indemnificationagreement.htm


    

      Back to Form 8-K

      Exhibit
10.2

       

      EXECUTION
COPY

       

       

      WELLCARE
HEALTH PLANS, INC.

       

      INDEMNIFICATION
AGREEMENT

       

      


      This INDEMNIFICATION AGREEMENT (this
“Agreement”) is entered into as of July 17, 2008, by and between WellCare Health
Plans, Inc., a Delaware corporation (the “Company”), and Thomas Tran,
(“Indemnitee”).  Capitalized terms used and not otherwise defined in
this Agreement have the meanings set forth in Section 10 hereof.

       

      RECITALS

       

      A.           The
Company and Indemnitee recognize the continued difficulty in obtaining liability
insurance for the directors, officers, employees, agents and fiduciaries of the
Company and its Subsidiaries, the significant increases in the cost of such
insurance and the general reductions in the coverage of such
insurance.

       

      B.           The
Company and Indemnitee further recognize the substantial increase in corporate
litigation in general, subjecting directors, officers, employees, agents and
fiduciaries to expensive litigation risks at the same time as the availability
and coverage of liability insurance has been severely limited.

       

      C.           Indemnitee
does not regard the current protection available as adequate under the present
circumstances, and Indemnitee and other directors, officers, employees, agents
and fiduciaries of the Company may not be willing to continue to serve in such
capacities without additional protection.

       

      D.           The
Company desires to attract and retain the services of highly qualified
individuals, such as Indemnitee, to serve the Company and/or one or more of its
Subsidiaries and, in order to induce Indemnitee to provide or to continue to
provide services to the Company and/or one or more of its Subsidiaries, wishes
to provide for the indemnification and advancing of expenses to Indemnitee to
the maximum extent permitted by law.

       

      E.           In
view of the considerations set forth above, the Company desires that Indemnitee
be indemnified by the Company as set forth herein.

       

      NOW, THEREFORE, the Company and
Indemnitee hereby agree as follows:

       

        

      
        
           


        

        
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1.             Indemnification

       

            
  
(a)              Indemnification of
Expenses

       

      The Company shall indemnify Indemnitee
to the fullest extent permitted by law if Indemnitee was or is or becomes a
party to or witness or other participant in, or is threatened to be made a party
to or witness or other participant in, any Proceeding, against any and all
Expenses, including all interest, assessments and other charges paid or payable
in connection with or in respect of such Expenses.  Subject to
Section 1(b) hereof, such payment of Expenses shall be made by the Company
as soon as practicable but in any event no later than thirty (30) days after
written demand by Indemnitee therefor is presented to the Company.

       

      (b)             Reviewing
Party

       

      Notwithstanding anything to the
contrary in Sections 1(a) or 2(a) hereof:

       

        
(i)           the
indemnification obligations of the Company under Section 1(a) hereof shall
be subject to the condition that the Reviewing Party shall not have determined
that Indemnitee would not be permitted to be indemnified under applicable law;
and

       

        
(ii)          the obligation
of the Company to make an advance payment of Expenses to Indemnitee pursuant to
Section 2(a) hereof (an “Expense Advance”) shall be subject to the
condition that, if, when and to the extent that the Reviewing Party determines
that Indemnitee would not be permitted to be indemnified under applicable law,
the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees
to reimburse the Company) for all such amounts theretofore paid by Company to
Indemnitee; provided, however, that if
Indemnitee has commenced or thereafter commences legal proceedings in a court of
competent jurisdiction to secure a determination that Indemnitee should be
indemnified under applicable law, any determination made by the Reviewing Party
that Indemnitee would not be permitted to be indemnified under applicable law
shall not be binding and Indemnitee shall not be required to reimburse the
Company for any Expense Advance until a final judicial determination is made
with respect thereto (as to which all rights of appeal therefrom have been
exhausted or lapsed).

