Exhibit 4.4
Adoption Agreement
This ADOPTION AGREEMENT ("Adoption Agreement"),
effective as provided herein, is made between RightCHOICE
Managed Care, Inc., incorporated in the State of Delaware,
("Employer") and the Blue Cross and Blue Shield
Association, an Illinois not-for-profit corporation
("Association").
WITNESSETH:
WHEREAS, the Association sponsors the Tax-Favored
Savings Program ("Program") for the Association and for
those corporations: (1) which are approved or licensed as a
Blue Cross Plan or Blue Shield Plan; (2) which are wholly
owned or controlled by a Blue Cross Plan, a Blue Shield
Plan, or the Association; (3) which are jointly owned or
controlled by a group of corporations consisting of Blue
Cross Plans, Blue Shield Plans, and/or the Association; or
(4) which are specifically approved by the National
Employee Benefits Committee for participation in the
Program (such eligible employers being referred to herein
as "Plans"), and each Plan may adopt a version of the
Program for its employees;
WHEREAS, the Program is administered by the National
Employee Benefits Committee (the "Committee"), a standing
committee of the Association's board of directors;
WHEREAS, under a Master Trust Agreement dated June 17,
2000, as amended from time to time (the "Master Trust
Agreement"), the Committee has engaged Fidelity Management
Trust Company (the "Trustee") to serve as trustee for each
Program adopted by a Plan;
WHEREAS, the Employer qualifies as a Plan and wishes to
(1) adopt a version of the Program for its employees, (2)
establish a trust with the Trustee to hold money and other
property on behalf of the Employer's Program, and (3)
arrange for the provision of services to the Employer's
Program;
NOW, THEREFORE, in consideration of the premises, it is
mutually agreed as follows:
1. Adoption of Program; Election of Program Provisions
Exhibit A to this Adoption Agreement provides for the
Employer's adoption of the Program and sets forth the
Employer's elections with respect to the provisions of the
Program that shall be applicable to the Employer's Program.
A copy of the Program is attached hereto as Exhibit B.
If this box [x] is checked, Exhibit A to this Adoption
Agreement provides for certain transition provisions,
which are attached as Exhibit C.
If this box [x] is checked, the Employer is amending and
restating the Employer's Program as further described
by Exhibit A.
2. Adoption of Trust
As further provided by Exhibit D to this Adoption
Agreement, the Employer hereby establishes a trust with the
Trustee for the Employer's Program ("Trust") under the
terms and conditions of the Master Trust Agreement. Such
Trust shall be effective as of the date on which the
Trustee accepts the Trust for the Employer's Program by its
acknowledgement on Exhibit D.
If this box [x] is checked, Exhibit D to this Adoption
Agreement provides for certain amendments to the
Master Trust Agreement, which shall apply to the Trust
maintained for the Employer's Program and are attached
as Exhibit E.
3. Investment Elections
Exhibit F to this Adoption Agreement, as amended from
time to time, sets forth the investments to be offered to
Participants under the Employer's Program.
4. Administrative Services Agreement
The Employer hereby engages the Association, under
direction by the Committee, to provide administrative and
other services to the Employer's Program on the terms and
conditions set forth in Exhibit G to this Adoption
Agreement.
5. Allocation of Responsibility Between the Employer and
Committee
If this box [ ] is checked, the Committee and the
Employer agree to the allocation of certain
responsibilities of the Committee to the Employer, in
accordance with Section 11.2 of the Program, as amended.
The allocation of responsibilities to the Employer is set
forth in Exhibit H to this Adoption Agreement.
6. Indemnification
The Employer, on its own behalf and on behalf of the
Employer's Program, agrees to indemnify the Committee and
the Association in accordance with Section 11.4 of the
Program, as amended.
7. Definitions
Capitalized terms used in this Adoption Agreement
shall have the same meaning as is given those terms under
the Program.
8. Governing Law
This Adoption Agreement shall be construed according
to the laws of the State of Illinois to the extent that
State law has not been preempted by federal law.
9. Effective Dates
The effective date of this Adoption Agreement
("Adoption Agreement Effective Date") is the date as of
which the Employer signs this Adoption Agreement, as set
forth below. [The Adoption Agreement Effective Date must
be on or before the Trust Effective Date established by
Exhibit D.]
The Effective Date of this Program ("Program Effective
Date") is June 1, 1987. [The Program Effective Date is the
date the Employer first adopts the Program. The Program
Effective Date is the same as the Adoption Agreement
Effective Date, unless this is an amendment and restatement
of the Employer's Program.]
The effective date of the Trust ("Trust Effective
Date") is June 30, 2000.
[Identify the Trust Effective Date established on Exhibit
D.]
IN WITNESS WHEREOF, the parties hereto have caused
this Adoption Agreement be executed by their respective
officers thereunto duly authorized and their corporate
seals to be affixed this 20 day of December, 2000.
RightCHOICE Managed Care, Inc.
("Employer")
Attest:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇ ▇ ▇▇▇▇▇▇
▇▇. Benefits Admin. VP HR
Title Title
Blue Cross and Blue Shield
Association ("Association")
Attest:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Employee Benefits Executive Director,
Counsel National Employee Benefits
Administration
Title Title
[Seal]
EXHIBITS
A Adoption of Program and Election of Program Provisions
B Program Document
C Transition Amendments
D Adoption of Trust
E Trust Amendments
F Investment Options
G Administrative Services Agreement
H [Reserved]
Exhibit A : Adoption of Program and Election of Program Provisions
Employer: RightCHOICE Managed Care, Inc.
Program Effective Date: June 1, 1987
Adoption Agreement
Effective Date: _____________________________
Trust Effective Date
(see Exhibit D): June 30, 2000
Effective Date of
Program Elections: November 30, 2000
1. Adoption of Program; Effective Date of Program Elections
The Employer hereby adopts the Program, as amended, as of the
Program Effective Date set forth above, subject to the terms and
conditions of this Exhibit A.
If this box [x] is checked, the Employer is amending and restating
the Employer's Program as of the Adoption Agreement Effective
Date set forth above, and this amendment and restatement is
effective only with respect to Participants who are Employees
on or after the Adoption Agreement Effective Date (except to
the extent the context of a Program provision indicates that it
is applicable to a Participant who is not an Employee on or
after such date).
The Employer's elections with respect to the provisions of the
Program, as amended, which are set forth in Paragraph 3 through 8 of
this Exhibit A shall be effective as of the Effective Date of
Program Elections set forth above.*
*Unless this is an amendment and restatement of the Employer's
Program, the Effective Date of Program Elections must be the
Program Effective Date.
2. Transition Provisions
If this box [x] is checked, Exhibit C to the Adoption Agreement
includes transition provisions in accordance with Section 12.1 of
the Program, as amended. The following transition provisions
included at Exhibit C are effective as follows:
Exhibit C-I is effective as of July 1, 2000.
Exhibit C-II is effective as of the Effective Date of Program
Elections, unless otherwise set forth therein).
Other (effective as of the Effective Date of Program Elections,
unless otherwise set forth therein):
Exhibit C-III
Exhibit C-IV
All of the transition provisions set forth in Exhibit C shall apply
notwithstanding any other provisions to the contrary elsewhere in
this Adoption Agreement or the Program, as amended.
3. Eligible Employees
a. Classification. In accordance with Article 2 of the
Program, the following classification of persons employed by the
Employer shall participate in this Program if they satisfy the
Minimum Age and Minimum Service requirements specified below (check
appropriate box):
[x] all Employees
[ ] all Employees except those who are members of a union with
which the Employer has an existing collective bargaining
agreement which was preceded by good faith bargaining over
retirement benefits
b. Minimum Age. The Minimum Age Requirement shall be (check one):
[x] No Minimum Age Requirement
[ ] Age 21
c. Minimum Service. Minimum Service Requirement shall be(check one):
[ ] 1 Plan Service Year for those Employees who are regularly
employed on a full-time basis and 1 Part-time Service Year
for those Employees who are not regularly employed on a
full-time basis
[ ] __ Plan Service Months
[x] No Minimum Service Requirement
4. Employer Contributions
In accordance with Article 3 of the Program, as amended, the
Employer agrees to make contributions under the Program as follows:
a. Basic Contributions. In accordance with the election of a
Participant, the Employer shall reduce the Participant's
Compensation and, in lieu of payment of such amount to the
Participant, make a Basic Contribution, on behalf of such
Participant, provided that no election shall be effective and no
Basic Contribution shall
be made for a Participant unless the Participant agrees to reduce
his prospective Compensation by at least (check one):
[ ] 2 percent
[x] 1 percent
If this box [x] is checked, Participants may not defer more than
the percentage of their Compensation for any payroll period as
indicated below:
15% for all Participants
__% for Participant who are highly-compensated employees
__% for Participant who are not highly-compensated employees
If a Participant has previously elected to have the Employer make
the maximum dollar amount of Basic Contribution, the election shall
remain in effect until the Participant makes a new election. The
Participant's new election shall specify a whole or half percentage
of Compensation.
b. Automatic Basic Contributions. If this box [ ] is
checked, the Employer will automatically make Basic Contributions
on behalf of Participants who do not affirmatively elect to make,
or not to make, Basic Contributions in accordance with Section
3.1 of the Program, as amended.
Such Basic Contributions shall be made at the following rate
of the Participant's Compensation (check one):
[ ] 1 percent [ ] 2 percent [ ] 3 percent
[ ] 4 percent [ ] 5 percent
(i) New Employees. For Employees who become
Participants on or after ___________________ [indicate
date], such Basic Contributions shall begin to be made on
behalf of the Participant (check one):
[ ] upon the first date the Employee becomes a Participant
[ ] upon the Participant's satisfaction of the minimum
service requirement for eligibility to receive matching
contributions under the Program
(ii) Existing Employees. If this box [ ] is checked, Basic
Contributions shall automatically begin to be made as of
_________________[insert date] on behalf of all Participants
who have not made a Basic Contribution election that is in
effect as of such date. The rate of such Basic
Contributions shall be the same as those indicated above.
All such automatic Basic Contributions shall be invested in the
default Investment Fund as determined under Section 5.2(a)(3) of
the Program, as amended, and Paragraph 4b of Exhibit F to the
Adoption Agreement, until such time as the Participant provides
investment instructions in accordance with Section 5.2 of the
Program, as amended.
c. Matching Contributions
(i) Basic Matching Contributions. The Employer shall
contribute a1 Matching Contribution on behalf of a Participant
in an amount equal to (check one):
[ ] No Matching Contribution shall be made with respect to
Basic Contributions made on behalf of the Employer's
Employees
[x] 60 percent (not less than 25 percent nor more than 100
percent) of the Participant's Basic Contribution;
provided, however, that no Matching Contribution shall be
made with respect to that portion of the Participant's
Basic Contribution in excess of (check one):
[x] 5 percent of the Participant's Compensation
[ ] The lesser of 5 percent of the Participant's Compensation or $
[ ] 6 percent of the Participant's Compensation
[ ] The lesser of 6 percent of the Participant's Compensation or $
and such percentage limit shall be applied (check one):
[ ] each payroll period in the Program Year
[x] for the Program Year, in which case such
Matching Contribution shall be made each payroll
period, and at the end of the Program Year, a
"true-up" Matching Contribution shall be made to
the extent necessary to cause the Participant's
Matching Contribution for the Program Year to
equal the percentage indicated as limited above;
provided, however, that such "true-up" Matching
Contribution shall be made only if the
Participant is an Employee on the last day of
the Program Year.
No Matching Contribution shall be contributed as
provided in this paragraph 4(c) until the first Entry
Date on or after a Participant's completion of 1 Plan
Service Year. Notwithstanding the foregoing,
(aa) a reemployed Employee shall be eligible to
receive a Matching Contribution as of the date
he returns to service if, as of the date he
returns to service, he had previously completed
1 Plan Service Year during his prior period of
Employment and received or would have received a
Matching Contribution on a prior Entry Date had
he been employed on such date; and
(bb) a reemployed Employee shall be eligible to receive
a Matching Contribution on the Entry Date after he
has satisfied the requirement of completing 1 Plan
Service Year during his prior and present period of
Employment.
