restrictedstockagmtboard.htm


    Back to Form 8-K

    Exhibit 10.2


     

    [Board Member Version]

    
 

    WELLCARE
HEALTH PLANS, INC.

    2004
EQUITY INCENTIVE PLAN

    


    RESTRICTED
STOCK AGREEMENT

    


    This RESTRICTED STOCK AGREEMENT
(the “Agreement”)
is made and entered into effective as of _________________, by and between
WellCare Health Plans, Inc., a Delaware corporation (the “Company”),
and _________________ (the “Grantee”).

    


    RECITALS

    


    In consideration of services to be
rendered by the Grantee as director of the Company and to provide incentive to
the Grantee to remain with the Company or any of its Subsidiaries, it is in the
best 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 in the 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 hereby grants, on the date set forth above
(the “Date
of Grant”), to the Grantee, ________ 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.  As a condition to entering into this Agreement, and as a
condition to the issuance of the Restricted Stock, the Grantee agrees to be
bound by all of the terms and conditions herein and in the Plan.  The
purchase price per share of Restricted Stock is $.01 per share (the par value of
a share of common stock of the Company), which shall be paid in cash within ten
days of the Date of Grant.

    


    2.           Vesting of Restricted
Stock.

    


    (a)           Except
as otherwise provided in Section 3 hereof, the following table indicates each
date upon which the Grantee shall become vested with respect to the percentage
of Restricted Stock granted as indicated beside the date (each such date being a
“Vesting
Date”), provided that the Grantee’s service to the Company or any its
Subsidiaries continues through and on the applicable Vesting Date:

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      	
              Percentage
      of Shares

            	 	
              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.

    


    (c)           If
the Grantee’s service terminates following a Change in Control, the Restricted
Stock shall accelerate and become fully vested upon such
termination.

    


    3.           Termination of
Services.

    


    (a)           Except
as set forth below, upon the termination or cessation of Grantee’s provision of
service to the Company or any of its Subsidiaries (the “Date of
Termination”), 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
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, 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, if issued, 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.  The Company shall include a restrictive legend on any stock
certificates evidencing shares of Restricted Stock issued under the Plan or
under this Agreement or, in the case of uncertificated shares of Restricted
Stock issued thereunder, on the required notices described in Section 151(f) of
the Delaware General Corporation Law (the “DGCL”).

    


    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)           If
at any time while this Agreement is in effect (or shares of Restricted Stock
granted hereunder shall be or remain unvested while Grantee’s provision of
services continues and has not yet terminated or ceased for any reason), there
shall be any increase or decrease in the number of issued and outstanding shares
of the Company through the declaration of a stock dividend or through any
recapitalization resulting in a stock split-up, combination or exchange of such
shares, then and in that event, the Committee shall make any adjustments it
deems fair and appropriate, in view of such increase or decrease, in the number
of shares of Restricted Stock then subject to this Agreement.  If any
such adjustment shall result in a fractional share, such fraction shall be
disregarded and no share will be issued in connection with such
fraction.

    


    (c)           In
the event of any merger, consolidation or other reorganization in which the
Company is not the surviving or continuing corporation or in which a Change in
Control is to occur, all of the Company’s obligations regarding the Restricted
Stock shall, on such terms as may be approved by the Committee prior to such
event, be assumed by the surviving or continuing corporation or canceled in
exchange for property (including cash).

    


    (d)           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 of any 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 Stock are not
transferable until and unless they become vested in accordance with this
Agreement, provided, that in no event may shares of Restricted Stock be
transferred unless there is an available exemption under federal and applicable
state securities laws and regulations (as determined in the sole and absolute
discretion of the Company).  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, directly or indirectly,
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
Grantee agrees as a condition of this grant to make acceptable arrangements to
pay any withholding or other taxes, if any, that may be due as a result of the
payment of dividends or the vesting of common stock acquired under this
grant.  In the event that the Company determines that any tax or
withholding payment is required relating to the payment of dividends or the
vesting of shares arising from this grant under applicable laws, the Company
will have the right to require such payments from the Grantee, or withhold such
amounts from other payments due to the Grantee from the
Company.  Subject to the availability of “surplus” within the meaning
of the DGCL and the prior approval of the Company, which may be withheld by the
Company, in its sole discretion, the Grantee may elect to satisfy any
withholding or other tax obligation, in whole or in part, by causing the Company
to withhold shares of common stock otherwise issuable to the Grantee or by
delivering to the Company shares of common stock already owned by the
Grantee.  The shares of common stock so delivered or withheld must
have an aggregate Fair Market Value equal to the withholding or other tax
obligation and may not be subject to any repurchase, forfeiture, unfulfilled
vesting, or other similar requirements.  If the Grantee delivers to
the Company shares of common stock already owned by the Grantee as payment for
any withholding or other tax obligations, (i) only a whole number of share(s) of
common stock (and not fractional shares of common stock) may be delivered, (ii)
the Grantee must present evidence acceptable to the Company that the Grantee has
owned any such shares of common stock delivered (and that such delivered 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 Grantee, be made either by (A) physical delivery of the
certificate(s) for all such shares of common stock tendered in payment of the
withholding or other tax obligations, accompanied by duly executed instruments
of transfer in a form acceptable to the Company, or (B) direction to the
Grantee’s broker to transfer, by book entry, such shares of common stock from a
brokerage account of the Grantee to a brokerage account specified by the
Company.  If shares are withheld from the Grantee to pay any
withholding or other tax obligations, only a whole number of shares (and not
fractional shares) will be withheld in payment.

    


    (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.  This Agreement may only be modified or amended in
a writing signed by the parties hereto.  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 executors,
administrators, heirs, 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.  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.

    


    10.           Miscellaneous.

    


    (a)           No Right to Continued
Service.  This Agreement and the grant of Restricted Stock
hereunder shall not confer, or be construed to confer, upon the Grantee any
right to provide services to the Company or any Subsidiary.

    


    (b)           No Limit on Other
Compensation Arrangements.  Nothing contained in this Agreement
shall preclude the Company or any of its Subsidiaries 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 of its
Subsidiaries 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 of its Subsidiaries 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/ 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.  If and to the extent that this Agreement conflicts or is
inconsistent with the terms, conditions and provisions of the Plan, the Plan
shall control, and this Agreement shall be deemed to be modified
accordingly.  The Grantee accepts the Restricted Stock subject to all
of the terms, provisions and restrictions of this Agreement and the
Plan.  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, Renaissance One, 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:
      ______________________________

              Name:
      Heath G. Schiesser

              Title:
      President and Chief Executive
Officer

            


    

    


    Grantee acknowledges receipt of a copy
of the Plan and represents that he or she is familiar with the terms and
provisions thereof, and hereby accepts this Agreement subject to all of the
terms and provisions thereof.  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:
__________________________________

    [Insert
name of Grantee]