Exhibit 4(c)
RIGHTCHOICE MANAGED CARE, INC.
AMENDED AND RESTATED NONEMPLOYEE DIRECTORS'
NONQUALIFIED DEFERRED COMPENSATION PLAN
WHEREAS, RightCHOICE Managed Care, Inc. ("RightCHOICE")
maintains the RightCHOICE Managed Care, Inc. Nonemployee
Directors' Nonqualified Deferred Compensation Plan (the "Plan");
and
WHEREAS, RightCHOICE previously adopted an INVESCO prototype
plan document for the Plan and now desires to amend and restate
the Plan in its entirety, effective July 1, 2000;
NOW, THEREFORE, in the exercise of the power provided for in
Section 7.1 of the Plan, RightCHOICE hereby amends and restates
the Plan in its entirety, effective July 1, 2000, so that it will
read as follows:
SECTION 1
DEFINITIONS
The following terms when used in this Plan shall have the
meanings hereinafter indicated in this Section 1:
1.1. Administrator - shall mean a committee appointed by the
Board to administer the Plan.
1.2. Beneficiary - shall mean the person or persons
(concurrently, contingently or successively), including a trust,
designated as such in accordance with Section 5 of this Plan.
1.3. Board - shall mean the Board of Directors of RightCHOICE
Managed Care, Inc.
1.4. Change in Control - shall mean execution of an agreement
providing for "a change in the ownership" of RightCHOICE, "a
change in the effective control" of RightCHOICE, or "a change in
the ownership of a substantial portion of the assets" of
RightCHOICE, as such terms are defined in the Proposed Treasury
Regulations under Code Section 280G.
1.5. Code - shall mean the Internal Revenue Code of 1986, as
amended, and as it may be amended hereafter from time to time.
1.6. Deferral Election - shall mean the election made by a
Participant pursuant to the provisions of Section 2.1 hereof,
such election consisting of the following two elements: (i) the
Participant's election to participate in the Plan and to defer
Retainer Fees and/or Meeting Fees; and (ii) the Participant's
election as to the form of distribution of his Deferred Fees from
the Plan.
1.7. Deferred Fees - shall mean those Retainer Fees and/or
Meeting Fees with respect to the payment of which a Participant
elects to defer until such time as he incurs a Termination of
Service, all as more particularly set forth in Section 2.1
hereof.
1.8. Fee Date - shall mean the date that a Retainer Fee or
Meeting Fee otherwise would have been payable to a Participant if
he had not elected to become a Participant in this Plan.
1.9. Meeting Fees - shall mean all compensation (excluding
Retainer Fees) paid by RightCHOICE (or any Subsidiary) to a
Nonemployee Director for his attendance at Board meetings and
Board committee meetings, meetings of the Board of Directors of a
Subsidiary or Committee meetings of the Board of Directors of a
Subsidiary. Meeting fees are divided into two subparagraphs;
Board Meeting Fees and Committee Meeting fees.
1.10. Nonemployee Director - shall mean any person serving on
the Board of RightCHOICE or the Board of Directors of a
Subsidiary who is not an employee of RightCHOICE or of any
Subsidiary.
1.11. Participant - shall mean a Nonemployee Director who
elects to participate in the Plan pursuant to the provisions of
Section 2.1 hereof.
1.12. Plan - shall mean the RightCHOICE Managed Care, Inc.
Nonemployee Directors' Nonqualified Deferred Compensation Plan.
1.13. RightCHOICE - shall mean RightCHOICE Managed Care, Inc.
1.14. Retainer Fees - shall mean the annual compensation paid
by RightCHOICE (or any Subsidiary) to a Nonemployee Director for
his service as a member of the Board or as a member of the Board
of Directors of a Subsidiary.
1.15. Stock - shall mean RightCHOICE Managed Care, Inc.
Class A Common Stock or any class of Common Stock into which such
Class A Common Stock may be converted.
1.16. Subsidiary - shall mean any corporation in which
RightCHOICE owns 50% or more of the voting stock or the voting
power.
1.17. Termination of service - shall mean a Participant's
termination of service as a member of the Board of Directors of
RightCHOICE or the Board of Directors of a Subsidiary for
whatever reason, including by virtue of the Participant's
retirement, death or disability.
1.18. Valuation Date - shall mean each business day of the
Plan Year.
SECTION 2
DEFERRAL ELECTIONS
2.1. Election to Participate in the Plan/Deferral Election. Each
Nonemployee Director may elect to participate in the Plan by
executing and delivering to the Administrator a Deferral Election
on a form provided by the Administrator. On the Deferral
Election form, the Non-Employee Director shall indicate: (i) his
election to defer all of his Retainer Fees and/or all of his
Meeting Fees; and (ii) whether his Deferred Fees shall be payable
in the form of cash or in the form of Stock at such time as the
Participant (or his Beneficiary, as the case may be) is entitled
to a distribution of his Deferred Fees in accordance with the
provisions of Section 4 hereof.
