EXHIBIT 10.4
AMERIGROUP
CORPORATION
2009 EQUITY
INCENTIVE PLAN
RESTRICTED STOCK AGREEMENT
This Restricted Stock Agreement is
made and entered into as of
, 20
(the “Date of
Grant”), by and between AMERIGROUP Corporation, a Delaware
corporation (the “Company”), and
(the
“Participant”). Capitalized terms not defined herein
shall have the meaning ascribed to them in the Company’s 2009
Equity Incentive Plan (the “Plan”).
1. Number of Shares .
The Company hereby grants to the Participant
shares of Restricted
Stock, subject to all of the terms and conditions of this
Restricted Stock Agreement and the Plan. Such shares of Restricted
Stock shall be evidenced by a book entry statement bearing the
restrictive legends described in Section 6 hereof. The book
entry transfer evidencing the shares of Restricted Stock shall be
held in the custody of the Company until the restrictions thereon
shall have lapsed, and, as a condition to the grant of the
Restricted Stock, the Participant shall deliver to the Company a
stock power, endorsed in blank, relating to the Restricted Stock in
such form as the Secretary of the Company may require. Reasonably
promptly after the restrictions on transferability of a share of
Restricted Stock shall lapse, the Company shall cause to be
delivered to the Participant a certificate evidencing such share,
free of the legends described in Section 6 hereof.
2. Lapse of
Restrictions .
(a) Subject to Section 4
hereof, the restrictions on transfer set forth in Section 2(b)
hereof shall lapse as follows, subject to the continued employment
of Participant by the Company or one of its Affiliates:
[INSERT VESTING
SCHEDULE AS DETERMINED BY THE ADMINISTRATOR]
Upon termination of the Participant’s employment with the
Company (or any subsidiary of the Company), any shares of
Restricted Stock as to which the restrictions on transferability
shall not already have lapsed shall be immediately forfeited by the
Participant and transferred to, and reacquired by, the Company
without consideration of any kind.
(b) Until the restrictions on
transfer of the Restricted Stock lapse as provided in Section 2(a)
hereof, or as otherwise provided in the Plan, no transfer of the
Restricted Stock or any of the Participant’s rights with
respect to the Restricted Stock, whether voluntary or involuntary,
by operation of law or otherwise, shall be permitted. Unless the
Administrator determines otherwise, upon any attempt to transfer a
share of Restricted Stock or any rights in respect of a share of
Restricted Stock before the lapse of such restrictions, such share,
and all of the rights related thereto, shall be immediately
forfeited by the Participant and transferred to, and reacquired by,
the Company without consideration of any kind.
3. Adjustments . In the
event of any Change in Capitalization, the Administrator shall take
such actions pursuant to Section 5 of the Plan (including the
provisions thereof relating to the cancellation of Awards in
exchange for a payment in cash or other property) as it deems
appropriate.
4. Change in Control .
[AT THE DISCRETION OF THE ADMINISTRATOR, EITHER]
Any shares of Restricted Stock that have not previously vested
shall be deemed fully vested if the Participant’s employment
or service with the Company or any Subsidiary or Affiliate is
terminated by the Company or any Subsidiary or Affiliate or any
successor entity for any reason (other than for Cause or as a
result of Disabling Conduct (defined below)) within two years
following a Change in Control or if the Participant terminates
employment or service with the Company or any Subsidiary or
Affiliate within two years following the Change in Control and
after there is a material adverse change in the nature or status of
the Participant’s duties or responsibilities from those in
effect immediately prior to the Change in Control. For purposes of
the preceding sentence, “Disabling Conduct” shall mean
conduct involving a breach of the covenants made in Section 5
hereof.
[OR]
Any shares of Restricted Stock that have not previously vested
shall become fully vested upon a Change in Control.
5. Covenant Not to
Compete .
