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EXHIBIT 10.5
MEDAPHIS CORPORATION
NON-EMPLOYEE DIRECTOR DEFERRED STOCK CREDIT PLAN
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MEDAPHIS CORPORATION
NON-EMPLOYEE DIRECTOR DEFERRED STOCK CREDIT PLAN
MEDAPHIS CORPORATION, a Delaware corporation (the "Company"), hereby
adopts the Medaphis Corporation Non-Employee Director Deferred Stock Credit Plan
for the purpose of providing an incentive to certain of its directors to
encourage them to devote their abilities to the success of the Company's
business. It is intended that this purpose be achieved by extending to Eligible
Directors (as herein defined) of the Company long-term incentive for high levels
of performance through participation in this plan.
SECTION I
DEFINITIONS
Whenever used herein, the masculine pronoun shall be deemed to include
the feminine, and the singular to include the plural, unless the context clearly
indicates otherwise, and the following words and phrases shall, when used
herein, have the meanings set forth below:
A. "Account" means the bookkeeping accounts established and maintained
by the Plan Administrator to reflect a Member's interest under the Plan.
B. "Accrued Benefit" means the balance of a Member's Account.
C. "Beneficiary" means the person that a Member designated most
recently in writing to the Plan Administrator; provided, however, that if the
Member has failed to make a designation, no person designated is alive, no trust
has been established, or no successor Beneficiary has been designated who is
alive, the term Beneficiary means (a) the member's spouse or (b) if no spouse is
alive, the Member's surviving children, or (c) if no children are alive, the
Member's parent or parents, or (d) if no parent is alive, the legal
representative of the deceased Member's estate.
D. "Change in Capitalization" means any increase or reduction in the
number of shares of Company Stock, or any change (including, but not limited to,
a change in value) in the shares of Company Stock or exchange of shares of
Company Stock for a different number or kind of shares or other securities of
the Company, by reason of a stock dividend, stock split, combination or exchange
of shares, reclassification, recapitalization, merger, consolidation,
reorganization, or the distribution of property of the corporation (including
interests in subsidiaries) to shareholders of record pursuant to spin-offs,
split-ups, the issuance of warrants or other rights or debentures, or
extraordinary dividends, or otherwise.
E. "Board of Directors" means the Board of Directors of the Company.
F. "Code" means the Internal Revenue Code of 1986, as amended.
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G. "Company Stock" means the common stock, par value $.01 per share,
of the Company.
H. "Director" means a member of the Board of Directors.
I. "Effective Date" means November 19, 1997.
J. "Eligible Director" means any person who is not a common law
employee of the Company or any of its affiliates.
K. "Fair Market Value" 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 Company Stock 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 Plan Administrator in good faith.
L. "Member" means any Eligible Director or former Eligible Director
who has become a participant in the Plan, for so long as such director's
benefits hereunder have not been distributed.
M. "Plan" means the Medaphis Corporation Non-Employee Director
Deferred Stock Credit Plan.
N. "Plan Administrator" means the organization or person designated
by the Company to administer the Plan or, in the absence of any such
designation, the Company.
SECTION II.
ELIGIBILITY
An Eligible Director will become a Member after completing a Plan
election form (in the form prescribed by the Plan Administrator) and returning
this form to the Plan Administrator.
SECTION III.
DEFERRAL ELECTIONS
3.1 A Member who is an Eligible Director may elect to defer under the
Plan a whole number percentage, in 25 percent increments, of the committee,
meeting and annual retainer fees otherwise payable to him during the Member's
current term as a Director. The deferrals under this Section 3.1 will be
computed by reference to the percentage election specified on the Member's
completed election form.
3.2 (a) All elections are effective as of the first day of the
Member's current term as a Director provided the Member has completed
an election form prior to the start of such term. Once made, a Member
cannot modify his elections during the current term.
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(b) Notwithstanding the foregoing Subsection (a), for initial
elections under the Plan effective as of the Effective Date, all
elections to participate will be effective as of the Effective Date,
provided the Member's election form has been completed and returned to
the Plan Administrator within 30 days following the Effective Date.
(c) Notwithstanding the foregoing subsection (a), elections for a
newly elected or appointed Director may be returned to the Plan
Administrator at any time prior to the date that is 30 days after the
date on which such Director's term begins. Any such election shall be
effective as of the start of such newly elected or appointed Director's
term.
(d) Notwithstanding the foregoing subsection (a), elections for a
Director that becomes an Eligible Director by virtue of such Director
ceasing to be a common law employee of the Company may be returned to
the Plan Administrator at any time prior to the date that is 30 days
after the date on which such Director ceases to be a common law
employee of the Company. Any such election shall be effective as of the
first day such Director becomes an Eligible Director and becomes
entitled to any committee, meeting or annual retainer fees.
(e) Elections to participate in the Plan are effective for current term
during which an electing Member serves as a Director. In the event that
the Member is elected or appointed to an additional term as Director
and such Member wishes to participate in the Plan in such new term, the
Director must, in accordance with Subsection (a), complete a new
election form and return it to the Plan Administrator prior to the
start of the Director's new term.
