EXHIBIT 10.38
FIFTH AMENDMENT TO THE
PER-SE TECHNOLOGIES, INC.
EMPLOYEES' RETIREMENT SAVINGS PLAN
THIS FIFTH AMENDMENT is made as of December 17, 2002, by PER-SE
TECHNOLOGIES, INC., a corporation duly organized and existing under the laws of
the State of Delaware (the "Primary Sponsor").
WITNESSETH:
WHEREAS, the Primary Sponsor maintains the Per-Se Technologies, Inc.
Employees' Retirement Savings Plan (the "Plan") which was last amended and
restated on January 20, 2000;
WHEREAS, the Primary Sponsor now wishes to amend the Plan primarily to
comply with and make changes required or permitted by the Economic Growth and
Tax Relief Reconciliation Act of 2001 ("EGTRRA");
WHEREAS, this amendment is intended as good faith compliance with the
requirements of EGTRRA and is to be construed in accordance with EGTRRA and any
guidance issued thereunder; and
WHEREAS, this amendment shall supersede the provisions of the Plan to
the extent those provisions are inconsistent with the provisions of this
amendment.
NOW, THEREFORE, the Primary Sponsor does hereby amend the Plan
effective as of January 1, 2002:
1. By deleting the header language of Section 1.5 and
substituting the following:
"1.5 `Annual Compensation' means the amount paid to an
Employee by a Plan Sponsor and Affiliates during a Plan Year as
compensation that would be subject to income tax withholding under Code
Section 3401(a), (but without regard to any rules that limit the
remuneration included in wages based on the nature or location of the
employment or the services performed, such as the exception for
agricultural labor in Code Section 3401(a)(2), to the extent not in
excess of $200,000 (for the Plan Year beginning in 2002), which amount
shall be adjusted for changes in the cost of living as provided in
regulations issued by the Secretary of the Treasury, except for
purposes of determining Highly Compensated Employees. Notwithstanding
the above, Annual Compensation shall be determined as follows:"
2. By adding the following new Section 1.5A:
"1.5A `Appeals Fiduciary' means an individual or group of
individuals appointed to review appeals of claims for benefits payable
due to a Member's Disability made pursuant to Plan Section 12.4."
3. By deleting the existing Section 1.14 and substituting the
following:
"1.14 `Disability' means a disability of a Member within the
meaning of Code Section 72(m)(7), to the extent that the Member is, or
would be, entitled to disability retirement benefits under the federal
Social Security Act. The determination of whether or not a Disability
exists shall be determined by the Plan Administrator and shall be
substantiated by competent medical evidence."
4. By deleting the existing Section 1.20 and substituting the
following:
"1.20 `Eligible Retirement Plan' means any of the following
that will accept a Distributee's Eligible Rollover Distribution:
(a) an individual retirement account described
in Code Section 408(a);
(b) an individual retirement annuity described
in Code Section 408(b);
(c) an annuity plan described in Code Section
403(a) or an annuity contract described in Code Section
403(b);
(d) a qualified trust described in Code Section
401(a); or
(e) an eligible plan under Code Section 457(b)
which is maintained by a state or political subdivision of a
state, or any agency or instrumentality of a state or
political subdivision and which agrees to separately account
for amounts transferred into such plan from this Plan."
5. By deleting the existing Section 1.21 and substituting the
following:
"1.21 `Eligible Rollover Distribution' means any
distribution of all or any portion of the Distributee's Account, except
that an Eligible Rollover Distribution does not include:
(a) any distribution that is one of a series of
substantially equal periodic payments (not less frequently
than annually) made for the life (or life expectancy) of the
Distributee or the joint lives (or joint life expectancies) of
the Distributee and the Distributee's designated Beneficiary,
or for a specified period of ten (10) years of more;
(b) any distribution to the extent such
distribution is required under Code Section 401(a)(9);
(c) any distribution which is made upon hardship
of the Employee; and
(d) the portion of any distribution that is not
includable in gross income (determined without regard to the
exclusions for net unrealized appreciation with respect to
employer securities)."
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6. By deleting the existing Section 1.35 and substituting the
following:
"1.35 `Named Fiduciary' means only the following:
(a) the Plan Administrator;
(b) the Trustee;
(c) the Investment Committee;
(d) the Investment Manager; and
(e) the Appeals Fiduciary."
7. By deleting the existing Section 1.41 and substituting
therefor the following:
"1.41 `Rollover Amount' means any amount transferred to the
Fund by a Member, which amount qualifies as an Eligible Rollover
Distribution under Code Sections 402(c)(4), 403(a)(4), 403(b)(8),
408(d)(3)(A)(ii), or 457(e)(16), and any regulations issued
thereunder."
