As filed with the Securities and Exchange Commission on February __, 1998
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
NBTY, INC.
(Formerly NATURE'S BOUNTY, INC.)
(Exact name of registrant as specified in its charter)
Delaware 11-2228617
- -------- ----------
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization
90 Orville Drive, Bohemia, New York 11716
---------------------------------------- ----------
(Address of Principal executive offices) (Zip Code)
1989 Non-Qualified Stock Options,1990 Non-Qualified Stock Options,
------------------------------------------------------------------
1992 Non-Qualified Stock Options,1998 Incentive Stock Option Plan
-----------------------------------------------------------------
(Full title of Plans)
Scott Rudolph, President, 90 Orville Drive, Bohemia, New York 11716
--------------------------------------------------------------------
(Name and address of agent for service)
516-567-9500
-------------------------------------------------------------
(Telephone number, including area code, of agent for service)
Calculation of Registration Fee
-------------------------------
<TABLE>
<CAPTION>
_________________________________________________________________________________________________
Title of Securities Proposed Maximum Proposed Maximum Amount
Securities to Amount to be Offering Price Aggregate Offering of Reg.
be Registered Registered(1) Per Share Price Fee(2)
_________________________________________________________________________________________________
<S> <C> <C> <C> <C>
1989 Non-Qualified Stock
Options: each Option to
purchase one share of
Common Stock 689,000 $ 0.50 $ 344,500 $ 99.90
1990 Non-Qualified Stock
Options; each Option to
purchase one share
of Common Stock 1,320,000 $ 0.625 $ 825,000 $ 239.25
1992 Non-Qualified Stock
Options; each Option
to purchase one share
of Common Stock 1,075,000 $ 0.915 $ 983,625 $ 285.25
1998 Incentive Stock
Options: each Option
to purchase one share
of Common Stock 1,000,000 $40.00 $40,000,000 $11,816.00
_________________________________________________________________________________________________
TOTAL $42,153,125 $12,440.40
____________________
<F1> The amount being registered represents an aggregate of 4,084,000
shares of Common Stock issued or issuable upon the exercise of
4,084,000 outstanding non-qualified stock options granted to Directors
and Officers of the Registrant. Pursuant to Rule 416(c) promulgated
under the Securities Act of 1933, as amended, the Registration
Statement also covers an indeterminate amount of securities to be
offered or sold as a result of any adjustments from stock splits,
stock dividends or similar events.
<F2> Determined by the exercise price of the options pursuant to 17C.F.R.
Section 230.457(h)(1) and Section 230.457(c).
</TABLE>
EXPLANATORY NOTE
The information required by Items 1 and 2 of Part I of Form S-8 to be
contained in the Section 10(a) prospectus is omitted from this Registration
Statement in accordance with Rule 428 of the Securities Act of 1933, as
amended, and the Note to Part I of Form S-8.
Included in Part I of this Registration Statement on Form S-8 is a
reoffer prospectus concerning reoffers and resales of certain of the shares
of Common Stock registered hereby, which is filed in reliance on General
Instruction C to Form S-8.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Note: The documents containing the information specified in this Part I
will be sent or given to employees as specified by Rule 428(b)(l)
promulgated under the Securities Act of 1933, as amended (the "Act"). Such
documents need not be filed with the Securities and Exchange Commission (the
"Commission") either as part of this Registration Statement or as
prospectuses or prospectus supplements pursuant to Rule 424 under the Act.
These documents and the documents incorporated by reference in this
Registration Statement pursuant to Item 3 of Part II of this Form S-8, taken
together, constitute a prospectus that meets the requirements of Section
10(a) of the Act.
This Registration Statement on Form S-8 of NBTY, Inc., a Delaware
corporation (the "Registrant") covers 4,084,000 shares of the Registrant's
common stock, par value $.008 per share (the "Common Stock") issued or,
reserved for issuance under the 1989, 1990, 1992 and 1998 Stock Plans.
Reoffer Prospectus dated February __, 1998
4,084,000 Shares
NBTY, INC.
Common Stock
($.008 Par Value)
___________________________
1989 NON-QUALIFIED STOCK OPTIONS
1990 NON-QUALIFIED STOCK OPTIONS
1992 NON-QUALIFIED STOCK OPTIONS
1998 INCENTIVE STOCK OPTION PLAN
This Prospectus is being used in connection with the offering, from
time to time, by certain stockholders who may be deemed to be affiliates
("Selling Stockholders") of NBTY, Inc. (the "Company") of shares of Common
Stock of the Company (the "Shares"), issued or issuable upon the exercise of
a like number of non-qualified stock options granted to certain Officers and
Directors of the Company pursuant to the Company's 1989, 1990, 1992 Non-
Qualified Stock Options and 1998 Incentive Stock Option Plan (collectively
the "Options"). These persons may offer these Shares, upon exercise of the
Options, for sale as principals for their own accounts at any time and from
time to time on the NASDAQ/NMS or otherwise at prices prevailing at the time
of sale or in private sales and at prices to be negotiated. The Officers
and Directors, upon exercise of the Options and sale of the shares of Common
Stock, receive the entire proceeds from such sale (see "Selling Security
Holders"). The Company will not receive any of the proceeds from the sale
of the Shares, but will receive funds upon the exercise of the Options. All
of the Selling Security Holders are Officers and/or Directors of the Company
and may be deemed to be affiliates of the Company as that term is defined
under Rule 405 of the Securities Act of 1933, as amended.
____________________________________________________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
____________________________________________________________
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION OTHER THAN AS CONTAINED HEREIN IN CONNECTION WITH THE OFFER
CONTAINED IN THIS PROSPECTUS, AND IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY OR ANY PERSON. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE
HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE
HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF.
THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER OR SOLICITATION BY ANYONE IN
ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION MAY NOT BE LAWFULLY
MADE.
The Date of this Prospectus is February __, 1998
TABLE OF CONTENTS
-----------------
Page
----
The Company ...................................................... 2
Available Information ............................................ 2
1989, 1990, 1992 Non-Qualified Stock
Options and 1998 Incentive Stock Option Plan ..................... 2
Use of Proceeds .................................................. 5
Selling Security Holders ......................................... 6
Plan of Distribution ............................................. 7
Incorporation of Certain Documents by Reference .................. 7
Experts .......................................................... 8
Legal Opinion .................................................... 8
THE COMPANY
-----------
NBTY, Inc. (the "Company"), collectively with its subsidiaries is a
manufacturer and marketer of nutritional supplements in the United States.
It sells more than 500 products consisting of vitamins and other nutritional
supplements such as minerals, amino acids and herbs. Vitamins, minerals and
amino acids are sold as a single vitamin and in multi-vitamin combinations
and in varying potency levels in powder, tablet, soft gel, chewable, and
hard shell capsule form. The Company's branded products are sold by
independent and chain pharmacies, wholesalers-retailers, supermarkets,
health food stores and by direct mail.
