EX-10.38







Exhibit 10.38




WELLCARE HEALTH PLANS, INC.

2004 EQUITY INCENTIVE PLAN




NON-QUALIFIED STOCK OPTION AGREEMENT

FOR

[Insert name of Optionee here]




Agreement



1. Grant of Option. WellCare Health Plans, Inc. (the “Company”) hereby grants, as of
                       , to                         (the “Optionee”) an option (the “Option”)
to purchase up to
                     shares of the Company’s Common Stock, $0.01 par value per
share (the “Shares”), at an exercise price per share equal to $                     (the “Option
Price”). The Option shall be subject to the terms and conditions set forth herein. The
Option was issued pursuant to the Company’s 2004 Equity Incentive Plan (the “Plan”),
which is incorporated herein for all purposes. The Option is a Non-Qualified Stock
Option, and not an Incentive Stock Option. The Optionee hereby acknowledges receipt of
a copy of the Plan and agrees to be bound by all of the terms and conditions hereof
and thereof and all applicable laws and regulations.



2. Definitions. Unless otherwise provided herein, terms used herein that are defined in the
Plan and not defined herein shall have the meanings attributed thereto in the Plan.



3. Exercise Schedule. Except as otherwise provided in Sections 6 and 7 of this
Agreement, or in the Plan, the Option is exercisable in installments as provided
below, which shall be cumulative. To the extent that the Option has become exercisable
with respect to a percentage of Shares as provided below, the Option may thereafter be
exercised by the Optionee, in whole or in part, at any time or from time to time prior
to the expiration of the Option as provided herein. The following table indicates each
date (the “Vesting Date”) upon which the Optionee shall be entitled to exercise the
Option with respect to the percentage of Shares granted as indicated beside the date,
provided that the Optionee’s employment or service with the Company and its
Subsidiaries during the period beginning on                      (the “Vesting
Commencement Date”) continues through and on the applicable Vesting Date:




	 	 	 
	Percentage of Shares
	 	Vesting Date





Notwithstanding anything contained herein to the contrary, once the Option has vested
and become exercisable with respect to 100% of the Shares, then the Option shall be
fully vested and the provisions of the preceding sentence shall cease to apply.



     Except as otherwise specifically provided herein, there shall be no proportionate
or partial vesting in the periods prior to each Vesting Date, and all vesting shall
occur only on the appropriate Vesting Date. Upon the termination of the Optionee’s
employment or service with the Company and its Subsidiaries, any unvested portion of
the Option shall terminate and be null and void.





 












 




4. Method of Exercise. The vested portion of this Option shall be exercisable in whole or
in part in accordance with the exercise schedule set forth in Section 3 hereof by written notice
which shall state the election to exercise the Option, the number of Shares in respect of which
the Option is being exercised (which number must be a whole number), and such other
representations and agreements as to the holder’s investment intent with respect to such Shares as
may be required by the Company pursuant to the provisions of the Plan. Such written notice shall
be signed by the Optionee and shall be delivered in person or by certified mail to the Secretary
of the Company. The written notice shall be accompanied by payment of the Option Price. This
Option shall be deemed to be exercised after both (a) receipt by the Company of such written
notice accompanied by the Option Price and (b) arrangements that are satisfactory to the Committee
in its sole discretion have been made for Optionee’s payment to the Company of the amount, if any,
that is necessary to be withheld in accordance with applicable Federal or state withholding
requirements. No Shares will be issued pursuant to the Option unless and until such issuance and
such exercise shall comply with all relevant provisions of applicable law, including the
requirements of any stock exchange upon which the Shares then may be traded.



5. Method of Payment. Payment of the Option Price shall be by any of the following, or a
combination thereof, at the election of the Optionee: (a) in cash (including check, bank draft,
money order or wire transfer of immediately available funds), (b) by delivery of outstanding shares
of Common Stock with a Fair Market Value on the date of exercise equal to the aggregate exercise
price payable with respect to the Options’ exercise, (c) by simultaneous sale through a broker
reasonably acceptable to the Committee of Shares acquired on exercise, as permitted under
Regulation T of the Federal Reserve Board, (d) by authorizing the Company to withhold from issuance
a number of Shares issuable upon exercise of the Option which, when multiplied by the Fair Market
Value of a share of Common Stock on the date of exercise, is equal to the Option Price payable with
respect to the portion of the Option being exercised or (e) by any combination of the foregoing.




     In the event the Optionee elects to pay the Option Price pursuant to clause (b) above, (i)
only a whole number of share(s) of Common Stock (and not fractional shares of Common Stock) may be
tendered in payment, (ii) the Optionee must present evidence acceptable to the Company that the
Optionee has owned any such shares of Common Stock tendered in payment of the Option Price (and
that such tendered 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 Optionee, be made
either by (A) physical delivery of the certificate(s) for all such shares of Common Stock tendered
in payment of the Option Price, accompanied by duly executed instruments of transfer in a form
acceptable to the Company, or (B) direction to the Optionee’s broker to transfer, by book entry,
such shares of Common Stock from a brokerage account of the Optionee to a brokerage account
specified by the Company. When payment of the Option Price is made by delivery of Common Stock, the
difference, if any, between the Option Price payable with respect to the portion of the Option
being exercised and the Fair Market Value of the shares of Common Stock tendered in payment (plus
any applicable taxes) shall be paid in cash. The Optionee may not tender shares of Common Stock
having a Fair Market Value exceeding the Option Price payable with respect to the portion of the
Option being exercised (plus any applicable taxes).