8. By deleting the existing Section 3.1 and substituting the
following:
"3.1 (a) The Plan Sponsor shall make a contribution
to the Fund on behalf of each Member who is an Eligible
Employee and has elected to defer a portion of his Annual
Compensation otherwise payable to him for the Plan Year and to
have such portion contributed to the Fund. Except to the
extent permitted under Section 3.1(c) and Code Section 414(v),
the contribution made by a Plan Sponsor on behalf of a Member
under this Section 3.1(a) shall be in an amount equal to the
amount specified in the Member's deferral election, but not
greater than twenty-five percent (25%) of the Member's Annual
Compensation. Pursuant to Section 4 of Appendix A, the Plan
Administrator may restrict the amount which Highly Compensated
Employees may defer under this Section 3.1(a).
(b) Except to the extent permitted under Section
3.1(c) and Code Section 414(v), Elective Deferrals shall in no
event exceed the limit set forth in Code Section 402(g) in any
one taxable year of the Member. In the event the amount of
Elective Deferrals exceeds Code Section 402(g) limit, in any
one taxable year then,
(1) not later than the immediately
following March 1, the Member may designate to the
Plan the portion of the Member's Deferral Amounts
which consist of excess Elective Deferrals, and
(2) not later than the immediately
following April 15, the Plan may distribute the
amount designated to it under Paragraph (1) above, as
adjusted to reflect income, gain, or loss
attributable to it through the end of the Plan Year,
and reduced by any `Excess Deferral Amounts,' as
defined
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in Appendix A hereto, previously distributed or
recharacterized with respect to the Member for the
Plan Year beginning with or within that taxable year.
The payment of the excess Elective Deferrals, as
adjusted and reduced, from the Plan shall be made to the
Member without regard to any other provision in the Plan. In
the event that a Member's Elective Deferrals exceed the Code
Section 402(g) limit, as adjusted, in any one taxable year
under the Plan and other plans of the Plan Sponsor and its
Affiliates, the Member shall be deemed to have designated for
distribution under the Plan the amount of excess Elective
Deferrals, as adjusted and reduced, by taking into account
only Elective Deferral amounts under the Plan and other plans
of the Plan Sponsor and its Affiliates.
(c) A Member who is eligible to contribute
Deferral Amounts to the Plan and who has attained age 50 on or
before the last day of the Plan Year shall be eligible to
elect to have a portion of his Annual Compensation otherwise
payable to him for the Plan Year contributed by the Plan
Sponsor to the Fund on his behalf as catch-up contributions in
accordance with and subject to the limitations of, Code
Section 414(v). Contributions made pursuant to this Section
3.1(c) shall not be taken into account for purposes of
implementing the limitations set forth in Section 3.1(a),
3.1(b) and Appendix B hereto. The Plan shall not be treated as
failing to satisfy the provisions of Appendix A, Appendix C or
Code Section 410(b), as applicable, by reason of the making of
the catch-up contributions as described in this Section
3.1(c).
(d) Contributions made pursuant to this Section
3.1 shall be allocated to the Employee Deferral Account of the
Member on whose behalf they were made as soon as reasonably
practicable following the date of withholding by the Plan
Sponsor and receipt by the Trustee.
(e) The elections under this Section 3.1 must be
made before the Annual Compensation is payable and may only be
made in such manner and subject to such rules and limitations
as the Plan Administrator may prescribe and shall specify the
percentage or dollar amount, as applicable, of Annual
Compensation that the Member desires to defer pursuant to
Section 3.1(a) and/or 3.1(c) and to have contributed to the
Fund. Once a Member has made an election for a Plan Year, the
Member may revoke or modify his election to increase or reduce
the rate of future deferrals, as provided in the
administrative procedures established by the Plan
Administrator."
9. By deleting the existing Section 3.2 and substituting the
following:
"3.2 Following the completion of a year of Service by a
Member, the Plan Sponsor proposes to make contributions to the Fund with respect
to such Plan Year on behalf of each Member in an amount equal to fifty percent
(50%) of the amount deferred by a Member pursuant to Plan Section 3.1(a), not in
excess of six percent (6%) of the Member's Annual Compensation. The Board of
Directors may, at its discretion, increase the percentage contribution under
this Section 3.2 for all Members, or for any specified
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unit, division, subdivision, or location, or for any Members who participated in
a specified prior plan that was merged into the Plan."
10. By deleting the existing Section 3.5 and by substituting the
following:
"3.5 Any Eligible Employee may, with the consent of the
Plan Administrator and subject to such rules and conditions as the Plan
Administrator may prescribe, transfer a Rollover Amount to the Fund
(which may include, without limitation, prohibitions against
transferring certain categories of Rollover Amounts to the Plan);
provided, however, that the Plan Administrator shall not administer
this provision in a manner which is discriminatory in favor of Highly
Compensated Employees."