       

      Indemnitee’s obligation to reimburse
the Company for any Expense Advance shall be unsecured and no interest shall be
charged thereon.  If there has not been a Change in Control, or it
there has been a Change in Control which has been approved by a majority of the
directors of the Company who were directors immediately prior to the Change in
Control (the “Incumbent Directors”), the Reviewing Party shall be selected by
the Board of Directors of the Company, and if there has been a Change in Control
which has not been approved by a majority of the Incumbent Directors, the
Reviewing Party shall be the Independent Legal Counsel.  If there has
been no determination by the Reviewing Party or if the Reviewing Party
determines that Indemnitee would not be permitted to be indemnified in whole or
in part under applicable law, Indemnitee shall have the right to commence
litigation seeking an initial determination by the court or challenging any such
determination by the Reviewing Party or any aspect thereof, including the legal
or factual bases therefor, and the Company hereby consents to service of process
and to appear in any such proceeding. Any determination by the Reviewing Party
otherwise shall be conclusive and binding on the Company and
Indemnitee.

       


      
        
           


        

        
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(c)          
   Contribution

       

      If the indemnification obligations of
the Company under Section 1(a) hereof shall be held by a court of competent
jurisdiction for any reason other than that set forth in Section 8(a) hereof to
be unavailable to Indemnitee in respect of any Expense, then the Company, in
lieu of indemnifying Indemnitee thereunder, shall contribute to the amount paid
or payable by Indemnitee as a result of such Expense (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company and
Indemnitee, or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company and Indemnitee in connection with the action or inaction
which resulted in such Expense, as well as any other relevant equitable
considerations.  The Company and Indemnitee agree that it would not be
just and equitable if contribution pursuant to this Section 1(c) were determined
by pro rata or per capita allocation or by any other method of allocation which
does not take account of the equitable considerations referred to in the
immediately preceding sentence.

       

      (d)             Mandatory Payment of
Expenses

       

      Notwithstanding any other provision of
this Agreement, to the extent that Indemnitee has been successful on the merits
or otherwise, including, without limitation, the dismissal of an action without
prejudice, in defense of any Proceeding or in the defense of any claim, issue or
matter therein, Indemnitee shall be indemnified against all Expenses incurred by
Indemnitee in connection therewith.

       

      2.             Expenses;
Indemnification Procedure

       

      (a)           
  Advancement of
Expenses

       

      Subject to the terms and conditions of
Section 1(b) hereof and to the extent not prohibited by applicable law, the
Company shall advance all Expenses incurred by Indemnitee.  The
advances to be made hereunder shall be paid by the Company to Indemnitee as soon
as practicable but in any event no later than thirty (30) days after written
demand by Indemnitee therefor to the Company.

       

      (b)             Notice; Cooperation by
Indemnitee

       

      Indemnitee shall, as a condition
precedent to Indemnitee’s right to be indemnified under this Agreement, give the
Company notice in writing as soon as practicable of any Proceeding for which
indemnification will or could be sought under this Agreement.  In
addition, Indemnitee shall give the Company such information and cooperation as
it may reasonably require and as shall be within Indemnitee’s
power.

       

      
        
           


        

        
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(c)         
    No Presumptions; Burden of Proof

       

        
(i)           For
purposes of this Agreement, the termination of any Proceeding by judgment,
order, settlement (whether with or without court approval) or conviction, or
upon a plea of nolo contendre or its equivalent, shall not create a presumption
that Indemnitee did not meet any particular standard of conduct or have any
particular belief or that a court has determined that indemnification is not
permitted by applicable law.  In addition, neither the failure of the
Reviewing Party to have made a determination as to whether Indemnitee has met
any particular standard of conduct or had any particular belief, nor an actual
determination by the Reviewing Party that Indemnitee has not met such standard
of conduct or did not have such belief, prior to the commencement of legal
proceedings by Indemnitee to secure a judicial determination that Indemnitee
should be indemnified under applicable law, shall be a defense to Indemnitee’s
claim or create a presumption that Indemnitee has not met any particular
standard of conduct or did not have any particular belief.