In August, 1997, NBTY acquired Holland & Barrett ("H&B"), one of the
leading nutritional supplement retailers in the United Kingdom which
presently has 420 locations. Prior to the acquisition by NBTY, H&B marketed
a broad line of nutritional supplement products, including vitamins,
minerals and other nutritional supplements (approximately 58% of H&B's
revenues for its fiscal year 1997) and food products, including fruits and
nuts, confectionery and other items (approximately 42% of H&B's revenues for
its fiscal year 1997).
AVAILABLE INFORMATION
---------------------
NBTY, Inc., formerly Nature's Bounty, Inc. (herein referred to both as
the "Registrant" and as the "Company"), has filed with the Securities and
Exchange Commission (the "Commission"), Washington, D.C., a Registration
Statement on Form S-8 (the "Registration Statement") under the Securities
Act of 1933, as amended (the "Securities Act"), with respect to the
securities described in this document. This document does not contain all
the information set forth in the Registration Statement, certain items of
which are contained in schedules and exhibits to the Registration Statement,
as permitted by the rules and regulations of the Commission.
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934 and, in accordance therewith, files reports
and other information with the Securities and Exchange Commission (the
"Commission"). Reports, proxy and information statements and other
information concerning the Company can be inspected and copied at the public
reference facilities maintained by the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549; Room 1204, Everett McKinley Dirksen Building, 219
South Dearborn Street, Chicago, Illinois 60604; Room 1100, 75 Park Place,
New York, New York 10007; 411 West Seventh Street, Fort Worth, Texas 76102,
8th Floor; and 5757 Wilshire Boulevard, Suite 500 East, Los Angeles,
California, 90036-3648. Copies of any such material can be obtained from
the Public Reference Section of the Commission, Washington, D.C. 20549 at
prescribed rates.
The Company will provide without charge to each person to whom a
Prospectus is delivered, upon written or oral request of such person, a copy
of any and all of the information that has been incorporated herein by
reference (not including any exhibits thereto). Such requests should be
made to the Corporate Secretary, NBTY, Inc., 90 Orville Drive, Bohemia, New
York 11716, telephone number (516)567-9500.
1989 NON-QUALIFIED STOCK OPTIONS
1990 NON-QUALIFIED STOCK OPTIONS
1992 NON-QUALIFIED STOCK OPTIONS
1998 INCENTIVE STOCK OPTION PLAN
General Information. In December, 1989, September, 1990 and March,
1992, the Company issued 689,000, 1,320,000 and 1,075,000 Non-Qualified
Stock Options, respectively, to certain Officers and Directors. Pursuant
thereto, options to purchase an aggregate of 3,084,000 shares of Common
Stock, $.008 par value per share (the "Common Stock"), were granted to
Directors and Officers of the Company. The 3,084,000 shares of Common Stock
subject to options were reserved for issuance upon exercise of the options
granted.
On October 31, 1997, the Board of Directors authorized, subject to
approval of stockholders, an Incentive Stock Option Plan whereby options for
the issuance of 1,000,000 shares of common stock may be issued to officers,
directors and affiliates.
The purpose of the Plans is to advance the interests of the
Corporation by encouraging and enabling the acquisition of a larger personal
proprietary interest in the Corporation by directors and key employees and
affiliates of the Corporation and its Subsidiaries upon whose judgment and
keen interest the Corporation is largely dependent for the successful
conduct of its operations and by providing such directors and key employees
with incentives to put forth maximum efforts for the success of the
Corporation's business. It is anticipated that the acquisition of such
proprietary interest in the Corporation and such incentives will stimulate
the efforts of such directors, key employees and affiliates on behalf of the
Corporation and its Subsidiaries and strengthen their desire to remain with
the Corporation and its Subsidiaries. It is also expected that such
incentives and the opportunity to acquire such proprietary interest will
enable the Corporation and its Subsidiaries to attract desirable personnel.
Neither the Plan nor any of the Option Agreements (i) is subject to
any of the provisions of the Employee Retirement Income Security Act of
1974, or (ii) is a "qualified plan" under Section 401(a) of the Internal
Revenue Code of 1954, as amended (the "Code").
Summary of the Options
----------------------
The following is a brief summary of the provisions of the Options.
The Options provide that they may be granted to employees (including
Officers and Directors) of the Company and its subsidiaries, all of whom are
eligible to participate. The Board of Directors or a committee appointed by
the Board will select the optionees and determine the number of shares to be
subject to each option. In making such determination, there will be taken
into account the duties and responsibilities of the optionee, the value of
the optionee's services, his present and potential contributions to the
success of the Company, the anticipated years of future service of the
optionee and other relevant factors.
Administration
--------------
The Options are administered either by the Board of Directors of the
Company or by a committee of not less than three members appointed by the
Board. The interpretation and construction of any provisions of the Options
by the Board or its committee shall be final and conclusive. Members of the
Board will receive no compensation for their services in connection with the
administration of the Options.
Terms of Options
----------------
The terms of options granted are to be determined by the Board or its
committee. Each Option is to be evidenced by a stock option agreement
between the Company and the employee to whom such Option is granted, and is
subject to the following additional terms and conditions:
(a) Exercise of the Option: The Board of Directors or its
committee have determined that the time period during which Options
granted is for a term of five to ten years and will be exercisable in
whole or in part at any time during the period. Unless otherwise
provided in any option agreement, any Option granted may be
exercisable in whole or in part at any time during the exercise
period. An Option is exercised by giving written notice of exercise
to the Company specifying the number of full shares of Common Stock to
be purchased and tendering payment of the purchase price to the
Company in cash or certified check.
(b) Option Price: The Option price is determined by the Board
of Directors or its committee but in no event may the Option price be
less than the fair market value on the date of grant. Such fair
market value shall be determined by the Board of Directors and, if the
shares of Common Stock are listed on the national securities exchange
or traded on the over-the-counter market, the fair market value shall
be the mean of the reported bid and asked prices of the Common Stock
on such date. Non-Qualified Options granted to 10% shareholders of
the Company are subject to the additional restriction that the Option
price must be at least 110% of the fair market value of the Company's
Common Stock on the date of grant.
(c) Termination of Employment; Death: If the employment of
an optionee is terminated voluntarily by such optionee or for cause,
his Option shall expire immediately. If, however, such employment is
terminated otherwise than by death, voluntarily or for cause, the
optionee may exercise his Option at any time within three months after
such termination. For the purposes of the Options, retirement
pursuant to either a pension or retirement plan adopted by the
Company, or at the normal retirement date prescribed from time to time
by the Company, is not deemed to be either voluntary termination or a
termination for cause.
In the event an optionee dies (a) while in the employ of the
Company or a subsidiary or parent thereof or (b) within three months
after the termination of his employment other than voluntarily or for
cause, his Option may be exercised by a legatee or legatees of such
Option under such optionee's Last Will and Testament or by his
personal representatives or distributees at any time within one year
after his death.
In any event, an Option may only be exercised to the extent that
it could have been exercised by the optionee at the time of his
termination of employment or death. In no event may an Option be
exercised after the expiration of ten years from the date of its
grant.
(d) Termination of Options: Unless otherwise provided in the
terms of an Option, Options are granted for a period of five to ten
years. No Option can be exercisable by any persons after such
expiration. No options can have a term greater than ten years and
stock Options granted to holders of more than 10% of the Company's
Common Stock may not have a term of more than five years.
(e) Nontransferability of Options: An Option is
nontransferable by the optionee, other than by will or the laws of
descent and distribution, and is exercisable during the optionee's
lifetime only by the person who acquires the right to exercise the
Option by bequest or inheritance or by reason of the death of the
optionee.
The Option agreement may contain such other terms, provisions
and conditions not inconsistent with the Options as may be determined
by the Board of Directors or its committee.
TERMINATION; AMENDMENT OR DISCONTINUANCE
----------------------------------------
The Board of Directors of the Company may from time to time make such
modifications or amendment of the options as it deems advisable.
However, termination, modification or amendment of the Plan may
adversely affect the terms of any outstanding options without the consent of
the holders of such options.
ADJUSTMENTS UPON CHANGES IN COMMON STOCK
----------------------------------------
In the event that the number of outstanding shares of Common Stock of
the Company is changed by reason of recapitalization, reclassification,
stock split, stock dividend, combination, exchange of shares, or the like,
the Board of Directors of the Company will make an appropriate adjustment in
the aggregate number of shares of Common Stock available under the Options
in the number of shares of Common Stock reserved for issuance upon the
exercise of then outstanding Options and in the exercise prices of such
Options. Any adjustment in the number of shares will apply proportionately
only to the unexercised portion of options. Fractions of shares resulting
from any such adjustment shall be revised to the next lower whole number of
shares.
In the event of the proposed dissolution, liquidation, merger or sale
of substantially all of the assets of the Company, all outstanding Options
will automatically terminate unless otherwise provided by the Board. The
Board of Directors or its committee may in its discretion make provisions
for accelerating the exercisability of shares subject to Options in such
circumstances.
CERTAIN UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS
WITH RESPECT TO THE INCENTIVE STOCK OPTION PLAN
The following general discussion of the principal tax considerations
is based upon the tax laws and regulations of the United States existing as
of the date hereof, all of which are subject to modification at any time.
Each participant in the Plan is urged to consult with his or her own tax
adviser with respect to the tax consequences of the grant or exercise of
Options Rights and the disposition of shares acquired under the Plan, as
those consequences relate to the employee's own individual circumstances.
In particular, the discussion which follows does not apply to person who are
not citizens or residents of the United States and, therefore, such persons
are strongly urged to consult with their own tax advisers with respect to
the tax implications of the grant or exercise of an option and the
disposition of shares acquired under the laws of the country in which they
reside or are citizens.
The Plan does not constitute a qualified retirement plan under Section
401(a) of the Code (which generally covers trusts forming part of a stock
bonus, pension or profit-sharing plan funded by the employer and/or employee
contributions which are designed to provide retirement benefits to
participants under certain circumstances) and is not subject to the Employer
Retirement Income Security Act of 1974 (the pension reform law which
regulates most types of privately funded pension, profit-sharing and other
employee benefit plans).
CONSEQUENCES TO KEY EMPLOYEES AND DIRECTORS: INCENTIVE STOCK OPTIONS.
No income is recognized for federal income tax purposes by a Grantee at the
time an Incentive Stock Option is granted, and, except as discussed below,
no income is recognized by a Grantee upon his or her exercise of an
Incentive Stock Option. If the Grantee makes no disposition of the shares
received upon exercise within two years from the date the option was granted
and one year from the date the Option is exercised, the Grantee will
recognize long-term capital gain or loss when he or she disposes of his or
her shares. Such gain or loss will be measured by the difference between
the exercise price of the Option and the amount received for the shares at
the time of disposition.
If the Grantee disposes of shares acquired upon exercise of an
Incentive Stock Option within two years after being granted the option or
within one year after acquiring the shares, any amount realized from such
disqualifying disposition will be taxable as ordinary income in the year of
disposition to the extent that the lesser of (A) the fair market value of
the shares on the date the Incentive Stock Option was exercised or (B) the
fair market value at the time of such disposition exceeds the Incentive
Stock Option exercise price. Any amount realized upon disposition in excess
of the fair market value of the shares on the date of exercise will be
treated as long-term or short-term capital gain, depending upon whether the
shares have been held for more than one year.
The use of stock acquired through exercise of an Incentive Stock
Option to exercise an Incentive Stock Option will constitute a disqualifying
disposition if the applicable holding period requirement has not been
satisfied.
For alternative minimum tax purposes, the excess of the fair market
value of the stock on the date of exercise over the exercise price of the
Incentive Stock Option is included in computing alternative minimum taxable
income.
USE OF PROCEEDS
---------------
Upon the exercise of the 3,084,000 non-qualified stock options, and
upon the exercise of the 1,000,000 Incentive Stock Options registered
hereby, the Company will receive gross proceeds of $42,153,125*. The
Company intends to use such proceeds for working capital purposes. The
Company will not realize any proceeds upon the sale of the shares of Common
Stock issued or issuable upon the exercise of these stock Options.
SELLING SECURITY HOLDERS
------------------------
The following table lists the Selling Stockholders with respect to the
shares of Common Stock being registered hereunder; the number of shares
known to the Company to be held by each as of September 30, 1997; the number
of stock Options granted to each; the number of shares owned by each as a
result of the exercise of stock Options; the number of shares to be sold by
each; and the percentage of outstanding shares of Common Stock to be
beneficially owned by each before and after the sale of the shares hereby.
Upon the exercise of the stock options, the Selling Stockholders
intend to offer the shares for sale as principals for their own accounts at
any time and from time to time on the NASDAQ/NMS or otherwise, at prices
prevailing at the time of sale, or in private sales and at prices to be
negotiated.
- --------------------
* Assuming the average bid and asked prices as of February 2, 1998, for
the 1,000,000 Options subject to grant.
Selling Security Holders
------------------------
<TABLE>
<CAPTION>
Total Number of Number of Number of Percentage of Shares
Number of 1989 Non- 1990 Non- 1992 Non- of Common Stock
Shares of Qualified Qualified Qualified Aggregate Beneficially Owned(1)
Common Stock Stock Stock Stock Number of ---------------------
Selling Beneficially Options Options Options Options Before After
Stockholders Owned Granted Granted(3) Granted Granted Offering Offering
- ----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Scott Rudolph 3,127,315 419,333(3) 900,000 600,000(3) 1,919,333 16.0 --
Harvey Kamil 685,631 221,667(3) 420,000 60,000(3) 701,667 3.6 --
Barry Drucker 98,799 40,000 40,000 (2) (2)
James Flaherty 30,148 45,000 45,000 (2) (2)
Abraham Kleinman 45,000 45,000 45,000 (2) (2)
Jean Palladino 45,000 45,000 45,000 (2) (2)
Abraham Rubenstein 45,000 45,000 45,000 (2) (2)
William Shanahan 45,000 45,000 45,000 (2) (2)
Robert Silverman 45,000 45,000 45,000 (2) (2)
James Taylor 45,000 45,000 45,000 (2) (2)
Bernard G. Owen 31,400 12,000 12,000 24,000 (2) (2)
Aram Garabedian 24,000 12,000 12,000 24,000 (2) (2)
Murray Daly 22,000 12,000 12,000 24,000 (2) (2)
Alfred Sacks 15,000 12,000 12,000 24,000 (2) (2)
Glenn Cohen 12,000 12,000 24,000 (2) (2)
- --------------------
<F1> Based upon 20,121,379 shares outstanding as of September 30, 1997.
