EXHIBIT 10.44
PER-SE TECHNOLOGIES, INC.
DEFERRED STOCK UNIT PLAN
Effective as of October 1, 2001
PER-SE TECHNOLOGIES, INC.
DEFERRED STOCK UNIT PLAN
Per-Se Technologies, Inc. ("Per-Se") hereby establishes the Per-Se
Technologies, Inc. Deferred Stock Unit Plan (the "Plan") effective as of
October 1, 2001, subject to approval of the Plan by the stockholders of Per-Se
at the 2002 Annual Meeting of Stockholders. Per-Se intends for this Plan to
provide its Non-Employee Directors (as that term is defined in Article I) and a
select group of key employees of the Company (as that term is defined in Article
I) with an opportunity to defer income in consideration of the valuable services
provided by such persons to the Company and to further align the interests of
such persons with those of the Company's stockholders by encouraging ownership
of Per-Se's common stock. The Company intends that the Plan shall not be treated
as a "funded" plan for purposes of either the Code or the Employee Retirement
Income Security Act of 1974, as amended ("ERISA").
ARTICLE I
DEFINITIONS
Defined terms used in this Plan shall have the meanings set forth
below:
1.01 Account
"Account" means the memorandum account maintained for each Participant
to which shall be credited all Deferred Amounts elected by a
Participant, all Enhancement Bonus made on behalf of a Participant, and
all dividend credits with respect to Stock Units in the Account, and
other adjustments thereto.
1.02 Affiliated Entity
"Affiliated Entity" means any legal entity that is treated as a single
employer with Per-Se pursuant to Code sections 414(b), 414(c), 414(m)
or 414(o).
1.03 Board
"Board" means the Board of Directors of Per-Se.
1.03 Cause
"Cause" as a reason for an employee Participant's termination of
employment shall have the meaning assigned such term in the employment
agreement, if any, between such Participant and the Company or an
affiliated company, provided, however that if there is no such
employment agreement in which such term is defined, "Cause" shall mean
any of the following acts by the Participant, as determined by the
Committee: (i) the Participant materially breaches any of the terms or
conditions set forth in an agreement between the Company and the
Participant, (ii) the Participant commits an act materially
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detrimental to the business or reputation of the Company; or (iii) the
Participant commits or is convicted of any crime involving fraud,
deceit or moral turpitude.
1.04 Change in Control
"Change in Control" means and includes the occurrence of any one or
more of the following events:
(i) a consolidation or merger of Per-Se with or into any other
corporation, or any other entity or person, other than a wholly-owned
subsidiary of Per-Se, excluding any transaction in which the shares of
Per-Se's common stock outstanding immediately prior to any such
consolidation or merger represents immediately thereafter more than 50%
of the combined voting power of the resulting entity after the
transaction;
(ii) any corporate reorganization, including an exchange offer, in
which Per-Se shall not be the continuing or surviving entity resulting
from such reorganization, excluding any transaction in which the shares
of Per-Se's common stock outstanding immediately prior to any such
reorganization represents immediately thereafter more than 50% of the
combined voting power of the resulting entity after the transaction; or
(iii) the sale of a substantial portion of Per-Se's assets, which shall
be deemed to occur on the date that any one person, or more than one
person acting as a group, acquires (or has acquired during the 12-month
period ending on the date of the most recent acquisition by such person
or persons) assets from Per-Se that (a) have a total fair market value
equal to more than 50% of the total fair market value of all the assets
of Per-Se immediately prior to such acquisition or acquisitions, or (b)
represents a majority of the common stock of any (1) subsidiary of
Per-Se, the revenues of which, in the most recent fiscal year,
represent more than 75% of the consolidated gross revenues of Per-Se
and its subsidiaries. Notwithstanding the foregoing, a transfer of
assets or common stock in a subsidiary by Per-Se will not be treated as
a sale of a substantial portion of Per-Se's assets if the assets are
transferred to an entity, 50% or more of the total value or voting
power of which is owned, directly or indirectly, by Per-Se.
1.05 Code
"Code" means the Internal Revenue Code of 1986, as amended.
1.06 Committee
"Committee" means the Compensation Committee of the Board.
1.07 Company
"Company" means (i) Per-Se, and (ii) any Affiliated Entity that, with
approval of the Board, has adopted the Plan.
