NTY » Topics » 1.2 Definitions of Certain Terms

This excerpt taken from the NTY DEF 14A filed Jan 14, 2009.

1.2   Definitions of Certain Terms

        For purposes of this 2009 Equity Awards Plan, the following terms have the meanings set forth below:

            1.2.1    "Award" means an award made pursuant to the Plan.

            1.2.2    "Award Agreement" means the written document by which each Award is evidenced, and which may, but need not be (as determined by the Committee) executed or acknowledged by a Grantee as a condition to receiving an Award or the benefits under an Award, and which sets forth the terms and provisions applicable to Awards granted under the Plan to such Grantee. Any reference herein to an agreement in writing will be deemed to include an electronic writing to the extent permitted by applicable law.

            1.2.3    "Board" means the Board of Directors of NBTY.

            1.2.4    "Certificate" means a stock certificate (or other appropriate document or evidence of ownership) representing shares of Common Stock.

            1.2.5    "Change in Control" means the happening of any of the following:

              (a)   the members of the Board at the beginning of any consecutive twenty-four calendar month period, but not including any period prior to the Effective Date (the "Incumbent Directors"), cease for any reason other than due to death or such director's desire to not stand for re-election to the Board to constitute at least a majority of the members of the Board; provided that any director whose election, or nomination for election by NBTY's stockholders, was approved by a vote of at least a majority of the members of the Board then still in office who were members of the Board at the beginning of such twenty-four calendar month period will be deemed an Incumbent Director;

              (b)   any "person", including a "group" (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), but excluding NBTY, any of its affiliates or any employee benefit plan of NBTY is or becomes after the Effective Date a "beneficial owner" (as such term is used in Section 13(d) and 14 of the Exchange Act) directly or indirectly of securities of NBTY (not including in the securities beneficially owned by such person any securities acquired directly from the Company) representing 25% or more of the combined voting power of the Company's then outstanding securities (the "Company Voting Securities"); provided, however, such event will not be deemed to be a Change in Control if it qualifies as a Non-Qualifying Transaction as defined in clause (c) below;


              (c)   the consummation of a merger, consolidation, statutory share exchange or similar form of corporate transaction involving NBTY or any of its subsidiaries that requires the approval of NBTY's stockholders, whether for such transaction or the issuance of securities in the transaction (a "Business Combination"), unless immediately following such Business Combination: (A) more than 50% of the total voting power of (x) the corporation resulting from such Business Combination (the "Surviving Corporation"), or (y) if applicable, the ultimate parent corporation that directly or indirectly has beneficial ownership of at least 95% of the voting securities eligible to elect directors of the Surviving Corporation (the "Parent Corporation"), is represented by Company Voting Securities that were outstanding immediately prior to such Business Combination (or, if applicable, is represented by shares into which such Company Voting Securities were converted pursuant to such Business Combination), and such voting power among the holders thereof is in substantially the same proportion as the voting power of such Company Voting Securities among the holders thereof immediately prior to the Business Combination, (B) no person (other than any employee benefit plan (or related trust) sponsored or maintained by the Surviving Corporation or the Parent Corporation), is or becomes the beneficial owner, directly or indirectly, of 25% or more of the total voting power of the outstanding voting securities eligible to elect directors of the Parent Corporation (or, if there is no Parent Corporation, the Surviving Corporation) and (C) at least a majority of the members of the board of directors of the Parent Corporation (or, if there is no Parent Corporation, the Surviving Corporation) following the consummation of the Business Combination were Incumbent Directors at the time of the Board's approval of the execution of the initial agreement providing for such Business Combination (any Business Combination which satisfies all of the criteria specified in (A), (B) and (C) above will be deemed to be a "Non-Qualifying Transaction"); or

              (d)   the stockholders of NBTY approve a plan of complete liquidation or dissolution of the Company or the consummation of a sale of all or substantially all of NBTY's assets to a person that is not controlled by NBTY.

            1.2.6    "Code" means the Internal Revenue Code of 1986, as amended from time to time, or any successor thereto, and the applicable rulings and regulations thereunder.

            1.2.7    "Committee" has the meaning set forth in Section 1.3.1.

            1.2.8    "Common Stock" means the common stock of NBTY, par value $0.008 per share, and any other securities or property issued in exchange therefor or in lieu thereof pursuant to Section 1.6.3.

            1.2.9    "Company" means NBTY and its consolidated subsidiaries.

            1.2.10    "Consent" has the meaning set forth in Section 3.3.2.

            1.2.11    "Consultant" means any individual, corporation, partnership, limited liability company or other entity that provides bona fide consulting or advisory services to the Company pursuant to a written agreement.

            1.2.12    "Covered Person" has the meaning set forth in Section 1.3.4.

            1.2.13    "Customer" means any customer or prospective customer of the Company to whom the Grantee provided services, or for whom the Grantee transacted business, or whose identity became known to the Grantee in connection with the Grantee's relationship with or employment by the Company.

            1.2.14    "Director" means a member of the Board or a member of the board of directors of a consolidated subsidiary of NBTY.


            1.2.15    "Effective Date" means February 27, 2009.

            1.2.16    "Employee" means a regular, active employee and a prospective employee of the Company.

            1.2.17    "Employment" means an Employee's performance of services for the Company, as determined by the Committee. The terms "employ" and "employed" will have their correlative meanings. The Committee in its sole discretion may determine (a) whether and when a Grantee's leave of absence results in a termination of Employment (for this purpose, unless the Committee determines otherwise, a Grantee will be treated as terminating Employment with the Company upon the occurrence of an Extended Absence), (b) whether and when a change in a Grantee's association with the Company results in a termination of Employment and (c) the impact, if any, of any such leave of absence or change in association on Awards theretofore made. Unless expressly provided otherwise, any references in the Plan or any Award Agreement to a Grantee's Employment being terminated will include both voluntary and involuntary terminations.

            1.2.18    "Exchange Act" means the Securities Exchange Act of 1934, as amended from time to time, or any successor thereto, and the applicable rules and regulations thereunder.

            1.2.19    "Extended Absence" means the Grantee's inability to perform for six continuous months, due to illness, injury or pregnancy-related complications, substantially all the essential duties of the Grantee's occupation, as determined by the Committee.

            1.2.20    "Fair Market Value" means, with respect to a share of Common Stock on any day, the fair market value as determined in accordance with a valuation methodology approved by the Committee, unless determined as otherwise specified herein.

            1.2.21    "Grantee" means an Employee, Director or Consultant who receives an Award.

            1.2.22    "Incentive Stock Option" means a stock option to purchase shares of Common Stock that is intended to be an "incentive stock option" within the meaning of Sections 421 and 422 of the Code, as now constituted or subsequently amended, or pursuant to a successor provision of the Code, and which is designated as an Incentive Stock Option in the applicable Award Agreement.

            1.2.23    "NBTY" means NBTY, Inc., or a successor entity contemplated by Section 3.6.

            1.2.24    "Non-Qualified Stock Option" means a stock option to purchase shares of Common Stock that is not an Incentive Stock Option.

            1.2.25    "Plan" means this NBTY, Inc. 2009 Equity Awards Plan, as amended from time to time.

            1.2.26    "Plan Action" will have the meaning set forth in Section 3.3.1.

            1.2.27    "Securities Act" means the Securities Act of 1933, as amended from time to time, or any successor thereto, and the applicable rules and regulations thereunder.

            1.2.28    "Ten Percent Stockholder" means a person owning stock possessing more than 10% of the total combined voting power of all classes of stock of NBTY and of any subsidiary corporation of NBTY.

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