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EXHIBIT 10.10
PHYSICIAN SALES & SERVICE, INC.
AMENDED AND RESTATED
1994 LONG TERM STOCK PLAN
I. GENERAL
1.1 PURPOSE OF THE PLAN
The purpose of the Amended and Restated 1994 Long-Term Stock Plan (the
"Plan") of Physician Sales & Service, Inc. (the "Company") is to provide an
incentive, in the form of a proprietary shareholder interest in the Company, to
employees of the Company and/or its subsidiaries, to increase their interest in
the Company's welfare, and to assist the Company and its subsidiaries in
attracting and retaining employees.
1.2 ADMINISTRATION OF THE PLAN
The Plan shall be administered by the Compensation Committee or its
successor (the "Committee") of the Board of Directors of the Company (the
"Board") which shall consist solely of two or more directors meeting the
definition of disinterested person under Rule 16b-3 of the Securities Exchange
Act of 1934, as amended (the "Exchange Act").
The Committee shall have full and final authority in its discretion,
subject to the provisions of the Plan: (a) to determine individuals to whom and
the time or times at which options or restricted stock shall be granted and
exercised and the number of shares and exercise price, if any, of the common
stock of the Company ("Common Stock") covered by each option or grant of
restricted stock; (b) to determine the terms of the option or restricted stock
agreements, which need not be identical, including, without limitation, terms
covering vesting, exercise dates, if any, and exercise prices, if any; (c) to
decide all questions of fact arising in the application of the Plan; and (d) to
administer and interpret the Plan in all respects. All determinations made by
the Committee shall be final and conclusive.
The Committee shall meet once each fiscal year, and at such additional
times as it may determine or as is requested by the chief executive officer of
the Company, to designate the eligible employees, if any, to be granted awards
under the Plan and the type and amount of such awards and the time when awards
will be granted. No such designation by the Committee shall be effective as a
grant of an award under the Plan until approved by the Board; provided, however,
that the Board may empower the Committee to grant such awards without approval
by the Board. All awards granted under the Plan shall be on the terms and
subject to the conditions hereinafter provided.
1.3 ELIGIBLE PARTICIPANTS
Employees of the Company and the Company's subsidiaries shall be eligible
to participate in the Plan (any employee receiving an award under this Plan
hereinafter referred to as a "Participant"). The terms "subsidiary" or
"subsidiaries" shall mean any corporation now existing or hereafter organized or
acquired (other than the Company) in an unbroken chain of corporations beginning
with the Company, if, at the time of option grant, each of the corporations
(including the Company) other than the last corporation in the unbroken chain
owns stock possessing 80% or more of the total combined voting power of all
classes of stock in one of the other corporations in such chain.
1.4 GRANTS
Grants under the Plan may be stock options (as described in Section II) or
restricted stock (as described in Section III).
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1.5 OTHER COMPENSATION PROGRAMS
The adoption of the Plan contemplates the continuation of any existing
incentive compensation plan(s) of the Company and in no way limits or is limited
by the operation, administration or amendment of any such plan(s). The existence
and terms of the Plan shall not limit the authority of the Board in compensating
employees of the Company in such other forms and amounts as it may determine
from time to time.
1.6 LIMITATIONS ON GRANTS
The aggregate number of shares of Common Stock, including shares reserved
for issuance pursuant to the exercise of options, which may be granted or issued
under the terms of the Plan, may not exceed 2,190,000 shares, and such shares
hereby are reserved for such purpose. The maximum number of shares of Common
Stock that may be subject to grants under the Plan to a Participant may not
exceed 200,000 shares of Common Stock per fiscal year of the Company. Whenever
any outstanding grant or portion thereof expires, is canceled or forfeited or is
otherwise terminated for any reason without having been exercised, the Common
Stock allocable to the expired, forfeited, canceled or otherwise terminated
portion of the grant may again be the subject of further grants hereunder.
Notwithstanding the foregoing, the number of shares of Common Stock
available for grants at any time under the Plan shall be reduced to such lesser
amount as may be required pursuant to the methods of calculation necessary so
that the exemptions provided pursuant to Rule 16b-3 under the Exchange Act will
continue to be available for transactions involving all current and future
grants. In addition, during the period that any grants remain outstanding under
the Plan, the Committee may make good faith adjustments with respect to the
number of shares of Common Stock attributable to such grants for purposes of
calculating the maximum number of shares of Common Stock available for the
granting of future grants under the Plan, provided that following such
adjustments the exemptions provided pursuant to Rule 16b-3 under the Exchange
Act will continue to be available for transactions involving all current and
future grants.