(ii) Additional Matching Contributions. With respect to
any Program Year, if this box [ ] is checked, the Employer may
contribute, at its discretion, an additional amount. Such
additional amount shall be allocated as a Matching Contribution
among the Matching Contribution Subaccounts of those
Participants who were actively employed on the last day of the
Program Year and for whom Matching Contributions were made in
such Program Year in proportion to such Matching Contribution.
(iii) Treatment as Basic Contributions. Matching
Contributions shall not be treated as Basic Contributions
unless the Employer elects otherwise by checking this box [ ]
and by electing full vesting under Paragraph 6. If the
Employer has made such elections, then beginning January 1,
1989, Matching Contributions shall be subject to the same
distribution restrictions as apply to earnings on Basic
Contributions under Section 8.1 of the Program. Further, the
Employer making this election may include the Matching
Contribution in the calculation of the Actual Deferral
Percentage in Section 1.2 of the Program.
d. Discretionary Contributions. With respect to any Program
Year, if this box [ ] is checked, the Employer may contribute a
discretionary amount. Such Discretionary Contribution shall be
allocated among the Discretionary Contribution Subaccounts of those
Participants actively employed on the last day of the Program Year
in proportion to their Compensation for such Program Year.
Where an Employer has elected full vesting under Paragraph 5 of
this Exhibit A, Discretionary Contributions shall be treated as
Basic Contributions unless this box [ ] is checked. Discretionary
Contributions that are treated as Basic Contributions shall,
beginning January 1, 1989, be subject to the same distribution
restrictions as apply to earnings on Basic Contributions under
Section 8.1 of the Program, and shall be included in the calculation
of the Actual Deferral Percentage in Section 1.2 of the Program and
the calculation of the Average Contribution Percentage in Section
1.5A of the Program.
5. Vesting
A Participant's vested interest in the portion of his Account
attributable to Matching Contributions and Discretionary
Contributions shall be based on his Plan Service Years and
determined in accordance with the vesting schedule selected below:
[ ] Full (100 percent) vesting at all times
[ ] Full (100 percent) vesting after 3 Plan Service Years
[ ] Graded vesting in accordance with the following schedule:
Plan Service Years Vesting Percentage
Less than 2 years 0%
2 years 50%
3 or more years 100%
[x] Other (describe below)
Plan Service Years Vesting Percentage
Less than 3 years 0%
3 years 33.33%
4 years 66.67%
5 or more years 100%
Notwithstanding the vesting schedule selected above, if
a Participant dies while in the Employment of the Employer or
terminates Employment after becoming Disabled, his vested
interest in the portion of his Account attributable to Matching
Contributions and Discretionary Contributions shall be 100
percent. Further, a Participant affected by the Client Services
relocation beginning January 1, 1997 who has not attained five
Plan Service Years, elects not to relocate and elects instead to
terminate Employment at any time prior to his designated
relocation date shall be entitled upon termination of Employment
to a vested interest of 100 percent in the portion of his Account
attributable to Matching Contributions and Discretionary
Contributions.
The above vesting schedule became effective as of the later of
January 1, 1989 or the date such schedule first applied under
transition provisions or an Adoption Agreement adopted subsequent to
such date.
6. In-Service Distributions on Account of Hardship
Section 8.1 of the Program, as amended, allows a Participant
to withdraw amounts from his Account while still employed
provided that the withdrawal is needed because of a financial
hardship. Such in-service distributions shall be permitted
according to the following rules (check one):
[x] Participants may receive an in-service hardship
distribution only in accordance with the "general"
hardship withdrawal rules set forth in Section 8.1(a).
[ ] Participants may receive an in-service hardship
distribution only in accordance with the "safe harbor"
hardship withdrawal rules set forth in Section 8.1(b).
[ ] Participants may receive an in-service hardship
distribution under the rules of either Section 8.1(b)
or Section 8.1(c).
If this box [ ] is checked, Basic Contributions on behalf of a
Participant who receives a hardship distribution under the rules of
Section 8.1(b) of the Program, as amended, shall automatically
recommence following the 12-month suspension period described by
Section 8.1(b)(2)(iii) of the Program, as amended, in accordance
with the Participant's Basic Contribution election in place
immediately before the suspension period, unless the Participant
elects otherwise.
7. Distribution Options
In accordance with Section 8.2 of the Program, as amended,
the following distribution options will be available to eligible
Participants following their termination of Employment (check
one):
[x] Lump sum only
[ ] Lump sum or installment payments
8. Loan Supervisor and Withdrawal Supervisor
The Committee shall be the Loan Supervisor (as defined by
Section 1.31 of the Program) and the Withdrawal Supervisor (as
defined by Section 1.44 of the Program), except to the extent that
the Committee and Employer may agree to the allocation of
responsibilities with respect to the administration of loans and
withdrawals in accordance with Section 11.2 of the Program, as
amended.
IN WITNESS WHEREOF, the parties hereto have caused this
Adoption Agreement be executed by their respective officers
thereunto duly authorized and their corporate seals to be affixed
this 20 day of December, 2000.
RightCHOICE Managed Care,
Inc.
("Employer")
Attest:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇ ▇ ▇▇▇▇▇▇
▇▇. Benefits Admin. VP HR
Title Title
Blue Cross and Blue Shield
Association ("Association")
Attest:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Employee Benefits Counsel Executive Director, National
Employee Benefits Administration
Title Title
Exhibit B - Program Document
(Omitted - Program Document is included as Exhibit 4.3 to the Form S-8)
Tax-Favored Savings Program
Employer RightCHOICE Managed Care, Inc.
EXHIBIT C-I TO ADOPTION AGREEMENT
TRANSITION PROVISIONS
In accordance with Paragraph 2 of Exhibit A to the Adoption
Agreement, the following transition provisions shall be
applicable with respect to the Tax-Favored Savings Program
("Program") sponsored by RightCHOICE Managed Care, Inc.
("Employer"), as duly adopted by the Employer in accordance with
Section 12.1 of the Program, effective as of July 1, 2000.
1. References to Adoption Agreement.
Wherever mentioned in the Program, all references to:
a. Section 3(b)(iii) and Section 3(c) of the Adoption Agreement
shall mean Paragraph 4 of Exhibit A of the Adoption Agreement;
b. Section 5 of the Adoption Agreement shall mean Paragraph 5
of Exhibit A of the Adoption Agreement;
c. Section 5A of the Adoption Agreement shall be interpreted as
if daily administration was elected by the Employer;
d. Section 5B of the Adoption Agreement shall mean Exhibit F of
the Adoption Agreement;
e. the "next investment change date (as defined in Section 5D
of the Adoption Agreement)" shall mean each business day that the
Trustee and the New York Stock Exchange are open except as
otherwise provided under procedures established by the Committee;
f. Section 6 of the Adoption Agreement shall mean
Paragraph 2 of Exhibit A of the Adoption Agreement; and
g. Section 7 of the Adoption Agreement shall mean Paragraph 8
of Exhibit A of the Adoption Agreement.
2. Participant Directions Under the Program.
Wherever, under the terms of the Program, a Participant is
required to provide instructions or directions in writing, the
Committee may permit or require the Participant to submit his or
her instructions by telephone or electronically in the form and
manner specified by the Committee.
3. Definitions.
a. Section 1.3 ("Adoption Agreement") is amended by
adding, after the word "Program," the following language: "as
amended from time to time."
b. Section 1.8 ("Beneficiary") is replaced with the following:
Section 1.8 - "Beneficiary" shall mean the person, persons, or
trust last designated by the Participant to receive any benefits
payable under the Program upon the death of the Participant,
subject to the provisions of Section 8.2. Participants shall
designate their Beneficiaries, and may from time to time change
the designation of a Beneficiary, in the form and manner
specified by the Committee. A designation or change in
designation shall become effective only upon receipt by the
Committee or its agent in accordance with the Committee's
procedures.
c. Section 1.12(c) ("Test Compensation"), shall be amended
to read as follows:
(c) Test Compensation shall be the Participant's
compensation, as such term is defined in Code Section 414(s),
plus elective contributions that are made by the Employer on
behalf of its Employees that are not includible in gross income
under Code Sections 125, 402(e)(3), 402(h) and 403(b),
compensation deferred under an eligible deferred compensation
plan within the meaning of Code Section 457(b) and employee
contributions described in Code Section 414(h)(2) that are picked
up by the employing unit and thus are treated as employer
contributions.
d. Section 1.19 ("Effective Date") is replaced with the
following:
Section 1.19 - -"Effective Date" shall mean the date as of which
the Employer has adopted the Program, as specified by the
Adoption Agreement. If more than one Plan is included in the
term "Employer," such term shall mean the date as of which such
Plan adopted the Program for its Employees.
e. Section 1.27 ("Fund" or "Investment Fund") is replaced
with the following:
"Fund" or "Investment Fund" means an investment option designated
by an Employer in the Adoption Agreement in accordance with
Section 5.1(b) for the Employer's Program. As further described
by Section 5.1(c), an Investment Fund may be a registered
investment company or other commingled investment vehicle, a
separate investment fund maintained for the Program, a "Window"
allowing Participants access to a broad range of investments,
including registered mutual funds or individual securities, or
any other investment as determined by the Committee or an
Employer.
f. Section 1.32 ("Master Trust Agreement") is deleted and
replaced with the following:
Section 1.32 - "Master Trust Agreement" shall mean the
master trust agreement by and between the Association, the
Committee and the Trustee, and adopted by the Employer in the
Adoption Agreement.
g. Section 1.52 ("Trust Fund or Trust") is amended by
adding the following sentence:
The Trustee shall maintain a separate trust for each Program
adopted by an Employer hereunder, and each such trust shall be a
"Trust."
h. Section 1.54 ("Valuation Date") is replaced with the
following:
"Valuation Date" shall mean the date as of which the Trustee
shall determine the value of the Trust, which shall be each
business day that both the Trustee and the New York Stock
Exchange are open unless the Committee determines otherwise. The
Committee shall determine the value of Accounts in accordance
with Section 5.4.
4. Eligibility Requirements.
Section 2.2 ("Eligible After Effective Date") shall be amended to
read as follows:
Section 2.2 - Eligible After Effective Date. Any other
present, future, or reemployed Employee shall become a
Participant on the first Entry Date on or after the date he
satisfies the eligibility requirements specified in the Adoption
Agreement, provided he is in the Employment of the Employer on
such Entry Date. Notwithstanding the foregoing, an Employee with
prior Plan Service shall become a Participant on (i) the date he
returns to service if he was a Participant (without regard to
Section 2.4) during his prior period of Employment or would have
become a Participant on a prior Entry Date, but for his period of
absence, or (ii) the date he becomes an Employee if, as of such
date, he has satisfied the eligibility requirements specified in
the Adoption Agreement.
5. Contributions and Automatic Enrollment.
a. Section 3.1 ("Basic Contributions") is amended by
replacing the first paragraph thereof with the following:
Section 3.1 - Basic Contributions. Each Participant may
elect to have the Employer reduce his cash Compensation by an
amount (at least the minimum amount specified in the Adoption
Agreement, and thereafter in 1 percent increments, or in one-half
of 1 percent increments if practicable for the Employer) and, in
lieu of payment of such portion to him, to have such amount
contributed as a Basic Contribution under the Program. Basic
Contributions shall be withheld from the Participant's
Compensation, transmitted to the Trustee and allocated to the
Participant's Basic Contribution Subaccount.
b. Section 3.1 is further amended by inserting the following
language immediately before the last sentence thereof:
If so indicated in the Adoption Agreement, a Participant who has
not affirmatively elected to make, or not to make, Basic
Contributions, shall be deemed to have elected to make Basic
Contributions in accordance with the options indicated in the
Adoption Agreement. A Participant for whom "deemed" Basic
Contributions are made pursuant to the immediately preceding
sentence shall be notified on an annual (or more frequent) basis
of his reduction percentage and of his right to cease to have
such Basic Contributions made on his behalf or to elect a
different rate of Basic Contributions.
