-----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, OSH+am39nsx43VYGNp9jhnEP3ChNTBri6Grjno0eaSCqM7qKBHbcoxHkCFDfjMx4 44oBbNqeZi/fyuNzs1M5Jg== 0000910647-03-000312.txt : 20030818 0000910647-03-000312.hdr.sgml : 20030818 20030818091545 ACCESSION NUMBER: 0000910647-03-000312 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 20030815 EFFECTIVENESS DATE: 20030815 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: 1933 Act SEC FILE NUMBER: 333-108038 FILM NUMBER: 03851865 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 nbty-s8.txt FORM S-8 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 15, 2003 REGISTRATION NO. UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 NBTY, INC. (Exact Name of Registrant as Specified in its Charter) DELAWARE 11-2228617 (State or other jurisdiction of (I.R.S. Employer Incorporation or Organization) Identification Number) 90 Orville Drive, Bohemia, New York 11716 (Address of principal executive offices) (Zip Code) NBTY, INC. YEAR 2002 STOCK OPTION PLAN (Full Title of the Plan) SCOTT RUDOLPH, CHAIRMAN NBTY, INC. 90 ORVILLE DRIVE BOHEMIA, NEW YORK 11716 (631) 567-9500 (Name, address, including zip code, and telephone number, including area code, of agent for service) A copy of all communications including communications sent to the agent for service should be sent to: IRENE B. FISHER, ESQ. NBTY, INC. 90 ORVILLE DRIVE BOHEMIA, NEW YORK 11716 (631) 218-7327 CALCULATION OF REGISTRATION FEE
Proposed Title of Each Maximum Proposed Class of Securities Amount to Be Offering Price Maximum Amount of to Be Registered Registered Per Share Offering Price Registration Fee - -------------------------------------------------------------------------------------------------- NBTY, Inc. Year 2002 Stock Option Plan(1) Common Stock, par value $.008 per share 1,500,000(2)(3) $24.60 $36,900,000 $2,986(5) Represents options granted or to be granted pursuant to the NBTY, Inc. Year 2002 Stock Option Plan (the "Plan") of NBTY, Inc. (the "Registrant"). Shares issuable upon exercise of options granted or available for grant under the Plan. Pursuant to Rule 416, includes an indeterminable number of shares of Common Stock which may become issuable pursuant to the anti-dilution provisions of the Plan and the Options. Calculated solely for the purpose of determining the registration fee pursuant to Rule 457(h)(1) based upon the average of the high and low sales prices of the Registrant's Common Stock on NASDAQ NMS on August 8, 2003. No registration fee is required pursuant to Rule 457(h)(3) for shares offered for resale.
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents filed with the Securities and Exchange Commission (the "Commission") by NBTY, Inc. (the "Registrant"), pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), are incorporated by reference in this registration statement. (1) The Registrant's Annual Report on Form 10-K for the fiscal year ended September 30, 2002. (2) The Registrant's Quarterly Report on Form 10-Q for the quarterly period ended December 31, 2002. (3) The Registrant's Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2003. (4) The Registrant's Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2003. (5) The Registrant's Current Report on Form 8-K filed July 23, 2003. (6) The Registrant's Current Report on Form 8-K filed July 29, 2003. (7) The Registrant's Current Report on Form 8-K filed August 5, 2003. All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, 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 by reference herein and to be a part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be 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 also is incorporated or deemed to be incorporated by reference herein modified or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement. ITEM 4. DESCRIPTION OF SECURITIES. Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Irene B. Fisher, Esq., counsel to the Registrant, is rendering an opinion upon the validity of the securities being registered hereby. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Under the Delaware General Corporation Law, (the "DGCL"), a corporation may indemnify any person made, or threatened to be made, a party to any action or proceeding, except for stockholder derivative suits, by reason of the fact that he or she was a director or officer of the corporation, provided such director or officer acted in good faith for a purpose which he or she reasonably believed to be in the best interests of the corporation and, in criminal proceedings, had no reasonable cause to believe his or her conduct was unlawful. Indemnification may be provided against judgments, fines, amounts paid in settlement and reasonable expenses, including attorneys' fees actually and necessarily incurred as a result of such action, proceeding or appeal therefrom. Delaware law also provides that expenses incurred in defending a civil or criminal action may be paid by the corporation in advance of the final disposition of such proceedings upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it is ultimately determined that such person was not entitled to such indemnification. In the case of stockholder derivative suits, the corporation may indemnify any person by reason of the fact that he or she was a director or officer of the corporation if he or she acted in good faith for a purpose which he or she reasonably believed to be in the best interest of the corporation, except that no indemnification may be made in respect of (i) a threatened action, or a pending action which is settled or otherwise disposed of, or (ii) any claim, issue or matter as to which such person has been adjudged to be liable to the corporation, unless and only to the extent that the court in which the action was brought, or, if no action was brought, any court of competent jurisdiction, determines upon application that, in view of all the circumstances of the case, the person is fairly and reasonably entitled to indemnity for such portion of the settlement amount and expenses as the court deems proper. The indemnification and advancement of the expenses described above under the DGCL is not exclusive of other indemnification rights to which a director or officer may be entitled, whether contained in the certificate of incorporation or by-laws or when authorized by (i) such certificate of incorporation or by-laws, (ii) a resolution of stockholders, (iii) a resolution of directors, or (iv) an agreement providing for such indemnification, provided that no indemnification may be made to or on behalf of any director or officer if a judgment or other final adjudication adverse to the director or officer establishes that his or her acts were committed in bad faith or were the result of active and deliberate dishonesty and were material to the cause of action so adjudicated, or that he or she personally gained in fact a financial profit or other advantage to which he or she was not legally entitled. Any person who has been successful on the merits or otherwise in the defense of a civil or criminal action or proceeding will be entitled to indemnification. Except as provided in the preceding sentence, unless ordered by a court pursuant to the DGCL, any indemnification under the DGCL pursuant to the above paragraphs may be made only if authorized in the specific case and after a finding that the director or officer met the requisite standard of conduct (i) by the disinterested directors if a quorum is available or (ii) in the event a quorum of disinterested directors is not available, if so directed by either (A) the board upon the written opinion of independent legal counsel or (B) by the stockholders. The Registrant's Restated Certificate of Incorporation provides that the Registrant shall indemnify directors and officers and their heirs, executors and administrators to the full extent permitted by the DGCL. The Registrant, by appropriate action of its Board of Directors, may indemnify directors and officers and their heirs, executors and administrators to the full extent permitted by the DGCL. INSOFAR AS INDEMNIFICATION FOR LIABILITIES ARISING UNDER THE SECURITIES ACT MAY BE PERMITTED TO DIRECTORS, OFFICERS AND CONTROLLING PERSONS OF THE REGISTRANT PURSUANT TO THE FOREGOING PROVISIONS, OR OTHERWISE, THE REGISTRANT HAS BEEN ADVISED THAT IN THE OPINION OF THE SECURITIES AND EXCHANGE COMMISSION SUCH INDEMNIFICATION IS AGAINST PUBLIC POLICY AS EXPRESSED IN THE SECURITIES ACT AND IS, THEREFORE, UNENFORCEABLE. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. ITEM 8. EXHIBITS. Exhibit No. Description of Exhibit 4.1 NBTY, Inc. Year 2002 Stock Option Plan (the "Plan") 4.2 Form of Incentive Stock Option Agreement under the Plan between the Company and the holder of stock options 4.3 Form of Non-Qualified Stock Option Agreement under the Plan between the Company and the holder of stock options 5.1 Opinion of Irene B. Fisher, Esq. 23.1 Consent of Irene B. Fisher, Esq. (included in Exhibit 5.1) 23.2 Consent of Independent Auditors ITEM 9. UNDERTAKINGS. (a) The undersigned Registrant hereby undertakes: (1) to file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represents a fundamental change in the information set forth in the registration statement; notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; (iii) 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; provided, however, that paragraphs (a)1(i) and (a)(1)(ii) of this section do not apply if the registration statement is on Form S-3, Form S-8 or Form F-3, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrants pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement. (2) 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 offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; and (3) 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. (b) 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 Section 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 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. (c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers or controlling persons of the Registrant pursuant to any arrangement, provision or otherwise, the Registrant has been advised that, in the opinion of the Securities and Exchange Commission, such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that 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 whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue. SIGNATURES In accordance with the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Bohemia, State of New York, on this 15th day of August, 2003. NBTY, INC. By: /s/ Scott Rudolph ------------------------------- Scott Rudolph, Chairman of the Board of Directors and Chief Executive Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Harvey Kamil as his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) and supplements to this Registration Statement, and registration statements under Rule 462, and to file the same with the Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933 this registration statement has been signed below by the following persons, in the capacities indicated, on August 12, 2003: /s/ Scott Rudolph /s/ Harvey Kamil - ------------------------------- -------------------------------- Scott Rudolph, Chairman Harvey Kamil, President and Chief Executive Officer and Chief Financial Officer (Principal Financial and Accounting Officer) /s/ Arthur Rudolph /s/ Aram G. Garabedian - ------------------------------- -------------------------------- Arthur Rudolph, Director Aram G. Garabedian, Director /s/ Michael C. Slade /s/ Bernard G. Owen - ------------------------------- -------------------------------- Michael C. Slade, Senior Vice Bernard G. Owen, Director President and Director /s/ Michael L. Ashner /s/ Alfred Sacks - ------------------------------- -------------------------------- Michael L. Ashner, Director Alfred Sacks, Director /s/ Murray Daly /s/ Nathan Rosenblatt - ------------------------------- -------------------------------- Murray Daly, Director Nathan Rosenblatt, Director /s/ Glenn Cohen /s/ Peter White - ------------------------------- -------------------------------- Glenn Cohen, Director Peter White, Director EX-4 3 nbtys841.txt EXHIBIT 4.1 EXHIBIT 4.1 NBTY, INC. YEAR 2002 STOCK OPTION PLAN --------------------------- Section 1 Title This Plan shall be known as the "NBTY, Inc. Year 2002 Stock Option Plan." Section 2 Purpose The purpose of the Plan is to advance the interests of NBTY, Inc., a Delaware corporation (the "Company"), by providing key employees, directors and certain other persons with opportunities to participate in the ownership of the Company and its future growth through (a) the grant of options which qualify as "incentive stock options" ("ISOs") under Section 422(b) of the Internal Revenue Code of 1986, as amended (the "Code"); and (b) the grant of options which do not qualify as ISOs ("Non-Qualified Options"). Both ISOs and Non-Qualified Options are referred to hereafter individually as an "Option" and collectively as "Options". Section 3 Administration 3.1 The Plan shall be administered by the Board of Directors of the Company (the "Board") or by a committee designated by the Board (the "Committee"), which Committee shall be constituted in such a manner as to satisfy applicable laws and to permit such grants and related transactions under the Plan to be exempt from Section 16(b) of the Securities Exchange Act of 1934, as amended, in accordance with Rule 16b-3 thereunder. Once appointed, such Committee shall continue to serve in its capacity until otherwise directed by the Board. 3.2 Subject to ratification of the grant or authorization of each Option by the Board (if so required by applicable state law), and subject to the terms of the Plan, the Committee shall have the authority to (i) determine to whom (from among the class of persons eligible under Section 4 to receive Options) Options shall be granted; (ii) determine the time or times at which Options shall be granted; (iii) determine the purchase price of shares subject to each Option, which prices shall not be less than the minimum price specified in Section 7; (iv) determine whether each Option granted shall be an ISO or a Non-Qualified Option; (v) determine (subject to the terms contained herein) the time or times when each Option shall become exercisable and the duration of the exercise period; (vi) determine any other provisions applicable to the Option and the shares of Common Stock issuable upon exercise thereof; (vii) interpret the Plan and prescribe and rescind rules and regulations relating to it; and (viii) make all other determinations necessary or advisable for administration of the Plan. 3.3 The interpretation and construction by the Committee of any provisions of the Plan or of any Option granted under it shall be final and conclusive unless otherwise determined by the Board. The Committee may from time to time adopt such rules and regulations for carrying out the Plan as it may deem advisable. 3.4 No member of the Board (or its Committee) or any officer, director, employee or agent of the Company shall be liable for any action or determination made in good faith with respect to the Plan or any Option granted under it. Section 4 Eligibility 4.1 The Board (or its Committee) may grant Options to those employees, officers, directors, consultants and advisors of the Company or any of its subsidiaries whom the Board (or its Committee), in its sole discretion, identifies as being in a position which enables such individuals to contribute to the continued growth, development and future financial success of the Company or any of its subsidiaries. 4.2 A director, officer or other person who is not also an employee of the Company shall not be eligible to receive an ISO. 4.3 The granting of any Option to any individual shall neither entitle that individual to, nor disqualify that individual from, participation in any other grant of Options. Section 5 Stock Reserved For Options 5.1 Subject to adjustment as provided in Section 14, the maximum number of shares of Common Stock of the Company, par value $0.008 per share (the "Common Stock"), to be reserved for issuance upon the exercise of Options granted under the Plan shall be 1,500,000 shares of Common Stock. 5.2 Any and all of the shares subject to Options under the Plan may be authorized but unissued shares of Common Stock, or issued shares of Common Stock that have been or shall have been reacquired by the Company, as the Board (or its Committee) may from time to time determine. 