Exhibit 10.1


 


TABLE OF CONTENTS


 


	
   

  	
   

  
	
  Consent

  	
   

  
	
  Final Judgment

  	
   

  



 


















	
  

  	
  UNITED STATES DISTRICT COURT MIDDLE
  DISTRICT OF FLORIDA UNITED STATES SECURITIES AND EXCHANGE COMMISSION,
  Plaintiff, Civ. Action No. v. WELLCARE HEALTH PLANS, INC. Defendant. CONSENT
  OF DEFENDANT WELLCARE HEALTH PLANS, INC. 1. Defendant WellCare Health Plans,
  Inc. (“Defendant”) waives service of a summons and the complaint in this
  action, enters a general appearance, and admits the Court’s jurisdiction over
  Defendant and over the subject matter of this action. 2. Without admitting or
  denying the allegations of the complaint (except as to personal and subject
  matter jurisdiction, which Defendant admits), Defendant hereby consents to
  the entry of the Final Judgment as to Defendant WellCare Health Plans, Inc.
  in the form attached hereto (the “Final Judgment”) and incorporated by
  reference herein, which, among other things: (a) permanently restrains and
  enjoins Defendant from violation of Section 17(a) of the Securities Act of
  1933 (the “Securities Act”) [15 U.S.C. § 77q(a)], Sections 10(b), 13(a),
  13(b)(2)(A) and 13(b)(2)(B) of the Securities Exchange Act of 1934 (the
  “Exchange Act”) [15 U.S.C. §§ 78j(b), 78m(a), 78m(b)(2)(A) and 78m(b)(2)(B)]
  and Exchange Act Rules 

  






 















	
  

  	
  10b-5, 12b-20,
  13a-1, and 13a-13 [17 C.F.R. §§ 240.10b-5, 240.12b-20, 240.13a-1, and 240.13a-13];
  (b) orders Defendant to pay disgorgement in the amount of $1; and (b) orders
  Defendant to pay a civil penalty in the amount of $10,000,000, under Section
  20(d)(2)(C) of the Securities Act [15 U.S.C. § 77t(d)(2)(C)] and Section
  21(d)(3)(B)(iii) of the Exchange Act [15 U.S.C. § 78u(d)(3)(B)(iii)]. 3.
  Defendant acknowledges that the civil penalty paid pursuant to the Final
  Judgment may be distributed pursuant to the Fair Fund provisions of Section
  308(a) of the Sarbanes-Oxley Act of 2002. Regardless of whether any such Fair
  Fund distribution is made, the civil penalty shall be treated as a penalty
  paid to the government for all purposes, including all tax purposes. To
  preserve the deterrent effect of the civil penalty, Defendant agrees that it
  shall not, after offset or reduction of any award of compensatory damages in
  any Related Investor Action based on Defendant’s payment of disgorgement in
  this action, argue that it is entitled to, nor shall it further benefit by,
  offset or reduction of such compensatory damages award by the amount of any
  part of Defendant’s payment of a civil penalty in this action (“Penalty
  Offset”). If the court in any Related Investor Action grants such a Penalty
  Offset, Defendant agrees that it shall, within 30 days after entry of a final
  order granting the Penalty Offset, notify the Commission’s counsel in this
  action and pay the amount of the Penalty Offset to the United States Treasury
  or to a Fair Fund, as the Commission directs. Such a payment shall not be
  deemed an additional civil penalty and shall not be deemed to change the
  amount of the civil penalty imposed in this action. For purposes of this
  paragraph, a “Related Investor Action” means a private damages action brought
  against Defendant by or on behalf of one or more 2

  






 















