Exhibit 10.5
EXECUTIVE CONSULTING AGREEMENT
EXECUTIVE CONSULTING AGREEMENT, made as of the 1st day of January
2002, by and between NBTY, INC. (the "Company") and XXXXXXX MANAGEMENT
ASSOCIATES, INC., a Florida corporation.
W I T N E S S E T H:
WHEREAS, XXXXXX XXXXXXX was the founder of the Company and has
previously served as Chairman of the Board, President and Chief Executive
Officer of the Company,
WHEREAS, XXXXXX XXXXXXX'x services have been instrumental to the
growth and development of the Company,
WHEREAS, management of the Company recognizes that his services as an
Executive Consultant to the Company will provide additional depth and
experience to management,
WHEREAS, XXXXXX XXXXXXX has agreed to continue to make his services
available to the Company through his consulting company, Xxxxxxx Management
Associates, Inc. ("RMA"), and
WHEREAS, the Company desires to retain the unique experience,
background, ability and services of XXXXXX XXXXXXX as an Executive
Consultant from the effective date hereof.
NOW, THEREFORE, in consideration of the mutual promises hereinafter
contained and for other good and valuable consideration, the parties agree
as follows:
1. Retention. The Company hereby retains RMA to provide the
services of XXXXXX XXXXXXX and XXXXXX XXXXXXX hereby accepts the engagement
of Executive Consultant from January 1, 2002 through December 31, 2002.
2. Duties. During the period of this Agreement, XXXXXX XXXXXXX
shall devote such amount of his time and energies as he may deem necessary
and, if elected, shall serve as a Director of the Company and shall perform
duties customarily incident thereto and such other duties as may from time
to time be assigned to him by the Board of Directors.
3. Executive Consulting Compensation.
(a) During the period of this Agreement, the Company shall pay to
XXXXXX XXXXXXX, through RMA, a fee ("Consulting Fee"), the amount of which
shall be fixed by the Board of Directors of the Company, from time to time
during such period, provided that, in no event shall XXXXXX XXXXXXX'x
Consulting Fee be at a rate lower than Thirty Three Thousand Three Hundred
Thirty Three Dollars ($33,333.00) per month. Such Consulting Fee shall be
paid to XXXXXX XXXXXXX on a monthly basis.
(b) Benefits. XXXXXX XXXXXXX shall also be provided by the Company
with such insurance benefits (including life and medical insurance) as the
Company generally provides for any group or class of executives of which
XXXXXX XXXXXXX would have been a member had he been employed by the
Company.
4. Disability. In the event XXXXXX XXXXXXX shall become disabled
during the period of this Agreement, his Consulting Fee shall continue at
the same rate that it was on the date of such disability. If XXXXXX XXXXXXX
shall receive any disability payments from any insurance policy paid for by
the Company, the payments to XXXXXX XXXXXXX during any period of disability
shall be reduced by the amount of disability payments received by XXXXXX
XXXXXXX under such insurance plans or policies. For the purposes of this
Agreement, disability shall mean mental or physical illness or condition
rendering XXXXXX XXXXXXX incapable of performing his normal consulting
duties with the Company.
5. Expenses. It is recognized that, during the term of this
Agreement, XXXXXX XXXXXXX will have to incur certain out-of-pocket expenses
in connection with the services to be rendered hereunder. If XXXXXX XXXXXXX
does incur such expenditures for travel, lodging, entertainment and the
like, the Company will reimburse XXXXXX XXXXXXX for such expenditures.
6. Non-Competition. In consideration for this Agreement, RMA and
XXXXXX XXXXXXX agree not be engaged in any business or enterprise which
competes with the present business of the Company during the term of this
Agreement.
7. Binding Effect. This Agreement shall inure to the benefit of,
and be binding upon, the Company, its successors and assigns, including,
without limitation, any person, partnership, company or corporation which
may acquire substantially all of the Company's assets or business or with
or into which the Company may be liquidated, consolidated, merged or
otherwise combined, and shall inure to the benefit of, and be binding upon
the Company, RMA and XXXXXX XXXXXXX, his heirs, distributees, personal
representatives, its successors and assigns.
8. Waiver. Failure to either party to insist on any one or more
instances upon performance or any terms or conditions of this Agreement
shall not be construed a waiver of future performance of any such term,
covenant or condition but the obligations of either party with respect
thereto shall continue in full force and effect.
9. Entire Agreement. This Agreement supersedes all previous
understandings and agreements between XXXXXX XXXXXXX and the Company and
2
contains the entire understanding and agreement between the parties with
respect to the subject matter hereof.
10. Vesting of Rights. Since RMA and XXXXXX XXXXXXX will render
valuable services to the Company in reliance upon this Agreement, the
rights and obligations created hereunder are hereby vested, and may not be
revoked, rescinded, modified or amended by any subsequent action of the
Board of Directors of the Company. This Agreement cannot be amended,
modified or supplemented in any respect except by a subsequent written
agreement entered into by both parties.
11. Applicable Law. This Agreement shall be construed and enforced
according to the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
the day and year first above written.
XXXXXXX MANAGEMENT NBTY, INC.
ASSOCIATES, INC.
By: /s/ Xxxxxx Xxxxxxx By: /s/ Xxxxxx Xxxxx
----------------------------------- ------------------------------------
Name: Xxxxxx Xxxxxxx Name: Xxxxxx Xxxxx
Title: President Title: President
Agreed and Consented:
/s/ Xxxxxx Xxxxxxx
-----------------------------------
XXXXXX XXXXXXX, individually
3
