Exhibit 10.1
WELLCARE HEALTH PLANS,
INC.
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT (this “Agreement”)
is entered into as of __________, 20__ (the “Effective
Date”) by and between WellCare Health Plans, Inc., a Delaware
corporation (the “Company”), and ____________
(“Indemnitee”). Capitalized terms used and
not otherwise defined in the section or provision of this Agreement
in which they are used have the meanings set forth in Section 10
hereof.
RECITALS
A.
The Board of Directors of the Company has determined that the
increasing difficulty in attracting and retaining qualified persons
as directors and officers is detrimental to the best interests of
the Company’s stockholders and that the Company should act to
assure such persons that there will be adequate insurance and
indemnification against risks of claims and actions against them
arising out of their service to and activities on behalf of the
Company.
B.
Section 145 of the General
Corporation Law of the State of Delaware (the “DGCL”)
empowers the Company to indemnify and advance expenses to its
officers, directors, employees and agents by agreement and to
indemnify and advance expenses to persons who serve, at the request
of the Company, as directors, officers, employees, or agents of
other corporations or enterprises, and expressly provides that the
indemnification provided by Section 145 is not
exclusive.
C.
The Company has adopted provisions in its Certificate of
Incorporation providing for mandatory indemnification of its
officers and directors to the fullest extent permitted by
applicable law, subject to certain limitations specified in the
Certificate of Incorporation, and the Company wishes to clarify and
enhance the rights and obligations of the Company and the
Indemnitee with respect to indemnification and advancement of
expenses.
D.
To the extent that Indemnitee previously has entered
into an indemnification agreement with the Company that
remains in full force and effect (a “Previous
Agreement”), the Company desires that such Previous Agreement
shall govern the indemnification rights and obligations of
Indemnitee and the Company with respect to Proceedings (as defined
below) that arose or may arise from actual or alleged events,
occurrences, acts or omissions occurring prior to the Effective
Date (regardless of whether such Proceedings were or are initiated
before, on or after the Effective Date).
E.
Regardless of whether an Indemnitee has
entered into a Previous Agreement, the Company desires that this
Agreement shall govern the indemnification rights and obligations
of Indemnitee and the Company with respect to Proceedings
initiated on or after the Effective Date and arising out of
actual or alleged events, occurrences, acts or
omissions occurring on or after the Effective Date.
F.
The Company desires to attract and retain the services of
highly qualified individuals, such as Indemnitee, to serve the
Company and/or one or more of its Subsidiaries and, in order to
induce Indemnitee to provide or to continue to provide services to
the Company and/or one or more of its Subsidiaries, wishes to
provide for the indemnification and advancing of expenses to
Indemnitee to the maximum extent permitted by law.
G.
In view of the considerations set forth above, the Company
desires that Indemnitee be entitled to indemnification and
advancement, subject to and in accordance with the terms and
conditions set forth herein.
NOW, THEREFORE, the Company and Indemnitee hereby agree as
follows:
1.
Indemnification and Advancement of Expenses
(a)
Indemnification for Losses
To the fullest extent permitted by applicable law and
in a manner permitted by such law, if Indemnitee is or was or
becomes, a party to or is otherwise involved in any Proceeding, or
is or was threatened to be made a party to or a participant in any
such Proceeding, by reason of the Indemnitee’s Corporate
Status, or by reason of (or arising in part out of) any actual or
alleged event or occurrence related to the Indemnitee’s
Corporate Status, or by reason of any actual or alleged act or
omission on the part of Indemnitee taken or omitted in or relating
to the Indemnitee’s Corporate Status, then the Company shall
indemnify Indemnitee against any and all Losses actually and
reasonably incurred by the Indemnitee or on the Indemnitee’s
behalf in connection with such a Proceeding or any claim, issue, or
matter therein.
(b)
Indemnification for Expenses as a Witness
Notwithstanding anything in this Agreement to the contrary, to the
fullest extent permitted by applicable law and in a manner
permitted by such law, to the extent that the Indemnitee, by reason
of the Indemnitee’s Corporate Status, is or was or
becomes, or is or was threatened to be made, a witness in any
Proceeding to which the Indemnitee is not a party, the Indemnitee
shall be indemnified against all Expenses actually and reasonably
incurred by the Indemnitee or on the Indemnitee’s
behalf in connection therewith.
(c)
Mandatory Payment of Expenses
Notwithstanding any other
provision of this Agreement to the contrary, to the extent that
Indemnitee has been successful on the merits or otherwise,
including, without limitation, the dismissal of an action without
prejudice, in defense of any Proceeding or in the defense of any
claim, issue or matter therein, Indemnitee shall be indemnified
against all Expenses incurred by Indemnitee in connection
therewith.
