-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, NPmF4DwbXoOvRg5Uwz6c4xEeyDEWAZTFIgOYTyhcIk7HzoG6iAVfptsGhECh5SfX o7eR7GINFJ0GCOXPvheXCw== 0000910647-98-000064.txt : 19980304 0000910647-98-000064.hdr.sgml : 19980304 ACCESSION NUMBER: 0000910647-98-000064 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19980303 EFFECTIVENESS DATE: 19980303 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: NBTY INC CENTRAL INDEX KEY: 0000070793 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 112228617 STATE OF INCORPORATION: DE FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-47221 FILM NUMBER: 98556491 BUSINESS ADDRESS: STREET 1: 90 ORVILLE DR CITY: BOHEMIA STATE: NY ZIP: 11716 BUSINESS PHONE: 5165679500 MAIL ADDRESS: STREET 1: 90 ORVILLE DRIVE CITY: BOHEMIA STATE: NY ZIP: 11716 FORMER COMPANY: FORMER CONFORMED NAME: NATURES BOUNTY INC DATE OF NAME CHANGE: 19920703 S-8 1 FORM S-8 As filed with the Securities and Exchange Commission on February __, 1998 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 NBTY, INC. (Formerly NATURE'S BOUNTY, INC.) (Exact name of registrant as specified in its charter) Delaware 11-2228617 - -------- ---------- (State or other jurisdiction of (IRS Employer Identification No.) incorporation or organization 90 Orville Drive, Bohemia, New York 11716 ---------------------------------------- ---------- (Address of Principal executive offices) (Zip Code) 1989 Non-Qualified Stock Options,1990 Non-Qualified Stock Options, ------------------------------------------------------------------ 1992 Non-Qualified Stock Options,1998 Incentive Stock Option Plan ----------------------------------------------------------------- (Full title of Plans) Scott Rudolph, President, 90 Orville Drive, Bohemia, New York 11716 -------------------------------------------------------------------- (Name and address of agent for service) 516-567-9500 ------------------------------------------------------------- (Telephone number, including area code, of agent for service) Calculation of Registration Fee -------------------------------
_________________________________________________________________________________________________ Title of Securities Proposed Maximum Proposed Maximum Amount Securities to Amount to be Offering Price Aggregate Offering of Reg. be Registered Registered(1) Per Share Price Fee(2) _________________________________________________________________________________________________ 1989 Non-Qualified Stock Options: each Option to purchase one share of Common Stock 689,000 $ 0.50 $ 344,500 $ 99.90 1990 Non-Qualified Stock Options; each Option to purchase one share of Common Stock 1,320,000 $ 0.625 $ 825,000 $ 239.25 1992 Non-Qualified Stock Options; each Option to purchase one share of Common Stock 1,075,000 $ 0.915 $ 983,625 $ 285.25 1998 Incentive Stock Options: each Option to purchase one share of Common Stock 1,000,000 $40.00 $40,000,000 $11,816.00 _________________________________________________________________________________________________ TOTAL $42,153,125 $12,440.40 ____________________ The amount being registered represents an aggregate of 4,084,000 shares of Common Stock issued or issuable upon the exercise of 4,084,000 outstanding non-qualified stock options granted to Directors and Officers of the Registrant. Pursuant to Rule 416(c) promulgated under the Securities Act of 1933, as amended, the Registration Statement also covers an indeterminate amount of securities to be offered or sold as a result of any adjustments from stock splits, stock dividends or similar events. Determined by the exercise price of the options pursuant to 17C.F.R. Section 230.457(h)(1) and Section 230.457(c).
EXPLANATORY NOTE The information required by Items 1 and 2 of Part I of Form S-8 to be contained in the Section 10(a) prospectus is omitted from this Registration Statement in accordance with Rule 428 of the Securities Act of 1933, as amended, and the Note to Part I of Form S-8. Included in Part I of this Registration Statement on Form S-8 is a reoffer prospectus concerning reoffers and resales of certain of the shares of Common Stock registered hereby, which is filed in reliance on General Instruction C to Form S-8. PART I INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS Note: The documents containing the information specified in this Part I will be sent or given to employees as specified by Rule 428(b)(l) promulgated under the Securities Act of 1933, as amended (the "Act"). Such documents need not be filed with the Securities and Exchange Commission (the "Commission") either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Act. These documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II of this Form S-8, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Act. This Registration Statement on Form S-8 of NBTY, Inc., a Delaware corporation (the "Registrant") covers 4,084,000 shares of the Registrant's common stock, par value $.008 per share (the "Common Stock") issued or, reserved for issuance under the 1989, 1990, 1992 and 1998 Stock Plans. Reoffer Prospectus dated February __, 1998 4,084,000 Shares NBTY, INC. Common Stock ($.008 Par Value) ___________________________ 1989 NON-QUALIFIED STOCK OPTIONS 1990 NON-QUALIFIED STOCK OPTIONS 1992 NON-QUALIFIED STOCK OPTIONS 1998 INCENTIVE STOCK OPTION PLAN This Prospectus is being used in connection with the offering, from time to time, by certain stockholders who may be deemed to be affiliates ("Selling Stockholders") of NBTY, Inc. (the "Company") of shares of Common Stock of the Company (the "Shares"), issued or issuable upon the exercise of a like number of non-qualified stock options granted to certain Officers and Directors of the Company pursuant to the Company's 1989, 1990, 1992 Non- Qualified Stock Options and 1998 Incentive Stock Option Plan (collectively the "Options"). These persons may offer these Shares, upon exercise of the Options, for sale as principals for their own accounts at any time and from time to time on the NASDAQ/NMS or otherwise at prices prevailing at the time of sale or in private sales and at prices to be negotiated. The Officers and Directors, upon exercise of the Options and sale of the shares of Common Stock, receive the entire proceeds from such sale (see "Selling Security Holders"). The Company will not receive any of the proceeds from the sale of the Shares, but will receive funds upon the exercise of the Options. All of the Selling Security Holders are Officers and/or Directors of the Company and may be deemed to be affiliates of the Company as that term is defined under Rule 405 of the Securities Act of 1933, as amended. ____________________________________________________________ THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. ____________________________________________________________ NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATION OTHER THAN AS CONTAINED HEREIN IN CONNECTION WITH THE OFFER CONTAINED IN THIS PROSPECTUS, AND IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY PERSON. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER OR SOLICITATION BY ANYONE IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION MAY NOT BE LAWFULLY MADE. The Date of this Prospectus is February __, 1998 TABLE OF CONTENTS ----------------- Page ---- The Company ...................................................... 2 Available Information ............................................ 2 1989, 1990, 1992 Non-Qualified Stock Options and 1998 Incentive Stock Option Plan ..................... 2 Use of Proceeds .................................................. 5 Selling Security Holders ......................................... 6 Plan of Distribution ............................................. 7 Incorporation of Certain Documents by Reference .................. 7 Experts .......................................................... 8 Legal Opinion .................................................... 