WELLCARE HEALTH PLANS, INC. 2013 INCENTIVE COMPENSATION PLAN

PERFORMANCE STOCK UNIT AWARD NOTICE AND AGREEMENT

This award is made to the Participant named below by WellCare Health Plans, Inc., a Delaware corporation (the “ Company ”).  Subject to the terms and conditions of this Performance Stock Unit Award Notice and Agreement, including Appendix A attached hereto and incorporated herein, and the terms and conditions of the Performance Stock Unit Award Agreement that is available to you on the Company’s Intranet site and is an integral part of this award (together, the “ Award Documentation ”), the Company hereby awards under the WellCare Health Plans, Inc. 2013 Incentive Compensation Plan (the “ Plan ”) the Restricted Stock Units, the vesting of which is conditioned upon the achievement of one or more performance goals (“ PSUs ”), described below to Participant effective as of the Grant Date set forth below.  Capitalized terms used in the Award Documentation that are not defined herein have the meanings attributed to them in the Plan.

 

1.	Participant :  [•]

 

2.	Grant Date :  [•]

 

3.	Performance Period :  [•]

 

4.	Number of PSUs at Target Award :  [•], subject to adjustment as provided in the Award Documentation and the Plan.

 

 

The actual number of PSUs that become eligible for vesting shall be determined by the Committee, in its sole discretion, in accordance with Appendix A .

 

5.	Vesting Date :  [•], subject to Section 8 below.

 

6.	Description of PSUs :  Each PSU constitutes an unfunded and unsecured promise of the Company to deliver one Share to Participant on the Delivery Date (defined below).

 

7.	Termination of Continuous Service :  Except as set forth in Section 8 below, upon the termination of Participant’s Continuous Service for any reason, any then-unvested PSUs shall be forfeited automatically without any payment to Participant and become null and void.

 

8.

Change in Control :  In the event of a Change in Control, the Target Award shall become vested on the Vesting Date; provided that, Participant’s Continuous Service continues through the Vesting Date.  Notwithstanding the foregoing, the Target Award shall become immediately vested on the effective date of the termination of Participant’s Continuous Service if, within twenty-four (24) months following a Change in Control, Participant’s Continuous Service is terminated by (i) the Company or a Subsidiary without Cause or (ii) Participant for Good Reason.

 

9.	Delivery Date :  The Shares underlying the number of vested PSUs shall be delivered as soon as practicable after the Vesting Date, but in no event later than March 15th of the year immediately following the year in which such PSUs vest.

 

*  *  *  *  *

 

By signing below, Participant hereby consents and agrees to the electronic delivery of the Award Documentation.  Participant acknowledges and agrees that (1) the Performance Stock Unit Award Agreement, the Plan and the Plan prospectus are available for Participant’s review on the Company’s Intranet under the Legal Services section, and, upon request, a paper version of each document will be provided to Participant and (2) Participant has reviewed and fully understands the Award Documentation, the Plan and the Plan prospectus and agrees to be bound by the terms and conditions of the Plan and the Award Documentation.

 

 

 

 

 

 

 

APPENDIX A

 

VESTING CRITERIA FOR PERFORMANCE STOCK UNITS

 

All terms used in the chart below shall be defined and interpreted in the Committee’s sole discretion.

 

 

[INSERT GOALS FOR APPLICABLE PERFORMANCE PERIOD]

 

 

Regardless of whether any criteria set forth in Appendix A have been achieved, in making a determination as to whether or not PSUs vest pursuant to this Award, and the number of PSUs that vest pursuant to this Award, if any, the Committee may take into consideration other factors, including, but not limited to, unanticipated events, acquisition and expansion costs, non-recurring and extraordinary items, and other equitable factors, as determined by the Committee in its sole discretion, if such factors occur; provided, however, if this Award is subject to Section 8 of the Plan, no adjustment may be made if and to the extent that such adjustment would cause the Award to fail to qualify as “performance-based compensation” under Section 162(m) of the Code.

 

Notwithstanding the foregoing or as a limitation of Section 18 of the Performance Stock Unit Award Agreement, the Committee shall be authorized, in its sole discretion, at any time prior to the Delivery Date to reduce or otherwise amend the number of Shares deliverable with respect to the PSUs (including determining that zero Shares shall be delivered), regardless of whether any criteria set forth in this Appendix A have been achieved.

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Exhibit 10.2

PERFORMANCE STOCK UNIT AWARD AGREEMENT

 

Pursuant to a Performance Stock Unit Award Notice and Agreement (the “ Award Notice ”), WellCare Health Plans, Inc., a Delaware corporation (the “ Company ”), has granted to Participant named in the Award Notice the number of Restricted Stock Units, the vesting of which is conditioned upon the achievement of one or more performance goals (the “ PSUs ”), set forth in the Award Notice, subject to the terms and conditions of the Award Notice and this Performance Stock Unit Award Agreement (the “ Award Agreement ” and together with the Award Notice, the “ Award Documentation ”).

 

1.   The Plan .  The PSUs are granted pursuant to the WellCare Health Plans, Inc. 2013 Incentive Compensation Plan (the “ Plan ”), a copy of which has been made available to Participant.  The terms and conditions of the Plan are incorporated into this Award Agreement.  As a condition to the grant of PSUs set forth in the Award Notice, Participant agrees to be bound by all of the terms and conditions in the Award Documentation and in the Plan.  If and to the extent that the Award Documentation conflicts or is inconsistent with the terms, conditions and provisions of the Plan, the Plan shall control, and the Award Documentation shall be deemed to be modified accordingly.

 

2.   Accelerated Vesting .  Notwithstanding any other term or provision of the Award Documentation but subject to the provisions of the Plan, the Committee shall be authorized, in its sole discretion, to accelerate the vesting of all or any portion of the PSUs under the Award Documentation, at such times and upon such terms and conditions as the Committee shall deem advisable.

 

3.   No Rights as a Shareholder .  Until the stock certificates reflecting the Shares underlying the PSUs are issued to Participant, which may be in book-entry form, Participant shall have none of the rights of a shareholder with respect to such Shares.

 

4.   Adjustments .  If a PSU is adjusted pursuant to Section 10(c) of the Plan, any such adjustment shall disregard any fractional Share and no Share will be delivered in connection with such fraction.

 

5.   No Effect on Company Actions .  Notwithstanding any term or provision of the Award Documentation to the contrary, the existence of the Award, or of any outstanding PSUs awarded hereunder, shall not affect in any manner the right, power or authority of the Company to make, authorize or consummate: (i) any or all adjustments, recapitalizations, reorganizations, stock splits, stock dividends, combination of shares or other changes in the Company’s capital structure or its business, (ii) any merger, consolidation or similar transaction by or of the Company, (iii) any offer, issue or sale by the Company of any capital stock of the Company, including any equity or debt securities, or preferred or preference stock that would rank prior to or on parity with the PSUs and/or that would include, have or possess other rights, benefits and/or preferences superior to those that the PSUs include, has or possesses, or any warrants, options or rights with respect to any of the foregoing, (iv) the dissolution or liquidation of the Company, (v) any sale, transfer or assignment of all or any part of the stock, assets or business of the Company or (vi) any other corporate transaction, act or proceeding (whether of a similar character or otherwise).

 

6.   Tax Withholding Obligations .  As a condition of this Award, Participant will pay, or otherwise provide for, to the satisfaction of the Company, any applicable federal, state, local or foreign withholding taxes that may be due as a result of the vesting of PSUs or the issuance of Shares under this Award.  In the event that the Company determines that any payment of withholding or other taxes is required, the Company will have the right to: (i) require that Participant arrange such payments to the Company, or (ii) cause an immediate forfeiture of Shares subject to the PSUs granted pursuant to the Award Documentation with a Fair Market Value on the date of forfeiture equal to the withholding or other taxes due.  In addition, in the Company’s sole discretion and consistent with the Company’s rules (including, but not limited to, compliance with the Company’s Policy on Inside Information and Insider Trading) and regulations, the Company may permit Participant to pay the withholding or other taxes due as a result of the vesting of Participant’s PSUs by delivery (on a form acceptable to the Committee or Company) of an irrevocable direction to a licensed securities broker to sell Shares and to deliver all or

 

part of the sales proceeds to the Company in payment of the withholding or other taxes. If Participant delivers to the Company Shares already owned by Participant as payment for any withholding or other tax obligations, (i) only a whole number of Shares (and not fractional Shares) may be delivered and (ii) Shares must be delivered to the Company free and clear of any liens of any kind.  Delivery for this purpose may, at the election of Participant, be made either by (A) physical delivery of the certificate(s) for all such Shares tendered in payment of the withholding or other tax obligations, accompanied by duly executed instruments of transfer in a form acceptable to the Company, or (B) direction to Participant’s broker to transfer, by book entry, such Shares from a brokerage account of Participant to a brokerage account specified by the Company.  If Shares are withheld from Participant to pay any withholding or other tax obligations, only a whole number of Shares (and not fractional shares) will be withheld in payment.  The tax consequences to Participant (including without limitation federal, state, local and foreign income tax consequences) with respect to the PSUs (including without limitation the grant, vesting and/or delivery thereof) are the sole responsibility of Participant.  Participant shall consult with his or her own personal accountant(s) and/or tax advisor(s) regarding these matters and Participant’s filing, withholding and payment (or tax liability) obligations.

 

7.   Non-Transferability .  Unless otherwise determined by the Committee, the PSUs may not be transferred in any manner except by will or the laws of descent and distribution, and any attempt to transfer the PSUs in violation of this Section 7 shall be void ab initio .

 

8.   Amendment, Modification and Assignment .  The Committee may amend or modify the Award Documentation at any time as provided by Section 10(f) of the Plan and consistent with Appendix A of the Award Notice.  This Award (and Participant’s rights hereunder) may not be assigned, and the obligations of Participant hereunder may not be delegated, in whole or in part.  The rights and obligations created hereunder shall be binding on Participant and his executors, administrators, and heirs, and on the successors and assigns of the Company.

 

9.   Complete Agreement .  The Award Documentation (together with the Plan and the Plan prospectus) constitute the entire agreement, and supersede all other prior agreements, understandings, representations and warranties, both written and oral, among the parties, with respect to the subject matter hereof.

 

10.   No Right to Continued Employment or Service .  The Award Documentation and the Award shall not confer, or be construed to confer, upon Participant any right to employment or service, or continued employment or service, with the Company or any of its Subsidiaries.

 

11.   No Limit on Other Compensation Arrangements .  Nothing contained in the Award Documentation shall preclude the Company or any of its Subsidiaries from adopting or continuing in effect any other or additional compensation plans, agreements or arrangements.

 

12.   No Trust or Fund Created .  Neither the Award Documentation nor the grant of PSUs pursuant to the Award Documentation shall create or be construed to create a trust or separate fund of any kind or a fiduciary relationship between the Company or any of its Subsidiaries and Participant or any other person.  To the extent that Participant or any other person acquires a right to receive payments from the Company or any of its Subsidiaries pursuant to the Award Documentation, such right shall be no greater than the right of any unsecured general creditor of the Company.

