This excerpt taken from the NTY 8-K filed Nov 19, 2009.
Item 1.01 Entry into a Material Definitive Agreement.
On November 16, 2009, Bed Bath & Beyond Inc. (the Company) entered into an amendment and restatement of its Supplemental Executive Retirement Benefit agreement, dated January 11, 2006, with Mr. Steven H. Temares, the Companys Chief Executive Officer (the SERP), and a related escrow agreement (with the amendment and restatement and the related escrow agreement being hereinafter collectively referred to as the Amendment).
The Amendment was entered into principally to address the requirements of Section 409A of the Internal Revenue Code. Under the SERP as previously in effect, in the event of a voluntary termination of employment by Mr. Temares after the twentieth anniversary of Mr. Temares employment with the Company (June 12, 2012), Mr. Temares would have, in general, been entitled to receive in each year over a 10-year period an amount equal to 50% of his annual base salary, payable in accordance with the Companys normal payroll practices. Under the Amendment, the Company would instead, six months after Mr. Temares voluntary termination, pay to Mr. Temares an amount equal to 1/10 of the present value of the installment payments described above, and pay into escrow 9/10 of such present value, in each case, net of all taxes required to be withheld as a result of the payment (including federal and state income taxes and all other applicable withholdings), with, in general, the amount in escrow being paid to Mr. Temares in equal installments on the first 9 anniversaries of the payment into escrow. Consistent with the SERP as previously in effect, payment of the escrow amount to Mr. Temares would be subject to acceleration upon Mr. Temares death or a Change of Control of the Company (as defined in the SERP). Under a separate agreement, Mr. Temares is subject to a non-competition restrictive covenant during the period of his employment with the Company and for one year thereafter. Under the SERP as previously in effect, if Mr. Temares breaches the restrictive covenant (or engages in activities after the one-year non-competition period that would have constituted a breach during the non-competition period), any future payments during the 10-year installment payment period would have been forfeited. Under the Amendment, in the event of any such breach (or activities after the one-year non-competition period that would have constituted a breach during such period), any remaining amount in escrow would be forfeited by Mr. Temares and repaid to the Company. Any such forfeiture would leave Mr. Temares in substantially the same position as he was under the SERP as previously in effect. Because any amount deposited into escrow under the Amendment would be net of the taxes imposed on the payment into escrow (including any amounts which may be subsequently forfeited by Mr. Temares and repaid to the Company), any such forfeiture would likely not make the Company whole for the taxes previously paid with respect to the forfeited amounts. Accordingly, under the Amendment, Mr. Temares has agreed that in the event any amount in escrow is forfeited, he will use commercially reasonable efforts to obtain a refund of applicable taxes and remit such refund to the Company and the Company has agreed to reimburse Mr. Temares, or to pay on his behalf, reasonable legal fees and expenses incurred in connection with such a refund request.
As noted above, the Amendment has been drafted to comply with the requirements of Section 409A of the Internal Revenue Code and the regulations and guidance issued thereunder; however, in light of the complexities and uncertainties surrounding Section 409A, the Amendment also provides that Mr. Temares will be protected from any impact resulting from the possible application of Section 409A to the terms of the SERP such that Mr. Temares will be entitled to a payment that places him in that same economic position he would have been in under the SERP prior to the application of Section 409A.
The foregoing description of the Amendment is a summary only, and is qualified in its entirety by reference to Exhibits 10.1 and 10.2, respectively, to this Current Report on Form 8-K, which are incorporated herein by reference.
This excerpt taken from the NTY 8-K filed Jun 10, 2008.
ITEM 1.01. ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT
NBTY, Inc. submitted the best and highest bid at an auction was held on June 9, 2008 for the purchase of substantially all of the assets of Leiner Health Products, Inc. (Leiner). In connection with the auction, NBTY entered into an amended and restated Asset Purchase Agreement (the Agreement) for the purchase of substantially all of the assets of Leiner for approximately $371 million plus assumption of certain liabilities. The Agreement provides for a downward purchase price adjustment if the amount of actual working capital at the closing is less than $110 million, and for an upward purchase price adjustment if the amount of actual working capital at closing is greater than $110 million. The Agreement is subject to the approval of the bankruptcy court presiding over Leiners chapter 11 bankruptcy proceedings. The purchase transaction is also subject to regulatory and other customary approvals and customary closing conditions. NBTY expects to consummate the acquisition by no later than September 2008.
There is no material relationship between NBTY and Leiner other than in respect of the Agreement and the prior Asset Purchase Agreement entered into by NBTY and Leiner on May 30, 2008 (the Initial Agreement), as previously disclosed in NBTYs report on Form 8-K dated May 30, 2008.
NBTY issued a press release on June 10, 2008 which announced the execution of the Agreement. A copy of the press release is filed as Exhibit 99.1.
This excerpt taken from the NTY 8-K filed May 30, 2008.
ITEM 1.01. ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT
On May 30, 2008, NBTY, Inc., entered into an Asset Purchase Agreement (the Agreement) for the purchase of substantially all of the assets of Leiner Health Products, Inc. (Leiner) for $230 million plus assumption of certain liabilities. The Agreement is subject to higher or better offers that may be submitted by competing bidders in connection with a process conducted under the supervision of the bankruptcy court presiding over Leiners chapter 11 bankruptcy case. If a higher or better offer is submitted, an auction will be conducted on June 9, 2008, in which case the terms of the Agreement may change.
The Agreement provides for a purchase price adjustment downward if the amount of actual working capital at closing is less than $116.5 million, and for a purchase price adjustment upward if the amount of actual working capital at closing is greater than $126.5 million. Simultaneously with the execution of the Agreement, NBTY and Leiner also entered into an escrow agreement pursuant to which a portion of the purchase price is held in escrow until the closing of the purchase transaction. In addition to the bankruptcy court process, the transaction is subject to regulatory and other customary approvals. If no higher or better offer is submitted by a competing bidder, the purchase transaction contemplated by the Agreement is expected to close no later than September, 2008.
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Dated: May 30, 2008