Exhibit 10.13
PSS WORLD MEDICAL,
INC.
AMENDED AND
RESTATED
OFFICER DEFERRED COMPENSATION
PLAN
(as amended and restated effective
January 1, 2009)
ARTICLE 1
ESTABLISHMENT OF
PLAN
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1.01
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Background
of Plan . PSS
World Medical, Inc. maintains a non-qualified deferred compensation
plan known as the PSS World Medical, Inc. Amended and Restated
Officer Deferred Compensation Plan which became effective as of
August 1, 1998 and was amended effective March 30,
1999, July 1, 2000, April 1,
2001, April 1, 2002, July 1,
2003, July 1, 2004 and December 2005 (the “Prior
Plan”). Effective as of January 1, 2009, the Prior Plan
is amended and restated as set forth in this document to comply
with Section 409A and for certain other purposes. Amounts
earned and vested as of December 31, 2004 under the Prior Plan
shall remain subject to the terms and conditions of the Prior Plan.
Amounts earned or vested under this Plan or the Prior Plan
after December 31, 2004 shall be subject to the terms
and conditions of this Plan.
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1.02
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Purpose
. The
Company desires to recognize the valuable contribution of its
selected officers by providing a program for the voluntary deferral
of compensation, which, together with a Company Matching
Contribution on deferrals of up to a designated percentage of
compensation and Discretionary Company Contributions, will earn a
return based on the performance of one or more benchmark
investments.
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(a)
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The
Plan is intended to be “a plan which is unfunded and is
maintained by an employer primarily for the purpose of providing
deferred compensation for a select group of management or highly
compensated employees” within the meaning of Sections 201(2),
301(a)(3), and 401(a)(1) of the Employee Retirement Income Security
Act of 1974, as amended (ERISA) and shall be interpreted and
administered to the extent possible in a manner consistent with
that intent. Although the plan is unfunded for tax purposes, the
Company may establish a trust under Revenue Procedure 92-64 to
provide benefits under the Plan. (See
Section 1.04).
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(b)
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The
Plan is intended to comply with, and shall be construed so as to
provide for deferrals and benefits that are consistent with the
requirements of, Code Section 409A. The Plan Administrator may
authorize changes to time and form of payment elections but only to
the extent consistent with the transition rules, and during the
transition relief period, provided under Section 409A, as
described more fully in Appendix A of the Plan.
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1.04
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Establishment
of Trust . As
noted in Section 1.03, the Company may establish a trust to
fund benefits provided under the terms of the Plan
(“Trust”). It is intended that a transfer of assets
into the Trust will not generate taxable income (for federal income
tax purposes) to the Participants until such assets are actually
distributed or otherwise made available to the
Participants.
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ARTICLE 2
DEFINITIONS
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2.01
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Definitions
.
Certain terms of the Plan have defined meanings set forth in this
Article and which shall govern unless the context in which they are
used clearly indicates that some other meaning is
intended.
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Accounts . The term “Accounts” means and
includes all of a Participant’s In-Service Accounts and his
or her Termination Account under the Plan. The performance and
value of the Accounts shall be measured by reference to the
performance of one or more third-party investment funds (investing
in equities and fixed income instruments) designated from time to
time by the Plan Administrator as being benchmark investments for
Accounts. The maintenance of individual Accounts is for bookkeeping
purposes only. The Participant is not an actual investor in the
designated funds; rather the Participant is permitted to select any
of the funds as a benchmark for the return on his or her
Compensation deferred under the Plan.
Beneficiary
. Any person or persons designated
by a Participant, in accordance with procedures established by the
Committee or Plan Administrator, to receive benefits hereunder in
the event of the Participant’s death. If any Participant
shall fail to designate a Beneficiary or shall designate a
Beneficiary who shall fail to survive the Participant, the
Beneficiary shall be the Participant’s surviving spouse, or,
if none, the Participant’s surviving descendants (who shall
take per stirpes) and if there are no surviving descendants, the
Beneficiary shall be the Participant’s estate.
Board . The Board of Directors of the
Company.
Change in Control
. As defined in
Section 9.03.
Code Section 409A
. Section 409A of the Internal
Revenue Code of 1986, as amended from time to time, and includes a
reference to the underlying Treasury regulations and guidance under
such Code Section.
Committee . The Compensation Committee of the
Board.
