Exhibit 10.25


 


NBTY, INC.

2009 EQUITY AWARDS PLAN


 


INCENTIVE
STOCK OPTION AGREEMENT


 


AGREEMENT (“Agreement”), dated as of                                     ,
20      , by and between NBTY, Inc., a
Delaware corporation (the “Company”), and                                   
(the “Holder”).


 


The Compensation and Stock Option Committee
of the Board of Directors of the Company (the “Committee”) granted this
incentive stock option (the “Option”) on                               ,
20       (the “Grant Date”) under the NBTY, Inc.
2009 Equity Awards Plan (the “Plan”) to purchase the number of shares of the
Company’s common stock, $0.008 par value per share (the “Common Stock”) set
forth below to the Holder, as an eligible employee of the Company or a
subsidiary (a “Subsidiary”) of the Company (within the meaning of section 424
of the Internal Revenue Code of 1986, as amended (the “Code”)).  Unless otherwise indicated, any capitalized
term used but not defined herein shall have the meaning ascribed to such term
in the Plan.  A copy of the Plan as in
effect on the date hereof has been delivered to the Holder.  By signing and returning this Agreement, the
Holder acknowledges having received and read a copy of the Plan as in effect on
the date hereof and agrees to comply with the Plan, this Agreement and all
applicable laws and regulations.


 


Accordingly, the parties hereto agree as
follows:


 


1.             Grant of Option.  Subject in all respects to the Plan and the
terms and conditions set forth herein and therein, the Holder is hereby granted
an option to purchase from the Company         
shares of Common Stock, at a price per share of $                      
(the “Option Price”), which is no less than Fair Market Value on the Grant
Date.


 


2.             Tax Status.  The Option granted hereby is intended to
qualify as an “incentive stock option” under section 422 of the Code.  Notwithstanding the foregoing, the Option
will not qualify as an “incentive stock option” if any of the following events
occur: (a) the Holder disposes of the Common Stock acquired pursuant to
the Option at any time during the two-year period following the date of this
Agreement or the one-year period following the date of any exercise of the
Option; (b) except in the event of the Holder’s death or disability (as
defined in section 22(e)(3) of the Code), the Holder is not employed by
the Company or a Subsidiary at all times during the period beginning on the
date of this Agreement and ending on the day that is three months before the
date of any exercise of the Option; or (c) the aggregate fair market value
of the Common Stock subject to “incentive stock options” held by the Holder
which become exercisable for the first time in any calendar year (under all
plans of the Company or a Subsidiary) exceeds $100,000.  For purposes of clause (c) above, the “fair
market value” of the Common Stock shall be determined as of the Grant
Date.  To the extent that all or a
portion of the Option does not qualify as an “incentive stock option,” it shall
not affect the validity of the Option (or portion thereof) and shall constitute
a separate non-qualified stock option without any further action by the Company
or the Holder.


 

















 


3.             Vesting and Exercise.


 


(a)           Except as set forth in subsection (b) of this Section 3,
the Option shall vest and become exercisable in installments as provided below,
which shall be cumulative.  To the extent
that the Option has become vested and exercisable as provided below, the Option
thereafter may be exercised in accordance with Section 4.  Upon expiration of the Option, the Option
shall be canceled and no longer exercisable.


 


The following table indicates each date upon
which the Holder shall first become vested and entitled to exercise the Option
with respect to the percentage of the shares of Common Stock indicated beside
such date, provided that the Holder has not had a termination of employment
with the Company and its Subsidiaries (a “Termination”) at any time prior to
such date (each of the dates set forth below being herein called a “Vesting
Date”):


 




	
  Vesting Date

  	
   

  	
  Total 

  Percentage Vested

  	
   

  
	
  1st Anniversary of Grant Date

  	
   

  	
  0

  	
  %

  
	
  2nd Anniversary of Grant Date 

  	
   

  	
   

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Anniversary of Grant Date

  	
   

  	
  100

  	
  %

  






 


There shall be no proportionate or partial
vesting in the periods prior to each Vesting Date; vesting shall occur only on
the appropriate Vesting Date.


 


(b)           Upon the occurrence of a Change in Control, the
Option shall immediately become exercisable with respect to all shares of
Common Stock subject thereto.


