RESTRICTED STOCK AGREEMENT FOR
Exhibit
10.6
2004
EQUITY INCENTIVE PLAN
FOR
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This
RESTRICTED
STOCK
AGREEMENT (the
“Agreement”)
is made and entered into effective as
of January 25,
2008, by and between WellCare Health
Plans, Inc., a Delaware
corporation (the “Company”),
and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (the
“Grantee”).
RECITALS
In
consideration of services to be
rendered by the Grantee and to provide an incentive to the Grantee to remain
with the Company and its Subsidiaries, it is in thebest interests of the
Company to make a
grant of Restricted Stock to Grantee in accordance with the terms of this
Agreement; and
The
Restricted Stock is granted pursuant
to the WellCare Health Plans, Inc. 2004 Equity Incentive Plan (the
“Plan”)
which is incorporated herein
for all
purposes. The Grantee hereby acknowledges receipt of a copy of the
Plan. Unless otherwise provided herein, terms used herein that are
defined in the Plan and not defined herein shall have the meanings attributable
thereto in the
Plan.
NOW,
THEREFORE, for and in
consideration of the mutual premises, covenants and agreements contained herein,
and for other good and valuable consideration, the receipt and sufficiency
of
which is hereby acknowledged, the parties hereto, intending to be legally bound,
hereby agree as
follows:
1.
Award
of Restricted Stock. The Company hereby
grants, as of January
25, 2008 (the “Date
of Grant”),
to the Grantee, 250,000 shares of
common stock, par value $.01 per share, of the Company (collectively, the “Restricted
Stock”),
which Restricted Stock is and shall
be subject to the terms, provisions and restrictions set forth in this Agreement
and in the Plan. As a condition to entering into this Agreement, and
as a condition to the issuance of the Restricted Stock (or
any other
securities of the Company), the Grantee agrees to be bound by all of the terms
and conditions herein and in the Plan.
2.
Vesting
of
Restricted Stock.
(a)
Except as otherwise provided
in
Section 3 hereof, the Restricted Stock shall become
vested in
equal quarterly
installments on the
25thday
of every third calendar month for
forty-eight months
commencing on the Date of Grant
(each such date being
a
“Vesting
Date”),
provided that the Grantee’s
employment or service with the Company and its
Subsidiaries
continues through and on
the applicable Vesting Date.
(b)
Except as otherwise provided
in
Section 3 hereof, there shall be no proportionate or partial vesting of
Restricted Stock in or during the months, days or periods prior to each Vesting
Date, and all
vesting of Restricted Stock shall occur only on the applicable Vesting
Date.
3.
Termination
of Employment
(a)
Upon the termination or cessation
of Grantee’s
employment or service with the Company
and its Subsidiaries, for
any reason whatsoever, any portion of the Restricted Stock which is not yet
then
vested, and which does not then become vested pursuant to this Section 3,
shall automatically and without notice terminate, be forfeited and become null
and void.
(b)
Notwithstanding the
foregoing,in the event that
the Grantee’s
employment with the Company and its
Subsidiaries is terminated by the Company without Cause or by the Grantee for
Good Reason, the vesting of
the shares
of Restricted Stock subject to
this Agreement shall
be accelerated such that
the Shares of Restricted
Stock are vested as of the date of the termination of Grantee’s
employment with the Company and its
Subsidiaries (the “Date
of Termination”) to the
same extent that the Shares of Restricted Stock would have
been vested had
Grantee’s
employment been continued for
twenty-four (24) months (or, if the Date of Termination occurs on or after
January
25, 2009, twelve (12)
months) after the Date of Termination.
(c)
Notwithstanding any
otherterm or provision of
this Agreement, in the
event of a Change
in Control of the Company any unvested Restricted
Stock
that is then outstanding
shall become vested
immediately
prior to such Change in
Control.
(d)
Notwithstanding any other term
or
provision of this
Agreement, in the event that the Grantee’s
employment or service with the Company
and its Subsidiaries is terminated on account of the Grantee’s
death or Disability, any unvested
portion of the Restricted Stock shall become immediately vested as of the Date
of Termination.
(e)
For purposes of this Agreement,
the terms “Cause”,
“Good
Reason,” “Disability”and
“Change
in Control” shall have
such meaning as
otherwise set forth in the
Employment Agreement dated January 25, 2008 among the Grantee, the Company and Comprehensive
Health
Management, Inc. (the “Employment Agreement”).
(f)
Notwithstanding any other term
or
provision of this Agreement but subject to the provisions of the Plan, the
Committee shall be authorized, in its sole discretion, based upon its review
and evaluation
of the performance of the Grantee and of the Company and its Subsidiaries,
to
accelerate the vesting of all or any portion of the Restricted Stock under
this
Agreement, at such times and upon such terms and conditions
as the Committee shall deem
advisable.
