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Amendment to the Employment
Agreement
Between NationsHealth, Inc. and Tim Fairbanks
THIS AMENDMENT is dated as of December 23, 2008, between
NationsHealth, Inc., a Delaware corporation (the
“Company”), and Tim Fairbanks (the
“Executive”).
WHEREAS , the Company and the Executive are parties to
an employment agreement dated May 14, 2008 (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:
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1.
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The
following sentence is added after the first sentence of
Section 3(b):
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“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.”
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2.
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The
word “elect” replaces the phrase “are eligible to
receive” in Section 4(b).
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3.
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The
following is added after the last sentence in section
4(b):
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“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 employee. If the Company is unable to
provide such coverage under its group policy, it shall use
commercially reasonable efforts to secure and 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.”
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4.
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The
following is added at the end of Section 4(d):
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“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.”
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5.
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The
following replaces the first sentence of Section&nbs
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