8 THE COMPANY ----------- NBTY, Inc. (the "Company"), collectively with its subsidiaries is a manufacturer and marketer of nutritional supplements in the United States. It sells more than 500 products consisting of vitamins and other nutritional supplements such as minerals, amino acids and herbs. Vitamins, minerals and amino acids are sold as a single vitamin and in multi-vitamin combinations and in varying potency levels in powder, tablet, soft gel, chewable, and hard shell capsule form. The Company's branded products are sold by independent and chain pharmacies, wholesalers-retailers, supermarkets, health food stores and by direct mail. In August, 1997, NBTY acquired Holland & Barrett ("H&B"), one of the leading nutritional supplement retailers in the United Kingdom which presently has 420 locations. Prior to the acquisition by NBTY, H&B marketed a broad line of nutritional supplement products, including vitamins, minerals and other nutritional supplements (approximately 58% of H&B's revenues for its fiscal year 1997) and food products, including fruits and nuts, confectionery and other items (approximately 42% of H&B's revenues for its fiscal year 1997). AVAILABLE INFORMATION --------------------- NBTY, Inc., formerly Nature's Bounty, Inc. (herein referred to both as the "Registrant" and as the "Company"), has filed with the Securities and Exchange Commission (the "Commission"), Washington, D.C., a Registration Statement on Form S-8 (the "Registration Statement") under the Securities Act of 1933, as amended (the "Securities Act"), with respect to the securities described in this document. This document does not contain all the information set forth in the Registration Statement, certain items of which are contained in schedules and exhibits to the Registration Statement, as permitted by the rules and regulations of the Commission. The Company is subject to the informational requirements of the Securities Exchange Act of 1934 and, in accordance therewith, files reports and other information with the Securities and Exchange Commission (the "Commission"). Reports, proxy and information statements and other information concerning the Company can be inspected and copied at the public reference facilities maintained by the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549; Room 1204, Everett McKinley Dirksen Building, 219 South Dearborn Street, Chicago, Illinois 60604; Room 1100, 75 Park Place, New York, New York 10007; 411 West Seventh Street, Fort Worth, Texas 76102, 8th Floor; and 5757 Wilshire Boulevard, Suite 500 East, Los Angeles, California, 90036-3648. Copies of any such material can be obtained from the Public Reference Section of the Commission, Washington, D.C. 20549 at prescribed rates. The Company will provide without charge to each person to whom a Prospectus is delivered, upon written or oral request of such person, a copy of any and all of the information that has been incorporated herein by reference (not including any exhibits thereto). Such requests should be made to the Corporate Secretary, NBTY, Inc., 90 Orville Drive, Bohemia, New York 11716, telephone number (516)567-9500. 1989 NON-QUALIFIED STOCK OPTIONS 1990 NON-QUALIFIED STOCK OPTIONS 1992 NON-QUALIFIED STOCK OPTIONS 1998 INCENTIVE STOCK OPTION PLAN General Information. In December, 1989, September, 1990 and March, 1992, the Company issued 689,000, 1,320,000 and 1,075,000 Non-Qualified Stock Options, respectively, to certain Officers and Directors. Pursuant thereto, options to purchase an aggregate of 3,084,000 shares of Common Stock, $.008 par value per share (the "Common Stock"), were granted to Directors and Officers of the Company. The 3,084,000 shares of Common Stock subject to options were reserved for issuance upon exercise of the options granted. On October 31, 1997, the Board of Directors authorized, subject to approval of stockholders, an Incentive Stock Option Plan whereby options for the issuance of 1,000,000 shares of common stock may be issued to officers, directors and affiliates. The purpose of the Plans is to advance the interests of the Corporation by encouraging and enabling the acquisition of a larger personal proprietary interest in the Corporation by directors and key employees and affiliates of the Corporation and its Subsidiaries upon whose judgment and keen interest the Corporation is largely dependent for the successful conduct of its operations and by providing such directors and key employees with incentives to put forth maximum efforts for the success of the Corporation's business. It is anticipated that the acquisition of such proprietary interest in the Corporation and such incentives will stimulate the efforts of such directors, key employees and affiliates on behalf of the Corporation and its Subsidiaries and strengthen their desire to remain with the Corporation and its Subsidiaries. It is also expected that such incentives and the opportunity to acquire such proprietary interest will enable the Corporation and its Subsidiaries to attract desirable personnel. Neither the Plan nor any of the Option Agreements (i) is subject to any of the provisions of the Employee Retirement Income Security Act of 1974, or (ii) is a "qualified plan" under Section 401(a) of the Internal Revenue Code of 1954, as amended (the "Code"). Summary of the Options ---------------------- The following is a brief summary of the provisions of the Options. The Options provide that they may be granted to employees (including Officers and Directors) of the Company and its subsidiaries, all of whom are eligible to participate. The Board of Directors or a committee appointed by the Board will select the optionees and determine the number of shares to be subject to each option. In making such determination, there will be taken into account the duties and responsibilities of the optionee, the value of the optionee's services, his present and potential contributions to the success of the Company, the anticipated years of future service of the optionee and other relevant factors. Administration -------------- The Options are administered either by the Board of Directors of the Company or by a committee of not less than three members appointed by the Board. The interpretation and construction of any provisions of the Options by the Board or its committee shall be final and conclusive. Members of the Board will receive no compensation for their services in connection with the administration of the Options. Terms of Options ---------------- The terms of options granted are to be determined by the Board or its committee. Each Option is to be evidenced by a stock option agreement between the Company and the employee to whom such Option is granted, and is subject to the following additional terms and conditions: (a) Exercise of the Option: The Board of Directors or its committee have determined that the time period during which Options granted is for a term of five to ten years and will be exercisable in whole or in part at any time during the period. Unless otherwise provided in any option agreement, any Option granted may be exercisable in whole or in part at any time during the exercise period. An Option is exercised by giving written notice of exercise to the Company specifying the number of full shares of Common Stock to be purchased and tendering payment of the purchase price to the Company in cash or certified check. (b) Option Price: The Option price is determined by the Board of Directors or its committee but in no event may the Option price be less than the fair market value on the date of grant. Such fair market value shall be determined by the Board of Directors and, if the shares of Common Stock are listed on the national securities exchange or traded on the over-the-counter market, the fair market value shall be the mean of the reported bid and asked prices of the Common Stock on such date. Non-Qualified Options granted to 10% shareholders of the Company are subject to the additional restriction that the Option price must be at least 110% of the fair market value of the Company's Common Stock on the date of grant. (c) Termination of Employment; Death: If the employment of an optionee is terminated voluntarily by such optionee or for cause, his Option shall expire immediately. If, however, such employment is terminated otherwise than by death, voluntarily or for cause, the optionee may exercise his Option at any time within three months after such termination. For the purposes of the Options, retirement pursuant to either a pension or retirement plan adopted by the Company, or at the normal retirement date prescribed from time to time by the Company, is not deemed to be either voluntary termination or a termination for cause. In the event an optionee dies (a) while in the employ of the Company or a subsidiary or parent thereof or (b) within three months after the termination of his employment other than