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HEALTHPORT TECHNOLOGIES, LLC DEFERRED COMPENSATION PLAN

Employee Benefits Plan Agreement

HEALTHPORT TECHNOLOGIES, LLC DEFERRED COMPENSATION PLAN | Document Parties: HEALTHPORT, INC. | HEALTHPORT TECHNOLOGIES, LLC | Smart Document Solutions, LLC You are currently viewing:
This Employee Benefits Plan Agreement involves

HEALTHPORT, INC. | HEALTHPORT TECHNOLOGIES, LLC | Smart Document Solutions, LLC

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Title: HEALTHPORT TECHNOLOGIES, LLC DEFERRED COMPENSATION PLAN
Governing Law: Georgia     Date: 8/17/2009

HEALTHPORT TECHNOLOGIES, LLC DEFERRED COMPENSATION PLAN, Parties: healthport  inc. , healthport technologies  llc , smart document solutions  llc
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Exhibit 10.17

HEALTHPORT TECHNOLOGIES, LLC

DEFERRED COMPENSATION PLAN

(formerly, Smart Document Solutions, LLC Deferred Compensation Plan)

(As amended and restated effective as of January 1, 2008)


HEALTHPORT TECHNOLOGIES, LLC

DEFERRED COMPENSATION PLAN

TABLE OF CONTENTS

 

ARTICLE I

  

INTRODUCTION AND ESTABLISHMENT

  

1

ARTICLE II

  

DEFINITIONS

  

2

2.1

  

“Account”

  

2

2.2

  

“Beneficiary”

  

2

2.3

  

“Board”

  

2

2.4

  

“Change of Control”

  

2

2.5

  

“Code”

  

3

2.6

  

“Company”

  

3

2.7

  

“Compensation”

  

3

2.8

  

“Deferral Subaccount”

  

3

2.9

  

“Disability”

  

3

2.10

  

“Effective Date”

  

3

2.11

  

“Election Form”

  

3

2.12

  

“Employee”

  

3

2.13

  

“Employer”

  

3

2.14

  

“Employer Subaccount”

  

4

2.15

  

“ERISA”

  

4

2.16

  

“Participant”

  

4

2.17

  

“Plan”

  

4

2.18

  

“Plan Administrator”

  

4

2.19

  

“Plan Year”

  

4

2.20

  

“Separation from Service”

  

4

2.21

  

“Specified Employee”

  

4

2.22

  

“Unforeseeable Emergency”

  

5

2.23

  

“Valuation Date”

  

5

ARTICLE III

  

PARTICIPATION

  

6

3.1

  

Eligibility to Participate

  

6

3.2

  

Participation

  

6

3.3

  

Time and Manner of Election

  

7

3.4

  

Change of Election

  

7

ARTICLE IV

  

INTEREST OF PARTICIPANTS

  

9

4.1

  

Accounting for Participants’ Interests

  

9

4.2

  

Vesting of a Participant’s Account

  

9

4.3

  

Distribution of a Participant’s Account

  

10

4.4

  

Withdrawals During Employment

  

11

 

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4.5

  

Cessation of Deferrals

  

11

4.6

  

Delay for Specified Employees

  

11

ARTICLE V

  

PLAN ADMINISTRATOR

  

12

5.1

  

Members

  

12

5.2

  

Action

  

12

5.3

  

Right and Duties

  

12

5.4

  

Compensation, Indemnity and Liability

  

13

5.5

  

Taxes

  

13

ARTICLE VI

  

CLAIMS PROCEDURE

  

14

6.1

  

Claims for Benefits

  

14

6.2

  

Claim Denial

  

14

6.3

  

Claim Appeal

  

14

6.4

  

Appeal Decision

  

15

6.5

  

Requirement for Exhaustion

  

15

6.6

  

Delay for Information

  

15

6.7

  

Disability Claims

  

15

ARTICLE VII

  

AMENDMENT AND TERMINATION

  

16

7.1

  

Amendments

  

16

7.2

  

Termination of Plan

  

16

ARTICLE VIII

  

MISCELLANEOUS

  

18

8.1

  

Limitation on Participant’s Rights

  

18

8.2

  

Benefits Unfunded

  

18

8.3

  

Other Plans

  

18

8.4

  

Receipt or Release

  

18

8.5

  

Governing Law

  

18

8.6

  

Adoption of Plan by Employers

  

19

8.7

  

Gender, Tense, and Headings

  

19

8.8

  

Successors and Assigns; Nonalienation of Benefits

  

19

 

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ARTICLE I

INTRODUCTION AND ESTABLISHMENT

Healthport Technologies, LLC (formerly, Smart Document Solutions, LLC) (the “Company”) established as of January 1, 2003 the Smart Document Solutions, LLC Deferred Compensation Plan (the “Plan”) for the benefit of certain management and highly compensated employees of the Company and affiliated adopting employers, as such employees are selected by the Board of Directors of the Company (or its designee).