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1.08 Compensation
"Compensation" in the case of a Non-Employee Director means the
director's committee, meeting and annual retainer fees otherwise
payable to such director during his current term as a director.
"Compensation" in the case of an employee Participant means incentive
compensation payable under the Per-Se Technologies 2001 Incentive Plan
or any successor annual incentive compensation plan or plans. The
Committee may from time to time designate other forms of remuneration
that are available for deferral into the Plan.
1.09 Deferred Amounts
"Deferred Amounts" means the amount of a Participant's Compensation
that he elects to defer and have allocated to his Account pursuant to
Section 3.01.
1.10 Deferred Amount Stock Units
"Deferred Amount Stock Units" means Stock Units credited to a
Participant's Account that result from (i) the conversion to Stock
Units of any Deferred Amounts in accordance with Section 4.01, or (ii)
the conversion to additional Stock Units of dividend equivalents
payable with respect to such Deferred Amount Stock Units pursuant to
Section 4.02.
1.11 Disability
"Disability" means the mental or physical incapacity or disability of a
Participant that renders him unable to perform his duties to the
Company, as reasonably determined by the Committee. The Committee may
require such medical or other evidence as it deems necessary to judge
the nature and permanency of the Participant's condition. A
Participant's inability adequately to perform such services for a
period of 60 consecutive days will be conclusive evidence of such
mental or physical incapacity or disability, unless such inability
adequately to perform such services is pursuant to a mental or physical
incapacity or disability covered by the Family Medical Leave Act, in
which case such 60-day period shall be extended to a one hundred and
120-day period.
1.12 Election Agreement
"Election Agreement" means an application for participation in the
Plan, execution of which by a Participant is required under Article III
for the Participant to elect Deferred Amounts.
1.13 Enhancement Bonus
"Enhancement Bonus" means the allocations to an employee Participant's
Account made pursuant to Sections 3.02 and 4.01.
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1.14 Enhancement Bonus Stock Units
"Enhancement Bonus Stock Units" means Stock Units credited to an
employee Participant's Account that result from (i) the conversion to
Stock Units of any Enhancement Bonus in accordance with Section 4.01,
or (ii) the conversion to additional Stock Units of dividend
equivalents payable with respect to such Enhancement Bonus Stock Units
pursuant to Section 4.02.
1.15 Fair Market Value
"Fair Market Value", on any date, means the average closing price, for
the five business days prior to the date for which the determination is
being made, of a share of Stock on the Nasdaq Stock Market, or on the
principal national securities exchange on which such shares are listed,
or in the event such shares are not listed, the value established by
the Committee in good faith.
1.16 Good Reason
"Good Reason" for a Participant's termination of employment shall have
the meaning assigned such term in the employment agreement, if any,
between such Participant and the Company or an affiliated company,
provided, however that if there is no such employment agreement in
which such term is defined, "Good Reason" shall mean any of the
following acts by the Company without the consent of the Participant:
(i) a reduction of greater than 10% in the Participant's annual base
salary; (ii) a change in the Participant's work location to a work
location more than 50 miles from his existing work location, except for
required travel on the Company's business to an extent consistent with
the Participant's then current business travel obligations; (iii) an
assignment to any duties inconsistent in any material adverse respect
with the Participant's current position, duties or responsibilities,
other than an insubstantial and inadvertent act that is remedied by the
Company promptly after receipt of notice thereof given by the
Participant; or (iv) the failure by the Company to continue any
material benefit or compensation plan in which the Participant is
participating unless the Participant is provided with comparable
benefits.
1.17 Non-Employee Director
"Non-Employee Director" means any member of the Board who is not a
common law employee of the Company or any other affiliated entity of
Per-Se.
1.18 Non-Employee Director Deferred Stock Credit Plan
"Non-Employee Director Deferred Stock Credit Plan" means the
Non-Employee Director Deferred Stock Credit Plan maintained by Per-Se,
effective as of November 19, 1997, as amended.
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1.19 Participant
"Participant" means any Non-Employee Director who has elected to
participate in the Plan and any eligible employee selected to
participate in the Plan pursuant to Section 2.01 and who has elected to
participate in the Plan.