voluntarily or for cause, his Option may be exercised by a legatee or legatees of such Option under such optionee's Last Will and Testament or by his personal representatives or distributees at any time within one year after his death. In any event, an Option may only be exercised to the extent that it could have been exercised by the optionee at the time of his termination of employment or death. In no event may an Option be exercised after the expiration of ten years from the date of its grant. (d) Termination of Options: Unless otherwise provided in the terms of an Option, Options are granted for a period of five to ten years. No Option can be exercisable by any persons after such expiration. No options can have a term greater than ten years and stock Options granted to holders of more than 10% of the Company's Common Stock may not have a term of more than five years. (e) Nontransferability of Options: An Option is nontransferable by the optionee, other than by will or the laws of descent and distribution, and is exercisable during the optionee's lifetime only by the person who acquires the right to exercise the Option by bequest or inheritance or by reason of the death of the optionee. The Option agreement may contain such other terms, provisions and conditions not inconsistent with the Options as may be determined by the Board of Directors or its committee. TERMINATION; AMENDMENT OR DISCONTINUANCE ---------------------------------------- The Board of Directors of the Company may from time to time make such modifications or amendment of the options as it deems advisable. However, termination, modification or amendment of the Plan may adversely affect the terms of any outstanding options without the consent of the holders of such options. ADJUSTMENTS UPON CHANGES IN COMMON STOCK ---------------------------------------- In the event that the number of outstanding shares of Common Stock of the Company is changed by reason of recapitalization, reclassification, stock split, stock dividend, combination, exchange of shares, or the like, the Board of Directors of the Company will make an appropriate adjustment in the aggregate number of shares of Common Stock available under the Options in the number of shares of Common Stock reserved for issuance upon the exercise of then outstanding Options and in the exercise prices of such Options. Any adjustment in the number of shares will apply proportionately only to the unexercised portion of options. Fractions of shares resulting from any such adjustment shall be revised to the next lower whole number of shares. In the event of the proposed dissolution, liquidation, merger or sale of substantially all of the assets of the Company, all outstanding Options will automatically terminate unless otherwise provided by the Board. The Board of Directors or its committee may in its discretion make provisions for accelerating the exercisability of shares subject to Options in such circumstances. CERTAIN UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS WITH RESPECT TO THE INCENTIVE STOCK OPTION PLAN The following general discussion of the principal tax considerations is based upon the tax laws and regulations of the United States existing as of the date hereof, all of which are subject to modification at any time. Each participant in the Plan is urged to consult with his or her own tax adviser with respect to the tax consequences of the grant or exercise of Options Rights and the disposition of shares acquired under the Plan, as those consequences relate to the employee's own individual circumstances. In particular, the discussion which follows does not apply to person who are not citizens or residents of the United States and, therefore, such persons are strongly urged to consult with their own tax advisers with respect to the tax implications of the grant or exercise of an option and the disposition of shares acquired under the laws of the country in which they reside or are citizens. The Plan does not constitute a qualified retirement plan under Section 401(a) of the Code (which generally covers trusts forming part of a stock bonus, pension or profit-sharing plan funded by the employer and/or employee contributions which are designed to provide retirement benefits to participants under certain circumstances) and is not subject to the Employer Retirement Income Security Act of 1974 (the pension reform law which regulates most types of privately funded pension, profit-sharing and other employee benefit plans). CONSEQUENCES TO KEY EMPLOYEES AND DIRECTORS: INCENTIVE STOCK OPTIONS. No income is recognized for federal income tax purposes by a Grantee at the time an Incentive Stock Option is granted, and, except as discussed below, no income is recognized by a Grantee upon his or her exercise of an Incentive Stock Option. If the Grantee makes no disposition of the shares received upon exercise within two years from the date the option was granted and one year from the date the Option is exercised, the Grantee will recognize long-term capital gain or loss when he or she disposes of his or her shares. Such gain or loss will be measured by the difference between the exercise price of the Option and the amount received for the shares at the time of disposition. If the Grantee disposes of shares acquired upon exercise of an Incentive Stock Option within two years after being granted the option or within one year after acquiring the shares, any amount realized from such disqualifying disposition will be taxable as ordinary income in the year of disposition to the extent that the lesser of (A) the fair market value of the shares on the date the Incentive Stock Option was exercised or (B) the fair market value at the time of such disposition exceeds the Incentive Stock Option exercise price. Any amount realized upon disposition in excess of the fair market value of the shares on the date of exercise will be treated as long-term or short-term capital gain, depending upon whether the shares have been held for more than one year. The use of stock acquired through exercise of an Incentive Stock Option to exercise an Incentive Stock Option will constitute a disqualifying disposition if the applicable holding period requirement has not been satisfied. For alternative minimum tax purposes, the excess of the fair market value of the stock on the date of exercise over the exercise price of the Incentive Stock Option is included in computing alternative minimum taxable income. USE OF PROCEEDS --------------- Upon the exercise of the 3,084,000 non-qualified stock options, and upon the exercise of the 1,000,000 Incentive Stock Options registered hereby, the Company will receive gross proceeds of $42,153,125*. The Company intends to use such proceeds for working capital purposes. The Company will not realize any proceeds upon the sale of the shares of Common Stock issued or issuable upon the exercise of these stock Options. SELLING SECURITY HOLDERS ------------------------ The following table lists the Selling Stockholders with respect to the shares of Common Stock being registered hereunder; the number of shares known to the Company to be held by each as of September 30, 1997; the number of stock Options granted to each; the number of shares owned by each as a result of the exercise of stock Options; the number of shares to be sold by each; and the percentage of outstanding shares of Common Stock to be beneficially owned by each before and after the sale of the shares hereby. Upon the exercise of the stock options, the Selling Stockholders intend to offer the shares for sale as principals for their own accounts at any time and from time to time on the NASDAQ/NMS or otherwise, at prices prevailing at the time of sale, or in private sales and at prices to be negotiated. - -------------------- * Assuming the average bid and asked prices as of February 2, 1998, for the 1,000,000 Options subject to grant. Selling Security Holders ------------------------