 

13.   Section 409A .  The Award Documentation shall be interpreted, administered and construed in a manner that is intended to avoid the imposition of interest, taxes and penalties on Participant pursuant to Section 409A of the Code.  It is intended that the PSUs are exempt from the requirements of Section 409A of the Code pursuant to the “short-term deferral” exception under Treasury Regulation Section 1.409A-1(b)(4).  To the extent required in order to avoid the imposition of any interest, penalties and additional tax under Section 409A of the Code, any Shares deliverable as a result of Participant’s termination of Continuous Service will be delayed for six months and one day following such termination of Continuous Service, or if earlier, the date of Participant’s death, if Participant is deemed to be a “specified employee” as defined in Section 409A of the Code and as determined by the Company.

 

Any delivery of Shares provided for in the Award Documentation in connection with Participant’s termination of Continuous Service shall be made to Participant only upon a “separation from service” (as such term is defined and used in Section 409A of the Code).  Each delivery of Shares made under the Award Documentation shall be treated as a separate payment for purposes of Section 409A of the Code.  Notwithstanding the foregoing, the Company does not make any representation to Participant that the PSUs awarded pursuant to this Award Documentation are exempt from, or satisfy, the requirements of Section 409A of the Code, and the Company shall have no liability or other obligation to indemnify or hold harmless Participant or any Beneficiary for any tax, additional tax, interest or penalties that Participant or any Beneficiary may incur in the event that any provision of this Award Documentation, or any amendment or modification thereof or any other action taken with respect thereto, is deemed to violate any of the requirements of Section 409A of the Code.

 

14.   Interpretation; Construction .  Participant accepts as binding, conclusive and final all decisions or interpretations of the Committee upon any questions arising under the Award Documentation.  Section, paragraph and other headings and captions are provided solely as a convenience to facilitate reference.  Such headings and captions shall not be deemed in any way material or relevant to the construction, meaning or interpretation of the Award Documentation or any term or provision hereof.

 

15.   Notices .  Any notice under the Award Documentation shall be in writing addressed (i) if to the Company, to the attention of the Company’s General Counsel at 8735 Henderson Road, Renaissance Two, Tampa, Florida 33634, or if the Company should move its principal office, to such principal office and (ii) if to Participant, to Participant’s last permanent address as shown on the Company’s records, or to such other address as may be designated in a notice satisfying the requirements of this Section 15.  Any notices shall be delivered personally or sent by registered or certified mail, postage prepaid, by facsimile (with proof of transmission), by courier (with proof of delivery) or by such other methods that are acceptable to the Company.  Notice shall be deemed to have been duly given when delivered personally or when deposited in the United States mail or sent pursuant to such other method acceptable to the Company.

 

16.   Non-Waiver of Breach .  The waiver by any party hereto of the other party’s prompt and complete performance, or breach or violation, of any term or provision of the Award Documentation shall be effected solely in a writing signed by such party, and shall not operate nor be construed as a waiver of any subsequent breach or violation, and the waiver by any party hereto to exercise any right or remedy which he or it may possess shall not operate nor be construed as the waiver of such right or remedy by such party, or as a bar to the exercise of such right or remedy by such party, upon the occurrence of any subsequent breach or violation.

 

17.   Counterparts .  The Award Documentation may be executed in two or more separate counterparts, each of which shall be an original, and all of which together shall constitute one and the same agreement.

 

18.   Forfeiture and Company Right to Recover Fair Market Value of Shares Received Pursuant to PSUs .  In addition to the provisions set forth in Section 10(g) of the Plan, if, at any time, the Board or the Committee, as the case may be, in its sole discretion determines that any action or omission by Participant constituted (a) wrongdoing that contributed to (i) any material misstatement in or omission from any report or statement filed by the Company with the U.S. Securities and Exchange Commission or (ii) a statement, certification, cost report, claim for payment, or other filing made under Medicare or Medicaid that was false, fraudulent, or for an item or service not provided as claimed, (b) intentional or gross misconduct, (c) a breach of a fiduciary duty to the Company or a Subsidiary, (d) fraud or (e) non-compliance with the Company’s Code of Conduct and Business Ethics, policies or procedures to the material detriment of the Company, then in each such case, commencing with the first fiscal year of the Company during which such action or omission occurred, Participant shall forfeit (without any payment therefore) up to 100% of any PSUs that have not been vested or settled and shall repay to the Company, upon notice to Participant by the Company, up to 100% of the Fair Market Value of the Shares at the time such Shares were delivered to Participant pursuant to the PSUs during and after such fiscal year.  The

 

Board or the Committee, as the case may be, shall determine in its sole discretion the date of occurrence of such action or omission, the percentage of the PSUs that shall be forfeited and the percentage of the Fair Market Value of the Shares delivered pursuant to the PSUs that must be repaid to the Company.

 

19.   Governing Law .  The Award Documentation shall be governed by the corporate laws of the State of Delaware, without giving effect to any choice of law provisions.

 

20.   Severability .  If any term or provision of the Award Documentation is or becomes or is deemed to be invalid, illegal or unenforceable in any jurisdiction or under any applicable law, rule or regulation, then such provision shall be construed or deemed amended to conform to applicable law (or if such provision cannot be so construed or deemed amended without materially altering the purpose or intent of the Award Documentation and the grant of PSUs hereunder, such provision shall be stricken as to such jurisdiction and the remainder of the Award Documentation and the Award hereunder shall remain in full force and effect).

 

 

 

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Exhibit 10.3

 

 

 

Other Award Levels	Number of PSUs
Minimum Award	No PSUs
Threshold Award	50% of PSUs at Target Award
Maximum Award	200% of PSUs at Target Award

 

 

 

PARTICIPANT			WELLCARE HEALTH PLANS, INC.
BY:			By:
	[*]			Name: [*]
				Title: [*]

 

 

 

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Exhibit 10.4

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Exhibit 10.5

WELLCARE HEALTH PLANS, INC. 2013 INCENTIVE COMPENSATION PLAN

MARKET STOCK UNIT AWARD NOTICE AND AGREEMENT

This award is made to the Participant named below by WellCare Health Plans, Inc., a Delaware corporation (the “ Company ”).  Subject to the terms and conditions of this Market Stock Unit Award Notice and Agreement, including Appendix A attached hereto and incorporated herein, and the terms and conditions of the Market Stock Unit Award Agreement that is available to you on the Company’s Intranet site and is an integral part of this award (together, the “ Award Documentation ”), the Company hereby awards under the WellCare Health Plans, Inc. 2013 Incentive Compensation Plan (the “ Plan ”) the Restricted Stock Units, the vesting of which is based upon the formula set forth in Appendix A (“ MSUs ”), described below to Participant effective as of the Grant Date set forth below.  Capitalized terms used in the Award Documentation that are not defined herein have the meanings attributed to them in the Plan.

 

1.	Participant :  [•]

 

2.	Grant Date :  [•]

 

3.	Number of MSUs at Target Award :  [•], subject to adjustment as provided in the Award Documentation and the Plan.

 

The actual number of MSUs that become eligible for vesting shall be determined by the formula in Appendix A and depends on the performance of the Common Stock on the New York Stock Exchange.

 

4.	Vesting Date :  [•], subject to Section 7 below.

 

5.	Description of MSUs :  Each MSU constitutes an unfunded and unsecured promise of the Company to deliver one Share to Participant on the Delivery Date (defined below).

 

6.	Termination of Continuous Service :  Except as set forth in Section 7 below, upon the termination of Participant’s Continuous Service for any reason, any then-unvested MSUs shall be forfeited automatically without any payment to Participant and become null and void.

 

7.

Change in Control :  Any then-unvested MSUs shall become immediately vested on the effective date of the termination of Participant’s Continuous Service if, within twenty-four (24) months following a Change in Control, Participant’s Continuous Service is terminated by (i) the Company or a Subsidiary without Cause or (ii) Participant for Good Reason.

 

8.	Delivery Date :  The Shares underlying the number of vested MSUs shall be delivered as soon as practicable after the Vesting Date, but in no event later than March 15th of the year immediately following the year in which such MSUs vest.

 

By signing below, Participant hereby consents and agrees to the electronic delivery of the Award Documentation.  Participant acknowledges and agrees that (1) the Market Stock Unit Award Agreement, the Plan and the Plan prospectus are available for Participant’s review on the Company’s Intranet under the Legal Services section, and, upon request, a paper version of each document will be provided to Participant and (2) Participant has reviewed and fully understands the Award Documentation, the Plan and the Plan prospectus and agrees to be bound by the terms and conditions of the Plan and the Award Documentation.

 

 

 

APPENDIX A

 

VESTING FORMULA FOR MARKET STOCK UNITS

 

The number of MSUs eligible to vest shall be calculated as follows (as determined and approved by the Committee):

 

MSUs eligible to vest = A multiplied by C divided by B

 

For purposes of the formula set forth above:

 

A equals the number of MSUs at Target Award.

 

B equals the average of the closing price of a Share on the New York Stock Exchange for the last 30 market trading days of the calendar year immediately preceding the calendar year in which the Grant Date occurs.

 

C equals the average of the closing price of a Share on the New York Stock Exchange for the last 30 market trading days of the calendar year immediately preceding the calendar year in which the Vesting Date occurs; provided, however, in the event of a Change in Control that occurs prior to the Vesting Date, C equals the price per Share paid in the Change in Control transaction (with the value of any security that is paid as consideration in the Change in Control determined by the Committee).

 

Maximum Cap .  Notwithstanding the formula set forth above, in the event “C” is more than 200% of “B”, “C” shall be deemed to equal 200% of “B”.

 

Minimum Floor .  Notwithstanding the formula set forth above, no MSUs will be eligible for vesting if “C” equals less than 50% of “B”.

 

No Fractional Shares .   In no event will a fractional Share be delivered in connection with a MSU.  Fractional Shares shall be rounded to the nearest whole Share.

 

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Exhibit 10.6

 

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Exhibit 10.7

PARTICIPANT			WELLCARE HEALTH PLANS, INC.
BY:			By:
	[*]			Name: [*]
				Title: [*]

 

 

 

 

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Exhibit 10.8

MARKET STOCK UNIT AWARD AGREEMENT

 

Pursuant to a Market Stock Unit Award Notice and Agreement (the “ Award Notice ”), WellCare Health Plans, Inc., a Delaware corporation (the “ Company ”), has granted to Participant named in the Award Notice the number of Restricted Stock Units, the vesting of which is based upon the formula set forth in Appendix A of the Award Notice (the “ MSUs ”), set forth in the Award Notice, subject to the terms and conditions of the Award Notice and this Market Stock Unit Award Agreement (the “ Award Agreement ” and together with the Award Notice, the “ Award Documentation ”).

 

1.   The Plan .  The MSUs are granted pursuant to the WellCare Health Plans, Inc. 2013 Incentive Compensation Plan (the “ Plan ”), a copy of which has been made available to Participant.  The terms and conditions of the Plan are incorporated into this Award Agreement.  As a condition to the grant of MSUs set forth in the Award Notice, Participant agrees to be bound by all of the terms and conditions in the Award Documentation and in the Plan.  If and to the extent that the Award Documentation conflicts or is inconsistent with the terms, conditions and provisions of the Plan, the Plan shall control, and the Award Documentation shall be deemed to be modified accordingly.

 

2.   Accelerated Vesting .  Notwithstanding any other term or provision of the Award Documentation but subject to the provisions of the Plan, the Committee shall be authorized, in its sole discretion, to accelerate the vesting of all or any portion of the MSUs under the Award Documentation, at such times and upon such terms and conditions as the Committee shall deem advisable.