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Company . PSS World Medical, Inc. and its
successors.
Company Matching
Contribution . The
matching contributions made by the Company to Participants’
Accounts in accordance with Section 5.05.
Compensation
. The total salary, commissions and
cash bonus payable by the Company to a Participant in the relevant
Plan Year for services to the Company or any of its affiliates, as
such amount may be changed from time to time.
Deferral Election Form
. A form, substantially in the form
attached hereto as Exhibit A, pursuant to which a Participant
elects (i) to defer Compensation under the Plan and
(ii) the payment date and form of payment for his or her
Accounts.
Deferral Termination
Date . As defined in
Section 5.03(c).
Disability or Disabled
. Disability as defined in Code
Section 409A, as amended from time to time. Subject to
amendments to Code Section 409A after the Effective Date of
the Plan, a Participant shall be considered Disabled if the
Participant (i) is unable to engage in any substantial gainful
activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or can be
expected to last for a continuous period of not less than 12
months, or (ii) is, by reason of any medically determinable
physical or mental impairment which can be expected to result in
death or can be expected to last for a continuous period of not
less than 12 months, receiving income replacement benefits for a
period of not less than three months under an accident and health
plan covering employees of the Participant’s employer. In the
event of a dispute, the determination whether a Participant is
Disabled will be made by the Committee and may be supported by the
advice of a physician competent in the area to which such
Disability relates.
Discretionary Company
Contributions . The
discretionary contributions, if any, made by the Company to
Participants’ Accounts in accordance with
Section 5.06.
Effective Date
. The Prior Plan was originally
effective August 1, 1998. The effective date of this amendment
and restatement is January 1, 2009.
Election
Date .
The date established by the Plan as the date by which a Participant
must submit a valid Deferral Election Form to the Plan
Administrator (i) in order to participate in the Plan for a
Plan Year or (ii) with respect to non-elective bonus
deferrals, to designate a payment date and form of payment. For
each Plan Year, the Election Date is December 31 of the
preceding Plan Year, or March 15, 2005 in the case of Plan
Year 2005 only; provided, however, that if a person first becomes
eligible to participate in the Plan after the beginning of the Plan
Year, the Election Date for such person for that Plan Year shall be
the 30 th day after he or she first
becomes eligible to participate in the Plan.
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In-Service Account
. An In-Service Account established
by the Company under Section 5.03 of the Plan for a
Participant’s deferral of Compensation through a designated
Deferral Termination Date. A Participant may have up to three
In-Service Accounts under the Plan in addition to his or her
Termination Account. A Participant is not required to have any
In-Service Accounts.
Normal Retirement
. Separation from Service after age
60, or after age 55 with ten years of prior service with the
Company or any of its affiliates.
Officer . A person who has been designated by the Board
as a Tier 1 Officer, Tier 2 Officer, Tier 3 Officer, Tier 4 Officer
or Tier 5 Officer of the Company.
Participant
. Any Officer who has elected to
participate in the Plan or who has received a Discretionary Company
Contribution under the Plan.
Plan . The PSS World Medical, Inc. Amended and
Restated Officer Deferred Compensation Plan as set forth in this
document together with any subsequent amendments hereto.
Plan Administrator
. The Committee or its delegee of
administrative duties under the Plan pursuant to
Section 3.02.
Plan Year . The Plan Year shall be the calendar
year.
Roll-Over Balance
. The unpaid vested balance in a
Participant’s In-Service Account that will automatically be
rolled into the Participant’s Termination Account under the
circumstances described in Section 5.08(c).
Separation from
Service . A Separation
from Service occurs when a Participant incurs a “separation
of service” within the meaning of Code
Section 409A.
Specified Employee
. The term “Specified
Employee” has the meaning assigned such term in Code
Section 409A provided, however , that, the
Company’s determination of its Specified Employees and the
application of the six-month delay rule of Code
Section 409A(a)(2)(B)(i) shall be determined in accordance
with rules adopted by the Committee, which shall be applied
consistently with respect to all nonqualified deferred compensation
arrangements of the Company.
Termination Account
. A Termination Account established
by the Company under Section 5.03 of the Plan for a
Participant for deferrals of Compensation pursuant to the Plan
until the Participant’s Separation from Service, including
any Company Matching Contributions and Discretionary Company
Contributions.