Total Number of Number of Number of Percentage of Shares Number of 1989 Non- 1990 Non- 1992 Non- of Common Stock Shares of Qualified Qualified Qualified Aggregate Beneficially Owned(1) Common Stock Stock Stock Stock Number of --------------------- Selling Beneficially Options Options Options Options Before After Stockholders Owned Granted Granted(3) Granted Granted Offering Offering - ---------------------------------------------------------------------------------------------------------------- Scott Rudolph 3,127,315 419,333(3) 900,000 600,000(3) 1,919,333 16.0 -- Harvey Kamil 685,631 221,667(3) 420,000 60,000(3) 701,667 3.6 -- Barry Drucker 98,799 40,000 40,000 (2) (2) James Flaherty 30,148 45,000 45,000 (2) (2) Abraham Kleinman 45,000 45,000 45,000 (2) (2) Jean Palladino 45,000 45,000 45,000 (2) (2) Abraham Rubenstein 45,000 45,000 45,000 (2) (2) William Shanahan 45,000 45,000 45,000 (2) (2) Robert Silverman 45,000 45,000 45,000 (2) (2) James Taylor 45,000 45,000 45,000 (2) (2) Bernard G. Owen 31,400 12,000 12,000 24,000 (2) (2) Aram Garabedian 24,000 12,000 12,000 24,000 (2) (2) Murray Daly 22,000 12,000 12,000 24,000 (2) (2) Alfred Sacks 15,000 12,000 12,000 24,000 (2) (2) Glenn Cohen 12,000 12,000 24,000 (2) (2) - -------------------- Based upon 20,121,379 shares outstanding as of September 30, 1997. Represents less than 1%. Exercised in full. No options have been granted under the 1998 Incentive Stock Option Plan.
PLAN OF DISTRIBUTION -------------------- Any shares of Common Stock sold pursuant to this Reoffer Prospectus will be sold by the Selling Stockholders for their own account, and they will receive all proceeds from any such sales. The Corporation will receive none of the proceeds from the sale of shares which may be offered hereby but will receive funds upon the exercise of the options pursuant to which the Selling Stockholders will acquire the shares covered by this Reoffer Prospectus, which funds, if any, will be used for general corporate purposes. The Selling Stockholders have not advised the Corporation of any specific plans for the distribution of the shares of Common Stock covered by this Reoffer Prospectus, but, if and when shares are sold, it is anticipated that the shares will be sold from time to time primarily in transactions (which may include block transactions), although sales may also be made in negotiated transactions or otherwise. If shares of Common Stock are sold through brokers, the Selling Stockholders may pay customary brokerage commissions and charges. The Selling Stockholders may effect such transactions by selling shares to or through broker-dealers, and such broker-dealers may receive compensation in the form of discounts, concessions or commissions from the Selling Stockholders and/or the purchasers of shares for whom such broker-dealers may act as agent or to whom they may sell as principal, or both (which compensation as to a particular broker-dealer might be in excess of customary commissions). The Selling Stockholders and any broker-dealers that act in connection with the sale of the shares hereunder might be deemed to be "underwriters" within the meaning of Section 2(11) of the Securities Act of 1933, and any commissions received by them and any profit on the resale of shares as principal might be deemed to be underwriting discounts and commissions under such Act. Shares of Common Stock covered by this Reoffer Prospectus also may be sold pursuant to Rule 144 under the Securities Act of 1933 rather than pursuant to this Reoffer Prospectus. The Selling Stockholders have been advised that they are subject to the applicable provisions of the Securities Exchange Act of 1934, including without limitation Rules 10b-5, 10b-6 and 10b-7 thereunder. There can be no assurance that the Selling Stockholders will sell any or all of the shares of Common Stock offered hereunder. INCORPORATION OF DOCUMENTS BY REFERENCE --------------------------------------- The documents listed in (a) through (c) below are hereby incorporated by reference in this Registration Statement on Form S-8; and all documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated herein by reference in this Registration Statement on Form S-8, and shall be a part hereof from the date of the filing of such documents. (a) The Registrant's annual report on Form 10-K for the fiscal year ended September 30, 1997. (b) All other reports filed by the Registrant pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 since September 30, 1997. (c) The description of the Registrant's Common Stock contained in reports and Registration Statements filed under the Securities Exchange Act of 1934, including any amendment or report filed for the purpose of updating such description. All reports hereafter filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated herein by reference and to be a part hereof from the date of filing of such documents. Any statement contained in a document incorporated by reference herein shall be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement contained herein or in any other subsequently filed document which is also incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as modified or superseded, to constitute a part of this registration statement. EXPERTS ------- The consolidated balance sheets as of September 30, 1997 and 1996 and the consolidated statements of income, cash flows, stockholders' equity and the financial statement schedule for each of the three years in the period ended September 30, 1997, incorporated by reference in this Registration Statement, have been incorporated herein in reliance on the report of Coopers & Lybrand L.L.P., independent accountants, given on the authority of that firm as experts in accounting and auditing. LEGAL OPINION ------------- The legality of the Securities being offered hereby is being passed upon by Michael C. Duban, P.C., 81 Main Street, Suite 205, White Plains, New York 10601, general counsel to the Company. Michael C. Duban is a shareholder of the Company. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT -------------------------------------------------- ITEM 3. Incorporation of Certain Documents by Reference. - --------------------------------------------------------- The documents listed in (a) through (c) below are hereby incorporated by reference in this Registration Statement on Form S-8; and all documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated herein by reference in this Registration Statement on Form S-8, and shall be a part hereof from the date of the filing of such documents. (a) The Registrant's annual report on Form 10-K for the fiscal year ended September 30, 1997. (b) All other reports filed by the Registrant pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 since September 30, 1997. (c) The description of the Registrant's Common Stock contained in Registration Statements filed under the Securities Exchange Act of 1934, including any amendment or report filed for the purpose of updating such description. ITEM 4. Description of Securities. - ----------------------------------- Not Applicable. ITEM 5. Interest of Named Experts and Counsel. - ----------------------------------------------- Not Applicable. ITEM 6. Indemnification of Directors and Officers. - --------------------------------------------------- Reference is made to the Company's Certificate of Incorporation, and to Section 145 of the General Corporation Law for the State of Delaware ("DGCL"). Section 145 of the DGCL authorizes a corporation to provide indemnification against expenses (including attorney's fees), judgments, fines and amounts paid in settlement actually and reasonably incurred, in non-derivative actions, suits or proceedings brought by third parties to an officer, director, employee or agent of the corporation, if such party acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful as determined in accordance with the statute. In a derivative action, i.e., one by or in the right of the corporation, indemnification may be made only for expenses actually and reasonably incurred by directors, officers, employees or agents in connection with the defense or settlement of an action or suit, and only with respect to a matter as to which they shall have acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interest of the corporation, except that no indemnification shall be made if such person shall have been adjudged liable to the corporation, unless and only to the extent that the Court in which the action or suit was brought shall determine upon application that the defendant directors, officers, employees or agents are fairly and reasonably entitled to indemnity for such expenses despite such adjudication of liability. The Company maintains officers and directors liability insurance. Further, the Company has agreed to indemnify all directors and officers of the Company