Ex-10.6 Consent and Waiver 2/28/05



 






CONSENT AND WAIVER




     CONSENT AND WAIVER dated as of February 28, 2005, among NationsHealth, Inc. (the
“Company”) and the stockholders of the Company named on the signature pages hereto
(collectively, the “Stockholders”).



     WHEREAS, concurrently herewith, the Company is entering into that certain Investment Unit
Purchase Agreement (the “Unit Purchase Agreement”) by and among, the Company, NationsHealth
Holdings, L.L.C., a Florida limited liability company and a wholly-owned subsidiary of the Company
(“NH LLC”), United States Pharmaceutical Group, L.L.C., a Delaware limited liability
company and an indirect wholly-owned subsidiary of the Company (“USPG” and together with
the Company and NH LLC, the “Issuers”), and MHR Capital Partners LP, OTQ LLC and MHR
Capital Partners (100) LP (the “Investors”), pursuant to which the Issuers will sell to the
Investors, and the Investors will purchase from the Issuers, investment units consisting in the
aggregate of (x) $15,000,000 in principal amount of 7 3/4% Convertible Secured Notes and (y)
1,785,714 shares of common stock, $0.0001 par value per share, of the Company;



     WHEREAS, concurrently herewith, the parties to the Unit Purchase Agreement are entering into
that certain Registration Rights Agreement (the “New Registration Rights Agreement”);



     WHEREAS, the Company and certain stockholders entered into that certain Registration Rights
Agreement of July 22, 2003, as amended on March 9, 2004 (the “First Existing Registration
Rights Agreement”);



     WHEREAS, the Company and certain stockholders entered into that certain Registration Rights
Agreement of March 9, 2004, as amended on June 2, 2004 (the “Second Existing Registration
Rights Agreement”, and together with the First Existing Registration Rights Agreement, the
“Existing Registration Rights Agreements”);



     WHEREAS, under Section 6.9 of each of the Existing Registration Rights Agreements, any
provision of each such Existing Registration Rights Agreement may be amended or waived only by a
written instrument, that refers specifically to such Existing Registration Rights Agreement and is
executed by the party waiving such right or rights;



     WHEREAS, the Stockholders wish to waive certain rights under the Existing Registration Rights
Agreements and execute this Consent and Waiver to induce the Investors to invest in the Company
pursuant to the Unit Purchase Agreement; and



     NOW, THEREFORE, for good and valuable consideration the receipt of which is hereby
acknowledged, and intending to be legally bound, the parties hereby agree as follows:



     1. Subject to the consummation of the transactions contemplated by the Unit Purchase
Agreement, the Stockholders hereby agree and consent to the execution and performance by the
Company of the New Registration Rights Agreement and hereby agree that, notwithstanding anything to
the contrary in the Existing Registration Rights Agreements, the New Registration Rights Agreement
shall control the allocation of rights as among the Investors,



 









 




on the one hand, and the Stockholders and the Company, on the other hand, and the Existing
Registration Rights Agreements shall control the allocation of rights as among the Stockholders and
the Company.




     2. The Company and the Stockholders hereby consent to, and waive the lock-up provisions set
forth in Section 2.4 of the Second Existing Registration Rights Agreement in respect of, the
transfer by RGGPLS Holding, Inc. and GRH Holdings, L.L.C. of an aggregate of 1,611,068 shares of
common stock of the Company to USPG, provided that such shares are thereafter included in the Units
sold by the Issuers to the Investors pursuant to the Unit Purchase Agreement.



     3. The Company and the Stockholders hereby agree to amend Section 2.2.2(i) of the Second
Existing Registration Rights Agreement to have the following clause (C) replace the existing clause
(C) and to add the following clause (D): “(C) third, to the extent that the Maximum Number of
Shares has not been reached under the foregoing clauses (A) and (B), additional shares of Common
Stock, if any, as to which registration is requested by any of the Stockholders, to be allocated
pro rata based on the number of shares for which such Stockholders have requested
registration; and (D) fourth, to the extent that the Maximum Number of Shares has not been reached
under the foregoing clauses (A), (B) and (C), the shares of Common Stock, if any, as to which
registration has been requested pursuant to written contractual piggy-back registration rights
which such other shareholders desire to sell that can be sold without exceeding the Maximum Number
of Shares.”



     4. Except as specified herein, the terms and provisions of the Existing Registration Rights
Agreements will continue to remain in full force and effect.



     5. This Consent and Waiver may be executed in one or more counterparts, all of which shall be
considered one and the same instrument.



     6. This Consent and Waiver shall be governed by, and construed in accordance with, the laws of
the State of New York, without giving effect to any conflict or choice of law provision which would
require the application of the laws of any other jurisdiction.



[signature page follows]




 









 





     IN WITNESS WHEREOF, the parties have caused this Consent and Waiver to be duly executed as of
the date first written above.



	 	 	 	 	 
	 	 	COMPANY:
	 
	 	 	 	 
	 	 	NATIONSHEALTH, INC., a Delaware corporation
	 
	 	 	 	 
	

	 	By:	 	 
	 
	 	 	 	 
	

	 	 	 	/s/ Glenn Parker


Name: Glenn Parker, M.D.

Title:
	 
	 	 	 	 
	 
	 	 	 	 
	 	 	STOCKHOLDERS:
	 
	 	 	 	 
	 
	 	 	 	 
	 	 	/s/ Arthur Spector



Arthur Spector
	 
	 	 	 	 
	 
	 	 	 	 
	 	 	/s/ Jeremy D. Spector


Spector Family Trust

Name: Jeremy D. Spector

Title: Co-Trustee
	 
	 	 	 	 
	 
	 	 	 	 
	 	 	/s/ Robert E. Keith


Robert E. Keith, Jr.
	 
	 	 	 	 
	 
	 	 	 	 
	 	 	/s/ Don K. Rice


Don K. Rice
	 
	 	 	 	 
	 
	 	 	 	 
	 	 	/s/ Heinz C. Schimmelbusch


Heinz C. Schimmelbusch






 









 





	 	 	 	 	 	 	 	 	 
	 	 	/s/ J. Brian O’Neill


J. Brian O’Neill
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	RGGPLS HOLDING, INC.
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Glenn Parker


Name: Glenn M. Parker, M.D.

Title: President
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	GRH HOLDINGS, L.L.C.
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	Viaura Holdings, Ltd.
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	Viaura, Inc.
	 
	 	 	 	 	 	 	 	 
	

	 	 	 	 	 	By:
	 	/s/ Michael Gusky



Name: Michael Gusky

Title: President
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	BECTON, DICKINSON AND COMPANY
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ William Marshall



Name: William Marshall

Title: