exhibit10-5.htm


    
      

    

    Back
      to Form 8-K

    
 

    
      
        Exhibit
          10.5

      

      
        
        

        
        

      

      
        
        

        
          
            WellCare
              Health Plans,
              Inc.

            The
              WellCare Group of Companies

            


          

          
            


          

           

        

      

    


     

    Mr.
      Charles G. Berg

    
       

       

    

    Dear
      Mr.
      Berg:

     

    The
      purpose of this letter agreement (“Agreement”) is to set forth the terms and
      conditions of your employment with WellCare Health Plans, Inc. (the
“Company”).

     

    1.
Term.  The
      term of your employment with the Company shall commence on January 25, 2008
      (the
“Start Date”) and continue until January 25, 2010 (the “Term”).

     

    2.
Position
      and
      Duties.  On the Start Date, you will be appointed, and will
      serve during the Term, as the Executive Chairman of the Board of Directors
      of
      the Company (the “Board”).  Your responsibilities as Executive
      Chairman will include leadership, and presiding at meetings, of the Board,
      advising and working closely with the Chief Executive Officer concerning the
      activities of the Company, including regulatory and compliance programs,
      financing and other initiatives, and providing leadership concerning the issues
      facing the Company.  You will not be required to relocate your
      principal residence.  However, it is anticipated that a reasonable
      amount of business-related travel will be required.  During the Term,
      you will devote such business time and attention as is reasonably required
      to
      perform your duties to the Company.  You will be permitted to engage
      in other activities as disclosed to the Board from time to time, so long as
      such
      activities do not interfere, and are consistent, with your duties and
      obligations to the Company.  

     

    3.
Base
      Salary.  During the Term, you will receive base salary at the
      annual rate of $500,000, paid in accordance with the regular payroll practices
      of the Company.  Your base salary will be reviewed by the Board
      annually and may be adjusted upward but not downward.  

     

    4.
Annual
      Bonus.  During the Term, you will be eligible to receive annual
      bonuses.  The amount of any annual bonus will be determined by the
      Compensation Committee of the Board, in its sole discretion, taking into account
      your individual performance and the performance of the Company.

     

    5.
Initial
      Equity
      Awards.  On the Start Date, the Company will grant to you
      200,000 shares of restricted Company common stock.  Twenty-five
      percent (25%) of such shares of restricted stock will vest six (6) months after
      the Start Date and the remaining shares of restricted stock will vest quarterly
      thereafter over the remainder of the Term, with the last quarterly installment
      vesting on the last day of the Term.  At your election, required tax
      withholding resulting from the vesting of the restricted stock will be
      satisfied

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

     by
      withholding shares of Company common stock.  The Company will also
      grant to you, on the Start Date, options to purchase 300,000 shares of Company
      common stock with an exercise price per share equal to the closing price per
      share of Company common stock on the date of grant.  The options will
      vest and become exercisable in eight (8) equal quarterly installments beginning
      three (3) months after the Start Date and continuing quarterly thereafter during
      the Term, with the last quarterly installment vesting and becoming exercisable
      on the last day of the Term.  The options will remain exercisable for
      ten (10) years from the date of grant, so long as you do not terminate your
      employment with the Company prior to the end of the Term without Good Reason
      (as
      defined in Annex A hereto) and you are not terminated by the Company for
      Cause (as defined in Annex A hereto).  If you terminate your
      employment with the Company prior to the end of the Term without Good Reason,
      any unvested restricted stock and unvested options will be forfeited and vested
      options will remain exercisable for 90 days after such termination of
      employment.  In the event you are terminated by the Company for Cause,
      all unvested restricted stock will be forfeited and all options, whether vested
      or unvested, will be forfeited.  The options and restricted stock will
      be granted under the Company’s 2004 Equity Incentive Plan (the “Company Stock
      Plan”), and the Company shall use its best efforts to cause shares of Company
      common stock received on exercise of options to be registered on Form S-8
      filed with the Securities and Exchange Commission.  

