EXHIBIT 10.21
C.D. SMITH DRUG COMPANY
EMPLOYEE STOCK OWNERSHIP PLAN
AMENDMENT DATED JANUARY 1, 1998
THIS AMENDMENT is adopted the 1st day of January, 1998, by and between C. D.
Smith Drug Company (hereinafter the "Company") and George K. Baum Trust Company
(hereinafter the "Trustee");
WHEREAS, the Company and the Trustee heretofore entered into the C. D. Smith
Drug Company Employee Stock Ownership Plan (the "Plan"); and
WHEREAS, pursuant to the terms of the Plan, the Company reserved the right to
amend the Plan from time to time in its discretion; and
WHEREAS, the Company now desires to amend the Plan to permit additional
employers to participate in the Plan and to give employees credit for past
service with James Brudnick Company, Inc., General Drug Company, and SBS
Pharmaceuticals, Inc. in calculating years of service for purposes of
eligibility to participate in the Plan; and
WHEREAS, the Company now desires to amend the Plan to provide that certain
restrictions on Employer Securities distributed under the Plan will not apply if
such shares are publicly traded.
NOW, THEREFORE, in consideration of these premises, the Plan is hereby amended
as follows, effective upon adoption of this Amendment unless otherwise noted;
1. Section 1.02 is deleted in its entirety and a new Section 1.02 is added to
read as follows:
"`Employer' means C.D. Smith Drug Company, or any other employer that with the
written consent of C.D. Smith Drug Company adopts this Plan."
2. Section 2.01 is amended by adding the following paragraph at the end
thereto:
"An Employee shall be an Excluded Employee if he is a member of an employees'
association subject to either (1) the Agreement between James Brudnick Company
and the Driver/Chauffeur Employees Association, or (2) the Agreement between
James Brudnick Company and the Warehouse Production, Office, Clerical and
Non-Management Employees Association."
3. Section 2.02 is amended by adding the following sentence thereto:
"Notwithstanding the foregoing provisions of this Section 2.02, effective
January 1, 1998: (1) in the case of an Employee who was employed by James
Brudnick Company, Inc., or SBS Pharmaceuticals, Inc. prior to October 3, 1997,
and who continued employment with the Employer on October 3, 1997, for purposes
of participation, the Employee shall be credited with Years of Service on the
same basis as if employed by the Company for each
period of employment with James Brudnick Company, Inc. or SBS Pharmaceuticals,
Inc.; and (2) in the case of an Employee who was employed by General Drug
Company prior to October 3, 1997, and who continued employment with the Employer
on October 3, 1997, for purposes of participation, the Employee shall be
credited with Years of Service on the same basis as if employed by the Company
for each period of employment with General Drug Company."
4. Section 11.01 is amended by adding the following sentence thereto:
"Notwithstanding the preceding provisions of this Section, Employer Securities
shall not be subject to a put option under this Section 11.01 if such shares are
publicly traded at the time that such put option may be exercised."
5. A new Section 11.02(A) is added to read in its entirety as follows:
"(A) Employer Securities Acquired with the Proceeds of an Exempt Loan.
Employer Securities acquired with the proceeds of an Exempt Loan shall not be
subject to the rights of refusal under this Section 11.02 if such shares are
publicly traded at the time such rights may be exercised."
6. A new Section 11.02(B) is added to read in its entirety as follows:
"(B) Stock Certificate Legend. All certificates for shares distributed
pursuant to this Plan shall contain the following legend:
`The shares represented by this certificate are transferable only
upon compliance with the terms of the C. D. SMITH DRUG COMPANY EMPLOYEE
STOCK OWNERSHIP PLAN, effective as of December 31, 1991, which grants to
C. D. Smith Drug Company and the Trustee of the C. D. SMITH DRUG COMPANY
EMPLOYEE STOCK OWNERSHIP PLAN a right of first refusal, a copy of said
Plan being on file in the office of the Company.'
Notwithstanding anything herein to the contrary, the foregoing legend shall not
be required to be disclosed on the shares of Employer Securities distributed
from the Trust if such shares are not subject to a right of first refusal under
Section 11.02."
7. Section 11.06 is amended by adding the following paragraph thereto:
"(e) `Publicly traded' means Employer Securities are quoted on the
National Association of Securities Dealers Automated Quotation (NASDAQ) SmallCap
Market system or National Market System, or are listed on the New York or
American Stock Exchanges or other nationally recognized exchange at the time
of distribution, without regard to other facts and circumstances, including but
not limited to, the market price or volume of trading activity."
The Company and the Trustee hereby agree to the provisions of this amendment
and, in witness of their agreement, the Company and the Trustee have signified
their acceptance, as of the day and year first above appearing.
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C.D. SMITH DRUG COMPANY
"COMPANY"
By: /s/ Delora J. Jamison
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Title: VP/Admin
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GEORGE K. BAUM TRUST COMPANY
"TRUSTEE"
By: /s/ Stephen W. Crider
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Title: President
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