11. By deleting the header language of Section 7.2 and
substituting the following:
"7.2 A withdrawal pursuant to this Section 7.2 is
designated a `Hardship Withdrawal' and is subject to the following
rules: The Trustee shall, upon the direction of the Plan Administrator,
withdraw all or portion of a Member's Employee Deferral Account
consisting of Deferral Amounts (but not earnings thereon), including
catch-up contributions made pursuant to Section 3.1(c), prior to the
time such account is otherwise distributable in accordance with the
other provisions of the Plan; provided, however, that any such
withdrawal shall be made only if the Member is an Employee and
demonstrates that he is suffering from `hardship' as determined herein.
For purposes of this Section, a withdrawal will be deemed to be an
account of hardship if the withdrawal is on account of:"
12. By adding "and" to the end of Section 7.3(a)(1) and by
deleting the existing Section 7.3(a)(2) and substituting the following:
"(2) the Plan Sponsor shall not permit
Elective Deferrals, including catch-up contributions
as described in Code Section 414(v), for a period of
six (6) months after the Member receives the
withdrawal pursuant to this Section; and"
13. By deleting the existing Section 7.3(a)(3) in its entirety.
14. By deleting the existing Section 9.4(b) and substituting the
following:
"(b) the payments to be made to a Member shall be
made in accordance with Code Section 401(a)(9) and the
regulations issued thereunder, including the incidental
benefit requirements. Notwithstanding the foregoing, effective
as of January 1, 2003, any distributions pursuant to Code
Section 401(a)(9) shall be administered in accordance with the
requirements of Appendix E hereto."
15. By adding the following new Section 11.8:
"11.8 Appeals Fiduciary. The Primary Sponsor shall appoint
an Appeals Fiduciary. The Appeals Fiduciary shall be required to review
claims for benefits payable due to a Member's Disability that are
initially denied by the Plan Administrator and for
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which the claimant requests a full and fair review pursuant to Section
12.3. The Appeals Fiduciary may not be the individual who made the
initial adverse determination with respect to any claim he reviews and
may not be a subordinate of any individual who made the initial adverse
determination. The Appeals Fiduciary may be removed in the same manner
in which appointed or may resign at any time by written notice of
resignation to the Primary Sponsor. Upon such removal or resignation,
the Primary Sponsor shall appoint a successor."
16. By deleting the existing Section 12 and substituting the
following:
"SECTION 12
CLAIMS REVIEW PROCEDURE
12.1 If a Member or a Beneficiary is denied a claim for
benefits under the Plan, the Plan Administrator shall provide to the
claimant written notice of the denial within ninety (90) days
(forty-five (45) days with respect to a denial of any claim for
benefits due to the Member's Disability) after the Plan Administrator
receives the claim, unless special circumstances require an extension
of time for processing the claim. If such an extension of time is
required, written notice of the extension shall be furnished to the
claimant prior to the termination of the initial 90-day period. In no
event shall the extension exceed a period of ninety (90) days (thirty
(30) days with respect to a claim for benefits due to the Member's
Disability) from the end of such initial period. With respect to a
claim for benefits due to the Member's Disability, an additional
extension of up to thirty (30) days beyond the initial 30-day extension
period may be required for processing the claim. In such event, written
notice of the extension shall be furnished to the claimant within the
initial 30-day extension period. Any extension notice shall indicate
the special circumstances requiring the extension of time, the date by
which the Plan Administrator expects to render the final decision, the
standards on which entitlement to benefits are based, the unresolved
issues that prevent a decision on the claim and the additional
information needed to resolve those issues.
12.2 If a Member or Beneficiary is denied a claim for
benefits under a Plan, the Plan Administrator shall provide to such
claimant written notice of the denial which shall set forth:
(a) the specific reasons for the denial;
(b) specific references to the pertinent
provisions of the Plan on which the denial is based;
(c) a description of any additional material or
information necessary for the claimant to perfect the claim
and an explanation of why such material or information is
necessary;
(d) an explanation of the Plan's claim review
procedures, and the time limits applicable to such procedures,
including a statement of the claimant's right to bring a civil
action under Sections 502(a) of ERISA following an adverse
benefit determination on review;
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(e) in the case of a claim for benefits due to a
Member's Disability, if an internal rule, guideline, protocol
or other similar criterion is relied upon in making the
adverse determination, either the specific rule, guideline,
protocol or other similar criterion; or a statement that such
rule, guideline, protocol or other similar criterion was
relied upon in making the decision and that a copy of such
rule, guideline, protocol or other similar criterion will be
provided free of charge upon request; and
(f) in the case of a claim for benefits due to a
Member's Disability, if a denial of the claim is based on a
medical necessity or experimental treatment or similar
exclusion or limit, an explanation of the scientific or
clinical judgment for the denial, an explanation applying the
terms of the Plan to the claimant's medical circumstances or a
statement that such explanation will be provided free of
charge upon request.