1.20 Plan
"Plan" means this Per-Se Technologies, Inc. Deferred Stock Unit Plan,
as amended from time to time.
1.21 Plan Year
"Plan Year" means each annual period with respect to which Compensation
may be earned. The Plan Year shall be the calendar year with respect to
employee Participants, and shall be the approximate twelve-month
periods between annual meetings of the stockholders of Per-Se with
respect to Participants who are Non-Employee Directors.
1.22 Retirement
"Retirement" of an employee Participant means his termination of
employment with the Company or an Affiliated Entity after attaining any
normal or early retirement age specified in any pension, profit sharing
or other retirement program sponsored by the Company or such Affiliated
Entity, or, in the event of the inapplicability thereof with respect to
the person in question, as determined by the Committee in its
reasonable judgment. "Retirement" of a Non-Employee Director means his
retirement from the Board after having attained the mandatory
retirement age for directors, as may be applicable from time to time,
or, if there is no such mandatory retirement age, as determined by the
Committee in its reasonable judgment.
1.23 Stock
"Stock" means the $0.01 par value common stock of Per-Se.
1.24 Stock Units
"Stock Units" means investment units, each of which is deemed to be
equivalent to one share of Stock. Stock Units shall include the
"Deferred Amount Stock Units" and the "Enhancement Bonus Stock Units."
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ARTICLE II
ELIGIBILITY AND PARTICIPATION
2.01 Eligibility and Participation
Non-Employee Directors are automatically eligible to participate in the
Plan. The Committee shall from time to time in its sole discretion
select those employees of the Company who are eligible to participate
in the Plan from those employees who are among a select group of key
employees.
2.02 Election to Participate
In order to participate in the Plan, Participants shall complete the
election procedure specified by the Committee. The election procedure
may include form(s) for the Participant to (a) designate his
Beneficiary (pursuant to Article V), (b) designate Deferred Amounts by
entering into an Election Agreement with the Company (pursuant to
Article III), (c) select a payment option and date for the eventual
distribution of his Account (pursuant to Article III), and (d) provide
such other information as the Committee may reasonably require.
2.03 Failure of Eligibility
The Committee shall have the authority to determine that an employee
Participant is no longer eligible to participate in the Plan. No
Enhancement Bonus shall be made, no Deferred Amounts shall be withheld
from a Participant's Compensation, and no dividend amounts shall be
credited to a Participant's Account after he ceases to be eligible to
participate in the Plan. The determination of the Committee with
respect to the termination of participation in the Plan shall be final
and binding on all parties affected thereby. Any benefits accrued
hereunder, however, at the time the Participant becomes ineligible to
continue participation, shall be distributable in accordance with the
provisions of the Plan.
ARTICLE III
CONTRIBUTION DEFERRALS
3.01 Participant Deferrals
(a) Elections to Defer. A Participant may elect to defer
Compensation by filing the appropriate Election Agreement with
the Committee's designee. A Non-Employee Director may elect to
defer up to 100% of his Compensation, in 25% increments. An
employee Participant may elect to defer up to 50% of his
eligible Compensation, in 1% increments. Deferred Amounts
shall be deducted through payroll withholding from the
Participant's cash Compensation payable by the Company.
Deferred Amounts shall be credited to the Participant's
Account in accordance with Article IV.
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(b) Initial Enrollment. When a person first becomes eligible to
participate in the Plan, pursuant to Section 2.01, the
Committee's designee shall provide him with an election form,
which, when properly completed and timely returned to the
Committee's designee shall constitute an Election Agreement.
The Election Agreement shall be effective immediately upon
receipt by the Committee's designee; provided, however, that
(i) in the case of Non-Employee Directors, the Election
Agreements relating to any Compensation must be completed and
returned prior to first day of the Plan Year with respect to
which such Compensation will be earned (or in the case of a
Non-Employee Director's initial term of office, no later than
30 days after such initial term has begun), and (ii) in the
case of employee Participants, Election Agreements must be
completed and returned not less than 30 days in advance of the
end of the Plan Year for which such Compensation will be
earned. The Committee from time to time may impose any earlier
deadlines for the submission of Election Agreements as it
deems appropriate or advisable.