       

        
(ii)          In connection
with any determination by the Reviewing Party or otherwise as to whether
Indemnitee is entitled to be indemnified hereunder, the burden of proof shall be
on the Company to establish that Indemnitee is not so entitled.

       

      (d)             Notice to
Insurers

       

      If, at the time of the receipt by the
Company of a notice of a Proceeding pursuant to Section 2(b) hereof, the
Company has liability insurance in effect which may cover such Proceeding, the
Company shall give prompt notice of the commencement of such Proceeding to the
insurers in accordance with the procedures set forth in the respective policies.
The Company shall thereafter take all necessary or desirable action to cause
such insurers to pay, on behalf of Indemnitee, all amounts payable as a result
of such action, suit, proceeding, inquiry or investigation in accordance with
the terms of such policies.

       

      (e)      
       Selection of
Counsel

       

      In the event the Company shall be
obligated hereunder to pay the Expenses of a Proceeding, the Company shall be
entitled to assume the defense of such Proceeding with counsel approved by
Indemnitee, which approval shall not be unreasonably withheld or delayed, upon
the delivery to Indemnitee of written notice of its election so to do. After
delivery of such notice, approval of such counsel by Indemnitee and the
retention of such counsel by the Company, the Company will not be liable to
Indemnitee under this Agreement for any fees of counsel subsequently incurred by
Indemnitee with respect to the same Proceeding; provided that
(i) Indemnitee shall have the right to employ Indemnitee’s counsel in any
such Proceeding at Indemnitee’s expense and (ii) if (A) the employment
of counsel by Indemnitee has been previously authorized by the Company,
(B) Indemnitee shall have reasonably concluded that there is a conflict of
interest between the Company and Indemnitee in the conduct of any such defense,
or (C) the Company shall not continue to retain such counsel to defend such
Proceeding, then the fees and expenses of Indemnitee’s counsel shall be at the
expense of the Company.  The Company shall have the right to conduct
such defense as it sees fit in its sole discretion, provided that the Company
has the right to settle any claim against Indemnitee only with the consent of
Indemnitee, which shall not be unreasonably withheld or delayed.

       

      
        
           


        

        
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      3.             Scope;
Nonexclusivity

       

      (a)      
       Scope

       

      It is understood that the parties to
this Agreement intend for this Agreement to be interpreted and enforced so as to
provide indemnification and advancement of Expenses to Indemnitee to the fullest
extent now or hereafter permitted by law, subject only to the express exceptions
and limitations otherwise set forth in this Agreement.  In the event
of any change after the date of this Agreement in any applicable law, statute or
rule which expands the right of the Company to indemnify a member of the Board
of Directors or an officer, employee, agent or fiduciary of the Company or any
Subsidiary, as applicable, it is the intent of the parties hereto that
Indemnitee shall enjoy by this Agreement the greater benefits afforded by such
change.  In the event of any change in any applicable law, statute or
rule which narrows the right of the Company to indemnify a member of the Board
of Directors or an officer, employee, agent or fiduciary of the Company or any
Subsidiary, as applicable, such change, to the extent not otherwise required by
such law, statute or rule to be applied to this Agreement, shall have no effect
on this Agreement or the parties’ rights and obligations hereunder.

       

      (b)        
     Nonexclusivity

       

      The
indemnification and advancement of Expenses provided by this Agreement shall be
in addition to any rights to which Indemnitee may be entitled under the charter
documents of the Company or any Subsidiary, any agreement, any vote of
stockholders or disinterested directors, the General Corporation Law of the
State of Delaware, or otherwise.

       

      4.             No Duplication of
Payments

       

      The Company shall not be liable under
this Agreement to make any payment in connection with any Proceeding against
Indemnitee to the extent Indemnitee has otherwise actually received payment
(under any insurance policy, charter documents of the Company or any Subsidiary
or otherwise) of the amounts otherwise indemnifiable hereunder.

       

      5.             Partial
Indemnification

       

      If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of Expenses incurred in connection with any Proceeding, but not for all
of the total amount thereof, the Company shall nevertheless indemnify Indemnitee
for the portion of such Expenses to which Indemnitee is entitled.