     

    6.
Vesting
      of Equity
      Awards.  All shares of restricted Company common stock and all
      options to purchase Company common stock held by you will become immediately
      vested in full (and exercisable in full in the case of the options) upon a
      Change in Control (as defined in the Company Stock Plan).  In the
      event your employment is terminated prior to the end of the Term by the Company
      not for Cause, by you for Good Reason, due to your Disability (as defined in
      Annex A hereto) or due to your death, all shares of restricted Company common
      stock and all options to purchase Company common stock held by you will become
      immediately vested in full (and exercisable in full in the case of
      options).    

     

    7.
Severance.  In
      the event of your “separation from service” with the Company (as defined in
      Treas. Reg. § 1.409A-1(h)) prior to the end of the Term by the Company not
      for Cause, by you for Good Reason or due to your Disability or death, subject
      (other than in the case of death) to your execution and delivery of the Release
      attached hereto within 30 days after your separation from service, and not
      revoking it during the revocation period, you (or your estate) will receive
      an
      amount equal to your base salary for the remainder of the Term paid, subject
      to
      Section 15(iv) below, in a single lump sum 38 days after the date of such
      separation from service.   If the Company does not also execute
      and deliver (and not revoke) the Release, your Release shall be null, void
      and
      without effect, and you shall still receive the payment described in this
      Section.

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    8.
Benefits.  You
      will be eligible to participate in the employee benefit plans maintained by
      the
      Company and its subsidiaries for senior executives on the same basis as other
      executive officers, and you will be eligible to receive additional long-term
      incentive compensation awards.  You will also be entitled to use of
      Company provided fractional or chartered aircraft appropriate for senior
      executive travel to and from Tampa, Florida and for other required Company
      travel.  

     

    9.
Business
      Expenses.  The Company shall promptly reimburse you for all
      documented reasonable business and travel expenses incurred by you in the
      performance of your duties hereunder.  

     

    10.
Certain
      Additional
      Payments. 

    


    (i)  In
      the event it shall be determined that any payment, benefit or distribution
      by
      the Company (or any other payor described in Treas. Reg. Sec. 1.280G-1, Q&A
      10) to you or for your benefit (a “Payment”) would be subject to the excise tax
      (the “Excise Tax”) imposed under Section 4999 of the Internal Revenue Code of
      1986, as amended (the “Code”), you shall be entitled to receive an additional
      payment (a “Gross-Up Payment”) in an amount such that, after payment by you of
      all taxes (and any interest or penalties imposed with respect to such taxes),
      including any income and employment taxes and Excise Taxes imposed upon the
      Gross-Up Payment, you retain an amount of the Gross-Up Payment equal to the
      Excise Tax imposed upon such Payments.  Notwithstanding the foregoing
      provisions of this Section, if it shall be determined that you are entitled
      to a
      Gross-Up Payment, but that the portion of the Payments that would be treated
      as
“parachute payments” under Section 280G of the Code does not exceed
      $50,000, then no Gross-Up Payment shall be made to you and the amounts payable
      under Section 7 of this Agreement shall be reduced so that the Payments, in
      the aggregate, are reduced to the Safe Harbor Amount. The “Safe Harbor Amount”
is the greatest amount of payments in the nature of compensation that are
      contingent on a Change in Control for purposes of Section 280G of the Code
      that
      could be paid to you without giving rise to any Excise Tax.  If the
      reduction of the amounts payable under Section 7 of this Agreement would
      not result in a reduction of the Payments to the Safe Harbor Amount, no amounts
      payable under this Agreement shall be reduced pursuant hereto and a Gross-Up
      Payment will be made to you.