In the Election Agreement, the Participant shall indicate the
beginning date for distribution of his Account for such Plan
Year. The selected date may be either the date of the
Participant's termination of service or an anniversary of the
date of deferral, which shall be at least the second
anniversary in the case of Deferred Amount Stock Units and at
least the fifth anniversary in the case of Enhancement Bonus
Stock Units. The Election Agreement shall also indicate one of
the following methods of distribution: (i) one installment of
the full vested balance of Stock Units in the Account as of
the distribution date, or (ii) five or ten annual installments
beginning on the distribution date.
(c) Continuing Elections. A Participant may enter into a separate
Election Agreement for each Plan Year. An Election Agreement
filed with respect to one Plan Year shall remain effective for
all following Plan Years during the term of the Plan, unless
(i) a new Election Agreement with respect to a subsequent Plan
Year is timely filed with the Committee's designee, (ii) the
Committee's designee is notified in writing that the
Participant does not which participate in the Plan for a
subsequent Plan Year, or (iii) the Participant becomes
ineligible to participate in the Plan.
(d) Rollover Deferrals from the Non-Employee Director Deferred
Stock Credit Plan. If a Non-Employee Director elects to
participate in this Plan, the balance, if any, in such
Non-Employee Director's account under the Non-Employee
Director Deferred Stock Credit Plan will be automatically
rolled over to his Account under this Plan (the "Rollover
Account"). In that case, the hypothetical number of shares of
Stock credited to his account under the Non-Employee Director
Deferred Stock Credit Plan as of that date will be converted
to Stock Units on a one-for-one basis and credited to his
Rollover Account under this Plan. The
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Non-Employee Director's most recent election under the
Non-Employee Director Deferred Stock Credit Plan as to the
date for payment and method of payment (single distribution or
installments) shall continue to apply with respect to such
Rollover Account unless changed by the Non-Employee Director
in accordance with Section 3.01(e) below.
(e) Changing a Prior Election. A Participant may, by filing a new
Election Agreement with the Committee's designee, change his
election as to distribution date and/or method of distribution
for the Account with respect to a Plan Year. Such new Election
Agreement shall not be effective until one year after it is
properly filed with the Committee's designee. Participants are
limited to one changed Election Agreement for each separate
Plan Year and one changed Election Agreement for the
Participant's Rollover Account.
(f) Participant Becomes Ineligible. A Participant's Election
Agreement shall be canceled immediately when he becomes
ineligible to participate in the Plan.
3.02 Enhancement Bonus
The Company shall grant to an employee Participant (but not to a
participant who is a Non-Employee Director) an Enhancement Bonus equal
to 25% of the Participant's Deferred Amount for a Plan Year. The
Committee may from time to time in its sole discretion designate such
other Enhancement Bonus contributions as the Committee deems
appropriate. The Enhancement Bonus shall be converted to Stock Units
and credited to the Participant's Account as specified in Article IV.
ARTICLE IV
STOCK UNITS
4.01 Conversion of Deferred Amounts and Enhancement Bonus to Stock Units
All Deferred Amounts and Enhancement Bonus shall be converted to Stock
Units and credited to Participants' Accounts on the later of (i) the
date that the Deferred Amounts are deducted, through payroll
withholding, from the Participant's cash Compensation payable by the
Company, or (ii) the date of the annual meeting of stockholders of
Per-Se at which the Plan is approved by the stockholders. The number of
Stock Units to be credited shall be determined by dividing the Deferred
Amount and Enhancement Bonus by the Fair Market Value of one share of
Stock as of the date on which the amount is credited to the
Participant's Account.
4.02 Conversion of Dividend Equivalents to Stock Units
Participants' Accounts will be credited with additional Stock Units as
of the payment date of any cash dividends declared on the Stock. The
number of additional Stock Units
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credited to an Account shall be determined by dividing (i) the product
of the per-share dividend amount times the number of Stock Units
credited to the Account as of the record date for such dividend, by
(ii) the Fair Market Value of one share of Stock as of the dividend
payment date. Non-cash dividends shall not be converted to Stock Units
or credited to Accounts, except as provided in Section 8.08 hereof. For
purposes of the Plan, the deferral date and the vesting date of Stock
Units converted from dividend equivalents shall be deemed to the same
as the applicable deferral date and vesting date of the underlying
Stock Units with respect to which such dividend equivalents were
credited.