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Termination Triggering
Event . As defined in
Section 5.08(a).
Unforeseeable
Emergency . An
“unforeseeable emergency” as defined in Treas. Reg.
Section 1.409A-3(i)(3)(i). Generally, an unforeseeable
emergency is a severe financial hardship to the Participant
resulting from an illness or accident of the Participant, the
Participant’s spouse, the Participant’s beneficiary, or
the Participant’s dependent; loss of the Participant’s
property due to casualty; or other similar extraordinary and
unforeseeable circumstances arising as a result of events beyond
the control of the Participant.
Valuation Dates
. The dates for valuing the balance
in an Account as provided in Section 5.08.
ARTICLE 3
ADMINISTRATION OF THE
PLAN
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3.01
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Administrator
of the Plan . The
Plan shall be administered by the Committee. The Committee may
delegate certain administrative functions to the Plan Administrator
as provided in Section 3.02.
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3.02
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Authority
of Committee . The
Committee shall have full power and authority to:
(i) interpret and construe the Plan and adopt such rules and
regulations as it shall deem necessary and advisable to implement
and administer the Plan, (ii) determine the benefits of the
Plan to which any Participant, Beneficiary or other person may be
entitled, (iii) keep records of all acts and determinations of
the Committee and Plan Administrator, and to keep all such records,
books of accounts, data and other documents as may be necessary for
the proper administration of the Plan, (iv) prepare and
distribute to all Participants and Beneficiaries information
concerning the Plan and their rights under the Plan, (v) do
all things necessary to operate and administer the Plan in
accordance with its provisions, and (iv) designate persons
other than members of the Committee or the Board to carry out its
responsibilities, subject to such limitations, restrictions and
conditions as it may prescribe. Without limiting the foregoing, the
Committee may from time to time delegate to one or more agents who
may or may not be employees of the Company (the “Plan
Administrator”) the authority to act on behalf of the
Committee in all matters of Plan administration, but the Committee
shall retain exclusive authority to determine eligible
Participants, and to amend or terminate the Plan. Until later
designated by the Committee, the Plan Administrator shall be a
committee consisting of David Smith, Jeff Anthony and David
Klarner.
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3.03
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Effect of Committee
Determinations . No
member of the Committee or the Board
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or the Plan Administrator shall
be personally liable for any action or determination made in good
faith with respect to the Plan or to any settlement of any dispute
between a Participant and the Company. Any decision or action taken
by the Committee or the Board with respect to the administration or
interpretation of the Plan shall be conclusive and binding upon all
persons.
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ARTICLE 4
PARTICIPATION
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4.01
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Election
to Participate .
Each Tier 1, Tier 2, Tier 3, Tier 4 and Tier 5 Officer is
automatically eligible to participate in the Plan. He or she may
participate in the Plan for a Plan Year by delivering a properly
completed and signed Deferral Election Form to the Plan
Administrator on or before the Election Date for such Plan Year.
The Participant’s participation in the Plan will be effective
as of the following date, as applicable: (i) in the case of a
Participant on the Effective Date, the effective date of the
Participant’s participation under the Prior Plan,
(ii) in the case of subsequent Plan Years, the first day of
the Plan Year beginning after the Plan Administrator receives the
Participant’s Deferral Election Form, or (iii) in the
case of a person who first becomes eligible to participate in the
Plan after the beginning of a Plan Year, the first day after the
Plan Administrator receives the Deferral Election Form if filed
within 30 days after such Participant first becomes eligible to
participate in the Plan but only with respect to amounts earned
after the date that the Deferral Election Form is filed. A
Participant shall not be entitled to any benefit hereunder unless
such Participant has properly completed a Deferral Election Form
and (i) deferred the receipt of Compensation pursuant to the
Plan, or (ii) has received a Discretionary Company
Contribution under the Plan.
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4.02
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Continuation
of Deferral Election Form .
Prior to the commencement of each Plan Year, a Participant shall
have the right, by executing and delivering to the Plan
Administrator a new Deferral Election Form, to modify the
percentage of his or her Compensation which is deferred to his or
her Accounts under the Plan. Such new Deferral Election Form shall
be effective only for Compensation applicable to the
Participant’s service after the first day of the new Plan
Year. If the Participant fails to deliver a new Deferral Election
Form prior to the commencement of the new Plan Year, the
Participant’s Deferral Election Form in effect during the
previous Plan Year shall become irrevocable as of December 31
of such previous Plan Year and shall continue in effect during the
new Plan Year.
