RESTRICTED STOCK AGREEMENT FOR
Exhibit
10.7
2004
EQUITY INCENTIVE PLAN
FOR
XXXXXXX
X. XXXX
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 Xxxxxxx X.
Xxxx
(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 inthe
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 has
granted on January
25,
2008 (the “Date
of Grant”),
to the Grantee, 200,000
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. The
Grantee agrees to be bound by all of the terms and conditions herein and
in the
Plan. However,
in the event of any conflict between the provisions of this Agreement and
the
Plan, the provisions of this Agreement shall govern.
2.
Vesting
of Restricted Stock.
(a)
Except
as otherwise provided in Section 3 hereof, twenty-five
percent (25%)of
the Restricted Stock will vest six months after the Date of Grant and the
remaining shares of Restricted Stock will vest quarterly thereafter (each
such date being a “Vesting
Date”),
with the last quarterly installment vesting on January 25, 2010,
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, any
portion
of the Restricted Stock that is unvested as of the date of the termination
of
Grantee’s
employment with the Company and its Subsidiaries (the “Date
of Termination”)
shall become immediately vested as of the Date of Termination.
(c)
Notwithstanding
any
other term or provision of this Agreement, in
the event of a Change
in Control of the Company any
unvested Restricted Stockthat
is then outstanding shall
become immediately vested.
(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,” and “Disability” shall have
the meanings set
forth in the employment
agreement between the Grantee and the Company dated
January 25, 2008 (the “Employment
Agreement”) and
the determination
of whether a termination of employment or service is for Cause, for Good
Reason
or on account of Disability shall be determined under 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.
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 ofany
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
Stockare
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 to satisfy 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
priornotice,
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 orlocal
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. 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 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. Except
as otherwise set forth in Section 3(e) above or 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 0000 Xxxxxxxxx Xxxx, Xxx Two, 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:
/s/
Xxxx
Xxxxxxxxxx
Name:
Xxxx
Xxxxxxxxxx
Title:
Chairman
of the Compensation Committee
|
Grantee
acknowledges receipt of a copy of the Plan.
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/
Xxxxxxx
X. Xxxx
Xxxxxxx
X. Xxxx
|
