exhibit101.htm


    Exhibit
      10.1

     

    
      CENTENE
        CORPORATION

       

      Restricted
        Stock Unit Agreement Granted Under

      Amended
        and Restated 2003 Stock Incentive Plan

      


      THIS
        AGREEMENT is entered into by Centene Corporation, a Delaware corporation
        (hereinafter the “Company”), and the undersigned employee of the Company
        (hereinafter the “Participant”).

       

      WHEREAS,
        the Participant renders important services to the Company and acquires access
        to
        Confidential Information (as defined below) of the Company in connection
        with
        the Participant’s relationship with the Company; and

       

      WHEREAS,
        the Company desires to align the long-term interests of its valued employees
        with those of the Company by providing the ownership interest granted herein
        and
        to prevent former employees whose interest may become adverse to the Company
        from maintaining an ownership interest in the Company;

       

      NOW,
        THEREFORE, in consideration of the foregoing and the mutual agreements herein
        contained, the parties hereto hereby agree as follows:

       

      1.           Grant
        of RSUs.

       

      This
        Agreement evidences the grant by the Company on __________, 20__ (the “Grant
        Date”) to (the “Participant”) of __________ restricted stock units (each an
“RSU,” and collectively the “RSUs”) pursuant to the Company’s Amended and
        Restated 2003 Stock Incentive Plan (the “Plan”).  Each RSU represents
        the right to receive one share of the common stock, $.001 par value per share,
        of the Company (“Common Stock”) as provided in this Agreement.  The
        shares of Common Stock that are issuable upon vesting of the RSUs are referred
        to in this Agreement as “Shares.”

       

      2.           Performance
        Condition and Vesting.

       

      (a)           The
        grant of RSUs provided for in Section 1 shall be conditioned on achievement
        of
        such performance goals as the Board of Directors (or its delegate pursuant
        to
        the Plan) may require in its sole discretion with respect to the Company’s full
        fiscal year next following the Grant Date, or if the Grant Date occurs within
        the first 90 days of a fiscal year, with respect to the full fiscal year
        that
        includes the Grant Date.  The performance goals of the Participant may
        be related to any combination of Company and individual objectives and need
        not
        be the same as those of other RSU recipients.  The Participant’s
        performance goals shall be established and communicated to the Participant
        in
        writing not later than 90 days after the beginning of the fiscal year to
        which
        they apply.

       

      (b)           If
        the requirements of paragraph (a) are satisfied, then the RSUs shall vest
        as to
        _____% of the original number of RSUs on ______________ and as to an additional
        ____% of the original number of RSUs at the end of each successive 12-month
        period following the _______ anniversary of the Grant Date until the _______
        anniversary of the Grant Date.

       

      3.           Reorganization
        Event.

       

      Notwithstanding
        the requirements of Section 2, upon the occurrence of a “Change in Control,” all
        of the RSUs that (but for the application of this clause) are not vested
        at the
        time of the occurrence of such Change in Control event shall vest.  A
“Change in Control” shall be deemed to have occurred if any of the events set
        forth in any one of the following clauses shall occur:  (i) any Person
        (as defined in section 3(a)(9) of the Securities Exchange Act of 1934, as
        amended (the “Exchange Act”), and as such term is modified in sections 13(d) and
        14(d) of the Exchange Act), excluding a group of persons including the
        Participant, is or becomes the “beneficial owner” (as defined in Rule 13(d)(3)
        under the Exchange Act), directly or indirectly, of securities of the Company
        representing forty percent or more of the combined voting power of the Company’s
        then-outstanding securities; (ii) individuals who, as of the Grant Date,
        constitute the Board of Directors of the Company (the “Incumbent Board”), cease
        for any reason to constitute a majority thereof (provided, however, that
        an
        individual becoming a director subsequent to the Grant Date whose election,
        or
        nomination for election by the Company’s stockholders, 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 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 of Directors of the Company); or (iii) the stockholders of
        the
        Company consummate a merger or consolidation of the Company with any other
        corporation, other than a merger or consolidation that 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 of
        the
        combined voting power of the voting securities of the Company or such surviving
        entity outstanding immediately after such merger or consolidation.

