HEALTH INSURANCE INNOVATIONS, INC. LONG TERM INCENTIVE PLAN Performance Share and Restricted Stock Award Agreement
HEALTH
INSURANCE INNOVATIONS, INC.
LONG TERM INCENTIVE PLAN
Performance Share and Restricted Stock Award Agreement
You have been granted a Performance Share and Restricted Stock Award (this “Award”) providing you with the ability to earn performance shares (the “Performance Shares”) that shall be settled in shares of Restricted Stock upon the achievement or satisfaction of performance conditions specified by the Committee or the Board. The Award is being granted on the following terms and subject to the provisions of Attachments A and B and the Long Term Incentive Plan (the “Plan”) of Health Insurance Innovations, Inc. (the “Company”). Unless defined in this Award (including Attachments A and B, this “Agreement”), capitalized terms will have the meanings assigned to them in the Plan. In the event of a conflict among the provisions of the Plan, this Agreement and any descriptive materials provided to you, the provisions of the Plan will prevail.
| Participant | [ ] |
| Target Number of Performance Shares | [ ] (the “Target Performance Shares”). As set forth on Attachment B, the Participant may earn between 0% - 200% of the Target Performance Shares depending on the level of achievement of performance criteria. |
| Performance Period and Measures | See Attachment X. |
| Xxxxx Date | [ ], 2017 |
| Restricted Stock Issue Date | The date on which the Performance Shares are earned following completion of the performance criteria with respect to each performance Measurement Period. |
| Vesting Schedule | Subject to Section 3 of Attachment A, the Restricted Stock shall vest and become non-forfeitable at a rate of 50% on each of the first two anniversaries of the applicable Restricted Stock Issue Date. |
Attachment A
Performance Share and Restricted Stock Award Agreement
Terms and Conditions
Grant to: [ ]
Section 1. Performance Shares.
(a) Grant of Performance Shares. Subject to the terms and conditions of the Plan and this Agreement, the Company hereby grants this Award to the Participant on the Grant Date on the terms set forth on the cover page of this Agreement, as more fully described in this Attachments A and B. This Award is granted under the Plan, which is incorporated herein by this reference and made a part of this Agreement.
(b) Terms. Subject to the terms and conditions of this Agreement and the Plan, the Performance Shares constitute an unfunded and unsecured promise of the Company to deliver to Participant, at the time such Performance Shares are earned, a number of shares of Restricted Stock equal to the number of Performance Shares earned, which shares of Restricted Stock are subject to vesting as provided herein. The Participant shall not be considered a stockholder and shall have no rights to vote or otherwise receive dividends or distributions with respect to the Performance Shares.
(c) Certification of Performance Criteria. The Committee will certify the performance results and determine the number of Performance Shares earned by Participant no later than the date of the filing with the Securities and Exchange Commission of the Company’s Annual Report on Form 10-K with respect to the applicable Measurement Period (as defined below). The “Measurement Period” is the applicable annual period over which the performance criteria are applied, as set forth on Attachment B.
Section 2. Issuance of Restricted Stock.
(a) The Participant acknowledges that the Restricted Stock will be issued only upon satisfaction of certain performance-based criteria set forth in Attachment B to this Agreement and only after the end of the applicable Measurement Period.
| A-1 |
(b) After the Committee has certified the performance results and calculated the number of shares of Performance Shares that are issuable pursuant to Section 1(c) above (if any) in the form of Restricted Stock, the Restricted Stock shall be issued and evidenced by entry into the register of the Company; provided, however, that the Committee may determine that the Restricted Stock shall be evidenced in such other manner as it deems appropriate, including the issuance of a share certificate or certificates. In the event that any share certificate is issued in respect of the Restricted Stock, such certificate shall (i) be registered in the name of the Participant, (ii) bear an appropriate legend referring to the terms, conditions and restrictions applicable to the Restricted Stock and (iii) be held in custody by the Company.
(c) Voting Rights. The Participant shall have voting rights with respect to Restricted Stock.
(d) Dividends. All cash and other dividends and distributions, if any, that are paid with respect to the shares of Restricted Stock shall be paid to the Participant at the time that the portion of this Award to which such dividends or other distributions relate vests and becomes non-forfeitable.
(e) Transferability. Unless and until the Restricted Stock become vested in accordance with this Agreement, the Performance Shares and Restricted Stock shall not be assigned, sold, transferred or otherwise be subject to alienation by the Participant, and any purported assignment, sale, transfer or other alienation not permitted hereunder shall be void.
