<PAGE> 1
As filed with the Securities and Exchange Commission on June 30, 1997.
File No. 333-__________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------------
PHYSICIAN SALES & SERVICE, INC.
(Exact Name of Issuer as Specified in its Charter)
FLORIDA 59-2280364
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
4345 SOUTHPOINT BOULEVARD, JACKSONVILLE, FLORIDA 32216
(Address, including zip code, and telephone number of Principal Executive
Offices)
PHYSICIAN SALES & SERVICE, INC.
ELITE DEFERRED COMPENSATION PLAN
(Full Title of the Plan)
PATRICK C. KELLY
CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER
PHYSICIAN SALES & SERVICE, INC.
4345 SOUTHPOINT BOULEVARD
JACKSONVILLE, FLORIDA 32216
(904) 332-3000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
---------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===========================================================================================================================
Proposed Proposed
Title of Securities Amount to Maximum Maximum Amount of
to be Registered (1) be Registered (2) Offering Price Aggregate Registration Fee
Per Unit Offering Price (2)
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Deferred Compensation $1,000,000 100% $1,000,000 $303.03
Obligations
- ---------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) The Deferred Compensation Obligations are unsecured obligations of
Physician Sales & Service, Inc. to pay deferred compensation in the
future in accordance with the terms of the Physician Sales &
Service, Inc. ELITe Deferred Compensation Plan.
(2) Estimated solely for the purpose of determining the registration
fee.
<PAGE> 2
PART II. INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents are incorporated by reference into this
Registration Statement and are deemed to be a part hereof from the date of the
filing of such documents:
(1) The Registrant's Annual Report on Form 10-K for the fiscal
year ended March 28, 1997.
(2) All other reports filed by the Registrant pursuant to Section
13(a) or 15(d) of the Exchange Act since March 28, 1997.
(3) The description of Common Stock contained in the Registrant's
Registration Statement filed under Section 12 of the Exchange Act, including
all amendments or reports filed for the purpose of updating such description.
(4) All other documents subsequently filed by the Registrant
pursuant to Section 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the
filing of a post-effective amendment to this Registration Statement that
indicates that all securities offered have been sold or that deregisters all
securities that remain unsold.
ITEM 4. DESCRIPTION OF SECURITIES.
DEFERRED COMPENSATION OBLIGATIONS. Under the ELITe Deferred
Compensation Plan, the Company will provide participants the opportunity to
enter into agreements for the deferral of compensation. The obligations of the
Company under such agreements (the "Obligations") will be unsecured general
obligations of the Company to pay the deferred compensation in the future in
accordance with the terms of the Plan, and will rank pari passu with other
unsecured and unsubordinated indebtedness of the Company from time to time
outstanding.
The amount of compensation to be deferred by each participant will be
determined in accordance with the Plan based on elections by the participant.
Each Obligation will be payable at a the participant's death, disability or
other termination of employment. The amounts deferred will be credited with
interest based on a rate to be determined annually by the Board of Directors of
the Company, but which will not be less than the 90-day U.S. Treasury Bill rate
in effect on the first day of the Plan year. For the first Plan year, the
interest rate will be 5.13%.
The Company reserves the right to amend or terminate the Plan at any
time, except that no such amendment or termination shall adversely affect the
right of a participant to the balance of his or her deferred account as of the
date of such amendment or termination. The Obligations are not convertible
into another security of the Company. The Obligations will not have the
benefit of a negative pledge or any other affirmative or negative covenant on
the part of the Company.