       

      6.             Mutual
Acknowledgement

       

      Both the Company and Indemnitee
acknowledge that in certain instances, Federal law or applicable public policy
may prohibit the Company from indemnifying its directors, officers, employees,
agents or fiduciaries under this Agreement or otherwise.  Indemnitee
understands and acknowledges that the Company may be required in the future to
undertake with the Securities and Exchange Commission to submit the question of
indemnification to a court in certain circumstances for a determination of the
Company’s right under public policy to indemnify Indemnitee.


      
        
           


        

        
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      7.             Maintenance of Liability
Insurance

       

      The Company shall, from time to time,
make the good faith determination whether or not it is practicable for the
Company to obtain and maintain a policy or policies of insurance with reputable
insurance companies providing the officers and directors of the Company with
coverage for losses from wrongful acts, or to ensure the Company’s performance
of its indemnification obligations under this Agreement.  Among other
considerations, the Company will weigh the costs of obtaining such insurance
coverage against the protection afforded by such coverage.  In all
policies of director and officer liability insurance, Indemnitee shall be named
as an insured in such a manner as to provide Indemnitee the same rights and
benefits as are accorded to the most favorably insured of the Company’s
directors, if Indemnitee is a director, or of the Company’s officers, if
Indemnitee is not a director of the Company but is an
officer.  Notwithstanding the foregoing, the Company shall have no
obligation to obtain or maintain such insurance if the Company determines in
good faith that such insurance is not reasonably available, if the premium costs
for such insurance are disproportionate to the amount of coverage proved, if the
coverage provided by such insurance is limited by exclusions so as to provide an
insufficient benefit, or if Indemnitee is covered by similar insurance
maintained by a parent or Subsidiary of the Company

       

      8.             Exceptions

       

      Notwithstanding anything to the
contrary herein other than Section 1(d) hereof, the Company shall not be
obligated pursuant to the terms of this Agreement:

       

      (a)            
 Unlawful
Claims

       

      To
indemnify Indemnitee with respect to any Proceeding if a final decision by a
court having jurisdiction shall have determined that such indemnification is not
lawful;

       

      (b)           
  Proceedings Initiated by
Indemnitee

       

      To indemnify or advance Expenses to
Indemnitee with respect to Proceedings initiated or brought voluntarily by
Indemnitee and not by way of defense, except (i) with respect to any
Proceeding (x) brought to establish or enforce a right to indemnification
or advancement of Expenses under this Agreement, or any other agreement, or
insurance policy, or the charter documents of the Company or any Subsidiary, now
or hereafter in effect relating to any Proceeding, or (y) specifically
authorized by the Board of Directors, or (ii) as otherwise required under
Section 145 of the Delaware General Corporation Law, regardless of whether
Indemnitee ultimately is determined to be entitled to such indemnification,
advance expense payment or insurance recovery, as the case may be; provided, however, that such
indemnification or advancement of Expenses may be provided by the Company in
specific cases if the Board of Directors determines it to be
appropriate;


      
        
           


        

        
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      (c)              Claims Under
Section 16(b)

       

      To indemnify Indemnitee for Expenses,
judgments, fines or penalties sustained in any Proceeding for an accounting of
profits arising from the purchase and sale by Indemnitee of securities of the
Company in violation of Section 16(b) of the Securities Exchange Act of
1934, as amended (the “Exchange Act”), rules and regulations promulgated
thereunder, or any similar provisions of any federal, state or local statute;
or

       

      (d)         
    Lack of Good
Faith

       

       To
indemnify Indemnitee for any Expenses incurred by Indemnitee with respect to any
Proceeding instituted by Indemnitee to enforce or interpret this Agreement, if a
court of competent jurisdiction determines that each of the material assertions
made by Indemnitee in such Proceeding was not made in good faith or was
frivolous.

