WELLCARE HEALTH PLANS, INC. RESTRICTED STOCK UNIT AGREEMENT
Exhibit
(d)(2)
2004
EQUITY INCENTIVE PLAN
This
RESTRICTED STOCK UNIT
AGREEMENT (the “Agreement”) is made and entered into effective as of
[●], 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 as an employee of or
service provider to the Company or any of its Subsidiaries and to provide
incentive to the Grantee to remain with the Company or any of its Subsidiaries,
it is in the best interests of the Company to make a grant of Restricted Stock
Units to Grantee in accordance with the terms of this Agreement;
and
The
Restricted Stock Units are 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
Units. The Company hereby grants, on the date set forth above,
to the Grantee, [●]
restricted stock units relating to shares of common stock, par value $.01 per
share, of the Company (collectively, the “Restricted Stock Units”), which
Restricted Stock Units are 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 Units, the Grantee agrees to be bound by all of the terms
and conditions herein and in the Plan. The purchase price per share of
Restricted Stock Units is $.01 per share (the par value of a share of common
stock of the Company), which is deemed paid by the Grantee’s prior services to
the Company.
2. Vesting of Restricted Stock
Units.
(a) Except
as otherwise provided in Section 3 hereof, the following table indicates each
date upon which the Grantee shall become vested with respect to the percentage
of Restricted Stock Units granted as indicated beside the date (each such date
being a “Vesting Date”), provided that the Grantee’s employment with the Company
or any its Subsidiaries continues through and on the applicable Vesting
Date:
|
Percentage
of Restricted
Stock
Units
|
Vesting
Date
|
|
|
25%
|
[●]
|
|
|
25%
|
[●]
|
|
|
25%
|
[●]
|
|
|
25%
|
[●]
|
(b) Except
as otherwise provided in Section 3 hereof, there shall be no proportionate or
partial vesting of Restricted Stock Units in or during the months, days or
periods prior to the Vesting Date, and all vesting of Restricted Stock Units
shall occur only on the Vesting Date.
3. Termination of
Services.
(a) Except
as set forth below, upon the termination or cessation of Grantee’s employment
with, or provision of service to, the Company or any of its Subsidiaries (the
“Date of Termination”), for any reason whatsoever, any portion of the Restricted
Stock Units which are 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, if the Grantee ceases to be an employee of, or otherwise a
service provider to, the Company or any of its Subsidiaries, and the Grantee’s
employment was terminated (i) by the Company or a Subsidiary without Cause or
(ii) by the Grantee for Good Reason, in either case within twelve months after
there is a Change in Control of the Company then the unvested Restricted Stock
Units shall become immediately vested as of the Date of
Termination.
(c) 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, to
accelerate the vesting of all or any portion of the Restricted Stock Units under
this Agreement, at such times and upon such terms and conditions as the
Committee shall deem advisable.
4. Delivery of Shares Pursuant
to Vested Restricted Stock Units. Upon vesting of the
Restricted Stock Units, shares equal to the number of vested Restricted Stock
Units will be delivered to the Grantee as soon as practicable following the
later of the Vesting Date.
5. Rights with Respect to
Restricted Stock Units.
(a) The
Grantee shall have none of the rights of a holder of shares of common stock of
the Company (other than the right to receive an amount equal to dividends, if
any, as may be declared by the Company from time to time) unless and until the
shares of common stock relating to the Restricted Stock Units have been
delivered to the Grantee. The Company may in its sole discretion require
that dividends will be reinvested in additional restricted stock units at Fair
Market Value on the dividend payment date, subject to vesting and delivered at
the same time as the Restricted Stock Unit.
(b) If
at any time while this Agreement is in effect (or Restricted Stock Units granted
hereunder shall be or remain unvested while Grantee’s employment or provision of
services continues and has not yet terminated or ceased for any reason), there
shall be any increase or decrease in the number of issued and outstanding shares
of the Company through the declaration of a stock dividend or through any
recapitalization resulting in a stock split-up, combination or exchange of such
shares, then and in that event, the Committee shall make any adjustments it
deems fair and appropriate, in view of such increase or decrease, in the number
of Restricted Stock Units then subject to this Agreement. If any such
adjustment shall result in a fractional share, such fraction shall be
disregarded and no share will be issued in connection with such
fraction.