II-1
<PAGE> 3
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The legality of the Common Stock registered hereby has been passed
upon by Fred Elefant, P.A., Jacksonville, Florida.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Amended and Restated Articles of Incorporation, as amended, and
the Amended and Restated Bylaws of the Registrant set forth the extent to which
the Registrant's directors and officers may be indemnified against liabilities
they may incur while serving in such capacities. Such indemnification will be
provided to the fullest extent allowed by the Florida Business Corporation Act,
as amended from time to time, and judicial or administrative decisions. Under
these indemnification provisions, the Registrant is required to indemnify any
of its directors and officers against any reasonable expenses (including
attorneys' fees) incurred by him in the defense of any action, suit or
proceeding, whether civil, criminal, administrative or investigative, to which
he was made a party, or in defense of any claim, issue or matter therein, by
reason of the fact that he is or was a director or officer of the Registrant or
who, while a director or officer of the Registrant, is or was serving at the
Registrant's request as a director, officer, partner, trustee, employee or
agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise to the extent that such director or officer
has been successful, on the merits or otherwise, in such defense. The
Registrant also may indemnify any of its directors or officers against any
liability incurred in connection with any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Registrant, in
which event, additional determinations must be made before indemnification is
provided) by reason of the fact that he is or was a director or officer of the
Registrant who, while a director or officer of the Registrant, is or was
serving at the Registrant's request as a director, officer, partner, trustee,
employee or agent of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise, if such director or officer acted in
good faith and in a manner he believed to be in, or not opposed to, the best
interests of the Registrant, and with respect to any criminal proceeding, had
no reasonable cause to believe his conduct was unlawful. The Registrant may
also provide advancement of expenses incurred by a director or officer in
defending any such action, suit or proceeding upon receipt of a written
affirmation of such officer or director that he has met certain standards of
conduct and an understanding by or on behalf of such officer or director to
repay such advances unless it is ultimately determined that he is entitled to
indemnification by the Registrant. Notwithstanding the foregoing, the Amended
and Restated Bylaws of the Registrant provide that the Registrant shall not be
required to indemnify any of its directors or officers in connection with a
proceeding initiated by such person unless such authorization for such
proceeding was not denied by the Board of Directors of the Registrant prior to
sixty (60) days after receipt of notice thereof from such person stating his or
her intent to initiate such proceeding and only upon such terms and conditions
as the Board of Directors may deem appropriate.
The Florida Business Corporation Act contains a provision which limits
the personal liability for monetary damages to the corporation or any other
person for any statement, vote, decision, or failure to act, regarding
corporate management or policy, by a director, unless the
II-2
<PAGE> 4
director breached or failed to perform his duties as a director and such breach
constitutes (i) a violation of criminal law, unless the director has reasonable
cause to believe his conduct was unlawful; (ii) a transaction from which the
director received an improper personal benefit; (iii) an unlawful distribution
under Florida law, (iv) in a proceeding by or in the right of a corporation to
procure a judgment in its favor or by or in the right of a shareholder,
conscious disregard for the best interest of the corporation, or willful
misconduct; or (v) in a proceeding by or in the right of someone other that the
corporation or a shareholder, recklessness or an act or omission which was
committed in bad faith or with malicious purpose or in a manner exhibiting
wanton or willful disregard of human rights, safety or property. The
Registrant maintains an insurance policy insuring the Registrant and directors
and officers of the Registrant against certain liabilities, including
liabilities under the Securities Act of 1933.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not Applicable.
ITEM 8. EXHIBITS
The exhibits included as part of this Registration Statement are as
follows:
<TABLE>
<CAPTION>
Exhibit Number Description
-------------- -----------
<S> <C>
4.1 Amended and Restated Articles of Incorporation, as amended, of the
Registrant (incorporated by reference from Registrant's Registration
Statement on Form S-3, effective November 13, 1995, Registration No.
33-97524)
4.2 Amended and Restated Bylaws of the Registrant (incorporated by
reference from Registrant's Annual Report on Form S-1, Registration
No. 33-76580)
5 Opinion of Counsel
23.1 Consent of Counsel (included in Exhibit 5)
23.2 Consent of Arthur Andersen LLP
24 Power of Attorney (contained in Part II at page II-6)
</TABLE>
II-3
<PAGE> 5
ITEM 9. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of this Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in
the information set forth in this Registration Statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in
this Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do
not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities being
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to Section 15(d) of
the Securities Exchange Act of 1934) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the Registrant's Articles of
Incorporation or Bylaws, or otherwise, the Registrant has been advised that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for
II-4
<PAGE> 6
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
(signatures on following page)
II-5
<PAGE> 7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Jacksonville, State of Florida, on June 27,
1997.
PHYSICIAN SALES & SERVICE, INC.
(Registrant)
By: /s/ Patrick C. Kelly
-------------------------------
Patrick C. Kelly
Chief Executive Officer
KNOW BY ALL MEN BY THESE PRESENT that each person whose signature
appears below constitutes and appoints Patrick C. Kelly or David A. Smith and
either of them (with full power in each to act alone), as true and lawful
attorneys-in-fact, with full power of substitution, for him and in his name,
place and stead, in any and all capacities, to sign any amendments to this
Registration Statement and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that said attorney-in-fact, or
their substitute or substitutes, may lawfully do or cause to be done by virtue
thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated as of this 27th day of June, 1997.