12.3 After receiving written notice of the denial of a
claim or that a domestic relations order is a qualified domestic
relations order, a claimant or his representative shall be entitled to:
(a) request a full and fair review of the denial
of the claim or determination that a domestic relations order
is a qualified domestic relations order by written application
to the Plan Administrator (or Appeals Fiduciary in the case of
a claim for benefits payable due to a Member's Disability);
(b) request, free of charge, reasonable access
to, and copies of, all documents, records, and other
information relevant to the claim;
(c) submit written comments, documents, records,
and other information relating to the denied claim to the Plan
Administrator or Appeals Fiduciary, as applicable; and
(d) a review that takes into account all
comments, documents, records, and other information submitted
by the claimant relating to the claim, without regard to
whether such information was submitted or considered in the
initial benefit determination.
12.4 (a) If a claimant wishes a review of the
decision denying his claim to benefits under the Plan, other
than a claim described in Subsection (b) of this Section 12.4,
or if a claimant wishes to appeal a decision that a domestic
relations order is a qualified domestic relations order, he
must submit the written application to the Plan Administrator
within sixty (60) days after receiving written notice of the
denial or notice that the domestic relations order is a
qualified domestic relations order.
(b) If the claimant wishes a review of the
decision denying his claim to benefits under the Plan due to a
Member's Disability, he must submit the written application to
the Appeals Fiduciary within one hundred eighty (180) days
after
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receiving written notice of the denial. With respect to any
such claim, in deciding an appeal of any denial based in whole
or in part on a medical judgment (including determinations
with regard to whether a particular treatment, drug, or other
item is experimental, investigational, or not medically
necessary or appropriate), the Appeals Fiduciary shall
(i) consult with a health care
professional who has appropriate training and
experience in the field of medicine involved in the
medical judgment; and
(ii) identify the medical and vocational
experts whose advice was obtained on behalf of the
Plan in connection with the denial without regard to
whether the advice was relied upon in making the
determination to deny the claim.
Notwithstanding the foregoing, the health care professional
consulted pursuant to this Subsection (b) shall be an
individual who was not consulted with respect to the initial
denial of the claim that is the subject of the appeal or a
subordinate of such individual.
12.5 Upon receiving such written application for review,
the Plan Administrator or Appeals Fiduciary, as applicable, may
schedule a hearing for purposes of reviewing the claimant's claim,
which hearing shall take place not more than thirty (30) days from the
date on which the Plan Administrator or Appeals Fiduciary received such
written application for review.
12.6 At least ten (10) days prior to the scheduled
hearing, the claimant and his representative designated in writing by
him, if any, shall receive written notice of the date, time, and place
of such scheduled hearing. The claimant or his representative, if any,
may request that the hearing be rescheduled, for his convenience, on
another reasonable date or at another reasonable time or place.
12.7 All claimants requesting a review of the decision
denying their claim for benefits may employ counsel for purposes of the
hearing.
12.8 No later than sixty (60) days (forty-five (45) days
with respect to a claim for benefits due to the Member's Disability)
following the receipt of the written application for review, the Plan
Administrator or the Appeals Fiduciary, as applicable, shall submit its
decision on the review in writing to the claimant involved and to his
representative, if any, unless the Plan Administrator or Appeals
Fiduciary determines that special circumstances (such as the need to
hold a hearing) require an extension of time, to a day no later than
one hundred twenty (120) days (ninety (90) days with respect to a claim
for benefits due to the Member's Disability) after the date of receipt
of the written application for review. If the Plan Administrator or
Appeals Fiduciary determines that the extension of time is required,
the Plan Administrator or Appeals Fiduciary shall furnish to the
claimant written notice of the extension before the expiration of the
initial sixty (60) day (forty-five (45) days with respect to a claim
for benefits due to the Member's Disability) period. The extension
notice shall indicate the special
8
circumstances requiring an extension of time and the date by which the
Plan Administrator or Appeals Fiduciary expects to render its decision
on review. In the case of a decision adverse to the claimant, the Plan
Administrator or Appeals Fiduciary shall provide to the claimant
written notice of the denial which shall include:
(a) the specific reasons for the decision;
(b) specific references to the pertinent
provisions of the Plan on which the decision is based;
(c) a statement that the claimant is entitled to
receive, upon request and free of charge, reasonable access
to, and copies of, all documents, records, and other
information relevant to the claimant's claim for benefits;
(d) an explanation of the Plan's claim review
procedures, and the time limits applicable to such procedures,
including a statement of the claimant's right to bring an
action under Section 502(a) of ERISA following the denial of
the claim upon review;
(e) in the case of a claim for benefits due to
the Member's Disability, if an internal rule, guideline,
protocol or other similar criterion is relied upon in making
the adverse determination, either the specific rule,
guideline, protocol or other similar criterion; or a statement
that such rule, guideline, protocol or other similar criterion
was relied upon in making the decision and that a copy of such
rule, guideline, protocol or other similar criterion will be
provided free of charge upon request;
(f) in the case of a claim for benefits due to a
Member's Disability, if a denial of the claim is based on a
medical necessity or experimental treatment or similar
exclusion or limit, an explanation of the scientific or
clinical judgment for the denial, an explanation applying the
terms of the Plan to the claimant's medical circumstances or a
statement that such explanation will be provided free of
charge upon request; and
(g) in the case of a claim for benefits due to a
Member's Disability, a statement regarding the availability of
other voluntary alternative dispute resolution options."
