EX-10.12



 





Exhibit 10.12




GNC ACQUISITION HOLDINGS INC.




 






2007 STOCK INCENTIVE PLAN




 






Adopted as of March 16, 2007




 









 





GNC ACQUISITION HOLDINGS INC.




 






2007 STOCK INCENTIVE PLAN




 






ARTICLE I




PURPOSE




     The purpose of the Plan is to enhance the profitability and value of the Company for the
benefit of its stockholders by enabling the Company to offer Eligible Employees, Consultants and
Non-Employee Directors stock-based incentives in the Company to attract, retain and reward such
individuals and strengthen the mutuality of interests between such individuals and the Company’s
stockholders.



ARTICLE II




DEFINITIONS




     For purposes of the Plan, the following terms shall have the following meanings:



     2.1 “Acquisition Event” means a merger or consolidation in which the Company is not
the surviving entity, any transaction that results in the acquisition of all or substantially all
of the Company’s outstanding Common Stock by a single person or entity or by a group of persons
and/or entities acting in concert, or the sale or transfer of all or substantially all of the
Company’s assets. The occurrence of Acquisition Event shall be determined by the Committee in its
sole discretion.



     2.2 “Affiliate” means each of the following: (a) any Subsidiary; (b) any Parent; (c)
any corporation, trade or business (including, without limitation, a partnership or limited
liability company) that is directly or indirectly controlled 50% or more (whether by ownership of
stock, assets or an equivalent ownership interest or voting interest) by the Company; (d) any
corporation, trade or business (including, without limitation, a partnership or limited liability
company) that directly or indirectly controls 50% or more (whether by ownership of stock, assets or
an equivalent ownership interest or voting interest) of the Company; and (e) any other entity in
which the Company or any of its Affiliates has a material equity interest and that is designated as
an “Affiliate” by resolution of the Committee; provided, however, that if the
Common Stock subject to any Award does not constitute “service recipient stock” for purposes of
Section 409A of the Code, the Company intends that such award shall be designed to comply with
Section 409A of the Code.



 









 





     2.3 “Award” means any award under the Plan of any Stock Option, Restricted Stock or
Other Stock-Based Award. All Awards shall be subject to the terms of a written or electronic
agreement executed by the Company and the Participant. Any reference herein to an agreement in
writing shall be deemed to include an electronic writing to the extent permitted by applicable law.



     2.4 “Board” means the Board of Directors of the Company.



     2.5 “Cause” means with respect to a Participant’s Termination of Employment or
Termination of Consultancy from and after the date hereof, the following: (a) in the case where
there is no employment agreement, consulting agreement, change in control agreement or similar
agreement in effect between the Company or an Affiliate and the Participant at the time of the
grant of the Award (or where there is such an agreement but it does not define “cause” (or words of
like import)), termination due to a Participant’s insubordination, dishonesty, fraud, incompetence,
moral turpitude, misconduct, refusal to perform his or her duties or responsibilities for any
reason other than illness or incapacity or unsatisfactory performance of his or her duties for the
Company or an Affiliate, as determined by the Committee in its sole discretion; or (b) in the case
where there is an employment agreement, consulting agreement, change in control agreement or
similar agreement in effect between the Company or an Affiliate and the Participant at the time of
the grant of the Award or an Award agreement that defines “cause” (or words of like import),
“cause” as defined under such agreement; provided, however, that with regard to any
agreement under which the definition of “cause” only applies on occurrence of a change in control,
such definition of “cause” shall not apply until a change in control actually takes place and then
only with regard to a termination thereafter. With respect to a Participant’s Termination of
Directorship, “cause” means an act or failure to act that constitutes cause for removal of a
director under applicable Delaware law.



     2.6 “Centers” means General Nutrition Centers, Inc., a Delaware corporation, and its
successors by operation of law.