for any claims made against them, subject to the following conditions. Such indemnification will not extend to certain claims, including claims based upon or attributable to the indemnitee's gaining personal profit or advantage to which he is not legally entitled, claims brought or contributed to by the dishonesty of the indemnitee and claims under Section 16(b) of the Securities Exchange Act of 1934 for an accounting of profits resulting from the purchase or sale by the indemnitee of the Company's securities. Notwithstanding the foregoing, and insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended (the "Act") may be permitted to directors, officers or personnel controlling the Company, in the opinion of the Securities and Exchange Commission, such indemnification is against public policy as expressed in the Act and is therefore unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company if expenses incurred or paid by a director, officer or a controlling person of the Company in a successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person for liabilities arising under the Act in connection with the securities being registered hereunder, the Company will, unless in the opinion of its counsel, the issue has been settled by controlling precedent, submit to a court or appropriate jurisdiction the issue as to whether such indemnification by it is against public policy as expressed in the Act and will comply with the final adjudication of such issue. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers, and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question as to whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. ITEM 7. Exemption From Registration Claimed. - --------------------------------------------- The Non-Qualified Stock Options and the Incentive Stock Options and the shares of Common Stock issued upon the exercise of certain of such options, which are being registered herein, were issued without registration under the Securities Act of 1933, as amended, in accordance with the exemption, from registration contained in Section 4(2) of such Act. ITEM 8. Exhibits. - ------------------ Exhibit Number - -------------- 4.1(i) 1989, 1990 and 1992 Non-Qualified Stock Options.* 4.1(ii) 1998 Incentive Stock Option Plan 5. Opinion of Michael C. Duban, P.C, as to the legality of the Securities being offered hereunder. 24.1 The consent of Michael C. Duban, P.C. is included in its opinion filed as Exhibit 5 to the Registration Statement. 24.2 Consent of Coopers & Lybrand L.L.P., independent accountants. * Previously filed and incorporated herein by reference. ITEM 9. Undertakings. - ---------------------- 1. The undersigned Registrant hereby undertakes to file during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement to include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement. 2. The undersigned Registrant hereby undertakes that, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. 3. The undersigned Registrant hereby undertakes to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. 4. The undersigned Registrant hereby undertakes that for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in the registration statement shall be deemed to be a new registration statement related to the securities offered therein, and the offering of such securities at such time shall be deemed to be the initial bona fide offering thereof. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets the requirement for filing on Form S-8 and the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in Bohemia, New York on December __, 199_. Dated: February, 1998 By: /s/ Scott Rudolph -------------- ----------------------------------- Scott Rudolph President, Chief Executive Officer Dated: February, 1998 By: /s/ Harvey Kamil -------------- ----------------------------------- Harvey Kamil Executive Vice President and Chief Financial Officer Pursuant to the requirements of the Securities Exchange Act of 1933, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated. Dated: February, 1998 By: /s/ Scott Rudolph -------------- ----------------------------------- Scott Rudolph Chairman, President and Chief Executive Officer Dated: February, 1998 By: /s/ Arthur Rudolph -------------- ----------------------------------- Arthur Rudolph, Director Dated: February, 1998 By: /s/ Aram Garabedian -------------- ----------------------------------- Aram Garabedian, Director Dated: February, 1998 By: /s/ Bernard G. Owen -------------- ----------------------------------- Bernard G. Owen, Director Dated: February, 1998 By: /s/ Alfred Sacks -------------- ----------------------------------- Alfred Sacks, Director Dated: February, 1998 By: /s/ Murray Daly -------------- ----------------------------------- Murray Daly, Director Dated: February, 1998 By: /s/ Glenn Cohen -------------- ----------------------------------- Glenn Cohen, Director Dated: February, 1998 By: /s/ Bud Solk -------------- ----------------------------------- Bud Solk, Director Dated: February, 1998 By: /s/ Nathan Rosenblatt -------------- ----------------------------------- Nathan Rosenblatt, Director EX-4 2 EXHIBIT 4.1(II)-1998 INCENTIVE STOCK OPTION PLAN Exhibit 4.1(ii) NBTY, INC. 1998 INCENTIVE STOCK OPTION PLAN 1. Purpose of the Plan. The purpose of the NBTY, Inc. 1998 Incentive Stock Option Plan (hereinafter the "Plan") is to provide for the granting of stock options of officers, directors, affiliates and employees of NBTY, Inc. and the Subsidiaries in recognition of the valuable services provided, and contemplated to be provided, by such individuals. The general purpose of the Plan is to promote the interests of NBTY, Inc. and its stockholders and to reward dedicated individuals of NBTY, Inc. and its Subsidiaries by providing them additional incentives to continue and increase their efforts with respect to, and to remain in the service of, NBTY, Inc. or its Subsidiaries. 2. Certain Definitions. The following terms (whether used in the singular or plural) have the meanings indicated when used in the Plan: (a) "Act" means the Omnibus Budget Reconciliation Act of 1993, as amended (b) "Agreement" means the incentive stock options agreement specified in Section 10. (c) "Approved Transaction" means any transaction in which the Board (or, if approval of the Board is not required as a matter of law, the stockholders of NBTY, Inc.) shall approve (i) any consolidation or merger of NBTY, Inc. in which NBTY, Inc., is not the continuing or surviving corporation or pursuant to which shares of Common Stock would be converted into cash, securities or other property, other than a merger of NBTY, Inc. in which the holders of Common Stock immediately prior to the merger have the same proportionate ownership of common stock of the surviving corporation immediately after the merger, or (ii) any sale, lease, exchange, or other transfer (in one transaction or a series of related transactions) of all, or substantially all, of the assets of NBTY, Inc., or (iii) the adoption of any plan or proposal for the liquidation or dissolution of NBTY, Inc. (d) "Award" means grant of Options under this Plan. (e) "Board" means the Board of Directors of NBTY, Inc. (f) "Board Change" means, during any period of two consecutive years, individuals who at the beginning of such period constituted the entire Board ceased for any reason to constitute a majority thereof unless the election, or the nomination for election by NBTY, Inc.'s stockholders, of each new director was approved by a vote of at least two-thirds of the directors then still in office who were directors at the beginning of the period. (g) "Code" means the Internal Revenue Code of 1986, as amended from time to time, or any successor statute or statutes thereto. Reference to any specific Code section shall include any successor section. (h) "Committee" means the Committee comprised of members of the Board appointed pursuant to Section 4. (i) "Common Stock" means the Committee comprised of members of the Board appointed pursuant to Section 4. (j) "NASDAQ" means the NASDAQ National Market. (k) "Control Purchase" means any transaction in which any person (as such term is defined in Sections 13(d) and 14(d)(2) of the Exchange Act), corporation or other entity (other than NBTY or any employee benefit plan sponsored by NBTY, Inc. or any of its Subsidiaries) (i) shall purchase any Common Stock (or securities convertible into