Exhibit 10.1


 


 


SIXTH AMENDMENT TO EXECUTIVE
CONSULTING AGREEMENT 


 


                This Sixth Amendment to
Executive Consulting Agreement is made as of the 1st day of
January, 2008, by and between NBTY, Inc. (the “Company”) and RUDOLPH
MANAGEMENT ASSOCIATES, INC., a Florida corporation (“RMA”).


 


W I  T N E
S S E T H:


 


                WHEREAS, the Company and RMA
entered into that certain Executive Consulting Agreement, dated as of January
1, 2002 (as amended by the First Amendment, the Second Amendment, the Third
Amendment, the Fourth Amendment and the Fifth Amendment, the “Agreement”);


 


                WHEREAS, the term of the
Agreement expires on December 31, 2007 (the “Term”);


 


                WHEREAS, the Compensation
Committee of the Company (the “Committee”) met on November 27, 2007, with all
members of the Committee present to consider whether to extend the Term of
Agreement;


 


                WHEREAS, the Committee decided
to extend the Term of the Agreement; and


 


                WHEREAS, RMA and ARTHUR RUDOLPH
desire to continue to make their respective services as an Executive Consultant
available to the Company.


 


                NOW, THEREFORE, in consideration
of the mutual promises hereafter contained and for other good and valuable
consideration, the parties agree as follows:


 


1.
            Term.  Section 1 of the Agreement is hereby amended
and restated to read in its entirety as follows:




“1.           Retention.  The Company hereby retains RMA to provide the
services of ARTHUR RUDOLPH and ARTHUR RUDOLPH hereby accepts the engagement of
Executive Consultant from January 1, 2008 through December 31, 2008 (the “Term”).”


2.             Termination.  Section 4 of the Agreement is hereby amended
and restated in its entirely as follows:




“4.           Termination.  If during the Term of this Agreement ARTHUR
RUDOLPH shall die, become disabled or give written notice of his intention to
cease providing services to the Company, this Agreement shall terminate and the
Company shall have no further obligation to pay the Consulting Fee.  In addition, if during the Term of this
Agreement ARTHUR RUDOLPH shall engage in for cause conduct, the Company shall
have the right to terminate this Agreement and have no further obligation to
pay the Consulting Fee.  For purposes of
this Agreement, (1) disability shall mean mental or physical illness or
condition rendering ARTHUR RUDOLPH incapable of performing his normal
consulting duties with the Company and (2) for cause conduct shall mean (i) 



















 


 


conviction of (or
entering of a guilty or a nolo contendere plea to a crime that constitutes) a
felony of any type or a misdemeanor involving moral turpitude, (ii) willful,
illegal or gross misconduct, in either case, that results in material and
demonstrable damage to the business or reputation of the Company, (iii) willful
and continued failure to perform his duties hereunder (other than such failure
resulting from incapacity due to physical or mental illness) within ten (10)
business days after the Company delivers a written demand for performance that
specifically identifies the actions to be performed, (iv) engaging in fraud in
connection with the business of the Company or embezzlement or misappropriation
of the Company’s funds or property, (v) habitual abuse of narcotics or alcohol,
or (vi) the breach of any term of this Agreement.”


                3.  Continuity.  Except as otherwise expressly amended by this
Sixth Amendment, the Agreement shall continue in full force and effect.


 


                4.  Governing Law; Counterparts.  This Amendment shall be construed and
enforced according to the laws of the State of New York.  This Amendment may be executed in any number
of counterparts, each of which shall be considered an original for all
purposes, and all of which when taken together constitute a single counterpart
instrument.


 


 


 


 

















 


 


 


 


                IN WITNESS WHEREOF, the parties hereto have executed this
Amendment as of the day and year first above written.


 


 


 


	
  RUDOLPH MANAGEMENT ASSOCIATES, INC.

  	
  NBTY, INC.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Arthur Rudolph

  	
   

  	
  By:

  	
  /s/ Harvey Kamil

  	
   

  
	
   

  	
  Arthur Rudolph

  	
   

  	
  Harvey Kamil

  
	
   

  	
  President

  	
   

  	
  President

  
							



 


 


 


 


 


	
  Agreed and Consented:

  
	
   

  
	
   

  
	
   

  
	
   

  
	
  /s/ Arthur Rudolph

  	
   

  
	
  ARTHUR RUDOLPH, individually