Exhibit 10(s)
STOCK OPTION AGREEMENT
(Non-Assignable)
Date: Option Number: SP-9
November 6, 1996 Number of Shares Purchasable
10,000
To Purchase Shares of
Class A Common Stock
-of-
K-V PHARMACEUTICAL COMPANY
THIS CERTIFIES THAT Alan G. Johnson is hereby granted the option to
purchase, at the option price of $10.875 per share, all or any part of that
number of fully paid and non-assessable shares of the Class A Common Stock,
par value $0.01 per share ("Class A Common Stock"), of K-V Pharmaceutical
Company, a Delaware corporation (hereinafter called the "Company") above set
forth, upon and subject to the following terms and conditions:
This Option and all rights to purchase shares hereunder shall
expire ten (10) years from the date hereof (hereinafter called the
"expiration date.")
This Option and all rights hereunder shall be non-assignable and
non-transferable, except to the extent that the holder's legatees, personal
representatives or distributees in the event of the holder's death may be
permitted to exercise this Option as hereinafter set forth.
Any attempted transfer, assignment, pledge, hypothecation or other
disposition of this Option except as provided herein shall be null and void
and without effect.
As of November 6, 1996, and prior to its expiration or earlier
termination, this Option shall be exercisable from time to time in
cumulative installments as to all or any of the shares then purchasable
hereunder as follows: During the twelve-month period commencing November 6,
1996 and ending November 5, 1997, it may be exercised as to 10% of the
shares originally subject hereto; and during each additional consecutive
twelve-month period, it may be exercised as to an additional 10%; until the
tenth
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twelve-month period, during which this Option shall be exercisable as to all
the shares subject hereto.
This Option may be exercised from time to time only by delivery to
the Company at its main office (attention of the Secretary) of a duly signed
notice in writing stating the number of shares with respect to which this
Option is being exercised and the time and date of delivery thereof, which
time and date of delivery shall be during the normal business hours of the
Company on a regular business day not less than fifteen (15) days after the
giving of such notice unless an earlier date has been mutually agreed upon;
provided, however, that not less than ten (10) shares may be purchased at
any one time unless the number purchased is the total number then
purchasable hereunder; and provided further that this Option may not be
exercised at any time when this Option or the granting or exercise hereof
violates any law or governmental order or regulation. At the time of
delivery specified in such notice, the Company shall, without transfer or
issue tax to the holder (or other person entitled to exercise this Option)
transfer and set aside for the benefit of the holder (or other person
entitled to exercise this Option) a certificate or certificates out of the
Company's theretofore authorized but unissued or reacquired shares of Class
A Common Stock as the Company may elect (with appropriate legend thereon, if
deemed necessary by the Company, containing the representation by the person
exercising the Option that the shares purchased shall be for investment
purposes and not with a view to resale or distribution) against payment of
the option price in full for the number of shares purchased by either (i)
cash (including a certified or bank cashier's check or the equivalent
thereof), or (ii) at the discretion of the Board of Directors ("Board"), as
defined in the Plan, by delivering at fair market value, as determined by
the Board (as provided under the Plan), Company Common Stock already owned
by the Participant, or (iii) any combination of cash and Company Common
Stock, to be held by the Company and subsequently delivered to the holder
(or such other person) as hereinafter provided. If the holder fails to pay
for any part of the number of shares specified in such notice as required,
the right to purchase such shares may be terminated by the Board.
Except as hereinafter provided, no Option may be exercised at any
time unless the holder hereof is an employee of the Company or any of its
subsidiaries.
To the extent that this Option has not been exercised in full prior
to its termination or expiration date, whichever occurs sooner, it shall
terminate and become void and of no effect.
All Class A Common Stock purchased pursuant to the exercise of an
Option shall be held by the Company for a period of two years from the date
of exercise (the "Holding Period"). If the holder leaves the employ of the
Company during the Holding Period for any reason, except retirement (under
normal Company policies), death or
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disability, the holder's purchase thereof shall be voidable at the Company's
sole option and discretion at any time within the Holding Period. If any
purchase of Class A Common Stock is so voided, the least of (i) the funds
paid by the holder in connection with the voided transaction; (ii) the value
in cash of Common Stock used to purchase such Class A Common Stock,
determined as of the date of such purchase, less any amount which would have
been forfeited pursuant to the Plan relative to Stock used to purchase the
forfeited stock if such Stock has not been so used and the Holding Period
relative to such stock had not expired; or (iii) the fair market value per
shares, as determined on the date of termination of the holder's employment
with the Company in accordance with the provisions of the Plan, shall be
returned in full to the holder within thirty (30) days after such purchase
is voided provided, however, no payment shall be due prior to the time that
the Company is in possession of the Class A Common Stock and an executed
stock power with respect to such Stock. In order to facilitate the
repurchase of Class A Common Stock by the Company in accordance with the
terms of this Paragraph, each holder who exercises any Option or portion
thereof shall, at the time of payment for such Class A Common Stock, as
provided hereinabove, deliver to the Company a form of stock power and
assignment signed by such holder in form and substance satisfactory to the
Company, rendering the certificate representing the shares purchased
negotiable to the Company. Notwithstanding the foregoing, if any holder who
exercises an Option demonstrates to the Board of the Company a need to
obtain financing for the purchase of Class A Common Stock and indicates his
good faith intention to remain in the employ of the Company during the
Holding Period, the Board, in its sole discretion, may permit delivery of
any Class A Common Stock purchased hereunder to a financial institution for
use as collateral security for the purchase of the Class A Common Stock,
subject to any necessary or appropriate restrictions with respect thereto as
may be required to comply with applicable federal and state securities laws
and/or the listing requirements of any national securities exchange, and the
holder may use any Class A Common Stock so held in payment of the Option
Price for additional Class A Common Stock as provided for herein.