or exchangeable for Common Stock) for cash, securities or any other consideration pursuant to a tender offer or exchange offer, without the prior consent of the Board, or (ii) shall become the "beneficial owner" (as such term is defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of NBTY, Inc. representing 20% or more of the combined voting power of the then outstanding securities of NBTY, Inc. ordinarily (and apart from the rights accruing under special circumstances) having the right to vote in the election of directors (calculated as provided in Rule 13d-3(d) in the case of rights to acquire NBTY Inc.'s securities). (l) "Effective Date" means the date the Plan becomes effective pursuant to Section 14. (m) "Exchange Act" means the Securities Exchange Act of 1934, as amended from time to time, or any successor statute or statutes thereto. Reference to any specific Exchange Act section shall include any successor section. (n) "Fair Market Value" of a share of Common Stock means the average of the high and low sales prices of a share of Common Stock on NASDAQ on the date in question except as otherwise provided in Section 6.1. (o) "Holder" means an employee of NBTY, Inc. or any of its Subsidiaries who has received an option under this Plan. (p) "ISO" means an incentive stock option within the meaning of Section 422A(b) of the Code. (q) "Option" means any ISO granted pursuant to this Plan. (r) "Plan" has the meaning ascribed thereto in Section 1. (s) "Subsidiary" of a person means any present or future subsidiary of such person as such term is defined in Section 425 of the Code and any present or future trade or business, whether or not incorporated, controlled by or under common control with such person. An entity shall be deemed a Subsidiary of a person only for such periods as the requisite ownership or control relationship is maintained. (t) "NBTY" means NBTY, Inc., a Delaware corporation, and any successor thereto. (u) "Total Disability" means a permanent and total disability as defined in Section 22(e)(3) of the Code. (v) "Individual" means an officer, director, affiliate or employee of NBTY, Inc. or any of its subsidiaries. 3. Stock Subject to the Plan. 3.1 Number of Shares. Subject to the provisions of Section 12 and this Section 3, the maximum number of shares of Common Stock in respect of which Awards may be granted under the Plan is 1,000,000 shares. If and to the extent that any Option shall expire, terminate or be canceled for any reason without having been exercised (or without having been considered to have been exercised as provided in Section 6, the shares of Common Stock subject to such expired, terminated or canceled portion of the Option shall again become available for purposes of the Plan. 3.2 Character of Shares. Shares of Common Stock deliverable under the terms of the Plan may be, in whole or in part, authorized and unissued shares of Common Stock or issued shares of Common Stock held in NBTY's treasury, or both. 3.3 Reservation of Shares. NBTY shall at all times reserve a number of shares of Common Stock (authorized and unissued Common Stock, issued Common Stock held in NBTY's treasury, or both) equal to the maximum number of shares that may be subject to options and future options under the Plan. 4. Administration 4.1 Powers. The Plan shall be administered by the Board. Subject to the express provisions of the Plan, the Board shall have plenary authority, in its discretion, to grant Options under the Plan and to determine the terms and conditions (which need not be identical) of all Options so granted, including without limitation, (a) the individuals to whom, and the time or times at which Options shall be granted or awarded, (b) the number of shares to be subject to each Option, (c) when an Option can be exercised and whether in whole or in installments, and (d) the form, terms and provisions of any Agreement (which terms may be amended, subject to Section 13.2). 4.2 Factors to Consider. In making determinations hereunder, the Board may take into account the nature of the services rendered by the respective individuals, their dedication and past contributions to NBTY and its Subsidiaries, their present and potential contributions to the success of NBTY and its Subsidiaries and such other factors as the Board in its discretion shall deem relevant. 4.3 Interpretation. Subject to express provisions of the Plan, the Board shall have plenary authority to interpret the Plan, to prescribe, amend and rescind the rules and regulations relating to it and to make all other determinations deemed necessary or advisable for the administration of the Plan. The determinations of the Board on the matters referred to in this Section 4 shall be conclusive. 4.4 Delegation to Committee. Notwithstanding anything to the contrary contained herein, the Board may at any time, or from time to time, appoint a Committee and delegate to such Committee the authority of the Board to administer the Plan, including to the extent provided by the Board, the power to further delegate such authority. Upon such appointment and delegation, any such Committee shall have all the powers, privileges and duties of the Board in the administration of the Plan to the extent provided in such delegation, except for the power to appoint members of the Committee and to terminate, modify or amend the Plan. The Board may from time to time appoint members of any such Committee in substitution for or in addition to members previously appointed, may fill vacancies in such Committee and may discharge such Committee. Any such Committee shall hold its meetings at such times and places as it shall deem advisable. A majority of members shall constitute a quorum and all determinations shall be made by a majority of such quorum. Any determination reduced to writing and signed by all of the members shall be fully as effective as if it had been made by a majority vote at a meeting duly called and held. 5. Eligibility. 5.1 General. Options may be granted to (a) employees, officers, directors and affiliates of NBTY or any of its Subsidiaries and (b) prospective employees of NBTY or any of its Subsidiaries. The exercise of Options granted to a prospective employee shall be conditioned upon such person becoming an employee of NBTY or any of its Subsidiaries. For purposes of the Plan, the term "prospective employee" shall mean any person who holds an outstanding offer of employment on specific terms from NBTY or any of its Subsidiaries. Options may be granted to employees who hold or have held Options under this Plan or any similar or other Options under any plan of NBTY or its Subsidiaries. 5.2 Special ISO Rule. No ISO shall be granted to an individual who, at the time the ISO is granted, owns (or is considered as owning within the meaning of Section 425(d) of the Code) stock possessing more than 10% of the total combined voting power of all classes of stock of NBTY or any Subsidiary, unless at the time such ISO is granted, the option price is at least 110% of the Fair Market Value of the Common Stock subject to the ISO and the ISO by its terms is not exercisable after the expiration of five years from the date it is granted. 6 Options. 6.1 Option Prices. Subject to Section 5.2, the purchase price of the Common Stock under each Option shall be determined by the Board and set forth in the applicable Agreement, but shall not be less then 100% of the Fair Market Value of the Common Stock on the date of grant. 6.2 Term of Options. The term of each Option shall be for such period as the Board shall determine, as set forth in the applicable Agreement, but not more than 10 years from the date of grant (except as provided in Section 5.2). 6.3 Exercise of Options. An Option granted under the Plan shall become (and remain) exercisable during the term of the Option to the extent provided in the applicable Agreement and this Plan and, unless the Agreement otherwise provides, may be exercised to the extent exercisable, in whole or in part, at any time and from time to time during such term; provided, however, that subsequent to the grant of an Option, the Board, at any time before complete termination of such Option, may accelerate the time or times at which such Option may be exercised in whole or in part (without reducing the term of such Option). The Agreement may contain conditions precedent to the exercisability of Options, including without limitation, the achievement of minimum performance criteria. 