1.7 DEFINITIONS
The following definitions shall apply to the Plan:
(a) "Disability" shall have the meaning provided in the Company's
applicable disability plan or, in the absence of such a definition, when a
Participant becomes totally disabled (as determined by a physician mutually
acceptable to the Participant and the Company) before attaining his or her
65th birthday and if such total disability continues for more than three
months. Disability does not include any condition which is intentionally
self-inflicted or caused by illegal acts of the Participant.
(b) "Fair Market Value" means the average of the high and low sales
prices of the shares of Common Stock on such date on the principal national
securities exchange or automated quotation system of a registered
securities association on which such shares of Common Stock are listed or
admitted to trading. If the shares of Common Stock on such date are not
listed or admitted to trading, the Fair Market Value shall be the value
established by the Board in good faith.
(c) "Retirement" shall have the meaning provided in the Company's
applicable retirement plan or, in the absence of such a definition, the
first day of the month following the month in which the Participant attains
his or her 65th birthday.
II. STOCK OPTIONS
2.1 TYPES OF OPTIONS
Options granted under the Plan shall, at the time of grant, provide that
they will not be treated as an incentive stock option within the meaning of
Section 422 of the Internal Revenue Code of 1986, as amended (the "Code").
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2.2 TERMS AND CONDITIONS OF OPTIONS
Subject to the following provisions, all options granted under the Plan
shall be in such form and upon such terms and conditions as the Committee, in
its discretion, may from time to time determine, provided such terms and
conditions are clearly designated at the time of grant.
2.3 EXERCISE PRICE
The exercise price per share shall be at least the Fair Market Value of the
Common Stock on the date such option is granted.
2.4 TERM OF OPTIONS
Any option granted under the Plan may be exercised no later than ten (10)
years from the date of grant or such shorter period of time as designated by the
Committee at the time of grant. Subject to Sections 2.8, 2.9 and 2.11 hereof and
the stock option agreement governing the grant of the options under the Plan,
which may contemplate vesting of exercise rights, options may be exercised in
whole or in one or more parts throughout such term. All rights to exercise an
option shall expire at the end of the designated term.
2.5 PAYMENT
Payment for shares for which an option is exercised shall be made in full
to the Corporation in such manner and at such time or times as shall be provided
by the Committee at the time of grant in either (i) cash or its equivalent or
(ii) by tendering shares of previously acquired Common Stock having a Fair
Market Value equal to the exercise price or (iii) by a combination of (i) and
(ii). The proceeds from such payment shall be added to the general funds of the
Corporation and shall be used for general corporate purposes.
2.6 VESTING OF OPTIONS
Options shall be exercisable in whole or in part after completion of such
periods of service or achievement of such conditions as the Committee shall
specify when granting the options; provided however, that in the absence of a
Committee specification to the contrary and subject to Sections 2.8, 2.9 and
2.11, such option shall become fully exercisable five (5) years from the date of
grant.
2.7 NOTICE OF EXERCISE
When exercisable pursuant to the terms of the governing stock option
agreement, options granted under the Plan shall be exercised by the Participant
(or by other authorized persons in accordance with Section 4.8) as to all or
part of the shares subject to the option by delivering written notice of
exercise to the Company at its principal business office or such other office as
the Company may from time to time direct, (a) specifying the number of shares to
be purchased, (b) indicating the method of payment of the exercise price or
including a check payable to the Company in an amount equal to the full exercise
price of the number of shares being purchased, (c) including a Tax Election, if
applicable, in accordance with Section 4.7, and (d) containing such further
provisions consistent with the provisions of the Plan, as the Company may from
time to time prescribe.
2.8 TERMINATION OF EMPLOYMENT
Except as otherwise provided in this Section 2.8, if a Participant ceases
being an employee of the Company or any subsidiary for any reason, including,
without limitation, Retirement, discharge, layoff or any other voluntary or
involuntary termination of a Participant's employment (a "Termination"), the
unexercisable portion of the option granted hereunder shall immediately
terminate and be null and void, and the unexercised portion of any outstanding
and exercisable options granted hereunder to such Participant shall terminate
and be null and void for all purposes, after three (3) months have elapsed from
the date of the Termination unless extended by the Committee, in its sole
discretion, within thirty (30) days from the date of Termination. Upon a
Termination as a result of death or Disability, any outstanding options may be
exercised
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by the Participant or the Participant's legal representative within twelve (12)
months after such termination; provided, however, that in no event shall the
period extend beyond the expiration of the option term. Transfer of employment
among the Company and any subsidiaries of the Company shall not be deemed to be
a Termination.