5.3 If any Option granted under the Plan shall expire or terminate for any reason without having been exercised in full or shall cease for any reason to be exercisable in whole or in part, the unpurchased shares subject to such Option shall again be available for grants of Options under the Plan unless the Plan shall have been terminated. Section 6 Granting of Options 6.1 Subject to the limitations of the Plan, the Board (or its Committee) may, after consultation with and consideration of the recommendations of management and the Board (in the case of the Committee), select those individuals to be granted Options ("Optionees") and determine the time when each such Option shall be granted and such other terms of each Option. The Board (or its Committee) shall clearly designate and identify each Option at the time it is granted as either an ISO or a Non- Qualified Option, as the case may be. The date of grant of an Option under the Plan will be the date specified by the Board (or its Committee) at the time it grants the Option; provided, however, that such date shall not be prior to the date on which the Board (or its Committee) acts to approve the grant. 6.2 The Board (or its Committee) may grant both ISOs and Non- Qualified Options to the same employee, and the exercise of one such Option does not in any way affect the employee's right to exercise the other. 6.3 The grant of any Option under the Plan shall be evidenced by the execution of a written Option Agreement ("Option Agreement") between the Company and the Optionee. Such Option Agreement shall set forth the date of grant of the Option, the exercise price, the term of the Option, the designation of the Option as an ISO or Non-Qualified Option, and the time or times and the conditions upon the happening of which the Option shall become exercisable. Such Option Agreement shall also set forth the restrictions, if any, with respect to which the shares of Common Stock to be purchased thereunder shall be subject, the restrictions, if any, on the repurchase of the shares of Common Stock by the Company, and such other terms and conditions as the Board (or its Committee) shall determine which are consistent with the provisions of the Plan and applicable laws and regulations. Section 7 Option Price 7.1 The exercise price per share specified in the Option Agreement relating to each Non-Qualified Option granted under the Plan shall be determined by the Board (or its Committee), without regard to the provisions of Section 7.2 and 7.3 hereof. 7.2 The exercise price per share specified in the Option Agreement relating to each ISO granted under the Plan shall not be less than the fair market value per share of Common Stock on the date of such grant. In the case of an ISO to be granted to an employee owning stock possessing more than ten percent (10%) of the total combined voting power of all classes of stock of the Company, the price per share specified in the Option Agreement relating to such ISO shall not be less than one hundred ten percent (110%) of the fair market value per share of Common Stock on the date of grant. For purposes of determining stock ownership under this paragraph, the rules of Section 424(d) of the Code shall apply. 7.3 Each eligible employee may be granted Options treated as ISOs only to the extent that, in the aggregate under this Plan and all incentive stock option plans of the Company, ISOs do not become exercisable for the first time by such employee during any calendar year with respect to stock having a fair market value (determined at the time the ISOs were granted) in excess of $100,000. The Company intends to designate any Options granted in excess of such limitation as Non-Qualified Options. 7.4 "Fair market value" shall be determined as of the last business day for which the prices or quotes discussed in this sentence are available prior to the date such Option is granted and shall mean (i) the average (on that date) of the high and low prices of the Common Stock on the principal national securities exchange on which the Common Stock is traded, if the Common Stock is then traded on a national securities exchange; or (ii) the last reported sale price (on that date) of the Common Stock on the NASDAQ Stock Market, if the Common Stock is not then traded on a national securities exchange; or (iii) the closing bid price (or average of bid prices) last quoted (on that date) by an established quotation service for over-the-counter securities, if the Common Stock is not reported on the NASDAQ Stock Market. Section 8 Term of Options 8.1 Subject to earlier termination as provided in paragraphs 10 and 11 or in the Option Agreement, the Board (or its Committee), in its sole discretion, shall prescribe the period during which Options may be exercised; provided that an ISO shall not be exercisable more than ten years from the date of grant in the case of ISOs generally and provided further that ISOs granted to an employee owning stock possessing more than ten percent (10%) of the total combined voting power of all classes of stock of the Company, as determined under Section 7.2, shall not be exercisable more than five years from the date of grant. 8.2 In the Option Agreement, the Board (or its Committee), in its sole discretion, may prescribe any conditions or events upon which the period during which an Option may be exercised may be shortened or terminated. Section 9 Exercise of Options 9.1 Subject to the provisions of Sections 10 and 11, the Board (or its Committee), in its sole discretion, shall prescribe in the Option Agreement the manner in which, the number and size of installments (which need not be equal) for which, and the contingencies upon which an Option may be exercised during its term. 9.2 Once an installment becomes exercisable it shall remain exercisable until expiration or termination of the Option. 9.3 Each Option or installment may be exercised at any time or from time to time, in whole or in part, for up to the total number of whole shares with respect to which it is then exercisable. If an Optionee does not purchase all the shares that the Optionee shall be entitled to purchase in any given installment, the Optionee's right to purchase the remaining shares shall continue until expiration or termination of such Option. No less than 100 shares may be purchased at one time unless the number purchased is the total number that may be then purchased under the Option. 9.4 The Board (or its Committee) shall have the right to accelerate the date that any installment of any Option becomes exercisable; provided that the Board (or its Committee) shall not, without the consent of an Optionee, accelerate the permitted exercise date of any installment of any Option granted to any employee as an ISO (and not previously converted into a Non-Qualified Option pursuant to paragraph 15) if such acceleration would violate the annual vesting limitation contained in Section 422(d) of the Code, as described in paragraph 7.3. Section 10 Termination of Employment 10.1 Unless otherwise specified in the Option Agreement relating to such ISO, if an ISO Optionee ceases to be employed by the Company (including retirement) other than by reason of death or disability as defined in Section 11, no further installments of his or her ISOs shall become exercisable, and his or her ISOs shall terminate on the earlier of (a) ninety (90) days after the date of termination of his or her employment, or (b) their specified expiration dates, except to the extent that such ISOs (or unexercised installments thereof) have been converted into Non-Qualified Options pursuant to Section 15 hereof. 10.2 For purposes of this Section 10, employment shall be considered as continuing uninterrupted during any bona fide leave of absence (such as those attributable to illness, military obligations or governmental service) provided that the period of such leave does not exceed ninety (90) days or, if longer, any period during which such Optionee's right to reemployment is guaranteed by statute. A bona fide leave of absence with the written approval of the Board (or its Committee) shall not be considered an interruption of employment under this Section 10, provided that such written approval contractually obligates the Company to continue the employment of the Optionee after the approved period of absence. 