4.03 Voting
Participants shall have no right to vote any Stock Units prior to the
date on which such Stock Units are subject to distribution and shares
of Stock are distributed therefor.
4.04 No Other Investment Alternatives
Nothing contained in this Plan shall be construed to give any
Participant any power or control to make investment decisions with
respect to Deferred Amounts other than the conversion to Stock Units as
provided in this Article IV. Nothing contained in the Plan shall be
construed to require the Company or the Committee to fund any
Participant's Account.
ARTICLE V
DISTRIBUTIONS
5.01 Vesting
(a) A Participant shall be fully vested at all times in the
Deferred Amount Stock Units credited to his Account.
(b) Except as provided below in this Article V, an employee
Participant shall vest in the Enhancement Bonus Stock Units
credited to his Account as follows: 20% on each of the first
five anniversaries of the date on which such Enhancement Bonus
Stock Units were credited to his Account, except that Stock
Units converted from dividend equivalents shall vest at the
same time as the corresponding Enhancement Bonus Stock Units
vest.
(c) If an employee Participant is terminated without Cause or if
his employment is terminated due to his death, Disability,
Retirement or resignation for Good Reason, then any unvested
portion of his Account shall be immediately vested.
(d) If an employee Participant is terminated for Cause or resigns
without Good Reason, then no further vesting of unvested
portions of his Account shall occur
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and unvested portions of his Account shall be forfeited
immediately.
(e) The effect of this Section 5.01 shall be limited to
determining the consequences of a termination of service and
nothing herein shall restrict or otherwise interfere with
Company's discretion with respect to termination of any
employee or director.
(f) Change in Control. If the Plan is terminated after a Change in
Control, all Participants shall thereupon become 100% vested
in their Accounts.
5.02 Distributions During Service
(a) Timing. The timing of the distribution shall be pursuant to
the terms of the Participant's applicable Election
Agreement(s). Except as otherwise provided in Section 5.03,
distributions shall begin at a date designated by the
Participant in the Election Agreement.
(b) Form of Distribution. The Participant's entire vested Account
shall be paid in whole shares of Stock, with any fractional
shares paid in cash, delivered in the number of installments
designated pursuant to the Election Agreement(s), except as
otherwise provided in Section 5.03.
5.03 Distributions After Service
(a) Death, Resignation without Good Reason or Termination for
Cause. Regardless of the distribution election in the
Participant's Election Agreement(s), the Participant's entire
vested Account shall be distributed as soon as
administratively feasible after the Participant's death,
resignation without Good Reason or termination for Cause. The
Account shall be paid in whole shares of Stock, with any
fractional shares paid in cash, delivered in one installment.
(b) Termination for Any Other Reason. In the case of the
Participant's termination as a director or employee for any
other reason (including, for example, Retirement, Disability,
termination without Cause, resignation for Good Reason, or
expiration of term in office as a director), the timing of the
distribution shall be pursuant to the terms of the
Participant's applicable Election Agreement(s). The Account
shall be paid in whole shares of Stock, with any fractional
shares paid in cash, delivered in the number of installments
designated in the applicable Election Agreement(s).
(c) Change in Control. Upon the termination of a Participant for
any reason after a Change in Control, the Participant's entire
vested Account shall be distributed within three months after
the Participant terminates service with the Company. The
Account shall be paid in whole shares of Stock, with any
fractional shares paid in cash, delivered in one installment.
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5.04 Distributions After Participant's Death
(a) Each Participant shall designate one or more persons, trusts
or other entities as his beneficiary (the "Beneficiary") to
receive any amounts distributable under the Plan at the time
of the Participant's death. In the absence of an effective
beneficiary designation as to part or all of a Participant's
interest in the Plan, such amount shall be distributed to the
Participant's surviving spouse, if any, otherwise to the
personal representative of the Participant's estate.
(b) A beneficiary designation may be changed by the Participant at
any time and without the consent of any previously designated
Beneficiary. If a Participant has designated his spouse as a
Beneficiary or as a contingent Beneficiary, and the
Participant and that spouse subsequently divorce, then such
beneficiary designation shall be void and of no effect with
respect to such spouse on the day such divorce is final.