2.9 LIMITATION OF EXERCISE PERIODS
The Committee may limit the time periods within which an option may be
exercised if a limitation on exercise is deemed necessary in order to effect
compliance with applicable law.
2.10 STOCK OPTION AGREEMENT
Each option granted under the Plan shall be evidenced by an individual
stock option agreement which shall be executed by the Company and each
Participant. The agreement shall contain such terms and provisions, not
inconsistent with the terms of the Plan, as shall be determined by the
Committee, including: (a) the number of shares a Participant may acquire
pursuant to the option granted and the exercise price per share; (b) any
conditions affecting the exercise of the option; (c) the procedure for
exercising the option granted; (d) a clear designation of whether the exercise
of the option granted thereby is subject to vesting; (e) representations and
warranties of Participant regarding the acquisition of shares for investment
purposes; and (f) such provisions as the Committee, upon advice of counsel to
the Company, shall deem necessary or appropriate to comply with the requirements
of applicable laws. In the event there shall be any discrepancy or inconsistency
between the terms of the Plan and any term or provision contained in a stock
option agreement, the terms of the Plan, as interpreted by the Committee, shall
govern.
2.11 CHANGE IN CONTROL
Notwithstanding anything herein to the contrary, if a Change in Control has
occurred, then any outstanding option shall immediately become exercisable with
respect to all shares subject to such option on the date such Change in Control
occurred.
III. RESTRICTED STOCK
3.1 TERMS AND CONDITIONS OF AWARDS
The Committee may grant shares of stock subject to the restrictions
described in Section 3.2 ("Restricted Stock") under a restricted stock
agreement, without payment by the Participant for such Restricted Stock. Such
agreement shall specify the number of shares granted and the conditions and
terms of the grant. Restricted Stock, with restrictions noted on the face of the
certificates, shall be issued in the name of the Participant granted the
Restricted Stock and deposited with a trust administered by the Committee (and
subject to the claims of the Company's creditors) during the restriction period.
3.2 RESTRICTIONS
Until the restrictions have lapsed in accordance with Section 3.3, the
shares of Restricted Stock granted hereunder may not be sold, transferred,
pledged, assigned, or otherwise alienated or hypothecated. The Committee may
impose such other restrictions on any shares of restricted stock as required by
law including, without limitation, restrictions under applicable federal or
state securities laws, and may place legends on the certificates representing
such Restricted Stock to provide appropriate notice of such restrictions.
3.3 PERIOD OF RESTRICTION
Subject to Section 3.6, the restrictions set forth in Section 3.2 shall
lapse and such shares shall be freely transferable upon completion of such
periods of service or achievement of such conditions as the Committee shall
specify in an individual Restricted Stock Agreement between the Company and the
Participant when granting the shares of Restricted Stock.
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3.4 TERMINATION OF EMPLOYMENT
If a Participant's employment is terminated prior to the lapsing of the
restrictions in accordance with Section 3.3 as a result of death, Retirement or
Disability, restrictions on the shares of Restricted Stock granted to the
Participant shall immediately lapse on the date of such death, Disability or
Retirement. If any Participant's employment is terminated prior to the lapsing
of restrictions in accordance with Section 3.3 for any reason other than death,
Disability or Retirement, the shares of Restricted Stock granted to such
Participant shall be forfeited and shall revert to the Company.
3.5 RIGHTS AS SHAREHOLDER
Prior to the lapsing of restrictions in accordance with Section 3.3,
Participants holding shares of Restricted Stock shall be entitled to receive all
dividends and other distributions paid with respect to such shares while they
are held by the Participant. If any such dividend or distribution is paid in
shares of Common Stock, such shares shall be subject to the same restrictions on
transferability as the shares of Restricted Stock with respect to which they
were paid.
3.6 CHANGE IN CONTROL
Notwithstanding anything herein to the contrary, if a Change in Control has
occurred, then all restrictions on shares of Restricted Stock shall immediately
lapse on the date such Change in Control occurred.
