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
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.
90 Orville Drive
Bohemia, New York 11716
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 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.
13.
GOVERNING LAW.
ALL QUESTIONS CONCERNING THE CONSTRUCTION,
VALIDITY AND INTERPRETATION OF THIS AGREEMENT WILL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE DOMESTIC LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING
EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE
STATE OF DELAWARE OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF
THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE.
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 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