<TABLE>
<CAPTION>
Signature Capacity
--------- --------
<S> <C>
/s/ Patrick C. Kelly Chairman of the Board
- --------------------------------------------- and Chief Executive Officer
Patrick C. Kelly (Principal Executive Officer)
/s/ David A. Smith Chief Financial Officer
- --------------------------------------------- and Director (Principal Financial
David A. Smith and Accounting Officer)
/s/ John F. Sasen President and Director
- ---------------------------------------------
John F. Sasen
</TABLE>
II-6
<PAGE> 8
<TABLE>
<S> <C>
/s/ Delmer W. Dallas Director
- ---------------------------------------------
Delmer W. Dallas
/s/ T. O'Neal Douglas Director
- ---------------------------------------------
T. O'Neal Douglas
/s/ Fred Elefant Director
- ---------------------------------------------
Fred Elefant
/s/ Delores Kesler Director
- ---------------------------------------------
Delores Kesler
/s/ James L.L. Tullis Director
- ---------------------------------------------
James L.L. Tullis
/s/ William C. Mason Director
- ---------------------------------------------
William C. Mason
</TABLE>
II-7
<PAGE> 9
EXHIBIT INDEX
TO
REGISTRATION STATEMENT ON FORM S-8
<TABLE>
<CAPTION>
Exhibit Number Description
-------------- -----------
<S> <C>
4.1 Amended and Restated Articles of Incorporation, as amended, of the
Registrant (incorporated by reference from Registrant's Registration
Statement on Form S-3, effective November 13, 1995, Registration No.
33-97524)
4.2 Amended and Restated Bylaws of the Registrant (incorporated by
reference from Registrant's Annual Report on Form S-1, Registration
No. 33-76580)
5 Opinion of Counsel
23.1 Consent of Counsel (included in Exhibit 5)
23.2 Consent of Arthur Andersen LLP
24 Power of Attorney (contained in Part II at page II-6)
</TABLE>
<PAGE> 1
Exhibit 5 Opinion of Counsel of Physician Sales & Service, Inc.
<PAGE> 2
FRED ELEFANT, P.A.
ATTORNEY AT LAW
DuPONT CENTER, SUITE 105
1650 PRUDENTIAL DRIVE
JACKSONVILLE, FLORIDA 32207
June 30, 1997
Physician Sales & Service, Inc.
4345 Southpoint Boulevard
Jacksonville, Florida 32216
Re: Physician Sales & Service, Inc. ELITe Deferred Compensation
Plan Form S-8 Registration Statement
Gentlemen:
I serve as general counsel for Physician Sales & Service, Inc., a
Florida corporation (the "Company"), which has prepared the referenced Form S-8
Registration Statement relating to the Company's ELITe Deferred Compensation
Plan (the "Plan") and the proposed offer under the Plan of an indeterminate
amount of deferred compensation obligations (the "Obligations"). This Opinion
Letter is rendered pursuant to Item 8 of Form S-8 and Item 601(b)(5) of
Regulation S-K.
I have examined originals or copies of corporate records, certificates
of public officials and of officers of the Company and other instruments
relating to the authorization and issuance of the Obligations as I have deemed
relevant and necessary for the opinion hereinafter expressed.
On the basis of the foregoing, it is my opinion that the Obligations
to be issued pursuant to the ELITe Deferred Compensation Plan and the
Registration Statement have been duly authorized by all requisite action on the
part of the Company and the Obligations, when issued in accordance with the
terms and conditions of such Plan, will be legally and validly issued and
represent the binding obligation of the Company to make payment to the holders
thereof in accordance with the terms and conditions of such Plan.
This Opinion Letter is provided to you for your benefit and for the
benefit of the Commission, in each case, solely with regard to the Registration
Statement, may be relied upon by you and the Commission only in connection with
the Registration Statement, and may not be relied upon by any other person or
for any other purpose without our prior written consent.
I hereby consent to the filing of this opinion as an exhibit to said
Registration Statement on Form S-8 and further consent to the use of my name
wherever appearing in the Form S-8.
<PAGE> 3
Very truly yours,
FRED ELEFANT, P.A.
By: /s/ FRED ELEFANT
-----------------
<PAGE> 1
Exhibit 23.2 Consent of Arthur Andersen LLP
<PAGE> 2
ARTHUR ANDERSEN LLP
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
As independent certified public accountants, we hereby consent to the
incorporation by reference in this Form S-8 registration statement pertaining
to the Physician Sales & Service, Inc. ELITe Deferred Compensation Plan, of our
report dated May 27, 1997, included in Physician Sales & Service, Inc.'s Form
10-K for the year ended March 28, 1997, and to all reference to our Firm
included in this registration statement.
Jacksonville, Florida
June 26, 1997
