EXHIBIT 10.4
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT, made and entered into as of the 26th day of October,
2001 by and between CENTENE CORPORATION, a Wisconsin corporation (hereinafter
called the "Company"), and Xxxx X'Xxxx (hereinafter called the "Executive").
1. EMPLOYMENT. Company hereby employs Executive as Executive Senior
Vice President of the Operations Group with such other or additional titles or
positions as Company's President, Vice Presidents, or Board of Directors may,
from time to time, determine.
2. DUTIES. During the employment period, Executive shall faithfully
perform her duties to the best of her ability and in accordance with the
directions and orders (and to the satisfaction) of the Company's President, Vice
Presidents, and Board of Directors of Company, and she shall devote her full
working time, attention and energy to the performance of her duties.
In addition to the duties assigned to her by the Company's President
and/or Vice Presidents and/or Board of Directors of Company, Executive shall
perform such other duties as are commensurate with her position and
responsibilities, including without limitation, exercising her best judgment;
safeguarding and saving from waste the assets of Company; and following,
maintaining, and implementing the business plans, budgets, business procedures
and directives established and promulgated by Company, as modified or amended
from time to time.
Except as otherwise provided herein, Executive shall not render
services, directly or indirectly, to any other person or organization without
her Supervisor's prior written consent and shall not engage in any activity that
would interfere significantly with the faithful performance of her duties
thereunder. Executive may perform minor services for which she does not receive
compensation, provided that the activity does not conflict with the provisions
of her duties, without written consent.
3. COMPENSATION. As compensation for all services rendered by Executive
under this agreement, company shall pay to Executive, in accordance with its
then prevailing payroll practices, a salary at the annualized rate of Two
Hundred Forty Thousand Dollars ($240,000.00), less applicable payroll
deductions. This salary may be adjusted from time to time as directed by the
Executive's immediate supervisor or the Company's or Plan's President.
4. OTHER EMPLOYMENT BENEFITS. During the Employment Period:
(a) Company shall reimburse Executive monthly for actual,
reasonable, and necessary out-of-pocket expenses she
incurs on Company's business in compliance with
company policies and procedures.
(b) Executive shall participate in such of Company's
Executive plans or fringe benefit arrangements as
provided for all Executives, subject to their terms
and conditions.
(c) Vacation Leave. During the Employment Term, Executive
shall be entitled to a number of vacation days as
established in the standard company policy for senior
executives. Executive shall accrue and receive full
compensation and benefits during her vacation leave
periods. Vacation leave shall be taken at such times
as do not have an adverse effect on the operations or
transactions of the Company or otherwise as Executive
and her immediate supervisor shall agree.
(d) Bonus Plan. The annual target bonus is 30% of base
salary with potential to exceed that if and when the
company exceeds its Annual Operating Plan criteria.
This award is at the discretion of the Company's
President. The Bonus Plan may be adjusted from time
to time as directed by the Company's President.
5. TERMINATION OF EMPLOYMENT.
(a) Termination for Cause. If the Company terminates
Executive's employment For Cause, or if Executive
resigns from her employment pursuant to Subsection
5(b), Executive shall be entitled only to payment of
that portion of her Salary earned through and
including the Termination Date or the Resignation
Date at the rate of Salary in effect at that time.
(b) Resignation. Executive may resign from her employment
with the Company at any time by providing written
notice of her resignation to her immediate supervisor
at least thirty (30) days before the Resignation
Date, in which case she shall be entitled to
compensation as provided in Subsection 5(a).
(c) Death. If Executive dies during her employment, or
Executive is entitled to receive payments from the
Company pursuant to Section 5(a) at the time of her
death, Executive's estate or personal representative
shall be entitled to receive that portion of the
Salary, at the rate in effect at Executive's death,
that Executive earned through and including the date
of Executive's death.
(d) Disability. If Executive becomes Permanently
Disabled, the Board may terminate Executive's
employment by providing written notice to Executive
at least 72 hours before the Termination Date. If
Executive resigns from employment with the Company as
a result of a Permanent Disability, or the Company
terminates Executive's employment as a result of a
Permanent Disability, Executive shall be entitled to
receive that portion of her Salary, at the rate in
effect at the time she became Permanently Disabled,
that she earned through and including the Termination
Date or Resignation Date, as applicable; provided,
however, the amount due and payable for the period on
and after the date on which Executive became
Permanently Disabled shall not be less than the
portion of the Salary that would have been paid to
her if she had continued in the
Company's employment for the 180 day period following
the date on which she became Permanently Disabled.
(e) Compensation Following Termination. If the Company
terminates Executive's employment other than For
Cause the Company shall pay Executive that portion of
her Salary earned through and including the
Termination Date or the Resignation Date at the rate
of Salary in effect at that time, plus an amount
equal to fifty two (52) weeks of her annualized
Salary paid as salary continuance in accordance with
the then current payroll practices, and conditioned
upon Executive's signing, and not revoking, a
complete Release of any and all claims. In such case,
Company shall pay for twelve (12) of the eighteen
(18) months health and dental insurance continuation
coverage to which Executive is entitled under the
Consolidated Omnibus Budget Reconciliation Act of
1985, Public Law 99-272, Title X (COBRA).