       

      4.           Distribution
        of Shares.

       

      (a)           Timing
        of Distribution.  The Company will distribute to the Participant
        (or to the Participant’s estate in the event of the death of the Participant
        occurring after a vesting date but before distribution of the corresponding
        Shares), as soon as administratively practicable after each vesting date,
        the
        Shares represented by RSUs that vested on such vesting date.

       

      (b)           No
        Fractional Shares.  No fractional Shares shall be issuable
        pursuant to any RSU.  In lieu of any fractional shares to which the
        Participant would otherwise be entitled, the Company shall pay cash in an
        amount
        equal to such fraction multiplied by the Fair Market Value (as defined in
        the
        Plan) of a share of Common Stock.

       

      (c)           Termination
        of Employment.  In the event that the Participant’s employment
        with the Company (and any parent or subsidiary thereof) is terminated for
        any
        reason by the Company or by the Participant (including by reason of death
        or
        disability, within the meaning of Section 22(e)(3) of the Internal Revenue
        Code
        of 1986, as amended (the “Code”)), the RSUs shall cease vesting as of the date
        of termination.

       

      (d)           Compliance
        Restrictions.  The Company shall not be obligated to issue to the
        Participant the Shares upon the vesting of any RSU (or otherwise) unless
        (i) the
        Participant has complied with covenants set forth in Section 10 of this
        Agreement and (ii) the issuance and delivery of such Shares shall comply
        with
        all relevant provisions of law and other legal requirements including any
        applicable federal or state securities laws and the requirements of any stock
        exchange or quotation system upon which Common Stock may then be listed or
        quoted.

       

      5.           Restrictions
        on Transfer.

       

          
The
        RSUs may
        not be sold, assigned, transferred, pledged or otherwise encumbered by the
        Participant, either voluntarily or by operation of law, except by will or
        the
        laws of descent and distribution, and, during the lifetime of the Participant,
        the RSUs shall be exercisable only by the Participant.

       

      6.           No
        Rights as Stockholder.

       

      Except
        as
        set forth in the Plan, neither the Participant nor any person claiming under
        or
        through the Participant shall be, or shall have any rights or privileges
        of, a
        stockholder of the Company in respect of any Share issuable pursuant to the
        RSUs
        granted hereunder until such Share has been delivered to the
        Participant.

       

      7.           Withholding
        Taxes; Section 83(b) Election.

       

      (a)           No
        Shares will be delivered pursuant to the vesting of an RSU unless and until
        the
        Participant pays to the Company, or makes provision satisfactory to the Company
        for payment of, the amount (with respect to such vesting, the “Withholding
        Amount”) of the Company’s minimum statutory withholding obligations with respect
        to the income recognized by the Participant upon such vesting, based on minimum
        statutory withholding rates for all tax purposes, including payroll and social
        security taxes, that are applicable to such income.

       

      (b)           The
        Participant acknowledges that no election under Section 83(b) of the Code
        may be
        filed with respect to the RSUs.

       

      8.           Automatic
        Sale Upon Vesting.

       

      (a)           Upon
        any vesting of RSUs pursuant to Section 2 hereof, the Company may sell, or
        arrange for the sale of, such number of the Shares issuable pursuant to such
        vested RSU under Section 2 as is sufficient to generate net proceeds to satisfy
        the Company’s minimum statutory withholding obligations with respect to the
        income recognized by the Participant upon vesting (based on minimum statutory
        withholding rates for all tax purposes, including payroll and social security
        taxes, that are applicable to such income), and the Company shall retain
        such
        net proceeds in satisfaction of such tax withholding obligations.

       

      (b)           The
        Participant hereby appoints the Company’s Secretary as his or her
        attorney-in-fact to sell the Shares in accordance with this Section
        8.  The Participant agrees to execute and deliver such documents,
        instruments and certificates as may reasonably be required in connection
        with
        the sale of the Shares pursuant to this Section 8.

       

      (c)           It
        is understood that the Participant and the Company may agree from time to
        time,
        subject to compliance with applicable laws, to procedures to be implemented,
        in
        lieu of the procedures set forth in paragraphs (a) and (b) of this Section
        8, to
        fund the Withholding Amount.

