Indemnification Agreement Between Heath Schiesser And Wellcare Health Plans, Inc.

Exhibit 10.2




WELLCARE HEALTH PLANS, INC.



INDEMNIFICATION AGREEMENT





This INDEMNIFICATION AGREEMENT (this "Agreement") is entered into as of May 8 , 2009, and effective as of January 25, 2008 (the "Effective Date"), by and between WellCare Health Plans, Inc., a Delaware corporation (the "Company"), and Heath Schiesser, President and Chief Executive Officer of the Company (" 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 or advancement of expenses agreement with the Company that remains in full force and effect, including, without limitation, that Affirmation and Undertaking of Officer of WellCare Health Plans, Inc. executed by Indemnitee on December 17, 2007 (a "Previous Agreement"), the Company desires that such Previous Agreement shall govern the indemnification, advancement of expenses and other related 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.



(e) Advancement of Expenses




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.



(b) Notice by Indemnitee




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.



(d) Notice to Insurers




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



(a) Scope



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 Expe ...