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
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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
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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.
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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
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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, 000 Xxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 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.
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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:______________________________
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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:
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