shall mean any stock option granted pursuant to
the Plan.
(m) "Optionee" shall mean an employee or consultant who has
received an Option.
(n) "Plan" shall mean this Plastron Acquisition Stock Option
Plan, as may be amended from time to time.
(o) "Purchase Price" shall mean the Exercise Price times the
number of Shares with respect to which an Option is exercised.
(p) "Retirement" shall mean the voluntary termination of
employment by an Employee upon the attainment of age sixty-five (65) and the
completion of not less than twenty (20) years of service with the Corporation or
a Subsidiary.
(q) "Share" shall mean one (1) share of Common Stock,
adjusted in accordance with Section 10 of the Plan (if applicable).
(r) "Subsidiary" shall mean Plastron and any other
corporation at least fifty percent (50%) of the total combined voting power of
which is owned by the Corporation or by another Subsidiary.
3. EFFECTIVE DATE. The Plan was adopted by the Board on February
23, 1999, which shall be the effective date of the Plan.
4. ADMINISTRATION. The Plan shall be administered by the Board, or
by a committee appointed by the Board which shall consist of not less than two
(2) members (the "Committee"). If a Committee has been appointed, the Committee
shall hold meetings at such times and places as it may determine. Acts of a
majority of the Committee at which a quorum is present, or acts reduced to or
approved in writing by a majority of the members of the Committee, shall be the
valid acts of the Committee. The Board, or the Committee if there be one, shall
from time to time at its discretion select the Employees, directors, vendors and
consultants who are to be granted Options, determine the number of Shares to be
optioned to each Optionee and designate such Options such as Incentive Stock
Options or Nonstatutory Stock Options, except that no Incentive Stock Option may
be granted to a non-Employee director or a non-Employee consultant.
Notwithstanding the foregoing, no Incentive Stock Options may be granted under
the Plan unless and until the Plan has been approved by the Corporation's
stockholders. A member of the Board or a Committee member shall in no event
participate in any determination relating to Options held by or to be granted to
such Board or Committee member. The interpretation and construction by the
Board, or by the Committee if there be one, of any provision of the Plan or of
any Option granted thereunder shall be final. No member of the Board or of the
Committee shall be liable for any action or determination made in good faith
with respect to the Plan or any Option granted thereunder.
5. PARTICIPATION.
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(a) Eligibility. The Optionees shall be such persons as the
Board, or the Committee if there be one, may select from among the following
classes of persons, subject to the terms and conditions of (b) below: (1)
Employees of Plastron (who may be officers and/or directors); and (2)
Consultants, vendors, customers, and others except significant services to the
Plastron.
For purposes of this Plan, an Optionee who is a director or a
consultant, vendor, customer, or other provider of significant services to
Plastron shall be deemed to be an Employee, and service as a director,
consultant, vendor, customer, or other provider of significant services to
Plastron shall be deemed to be employment, except that no Incentive Stock may be
granted to a non-Employee director or non-Employee consultant, vendor, customer,
or other provider of significant services to Plastron, and except that no
Nonstatutory Stock Option may be granted to a non-Employee director or
non-Employee consultant, vendor, customer, or other provider of significant
services to Plastron other than upon a finding by the Board, or the Committee
Option if there be one, that the value of the services rendered or to be
rendered to Plastron by such non-Employee director or non-Employee consultant,
vendor, customer, or other provider of services is at least equal to the value
of the option or options granted.
(b) Ten-Percent Stockholders. An Employee who owns more than
ten percent (10%) of the total combined voting power of all classes of
outstanding stock of the Corporation, its parent or any of its Subsidiaries
shall not be eligible to receive an Incentive Stock Option unless (i) the
Exercise Price of the Shares subject to such Option is at least one hundred ten
percent (110%) of the Fair Market Value of such Shares on the date of grant and
(ii) such Option by its terms is not exercisable after the expiration of five
(5) years from the date of grant.
(c) Stock Ownership. For purposes of (b) above, in
determining stock ownership an Employee shall be considered as owning the stock
owned, directly or indirectly, by or for his brothers, sisters, spouses,
ancestors and lineal descendants. Stock owned, directly or indirectly, by or for
a corporation, partnership, estate or trust shall be considered as being owned
proportionately by or for its stockholders, partners or beneficiaries. Stock
with respect to which such Employee holds an Option shall not be counted.
(d) Outstanding Stock. For purposes of (b) above,
"outstanding stock" shall include all stock actually issued and outstanding
immediately after the grant of the Option to the Optionee. "Outstanding stock"
shall not include shares authorized for issue under outstanding Options held by
the Optionee or by any other person.