(f) Change of Control In the event of a "Change in
Control" which, within 24 months from and after such
Change in Control results in (a) the involuntary
termination of Executive's employment by the Company,
or (b) the voluntary resignation of employment by
Executive because of (i) the reduction of Executive's
compensation, (ii) a material adverse change in
Executive's position with the Company or the nature
or scope of Executive's duties or (iii) a request by
the Company or the surviving entity of the
transaction that resulted in the Change of Control
that Executive relocate outside of the Metropolitan
St. Louis area which Executive refuses, then
Executive shall receive severance equal to (52) weeks
pay paid at her choice (which choice shall be
irrevocably made and set forth as part of the Release
described below) either as a lump sum payment or
salary continuance, rather than the severance paid
pursuant to paragraph 5(c) above, but conditioned
upon Executive's signing, and not revoking, a
complete Release of any and all claims. In such case,
Company shall pay for (12) of the eighteen (18)
months health and dental insurance continuation
coverage to which Executive is entitled under the
Consolidated Omnibus Budget Reconciliation Act of
1985, Public Law 99-272, Title X (COBRA). In
addition, the Company agrees to pay for reasonable
outplacement services arranged by the Company.
Notwithstanding the foregoing, no payment or payments
shall be made under this Agreement which would be an
"excess parachute payment" as defined in Section
280G(b) of the Internal Revenue Code of 1986, as
amended. Payments which would be "excess parachute
payments" shall be proportionately reduced so that no
portion of any payment shall constitute
an "excess parachute payment." For purposes hereof a
"Change in Control" of the Company shall be deemed to
occur if (i) any "person" (as such term is used in
Section Section 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange
Act")), other than (A) persons who, at the date of
this Agreement, are the beneficial owners of 25% or
more of the Company's voting securities or (B) a
group including Executive, is or
becomes the "beneficial owner" (as defined in Rule
13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing
fifty percent (50%) or more of the combined voting
power of the Company's then outstanding securities,
or (ii) the shareholders of the Company approve a
merger or consolidation of the Company with any other
corporation, other than a merger or consolidation
which would result in the voting securities of the
Company outstanding immediately prior thereto
continuing to represent (either by remaining
outstanding or by being converted into voting
securities of the surviving entity) at least fifty
percent (50%) of the combined voting power of the
voting securities of the Company or such surviving
entity outstanding immediately after such merger or
consolidation. Further, for purposes hereof, a
"Change in Control" also shall be deemed to occur if
individuals who, as the date hereof, constitute the
Board of Directors of the Company (the "Incumbent
Board) cease for any reason to constitute at least a
majority of the Board of Directors of the Company;
provided, however, that an individual becoming a
director subsequent to the date hereof whose
election, or nomination for election by the Company's
shareholders, was approved by at least a majority of
the directors then comprising the Incumbent Board
shall be included within the definition of Incumbent
Board, but excluding, for this purpose, any such
individual whose initial assumption of office occurs
as a result of either an actual election contest (or
such terms are used in Rule 14a-11 of Regulation 14A
promulgated under the Exchange Act) or other actual
or threatened solicitation of proxies or consents by
or on behalf of a person other than the Board.
6. COVENANTS.
(a) Non-competition by Executive. The Executive
acknowledges that the list of the Company's customers
and customer contacts as it may exist from time to
time are valuable, special, and unique assets of the
Company's business. During the period of twelve (12)
months immediately after the termination of
Executive's employment with the Company for any cause
whatsoever, Executive will not, either directly or
indirectly, either for Executive or for any other
person, firm, Company or corporation, call upon,
solicit, divert, or take away, or attempt to solicit,
divert or take away any of the Executives, customers,
prospective customers, or business, of the Company
upon whom Executive called, solicited, catered, or
became acquainted during Executive's employment with
the Company.
(b) Return of Company Records and Property. Executive
agrees that upon termination of Executive's
employment, for any cause whatsoever, Executive will
surrender to the Company in good condition all
property and equipment belonging to Company and all
records kept by Executive containing the names,
addresses or any other information with regard to
customers or customer contacts of the Company, or
concerning any operational, financial or other
documents given to Executive during Executive's
employment with Company.
(c) Non-disclosure by Executive. The Executive
acknowledges and agrees that any information obtained
by Executive while employed by the Company, including
but not limited to customer lists and customer
contacts, financial, promotional, marketing, training
or operational information, and employment data is
highly confidential, and is important to the Company
and to the effective operation of the Company's
business. Executive, therefore, agrees that while
employed by the Company, and at any time thereafter,
Executive will make no disclosure of any kind,
directly or indirectly, concerning any such
confidential matters relating to the Company or any
of its activities.