17. By deleting the existing Section 19 and substituting the
following:
"SECTION 19
INCORPORATION OF SPECIAL LIMITATIONS
Appendices A, B, C, D, and E to the Plan, attached hereto, are
incorporated by reference and the provisions of the same shall apply
notwithstanding anything to the contrary contained herein."
9
18. By deleting the existing last sentence of the first paragraph
of Section 3 of Appendix A in its entirety.
19. By deleting the existing Section 4 of Appendix A and
substituting the following.
"The Plan Administrator shall have the responsibility of
monitoring the Plan's compliance with the limitations of this Appendix
A and shall have the power to take all steps it deems necessary or
appropriate to ensure compliance, including, without limitation,
restricting the amount which Highly Compensated Eligible Members can
elect to have contributed pursuant to Plan Section 3.1(a). Any actions
taken by the Plan Administrator pursuant to this Section 4 shall be
pursuant to non-discriminatory procedures consistently applied."
20. By deleting the existing third and fourth sentences of the
last paragraph of Section 5 of Appendix A and substituting the following:
"The `contribution percentage' for Highly Compensated Eligible
Members and for all other Eligible Members for a Plan Year shall be the
average of the ratios, calculated separately for each Member, of (A) to
(B), where (A) is the amount of Matching Contributions under the Plan
(excluding Qualified Matching Contributions which are used to apply the
test set forth in Section 2 of this Appendix A) and nondeductible
employee contributions made under the Plan for the Eligible Member for
the Plan Year, and where (B) is the Annual Compensation of the Eligible
Member for the Plan Year."
21. By deleting the existing last sentence of the first paragraph
of Section 6 of Appendix A in its entirety.
22. By deleting the existing Section 1 of Appendix B and
substituting the following:
"Except to the extent permitted under Plan Section 3.1(c) and
Code Section 414(v), if applicable, the `annual addition' for any
Member for any one limitation year may not exceed the lesser of:
(a) $40,000, as adjusted under Code Section 415(d); or
(b) 100% of the Member's Annual Compensation.
The limit described in Subsection (b) shall not apply to any
contribution for medical benefits after separation from service (within
the meaning of Code Section 401(h) or 419A(f)(2)) which is otherwise
treated as an annual addition."
23. By deleting the existing Section 2 of Appendix B and
substituting the following:
"For the purposes of this Appendix B, the term `annual
addition' for any Member means for any limitation year, the sum of
certain Plan Sponsor, Affiliate, and Member contributions, forfeitures,
and other amounts as determined in Code Section 415(c)(2) in effect for
that limitation year. Member contributions shall be determined without
regard
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to Rollover Amounts, employee contributions to a simplified employee
pension which are excludable from gross income under Code Section
401(k)(6), and catch-up contributions as described in Code Section
414(v)."
24. By adding the following new paragraph to the end of Section 6
of Appendix B:
"Notwithstanding anything contained in the Plan to the
contrary, the Plan Administrator may modify the provisions of this
Section 6 with respect to reduction of Member's Accounts in accordance
with such procedures as the Plan Administrator may establish with
respect to catch-up contributions described in Code Section 414(v)."