 


4.             Method of Exercise; Issuance of Shares;
Notification.  (a) 
Subject to the provisions of Section 3 and Section 5, to the extent
vested, the Option may be exercised, in whole or in part, at any time or from
time to time prior to the expiration or the earlier termination of the Option
as provided herein, by giving written notice of exercise to the Company, in
form and substance satisfactory to the Company or its agent, specifying the
number of shares of Common Stock to be purchased.  Such notice shall be accompanied by payment
in full of the Option Price multiplied by the number of shares of Common Stock
underlying the portion of the Option exercised as follows: (i) in cash or
by check, bank draft or money order payable to the order of the Company; (ii) solely
to the extent permitted by applicable law, if the Common Stock is traded on a
national securities exchange or quoted on a national quotation system sponsored
by the National Association of Securities Dealers, and the Committee
authorizes, through a “cashless exercise” procedure whereby the Holder delivers
irrevocable instructions to a broker acceptable to the Committee to deliver
promptly to the Company an amount in cash equal to the Option Price; (iii) by
payment in full or in part in whole shares of Common Stock for which the Holder
has good title, free and clear of all liens and encumbrances, and which the
Holder either has purchased on the open market or has owned for at least six
months having the Fair Market Value on the exercise date equal to the aggregate
Option Price by reason of such exercise (iv) by authorizing the Company to
withhold whole shares of Common Stock which would otherwise be delivered having
an aggregate Fair Market Value on the exercise date equal to the aggregate 


 


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Option Price payable by
reason of such exercise; (iv) by any combination of (i), (iii) and
(iv); or (vi) any other means expressly authorized by the Committee.


 


(b)           As promptly as is practicable after the receipt of a
written notice of exercise to the Company, in form and substance satisfactory
to the Company or its agent, payment of the Option Price and satisfaction of
applicable withholding requirements, the Company shall register such shares of
Common Stock in the name of the Holder, Holder’s authorized assignee, or Holder’s
legal representative.  Upon exercise, the
Company either (i) shall provide for the registration of such shares in
book-entry form or (ii) deliver to the Holder a stock certificate
representing such shares.  The Company
may postpone such registration or delivery until the Company is satisfied that
the issuance of such shares of Common Stock will not violate any of the
provisions of the Securities Act of 1933, as amended, or the Securities and
Exchange Act of 1934, as amended (the “Exchange Act”), or the requirements of
applicable state law relating to authorization, issuance or sale of securities,
or until there has been compliance with the provisions of such acts or
rules.  The Holder understands that the
Company is under no obligation to register or qualify the shares of Common
Stock with the Securities and Exchange Commission, any state securities
commission or any stock exchange to effect such compliance.


 


(c)           By exercising the Option, the Holder agrees to
notify the Company in writing within 15 days after the date of any disposition
of any of the shares of Common Stock issued upon exercise of the Option that
occurs within two years after the Grant Date or within one year after such
shares of Common Stock are transferred upon exercise of the Option.


 


5.             Option Term.  The term of the Option shall be 10 years
after the Grant Date and the Option shall expire at 5:00 p.m. (eastern
time) on the 10th anniversary of the Grant Date, subject to earlier termination
in the event of the Holder’s Termination (as defined in Section 6).


 


6.             Termination.  Subject to Section 5 and the terms of
the Plan and this Agreement, the Option shall remain exercisable as follows:


 


(a)           In the event of the Holder’s Termination by reason
of death or disability (as defined in section 22(e)(3) of the Code), the
Option, to the extent vested at the time of the Holder’s Termination, shall
remain exercisable until the earlier of (i) 12 months after the last day
of the month in which the date of such Termination occurs and (ii) the
expiration of the stated term of the Option pursuant to Section 5.


 


(b)           In the event of the Holder’s involuntary Termination
without “cause” (as defined in Section 5(d)), the Option, to the extent
vested at the time of the Holder’s Termination, shall remain exercisable until
the earlier of (i) three months after the last day of the month in which
the date of such Termination occurs and (ii) the expiration of the stated
term of the Option pursuant to Section 5 hereof.


 


(c)           In the event of the Holder’s voluntary Termination
(other than a voluntary termination described in Section 6(d)), the
Option, to the extent vested at the time of the Holder’s Termination, shall
remain exercisable until the earlier of (i) 30 days after the last day of
the month in which the date of such Termination occurs and (ii) the
expiration of the stated term of the Option pursuant to Section 5.


 


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(d)           In the event of the Holder’s Termination for “cause”
or in the event of the Holder’s voluntary Termination within 90 days after an
event that would be grounds for a Termination for “cause”, the Holder’s entire
Option (whether or not vested) shall be forfeited and canceled in its entirety
upon such Termination.  For purposes of
this Agreement, “cause” shall mean:  (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 Holder and
the Company; (iv) engaging in conduct relating to the Holder ‘s employment
with the Company or any of its subsidiaries for which either criminal or civil
penalties may be sought; and (v) willful engaging in conduct that is
demonstrably injurious to the Company or any of its subsidiaries, monetarily or
otherwise, including conduct that, in the reasonable judgment if the Committee,
does not conform to the standard of conduct expected of the Company’s
executives or employees. The determination of whether an employee’s or former
employee’s Termination was for cause shall be made by the Committee in good
faith and in its sole discretion.


 


(e)           Any portion of the Option that is not vested as of
the date of the Holder’s Termination for any reason shall terminate and expire
as of the date of such Termination.