 

3.   No Rights as a Shareholder .  Until the stock certificates reflecting the Shares underlying the MSUs are issued to Participant, which may be in book-entry form, Participant shall have none of the rights of a shareholder with respect to such Shares.

 

4.   Adjustments .  If a MSU is adjusted pursuant to Section 10(c) of the Plan, any such adjustment shall disregard any fractional Share and no Share will be delivered in connection with such fraction.

 

5.   No Effect on Company Actions .  Notwithstanding any term or provision of the Award Documentation to the contrary, the existence of the Award, or of any outstanding MSUs awarded hereunder, shall not affect in any manner the right, power or authority of the Company to make, authorize or consummate: (i) any or all adjustments, recapitalizations, reorganizations, stock splits, stock dividends, combination of shares or other changes in the Company’s capital structure or its business, (ii) any merger, consolidation or similar transaction by or of the Company, (iii) any offer, issue or sale by the Company of any capital stock of the Company, including any equity or debt securities, or preferred or preference stock that would rank prior to or on parity with the MSUs and/or that would include, have or possess other rights, benefits and/or preferences superior to those that the MSUs include, has or possesses, or any warrants, options or rights with respect to any of the foregoing, (iv) the dissolution or liquidation of the Company, (v) any sale, transfer or assignment of all or any part of the stock, assets or business of the Company or (vi) any other corporate transaction, act or proceeding (whether of a similar character or otherwise).

 

6.   Tax Withholding Obligations .  As a condition of this Award, Participant will pay, or otherwise provide for, to the satisfaction of the Company, any applicable federal, state, local or foreign withholding taxes that may be due as a result of the vesting of MSUs or the issuance of Shares under this Award.  In the event that the Company determines that any payment of withholding or other taxes is required, the Company will have the right to: (i) require that Participant arrange such payments to the Company, or (ii) cause an immediate forfeiture of Shares subject to the MSUs granted pursuant to the Award Documentation with a Fair Market Value on the date of forfeiture equal to the withholding or other taxes due.  In addition, in the Company’s sole discretion and consistent with the Company’s rules (including, but not limited to, compliance with the Company’s Policy on Inside Information and Insider Trading) and regulations, the Company may permit Participant to pay the withholding or other taxes due as a result of the vesting of Participant’s MSUs by delivery (on a form acceptable to the Committee or Company) of an irrevocable direction to a licensed securities broker to sell Shares and to deliver all or

 

part of the sales proceeds to the Company in payment of the withholding or other taxes. If Participant delivers to the Company Shares already owned by Participant as payment for any withholding or other tax obligations, (i) only a whole number of Shares (and not fractional Shares) may be delivered and (ii) Shares must be delivered to the Company free and clear of any liens of any kind.  Delivery for this purpose may, at the election of Participant, be made either by (A) physical delivery of the certificate(s) for all such Shares tendered in payment of the withholding or other tax obligations, accompanied by duly executed instruments of transfer in a form acceptable to the Company, or (B) direction to Participant’s broker to transfer, by book entry, such Shares from a brokerage account of Participant to a brokerage account specified by the Company.  If Shares are withheld from Participant to pay any withholding or other tax obligations, only a whole number of Shares (and not fractional shares) will be withheld in payment.  The tax consequences to Participant (including without limitation federal, state, local and foreign income tax consequences) with respect to the MSUs (including without limitation the grant, vesting and/or delivery thereof) are the sole responsibility of Participant.  Participant shall consult with his or her own personal accountant(s) and/or tax advisor(s) regarding these matters and Participant’s filing, withholding and payment (or tax liability) obligations.

 

7.   Non-Transferability .  Unless otherwise determined by the Committee, the MSUs may not be transferred in any manner except by will or the laws of descent and distribution, and any attempt to transfer the MSUs in violation of this Section 7 shall be void ab initio .

 

8.   Amendment, Modification and Assignment .  The Committee may amend or modify the Award Documentation at any time as provided by Section 10(f) of the Plan.  This Award (and Participant’s rights hereunder) may not be assigned, and the obligations of Participant hereunder may not be delegated, in whole or in part.  The rights and obligations created hereunder shall be binding on Participant and his executors, administrators, and heirs, and on the successors and assigns of the Company.

 

9.   Complete Agreement .  The Award Documentation (together with the Plan and the Plan prospectus) constitute the entire agreement, and supersede all other prior agreements, understandings, representations and warranties, both written and oral, among the parties, with respect to the subject matter hereof.

 

10.   No Right to Continued Employment or Service .  The Award Documentation and the Award shall not confer, or be construed to confer, upon Participant any right to employment or service, or continued employment or service, with the Company or any of its Subsidiaries.

 

11.   No Limit on Other Compensation Arrangements .  Nothing contained in the Award Documentation shall preclude the Company or any of its Subsidiaries from adopting or continuing in effect any other or additional compensation plans, agreements or arrangements.

 

12.   No Trust or Fund Created .  Neither the Award Documentation nor the grant of MSUs pursuant to the Award Documentation shall create or be construed to create a trust or separate fund of any kind or a fiduciary relationship between the Company or any of its Subsidiaries and Participant or any other person.  To the extent that Participant or any other person acquires a right to receive payments from the Company or any of its Subsidiaries pursuant to the Award Documentation, such right shall be no greater than the right of any unsecured general creditor of the Company.

 

13.   Section 409A .  The Award Documentation shall be interpreted, administered and construed in a manner that is intended to avoid the imposition of interest, taxes and penalties on Participant pursuant to Section 409A of the Code.  It is intended that the MSUs shall comply with the requirements of Section 409A of the Code.  To the extent required in order to avoid the imposition of any interest, penalties and additional tax under Section 409A of the Code, any Shares deliverable as a result of Participant’s termination of Continuous Service will be delayed for six months and one day following such termination of Continuous Service, or if earlier, the date of Participant’s death, if Participant is deemed to be a “specified employee” as defined in Section 409A of the Code and as determined by the Company.  Any delivery of Shares provided for in the Award Documentation in connection with

 

Participant’s termination of Continuous Service shall be made to Participant only upon a “separation from service” (as such term is defined and used in Section 409A of the Code).  Each delivery of Shares made under the Award Documentation shall be treated as a separate payment for purposes of Section 409A of the Code.  Notwithstanding the foregoing, the Company does not make any representation to Participant that the MSUs awarded pursuant to this Award Documentation are exempt from, or satisfy, the requirements of Section 409A of the Code, and the Company shall have no liability or other obligation to indemnify or hold harmless Participant or any Beneficiary for any tax, additional tax, interest or penalties that Participant or any Beneficiary may incur in the event that any provision of this Award Documentation, or any amendment or modification thereof or any other action taken with respect thereto, is deemed to violate any of the requirements of Section 409A of the Code.

 

14.   Interpretation; Construction .  Participant accepts as binding, conclusive and final all decisions or interpretations of the Committee upon any questions arising under the Award Documentation.  Section, paragraph and other headings and captions are provided solely as a convenience to facilitate reference.  Such headings and captions shall not be deemed in any way material or relevant to the construction, meaning or interpretation of the Award Documentation or any term or provision hereof.

 

15.   Notices .  Any notice under the Award Documentation shall be in writing addressed (i) if to the Company, to the attention of the Company’s General Counsel at 8735 Henderson Road, Renaissance Two, Tampa, Florida 33634, or if the Company should move its principal office, to such principal office and (ii) if to Participant, to Participant’s last permanent address as shown on the Company’s records, or to such other address as may be designated in a notice satisfying the requirements of this Section 15.  Any notices shall be delivered personally or sent by registered or certified mail, postage prepaid, by facsimile (with proof of transmission), by courier (with proof of delivery) or by such other methods that are acceptable to the Company.  Notice shall be deemed to have been duly given when delivered personally or when deposited in the United States mail or sent pursuant to such other method acceptable to the Company.

 

16.   Non-Waiver of Breach .  The waiver by any party hereto of the other party’s prompt and complete performance, or breach or violation, of any term or provision of the Award Documentation shall be effected solely in a writing signed by such party, and shall not operate nor be construed as a waiver of any subsequent breach or violation, and the waiver by any party hereto to exercise any right or remedy which he or it may possess shall not operate nor be construed as the waiver of such right or remedy by such party, or as a bar to the exercise of such right or remedy by such party, upon the occurrence of any subsequent breach or violation.

 

17.   Counterparts .  The Award Documentation may be executed in two or more separate counterparts, each of which shall be an original, and all of which together shall constitute one and the same agreement.

 

18.   Forfeiture and Company Right to Recover Fair Market Value of Shares Received Pursuant to MSUs .  In addition to the provisions set forth in Section 10(g) of the Plan, if, at any time, the Board or the Committee, as the case may be, in its sole discretion determines that any action or omission by Participant constituted (a) wrongdoing that contributed to (i) any material misstatement in or omission from any report or statement filed by the Company with the U.S. Securities and Exchange Commission or (ii) a statement, certification, cost report, claim for payment, or other filing made under Medicare or Medicaid that was false, fraudulent, or for an item or service not provided as claimed, (b) intentional or gross misconduct, (c) a breach of a fiduciary duty to the Company or a Subsidiary, (d) fraud or (e) non-compliance with the Company’s Code of Conduct and Business Ethics, policies or procedures to the material detriment of the Company, then in each such case, commencing with the first fiscal year of the Company during which such action or omission occurred, Participant shall forfeit (without any payment therefore) up to 100% of any MSUs that have not been vested or settled and shall repay to the Company, upon notice to Participant by the Company, up to 100% of the Fair Market Value of the Shares at the time such Shares were delivered to Participant pursuant to the MSUs during and after such fiscal year.  The Board or the Committee, as the case may be, shall determine in its sole discretion the date of occurrence

 

of such action or omission, the percentage of the MSUs that shall be forfeited and the percentage of the Fair Market Value of the Shares delivered pursuant to the MSUs that must be repaid to the Company.

 

                19.   Governing Law .  The Award Documentation shall be governed by the corporate laws of the State of Delaware, without giving effect to any choice of law provisions.

 

20.   Severability .  If any term or provision of the Award Documentation is or becomes or is deemed to be invalid, illegal or unenforceable in any jurisdiction or under any applicable law, rule or regulation, then such provision shall be construed or deemed amended to conform to applicable law (or if such provision cannot be so construed or deemed amended without materially altering the purpose or intent of the Award Documentation and the grant of MSUs hereunder, such provision shall be stricken as to such jurisdiction and the remainder of the Award Documentation and the Award hereunder shall remain in full force and effect).

 

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Exhibit 10.9

WELLCARE HEALTH PLANS, INC. 2013 INCENTIVE COMPENSATION PLAN

RESTRICTED STOCK UNIT AWARD NOTICE AND AGREEMENT

This award is made to the Participant named below by WellCare Health Plans, Inc., a Delaware corporation (the “ Company ”).  Subject to the terms and conditions of this Restricted Stock Unit Award Notice and Agreement and the terms and conditions of the Restricted Stock Unit Award Agreement that is available to you on the Company’s Intranet site and is an integral part of this award (together, the “ Award Documentation ”), the Company hereby awards under the WellCare Health Plans, Inc. 2013 Incentive Compensation Plan (the “ Plan ”) the Restricted Stock Units (“ RSUs ”) described below to Participant effective as of the Grant Date set forth below.  Capitalized terms used in the Award Documentation that are not defined herein have the meanings attributed to them in the Plan.

