|
Execution Copy
EXHIBIT
10.68
SETTLEMENT
AGREEMENT AND GENERAL RELEASE
This
Settlement Agreement and General Release (the
“AGREEMENT”) is entered into this 29th day of
May 2008 between Lewis Stone (“Stone”) and
NationsHealth, Inc. (“the Company” or
“NationsHealth”) (collectively the
“Parties”).
WHEREAS,
as a result of a reorganization of corporate functions and duties,
the Parties have agreed that circumstances exist that allow Stone
to trigger a termination for Good Reason from his role as President
and Chief Information Officer of Company pursuant to the Employment
Agreement dated March 9, 2004 between Executive and the
Company (“the Original Agreement”), which termination
for Good Reason from the President and Chief Information Officer
role shall be effective May 29, 2008 (the “Termination
Date”);
WHEREAS,
the Parties agree that Stone has provided valuable contributions to
the Company as its President and Chief Information Officer and that
the Company will provide the termination benefits described in this
AGREEMENT in exchange for a release of claims against the Company,
including a release of the Company’s obligations under the
Original Agreement with the Company;
WHEREAS,
in conjunction with the reorganization, the Parties have agreed
that Stone will not separate from the employment of the Company and
will remain on the Board of Directors of the Company and the
subsidiaries in which Stone currently serves on the Boards of
Directors of, and accept the position of Executive Vice President
of Corporate Development (“EVP of Corporate
Development”), effective May 29, 2008, and that the
terms of Stone’s employment in the position of EVP of
Corporate Development will be set forth in the Amended and Restated
Employment Agreement (the “Amended Agreement”) made as
of May 29, 2008,
NOW,
THEREFORE, in consideration of the promises and conditions set
forth herein, Stone and NationsHealth agree as follows:
1. The Parties have agreed that Stone has triggered a
termination for Good Reason and resigned from his position as
President, effective on the “Termination Date,” and
that, upon Stone’s execution of this AGREEMENT and on the
Effective Date as set forth in Paragraph 8 below,
NationsHealth shall provide the following termination benefits on
the following schedule to Stone:
(a) In accordance with the Company’s standard payroll
practices and subject to applicable withholdings as required by
law, the Company shall provide Stone with a total payment of one
million dollars ($1,000,000), paid in twenty (20) equal
installments of fifty thousand dollars ($50,000) over the
Company’s normal payroll cycle, beginning with the
May 16-31, 2008 pay period and ending with the March 1-15,
2009 pay period (which 20-payroll periods ending on March 15,
2009 shall be known as the “Severance Period” and which
payments shall be know as the “Severance Benefits”). If
the Company fails to pay all Severance Benefits before
March 15, 2009 and Stone incurs excise taxes, penalties, or
interest under Section 409A of the Internal Revenue Code, the
Company agrees to pay such excise taxes, penalties, and interest
and to indemnify Stone from any and all out-of-pocket costs
(including reasonable attorneys’ and accountants’ fees,
costs, and expenses) related to such tax, penalty, or interest
assessment.
(b) The Company shall accelerate the vesting of Stone’s
stock options, such that all stock options granted prior to the
May 15, 2008 shall vest immediately upon the Termination
Date.
Stone acknowledges and
agrees that these promises, payments and benefits described above
in this Paragraph 1 exceed any legal payment obligations of
NationsHealth and provide valid consideration for the release
contained in Paragraph 2 of this AGREEMENT.
2. In
consideration of the payment and mutual promises and covenants set
forth in this AGREEMENT, Stone, on behalf of himself, his heirs,
successors, current and former agents, representatives, attorneys,
assigns, executors, beneficiaries, and administrator, 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, 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 Stone 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
Stone’s employment with or termination as President and Chief
Information Officer of 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 Worker 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 Stone’s employment
with or termination as President and Chief Information Officer of
NationsHealth. Notwithstanding the foregoing, nothing in this
AGREEMENT shall waive or supercede the parties obligations under
this AGREEMENT or the Amended Employment Agreement.
3. Stone 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 Stone’s attorney, accountant,
financial advisor and members of his immediate family or as
required by law. Stone 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 are complied with in all
respects.
4. The Company shall indemnify and hold Stone harmless from
and against all claims, investigations, actions, awards and
judgments, including costs and attorneys’ fees, incurred by
Stone in connection with acts or decisions made by Stone in good
faith in his capacity as President and Chief Information Officer of
the Company, so long as Stone reasonably believed that the acts or
decisions were in the best interests of the Company and (with
respect to any criminal act) Stone had no reason to believe that
Stone’s conduct was unlawful. The Company further agrees to
pay the reasonable expenses of private counsel or investigators
incurred in representing Stone in any audit, inquiry, regulatory
review or similar action or proceeding covered by this
indemnification. The Company shall not settle any claim or action
or pay any award
|