If the holder remains in the employ of the Company throughout the
Holding Period, or is terminated by reason of death, disability or
retirement (under normal Company policies) the Company shall deliver to the
holder or the holder's personal representative, as soon as practicable
thereafter, certificates representing the Class A Common Stock purchased
hereunder (the "Certificates"), free and clear of restrictions except for
the restrictions which are necessary to assure compliance by the Company and
the holder with applicable federal and state securities laws and/or the
listing requirements of any national securities exchange. If the Company
fails or declines to exercise its right to void any purchase pursuant to the
terms of the preceding paragraph hereof, the Company shall deliver the
Certificates to the holder as soon as practicable after the expiration of
two years from the date of exercise.
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This Option shall not confer upon the holder any right to remain in
the employ of the Company or any subsidiary thereof and shall not confer
upon the holder any rights in the stock of the Company prior to the issuance
of a stock certificate pursuant to the exercise of this Option. 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.
Except as provided in this paragraph, upon termination of the
holder's employment with the Company or any of its subsidiaries for any
reason, this Option shall terminate. If the employment of the Participant is
terminated by reason of retirement (under normal Company policies) any
outstanding Option or unexercised portion thereof granted to him may be
fully exercised by the Participant, his personal representative, executor,
administrator, heirs or devisees, as applicable, at any time, within three
months from the date of termination by reason of retirement. If the
employment of a Participant is terminated by reason of death or disability,
any outstanding Option or unexercised portion thereof which was granted to
him may be fully exercised by the Participant, his personal representative,
executor, administrator, heirs or devisees, as applicable, at any time
within one year from the date of termination by reason of death or
disability, provided that the Participant has completed five (5) full years
of employment with the Company from the date the Option was granted. If the
Participant has not completed five (5) full years of employment with the
Company from the date the Option was granted, the Option may be exercised
only to the extent exercisable as of the date of termination of employment.
Notwithstanding any of the foregoing, no Option shall be exercisable at any
time after the expiration of employment from the Company to any Parent or
Subsidiary thereof, or vice versa, shall not be deemed a termination of
employment.
In the event that the outstanding shares of Class A Common Stock of
the Company are hereafter increased or decreased or changed into or
exchanged for a different number or kind of shares or other securities of
the Company or of another corporation, or in the event that there is a
"corporate transaction" as that term is defined in the Regulations under
Section 425 of the Internal Revenue Code of 1986, by reason of
reorganization, merger, consolidation, recapitalization, reclassification,
stock split-up, spin-off, combination of shares or dividend payable in
capital stock, this Option shall, to the extent that it has not been
exercised, entitle the holder upon the subsequent exercise of this Option to
such number and kind of securities or other property, subject to the terms
of the Option, to which the holder would be entitled had the holder actually
owned the shares subject to the unexercised portion of this Option at the
time of the occurrence of such event, and the aggregate purchase price upon
the subsequent exercise of this Option shall be the same as if the Class A
Common Stock of the Company originally optioned were being purchased as
provided herein; provided, however, that each such adjustment in the number
and kind of shares subject to this Option, including any adjustment in the
Option price, shall be made in such manner as
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not to constitute a "modification" as defined in Section 425 of the Internal
Revenue Code of 1986. Any such adjustment made by the Board shall be
conclusive.
The Company may postpone the issuance and delivery of shares upon
any exercise of this Option, if necessary, until admission of such shares to
listing on any stock exchange and completion of registration and
qualification of such shares under any applicable state or federal law, rule
or regulation.
The holder hereof shall make such representations and furnish such
information to the Company as may be appropriate to permit the Company to
issue such shares in compliance with the provisions of the Security Act of
1933, as amended (the "Securities Act"), or any other applicable law,
including state securities laws. Without limiting the generality of the
foregoing, if requested by the Company, the holder will represent, in form
acceptable to the Company, that the holder is purchasing any shares issued
pursuant hereto for investment purposes and not with a view to resale or
distribution.
This Option is issued pursuant to resolutions duly adopted by the
Board of Directors, the receipt of a copy of which the holder acknowledges
by virtue of the acceptance hereof, and is subject to all the terms and
conditions of said resolutions.
A determination by the Board of any question which may arise with
respect to the interpretation and construction of the provisions of this
Option or of said Plan shall be final. The Board may authorize and establish
such rules, regulations and revisions thereof not inconsistent with the
provisions of said Plan as it may deem advisable.
WITNESS the seal of the Company and the signatures of its duly
authorized officers or agents.
Dated: November 6, 1996
K-V PHARMACEUTICAL COMPANY
By /s/ Gerald R. Mitchell
--------------------------------
Vice President, Finance
ACCEPTED:
/s/ Alan G. Johnson
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Alan G. Johnson
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