4.
Delivery
of
Restricted Stock. The Company shall make
a
book entry in its stock ledger for the Restricted Stock registered in the
Grantee’s
name. Upon vesting,
certificates for the Restricted Stock will be issued in the name of
the Grantee and
shall be delivered to the Grantee’s
address on record with the Company or
to such other address as the Grantee may instruct the Company. The
Company shall retain the right to determine if any stock certificates
issuedunder
the Plan or under this Agreement
shall bear a restrictive legend.
5.
Rights
with Respect to Restricted Stock.
(a)
Except as otherwise provided
in
this Agreement, the Grantee shall have, with respect to all of the shares of
Restricted Stock, whether
vested or unvested, all of the rights of a holder of shares of common stock
of
the Company, including without limitation (i) the right to vote such
Restricted Stock, (ii) the right to receive dividends, if any, as may be
declared on the Restricted Stock
from time to time, and (iii) the rights available to all holders of shares
of common stock of the Company upon any merger, consolidation, reorganization,
liquidation or dissolution, stock split-up, stock dividend or recapitalization
undertaken by the
Company.
(b)
In the event
that
the Committee shall determine that any stock dividend, stock split, share
combination, extraordinary cash dividend, recapitalization, reorganization,
merger, consolidation, split-up, spin-off, combination, exchange of
shares,
warrants or rights offering to purchase Common Stock at a price substantially
below fair market value, or other similar corporate event affects the Common
Stock such that an adjustment is required in the number of shares of Restricted
Stock in order to
preserve, or to
prevent the enlargement of, the benefits or potential benefits intended to
be
made available under this Award, then the Committee shall, in its sole
discretion, and in such manner as the Committee may deem equitable, adjust
any
or all of
the number and kind
of shares of Restricted Stock and/or, if deemed appropriate, make provision
for
a cash payment to the Grantee, provided, however, that, unless the Committee
determines otherwise, the number of shares of Restricted Stock subject to
this
Award shall always be
a whole number.
(c)
Notwithstanding
any term or provision of this Agreement to the contrary, the existence of this
Agreement, or of any outstanding Restricted Stock 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 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 Restricted Stock and/or
that would
include,
have or possess other rights, benefits and/or preferences superior to those
that
the Restricted Stock includes, 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.
Transferability. Unless
otherwise
determined by the Committee, the shares of Restricted Stock are not transferable
until and unless they become vested in accordance with this
Agreement. The terms of this Agreement shall be binding upon the
executors, administrators, heirs, successors
and assigns of the
Grantee. Any attempt to effect a Transfer of any shares of Restricted
Stock prior to the date on which the shares of Restricted Stock become vested
shall be void ab
initio. For
purposes of this Agreement, “Transfer”shall
mean any
sale,
transfer, encumbrance, gift, donation, assignment, pledge, hypothecation, or
other disposition, whether similar or dissimilar to those previously enumerated,
whether voluntary or involuntary, and including, but not limited to, any
disposition by operation
of law, by court
order, by judicial process, or by foreclosure, levy or
attachment.
7.
Tax
Withholding Obligations.
(a)
The Company
shall
withhold a number of shares of the Company’s
common stock (rounded
up) otherwise deliverable to the Grantee
having a Fair
Market Value sufficient tosatisfy
the statutory
minimum of all or part of the Grantee’s
estimated total
federal, state and local tax obligations associated with the award or vesting
of
the Restricted Stock; provided,
however,
the Grantee may
elect, by providing
the Company with at least two weeks prior notice, to satisfy such tax
withholding obligations by depositing with the Company an amount of cash equal
to the amount determined by the Company to be required with respect to any
withholding
taxes, FICA
contributions or the like under federal, state or local statute, ordinance
rule
or regulation in connection with the award or vesting of the Restricted
Stock. Alternatively, the Company may, in its sole discretion and to
the extent permitted
by law, deduct from
any payment of any kind otherwise due to the Grantee any federal, state or
local
taxes of any kind required by law to be withheld with respect to the Restricted
Stock.
(b)
Tax consequences
on the Grantee (including without limitation
federal, state,
local and foreign income tax consequences) with respect to the Restricted Stock
(including without limitation the grant, vesting and/or forfeiture thereof)
are
the sole responsibility of the Grantee. The Grantee shall consult
with his
or her own personal
accountant(s) and/or tax advisor(s) regarding these matters, the making of
a
Section 83(b) election and the Grantee’s
filing, withholding
and payment (or tax liability)
obligations.
8.
