Exhibit 10.12
GLOBE HOLDINGS, INC.
Amended and Restated
Performance Option Agreement
This Amended and Restated Performance Option Agreement (this
"Agreement") amends and restates the Globe Manufacturing Co.
Performance Option Agreement under the Management Incentive Plan by
and between the Optionee (as hereinafter defined) and the Company (as
hereinafter defined), which option agreement was effective immediately
prior to the consummation of the merger (the "Merger") contemplated by
the Agreement and Plan of Merger dated June 23, 1998 by and between
the Company and Globe Acquisition Company, as amended. Such option
agreement provided for the right to purchase 2246.5 shares of Class C
Common Stock of the Company. Effective upon the Merger, each share of
Class C Common Stock represented the right to receive a Unit (as
hereinafter defined).
1. Grant of Option. Globe Holdings, Inc,. a Massachusetts corporation
formerly known as Globe Manufacturing Co. (the "Company"), hereby grants to
_____________ (the "Optionee") an option (the "Option") to purchase an aggregate
of 2,246.5 Units (as defined below) at a price of thirty dollars ($30.00) per
Unit, purchasable as set forth in, and subject to the terms and conditions of,
the Globe Manufacturing Co. Management Incentive Plan (the "Plan"), the
Executive Securities Agreement of even date herewith by and between the Optionee
and the Company (the "Executive Securities Agreement") and this Option. Except
where the context otherwise requires, the term "Company" shall include the
parent and all present and future subsidiaries of the Company as defined in
Sections 424(e) and 424(f) of the Internal Revenue Code of 1986, as amended or
replaced from time to time (the "Code"). For purposes hereof, a Unit shall
consist of ten (10) shares of the Company's Class A Common Stock, par value $.01
per share ("Class A Common Stock:"), and .13354106 shares of the Company's Class
A Preferred Stock, par value $.01 per share ("Preferred Stock").
2. Non-Qualified Stock Option. This Option is not intended to qualify as
an incentive stock option under Section 422 of the Code.
3. Exercise of Option and Provisions for Termination.
3.1 Vesting Schedule. Except as otherwise provided in this Agreement
or the Executive Securities Agreement, this Option may be exercised at any time
and from time to time after the date hereof as to part or all of the Units
hereunder prior to termination of this Option as provided herein.
3.2 Exercise Procedure. Subject to the conditions set forth in this
Agreement, this Option shall be exercised by the Optionee's delivery of written
notice of exercise to the Treasurer of the Company specifying the number of
Units to be purchased and the purchase price to be paid therefor
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and accompanied by payment in full in accordance with Section 4. Such exercise
shall be effective upon receipt by the Treasurer of the Company of such written
notice together with the required payment. The Optionee may purchase fewer than
the total number of Units covered hereby, provided that no partial exercise of
this Option may be for fewer than ten Units. This Option shall expire and shall
not be exercisable after July 31, 2008.
3.3 Continuous Relationship with the Company Required. Except as
otherwise provided in this Section 3 or as otherwise provided in the Executive
Securities Agreement, this Option may not be exercised unless the Optionee, at
the time he or she exercises this Option, is, and has been at all times since
the date of grant of this Option, an employee or officer of the Company (an
"Eligible Optionee").
4. Payment of Purchase Price.
4.1 Method of Payment. Payment of the purchase price for Units
purchased upon exercise of this Option shall be made by (i) delivery to the
Company of cash or a check to the order of the Company in an amount equal to the
purchase price of such Units, (ii) subject to the consent of the Company, by
delivery to the Company of shares of common stock of the Company then owned by
the Optionee having a Fair Market Value (as defined in the Executive Securities
Agreement) equal in amount to the purchase price of such Units, (iii) by any
other means which the Board of Directors determines are consistent with the
purpose of the Plan and applicable laws and regulations (including, without
limitation, Regulation T promulgated by the Federal Reserve Board), or (iv) by
any combination of such methods of payment.
4.2 Delivery of Shares Tendered in Payment of Purchase Price. If the
Company permits the Optionee to exercise options by delivery of shares of common
stock of the Company, the certificate or certificates representing the shares of
common stock of the Company to be delivered shall be duly executed in blank by
the Optionee or shall be accompanied by a stock power duly executed in blank
suitable for purposes of transferring such shares to the Company. Fractional
shares of common stock of the Company will not be accepted in payment of the
purchase price of shares acquired upon exercise of this Option.
4.3 Restrictions Upon Use of Option Stock. Notwithstanding the
foregoing, no shares of common stock of the Company may be tendered in payment
of the purchase price of Units purchased upon exercise of this Option if the
shares to be so tendered were acquired within twelve (12) months before the date
of such tender, through the exercise of an option granted under the Plan or any
other stock option or restricted stock plan of the Company.