<F2> Represents less than 1%.
<F3> Exercised in full.
<F4> No options have been granted under the 1998 Incentive Stock Option Plan.
</TABLE>
PLAN OF DISTRIBUTION
--------------------
Any shares of Common Stock sold pursuant to this Reoffer Prospectus
will be sold by the Selling Stockholders for their own account, and they
will receive all proceeds from any such sales. The Corporation will receive
none of the proceeds from the sale of shares which may be offered hereby but
will receive funds upon the exercise of the options pursuant to which the
Selling Stockholders will acquire the shares covered by this Reoffer
Prospectus, which funds, if any, will be used for general corporate
purposes. The Selling Stockholders have not advised the Corporation of any
specific plans for the distribution of the shares of Common Stock covered by
this Reoffer Prospectus, but, if and when shares are sold, it is anticipated
that the shares will be sold from time to time primarily in transactions
(which may include block transactions), although sales may also be made in
negotiated transactions or otherwise. If shares of Common Stock are sold
through brokers, the Selling Stockholders may pay customary brokerage
commissions and charges. The Selling Stockholders may effect such
transactions by selling shares to or through broker-dealers, and such
broker-dealers may receive compensation in the form of discounts,
concessions or commissions from the Selling Stockholders and/or the
purchasers of shares for whom such broker-dealers may act as agent or to
whom they may sell as principal, or both (which compensation as to a
particular broker-dealer might be in excess of customary commissions). The
Selling Stockholders and any broker-dealers that act in connection with the
sale of the shares hereunder might be deemed to be "underwriters" within the
meaning of Section 2(11) of the Securities Act of 1933, and any commissions
received by them and any profit on the resale of shares as principal might
be deemed to be underwriting discounts and commissions under such Act.
Shares of Common Stock covered by this Reoffer Prospectus also may be sold
pursuant to Rule 144 under the Securities Act of 1933 rather than pursuant
to this Reoffer Prospectus. The Selling Stockholders have been advised that
they are subject to the applicable provisions of the Securities Exchange Act
of 1934, including without limitation Rules 10b-5, 10b-6 and 10b-7
thereunder.
There can be no assurance that the Selling Stockholders will sell any
or all of the shares of Common Stock offered hereunder.
INCORPORATION OF DOCUMENTS BY REFERENCE
---------------------------------------
The documents listed in (a) through (c) below are hereby incorporated
by reference in this Registration Statement on Form S-8; and all documents
subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934, prior to the filing of a
post-effective amendment which indicates that all securities offered have
been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated herein by reference in this Registration
Statement on Form S-8, and shall be a part hereof from the date of the
filing of such documents.
(a) The Registrant's annual report on Form 10-K for the fiscal year
ended September 30, 1997.
(b) All other reports filed by the Registrant pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 since
September 30, 1997.
(c) The description of the Registrant's Common Stock contained in
reports and Registration Statements filed under the Securities
Exchange Act of 1934, including any amendment or report filed for
the purpose of updating such description.
All reports hereafter filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the
filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated herein by reference and to be a
part hereof from the date of filing of such documents.
Any statement contained in a document incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this
registration statement to the extent that a statement contained herein or in
any other subsequently filed document which is also incorporated by
reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as modified or
superseded, to constitute a part of this registration statement.
EXPERTS
-------
The consolidated balance sheets as of September 30, 1997 and 1996 and
the consolidated statements of income, cash flows, stockholders' equity and
the financial statement schedule for each of the three years in the period
ended September 30, 1997, incorporated by reference in this Registration
Statement, have been incorporated herein in reliance on the report of
Coopers & Lybrand L.L.P., independent accountants, given on the authority of
that firm as experts in accounting and auditing.
LEGAL OPINION
-------------
The legality of the Securities being offered hereby is being passed
upon by Michael C. Duban, P.C., 81 Main Street, Suite 205, White Plains, New
York 10601, general counsel to the Company. Michael C. Duban is a
shareholder of the Company.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
--------------------------------------------------
ITEM 3. Incorporation of Certain Documents by Reference.
- ---------------------------------------------------------
The documents listed in (a) through (c) below are hereby incorporated
by reference in this Registration Statement on Form S-8; and all documents
subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934, prior to the filing of a
post-effective amendment which indicates that all securities offered have
been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated herein by reference in this Registration
Statement on Form S-8, and shall be a part hereof from the date of the
filing of such documents.
(a) The Registrant's annual report on Form 10-K for the fiscal year
ended September 30, 1997.
(b) All other reports filed by the Registrant pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 since
September 30, 1997.
(c) The description of the Registrant's Common Stock contained in
Registration Statements filed under the Securities Exchange Act
of 1934, including any amendment or report filed for the purpose
of updating such description.
ITEM 4. Description of Securities.
- -----------------------------------
Not Applicable.
ITEM 5. Interest of Named Experts and Counsel.
- -----------------------------------------------
Not Applicable.
ITEM 6. Indemnification of Directors and Officers.
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Reference is made to the Company's Certificate of Incorporation, and
to Section 145 of the General Corporation Law for the State of Delaware
("DGCL"). Section 145 of the DGCL authorizes a corporation to provide
indemnification against expenses (including attorney's fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred, in
non-derivative actions, suits or proceedings brought by third parties to an
officer, director, employee or agent of the corporation, if such party acted
in good faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the corporation, and with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct was
unlawful as determined in accordance with the statute.
In a derivative action, i.e., one by or in the right of the
corporation, indemnification may be made only for expenses actually and
reasonably incurred by directors, officers, employees or agents in
connection with the defense or settlement of an action or suit, and only
with respect to a matter as to which they shall have acted in good faith and
in a manner they reasonably believed to be in or not opposed to the best
interest of the corporation, except that no indemnification shall be made if
such person shall have been adjudged liable to the corporation, unless and
only to the extent that the Court in which the action or suit was brought
shall determine upon application that the defendant directors, officers,
employees or agents are fairly and reasonably entitled to indemnity for such
expenses despite such adjudication of liability.
The Company maintains officers and directors liability insurance.
