exhibit10-7.htm


    
      

    

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    Exhibit
      10.7

    
 

    
      


      WELLCARE
        HEALTH PLANS, INC.

       

      2004
        EQUITY INCENTIVE PLAN

       

      RESTRICTED
        STOCK AGREEMENT

       

      FOR

       

      CHARLES
        G. BERG

       

      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 Charles G.
        Berg
        (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 8735 Henderson Road, Ren Two, Tampa, Florida 33634, 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.

       

      
      

      
        	 	
                 WELLCARE
                  HEALTH PLANS, INC.

                By:   
/s/ 
                  Neal
                  Moszkowski  

                
                   

                  Name:
                    Neal
                    Moszkowski

                  
                    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/ 
                    Charles
                    G. Berg

                  Charles
                    G. Berg