10.3 Nothing in the Plan (or, unless specifically provided therein, in any Option Agreement) shall be deemed to give any grantee of any Option the right to be retained in employment by the Company for any period of time. 10.4 The Board (or its Committee), in its sole discretion, shall determine the extent, if any, to which the grantee of a Non-Qualified Option may exercise said Option upon his or her termination of employment with the Company. If not otherwise specified in an Option Agreement, a Non- Qualified Option must be exercised no later than the thirtieth (30th) day after the Optionee's termination of employment with the Company. Section 11 Death or Disability 11.1 Unless otherwise specified in the Option Agreement relating to such ISO, if an ISO Optionee ceases to be employed by the Company by reason of his or her death, any ISO owned by such Optionee may be exercised, to the extent otherwise exercisable on the date of his or her death, by his or her estate, personal representative or beneficiary who has acquired the ISO by will or by the laws of descent and distribution, until the earlier of (i) the specified expiration date of the ISO or (ii) twelve (12) months from the date of the Optionee's death. 11.2 If an ISO Optionee ceases to be employed by the Company by reason of his or her disability, such Optionee shall have the right to exercise any ISO held by him or her on the date of termination of employment, for the number of shares for which he or she could have exercised on that date, until the earlier of the specified expiration date of the ISO or twelve (12) months from the date of the termination of the Optionee's employment. For the purposes of the Plan, the term "disability" shall mean "permanent and total disability" as defined in Section 22(e) (3) of the Code or any successor statute. Notwithstanding the immediately preceding sentence, if an Optionee has entered into an employment agreement with the Company or any of its subsidiaries which contains a definition for the term "disability," then such term shall be used herein as therein defined. 11.3 The Board (or its Committee), in its sole discretion, shall determine the extent, if any, to which the grantee of a Non-Qualified Option may exercise said Option upon his or her termination of employment with the Company by reason of his or her disability or to which a legal representative of a deceased holder of a Non-Qualified Option may exercise said Option after the death of the Optionee. If not otherwise specified in an Option Agreement, a Non-Qualified Option must be exercised no later than ninety (90) days after the Optionee's termination of employment with the Company by reason of disability or death. Section 12 Means of Exercising Options 12.1 An Option (or any part or installment thereof) shall be exercised by giving written notice to the Company at its principal office address, or to such transfer agent as the Company shall designate. Such notice shall identify the Option being exercised and specify the number of shares as to which such Option is being exercised, accompanied by full payment of the purchase price therefore either (a) in United States dollars in cash or by check, (b) subject to the Board's (or its Committee's) sole discretion at the time of exercise, by payment through a broker-dealer sale and remittance procedure pursuant to which the Optionee (A) shall provide written instructions to a Company designated brokerage firm to effect the immediate sale of some or all of the shares of Common Stock that may be acquired upon exercise of an Option (the "Option Shares") and remit to the Company, out of the sale proceeds available on the settlement date, sufficient funds to cover the aggregated exercise price payable for the purchased Option Shares and (B) shall provide written directives to the Company to deliver the certificates for the purchased Option Shares directly to such brokerage firm in order to complete the sale transaction, or (c) at the sole discretion of the Board (or its Committee), by any combination of (a) and (b). 12.2 As soon as practicable following the exercise of an Option in the manner set forth above, the Company shall issue or cause its transfer agent to issue stock certificates representing the shares of Common Stock purchased. Until the issuance of such stock certificates (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), no right to vote or receive dividends or any other rights as a stockholder shall exist with respect to the shares of Common Stock. Except as expressly provided in Section 14 with respect to changes in capitalization, no adjustment shall be made for dividends or similar rights for which the record date is before the date such stock certificate is issued. Section 13 Transferability of Options 13.1 Except as otherwise provided in an Option Agreement pertaining to Non-Qualified Options, (i) no Option shall be assignable or transferable by the grantee except by will or by the laws of descent and distribution nor shall an Option be subject to attachment, execution or similar process. Except as set forth in the previous sentence and, except as otherwise provided in an Option Agreement pertaining to Non-Qualified Options, during the lifetime of a grantee each Option shall be exercisable only by such grantee. 13.2 In the event of (a) any attempt by the Optionee to alienate, assign, pledge, hypothecate or otherwise dispose of the Option, except as provided in this Plan, or (b) the levy of any attachment, execution or similar process upon the rights or interest hereby conferred, the Company may terminate the Option by notice to the Optionee and it shall thereupon become null and void. 13.3 If deemed necessary or appropriate by the Board (or its Committee), each Option Agreement may contain such provisions consistent with this Plan as the Board (or its Committee), in its sole discretion, may determine to be appropriate for restriction on the transfer and redemption by the Company or other disposition of all shares pursuant to the Option received by the Optionee (or his or her legal representatives), notwithstanding any tax consequences to the Optionee of such redemption or other disposition, including, without limitation, restrictions on transfers pursuant to any buy-sell agreement or stockholder agreement to which the Optionee is a party, under the Securities Act of 1933, as amended (the "Securities Act"), and under any blue sky or securities law applicable to such Common Stock. The Company may cause a restrictive legend to be placed on any certificate issued with respect to the Common Stock acquired upon exercise of an Option in such form as may be prescribed from time to time by applicable laws and regulations or as may be advised by legal counsel. Section 14 Adjustments Upon Changes in Capitalization and "Terminating Transaction" Events 14.1 Upon the occurrence of any of the following events, an Optionee's rights with respect to Options granted to such Optionee hereunder shall be adjusted as hereinafter provided, unless otherwise specifically provided in the Option Agreement: A. Stock Dividends and Stock Splits. If the shares of Common Stock of the Company shall be subdivided or combined into a greater or smaller number of shares or if the Company shall issue any shares of its Common Stock as a stock dividend on its outstanding Common Stock, the number of shares of Common Stock deliverable upon the exercise of Options shall be appropriately increased or decreased proportionately, and appropriate adjustments shall be made in the purchase price per share to reflect such subdivision, combination or stock dividend. B. Recapitalization or Reorganization. In the event of a recapitalization or reorganization of the Company (other than in connection with a transaction described in subparagraph C below) pursuant to which securities of the Company or of another corporation are issued with respect to the outstanding shares of Common Stock, an Optionee upon exercising an Option shall be entitled to receive for the purchase price paid upon such exercise the securities he or she would have received if he or she had exercised his or her Option prior to such recapitalization or reorganization. C. "Terminating Transaction" Events. Except as otherwise provided herein or in an Option Agreement, upon the consummation of a Terminating Transaction (as defined below), the Board (or its Committee) may, in its sole discretion, take any one or more of the following actions, as to outstanding Options: (i) provide that such Options (or portions thereof) shall be assumed or equivalent options shall be substituted, by the acquiring or succeeding corporation (or an affiliate thereof), with appropriate adjustments as to the number and kinds of shares or units and exercise prices; (ii) upon written notice to the Optionees, provide that the Plan and all unexercised Options (or portions thereof) will terminate immediately prior to the consummation of the sale of the Company unless exercised by the Optionee within a specified period of time; (iii) in the event that the Company is involved in a merger or other transaction under the terms of which holders of Common Stock of the Company will receive upon the consummation thereof a cash payment for each share surrendered in the merger or other transaction (the "Transaction Price"), make or provide for a cash payment to the Optionees equal to the difference between (A) the Transaction Price times the number of shares of Common Stock subject to such outstanding Options (to the extent then exercisable at prices not in excess of the Transaction Price) and (B) the aggregate exercise price of all such outstanding Options that shall become exercisable in full immediately prior to such event. For purposes of this Plan, "Terminating Transaction" means a single transaction or series of related transactions, pursuant to which any Person or Persons (acting as a group) who do not own a majority of the issued and outstanding shares of Common Stock of the Company (i) acquire(s) capital stock of the Company possessing the voting power to elect a majority of the Board, (ii) consummates a merger, amalgamation, consolidation, stock acquisition or any other transaction with the Company or its stockholders, as the case may be, a result of which such Person or Persons own, directly or indirectly, more than fifty percent (50%) of the Common Stock of the Company or the voting securities of the surviving entity, as the case may be or (iii) acquire(s) all or substantially all of the assets of the Company. For purposes of this Plan, "Person" shall mean an individual, corporation, limited liability company, association, trust, joint venture, unincorporated organization and any government, governmental department or agency or political subdivision thereof. 14.2 Notwithstanding the foregoing, any adjustments made pursuant to Section 14.1(A), (B), or (C) above with respect to ISOs shall be made only after the Board (or its Committee), after consulting with counsel for the Company, determines whether such adjustments would constitute a "modification" of such ISOs (as that term is defined in Section 424 of the Code) or would cause any adverse tax consequences for the holders of such ISOs. If the Board (or its Committee) determines that such adjustments made with respect to ISOs would constitute a modification of such ISOs or would cause adverse tax consequences to the holders, it may refrain from making such adjustments. 14.3 The Company may grant Options under the Plan in substitution for options held by employees of another corporation who become employees of the Company, or a subsidiary of the Company, as result of a merger or consolidation of the employing corporation with the Company or a subsidiary of the Company, or as a result of the acquisition by the Company, or one of its subsidiaries, of property or stock of the employing corporation. The Company may direct that substitute options be granted on such terms and conditions as the Board (or its Committee) considers appropriate in the circumstances. 14.4 In the event of the proposed dissolution or liquidation of the Company, each Option will terminate immediately prior to the consummation of such proposed action or at such other time and subject to such other conditions as shall be determined by the Board (or its Committee). 14.5 Except as expressly provided herein, no issuance by the Company of shares of stock of any class, or securities convertible into shares of stock of any class, shall affect, and no adjustment by reason thereof shall be made with respect to, the number or price of shares subject to Options. No adjustments shall be made for dividends paid in cash or in property other than securities of the Company. 14.6 No fractional shares shall be issued under the Plan and the Optionee shall receive cash in lieu of such fractional shares. 14.7 Upon the happening of any of the events described in Section 14.1 above, the class and aggregate number of shares set forth in Section 5 hereof that are subject to Options which previously have been or subsequently may be granted under the Plan shall also be appropriately adjusted to reflect the events described in such subparagraphs. The Board or its Committee (or the successor Board or its Committee) shall determine the specific adjustments to be made under this Section 14 and, subject to Section 3, its determination shall be final and conclusive. Section 15 Conversion of ISOs into Non-Qualified Options 15.1 The Board (or its Committee), at the written request or with the written consent of any Optionee, may in its sole discretion take such actions as may be necessary to convert such Optionee's ISOs (or any installments or portions of installments thereof) that have not been exercised on the date of conversion into Non-Qualified Options at any time prior to the expiration of such ISOs, regardless of whether the Optionee is an employee of the Company at the time of such conversion. Such actions may include, but shall not be limited to, extending the exercise period or reducing the exercise price of the appropriate installments of such ISOs. 15.2 At the time of such conversion, the Board (or its Committee) (with the consent of the Optionee) may impose such conditions on the exercise of the resulting Non-Qualified Options as the Board (or its Committee) in its sole discretion may determine, provided that such conditions shall not be inconsistent with this Plan. 15.3 Nothing in the Plan shall be deemed to give any Optionee the right to have such Optionee's ISOs converted into Non-Qualified Options, and no such conversion shall occur until and unless the Board (or its Committee) takes appropriate action. Section 16 Cancellation of Options Except as otherwise expressly provided in the Option Agreement pursuant to which an Option is issued, the Board (or its Committee) may, in its sole discretion, in cases involving a serious breach of conduct by an employee or former employee, or activity of a former employee in competition with the business of the Company, cancel any Option, whether vested or not, in whole or in part. Such cancellation shall be effective as of the date specified by the Board (or its Committee) but may not be retroactive. Activities which shall constitute a serious breach of conduct include, for example only: (i) the disclosure or misuse of confidential information or trade secrets; (ii) activities in violation of the policies of the Company, including, without limitation, the Company's insider trading policy; (iii) the violation or breach of any material provision in any employment contract or agreement among the Optionee and the Company; and (iv) engaging in conduct relating to the Optionee's employment with the Company for which either criminal or civil penalties may be sought. The determination of whether an employee or former employee has engaged in a serious breach of conduct or activity in competition with the business of the Company shall be determined by the Board (or its Committee) in good faith and in its sole discretion. Section 17 Termination and Amendment of Plan 17.1 Unless terminated earlier by the Board, the Plan shall terminate on the tenth anniversary of the date on which the Company's stockholders approved this Plan. 17.2 The Board may terminate or amend the Plan in any respect at any time, except that the approval of the Company's stockholders must be obtained within 12 months before or after the Board adopts a resolution authorizing any of the following actions: (a) the total number of shares that may be issued under the Plan may not be increased (except by adjustment pursuant to Section 14); (b) the benefits accruing to participants under the Plan may not be materially increased; (c) the requirements as to eligibility for grants of ISOs may not be modified; (d) the provisions of Section 7 regarding the exercise price at which shares may be offered pursuant to ISOs may not be modified (except by adjustment pursuant to Section 14); or (e) the expiration date of the Plan may not be extended. 