Exhibit
10.27


 


NBTY, INC.

2009 EQUITY AWARDS PLAN


 


STOCK
APPRECIATION RIGHT 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”) has granted this
stock appreciation right award (the “Award”) on                   ,
20     (the “Grant Date”), under the NBTY, Inc. 2009
Equity Awards Plan (the “Plan”).  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 SARs.  Subject in all respects to the Plan and the
terms and conditions set forth herein and therein, the Holder is hereby granted
a stock appreciation rights (“SARs”) representing                         
shares of the Common Stock at an exercise price per share of $                
(the “Exercise Price”), which is no less than Fair Market Value on the Grant
Date.


 


2.             Vesting and Exercise.


 


(a)           Except as set forth in subsection (b) of this Section 2,
the Award shall vest and become exercisable in installments as provided below,
which shall be cumulative.  To the extent
that the Award has become vested and exercisable as provided below, the Award
thereafter may be exercised in accordance with Section 3.  Upon expiration of the Award, the Award 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 Award
with respect to the percentage of the shares of Common Stock indicated beside
such date, provided that the Holder has not had a Termination (as defined in Section 5)
with the Company or any of its subsidiaries 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 (as
defined in Exhibit A hereto), the Award shall immediately become
exercisable with respect to all shares of Common Stock subject thereto.


 


3.             Method of Exercise; Issuance of Shares;
Notification.  Subject to
the provisions of Section 2 and Section 4, to the extent vested, the
Award 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 Award 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 full number
of stock appreciation rights to be exercised. 
Such notice shall be accompanied by payment in full of the Exercise
Price multiplied by the number of SARs with respect to which the Award is
exercised as follows:  (i) in cash
or by check, bank draft or money order payable to the order of the Company; (ii) 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 a Fair Market Value on the exercise date equal to the aggregate
Exercise Price payable by reason of such exercise; (iii) 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 Exercise Price payable by reason of such exercise; (iv) any
combination of the foregoing; or (v) any other means expressly authorized
by the Committee.  As promptly as is
practicable after the receipt of a written notice of exercise to the Company,
but in no event later than sixty (60) days following the date of exercise, the
Holder shall be entitled to shares of Common Stock with a Fair Market Value
equal to (a) the excess of (1) the Fair Market Value of the Common
Stock on the date of exercise over (2) the
exercise price of the SAR multiplied by (b) the
number of SARs exercised (less the shares used to pay the Exercise Price if the
payment method in clause (iii) in the immediately preceding sentence is
utilized).  Such shares of Common Stock
shall be registered 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.


 


4.             Award Term.  The term of the Award shall be 10 years after
the Grant Date and the Award 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 with the Company.


 


5.             Termination.  “Termination” shall mean the Holder’s
termination of employment with the Company and its subsidiaries, except that if
the Holder is an outside director, “Termination” shall mean the cessation of
the Holder’s service on the Board and if the Holder is a consultant, “Termination”
shall mean the cessation of the Holder’s performance of services for the
Company and its subsidiaries.


 


2

















 


Subject to Section 4 and the terms of
the Plan and this Agreement, the Award 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
Award, 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 Award pursuant to Section 4.


 


(b)           In the event of the Holder’s involuntary Termination
without “cause” (as defined in Section 5(d)), the Award, 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 Award pursuant to Section 4.


 


(c)           In the event of the Holder’s voluntary Termination
(other than a voluntary termination described in Section 5(d)), the Award,
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 Award pursuant to Section 4.


 


(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
Award (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 or any of its subsidiaries; (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 of 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 Award 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.


 


6.             Change in Control.  Notwithstanding the provisions of Section 3.6
of the Plan, in the event of a Change in Control, the Award shall be treated in
accordance with one of the following methods as determined by the Committee in
its sole discretion: (i) the Award 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 Awards; (ii) a new award may be
issued in substitution of the Award that 


 


3

















 


will substantially preserve
the otherwise applicable terms of the Award, 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 Award 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 will be null and void) and any portion of the
Award 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 award 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 without payment
of consideration therefor.


 


7.             Restriction on Transfer of Award.  No part of the Award 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 Award may be exercised only by the Holder or the Holder’s guardian
or legal representative.  The Award 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 Award or in the event of any levy upon the Award by
reason of any execution, attachment or similar process contrary to the
provisions hereof, the Award shall immediately and automatically become null
and void.


 


8.             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 Award
unless and until the Holder has become the holder of record of such
shares.  No adjustments shall be made to
the Award, the shares of Common Stock covered by the Award or the Exercise
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.


 


(b)           The Committee shall adjust the terms of the Award
(including, without limitation, the number of shares of Common Stock subject to
the Award, the type of property to which the Award relate and the Exercise
Price), in such manner as it deems appropriate (including, without limitation,
the cancellation of the Award 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 8(b), the number of shares of Common Stock
subject to the Award will be rounded down to the nearest whole number.  Any adjustment to the Award by the Committee
pursuant to this Section 8(b) shall be final, binding and conclusive.


 


4

















 


9.             Tax Withholding.


 


As a condition to the
delivery of any shares of Common Stock, cash or other securities or
property pursuant to the Award 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 Award (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.


 


10.           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, 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.


 


11.           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).


 


12.           No Obligation to Continue Service.  This Agreement is not an agreement of
employment or retention.  This Agreement
does not guarantee that the Company or its subsidiaries will employ, retain or
continue to employ or retain the Holder during the entire term 


 


5

















 


of this Agreement (or any
portion thereof), including but not limited to any period during which the SAR
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 retention
or compensation.


 


13.           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.


 


14.           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.


 


15.           Choice of Forum.


 


(a)           Jurisdiction.  The Company and the Holder, as a condition to
the Holder’s receipt of the Award, 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 Award,
acknowledge that the forum designated by this Section 15(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 preclude the Company
from bringing any action or proceeding in any other court for the purpose of
enforcing the provisions of Section 15.


 


(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
Award, (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 15(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 15 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 Award, 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 Award, agrees to keep confidential the existence of, and any
information concerning, a dispute, controversy or claim described in Section 15,
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 


 


6

















 


disclose any such
information other than as necessary to the prosecution or defense of the
dispute, controversy or claim).


 


16.           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.


 


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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