SECTION IV.
CREDITING ACCOUNTS
4.1 The Company will credit amounts deferred under Plan Section 3 to
the Member's Account as of the date the related committee, meeting or retainer
fees are otherwise payable by the Company to the Member. Each Member's Account
will be credited with a hypothetical number of shares (and fractional shares) of
Company Stock equal to the quotient obtained by dividing (i) the product of the
amount of any committee, meeting or retainer fees otherwise payable by the
Company to such Member times the electing Member's percentage deferral reflected
on such Member's election form, by (ii) the Fair Market Value of a share of
Company Stock as of the first business day of the month that includes the date
on which such fees are otherwise payable.
4.2 In the event of a Change in Capitalization, the Plan
Administrator will adjust the number and kind of shares of Company Stock
hypothetically credited to a Member's Account under Section 4.1 in the same
manner as a share of Common Stock is adjusted. In the event that the Change of
Capitalization involves the issuance of cash, securities or property to the
holders
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of Common 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
Common Stock will be credited to each Member's Account for each hypothetical
share of Common Stock held in the Member's Account as of the record date for
such distribution. All such amounts shall be hypothetically invested in
additional shares of Common Stock as of the date of such distribution.
SECTION V
DEATH BENEFITS
5.1 Upon the death of a Member who dies prior to the date on which he
is entitled to the commencement of payments of his Account, the Member's
Beneficiary shall be entitled to the full value of the Member's Account in a
lump sum in cash.
5.2 Upon the death of a Member who is no longer a Director, but prior
to the complete payment of his Account, the Member's Beneficiary shall be
entitled to receive the entire unpaid portion of the Member's Account in a lump
sum in cash.
5.3 If, subsequent to the death of a Member, the Member's Beneficiary
dies while entitled to receive benefits under the Plan, the successor
Beneficiary, if any, or the Beneficiary listed under Subsection (a), (b) or (c)
of the Plan Section containing the definition of the term "Beneficiary" shall
generally be entitled to receive benefits under the Plan. However, if the
deceased Beneficiary was the Member's spouse at the time of the Member's death,
or if no successor Beneficiary shall have been designated by the Member and be
alive and no Beneficiary listed under Subsection (a), (b) or (c) of the Plan
Section containing the definition of the term "Beneficiary" shall be alive, the
Member's unpaid Accrued Benefit shall be paid to the personal representative of
the deceased Beneficiary's estate.
5.4 Any benefit payable under this Section shall be paid in accordance
with and subject to the provisions of Plan Section 5 after receipt by the Plan
Administrator of notice of the death of the Member.
SECTION VI
PAYMENT OF BENEFITS
6.1 As soon as practical after a Member's ceasing to a Director, the
value of such Member's Accrued Benefit will be distributed in accordance with
this Section VI.
6.2 Payment of a Member's Accrued Benefit will be made in one of the
following forms, as elected by the Member in accordance with the provisions of
Section 6.2 hereof:
(a) one lump sum payment in cash equal to the number of shares of
Company Stock that has been credited to such Member's Account
multiplied by the Fair Market
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Value of a share of Company Stock determined as of the first business
day of the month in which such distribution is to be made; or
(b) ten (10) annual installment payments, with the first such
payment being made as soon as reasonably practical following the date
the Member ceases to be a Director. The amount of each installment
payment made to a Member shall be equal to the product of (i) (1) the
number of hypothetical shares of Company Stock credited to the Member's
Account as of the first business day of the month in which the
installment payment is being made, divided by (2) the number of
installment payments remaining to be made to such Member, times (ii)
the Fair Market Value of one share of Company Stock as of the first
business day of the month in which an installment payment is made. The
number of shares of Company Stock held in a Member's Account will be
reduced by the number of shares determined under clause (i) of the
immediately preceding sentence.
6.3 A Member shall elect one of the forms of payment set forth in
Section 6.2 at the time of his initial enrollment in the Plan. Any such election
may be changed by the Director, provided, that no such change may be effective
prior to the date which is one (1) year following the date that the Member
delivers such change to the Plan Administrator in the form and manner prescribed
by the Plan Administrator.
SECTION VII
ADMINISTRATION OF THE PLAN
7.1 Operation of the Plan Administrator. The Company shall be the Plan
Administrator, unless it appoints another Plan Administrator. If an organization
is appointed to serve as the Plan Administrator, then the Plan Administrator may
designate in writing a person who may act on behalf of the Plan Administrator.
The Company shall have the right to remove the Plan Administrator at any time by
notice in writing. The Plan Administrator may resign at any time by written
notice or resignation to the Company. Upon removal or resignation, or in the
event of the dissolution of the Plan Administrator, the Company shall appoint a
successor.