       

      9.             Period of
Limitations

       

      No legal action shall be brought and no
cause of action shall be asserted by or in the right of the Company against
Indemnitee, Indemnitee’s estate, spouse, heirs, executors or personal or legal
representatives after the expiration of three (3) years from the date of accrual
of such cause of action, and any claim or cause of action of the Company shall
be extinguished and deemed released unless asserted by the timely filing of a
legal action within such three-year period; provided, however, that if any
shorter period of limitations is otherwise applicable to any such cause of
action, such shorter period shall govern.

       

      10.        
   Construction of Certain Terms and Phrases

       

      As used in this Agreement, the
following terms and phrases shall have the meanings set forth
below:

       

      (a)        
     A “Change in Control” shall be deemed to have
occurred if (i) any “person” (as such term is used in Sections 13(d) and
14(d) of the Exchange Act), other than a trustee or other fiduciary holding
securities under an employee benefit plan of the Company or a corporation owned
directly or indirectly by the stockholders of the Company in substantially the
same proportions as their ownership of stock of the Company, (A) who is or
becomes the beneficial owner, directly or indirectly, of securities of the
Company representing 10% or more of the combined voting power of the Company’s
then outstanding Voting Securities, increases his beneficial ownership of such
securities by 5% or more over the percentage so owned by such person, or
(B) becomes the “beneficial owner” (as defined in Rule 13d-3 under
said Act), directly or indirectly, of securities of the Company representing
more than 20% of the total voting power represented by the Company’s then
outstanding Voting Securities, (ii) during any period of two consecutive
years, individuals who at the beginning of such period constitute the Board of
Directors of the Company and any new director whose election by the Board of
Directors or nomination for election by the Company’s stockholders was approved
by a vote of at least two-thirds of the directors then still in office who
either were directors at the beginning of the period or whose election or
nomination for election was previously so approved, cease for any reason to
constitute a majority thereof, or (iii)  the stockholders of the Company
approve a merger or consolidation of the Company with any other corporation
other than a merger or consolidation which would result in the Voting Securities
of the Company outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into Voting Securities of
the surviving entity) at least 80% of the total voting power represented by the
Voting Securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation, or the stockholders of the
Company approve a plan of complete liquidation of the Company or an agreement
for the sale or disposition by the Company of (in one transaction or a series of
transactions) all or substantially all of the Company’s assets.

       

      
        
           


        

        
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      (b)         
    References to the “Company” shall include, in addition
to the resulting corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or merger which, if
its separate existence had continued, would have had power and authority to
indemnify its directors, officers, employees, agents or fiduciaries, so that if
Indemnitee is or was a director, officer, employee, agent or fiduciary of such
constituent corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee, agent or fiduciary of another
corporation, partnership, joint venture, employee benefit plan, trust or other
enterprise, Indemnitee shall stand in the same position under the provisions of
this Agreement with respect to the resulting or surviving corporation as
Indemnitee would have with respect to such constituent corporation if its
separate existence had continued.

       

      (c)     
        “Expense” shall include any and
all expenses (including attorneys’ fees and all other costs, expenses and
obligations incurred in connection with investigating, defending, being a
witness in or participating in (including on appeal), or preparing to defend, be
a witness in or participate in, a Proceeding), judgments, fines, penalties and
amounts paid in settlement (if such settlement is approved in advance by the
Company, which approval shall not be unreasonably withheld or delayed) of a
Proceeding, and any federal, state, local or foreign taxes imposed on Indemnitee
as a result of the actual or deemed receipt of any payments under this
Agreement.

       

      (d)             “Independent
Legal Counsel” shall mean an attorney or firm of attorneys who shall not have
otherwise performed services for the Company or Indemnitee within the last three
years (other than with respect to matters concerning the rights of Indemnitee
under this Agreement, or of other indemnitees under similar indemnity
agreements).  Independent Legal Counsel shall be selected as
follows:  (i) by a majority of the Disinterested Directors if there
has not been a Change in Control or if there has been a Change in Control which
has been approved by a majority of the Incumbent Directors; or (ii) by
Indemnitee, subject to the approval by a majority of the Disinterested Directors
(which shall not be unreasonably withheld), if there has been a Change in
Control which has not been approved by a majority of the Incumbent
Directors.  The Company agrees to pay the reasonable fees of the
Independent Legal Counsel, regardless of which party selects the Independent
Legal Counsel.