     2.7 “Change in Control” means, unless otherwise determined by the Committee in the
applicable Award agreement, the occurrence of any of the following:




     (a) the acquisition (including any acquisition through purchase, reorganization,
merger, consolidation or similar transaction) in one or more transactions by any
individual, entity (including any employee benefit plan or any trust for an employee
benefit plan) or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange
Act) (for purposes of this Section 2.7 only, a “Person”), other than any
acquisition by any Permitted Holder or any of its Related Parties or a Permitted Group, of
beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act)
of shares or other securities (as defined in Section 3(a)(10) of the Exchange Act)
representing 50% or more of either (i) the Common Stock or (i) the combined voting power of
the securities of the Company entitled to vote generally in the election of directors of
the Board (the “Company Voting Securities”), in each case calculated on a fully
diluted



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basis after giving effect to such acquisition; provided, however, that
none of the following acquisitions shall constitute a Change in Control as defined in this
clause (a): (A) any acquisition by any Person or group of Persons consisting solely of
stockholders of the Company on the Effective Date, (B) any acquisition so long as such
acquisition does not result in any Person (other than any stockholder or stockholders of
the Company on the Effective Date), beneficially owning shares or securities representing
50% or more of either the Common Stock or Company Voting Securities, (C) any acquisition,
after which the Permitted Holders or their Related Parties have the right or ability by
voting power, contract or otherwise to elect or designate for election a majority of the
Board; or




     (b) any election has occurred of Persons to the Board that causes two-thirds of the
Board to consist of Persons other than (i) Persons who were members of the Board on the
Effective Date and (ii) Persons who were nominated for elections as members of the Board at
a time when two-thirds of the Board consisted of Persons who were members of the Board on
the Effective Date; provided, however, that any Person nominated for
election by a Board at least two-thirds of whom constituted Persons described in clauses
(i) or (ii) or by Persons who were themselves nominated by such Board shall, for this
purpose, be deemed to have been nominated by a Board composed of Persons described in
clause (i); or




     (c) approval by the stockholders of the Company of (i) a complete liquidation or
dissolution of the Company or Centers or (ii) the sale or other disposition (other than a
merger or consolidation) of all or substantially all of the assets of Centers and its
subsidiaries, taken as a whole, to any Person other than a Permitted Holder or a Related
Party of a Permitted Holder.



     2.8 “Code” means the Internal Revenue Code of 1986, as amended. Any reference to any
section of the Code shall also be a reference to any successor provision and any Treasury
Regulation promulgated thereunder.



     2.9 “Committee” means (a) prior to the Registration Date, a committee or subcommittee
of the Board appointed from time to time by the Board and (b) following the Registration Date, a
committee or subcommittee of the Board appointed from time to time by the Board that, in the
discretion of the Board, may consist solely of two or more “non-employee directors” as defined in
Rule 16b-3 and, to the extent required by applicable stock exchange rules, each of whom are
“independent” as defined under applicable stock exchange rules; provided that if for any reason the
appointed Committee does not meet the requirements of Rule 16b-3, such noncompliance shall not
affect the validity of grants, interpretations or other actions of the Committee. With respect to
the application of the Plan to Non-Employee Directors, the Committee shall refer to the Board.
Notwithstanding the foregoing, if and to the extent that no Committee exists that has the authority
to administer the Plan, the functions of the Committee shall be exercised



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by the Board and all references herein to the Committee shall be deemed references to the
Board.



     2.10 “Common Stock” means the Class A Common Stock of the Company, par value $0.001
per share.



     2.11 “Company” means GNC Acquisition Holdings Inc., a Delaware corporation, and its
successors by operation of law.



     2.12 “Consultant” means any Person who provides bona fide consulting or advisory
services to the Company or its Affiliates, provided that such services are not in connection with
the offer or sale of securities in a capital raising transaction, and do not, directly or
indirectly, promote or maintain a market for the Company’s or its Affiliates’ securities.