     

    (ii)
      All
      determinations required to be made under this Section, including whether a
      Gross-Up Payment or reduction is required and the amount of any Gross-Up Payment
      or reductions of Payments, shall be made by a nationally recognized certified
      public accounting firm that shall be designated by the Company and reasonably
      acceptable to you (the “Accounting Firm”).  The Accounting Firm shall
      provide detailed supporting calculations both to the Company and you within
      15
      business days of the receipt of notice from you that there has been a Payment
      or
      such earlier time as is requested by the Company or you.  All fees and
      expenses of the Accounting Firm shall be borne solely by the
      Company.  Any Gross-Up Payment, as determined pursuant to this
      Section, shall be paid by the Company to you within 5 business days of the
      receipt of the Accounting Firm’s determination and in any event not later than
      the last day of the calendar year after the calendar year in which the
      applicable Excise Tax is paid.  If the Accounting Firm determines that
      no Excise Tax is payable by you or that a reduction is required, it shall so
      indicate to you in writing.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

     

    (iii)
      Any
      determination by the Accounting Firm shall be binding upon the Company and
      you
      (absent manifest error), provided that, in
      the
      event that your tax advisor delivers to the Accounting Firm and the Company
      a
      written opinion that the actual Excise Tax payable by you is greater than the
      Excise Tax amount initially determined by the Accounting Firm by reason of
      (A)
      manifest error, (B) any Payment the existence or amount of which could not
      have
      been, or was not, determined or known at the time the Excise Tax was initially
      determined or (C) any determination, claim or assertion made by any tax
      authority that the actual Excise Tax is greater than the amount initially
      determined by the Accounting Firm, then, in any such case, the Accounting Firm
      shall recalculate the amount of the Excise Tax and any required (or additional)
      Gross-Up Payment.  Any such additional calculation or determination
      shall be performed consistent with this Section. 

     

    (iv)
      You
      shall notify the Company in writing of any written claim by the Internal Revenue
      Service that, if successful, would require the payment by the Company of a
      Gross-Up Payment.  You shall apprise the Company of the nature of such
      claim and the date on which such claim is requested to be paid.  You
      shall not pay such claim prior to the expiration of the 30-day period following
      the date on which you give such notice to the Company (or such shorter period
      ending on the date that any payment of taxes with respect to such claim is
      due).  If the Company notifies you in writing prior to the expiration
      of such period that the Company desires to contest such claim, you shall (i)
      give the Company any information reasonably requested by the Company relating
      to
      such claim, (ii) take such action in connection with contesting such claim
      as
      the Company shall reasonably request in writing from time to time, including
      accepting legal representation with respect to such claim by an attorney
      reasonably selected by the Company, (iii) cooperate with the Company in good
      faith in order effectively to contest such claim, and (iv) permit the Company
      to
      participate in any proceedings relating to such claim; provided, however,
      that (A) the Company shall bear and pay directly all costs and expenses
      (including additional income taxes, interest and penalties) incurred in
      connection with such contest, and shall indemnify and hold you harmless, on
      an
      after-tax basis, for any Excise Tax or income tax (including interest or
      penalties) imposed as a result of such representation and payment of costs
      and
      expenses, and (B) your obligation to cooperate with the Company shall not
      require you to take any action, or forego taking any action, that would have
      an
      adverse effect on your overall tax position.

     

    (v)
      Anything in this Agreement to the contrary notwithstanding, in no event shall
      any payment by the Company pursuant to this Section be made later than the
      end
      of your taxable year next following your taxable year in which you remit the
      related taxes.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    11.
Indemnification
      and
      Insurance.  During and after the Term, the Company shall
      indemnify you in your capacity as a director and/or officer of the Company
      or
      its subsidiaries to the fullest extent permitted by applicable law and the
      Company’s charter and by-laws (including an indemnity against any loss or cost
      arising out of any claim made by United Health Group Incorporated or one or
      more
      of its subsidiaries (“United”) that your activities as a director or officer of
      the Company or its subsidiaries have resulted in a breach of any obligation
      owed
      to it or them), including advancement of attorneys’ fees and other fees and
      expenses, and in all events provide you with director and officer liability
      insurance coverage on a basis that is not less favorable to you than as provided
      to any other director or officer of the Company or its
      subsidiaries.  The parties hereto presently believe that you will be
      able to carry out your duties and obligations with and to the Company hereunder
      in a manner that complies with your continuing obligations to
      United.