 

1.	Participant :  [•]

 

2.	Grant Date :  [•]

 

3.	Number of RSUs :  [•], subject to adjustment as provided in the Award Documentation and the Plan.

 

4.	Description of RSUs :  Each RSU constitutes an unfunded and unsecured promise of the Company to deliver one Share to Participant on the Delivery Date (defined below).

5.	Normal Vesting Schedule :  Except as set forth below, the RSUs shall vest in accordance with the following table provided that the Continuous Service of Participant continues through and on the applicable Vesting Date set forth below:

Percentage of RSUs that Vest		Vesting Date

Except as otherwise provided in the Award Documentation, the RSUs shall vest only on the Vesting Dates specified above and no partial vesting will occur prior to any Vesting Date.

 

6.	Termination of Continuous Service :  Except as set forth in Section 7 below, upon the termination of Participant’s Continuous Service for any reason, any then-unvested RSUs shall be forfeited automatically without any payment to Participant and become null and void.

 

7.

Change in Control :  Any then-unvested RSUs shall become immediately vested on the effective date of the termination of Participant’s Continuous Service if, within twenty-four (24) months following a Change in Control, Participant’s Continuous Service is terminated by (i) the Company or a Subsidiary without Cause or (ii) Participant for Good Reason.

 

8.	Delivery Date :  The Shares underlying the number of vested RSUs shall be delivered as soon as practicable and, in any case, within 30 days after the date on which such RSUs vested.

 

*  *  *  *  *

 

By signing below, Participant hereby consents and agrees to the electronic delivery of the Award Documentation.  Participant acknowledges and agrees that (1) the Restricted Stock Unit Award Agreement, the Plan and the Plan prospectus are available for Participant’s review on the Company’s Intranet under the Legal Services section, and, upon request, a paper version of each document will be provided to Participant and (2) Participant has reviewed and fully understands the Award Documentation, the Plan and the Plan prospectus and agrees to be bound by the terms and conditions of the Plan and the Award Documentation.

 

 

 

 

2

 

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Exhibit 10.10

RESTRICTED STOCK UNIT AWARD AGREEMENT

 

Pursuant to a Restricted Stock Unit Award Notice and Agreement (the “ Award Notice ”), WellCare Health Plans, Inc., a Delaware corporation (the “ Company ”), has granted to Participant named in the Award Notice the number of Restricted Stock Units (the “ RSUs ”) set forth in the Award Notice, subject to the terms and conditions of the Award Notice and this Restricted Stock Unit Award Agreement (the “ Award Agreement ” and together with the Award Notice, the “ Award Documentation ”).

 

1.   The Plan .  The RSUs are granted pursuant to the WellCare Health Plans, Inc. 2013 Incentive Compensation Plan (the “ Plan ”), a copy of which has been made available to Participant.  The terms and conditions of the Plan are incorporated into this Award Agreement.  As a condition to the grant of RSUs set forth in the Award Notice, Participant agrees to be bound by all of the terms and conditions in the Award Documentation and in the Plan.  If and to the extent that the Award Documentation conflicts or is inconsistent with the terms, conditions and provisions of the Plan, the Plan shall control, and the Award Documentation shall be deemed to be modified accordingly.

 

2.   Accelerated Vesting .  Notwithstanding any other term or provision of the Award Documentation but subject to the provisions of the Plan, the Committee shall be authorized, in its sole discretion, to accelerate the vesting of all or any portion of the RSUs under the Award Documentation, at such times and upon such terms and conditions as the Committee shall deem advisable.

 

3.   No Rights as a Shareholder .  Until the stock certificates reflecting the Shares underlying the RSUs are issued to Participant, which may be in book-entry form, Participant shall have none of the rights of a shareholder with respect to such Shares.

 

4.   Adjustments .  If a RSU is adjusted pursuant to Section 10(c) of the Plan, any such adjustment shall disregard any fractional Share and no Share will be delivered in connection with such fraction.

 

5.   No Effect on Company Actions .  Notwithstanding any term or provision of the Award Documentation to the contrary, the existence of the Award, or of any outstanding RSUs awarded hereunder, shall not affect in any manner the right, power or authority of the Company to make, authorize or consummate: (i) any or all adjustments, recapitalizations, reorganizations, stock splits, stock dividends, combination of shares or other changes in the Company’s capital structure or its business, (ii) any merger, consolidation or similar transaction by or of the Company, (iii) any offer, issue or sale by the Company of any capital stock of the Company, including any equity or debt securities, or preferred or preference stock that would rank prior to or on parity with the RSUs and/or that would include, have or possess other rights, benefits and/or preferences superior to those that the RSUs include, has or possesses, or any warrants, options or rights with respect to any of the foregoing, (iv) the dissolution or liquidation of the Company, (v) any sale, transfer or assignment of all or any part of the stock, assets or business of the Company or (vi) any other corporate transaction, act or proceeding (whether of a similar character or otherwise).

 

6.   Tax Withholding Obligations .  As a condition of this Award, Participant will pay, or otherwise provide for, to the satisfaction of the Company, any applicable federal, state, local or foreign withholding taxes that may be due as a result of the vesting of RSUs or the issuance of Shares under this Award.  In the event that the Company determines that any payment of withholding or other taxes is required, the Company will have the right to: (i) require that Participant arrange such payments to the Company, or (ii) cause an immediate forfeiture of Shares subject to the RSUs granted pursuant to the Award Documentation with a Fair Market Value on the date of forfeiture equal to the withholding or other taxes due.  In addition, in the Company’s sole discretion and consistent with the Company’s rules (including, but not limited to, compliance with the Company’s Policy on Inside Information and Insider Trading) and regulations, the Company may permit Participant to pay the withholding or other taxes due as a result of the vesting of Participant’s RSUs by delivery (on a form acceptable to the Committee or Company) of an irrevocable direction to a licensed securities broker to sell Shares and to deliver all or part of the sales proceeds to the Company in payment of the withholding or other taxes. If Participant

 

delivers to the Company Shares already owned by Participant as payment for any withholding or other tax obligations, (i) only a whole number of Shares (and not fractional Shares) may be delivered and (ii) Shares must be delivered to the Company free and clear of any liens of any kind.  Delivery for this purpose may, at the election of Participant, be made either by (A) physical delivery of the certificate(s) for all such Shares tendered in payment of the withholding or other tax obligations, accompanied by duly executed instruments of transfer in a form acceptable to the Company, or (B) direction to Participant’s broker to transfer, by book entry, such Shares from a brokerage account of Participant to a brokerage account specified by the Company.  If Shares are withheld from Participant to pay any withholding or other tax obligations, only a whole number of Shares (and not fractional shares) will be withheld in payment.  The tax consequences to Participant (including without limitation federal, state, local and foreign income tax consequences) with respect to the RSUs (including without limitation the grant, vesting and/or delivery thereof) are the sole responsibility of Participant.  Participant shall consult with his or her own personal accountant(s) and/or tax advisor(s) regarding these matters and Participant’s filing, withholding and payment (or tax liability) obligations.

 

7.   Non-Transferability .  Unless otherwise determined by the Committee, the RSUs may not be transferred in any manner except by will or the laws of descent and distribution, and any attempt to transfer the RSUs in violation of this Section 7 shall be void ab initio .

 

8.   Amendment, Modification and Assignment .  The Committee may amend or modify the Award Documentation at any time as provided by Section 10(f) of the Plan.  This Award (and Participant’s rights hereunder) may not be assigned, and the obligations of Participant hereunder may not be delegated, in whole or in part.  The rights and obligations created hereunder shall be binding on Participant and his executors, administrators, and heirs, and on the successors and assigns of the Company.

 

9.   Complete Agreement .  The Award Documentation (together with the Plan and the Plan prospectus) constitute the entire agreement, and supersede all other prior agreements, understandings, representations and warranties, both written and oral, among the parties, with respect to the subject matter hereof.

 

10.   No Right to Continued Employment or Service .  The Award Documentation and the Award shall not confer, or be construed to confer, upon Participant any right to employment or service, or continued employment or service, with the Company or any of its Subsidiaries.

 

11.   No Limit on Other Compensation Arrangements .  Nothing contained in the Award Documentation shall preclude the Company or any of its Subsidiaries from adopting or continuing in effect any other or additional compensation plans, agreements or arrangements.

 

12.   No Trust or Fund Created .  Neither the Award Documentation nor the grant of RSUs pursuant to the Award Documentation shall create or be construed to create a trust or separate fund of any kind or a fiduciary relationship between the Company or any of its Subsidiaries and Participant or any other person.  To the extent that Participant or any other person acquires a right to receive payments from the Company or any of its Subsidiaries pursuant to the Award Documentation, such right shall be no greater than the right of any unsecured general creditor of the Company.

 

13.   Section 409A .  The Award Documentation shall be interpreted, administered and construed in a manner that is intended to avoid the imposition of interest, taxes and penalties on Participant pursuant to Section 409A of the Code.  It is intended that the RSUs are exempt from the requirements of Section 409A of the Code pursuant to the “short-term deferral” exception under Treasury Regulation Section 1.409A-1(b)(4).  To the extent required in order to avoid the imposition of any interest, penalties and additional tax under Section 409A of the Code, any Shares deliverable as a result of Participant’s termination of Continuous Service will be delayed for six months and one day following such termination of Continuous Service, or if earlier, the date of Participant’s death, if Participant is deemed to be a “specified employee” as defined in Section 409A of the Code and as determined by the Company.  Any delivery of Shares provided for in the Award Documentation in connection with Participant’s

 

termination of Continuous Service shall be made to Participant only upon a “separation from service” (as such term is defined and used in Section 409A of the Code).   Each delivery of Shares made under the Award Documentation shall be treated as a separate payment for purposes of Section 409A of the Code.  Notwithstanding the foregoing, the Company does not make any representation to Participant that the RSUs awarded pursuant to this Award Documentation are exempt from, or satisfy, the requirements of Section 409A of the Code, and the Company shall have no liability or other obligation to indemnify or hold harmless Participant or any Beneficiary for any tax, additional tax, interest or penalties that Participant or any Beneficiary may incur in the event that any provision of this Award Documentation, or any amendment or modification thereof or any other action taken with respect thereto, is deemed to violate any of the requirements of Section 409A of the Code.

 

                 14.   Interpretation; Construction .  Participant accepts as binding, conclusive and final all decisions or interpretations of the Committee upon any questions arising under the Award Documentation.  Section, paragraph and other headings and captions are provided solely as a convenience to facilitate reference.  Such headings and captions shall not be deemed in any way material or relevant to the construction, meaning or interpretation of the Award Documentation or any term or provision hereof.

 

15.   Notices .  Any notice under the Award Documentation shall be in writing addressed (i) if to the Company, to the attention of the Company’s General Counsel at 8735 Henderson Road, Renaissance Two, Tampa, Florida 33634, or if the Company should move its principal office, to such principal office and (ii) if to Participant, to Participant’s last permanent address as shown on the Company’s records, or to such other address as may be designated in a notice satisfying the requirements of this Section 15.  Any notices shall be delivered personally or sent by registered or certified mail, postage prepaid, by facsimile (with proof of transmission), by courier (with proof of delivery) or by such other methods that are acceptable to the Company.  Notice shall be deemed to have been duly given when delivered personally or when deposited in the United States mail or sent pursuant to such other method acceptable to the Company.