Further, the Company has agreed to indemnify all directors and officers of
the Company for any claims made against them, subject to the following
conditions. Such indemnification will not extend to certain claims,
including claims based upon or attributable to the indemnitee's gaining
personal profit or advantage to which he is not legally entitled, claims
brought or contributed to by the dishonesty of the indemnitee and claims
under Section 16(b) of the Securities Exchange Act of 1934 for an accounting
of profits resulting from the purchase or sale by the indemnitee of the
Company's securities. Notwithstanding the foregoing, and insofar as
indemnification for liabilities arising under the Securities Act of 1933, as
amended (the "Act") may be permitted to directors, officers or personnel
controlling the Company, in the opinion of the Securities and Exchange
Commission, such indemnification is against public policy as expressed in
the Act and is therefore unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Company if expenses incurred or paid by a director, officer or a controlling
person of the Company in a successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person for
liabilities arising under the Act in connection with the securities being
registered hereunder, the Company will, unless in the opinion of its
counsel, the issue has been settled by controlling precedent, submit to a
court or appropriate jurisdiction the issue as to whether such
indemnification by it is against public policy as expressed in the Act and
will comply with the final adjudication of such issue.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers, and
controlling persons of the Registrant pursuant to the foregoing provisions,
or otherwise, the Registrant has been advised in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense of
any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question as to whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the
final adjudication of such issue.
ITEM 7. Exemption From Registration Claimed.
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The Non-Qualified Stock Options and the Incentive Stock Options and
the shares of Common Stock issued upon the exercise of certain of such
options, which are being registered herein, were issued without registration
under the Securities Act of 1933, as amended, in accordance with the
exemption, from registration contained in Section 4(2) of such Act.
ITEM 8. Exhibits.
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Exhibit Number
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4.1(i) 1989, 1990 and 1992 Non-Qualified Stock Options.*
4.1(ii) 1998 Incentive Stock Option Plan
5. Opinion of Michael C. Duban, P.C, as to the legality of
the Securities being offered hereunder.
24.1 The consent of Michael C. Duban, P.C. is included in its
opinion filed as Exhibit 5 to the Registration Statement.
24.2 Consent of Coopers & Lybrand L.L.P., independent
accountants.
* Previously filed and incorporated herein by reference.
ITEM 9. Undertakings.
- ----------------------
1. The undersigned Registrant hereby undertakes to file during any
period in which offers or sales are being made, a post-effective amendment
to this Registration Statement to include any material information with
respect to the plan of distribution not previously disclosed in the
Registration Statement or any material change to such information in the
Registration Statement.
2. The undersigned Registrant hereby undertakes that, for the purpose
of determining any liability under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
3. The undersigned Registrant hereby undertakes to remove from
registration by means of a post-effective amendment any of the securities
being registered which remain unsold at the termination of the offering.
4. The undersigned Registrant hereby undertakes that for purposes of
determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
related to the securities offered therein, and the offering of such
securities at such time shall be deemed to be the initial bona fide offering
thereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe that it meets
the requirement for filing on Form S-8 and the registrant has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized in Bohemia, New York on December __, 199_.
Dated: February, 1998 By: /s/ Scott Rudolph
-------------- -----------------------------------
Scott Rudolph
President, Chief Executive Officer
Dated: February, 1998 By: /s/ Harvey Kamil
-------------- -----------------------------------
Harvey Kamil
Executive Vice President and
Chief Financial Officer
Pursuant to the requirements of the Securities Exchange Act of 1933, this
report has been signed below by the following persons on behalf of the
registrant and in the capacities and on the dates indicated.
Dated: February, 1998 By: /s/ Scott Rudolph
-------------- -----------------------------------
Scott Rudolph
Chairman, President and
Chief Executive Officer
Dated: February, 1998 By: /s/ Arthur Rudolph
-------------- -----------------------------------
Arthur Rudolph, Director
Dated: February, 1998 By: /s/ Aram Garabedian
-------------- -----------------------------------
Aram Garabedian, Director
Dated: February, 1998 By: /s/ Bernard G. Owen
-------------- -----------------------------------
Bernard G. Owen, Director
Dated: February, 1998 By: /s/ Alfred Sacks
-------------- -----------------------------------
Alfred Sacks, Director
Dated: February, 1998 By: /s/ Murray Daly
-------------- -----------------------------------
Murray Daly, Director
Dated: February, 1998 By: /s/ Glenn Cohen
-------------- -----------------------------------
Glenn Cohen, Director
Dated: February, 1998 By: /s/ Bud Solk
-------------- -----------------------------------
Bud Solk, Director
Dated: February, 1998 By: /s/ Nathan Rosenblatt
-------------- -----------------------------------
Nathan Rosenblatt, Director
Exhibit 4.1(ii)
NBTY, INC.
1998 INCENTIVE STOCK OPTION PLAN
1. Purpose of the Plan.
The purpose of the NBTY, Inc. 1998 Incentive Stock Option Plan
(hereinafter the "Plan") is to provide for the granting of stock options of
officers, directors, affiliates and employees of NBTY, Inc. and the
Subsidiaries in recognition of the valuable services provided, and
contemplated to be provided, by such individuals. The general purpose of the
Plan is to promote the interests of NBTY, Inc. and its stockholders and to
reward dedicated individuals of NBTY, Inc. and its Subsidiaries by providing
them additional incentives to continue and increase their efforts with respect
to, and to remain in the service of, NBTY, Inc. or its Subsidiaries.
2. Certain Definitions.
The following terms (whether used in the singular or plural) have the
meanings indicated when used in the Plan:
(a) "Act" means the Omnibus Budget Reconciliation Act of 1993, as
amended
(b) "Agreement" means the incentive stock options agreement specified
in Section 10.
(c) "Approved Transaction" means any transaction in which the Board
(or, if approval of the Board is not required as a matter of law,
the stockholders of NBTY, Inc.) shall approve (i) any consolidation
or merger of NBTY, Inc. in which NBTY, Inc., is not the continuing
or surviving corporation or pursuant to which shares of Common
Stock would be converted into cash, securities or other property,
other than a merger of NBTY, Inc. in which the holders of Common
Stock immediately prior to the merger have the same proportionate
ownership of common stock of the surviving corporation immediately
after the merger, or (ii) any sale, lease, exchange, or other
transfer (in one transaction or a series of related transactions)
of all, or substantially all, of the assets of NBTY, Inc., or (iii)
the adoption of any plan or proposal for the liquidation or
dissolution of NBTY, Inc.
(d) "Award" means grant of Options under this Plan.
(e) "Board" means the Board of Directors of NBTY, Inc.
(f) "Board Change" means, during any period of two consecutive years,
individuals who at the beginning of such period constituted the
entire Board ceased for any reason to constitute a majority thereof
unless the election, or the nomination for election by NBTY, Inc.'s
stockholders, of each new director was approved by a vote of at
least two-thirds of the directors then still in office who were
directors at the beginning of the period.
(g) "Code" means the Internal Revenue Code of 1986, as amended from
time to time, or any successor statute or statutes thereto.
Reference to any specific Code section shall include any successor
section.
(h) "Committee" means the Committee comprised of members of the Board
appointed pursuant to Section 4.
(i) "Common Stock" means the Committee comprised of members of the
Board appointed pursuant to Section 4.
(j) "NASDAQ" means the NASDAQ National Market.