     

     

    12.
Legal
      Fees.  The Company shall reimburse you for the reasonable legal
      fees and expenses incurred by you in connection with your review and negotiation
      of this Agreement and the agreements for the equity awards described herein
      (including your due diligence regarding the Company) and in connection with
      your
      ongoing performance of duties hereunder.  The Company shall also
      reimburse you for all reasonable legal fees and expenses that you may incur
      in
      connection with any dispute between you and the Company involving this
      Agreement, your employment with the Company or the termination thereof, but
      only
      in the event that you substantially prevail on any material claim in such
      dispute.  All reimbursements described in this paragraph shall be made
      promptly after demand is made by you and your provision to the Company of
      reasonably satisfactory evidence of such fees and expenses, but no later than
      the last day of the calendar year following the calendar year in which you
      incur
      such fees and expenses. Your right to reimbursement under this Section in any
      calendar year shall not affect the amount eligible for reimbursement in any
      other calendar year and shall not be subject to liquidation or
      exchange.

     

    13.
Confidentiality.

    


    (i)
      You
      acknowledge that, by reason of your employment by the Company, you will have
      access to Confidential Information (as defined in Annex A hereto) of the
      Company and its subsidiaries (the “WellCare Companies”).  You
      acknowledge that such Confidential Information is a valuable and unique asset
      of
      the WellCare Companies and covenant that, both during and after the Term, you
      will not disclose any Confidential Information to any person (except as your
      duties as an employee or director of any of the WellCare Companies may require)
      without the prior written authorization of the Board.

     

    (ii)
      All
      records, designs, business plans, financial statements, customer lists, manuals,
      memoranda, lists, research and development plans, Intellectual Property and
      other property delivered to or compiled by you by or on behalf of any WellCare
      Company or its providers, clients or customers that pertain to the business
      of
      any WellCare Company shall be and remain the property of such WellCare


     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    Company
      and be subject at all times to its discretion and control.  Likewise,
      all correspondence, reports, records, charts, advertising materials and other
      similar data pertaining to the business, activities, research and development,
      Intellectual Property or future plans of any WellCare Company that is collected
      by you shall be delivered promptly to such WellCare Company without request
      by
      it upon termination of your employment.  For purposes of this Section,
“Intellectual Property” shall mean patents, copyrights, trademarks, trade dress,
      trade secrets, other such rights, and any applications.

     

    14.
Unfair
      Competition.
  You agree that during any period in which you are serving as
      Executive Chairman of the Company or receiving severance payments under Section
      7 above (which shall not include any period after you have received all payments
      thereunder or waived further payments thereunder) you shall not, directly or
      indirectly, for yourself or on behalf of or in conjunction with any other Person
      (as defined in Annex A hereto), without the prior written consent of the
      Board:

     

    (i)  engage
      as an officer, director, shareholder, owner, partner, joint venturer, or in
      any
      managerial capacity, whether as an employee, independent contractor, consultant
      or advisor (paid or unpaid), or as a sales representative, or otherwise
      participate, in each case, in any business that sells, markets, or provides
      any
      benefits or services within any state in which a WellCare Company is doing
      business at the time you cease to be employed by the Company that are in direct
      competition with the benefits or services provided by such WellCare Company
      in
      such state;

     

    (ii)  recruit,
      hire or solicit any employee or former employee of any WellCare Company or
      encourage any employee of any WellCare Company to leave such WellCare Company’s
      employ, unless such former employee has not been employed by a WellCare Company
      for a period in excess of six months; provided, however,
      that the
      provisions of this clause (ii) shall not apply to any member of your immediate
      family;

     

    (iii)  call
      upon any Person who is at the time you cease to be employed by the Company,
      or
      who was at any time during the one year period prior to the date you cease
      to be
      employed by the Company, a provider, customer or agent of any WellCare Company
      for the purpose of soliciting or selling benefits or services that would violate
      clause (i) above; or

     

    (iv)  request
      or advise any provider, customer or agent of any WellCare Company to withdraw,
      curtail or cancel its business dealings with such WellCare Company; provided,
      however, that nothing in this Section 14 shall be construed to preclude you
      from
      making any investment in the securities of any business enterprise whether
      or
      not engaged in competition with any WellCare Company, to the extent that such
      securities are actively traded on a national securities exchange or in the
      over-the-counter market in the United States or on any foreign securities
      exchange, but only if such investment does not exceed two percent (2%) of the
      outstanding voting securities of such enterprise.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    15.Miscellaneous.  