6. Limitation on Allocation.
Section 4.5 ("Additional Limitation Applicable to
Participants' Accounts When the Employer Maintains a Defined
Benefit Program") is amended by adding the following sentence at
the end thereof:
Notwithstanding the foregoing, this Section 4.5 shall not apply
to any Program Year beginning on or after January 1, 2000.
7. Investment of Contributions.
a. Section 5.1 ("Investment Options") is replaced with the
following:
Section 5.1 - Investment Options. All contributions shall be
invested among one or more Investment Funds, as further described
below.
(a) The Committee shall designate in the Adoption
Agreement certain investments to be "National Program Investment
Options," provided that each National Program Investment Option
must satisfy the requirements to be an "Investment Fund" under
Section 5.1(c). The Committee shall monitor whether the National
Program Investment Options remain appropriate for the Program and
may add, delete or replace any of the National Program Investment
Options from time to time in its sole discretion. In designating
and monitoring the National Program Investment Options, the
Committee shall be a "named fiduciary" of the Program for
purposes of determining whether each National Program Investment
Option is appropriate for the Program.
(b) Each Employer shall (1) designate in the Adoption
Agreement the Investment Funds in which contributions under the
Employer's Program shall be invested in accordance with
Participant directions or otherwise, and (2) monitor whether such
Investment Funds remain appropriate. In addition, the Employer
may add, delete or replace any Investment Fund from time to time
in its sole discretion. For this purpose, each Employer is a
"named fiduciary" responsible for designating and monitoring the
Investment Funds offered under the Program, except that, to the
extent that the Employer designates any of the National Program
Investment Options (as described by Section 5.1(a)) as Investment
Funds for the Employer's Program, the Employer may rely on the
Committee's determinations with respect to whether such
Investment Funds are appropriate for the Program. To the extent
that the Employer designates an Investment Fund that is not a
National Program Investment Option (as described by Section
5.1(a)), the Employer is solely responsible for determining
whether such Investment Fund is appropriate for the Program and
for monitoring such Investment Fund, and the Committee shall not
have any co-fiduciary or other responsibility for the Employer's
designation of such Investment Fund.
(c) For purposes of the Program, any of the following may be an
"Investment Fund:"
(1) registered mutual funds;
(2) other commingled investment vehicles, including
without limitation, collective investment trusts maintained by a
bank, pooled separate accounts, or other similar investment
vehicles;
(3) a separate fund maintained for the Program (which
may be designated as a National Program Investment Option under
Section 5.1(a) by the Committee) or for a version of the Program
adopted by an Employer, provided that, if such separate fund is
not managed and administered by the Committee or an Employer, the
Fund shall be managed by an "investment manager" as defined by
ERISA section 3(38). For this purpose, the Committee is a "named
fiduciary" with authority to appoint an investment manager for
any National Program Investment Option (as defined by Section
5.1(a)) and each Employer is a "named fiduciary" with authority
to appoint an investment manager for any Investment Fund (other
than a National Program Investment Option as described by Section
5.1(a)) designated by such Employer;
(4) a "window" option ("Window") that permits
Participants to select from a broad range of investments for the
investment of their Accounts. Investments available through a
Window may (but are not required to) be limited to particular
types of securities, such as registered mutual funds, or the
Window may permit Participants to invest in individual securities
through a brokerage account (subject to appropriate limitations,
if any, as determined by the Committee or an Employer). If a
Window is designated as an Investment Fund for the Program, the
Window must be offered in addition to a range of designated
Investment Funds that would, without reliance on investments
available through the Window, meet the conditions for a "broad
range of investment alternatives" for purposes of Section 404(c)
of ERISA and Dept. of Labor Reg. 2550.404c-1. Each Participant
electing to invest some or all of his or her Account in
investments available through a Window shall be deemed to be the
sole "named fiduciary" of the Program with respect to selecting
an investment available through the Window, directing the Trustee
with respect to such investment, and exercising any voting or
other rights with respect to such investment; and
(5) any other investments designated by the Committee
or an Employer subject to applicable law and regulation,
including ERISA.
(d) All earnings on the investments of an Investment Fund,
together with the proceeds from the sale of assets in such Fund,
shall be reinvested by the Trustee in the same Fund, and all
brokerage commissions, transfer or other taxes, and other charges
and expenses incurred in connection with the investments of a
Fund shall be charged to such Fund or to the Participants
participating in the Fund, unless paid by the Employer under
Section 11.8; provided that, the Committee may direct the Trustee
to make any reasonable adjustments and reallocations in
connection with any Investment Fund or among Investment Funds.
If the Trust Fund receives any money or other property in
connection with an Investment Fund and such Investment Fund is no
longer offered under the Program, the amounts received may be
allocated among current Program participants or to pay Program
expenses as determined by the Committee in its sole discretion.
b. Section 5.2 ("Income and Expenses of a Fund") is
renamed "Investment Directions" and is replaced with the
following:
Section 5.2 Investment Directions.
(a) Each contribution, including Basic Contribution,
Matching Contribution, Discretionary Contribution, and Rollover
Contribution, made by or on behalf of a Participant, and amounts
in each of the Accounts, shall be invested and reinvested by the
Trustee in one or more of the Investment Funds designated by the
Employer in the Adoption Agreement as directed by Participants
(or Beneficiaries or alternate payees, as applicable), subject to
the following:
(1) Instructions from Participants (or from Beneficiaries and
alternate payees, as applicable) regarding the investment of
contributions, and for changes and reallocations among the
Investment Funds, shall be provided in the form and manner
prescribed by the Committee and such changes shall be effective
as soon as practicable in accordance with procedures established
by the Committee.
(2) Changes in instructions for the allocation of new
contributions and for reallocations among Investment Funds may be
subject to limitations as to frequency as determined by the
Employer's elections in the Adoption Agreement, subject to
Section 5.2(b). A loan made to the Participant pursuant to
Article IX shall not be regarded as a change in investments for
purposes of this provision.
(3) If a Participant (or a Beneficiary or alternate payee, as
applicable) does not specify the investment of any contributions
or other amounts (including Basic Contributions deemed to be
elected under Section 3.1), the contributions or other amounts
shall be allocated to one or more Investment Funds as specified
by the Employer in the Adoption Agreement until the Participant
(or a Beneficiary or alternate payee, as applicable) provides
instructions.
(4) If the Committee or an Employer deletes or replaces an
Investment Fund, the Committee or Employer (as the case may be)
may direct the Trustee to liquidate the portion of any Account
allocated to the deleted or replaced Investment Fund and allocate
the proceeds in another Investment Fund under the Program until
such time as the Participant (or a Beneficiary or alternate
payee, as applicable) provides instructions.
(b) The Program shall be administered as a program
described in Section 404(c) of ERISA and Dept. of Labor Reg.
2550.404c-1 so as to relieve the fiduciaries of the Program from
liability for any losses which are the direct and necessary
result of investment instructions given by Participants and
Beneficiaries. Accordingly, the Program shall, in accordance
with the provisions of such regulations:
(1) provide an opportunity for each
Participant or Beneficiary to exercise control over assets in his
individual Account, and
(2) provide each Participant or Beneficiary
an opportunity to choose, from a broad range of investment
alternatives, the manner in which some or all of the assets in
his Account are invested.
c. Section 5.4 ("Valuation of Accounts") is replaced with
the following:
Section 5.4 - Valuation of Accounts. As of each Valuation Date,
the Committee shall (a) allocate to each Participant's Account
all contributions, payments, distributions, earnings, expenses,
investment gains and losses, and any other amounts to be
allocated as determined by the Committee, and (b) determine the
value of each Participant Account at fair market value. The
Committee's allocations and valuations shall be carried out in
accordance with methods consistently followed and uniformly
applied, provided that Committee may adopt reasonable practices
and procedures concerning allocations and adjustments to
Participants' Accounts. In addition, the valuation of all
Participants' Accounts is subject to Section 11.6.
8. Hardship Distributions.
Section 8.1 ("In-Service Withdrawals of Employer Contributions")
is amended as follows.
a. New Section 8.1(b) and (c) are added to read as follows:
(b) If so provided in the Adoption Agreement, in lieu
of the provisions of Section 8.1(a), a Participant shall be
entitled to receive a hardship withdrawal if the Participant
certifies, in the form and manner required by the Withdrawal
Supervisor, that the withdrawal is made on account of an
immediate and heavy financial need of the Participant and the
withdrawal is necessary to satisfy the immediate and heavy
financial need of the Participant, as determined in accordance
with the following rules:
(1) The Participant must certify that the
withdrawal is made on account of one of the events or categories
of expenses described in the first five subsections of Section
8.1(a)(1);
(2) The withdrawal shall be deemed necessary to
satisfy the immediate and heavy financial need of the Participant
only if the following requirements have been met:
(i) the Participant certifies that such
withdrawal does not exceed the amount required to meet the
immediate financial need (including amounts necessary to pay any
federal, state or local income taxes or penalties reasonably
anticipated to result from the distribution);
(ii) the Participant has obtained all
other distributions, except hardship distributions, and
nontaxable (at the time of the loan) loans from plans maintained
by the Employer which are then available;
(iii) the Participant is not
permitted to elect to make Basic Contributions for the 12-month
period following the hardship withdrawal; and
(iv) for each Participant who obtains a
hardship withdrawal which includes amounts which are attributable
to Basic Contributions, the limit described in the third
paragraph of Section 3.1 shall be reduced for the calendar year
following the calendar year in which a hardship withdrawal is
made to such Participant by an amount equal to the amount of the
Participant's Basic Contributions made in the calendar year in
which the hardship withdrawal occurred.
A Participant who has completed a 12-month suspension as
described in clause (iii) above may elect to resume participation
in the Program for the period immediately following such
suspension by notifying the Committee of such election in
accordance with its procedures, or if so elected by the Employer
in the Adoption Agreement, Basic Contributions on behalf of the
Participant shall automatically recommence at the end of such
suspension period in accordance with the Participant's Basic
Contribution election in place immediately prior to such
suspension period, unless the Participant elects otherwise in
accordance with the Committee's procedures.
(c) If the provisions of Section 8.1(b) are adopted in the
Adoption Agreement, and this Section 8.1(c) is also adopted in
the Adoption Agreement, a Participant may also qualify to receive
a hardship withdrawal in connection with the following events and
expenses, provided that all applicable conditions under Section
8.1(a) are satisfied:
(1) Funeral expenses and unreimbursed medical expenses
relating to the last illness of a family member of the
Participant;
(2) The partial or total loss of income of the
Participant's spouse;
(3) Amounts necessary to pay any outstanding court
ordered judgement.
b. Existing Sections 8.1(b) and (c) are redesignated as Section
8.1(d) and (e) and amended to read as follows:
(d) The amount withdrawn may not exceed the actual expense
incurred or to be incurred by the Participant on account of such
hardship. A Participant who desires a hardship withdrawal and
who is eligible to obtain a loan from the Program must first
request such a loan for the maximum amount under the Program in
order to meet the financial need causing the hardship. A
withdrawal request must be for at least $1,000.
(e) Only one such withdrawal shall be permitted during a
twelve month period; provided, however, that all hardship
withdrawals made prior to the time that Fidelity Management Trust
Company became Trustee shall be disregarded for this purpose.
c. Existing Sections 8.1(d), (e), and (f) are redesignated as
Sections 8.1(f), (g) and (h), respectively.