(k) "Control Purchase" means any transaction in which any person (as
such term is defined in Sections 13(d) and 14(d)(2) of the Exchange
Act), corporation or other entity (other than NBTY or any employee
benefit plan sponsored by NBTY, Inc. or any of its Subsidiaries)
(i) shall purchase any Common Stock (or securities convertible into
or exchangeable for Common Stock) for cash, securities or any other
consideration pursuant to a tender offer or exchange offer, without
the prior consent of the Board, or (ii) shall become the
"beneficial owner" (as such term is defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of NBTY, Inc.
representing 20% or more of the combined voting power of the then
outstanding securities of NBTY, Inc. ordinarily (and apart from the
rights accruing under special circumstances) having the right to
vote in the election of directors (calculated as provided in Rule
13d-3(d) in the case of rights to acquire NBTY Inc.'s securities).
(l) "Effective Date" means the date the Plan becomes effective pursuant
to Section 14.
(m) "Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, or any successor statute or statutes
thereto. Reference to any specific Exchange Act section shall
include any successor section.
(n) "Fair Market Value" of a share of Common Stock means the average of
the high and low sales prices of a share of Common Stock on NASDAQ
on the date in question except as otherwise provided in Section 6.1.
(o) "Holder" means an employee of NBTY, Inc. or any of its Subsidiaries
who has received an option under this Plan.
(p) "ISO" means an incentive stock option within the meaning of Section
422A(b) of the Code.
(q) "Option" means any ISO granted pursuant to this Plan.
(r) "Plan" has the meaning ascribed thereto in Section 1.
(s) "Subsidiary" of a person means any present or future subsidiary of
such person as such term is defined in Section 425 of the Code and
any present or future trade or business, whether or not
incorporated, controlled by or under common control with such
person. An entity shall be deemed a Subsidiary of a person only for
such periods as the requisite ownership or control relationship is
maintained.
(t) "NBTY" means NBTY, Inc., a Delaware corporation, and any successor
thereto.
(u) "Total Disability" means a permanent and total disability as
defined in Section 22(e)(3) of the Code.
(v) "Individual" means an officer, director, affiliate or employee of
NBTY, Inc. or any of its subsidiaries.
3. Stock Subject to the Plan.
3.1 Number of Shares. Subject to the provisions of Section 12 and this
Section 3, the maximum number of shares of Common Stock in respect of which
Awards may be granted under the Plan is 1,000,000 shares. If and to the extent
that any Option shall expire, terminate or be canceled for any reason without
having been exercised (or without having been considered to have been
exercised as provided in Section 6, the shares of Common Stock subject to such
expired, terminated or canceled portion of the Option shall again become
available for purposes of the Plan.
3.2 Character of Shares. Shares of Common Stock deliverable under the
terms of the Plan may be, in whole or in part, authorized and unissued shares
of Common Stock or issued shares of Common Stock held in NBTY's treasury, or
both.
3.3 Reservation of Shares. NBTY shall at all times reserve a number of
shares of Common Stock (authorized and unissued Common Stock, issued Common
Stock held in NBTY's treasury, or both) equal to the maximum number of shares
that may be subject to options and future options under the Plan.
4. Administration
4.1 Powers. The Plan shall be administered by the Board. Subject to
the express provisions of the Plan, the Board shall have plenary authority, in
its discretion, to grant Options under the Plan and to determine the terms and
conditions (which need not be identical) of all Options so granted, including
without limitation, (a) the individuals to whom, and the time or times at
which Options shall be granted or awarded, (b) the number of shares to be
subject to each Option, (c) when an Option can be exercised and whether in
whole or in installments, and (d) the form, terms and provisions of any
Agreement (which terms may be amended, subject to Section 13.2).
4.2 Factors to Consider. In making determinations hereunder, the Board
may take into account the nature of the services rendered by the respective
individuals, their dedication and past contributions to NBTY and its
Subsidiaries, their present and potential contributions to the success of NBTY
and its Subsidiaries and such other factors as the Board in its discretion
shall deem relevant.
4.3 Interpretation. Subject to express provisions of the Plan, the
Board shall have plenary authority to interpret the Plan, to prescribe, amend
and rescind the rules and regulations relating to it and to make all other
determinations deemed necessary or advisable for the administration of the
Plan. The determinations of the Board on the matters referred to in this
Section 4 shall be conclusive.
4.4 Delegation to Committee. Notwithstanding anything to the contrary
contained herein, the Board may at any time, or from time to time, appoint a
Committee and delegate to such Committee the authority of the Board to
administer the Plan, including to the extent provided by the Board, the power
to further delegate such authority. Upon such appointment and delegation, any
such Committee shall have all the powers, privileges and duties of the Board
in the administration of the Plan to the extent provided in such delegation,
except for the power to appoint members of the Committee and to terminate,
modify or amend the Plan. The Board may from time to time appoint members of
any such Committee in substitution for or in addition to members previously
appointed, may fill vacancies in such Committee and may discharge such
Committee.
Any such Committee shall hold its meetings at such times and places as
it shall deem advisable. A majority of members shall constitute a quorum and
all determinations shall be made by a majority of such quorum. Any
determination reduced to writing and signed by all of the members shall be
fully as effective as if it had been made by a majority vote at a meeting duly
called and held.
5. Eligibility.
5.1 General. Options may be granted to (a) employees, officers,
directors and affiliates of NBTY or any of its Subsidiaries and (b)
prospective employees of NBTY or any of its Subsidiaries. The exercise of
Options granted to a prospective employee shall be conditioned upon such
person becoming an employee of NBTY or any of its Subsidiaries. For purposes
of the Plan, the term "prospective employee" shall mean any person who holds
an outstanding offer of employment on specific terms from NBTY or any of its
Subsidiaries. Options may be granted to employees who hold or have held
Options under this Plan or any similar or other Options under any plan of NBTY
or its Subsidiaries.
5.2 Special ISO Rule. No ISO shall be granted to an individual who, at
the time the ISO is granted, owns (or is considered as owning within the
meaning of Section 425(d) of the Code) stock possessing more than 10% of the
total combined voting power of all classes of stock of NBTY or any Subsidiary,
unless at the time such ISO is granted, the option price is at least 110% of
the Fair Market Value of the Common Stock subject to the ISO and the ISO by
its terms is not exercisable after the expiration of five years from the date
it is granted.
6 Options.
6.1 Option Prices. Subject to Section 5.2, the purchase price of the
Common Stock under each Option shall be determined by the Board and set forth
in the applicable Agreement, but shall not be less then 100% of the Fair
Market Value of the Common Stock on the date of grant.
6.2 Term of Options. The term of each Option shall be for such period
as the Board shall determine, as set forth in the applicable Agreement, but
not more than 10 years from the date of grant (except as provided in Section
5.2).
6.3 Exercise of Options. An Option granted under the Plan shall become
(and remain) exercisable during the term of the Option to the extent provided
in the applicable Agreement and this Plan and, unless the Agreement otherwise
provides, may be exercised to the extent exercisable, in whole or in part, at
any time and from time to time during such term; provided, however, that
subsequent to the grant of an Option, the Board, at any time before complete
termination of such Option, may accelerate the time or times at which such
Option may be exercised in whole or in part (without reducing the term of such
Option). The Agreement may contain conditions precedent to the exercisability
of Options, including without limitation, the achievement of minimum
performance criteria.
