Exhibit 10.16


 


August
1, 2005


 


NBTY,
Inc.


90
Orville Drive


Bohemia,
New York  11716


Attention:  President


 


Re:          Amendment of Purchase Agreement


 


Ladies and Gentlemen:


 


Reference is made to that
certain Purchase Agreement (the “Purchase Agreement”) dated as of June
6, 2005 by and between WYETH, a Delaware corporation (“Seller”), and
NBTY, Inc., a Delaware corporation (“Buyer”).  Capitalized terms used herein that are not
defined shall have the meanings set forth in the Purchase Agreement.


 


The purpose of this letter
agreement is to confirm our mutual agreement to change the Effective Time set
forth in the Purchase Agreement from 11:59 p.m. on the Closing Date to 12:01
a.m. on the Closing Date, and to make corresponding changes with respect to the
liabilities of each Party with respect to Taxes, to supplement the definition
of Operative Agreements and to make certain amendments to the provisions of the
Agreement relating to employment of European Employees.  The undersigned hereby agree as set forth
below:


 


This letter shall confirm
our agreement that Section 3.1 of the Purchase Agreement is hereby
amended by deleting the last sentence of such Section 3.1 in its
entirety and substituting in lieu thereof the following:


 


For
purposes of this Agreement, the Closing will be treated as if it occurred at
12:01 a.m. (the “Effective Time”) on the Closing Date.


 


This letter shall also
confirm our agreement that Section 1.88 of the Purchase Agreement is
hereby amended by deleting such Section 1.88 in its entirety and substituting
in lieu thereof the following:


 


1.88         “Operative Agreements” shall mean the
(i) License Agreement, (ii) the Supply Agreement, (iii) the Transition Services
Agreement, (iv) the Leasing Agreement, (v) that certain Assignment Agreement
dated as of July     , 2005 by and among Buyer, Solgar
Holdings, Inc., a Delaware corporation (“Holdings”), certain
wholly-owned subsidiaries of Holdings as listed on the signature pages thereto
and Seller, (vi) that certain letter agreement dated August 1, 2005 by and between
Seller and Buyer


 





















 


(the “Side Letter”)
and (vii) the Supplementary Documents, as such term is defined in the Side
Letter.


 


This letter shall also
confirm our agreement that Section 1.111 of the Purchase Agreement is
hereby amended by deleting such Section 1.111 in its entirety and
substituting in lieu thereof the following:


 


1.111       “Straddle Period” shall mean any
taxable year or period beginning before and ending on or after the Closing
Date.


 


This
letter shall also confirm our agreement that Section 1.115 of the
Purchase Agreement is hereby amended by deleting such Section 1.115 in
its entirety and substituting in lieu thereof the following:


 


1.115.      “Tax Assets” shall mean all assets
comprising receivables, deferred assets or prepayments for Taxes for taxable
periods or portions thereof ending before the Closing Date; excluding in each
case any such asset included within the Final Net Asset Value.


 


This letter shall also
confirm our agreement that Section 4.6(a) of the Purchase Agreement is
hereby amended by deleting such Section 4.6(a) in its entirety and substituting
in lieu thereof the following:


 


(a)           Except as disclosed on Schedule 4.6(a),
(i) all material Tax Returns relating to the Assets with respect to sales, use
and property Taxes required to be filed on or before the date hereof for tax
years or periods ending before the Closing Date have been timely filed, and all
such material sales, use and property Tax Returns are complete and accurate and
disclose all material sales, use and property Taxes required to be paid for the
periods covered thereby, (ii) all material sales, use and property Taxes shown
to be due on such Tax Returns have been timely paid or are being contested in
good faith and (iii) no written claim has ever been made by a Governmental
Authority to Seller or any of its Subsidiaries in a jurisdiction where Seller
or any of its Subsidiaries does not pay sales, use or property Taxes with
respect to the Assets that Seller or any of its Subsidiaries is or may be
subject to such a sales, use or property Tax with respect to the Assets.


 


This letter shall also
confirm our agreement that Section 4.6(b) of the Purchase Agreement is
hereby amended by deleting such Section 4.6(b) in its entirety and substituting
in lieu thereof the following:


 


(b)           Except as disclosed on Schedule 4.6(b),
(i) the Share Transferor Entity and Suplementos Solgar have filed all material
Tax Returns relating to the Business required to be filed on or before the date
hereof for tax years or periods ending before the Closing Date and all such Tax
Returns are complete and accurate and disclose all material Taxes relating to
the Business required to be paid by the Share Transferor Entity and Suplementos
Solgar for the periods covered thereby; (ii) all Taxes shown to be due on such
Tax Returns have been timely paid or are being contested in good faith; (iii)
the Share Transferor Entity and Suplementos Solgar have not waived any statute
of


 