5. Delivery of Shares; Compliance With Securities Law, Etc.
5.1 General. The Company shall, upon payment of the option price for
the number of Units purchased and paid for, make prompt delivery of the shares
comprising such Units to the Optionee, provided that if any law or regulation
requires the Company to take any action with respect to such shares before the
issuance thereof, then the date of delivery of such securities shall be extended
for the period necessary to complete such action.
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5.2 Listing, Qualification, Etc. This Option shall be subject to the
requirement that if, at any time, counsel to the Company shall determine that
the listing, registration or qualification of the shares comprising the Units
subject hereto upon any securities exchange or under any state or federal law,
or the consent or approval of any governmental or regulatory body, or that the
disclosure of non-public information or the satisfaction of any other condition
is necessary as a condition of, or in connection with, the issuance or purchase
of Units hereunder, this Option may not be exercised, in whole or in part,
unless such listing, registration, qualification, consent or approval,
disclosure, or satisfaction of such other condition shall have been effected or
obtained on terms acceptable to the Board of Directors. Nothing herein shall be
deemed to require the Company to apply for, effect or obtain such listing,
registration, qualification, or disclosure or satisfy such other condition.
6. Legend on Certificates. Each outstanding certificate representing
shares comprising Units that are subject to this Agreement shall bear legends
substantially in the following form:
These securities have not been registered under the Securities Act of
1933. They may not be offered or transferred by sale, assignment,
pledge or otherwise unless (i) a registration statement for the
securities under the Securities Act of 1933 is in effect or (ii) the
corporation has received an opinion of counsel, which opinion is
satisfactory to the corporation, to the effect that such registration
is not required under the Securities Act of 1933.
The sale, assignment, pledge, encumbrance or other transfer of the
securities represented by this certificate is subject to the
provisions of an executive securities agreement by and between the
corporation and the holder of such securities, a copy of each of which
is on file at the principal executive office of the corporation.
7. No Special Employment or Similar Rights. Nothing contained in the
Plan or this Option shall be construed or deemed by any person under any
circumstances to bind the Company to continue the employment or other
relationship of the Optionee with the Company for the period within which this
Option may be exercised.
8. Rights as a Shareholder. The Optionee shall have no rights as a
shareholder with respect to any shares comprising Units which may be purchased
by exercise of this Option (including, without limitation, any rights to receive
dividends or non-cash distributions with respect to such shares) unless and
until a certificate representing such shares is duly issued and delivered to the
Optionee. No adjustment shall be made for dividends or other rights for which
the record date is prior to the date such stock certificate is issued.
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9. Adjustment Provisions.
9.1 General. If, through or as a result of any merger,
consolidation, sale of all or substantially all of the assets of the Company,
reorganization, recapitalization, reclassification, stock dividend, stock split,
reverse stock split, conversion or other similar transaction, (i) the
outstanding shares of Class A Common Stock or Preferred Stock are increased or
decreased or are exchanged for a different number or kind of shares or other
securities of the Company, or (ii) additional shares or new or different shares
or other securities of the Company or other non-cash assets are distributed with
respect to such shares of Class A Common Stock, Preferred Stock or other
securities, the Optionee shall, with respect to this Option or any unexercised
portion hereof, be entitled to the rights and benefits, and be subject to the
limitations, set forth in Section 15(a) of the Plan.
9.2 Board Authority to Make Adjustments. Any adjustments under this
Section 9 will be made by the Board of Directors, whose determination as to what
adjustments, if any, will be made and the extent thereof will be final, binding
and conclusive.
10. Subject to Terms of Executive Securities Agreement. This Option, the
shares of Class A Common Stock and Preferred Stock issuable pursuant to this
Agreement and the rights of the Optionee hereunder are subject to the terms and
conditions of the Executive Securities Agreement. In the event of any conflict
between the terms of the Executive Securities Agreement, on the one hand, and
the Plan or this Agreement, on the other hand, the terms of the Executive
Securities Agreement shall control.
11. Withholding Taxes. The Company's obligation to deliver shares upon
the exercise of this Option shall be subject to the Optionee's satisfaction of
all applicable federal, state and local income and employment tax withholding
requirements.
12. Miscellaneous.
12.1 Except as provided herein, this Option may not be amended or
otherwise modified unless evidenced in writing and signed by the Company and the
Optionee.
12.2 All notices under this Option shall be mailed or delivered by
hand to the parties at their respective addresses set forth beneath their names
below or at such other address as may be designated in writing by either of the
parties to one another.
12.3 This Option shall be governed by and construed in accordance
with the laws of the Commonwealth of Massachusetts.
Date of Grant: July 31, 1998 GLOBE HOLDINGS, INC.
By:__________________________
Title:_______________________
Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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OPTIONEE'S ACCEPTANCE
The undersigned hereby accepts the foregoing option and agrees to the terms
and conditions thereof. The undersigned hereby acknowledges receipt of a copy
of the Company's Management Incentive Plan.
OPTIONEE
_______________________________
ADDRESS: _____________________
_____________________
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