form8-kalternative.htm
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of
Report (Date of earliest event reported): May 8,
2009
WELLCARE
HEALTH PLANS, INC.
(Exact
name of registrant as specified in its charter)
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Delaware
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001-32209
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47-0937650
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(State
or other jurisdiction
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(Commission
File Number)
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(IRS
Employer
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of
incorporation)
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Identification
No.)
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8735
Henderson Road, Renaissance One
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Tampa,
Florida
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33634
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(Address
of principal executive offices)
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(Zip
Code)
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Registrant’s
telephone number, including area code:
(813) 290-6200
Not
Applicable
(Former
name or former address, if changed since last report.)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General Instruction A.2. below):
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Item
1.01 Entry
into a Material Definitive Agreement.
On May 8, 2009, the Board of Directors
(the “Board”) of
WellCare Health Plans, Inc. (the “Company”)
approved a new form of indemnification agreement (the “2009
Indemnification Agreement”) to be entered into by the Company and (i)
each member of the Board, (ii) each member of the Company’s Disclosure Committee
(including all of the Company’s named executive officers who are currently
employed by the Company) and (iii) such other members of
senior management as the Company’s Chief Executive Officer deems appropriate
from time to time (each such executing individual, an “Indemnitee”).
The 2009 Indemnification Agreement, by
its terms, becomes effective upon execution and governs the indemnification
rights and obligations of the Indemnitee and the Company with respect to
Proceedings (as defined in the Indemnification Agreement) that arose or may
arise from actual or alleged events, occurrences, acts or omissions occurring
after the effective date. To the extent that an Indemnitee has
previously executed an indemnification agreement with the Company that remains
in full force and effect, including the Company’s form of indemnification
agreement attached as Exhibit 10.24 to the Company’s amended Registration
Statement on Form S-1 filed with the U.S. Securities and Exchange Commission
(the “SEC”) on
June 8, 2004, the previous indemnification agreement will govern the
indemnification rights and obligations of the Indemnitee and the Company with
respect to Proceedings that arose or may arise from actual or alleged events,
occurrences, acts or omissions occurring prior to the effective date of the 2009
Indemnification Agreement.
Pursuant to the 2009 Indemnification
Agreement, the Company is required to, among other things, indemnify the
Indemnittee against losses incurred in connection with certain Proceedings that
relate to the Indemnitee’s Corporate Status (as defined in the Indemnification
Agreement, which such definition includes an Indemnitee’s status as a director,
officer or employee of the Company). The Company is also
required to indemnify for expenses incurred by the Indemnittee if an Indemnitee,
by reason of his or her Corporate Status, is a witness in any
Proceeding. Further, the Company is required to indemnify for
expenses incurred by an Indemnittee in defense of a Proceeding to the extent the
Indemnitee has been successful on the merits or otherwise. Finally,
if the Indemnitee is involved in certain Proceedings as a result of the
Indemnitee’s Corporate Status, the Company is required to advance the
Indemnitee’s reasonable expenses incurred in connection with such Proceeding,
subject to the requirement that the Indemnitee repay the expenses if it is
ultimately determined that the Indemnitee is not entitled to be
indemnified.
The 2009 Indemnification Agreement
contains certain exceptions to the Company’s obligation to indemnify an
Indemnitee or advance expenses. Among other exceptions, the Company
is not obligated to indemnify an Indemnitee for losses incurred in connection
with any Proceeding if a determination has not been made by the Reviewing Party
(as defined in the 2009 Indemnification Agreement) in the specific case that the
Indemnitee has satisfied any standards of conduct required as a condition to
Indemnification under Section 145 of the Delaware General Corporation
Law.
The 2009 Indemnification Agreement also
requires the Company to, from time to time, make a good faith determination
whether or not it is practicable to obtain and maintain officers’ and directors’
liability insurance and, to the extent the Company obtains such insurance,
an
Indemnitee
who is an officer or member of the Board is required to be named as an
insured. However, the Company is not obligated to obtain or maintain
such insurance if, among other things, it determines in good faith that the
insurance is not reasonably available or the premium costs for the insurance are
disproportionate to the amount of coverage provided.
On May 8, 2009, Heath Schiesser, the
Company’s President and Chief Executive Officer, executed an indemnification
agreement with the Company substantially in the form of the 2009 Indemnification
Agreement, except as noted below (the “CEO
Indemnification Agreement”). The CEO Indemnification
Agreement, by its terms, is effective as of January 25, 2008, the first day of
Mr. Schiesser’s employment as President and Chief Executive Officer of the
Company. The CEO Indemnification Agreement also provides that Mr.
Schiesser will be entitled to the rights of insurance set forth in his
employment agreement, a copy of which was attached as Exhibit 10.4 to the
Company’s Current Report on Form 8-K filed with the SEC on January 31, 2008, and
that, to the extent there is any conflict with respect to rights to insurance
between the CEO Indemnification Agreement and the employment agreement, the
conflict will be resolved in a manner most favorable to Mr.
Schiesser.
In
addition, on May 14, 2009, Charles Berg, the Company’s Executive Chairman,
executed an indemnification agreement with the Company substantially in the form
of the 2009 Indemnification Agreement, except as noted below (the “Chairman
Indemnification Agreement”). The Chairman Indemnification
Agreement provides that the rights to indemnification granted to Mr. Berg under
the Chairman Indemnification Agreement are in addition to, not instead of, the
rights set forth in his letter agreement, a copy of which was attached as
Exhibit 10.5 to the Company’s Current Report on Form 8-K filed with the SEC on
January 31, 2008.
The rights under the 2009
Indemnification Agreement, the CEO Indemnification Agreement and the Chairman
Indemnification Agreement will continue after an Indemnitee is no longer a
director, officer or employee of the Company so long as the Indemnitee is
subject to any possible Proceeding by reason of the circumstances discussed
above, and will survive until the conclusion of any such
Proceeding.
The foregoing descriptions are
summaries only and do not purport to be complete descriptions of the 2009
Indemnification Agreement, the CEO Indemnification Agreement and the Chairman
Indemnification Agreement. The foregoing descriptions are qualified
in their entirety by reference to the 2009 Indemnification Agreement, the CEO
Indemnification Agreement and the Chairman Indemnification Agreement, copies of
which are attached hereto as Exhibits 10.1, 10.2 and 10.3,
respectively.
Item
9.01 Financial
Statements and Exhibits.
(d) Exhibits.
The
following exhibits are filed as part of this report:
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, as amended, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
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Date: May
14, 2009
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WELLCARE
HEALTH PLANS, INC.
/s/ Heath
Schiesser
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Heath
Schiesser
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President
and Chief Executive Officer
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Exhibit
Index