9. Other Distributions.
a. Section 8.2 ("Payment on Death, Retirement or
Separation From Service") is amended by adding the following new
paragraph to the end thereof:
Notwithstanding the foregoing, if the Adoption Agreement so
permits, in lieu of a lump sum distribution, a Participant
otherwise entitled to commence distribution under this Section
8.2 whose vested accrued benefit exceeds $5,000 may elect to
commence distribution in the form of monthly, quarterly, semi-
annual, or annual installment payments over a period, or in a
specified dollar amount, designated by the Participant. During
the period of the installment payments, the Participant may
continue to direct the investment of his Account among the
Investment Funds in accordance with Section 5.2. If a
Participant who has elected to receive an installment
distribution dies before receiving the entire vested interest in
his Account, the remaining Account balance shall be distributed
to his surviving spouse, Beneficiary, or estate in accordance
with the preceding provisions of this Section 8.2.
b. Section 8.3 ("Time of Payment") is amended by replacing
the second to last paragraph of Section 8.3(a) with the
following:
Distributions authorized solely as a result of the occurrence of
one of the events described in the preceding sentence shall be
made only in the form of a lump sum as defined in Code Section
402(d)(4) (effective January 1, 1993), without regard to clauses
(i), (ii), (iii), and (iv) of subparagraph (A), subparagraph (B),
or subparagraph (F) thereof, and shall be subject to the consent
requirements prescribed in the first sentence of this Section
8.3(a); provided, however, that a distribution permitted on
Program termination may be made to the Participant without his
consent to the extent provided in Treasury Regulations.
c. Section 8.3 ("Time of Payment") is further amended by
replacing the entire first paragraph, and the second paragraph up
to the ":", of Section 8.3(b) with the following:
(b) Effective January 1, 1989, notwithstanding any
provision of the Program that is or may be interpreted to the
contrary, distributions under this Program shall be made in
accordance with the regulations under Code Section 401(a)(9),
including Treas. Reg. 1.401(a)(9)-2. For Participants who
attain age 70-1/2 prior to 2001, under no circumstances shall
payment hereunder commence later than April 1 of the calendar
year following the calendar year in which the Participant attains
the age of 70-1/2, unless the Participant attained age 70-1/2
before January 1, 1988 (and was not a 5-percent owner during any
Program Year since the Participant attained the age of 66-1/2),
in which case the rule in Subsection (b) as in effect on December
31, 1988 will continue to apply. In the case of a Participant
who attained the age of 70-1/2 in 1988 who was not a 5-percent
owner and who had not separated from service prior to January 1,
1989, payment hereunder must commence no later than April 1,
1990. For Participants who attain age 70-1/2 after 2000, under
no circumstances shall payment hereunder commence later than
April 1 of the calendar year following the calendar year in which
the Participant attains the age of 70-1/2, or, if later and the
Participant is not a 5-percent owner, terminates employment. In
order to ensure that payment is made no later than April 1, the
amount payable to the Participant shall be determined no later
than the last Valuation Date which precedes by 30 days the April
1 commencement date specified in this Section. In no event shall
the amount paid to the Participant be less than the minimum
amount required by regulations under Code Section 401(a)(9).
If a Participant is in the Employment of the
Employer at or after the time he attains age 70-1/2 and the
Participant is required to commence distribution of benefits
under the rules described in the preceding paragraph, the
following rules shall apply:
10. Loans.
Section 9.1 ("Loans to Eligible Participants") is amended as follows:
a. Section 9.1(b) is amended by replacing "4 years and 9
months," with "5 years."
b. Section 9.1(c) is amended by deleting the second
sentence thereof.
c. Section 9.1(e) is amended by deleting the second
sentence thereof.
11. Administration of Program.
a. Section 11.1 ("National Employee Benefits Committee") is
amended by adding the following sentence after the end of the
fourth sentence:
In addition, the Committee may allocate administrative
responsibilities with respect to the Program to the Employer, as
further described by Section 11.2.
b. Section 11.2 ("Administration") is replaced with the following:
Section 11.2 - Administration. The Committee is the named
fiduciary and the administrator of the Program and shall have the
sole power, duty and responsibility of directing the
administration of the Program, except to the extent that (a) such
power, duty and responsibility is delegated to an agent of the
Committee, including but not limited to the Association, a
Recordkeeper or the Employer, or (b) the Committee allocates to
the Employer any of the authority or responsibility of the
Committee to act with respect to the Program (including but not
limited to responsibility and authority to act as Loan Supervisor
or Withdrawal Supervisor), in which case the Employer shall be
the named fiduciary and administrator under the Program with
regard to such allocated responsibility or authority. The
Committee's allocation of authority or responsibility to an
Employer, and the Employer's acceptance of such allocation, shall
be in writing. The Committee may not revoke its allocation of
authority to an Employer except with the Employer's written
consent.
The Committee (or an Employer with respect to matters allocated
to the Employer by the Committee) shall have the sole and
absolute right and power to construe and interpret the provisions
of the Program and administer it for the best interest of the
Participants and Beneficiaries, including, but not limited to,
the following powers and duties:
(a) to construe any ambiguity and interpret any
provision of the Program or supply any omission or reconcile any
inconsistencies in such manner as it deems proper, in its sole
discretion;
(b) to decide all questions arising in connection with
the Program, including all questions relating to eligibility and
to the amount, manner, and time of any payments hereunder, to
determine the right of any person to a payment, and to prescribe
a procedure for claims review;
(c) to establish uniform rules and procedures to be
followed by Participants in electing to make contributions or
have contributions made on their behalf, electing investment
options, requesting withdrawals, and in any other matters
required to administer the Program;
(d) o receive and review reports from the Trustee of
the financial condition and of the receipts and disbursements of
the Trust;
(e) to establish written procedures (consistent with
the regulations prescribed under Code Sections 401(a)(13) and
414(p) and ERISA Section 206(d)) to determine the qualified
status of domestic relations orders and to administer
distributions under qualified domestic relations orders;
(f) to adopt such rules as it deems necessary or
desirable; and
(g) to delegate some or all of its duties,
responsibilities, and authorities to one or more specified
parties, including the Employer and the Recordkeeper.
All directions by the Committee (or the Employer with
respect to matters allocated to the Employer by the Committee)
shall be final, binding and conclusive on all parties concerned,
including the Trustee, and all decisions of the Committee (or
Employer, as applicable) as to the facts of any case and the
meaning, intent, or proper construction of any provision of the
Program, or as to any rule or regulation in its application to
any, case shall be final, binding and conclusive, except as
otherwise provided by law.
Benefits under the Program shall be paid only if the Committee
(or the Employer, as applicable), or its designee, decides in its
discretion that the claimant is entitled to the requested benefit
under the Program.
The Recordkeeper shall maintain and preserve a record for
each Participant which shows all items of information required
for the administration of the Program. All disbursements by the
Trustee shall be made upon, and in accordance with, the written
direction of the Committee (or to the extent such disbursement
authority has been allocated to it, the Employer). Any order,
direction or advice required under the terms of the Master Trust
Agreement shall be given by the Committee (or the Employer) in
the manner therein set forth.
c. Section 11.4 ("Liability of the Committee") is amended by
adding the following:
The Employer, on its own behalf and (to the extent permitted
by applicable law) on behalf of the Employer's Program, hereby
agrees to indemnify past, present and future members of the
Committee against any and all claims, liabilities, losses,
judgments, and expenses (including attorneys' fees) to which they
may be subject by reason of their service on the Committee except
in relation to suits against them by the Association or in
relation to matters in which they shall be finally adjudged to be
guilty of any dishonest, fraudulent or malicious act, or willful
or reckless violation of any statute. This obligation of the
Employer's Program shall be discharged through the purchase of
insurance by the Association to the extent of the proceeds of
such insurance.
The Employer, on its own behalf and (to the extent permitted
by applicable law) on behalf of the Employer's Program, further
hereby agrees to indemnify past, present and future members of
the Committee against any and all claims, liabilities, losses,
judgments, and expenses (including attorneys' fees) relating to
the Employer's designation of Investment Funds for the Program,
including without limitation any and all claims, liabilities,
losses, judgments, and expenses (including attorneys' fees)
arising as a result of the failure of the Employer to properly
discharge its fiduciary duties in connection therewith, provided
that the Employer and the Employer's Program shall not be
required to indemnify hereunder to the extent that any such
claims, liabilities, losses, judgments, and expenses (including
attorneys' fees) arise from negligence or a breach of fiduciary
duty by the Committee in connection with the designation and
monitoring of the National Program Investment Options (as
described by Section 5.1(a)).
The Employer, on its own behalf and (to the extent permitted
by applicable law) on behalf of the Employer's Program, also
hereby agrees to indemnify the Association against any and all
claims, liabilities, losses, judgments, and expenses (including
attorneys' fees) to which it may be subject under any agreement
which it is directed to sign by the Committee to carry out the
terms of the Program. Such agreements include, without
limitation, the Master Trust Agreement, any agreement with the
Recordkeeper, and any agreement with an Investment Manager. Such
claims, liabilities, losses, judgments, and expenses include,
without limitation, any amounts which the Association is
contractually obligated to pay pursuant to an indemnity provision
in such an agreement.
d. Section 11.6 of the Program ("Correction of Errors") (as
amended by a Tax-Favored Savings Program Amendment effective as
of January 1, 1999) is further amended by replacing the current
provision with the following:
Section 11.6 - Correction of Errors. For purposes of this
Section 11.6, an "error" means any change in records or an error
in processing contributions or other transactions for a
Participant's Account that results in an incorrect amount held in
a Participant's Account, instead of the amount that would have
been held in the Account had the records been correct or had the
error not been made. Upon discovery of any error, the Committee
shall correct the error by adjusting, as far as practicable, the
amount held in the Participant's Account in such manner that the
amount to which the Participant is correctly entitled shall be
reflected. Further, if any change in records or error results in
any Participant, Beneficiary or alternate payee receiving from
the Program an amount other than what he would have been entitled
to receive had the records been correct or had the error not been
made, the Committee, upon discovery of such error, shall correct
the error by adjusting, as far as practicable, the payments in
such manner that the amount to which such person was correctly
entitled shall be paid. The phrase "as far as practicable" as
used in this section with regard to correction of a Participant's
Account and correction of a Participant's, Beneficiary's or
alternate payee's payment shall mean correction back to the date
the error occurred to the extent practicable as determined by the
Committee, provided that the Committee shall not correct any
error hereunder if a written confirmation or statement putting
the Participant on notice of the error was delivered to the
Participant in accordance with the Committee's standard
procedures, unless the Participant notified the Recordkeeper
within 12 months from the date of such confirmation or statement.
Notwithstanding the foregoing, the manner and extent of
correction of any such error shall be in conformance with all
guidance published by the Internal Revenue Service.
e. New Section 11.7 ("Effect of Allocation and Delegation of
Authority") is added:
Section 11.7 - Effect of Allocation and Delegation of
Authority. To the extent that the Committee allocates to the
Employer any of its responsibilities under the Program under
Section 11.2, or the Program allocates to the Employer certain
responsibilities (including without limitation the responsibility
for designating Investment Funds), the Employer shall be solely
responsible for carrying out such allocated responsibilities and
the Committee shall not be liable for any act or omission of the
Employer in carrying out such allocated responsibilities except
as otherwise required by ERISA.
Any persons with fiduciary responsibilities with respect to
the Program may allocate their fiduciary responsibilities between
themselves, or delegate fiduciary responsibilities (other than
trustee responsibilities) to another person. Except as otherwise
provided by ERISA, no fiduciary of the Program shall be
responsible or liable for any acts or omissions of another
Program fiduciary, unless the Program expressly provides for
shared fiduciary responsibility and the shared fiduciary
responsibility has not been allocated or delegated. If an
investment manager (as described by Section 3(38) of ERISA) is
appointed, then no fiduciary shall be liable for the acts or
omissions of such investment manager or be under an obligation to
invest or otherwise manage any asset of the Program which is
subject to the management of such investment manager.
f. New Section 11.8 ("Program Expenses") is added:
Section 11.8 - Program Expenses. To the extent permitted by
law, the expenses of the Program shall be paid from the Trust
Fund unless paid by the Employer. The Employer or the Committee
may elect to pay expenses properly chargeable to the Program and
then obtain reimbursement from the Program for the reimbursement
of expenses. Expenses of the Program include, but are not
limited to, investment management, custodial, legal, consulting,
and insurance and bonding expenses, and expenses in administering
the Program. Without limiting the foregoing, if the Committee
delegates any of its powers and duties, both ministerial and
discretionary, to any agents, such agents, including the
Association, may receive reasonable fees for services provided,
provided however, (a) the Association may receive such fees only
if approved by the Employer, and (b) amounts received by the
Employer hereunder shall be limited to the reimbursement of
direct expenses incurred unless otherwise permitted by ERISA.