 

16.   Non-Waiver of Breach .  The waiver by any party hereto of the other party’s prompt and complete performance, or breach or violation, of any term or provision of the Award Documentation shall be effected solely in a writing signed by such party, and shall not operate nor be construed as a waiver of any subsequent breach or violation, and the waiver by any party hereto to exercise any right or remedy which he or it may possess shall not operate nor be construed as the waiver of such right or remedy by such party, or as a bar to the exercise of such right or remedy by such party, upon the occurrence of any subsequent breach or violation.

 

17.   Counterparts .  The Award Documentation may be executed in two or more separate counterparts, each of which shall be an original, and all of which together shall constitute one and the same agreement.

 

18.   Forfeiture and Company Right to Recover Fair Market Value of Shares Received Pursuant to RSUs .  In addition to the provisions set forth in Section 10(g) of the Plan, if, at any time, the Board or the Committee, as the case may be, in its sole discretion determines that any action or omission by Participant constituted (a) wrongdoing that contributed to (i) any material misstatement in or omission from any report or statement filed by the Company with the U.S. Securities and Exchange Commission or (ii) a statement, certification, cost report, claim for payment, or other filing made under Medicare or Medicaid that was false, fraudulent, or for an item or service not provided as claimed, (b) intentional or gross misconduct, (c) a breach of a fiduciary duty to the Company or a Subsidiary, (d) fraud or (e) non-compliance with the Company’s Code of Conduct and Business Ethics, policies or procedures to the material detriment of the Company, then in each such case, commencing with the first fiscal year of the Company during which such action or omission occurred, Participant shall forfeit (without any payment therefore) up to 100% of any RSUs that have not been vested or settled and shall repay to the Company, upon notice to Participant by the Company, up to 100% of the Fair Market Value of the Shares at the time such Shares were delivered to Participant pursuant to the RSUs during and after such fiscal year.  The Board or the Committee, as the case may be, shall determine in its sole discretion the date of occurrence

 

of such action or omission, the percentage of the RSUs that shall be forfeited and the percentage of the Fair Market Value of the Shares delivered pursuant to the RSUs that must be repaid to the Company.

 

19.   Governing Law .  The Award Documentation shall be governed by the corporate laws of the State of Delaware, without giving effect to any choice of law provisions.

 

20.   Severability .  If any term or provision of the Award Documentation is or becomes or is deemed to be invalid, illegal or unenforceable in any jurisdiction or under any applicable law, rule or regulation, then such provision shall be construed or deemed amended to conform to applicable law (or if such provision cannot be so construed or deemed amended without materially altering the purpose or intent of the Award Documentation and the grant of RSUs hereunder, such provision shall be stricken as to such jurisdiction and the remainder of the Award Documentation and the Award hereunder shall remain in full force and effect).

 

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Exhibit 10.11

WELLCARE HEALTH PLANS, INC. 2013 INCENTIVE COMPENSATION PLAN

RESTRICTED STOCK UNIT AWARD NOTICE AND AGREEMENT

This award is made to the Participant named below by WellCare Health Plans, Inc., a Delaware corporation (the “ Company ”).  Subject to the terms and conditions of this Restricted Stock Unit Award Notice and Agreement and the terms and conditions of the Restricted Stock Unit Award Agreement that is available to you on the Company’s Intranet site and is an integral part of this award (together, the “ Award Documentation ”), the Company hereby awards under the WellCare Health Plans, Inc. 2013 Incentive Compensation Plan (the “ Plan ”) the Restricted Stock Units (“ RSUs ”) described below to Participant effective as of the Grant Date set forth below.  Capitalized terms used in the Award Documentation that are not defined herein have the meanings attributed to them in the Plan.

 

1.	Participant :  [•]

 

2.	Grant Date :  [•]

 

3.	Number of RSUs :  [•], subject to adjustment as provided in the Award Documentation and the Plan.

 

4.	Description of RSUs :  Each RSU constitutes an unfunded and unsecured promise of the Company to deliver one Share to Participant on the Delivery Date (defined below).

5.	Normal Vesting Schedule :  Except as set forth below, the RSUs shall vest in accordance with the following table provided that the Continuous Service of Participant continues through and on the applicable Vesting Date set forth below:

Percentage of RSUs that Vest		Vesting Date

Except as otherwise provided in the Award Documentation, the RSUs shall vest only on the Vesting Dates specified above and no partial vesting will occur prior to any Vesting Date.

 

6.	Termination of Continuous Service :  Except as set forth in Section 7 below, upon the termination of Participant’s Continuous Service (the “ Termination Date ”) for any reason, any then-unvested RSUs shall be forfeited automatically without any payment to Participant and become null and void.

 

7.

Change in Control :  Any then-unvested RSUs shall become immediately vested on the effective date of the termination of Participant’s Continuous Service if, within twenty-four (24) months following a Change in Control, Participant’s Continuous Service is terminated by (i) the Company or a Subsidiary without Cause or (ii) Participant for Good Reason.

 

8.

Delivery Date :  The Shares underlying the number of vested RSUs shall be delivered as soon as practicable and, in any case, within 30 days after the earliest to occur of: (i) [•], (ii) the Termination Date or (iii) a Change in Control that constitutes a “change in control event” within the meaning of Section 409A of the Code and the regulations thereunder.

 

*  *  *  *  *

 

By signing below, Participant hereby consents and agrees to the electronic delivery of the Award Documentation.  Participant acknowledges and agrees that (1) the Restricted Stock Unit Award Agreement, the Plan and the Plan prospectus are available for Participant’s review on the Company’s Intranet under the Legal Services section, and, upon request, a paper version of each document will be provided to Participant and (2) Participant has reviewed and fully understands the Award Documentation, the Plan and the Plan prospectus and agrees to be bound by the terms and conditions of the Plan and the Award Documentation.

 

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Exhibit 10.12

RESTRICTED STOCK UNIT AWARD AGREEMENT

 

Pursuant to a Restricted Stock Unit Award Notice and Agreement (the “ Award Notice ”), WellCare Health Plans, Inc., a Delaware corporation (the “ Company ”), has granted to Participant named in the Award Notice the number of Restricted Stock Units (the “ RSUs ”) set forth in the Award Notice, subject to the terms and conditions of the Award Notice and this Restricted Stock Unit Award Agreement (the “ Award Agreement ” and together with the Award Notice, the “ Award Documentation ”).

 

1.   The Plan .  The RSUs are granted pursuant to the WellCare Health Plans, Inc. 2013 Incentive Compensation Plan (the “ Plan ”), a copy of which has been made available to Participant.  The terms and conditions of the Plan are incorporated into this Award Agreement.  As a condition to the grant of RSUs set forth in the Award Notice, Participant agrees to be bound by all of the terms and conditions in the Award Documentation and in the Plan.  If and to the extent that the Award Documentation conflicts or is inconsistent with the terms, conditions and provisions of the Plan, the Plan shall control, and the Award Documentation shall be deemed to be modified accordingly.

 

2.   Accelerated Vesting .  Notwithstanding any other term or provision of the Award Documentation but subject to the provisions of the Plan, the Committee shall be authorized, in its sole discretion, to accelerate the vesting of all or any portion of the RSUs under the Award Documentation, at such times and upon such terms and conditions as the Committee shall deem advisable.

 

3.   No Rights as a Shareholder .  Until the stock certificates reflecting the Shares underlying the RSUs are issued to Participant, which may be in book-entry form, Participant shall have none of the rights of a shareholder with respect to such Shares.

 

4.   Adjustments .  If a RSU is adjusted pursuant to Section 10(c) of the Plan, any such adjustment shall disregard any fractional Share and no Share will be delivered in connection with such fraction.

 

5.   No Effect on Company Actions .  Notwithstanding any term or provision of the Award Documentation to the contrary, the existence of the Award, or of any outstanding RSUs awarded hereunder, shall not affect in any manner the right, power or authority of the Company to make, authorize or consummate: (i) any or all adjustments, recapitalizations, reorganizations, stock splits, stock dividends, combination of shares or other changes in the Company’s capital structure or its business, (ii) any merger, consolidation or similar transaction by or of the Company, (iii) any offer, issue or sale by the Company of any capital stock of the Company, including any equity or debt securities, or preferred or preference stock that would rank prior to or on parity with the RSUs and/or that would include, have or possess other rights, benefits and/or preferences superior to those that the RSUs include, has or possesses, or any warrants, options or rights with respect to any of the foregoing, (iv) the dissolution or liquidation of the Company, (v) any sale, transfer or assignment of all or any part of the stock, assets or business of the Company or (vi) any other corporate transaction, act or proceeding (whether of a similar character or otherwise).

 

6.   Tax Withholding Obligations .  As a condition of this Award, Participant will pay, or otherwise provide for, to the satisfaction of the Company, any applicable federal, state, local or foreign withholding taxes that may be due as a result of the vesting of RSUs or the issuance of Shares under this Award.  In the event that the Company determines that any payment of withholding or other taxes is required, the Company will have the right to: (i) require that Participant arrange such payments to the Company, or (ii) cause an immediate forfeiture of Shares subject to the RSUs granted pursuant to the Award Documentation with a Fair Market Value on the date of forfeiture equal to the withholding or other taxes due.  In addition, in the Company’s sole discretion and consistent with the Company’s rules (including, but not limited to, compliance with the Company’s Policy on Inside Information and Insider Trading) and regulations, the Company may permit Participant to pay the withholding or other taxes due as a result of the vesting of Participant’s RSUs by delivery (on a form acceptable to the Committee or Company) of an irrevocable direction to a licensed securities broker to sell Shares and to deliver all or part of the sales proceeds to the Company in payment of the withholding or other taxes. If Participant

 

delivers to the Company Shares already owned by Participant as payment for any withholding or other tax obligations, (i) only a whole number of Shares (and not fractional Shares) may be delivered and (ii) Shares must be delivered to the Company free and clear of any liens of any kind.  Delivery for this purpose may, at the election of Participant, be made either by (A) physical delivery of the certificate(s) for all such Shares tendered in payment of the withholding or other tax obligations, accompanied by duly executed instruments of transfer in a form acceptable to the Company, or (B) direction to Participant’s broker to transfer, by book entry, such Shares from a brokerage account of Participant to a brokerage account specified by the Company.  If Shares are withheld from Participant to pay any withholding or other tax obligations, only a whole number of Shares (and not fractional shares) will be withheld in payment.  The tax consequences to Participant (including without limitation federal, state, local and foreign income tax consequences) with respect to the RSUs (including without limitation the grant, vesting and/or delivery thereof) are the sole responsibility of Participant.  Participant shall consult with his or her own personal accountant(s) and/or tax advisor(s) regarding these matters and Participant’s filing, withholding and payment (or tax liability) obligations.

 

7.   Non-Transferability .  Unless otherwise determined by the Committee, the RSUs may not be transferred in any manner except by will or the laws of descent and distribution, and any attempt to transfer the RSUs in violation of this Section 7 shall be void ab initio .

 

8.   Amendment, Modification and Assignment .  The Committee may amend or modify the Award Documentation at any time as provided by Section 10(f) of the Plan.  This Award (and Participant’s rights hereunder) may not be assigned, and the obligations of Participant hereunder may not be delegated, in whole or in part.  The rights and obligations created hereunder shall be binding on Participant and his executors, administrators, and heirs, and on the successors and assigns of the Company.