(d)
Procedure for Determination of Entitlement to
Indemnification
(i) To
obtain indemnification under this Agreement, the Indemnitee shall
submit to the Company a written request for indemnification,
including therein or therewith, except to the extent previously
provided to the Company in connection with a request or requests
for advancement pursuant to Section 1(e) hereof, a statement or
statements reasonably evidencing all Losses incurred or paid by or
on behalf of the Indemnitee and for which indemnification is
requested. The Secretary of the Company shall, promptly
upon receipt of such a request for indemnification, advise the
Board of Directors in writing that the Indemnitee has requested
indemnification.
(ii) Upon
written request by the Indemnitee for indemnification pursuant to
the first sentence of Section 1(d)(i) hereof, if required by
applicable law and to the extent not otherwise provided pursuant to
the terms of this Agreement, a determination with respect to the
Indemnitee’s entitlement to indemnification shall be made in
the specific case by the Reviewing Party. If there has
not been a Change in Control, or if there has been a Change in
Control which has been approved by a majority of the directors of
the Company who were directors immediately prior to the Change in
Control (the “Incumbent Directors”), the Reviewing
Party shall be selected by the Board of Directors of the Company by
a majority vote of the Disinterested Directors, and if there has
been a Change in Control which has not been approved by a majority
of the Incumbent Directors, the Reviewing Party shall be
Independent Legal Counsel.
(iii) Notice
in writing of any determination as to the Indemnitee’s
entitlement to indemnification shall be delivered to the Indemnitee
promptly after such determination is made, and if such
determination of entitlement to indemnification has been made by
Independent Counsel, such determination shall be set forth in a
written opinion addressed to the Board of Directors, and such
notice to Indemnitee shall be accompanied by a copy of such written
opinion. If it is determined that the Indemnitee is
entitled to indemnification, then payment to the Indemnitee of all
amounts to which the Indemnitee is determined to be entitled shall
be made within thirty (30) days after such
determination. If it is determined that the Indemnitee
is not entitled to indemnification, then the written notice to the
Indemnitee (or, if such determination has been made by Independent
Counsel in a written opinion, the copy of such written opinion
delivered to the Indemnitee) shall disclose the basis upon which
such determination is based.
Notwithstanding anything in this Agreement to
the contrary, but subject to Section 8(b) hereof, if Indemnitee is
or was or becomes a party to or is otherwise involved in any
Proceeding (including as a witness), or is or was threatened to be
made a party to or a participant (including as a witness) in any
such Proceeding, by reason of the Indemnitee’s Corporate
Status, or by reason of (or arising in part out of) any actual or
alleged event or occurrence related to the Indemnitee’s
Corporate Status, or by reason of any actual or alleged act or
omission on the part of Indemnitee taken or omitted in or relating
to the Indemnitee’s Corporate Status, then the Company shall
advance all Expenses actually and reasonably incurred by or on
behalf of the Indemnitee in connection with any such Proceeding in
advance of the final disposition of such Proceeding within ten (10)
calendar days after the receipt by the Company of invoices
presented to Indemnitee for such Expenses; provided Indemnitee
shall undertake to repay any Expenses advanced if it shall
ultimately be determined that the Indemnitee is not entitled to be
indemnified against such Expenses under this Agreement or
otherwise. Any advances and undertakings to repay
pursuant to this Section 3 shall be unsecured and interest
free.
2.
Remedies of Indemnitee
(a)
Adjudication of Entitlement to Indemnification or
Advancement
In the event that (i) a
determination is made by the Reviewing Party pursuant to Section
1(d) of this Agreement that the Indemnitee is not entitled to
indemnification, (ii) advancement of Expenses is not timely made
pursuant to Section 2 of this Agreement, (iii) if the determination
of entitlement to indemnification is not to be made by Independent
Counsel pursuant to Section 1(d) hereof, no determination of
entitlement to indemnification shall have been made pursuant to
Section 1(d) within thirty (30) days after receipt by the Company
of the Indemnitee’s written request for indemnification, (iv)
if the determination of entitlement to indemnification is to be
made by Independent Counsel pursuant to Section 1(d) hereof, no
determination of entitlement to indemnification shall have been
made pursuant to Section 1(d) hereof within sixty (60) days after
receipt by the Company of the Indemnitee’s written request
for indemnification, (v) payment of indemnification is not made
pursuant to Section 1(b) or Section 1(c) of this Agreement within
thirty (30) days after receipt by the Company of a written request
therefor, or (vi) payment of indemnification pursuant to Section
1(a) of this Agreement is not made within thirty (30) days after a
determination has been made pursuant to Section 1(d) that the
Indemnitee is entitled to indemnification, then the Indemnitee
shall be entitled to commence a proceeding in the Court of Chancery
of the State of Delaware (or other court of competent jurisdiction)
seeking to establish or enforce the Indemnitee’s entitlement
to such indemnification or advancement of Expenses, and the Company
hereby consents to service of process and to appear in any such
proceeding commenced in the Court of Chancery of the State of
Delaware. If a determination shall have been made by the Reviewing
Party pursuant to Section 1(d) of this Agreement that the
Indemnitee is not entitled to indemnification, any judicial
proceeding commenced pursuant to this Section 2(a) shall be
conducted in all respects as a de novo trial on the merits
and the Indemnitee shall not be prejudiced by reason of any adverse
determination by the Reviewing Party.
