Exhibit 10.1
SEPARATION AGREEMENT AND GENERAL
RELEASE
This
Separation Agreement and General Release (the
“AGREEMENT”) is entered into this 5th day of
October 2006 between Gregory Couto (“Couto”) and
NationsHealth, Inc. (“the Company” or
“NationsHealth”) (collectively the
“Parties”).
WHEREAS, the Parties have agreed that Couto will
resign from employment with the Company, effective as of the
Separation Date, and that the terms of this AGREEMENT shall
supersede the Employment Agreement between Couto and the Company,
dated April 13, 2005 (“the Employment Agreement”),
unless otherwise stated herein;
WHEREAS, the Parties agree that Couto has made
valuable contributions to the Company and that the Company will
provide the separation benefits described in this AGREEMENT in
exchange for a release of claims against the Company, including a
release of any obligations of the Company under the Employment
Agreement;
NOW,
THEREFORE, in consideration of the promises and conditions set
forth herein, Couto and the Company agree as follows:
1. Couto has resigned from employment with
the Company and from all positions that Couto holds at the Company,
effective April 26, 2006 (the “Separation Date”).
Couto shall deliver or return to the Company, on or before the
Separation Date, all documents, computer tapes and disks, records,
lists, data, drawings, prints, notes, and written information (and
all copies thereof) furnished by the Company and its subsidiaries
or affiliates or prepared by Couto in the course of Couto’s
employment by the Company and its subsidiaries or
affiliates.
2. Couto and his spouse and dependents
shall be eligible to elect health care continuation
(“COBRA”) coverage under the Company’s group
health plan, subject to their paying the applicable COBRA premium,
which shall be reimbursed by the Company, in accordance with the
terms of the group health plan applicable in the case of a
voluntary resignation; and
3. Following the Effective Date as set
forth in paragraph 10 below, the Company shall provide to Couto a
lump-sum separation payment in the amount of ninety thousand seven
hundred seventy four dollars ($90,774.00), of which $60,774 was
paid on September 14, 2006, subject to applicable withholding
as required by law. Couto acknowledges and agrees that the payment
described in this paragraph 3 exceeds any legal payment obligations
of NationsHealth and provides valid consideration for the release
contained in paragraph 4 of this AGREEMENT.
4. In consideration of the payment and
mutual promises and covenants set forth in this AGREEMENT, Couto,
on behalf of himself, his heirs, successors, current and former
agents, representatives, attorneys, assigns, executors,
beneficiaries, and administrators, hereby releases and forever
discharges NationsHealth and each and all of its current and former
parents, divisions, subsidiaries and affiliates, attorneys,
shareholders, employees, representatives and agents (collectively
“the NationsHealth Group”) and each and all of their
predecessors, successors, assigns, officers, directors, from any
and all charges, complaints, claims, liabilities,
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obligations, promises,
agreements, controversies, damages, actions, causes of action,
suits, rights, demands, costs, losses, debts and expenses
(including attorneys’ fees) of any nature whatsoever, whether
in law or in equity, which Couto now has or ever may have had
against the NationsHealth Group, including, but not limited to, any
and all matters related in any way to Couto’s equity interest
in NationsHealth and Couto’s employment with or separation
from NationsHealth, as well as all claims under Title VII of the
Civil Rights Act of 1964, the Civil Rights Act of 1991, the
Americans with Disabilities Act, the Age Discrimination in
Employment Act, the Older Workers Benefit Protection Act, the
Employee Retirement Income Security Act of 1974, the National Labor
Relations Act, the Immigration Reform and Control Act, the Workers
Adjustment and Retraining Notification Act, the Occupational Safety
and Health Act, the Family and Medical Leave Act, the Florida Civil
Rights Act, the Florida Minimum Wage Law, any other federal, state,
or local anti-discrimination, wage or benefits laws, and any other
contractual or tort claims relating to Couto’s equity
interest in NationsHealth and Couto’s employment or
separation from employment with NationsHealth. Notwithstanding the
foregoing, nothing in this provisions shall waive or supersede the
Parties’ obligations under this AGREEMENT.
5. The Parties agree that there are no sums
owed to either Party for business expenses incurred on behalf of
the Company, for the use of Company credit cards or automobiles, or
in connection with the payment of emergency expenses associated
with Hurricane Wilma.
6. Couto agrees that he and his agents will
not publicize or disclose, directly or indirectly, the existence of
this AGREEMENT, the terms thereof, or the circumstances giving rise
to the AGREEMENT, to anyone other than Couto’s attorney,
accountant, financial advisor and members of his immediate family
or as required by law. Couto further agrees that he will advise any
individual to whom the terms, conditions or existence of this
AGREEMENT have been disclosed of the confidentiality requirements
of this paragraph and that he will use his best efforts to ensure
that the confidentiality requirements of this paragraph are
complied with in all respects.
7. Couto understands and agrees that his
covenant to comply with the following non-competition and
non-solicitation obligations serves as material inducement for the
Company to enter into this AGREEMENT and that his obligations under
this paragraph 7 survive the termination of this AGREEMENT.
Further, Couto understands and agrees that his breach of the
obligations set forth in this paragraph 7 would be a material
breach of this AGREEMENT, entitling the Company to all available
remedies at law and equity, including, but not limited to,
recoupment of the payments made to Couto under paragraph 3 of this
AGREEMENT.
(a) Non-Competition. Couto acknowledges and
recognizes his possession of Confidential Information (as defined
in his Employment Agreement with the Company) and acknowledges the
highly competitive nature of the business of the Company and its
affiliates and subsidiaries and accordingly agrees that, in
consideration of the promises contained herein, he will not, prior
to April 26, 2007 (the “Post-Employ
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