25. By deleting the existing Section 1(b) of Appendix C and
substituting the following:
"(b) `Key Employee' means an Employee or former
Employee (including a Beneficiary of a Key Employee or former
Key Employee) who at any time during the Plan Year containing
the Determination Date was:
(1) an officer of the Plan Sponsor or
any Affiliate whose Annual Compensation was greater
than $130,000 (as adjusted for changes in the cost of
living as provided in regulations issued by the
Secretary of the Treasury for Plan Years beginning
after December 31, 2002) for the calendar year in
which the Plan Year ends, where the term `officer'
means an administrative executive in regular and
continual service to the Plan Sponsor or an
Affiliate; provided, however, that in no event shall
the number of officers exceed the lesser of (A) fifty
(50) employees; or (B) the greater of (I) three (3)
employees or (II) ten percent (10%) of the number of
Employees during the Plan Year, with any non-integer
being increased to the next integer. If for any year,
no officer of the Plan Sponsor meets the requirements
of this Subparagraph (1), the highest paid officer of
the Plan Sponsor for the Plan Year shall be
considered an officer for purposes of this
Subparagraph (1);
(2) an owner of more than five percent
(5%) of the outstanding stock of the Plan Sponsor or
an Affiliate or more than five percent (5%) of the
total combined voting power of all stock of the Plan
Sponsor or an Affiliate; or
(3) an owner of more than one percent
(1%) of the outstanding stock of the Plan Sponsor or
an Affiliate or more than one percent (1%) of the
total combined voting power of all stock of the Plan
Sponsor or an Affiliate, and who in such Plan Year
had Annual Compensation from the Plan Sponsor and all
of its Affiliates of more than $150,000.
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For purposes of determining ownership under
Subsections (2) and (3) above, the rules set forth in Code
Section 318(a)(2) shall be applied as follows (i) in the case
of any Plan Sponsor or Affiliate which is a corporation, by
substituting five percent (5%) for fifty percent (50%) and,
(ii) in the case of any Plan Sponsor or Affiliate which is not
a corporation, ownership shall be determined in accordance
with Treasury Regulations which shall be based on principles
similar to the principles of Code Section 318 (modified as
described in Clause (i) above).
Employees other than Key Employees are sometimes
referred to in this Appendix C as `non-key employees.'"
26. By deleting the existing Subsection (d)(1)(A)(i) of Section 1
of Appendix C and substituting the following:
"(i) the present value of the cumulative
Accrued Benefits (excluding catch-up contributions as
described in Code Section 414(v) made in the Plan
Year in which the determination is being made) under
the Plan for all Key Employees exceeds sixty percent
(60%) of the present value of the cumulative Accrued
Benefits (excluding catch-up contributions as
described in Code Section 414(v) for the current Plan
Year) under the Plan for all Members; and"
27. By deleting the existing Subsection (d)(3)(C) of Section 1 of
Appendix C and substituting the following:
"(C) For purposes of determining the present
value of the cumulative accrued benefit under a plan for any
Member in accordance with this Subsection, the present value
shall be increased by the aggregate distributions made with
respect to the Member (including distributions paid on account
of death to the extent they do not exceed the present value of
the cumulative accrued benefit existing immediately prior to
death) under each plan being considered, and under any
terminated plan which if it had not been terminated would have
been in a Required Aggregation Group with the Plan, during the
one-year period ending on the Determination Date or the last
day of the Plan Year that falls within the calendar year in
which the Determination Date falls. In the case of a
distribution made with respect to a Member made for a reason
other than separation from service, death, or disability, this
provision shall applied by substituting a five-year period for
the one-year period."
28. By deleting the existing Subsection (d)(3)(F) of Section 1 of
Appendix C and substituting the following:
"(F) For purposes of this Paragraph (3), if any
Employee has not performed any service for a Plan Sponsor or
an Affiliate maintaining the Plan during the one-year period
ending on the Determination Date, any accrued benefit for that
Employee shall not be taken into account."
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29. By deleting the existing header language of Subsection (b) of
Section 2 of Appendix C and substituting the following:
"(b) The percentage referred to in Subsection (a)
of this Section for any Plan Year shall not exceed the
percentage at which allocations are made or are required to be
made under the Plan for the Plan Year for the Key Employee for
whom the percentage is highest for a Plan Year. For purposes
of this Paragraph, an allocation to the Account of a Key
Employee resulting from any Plan Sponsor contribution
attributable to a salary reduction or similar agreement shall
be taken into account but allocations of catch-up
contributions as described in Code Section 414(v) shall not be
taken into account."
30. Effective as of January 1, 2003, by adding the following
Appendix E:
"APPENDIX E
MINIMUM DISTRIBUTION REQUIREMENTS
SECTION 1
GENERAL RULES
(a) Effective Date and Precedence. The provisions of this
Appendix E will apply for purposes of determining required minimum
distributions for calendar years beginning with the 2003 calendar year.
The requirements of this Appendix E will take precedence over any
inconsistent provisions of the Plan.
(b) Requirements of Treasury Regulations Incorporated.
All distributions required under this Section will be determined and
made in accordance with the Treasury Regulations under Code Section
401(a)(9).