Amendment,
Modification and Assignment; Non- Transferability. This
Agreement may only be
modified or amended in a writing signed by the parties
hereto. Except
as set forth in the Employment Agreement, no promises, assurances,
commitments,
agreements, undertakings or representations, whether oral, written, electronic or
otherwise, and
whether express or implied, with respect to the subject matter hereof, have
been
made by either party which are not set forth expressly in this
Agreement. Unless otherwise consented to in writing by the Company,
in its sole
discretion, this Agreement (and
Grantee’s
rights hereunder) may not be assigned,
and the obligations of Grantee hereunder may not be delegated, in whole or
in
part. The rights and obligations created hereunder shall be binding
on the Grantee and his
heirs
and legal
representatives and on the successors and assigns of the
Company.
9.
Complete
Agreement. This Agreement (together with the Employment
Agreement and those agreements and documents expressly referred to herein,
for
the purposes referred to herein) embody the complete and entire agreement and
understanding between the parties with respect to the subject matter hereof,
and
supersede any and all prior promises, assurances, commitments, agreements,
undertakings or representations, whether oral, written, electronic or otherwise,
and whether express or implied, which may relate to the subject matter hereof
in
any way.
10.
Miscellaneous.
(a)
No
Right to Continued Employment or Service. This Agreement and the
grant of Restricted Stock hereunder shall not confer,
or be
construed to confer, upon the Grantee any right to employment or service, or
continued employment or service, with the Company or any
Subsidiary.
(b)
No
Limit on Other Compensation Arrangements. Nothing contained in
this Agreement shall
preclude the Company or any Subsidiary from adopting or continuing in effect
other or additional compensation plans, agreements or arrangements, and any
such
plans, agreements and arrangements may be either generally applicable or
applicable
only in specific cases or to
specific persons.
(c)
Severability. If
any term or provision of
this Agreement 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 this Agreement and the grant of Restricted
Stock hereunder,
such provision shall be stricken as
to such jurisdiction and the remainder of this Agreement and the award hereunder
shall remain in full force and effect).
(d)
No
Trust or Fund Created. Neither this Agreement
nor
the grant of Restricted Stock hereunder shall create
or be construed to
create a trust or separate fund of any kind or a fiduciary relationship between
the Company or any Subsidiary and the Grantee or any other person. To
the extent that the Grantee or any other person acquires a right to
receive payments from the Company or
any Subsidiary pursuant to this Agreement, such right shall be no greater than
the right of any unsecured general creditor of the Company.
(e)
Electronic
Delivery and Signatures. Grantee hereby consents
and
agrees to electronic
delivery of any Plan documents, proxy materials, annual reports and other
related documents. If the Company establishes procedures for an
electronic signature system for delivery and acceptance of Plan documents
(including documents relating
to any programs adopted under the
Plan), Grantee hereby consents to such procedures and agrees that his or her
electronic signature is the same as, and shall have the same force and effect
as, his or her manual signature. Grantee consents and agrees
that
any such procedures and delivery may
be effected by a third party engaged by the Company to provide administrative
services related to the Plan, including any program adopted under the
Plan.
(f)
Law
Governing. This
Agreement shall be governed by and construed and enforced
in accordance
with the internal laws of the State of Delaware(without
reference to the conflict of
laws rules or principles thereof).
(g)
Interpretation. The
Grantee accepts the
Restricted Stock subject to all of the terms, provisions and restrictions
of this
Agreement and the Plan. Unless a Change in Control shall have
occurred, the undersigned Grantee hereby accepts as binding, conclusive and
final all decisions or interpretations of the Committee upon any questions
arising
under this
Agreement.
(h)
Headings. 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 this
Agreement or any term or provision hereof.
(i)
Notices.
Any notice under this
Agreement shall be in writing and shall be deemed to have been duly given when
delivered personally or when deposited in the United States mail, registered, postage
prepaid, and
addressed, in the case of the Company, to the Company’s
Secretary at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇
Two, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, or if the Company should move its principal office,
to such principal office, and, in the case of
the Grantee, to the
Grantee’s
last permanent address as shown on the
Company’s
records, subject to the right of
either party to designate some other address at any time hereafter in a notice
satisfying the requirements of this Section.
(j)
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 this Agreement 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.
(k)
Counterparts. This
Agreement 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.
*
* * * * * * *
IN
WITNESS WHEREOF, the parties hereto,
intending to be legally bound, have executed this Agreement as of the date
first
written above.
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WELLCARE
HEALTH
PLANS, INC.
By:
/s/
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Name:
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Title:
Chairman
of the Compensation
Committee
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Grantee
acknowledges receipt of a copy
of the Plan and represents that he is familiar with the terms and provisions
thereof, and hereby accepts this Agreement subject to all of
the terms and
provisions thereof. Grantee has reviewed the Plan and this Agreement
in their entirety, has had an opportunity to obtain the advice of counsel prior
to executing this Agreement, and fully understands all provisions of
this
Agreement.
| GRANTEE:
By: /s/
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