12. Claims.
The following is added to Section 14.6 ("Claims"):
All inquiries and claims respecting the Program shall be in
writing directed to the Committee (or to the Withdrawal
Supervisor or Loan Supervisor if such inquiry or claim is within
the responsibility of the Withdrawal Supervisor or Loan
Supervisor, as the case may be) in accordance with procedures
established by the Committee which shall comply with applicable
Department of Labor regulations and shall be published by the
Committee in the summary plan description. In carrying out
claims administration the Committee or its designee shall have
all of the discretion and authority provided under Section 11.2.
In addition, in accordance with Section 11.2, the Committee may
allocate part of or all of its responsibilities with respect to
the administration and determination of claims hereunder to the
Employer.
Claimants must follow the Committee's claims procedures
before taking action in any other forum regarding a claim for
benefits under the Program. Any suit or legal action initiated
by a claimant under the Program must be brought by the claimant
no later than 1 year following a final decision on the claim for
benefits by the Committee (including the decision on any appeal
of the claim). The 1-year statute of limitations on suits for
benefits shall apply in any forum where a claimant brings such
suit or legal action.
13. Non-assignment of Accounts.
Section 14.8 ("Non-assignment of Accounts") is replaced with the following:
Section 14.8 - Non-assignment of Accounts. A Participant's
interest under this Program shall be payable only in the manner
provided in the Program and shall not be transferred, assigned,
or alienated, except as provided in Article IX (relating to
loans) or as required by the terms of a "qualified domestic
relations order" (as defined in Code Section 414(p)) entered on
or after January 1, 1985. The Committee shall treat a domestic
relations order entered before January 1, 1985 as a qualified
domestic relations order if distribution of a Participant's
interest pursuant to such order has commenced as of such date.
The Committee may, in its sole discretion, treat any other
domestic relations order entered before January 1, 1985 as a
qualified domestic relations order.
In the case of any domestic relations order received by the
Committee on or after January 1, 1985, the Committee shall
promptly notify the Participant and each alternate payee (as
defined in Code Section 414(p)(8)) of the receipt of such order
and the procedures for determining the qualified status of
domestic relations orders. Within a reasonable period after
receipt of such order, the Committee shall determine whether such
order is qualified and shall notify the Participant and each
alternate payee of such determination.
During the period in which the qualified status of a
domestic relations order is being determined (by the Committee, a
court, or otherwise), the Participant's Account shall not be
available for loans, withdrawals, or distributions. If it is
determined that the order is not qualified, then the Committee
shall direct the Trustee to disregard the order in determining
the portion of the Participant's Account that is available for
loans, withdrawals, and distributions.
If the order (or modification thereof) is determined to be a
qualified domestic relations order, the Committee shall direct
the Trustee to pay each alternate payee the amounts to which he
is entitled. Such payment shall be made as soon as practicable,
to the extent consistent with the terms of the order, even if the
Participant remains in the Employment of the Employer and has not
attained age 55. If a qualified domestic relations order
requires payment to an alternate payee to be deferred, the
Committee shall direct the Trustee to hold the amount payable to
the alternate payee in a separate account for the benefit of such
payee, and the alternate payee shall have the right to direct
investments with respect to such separate account. Undirected
amounts shall be invested in the default Investment Fund(s) in
accordance with Section 5.2(a).
14. Failure to Qualify.
Section 14.14 ("Failure to Qualify") is deleted and reserved.
APPROVED:
RIGHTCHOICE MANAGED CARE, INC.
("Employer")
By: /s/ ▇▇ ▇▇▇▇▇▇
Title: VP HR
Date: 6/21/2000
NATIONAL EMPLOYEE BENEFITS
COMMITTEE
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Secretary
Date: 6/23/2000
H:ak\401k\amend\241 Ex C-I
Tax-Favored Savings Program
RightCHOICE Managed Care, Inc.
EXHIBIT C-II TO ADOPTION AGREEMENT
TRANSITION PROVISIONS
In accordance with Paragraph 2 of Exhibit A to the Adoption
Agreement, the following transition provisions shall be
applicable with respect to the Tax-Favored Savings Program
("Program") sponsored by RightCHOICE Managed Care, Inc.
("Employer"), as duly adopted by the Employer in accordance with
Section 12.1 of the Program, effective July 1, 2000 except as
specified below.
The Transition Provisions to Adoption Agreement, as previously
amended, shall be further amended and restated in this Exhibit C-
II as follows:
1. Compensation. Effective October 1, 1999, Section 1.12(a) of
the Program, as previously amended, shall be further amended as
follows:
The provisions of Section 1.12(a) of the Program shall apply
except that the following shall be added before the last sentence
thereof:
Compensation shall include any amount which the Participant
elected pursuant to a salary reduction agreement under Section
132 of the Internal Revenue Code, provided that the Participant
could have had such amounts paid in cash or otherwise contributed
towards a currently taxable benefit.
Compensation shall exclude the following:
a. amounts received as an expense allowance;
b. amounts received as an automobile allowance;
c. amounts received as a suggestion award;
d. imputed income attributable to group life insurance; and
e. any other amounts received as extraordinary compensation
(including, but not limited to, finder's fees).
2. Entry Date. Effective October 1, 1994, Section 1.24 of the
Program, Entry Date, shall be amended to read as follows:
"Entry Date" shall mean the first date of the next payroll period
or as soon as thereafter as practicable. Notwithstanding the
foregoing, however, in the case of a Participant who elects to
change the amount of Basic Contributions upward or downward or
discontinue and recommence Basic Contributions in accordance with
Section 3.1, with respect to such change or recommencement,
"Entry Date" shall mean the first day of the next payroll period
following receipt of the appropriate form by the Employer or as
soon thereafter as practicable.
3. Program. Effective July 1, 2000, Section 1.43 of the
Program, Program, as previously amended shall be further amended
by deleting the text added to such section effective March 22,
1995 and by adding the following to the end thereof:
With respect to RightCHOICE Managed Care, Inc., effective July 1,
2000, its version of the Tax-Favored Savings Program shall be
named the "Alliance Blue Cross Blue Shield 401(k) Savings
Program." For the period March 22, 1995 through June 30, 2000,
its version of the Tax-Favored Savings Program shall be named
"The Care Program."
4. Change or Discontinuance of Basic Contributions. Effective
July 1, 2000, the second paragraph of Section 3.1, Basic
Contributions, as previously amended, shall be further amended by
inserting the following immediately before the last sentence of
such paragraph:
Subject to the limitations of this Section 3.1, a Participant may
change the amount of Basic Contributions to be made on his behalf
upward or downward, may elect to recommence Basic Contributions
following suspension of Basic Contributions, and may elect to
have such Basic Contributions cease effective as of the next
Entry Date. Such change or discontinuance shall be made in the
form and manner prescribed by the Employer and by such time as is
specified by the Employer based on uniform nondiscriminatory
standards consistently applied. A Participant who elected to
have such Basic Contributions cease is eligible to elect to
recommence such Basic Contributions on the next Entry Date. In
no event may such an election or change be made with respect to
Compensation which has already been made available to the
Employee.
5. Matching Contributions. Effective February 1, 1998,
Section 3.2 of the Program, as previously amended, shall be
further amended by deleting the first sentence of such Section
and substituting the following in lieu thereof:
Concurrently with the payment to the Trustee of any Basic
Contribution on behalf of any Participant, the Employer shall
contribute such Matching Contribution as is specified in the
Adoption Agreement, provided, however, that a Participant shall
become eligible for Matching Contributions at the time specified
in the Adoption Agreement. Any Matching Contribution made on
behalf of a Participant following the close of a Program Year
shall be transferred by the Employer to the Trustee no later than
the latest date after the close of the Program Year that is
required by applicable law in order that such Matching
Contribution be treated as relating to such Program Year.
6. In-Service Withdrawals. Effective July 1, 2000, Section
8.3, Time of Payment, shall be amended by adding a new Section
8.3(c) as follows:
A Participant who has attained age 59-1/2 may, while in
Employment, withdraw all or any portion of the then remaining
amounts in his Account. A Participant shall make such a
withdrawal in the form and manner prescribed by the Committee and
the withdrawal amount shall be paid as soon as practicable after
the Participant requests such withdrawal.
7. Loans. Pursuant to transition provisions effective July 1,
1993 and October 1, 1994, the provisions of Section 9.1 of the
Program shall apply except as follows:
a. Section 9.1(h) shall be amended to read as follows:
Loans may be for any purpose and must be for amounts that are
multiples of $100.
b. A new Section 9.1(l) shall be added, effective July 1, 1993,
to read as follows:
The provisions of the Program's participant loan program shall be
as set forth in this Section 9.1, except that the minimum loan
amount, the maximum number of loans which a Participant may have
outstanding at any time and the permitted time of prepayment of
an outstanding loan shall be as determined by a committee (the
"Employer Loan Group") appointed by the Board of Directors of the
Employer and as set forth by the Employer Loan Group in a
separate written document which shall be executed by the Employer
Loan Group and which shall form part of the Program (the
"Separate Loan Document"). The Separate Loan Document shall
state that it is part of the Program and shall become effective
upon execution by the Committee. The Employer Loan Group may
change the minimum loan amount, the maximum number of loans which
a Participant may have outstanding and the permitted time of
prepayment of an outstanding loan in an amended Separate Loan
Document, which shall state that it is part of the Program and
which shall become effective upon execution by the Committee.
8. Prior Transition Amendments. All provisions of the
Transition Provisions which were adopted prior to the date of the
adoption of this Exhibit C-II shall be deleted, except for those
provisions which are restated in this Exhibit C-II.
RightCHOICE Managed Care, Inc.
("Employer")
By: /s/ ▇▇ ▇▇▇▇▇▇
Title: VP HR
Date: 6/21/00
APPROVED:
National Employee Benefits Committee
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Assistant Secretary
H:ak\401k\amend\241 Ex C-II
Tax-Favored Savings Program
RightCHOICE Managed Care, Inc.
Separate Loan Document
The following provisions shall become part of the participant
loan program of the Tax-Favored Savings Program ("Program")
sponsored by RightCHOICE Managed Care, Inc., effective October 1,
1994.
1. Minimum Loan Amount.
The minimum loan amount is $500.
2. Maximum Number of Loans Outstanding.
A Participant may have no more than two loans outstanding at any
time.
3. Permitted Time of Loan Payoff.
The provisions of Section 9.l(b) of the Program shall apply,
whereby a loan may be paid in full at any time with no penalty
for prepayment.
APPROVALS:
EMPLOYER LOAN GROUP
By: /s/ ▇▇ ▇▇▇▇▇▇
Title: VP, Human Resources
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: SVP. and General Counsel
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: SVP, Client Services & Corp. Supt.
Date: July 18, 1996
NATIONAL EMPLOYEE BENEFITS COMMITTEE
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Secretary
Tax-Favored Savings Program
RightCHOICE Managed Care, Inc.
EXHIBIT C-III TO ADOPTION AGREEMENT
TRANSITION PROVISIONS
In accordance with Paragraph 2 of Exhibit A to the Adoption
Agreement, the following transition provision shall be applicable
to the Tax-Favored Savings Program ("Program") sponsored by
RightCHOICE Managed Care, Inc. ("Employer"), as duly adopted by
the Employer in accordance with Section 12.1 of the Program, as
amended, effective as of July 1, 2000.