    


    (i)  This
      Agreement shall be governed by and construed in accordance with the laws of
      the
      State of New York (other than its choice of laws rules).

     

    (ii)
      This
      Agreement constitutes the entire understanding and agreement between the parties
      with respect to the subject matter hereof, and supersedes any prior discussions,
      negotiations or other written materials in respect of the subject matter
      hereof.  This Agreement may not be amended, unless such amendment is
      in writing and signed by both of the parties hereto.

     

    (iii)
      The
      Company may withhold from any amounts payable under this Agreement such federal,
      state, local or foreign taxes as shall be required to be withheld pursuant
      to
      any applicable law or regulation. 

     

    (iv)
      To
      the extent that you are a “specified employee” (within the meaning of Treas.
      Reg. § 1.409A-1(i)) on the date of your “separation from service” (within
      the meaning of Treas. Reg. § 1.409A-1(h)) from the Company, no amount that
      constitutes a deferral of compensation that is payable upon such separation
      from
      service and is subject to the six-month delay rule of Section 409A(a)(2)(B)(i)
      of the Code shall be paid to you before the date (the “Delayed Payment Date”)
      that is the first day of the seventh month after the date of your separation
      from service or, if earlier, the date of your death following such separation
      from service.  All such amounts that would, but for this Section,
      become payable prior to the Delayed Payment Date will be accumulated and paid
      on
      the Delayed Payment Date.  The Company intends that income provided to
      you pursuant to this Agreement will not be subject to taxation under Section
      409A of the Code.  The provisions of this Agreement shall be
      interpreted and construed in favor of satisfying any applicable requirements
      of
      Section 409A of the Code and the regulations promulgated
      thereunder.  With respect to any reimbursement or in-kind benefit
      arrangements of the Company and its subsidiaries provided for herein that
      constitute deferred compensation for purposes of Section 409A of the Code,
      the following conditions shall be applicable: (i) the amount eligible for
      reimbursement, or in-kind benefits provided, under any such arrangement in
      one
      calendar year may not affect the amount eligible for reimbursement, or in-kind
      benefits to be provided, under such arrangement in any other calendar year,
      (ii) any reimbursement must be made on or before the last day of the
      calendar year following the calendar year in which the expense was incurred,
      and
      (iii) the right to reimbursement or in-kind benefits is not subject to
      liquidation or exchange for another benefit.

     

    (v)
      The
      Company represents and warrants that it is fully authorized and empowered to
      enter into this Agreement and to perform its obligations hereunder.

     

    (vi)
      The
      respective rights and obligations of the parties hereunder shall survive any
      termination of this Agreement and your employment with the 

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    Company
      to the extent necessary to preserve the intended rights and obligations of
      the
      parties.

     

    (vii)
      The
      invalidity or unenforceability of any provision of this Agreement, or any
      provisions of any agreement referred to herein, shall not affect the validity
      or
      enforceability of any other provision herein or therein.

     

    (viii)
      For purposes of this Agreement, the term “including” shall mean “including,
      without limitation.”

     

       
      (ix) This Agreement may be executed in one or more counterparts, including
      by
      fax or PDF, each of which shall be deemed to be an original but all of which
      together shall constitute one and the same instrument.

     

    
    

    
      	
                                                                                                                                

               

            	
              Sincerely,

               

            
	                                                                                                                   	 WELLCARE
              HEALTH PLANS, INC.
	 	 
	 	
               By:  
/s/  
Neal
                Moszkowski     

               

            
	 	 Title:
              Chairman, Compensation Committee
	 Acknowledged
              and Agreed	 
	/s/ 
Charles
              G.
              Berg                                      
              	 
	 Charles
              G. Berg	 


    

     

    
 

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    Annex
      A

    


    


    The
      following definitions shall have the following meanings for purposes of the
      Agreement.