       


      
        
           


        

        
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      (e)            
 References to “other enterprises” shall include employee benefit plans;
references to “fines” shall include any excise taxes assessed on Indemnitee with
respect to an employee benefit plan; and references to “serving at the request
of the Company” shall include any service as a director, officer, employee,
agent or fiduciary of the Company which imposes duties on, or involves services
by, such director, officer, employee, agent or fiduciary with respect to an
employee benefit plan, its participants or its beneficiaries.

       

      (f)          
   “Proceeding” shall mean any threatened, pending or completed
action, suit, proceeding or alternative dispute resolution mechanism, or any
hearing, inquiry or investigation that Indemnitee in good faith believes might
lead to the institution of any such action, suit, proceeding or alternative
dispute resolution mechanism, whether brought by or in the right of the Company
or any Subsidiary or otherwise, and whether civil, criminal, administrative,
investigative or other, in which Indemnitee was or is or becomes a party to or
witness or other participant in, or is threatened to be made a party to or
witness or other participant by reason of (or arising in part out of) any event
or occurrence related to the fact that Indemnitee is or was a director, officer,
employee, agent or fiduciary of the Company or any Subsidiary, or is or was
serving at the request of the Company or any Subsidiary as a director, officer,
employee, agent or fiduciary of another corporation, partnership, joint venture,
trust or other enterprise, or by reason of any action or inaction on the part of
Indemnitee while
serving in such capacity.

       

      (g)           
  “Reviewing Party” shall mean (i) the Board of Directors acting
by a majority vote of the directors who are not and were not parties to the
Proceeding in respect of which indemnification is being sought (the
“Disinterested Directors”), (ii) a committee of some or all of the
Disinterested Directors designated by a majority vote of the Disinterested
Directors, or (iii) Independent Legal Counsel.

       

      (h)        
     “Subsidiary” shall mean any corporation or other
entity of which more than 50% of the outstanding Voting Securities is owned
directly or indirectly by the Company, by the Company and one or more other
Subsidiaries, or by one or more other Subsidiaries.

       

      (i)             
 “Voting Securities” shall mean any securities of the Company that vote
generally in the election of directors.

       

      11.           Counterparts

       

      This Agreement may be executed in one
or more counterparts, each of which shall constitute an original.

       

      12.           Binding Effect; Successors
and Assigns

       

      This Agreement shall be binding upon
and inure to the benefit of and be enforceable by the parties hereto and their
respective successors (including any direct or indirect successor by purchase,
merger, consolidation or otherwise to all or substantially all of the business
and/or assets of the Company), assigns, spouses, heirs, and personal and legal
representatives. The Company shall require and cause any successor (whether
direct or indirect by purchase, merger, consolidation or otherwise) to all,
substantially all, or a substantial part, of the business and/or assets of the
Company, by written agreement in form and substance reasonably satisfactory to
Indemnitee, expressly to assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform if
no such succession had taken place. This Agreement shall continue in effect with
respect to any Proceeding regardless of whether Indemnitee continues to serve as
a director, officer, employee, agent or fiduciary of the Company, any Subsidiary
or any other enterprise at the Company’s request.


      
        
           


        

        
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13.           Attorneys’
Fees

       

      In the event that any action is
instituted by Indemnitee under this Agreement or under any liability insurance
policies maintained by the Company to enforce or interpret any of the terms
hereof or thereof, Indemnitee shall be entitled to be paid all expenses incurred
by Indemnitee with respect to such action, regardless of whether Indemnitee is
ultimately successful in such action, and shall be entitled to the advancement
of such expenses with respect to such action, unless, as a part of such action,
a court of competent jurisdiction over such action determines that each of the
material assertions made by Indemnitee as a basis for such action was not made
in good faith or was frivolous. In the event of an action instituted by or in
the name of the Company under this Agreement to enforce or interpret any of the
terms of this Agreement, Indemnitee shall be entitled to be paid all expenses
incurred by Indemnitee in defense of such action (including costs and expenses
incurred with respect to Indemnitee counterclaims and cross-claims made in such
action), and shall be entitled to the advancement of such expenses with respect
to such action, unless, as a part of such action, a court having jurisdiction
over such action determines that each of Indemnitee’s material defenses to such
action was not made in good faith or was frivolous.

       

      14.           Notice

       

      All notices and other communications
required or permitted hereunder shall be in writing, shall be effective when
received, and shall in any event be deemed to be received (a) five (5) days
after deposit with the U.S. Postal Service or other applicable postal service,
if delivered by certified or registered mail, postage prepaid, (b) upon
delivery, if delivered by hand, (c) one business day after the business day
of deposit with Federal Express or similar overnight courier, freight prepaid,
or (d) one day after the business day of delivery by facsimile transmission, if
delivered by facsimile transmission, with copy by first class mail, postage
prepaid, and shall be addressed if to Indemnitee, at Indemnitee’s address as set
forth beneath Indemnitee’s signature to this Agreement and if to the Company at
the address of its principal corporate offices (attention: Secretary) or at such
other address as a party may designate by ten days’ advance written notice to
the other party hereto.

       

      15.           Headings

       

      The headings used in this Agreement
have been inserted for convenience of reference only and do not define or limit
the provisions hereof.

       

      
        
           


        

        
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                   16.           Severability


      The provisions of this Agreement
shall be severable in the event that any of the provisions hereof (including any
provision within a single section, paragraph or sentence) are held by a court of
competent jurisdiction to be invalid, void or otherwise unenforceable, and the
remaining provisions shall remain enforceable to the fullest extent permitted by
law. Furthermore, to the fullest extent possible, the provisions of this
Agreement (including, without limitations, each portion of this Agreement
containing any provision held to be invalid, void or otherwise unenforceable,
that is not itself invalid, void or unenforceable) shall be construed so as to
give effect to the intent manifested by the provision held invalid, illegal or
unenforceable.

       

      17.           Choice of
Law

       

      This
Agreement shall be governed by and its provisions construed and enforced in
accordance with the laws of the State of Delaware, as applied to contracts
between Delaware residents, entered into and to be performed entirely within the
State of Delaware, without regard to the conflict of laws principles
thereof.

       

      18.           Subrogation

       

      In the event of payment under this
Agreement, the Company shall be subrogated to the extent of such payment to all
of the rights of recovery of Indemnitee who shall execute all documents required
and shall do all acts that may be necessary to secure such rights and to enable
the Company effectively to bring suit to enforce such rights.

       

      19.           Amendment and
Termination

       

      No amendment, modification, termination
or cancellation of this Agreement shall be effective unless it is in writing
signed by both the parties hereto. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other provisions
hereof (whether or not similar) nor shall such waiver constitute a continuing
waiver.

       

      20.           Integration and Entire
Agreement

       

      This Agreement sets forth the entire
understanding between the parties hereto and supersedes and merges all previous
written and oral negotiations, commitments, understandings and agreements
relating to the subject matter hereof between the parties hereto.

       

      21.           No Construction as
Employment Agreement

       

      Nothing contained in this Agreement
shall be construed as giving Indemnitee any right to be retained in the employ
of the Company or any of its Subsidiaries.

       

      [SIGNATURE
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      IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first above written.

       

      WELLCARE
HEALTH PLANS, INC.

       

      By:     
/s/ Heath
Schiesser

      Name: Heath
Schiesser

      Title:  
President and Chief
Executive Officer

       

      AGREED TO
AND ACCEPTED BY:

       

      Signature:
/s/ Thomas L.
Tran                                                                

      Name:  Thomas L.
Tran           
                                                                

      Address:
28 Spruce
Lane          

      Simsbury,
CT
06089                
  

       
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