6.4 Manner of Exercise. Payment of the Option purchase price shall be
made in cash or in whole shares of Common Stock already owned by the person
exercising on Option or, partly in cash and partly in such Common Stock;
however, that such payment may be made in whole or in part in shares of Common
Stock only if and to the extent permitted by the applicable Agreement. An
Option shall be exercised by written notice to NBTY upon such terms and
conditions as provided in the Agreement. NBTY shall effect the transfer of the
shares of Common Stock purchased under the Option as soon as practicable, and
within a reasonable time thereafter such transfer shall be evidenced in the
books of NBTY. No Holder exercising an Option shall have any of the rights of
a stockholder of NBTY with respect to shares of Common Stock subject to an
Option granted under the Plan until due exercise and full payment has been
made. No adjustment shall be made for cash dividends or other rights for which
the record date is prior to the date of such due exercise and full payment.
7. Termination of Association.
7.1 General. If a Holder's association shall terminate prior to the
complete exercise of an Option (or deemed exercise thereof, as provided in
Section 6.3), then such Option shall thereafter be exercisable in accordance
with the provisions of the applicable Agreement (including the provisions of
any other agreement referred to in the Agreement); provided, however, that (a)
no Option may be exercised after the scheduled expiration date of such
Option; (b) if the Holder's association terminates by reason of death or Total
Disability, the Option shall remain exercisable for a period of at least one
year following such termination (but no later than the scheduled expiration of
such Option); and (c) any termination for cause will be treated in accordance
with the provisions of Section 7.2.
7.2 Termination for Cause. If a Holder's association with NBTY or any
of its Subsidiaries shall be terminated for cause by NBTY or such Subsidiary
prior to the exercise of any Option, then all Options held by such Holder
shall immediately terminate. For the purposes of this Section 7.2, cause shall
have the meaning ascribed thereto in any agreement to which Holder is a party.
In the absence of an agreement, cause shall include but not be limited to,
insubordination, dishonesty, incompetence, moral turpitude, other misconduct
or any kind and the refusal to perform his duties and responsibilities for any
reason other than illness or incapacity; provided, however, that if such
termination occurs within 12 months after an Approved Transaction, Control
Purchase or Board Change, termination for cause in the absence of an
employment agreement shall mean only a felony conviction for fraud,
misappropriation or embezzlement.
7.3 Special Rule. Notwithstanding any other provisions of the Plan,
the Board may provide in the applicable Agreement that the Option shall become
and/or remain exercisable at rates and times at variance with the rules
otherwise herein set forth; provided, however, that any such Agreement
provisions at variance with the exercisability rules otherwise set forth
herein shall be effective only if reflected in the terms of an employment
agreement approved or ratified by the Board.
7.4 Miscellaneous. The Board may determine whether any given leave of
absence constitutes a termination by that individual.
8. Right to Terminate Association.
Nothing contained in the Plan or in any Option shall confer on any
Holder any right to continue in the employ of NBTY or any of its Subsidiaries
or interfere in any way with the right of NBTY or a Subsidiary to terminate
the association of the Holder at any time, with or without cause; subject,
however, to the provisions of any association agreement between the Holder and
NBTY or any of its Subsidiaries.
9. Nonalienation of Benefits
Unless otherwise set forth herein, no right or benefit under the Plan
shall be subject to anticipation, alienation, sale, assignment, hypothecation,
pledge, exchange, transfer, encumbrance or charge, and any attempt to
anticipate, alienate, sell, assign, hypothecate, pledge, exchange, transfer,
encumber or charge the same shall be void, No right or benefit hereunder shall
in any manner be liable for or subject to the debts, contracts, liabilities or
torts of the person entitled to such benefits.
10. Written Agreement.
Each grant of an Option shall be evidenced by a stock option agreement,
which shall designate the Options granted thereunder as ISO's in such form and
containing such terms and provisions not inconsistent with the provisions of
the Plan as the Board from time to time shall approve; provided, however, that
such Option may be evidenced by a single agreement. The effective date of the
granting of an Option shall be the date on which the Board approves such
grant. Each grantee of an Option shall be notified promptly of such grant and
a written Agreement shall be promptly executed and delivered by NBTY and the
grantee, provided that such grant of Options shall be terminate if such
written Agreement is not signed by such grantee (or his attorney) and
delivered to NBTY within 90 days after the date the Agreement is sent to such
grantee for signature. Any such written Agreement may contain (but shall not
be required to contain) such provisions as the Board deems appropriate to
ensure that the penalty provisions of Section 4999 of the Code will not apply
to any stock or cash received from NBTY of any of its Subsidiaries by the
Holder or a transferee of such Holder if the Option or any part thereof, has
been transferred pursuant to Section 20.
11. Adjustment Upon changes in Capitalization, etc.
In the event of any stock split, dividend, distribution, combination,
reclassification of recapitalization that changes the character or amount of
the Common Stock while any portion of any Option theretofore granted under the
Plan is outstanding but unexercised, the Board shall make such adjustments in
the character and number of shares subject to such Option and, in the Option
price, as shall be applicable, equitable and appropriate in order to make such
Option immediately after any such change, as nearly as may be practicable,
equivalent to such Option immediately prior to any such change. If any merger,
consolidation or similar transaction affects the Common Stock subject to any
unexercised Option theretofore granted under the Plan, the Board or any
surviving or acquiring corporation shall take such action as is equitable and
appropriate to substitute a new Option for such Option or to assume such
Option in order to make such new or assumed Option, as nearly as may be
practicable, equivalent to the old Option. If any such change or transaction
shall occur, the number and kind of shares for which Options may thereafter be
granted under the Plan shall be adjusted to give effect thereto.
12. Right of First Refusal.
The Agreements may contain such provisions as the Board shall determine
to the effect that if a Holder, or such other person exercising an Option,
elects to sell all or any shares of Common Stock that such Holder or other
person acquired upon the exercise of an Option awarded under the Plan, then
such Holder or other person shall not sell such shares unless such Holder or
other person shall have first offered in writing to sell such shares to NBTY
at Fair Market Value on a date specified in such offer (which date shall be at
lease three business days and not more than 10 business days following the
date of such offer). In any such event, certificates representing shares
issued upon exercise of Options shall bear a restrictive legend to the effect
that transferability of such shares is subject to the restrictions contained
in the Plan and the applicable Agreement and NBTY may cause the registrar of
its Common Stock to place a stop transfer order with respect to such shares.
13. Termination and Amendment.
13.1 General. Unless the Plan shall theretofore have been terminated
as hereinafter provided, no Options may be granted under the Plan on or after
the tenth anniversary of the Effective Date. The Board may at any time prior
to the tenth anniversary of the Effective Date terminate the Plan, and the
Board may at any time modify or amend the Plan in such respects as it shall
deem advisable; provided, however, that any such modification or amendment
shall comply with all applicable laws, applicable stock exchange listing
requirements.