Section 5.1 of the Program, as amended ("Investment Options"), is
amended by adding new Section 5.1(e):
(e) If, in the Adoption Agreement, the Employer designates
as an Investment Fund under the Employer's Program an Investment
Fund (a "Stock Fund") invested primarily in stock issued by the
Employer or an affiliate ("Stock"):
(1) the Employer shall be fully responsible, and the Committee
shall not have any responsibility, with respect to (a) directing
the Trustee as to the management and operation of the Stock Fund,
including without limitation such matters as the procedures for
making acquisitions and sales of the Stock for the Stock Fund and
the effecting of Participant instructions with respect to their
interests in the Stock Fund, and (b) for satisfying all
registration, reporting and other requirements applicable to the
Stock or to the Stock Fund required under Federal or state
securities laws with respect to the Trust's ownership of Stock,
including, without limitation, registration requirements under
the Securities Act of 1933 and any reports required under section
13 or 16 of the Securities Exchange Act of 1934; and
(2) in connection with each matter brought before an annual or
special stockholder's meeting of the issuer of the Stock, or with
respect to any tender or exchange offer made with respect to the
Stock, each Participant having an interest in the Stock Fund (or,
if applicable his or her Beneficiary or an alternate payee) shall
have the right to direct the Trustee as to the manner in which to
vote, tender or exchange (as the case may be) the number of whole
and partial shares of Stock represented by the Participant's
interest (both vested and nonvested) in the Stock Fund. In
accordance with procedures established by the Employer with the
Trustee, at the time of mailing of notice of each such annual or
special stockholders' meeting, or in the case of any tender or
exchange offer, a copy of the notice and the proxy solicitation,
or such other materials as are provided to shareholders of the
Stock in the case of a tender offer or exchange, shall be
delivered to each Participant (or, if applicable, to his or her
Beneficiary or an alternate payee) with an interest in the Stock
Fund, together with a voting direction form for return to the
Trustee or its designee in a manner consistent with Section
404(c) of ERISA and Department of Labor Regulations at 29 CFR
section 2550.404(c)-1(b). The Trustee shall vote, tender, or
exchange (as the case may be) the shares of Stock as directed by
Participants (or, if applicable, Beneficiaries and alternate
payees). The Trustee shall not vote, tender or exchange shares
for which it receives no voting directions provided that a copy
of the proxy or other appropriate shareholder materials were
delivered to Participants (or, if applicable, to a Beneficiary or
an alternate payee) as required hereunder.
RightCHOICE Managed Care, Inc. ("Employer")
By: /s/ ▇ ▇ ▇▇▇▇▇▇
Title: VP HR
Date: 6/21/00
APPROVED:
National Employee Benefits Committee
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Assistant Secretary
H:ak\401k\amend\241 Ex C-III
TAX-FAVORED SAVINGS PROGRAM
RightCHOICE Managed Care, Inc.
EXHIBIT C-IV TO ADOPTION AGREEMENT
TRANSITION PROVISIONS
In accordance with Paragraph 2 of Exhibit A to the
Adoption Agreement, the following transition provision
shall be applicable to the Tax-Favored Savings Program
("Program") sponsored by RightCHOICE Managed Care, Inc.
("Employer"), as duly adopted by the Employer in
accordance with Section 12.1 of the Program, as
amended, effective as of November 30, 2000.
Program. Effective November 30, 2000, Section 1.43 of the
Program, Program, as previously amended shall be further amended
by deleting the text added to such section effective July 1, 2000
and by adding the following to the end thereof:
With respect to RightCHOICE Managed Care, Inc., effective
November 30, 2000, its version of the Tax-Favored Savings
Program shall be named the "Blue Cross and Blue Shield of
Missouri 401(k) Savings Program." For the period July 1, 2000
through November 29, 2000, its version of the Tax-Favored Savings
Program shall be named the "Alliance Blue Cross Blue Shield
401(k) Savings Program"; and for the period March 22, 1995
through June 30, 2000, its version of the Tax-Favored Savings
Program shall be named "The Care Program".
RightCHOICE Managed Care, Inc.
Participating Employer
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇ ▇ ▇▇▇▇▇▇
Attest Authorized Signature
Sr. Benefits Admin. VP HR
Title Title
12/20/00
Date
APPROVED:
National Employee Benefits Committee
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Assistant Secretary
J:neba\compliance\documents\401k\cust\241 Ex C-IV.doc
Exhibit D: Adoption of Trust
Employer: RightCHOICE Managed Care, Inc.
Program Effective Date: June 1, 1987
Adoption Agreement
Effective Date: July 1, 2000
Trust Effective Date: June 30, 2000
1. Establishment and Acceptance of Trust
In accordance with Section 1 of the Master Trust Agreement,
the Employer hereby establishes with the Trustee a trust
consisting of such money or other property as shall from time to
time be paid or delivered to or deposited with the Trustee under
the terms of the Master Trust Agreement, and of all interest and
earnings thereon.
By its signature below, the Trustee hereby accepts the Trust
established by the Employer hereunder under the terms and
conditions of the Master Trust Agreement. The Trustee is signing
below solely as a party to the Master Trust Agreement and the
Trust and not as a party to the Employer's Program.
The Trust shall be effective as of the date of the Trustee's
signature as set forth below ("Trust Effective Date").
2. Amendment of Trust for Employer's Program
If this box [x] is checked, the Employer, the Committee and the
Trustee agree to amend the Master Trust Agreement for the
Employer's Program in accordance with the amendments at Exhibit E
to this Adoption Agreement.
3. Investments
In accordance with Section 4 of the Master Trust Agreement,
the Employer designates the Investment Funds and the Default
Fund(s) for the Employer's Program on Exhibit F to this Adoption
Agreement, as amended from time to time. The Employer
acknowledges and agrees that, if the Employer does not timely
provide instructions to the Trustee with respect to the
investments of the Employer's Program, the Trustee may seek
instructions from the Committee with respect to the investment of
the Trust and, in its sole discretion, the Committee may elect to
provide instructions. If the Committee provides instructions to
the Trustee, the Trustee will comply with the Committee's
instructions until the Employer provides new instructions.
4. Receipt of Trust Agreement
The Employer has received a copy of the Master Trust
Agreement and acknowledges that under the terms of the Master
Trust Agreement:
a. The Employer shall receive from the Trustee,
electronically or in writing, a trial balance report setting
forth all investments, receipts, disbursements, and other
transactions effected by the Trustee for the Employer's Trust and
the value of the Trust as of the date of the report. If provided
electronically, the report shall be posted each business day. If
provided in writing, the report shall be provided on a monthly
basis. Upon expiration of twelve (12) months from the date that
the trial balance report is posted electronically, or delivered
to the Employer if provided in writing, the Trustee shall not
have any liability or accountability to the Employer with respect
to the propriety of the Trustee's acts or omissions specifically
shown on the face of such trial balance report, except for acts
and omissions as to which the Employer files an objection with
the Trustee or as otherwise provided under Section 6(b) of the
Master Trust Agreement.
b. To the extent that the Committee allocates to the
Employer (in accordance with Section 11.2 of the Program, as
amended) authority to act as Administrator with respect to the
Employer's Program and Trust, the Employer shall have the sole
power, duty and responsibility to act as the Administrator under
the Master Trust Agreement and to communicate with the Trustee
with respect to such allocated matters. The Committee shall not
have any responsibility to act with respect to any allocated
matters and shall not be liable for any act or omission of the
Employer in connection with such allocated matters.
c. With respect to any matter for which the Committee or
the Association (acting as Administrator under the Trust
Agreement) is responsible under the terms of the Master Trust
Agreement, the Employer and the Employer's Program shall be bound
by the decisions, instructions, actions and directions of the
Committee and the Association.
5. Notices
Notices under the Master Trust Agreement shall be sent to
the Employer at the following address:
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
Vice President, Corporate Controller & Treasurer
Address: RightCHOICE Managed Care, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile Number: ________________________________
IN WITNESS WHEREOF, the Employer hereby executes this
Schedule D to adopt the Master Trust Agreement and establish a
Trust for the Employer's Program in accordance with the Master
Trust Agreement:
RightCHOICE Managed Care, Inc.
("Employer")
Attest:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇ ▇▇▇▇▇▇ 6/21/00
Sr. Benefits Admin. VP HR
Title Title
The TRUSTEE hereby accepts the Trust established hereunder
for the Employer's Program, effective as of the 30th day of June,
2000.
FIDELITY MANAGEMENT
TRUST COMPANY
Attest:
/s/ By: /s/
Clerk VP FITSCo
Title Title
EXHIBIT E TO ADOPTION AGREEMENT
AMENDMENT TO TRUST AGREEMENT
This Amendment ("Amendment"), which is effective as of the
date agreed to by the parties as set forth below, amends the
MASTER TRUST AGREEMENT ("Trust Agreement") dated June 17, 2000,
made by and among the BLUE CROSS AND BLUE SHIELD ASSOCIATION (the
"Association"), the NATIONAL EMPLOYEE BENEFITS COMMITTEE OF THE
ASSOCIATION (the "Committee"), the FIDELITY MANAGEMENT TRUST
COMPANY (the "Trustee"), and certain employers, including
RightCHOICE Managed Care, Inc. (the "Employer").
WITNESSETH
WHEREAS, Section 14 of the Trust Agreement provides that the
Trust Agreement may be amended at any time by written agreement
among the Trustee, Committee and the Employer with respect to the
Employer's Program, and
WHEREAS, the Employer desires to make available to
participants, in addition to any other Investment Funds selected
by the Employer in the Adoption Agreement, an Investment Fund
invested primarily in common stock of the Employer;
NOW THEREFORE, the parties agree as follows:
1. Section 4(a) is amended by deleting the word "and" from
subsection 4(a)(iv), adding the word "and" at the end of
subsection 4(a)(v), and adding new subsection 4(a)(vi):
(vi) an investment fund (the "Stock Fund") consisting
primarily of investments in the common stock or equity securities
issued by the Employer which are publicly-traded and constitute
"qualifying employer securities" within the meaning of Section
407(d)(5) of ERISA ("Stock") , in accordance with Section 4(i).
2. Section 4 is further amended by adding a new Section 4(i), as
follows:
(i) Stock Fund. Trust investments in the common stock of the
Employer ("Stock") shall be made via the Stock Fund, which shall
consist primarily of shares of Stock. In order to satisfy daily
participant exchange or withdrawal requests for transfers and
payments, the Stock Fund shall also include cash or short-term
liquid investments in accordance with this paragraph. Such
holdings shall include Colchester Street Trust: Money Market
Portfolio: Class I or such other Mutual Fund or commingled money
market pool as agreed to by the Employer and Trustee. The
Employer shall, after consultation with the Trustee, establish
and communicate to the Trustee in writing a target percentage and
drift allowance for such short-term liquid investments, and the
Trustee shall be responsible for ensuring that the actual cash
held in the Stock Fund falls within the agreed upon range over
time. In addition, investments in Stock and the operation of the
Stock Fund shall be subject to the following:
(i) Acquisition Limit. The Trust may be invested in Stock to
the extent necessary to comply with investment directions in
accordance with the terms of the Employer's Program and this
Trust Agreement.
(ii) Responsibility of Employer. In accordance with the
Employer's Program, the Employer is the named fiduciary
responsible for designating Investment Funds for the Employer's
Program, including the Stock Fund. Subject to Section 1, the
Trustee shall not be liable for any loss or expense which arises
from the Employer's directions with respect to the acquisition
and holding of the Stock.
(iii) Unitization; Purchases and Sales of Units. Each
participant's proportional interest in the Stock Fund shall be
measured in units of participation, rather than shares of Stock.
Such units shall represent a proportionate interest in all of the
assets of the Stock Fund, which includes shares of the Stock,
short-term investments and at times, receivables for dividends
and/or Stock sold and payables for Stock purchased. The Trustee
shall determine a daily net asset value ("NAV") for each unit
outstanding of the Stock Fund. Valuation of the Stock Fund shall
be based upon the New York Stock Exchange closing price of the
Stock, or if unavailable, the latest available price as reported
by the principal national securities exchange on which the Stock
is traded ("Closing Price"). The NAV may be adjusted by
dividends paid on the shares of Stock held by the Stock Fund,
gains or losses realized on sales of Stock, appreciation or
depreciation in the market price of those shares owned, interest
on the short-term investments held by the Stock Fund, expenses
that, pursuant to Employer direction, the Trustee accrues from
the Stock Fund, and commissions on purchases and sales of Stock.