The Plan is intended to constitute an unfunded plan of deferred compensation for a select group of management or highly compensated employees as described in ERISA Section 201(2).

Effective as of January 1, 2005, the Plan was amended and restated to comply with the American Jobs Creation Act of 2003 and Internal Revenue Code Section 409A and the regulations and guidance thereunder (“New Law”). The Plan restatement was adopted, effective as of January 1, 2005, on August      , 2006 prior to the issuance of all guidance and interpretation of the New Law and operated in good faith compliance in 2005 and 2006. The Plan restatement was amended and restated as of January 1, 2005 in good faith compliance with the guidance issued in 2005. It was expected that there would be further guidance under the New Law and that the Plan may be amended to conform to such guidance as issued, and operated in good faith compliance prior to formal adoption of amendment(s), within the applicable transition period(s) provided for the New Law. This restatement and amendment of the Plan effective as of January 1, 2008, is intended to comply with the New Law, the final regulations issued April 10, 2007 and effective as of January 1, 2008. IRS Notice 2007-86 and other guidance in effect at the close of the transition period. This restatement also reflects the changed name of the plan sponsor and the effect of a Change of Control that occurred on June 25, 2007.

Prior to the adoption of this restatement of the Plan, the Plan was administered in accordance with the prior plan document, as interpreted in good faith compliance with the New Law.

 

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ARTICLE II

DEFINITIONS

When used in the Plan, the following terms shall have the meanings set forth below unless a different meaning is plainly required by the context:

2.1 “ Account ” means the records maintained by the Plan Administrator to determine each Participant’s interest under the Plan. Such Account may be reflected as an entry in the Employer’s records, or as a separate account under any trust established to provide benefits under the Plan, or as a combination of both. Each Participant’s Account shall consist of at least two subaccounts: a Deferral Subaccount and an Employer Subaccount. A Participant’s Deferral Subaccount shall include a further subaccount for the deferrals for each Plan Year starting as of January 1, 2007 and may be referred to by Plan Year (e.g. 2007 Deferral Subaccount). Deferrals prior to January 1, 2007 are maintained under one sub-account referred to as the “pre-2007 Deferral Subaccount.” The Plan Administrator may establish such additional subaccounts as it deems necessary for the proper administration of the Plan.

2.2 “ Beneficiary ” means the person or persons last designated in writing by the Participant in a form filed with the Plan Administrator (or his designee) to receive the amount in his Account in the event of such Participant’s death; or if no designation shall be in effect at the time of a Participant’s death or if all designated Beneficiaries shall have predeceased the Participant, then the Beneficiary shall be the following, in the order listed:

(a) such Participant’s surviving spouse, if any;

(b) the Participant’s estate.

2.3 “ Board ” means the Board of Directors of the Company or its duly appointed designee.

2.4 “ Change of Control ” means (a) the Change of Control that occurred on June 25, 2007 (the “First COC Date”) in accordance with the terms of the Plan as amended and restated as of January 1, 2005, and (b) after the First COC Date, the purchase or other acquisition after the First COC Date by any person, entity or group of persons, within the meaning of section 13(d) or 14(d) of the Securities Exchange Act of 1934 (“Act”), or any comparable successor provisions, of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Act) of fifty percent (50%) or more of either the outstanding shares of common stock (or the equivalent in limited liability company interests) or the combined voting power of the Company’s then outstanding voting securities entitled to vote generally, or the approval by the shareholders of the Company of a reorganization, merger, or consolidation, in each case, with respect to which persons who were stockholders of the Company immediately prior to such reorganization, merger, or consolidation do not, immediately thereafter, own more than fifty percent (50%) of the combined voting power entitled to vote generally in the election of the directors of the reorganized, merged or consolidated Company’s then outstanding securities, or the sale of all or substantially all of the Company’s assets. The acquisition of common stock (or the equivalent in limited liability company interests) of the Company by an employee benefit plan sponsored or

 

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maintained by the Company or its affiliate (or a trust maintained for such plan) shall not be considered a Change in Control. This provision has been interpreted and administered in good faith compliance with Code Section 409A and is intended to comply with Treas. Reg. §1.409A-3(i)(5).