17.3 Except as otherwise provided in this Section 17, in no event may action of the Board (or its Committee) or the Company's stockholders alter or impair the rights of a grantee, without such grantee' s consent, under any Option previously granted to such grantee. Section 18 Notice to Company of Disqualifying Disposition By accepting an ISO granted under the Plan, each Optionee agrees to notify the Company in writing immediately after such Optionee makes a Disqualifying Disposition (as described in Sections 421, 422 and 424 of the Code and regulations thereunder) of any stock acquired pursuant to the exercise of ISOs granted under the Plan. A Disqualifying Disposition is generally any disposition occurring on or before the later of (a) the date two years following the date the ISO was granted or (b) the date one year following the date the ISO was exercised. Section 19 Withholding of Additional Income Taxes 19.1 Upon the exercise of a Non-Qualified Option, the making of a Disqualifying Disposition (as defined in Section 18), the vesting or transfer of securities acquired on the exercise of an Option hereunder, or the making of a distribution or other payment with respect to such stock or securities, the Company may withhold taxes in respect of amounts that constitute compensation includible in gross income, which amount shall not exceed the Company's minimum statutory withholding amount. The Board (or its Committee) in its sole discretion may condition the exercise of an Option, the vesting or transferability of restricted stock or securities acquired by exercising an Option, on the Optionee's making satisfactory arrangement for such withholding. Such arrangement may include payment by the Optionee in cash or by check of the amount of the withholding taxes or, at the sole discretion of the Board (or its Committee), by the Optionee's delivery of previously held shares of Common Stock having an aggregate fair market value equal to the minimum amount required to be withheld; provided, however that the value of any shares of Common Stock withheld may not exceed the statutory minimum withholding amount required by law. 19.2 Any adverse consequences incurred by the Optionee with respect to the use of the shares of Common Stock to pay any part of the exercise price or any tax in connection with the exercise of an Option, including, without limitation, any adverse tax consequences as a result of a Disqualifying Disposition within the meaning of Section 422 of the Code, shall be the sole responsibility of the Optionee. Section 20 Governing Law The validity and construction of the Plan and the instruments evidencing Options shall be governed by the laws of the State of Delaware, or the laws of any jurisdiction in which the Company or its successors in interest may be organized. EX-4 4 nbtys842.txt EXHIBIT 4.2 EXHIBIT 4.2 STOCK OPTION AGREEMENT AGREEMENT, made as of this _____ day of __________, by and between NBTY, Inc., a corporation having its principal executive offices at 90 Orville Drive, Bohemia, New York 11716 (the "Grantor") and ____________________________________, residing at _________________ [address] (the "Optionee"). W I T N E S S E T H: WHEREAS, Optionee is presently employed by Grantor; and WHEREAS, Grantor is desirous of increasing the incentive of Optionee to exert his utmost efforts to improve the business and increase the assets of the Grantor. NOW, THEREFORE, in consideration of the promises of the Optionee to remain in the continuous service of the Grantor or any of its subsidiaries, and for other good and valuable consideration, the grantor hereby grants the Optionee options to purchase shares of common stock, par value $0.008 per share, of the Grantor (the "Common Stock") upon the following terms and conditions: 1. OPTIONS. Pursuant to the NBTY, Inc. Year 2002 Stock Option Plan, the Grantor hereby grants to the Optionee incentive stock options (the "Incentive Stock Options"), as provided in Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"), to purchase, at any time commencing as of the date hereof, and terminating as of 5:00 P.M. New York City time, on ________________________ (the "Termination Date"), up to _____________________ fully paid and non-assessable shares of the Common Stock (the "Option Shares"). 2. PURCHASE PRICE. The purchase price per share for the Option Shares (the "Purchase Price") shall be ________. The Grantor shall pay all original issue or transfer taxes on the exercise of the Incentive Stock Options and all other fees and expenses necessarily incurred by the Grantor in connection therewith. 3. EXERCISE OF OPTION. (a) The Optionee shall notify the Grantor by registered or certified mail, return receipt requested, addressed to its principal office (Attn: Chief Financial Officer), as to the number of Option Shares which the Optionee desires to purchase pursuant to the options herein granted, which notice shall be accompanied by a payment equal to the product of (i) the Purchase Price and (ii) the number of Option Shares with respect to which the Incentive Stock Option is being exercised (such product being the "Aggregate Purchase Price"). Such payment shall be made by bank check, certified check or by delivery of shares of Common Stock having a fair market value equal to the Aggregate Purchase Price; it being understood and agreed that any Common Stock delivered must have been held by the Optionee for at least six (6) months prior to such delivery. As soon as practicable thereafter, the Grantor shall cause to be delivered to the Optionee certificates issued in the Optionee's name evidencing the shares of Common Stock purchased by the Optionee. (b) If the aggregate fair market value of all the stock with respect to which Incentive Stock Options are exercisable for the first time by the Optionee during any calendar year and all Incentive Stock Option plans of the Grantor, any predecessor of the Grantor, its parent or subsidiaries, exceeds $100,000.00, the grant of the Incentive Stock Options hereunder shall not, to the extent of such excess, be deemed a grant of Incentive Stock Options but will instead be deemed the grant of Non-Qualified Stock Options under the Plan. For purpose of this paragraph, the fair market value of the stock with respect to which an Incentive Stock Option is exercisable shall be the value of such stock at the time that specific option is granted as provided for in Section 422(c)(7) of the Code. (c) Subject to paragraph 4 below, the Incentive Stock Options granted hereunder may be exercised by the Optionee as follows: (i) with respect to options corresponding to _____ percent (__%) of the Option Shares, at any time after the first anniversary of the date hereof through the Termination Date; (ii) with respect to the next ____ percent (__%) of the Option Shares, at any time after the second anniversary of the date hereof through the Termination Date; (iii) with respect to the next _____ percent (__%) of the Option Shares, at any time after the third anniversary of the date hereof through the Termination Date; and (iv) with respect to the next _____ percent (__%) of the Option Shares, at any time after the fourth anniversary of the date hereof through the Termination Date. 4. OPTION CONDITIONED ON CONTINUED EMPLOYMENT. (a) If the employment of the Optionee shall be terminated voluntarily by the Optionee or for cause, the Incentive Stock Options granted to the Optionee hereunder may be exercised at any time within thirty (30) days after such termination, subject to the provisions of subparagraph (d) of this Paragraph 4. If such employment shall terminate otherwise than by reason of death, disability, voluntarily by the Optionee or for cause, the Incentive Stock Options may be exercised at any time within three (3) months after such termination, subject to the provisions of subparagraph (d) of this Paragraph 4. For the purposes of this subparagraph (a), the retirement of an individual either pursuant to a pension or retirement plan adopted by the Grantor or any subsidiary of the Grantor or at the normal retirement date prescribed from time to time by the Grantor or any subsidiary of the Grantor shall be deemed to be a termination of such Optionee's employment other than voluntarily by the Optionee or for cause. (b) If the Optionee dies (i) while employed by the Grantor or a subsidiary of the Grantor, or (ii) within three (3) months after the termination of Optionee's employment other than voluntarily by the Optionee or for cause, such Incentive Stock Options may, subject to the provisions of subparagraph (d) of this Paragraph 4, be exercised by a legatee or legatees of such Incentive Stock Options under such individual's last will or by his personal representatives or distributees at any time within one year after his death. (c) If the Optionee becomes disabled within the definition of Section 22(e) of the Code while employed by the Grantor or a subsidiary of the Grantor, such Incentive Stock Options may, subject to the provisions of subparagraph (d) of this Paragraph 4, be exercised at any time within one (1) year after Optionee's termination of employment due to the disability. (d) Incentive Stock Options may not be exercised pursuant to this Paragraph 4 except to the extent that the Optionee was entitled to exercise the options at the time of termination of employment or death pursuant to Paragraph 3, and in any event may not be exercised after the Termination Date. 5. DIVISIBILITY AND NON-ASSIGNABILITY OF THE OPTIONS. (a) The Optionee may exercise the Incentive Stock Options herein granted from time to time during the period of their effectiveness with respect to any whole number of shares included therein. (b) The Optionee may not give, grant, sell, exchange, transfer legal title, pledge, assign or otherwise encumber or dispose of the Incentive Stock Options herein granted or any interest therein, otherwise than by will or the laws of descent and distribution, and the Incentive Stock Options herein granted, or any of them, shall be exercisable during the Optionee's lifetime only by the Optionee. 6. COMPLIANCE WITH LAWS. The issuance of the Incentive Stock Options granted herein and the issuance of Option Shares upon exercise of such Incentive Stock Options, shall be subject to, and shall comply with, any applicable requirements of any federal and state securities laws, rules and regulations (including without limitation, the provisions of the Securities Act of 1933, the Securities Exchange Act of 1934 and the respective rulings and regulation promulgated thereunder), the rules of any national securities exchange on which the shares of Common Stock are listed, and any other law or regulation applicable thereto. The Grantor shall not be obligated to issue the Incentive Stock Options granted herein or any Option Shares if any such issuance would violate any such requirements. 7. NOTIFICATION OF TRANSFER FOR TAX PURPOSES. In the event that the Optionee disposes (whether by sale, exchange, gift or any other transfer) of any shares of Common Stock acquired pursuant to the exercise of the Incentive Stock Options to the Optionee hereunder or within one year of the purchase of the shares of Common Stock by the Optionee upon the exercise of the Incentive Stock Options, the Optionee will notify the Grantor in writing, within thirty (30) days after such disposition. 8. NO RIGHTS IN OPTION SHARES. The Optionee shall have no rights as a shareholder in respect of shares of Common Stock as to which the Incentive Stock Options granted hereunder shall not have been exercised and payment made as herein provided. 9. EFFECT UPON EMPLOYMENT. This Agreement does not give the Optionee any right to continued employment by the Grantor or any subsidiary of the Grantor. 10. BINDING EFFECT. Except as herein otherwise expressly provided, this Agreement shall be binding upon and inure to the benefit of the parties hereto, their legal representatives and assigns. 11. AGREEMENT SUBJECT TO PLAN. Notwithstanding anything contained herein to the contrary, this Agreement is subject to, and shall be construed in accordance with, the terms of the NBTY, Inc. Year 2002 Stock Option Plan, and in the event of any inconsistency between the terms hereof and the terms of such Plan, the terms of the NBTY, Inc. Year 2002 Stock Option Plan shall govern. 12. MISCELLANEOUS. This Agreement shall be construed under the laws of the State of New York, without application to the principles of conflicts of law. Headings have been included herein for convenience of reference only, and shall not be deemed a part of this Agreement. NBTY, INC. By:_________________________________ Name: Title: Accepted and Agreed To: __________________________________ EX-4 5 nbtys843.txt EXHIBIT 4.3 EXHIBIT 4.3 STOCK OPTION AGREEMENT AGREEMENT, made as of this _____ day of __________, by and between NBTY, Inc., a corporation having its principal executive offices at 90 Orville Drive, Bohemia, New York 11716 (the "Grantor") and ____________________________________, residing at _________________ [address] (the "Optionee"). W I T N E S S E T H: WHEREAS, the Optionee presently [is employed by] [serves as a director of] the Grantor; and WHEREAS, the Grantor is desirous of increasing the incentive of the Optionee to exert his utmost efforts to improve the business and increase the assets of the Grantor. NOW, THEREFORE, in consideration of the promises of the Optionee to remain in the continuous service of the Grantor or any of its subsidiaries, and for other good and valuable consideration, the grantor hereby grants the Optionee an option to purchase shares of common stock, par value $0.008 per share, of the Grantor (the "Common Stock") upon the following terms and conditions: 1. OPTIONS. Pursuant to its Year 2002 Stock Option Plan, the Grantor hereby grants to the Optionee a stock option (the "Stock Option") which is not intended to qualify as an "incentive stock option" as provided in Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"), to purchase, at any time commencing as of the date hereof, and terminating as of 5:00 P.M. New York City time, on ________________________ (the "Termination Date"), up to _____________________ fully paid and non- assessable shares of the Common Stock (the "Option Shares"). 2. PURCHASE PRICE. The purchase price per share for the Option Shares (the "Purchase Price") shall be $________. The Grantor shall pay all original issue or transfer taxes on the exercise of the Stock Option and all other fees and expenses necessarily incurred by the Grantor in connection therewith. 3. EXERCISE OF OPTION. (a) The Optionee shall notify the Grantor by registered or certified mail, return receipt requested, addressed to its principal office (Attn: Chief Financial Officer), as to the number of Option Shares which the Optionee desires to purchase pursuant to the Stock Option herein granted, which notice shall be accompanied by a payment equal to the product of (i) the Purchase Price and (ii) the number of Option Shares with respect to which the Stock Option is being exercised (such product being the "Aggregate Purchase Price"). Such payment shall be made by bankcheck, certified check or by delivery of shares of Common Stock having a fair market value equal to the Aggregate Purchase Price; it being understood and agreed that any Common Stock delivered must have been held by the Optionee for at least 6 months prior to such delivery. As soon as practicable thereafter, the Grantor shall cause to be delivered to the Optionee certificates issued in the Optionee's name evidencing the shares of Common Stock purchased by the Optionee. (b) Subject to paragraph 4 below, the Stock Option granted hereunder may be exercised by the Optionee as follows: (i) with respect to ______ percent (__%) of the Option Shares, at any time after the first anniversary of the date hereof and through the Termination Date; (ii) with respect to the next ______ percent (__%) of the Option Shares, at any time after the second anniversary of the date hereof and through the Termination Date; (iii) with respect to the next ______ percent (__%) of the Option Shares, at any time after the third anniversary of the date hereof and through the Termination Date; and (iv) with respect to the last ______ percent (__%) of the Option Shares, at any time after the fourth anniversary of the date hereof and through the Termination Date. 4. OPTION CONDITIONED ON CONTINUED [EMPLOYMENT] [SERVICE AS A DIRECTOR]. (a) If the Optionee's [employment with the Grantor or any subsidiary of the Grantor] [service as a director of the Grantor] shall be terminated voluntarily by the Optionee or for cause, the Stock Option granted to the Optionee hereunder shall expire thirty (30) days after such