 


7.             Change in Control.  Notwithstanding the provisions of Section 3.6
of the Plan, in the event of a Change in Control, the Option shall be treated
in accordance with one of the following methods as determined by the Committee
in its sole discretion: (i) the Option may be cancelled for fair value (as
determined in the sole discretion of the Committee) which may equal the excess,
if any, of the value of the consideration to be paid in the Change in Control
transaction to holders of the same number of shares of Common Stock over the
aggregate exercise price of the Option; (ii) a new award may be issued in
substitution of the Option that will substantially preserve the otherwise
applicable terms of the Option, as determined by the Committee in its sole
discretion; or (iii) for a period of at least 20 days prior to the Change
in Control, the Option may be exercisable as to all shares of Common Stock
subject thereto (but any such exercise will be contingent upon and subject to
the occurrence of the Change in Control and if the Change in Control does not
take place within a specified period after giving such notice for any reason
whatsoever, the exercise shall be null and void) and any portion of the Option
not exercised prior to the consummation of the Change in Control shall
terminate and be of no further force and effect as of the consummation of the
Change in Control.  For the avoidance of doubt,
in the event of a Change in Control, the Committee may, in its sole discretion,
terminate the Option without payment of consideration therefor if the exercise
price is equal to or exceeds the per share value of the consideration to be
paid in the Change in Control transaction.


 


8.             Restriction on Transfer of Option.  No part of the Option shall be anticipated,
alienated, attached, sold, assigned, pledged, encumbered, charged, hypothecated
or otherwise transferred other than by will or by the laws of descent and
distribution.  During the lifetime of the
Holder, the Option may be exercised only by the Holder or the Holder’s guardian
or legal representative.  The Option
shall not be subject to levy by reason of any execution, attachment or similar
process.  Upon any attempt to anticipate,
alienate, attach, sell, assign, pledge, encumber, charge, hypothecate or
otherwise transfer the Option or in the event of any levy upon the Option 


 


4

















 


by reason of any execution,
attachment or similar process contrary to the provisions hereof, the Option
shall immediately and automatically become null and void.


 


9.             Rights as a Stockholder; Adjustments.  (a)  The Holder shall have no rights as
a stockholder with respect to any shares of Common Stock covered by the Option
unless and until the Holder has become the holder of record of such
shares.  No adjustments shall be made to
the Option, the shares of Common Stock covered by the Option or the Option
Price for dividends in cash or other property, distributions or other rights in
respect of any such shares, except as otherwise may be specifically provided in
the Plan.  No shares of Common Stock
shall be issued unless and until payment therefor has been made or provided.


 


(b)           The Committee shall adjust the terms of the Option
(including, without limitation, the number of shares of Common Stock subject to
the Option, the type of property to which the Option relates and the Option
Price), in such manner as it deems appropriate (including, without limitation,
the cancellation of the Option in exchange for cash amounts determined by the
Committee) to prevent the enlargement or dilution of rights, or otherwise as it
deems appropriate, for any increase or decrease in the number of issued shares
of Common Stock (or issuance of shares of stock other than shares of Common
Stock) resulting from a recapitalization, stock split, reverse stock split,
stock dividend, spin-off, split-up, combination, reclassification or exchange
of shares of Common Stock, merger, consolidation, rights offering, separation,
reorganization or liquidation, or any other change in the corporate structure
or shares of the Company, including any extraordinary dividend or extraordinary
distribution.  After any adjustment made
pursuant to this Section 9(b), the number of shares of Common Stock
subject to the Option will be rounded down to the nearest whole number.  Any adjustment to the Option by the Committee
pursuant to this Section 9(b) shall be final, binding and conclusive.


 


10.           Tax Withholding.


 


As a condition to the
delivery of any shares of Common Stock, cash or other securities or
property pursuant to the Option, or in connection with any other event that
gives rise to a federal or other governmental tax withholding obligation on the part of
the Company relating to the Option (including, without limitation, FICA tax), (a) the
Company may deduct or withhold (or cause to be deducted or withheld) from any
payment or distribution to the Holder shares of Common Stock otherwise
deliverable, (b) the Committee shall be entitled to require that the
Holder remit cash to the Company (through payroll deduction or otherwise) or (c) the
Company may enter into any other suitable arrangements to withhold, in each
case in an amount sufficient in the opinion of the Company to satisfy such
withholding obligation.  In each case,
the shares of Common Stock deducted or withheld from any payment or
distribution shall not have an aggregate Fair Market Value in excess of the
minimum amount required to be withheld. 
Any fraction of a share of Common Stock which would be required to
satisfy such obligation shall be disregarded and the remaining amount due shall
be paid in cash by the Holder.


