Exhibit 10.4
WELLCARE HEALTH PLANS, INC.
2004 EQUITY INCENTIVE PLAN
NON-QUALIFIED STOCK OPTION AGREEMENT
FOR
THOMAS TRAN
Agreement
1.
Grant of
Option . WellCare Health Plans, Inc. (the
“Company”
) hereby grants, as of __________ ___, 2008, to
Thomas Tran (the
“Optionee”
) an option (the “Option”
) to purchase up to 100,000 shares of the Company’s
Common Stock, $0.01 par value per share (the “Shares”
), at an exercise price per share equal to $_______ (the
“Option
Price” ). The Option shall be subject
to the terms and conditions set forth herein. The
Option was issued pursuant to the Company’s 2004 Equity
Incentive Plan (the “Plan”
), which is incorporated herein for all
purposes. The Option is a Non-Qualified Stock
Option, and not an Incentive Stock Option. The
Optionee hereby acknowledges receipt of a copy of the Plan and
agrees to be bound by all of the terms and conditions hereof
and thereof and all applicable laws and
regulations.
2.
Definitions
. Unless otherwise provided herein, terms used
herein that are defined in the Plan and not defined herein
shall have the meanings attributed thereto in the
Plan.
Percentage of Shares
Vesting
Date
25% First
anniversary of the VestingCommencement Date
50% Second
anniversary of the VestingCommencement Date
75% Third
anniversary of the VestingCommencement Date
100% Fourth
anniversary of the VestingCommencement Date
Notwithstanding
anything contained herein to the contrary, once the Option has
vested and become exercisable with respect to 100% of the
Shares, then the Option shall be fully vested and the
provisions of the preceding sentence shall cease to
apply. NOTWITHSTANDING ANYTHING HEREIN TO THE
CONTRARY, THE OPTION CANNOT BE EXERCISED UNTIL THE COMPANY IS
AGAIN CURRENT IN ITS PERIODIC REPORT FILINGS WITH THE U.S.
SECURITIES AND EXCHANGE COMMISSION (THE “SEC”
) AND HAS FILED ALL PERIODIC REPORTS REQUIRED TO BE FILED BY
THE COMPANY WITH THE SEC WITHIN THE PRECEDING TWELVE
MONTHS.
Except as otherwise specifically provided
herein, there shall be no proportionate or partial vesting in
the periods prior to each Vesting Date, and all vesting shall
occur only on the appropriate Vesting Date. Except as
otherwise specifically provided herein, upon the termination
of the Optionee’s employment or service with the Company
and its Subsidiaries, any unvested portion of the Option shall
terminate and be null and void.
4.
Method of
Exercise . The vested portion of this Option
shall be exercisable in whole or in part in accordance with
the exercise schedule set forth in Section 3 hereof by written
notice which shall state the election to exercise the Option,
the number of Shares in respect of which the Option is being
exercised (which number must be a whole number), and such
other representations and agreements as to the holder’s
investment intent with respect to such Shares as may be
required by the Company pursuant to the provisions of the
Plan. Such written notice shall be signed by the
Optionee and shall be delivered in person or by certified mail
to the Secretary of the Company. The written notice
shall be accompanied by payment of the Option
Price. This Option shall be deemed to be exercised
after both (a) receipt by the Company of such written notice
accompanied by the Option Price and (b) receipt by the Company
of the Optionee’s cash payment of the amount, if any,
that is necessary to be withheld in accordance with applicable
Federal or state withholding requirements. No
Shares will be issued pursuant to the Option unless and until
such issuance and such exercise shall comply with all relevant
provisions of applicable law, including the requirements of
any stock exchange upon which the Shares then may be
traded.
5.
Method of
Payment . Payment of the Option Price shall be by
any of the following, or a combination thereof, at the
election of the Optionee: (a) in cash (including check, bank
draft, money order or wire transfer of immediately available
funds), (b) by simultaneous sale through a broker reasonably
acceptable to the Committee of Shares acquired on exercise, as
permitted under Regulation T of the Federal Reserve Board, (c)
by authorizing the Company to withhold from issuance a number
of Shares issuable upon exercise of the Option which, when
multiplied by the Fair Market Value of a share of Common Stock
on the date of exercise, is equal to the Option Price payable
with respect to the portion of the Option being exercised or
(d) by any combination of the
foregoing.
In the event the Optionee
elects to pay the Option Price pursuant to clause (c) above,
(i) only a whole number of Share(s) (and not fractional
Shares) may be withheld in payment and (ii) the Optionee must
present evidence acceptable to the Company that the Optionee
has owned a number of shares of Common Stock at least equal to
the number of Shares to be withheld in payment of the Option
Price (and that such owned shares of Common Stock have not
been subject to any substantial risk of forfeiture) for at
least six months prior to the date of
exercise. When payment of the Option Price is made
by withholding of Shares, the difference, if any, between the
Option Price payable with respect to the portion of the Option
being exercised and the Fair Market Value of the Shares
withheld in payment (plus any applicable taxes) shall be paid
in cash. The Optionee may not authorize the
withholding of Shares having a Fair Market Value exceeding the
Option Price payable with respect to the portion of the Option
being exercised (plus any applicable taxes). Any
withheld Shares shall no longer be issuable under the
Option.
(a)
Death or
Disability . If the Optionee ceases to be an
officer or employee of, or to perform other services for, the
Company, Comprehensive Health Management, Inc. ( “CHMI”
) or any
other Subsidiary due to the Optionee’s death or
Disability, as defined in the Employment Agreement dated as of
July 21, 2008 among the Optionee, the Company and CHMI (the
“Employment
Agreement” ), the Option shall become fully
vested on the date of such cessation and shall remain
exercisable for a period of one year from the date of such
cessation, but in no event after the expiration date provided
in Section 7(a) below; provided, that the Option shall
immediately terminate and become null and void in the event
that the Optionee engages in Competition during any such
post-termination exercise period, unless the Optionee has
received written consent to do so from the
Company.
(b)
Termination for
Cause . If the Optionee’s employment
by, or other performance of services for, the Company, CHMI or
any other Subsidiary is terminated for Cause, as defined in
the Employment Agreement, the Option shall expire and be
forfeited immediately upon such termination, whether or not
then exercisable.
(c)
Other
Termination of Service . If the Optionee
ceases to be an officer or employee of, or to perform other
services for, the Company, CHMI and any other Subsidiary for
any reason other than death, Disability, as defined in the
Employment Agreement, or Cause, as defined in the Employment
Agreement, the portion of the Option that was exercisable on
the date of such cessation shall remain so for a period of 90
days after the date of such cessation, but in no event after
the expiration date provided in Section 7(a) below; provided,
that the Option shall immediately terminate in the event that
the Optionee engages in Competition during any such
post-termination exercise period, unless the Optionee has
received written consent to do so from the
Company.
(d)
Termination of
Service Following a Change in Control
. Notwithstanding the foregoing, if the Optionee
ceases to be an officer or employee of, or to perform other
services for, the Company, CHMI or any
other Subsidiary, and the Optionee’s service was
terminated (i) by the Company, CHMI or any other Subsidiary
without Cause, as defi