(c) When a Participant dies, his remaining Account balance shall
be distributed to his Beneficiary as soon as administratively
possible after his death, regardless of the payment schedule
the Participant elected, and regardless of whether installment
payments had begun. Such distribution shall be paid in whole
shares of Stock, with any fractional shares paid in cash.
5.05 Financial Hardship
The Committee may, in its sole discretion, accelerate the distribution
to a Participant of an amount reasonably necessary to handle a severe
financial hardship of a sudden and unexpected nature due to causes not
within the control of the Participant. The determination of whether an
unforeseeable hardship has occurred, as well as the application of the
facts making such determination, shall be made by the Committee in its
sole and absolute discretion and shall not be overturned unless such
decision is arbitrary and capricious. All financial hardship
distributions shall be made in cash in a lump sum, by the conversion of
Stock Units to cash based on the Fair Market Value of the Stock on the
business day immediately preceding the date of the distribution.
5.06 Withholding
At the time of deferral or distribution, the Company shall withhold any
taxes or other amounts that are required to be withheld pursuant to any
applicable law. The Committee may direct the Company to withhold
additional amounts from any payment under the Plan, either because the
Participant so requested or to repay the Participant's debt or
obligation to the Company.
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ARTICLE VI
ADMINISTRATION
6.01 The Committee - Plan Administrator
The Plan shall be administered by the Committee or, at the discretion
of the Board from time to time, the Plan may be administered by the
Board. During any time that the Board is acting as administrator of the
Plan, it shall have all the powers of the Committee hereunder, and any
reference herein to the Committee (other than in this Section 6.01)
shall include the Board.
6.02 Committee Powers
The Committee shall have all discretion and powers necessary to
administer the Plan, including, but not by way of limitation, full
discretion and power to interpret the Plan, to determine the
eligibility, status and rights of all persons under the Plan and, in
general, to decide any dispute. The Committee shall direct the Company
concerning distributions in accordance with the provisions of the Plan.
The Committee's designee shall maintain all Plan records.
6.03 Organization of Committee
The Committee shall adopt such rules as it deems desirable for the
conduct of its affairs and for the administration of the Plan. It may
appoint designees and/or agents (who need not be members of the
Committee) to whom it may delegate such powers as it deems appropriate,
except that the Committee shall determine any dispute. The Committee
may make its determinations with or without meetings. The Committee may
authorize one or more of its members, designees or agents to sign
instructions, notices and determinations on its behalf. The action of a
majority of the Committee's members shall constitute the action of the
Committee.
6.04 Agent for Process
Per-Se's General Counsel and Corporate Secretary shall be the agent of
the Plan for service of all process.
6.05 Determination of Committee Final
The decisions made by the Committee shall be final and conclusive on
all persons.
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ARTICLE VII
AMENDMENT AND TERMINATION
7.01 Amendment
The Board or the Committee may, at any time and from time to time,
amend, modify or terminate the Plan without stockholder approval;
provided, however, that the Board or Committee may condition any
amendment or modification on the approval of stockholders of the
Company if such approval is necessary or deemed advisable with respect
to tax, securities or other applicable laws, policies or regulations.
No amendment to the Plan shall adversely affect any benefit that has
accrued on the effective date of such amendment, without the consent of
the affected Participant(s).
Each amendment of the Plan shall be in writing and shall be approved by
the Committee and/or the Board. An officer of Per-Se to whom the
Committee and/or the Board has delegated the authority to execute Plan
amendments shall execute each such amendment.
7.02 Successors and Assigns; Termination of Plan
The Plan is binding upon Per-Se and its successors and assigns. The
Plan shall continue in effect from year to year unless and until
terminated by the Board or the Committee. Any such termination shall
operate only prospectively and shall not reduce any vested benefit that
has accrued on the effective date of such termination.
7.03 Change in Control
The Plan shall not be automatically terminated by a Change in Control,
but the Plan shall be continued thereafter by such successor
organization. All rights to amend, modify, suspend or terminate the
Plan shall be transferred to the successor organization, effective as
of the date of the Change in Control.