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4.03
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Automatic
Termination of Deferral Election Form . A
Participant’s Deferral Election Form will automatically
terminate at the earlier of (i) the Participant’s
Separation from Service, or (ii) to the extent permitted under
Section 409A, the termination of the Plan (in accordance with
Section 7.01 herein).
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4.04
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No
Implied Rights .
Nothing contained in the Plan shall be deemed to give any Officer
the right to continue in such status or to remain as an employee of
the Company or its affiliates.
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ARTICLE 5
PLAN BENEFITS
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5.01
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Deferred
Compensation . A
Participant may elect to defer up to 100% of his or her
Compensation in accordance with the terms of the Plan and the
Deferral Election Form; provided, however, that the Company
Matching Contribution shall apply only with respect to deferrals of
up to 15% of Compensation for Tier 1 and Tier 2 Officers and up to
10% of Compensation for Tier 3 through Tier 5 Officers. For
bookkeeping purposes, the amount of the Compensation which the
Participant elects to defer pursuant to the Plan shall be
transferred to and held in the Participant’s individual
Accounts, as indicated in the Deferral Election Form, and subject
to the terms of the Plan.
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5.02
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Time
of Election of Deferral .
Subject to Section 4.02, a Participant who wishes to defer
Compensation for a Plan Year must irrevocably elect to do so on or
prior to the Election Date for such Plan Year, by delivering a
valid Deferral Election Form to the Plan Administrator.
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5.03
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Deferral
Elections .
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(a)
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Designation
of Accounts . The
Company will automatically designate a Termination Account for each
Participant for the purpose of (i) crediting the
Participant’s voluntary deferrals of Compensation, if any,
into the Termination Account, (ii) crediting Roll-Over
Balances, if applicable, from the Participant’s In-Service
Accounts pursuant to Section 5.08(c), (iii) crediting any
Discretionary Company Contributions and (iv) crediting Company
Matching Contributions. In addition to the Termination Account, a
Participant may designate up to three In-Service
Accounts.
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(b)
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Deferral
Amounts . The
Deferral Election Form shall indicate: (i) the aggregate
dollar amount or percentage (in increments of 1%) of Compensation
to be deferred, (ii) the components of Compensation from which
such deferrals are to be made, such as from salary, bonus or
commission, and (iii) of such aggregate amount to be deferred,
the dollar amount or percentage (in increments of 1%) of
Compensation to be credited to each Account, if more than
one.
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(c)
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Deferral
Periods . A
Participant shall designate for each In-Service Account a date (the
“Deferral Termination Date”), after which payments from
such Account will be payable pursuant to Section 5.08. The
Deferral Termination Date must be at least three years after the
first date that deferrals are made to the In-Service Account.
Distribution of amounts held in a Participant’s Termination
Account shall commence as provided in Section 5.08(a)
following the earliest of (i) the Participant’s
Separation from Service, (ii) the Participant’s death,
or (iii) the Participant’s Disability.
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(d)
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Limited
Changes Permitted .
Deferral elections shall be irrevocable, except with respect
to:
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(i) In-Service Account(s);
Extension of Deferral Period and/or Change in Form of Payment .
For each In-Service Account, the Participant may file a new
Deferral Election Form to extend the Deferral Termination Date
and/or change the form of payment for such Account; provided,
however, that (A) the new Deferral Election Form must specify
a Deferral Termination Date that is at least five (5) years
later than the prior Deferral Termination Date for such Account;
(B) such changed election, to be effective, must be filed with
the Plan Administrator no less than twelve (12) months prior
to the originally selected Deferral Termination Date for such
Account: and (C) such changed election may not become
effective for twelve (12) months after it has been filed with
the Plan Administrator.
(ii) Termination Account; Change
in Form of Payment . A Participant may file a new Deferral
Election Form to change the form of payment of his or her
Termination Account; provided, however, that following such
election, payment of the Termination Account will commence five
(5) years from the Participant’s Separation from Service
and such changed election, to be effective, must be filed with the
Plan Administrator no less than twelve (12) months prior to
the Participant’s Separation from Service.
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5.04
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Return
on Account Balances .
Amounts in a Partic
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