Exhibit (d)(5)
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT made this 1st day of __________, between
Congoleum Corporation, a Delaware corporation (the "Company"), and
(LastName) (the "Optionee").
Pursuant to the Congoleum Corporation 1999 Stock Option Plan for
Non-Employee Directors (the "Plan"), the Committee (as described below) has
determined that the Optionee is to be awarded, on the terms and conditions
set forth herein (and subject to the terms and provisions of the Plan), a
nonqualified stock option (an "Option") to purchase Stock, and hereby
grants such Option. Capitalized terms which are not defined in this Option
Agreement will have the meanings set forth in the Plan.
1. Number of Shares of Stock and Purchase Price. The Optionee is
hereby granted an Option to purchase ________ shares of Stock (the "Option
Shares") at a purchase price equal to $_______ per Share (the "Option
Price"), pursuant to the terms of this Option Agreement and the provisions
of the Plan.
2. Period of Option and Conditions of Exercise.
(a) The Option shall be deemed to have been granted on
the date hereof (the "Date of Grant") and, unless the Option is previously
terminated pursuant to this Option Agreement, the Option shall terminate
upon the expiration of ten years from the date hereof (the "Expiration
Date"). Upon the termination of the Option, all rights of the Optionee
hereunder shall cease.
(b) Subject to the provisions of the Plan and this Option
Agreement, the Option shall become exercisable as to all of the Option
Shares on the date which is six months after the date hereof.
3. Termination of Service. Notwithstanding any provision of this
Agreement or the Plan to the contrary, Options shall become exercisable in
full on the date the Optionee ceases to serve as a member of the Board for
any reason. Options may not be exercised, and such Options shall terminate,
as of the third anniversary of the date the Optionee ceases to serve as a
member of the Board for any reason, provided, however, that if the Optionee
dies within the nine-month period ending on the third anniversary of the
date on which the Optionee ceases to serve as a member of the Board, the
Optionee's legal representative may, at any time within nine months after
the Optionee's death, exercise any Options granted to the Optionee, further
provided, however, that in no event may an Option be exercised following
the Expiration Date.
4. Exercise of Option.
(a) The Option shall be exercised in the following
manner: the Optionee, or the person or persons having the right to exercise
the Option upon the death or disability of the Optionee, shall deliver to
the Company written notice, in substantially the form of the notice
attached hereto, specifying the number of Option Shares which the Optionee
elects to purchase. The Optionee must include with the notice full payment
for any Option Shares being purchased under an Option.
(b) Payment of the Option Price for any Option Shares
being purchased must be made in cash, by certified or cashier's check, or
by delivering to the Company Stock which the Optionee already owns. If the
Optionee pays by delivering Stock, the Optionee must include with the
notice of exercise the certificates for such Stock either duly endorsed for
transfer or accompanied by an appropriately executed stock power in favor
of the Company. The Stock delivered by the Optionee will be valued by the
Company at its Fair Market Value on the day preceding the date of exercise
of the Option.
(c) The Option may be exercised only to purchase whole
shares of Stock, and in no case may a fractional share be purchased. The
right of the Optionee to purchase shares of Stock with respect to which the
Option has become exercisable may be exercised, in whole or in part at any
time or from time to time, prior to the Expiration Date or such earlier
date on which the Option terminates.
(d) The Company may require an Optionee to pay, prior to
the delivery of any Option Shares to which such Optionee shall be entitled
upon exercise of any Option, an amount equal to the federal, state and
local income taxes and other amounts required by law to be withheld by the
Company with respect to any Option. Alternatively, the Optionee may
authorize the Company to withhold from the number of Option Shares he or
she would otherwise receive upon exercise of an Option, that number of
Option Shares having a Fair Market Value equal to the amount of such
required tax.
5. Miscellaneous.
(a) Entire Agreement. This Option Agreement and the Plan
contain all of the understandings and agreements between the Company and
the Optionee concerning this Option and supersedes all earlier negotiations
and understandings, written or oral, between the parties with respect
thereto. The Company and the Optionee have made no promises, agreements,
conditions or understandings, either orally or in writing, that are not
included in this Option Agreement or the Plan.
(b) Captions. The captions and section numbers appearing
in this Option Agreement are inserted only as a matter of convenience. They
do not define, limit, construe or describe the scope or intent of the
provisions of this Option Agreement.
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(c) Counterparts. This Option Agreement may be executed
in counterparts each of which when signed by the Company or the Optionee
will be deemed an original and all of which together will be deemed the
same Agreement.
(d) Notices. Any notice or communication having to do
with this Option Agreement must be given by personal delivery or by
certified mail, return receipt requested, addressed, if to the Company or
the Committee, to the attention of the Secretary of the Company at the
principal office of the Company, and, if to the Optionee, to the Optionee's
last known address contained in the personnel or other records of the
Company.
(e) Succession and Transfer. Each and all of the
provisions of this Option Agreement are binding upon and inure to the
benefit of the Company and the Optionee and their respective estate,
successors and assigns; provided, however, that the Option granted
hereunder shall not be transferable by the holder thereof other than by
will or by the laws of descent and distribution and may be exercised,
during the lifetime of the Optionee, only by the Optionee or by his or her
guardian, custodian or legal representative.
(f) Amendments. Subject to the provisions of the Plan,
this Option Agreement may be amended or modified at any time by an
instrument in writing signed by the parties hereto.
(g) Governing Law. This Option Agreement and the rights
of all persons claiming hereunder will be construed and determined in
accordance with the laws of the State of Delaware without giving effect to
the choice of law principles thereof.
(h) Benefits of this Agreement. Nothing in this Option
Agreement shall be construed to give to any person or entity other than the
Company and the Optionee any legal or equitable right, remedy or claim
under this Option Agreement; but this Option Agreement shall be for the
sole and exclusive benefit of the Company and the Optionee.
(i) Option Agreement Subject to Plan. This Option
Agreement is made under and subject to the provisions of the Plan, and all
of the provisions of the Plan are hereby incorporated herein as provisions
of this Agreement. If there is a conflict between the provisions of this
Option Agreement and the provisions of the Plan, the provisions of the Plan
will govern. By signing this Agreement, the Optionee confirms that he or
she has received a copy of the Plan and has had an opportunity to review
the contents thereof.
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IN WITNESS WHEREOF, the parties have executed this Option
Agreement on the date and year first above written.
CONGOLEUM CORPORATION
By:_____________________________
Name:
Title:
The Option has been accepted by
the undersigned, subject to the
terms and provisions of the Plan
and of this Option Agreement.
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Optionee