ARTICLE VIII
MISCELLANEOUS
8.01 Stock Subject to the Plan
All benefits payable under the Plan shall be distributed in whole
shares of Stock, with any fractional shares paid in cash. The shares of
Stock to be distributed pursuant to the Plan shall be shares that have
been previously issued and reacquired by the Company in public or
private transactions. Subject to adjustment in accordance with the
provisions of Section 8.08, the maximum number of shares of Stock that
may be distributed pursuant to the Plan shall be 600,000 shares. In the
event that any Stock Units granted under the Plan are forfeited by a
Participant, the shares of Stock represented thereby shall not count
against such maximum number of shares of Stock that may be distributed
under the Plan.
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8.02 Funding of Benefits -- No Fiduciary Relationship
Benefits shall be distributed by the Company out of its general assets
and no separate fund shall be established to secure payment. Nothing
contained in the Plan shall be deemed to create any fiduciary
relationship between the Company and the Participants. Notwithstanding
anything herein to the contrary, to the extent that any person acquires
a right to receive benefits under the Plan, such right shall be no
greater than the right of any unsecured general creditor of the
Company. Notwithstanding the foregoing, the Company may establish a
grantor trust for the purpose of helping to defray the obligations
under the Plan and to the extent that any payment is made from any such
trust to a Participant or Beneficiary, such payment will be in
satisfaction of the Company's obligations hereunder.
8.03 Right to Terminate Employment or Service as a Director
The Company may terminate the employment or directorship of any
Participant as freely and with the same effect as if the Plan were not
in existence.
8.04 Inalienability of Benefits
No Participant shall have the right to assign, transfer, hypothecate,
encumber or anticipate his interest in any benefits under the Plan, nor
shall the benefits under the Plan be subject to any legal process to
levy upon or attach the benefits for payment for any claim against the
Participant or his spouse or Beneficiary. If, notwithstanding the
foregoing provision, any Participant's benefits are garnished or
attached by the order of any court, the Company may bring an action for
declaratory judgment in a court of competent jurisdiction to determine
the proper recipient of the benefits to be distributed pursuant to the
Plan. During the pendency of the action, any benefits that become
distributable shall be paid into the court, as they become
distributable, to be distributed by the court to the recipient it deems
proper at the conclusion of the action.
8.05 Claims Procedure
(a) Notice of Claim. Any Participant or Beneficiary, or the duly
authorized representative of a Participant or Beneficiary, may
file with the Committee a claim for a Plan benefit. Such a
claim must be in writing on a form provided by the Committee
and must be delivered in person or by mail, postage prepaid,
to the Committee c/o Per-Se's General Counsel and Corporate
Secretary, as agent for the Committee. Within 90 days after
the receipt of such a claim, the Committee shall send to the
claimant, by mail, postage prepaid, a notice of the granting
or the denying, in whole or in part, of such claim, unless
special circumstances require an extension of time for
processing the claim. In no event may the extension exceed 90
days from the end of the initial period. If such an extension
is
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necessary, the claimant will be given a written notice to this
effect prior to the expiration of the initial 90 day period.
The Committee shall have full discretion to deny or grant a
claim in whole or in part in accordance with the terms of the
plan. If notice of the denial of a claim is not furnished in
accordance with this Section, the claim shall be denied and
the claimant shall be permitted to exercise his or her right
to review pursuant to Sections 8.05(c) and 8.05(d) of the
Plan, as applicable.
(b) Action on Claim. The Committee shall provide to every claimant
who is denied a claim for benefits a written notice setting
forth, in a manner calculated to be understood by the
claimant:
(i) The specific reason or reasons for the denial;
(ii) A specific reference to the pertinent Plan provisions
on which the denial is based;
(iii) A description of any additional material or
information necessary of the claimant to perfect the
claim and an explanation of why such material or
information is necessary; and
(iv) An explanation of the Plan's claim review procedure.
(c) Review of Denial. Within 60 days after the receipt by a
claimant of written notification of the denial (in whole or in
part) of a claim, the claimant or the claimant's duly
authorized representative, upon written application to the
Committee, delivered in person or by certified mail, postage
prepaid, may review pertinent documents and may submit to the
Committee, in writing, issues and comments concerning the
claim.