6.4 Manner of Exercise. Payment of the Option purchase price shall be made in cash or in whole shares of Common Stock already owned by the person exercising on Option or, partly in cash and partly in such Common Stock; however, that such payment may be made in whole or in part in shares of Common Stock only if and to the extent permitted by the applicable Agreement. An Option shall be exercised by written notice to NBTY upon such terms and conditions as provided in the Agreement. NBTY shall effect the transfer of the shares of Common Stock purchased under the Option as soon as practicable, and within a reasonable time thereafter such transfer shall be evidenced in the books of NBTY. No Holder exercising an Option shall have any of the rights of a stockholder of NBTY with respect to shares of Common Stock subject to an Option granted under the Plan until due exercise and full payment has been made. No adjustment shall be made for cash dividends or other rights for which the record date is prior to the date of such due exercise and full payment. 7. Termination of Association. 7.1 General. If a Holder's association shall terminate prior to the complete exercise of an Option (or deemed exercise thereof, as provided in Section 6.3), then such Option shall thereafter be exercisable in accordance with the provisions of the applicable Agreement (including the provisions of any other agreement referred to in the Agreement); provided, however, that (a) no Option may be exercised after the scheduled expiration date of such Option; (b) if the Holder's association terminates by reason of death or Total Disability, the Option shall remain exercisable for a period of at least one year following such termination (but no later than the scheduled expiration of such Option); and (c) any termination for cause will be treated in accordance with the provisions of Section 7.2. 7.2 Termination for Cause. If a Holder's association with NBTY or any of its Subsidiaries shall be terminated for cause by NBTY or such Subsidiary prior to the exercise of any Option, then all Options held by such Holder shall immediately terminate. For the purposes of this Section 7.2, cause shall have the meaning ascribed thereto in any agreement to which Holder is a party. In the absence of an agreement, cause shall include but not be limited to, insubordination, dishonesty, incompetence, moral turpitude, other misconduct or any kind and the refusal to perform his duties and responsibilities for any reason other than illness or incapacity; provided, however, that if such termination occurs within 12 months after an Approved Transaction, Control Purchase or Board Change, termination for cause in the absence of an employment agreement shall mean only a felony conviction for fraud, misappropriation or embezzlement. 7.3 Special Rule. Notwithstanding any other provisions of the Plan, the Board may provide in the applicable Agreement that the Option shall become and/or remain exercisable at rates and times at variance with the rules otherwise herein set forth; provided, however, that any such Agreement provisions at variance with the exercisability rules otherwise set forth herein shall be effective only if reflected in the terms of an employment agreement approved or ratified by the Board. 7.4 Miscellaneous. The Board may determine whether any given leave of absence constitutes a termination by that individual. 8. Right to Terminate Association. Nothing contained in the Plan or in any Option shall confer on any Holder any right to continue in the employ of NBTY or any of its Subsidiaries or interfere in any way with the right of NBTY or a Subsidiary to terminate the association of the Holder at any time, with or without cause; subject, however, to the provisions of any association agreement between the Holder and NBTY or any of its Subsidiaries. 9. Nonalienation of Benefits Unless otherwise set forth herein, no right or benefit under the Plan shall be subject to anticipation, alienation, sale, assignment, hypothecation, pledge, exchange, transfer, encumbrance or charge, and any attempt to anticipate, alienate, sell, assign, hypothecate, pledge, exchange, transfer, encumber or charge the same shall be void, No right or benefit hereunder shall in any manner be liable for or subject to the debts, contracts, liabilities or torts of the person entitled to such benefits. 10. Written Agreement. Each grant of an Option shall be evidenced by a stock option agreement, which shall designate the Options granted thereunder as ISO's in such form and containing such terms and provisions not inconsistent with the provisions of the Plan as the Board from time to time shall approve; provided, however, that such Option may be evidenced by a single agreement. The effective date of the granting of an Option shall be the date on which the Board approves such grant. Each grantee of an Option shall be notified promptly of such grant and a written Agreement shall be promptly executed and delivered by NBTY and the grantee, provided that such grant of Options shall be terminate if such written Agreement is not signed by such grantee (or his attorney) and delivered to NBTY within 90 days after the date the Agreement is sent to such grantee for signature. Any such written Agreement may contain (but shall not be required to contain) such provisions as the Board deems appropriate to ensure that the penalty provisions of Section 4999 of the Code will not apply to any stock or cash received from NBTY of any of its Subsidiaries by the Holder or a transferee of such Holder if the Option or any part thereof, has been transferred pursuant to Section 20. 11. Adjustment Upon changes in Capitalization, etc. In the event of any stock split, dividend, distribution, combination, reclassification of recapitalization that changes the character or amount of the Common Stock while any portion of any Option theretofore granted under the Plan is outstanding but unexercised, the Board shall make such adjustments in the character and number of shares subject to such Option and, in the Option price, as shall be applicable, equitable and appropriate in order to make such Option immediately after any such change, as nearly as may be practicable, equivalent to such Option immediately prior to any such change. If any merger, consolidation or similar transaction affects the Common Stock subject to any unexercised Option theretofore granted under the Plan, the Board or any surviving or acquiring corporation shall take such action as is equitable and appropriate to substitute a new Option for such Option or to assume such Option in order to make such new or assumed Option, as nearly as may be practicable, equivalent to the old Option. If any such change or transaction shall occur, the number and kind of shares for which Options may thereafter be granted under the Plan shall be adjusted to give effect thereto. 12. Right of First Refusal. The Agreements may contain such provisions as the Board shall determine to the effect that if a Holder, or such other person exercising an Option, elects to sell all or any shares of Common Stock that such Holder or other person acquired upon the exercise of an Option awarded under the Plan, then such Holder or other person shall not sell such shares unless such Holder or other person shall have first offered in writing to sell such shares to NBTY at Fair Market Value on a date specified in such offer (which date shall be at lease three business days and not more than 10 business days following the date of such offer). In any such event, certificates representing shares issued upon exercise of Options shall bear a restrictive legend to the effect that transferability of such shares is subject to the restrictions contained in the Plan and the applicable Agreement and NBTY may cause the registrar of its Common Stock to place a stop transfer order with respect to such shares. 13. Termination and Amendment. 13.1 General. Unless the Plan shall theretofore have been terminated as hereinafter provided, no Options may be granted under the Plan on or after the tenth anniversary of the Effective Date. The Board may at any time prior to the tenth anniversary of the Effective Date terminate the Plan, and the Board may at any time modify or amend the Plan in such respects as it shall deem advisable; provided, however, that any such modification or amendment shall comply with all applicable laws, applicable stock exchange listing requirements. 