       

      9.           Provisions
        of the Plan.

       

      The
        RSUs
        are subject to the provisions of the Plan, a copy of which is being furnished
        to
        the Participant with this Agreement.

       

      10.           Participant’s
        Covenants.

       

      For
        and
        in consideration of the delivery of this Agreement, the Participant agrees
        to
        the provisions of this Section 10.

       

      (a)           Confidential
        Information.  As used in this Agreement, “Confidential
        Information” shall mean the Company’s trade secrets and other non-public
        proprietary information relating to the Company or the business of the Company,
        including information relating to financial statements, customer lists and
        identities, potential customers, customer contacts, employee skills and
        compensation, employee data, suppliers, acquisition targets, servicing methods,
        equipment, programs, strategies and information, analyses, marketing plans
        and
        strategies, profit margins, financial, promotional, marketing, training or
        operational information, and other information developed or used by the Company
        that is not known generally to the public or the
        industry.  Confidential Information shall not include any information
        that is in the public domain or becomes known in the public domain through
        no
        wrongful act on the part of the Participant.

       

      (b)           Non-Disclosure.  The
        Participant agrees that the Confidential Information is a valuable, special
        and
        unique asset of the Company’s business, that such Confidential Information is
        important to the Company and the effective operation of the Company’s business,
        and that during employment with the Company and at all times thereafter,
        the
        Participant shall not, directly or indirectly, disclose to any competitor
        or
        other person or entity (other than current employees of the Company) any
        Confidential Information that the Participant obtains while performing services
        for the Company, except as may be required in the Participant’s reasonable
        judgment to fulfill his duties hereunder or to comply with any applicable
        legal
        obligation.

       

      (c)           Non-Competition;
        Non-Solicitation.

       

      (i)           During
        the Participant’s employment with the Company and for the period of six months
        immediately after the termination of the Participant’s employment with the
        Company for any cause whatsoever, the Participant shall not invest in (other
        than in a publicly traded company with a maximum investment of no more than
        1%
        of outstanding shares), counsel, advise, consult or be otherwise engaged
        or
        employed by any entity or enterprise (a “Competitor”) that competes with (A) the
        Company’s business of providing Medicaid managed care services, Medicaid-related
        services, and behavior health, nurse triage and pharmacy compliance specialty
        services or (B) any other business in which, after the Grant Date, the Company
        becomes engaged (or has taken substantial steps in which to become engaged)
        on
        or prior to the date of termination of the Participant’s employment, regarding
        which business the Participant has acquired confidential information, and
        regarding which business constitutes (or is expected to constitute if only then
        recently commenced) more than 5% of the annual gross revenues of the Company
        or,
        as conducted by such Competitor, more than 35% of the Competitor’s annual gross
        revenues.

       

      (ii)           During
        the Participant’s employment with the Company and for the period of twelve
        months immediately after the termination of the Participant’s employment with
        the Company for any cause whatsoever (the “Restricted Period”), the Participant
        will not, either directly or indirectly, either for himself 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 customers, prospective
        customers, business, vendors or suppliers of the Company that the Participant
        had dealings with, or responsibility for, or the Participant had access to,
        confidential information of such customers, vendors or suppliers.

       

      (iii)           The
        Participant shall not, at any time during the Restricted Period, without
        the
        prior written consent of the Company, (A) directly or indirectly, solicit,
        recruit or employ (whether as an employee, officer, director, agent, consultant
        or independent contractor) any person who was or is at any time during the
        previous six months an employee, representative, officer or director of the
        Company; or (B) take any action to encourage or induce any employee,
        representative, officer or director of the Company to cease their relationship
        with the Company for any reason.

       

      (d)           Enforcement.  If
        any of the provisions or subparts of this Section 10 shall be held to be
        invalid
        or unenforceable by a court of competent jurisdiction, the remaining provisions
        or subparts thereof shall nevertheless continue to be valid and enforceable
        according to their terms.  Further, if any restriction contained in
        the provisions or subparts of this Section 10 is held to be overbroad or
        unreasonable as written, the parties agree that the applicable provision
        should
        be considered to be amended to reflect the maximum period, scope or geographical
        area deemed reasonable and enforceable by the court and enforced as
        amended.

       

      (e)           Remedy
        for Breach.