 

9.   Complete Agreement .  The Award Documentation (together with the Plan and the Plan prospectus) constitute the entire agreement, and supersede all other prior agreements, understandings, representations and warranties, both written and oral, among the parties, with respect to the subject matter hereof.

 

10.   No Right to Continued Employment or Service .  The Award Documentation and the Award shall not confer, or be construed to confer, upon Participant any right to employment or service, or continued employment or service, with the Company or any of its Subsidiaries.

 

11.   No Limit on Other Compensation Arrangements .  Nothing contained in the Award Documentation shall preclude the Company or any of its Subsidiaries from adopting or continuing in effect any other or additional compensation plans, agreements or arrangements.

 

12.   No Trust or Fund Created .  Neither the Award Documentation nor the grant of RSUs pursuant to the Award Documentation shall create or be construed to create a trust or separate fund of any kind or a fiduciary relationship between the Company or any of its Subsidiaries and Participant or any other person.  To the extent that Participant or any other person acquires a right to receive payments from the Company or any of its Subsidiaries pursuant to the Award Documentation, such right shall be no greater than the right of any unsecured general creditor of the Company.

 

13.   Section 409A .  The Award Documentation shall be interpreted, administered and construed in a manner that is intended to avoid the imposition of interest, taxes and penalties on Participant pursuant to Section 409A of the Code.  It is intended that the RSUs shall comply with the requirements of Section 409A of the Code.  To the extent required in order to avoid the imposition of any interest, penalties and additional tax under Section 409A of the Code, any Shares deliverable as a result of Participant’s termination of Continuous Service will be delayed for six months and one day following such termination of Continuous Service, or if earlier, the date of Participant’s death, if Participant is deemed to be a “specified employee” as defined in Section 409A of the Code and as determined by the Company.  Any delivery of Shares provided for in the Award Documentation in connection with Participant’s termination of Continuous Service shall be made to Participant only upon a “separation from

 

service” (as such term is defined and used in Section 409A of the Code).  Each delivery of Shares made under the Award Documentation shall be treated as a separate payment for purposes of Section 409A of the Code.  Notwithstanding the foregoing, the Company does not make any representation to Participant that the RSUs awarded pursuant to this Award Documentation are exempt from, or satisfy, the requirements of Section 409A of the Code, and the Company shall have no liability or other obligation to indemnify or hold harmless Participant or any Beneficiary for any tax, additional tax, interest or penalties that Participant or any Beneficiary may incur in the event that any provision of this Award Documentation, or any amendment or modification thereof or any other action taken with respect thereto, is deemed to violate any of the requirements of Section 409A of the Code.

 

14.   Interpretation; Construction .  Participant accepts as binding, conclusive and final all decisions or interpretations of the Committee upon any questions arising under the Award Documentation.  Section, paragraph and other headings and captions are provided solely as a convenience to facilitate reference.  Such headings and captions shall not be deemed in any way material or relevant to the construction, meaning or interpretation of the Award Documentation or any term or provision hereof.

 

15.   Notices .  Any notice under the Award Documentation shall be in writing addressed (i) if to the Company, to the attention of the Company’s General Counsel at 8735 Henderson Road, Renaissance Two, Tampa, Florida 33634, or if the Company should move its principal office, to such principal office and (ii) if to Participant, to Participant’s last permanent address as shown on the Company’s records, or to such other address as may be designated in a notice satisfying the requirements of this Section 15.  Any notices shall be delivered personally or sent by registered or certified mail, postage prepaid, by facsimile (with proof of transmission), by courier (with proof of delivery) or by such other methods that are acceptable to the Company.  Notice shall be deemed to have been duly given when delivered personally or when deposited in the United States mail or sent pursuant to such other method acceptable to the Company.

 

16.   Non-Waiver of Breach .  The waiver by any party hereto of the other party’s prompt and complete performance, or breach or violation, of any term or provision of the Award Documentation shall be effected solely in a writing signed by such party, and shall not operate nor be construed as a waiver of any subsequent breach or violation, and the waiver by any party hereto to exercise any right or remedy which he or it may possess shall not operate nor be construed as the waiver of such right or remedy by such party, or as a bar to the exercise of such right or remedy by such party, upon the occurrence of any subsequent breach or violation.

 

17.   Counterparts .  The Award Documentation may be executed in two or more separate counterparts, each of which shall be an original, and all of which together shall constitute one and the same agreement.

 

18.   Forfeiture and Company Right to Recover Fair Market Value of Shares Received Pursuant to RSUs .  In addition to the provisions set forth in Section 10(g) of the Plan, if, at any time, the Board or the Committee, as the case may be, in its sole discretion determines that any action or omission by Participant constituted (a) wrongdoing that contributed to (i) any material misstatement in or omission from any report or statement filed by the Company with the U.S. Securities and Exchange Commission or (ii) a statement, certification, cost report, claim for payment, or other filing made under Medicare or Medicaid that was false, fraudulent, or for an item or service not provided as claimed, (b) intentional or gross misconduct, (c) a breach of a fiduciary duty to the Company or a Subsidiary, (d) fraud or (e) non-compliance with the Company’s Code of Conduct and Business Ethics, policies or procedures to the material detriment of the Company, then in each such case, commencing with the first fiscal year of the Company during which such action or omission occurred, Participant shall forfeit (without any payment therefore) up to 100% of any RSUs that have not been vested or settled and shall repay to the Company, upon notice to Participant by the Company, up to 100% of the Fair Market Value of the Shares at the time such Shares were delivered to Participant pursuant to the RSUs during and after such fiscal year.  The Board or the Committee, as the case may be, shall determine in its sole discretion the date of occurrence

 

of such action or omission, the percentage of the RSUs that shall be forfeited and the percentage of the Fair Market Value of the Shares delivered pursuant to the RSUs that must be repaid to the Company.

 

19.   Governing Law .  The Award Documentation shall be governed by the corporate laws of the State of Delaware, without giving effect to any choice of law provisions.

 

20.   Severability .  If any term or provision of the Award Documentation is or becomes or is deemed to be invalid, illegal or unenforceable in any jurisdiction or under any applicable law, rule or regulation, then such provision shall be construed or deemed amended to conform to applicable law (or if such provision cannot be so construed or deemed amended without materially altering the purpose or intent of the Award Documentation and the grant of RSUs hereunder, such provision shall be stricken as to such jurisdiction and the remainder of the Award Documentation and the Award hereunder shall remain in full force and effect).

 

 

4 

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Exhibit 10.13

 

WELLCARE HEALTH PLANS, INC. 2013 INCENTIVE COMPENSATION PLAN

RESTRICTED STOCK UNIT AWARD NOTICE AND AGREEMENT

FOR NON-EMPLOYEE DIRECTORS

This award is made to the Participant named below by WellCare Health Plans, Inc., a Delaware corporation (the “ Company ”).  Subject to the terms and conditions of this Restricted Stock Unit Award Notice and Agreement for Non-Employee Directors and the terms and conditions of the Restricted Stock Unit Award Agreement for Non-Employee Directors that is available to you on the Company’s Intranet site and is an integral part of this award (together, the “ Award Documentation ”), the Company hereby awards under the WellCare Health Plans, Inc. 2013 Incentive Compensation Plan (the “ Plan ”) the Restricted Stock Units (“ RSUs ”) described below to Participant effective as of the Grant Date set forth below.  Capitalized terms used in the Award Documentation that are not defined herein have the meanings attributed to them in the Plan.

 

1.	Participant :  [•]

 

2.	Grant Date :  [•]

 

3.	Number of RSUs :  [•], subject to adjustment as provided in the Award Documentation and the Plan.

 

4.	Description of RSUs :  Each RSU constitutes an unfunded and unsecured promise of the Company to deliver one Share to Participant on the Delivery Date (defined below).

5.

Normal Vesting Schedule :  Except as set forth below, 100% of the RSUs shall become vested on the earlier of (i) [•] or (ii) the date of the first annual meeting of the Company’s shareholders following the Grant Date (such date being the “ Vesting Date ”), provided that the Participant’s Continuous Service as a Non-Employee Director of the Company continues through the Vesting Date.  Except as otherwise provided in the Award Documentation, the RSUs shall vest only on the Vesting Date specified above and no partial vesting will occur prior to the Vesting Date.

6.	Termination of Continuous Service :  Upon the termination of Participant’s Continuous Service as a Non-Employee Director of the Company, for any reason, any then-unvested RSUs shall be forfeited automatically without any payment to Participant and become null and void.

 

7.	Change in Control :  Any then-unvested RSUs shall become immediately vested upon the effective date of a Change in Control.

 

8.	Delivery Date :  The Shares underlying the number of vested RSUs shall be delivered as soon as practicable and, in any case, within 30 days after the date on which such RSUs vested.

 

By signing below, Participant hereby consents and agrees to the electronic delivery of the Award Documentation.  Participant acknowledges and agrees that (1) the Restricted Stock Unit Award Agreement for Non-Employee Directors, the Plan and the Plan prospectus are available for Participant’s review on the Company’s Intranet under the Legal Services section, and, upon request, a paper version of each document will be provided to Participant and (2) Participant has reviewed and fully understands the Award Documentation, the Plan and the Plan prospectus and agrees to be bound by the terms and conditions of the Plan and the Award Documentation.

 

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Exhibit 10.14

 

RESTRICTED STOCK UNIT AWARD AGREEMENT

FOR NON-EMPLOYEE DIRECTORS

Pursuant to a Restricted Stock Unit Award Notice and Agreement for Non-Employee Directors (the “ Award Notice ”), WellCare Health Plans, Inc., a Delaware corporation (the “ Company ”), has granted to Participant named in the Award Notice the number of Restricted Stock Units (the “ RSUs ”) set forth in the Award Notice, subject to the terms and conditions of the Award Notice and this Restricted Stock Unit Award Agreement for Non-Employee Directors (the “ Award Agreement ” and together with the Award Notice, the “ Award Documentation ”).

 

1.   The Plan .  The RSUs are granted pursuant to the WellCare Health Plans, Inc. 2013 Incentive Compensation Plan (the “ Plan ”), a copy of which has been made available to Participant.  The terms and conditions of the Plan are incorporated into this Award Agreement.  As a condition to the grant of RSUs set forth in the Award Notice, Participant agrees to be bound by all of the terms and conditions in the Award Documentation and in the Plan.  If and to the extent that the Award Documentation conflicts or is inconsistent with the terms, conditions and provisions of the Plan, the Plan shall control, and the Award Documentation shall be deemed to be modified accordingly.

 

2.   Accelerated Vesting .  Notwithstanding any other term or provision of the Award Documentation but subject to the provisions of the Plan, the Committee shall be authorized, in its sole discretion, to accelerate the vesting of all or any portion of the RSUs under the Award Documentation, at such times and upon such terms and conditions as the Committee shall deem advisable.

 

3.   No Rights as a Shareholder .  Until the stock certificates reflecting the Shares underlying the RSUs are issued to Participant, which may be in book-entry form, Participant shall have none of the rights of a shareholder with respect to such Shares.

 

4.   Adjustments .  If a RSU is adjusted pursuant to Section 10(c) of the Plan, any such adjustment shall disregard any fractional Share and no Share will be delivered in connection with such fraction.