	
  

  	
  investors based
  on substantially the same facts as alleged in the Complaint in this action.
  4. Defendant waives the entry of findings of fact and conclusions of law
  pursuant to Rule 52 of the Federal Rules of Civil Procedure. 5. Defendant
  waives the right, if any, to a jury trial and to appeal from the entry of the
  Final Judgment. 6. Defendant enters into this Consent voluntarily and
  represents that no threats, offers, promises, or inducements of any kind have
  been made by the Commission or any member, officer, employee, agent, or
  representative of the Commission to induce Defendant to enter into this
  Consent. 7. Defendant agrees that this Consent shall be incorporated into the
  Final Judgment with the same force and effect as if fully set forth therein.
  8. Defendant will not oppose the enforcement of the Final Judgment on the
  ground, if any exists, that it fails to comply with Rule 65(d) of the Federal
  Rules of Civil Procedure, and hereby waives any objection based thereon. 9.
  Defendant waives service of the Final Judgment and agrees that entry of the
  Final Judgment by the Court and filing with the Clerk of the Court will
  constitute notice to Defendant of its terms and conditions. Defendant further
  agrees to provide counsel for the Commission, within 30 days after the Final
  Judgment is filed with the Clerk of the Court, with an affidavit or
  declaration stating that Defendant has received and read a copy of the Final
  Judgment. 10. Consistent with 17 C.F.R. § 202.5(f), this Consent resolves
  only the claims asserted against Defendant in this civil proceeding.
  Defendant acknowledges that no promise or representation has been made by the
  Commission or any member, officer, employee, agent, or representative of the
  Commission with regard to any criminal liability that may have arisen or 3

  






 















	
  

  	
  may arise from
  the facts underlying this action or immunity from any such criminal
  liability. Defendant waives any claim of Double Jeopardy based upon the
  settlement of this proceeding, including the imposition of any remedy or
  civil penalty herein. Defendant further acknowledges that the Court’s entry
  of a permanent injunction may have collateral consequences under federal or
  state law and the rules and regulations of self-regulatory organizations,
  licensing boards, and other regulatory organizations. Such collateral
  consequences include, but are not limited to, a statutory disqualification
  with respect to membership or participation in, or association with a member
  of, a self-regulatory organization. This statutory disqualification has
  consequences that are separate from any sanction imposed in an administrative
  proceeding. In addition, in any disciplinary proceeding before the Commission
  based on the entry of the injunction in this action, Defendant understands
  that it shall not be permitted to contest the factual allegations of the
  complaint in this action. 11. Defendant understands and agrees to comply with
  the Commission’s policy “not to permit a defendant or respondent to consent
  to a judgment or order that imposes a sanction while denying the allegation
  in the complaint or order for proceedings.” 17 C.F.R. § 202.5. In compliance
  with this policy, Defendant agrees: (i) not to take any action or to make or
  permit to be made any public statement denying, directly or indirectly, any
  allegation in the complaint or creating the impression that the complaint is
  without factual basis; and (ii) that upon the filing of this Consent,
  Defendant hereby withdraws any papers filed in this action to the extent that
  they deny any allegation in the complaint. If Defendant breaches this
  agreement, the Commission may petition the Court to vacate the Final Judgment
  and restore this action to its active docket. Nothing in this paragraph
  affects Defendant’s: (i) testimonial obligations; or (ii) right to take  4

  






 















	
  

  	
  legal or
  factual positions in litigation or other legal proceedings in which the
  Commission is not a party. 12. Defendant hereby waives any rights under the
  Equal Access to Justice Act, the Small Business Regulatory Enforcement
  Fairness Act of 1996, or any other provision of law to seek from the United
  States, or any agency, or any official of the United States acting in his or
  her official capacity, directly or indirectly, reimbursement of attorney’s
  fees or other fees, expenses, or costs expended by Defendant to defend
  against this action. For these purposes, Defendant agrees that Defendant is
  not the prevailing party in this action since the parties have reached a good
  faith settlement. 13. In connection with this action and any related judicial
  or administrative proceeding or investigation commenced by the Commission or
  to which the Commission is a party, Defendant (i) agrees to appear and be
  interviewed by Commission staff at such times and places as the staff
  requests upon reasonable notice; (ii) will accept service by mail or
  facsimile transmission of notices or subpoenas issued by the Commission for
  documents or testimony at depositions, hearings, or trials, or in connection
  with any related investigation by Commission staff; (iii) appoints
  Defendant’s undersigned attorney as agent to receive service of such notices
  and subpoenas; (iv) with respect to such notices and subpoenas, waives the
  territorial limits on service contained in Rule 45 of the Federal Rules of
  Civil Procedure and any applicable local rules, provided that the party
  requesting the testimony reimburse Defendant’s travel, lodging, and
  subsistence expenses at the then-prevailing U.S. Government per diem rates;
  and (v) consents to personal jurisdiction over Defendant in any United States
  District Court for purposes of enforcing any such subpoena. 5