7.2 Duties of the Plan Administrator.
(a) The Plan Administrator shall perform any act which the Plan
authorizes or requires of the Plan Administrator by action taken in
compliance with the Plan and may designate in writing other persons to
carry out its duties under the Plan. The Plan Administrator may employ
persons to render advice with regard to any of the Plan Administrator's
duties.
(b) The Plan Administrator shall from time to time establish
rules, not contrary to the provisions of the Plan, for the
administration of the Plan and the transaction of its business. All
elections and designations under the Plan by a Member or Beneficiary
shall be made on forms prescribed by the Plan Administrator. The Plan
Administrator shall
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have discretionary authority to construe the terms of the Plan and
shall determine all questions arising in the administration,
interpretation and application of the Plan, including, but not limited
to, those concerning eligibility for benefits and it shall not act so
as to discriminate in favor of any person. All determinations of the
Plan Administrator shall be conclusive and binding on all Members and
Beneficiaries, subject to the provisions of the Plan and subject to
applicable law.
(c) The statement of specific duties for a Plan Administrator in
this Section is not in derogation of any other duties which a Plan
Administrator has under the provisions of the Plan or under applicable
law.
7.3 Action under the Plan. Any action to be taken by the Company shall
be taken by resolution or written direction duly adopted by its board of
directors or appropriate governing body, as the case may be; provided, however,
that by such resolution or written direction, the board of directors or
appropriate governing body, as the case may be, may delegate to any officer or
other appropriate person of the Company the authority to take any such actions
as may be specified in such resolution or written direction, other than the
power to amend, modify or terminate the Plan or to determine the basis of any
payment obligations of the Company.
SECTION VIII
LIMITATION OF ASSIGNMENT, PAYMENTS TO LEGALLY
INCOMPETENT DISTRIBUTEE AND UNCLAIMED PAYMENTS
8.1 No benefit which shall be payable under the Plan to any person
shall be subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance or charge, and any attempt to anticipate,
alienate, sell, transfer, assign, pledge, encumber or charge the same shall be
void; and no such benefit shall in any manner be liable for, or subject to, the
debts, contracts, liabilities, engagements or torts of any person, nor shall it
be subject to attachment or legal process for, or against, such person, and the
same shall not be recognized under the Plan, except to such extent as may be
required by law.
8.2 If any person who shall be entitled to any benefit under the Plan
shall become bankrupt or shall attempt to anticipate, alienate, sell, transfer,
assign, pledge, encumber or charge such benefit under the Plan, then the payment
of any such benefit in the event a Member or Beneficiary is entitled to payment
shall, in the discretion of the Plan Administrator, cease and terminate and in
that event the Plan Administrator shall apply the same for the benefit of such
person, his spouse, children, other dependents or any of them in such manner and
in such proportion as the Plan Administrator shall determine.
8.3 Whenever any benefit which shall be payable under the Plan is to
be paid to or for the benefit of any person who is then a minor or determined to
be incompetent by qualified medical advice, the Plan Administrator need not
require the appointment of a guardian or custodian, but shall be authorized to
cause the same to be paid over to the person having custody
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of such minor or incompetent, or to cause the same to be paid to such minor or
incompetent without the intervention of a guardian or custodian, or to cause the
same to be paid to a legal guardian or custodian of such minor or incompetent if
one has been appointed or to cause the same to be used for the benefit of such
minor or incompetent.
8.4 Whenever the Plan Administrator 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 Plan Administrator may direct that the payment and any remaining
payments otherwise due to the Member be cancelled on the records of the Plan,
except that in the event the Member later notifies the Plan Administrator of his
whereabouts and requests the payments due to him under the Plan, the Company
shall re-credit the Member's account and provide for payment of the re-credited
amount to the Member as soon as administratively feasible.
SECTION IX
LIMITATION OF RIGHTS
Membership in the Plan shall not give any Eligible Director any right
or claim except to the extent that such right is specifically fixed under the
terms of the Plan.
SECTION X
AMENDMENT TO OR TERMINATION OF THE PLAN
The Company reserves the right at any time to modify or amend or
terminate the Plan. No such modifications or amendments shall have the effect of
retroactively changing or depriving Members or Beneficiaries of benefits already
accrued under the Plan.
SECTION XI
MISCELLANEOUS
11.1 All payments provided under the Plan shall be paid from the
Company's general assets and no separate fund shall be established to secure
payment. 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 Member or
Beneficiary, such payment will be in satisfaction of the Company's obligations
hereunder.
11.2 The Company has discretionary authority to interpret the
provisions of this Agreement and all such determinations shall be final and
binding.
11.3 To the extent not preempted by applicable federal law, the Plan
shall be governed by and construed in accordance with the laws of the State of
Georgia.
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IN WITNESS WHEREOF, the Company has executed this document effective as
of the 19th day of November, 1997.
MEDAPHIS CORPORATION
By:/s/ David E. McDowell
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David E. McDowell
Chairman and Chief Executive Officer
[CORPORATE SEAL]
ATTEST:
By:/s/ Randolph L. M. Hutto
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Randolph L. M. Hutto
Secretary
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