EXHIBIT 10.17
WELLCARE HOLDINGS, LLC
TIME VESTING OPTION AGREEMENT EVIDENCING
A GRANT OF AN OPTION UNDER
2002 EMPLOYEE OPTION PLAN
This Time Vesting Option Agreement (this "AGREEMENT") is made as of
_________, 200__, between WellCare Holdings, LLC, a Delaware limited liability
company (the "COMPANY"), and _______________ ("GRANTEE"). Capitalized terms used
but not defined herein shall have the meanings assigned to such terms in the
Plan (as defined below).
1. Grant of Option. Pursuant to the WellCare Holdings, LLC 2002
Employee Option Plan (the "PLAN"), the Company hereby grants to Grantee, as of
the date hereof, an option (the "OPTION") to purchase from the Company ______
Class A Common Units (the "UNITS"), at the exercise price per Class A Common
Unit of $3.00 (the "EXERCISE PRICE"), subject to the terms and conditions set
forth herein and in the Plan. Upon certain events, the number of Units and/or
the Exercise Price may be adjusted as provided in the Plan.
2. Grantee Bound by Plan. The Plan is incorporated herein by
reference and made a part hereof. Grantee hereby acknowledges receipt of a copy
of the Plan and agrees to be bound by all the terms and provisions thereof. The
Plan should be carefully examined before any decision is made to exercise the
Option.
3. Exercise of Option. Subject to the terms and conditions
contained herein, including Section 6 hereof, and in the Plan, the Option may be
exercised to the extent it has become vested, by written notice to the Company
at any time and from time to time after the date of grant. The Option may be
exercised for a fraction of a Common Unit. Options are subject to cancellation
as provided in the Plan.
4. Expiration of Option. The Option shall not be exercisable in
any event after the date ten years after the date hereof. Any part of the Option
that is not vested on the date of the Grantee's Termination Date ("GRANTEE
TERMINATION DATE") shall expire and be forfeited on such date, and any part of
the Option that is vested on the Grantee Termination Date shall also expire and
be forfeited to the extent not theretofore exercised within sixty (60) days
following the Grantee Termination Date (180 days if the Grantee Termination Date
occurs as a result of the death of Grantee), but in no event after the date ten
years after the date hereof.
5. Vesting of Option.
(a) The Option may be exercised only to the extent it has
become vested. The Option shall fully vest and become exercisable with respect
to all of the Units if and only if the Grantee remains continuously employed by
the Company or one of its Subsidiaries during the period beginning on
______________ (the "VESTING COMMENCEMENT DATE") and ending on the fourth
anniversary of the Vesting Commencement Date. Notwithstanding the foregoing, the
Option shall cumulatively vest and become exercisable with respect to (i) 25% of
the Units (rounded to the nearest one-hundredth (0.01) of a Class A Common Unit)
upon the first anniversary of the Vesting Commencement Date, and (ii)
2.08333333% of the Units (rounded to the nearest one-hundredth (0.01) of a Class
A Common Unit) upon the end of each full calendar
month during the period beginning on the first anniversary of the Vesting
Commencement Date and ending on the fourth anniversary of the Vesting
Commencement Date, in each case, if and only if the Grantee remains continuously
employed by the Company or one of its Subsidiaries during the period beginning
on the Vesting Commencement Date and ending on the applicable vesting date
referred to above.
(b) Notwithstanding anything contained herein to the
contrary, once the Option has vested and become exercisable with respect to 100%
of the Units, then the Option shall be fully vested and the provisions of this
Section 5 shall cease to apply.
6. Conditions to Exercise. The Option may not be exercised by
Grantee unless the following conditions are met:
(a) The Option has become vested with respect to the
Units to be acquired pursuant to such exercise;
(b) Grantee shall have executed and delivered a joinder
to the LLC Agreement;
(c) legal counsel for the Company must be satisfied at
the time of exercise that the issuance of the Units upon exercise will be in
compliance with the LLC Agreement, the Securities Act and applicable United
States federal, state, local and foreign laws; and
(d) Grantee must pay at the time of exercise the full
Exercise Price for the Units being acquired hereunder plus any withholding tax
required in connection with such exercise, in each case, in accordance with the
terms of the Plan.