(d) Enforcement. In the event of a breach or threatened
breach by the Executive of the provisions of this
Agreement, the Company shall be entitled to a
restraining order and/or an injunction restraining
the Executive from contacting, servicing or
soliciting Company's customers, or customer contacts,
or utilizing or disclosing, in whole or in part, the
list of the Company's customers, customer contacts,
employees, or financial, operational, promotional,
marketing, or training information, or from rendering
any services to any persons, firm, corporation,
association, or other entity to whom such list or
information, in whole or in part, has been disclosed
or is threatened to be disclosed. In the event the
Company is successful in any suit or proceeding
brought or instituted by the Company to enforce any
of the provisions of this agreement on account of any
damages sustained by the Company by reason of the
violation by the Executive of any of the terms and/or
provisions of this agreement to be performed by the
Executive, the Executive agrees to pay the Company
reasonable attorney's fees to be fixed by the Court.
7. INVENTIONS.
(a) Executive shall promptly communicate and disclose in
writing to Company all those inventions and
developments including software, whether patentable
or not, as well as patents and patent applications
(hereinafter collectively called "Inventions"), made,
conceived, developed, or purchased by her, or under
which she acquires the right to grant licenses or to
become licensed, alone or jointly with others, which
have arisen or jointly with others, which have arisen
or may arise out of her employment, or relate to any
matters pertaining to, or useful in connection
therewith, the business or affairs of Company or any
of its subsidiaries. Included herein as if developed
during the employment period is any specialized
equipment and software developed for use in the
business of Company. All of Executive's right, title
and interest in, to, and under all such inventions,
licenses, and right to grant licenses shall be the
sole property of Company. Any such inventions
disclosed to anyone by Executive within one (1) year
after the termination of employment for any cause
whatsoever shall be deemed to have been made or
conceived by Executive during the Employment Period.
(b) As to all such invention, Executive shall, upon
request of Company:
i. Execute all documents which Company shall
deem necessary or proper to enable it to
establish title to such inventions or other
rights, and to enable it to file and
prosecute applications for letters patent of
the United States and any foreign country;
and
ii. Do all things (including the giving of
evidence in suits and other proceedings)
which Company shall deem necessary or proper
to obtain, maintain, or assert patents for
any and all such inventions or to assert its
rights in any inventions not patented.
8. LITIGATION. Executive agrees that during her employment or
thereafter, she shall do all things, including the giving of evidence in suits
and other proceedings, which Company shall deem necessary or proper to obtain,
maintain or assert rights accruing to Company during the employment period and
in connection with which Executive has knowledge, information or expertise. All
reasonable expenses incurred by Executive in fulfilling the duties set forth in
this paragraph 8 shall be reimbursed by Company to the full extent legally
appropriate, including, without limitation, a reasonable payment for Executive's
time.
9. MODIFICATION. No modification, amendment, or waiver of any of the
provisions of this Agreement shall be effective unless made in writing
specifically referring to this Agreement and signed by all parties therefore.
10. ENTIRE AGREEMENT. This instrument constitutes the entire agreement
of the parties hereto with respect to Executive's employment and her
compensation therefore.
11. WAIVER. The failure to enforce at any time any of the provisions of
this agreement or to require at any time performance by any party of any of the
provisions hereof shall in no way be construed to be a waiver of such provisions
or to affect either the validity of this Agreement, or any part hereof, or the
right of each party thereafter to enforce each and every provision in accordance
with the terms of this Agreement.
12. SEVERABILITY. The invalidity or unenforceability of any particular
provision of this Agreement shall not affect the other provisions hereof, and
this Agreement shall be construed in all respects as if such invalid or
unenforceable provision were omitted.
13. PRONOUNS. As used herein, the term "Executive" and the pronouns
therefore have been used for convenience only, and corresponding terms
reflecting the proper gender of Executive shall be deemed substituted by the
parties hereto where appropriate.
14. SUCCESSORS. This Agreement shall be binding upon and shall inure to
the benefit of Company and any successor or assign of Company. For the purposes
of this Agreement, the terms "successor or assign" shall mean any person, firm,
corporation, or other business entity which, at any time, whether by merger,
purchase, assignment or otherwise, shall acquire the assets or business of
Company in part or as a whole.
This Agreement shall also be binding upon and shall inure to the
benefit of Executive and her legal representatives and assigns, except that
Executive's obligations to perform such future services and rights to receive
payment therefore are hereby expressly declared to be non-assignable and
non-transferable.
15. GOVERNING LAW. This Agreement shall be interpreted and executed in
accordance with the laws of the State of Missouri.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be duly executed as of the day and year first above written.
CENTENE CORPORATION
By /s/ Xxxxxxx X. Xxxxxxxx
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"Company"
By /s/ Xxxx X'Xxxx
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"Executive"
Date October 26, 2001
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