    


    “Cause” shall
      mean (i) your
      willful failure or refusal to perform your lawful and proper duties hereunder
      (other than as a result of Disability), (ii) your conviction of or plea of
nolo contendere to any
      felony (other than a traffic infraction), or (iii) an act or acts on your
      part constituting fraud, theft or embezzlement or that otherwise constitutes
      a
      felony under the laws of the United States or any state thereof which results
      or
      was intended to result directly or indirectly in gain or personal enrichment
      by
      you at the expense of the Company.  In the case of any item described
      in the previous sentence, you shall be given written notice of the alleged
      act
      or omission constituting Cause, which notice shall set forth in reasonable
      detail the reason or reasons that the Board believes you are to be terminated
      for Cause, including any act or omission that is the basis for the decision
      to
      terminate you.  In the case of an act or omission described in clause
      (i) of the definition of Cause, (A) if reasonably capable of being cured,
      you shall be given 30 days from the date of such notice to effect a cure of
      such
      alleged act or omission constituting “Cause” which, upon such cure to the
      reasonable satisfaction of the Board, shall no longer constitute a basis for
      Cause, and (B) you shall be given an opportunity to make a presentation to
      the Board (accompanied by counsel or other representative, if you so desire)
      at
      a meeting of the Board held promptly following such 30-day cure period if the
      Board intends to determine that no cure has occurred.  At or following
      such meeting, the Board shall determine whether or not to terminate you for
      “Cause” and shall notify you in writing of its determination and the effective
      date of such termination (which date may be no earlier than the date of the
      aforementioned Board meeting).  For purposes hereof, no act or
      omission shall be deemed “willful” if it was done with a good faith belief that
      it was in the best interests of the Company.  

     

    “Confidential
      Information”
means information that is not generally known to the public and that
      was or is used, developed
      or
      obtained by the WellCare Companies in connection with their
      business.  It shall not include information (a) required to be
      disclosed by court or administrative order or by applicable law; (b) lawfully
      obtainable from other sources or which is in the public domain through no fault
      of yours; or (c) the disclosure of which is consented to in writing by the
      Company.

     

    “Disability”
means
      any physical
      or mental disability or incapacity that can be expected to result in your death
      or that has rendered you unable to carry out your duties and obligations to
      the
      Company for a period of 90 consecutive days or for shorter periods aggregating
      to 120 days (whether or not consecutive) during any consecutive
      12 months of the Term.

     

    “Good
      Reason” shall mean,
      without your written consent, (i) the failure of the Company to pay any
      compensation or provide any benefits to you when due hereunder, (ii) you
      are no longer the Executive Chairman of (A) the Company or (B) in the
      event of a merger, consolidation or other business combination involving the
      Company, the successor to the Company’s business or assets, or (C) if all
      or substantially all of the voting stock of the Company is held by another
      public company, such public company, (iii) the assignment to you of any
      duties or responsibilities materially inconsistent with your status under clause
      (ii) of this sentence, (iv) your failure to be appointed or elected
      (or reelected) to the Board, other than due to your decision not to stand for
      election or reelection, or your removal from the Board not for Cause and not
      due
      to your Disability or death, or (v) any material breach by the Company of any
      terms of this Agreement; provided, however,
      that for any
      of the foregoing to constitute 

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    Good
      Reason, you must provide written notification of such event or condition
      constituting Good Reason within ninety (90) days after you know or have reason
      to know of the occurrence of any such event or condition, and the Company shall
      have thirty (30) days from the date of receipt of such written notice to effect
      a cure of the event or condition constituting Good Reason, and, upon cure
      thereof by the Company, such event or condition shall no longer constitute
      Good
      Reason.

     

    “Person”
shall
      have the meaning
      set forth in the Securities Exchange Act of 1934, as amended.