(a) In consideration for the
grant of the Restricted Stock, and as a material condition to the
grant, the Participant hereby expressly agrees as follows:
(i) The
Participant will act in the best interests of the Company and its
Subsidiaries and Affiliates (each, an “AMERIGROUP
Company” and collectively, the “AMERIGROUP
Companies”) throughout the period of the Participant’s
employment with any of the AMERIGROUP Companies; and
(ii) At all
times while employed by any AMERIGROUP Company and at all times
during the Covered Post-Employment Period (defined below), the
Participant will not (A) compete with any AMERIGROUP Company
by serving a Competitor (defined below) in any managerial capacity,
or in any capacity that influences business strategy, with respect
to a Covered Product or Service (defined below) that the Competitor
is offering in a Covered Area (defined below) or developing to
offer in a Covered Area, or (B) solicit for employment,
interfere with the employment relationship of or endeavor to entice
away any employee of any AMERIGROUP Company; provided ,
however , that in the event the Company terminates the
Participant’s employment without Cause [or as described in
Section 4, or the Participant voluntarily terminates his or
her employment under the circumstances described in Section 4]
[NOTE: BRACKETED LANGUAGE TO BE USED IF DOUBLE-TRIGGER SECTION 4
IS USED] , the non-competition covenants in
Section 5(a)(ii)(A) shall terminate and be of no further force
or effect beginning at the close of business on the
Participant’s last day of employment with the applicable
AMERIGROUP Company;
(iii) at all
times while employed by any AMERIGROUP Company and at all times
thereafter, the Participant will maintain in strict confidence, and
will not reveal to any person or entity (except as may be required
in the ordinary course of performing the Participant’s duties
as an employee of the AMERIGROUP Company), any Confidential
Information.
(b) As used herein,
(i) The
“Covered Post-Employment Period” means the twelve
(12) month period beginning on the first day on which the
Participant is no longer employed by any AMERIGROUP Company as a
result of the Participant’s resignation or termination for
Cause and ending on the first anniversary of such date.
(ii)
“Competitor” means any entity or person that provides,
or is planning to provide, a Covered Product or Service in
competition with a Covered Product or Service that an AMERIGROUP
Company is actively developing, marketing, providing or
selling.
(iii)
“Confidential Information” means an AMERIGROUP
Company’s proprietary and/or non-public information
concerning its business and affairs, including, without limitation,
trade secrets, strategies, business plans, marketing and
advertising plans, member and provider information, employee and
personnel information, contracts, training manuals, financial
projections, budgets and non-public financial data (including,
without limitation, statements with premium revenue and/or provider
compensation terms, reports of actuaries, medical loss reports,
balance sheets and income statements).
(iv) A
“Covered Product or Service” shall mean a managed
health care product or service (A) offered or provided to any
beneficiary of and/or participant in any Medicare,
Medicare-related, Medicaid, Medicaid-related, or SSI program, any
government-funded children’s health insurance program or any
federal and/or state sponsored health care program that is
substantially similar to any of such programs, (B) offered or
provided to any beneficiary of and/or participant in any
government-funded or government sponsored health care program that
directly competes or will directly compete with any managed health
care product or service offered or being developed to be offered by
any AMERIGROUP Company or (C) that directly competes or will
directly compete with any commercial managed health care product or
service offered or being developed to be offered by any AMERIGROUP
Company.
(v) The
“Covered Area” shall consist of each city, county and
other similar governmental territory in which an AMERIGROUP Company
provides or has made material efforts to develop and provide a
Covered Product or Service to its members, if in the course of the
Participant’s employment with an AMERIGROUP Company he or she
(A) has provided services to an AMERIGROUP Company with
respect to the Covered Products or Services in such city, county or
governmental territory, or (B) reviewed or discussed
Confidential Information of an AMERIGROUP Company with respect to
the Covered Product or Service in such city, county or governmental
territory.
(c) The Participant agrees that
any breach by the Participant of the covenants made in Section 5(a)
may cause irreparable damage to one or more of the AMERIGROUP
Companies and that in the event of such breach each AMERIGROUP
Company shall have, in addition to any and all remedies of law, the
right to an injunction, specific performance or other equitable
relief to prevent the violation of the Participant’s
obligations hereunder. The Participant agrees that any such
AMERIGROUP Company may seek and obtain injunctive relief without
posting an injunction bond. The Participant hereby acknowledges and
agrees that the Participant will have access to confidential and
proprietary information and trade secrets concerning the AMERIGROUP
Companies during the Participant’s employment and that th
