Exhibit
10.26


 


NBTY, INC.

2009 EQUITY AWARDS PLAN


 


NON-QUALIFIED
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
non-qualified 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 Common
Stock set forth below to the Holder, as an eligible employee, consultant or
director of the Company or a subsidiary. 
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.  No part of the Option is intended to qualify
as an “incentive stock option” under section 422 of the Internal Revenue Code
of 1986, as amended (the “Code”).


 


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 (as defined in Section 6)
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 payable 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 Option Price payable by reason of such exercise; (v) 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 it 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 


 


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“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.


 


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.  “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.


 


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.


 


(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.


 


(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 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 


 


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demonstrably injurious to
the Company or one 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 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 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.


 


4

















 


(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, 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.


 


5

















 


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 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 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 retention 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 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 


 


6

















 


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.


 


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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