       

      (i)           Because
        the Participant’s services are unique and because the Participant has access to
        the Company’s Confidential Information, the parties agree that any breach or
        threatened breach of this Section 10 will cause irreparable harm to the Company
        and that money damages alone would be an inadequate remedy.  The
        parties therefore agree that, in the event of any breach or threatened breach
        of
        this Section 10, and in addition to all other rights and remedies available
        to
        it, the Company may apply to any court of competent jurisdiction for specific
        performance and/or injunctive or other relief, without a bond, in order to
        enforce or prevent any violations of the provisions of this Section
        10.

       

      (ii)           The
        Participant acknowledges and agrees that nothing contained herein shall be
        construed to be an excessive remedy to prohibit the Company from pursuing
        any
        other remedies available to it for such actual or threatened breach, including
        the recovery of money damages, proximately caused by the Participant’s breach of
        this Section 10.

       

      (f)           Survival.  The
        provisions of this Section 10 shall survive and continue in full force in
        accordance with their terms notwithstanding any forfeiture, termination or
        expiration of this Agreement in accordance with its terms or any termination
        of
        the Participant’s employment for any reason (whether voluntary or
        involuntary).

       

      11.           Miscellaneous.

       

      (a)           Severability.  The
        invalidity or unenforceability of any provision of this Agreement shall not
        affect the validity or enforceability of any other provision of this Agreement,
        and each other provision of this Agreement shall be severable and enforceable
        to
        the extent permitted by law.

       

      (b)           Waiver.  Any
        provision for the benefit of the Company contained in this Agreement may
        be
        waived, either generally or in any particular instance, by the Board of
        Directors of the Company.

       

      (c)           Binding
        Effect.  This Agreement shall be binding upon and inure to the
        benefit of the Company and the Participant and their respective heirs,
        executors, administrators, legal representatives, successors and assigns,
        subject to the restrictions on transfer set forth in Section 5 of this
        Agreement.

       

      (d)           Notice.  All
        notices required or permitted hereunder shall be in writing and deemed
        effectively given upon personal delivery or five days after delivery to a
        United
        States Post Office, by registered or certified mail, postage prepaid, addressed
        to the other party hereto at the address shown beneath his or its respective
        signature to this Agreement, or at such other address or addresses as either
        party shall designate to the other in accordance with this paragraph
        (d).

       

      (e)           Entire
        Agreement.  This Agreement and the Plan constitute the entire
        agreement between the parties, and supersede all prior agreements and
        understandings, relating to the RSUs.

       

      (f)           Participant’s
        Acknowledgments.  The Participant acknowledges that he or
        she:  (i) has read this Agreement; (ii) has been represented in the
        preparation, negotiation, and execution of this Agreement by legal counsel
        of
        the Participant’s own choice or has voluntarily declined to seek such counsel;
        (iii) understands the terms and consequences of this Agreement; (iv) is fully
        aware of the legal and binding effect of this Agreement; and (v) understands
        that the law firms of Wilmer Cutler Pickering Hale and Dorr LLP and Bryan
        Cave
        LLP have acted as counsel to the Company in connection with transactions
        of the
        type contemplated by this Agreement, and neither such firm is acting as counsel
        for the Participant.

       

      (g)           Unfunded
        Rights.  The right of the Participant to receive Common Stock
        pursuant to this Agreement is an unfunded and unsecured obligation of the
        Company.  The Participant shall have no rights under this Agreement
        other than those of an unsecured general creditor of the Company.

       

      (h)           Deferral.  Neither
        the Company nor the Participant may defer delivery of any Shares issuable
        under
        unvested RSUs except to the extent that such deferral complies with the
        provisions of Section 409A of the Code.

       

       

      IN
        WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
        date
        set forth below.

       

      
        	 	CENTENE
                CORPORATION	 
	 	 	 	 
	
                 

              	
                By:
                  

              	 	 
	 	 	Micahel
                F.
                Neidorff	 
	 	 	Chairman,
                President and Chief Executive Officer	 
	 	 	 	
                 

              


      

       

      
         

        
          	 	 	 	 	 
	 	 	 	 	 	 
	
                   

                	
                   

                	 	 	 	 
	 	 	Name	 	 Date