     2.13 “Detrimental Activity” means:




     (a) disclosing, divulging, furnishing or making available to anyone at any time,
except as necessary in the furtherance of Participant’s responsibilities to the Company or
any of its Affiliates, either during or subsequent to Participant’s service relationship
with the Company or its Affiliates, any knowledge or information with respect to
confidential or proprietary information, methods, processes, plans or materials of the
Company or any of its Affiliates, or with respect to any other confidential or proprietary
aspects of the business of the Company or any of its Affiliate, acquired by the Participant
at any time prior to the Participant’s Termination;




     (b) any activity while employed or performing services that results, or if known could
reasonably be expected to result, in the Participant’s Termination that is classified by
the Company as a termination for Cause;




     (c) (i) directly or indirectly soliciting, enticing or inducing any employee of the
Company or of any of its Affiliates to be employed by an person, firm or corporation that
is, directly or indirectly, in competition with the business or activities of the Company
or any of its Affiliates; (ii) directly or indirectly approaching any such employee for
these purposes; (iii) authorizing or knowingly approving the taking of such actions by
other persons on behalf of any such person, firm or corporation, or assisting any such
person, firm or corporation in taking such action; (iv) directly or indirectly soliciting,
raiding, enticing or inducing any person, firm or corporation (other than the U.S.
Government or its agencies) who or which is, or at any time from and after the date of
grant of the Award was, a customer of the Company or of any of its Affiliates to become a
customer for the same or similar products or services that it purchased from the Company or
any of its Affiliates, or any other person, firm or corporation, or approaching any such
customer for such purpose or authorize or knowingly approving the taking of such actions by
any other person; or



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     (d) a material breach of any agreement between the Participant and the Company or an
Affiliate (including, without limitation, any employment agreement or noncompetition or
nonsolicitation or confidentiality agreement). Unless otherwise determined by the
Committee at grant, Detrimental Activity shall not be deemed to occur after the end of the
one-year period following the Participant’s Termination.




For purposes of subsections (a), (c) and (d) above, the Chief Executive Officer of the
Company has the authority to provide the Participant with written authorization to engage
in the activities contemplated thereby and no other person shall have authority to provide
the Participant with such authorization.



     2.14 “Disability” means with respect to a Participant’s Termination, a permanent and
total disability as defined in Section 22(e)(3) of the Code. A Disability shall only be deemed to
occur at the time of the determination by the Committee of the Disability. Notwithstanding the
foregoing, for Awards that are subject to Section 409A of the Code, Disability shall mean that a
Participant is disabled under Section 409A(a)(2)(C)(i) or (ii) of the Code.



     2.15 “Disparagement” means making comments or statements to the press, the Company’s
or its Affiliates’ employees, consultants or any individual or entity with whom the Company or its
Affiliates has a business relationship that could reasonably be expected to adversely affect in any
manner: (a) the conduct of the business of the Company or its Affiliates (including, without
limitation, any products or business plans or prospects); or (b) the business reputation of the
Company or its Affiliates, or any of their products, or their past or present officers, directors
or employees.



     2.16 “Effective Date” means the effective date of the Plan as defined in Article
XV.



     2.17 “Eligible Employee” means each employee of the Company or an Affiliate.



     2.18 “Exchange Act” means the Securities Exchange Act of 1934, as amended, and all
rules and regulations promulgated thereunder. Any references to any section of the Exchange Act
shall also be a reference to any successor provision.



     2.19 “Exercisable Awards” has the meaning set forth in Section 4.2(d).



     2.20 “Fair Market Value” means, unless otherwise required by any applicable provision
of the Code, as of any date and except as provided below, (a) the last sales price reported for the
Common Stock on the applicable date as reported on the principal established securities market on
which it is then traded or if the Common Stock shall not have been reported or quoted on such date,
on the first day prior thereto on which the Common Stock was reported or quoted; or (b) if the
Company’s Common Stock is not traded on any established securities market, the price as determined
by the Committee in whatever manner it considers appropriate, taking into account the requirements
of Section



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409A of the Code. For purposes of the grant of any Award, the applicable date shall be the
trading day on which the Award is granted, or if such grant date is not a trading day, the trading
day immediately prior to the date on which the Award is granted. For purposes of the exercise of
any Award, the applicable date shall be the date a notice of exercise is received by the Company
or, if not a day on which the applicable market is open, the next day that it is open.




     2.21 “Family Member” means “family member” as defined in Rule 701 under the Securities
Act or, following the filing of a Form S-8 pursuant to the Securities Act with respect to the Plan,
as defined in Section A.1.(5) of the general instructions of Form S-8, as may be amended from time
to time.



