WELLCARE HEALTH PLANS, INC.
2004 EQUITY INCENTIVE PLAN
AMENDED AND RESTATED
NON-QUALIFIED STOCK OPTION AGREEMENT
FOR
CHARLES G. BERG
WHEREAS, on
January 25, 2008, WellCare Health Plans, Inc. (the
“Company”) granted to Charles G. Berg (the
“Optionee”), an option (the “Option”) to
purchase up to 300,000 shares of the Company’s Common Stock,
$0.01 par value per share (the “Shares”), at an
exercise price per share equal to $43.12 (the “Option
Price”), as evidenced by that certain Non-Qualified Stock
Option Agreement dated as of January 25, 2008 between the
Company and the Optionee (the “Non-Qualified Stock Option
Agreement”);
WHEREAS, to
accurately reflect the intent of the parties as expressed in the
employment agreement dated January 25, 2008 between the
Optionee and the Company (the “Employment Agreement”)
that, in the event of any termination of employment by the Optionee
without Good Reason on or after January 25, 2010, the Option
would remain exercisable for its full ten-year term, the Optionee
and the Company now desire to amend and restate the Non-Qualified
Stock Option Agreement by entering into this Amended and Restated
Non-Qualified Stock Option Agreement (this “Agreement”)
in order to clarify the post-termination exercise period of the
Option in the event of any such termination of
employment;
NOW, THEREFORE, in
consideration of the mutual promises, covenants and agreements set
forth herein, the parties hereto agree as follows:
1. Grant of
Option . The Company granted, as of January 25, 2008, to
the Optionee an Option to purchase up to 300,000 Shares at 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.
However, in the event of any conflict between the provisions in
this Agreement and the Plan, the provisions of this Agreement shall
govern.
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.
3. Exercise
Schedule . Except as otherwise provided in Sections 6 and
7 of this Agreement, the Option will become vested and exercisable
in installments as provided below, which shall be cumulative. To
the extent that the Option has become vested with respect to a
percentage of Shares as provided below, the Option may thereafter
be exercised by the Optionee, in whole or in part, at any time or
from time to time prior to the expiration of the Option as provided
herein. The Option shall vest and become exercisable in eight
(8) equal quarterly installments beginning three
(3)
months after
January 25, 2008 and continuing quarterly thereafter (each, a
“Vesting Date”), with the last quarterly installment
vesting and becoming exercisable on January 25, 2010, provided
(except as otherwise set forth below) that the Optionee’s
employment or service with the Company and its Subsidiaries during
the period beginning on January 25, 2008 (the “Vesting
Commencement Date”) continues through and on the applicable
Vesting 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 exercisable and the
provisions of the preceding sentence shall cease to
apply.
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 set forth below, 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) arrangements that are satisfactory to the Committee in its
sole discretion have been made for Optionee’s payment to the
Company 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
delivery of outstanding shares of Common Stock with a Fair Market
Value on the date of exercise equal to the aggregate exercise price
payable with respect to the Options’ exercise, (c) 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, (d) 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 (e) by any
combination of the foregoing.
In the event the
Optionee elects to pay the Option Price pursuant to clause
(b) above, (i) only a whole number of share(s) of Common Stock
(and not fractional shares of Common Stock) may be tendered in
payment, (ii) the Optionee must present evidence acceptable to
the Company
2
that the
Optionee has owned any such shares of Common Stock tendered in
payment of the Option Price (and that such tendered 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 Optionee, be
made either by (A) physical delivery of the certificate(s) for
all such shares of Common Stock tendered in payment of the Option
Price, accompanied by duly executed instruments of transfer in a
form acceptable to the Company, or (B) direction to the
Optionee’s broker to transfer, by book entry, such shares of
Common Stock fr
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