 


11.           Provisions of Plan Control.  This Agreement is subject to all the terms,
conditions and provisions of the Plan, including, without limitation, the
amendment provisions thereof, and to such rules, regulations and
interpretations relating to the Plan as may be adopted by the Committee and as
may be in effect from time to time.  The
Plan is incorporated herein by reference. 
If and to the extent that this Agreement conflicts or is inconsistent
with the terms, 


 


5

















 


conditions and provisions of
the Plan, the Plan shall control, and this Agreement shall be deemed to be
modified accordingly.  This Agreement
contains the entire understanding of the parties with respect to the subject
matter hereof and supersedes any prior agreements between the Company and the
Holder with respect to the subject matter hereof.


 


12.           Notices.  Any notice or communication given hereunder
(each a “Notice”) shall be in writing and shall be sent by personal delivery,
by courier or by United States mail (registered or certified mail, postage prepaid
and return receipt requested), to the appropriate party at the address set
forth below:


 


If
to the Company, to:


 


NBTY, Inc.


2100
Smithtown Avenue


Ronkonkoma,
New York 11779


Attention:  General Counsel


 


If
to the Holder, to:  the address for the
Holder on file with the Company;


 


or
such other address or to the attention of such other person as a party shall
have specified by prior Notice to the other party.  Each Notice will be deemed given and
effective upon actual receipt (or refusal of receipt).


 


13.           No Obligation to Continue Employment.  This Agreement is not an agreement of
employment.  This Agreement does not
guarantee that the Company or its Subsidiaries will employ or continue to
employ the Holder during the entire term of this Agreement (or any portion
thereof), including but not limited to any period during which the Option is
outstanding, nor does it modify in any respect the Company’s or its
Subsidiaries’ right to terminate or modify the Holder’s employment or
compensation.


 


14.           Governing Law.  This Agreement will be governed by and
construed in accordance with the laws of the state of Delaware, without regard
to principles of conflict of laws.


 


15.           Waiver of Jury Trial.  The Holder waives any right it may have to
trial by jury in respect of any litigation based on, arising out of, under or
in connection with this Agreement or the Plan.


 


16.           Choice of Forum.


 


(a)           Jurisdiction.  The Company and the Holder, as a condition to
the Holder’s receipt of the Option, hereby irrevocably submit to the exclusive
jurisdiction of any state or federal court located in Suffolk County, New York
over any suit, action or proceeding arising out of or relating to or concerning
the Plan or this Agreement.  The Company
and the Holder, as a condition to the Holder’s receipt of the Option,
acknowledge that the forum designated by this Section 16(a) has a
reasonable relation to the Plan and this Agreement and to the relationship
between the Holder and the Company. 
Notwithstanding the foregoing, nothing herein shall 


 


6

















 


preclude the Company from
bringing any action or proceeding in any other court for the purpose of
enforcing the provisions of Section 16.


 


(b)           Acceptance of Jurisdiction.  The agreement by the Company and the Holder
as to forum is independent of the law that may be applied in the action, and
the Company and the Holder, as a condition to the Holder’s receipt of the
Option, (i) agree to such forum even if the forum may under applicable law
choose to apply non-forum law, (ii) hereby waive, to the fullest extent
permitted by applicable law, any objection which the Company or the Holder now
or hereafter may have to personal jurisdiction or to the laying of venue of any
such suit, action or proceeding in any court referred to in Section 16(a),
(iii) undertake not to commence any action arising out of or relating to
or concerning the Plan or this Agreement in any forum other than the forum
described in this Section 16 and (iv) agree that, to the fullest
extent permitted by applicable law, a final and non-appealable judgment in any
such suit, action or proceeding in any such court shall be conclusive and
binding upon the Company and the Holder.


 


(c)           Service of Process.  The Holder, as a condition to the Holder’s
receipt of the Option, hereby irrevocably appoints the General Counsel of the
Company as the Holder’s agent for service of process in connection with any
action, suit or proceeding arising out of or relating to or concerning the Plan
or this Agreement, who shall promptly advise the Holder of any such service of
process.


 


(d)           Confidentiality.  The Holder, as a condition to the Holder’s
receipt of the Option, agrees to keep confidential the existence of, and any
information concerning, a dispute, controversy or claim described in Section 16,
except that the Holder may disclose information concerning such dispute,
controversy or claim to the court that is considering such dispute, controversy
or claim or to the Holder’s legal counsel (provided that such counsel agrees
not to disclose any such information other than as necessary to the prosecution
or defense of the dispute, controversy or claim).


 


17.           Counterparts.  This Agreement may be executed with
counterpart signature pages or in separate counterparts, each of which
shall be an original and all of which taken together shall constitute one and
the same agreement.


 


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IN WITNESS WHEREOF, the parties
have executed this Agreement on the date and year first above written.


 


 


	
  HOLDER

  	
  NBTY,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
  [Name]

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title

  



 


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