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     In the event the Optionee elects to pay the Option Price pursuant to clause (d) above, (i)
only a whole number of Share(s) (and not fractional Shares) may be withheld in payment and (ii)
the Optionee must present evidence acceptable to the Company that the Optionee has owned a number
of shares of Common Stock at least equal to the number of Shares to be withheld in payment of the
Option Price (and that such owned 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. When payment of the
Option Price is made by withholding of Shares, the difference, if any, between the Option Price
payable with respect to the portion of the Option being exercised and the Fair Market Value of the
Shares withheld in payment (plus any applicable taxes) shall be paid in cash. The Optionee may not
authorize the withholding of Shares having a Fair Market Value exceeding the Option Price payable
with respect to the portion of the Option being exercised (plus any applicable taxes). Any
withheld Shares shall no longer be issuable under the Option.



6. Termination of Optionee’s Service.




     (a) Death or Disability. If the Optionee ceases to be an officer or employee of, or
to perform other services for, the Company or any Subsidiary due to the Optionee’s death or
Disability, the portion of the Option that was exercisable on the date of such cessation shall
remain so for a period of 180 days from the date of such death or Disability, but in no event
after the expiration date provided in Section 7(a) below; provided that the Option shall
immediately terminate and become null and void in the event that the Optionee engages in
Competition during such 180 day period, unless the Optionee has received written consent to do so
from the Company.



     (b) Retirement. If the Optionee ceases to be an officer or employee of, or to perform
other services for, the Company or any Subsidiary due to the Optionee’s Retirement, the portion of
the Option that was exercisable on the date of such cessation shall remain so for a period of 90
days from the date of such Retirement, but in no event after the expiration date provided in
Section 7(a) below; provided that the Option shall immediately terminate and become null and void
in the event that the Optionee engages in Competition during such 90 day period, unless the
Optionee has received written consent to do so from the Company.



     (c) Termination for Cause. If the Optionee’s employment by, or other performance of
services for, the Company or any Subsidiary is terminated for Cause, the Option shall expire and
be forfeited immediately upon such termination, whether or not then exercisable.



     (d) Other Termination of Service. If the Optionee ceases to be an officer or employee
of, or to perform other services for, the Company or any Subsidiary for any reason other than
death, Disability, Retirement or Cause, the portion of the Option that was exercisable on the date
of such cessation shall remain so for a period of 90 days after the date of such cessation, but in
no event after the expiration date provided in Section 7(a) below; provided that the Option shall
immediately terminate in the event that the Optionee engages in Competition during such 90 day
period, unless the Optionee has received written consent to do so from the Company.



     (e) Termination of Service Following a Change in Control. Notwithstanding the
foregoing, if the Optionee ceases to be an officer or employee of, or to perform other services
for, the Company or any Subsidiary, and the Optionee’s service was terminated (i) by the Company
without Cause, (ii) by reason of the Optionee’s death, Disability, or Retirement, or (iii) by the



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Optionee for Good Reason, within twelve months after there is a Change in Control of the Company,
as defined in Section 2(c) of the Plan, then the Option shall be immediately fully exercisable and
shall remain so for the applicable period following the Optionee’s termination of service, as
described in this Section 6.




     (f) Extension of Post-Termination of Service Exercise Period. The period during which
the Option can be exercised after a termination of service subject to Sections 6(a), (b), (d) or
(e) above will be extended for any period during which the Optionee cannot exercise the Option
because such an exercise would violate an applicable Federal, state, local, or foreign law, until
30 days after the exercise of the Option first would no longer violate an applicable Federal,
state, local, and foreign laws.



7. Other Termination of Option.




     (a) Expiration of Option. Notwithstanding anything to the contrary, any unexercised
portion of the Option shall automatically and without notice terminate and become null and void on
the                     
anniversary of the date as of which the Option is granted.



     (b) Cancellation by the Committee. Notwithstanding anything to the contrary, in
connection with any transaction of the type specified by clause (iii) of the definition of a
Change in Control in Section 2(c) of the Plan, the Committee may, in its discretion, (i) cancel
the Option in consideration for payment to the Optionee of an amount equal to the portion of the
consideration that would have been payable to the Optionee pursuant to such transaction if the
Option had been fully exercised immediately prior to such transaction, less the aggregate Option
Price that would have been payable therefor, or (ii) if the amount that would have been payable to
the Optionee pursuant to such transaction if the Option had been fully exercised immediately prior
thereto would be equal to or less than the aggregate Option Price that would have been payable
therefor, cancel the Option for no consideration or payment of any kind. Payment of any amount
payable pursuant to the preceding sentence may be made in cash or, in the event that the
consideration to be received in such transaction includes securities or other property, in cash
and/or securities or other property in the Committee’s discretion.