7. Transferability. The Option (including the right to receive
the Units) may not be Transferred or assigned by Grantee, other than by will or
the laws of descent and distribution and, during the lifetime of Grantee, the
Option may be exercised only by Grantee (or, if Grantee is incapacitated, by
Grantee's legal guardian or legal representative). In the event of the death of
Grantee, the Option, to the extent it has not vested on the date of death, shall
terminate; and the exercise of the Option, to the extent it has vested as of the
date of death, may be made only by the executor or administrator of Grantee's
estate or the Person or Persons to whom Grantee's rights under the Option pass
by will or the laws of descent and distribution. If Grantee or anyone claiming
under or through Grantee attempts to violate this Section 7, such attempted
violation shall be null and void and without effect, and the Company's
obligation hereunder shall terminate. Any Issued Units received upon exercise of
the Option shall be subject to the repurchase right, restrictions on Transfer
and other rights and obligations set forth in the Plan.
8. Investment Representation. Grantee hereby acknowledges that
the securities which Grantee may acquire by exercising the Option shall not be
Transferred in the absence of an effective registration statement for such
securities under the Securities Act and applicable state securities laws or an
applicable exemption from the registration requirements of the Securities Act
and any applicable state securities laws. Grantee also agrees that the
securities which Grantee may acquire by exercising the Option will not be sold
or otherwise disposed of in any manner which would constitute a violation of any
applicable federal or state securities laws.
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9. Rights of Participants. Nothing in this Agreement shall
interfere with or limit in any way the right of the Company or any Subsidiary to
terminate Grantee's employment at any time (with or without cause), or confer
upon Grantee any right to continue to be employed by the Company or any
Subsidiary for any period of time or to continue to receive Grantee's current
(or other) rate of compensation.
10. REPURCHASE RIGHTS; APPROVED SALE. GRANTEE HEREBY ACKNOWLEDGES
AND AGREES THAT ALL UNITS ACQUIRED UPON EXERCISE OF THE OPTION SHALL BE SUBJECT
TO CERTAIN REPURCHASE RIGHTS IN FAVOR OF THE COMPANY, AS SPECIFIED IN THE PLAN.
GRANTEE FURTHER ACKNOWLEDGES AND AGREES THAT GRANTEE WILL VOTE FOR, CONSENT TO
AND RAISE NO OBJECTIONS AGAINST AN APPROVED SALE, AS SPECIFIED IN THE PLAN.
11. Notices. Any notice hereunder to the Company shall be
addressed to the Company's principal executive office, Attention: General
Counsel, and any notice hereunder to Grantee shall be addressed to Grantee at
Grantee's last address on the records of the Company, subject to the right of
either party to designate at any time hereafter in writing some other address.
Any notice shall be deemed to have been duly given when delivered personally,
one day following dispatch if sent by reputable overnight courier, fees prepaid,
or three days following mailing if sent by registered mail, return receipt
requested, postage prepaid and addressed as set forth above.
12. Binding Effect. This Agreement shall be binding upon and inure
to the benefit of any successors and assigns to the Company and all persons
lawfully claiming under Grantee.
13. [NON-COMPETITION. IN CONSIDERATION OF THE COMPANY'S GRANT OF
THE OPTION HEREUNDER, GRANTEE AGREES THAT, DURING THE PERIOD BEGINNING ON THE
DATE HEREOF AND ENDING ON THE DATE ONE YEAR AFTER THE GRANTEE TERMINATION DATE,
GRANTEE WILL NOT FOR HIMSELF OR HERSELF, AS THE CASE MAY BE, OR ON BEHALF ON ANY
OTHER PERSON, PERSONS, FIRM, PARTNERSHIP, CORPORATION, COMPANY OR OTHER ENTITY,
ENGAGE, DIRECTLY OR INDIRECTLY, IN ANY MANNER IN ANY BUSINESS THAT SELLS,
MARKETS, OR PROVIDES ANY BENEFITS OR SERVICES, THAT ARE IN DIRECT COMPETITION
WITH THE BENEFITS OR SERVICES PROVIDED BY THE COMPANY OR ANY OF ITS SUBSIDIARIES
WITHIN ANY OF THE STATES OF FLORIDA, CONNECTICUT, NEW YORK OR ANY OTHER STATE
THAT THE COMPANY OR ANY OF ITS SUBSIDIARIES IS DOING BUSINESS AS OF THE GRANTEE
TERMINATION DATE.]
14. Governing Law. The validity, construction, interpretation,
administration and effect of the Plan, and of its rules and regulations, and
rights relating to the Plan and to this Agreement, shall be governed by the
substantive laws, but not the choice of law rules, of the State of Delaware,
United States of America.
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IN WITNESS WHEREOF, the Company and Grantee have executed this
Time Vesting Option Agreement as of the date first above written.
WELLCARE HOLDINGS, LLC
By: ________________________________
Xxxx X. Xxxxx
Chief Executive Officer
GRANTEE:
____________________________________
___________________________
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