(c) TEFRA Section 242(b)(2) Elections. Notwithstanding
the other provisions of this Appendix E, distributions may be made
under a designation made before January 1, 1984, in accordance with
Section 242(b)(2) of the Tax Equity and Fiscal Responsibility Act
(TEFRA) and the provisions of the Plan that relate to Section 242(b)(2)
of TEFRA.
SECTION 2
TIME AND MANNER OF DISTRIBUTION
(a) Required Beginning Date. The Member's entire interest
will be distributed, or begin to be distributed, to the Member no later
than the Member's Required Beginning Date.
(b) Death of Member Before Distributions Begin. If the
Member dies before distributions begin, the Member's entire interest
will be distributed, or begin to be distributed, no later than as
follows:
(1) If the Member's surviving spouse is the
Member's sole Designated Beneficiary, then, distributions to
the surviving spouse will begin by December
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31 of the calendar year immediately following the calendar
year in which the Member died, or by December 31 of the
calendar year in which the Member would have attained age
70-1/2, if later.
(2) If the Member's surviving spouse is not the
Member's sole Designated Beneficiary, then, distributions to
the Designated Beneficiary will begin by December 31 of the
calendar year immediately following the calendar year in which
the Member died.
(3) If there is no Designated Beneficiary as of
September 30 of the year following the year of the Member's
death, the Member's entire interest will be distributed by
December 31 of the calendar year containing the fifth
anniversary of the Member's death.
(4) If the Member's surviving spouse is the
Member's sole Designated Beneficiary and the surviving spouse
dies after the Member but before distributions to the
surviving spouse begin, this Section 2(b), other than Section
2(b)(1) of this Appendix E, will apply as if the surviving
spouse were the Member.
For purposes of this Section 2(b) and Section 4 of this
Appendix E, unless Section 2(b)(4) of this Appendix E applies,
distributions are considered to begin on the Member's Required
Beginning Date. If Section 2(b) of this Appendix E applies,
distributions are considered to begin on the date distributions are
required to begin to the surviving spouse under Section 2(b)(1) of this
Appendix E. If distributions under an annuity purchased from an
insurance company irrevocably commence to the Member before the
Member's Required Beginning Date (or to the Member's surviving spouse
before the date distributions are required to begin to the surviving
spouse under Section 2(b)(1)), the date distributions are considered to
begin is the date distributions actually commence.
(c) Forms of Distribution. Unless the Member's interest
is distributed in the form of an annuity purchased from an insurance
company or in a single sum on or before the Required Beginning Date, as
of the first Distribution Calendar Year, distributions will be made in
accordance with Sections 3 and 4 of this Appendix E. If the Member's
interest is distributed in the form of an annuity purchased from an
insurance company, distributions thereunder will be made in accordance
with the requirements of Code Section 401(a)(9) and the regulations
issued thereunder.
SECTION 3
REQUIRED MINIMUM DISTRIBUTIONS DURING MEMBER'S LIFETIME
(a) Amount of Required Minimum Distribution For Each
Distribution Calendar Year. During the Member's lifetime, the minimum
amount that will be distributed for each Distribution Calendar Year is
the lesser of:
(1) the quotient obtained by dividing the
Member's Account Balance by the distribution period in the
Uniform Lifetime Table set forth in Section
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1.401(a)(9)-9 of the Treasury Regulations, using the Member's
age as of the Member's birthday in the Distribution Calendar
Year; or
(2) if the Member's sole Designated Beneficiary
for the Distribution Calendar Year is the Member's spouse, the
quotient obtained by dividing the Member's Account Balance by
the number in the Joint and Last Survivor Table set forth in
Section 1.401(a)(9)-9 of the Treasury Regulations, using the
Member's and spouse's attained ages as of the Member's and
spouse's birthdays in the Distribution Calendar Year.
(b) Lifetime Required Minimum Distributions Continue
Through Year of Member's Death. Required minimum distributions will be
determined under this Section 3 beginning with the first Distribution
Calendar Year and up to and including the Distribution Calendar Year
that includes the Member's date of death.
SECTION 4
REQUIRED MINIMUM DISTRIBUTIONS AFTER MEMBER'S DEATH
(a) Death On or After Date Distributions Begin.
(1) Member Survived by Designated Beneficiary.
If the Member dies on or after the date distributions begin
and there is a Designated Beneficiary, the minimum amount that
will be distributed for each Distribution Calendar Year after
the year of the Member's death is the quotient obtained by
dividing the Member's Account Balance by the longer of the
remaining Life Expectancy of the Member or the remaining Life
Expectancy of the Member's Designated Beneficiary, determined
as follows:
(i) The Member's remaining Life
Expectancy is calculated using the age of the Member
in the year of death, reduced by one for each
subsequent year.