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limitations in respect of
Taxes relating to the Business or agreed to any extension of time with respect
to a Tax assessment or deficiency relating to the Business; (iv) there is no
action, suit, dispute, investigation, audit, claim or assessment pending or, to
Seller’s knowledge, proposed with respect to Taxes relating to the Business of
the Share Transferor Entity or Suplementos Solgar; (v) all Tax Sharing
Arrangements will terminate prior to the Closing Date and Suplementos Solgar
will have no liability thereunder on or after the Closing Date; and (vi)
Suplementos Solgar (A) has never been a member of an Affiliated Group filing a
consolidated federal tax return (other than (x) a group the common parent of
which was Seller or (y) for Spanish tax purposes, a group comprised solely of
the Share Transferor Entity, Suplementos Solgar, Fort Dodge Veterinaria, S.A.
and Fort Dodge Iberica, S.L. (the “Spanish Tax Group”)) and (B) has no
liability for Taxes of any Person under Reg. § 1.1502-6 (or any similar
provision of state, local or foreign law), as a transferee or successor, by
contract, or otherwise or under Chapter VII Title VII of Spanish RDL 4/2004 of
5 March 2004; and (vii) Suplementos Solgar has not distributed stock of another
Person, or has had its stock distributed by another Person, in a transaction
that was purported or intended to be governed in whole or in part by Code § 355
or Code § 361.


 


This letter shall also
confirm our agreement that Section 7.5(a)(i) of the Purchase Agreement
is hereby amended by deleting such Section 7.5(a)(i) in its entirety and
substituting in lieu thereof the following:


 


(i)            Except for Buyer’s portion of Taxes described
in Section 7.5(a)(v) or for Taxes included in the Final Net Asset Value,
Seller shall be liable for, and shall indemnify and hold Buyer harmless
against, all (A) Taxes relating to the Assets for any taxable year or period
that ends before the Closing Date, (B) Taxes imposed on Suplementos Solgar
directly or as a member of the Spanish Tax Group, as regulated under Chapter
VII Title VII of Spanish RDL 4/2004 of 5 March 2004, for any taxable year or
period that ends before the Closing Date and, in each case (A) and (B), with
respect to any Straddle Period, the portion of such Straddle Period ending on
the day before the Closing Date (including, without limitation, any obligation
to contribute to the payment of a Tax determined on a consolidated, combined or
unitary basis with respect to Suplementos Solgar and any of Seller’s Tax
Affiliates) and (C) Taxes attributable to the sale of the Assets and Shares
pursuant to this Agreement that relate to any period (or any portion of a
Straddle Period) ending on or before the Closing Date, provided that the
parties acknowledge and agree that any adjustment to the Purchase Price
hereunder (including, without limitation, under Section 3.6) shall be
deemed for purposes of this Section 7.5(a)(i)(C) to have occurred on the
Closing Date and any Taxes attributable to such adjustment shall be deemed to
have accrued on the Closing Date.


 


This letter shall also
confirm our agreement that Section 7.5(a)(ii) of the Purchase Agreement
is hereby amended by deleting such Section 7.5(a)(ii) in its entirety
and substituting in lieu thereof the following:


 


(ii)           Except for Seller’s portion of Taxes
described in Sections 7.5(a)(i)(C) and 7.5(a)(v), Buyer shall be liable
for, and shall indemnify and hold Seller harmless against, all (A) Taxes
relating to the Assets for any taxable year or period that


 


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begins on or after the
Closing Date, and (B) Taxes imposed on Suplementos Solgar for any taxable year
or period that begins on or after the Closing Date and, in each case (A) and
(B), with respect to any Straddle Period, the portion of such Straddle Period
beginning on the Closing Date (including, without limitation, any obligation to
contribute to the payment of a Tax determined on a consolidated, combined or
unitary basis with respect to Suplementos Solgar and any of Buyer’s Tax
Affiliates).


 


This letter shall also
confirm our agreement that Section 7.5(a)(iii) of the Purchase Agreement
is hereby amended by deleting such Section 7.5(a)(iii) in its entirety
and substituting in lieu thereof the following:


 


(iii)          For purposes of this Agreement, whenever it
is necessary to determine the liability for Taxes for a Straddle Period, the
determination of the Taxes for the portion of the Straddle Period ending on the
day before the Closing Date and the portion of the Straddle Period beginning on
the Closing Date shall be determined by assuming that the Straddle Period
consisted of two taxable years or periods, one which ended on the day before
the Closing Date and the other which began on the Closing Date, and items for
the Straddle Period shall be allocated between such two taxable years or periods
on a “closing of the books basis” by assuming that the books of the applicable
party were closed at the close of business on the day before the Closing Date, provided,
however, that in the case of Taxes that are imposed on a periodic basis
and measured by the amount, value or level of any item other than income, such
items shall be allocated on a pro rata per diem basis.