Purchases and sales of units in the Stock Fund (other than for
exchanges) shall be made on the date on which the Trustee
receives from the Administrator in good order all information,
documentation and wire transfers of funds (if applicable)
necessary to accurately effect such transactions. Exchanges of
units in the Stock Fund shall be made in accordance with the
operational guidelines attached hereto as Schedule "D." The
Trustee may follow written directions from the Employer to
deviate from the above unit purchase and sale procedures.
(iv) Purchase and Sales of Stock.
(A) Open Market Purchases. The Trustee shall purchase and sell
the Stock on the open market as necessary to maintain the target
cash percentage and drift allowance for the Stock Fund, provided
that, if the Trustee is either (1) unable to purchase or sell the
total number of shares required to be purchased or sold on such
day as a result of market conditions; or (2) prohibited by the
Securities and Exchange Commission, the New York Stock Exchange,
or any other regulatory body from purchasing or selling any or
all of the shares required to be purchased or sold on such day,
the Trustee shall purchase or sell such shares as soon as
possible thereafter. The Trustee may follow directions from the
Employer to deviate from the above purchase and sale procedures
provided that such direction is made in writing by the Employer.
(B) Use of an Affiliated Broker. The Employer hereby directs
the Trustee to effect all purchases and sales of the Stock made
on the open market through Fidelity Capital Markets ("Capital
Markets"), unless otherwise directed by the Employer. Capital
Markets may execute such directions directly or through its
affiliate, National Financial Services Corporation or any
successor entity thereto ("NFSC"). As consideration for such
brokerage services, the Employer agrees that Capital Markets
shall be entitled to remuneration pursuant to this direction in
an amount of no more than three and one-fifth cents ($.032)
commission on each share of Stock. Any change in such
remuneration may be made only by a signed agreement between
Employer and Trustee. Any successor organization of Capital
Markets or NFSC, through reorganization, consolidation, merger or
similar transactions, shall upon consummation of such
transaction, become the successor broker in accordance with the
terms of this direction. The Trustee and Capital Markets shall
continue to rely on this direction until notified to the
contrary. The Employer reserves the right to terminate this
direction at any time upon reasonable advance written notice to
Capital Markets (or its successor) and the Trustee. The Trustee
shall provide the Employer with a description of Capital Markets'
brokerage placement practices and shall provide the Employer with
access to on-line reports which summarize the securities
transaction-related charges incurred by the Trust.
(C) Purchases and Sales From or To Employer. If directed by the
Employer in writing before a trading date, the Trustee may
purchase or sell Stock from or to the Employer if the purchase or
sale is for adequate consideration (within the meaning of section
3(18) of ERISA) and no commission is charged. If contributions
under the Program are to be invested in Stock, the Employer may
transfer Stock in lieu of cash to the Trust. In either case, the
number of shares to be transferred shall be determined by
dividing the total amount of Stock to be purchased or sold by the
Closing Price as determined under Section 4(i)(iii).
(v) Exercise of Voting and Other Rights. In connection with
each matter brought before an annual or special stockholder's
meeting of the issuer of the Stock, or with respect to any tender
or exchange offer made with respect to the Stock, each
participant having an interest in the Stock Fund (or, if
applicable his or her beneficiary or an alternate payee) shall
have the right to direct the Trustee as to the manner in which to
vote, tender or exchange (as the case may be) the number of whole
and partial shares of Stock represented by the participant's
interest (both vested and nonvested) in the Stock Fund. At the
time of mailing of notice of each annual or special stockholders'
meeting of the issuer of the Stock, or in the case of any tender
or exchange offer relating to the Stock, the Trustee shall
deliver a copy of the notice and the proxy solicitation, or such
other materials as are provided to shareholders of the Stock in
the case of a tender offer or exchange, to each participant (or,
if applicable, to a beneficiary or an alternate payee) with an
interest in the Stock Fund, together with a voting direction form
for return to the Trustee or its designee in a manner consistent
with Section 404(c) of ERISA and Department of Labor Regulations
at 29 CFR section 2550.404(c)-1(b). The Trustee shall vote,
tender, or exchange (as the case may be) the shares of Stock as
directed by each participant (or, if applicable, by the
beneficiary or alternate payee). The Trustee shall not vote,
tender, or exchange shares for which it receives no voting
directions provided that the Trustee (or its delegate) has in
fact delivered a copy of the proxy or other appropriate
shareholder materials to participants (or, if applicable, to a
beneficiary or an alternate payee) as required hereunder. When
the issuer of the Stock prepares for any annual or special
meeting, the Employer shall notify the Trustee at least thirty
(30) days in advance of the intended record date and shall cause
a copy of all proxy solicitation materials to be sent to the
Trustee. If requested by the Trustee, the Employer shall certify
to the Trustee that the aforementioned materials represent the
same information that is distributed to shareholders of the
Stock. All printing, mailing, tabulation and other costs
associated with voting the Stock shall be paid from the Stock
Fund, unless paid by the Employer.
(vi) Securities Law Reports. The Employer shall be responsible
for filing all reports required under Federal or state securities
laws with respect to the Trust's ownership of Stock, including,
without limitation, any reports required under section 13 or 16
of the Securities Exchange Act of 1934, and shall immediately
notify the Trustee in writing of any requirement to stop
purchases or sales of Stock pending the filing of any report.
The Trustee shall provide to the Employer such information on the
Trust's ownership of Stock as the Employer may reasonably request
in order to comply with Federal or state securities laws.
(vii) Conversion. All provisions in this Section 4(i) shall
also apply to any securities received as a result of a conversion
of Stock.
3. Schedule "D," which is attached to this Amendment, is added
to the Trust Agreement, and adopted as part of this Trust
Agreement.
IN WITNESS WHEREOF, the Employer, Committee and Trustee
hereby execute this Amendment to the Master Trust Agreement to be
effective as of June 30, 2000.
NATIONAL EMPLOYEE BENEFITS RightCHOICE MANAGED CARE,
COMMITTEE INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇ ▇▇▇▇▇▇ 6/21/00
Title: Assistant Secretary Title: VP HR
FIDELITY MANAGEMENT
TRUST COMPANY
By: /s/
Title: VP-FITSCo
J:neba\compliance\documents\401k\cust\241 Ex E
Exhibit F: Selection of Investment Options
Employer: RightCHOICE Managed Care, Inc.
Program Effective Date: June 1, 1987
Adoption Agreement
Effective Date: July 1, 2000
This Exhibit F to the Adoption Agreement, as amended from
time to time, sets forth the Investment Funds (as defined by
Section 1.27 of the Program, as amended) to be offered under the
Employer's Program. The Investment Funds selected on this
Exhibit F shall be effective as of June 30, 2000.
The Employer acknowledges that Section 5.2(b)(2) of the
Program, as amended, requires the Employer to designate a "broad
range of investment alternatives" as described by Section 404(c)
of ERISA and Dept. of Labor Reg. 2550.404c-1. This requirement
would be satisfied if the Employer selects, as a minimum, the
following to be Investment Funds under the Employer's Program:
U.S. Equity Index Commingled Pool, Fidelity Large Cap Value
Collective Trust for Blue Cross and Blue Shield Plans, Fidelity
Growth Company Fund, Fidelity Low-Priced Stock Fund; Provident
Investment Counsel Small Company Growth Fund A, Fidelity
Diversified International Fund, Fidelity U.S. Bond Index Fund,
and either (a) the Stable Value Fund or (b) Managed Income
Portfolio II.
1. National Program Investment Options
The Employer selects the following National Program Investment
Options (as described by Section 5.1(a) of the Program, as
amended) to be Investment Funds under the Employer's Program:
Large Cap Equity
[x] U.S. Equity Index Commingled Pool
[x] Fidelity Large Cap Value Collective Trust for Blue Cross
and Blue Shield Plans
[x] Fidelity Growth Company Fund
Small Cap Equity
[x] Fidelity Low-Priced Stock Fund
[x] Provident Investment Counsel Small Company Growth Fund A
International
[x] ▇▇▇▇▇▇▇▇▇ Developing Markets Trust A
[x] Fidelity Diversified International Fund
Fixed Income
[x] Fidelity U.S. Bond Index Fund
Stable Value
[ ] Managed Income Portfolio II ("MIP II")*
*MIP II is not available if any assets in the Employer's Program
are invested in the INVESCO IRT Stable Value Fund on the
effective date of this Exhibit F.
[x] Stable Value Fund**
**The Employer must select the Stable Value Fund if any assets in
the Employer's Program are invested in the INVESCO IRT Stable
Value Fund on the effective date of this Exhibit F. The Stable
Value Fund will primarily invest in MIP II, but will include
interests in the INVESCO IRT Stable Value Fund and cash
investments for liquidity purposes until all interests in the
INVESCO IRT Stable Value Fund purchased before the effective date
of this Exhibit F have been liquidated. New contributions to the
Stable Value Fund and amounts redeemed from the INVESCO IRT
Stable Value Fund will be invested in MIP II, except as required
for liquidity purposes.
Money Market
[ ] Fidelity Money Market Trust: Retirement Money Market Portfolio***
***The Fidelity Money Market Trust: Retirement Money Market
Portfolio is not available unless the Employer's Program offers a
money market fund before the effective date of this Exhibit F.
"Equity wash" restrictions, as described by Paragraph 3 of this
Exhibit F, will apply to the Program if the Fidelity Money Market
Trust: Retirement Money Market Portfolio and either the Stable
Value Fund or MIP II are selected.
Strategy Funds
[x] Fidelity Freedom Income Fund
[x] Fidelity Freedom 2000 Fund
[x] Fidelity Freedom 2010 Fund
[x] Fidelity Freedom 2020 Fund
[x] Fidelity Freedom 2030 Fund
[x] Mutual Fund Window If selected, Participants may invest in any
Fidelity Mutual Funds and Non-Fidelity Mutual Funds available
through Fidelity's FundsNet(R) program. The list of available
funds is incorporated into the Master Trust Agreement as Schedule
"C," as amended from time to time.
2. Other Investment Options
Subject to Section 5.1(b) of the Program, as amended, and
the Master Trust Agreement, the Employer directs the Trustee to
offer the following investments as Investment Funds under the
Employer's Program.
An employer stock fund (containing in significant part common
stock of RightCHOICE Managed Care, Inc.) in accordance with the
terms of Exhibit E)
The Employer acknowledges that, to the extent that the Employer
designates any Investment Fund that is not a National Program
Investment Option: (a) the Employer is solely responsible for
determining whether such Investment Fund is appropriate for the
Program, and (b) the Committee, the Association and the Trustee
do not have any responsibility for determining whether such
Investment Fund is appropriate for the Employer's Program.
3. "Equity Wash" Restrictions
If the Employer selects the MIP II or the Stable Value Fund
and also selects an Investment Fund that is a "competing fixed
income fund," a 90-day "equity wash" restriction will apply to
Participant exchanges from MIP II or the Stable Value Fund (as
applicable to the Employer's Program). A "competing fixed income
fund" will include the Fidelity Money Market Trust: Retirement
Money Market Portfolio (if designated by the Employer) or any
other money market mutual fund, short-term bond mutual fund, or
similar funds (including without limitation any such funds
available to Participants under the Mutual Fund Window).
Contributions and exchanges into the Stable Value Fund or MIP II
(as applicable) are not restricted. Amounts exchanged from the
Stable Value Fund or MIP II (as applicable) may not be
transferred into a competing fixed income option and must be held
in another Investment Fund for 90 days before transferred into a
competing fixed income option.