(f) Section 83(b) Election. If the Participant chooses, the Participant may make an election under Section 83(b) of the Code with respect to the Restricted Stock, which would cause the Participant currently to recognize income for U.S. federal income tax purposes in an amount equal to the excess (if any) of the Fair Market Value of the Restricted Stock (determined as of the applicable Restricted Stock Issue Date) over the amount, if any, that the Participant paid for the Restricted Stock, which excess will be subject to U.S. federal income tax. The form for making a Section 83(b) election is available from the Company at the address indicated in Section 4(a). The Participant acknowledges that (i) the Participant is solely responsible for the decision whether or not to make a Section 83(b) election, and the Company is not making any recommendation with respect thereto, (ii) it is the Participant’s sole responsibility to timely file the Section 83(b) election within 30 days after the applicable Restricted Stock Issue Date, if the Participant decides to make such election, and (iii) if the Participant does not make a valid and timely Section 83(b) election, the Participant will be required to recognize ordinary income at the time of vesting on any future appreciation on the Restricted Stock.
| A-2 |
(g) Withholding Requirements. The Company may withhold any tax (or other governmental obligation) that becomes due with respect to the Restricted Stock (or any dividend or distribution thereon), and the Participant shall make arrangements satisfactory to the Company to enable the Company to satisfy all such withholding requirements. Notwithstanding the foregoing, the Committee, in its sole discretion, may permit the Participant to satisfy any such withholding requirement by transferring to the Company pursuant to such procedures as the Committee may require, effective as of the date on which such requirement arises, a number of vested Shares owned and designated by the Participant having an aggregate Fair Market Value as of such date that is equal to the minimum amount required to be withheld. If the Committee permits the Participant to satisfy any such withholding requirement pursuant to the preceding sentence, the Company shall remit to the Internal Revenue Service and appropriate state and local revenue agencies, for the credit of the Participant, an amount of cash withholding equal to the Fair Market Value of the Shares transferred to the Company as provided above.
Section 3. Termination of Service; Acceleration of Vesting Upon Change of Control.
(a) Termination of Service. [The Restricted Stock shall vest and become non-forfeitable in accordance with the Vesting Schedule set forth on the cover page of this Agreement; provided that no Termination of Service occurs with respect to the Participant on or prior to such vesting date. In the event of the Participant’s Termination of Service at any time, any Performance Shares that are unearned and any Restricted Shares that are unvested as of the Termination Date shall automatically be forfeited without any payment to the Participant regardless of the reason for termination.]1
1 ALTERNATE PARAGRAPH OPTION: [The Restricted Stock shall vest and become non-forfeitable in accordance with the Vesting Schedule set forth on the cover page of this Agreement; provided that no Termination of Service occurs with respect to the Participant on or prior to such vesting date. Except as set forth below, in the event of the Participant’s Termination of Service at any time on or prior to such vesting date, all unearned Performance Shares and all unvested Restricted Stock shall be forfeited in their entirety without any payment to the Participant. If the Participant’s employment is terminated due to Termination Upon Death (as defined in Participant’s employment agreement), Termination For Disability (as defined in Participant’s employment agreement), Termination Without Cause (as defined in Participant’s employment agreement) or Resignation For Good Reason (as defined in Participant’s employment agreement), all unvested Restricted Stock (including all earned but unissued Restricted Stock, but excluding all unearned Performance Shares) shall become 100% vested and non-forfeitable.]
| A-3 |
(b) Change of Control. If the Participant holds Restricted Stock at the time a Change in Control occurs, all unvested Restricted Stock (including all earned but unissued Restricted Stock, but excluding all unearned Performance Shares, subject to Section 4 below) shall become 100% vested and non-forfeitable on the date of the Change in Control immediately prior to the consummation thereof.
(c) Effect of Vesting. Subject to the provisions of this Agreement, upon the vesting of any of the Restricted Stock, the restrictions under this Award with respect to such Shares shall lapse. Subject to any applicable Lock Up Agreement, such Shares shall be fully assignable, saleable and transferable by the Participant, and the Company shall deliver such Shares to the Participant by transfer to the Depository Trust Company for the benefit of the Participant or by delivery of a share certificate registered in the Participant’s name and such transfer shall be evidenced in the register of members of the Company.