(c) In
the event of any merger, consolidation or other reorganization in which the
Company is not the surviving or continuing corporation or in which a Change in
Control is to occur, all of the Company’s obligations regarding the Restricted
Stock Units shall, on such terms as may be approved by the Committee prior to
such event, be assumed by the surviving or continuing corporation or canceled in
exchange for property (including cash).
(d) Notwithstanding
any term or provision of this Agreement to the contrary, the existence of this
Agreement, or of any outstanding Restricted Stock Units 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 Units
and/or that would include, have or possess other rights, benefits and/or
preferences superior to those that the Restricted Stock Units 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. Transferability. Unless
otherwise determined by the Committee, the Restricted Stock Units are not
transferable. 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 Restricted Stock
Units 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, directly or indirectly,
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
Grantee agrees as a condition of this grant to make acceptable arrangements to
pay any withholding or other taxes that may be due as a result of vesting in
Restricted Stock Units or the Grantee’s acquisition of common stock under this
grant. In the event that the Company determines that any tax or
withholding payment is required relating to this grant under applicable laws,
the Company will have the right to: (i) require that the Grantee arrange such
payments to the Company, or (ii) cause an immediate forfeiture of shares of
common stock subject to the Restricted Stock Units granted pursuant to this
Agreement in an amount equal to the withholding or other taxes
due. In addition, in the Company’s sole discretion and consistent
with the Company’s rules and regulations, the Company may permit the Grantee to
pay the withholding or other taxes due as a result of the vesting of the
Grantee’s Restricted Stock Units by delivery (on a form acceptable to the Board)
of an irrevocable direction to a licensed securities broker selected by the
Company to sell shares of common stock and to deliver all or part of the sales
proceeds to the Company in payment of the withholding or other taxes. If the
Grantee delivers to the Company shares of common stock already owned by the
Grantee as payment for any withholding or other tax obligations, (i) only a
whole number of share(s) of common stock (and not fractional shares of common
stock) may be delivered, (ii) the Grantee must present evidence acceptable to
the Company that the Grantee has owned any such shares of common stock delivered
(and that such delivered shares of common stock have not been subject to any
substantial risk of forfeiture) for at least six months prior to the date of
exercise, and (iii) common stock must be delivered to the
Company. Delivery for this purpose may, at the election of the
Grantee, be made either by (A) physical delivery of the certificate(s) for all
such shares of common stock 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 the Grantee’s broker to transfer,
by book entry, such shares of common stock from a brokerage account of the
Grantee to a brokerage account specified by the Company. If shares
are withheld from the Grantee to pay any withholding or other tax obligations,
only a whole number of shares (and not fractional shares) will be withheld in
payment.
(b)
Tax consequences on the Grantee (including without
limitation federal, state, local and foreign income tax consequences) with
respect to the Restricted Stock Units (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 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. 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 executors, administrators, heirs, successors and assigns
of the Company.
9. Complete
Agreement. This Agreement (together with 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. 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.
10. Miscellaneous.
(a) No Right to Continued
Employment. This Agreement and the grant of Restricted Stock
Units hereunder shall not confer, or be construed to confer, upon the Grantee
any right to employment, or continued employment, with the Company or any of its
Subsidiaries.
(b) No Limit on Other
Compensation Arrangements. Nothing contained in this Agreement
shall preclude the Company or any of its Subsidiaries 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 of its
Subsidiaries 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 of its Subsidiaries 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. This
Agreement is subject to all the terms, conditions and provisions of the Plan,
including, without limitation, the amendment provisions thereof, and to such
rules, regulations and interpretations relating to the Plan adopted by the
Committee as may be in effect from time to time. If and to the extent
that this Agreement conflicts or is inconsistent with the terms, conditions and
provisions of the Plan, the Plan shall control, and this Agreement shall be
deemed to be modified accordingly. The Grantee accepts the Restricted Stock
Units subject to all of the terms, provisions and restrictions of this Agreement
and the Plan. 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 0000 Xxxxxxxxx Xxxx, Xxxxxxxxxxx Xxx, Xxxxx, Xxxxxxx
00000, 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.
By:
______________________________
Name:
Xxxxx X. Xxxxxxxxx
Title:
President and Chief Executive Officer
Grantee
acknowledges receipt of a copy of the Plan and represents that he or she 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:
__________________________________
[●]
