Amendment to the Employment Agreement Between NationsHealth, Inc. and Glenn M. Parker, M.D.
Exhibit 10.71
THIS AMENDMENT is dated as of December 23, 2008, between NationsHealth, Inc., a Delaware
corporation (the “Company”), and Xxxxx X. Xxxxxx, M.D. (the “Executive”).
WHEREAS, the Company and the Executive are parties to an employment agreement dated March 9,
2004 (the “Employment Agreement”);
WHEREAS, the Internal Revenue Service has issued final regulations under Section 409A of the
Internal Revenue Code of 1986, as amended (the “Code”); and
WHEREAS, the Executive and the Company have agreed to amend the Employment Agreement as set
forth below in order to comply with the Section 409A final regulations.
NOW, THEREFORE, the Company and the Executive amend the Employment Agreement, effective as of
January 1, 2009 as follows:
| 1. | The following sentence is added after the first sentence of Section 3(b): |
“Any bonus shall be paid by the Company in the calendar year immediately following
the completion of the performance period as soon as practicable following the
completion of the audit of the Company’s financial statements, but in no event later
than December 31st of such year.”
| 2. | The following sentence is added after the second sentence of Section 3(c): |
“Any incentive compensation payment shall be paid by the Company in the calendar
year immediately following the completion of the performance period as soon as
practicable following the completion of the audit of the Company’s financial
statements, but in no event later than December 31st of such year.”
| 3. | The word “elect” replaces the phrase “are eligible to receive” in Section 4(b). |
| 4. | The following is added after the last sentence in Section 4(b): |
“The Company and the Executive intend that the first 18 months of coverage shall be
exempt from the application of Section 409A of the Internal Revenue Code of 1986, as
amended (the “Code”). Any medical coverage required after such 18 month period shall
be provided under an insurance policy in a manner that is non-taxable under the Code.
The Company may choose to provide this coverage under its group policy covering active
employees. If the Company is unable to provide such coverage under its group policy,
it shall use commercially reasonable efforts to secure an individual policy to provide
for coverage on the same basis as under the Company’s group medical plan as in effect
on the Executive’s separation from service.”
| 5. | The following is added at the end of Section 4(d): |
| “within 90 days after Executive incurs such expenses. Reimbursement will be made within 90 days of the receipt by the Company of the appropriate documentation.” |
| 6. | The phrase “an amount” is replaced with the phrase “, but in no event later than March 15th of the year following the year in which employment terminates, a lump-sum amount” in Section 5(b)(i). |
| 7. | The following sentence is added at the end of Section 5(b)(i): |
“It is intended that any payments under this Section 5(b)(i) qualify as a
short-term deferral under Treasury Regulation Section 1.409A-1(b)(4).”
| 8. | The word “elects” replaces the phrase “is eligible to receive” in Section 5(b)(ii). |
| 9. | The following sentence is added at the end of Section 5(b)(ii): |
“The Company and the Executive intend that the first 18 months of coverage shall be
exempt from the application of Section 409A of the Code. Any medical coverage required
after such 18 month period shall be provided under an insurance policy in a manner that
is non-taxable under the Code. The Company may choose to provide this coverage under
its group policy covering active employee. If the Company is unable to provide such
coverage under its group policy, it shall use commercially reasonable efforts to secure
an individual policy to provide for coverage on the same basis as under the Company’s
group medical plan as in effect on the Executive’s separation from service.”
| 10. | The following new Section 13 is added to the Employment Agreement: |
“COMPLIANCE WITH CODE SECTION 409A. This Agreement is intended to comply with the
applicable requirements of Code Section 409A and its corresponding regulations and related
guidance, and shall be administered in accordance with Section 409A to the extent Section
409A applies. Notwithstanding anything in this Agreement to the contrary, to the extent
that Code Section 409A applies to payments under any section of this Agreement, such
payments may only be made in a manner permitted by Section 409A.”
| 11. | Except as expressly modified by the terms of this Amendment, the provisions of the Employment Agreement shall continue in full force and effect. |
| 12. | This Amendment may be executed in several counterparts, each of which shall be deemed an original and which together shall constitute but one and the same instrument. |
| 13. | This Amendment shall be governed by, and construed in accordance with, the laws of the State of Florida without regard to its conflicts of law principles. |
IN WITNESS WHEREOF, the parties hereto have executed this Amendment, as of the day and year
first written above.
| NationsHealth, Inc. | ||||||
| By: | /s/ Xxx Xxxxxxxxx | |||||
| Its: | COO | |||||
| Executive | ||||||
| By: | /s/ Xxxxx Xxxxxx | |||||