 


This letter shall also
confirm our agreement that Section 7.5(a)(vi) of the Purchase Agreement
is hereby amended by deleting such Section 7.5(a)(vi) in its entirety
and substituting in lieu thereof the following:


 


(vi)          Unless reflected in Final Net Asset Value,
Buyer shall pay to Seller the amounts of any refund, abatement or credit of
Taxes received by Buyer from a Governmental Authority related to the Business
which are attributable to (A) any taxable period that ends before the Closing
Date, (B) in the case of any Straddle Period the amount of the refund,
abatement or credit of Taxes received by Buyer from a Governmental Authority attributable
to the portion of the Straddle Period ending on the day before the Closing Date
consistent with the principles of Section 7.5(a)(iii), or (C) Taxes for
which Seller has previously indemnified Buyer. 
Notwithstanding the foregoing, Buyer shall not be obligated to pay
Seller the amount of any refund, abatement or credit of Taxes that is reflected
in the Final Net Asset Value.  Seller
shall pay to Buyer the amounts of any refund, abatement or credit of Taxes received
by Seller from a Governmental Authority related to the Business which are
attributable to (A) any taxable period that begins on or after the Closing
Date, (B) in the case of any Straddle Period the amount of the refund,
abatement or credit of Taxes received by Seller from a Governmental Authority
attributable to the portion of the Straddle Period beginning on the Closing
Date consistent with the principles of Section 7.5(a)(iii), or (C) Taxes
for which Buyer has previously indemnified Seller.


 


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This letter shall also
confirm our agreement that Section 7.5(b) of the Purchase Agreement is
hereby amended by deleting such Section 7.5(b) in its entirety and
substituting in lieu thereof the following:


 


(b)           For all taxable years or periods ending before
the Closing Date, Seller shall prepare and file, or cause to be prepared and
filed, when due all Tax Returns with respect to Suplementos Solgar and shall
timely remit (or cause to be remitted) to the appropriate Governmental
Authority any Taxes due in respect of such Tax Returns; provided, however, that
with respect to such Tax Returns that are due on or after the Closing Date,
Seller shall prepare and present, or cause to be prepared and presented, such
Tax Returns (or in the case of a consolidated, combined or unitary Tax Return,
a pro forma Tax Return reflecting the Taxes with respect to the Business) to
Buyer for review and comment on the Closing Date or at least five (5) days
before the date on which such Tax Returns are required to be filed (or, in the
case of Tax Returns related to income Taxes, at least twenty-five (25) days
before the date on which such Tax Returns are required to be filed), whichever
is later, and shall consider in good faith any suggestion or comments made by
Buyer with respect to such Returns.  For
the avoidance of doubt, nothing in this Agreement shall require Seller or any
Affiliate of Seller to disclose any Tax Returns or other information other than
those which are related solely to the Business. 
For all Straddle Periods and taxable years or periods beginning on or
after the Closing Date, Buyer shall prepare and file, or cause to be prepared
and filed, when due all Tax Returns with respect to Suplementos Solgar and
shall timely remit (or cause to be remitted) to the appropriate Governmental
Authority any Taxes due in respect of such Tax Returns.  Seller shall pay to Buyer in sufficient time
for Buyer to pay the appropriate Governmental Authority, the portion of the Tax
liability attributable to Seller on such Straddle Period Tax Returns as
determined pursuant to Section 7.5(a). 
Buyer shall not amend any Tax Return filed by Seller or make any Tax
election that would affect the Tax liability of (i) Suplementos Solgar, with
respect to any Straddle Period or any taxable years or periods ending before
the Closing Date, or (ii) Seller or any of Seller’s Tax Affiliates, in each
case (i) and (ii), without the prior written consent of Seller, which consent
shall not be unreasonably withheld; provided, however, Buyer
shall be entitled to make an election under Section 338 of the Code (or
any similar provision under the laws of Spain) or an election to treat
Suplementos Solgar as a pass-through entity for U.S. or Spanish Tax purposes
without Seller’s consent.  Buyer will
file all Tax Returns with respect to Straddle Periods in accordance with Seller’s
past practice (except as required by law). 
Buyer shall prepare and present such Straddle Period Tax Returns to
Seller for review and comment at least five (5) days before the date on which
such Tax Returns are required to be filed (or, in the case of Tax Returns
related to income Taxes, at least twenty-five (25) days before the date on
which such Tax Returns are required to be filed) and shall consider in good
faith any suggestions or comments made by Seller with respect to such Tax
Returns.  Any disputes regarding the
application of this Section 7.5(b) with respect to a Tax Return
relating to taxable years or periods ending before the Closing Date or a
Straddle Period Tax Return that remains unresolved following such period shall
be resolved pursuant to Section 7.5(g).