6. STOCK. The stock subject to Options granted under the Plan shall
be Shares of the Corporation's authorized but unissued or reacquired Common
Stock. The aggregate number of Shares which may be issued upon exercise of
Options under the Plan shall not exceed 200,000 shares. The number of Shares
subject to Options outstanding at any time shall not exceed the number of Shares
remaining available for issuance under the Plan. In the event that any
outstanding Option for any reason expires or is terminated, the Shares allocable
to the unexercised portion of such Option may again be made subject to any
Option. The limitations established by this Section 6 shall be subject to
adjustment in the manner provided in Section 10 hereof upon the occurrence of an
event specified therein."
7. TERMS AND CONDITIONS OF OPTIONS.
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(a) Stock Option Agreements. Options shall be evidenced by
written stock option agreements in such form as the Board, or the Committee if
there be one, shall from time to time determine. Such agreements shall comply
with and be subject to the terms and conditions set forth below.
(b) Number of Shares. Each Option shall state the number of
Shares to which it pertains and shall provide for the adjustment thereof in
accordance with the provisions of Section 10 hereof.
(c) Exercise Price. Each Option shall state the Exercise
Price. The Exercise Price in the case of any Incentive Stock Option shall not be
less than the Fair Market Value on the date of grant and, in the case of any
Incentive Stock Option granted to an Optionee described in Section 5(b) hereof,
shall not be less than one hundred ten percent (110%) of the Fair Market Value
on the date of grant. The Exercise Price in the case of any Nonstatutory Stock
Option shall not be less than 85 % of the Fair Market Value on the date of
grant.
(d) Medium and Time of Payment. The Purchase Price shall be
payable in full in cash in United States dollars upon the exercise of the
Option. In the event the Corporation determines that it is required to withhold
state or Federal income tax as a result of the exercise of an Option, as a
condition to the exercise thereof, an Employee may be required to make
arrangements satisfactory to the Corporation to enable it to satisfy such
withholding requirements.
(e) Term and Nontransferability of Options. Each Option
shall state the time or times, and the conditions upon which, all or part
thereof becomes exercisable. No Option shall be exercisable after the expiration
of ten (10) years from the date it was granted, and no Incentive Stock Option
granted to an Optionee described in Section 5(b) hereof shall be exercisable
after the expiration of five (5) years from the date it was granted. During the
lifetime of the Optionee, the Option shall be exercisable only by the Optionee
and shall not be assignable or transferable. In the event of the Optionee's
death, the Option shall not be transferable by the Optionee other than by will
or the laws of descent and distribution.
(f) Termination of Employment. Except for cause or as a
result of death, Disability or Retirement, if an Optionee who is an Employee
ceases to be an Employee for any reason other than for cause or as a result of
his or her death, Disability or Retirement, such Optionee shall have the right,
subject to the restrictions of (e) above, to exercise the Option at any time
within thirty days after termination of employment, but only to the extent that,
at the date of termination of employment, the Optionee's right to exercise such
Option had accrued pursuant to the terms of the applicable option agreement and
had not previously been exercised. If the Optionee was terminated for cause, any
Option not exercised in full prior to such termination shall be canceled. For
this purpose, the employment relationship shall be treated as continuing intact
while the Optionee is on military leave, sick leave or other bona fide leave of
absence (to be determined in the sole discretion of the Committee). The
foregoing notwithstanding, (i) in the case of an Incentive Stock Option,
employment shall not be deemed to continue beyond the thirtieth (30th) day after
the Optionee's reemployment rights are guaranteed by statute or by contract, and
(ii) in the case of a Nonstatutory Stock Option, the Board, or the Committee if
there be one, may extend or otherwise modify the period of time specified herein
during which the Option may be exercised following termination of Optionee's
employment.
(g) Death of Optionee. If an Optionee dies while an
Employee, or after ceasing to be an Employee but during the period while he or
she could have exercised the Option under this Section 7, and has not fully
exercised the Option, then the Option may be exercised in full, subject to the
restrictions
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of (e) above, at any time prior to and including, but not later than the
termination date set forth in the Option, by the executors or administrators of
his or her estate or by any person or persons who have acquired the Option
directly from the Optionee by bequest or inheritance, but only to the extent
that, at the date of death, the Optionee's right to exercise such Option had
accrued and had not been forfeited pursuant to the terms of the applicable
Option Agreement and had not previously been exercised. The foregoing
notwithstanding, in the case of a Nonstatutory Stock Option, the Board, or the
Committee if there be one, may extend or otherwise modify the period of time
specified herein during which the Option may be exercised following termination
of Optionee's employment.
(h) Disability of Optionee. If an Optionee ceases to be an
Employee by reason of Disability, such Optionee shall have the right, subject to
the restrictions of (f) above, to exercise the Option at any time prior to and
including, but not later than the termination date set forth in the Option, but
only to the extent that, at the date of termination of employment, the
Optionee's right to exercise such Option had accrued pursuant to the terms of
the applicable option agreement and had not previously been exercised. The
foregoing notwithstanding, in the case of a Nonstatutory Stock Option, the
Board, or the Committee if there be one, may extend or otherwise modify the
period of time specified herein during which the Option may be exercised
following termination of Optionee's employment.