2.5 “ Code ” means the Internal Revenue Code of 1986, as amended.

2.6 “ Company ” means Healthport Technologies, LLC (formerly Smart Document Solutions, LLC), and its successor or successors.

2.7 “ Compensation ” means “Compensation” as that term is defined in the Company’s 401(k) Plan, as the same may be amended from time to time, for purposes of employee deferral contributions but without regard to the limitation on compensation under Section 401 (a)( 17) of the Internal Revenue Code of 1986, as amended, applicable to such 401 (k) Plan. Notwithstanding the foregoing, Compensation shall also include amounts deferred by the Employee under this Plan and other deferred compensation plans of the Employer (except to the extent specified by the Employer prior to the beginning of a Plan Year or the commencement of such a plan).

2.8 “ Deferral Subaccount ” means the subaccount (and subaccounts thereof) of a Participant’s Account maintained to reflect his interest in the Plan attributable to his deferrals of Compensation and earnings or losses credited to such account.

2.9 “ Disability ” means that an Employee is (i) 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) 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, is receiving income replacement benefits for a period of not less than 3 months under an accident and health plan covering employees of the Employer or its affiliates, or (iii) has qualified for Social Security disability and has provided proof of such qualification to the Plan Administrator. Disabled status shall be determined by the Plan Administrator using objective criteria.

2.10 “ Effective Date ” means January 1, 2008 for this restatement and January 1, 2003 for the commencement of the Plan.

2.11 “ Election Form ” means the form prescribed by the Plan Administrator on which a Participant may specify the amount of his Compensation that is to be deferred pursuant to the provisions of Article III and the manner of distribution under Article IV.

2.12 “ Employee ” means any management or highly compensated employee of an Employer.

2.13 “ Employer ” means the Company and each affiliated employer which has been designated by the Company as an Employer for purposes of this Plan. The Company has designated Companion Technologies Corporation effective as of May 1, 2008 and Chart One effective as of January 1, 2009 as “Employers”.

 

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2.14 “ Employer Subaccount ” means the subaccount (and subaccounts thereof) of a Participant’s Account maintained to reflect his interest in the Plan attributable to the Employer’s contribution credits, and any earnings or losses credited to such account.

2.15 “ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended.

2.16 “ Participant ” means any eligible Employee who has satisfied the requirements for participation in the Plan and who has an Account.

2.17 “ Plan ” means the Healthport Technologies, LLC Deferred Compensation Plan, as it may be amended from time to time.

2.18 “ Plan Administrator ’ means the committee or individual appointed pursuant to the provisions of the Plan to administer the Plan. In the absence of such appointment, the Company shall be the Plan Administrator.

2.19 “ Plan Year ” means the 12-month period January 1 to December 31.

2.20 “ Separation from Service ” means the ceasing of employment with the Employer and any affiliate, voluntarily or involuntarily, for any reason within the meaning of IRS Reg. § 1.409A-l(h). Notwithstanding the foregoing:

(a) An Employee shall not be treated as having incurred a Separation from Service while on military leave, sick leave, or other bona fide leave of absence if the period of such leave does not exceed six months, or if longer, so long as Employee’s right to reemployment with the Employer and any affiliate is provided either by statute or by contract. If the period of leave exceeds six months and the right to reemployment is not provided either by statute or by contract, the employment relationship is deemed to terminate on the first date immediately following the end of such six-month period; provided that notwithstanding the foregoing, where a leave of absence is due to any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than six months, where such impairment causes the Participant to be unable to perform the duties of his or her position of employment or any substantially similar position of employment, a 29-month period of absence may be substituted for such six-month period.

(b) Whether an Employee shall have incurred a Separation from Service shall be determined based on all relevant facts and circumstances. In situations in which Employee continues to be carried on the payroll of the Employer or any affiliate but performs only nominal services, or ceases to be an employee but continues to provide substantial services in another capacity, such as pursuant to a consulting agreement, the determination of whether a termination of employment has occurred shall be determined in accordance with IRS Reg. § 1.409A-l(h)(l)(ii), or any successor thereto.