3.7 SECTION 83(B) ELECTION
Participants shall not be permitted to make an election under Section 83(b)
or any successor provision of the Code with respect to shares of Restricted
Stock granted under the Plan.
IV. GENERAL PROVISIONS
4.1 GENERAL RESTRICTIONS
Each grant under the Plan shall be subject to the requirement that if the
Committee shall determine, at any time, that (a) the listing, registration or
qualification of the shares of Common Stock subject or related thereto upon any
securities exchange or under any state or federal law, (b) the consent or
approval of any government regulatory body, or (c) an agreement by the
Participant with respect to the disposition of shares of Common Stock, is
necessary or desirable as a condition of, or in connection with, the granting or
the issuance or purchase of shares of Common Stock thereunder, such grant may
not be consummated in whole or in part unless such listing, registration,
qualification, consent, approval or agreement shall have been effected or
obtained free of any conditions not acceptable to the Committee.
4.2 ADJUSTMENTS FOR CERTAIN CORPORATE EVENTS
In the event of a reorganization, recapitalization, stock split, stock
dividend, combination of shares, rights offer, liquidation, dissolution, merger,
consolidation, spin-off or sale of assets, or any other change in or affecting
the corporate structure or capitalization of the Company, the Board shall make
such adjustments as the Committee may recommend, and as the Board in its
discretion may deem appropriate, in the number and kind of shares authorized by
the Plan, in the number, exercise price or kind of shares covered by the grants
and in any outstanding grants under the Plan in order to prevent substantial
dilution or enlargement thereof.
4.3 AMENDMENTS
The Board may discontinue the Plan at any time and may amend it from time
to time, but no amendment, without approval by shareholders, may (a) increase
the total number of shares which may be issued under the Plan, except as
provided in Section 4.2 hereof, (b) change the class of employees of the Company
to whom grants may be granted, or (c) cause the Plan to no longer comply with
Rule 16b-3 of the Exchange Act or any other federal or state statutory or
regulatory requirements.
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4.4 MODIFICATION, SUBSTITUTION OR CANCELLATION OF GRANTS
Subject to the terms of the Plan, the Committee may modify outstanding
grants under the Plan or accept the surrender of outstanding grants and make new
grants in substitution for them. Notwithstanding the foregoing, no modification
of any grant shall adversely alter or impair any rights or obligations of the
Participant without the Participant's consent.
4.5 SHARES SUBJECT TO THE PLAN
Shares distributed pursuant to the Plan shall be made available from
authorized but unissued shares or from shares purchased or otherwise acquired,
in open market, in private transactions or otherwise, by the Company for use in
the Plan, as shall be determined from time to time by the Committee.
4.6 RIGHTS OF A SHAREHOLDER
Participants under the Plan, unless otherwise provided by the Plan, shall
have no rights as shareholders by reason thereof unless and until certificates
for shares of Common Stock are issued to them.
4.7 WITHHOLDING
The Company shall have the right to deduct from any distribution of Common
Stock to any Participant an amount equal to the federal, state and local income
taxes and other amounts as may be required by law to be withheld (the
"Withholding Taxes") with respect to any grant under the Plan. If a Participant
is to experience a taxable event in connection with the receipt of cash or
shares of Common Stock pursuant to an option exercise (a "Taxable Event"), the
Participant shall pay the Withholding Taxes to the Company prior to the issuance
of such shares of Common Stock. In satisfaction of the obligation to pay
Withholding Taxes to the Company, the Participant may make a written election
(the "Tax Election"), which may be accepted or rejected in the discretion of the
Committee, to have withheld a portion of the shares of Common Stock then
issuable to the Participant having an aggregate Fair Market Value on the day
immediately preceding the date of such issuance equal to the Withholding Taxes,
provided that in respect of a Participant who may be subject to liability under
Section 16(b) of the Exchange Act either: (i) in the case of a Taxable Event
involving a stock option or the grant of restricted stock, (A) the Tax Election
is made at least six (6) months prior to the date of the Taxable Event and (B)
the Tax Election is irrevocable with respect to all Taxable Events of a similar
nature occurring prior to the expiration of six (6) months following a
revocation of the Tax Election; (ii) in the case of the exercise of an option
(A) the Participant makes the Tax Election at least six (6) months after the
date the option was granted, (B) the option is exercised during the ten (10) day
period beginning on the third business day and ending on the twelfth business
day following the release for publication of the Company's quarterly or annual
statement of sales and earnings (the "Window Period") and (C) the Tax Election
is made during the Window Period in which the option is exercised or prior to
such Window Period and subsequent to the immediately preceding Window Period; or
(iii) in the case of a Taxable Event relating to the payment of an award, (A)
the Participant makes the Tax Election at least six (6) months after the date of
grant and (B) the Tax Election is made (1) in the case of a Taxable Event
occurring within a Window Period, during the Window Period in which the Taxable
Event occurs or (2) in the case of a Taxable Event not occurring within a Window
Period, during the Window Period immediately preceding the Taxable Event.