(ii) If the Member's surviving spouse is
the Member's sole Designated Beneficiary, the
remaining Life Expectancy of the surviving spouse is
calculated for each Distribution Calendar Year after
the year of the Member's death using the surviving
spouse's age as of the spouse's birthday in that
year. For Distribution Calendar Years after the year
of the surviving spouse's death, the remaining Life
Expectancy of the surviving spouse is calculated
using the age of the surviving spouse as of the
spouse's birthday in the calendar year of the
spouse's death, reduced by one for each subsequent
calendar year.
(iii) If the Member's surviving spouse is
not the Member's sole Designated Beneficiary, the
Designated Beneficiary's remaining Life Expectancy is
calculated using the age of the Designated
Beneficiary in the year following the year of the
Member's death, reduced by one for each subsequent
year.
15
(2) No Designated Beneficiary. If the Member
dies on or after the date distributions begin and there is no
Designated Beneficiary as of September 30 of the year after
the year of the Member's death, the minimum amount that will
be distributed for each Distribution Calendar Year after the
year of the Member's death is the quotient obtained by
dividing the Member's Account Balance by the Member's
remaining Life Expectancy calculated using the age of the
Member in the year of death, reduced by one for each
subsequent year.
(b) Death Before Date Distributions Begin.
(1) Member Survived by Designated Beneficiary.
If the Member dies before the date distributions begin and
there is a Designated Beneficiary, the minimum amount that
will be distributed for each Distribution Calendar Year after
the year of the Member's death is the quotient obtained by
dividing the Member's Account Balance by the remaining Life
Expectancy of the Member's Designated Beneficiary, determined
as provided in Section 4(a).
(2) No Designated Beneficiary. If the Member
dies before the date distributions begin and there is no
Designated Beneficiary as of September 30 of the year
following the year of the Member's death, distribution of the
Member's entire interest will be completed by December 31 of
the calendar year containing the fifth anniversary of the
Member's death.
(3) Death of Surviving Spouse Before
Distributions to Surviving Spouse Are Required to Begin. If
the Member dies before the date distributions begin, the
Member's surviving spouse is the Member's sole Designated
Beneficiary, and the surviving spouse dies before
distributions are required to begin to the surviving spouse
under Section 2(b)(1) of this Appendix E, this Section (b)
will apply as if the surviving spouse were the Member.
SECTION 5
DEFINITIONS
As used in this Appendix E, the following words and phrases shall have
the meaning set forth below:
(a) Designated Beneficiary. The individual who is
designated as the Beneficiary under Section 1.6 of the Plan and is the
designated Beneficiary under Section 401(a)(9) of the Internal Revenue
Code and Section 1.401(a)(9)-1, Q&A-4, of the Treasury Regulations.
(b) Distribution Calendar Year. A calendar year for which
a minimum distribution is required. For distributions beginning before
the Member's death, the first distribution calendar year is the
calendar year immediately preceding the calendar year which contains
the Member's Required Beginning Date. For distributions beginning after
the Member's death, the first distribution calendar year is the
calendar year in which distributions are required to begin under
Section 2(b). The required minimum distribution for the Member's first
distribution calendar year will be made on or before the Member's
16
Required Beginning Date. The required minimum distribution for other
distribution calendar years, including the required minimum
distribution for the distribution calendar year in which the Member's
Required Beginning Date occurs, will be made on or before December 31
of that distribution calendar year.
(c) Life Expectancy. Life expectancy as computed by use
of the Single Life Table in Section 1.401(a)(9)-9 of the Treasury
Regulations.
(d) Member's Account Balance. The Account balance as of
the last Valuation Date in the calendar year immediately preceding the
Distribution Calendar Year ("Valuation Calendar Year") increased by the
amount of any contributions made and allocated or forfeitures allocated
to the Account balance as of dates in the Valuation Calendar Year after
the Valuation Date and decreased by distributions made in the Valuation
Calendar Year after the Valuation Date. The Account balance for the
Valuation Calendar Year includes any amounts rolled over or transferred
to the Plan either in the Valuation Calendar Year or in the
Distribution Calendar Year if distributed or transferred in the
Valuation Calendar Year.
(e) Required Beginning Date. The date specified in
Section 9.5(c) of the Plan."
Except as specifically amended hereby, the Plan shall remain in full
force and effect prior to this Fifth Amendment.
IN WITNESS WHEREOF, the Primary Sponsor has caused this Fifth Amendment
to be executed on the day and year first above written.
PER-SE TECHNOLOGIES, INC.
By: /s/ PHILIP M. PEAD
--------------------------------------
Philip M. Pead
President and Chief Executive Officer
[CORPORATE SEAL]
ATTEST:
By: /s/ PAUL J. QUINER
------------------------------
Paul J. Quiner
Corporate Secretary
17