  






 















	
  

  	
  14. Defendant
  agrees that the Commission may present the Final Judgment to the Court for
  signature and entry without further notice. 15. Defendant agrees that this
  Court shall retain jurisdiction over this matter for the purpose of enforcing
  the terms of the Final Judgment. WellCare Health Plans, Inc. Dated: May 13,
  2009 By: /s/ Thomas F. O’Neil III Name: Thomas F. O’Neil III Title: Senior
  Vice President, General Counsel Address: WellCare Health Plans, Inc. 8735
  Henderson Road Renaissance 1, 3rd Floor Tampa, FL 33634 On May 13th, 2009
  Thomas F. O’Neil III, a person known to me, personally appeared before me and
  acknowledged executing the foregoing Consent with full authority to do so on
  behalf of WellCare Health Plans, Inc. as its SVP, General Counsel Notary
  Public Commission expires: Approved as to form: Douglas A. Fellman, Esq.
  Hogan & Hartson LLP 555 Thirteenth Street, NW Washington, D.C. 20004
  Counsel for WellCare Health Plans, Inc. Attorney for Defendant 6 /s/ TINA R.
  MARCARIO /s/ Douglas A. Fellman

  






 












 




	
  

  	
  UNITED STATES DISTRICT COURT MIDDLE
  DISTRICT OF FLORIDA UNITED STATES SECURITIES AND EXCHANGE COMMISSION,
  Plaintiff, Civil Action No.__________ v. WELLCARE HEALTH PLANS INC.,
  Defendant. FINAL JUDGMENT AS TO DEFENDANT WELLCARE HEALTH PLANS, INC. The
  Securities and Exchange Commission (“Commission”) having filed a Complaint
  and Defendant WellCare Health Plans, Inc. (“Defendant” or “WellCare”) having
  entered a general appearance; consented to the Court’s jurisdiction over
  Defendant and the subject matter of this action; consented to entry of this
  Final Judgment without admitting or denying the allegations of the Complaint
  (except as to jurisdiction); waived findings of fact and conclusions of law;
  and waived any right to appeal from this Final Judgment: I. IT IS HEREBY
  ORDERED, ADJUDGED, AND DECREED that Defendant and Defendant’s agents,
  servants, employees, attorneys, and all persons in active concert or
  participation with them who receive actual notice of this Final Judgment by
  personal service or otherwise are permanently restrained and enjoined from
  violating, directly or indirectly, Section 10(b) of the Securities Exchange
  Act of 1934 (the “Exchange Act”) 

  






 















	
  

  	
  [15 U.S.C. §
  78j(b)] and Rule 10b-5 promulgated thereunder [17 C.F.R. § 240.10b-5], by
  using any means or instrumentality of interstate commerce, or of the mails,
  or of any facility of any national securities exchange, in connection with
  the purchase or sale of any security: (a) to employ any device, scheme, or
  artifice to defraud; (b) to make any untrue statement of a material fact or
  to omit to state a material fact necessary in order to make the statements
  made, in the light of the circumstances under which they were made, not
  misleading; or (c) to engage in any act, practice, or course of business
  which operates or would operate as a fraud or deceit upon any person. II. IT
  IS HEREBY ORDERED, ADJUDGED, AND DECREED that Defendant and Defendant’s
  agents, servants, employees, attorneys, and all persons in active concert or
  participation with them who receive actual notice of this Final Judgment by
  personal service or otherwise are permanently restrained and enjoined from
  violating Section 17(a) of the Securities Act of 1933 (the “Securities Act”)
  [15 U.S.C. § 77q(a)] in the offer or sale of any security by the use of any
  means or instruments of transportation or communication in interstate
  commerce or by use of the mails, directly or indirectly: (a) to employ any
  device, scheme, or artifice to defraud; (b) to obtain money or property by
  means of any untrue statement of material fact or omission of a material fact
  necessary in order to make the statements made, in light of the circumstances
  in which they were made, not misleading; or 