Indemnitee shall, as a condition precedent to
Indemnitee’s right to be indemnified under this Agreement,
provide the Company notice in writing as soon as practicable of any
Proceeding for which indemnification will or could be sought under
this Agreement. The failure of the Indemnitee to so
notify the Company shall not relieve the Company of any obligation
that it may have to the Indemnitee under this Agreement or
otherwise, except to the extent the Company is materially
prejudiced by such failure.
(c)
No Presumptions; Burden of
Proof
(i) For
purposes of this Agreement, the termination of any Proceeding by
judgment, order, settlement (whether with or without court
approval) or conviction, or upon a plea of nolo contendre or its
equivalent, shall not create a presumption that Indemnitee did not
meet any particular standard of conduct or have any particular
belief or that a court has determined that indemnification is not
permitted by applicable law. In addition, neither the
failure of the Reviewing Party to have made a determination as to
whether Indemnitee has met any particular standard of conduct or
had any particular belief, nor an actual determination by the
Reviewing Party that Indemnitee has not met such standard of
conduct or did not have such belief, prior to the commencement of
legal proceedings by Indemnitee to secure a judicial determination
that Indemnitee should be indemnified under applicable law, shall
be a defense to Indemnitee’s claim or create a presumption
that Indemnitee has not met any particular standard of conduct or
did not have any particular belief.
(ii) In
connection with any determination by the Reviewing Party or the
Court of Chancery of the State of Delaware (or other court of
competent jurisdiction) as to whether Indemnitee is entitled to be
indemnified hereunder, the burden of proof shall be on the Company
to establish that Indemnitee is not so entitled.
If, at the time of the receipt by the Company of
a notice of a Proceeding pursuant to Section 2(b) hereof, the
Company has liability insurance in effect which may cover such
Proceeding, the Company shall give prompt notice of the
commencement of such Proceeding to the insurers in accordance with
the procedures set forth in the respective policies. The
Company shall thereafter take all necessary or desirable action to
cause such insurers to pay, on behalf of Indemnitee, all amounts
payable as a result of such action, suit, proceeding, inquiry or
investigation in accordance with the terms of such
policies.
3.
Scope; Nonexclusivity
It is understood that the parties to
this Agreement intend for this Agreement to be interpreted and
enforced so as to provide indemnification and advancement of
Expenses to Indemnitee to the fullest extent now or hereafter
permitted by law, subject only to the express exceptions and
limitations otherwise set forth in this Agreement. In
the event of any change after the date of this Agreement in any
applicable law, statute or rule which expands the right of a member
of the Board of Directors or an officer, employee, agent or
fiduciary of the Company or any Subsidiary, as applicable, to
receive indemnification from the Company, it is the intent of the
parties hereto that Indemnitee shall enjoy by this Agreement the
greater benefits afforded by such change. In the event
of any change in any applicable law, statute or rule which narrows
the right of a member of the Board of Directors or an officer,
employee, agent or fiduciary of the Company or any Subsidiary, as
applicable, to receive indemnification from the Company, such
change, to the extent not otherwise required by such law, statute
or rule to be applied to this Agreement, shall have no effect on
this Agreement or the parties’ rights and obligations
hereunder.
The indemnification and advancement of
Expenses provided by this Agreement shall be in addition to any
rights to which Indemnitee may be entitled under the certificate of
incorporation, bylaws, or similar organizational documents of the
Company or any Subsidiary, any agreement, any vote of stockholders
or disinterested directors, the General Corporation Law of the
State of Delaware, or otherwise. Notwithstanding
anything in this Section 3(b) to the contrary, to the extent the
time periods specified in Sections 1 and 2 hereof with respect to
the time at which the Indemnitee shall be entitled to seek an
adjudication as to the Indemnitee’s entitlement to
indemnification or advancement differ from similar time periods
specified in the Company’s Certificate of Incorporation or
Bylaws, the time periods set forth in Sections 1 and 2 hereof shall
control and be binding on the Indemnitee and the Company and shall
be deemed a waiver of any contrary right specified in the
Company’s Certificate of Incorporation or Bylaws.
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No
Duplication of Payments
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Except to the extent required by applicable law, the Company shall
not be liable under this Agreement to make any payment to
Indemnitee with respect to amounts otherwise indemnifiable
hereunder (or for which advancement is otherwise provided
hereunder) if and to the extent that the Indemnitee has otherwise
actually received such payment under any insurance policy,
contract, agreement, governing do