(i) Retirement of Optionee. If an Optionee ceases to be an
Employee by reason of Retirement, such Optionee shall have the right, subject to
the restrictions of (e) above, to exercise the Option at any time prior to and
including, but not later than the termination date set forth in the Option, but
only to the extent that, at the date of termination of employment, the
Optionee's right to exercise such Option had accrued pursuant to the terms of
the applicable option agreement and had not previously been exercised. The
foregoing notwithstanding, in the case of a Nonstatutory Stock Option, the
Board, or the Committee if there be one, may extend or otherwise modify the
period of time specified herein during which the Option may be exercised
following termination of Optionee's employment.
(j) Rights as a Stockholder. An Optionee, or a transferee of
an Optionee, shall have no rights as a stockholder with respect to any Shares
covered by his or her Option until the date of the issuance of a stock
certificate for such Shares. No adjustment shall be made for dividends (ordinary
or extraordinary, whether in cash, securities or other property), distributions
or other rights for which the record date is prior to the date such stock
certificate is issued, except as provided in Section 10 hereof.
(k) Modification, Extension and Renewal of Option. Within
the limitations of the Plan, the Board, or the Committee, if there be one, may
modify, extend or renew outstanding Options or accept the cancellation of
outstanding Options (to the extent not previously exercised) for the granting of
new Options in substitution therefor. The foregoing notwithstanding, no
modification of an Option shall, without the consent of the Optionee, alter or
impair any rights or obligations under any Option previously granted.
(l) Other Provisions. The stock option agreements authorized
under the Plan may contain such other provisions not inconsistent with the terms
of the Plan (including, without limitation, restrictions upon the exercise of
the Option) as the Board, or the Committee, if there be one, shall deem
advisable.
8. LIMITATION ON VALUE OF EXERCISABLE SHARES. In the case of
Incentive Stock Options granted hereunder, the aggregate Fair Market Value
(determined as of the date of the grant thereof) of the Shares with respect to
which Incentive Stock Options become exercisable by any
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employee of the Company for the first time during any calendar year (under this
Plan and all other plans maintained by the Corporation, its parent or its
Subsidiaries) shall not exceed $100,000.
9. TERM OF PLAN. Options may be granted pursuant to the Plan until
the expiration of ten (10) years from the effective date of the Plan.
10. RECAPITALIZATIONS. Subject to any required action by
stockholders, the number of Shares covered by the Plan as provided in Section 6
hereof, the number of Shares covered by each outstanding Option and the Exercise
Price thereof shall be proportionately adjusted for any increase of decrease in
the number of issued Shares resulting from a subdivision or consolidation of
Shares or the payment of a stock dividend (but only of Common Stock) or any
other increase or decrease in the number of issued Shares effected without
receipt of consideration by the Corporation. Subject to any required action by
stockholders, if the Corporation is the surviving corporation in any merger or
consolidation, each outstanding Option shall pertain and apply to the securities
to which a holder of the number of Shares subject to the Option would have been
entitled. In the event of a Change in Control (as defined below) of the
Corporation, the date of exercisability of each and every outstanding Option
shall automatically accelerate to a date and time immediately prior to such
Change in Control. For purposes of the Plan, a "Change in Control" of the
Corporation shall be deemed to have occurred if (i) there shall have be
consummated (x) any consolidation or merger of the Corporation in which the
Corporation is not the continuing or surviving corporation or pursuant to which
shares of the Corporation's Common Stock are converted into cash, securities or
other property, other than a merger of the Corporation in which the holders of
the Corporation's Common Stock immediately prior to the merger have the same
proportionate ownership of common stock of the surviving corporation immediately
after the merger (including a reincorporation), or (y) any sale, lease, exchange
or other transfer (in one transaction or a series of related transactions) of
all, or substantially all, of the assets of the Corporation, or (ii) the
stockholders of the Corporation shall approve any plan or proposal for the
liquidation or dissolution of the Corporation, or (iii) any person (as such term
is used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act")), shall become the beneficial owner (within the
meaning of Rule 13d-3 under the Exchange Act) of 30% or more of the
Corporation's outstanding Common Stock (excluding the Corporation's ESOP and
401(k) Plan from the definition of "person"), or (iv) during any period of two
consecutive years, individuals who at the beginning of such period constitute
the entire Board of Directors shall cease for any reason to constitute a
majority thereof unless the election, or the nomination for election by the
Corporation's stockholders, of each new director was approved by a vote of at
least a majority of the directors then still in office who were directors at the
beginning of the period. To the extent that the foregoing adjustments relate to
securities of the Corporation, such adjustments shall be made by the Board, or
the Committee, if there be one, whose determination shall be conclusive and
binding on all persons. Except as expressly provided in this Section 10, the
Optionee shall have no rights by reason of subdivision or consolidation of
shares of stock of any class, the payment of any stock dividend or any other
increase or decrease in the number of shares of stock of any class or by reason
of any dissolution, liquidation, merger or consolidation or spin-off of assets
or stock of another corporation, and any issue by the Corporation of shares of
stock of any class, or securities convertible into shares of stock of any class,
shall not affect, and no adjustment by reason thereof shall be made with respect
to, the number or Exercise Price of Shares subject to an Option. The grant of an
Option pursuant to the Plan shall not affect in any way the right or power to
the Corporation to make adjustments, reclassifications, reorganizations or
changes of its capital or business structure, to merge or consolidate or to
dissolve, liquidate, sell or transfer all or any part of its business assets.