Notwithstanding the foregoing, the Committee may, by the adoption of rules or
otherwise, (i) modify the provisions of this Section 4.7 as may be necessary to
ensure that the Tax Elections will be exempt transactions under Section 16(b) of
the Exchange Act, and (ii) permit Tax Elections to be made at such other times
and subject to such other conditions as the Committee determines will constitute
exempt transactions under Section 16(b) of the Exchange Act.
4.8 NONASSIGNABILITY
Except as expressly provided in the Plan, no grant shall be transferable
except by will, the laws of descent and distribution or a qualified domestic
relations order ("QDRO") as defined by the Code or Title I of the Employee
Retirement Income Security Act of 1974, as amended, or the rules thereunder.
During the lifetime
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of the Participant, except as expressly provided in the Plan, grants under the
Plan shall be exercisable only by such Participant, by the guardian or legal
representative of such Participant or pursuant to a QDRO.
4.9 NONUNIFORM DETERMINATIONS
Determinations by the Committee under the Plan (including, without
limitation, determinations of the persons to receive grants, the form, amount
and timing of such grants, and the terms and provisions of such grants and the
agreements evidencing the same) need not be uniform and may be made by it
selectively among persons who receive, or are eligible to receive, grants under
the Plan, whether or not such persons are similarly situated.
4.10 NO GUARANTEE OF EMPLOYMENT
Neither grants under the Plan nor any action taken pursuant to the Plan
shall constitute or be evidence of any agreement or understanding, express or
implied, that the Company shall retain the Participant for any period of time or
at any particular rate of compensation.
4.11 EFFECTIVE DATE; DURATION
The Plan shall become effective as of the date the Company is first
admitted to trading on the NASDAQ, subject to approval by shareholders. No grant
may be given under the Plan after May 31, 2000, but grants theretofore granted
may extend beyond such date.
4.12 CHANGE IN CONTROL
Notwithstanding anything herein to the contrary, if a Change in Control of
the Company occurs, then all options shall become fully exercisable and all
restrictions on grants of Restricted Stock shall lapse as of the date such
Change in Control occurred. For the purposes of the Plan, a Change in Control of
the Company shall be deemed to have occurred upon the earliest of the following
events:
(a) when the Company acquires actual knowledge that any person (as
such term is used in Sections 13(d) and 14(d) of the Exchange Act), other
than any person who was the beneficial owner of 25% or more of the Common
Stock as of the effective date of the Plan, becomes the beneficial owner
(as defined in Rule 13d-3 of the Exchange Act) directly or indirectly, of
securities of the Company representing 25% or more of the combined voting
power of the Company's then-outstanding securities;
(b) upon the first purchase of Common Stock pursuant to a tender or
exchange offer (other than a tender or exchange offer made by the Company);
(c) upon the approval by the Company's shareholders of (i) a merger or
consolidation of the Company with or into another corporation (other than a
merger or consolidation in which the Company is the surviving corporation
and which does not result in any capital reorganization or reclassification
or other change in the Company's then-outstanding shares of Common Stock),
(ii) a sale or disposition of all or substantially all of the Company's
assets or (iii) a plan of liquidation or dissolution of the Company; or
(d) if the Board or any designated committee determines in its sole
discretion that any person (as such term is used in Sections 13(d) and
14(d) of the Exchange Act), other than a person who exercised a controlling
influence as of the effective date of the Plan, directly or indirectly
exercises a controlling influence over the management or policies of the
Company.
4.13 GOVERNING LAW. The Plan and all actions taken thereunder shall be
governed by and construed in accordance with the laws of the State of Florida.
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