     

    



    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    EXHIBIT
      A

    


    MUTUAL
      WAIVER AND RELEASE
      AGREEMENT

    


    THIS
      MUTUAL WAIVER AND RELEASE AGREEMENT
      (this “Release”)
      is entered into as of [TO BE DETERMINED AT
      TERMINATION OF EMPLOYMENT](the “Effective
      Date”),
      by Charles G. Berg (the “Executive”)
      and WellCare Health Plans,
      Inc., a Delaware corporation (the “Company”), pursuant
      to the Employment Agreement by
      and between the Company
      and the Executive
      (the  “Employment
      Agreement”).

     

    


    1.Executive’s
      Waiver
      and Release.  Subject
      to the last sentence of the
      first paragraph of this Section 1, the Executive, on his
      own behalf and on
      behalf of his heirs, executors,
      administrators,
      attorneys and assigns, hereby
      unconditionally and
      irrevocably releases, waives and forever discharges the Company and each of
      its
      affiliates, parents, successors, predecessors,
      and the subsidiaries,
      directors, owners, members, shareholders, officers, agents, and employees
      of the Company and its
affiliates, parents,
      successors, predecessors, and subsidiaries (collectively,
      all of the foregoing are
      referred to as the “Employer”),
      from any and all causes of action,
      claims and damages, including attorneys’fees,
      whether known or unknown, foreseen
      or unforeseen, presently
      asserted or otherwise arising through the date of his signing of this
      Release,
      concerning
      his employment or separation
      from employment.  Subject to the last sentence of the first
      paragraph
      of this Section 1, this Release
      includes, butis not limited
      to, any payments, benefits or damages arising under any federal law (including,
      but not limited to, Title VII of the Civil Rights Act of 1964, the Age
      Discrimination in Employment Act, the Employee Retirement Income Security
      Act of 1974, the Americans with Disabilities
      Act,
      Executive Order 11246, the Family and Medical
      Leave Act, and the Worker Adjustment
      and Retraining Notification Act, each as amended); any claim arising under
      any
      state or local laws, ordinances or regulations (including,
but
      not limited to, any state or local
      laws, ordinances or regulations requiring that advance
      notice be given of certain
      workforce reductions); and any claim arising under any common law principle
      or
      public
      policy, including, but not limited
      to, all suits in tort or
      contract, such as wrongful termination, defamation, emotional distress, invasion
      of privacy or loss of consortium.  Notwithstanding any other
      provision of this Release to the contrary, this Release does not encompass,
      and
      Executive does not release, waive or discharge, the obligations of the Company
      (a) to make the payments and provide the other benefits contemplated by the
      Employment Agreement, or (b) under any restricted stock agreement, option
      agreement or other agreement pertaining to Executive’s equity ownership, or (c)
      under any indemnification or similar agreement with Executive, including under
      the charter and by-laws of the Company.

    


    The
      Executive understands that by
      signing this Release, he is not waiving any claims or administrative
      charges which cannot be
      waived by law.  He is waiving, however, any right to monetary recovery
      or individual relief should any federal, state or local agency (including
      the Equal Employment Opportunity
      Commission) pursue any claim on his behalf arising out of or related to his employment
      with
      and/or separation from employment with the Company.

    


    The
      Executive further agrees without any
      reservation whatsoever, never to sue the Employer or become a party to a lawsuit
      on the basis of any and all claims of any type lawfully and validly
      released in this
      Release.

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    2.Company
      Waiver and Release.  The Company, on its own
      behalf and on behalf of each of its affiliates, parents, successors,
      predecessors, and subsidiaries hereby unconditionally
      and irrevocably releases,
waives and forever
      discharges the Executive, his heirs, executors,
      administrators, attorneys and
      assigns, from any and all causes of action, claims and damages, including
      attorneys’fees,
      whether known or unknown, foreseen
      or unforeseen, presently
      assertedor otherwise arising
      through the date of
      his signing of this Release, concerning his service
      or separation from
      service.  This Release includes, but is not limited to, any payments,
      benefits
      or damages arising under any
      federal law; any claim arising under any state or local
      laws, ordinances or
      regulations; and any claim arising under any common law principle or public
      policy, including, but not limited to, all suits in tort or
      contract.  The
      Company further agrees without
      any reservation whatsoever,
      never to sue the Executive
      or become a party to a lawsuit on the basis of any and all claims of any type
      lawfully and validly released in this Release.