 

5.   No Effect on Company Actions .  Notwithstanding any term or provision of the Award Documentation to the contrary, the existence of the Award, or of any outstanding RSUs awarded hereunder, shall not affect in any manner the right, power or authority of the Company to make, authorize or consummate: (i) any or all adjustments, recapitalizations, reorganizations, stock splits, stock dividends, combination of shares or other changes in the Company’s capital structure or its business, (ii) any merger, consolidation or similar transaction by or of the Company, (iii) any offer, issue or sale by the Company of any capital stock of the Company, including any equity or debt securities, or preferred or preference stock that would rank prior to or on parity with the RSUs and/or that would include, have or possess other rights, benefits and/or preferences superior to those that the RSUs include, has or possesses, or any warrants, options or rights with respect to any of the foregoing, (iv) the dissolution or liquidation of the Company, (v) any sale, transfer or assignment of all or any part of the stock, assets or business of the Company or (vi) any other corporate transaction, act or proceeding (whether of a similar character or otherwise).

 

6.   Tax Withholding Obligations .  As a condition of this Award, Participant will pay, or otherwise provide for, to the satisfaction of the Company, any applicable federal, state, local or foreign withholding taxes that may be due as a result of the vesting of RSUs or the issuance of Shares under this Award.  In the event that the Company determines that any payment of withholding or other taxes is required, the Company will have the right to: (i) require that Participant arrange such payments to the Company, or (ii) cause an immediate forfeiture of Shares subject to the RSUs granted pursuant to the Award Documentation with a Fair Market Value on the date of forfeiture equal to the withholding or other taxes due.  In addition, in the Company’s sole discretion and consistent with the Company’s rules (including, but not limited to, compliance with the Company’s Policy on Inside Information and Insider Trading) and regulations, the Company may permit Participant to pay the withholding or other taxes due as a result of the vesting of Participant’s RSUs by delivery (on a form acceptable to the Committee or

 

Company) of an irrevocable direction to a licensed securities broker to sell Shares and to deliver all or part of the sales proceeds to the Company in payment of the withholding or other taxes. If Participant delivers to the Company Shares already owned by Participant as payment for any withholding or other tax obligations, (i) only a whole number of Shares (and not fractional Shares) may be delivered and (ii) Shares must be delivered to the Company free and clear of any liens of any kind.  Delivery for this purpose may, at the election of Participant, be made either by (A) physical delivery of the certificate(s) for all such Shares tendered in payment of the withholding or other tax obligations, accompanied by duly executed instruments of transfer in a form acceptable to the Company, or (B) direction to Participant’s broker to transfer, by book entry, such Shares from a brokerage account of Participant to a brokerage account specified by the Company.  If Shares are withheld from Participant to pay any withholding or other tax obligations, only a whole number of Shares (and not fractional shares) will be withheld in payment.  The tax consequences to Participant (including without limitation federal, state, local and foreign income tax consequences) with respect to the RSUs (including without limitation the grant, vesting and/or delivery thereof) are the sole responsibility of Participant.  Participant shall consult with his or her own personal accountant(s) and/or tax advisor(s) regarding these matters and Participant’s filing, withholding and payment (or tax liability) obligations.

 

7.   Non-Transferability .  Unless otherwise determined by the Committee, the RSUs may not be transferred in any manner except by will or the laws of descent and distribution, and any attempt to transfer the RSUs in violation of this Section 7 shall be void ab initio .

 

8.   Amendment, Modification and Assignment .  The Committee may amend or modify the Award Documentation at any time as provided by Section 10(f) of the Plan.  This Award (and Participant’s rights hereunder) may not be assigned, and the obligations of Participant hereunder may not be delegated, in whole or in part.  The rights and obligations created hereunder shall be binding on Participant and his executors, administrators, and heirs, and on the successors and assigns of the Company.

 

9.   Complete Agreement .  The Award Documentation (together with the Plan and the Plan prospectus) constitute the entire agreement, and supersede all other prior agreements, understandings, representations and warranties, both written and oral, among the parties, with respect to the subject matter hereof.

 

10.   No Right to Continued Service .  The Award Documentation and the Award shall not confer, or be construed to confer, upon Participant any right to continue as a Non-Employee Director of the Company.

 

11.   No Limit on Other Compensation Arrangements .  Nothing contained in the Award Documentation shall preclude the Company or any of its Subsidiaries from adopting or continuing in effect any other or additional compensation plans, agreements or arrangements.

 

12.   No Trust or Fund Created .  Neither the Award Documentation nor the grant of RSUs pursuant to the Award Documentation shall create or be construed to create a trust or separate fund of any kind or a fiduciary relationship between the Company or any of its Subsidiaries and Participant or any other person.  To the extent that Participant or any other person acquires a right to receive payments from the Company or any of its Subsidiaries pursuant to the Award Documentation, such right shall be no greater than the right of any unsecured general creditor of the Company.

 

13.   Section 409A .  The Award Documentation shall be interpreted, administered and construed in a manner that is intended to avoid the imposition of interest, taxes and penalties on Participant pursuant to Section 409A of the Code.  It is intended that the RSUs are exempt from the requirements of Section 409A of the Code pursuant to the “short-term deferral” exception under Treasury Regulation Section 1.409A-1(b)(4).  To the extent required in order to avoid the imposition of any interest, penalties and additional tax under Section 409A of the Code, any Shares deliverable as a result of Participant’s termination of Continuous Service will be delayed for six months and one day following such termination of Continuous Service, or if earlier, the date of Participant’s death, if Participant is deemed to

 

be a “specified employee” as defined in Section 409A of the Code and as determined by the Company.  Any delivery of Shares provided for in the Award Documentation in connection with Participant’s termination of Continuous Service as a Non-Employee Director shall be made to Participant only upon a “separation from service” (as such term is defined and used in Section 409A of the Code).  Each delivery of Shares made under the Award Documentation shall be treated as a separate payment for purposes of Section 409A of the Code.  Notwithstanding the foregoing, the Company does not make any representation to Participant that the RSUs awarded pursuant to this Award Documentation are exempt from, or satisfy, the requirements of Section 409A of the Code, and the Company shall have no liability or other obligation to indemnify or hold harmless Participant or any Beneficiary for any tax, additional tax, interest or penalties that Participant or any Beneficiary may incur in the event that any provision of this Award Documentation, or any amendment or modification thereof or any other action taken with respect thereto, is deemed to violate any of the requirements of Section 409A of the Code.

 

                 14.   Interpretation; Construction .  Participant accepts as binding, conclusive and final all decisions or interpretations of the Committee upon any questions arising under the Award Documentation.  Section, paragraph and other headings and captions are provided solely as a convenience to facilitate reference.  Such headings and captions shall not be deemed in any way material or relevant to the construction, meaning or interpretation of the Award Documentation or any term or provision hereof.

 

15.   Notices .  Any notice under the Award Documentation shall be in writing addressed (i) if to the Company, to the attention of the Company’s General Counsel at 8735 Henderson Road, Renaissance Two, Tampa, Florida 33634, or if the Company should move its principal office, to such principal office and (ii) if to Participant, to Participant’s last permanent address as shown on the Company’s records, or to such other address as may be designated in a notice satisfying the requirements of this Section 15.  Any notices shall be delivered personally or sent by registered or certified mail, postage prepaid, by facsimile (with proof of transmission), by courier (with proof of delivery) or by such other methods that are acceptable to the Company.  Notice shall be deemed to have been duly given when delivered personally or when deposited in the United States mail or sent pursuant to such other method acceptable to the Company.

 

16.   Non-Waiver of Breach .  The waiver by any party hereto of the other party’s prompt and complete performance, or breach or violation, of any term or provision of the Award Documentation shall be effected solely in a writing signed by such party, and shall not operate nor be construed as a waiver of any subsequent breach or violation, and the waiver by any party hereto to exercise any right or remedy which he or it may possess shall not operate nor be construed as the waiver of such right or remedy by such party, or as a bar to the exercise of such right or remedy by such party, upon the occurrence of any subsequent breach or violation.

 

17.   Counterparts .  The Award Documentation may be executed in two or more separate counterparts, each of which shall be an original, and all of which together shall constitute one and the same agreement.

 

18.   Governing Law .  The Award Documentation shall be governed by the corporate laws of the State of Delaware, without giving effect to any choice of law provisions.

 

19.   Severability .  If any term or provision of the Award Documentation is or becomes or is deemed to be invalid, illegal or unenforceable in any jurisdiction or under any applicable law, rule or regulation, then such provision shall be construed or deemed amended to conform to applicable law (or if such provision cannot be so construed or deemed amended without materially altering the purpose or intent of the Award Documentation and the grant of RSUs hereunder, such provision shall be stricken as to such jurisdiction and the remainder of the Award Documentation and the Award hereunder shall remain in full force and effect).

 

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Exhibit 10.15

 

WELLCARE HEALTH PLANS, INC. 2013 INCENTIVE COMPENSATION PLAN

RESTRICTED STOCK UNIT AWARD NOTICE AND AGREEMENT

FOR NON-EMPLOYEE DIRECTORS

This award is made to the Participant named below by WellCare Health Plans, Inc., a Delaware corporation (the “ Company ”).  Subject to the terms and conditions of this Restricted Stock Unit Award Notice and Agreement for Non-Employee Directors and the terms and conditions of the Restricted Stock Unit Award Agreement for Non-Employee Directors that is available to you on the Company’s Intranet site and is an integral part of this award (together, the “ Award Documentation ”), the Company hereby awards under the WellCare Health Plans, Inc. 2013 Incentive Compensation Plan (the “ Plan ”) the Restricted Stock Units (“ RSUs ”) described below to Participant effective as of the Grant Date set forth below.  Capitalized terms used in the Award Documentation that are not defined herein have the meanings attributed to them in the Plan.

 

1.	Participant :  [•]

 

2.	Grant Date :  [•]

 

3.	Number of RSUs :  [•], subject to adjustment as provided in the Award Documentation and the Plan.

 

4.	Description of RSUs :  Each RSU constitutes an unfunded and unsecured promise of the Company to deliver one Share to Participant on the Delivery Date (defined below).

5.

Normal Vesting Schedule :  Except as set forth below, 100% of the RSUs shall become vested on the earlier of (i) [•] or (ii) the date of the first annual meeting of the Company’s shareholders following the Grant Date (such date being the “ Vesting Date ”), provided that the Participant’s Continuous Service as a Non-Employee Director of the Company continues through the Vesting Date.  Except as otherwise provided in the Award Documentation, the RSUs shall vest only on the Vesting Date specified above and no partial vesting will occur prior to the Vesting Date.

6.

Termination of Service :  Except as set forth in Section 7 below, upon the termination of Participant’s Continuous Service as a Non-Employee Director of the Company (the “ Termination Date ”), for any reason, any then-unvested RSUs shall be forfeited automatically without any payment to Participant and become null and void.

 

7.	Change in Control :  Any then-unvested RSUs shall become immediately vested upon the effective date of a Change in Control.

 

8.

Delivery Date :  The Shares underlying the number of vested RSUs shall be delivered as soon as practicable and, in any case, within 30 days after the earliest to occur of: (i) [•], (ii) the date of termination of Participant’s Continuous Service as a Non-Employee Director to the Company or any of its Subsidiaries, (iii) the date of Participant’s death, (iv) the date Participant incurs a Disability that constitutes a “disability” within the meaning of Section 409A of the Code and the regulations thereunder, or (v) a Change in Control that constitutes a “change in control event” within the meaning of Section 409A of the Code and the regulations thereunder.