13.2 Modification. Except as otherwise set forth herein, no
termination, modification or amendment of the Plan may, without the consent of
the person to whom any Option shall theretofore have been granted (or a
transferee of such person if the Option, or any part thereof, has been
transferred pursuant to Section 20), adversely affect the rights of such
person with respect to such Option. No modification, extension, renewal or
other change in any Option granted under the Plan shall be made after the
grant of such Option, unless the same is consistent with the provisions of the
Plan. With the consent of the Holder (or transferee of such Holder if the
Option, or any part thereof, has been transferred pursuant to Section 20) and
subject to the terms and conditions of the Plan (including Section 13), the
Board may amend outstanding Agreements with any Holder (or any such
transferee), including without limitation, any amendment which would (a)
accelerate the time or times at which the Option may be exercised and/or (b)
extend the scheduled expiration date of the Option. Without limiting the
generality of the foregoing, the Board may but solely with the Holder's
consent, agree to cancel any Option under the Plan held by such Holder and
issue a new Option in substitution therefor, provided that the Option so
substituted shall satisfy all of the requirements of the Plan as of the date
such new Option is granted.
14. Effectiveness of the Plan.
The Plan shall become effective upon notification by the affirmative
vote of a majority of the votes duly case thereof, either in person or by
proxy, by the holders of voting securities of NBTY entitled to vote thereon,
voting together as a single class, at a duly called and held meeting of
stockholders of NBTY.
15. Government and Other Regulations.
The obligation of NBTY with respect to Options shall be subject to all
applicable laws, rules and regulations and such approvals by any governmental
agencies as may be required under the Securities Act of 1933, and the rules
and regulations of any securities exchange on which the Common Stock may be
listed. For so long as the Common Stock is registered under the Exchange Act,
NBTY shall use its reasonable efforts to comply with any legal requirements
(a) to maintain a registration statement in effect under the Securities Act of
1933, as amended, with respect to all shares of Common Stock that may be
issued to Holders under the Plan, and (b) to file in a timely manner al
reports required to be filed by it under the Exchange Act.
16. Withholding.
NBTY's obligation to deliver shares of Common Stock or pay cash in
respect of any Option under the Plan shall be subject to applicable federal,
state and local tax withholding requirements.
17. Separability.
If any of the terms or provisions of this Plan conflict with the
requirements of applicable law or applicable rules and regulations thereunder,
including the requirements of Section 162(m) of the Code, Rule 16b-3 under the
Exchange Act and/or Section 422A of the Code, then such terms or provisions
shall be deemed inoperative to the extent necessary to avoid the conflict with
applicable law, or applicable rules and regulations, without invalidating the
remaining provisions hereof. If this Plan does not contain any provisions
required to be included herein under Section 422A of the Code, such provision
shall be deemed to be incorporated herein with the same force and effect as if
such provision had been set out at length herein; provided, further, that to
the extent any option which is intended to qualify as an ISO cannot so
qualify, such Option, to that extent, shall be deemed to be a Nonqualified
Stock Option for all purposes of the Plan.
18. Non-Exclusivity of the Plan.
Neither the adoption of the Plan by the Board nor the submission of the
Plan to the stockholders of NBTY for approval shall be construed as creating
any limitations on the power of the Board to adopt such other incentive
arrangements as it may deem desirable, including, without limitation, the
granting of stock options and the awarding of stock and cash otherwise than
under the Plan, and such arrangements may be either generally applicable or
applicable only in specific cases.
19. Exclusion from Pension and Profit-Sharing Computation.
By acceptance of an Option, each Holder shall be deemed to have agreed
that such Option is special incentive compensation that will not be taken into
account, in any manner, as salary, compensation or bonus in determining the
amount of any payment under any pension, retirement or other employee benefit
plan of NBTY or any of its Subsidiaries. In addition, each beneficiary of a
deceased Holder shall be deemed to have agreed that such Option will not
affect the amount of any life insurance coverage, if any provided by NBTY or
any of its Subsidiaries on the life of the Holder which is payable to such
beneficiary under any life insurance plan covering employees of NBTY or any of
its Subsidiaries.
20. Beneficiaries.
Each Holder may designate any person(s) or legal entity(ies), including
his or her estate, as his or her beneficiary under the Plan. Such designation
shall be made in writing on a form filed with the Secretary of NBTY or his or
her designee and may be revoked or changes by such Holder at any time by
filing written notice of such revocation or change with the Secretary of NBTY
or his or her designee. If no person shall be designated by a Holder as his or
her beneficiary or if no person designated as a beneficiary survives such
Holder, the Holder's beneficiary shall be his or her estate.
21. Governing Law.
The Plan shall be governed by, and construed in accordance with, the
laws of the State of New York.
EXHIBIT 5
MICHAEL C. DUBAN, P.C.
ATTORNEY AT LAW 81 MAIN STREET
-------- SUITE 205
WHITE PLAINS, NEW YORK 10601
--------
WRITER'S DIRECT DIAL TELEPHONE 914 681-0606
(914) TELECOPIER 914 948-0462
February 9, 1998
NBTY, Inc.
90 Orville Drive
Bohemia, New York 11716
RE: REGISTRATION STATEMENT ON FORM S-8 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED
Gentlemen:
In my capacity as counsel to NBTY, Inc. a Delaware Corporation (the
"Company"), I have been asked to render this opinion in connection with a
Registration Statement on Form S-8 filed by the Company with the Securities
and Exchange Commission under the Securities Act of 1933, as amended (the
"Registration Statement"), covering 4,084,000 shares of Common Stock (the
"Stock").
In connection, I have examined the Certificate of Incorporation, as
amended, and the By-Laws of the Company, the Registration Statement, as
amended, corporate proceedings of the Company relating to the issuance of
the Stock, and such other instruments and documents as I have deemed
relevant under the circumstances.
In making the aforesaid examinations, I have assumed the genuineness
of all signatures and conformity to original documents of all copies
furnished to me as photostatic copies. I have also assumed that the
corporate records furnished to be me by the Company included all corporate
proceedings taken by the Company to date.
Based upon the foregoing, I am of the opinion that:
The Stock has been duly and validly authorized and, when issued and
paid for as described in the Registration Statement, will be duly and
validly issued, fully paid and nonassessable shares of Common Stock of the
Company.
I hereby consent to the use of my opinion as herein set forth as an
exhibit to the Registration Statement and to the use of my name under the
caption "Legal Matters" in the Prospectus forming a part of the Registration
Statement.
Your attention is directed to the fact that the undersigned is a
stockholder of the Company's Common Stock.
Yours very truly,
/s/ Michael C. Duban
Michael C. Duban
EXHIBIT 24.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated November 6, 1997, on our audits of
the consolidated financial statements and financial statement schedule of
NBTY, Inc. and Subsidiaries as of September 30, 1997 and 1996, and for each
of the three years in the period ended September 30, 1997 which report is
included in the NBTY, Inc. Annual Report on Form 10-K. We also consent to
the reference to our Firm under the caption "Experts".
COOPERS & LYBRAND L.L.P.