2.21 “ Specified Employee ” means a Participant who is a “key employee” as defined for purposes of Code Section 416(i)(l)(A)(i), (ii), or (iii) (applied in accordance with the regulations thereunder and disregarding Section 416(i)(5)), of the Company or its affiliates. If a

 

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person is a Specified Employee as of December 31 of the preceding Plan Year, he or she is treated as a Specified Employee for the 12-month period beginning on April 1 of the Plan Year. For purposes of this Section 2.21, the term “compensation” will be defined in accordance with Code Reg. §1.409A-l(i)(2), applied on a consistent basis for each period. Whether an individual is a Specified Employee will be determined in accordance with the requirements of Code Section 409A and the final regulations issued thereunder and is only applicable for period when the Company or any affiliate has stock that is publicly traded on an established securities market or otherwise in accordance with Code Reg. § l.409A-l(i).

2.22 “ Unforeseeable Emergency ” means an unforeseeable emergency, consistent with Code Section 409A and regulations thereunder, that would result in severe financial hardship to Participant resulting from (a) illness or accident of Participant, Participant’s spouse, or a dependent (as defined in Code Section 152 without regard to Sections 152(b)(i), b(2) and (d)(i)(B)) of Participant, (b) a loss of Participant’s property due to casualty not otherwise covered by insurance, (c) imminent foreclosure of or eviction from the Participant’s or beneficiary’s primary residence, (d) payment for medical expenses, including non-refundable deductibles and costs of prescription drug medication, (e) payment of funeral expenses of a spouse or dependent (as defined in Code Section 152(a), or (f) such other similar, extraordinary and unforeseeable circumstances arising as a result of events beyond the control of Participant, all as determined by the Plan Administrator based on the relevant facts and circumstances of the case but only to the extent the emergency may not be relieved through reimbursement or compensation from insurance or otherwise, by liquidation of Participant’s assets to the extent the liquidation of the assets would not cause severe financial hardship, or by the cessation of deferrals under this Plan.

2.23 “ Valuation Date ” means the Annual Valuation Date, December 31, and any other date(s) selected by the Plan Administrator in its sole discretion as of which the Accounts of Participants are valued.

 

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ARTICLE III

PARTICIPATION

3.1 Eligibility to Participate .

(a) Initial Eligibility . The Board shall specify the Employees of the Employer who are eligible to participate in the Plan and the effective date and period of each such Employee’s eligibility to participate and upon such effective date the Employee shall become a Participant. Such eligibility designation may be made by establishing a minimum compensation level for participation or by the use of such other criteria as the Board deems appropriate from time to time; provided that the Board may designate, in its sole discretion, any Employee as eligible to participate notwithstanding any level or criteria. An Employee designated as eligible to participate shall become a Participant on the eligibility date specified by the Board in its discretion, provided that in all instances that the Employee completes the Election Form provided for in Section 3.3 below in order to participate in any Deferral Subaccount. Solely for purposes of any Employer credits to an Employer Subaccount, an eligible Employee may participate without completing an Election Form. Eligibility designation is made for both Deferral Subaccounts and Employer Subaccounts at the same time, whether or not the Employee elects to defer Compensation under Section 3.3. All Employees eligible as of the Effective Date shall continue to be eligible to participate in the Plan.

(b) End of Eligibility . A Participant shall continue to be eligible to participate in the Plan until earlier of (a) the date as of which the Board determines he is no longer eligible, (b) his death, or (c) his Separation from Service (for any reason) or (d) his Disability, as determined under Section 2.10

3.2 Participation

(a) Deferral Election . Each Participant may elect to defer under the Plan any whole percentage of his Compensation in the manner described in Section 3.3. To the extent permitted by the Plan Administrator for any given year, a Participant may defer a whole percentage of one or more components of Compensation (such as, bonus or commissions) separately from any deferral of base salary. In the absence of permission by the Plan Administrator prior to the beginning of a Plan Year, deferrals shall be limited to base salary. The amount deferred by the Participant shall be deducted each pay period in which the Participant has Compensation (or the designated component of Compensation) during the Plan Year for which a deferral election has been made.

(b) Employer Contribution . The Employer in its sole discretion may credit amounts during a Plan Year to a Participant’s Employer Subaccount. The Employer may choose to make credits based on a formula or other criteria or no criteria and may choose to make no credits in a Plan Year. The form and timing of payment of the Employer Subaccount shall be considered to be included in and a part of a Participant’s election for a Plan Year under Section 3.3.

 

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3.3 Time and Manner of Election .

(a) Annual Election . A Participant desiring to defer Compensation for a Plan Year must make a written election prior to the beginning of each Plan Year by completing an Election Form provided by the Plan Administrator indicating the percentage of Compensation (or the designated component of Compensation) to be deferred under the Plan. Such election must be made prior to the period of service for which the Compensation (or the designated component of


 
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