13.2 Modification. Except as otherwise set forth herein, no termination, modification or amendment of the Plan may, without the consent of the person to whom any Option shall theretofore have been granted (or a transferee of such person if the Option, or any part thereof, has been transferred pursuant to Section 20), adversely affect the rights of such person with respect to such Option. No modification, extension, renewal or other change in any Option granted under the Plan shall be made after the grant of such Option, unless the same is consistent with the provisions of the Plan. With the consent of the Holder (or transferee of such Holder if the Option, or any part thereof, has been transferred pursuant to Section 20) and subject to the terms and conditions of the Plan (including Section 13), the Board may amend outstanding Agreements with any Holder (or any such transferee), including without limitation, any amendment which would (a) accelerate the time or times at which the Option may be exercised and/or (b) extend the scheduled expiration date of the Option. Without limiting the generality of the foregoing, the Board may but solely with the Holder's consent, agree to cancel any Option under the Plan held by such Holder and issue a new Option in substitution therefor, provided that the Option so substituted shall satisfy all of the requirements of the Plan as of the date such new Option is granted. 14. Effectiveness of the Plan. The Plan shall become effective upon notification by the affirmative vote of a majority of the votes duly case thereof, either in person or by proxy, by the holders of voting securities of NBTY entitled to vote thereon, voting together as a single class, at a duly called and held meeting of stockholders of NBTY. 15. Government and Other Regulations. The obligation of NBTY with respect to Options shall be subject to all applicable laws, rules and regulations and such approvals by any governmental agencies as may be required under the Securities Act of 1933, and the rules and regulations of any securities exchange on which the Common Stock may be listed. For so long as the Common Stock is registered under the Exchange Act, NBTY shall use its reasonable efforts to comply with any legal requirements (a) to maintain a registration statement in effect under the Securities Act of 1933, as amended, with respect to all shares of Common Stock that may be issued to Holders under the Plan, and (b) to file in a timely manner al reports required to be filed by it under the Exchange Act. 16. Withholding. NBTY's obligation to deliver shares of Common Stock or pay cash in respect of any Option under the Plan shall be subject to applicable federal, state and local tax withholding requirements. 17. Separability. If any of the terms or provisions of this Plan conflict with the requirements of applicable law or applicable rules and regulations thereunder, including the requirements of Section 162(m) of the Code, Rule 16b-3 under the Exchange Act and/or Section 422A of the Code, then such terms or provisions shall be deemed inoperative to the extent necessary to avoid the conflict with applicable law, or applicable rules and regulations, without invalidating the remaining provisions hereof. If this Plan does not contain any provisions required to be included herein under Section 422A of the Code, such provision shall be deemed to be incorporated herein with the same force and effect as if such provision had been set out at length herein; provided, further, that to the extent any option which is intended to qualify as an ISO cannot so qualify, such Option, to that extent, shall be deemed to be a Nonqualified Stock Option for all purposes of the Plan. 18. Non-Exclusivity of the Plan. Neither the adoption of the Plan by the Board nor the submission of the Plan to the stockholders of NBTY for approval shall be construed as creating any limitations on the power of the Board to adopt such other incentive arrangements as it may deem desirable, including, without limitation, the granting of stock options and the awarding of stock and cash otherwise than under the Plan, and such arrangements may be either generally applicable or applicable only in specific cases. 19. Exclusion from Pension and Profit-Sharing Computation. By acceptance of an Option, each Holder shall be deemed to have agreed that such Option is special incentive compensation that will not be taken into account, in any manner, as salary, compensation or bonus in determining the amount of any payment under any pension, retirement or other employee benefit plan of NBTY or any of its Subsidiaries. In addition, each beneficiary of a deceased Holder shall be deemed to have agreed that such Option will not affect the amount of any life insurance coverage, if any provided by NBTY or any of its Subsidiaries on the life of the Holder which is payable to such beneficiary under any life insurance plan covering employees of NBTY or any of its Subsidiaries. 20. Beneficiaries. Each Holder may designate any person(s) or legal entity(ies), including his or her estate, as his or her beneficiary under the Plan. Such designation shall be made in writing on a form filed with the Secretary of NBTY or his or her designee and may be revoked or changes by such Holder at any time by filing written notice of such revocation or change with the Secretary of NBTY or his or her designee. If no person shall be designated by a Holder as his or her beneficiary or if no person designated as a beneficiary survives such Holder, the Holder's beneficiary shall be his or her estate. 21. Governing Law. The Plan shall be governed by, and construed in accordance with, the laws of the State of New York. EX-5 3 EXHIBIT 5-OPINION OF MICHAEL DUBAN EXHIBIT 5 MICHAEL C. DUBAN, P.C. ATTORNEY AT LAW 81 MAIN STREET -------- SUITE 205 WHITE PLAINS, NEW YORK 10601 -------- WRITER'S DIRECT DIAL TELEPHONE 914 681-0606 (914) TELECOPIER 914 948-0462 February 9, 1998 NBTY, Inc. 90 Orville Drive Bohemia, New York 11716 RE: REGISTRATION STATEMENT ON FORM S-8 UNDER THE SECURITIES ACT OF 1933, AS AMENDED Gentlemen: In my capacity as counsel to NBTY, Inc. a Delaware Corporation (the "Company"), I have been asked to render this opinion in connection with a Registration Statement on Form S-8 filed by the Company with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Registration Statement"), covering 4,084,000 shares of Common Stock (the "Stock"). In connection, I have examined the Certificate of Incorporation, as amended, and the By-Laws of the Company, the Registration Statement, as amended, corporate proceedings of the Company relating to the issuance of the Stock, and such other instruments and documents as I have deemed relevant under the circumstances. In making the aforesaid examinations, I have assumed the genuineness of all signatures and conformity to original documents of all copies furnished to me as photostatic copies. I have also assumed that the corporate records furnished to be me by the Company included all corporate proceedings taken by the Company to date. Based upon the foregoing, I am of the opinion that: The Stock has been duly and validly authorized and, when issued and paid for as described in the Registration Statement, will be duly and validly issued, fully paid and nonassessable shares of Common Stock of the Company. I hereby consent to the use of my opinion as herein set forth as an exhibit to the Registration Statement and to the use of my name under the caption "Legal Matters" in the Prospectus forming a part of the Registration Statement. Your attention is directed to the fact that the undersigned is a stockholder of the Company's Common Stock. Yours very truly, /s/ Michael C. Duban Michael C. Duban EX-24 4 EXHIBIT 24.2-CONSENT EXHIBIT 24.2 CONSENT OF INDEPENDENT ACCOUNTANTS We consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated November 6, 1997, on our audits of the consolidated financial statements and financial statement schedule of NBTY, Inc. and Subsidiaries as of September 30, 1997 and 1996, and for each of the three years in the period ended September 30, 1997 which report is included in the NBTY, Inc. Annual Report on Form 10-K. We also consent to the reference to our Firm under the caption "Experts". COOPERS & LYBRAND L.L.P. -----END PRIVACY-ENHANCED MESSAGE-----