termination. If such [employment] [service] shall terminate otherwise than by reason of death, disability, voluntarily by the Optionee or for cause, the Stock Option may be exercised at any time within three (3) months after such termination, subject to the provisions of subparagraph (d) of this Paragraph 4. For the purposes of this subparagraph (a), the retirement of an Optionee who is an employee of the Grantor or any subsidiary of the Grantor either pursuant to a pension or retirement plan adopted by the Grantor or any subsidiary of the Grantor or at the normal retirement date prescribed from time to time by the Grantor shall be deemed to be a termination of such Optionee's employment other than voluntarily by the Optionee or for cause. (b) If the Optionee dies (i) while [employed by the Grantor or a subsidiary of the Grantor] [serving as a director of the Grantor], or (ii) within three (3) months after the termination of Optionee's [employment] [service as a director] other than voluntarily by the Optionee or for cause, the Stock Option granted hereunder may, subject to the provisions of subparagraph (d) of this Paragraph 4, be exercised by a legatee or legatees of such Stock Option under the Optionee's last will or by his personal representatives or distributees at any time within one year after his death. (c) If the Optionee becomes disabled within the definition of Section 22(e) of the Code while [employed by the Grantor or a subsidiary of the Grantor] [serving as a director of the Grantor], the Stock Option granted hereunder may, subject to the provisions of subparagraph (d) of this Paragraph 4, be exercised at any time within one year after the termination of the Optionee's [employment] [service as a director] due to the disability. (d) The Stock Option granted hereunder may not be exercised pursuant to this Paragraph 4 except to the extent that the Optionee was entitled to exercise the Stock Option at the time of termination of [employment] [service as a director] or death pursuant to Paragraph 3, and in any event may not be exercised after the Termination Date. 5. DIVISIBILITY AND NON-ASSIGNABILITY OF THE STOCK OPTION. (a) Except as otherwise provided in this Agreement, the Optionee may exercise the Stock Option herein granted from time to time during the period of its effectiveness with respect to any whole number of shares included therein. (b) The Optionee may not give, grant, sell, exchange, transfer legal title, pledge, assign or otherwise encumber or dispose of the Stock Option herein granted or any interest therein, otherwise than by will or the laws of descent and distribution, and the Stock Option herein granted may be exercised during the Optionee's lifetime only by the Optionee. 6. COMPLIANCE WITH LAWS. The issuance of the Stock Option granted herein and the issuance of Option Shares upon exercise of such Stock Option, shall be subject to, and shall comply with, any applicable requirements of any federal and state securities laws, rules and regulations (including without limitation, the provisions of the Securities Act of 1933, the Securities Exchange Act of 1934 and the respective rulings and regulation promulgated thereunder), the rules of any national securities exchange on which the shares of Common Stock are listed, and any other law or regulation applicable thereto. The Grantor shall not be obligated to issue the Stock Option granted herein or any Option Shares if any such issuance would violate any such requirements. 7. NO RIGHTS IN OPTION SHARES. The Optionee shall have no rights as a shareholder in respect of shares of Common Stock as to which the Stock Option granted hereunder shall not have been exercised and payment made as herein provided. 8. EFFECT UPON [EMPLOYMENT] [DIRECTORSHIP]. This Agreement does not give the Optionee any right to continued [employment with the Grantor or any subsidiary of the Grantor] [service as a director of the Grantor]. 9. BINDING EFFECT. Except as herein otherwise expressly provided, this Agreement shall be binding upon and inure to the benefit of the parties hereto, their legal representatives and assigns. 10. AGREEMENT SUBJECT TO PLAN. Notwithstanding anything contained herein to the contrary, this Agreement is subject to, and shall be construed in accordance with, the terms of the NBTY, Inc. Year 2002 Stock Option Plan, and in the event of any inconsistency between the terms hereof and the terms of such Plan, the terms of the NBTY, Inc. Year 2002 Stock Option Plan shall govern. 11. MISCELLANEOUS. This Agreement shall be construed under the laws of the State of New York, without application to the principles of conflicts of law. Headings have been included herein for convenience of reference only, and shall not be deemed a part of this Agreement. NBTY, INC. By:_________________________________ Name: Title: Accepted and Agreed To: __________________________________ EX-5 6 nbtys851.txt EXHIBIT 5.1 EXHIBIT 5.1 OPINION OF IRENE B. FISHER, ESQ. August 15, 2003 NBTY, Inc. 90 Orville Drive Bohemia, NY 11716 Re: Registration Statement on Form S-8 relating to 1,500,000 Shares of Common Stock, Par Value $.008 per Share, of NBTY, Inc. Issuable under the NBTY, Inc. Year 2002 Stock Option Plan -------------------------------------------------------------- Ladies and Gentlemen: I am acting as counsel to NBTY, Inc., a Delaware corporation (the "Company"), in connection with the filing by the Company with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the "Securities Act"), of a registration statement on Form S-8 (the "Registration Statement") relating to 1,500,000 shares (the "Shares") of the Company's common stock, par value $.008 per share (the "Common Stock"), issuable upon the exercise of options granted, as well as stock options to be granted, pursuant to the Company's NBTY, Inc. Year 2002 Stock Option Plan (the "Plan"). I have examined and am familiar with originals or copies, certified or otherwise identified to my satisfaction, of the Certificate of Incorporation and By-Laws of the Company, as each is in effect on the date hereof, the Registration Statement, the Plan, resolutions of the Board of Directors of the Company relating to the adoption of and amendments to the Plan and the proposed registration and issuance of the shares and such other corporate documents and records and other certificates, and I have made such investigations of laws as I have deemed necessary or appropriate in order to render the opinions hereinafter set forth. In my examination, I have assumed the genuineness of all signatures, the legal capacity of all natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified or photostatic copies and the authenticity of the originals of such latter documents. As to any facts material to the opinions expressed herein which were not independently established or verified, I have relied upon statements and representations of officers and other representatives of the Company and others. Based upon and subject to the foregoing, I am of the opinion that the Shares to be issued upon exercise of any options duly granted pursuant to the terms of the Plan have been duly and validly authorized and, when the Shares have been paid for in accordance with the terms of the Plan and certificates therefore have been duly executed and delivered, such Shares will be duly and validly issued, fully paid and non-assessable. I hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference in the Registration Statement to me under the heading "Interests of Named Experts and Counsel." In giving this consent, I do not hereby admit that I am within the category of persons whose consent is required under Section 7 of the Securities Act, or the rules and regulations of the Securities and Exchange Commission thereunder. Very truly yours, /s/ Irene B. Fisher Irene B. Fisher EX-23 7 nbtys8232.txt EXHIBIT 23.1 Exhibit 23.2 Consent of Independent Auditors We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated November 5, 2002, except as to Notes 16 and 20 which are as of December 11, 2002, relating to the financial statements and financial statement schedule of NBTY, Inc. and Subsidiaries, which appear in NBTY, Inc. and Subsidiaries Annual Report on Form 10-K for the year ended September 30, 2002. PricewaterhouseCoopers LLP /s/ PricewaterhouseCoopers LLP New York, New York August 12, 2003 -----END PRIVACY-ENHANCED MESSAGE-----