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 00
Xxxxxxx Xxxxx, Xxxxxxx, Xxx Xxxx 00000 (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:
__________________________________