  






 















	
  

  	
  (c) to engage
  in any transaction, practice, or course of business which operates or would
  operate as a fraud or deceit on the purchaser. III. IT IS HEREBY FURTHER
  ORDERED, ADJUDGED, AND DECREED that Defendant and Defendant’s agents,
  servants, employees, attorneys, and all persons in active concert or
  participation with them who receive actual notice of this Final Judgment by
  personal service or otherwise are permanently restrained and enjoined from
  violating Section 13(a) of the Exchange Act [15 U.S.C. § 78m(a)] and Rules
  12b-20, 13a-1, and 13a-13 thereunder [17 C.F.R. §§ 240.12b-20, 240.13a-1, and
  240.13a-13], by: (a) failing to file with the Commission such factually
  accurate and complete periodic reports as required pursuant to Section 13(a)
  of the Exchange Act and Rules 13a-1 and 13a-13 thereunder; or by (b) omitting
  to state, in addition to the information expressly required to be included in
  such annual and quarterly reports, any such further material information as
  may be necessary to make the required statements, in light of the
  circumstances under which such statements are made, not misleading. IV. IT IS
  HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant and Defendant’s
  agents, servants, employees, attorneys, and all persons in active concert or
  participation with them who receive actual notice of this Judgment by
  personal service or otherwise are permanently restrained and enjoined from
  violating Sections 13(b)(2)(A) and 13(b)(2)(B) of the Exchange Act [15 U.S.C.
  §§ 78(m)(b)(2)(A) and 78m(b)(2)(B)], by: 

  






 















	
  

  	
  (a) failing to
  make and keep books, records, and accounts, which, in reasonable detail,
  accurately and fairly reflect the transactions and dispositions of its
  assets; or (b) failing to devise and maintain a system of internal accounting
  controls sufficient to provide reasonable assurances that: (1) transactions
  are executed in accordance with management’s general or specific
  authorization; (2) transactions are recorded as necessary (a) to permit
  preparation of financial statements in conformity with generally accepted
  accounting principles (GAAP) or any other criteria applicable to such
  statements, and (b) to maintain accountability for assets; (3) access to
  assets is permitted only in accordance with management’s general or specific
  authorization; and (4) the recorded accountability for assets is compared
  with the existing assets at reasonable intervals and appropriate action is
  taken with respect to any differences. V. IT IS HEREBY FURTHER ORDERED,
  ADJUDGED, AND DECREED that Defendant is liable for disgorgement of $1,
  representing profits gained as a result of the conduct alleged in the
  Complaint, and a civil penalty in the amount of $10 million pursuant to
  Section 20(d)(2)(C) of the Securities Act [15 U.S.C. § 77t(d)(2)(C)] and
  Section 21(d)(3)(B)(iii) of the Exchange Act [15 U.S.C. § 78u(d)(3)(B)(iii)].
  Defendant shall satisfy these obligations by paying $10,000,001 pursuant to
  the terms of the payment schedule set forth in paragraph VI below to the
  Clerk of this Court, together with a cover letter identifying WellCare Health
  Plans, Inc. as a defendant in this action; 

  






 















