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
|
-i-
|
|
|
|
|
|
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
|
-ii-
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.
-1-
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
-2-
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”.
-3-
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
-4-
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.
-5-
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.
-6-
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