4. Default Fund
a. Forfeitures shall be invested in the following Default Fund:
[ ] Fidelity Money Market Trust: Retirement Money Market Portfolio
[x] Other: Fidelity Freedom Income Fund
b. A default fund is also required for the investment of
undirected automatic Basic Contributions elected under Section
3.1 of the Program, as amended, for amounts held in a separate
account in connection with the pending qualification of a
domestic relations order (if required), and for any other
undirected funds. As required by Section 5.2(a)(3) of the
Program, as amended, the Default Fund shall be:
[x] Fidelity Freedom Income Fund
[ ] The Freedom family of funds, based on the Participant's birth date.
[ ] Other* _________________________________
*If the Employer includes a competing fixed income fund (as
described by Paragraph 3 of this Exhibit F), neither the Stable
Value Fund nor MIP II may be the Default Fund.
IN WITNESS WHEREOF, the Employer and Committee hereby
execute this Exhibit F naming the Investment Funds to be offered
under the Employer's Program, to be effective as of the date set
forth above.
NATIONAL EMPLOYEE BENEFITS EMPLOYER
COMMITTEE RightCHOICE Managed Care, Inc.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇ ▇▇▇▇▇▇ 6/21/00
Title: Assistant Secretary Title: VP HR
The TRUSTEE acknowledges the Employer's directions with
respect to the Investment Funds to be offered under the
Employer's Program, provided that this Exhibit F shall not be
effective until acknowledged by the Trustee.
FIDELITY MANAGEMENT
TRUST COMPANY
Attest:
/s/ By: /s/
Clerk VP-FITSCo
Title Title
EXHIBIT G: Administrative Services Agreement
Employer: RightCHOICE Managed Care, Inc.
Program Effective Date: June 1, 1987
Adoption Agreement
Effective Date: July 1, 2000
The Employer engages the Association, under the direction of
the Committee, to provide administrative services to the
Employer's Program, and the Employer agrees to assist the
Association in connection with the administration of the Program,
under the terms and conditions set forth below.
1. Authority of the Committee
The Employer agrees that the Committee shall be responsible
for and have control of the administration of the Employer's
Program, with all powers necessary or convenient to enable it to
carry out its duties in that respect; except to the extent that
(a) the Program provides otherwise, or (b) the Committee and
Employer agree to the allocation of certain responsibilities to
the Employer under Section 11.2 of the Program, as amended.
If this box is checked [ ], the Committee and the Employer have
agreed to the allocation to the Employer of certain
responsibilities for the administration of the Program, as set
forth in Exhibit H to this Adoption Agreement.
The Committee shall periodically review the performance of
the Trustee and Recordkeeper, and any Investment Manager
appointed by the Committee, and shall have the power to dismiss
the Trustee, Recordkeeper, or such Investment Manager, and
appoint a new Trustee, Recordkeeper, or Investment Manager in its
place, subject to the terms of the Master Trust Agreement and
recordkeeping agreement made between the Recordkeeper, Committee
and Association ("Recordkeeping Agreement").
Decisions of the Committee on all matters within the scope
of its authority shall be final and binding on the Employer and
the Employer's Program except as otherwise provided by law.
2. Recordkeeper/Program Administration Manual
The Program provides the Committee authority to appoint a
Recordkeeper to maintain and preserve records for each
Participant relating to his or her participation in the Program.
The Committee has engaged Fidelity Investments Institutional
Operations Company to be the Recordkeeper with respect to the
Employer's Program adopted by this Adoption Agreement under the
terms and conditions of the Recordkeeping Agreement.
The Recordkeeping Agreement requires the Recordkeeper to
develop and maintain for each Employer's Program a manual
incorporating the policies, procedures, and service standards
applicable to the Recordkeeper's provision of services to the
Program (the "Program Administration Manual"). The Recordkeeper
will provide the Program Administration Manual for the review and
approval of the Committee and the Employer. The Employer agrees
to review the Program Administration Manual upon receipt and to
approve the Program Administration Manual to the extent
acceptable. Once approved, the Employer agrees to perform any
functions required of the Employer in the Program Administration
Manual in accordance with procedures specified therein, or if
such performance is impractical, to seek an appropriate amendment
to the Program Administration Manual.
To the extent that the Committee allocates to the Employer
(in accordance with Section 11.2 of the Program, as amended)
authority to act as Administrator under the terms of the
Recordkeeping Agreement in connection with the Employer's
Program, the Employer shall have the sole power, duty and
responsibility to act as the Administrator under the
Recordkeeping Agreement and to communicate with the Recordkeeper
with respect to such allocated matters. The Committee shall not
have any responsibility to act with respect to any allocated
matters and shall not be liable for any act or omission of the
Employer in connection with such allocated matters.
3. Duty to Furnish Information
The Employer shall, whenever requested, and in the manner
specified, furnish to the Committee or, where designated, to the
Recordkeeper, any information that the Committee or the
Recordkeeper may deem to be pertinent to, necessary or convenient
in the operation of the Program, such as (without limitation):
(a) full and complete information with respect to each
Participant, including but not limited to employment status,
address, social security number, vesting dates, compensation,
contributions, loan repayment information, investment selection,
and withdrawal requests; (b) any information that the
Recordkeeper or Association requires to process distributions and
withdrawals; (c) any domestic relations orders or related
correspondence relating to any Participant received by the
Employer; (d) any information required by the Recordkeeper to
complete non-discrimination testing services for the Employer's
Program; and (e) any information required by the Association to
complete the annual report for the Program on Form 5500. Where
required, information submitted by the Employer shall be
certified by an authorized employee of the Employer.
4. Duty to Review Reports
From time to time, in accordance with the Recordkeeping
Agreement and the Program Administration Manual, the Recordkeeper
will provide the Employer with reports and other information
relating to the Employer's Program for its review. The Employer
agrees to review all such reports within a reasonable period (but
no more than thirty (30) days) and notify the Association and the
Recordkeeper of any errors or discrepancies.
5. Contributions and Loan Repayments
The Employer agrees to timely forward to the Trustee all
contributions to the Program and loan repayments on behalf of
Participants in accordance with the procedures reviewed and
approved by the Employer in the Program Administration Manual.
The Employer shall not forward any funds by bank wire until the
Recordkeeper notifies the Employer that all data required in
connection with the contribution and loan repayment transactions
is in good order and can be processed. The Employer shall bring
any errors made in connection with the forwarding of
contributions and loan repayments, and any related data, to the
attention of the Committee, Trustee and Recordkeeper as soon as
possible.
6. Participant Enrollment and Elections
a. Enrollments. Unless otherwise agreed by the Committee
and Recordkeeper, Participant enrollments and contribution
elections (other than in connection with automatic Basic
Contributions, if permitted under the Program) shall be made
telephonically or electronically by Participants in accordance
with procedures established by the Recordkeeper with the
Committee's approval.
b. Investment of New Contributions and Loan Repayments.
Contributions made by or on behalf of a Participant shall be
invested by the Trustee in one or more of the Investment Funds as
directed by the Participant in increments of 1%. Participants
may change their election for the allocation of future
contributions each business day the Trustee and New York Stock
Exchange are open, except that:
If this box [ ] is checked, Participants are limited to ___
number of changes for future contributions during each Program
Year.
If this box [ ] is checked, Participants may only allocate their
contributions in __% increments.
c. Exchanges. Unless otherwise agreed by the Committee
and the Recordkeeper, Participants may re-allocate the investment
of their Accounts among the Investment Funds in increments of 1%
or greater, in dollars, or by a number of shares (if applicable
to the particular Investment Fund), and Participants may direct
exchanges of amounts held in their Accounts among the Investment
Funds on each business day the Trustee and New York Stock
Exchange are open.
7. Beneficiary Designations
Select one:
[x] The Recordkeeper shall maintain records of all
Participants' Beneficiary designations and no Beneficiary
designation or change in Beneficiary designation shall be
effective until received by the Recordkeeper, provided that, if
this Adoption Agreement reflects an amendment and restatement of
an existing Program, any Beneficiary designation heretofore
received by the Employer from a Participant shall be effective
until a new Beneficiary designation form is received by the
Recordkeeper.
The Employer agrees that the Recordkeeper shall, after
the effective date of this Adoption Agreement, seek new
Beneficiary designation forms from Participants in the form and
manner specified by the Recordkeeper and approved by the
Committee. The Employer agrees to maintain any Beneficiary
designations that the Employer may currently have on file and
provide copies to the Recordkeeper on request.
[ ] The Employer shall maintain records of all
Participants' Beneficiary designations. No Beneficiary
designation or change in Beneficiary designation shall be
effective unless provided in the form and manner specified by the
Committee and received by the Employer. The Employer shall be
solely responsible for making sure that any Beneficiary
designation received is properly completed and for maintaining
all records of Beneficiary designations.
8. Authorization of Persons to Act for the Employer
The Employer shall designate the persons authorized to act
on its behalf in providing directions to the Recordkeeper and the
Trustee from time to time in the form and manner specified by the
Committee.
9. Program Expenses
a. Association Administration Fee. For services provided
to the Program, the Association shall receive a fee determined
from time to time by the Committee with advance notice to the
Employer. This fee is intended to reimburse the Association its
expenses in providing administrative and other services to the
Program, including but not limited to salaries, benefits and
other expenses and overhead costs for Association staff that
assists the Committee in carrying out its responsibilities with
respect to the Program, the fees and expenses of attorneys,
accountants, and other persons necessary for the operation of the
Program, and the travel expenses of members of the Committee.
b. Receipt of Fees by the Association. Under the
Recordkeeping Agreement, the Recordkeeper has agreed to pay the
Association $5 per participant annually in consideration for
services that the Association provides to the Programs. In
addition, if the market value of assets invested by the Program
in actively-managed Fidelity Mutual Funds exceeds $600 million,
the Recordkeeper shall pay to the Association a revenue-sharing
fee as further described by the Recordkeeping Agreement. The
Association reduces the Association Administration Fee otherwise
payable by the Employer's Program by its allocable portion of the
fees received from the Recordkeeper.
c. Payment of Program Expenses. In accordance with
Section 11.7 of the Program, as amended, all reasonable and
necessary expenses of administering the Program shall be paid by
the Trust, except to the extent that the Employer pays such
expenses. The Employer elects to pay the following fees on
behalf of the Employer's Program, as such fees may be amended
from time to time with advance notice to the Employer:
[x] Association Administration Fee (after reduction by any
amount payable by the Program through the Association's receipt
of fees from the Recordkeeper), as such fee is determined from
time to time by the Committee.
[x] Annual per participant fee of $9, payable to the Recordkeeper.
[ ] MIP II (charged at the rate of 0.15% annually of the average
daily book value)
[ ] Stable Value Fund (0.15% annually on the portion invested in
MIP II, plus expenses relating to investments in INVESCO IRT
Stable Value Fund)
[ ] U.S. Equity Commingled Index Pool (charged at the rate
of 0.10% annually of the average market value of amounts
invested)
[ ] Fidelity Large Cap Value Collective Trust for Blue
Cross and Blue Shield Plans (charged at the rate of 0.50%
annually of the average market value of amounts invested)
[ ] Other (specify):_________________________________________
If the Employer does not elect to pay some or all of the expenses
of the Employer's Program, or the Employer does not pay within a
reasonable time, a fee will be charged to each Participant's
Account to cover the expenses. In the case of fees relating to a
specific Investment Fund, a fee to cover such expenses shall be
charged against the assets of the Investment Fund or to the
Accounts of the Participants who have elected to have a portion
or all of their Account invested in such Investment Fund, as
directed by the Committee.
d. Employer Direct Expenses. If the Employer elects, the
Employer may notify the Committee of any reasonable and necessary
direct expenses that the Employer incurs on behalf of the
Employer's Program and the Committee shall arrange for
reimbursement of the Employer from the assets of the Employer's
Program as agreed by the Employer and the Committee, provided
that the Employer may not obtain any reimbursement of direct
expenses except to the extent permissible under ERISA.
APPROVED:
RightCHOICE Managed Care, Inc.
[Employer]
By: /s/ ▇▇ ▇▇▇▇▇▇
Title: VP HR
Date: 6/21/00
H:ak\401k\amend\241 Fidelity AA