 


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This letter shall also
confirm our agreement that Section 7.5(c) of the Purchase Agreement is
hereby amended by deleting such Section 7.5(c) in its entirety and
substituting in lieu thereof the following:


 


(c)           Contest Provisions. 
Buyer shall notify Seller and Seller shall notify Buyer, as the case may
be, in writing upon receipt of written notice of any pending or threatened
federal, state, local or foreign Tax audits, assessments or proceedings (“Tax
Proceedings”) which may affect the Tax liability of (i) Buyer or
Suplementos Solgar, for which Seller would be required to indemnify Buyer
pursuant to paragraph (a) of this Section 7.5, (ii) Seller, or (iii) any
Tax Affiliate of Seller.  Seller shall
have the right to represent, and Buyer shall have the right to participate in
at Buyer’s own expense the representation of, Suplementos Solgar’s interest in
any such Tax Proceeding and any Tax Proceeding relating to any taxable periods
ending before the Closing Date, and to employ counsel of its choice at its
expense.  Seller has the right, but not
the obligation, to jointly represent its interests with Buyer in any Tax
Proceeding relating to Taxes for any Straddle Period.  Any disputes regarding the conduct or
resolution of any Tax Proceeding shall be resolved pursuant to Section
7.5(g).


 


This letter shall also
confirm our agreement that Section 7.5(d)(ii) of the Purchase Agreement
is hereby amended by deleting such Section 7.5(d)(ii) in its entirety
and substituting in lieu thereof the following:


 


(ii)           An allocation of the Purchase Price by
jurisdiction based upon the fair market value of each of the Assets and the
Shares to be sold by Seller and acquired by Buyer pursuant to this Agreement is
attached as Schedule 7.5(d). 
Seller and Buyer shall cooperate with each other to determine the
applicable values, allocations and other information necessary to timely file
Forms 8594 with respect to the transactions contemplated by Article 2 and shall
each file all Tax Returns consistent therewith. 
Seller and Buyer will mutually agree in writing upon appropriate
adjustments to such allocation as necessary following the Closing to account
for adjustments to the Purchase Price made pursuant to this Agreement.  All adjustments to the Purchase Price made
pursuant to this Section 7.5(d)(ii) and Section 7.5(e) will be made in
accordance with Section 1060 of the Code, and the regulations thereunder, or in
accordance with applicable foreign law.


 


This letter shall also
confirm our agreement that Section 9.5 of the Purchase Agreement is hereby
amended by deleting such Section 9.5 in its entirety and substituting in lieu
thereof the following:


 


9.5.          International Employees of the European Union.


 


(a)           Seller and Buyer accept and agree that the
transfer of employment of the Ex-U.S. Employees in the EU countries
(hereinafter referred to as “European Employees”) will be effected and
governed by the Transfer Provisions (defined below); provided, however, that
Buyer shall be entitled to the indemnification provided in Section
9.3(a)(v)(B) (except to the extent that any liability, claim or loss relates to
any action or omission of Buyer in violation of or non-compliance with the
Transfer Provisions, for


 


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which Buyer shall be
responsible and from and against which Buyer shall indemnify and hold harmless
Seller and its Affiliates).


 


(b)           Buyer shall ensure that it and its Affiliates
(where necessary) comply with their respective obligations under the Transfer
Provisions and upon reasonable request provide Seller or the relevant Seller’s
Affiliate with such information necessary to enable either Seller or its
Affiliate as the case may be to carry out its duties under the Transfer
Provisions concerning measures to effectuate the transfer of the European
Employees to Buyer.


 


(c)           “Transfer Provisions” shall mean any
legislation implementing the provisions of Directive 2001/23/EC commonly called
the Acquired Rights Directive or Transfer of Undertakings Directive.


 


This letter agreement shall
be governed in all respects, including validity, interpretation and effect, by
the internal laws of the State of New York.


 


Except as expressly modified
hereby, the terms of the Purchase Agreement remain in full force and effect.


 


[signature page follows]


 


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This letter agreement may be
executed in counterparts (including by means of facsimile delivery), each of
which shall be deemed to be an original, but all of which together shall
constitute one agreement.


 


 


	
   

  	
  WYETH

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
         /s/
  Jack M. O’Connor

  	
   

  
	
   

  	
   

  	
  Name: Jack M.
  O’Connor

  	
   

  
	
   

  	
   

  	
  Title:   Vice
  President

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  ACKNOWLEDGED AND AGREED as
  of the date set forth above

  
	
   

  	
   

  
	
  NBTY, INC.

  	
   

  
	
   

  	
   

  
	
  By: 

  	
         /s/
  Michael C. Slade

  	
   

  	
   

  
	
   

  	
  Name: Michael C.
  Slade

  	
   

  
	
   

  	
  Title:   Senior
  Vice President

  	
   

  
							



 


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