	
  

  	
  setting forth
  the title and civil action number of this action and the name of this Court;
  and specifying that payment is made pursuant to this Final Judgment.
  Defendant shall simultaneously transmit photocopies of such payment and letter
  to the Commission’s counsel in this action. By making this payment, Defendant
  relinquishes all legal and equitable right, title, and interest in such
  funds, and no part of the funds shall be returned to Defendant. Defendant
  shall pay post-judgment interest on any delinquent amounts pursuant to 28
  U.S.C. § 1961. The Clerk shall deposit the funds into an interest bearing
  account with the Court Registry Investment System (“CRIS”) or any other type
  of interest bearing account that is utilized by the Court. These funds,
  together with any interest and income earned thereon (collectively, the
  “Fund”) shall be held in the interest bearing account until further order of
  the Court. In accordance with 28 U.S.C. § 1914 and the guidelines set by the
  Director of the Administrative Office of the United States Courts, the Clerk
  is directed, without further order of this Court, to deduct from the income
  earned on the money in the Fund a fee equal to ten percent of the income
  earned on the Fund. Such fee shall not exceed that authorized by the Judicial
  Conference of the United States. The Commission may by motion propose a plan
  to distribute the Fund subject to the Court’s approval. Such a plan may
  provide that the Fund shall be distributed pursuant to the Fair Fund provisions
  of Section 308(a) of the Sarbanes-Oxley Act of 2002. Regardless of whether
  any such Fair Fund distribution is made, amounts ordered to be paid as civil
  penalties pursuant to this Judgment shall be treated as penalties paid to the
  government for all purposes, including all tax purposes. To preserve the
  deterrent effect of the civil penalty, Defendant shall not, after offset or
  reduction of any award of 

  






 















	
  

  	
  compensatory
  damages in any Related Investor Action based on Defendant’s payment of
  disgorgement in this action, argue that it is entitled to, nor shall it
  further benefit by, offset or reduction of such compensatory damages award by
  the amount of any part of Defendant’s payment of a civil penalty in this
  action (“Penalty Offset”). If the court in any Related Investor Action grants
  such a Penalty Offset, Defendant shall, within 30 days after entry of a final
  order granting the Penalty Offset, notify the Commission’s counsel in this
  action and pay the amount of the Penalty Offset to the United States Treasury
  or to a Fair Fund, as the Commission directs. Such a payment shall not be
  deemed an additional civil penalty and shall not be deemed to change the
  amount of the civil penalty imposed in this Judgment. For purposes of this
  paragraph, a “Related Investor Action” means a private damages action brought
  against Defendant by or on behalf of one or more investors based on
  substantially the same facts as alleged in the Complaint in this action. VI.
  WellCare shall pay $10,000,001 in four installments according to the
  following schedule: (1) $2,500,001 within 30 calendar days of entry of this
  Final Judgment plus post-judgment interest pursuant to 28 U.S.C. § 1961; (2)
  $2,500,000 within 90 calendar days of entry of this Final Judgment plus
  post-judgment interest pursuant to 28 U.S.C. § 1961; (3) $2,500,000 within
  180 calendar days of entry of this Final Judgment plus post-judgment interest
  pursuant to 28 U.S.C. § 1961; and (4) $2,500,000 within 365 calendar days of
  entry of this Final Judgment plus post-judgment interest pursuant to 28
  U.S.C. § 1961. If WellCare fails to make any payment by the date agreed
  and/or in the amount agreed according to the schedule set forth above, all
  outstanding payments under this 

  






 















	
  

  	
  Final Judgment,
  including post-judgment interest, minus any payments made, shall become due
  and payable immediately without further application to the Court. VII. IT IS
  FURTHER ORDERED, ADJUDGED, AND DECREED that the Consent of Defendant WellCare
  Health Plans, Inc. is incorporated herein with the same force and effect as
  if fully set forth herein, and that Defendant shall comply with all of the
  undertakings and agreements set forth therein. VIII. IT IS FURTHER ORDERED,
  ADJUDGED, AND DECREED that this Court shall retain jurisdiction of this
  matter for the purposes of enforcing the terms of this Final Judgment. IX.
  There being no just reason for delay, pursuant to Rule 54(b) of the Federal
  Rules of Civil Procedure, the Clerk is ordered to enter this Final Judgment
  forthwith and without further Notice. Dated: ______________, _______
  ____________________________________ UNITED STATES DISTRICT JUDGE