11. SECURITIES LAW REQUIREMENTS.
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(a) Legality of Issuance. The issuance of any Shares upon
the exercise of any Option and the grant of any Option shall be contingent upon
the following:
(1) the Corporation and the Optionee shall have
taken all actions required to register the Shares under the Securities Act of
1933, as amended (the "Act"), and to qualify the Option and the Shares under any
and all applicable state securities or "blue sky" laws or regulations, or to
perfect an exemption from the respective registration and qualification
requirements thereof;
(2) any applicable listing requirement of any stock
exchange on which the Common Stock is listed shall have been satisfied;
(3) any other applicable provision of state or
Federal law shall have been satisfied.
(b) Restrictions on Transfer. Regardless of whether the
offering and sale of Shares under the Plan has been registered under the Act or
has been registered or qualified under the securities laws of any state, the
Corporation may impose restrictions on the sale, pledge or other transfer of
such Shares (including the placement of appropriate legends on stock
certificates) if, in the judgment of the Corporation and its counsel, such
restrictions are necessary or desirable in order to achieve compliance with the
provisions of the Act, the securities laws of any state or any other law. In the
event that the sale of Shares under the Plan is not registered under the Act but
an exemption is available which required an investment representation or other
representation, each Optionee shall be required to represent that such Shares
are being acquired for investment, and not with a view to the sale or
distribution thereof, and to make such other representations as are deemed
necessary or appropriate by the Corporation and its counsel. Any determination
by the Corporation and its counsel in connection with any of the matters set
forth in this Section 11 shall be conclusive and binding on all persons. Stock
certificates evidencing Shares acquired under the Plan pursuant to an
unregistered transaction shall bear the following restrictive legend and such
other restrictive legends as are required or deemed advisable under the
provisions of any applicable law:
"THE SALE OF THE SECURITIES REPRESENTED HEREBY HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT"). ANY TRANSFER OF SUCH
SECURITIES WILL BE INVALID UNLESS A REGISTRATION STATEMENT UNDER THE ACT IS IN
EFFECT AS TO SUCH TRANSFER OR IN THE OPINION OF COUNSEL FOR THE ISSUER SUCH
REGISTRATION IS UNNECESSARY IN ORDER FOR SUCH TRANSFER TO COMPLY WITH THE ACT."
(c) Registration or Qualification of Securities. The
Corporation may, but shall not be obligated to register or qualify the issuance
of Options and/or the sale of Shares under the Act or any other applicable law.
The Corporation shall not be obligated to take any affirmative action in order
to cause the issuance of Options or the sale of Shares under the plan to comply
with any law.
(d) Exchange of Certificates. If, in the opinion of the
Corporation and its counsel, any legend placed on a stock certificate
representing shares sold under the Plan is no longer required, the holder of
such certificate shall be entitled to exchange such certificate for a
certificate representing the same number of Shares but lacking such legend.
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12. AMENDMENT OF THE PLAN. The Board may from time to time, with
respect to any Shares at the time not subject to Options, suspend or discontinue
the Plan or revise or amend it in any respect whatsoever except that, without
the approval of the Corporation's stockholders if they have previously approved
the Plan, no such revision or amendment shall:
(a) Increase the number of Shares subject to the Plan;
(b) Change the designation in Section 5 hereof with respect
to the class of persons eligible to receive Options; or
(c) Amend this Section 12 to defeat its purpose.
13. APPLICATION OF FUNDS. The proceeds received by the Corporation
from the exercise of an Option will be used for general corporate purposes.
14. EXECUTION. To record the adoption of the Plan in the form set
forth above by the Board effective as of February 23, 1999, the Corporation has
caused this Plan to be executed in the name and on behalf of the Corporation
where provided below by an officer of the Corporation hereunto duly authorized.
SUMMA INDUSTRIES
By: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx, Vice President