2.2. Effective Date of Deferral Election. A Participant's
Deferral Election shall become effective as of the January 1 of
the calendar year following the calendar year in which the
Deferral Election is made.
2.3. Duration of Deferral Election. A Deferral Election shall
remain in effect for the calendar year with respect to which it
is initially made. A separate Deferral Election must be
completed for each Plan Year in which a Participant makes
deferrals under the Plan.
SECTION 3
OPERATION OF PLAN
3.1. Establishment of Accounts. Two bookkeeping accounts shall
be established under the Plan in the name of each Participant as
follows: (i) a Deferred Cash Account; and (ii) a Stock Unit
Account. These accounts are for bookkeeping entries only, and no
cash or Stock shall actually be allocated to any account
established or maintained in the name of any Participant under
the Plan.
In the event a Participant elects to receive his Deferred
Fees solely in cash, only his Cash Account shall be active.
3.2. Crediting Deferred Fees and Other Amounts to Accounts.
(A) Deferred Cash Account. If in the Participant's Deferral
Election, the Participant elects to receive his Deferred Fees
from the Plan in the form of cash, his Deferred Fees shall be
credited to his Deferred Cash Account on the last business day of
the month in which occurs the Fee Date with respect to each
Retainer Fee or Meeting Fee or as soon as practicable thereafter.
The Administrator will establish at least four
investment funds for the Plan. The amount in the Deferral
Cash Account of a Participant will be invested in such
funds, based on the investment preferences expressed by the
Participant.
A Participant's Deferral Cash Account shall be credited
with any gains or losses realized on the investments
comprising such Deferral Cash Account as of each Valuation
Date. A Participant' Account shall be charged with all
expenses incurred in connection with the investment and
reinvestment of the assets comprising any such Deferral Cash
Account.
(B) Stock Unit Account. If in the Participant's Deferral
Election, the Participant elects to receive his Deferred Fees
from the Plan in the form of Stock, his Deferred Fees shall be
converted into "Stock Units" and credited to his Stock Unit
Account as of the Fee Date with respect to each Retainer Fee or
Meeting Fee.
The number of Stock Units (including fractional shares
of Stock Units) credited to a Participant's Stock Unit
Account as of any applicable Fee Date shall be equal to the
quotient of (i) the amount of the Retainer Fee and/or
Meeting Fee that otherwise would have been payable on the
subject Fee Date, divided by (ii) the reported closing price
per share of Stock on the New York Stock Exchange as of the
subject Fee Date.
(C) Dividends and Stock Splits. Any cash dividend the
Participant would have received from time to time had he been the
owner of record with respect to the number of shares of Stock
equal to the number of Stock Units in his Stock Unit Account on
the date such dividends are awarded shall be credited to the
Participant's Deferred Cash Account and shall accrue gains or
losses in the manner set forth in Section 3.2(A) above.
In the event of a stock split or a stock dividend with
respect to the Stock, Stock Units (including fractional
shares of Stock Units) shall be credited to the
Participant's Stock Unit Account in an amount equal to the
number of shares of Stock (including fractional shares of
Stock) that the Participant would have received from time to
time had he been the owner of record of Stock equal to the
number of Stock Units in his Stock Unit Account on the date
such stock split or stock dividend is paid.
3.3. No Voting Rights. No Participant shall have any voting
rights with respect to any Stock Units in his Stock Unit Account.
SECTION 4
DISTRIBUTION OF ACCOUNTS
4.1. Distribution of Accounts Upon Termination of Service. In
the event a Participant incurs a Termination of Service, such
Participant (or his legal representative or Beneficiary, as the
case may be) shall be entitled to distribution of the balance of
the Participant's Account beginning in January of the calendar
year following the Participant's Termination of Service.
4.2. Manner of Payment of Deferred Cash Account Balance. A
Participant may elect to receive the value of his Deferred Cash
Account in one lump-sum payment or annual installment payments
over a period up to five (5) years, commencing January of the
calendar year following the Participant's Termination of Service.
If the Participant elections to receive a lump-sum payment, the
distribution will be in an amount equal to the value of the
Deferred Cash Account as of the Valuation Date immediately
preceding the date of distribution. If a Participant elects to
receive annual installments, the amount of each distribution will
be equal to the balance of the Participant's Deferred Cash
Account as of the Valuation date immediately preceding the
distribution date divided by the number of installments remaining
to be paid. Notwithstanding the preceding sentence, unless a
Change in Control has occurred, the Administrator may, in its
sole discretion, defer any distribution of the balance of the
Participant's Deferred Cash Account for up to 24 months or
distribute an amount equal to the balance of the Participant's
Deferred Cash Account in up to five annual installments.