    


    3.
Acknowledgments.  The
      Executive is signing this Release
      knowingly and voluntarily.  He acknowledges that:

    


    
      	
              (a)

            	
              He
                is hereby advised in writing to
                consult an attorney before signing
                this Release
                Agreement;

            


    

    


    
      	
              (b)

            	
              He
                has relied solely on his own
                judgment and/or that of his  attorney
                regarding the consideration
                for and the terms of this Release and is signing this Release
                Agreement knowingly and
                voluntarily of his own free
                will;

            


    

    


    
      	
              (c)

            	
              He
                is not entitled to the
                severance payment under Section 7 of the Employment Agreement (the
                “Severance
                Payment”) unless he
                agrees to and honors
                the terms of this
                Release;

            


    

    


    
      	
              (d)

            	
              He
has
                been given at least
                twenty-one
                (21)
                calendar days
                to
                consider
                this Release, or he or she
                expressly waives his right to have at least twenty-one
                (21) days
                to consider this
                Release;

            


    

    


    
      	
              (e)

            	
              He
                may revoke this Release within
                seven (7) calendar days after signing it by
                submitting a written
                notice of revocation to the Employer.  He
                further
                understands that this Release is not effective or enforceable until
                after
                the seven (7) day period of revocation has expired without revocation,
                and
                that if he revokes this Release
                within the seven (7) day
                revocation period, he will not receive
                the Severance
                Payment;

            


    

    


    
      	
              (f)

            	
              He
                has read and understands the
                Release and further understands that, subject to the limitations
                contained
                herein, it includes a general
                release of any
                andall known and
                unknown, foreseen or unforeseen
                claims presently asserted
                or otherwise arising through the date of his signing of this Release
                that
                he may have against the Employer concerning his employment or separation
                from employment;
                and

            


    

    
 

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    
      	
               

            	
              (g)No
                statements made or
                conduct by the
                Employer has in any way coerced or unduly influenced him or her to
                execute
                this Release.

            


    

    


    4.No
      Admission of Liability.  This
      Release does not
      constitute an admission
      of liability or wrongdoing on the
      part of the Employer or theExecutive, the Employer
      and the
      Executive do not admit there has been any wrongdoing whatsoever against the
      Executive or the Employer, and the Employer and the Executive expressly deny
      that any wrongdoing has occurred.

    


    5.Entire
      Agreement.  There
      are no other agreements of any
      nature between
      the Employer and the Executive with respect to the matters discussed in this
      Release Agreement, except as expressly stated herein, and in signing this
      Release, neither the Employer nor the Executive
      are relying on anyagreements or representations,
      except
      those expressly contained in this Release.

    


    6.Execution.  This
      Release shall be
      effective only if executed by both parties.

    


    7.Severability.  If
      any provision of this
      Release is found, held or deemed by a court of competent jurisdiction
      to be void,
      unlawful or unenforceable under any applicable statute or controlling law,
      the
      remainder of this Release shall continue in full force and
      effect.

    


    8.Governing
      Law.  This
      Release shall be
      governed by the laws of the State of New York, excluding
      the choice of law
      rules thereof.

    


    9.Headings.  Section
      and subsection headings
      contained in this Release are inserted for the convenience of reference
      only.  Section and subsection headings shall not be deemed to be a
      part of this Release for
      any purpose, and they shall not in any way define or affect
      the meaning, construction or scope
      of any of the provisions hereof.

    



    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    IN
      WITNESS WHEREOF, the undersigned have duly executed this Agreement as of the
      day
      and year first herein above written.

    
    

    
      	 	 
	 
	 EXECUTIVE:
	 
	_______________________
	                                                                                                                                                                         	Charles
              G.
              Berg
	 	 
	 

                                                                                        

            	WELLCARE
              HEALTH
              PLANS, INC.
	                                                                                                                                                                           	By:                                                                        
              
	                                                                                                                                                                         	Title:
              _____________________________