exhibit10-9.htm


    
      

    

    Back
      to Form 8-K

     

    Exhibit
      10.9

     

    

      WELLCARE
        HEALTH PLANS, INC.

      2004
        EQUITY INCENTIVE PLAN

      


      NON-QUALIFIED
        STOCK OPTION AGREEMENT

      FOR

      CHARLES
        G. BERG

       

      Agreement

       

      1.                      
        Grant
        of Option.  WellCare Health Plans, Inc. (the “Company”) has
        granted on January 25, 2008, to Charles G. Berg (the
        “Optionee”) an option (the “Option”) to purchase up to 300,000 shares of the
        Company’s Common Stock, $0.01 par value per share (the “Shares”), at an exercise
        price per share equal to $43.12 (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.  However, in the event of any conflict between
        the provisions in this Agreement and the Plan, the provisions of this Agreement
        shall govern.

       

      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, the Option will become vested and exercisable in installments
        as
        provided below, which shall be cumulative. To the extent that the Option
        has
        become vested 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 Option shall vest and become exercisable in eight (8) equal
        quarterly installments beginning three (3) months after January 25, 2008
        and
        continuing quarterly thereafter (each, a “Vesting Date”), with the last
        quarterly installment vesting and becoming exercisable on January 25, 2010,
        provided (except as otherwise set forth below) that the Optionee’s employment or
        service with the Company and its Subsidiaries during the period beginning
        on
        January 25, 2008 (the “Vesting Commencement Date”) continues through and on the
        applicable 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 exercisable 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. Except as otherwise set forth
        below,
        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).

       

                


      
        
          
             

          

          
          

        

        
          
          

          
            

          

        

        
          
          

        

      


          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 Option shall become fully vested and
        exercisable on the date of such cessation and shall remain exercisable until
        the
        expiration date provided in Section 7(a) below.

       

      (b)           
        Termination
        Without Cause or for Good Reason.  If the Optionee’s employment
        by, or other performance of services for, the Company or any Subsidiary is
        terminated without Cause or by the Optionee for Good Reason, the Option shall
        become fully vested and exercisable on the date of such cessation and shall
        remain exercisable until the expiration date provided in Section 7(a)
        below.

       

      (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, by the Company without
        Cause, for Good Reason or Cause, the portion of the Option that was exercisable
        on the date of such cessation shall remain so for a period of ninety days
        after
        the date of such cessation, but in no event after the expiration date provided
        in Section 7(a) below.

       

      (e)           
        Change
        in Control.  Notwithstanding the foregoing, if there is a
        Change in Control of the Company, then the Option shall be immediately fully
        exercisable and shall remain so until the expiration date provided in Section
        7(a) below.

       

                 
        (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
        Optionfirst
        wouldno
        longer
        violate an applicable Federal, state, local, and foreign
        laws.

       

      (g)           
        Certain
        Defined Terms.  For
        purposes of
        this Agreement, the terms “Cause”, “Good
        Reason,”and“Disability” shall have
        themeaningsset
        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.

       


      
        
          
             

          

          
          

        

        
          
          

          
            

          

        

        
          
          

        

      


       

       

      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 tenthanniversary
        of
        the date onwhich
        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 herebyis
        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.

       

      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. However,
        if
        and to the extent that this Agreement conflicts or is inconsistent with the
        terms, conditions and provisions of the Plan,this
        Agreementshall
        control.
        The Optionee
        accepts the Option subject
        to all the
        terms and provisions of the Plan and this Agreement.  Except
        as
        otherwise set forth in Section 6(g) above, 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 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
        basisfor
        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.

       


      
        
          
             

          

          
          

        

        
          
          

          
            

          

        

        
          
          

        

      


      *
        * * *
        *

       


      
        
          
             

          

          
          

        

        
          
          

          
            

          

        

        
          
          

        

      


      IN
        WITNESS WHEREOF, the undersigned have
        executed this Agreement as of the 25thday
        of  January,
        2008.

       

      
        	 	
                COMPANY:

                WELLCARE
                  HEALTH
                  PLANS, INC.

                
                

              
	 	
                By: /s/  Neal
                  Moszkowski

                Name:
Neal
                  Moszkowski

                Title:
Chairman
                  of the Compensation
                  Committee

                
                

                
                

              


      

      


       

      


       

      


      


      Optionee
        acknowledges receipt of a copy
        of the Plan.  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.

       

      
        	
                Dated: January
                  25, 2008

                
                

              	
                OPTIONEE:

                
                

              
	 	
                /s/  Charles
                  G. Berg