     (c) Corporate Transactions. Notwithstanding anything to the contrary, to the extent
not previously exercised, the Option shall terminate immediately in the event of the liquidation
or dissolution of the Company.


8. Transferability. Unless otherwise determined by the Committee, the Option granted
hereby is not transferable otherwise than by will or under the applicable laws of descent and
distribution, and during the lifetime of the Optionee the Option shall be exercisable only by the
Optionee, or the Optionee’s guardian or legal representative. In addition, the Option shall not be
assigned, negotiated, pledged or hypothecated in any way (whether by operation of law or
otherwise), and the Option shall not be subject to execution, attachment or similar process. Upon
any attempt to transfer, assign, negotiate, pledge or hypothecate the Option, or in the event of
any levy upon the Option by reason of any execution, attachment or similar process contrary to the
provisions hereof, the Option shall immediately become null and void. The terms of this Option
shall be binding upon the executors, administrators, heirs, successors and assigns of the
Optionee.




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The terms of this Option shall be binding upon the executors, administrators, heirs, successors and
assigns of the Optionee.



9. No Rights of Stockholders. Neither the Optionee nor any personal representative (or
beneficiary) shall be, or shall have any of the rights and privileges of, a stockholder of the
Company with respect to any shares of Stock purchasable or issuable upon the exercise of the
Option, in whole or in part, prior to the date of exercise of the Option.



10. No Right to Continued Employment or Service. Neither the Option nor this Agreement
shall confer upon the Optionee any right to continued employment or service with the Company.



11. Law Governing. This Agreement shall be governed in accordance with and governed by the
internal laws of the State of Delaware.



12. Interpretation / Provisions of Plan Control. 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 Optionee
accepts the Option subject to all the terms and provisions of the Plan and this Agreement. The
undersigned Optionee hereby accepts as binding, conclusive and final all decisions or
interpretations of the Committee upon any questions arising under the Plan and this Agreement.



13. 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:




	 	 	 
	 

	 	8735 Henderson Road
	 

	 	Renaissance Two 
	 

	 	Tampa, FL 33634





or if the Company should move its principal office, to such principal office, and, in the case of
the Optionee, to the Optionee’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.



14. Tax Consequences. Set forth below is a brief summary as of the date of this Option of
some of the federal tax consequences of exercise of this Option and disposition of the Shares.
THIS SUMMARY IS NECESSARILY INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE SUBJECT TO CHANGE.
THE OPTIONEE SHOULD CONSULT A TAX ADVISER BEFORE EXERCISING THIS OPTION OR DISPOSING OF THE
SHARES.




     (a) The Optionee will not recognize any income on receipt of the Option.



     (b) The Optionee will recognize ordinary income at the time he exercises the Option equal to
the amount by which the Fair Market Value of the Shares on the date of exercise exceeds



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the Option Price paid for the Shares. The amount so recognized is subject to federal withholding
and employment taxes if the Optionee is an employee.




     (c) The Optionee’s tax basis for the Shares received as a result of the exercise of the
Option will be equal to the Fair Market Value of those Shares on the date of the exercise.



     (d) Upon the sale of the Shares, the Optionee will recognize a capital gain or loss on the
difference between the amount realized from the sale of the Shares and the Fair Market Value on
the date of exercise. The gain or loss would be short- or long-term depending upon whether the
Shares were held for at least one year after the date of exercise of the Option.


15. Company Right to Recover Option Stock or Option Gains. If it is ever determined by the
Board of Directors, in its sole and absolute discretion, that actions by an Optionee have
constituted: (i) wrongdoing that contributed to (A) any material misstatement or omission from any
report or statement filed by the Company with the U.S. Securities and Exchange Commission or (B)
any statement, certification, cost report, claim for payment, or other filing made under Medicare
or Medicaid that was false, fraudulent, or for an item or service not provided as claimed; (ii)
gross misconduct; (iii) breach of fiduciary duty to the Company; or (iv) fraud, then the Option
shall be immediately forfeited and thereupon the Option shall be cancelled; provided, further, that
if the Option has been exercised prior to the Board of Director’s determination, the Optionee shall
be required to pay to the Company an amount equal to the difference between the aggregate value of
the Shares acquired upon such exercise of the Option at the date of the Board determination and the
aggregate exercise price paid by Optionee. In addition, the Option and gains resulting from the
exercise of the Option, shall be subject to forfeiture in accordance with the Company’s standard
policies relating to such forfeitures and clawbacks, as such policies are in effect at the time of
grant of the Option.




* * * * *




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     IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have executed this
Agreement as of the date first written above.



	 	 	 	 	 	 	 
	 	 	COMPANY:	 	 
	 
	 	 	 	 	 	 
	 	 	WELLCARE HEALTH PLANS, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Heath Schiesser	 	 
	 

	 	Title:
	 	President and Chief Executive Officer	 	 






     Optionee 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 Option subject to all of the terms
and provisions thereof. Optionee has reviewed the Plan and this Option in their entirety, has had
an opportunity to obtain the advice of counsel prior to executing this Option, and fully
understands all provisions of the Option.



OPTIONEE:




	 	 	 
	 

[Insert name of Optionee here]

	 	 






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