(d) Decision on Review. Upon the Committee's receipt of a notice
of a request for review, the Committee shall make a prompt
decision on the review and shall communicate the decision on
review in writing to the claimant. The decision on review
shall be written in a manner calculated to be understood by
the claimant and shall include specific reasons for the
decision and specific references to the pertinent Plan
provisions on which the decision is based. The decision on
review shall be made not later than 60 days after the
Committee's receipt of a request for a review, unless special
circumstances require an extension of time for processing, in
which case a decision shall be rendered not later than 120
days after receipt of the request for review. If an extension
is necessary, the claimant shall be given written notice of
the extension by the Committee prior to the expiration of the
initial 60-day period. If notice of the decision on review is
not furnished in accordance with this Section, the claim shall
be denied on review.
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8.06 Disposition of Unclaimed Distributions
Each Participant must file with the Company from time to time in
writing his post office address and each change of post office address.
Any communication, statement or notice addressed to a Participant at
his last post office address on file with the Company, or if no address
is filed with the Company, then at his last post office address as
shown on the Company's records, will be binding on the Participant and
his Beneficiary for all purposes of the Plan. The Company shall not be
required to search for or locate a Participant or his Beneficiary.
Whenever the Committee cannot, within a reasonable time after payments
are to commence, locate any person to or for the benefit of whom such
payments are to be made, after making a reasonable effort to locate
such person, the Committee may direct that the payment and any
remaining payments otherwise due to the Participant be cancelled on the
records of the Plan, except that in the event the Participant later
notifies the Committee of his whereabouts and requests the payments due
to him under the Plan, the Company shall re-credit the Participant's
account and provide for payment of the re-credited amount to the
Participant as soon as administratively feasible.
8.07 Distributions Due Infants or Incompetents
If any person entitled to a distribution under the Plan is an infant,
or if the Committee determines that any such person is incompetent by
reason of physical or mental disability, whether or not legally
adjudicated an incompetent, the Committee shall have the power to cause
the distributions becoming due to such person to be made to another for
his benefit, without responsibility of the Committee to see to the
application of such distributions. Distributions made pursuant to such
power shall operate as a complete discharge of the Company and the
Committee.
8.08 Equitable Adjustments
In the event of an increase or reduction in the number of shares of
Stock, or any change (including, but not limited to, a change in value)
in the shares of Stock or exchange of shares of Stock for a different
number or kind of shares or other securities of Per-Se, by reason of a
stock dividend, stock split, combination or exchange of shares,
reclassification, recapitalization, merger, consolidation,
reorganization, or the distribution of property of Per-Se (including
interests in subsidiaries) to stockholders of record pursuant to
spin-offs, split-ups, the issuance of warrants or other rights or
debentures, or extraordinary dividends, or otherwise, the Committee
will adjust the number of Stock Units credited to a Participant's
Account under the Plan in the same manner as a share of Stock is
adjusted. In the event that the change of capitalization involves the
issuance of cash, securities or property to the holders of Stock of
record, an amount equivalent to the cash and the fair market value of
the property and securities distributed with respect to a share of
Stock will be credited to each Participant's Account for each Stock
Unit held in the Account as of the record date for
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such distribution. All such amounts shall be converted to additional
Stock Units as of the date of such distribution. The Committee may make
such other equitable adjustments to outstanding Accounts, whether or
not in pay status, as it shall determines to be equitable.
8.09 Use and Form of Words
When any words are used herein in the masculine gender, they shall be
construed as though they were also used in the feminine gender in all
cases where they would so apply, and vice versa. Whenever any words are
used herein in the singular form, they shall be construed as though
they were also used in the plural form in all cases where they would so
apply, and vice versa.
8.10 Headings
Headings of Articles and Sections are inserted solely for convenience
and reference, and constitute no part of the Plan.
8.11 Governing Law
The Plan and all Election Agreements shall be construed in accordance
with the Code and, to the extent applicable, the laws of the State of
Georgia excluding any conflicts-of-law provisions.
The foregoing is hereby acknowledged as being the Per-Se Technologies,
Inc. Deferred Stock Unit Plan, as adopted by the Board of Directors of Per-Se on
December 6, 2001, to be effective as of October 1, 2001, subject to approval by
the stockholders of Per-Se at the 2002 Annual Meeting of Stockholders.
ATTEST: PER-SE TECHNOLOGIES, INC.
/s/ PAUL J. QUINER /s/ PHILIP M. PEAD
- --------------------------- -----------------------------------------
Paul J. Quiner Philip M. Pead
Corporate Secretary President and Chief Executive Officer
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