The payment of any amounts deferred in accordance with the
preceding paragraph shall continue to be credited with gains or
losses as provided in Section 3.2(A) until the balance of the
Deferred Cash Account has been completely distributed. If the
Participant shall die before receiving the entire balance of his
Deferred Cash Account, such remaining balance shall be paid to
the Participant's Beneficiary.
4.3. Manner of Distribution of Stock Unit Account. A Participant
may elect to receive the balance of his stock Unit Account in
shares of Stock in a single distribution or in a series of
distributions over a period up to five (5) years; commencing
January of the calendar year following the Participant's
Termination of Service. If the Participant elects to receive a
lump-sum distribution the distribution will be RightCHOICE shares
of Stock commensurate in number with the number of Stock Units
credited to the Participant's Stock Unit Account as of the date
of the Participant's Termination of Service. If a Participant
elects to receive annual installments, the amount of each
distribution will be RightCHOICE shares of Stock commensurate in
number with the number of Stock Units credited to the
Participant's Stock Unit Account as of the date immediately
preceding the date of distribution divided by the number of
installments remaining to be paid. The Participant may only
receive full shares of Stock in any distribution of benefits from
the Stock Unit Account and the Company will pay in cash the value
of any fractional share of Stock held in the Participant's Stock
Unit Account as of the date of the final distribution from his
Stock Unit Account.
4.4. Source of Payment of Deferred Fees. RightCHOICE shall be
responsible for the payment of all benefits provided under the
Plan. RightCHOICE may establish one or more trusts, with such
trustees as the Board or the Administrator may approve, for the
purpose of providing for the payment of such benefits. Such
trust or trusts may be irrevocable, but the assets thereof shall
be subject to the claims of RightCHOICE's creditors in the event
of insolvency. To the extent any benefits provided under the
Plan are actually paid from any such trust, RightCHOICE shall
have no further obligation with respect thereto, but to the
extent not so paid, such benefits shall remain the obligation of
and shall be paid by RightCHOICE.
SECTION 5
BENEFICIARIES
5.1. The Participant shall file with the Administrator, on a
form provided by the Administrator designation of the Beneficiary
or Beneficiaries to whom any benefits payable hereunder shall be
paid in the event of the Participant's death prior to receiving
all Deferred Fees. Such designation may be revoked in writing by
the Participant at any time and a new Beneficiary may be
appointed in writing on the form provided by the Administrator
for such purpose. In the absence of such appointment, the
Beneficiary shall be such Participant's spouse, or if none, the
legal representative of the Participant's estate.
SECTION 6
ADMINISTRATION AND CLAIMS OF THE PLAN
6.1. Administrators Authority. The Administrator shall have the
responsibility and authority to control the operation and
administration of the Plan, and may construe the Plan, and its
constructions thereof and action thereon in good faith shall be
final and conclusive. The Administrator shall have full
authority, in its sole discretion, to interpret this Plan and
determine any and all matters whatsoever relating to the
administration of this Plan. The Administrator may correct any
defect or supply any omission or reconcile any inconsistency in
such manner and to such extent as it shall deem expedient to
carry the same into effect, and it shall be the sole and final
judge of such expediency. All actions of the Administrator shall
be made or result from uniform standards applied in a
nondiscriminatory manner with respect to all Nonemployee
Directors, Participants and Beneficiaries. The Administrator
shall not be liable for any action or determination taken or made
in good faith with respect to the Plan.
6.2. Denial of Benefit. Any Participant or Beneficiary who
believes that he is being denied a benefit provided under the
Plan may file a written request for such benefit with RightCHOICE
setting forth his claim. If the claim is denied, RightCHOICE
shall provide a written response to such Participant or
Beneficiary.
SECTION 7
AMENDMENT, TERMINATION OR MODIFICATION OF THE PLAN
7.1. Amendment, Termination and Modification. The Plan may be
amended or terminated by the Board at any time, provided that no
such action shall diminish or impair any right to compensation or
interest which shall have accrued hereunder to a Participant, or
Beneficiary as the case may be, prior to such amendment or
termination. Upon termination of the Plan, Participants will be
deemed to have voluntarily terminated their participation under
the Plan as of the date of such termination. Meeting Fees and
Retainer Fees shall prospectively cease to be deferred for the
then Plan Year and RightCHOICE will pay to each Participant the
value of each of the Participant's Accounts as soon as
practicable but no later than seven (7) days after the effective
date of the termination of the Plan.
