NBTY (NTY)

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 Company’s 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 Company’s 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.

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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 Leiner’s 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 NBTY’s 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.

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 Leiner’s 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.

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ITEM 1.01.            ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT

On March 31, 2008, NBTY, Inc. (the “Company”) entered into new employment agreements with our Chairman and Chief Executive Officer, Scott Rudolph, and our President and Chief Financial Officer, Harvey Kamil (the “new agreements”). The new agreements, effective as of March 1, 2008, replace their previous agreements with the Company that were entered into on October 1, 2002 and which expired on September 30, 2007. The terms of the new agreements are described below, however the descriptions are not complete and are qualified in their entirety by reference to the new agreements, copies of which are attached as Exhibits 10.1 and 10.2 to this Current Report on Form 8-K and are incorporated by reference herein.

The new agreements provide for three-year terms with automatic annual renewal unless either party gives notice of non-renewal.  The new agreements also provide for (i) a base salary of $925,000 per year and of $600,000 per year for Rudolph and Kamil, respectively (in each case, subject to increase upon annual review, but in no event shall the increase over the prior year’s base salary be less than the percentage increase in the Consumer Price Index), (ii) the opportunity to receive an annual bonus, payable in cash, with a target amount of 100% of the executive’s base salary and a maximum of 200% of the executive’s base salary, (iii) an opportunity to receive stock-based awards as determined by the Compensation Committee, (iv) the right to participate in all welfare benefit plans and programs maintained by the Company and to receive such other employment benefits as the Company may provide, including a Company-leased car at a maximum rental cost to the Company of $2,500 per month and $2,000 per month for Rudolph and Kamil, respectively.

If the executive is terminated without cause or resigns for good reason, the new agreements provide for severance equal to the sum of (i) base salary through the date of termination, (ii) three times executive’s base salary in effect immediately prior to such termination and (iii) three times the average actual annual bonus earned by executive in the three fiscal years preceding the year of termination. In addition, the Company will continue to provide health and life insurance for three years following termination and all outstanding equity incentive awards shall immediately vest and any then outstanding stock options or similar awards shall remain exercisable for a period of one year from the date of termination (or, if earlier, the end of the option term).

The new agreements also provide for gross-up payments should it be determined that any payment or distribution by the Company to or for the benefit of the executive would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code.

The new agreements contain non-competition and non-solicitation provisions that apply during the term of the agreement and for a one-year period beyond the expiration of the agreement in the case of non-competition and non-solicitation of customers and for a two-year period in the case of non-solicitation of employees.

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ITEM 1.01.            ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT

On November 28, 2007, NBTY, Inc. entered into the Sixth Amendment to the Executive Consulting Agreement with Rudolph Management Associates Inc. to extend, until December 31, 2008, the consulting services being provided to NBTY, Inc. by its founder and director, Arthur Rudolph. A copy of the Sixth Amendment is attached hereto as Exhibit 10.1 and incorporated herein by reference. The foregoing description of the Amendment is qualified in its entirety by reference to the full text of this Amendment.

ITEM 1.01.            ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT

On September 23, 2005, NBTY, Inc., a Delaware corporation (the “Company”), each domestic subsidiary of the Company (other than Solgar Holdings, Inc., Solgar, Inc. and Solgar Mexico Holdings, LLC, which will guarantee the Notes as promptly as practicable after such time that the Company would not be required to file separate financial statements for Solgar Holdings, Inc. with the Securities Exchange Commission (the “Commission”) pursuant to Rule 3-10, paragraph G of Regulation S-X as promulgated by the Commission) from time to time party thereto (the “Guarantors”) and The Bank of New York, a New York Banking Corporation, as trustee, entered into an indenture (the “Indenture”) in connection with the issuance and sale by the Company of $200,000,000 aggregate principal amount of its 7 1/8% Senior Subordinated Notes due 2015 (the “Notes”).  For a description of the material terms of the Indenture and the Notes issued thereunder, see the information set forth below under Item 2.03, which is incorporated by reference into this Item 1.01.

The Bank of New York serves as trustee under an indenture dated September 23, 1997 relating to the issuance of 8 5/8% Senior Subordinated Notes due September 15, 2007 by the Company.  The Company intends to use the net proceeds from the issuance and sale of the Notes to (i) repay $44.7 million of indebtedness outstanding under the term loan portion of the Company’s credit agreement and (ii) repurchase all of the Company’s issued and outstanding 8 5/8% Senior Subordinated Notes due September 15, 2007 pursuant to an optional redemption.

In connection with the issuance and sale of the Notes, on September 23, 2005, the Company and the Guarantors entered into a Registration Rights Agreement with the initial purchasers of the Notes.  The Registration Rights Agreement requires the Company and the Guarantors to register with the Commission notes having substantially identical terms as the Notes as part of an offer to exchange non-restricted exchange notes (the “Exchange Notes”) for the Notes. The Company and the Guarantors have agreed to use their reasonable best efforts to file a registration statement for the Exchange Notes with the Commission within 180 days after September 23, 2005 and to use their reasonable best efforts to cause such registration statement to be declared effective within 210 days after September 23, 2005.  Under certain circumstances, the Company and the Guarantors will be obligated to file a shelf registration statement with respect to the Notes.  Under the Registration Rights Agreement, if the Company and the Guarantors fail to satisfy certain filing and other obligations with respect to the exchange, the Company and the Guarantors will be obligated to pay an additional annual interest rate on the Notes of up to a maximum of 1.0% per annum.

On June 6, 2005 NBTY, Inc. entered into a purchase agreement to acquire substantially all the assets of Solgar Vitamin and Herb, a division of Wyeth Consumer Healthcare, for approximately $115 million.  Included in the acquisition are net assets of approximately $64 million.  The purchase price will be adjusted based upon the actual net assets transferred at closing. The transaction is subject to regulatory and other customary approvals and is expected to close by August 2005.

A copy of the press release issued by NBTY, Inc. on June 7, 2005 announcing it had entered into such purchase agreement is attached as Exhibit 99.1 to this Current Report on Form 8-K and is incorporated herein by reference.