Section 4. Change in Control. Without limiting the Committee’s power under the Plan, upon the occurrence of a Change in Control, the Committee is authorized (but not obligated) to make adjustments to the terms and conditions of the Performance Shares and Restricted Stock without the need for the consent of the Participant, including, without limitation, the following (or any combination thereof):
(a) The Committee may provide for the continuation or assumption of the Performance Shares and/or Restricted Stock and this Agreement by the acquiring or successor entity (or parent thereof), including the Company if it is the surviving entity, or for the substitution of the Performance Shares and/or Restricted Stock and this Agreement with a substitute award with terms comparable to the Performance Shares and this Agreement (in each case with appropriate adjustments as to the number and type of Shares (or other securities) underlying the Award or substitute award). The determination of such appropriate adjustments and comparability shall be made by the Committee.
| A-4 |
(b) The Committee may provide for the conversion of Performance Shares with respect to the performance Measurement Period in which the Change in Control occurs at the Target number into unrestricted Shares and/or cancellation of all or any portion of the Restricted Stock or unrestricted Shares for value (payable in the form of cash, stock, securities, other property or any combination thereof) based upon the price per Share received or to be received by other stockholders of the Company in the Change in Control transaction.
Section 5. Miscellaneous Provisions.
(a) Notices. All notices, requests and other communications under this Agreement shall be in writing and shall be delivered in person (by courier or otherwise), mailed by certified or registered mail, return receipt requested, or sent by facsimile transmission, as follows:
if to the Company, to:
Health Insurance Innovations, Inc.
00000 X. Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attention: Chief Financial Officer
Telecopy: (000) 000-0000
if to the Participant, to the address that the Participant most recently provided to the Company, or to such other address or facsimile number as such party may hereafter specify for the purpose by notice to the other party hereto. All such notices, requests and other communications shall be deemed received on the date of receipt by the recipient thereof if received prior to 5:00 p.m. on a business day in the place of receipt. Otherwise, any such notice, request or communication shall be deemed received on the next succeeding business day in the place of receipt.
| A-5 |
(b) Entire Agreement. This Agreement, the Plan and any other agreements referred to herein and therein and any attachments referred to herein or therein, constitute the entire agreement and understanding between the parties in respect of the subject matter hereof and supersede all prior and contemporaneous arrangements, agreements and understandings, both oral and written, whether in term sheets, presentations or otherwise, between the parties with respect to the subject matter hereof.
(c) Amendment; Waiver. No amendment or modification of any provision of this Agreement shall be effective unless signed in writing by or on behalf of the Company and the Participant, except that the Committee may amend or modify this Agreement without the Participant’s consent in accordance with the provisions of the Plan or as otherwise set forth in this Agreement. No waiver of any breach or condition of this Agreement shall be deemed to be a waiver of any other or subsequent breach or condition whether of like or different nature. Any amendment or modification of or to any provision of this Agreement, or any waiver of any provision of this Agreement, shall be effective only in the specific instance and for the specific purpose for which made or given.
(d) Assignment. Neither this Agreement nor any right, remedy, obligation or liability arising hereunder or by reason hereof shall be assignable by the Participant.
(e) Successors and Assigns; No Third Party Beneficiaries. This Agreement shall inure to the benefit of and be binding upon the Company and the Participant and their respective heirs, successors, legal representatives and permitted assigns. Nothing in this Agreement, expressed or implied, is intended to confer on anyone other than the Company and the Participant, and their respective heirs, successors, legal representatives and permitted assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement.
(f) Counterparts. This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.
| A-6 |
(g) Plan. The Participant acknowledges and understands that material definitions and provisions concerning this Award and the Participant’s rights and obligations with respect thereto are set forth in the Plan. The Participant has read carefully, and understands, the provisions of the Plan.
(h) Governing Law. The Agreement shall be governed by the laws of the State of Florida, without application of the conflicts of law principles thereof.
(i) No Right to Continued Service. The granting of the Award evidenced hereby and this Agreement shall impose no obligation on the Company or any Affiliate to continue the service of the Participant and shall not lessen or affect the right that the Company or any Affiliate may have to terminate the service of the Participant.
(j) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(k) Clawback Policy. The Shares awarded under this Agreement and the proceeds from any subsequent transfer shall be subject to any applicable Company policy required to comply with Section 954 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (Pub.L 111-203) or other similar, applicable and mandatory legal requirement.
| A-7 |
Attachment B
Performance Award Criteria
[individual award criteria inserted here]
| B-1 |