7.2. Change in Control. If RightCHOICE incurs a Change in
Control, and following the closing of such event the succeeding
or continuing corporation is not obligated to, or does not agree
to, assume, discharge and continue the obligation of RightCHOICE
under this Plan, this Plan shall immediately terminate and all
amounts accrued hereunder shall be paid to the Participants or
their Beneficiaries, as the case may be, within seven (7) days
after such termination of the Plan.
SECTION 8
MISCELLANEOUS RIGHTS
8.1. No Contract of Employment. The adoption and maintenance of
the Plan shall not be deemed to be a contract of employment
between RightCHOICE and any Nonemployee Director. Nothing herein
contained shall be deemed to give to any Nonemployee Director the
right to be retained as a Nonemployee Director of RightCHOICE or
to interfere with the right of the stockholders of RightCHOICE to
discharge any Nonemployee Director at any time, nor shall it be
deemed to give RightCHOICE the right to require any Nonemployee
Director to continue to render services in such capacity, nor
shall it interfere with the Nonemployee Directors right to
terminate his services as such at any time.
8.2. Rights Under Plan Unsecured. Any rights accruing to a
Participant, or Beneficiary, as the case may be, under the Plan
shall be solely those of an unsecured general creditor of
RightCHOICE. Nothing contained in the Plan and no action taken
pursuant to the provisions hereof shall create or be construed to
create a trust of any kind, or a pledge, or a fiduciary
relationship between RightCHOICE or the Administrator and the
Participant or Beneficiary or any other person. Nothing herein
shall be construed to require RightCHOICE or the Administrator to
maintain any fund or segregate any amount for the benefit of any
Participant or Beneficiary. All amounts accrued under the Plan,
including earnings thereon, shall be payable from the general
assets of RightCHOICE.
8.3. Benefits Nonassignable. No right or interest of any
Participant under this Plan shall be subject to anticipation,
assignment, pledge, or charge, in whole or in part, either
directly or by operation of law or otherwise, including, but
without limitation, execution, levy garnishment, attachment,
pledge, bankruptcy or any other manner, but excluding devolution
by death or pursuant to a qualified domestic relations order, and
any attempt to anticipate, assign, pledge or charge any such
right or interest shall be void and no right or interest of any
Participant under this Plan shall be liable for, or subject to,
any obligation or liability or tort of such Participant.
8.4. Participant Incapacity. If any person entitled to a
distribution under the Plan is deemed by the Administrator to be
incapable of personally receiving and giving a valid receipt for
such payment, then, unless and until claim therefore shall have
been made by a duly appointed guardian or other legal
representative of such person, the Administrator may provide for
such payment or any part thereof to be made to any other person
or institution then contributing toward or providing for the care
and maintenance of such person. Any such distribution shall be a
payment for the account of such person and a discharge of
liability (to the extent of the distribution) of the
Administrator, RightCHOICE and the Plan therefor.
SECTION 9
TAX WITHHOLDING
9.1. The Participant shall be responsible for payment of any
taxes due with respect to amounts deferred pursuant to this Plan.
RightCHOICE shall have the right to deduct from a Participant's
Retainer Fees and Meeting Fees any taxes required by law to be
withheld with respect to such deferred amounts and shall have the
right to deduct in connection with all benefits payable under the
Plan any taxes required by law to be withheld and to require any
payments necessary to enable it to satisfy its withholding
obligations. Notwithstanding anything herein to the contrary, if
the Participant is entitled to receive Stock pursuant to this
Plan and RightCHOICE determines that it is required to withhold
any tax as a result, then RightCHOICE shall be under no
obligation to deliver such Stock to the Participant (or the
Participant's Beneficiary (s)) unless and until it shall have
received from the Participant (or the Participant's
Beneficiary(s)) an amount equal to the amount required to be
withheld. RightCHOICE shall, in its sole discretion, determine
whether it is required to withhold any tax and, if so required,
the amount of the required withholding. The Administrator shall
have the sole discretion to adopt procedures requiring the
Participant to tender Stock to satisfy RightCHOICE's withholding
obligation, if any, with respect to distributions of Stock
pursuant to this Plan.
SECTION 10
GOVERNING LAW AND EXPENSES
10.1. Gender. Wherever the context so requires, words in the
masculine include the feminine and words in the feminine include
the masculine and the definition of any term in the singular may
include the plural.
10.2. Expenses of Plan Administration. All expenses of
administering the Plan shall be paid by RightCHOICE except as
expressly provided herein to the contrary.
10.3. Governing Law. The Plan shall be construed,
administered and governed in all respects under and by the laws
of the State of Missouri, and is effective as of the date the
Plan is executed below.
IN WITNESS WHEREOF, RightCHOICE has caused this Amendment
and Restatement of the Plan to be adopted as of the 30th day
of November, 2000.
RightCHOICE Managed Care, Inc.
By: /s/ Angela F. Braly
Title: Executive Vice President,
General Counsel and Corporate
and Secretary