 

*  *  *  *  *

 

By signing below, Participant hereby consents and agrees to the electronic delivery of the Award Documentation.  Participant acknowledges and agrees that (1) the Restricted Stock Unit Award Agreement for Non-Employee Directors, the Plan and the Plan prospectus are available for Participant’s review on the Company’s Intranet under the Legal Services section, and, upon request, a paper version of each document will be provided to Participant and (2) Participant has reviewed and fully understands the Award Documentation, the Plan and the Plan prospectus and agrees to be bound by the terms and conditions of the Plan and the Award Documentation.

 

PARTICIPANT			WELLCARE HEALTH PLANS, INC.
BY:			By:
	[*]			Name: [*]
				Title: [*]

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Exhibit 10.16

 

RESTRICTED STOCK UNIT AWARD AGREEMENT

FOR NON-EMPLOYEE DIRECTORS

Pursuant to a Restricted Stock Unit Award Notice and Agreement for Non-Employee Directors (the “ Award Notice ”), WellCare Health Plans, Inc., a Delaware corporation (the “ Company ”), has granted to Participant named in the Award Notice the number of Restricted Stock Units (the “ RSUs ”) set forth in the Award Notice, subject to the terms and conditions of the Award Notice and this Restricted Stock Unit Award Agreement for Non-Employee Directors (the “ Award Agreement ” and together with the Award Notice, the “ Award Documentation ”).

 

1.   The Plan .  The RSUs are granted pursuant to the WellCare Health Plans, Inc. 2013 Incentive Compensation Plan (the “ Plan ”), a copy of which has been made available to Participant.  The terms and conditions of the Plan are incorporated into this Award Agreement.  As a condition to the grant of RSUs set forth in the Award Notice, Participant agrees to be bound by all of the terms and conditions in the Award Documentation and in the Plan.  If and to the extent that the Award Documentation conflicts or is inconsistent with the terms, conditions and provisions of the Plan, the Plan shall control, and the Award Documentation shall be deemed to be modified accordingly.

 

2.   Accelerated Vesting .  Notwithstanding any other term or provision of the Award Documentation but subject to the provisions of the Plan, the Committee shall be authorized, in its sole discretion, to accelerate the vesting of all or any portion of the RSUs under the Award Documentation, at such times and upon such terms and conditions as the Committee shall deem advisable.

 

3.   No Rights as a Shareholder .  Until the stock certificates reflecting the Shares underlying the RSUs are issued to Participant, which may be in book-entry form, Participant shall have none of the rights of a shareholder with respect to such Shares.

 

4.   Adjustments .  If a RSU is adjusted pursuant to Section 10(c) of the Plan, any such adjustment shall disregard any fractional Share and no Share will be delivered in connection with such fraction.

 

5.   No Effect on Company Actions .  Notwithstanding any term or provision of the Award Documentation to the contrary, the existence of the Award, or of any outstanding RSUs awarded hereunder, shall not affect in any manner the right, power or authority of the Company to make, authorize or consummate: (i) any or all adjustments, recapitalizations, reorganizations, stock splits, stock dividends, combination of shares or other changes in the Company’s capital structure or its business, (ii) any merger, consolidation or similar transaction by or of the Company, (iii) any offer, issue or sale by the Company of any capital stock of the Company, including any equity or debt securities, or preferred or preference stock that would rank prior to or on parity with the RSUs and/or that would include, have or possess other rights, benefits and/or preferences superior to those that the RSUs include, has or possesses, or any warrants, options or rights with respect to any of the foregoing, (iv) the dissolution or liquidation of the Company, (v) any sale, transfer or assignment of all or any part of the stock, assets or business of the Company or (vi) any other corporate transaction, act or proceeding (whether of a similar character or otherwise).

 

6.   Tax Withholding Obligations .  As a condition of this Award, Participant will pay, or otherwise provide for, to the satisfaction of the Company, any applicable federal, state, local or foreign withholding taxes that may be due as a result of the vesting of RSUs or the issuance of Shares under this Award.  In the event that the Company determines that any payment of withholding or other taxes is required, the Company will have the right to: (i) require that Participant arrange such payments to the Company, or (ii) cause an immediate forfeiture of Shares subject to the RSUs granted pursuant to the Award Documentation with a Fair Market Value on the date of forfeiture equal to the withholding or other taxes due.  In addition, in the Company’s sole discretion and consistent with the Company’s rules (including, but not limited to, compliance with the Company’s Policy on Inside Information and Insider Trading) and regulations, the Company may permit Participant to pay the withholding or other taxes due as a result of the vesting of Participant’s RSUs by delivery (on a form acceptable to the Committee or

 

Company) of an irrevocable direction to a licensed securities broker to sell Shares and to deliver all or part of the sales proceeds to the Company in payment of the withholding or other taxes. If Participant delivers to the Company Shares already owned by Participant as payment for any withholding or other tax obligations, (i) only a whole number of Shares (and not fractional Shares) may be delivered and (ii) Shares must be delivered to the Company free and clear of any liens of any kind.  Delivery for this purpose may, at the election of Participant, be made either by (A) physical delivery of the certificate(s) for all such Shares tendered in payment of the withholding or other tax obligations, accompanied by duly executed instruments of transfer in a form acceptable to the Company, or (B) direction to Participant’s broker to transfer, by book entry, such Shares from a brokerage account of Participant to a brokerage account specified by the Company.  If Shares are withheld from Participant to pay any withholding or other tax obligations, only a whole number of Shares (and not fractional shares) will be withheld in payment.  The tax consequences to Participant (including without limitation federal, state, local and foreign income tax consequences) with respect to the RSUs (including without limitation the grant, vesting and/or delivery thereof) are the sole responsibility of Participant.  Participant shall consult with his or her own personal accountant(s) and/or tax advisor(s) regarding these matters and Participant’s filing, withholding and payment (or tax liability) obligations.

 

7.   Non-Transferability .  Unless otherwise determined by the Committee, the RSUs may not be transferred in any manner except by will or the laws of descent and distribution, and any attempt to transfer the RSUs in violation of this Section 7 shall be void ab initio .

 

8.   Amendment, Modification and Assignment .  The Committee may amend or modify the Award Documentation at any time as provided by Section 10(f) of the Plan.  This Award (and Participant’s rights hereunder) may not be assigned, and the obligations of Participant hereunder may not be delegated, in whole or in part.  The rights and obligations created hereunder shall be binding on Participant and his executors, administrators, and heirs, and on the successors and assigns of the Company.

 

9.   Complete Agreement .  The Award Documentation (together with the Plan and the Plan prospectus) constitute the entire agreement, and supersede all other prior agreements, understandings, representations and warranties, both written and oral, among the parties, with respect to the subject matter hereof.

 

10.   No Right to Continued Service .  The Award Documentation and the Award shall not confer, or be construed to confer, upon Participant any right to continue as a Non-Employee Director of the Company.

 

11.   No Limit on Other Compensation Arrangements .  Nothing contained in the Award Documentation shall preclude the Company or any of its Subsidiaries from adopting or continuing in effect any other or additional compensation plans, agreements or arrangements.

 

12.   No Trust or Fund Created .  Neither the Award Documentation nor the grant of RSUs pursuant to the Award Documentation shall create or be construed to create a trust or separate fund of any kind or a fiduciary relationship between the Company or any of its Subsidiaries and Participant or any other person.  To the extent that Participant or any other person acquires a right to receive payments from the Company or any of its Subsidiaries pursuant to the Award Documentation, such right shall be no greater than the right of any unsecured general creditor of the Company.

 

13.   Section 409A .  The Award Documentation shall be interpreted, administered and construed in a manner that is intended to avoid the imposition of interest, taxes and penalties on Participant pursuant to Section 409A of the Code.  It is intended that the RSUs shall comply with the requirements of Section 409A of the Code.  To the extent required in order to avoid the imposition of any interest, penalties and additional tax under Section 409A of the Code, any Shares deliverable as a result of Participant’s termination of Continuous Service will be delayed for six months and one day following such termination of Continuous Service, or if earlier, the date of Participant’s death, if Participant is deemed to be a “specified employee” as defined in Section 409A of the Code and as determined by the

 

Company.  Any delivery of Shares provided for in the Award Documentation in connection with Participant’s termination of Continuous Service as a Non-Employee Director shall be made to Participant only upon a “separation from service” (as such term is defined and used in Section 409A of the Code).  Each delivery of Shares made under the Award Documentation shall be treated as a separate payment for purposes of Section 409A of the Code.  Notwithstanding the foregoing, the Company does not make any representation to Participant that the RSUs awarded pursuant to this Award Documentation are exempt from, or satisfy, the requirements of Section 409A of the Code, and the Company shall have no liability or other obligation to indemnify or hold harmless Participant or any Beneficiary for any tax, additional tax, interest or penalties that Participant or any Beneficiary may incur in the event that any provision of this Award Documentation, or any amendment or modification thereof or any other action taken with respect thereto, is deemed to violate any of the requirements of Section 409A of the Code.

 

14.   Interpretation; Construction .  Participant accepts as binding, conclusive and final all decisions or interpretations of the Committee upon any questions arising under the Award Documentation.  Section, paragraph and other headings and captions are provided solely as a convenience to facilitate reference.  Such headings and captions shall not be deemed in any way material or relevant to the construction, meaning or interpretation of the Award Documentation or any term or provision hereof.

 

15.   Notices .  Any notice under the Award Documentation shall be in writing addressed (i) if to the Company, to the attention of the Company’s General Counsel at 8735 Henderson Road, Renaissance Two, Tampa, Florida 33634, or if the Company should move its principal office, to such principal office and (ii) if to Participant, to Participant’s last permanent address as shown on the Company’s records, or to such other address as may be designated in a notice satisfying the requirements of this Section 15.  Any notices shall be delivered personally or sent by registered or certified mail, postage prepaid, by facsimile (with proof of transmission), by courier (with proof of delivery) or by such other methods that are acceptable to the Company.  Notice shall be deemed to have been duly given when delivered personally or when deposited in the United States mail or sent pursuant to such other method acceptable to the Company.

 

16.   Non-Waiver of Breach .  The waiver by any party hereto of the other party’s prompt and complete performance, or breach or violation, of any term or provision of the Award Documentation shall be effected solely in a writing signed by such party, and shall not operate nor be construed as a waiver of any subsequent breach or violation, and the waiver by any party hereto to exercise any right or remedy which he or it may possess shall not operate nor be construed as the waiver of such right or remedy by such party, or as a bar to the exercise of such right or remedy by such party, upon the occurrence of any subsequent breach or violation.

 

17.   Counterparts .  The Award Documentation may be executed in two or more separate counterparts, each of which shall be an original, and all of which together shall constitute one and the same agreement.

 

18.   Governing Law .  The Award Documentation shall be governed by the corporate laws of the State of Delaware, without giving effect to any choice of law provisions.

 

19.   Severability .  If any term or provision of the Award Documentation is or becomes or is deemed to be invalid, illegal or unenforceable in any jurisdiction or under any applicable law, rule or regulation, then such provision shall be construed or deemed amended to conform to applicable law (or if such provision cannot be so construed or deemed amended without materially altering the purpose or intent of the Award Documentation and the grant of RSUs hereunder, such provision shall be stricken as to such jurisdiction and the remainder of the Award Documentation and the Award hereunder shall remain in full force and effect).