     2.22 “Incentive Stock Option” means any Stock Option awarded to an Eligible Employee
of the Company, its Subsidiaries or its Parent (if any) under the Plan intended to be and
designated as an “Incentive Stock Option” within the meaning of Section 422 of the Code.



     2.23 “Non-Employee Director” means a director of the Company who is not an active
employee of the Company or an Affiliate.



     2.24 “Non-Qualified Stock Option” means any Stock Option awarded under the Plan that
is not an Incentive Stock Option.



     2.25 “Other Stock-Based Award” means an Award of Common Stock and other awards
(including awards of cash) made pursuant to Article VIII that is valued in whole or in part
by reference to, or is payable in or otherwise based on, Common Stock, including, without
limitation, a restricted stock unit or an Award valued by reference to an Affiliate.



     2.26 “Parent” means any parent corporation of the Company within the meaning of
Section 424(e) of the Code.



     2.27 “Participant” means an Eligible Employee, Consultant or Non-Employee Director to
whom an Award has been granted pursuant to the Plan.



     2.28 “Permissible Transferee” means any Family Member.



     2.29 “Permitted Group” means any group of investors that is deemed to be a “person”
(as that term is used in Section 13(d) of the Exchange Act) at any time prior to Holdings’ initial
public offering of common stock, by virtue of the Stockholders Agreement, as the same may be
amended, modified or supplemented from time to time.



     2.30 “Permitted Holder” means Ares Corporate Opportunities Fund II, L.P., Ares
Management, Inc., Ares Management LLC and Ontario Teachers’ Pension Plan Board.



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     2.31 “Person” means any individual, corporation, partnership, limited liability
company, firm, joint venture, association, joint-stock company, trust, incorporated organization,
governmental or regulatory or other entity.



     2.32 “Plan” means this GNC Acquisition Holdings Inc. 2007 Stock Incentive Plan, as
amended from time to time.



     2.33 “Registration Date” means the first date after the Effective Date (a) on which
the Company sells its Common Stock in a bona fide underwriting pursuant to a registration statement
under the Securities Act or (b) any class of common equity securities of the Company is required to
be registered under Section 12 of the Exchange Act.



     2.34 “Related Party” means: (a) any controlling equityholder, managing general partner
or majority-owned subsidiary, of any Permitted Holder; (b) any trust, corporation, partnership,
limited liability company or other entity, the beneficiaries, stockholders, partners, members,
owners or Persons beneficially holding an 80% or more controlling interest of which consist of any
one or more Permitted Holders and/or such other Persons referred to in subsection (a); or (c) any
investment fund or similar entity managed by any one or more Permitted Holders and/or such other
Persons referred to in subsections (a) or (b).



     2.35 “Restricted Stock” means a share of Common Stock issued under the Plan that is
subject to restrictions pursuant to Article VII.



     2.36 “Restriction Period” has the meaning set forth in Section 7.1 with
respect to Restricted Stock.



     2.37 “Rule 16b-3” means Rule 16b-3 under Section 16(b) of the Exchange Act as then in
effect or any successor provision.



     2.38 “Section 4.2 Event” has the meaning set forth in Section 4.2(b).



     2.39 “Securities Act” means the Securities Act of 1933, as amended, and all rules and
regulations promulgated thereunder. Any reference to any section of the Securities Act shall also
be a reference to any successor provision.



     2.40 “Stock Option” or “Option” means any option to purchase shares of Common
Stock granted to Eligible Employees, Non-Employee Directors or Consultants pursuant to Article
VI.



     2.41 “Stockholders Agreement” means that Stockholders Agreement, dated March 16, 2007,
among the Company and the investors party thereto, as amended from time to time in accordance with
the terms thereof.



     2.42 “Subsidiary” means any subsidiary corporation of the Company within the meaning
of Section 424(f) of the Code.



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     2.43 “Ten Percent Stockholder” means a person owning stock possessing more than 10% of
the total combined voting power of all classes of stock of the Company, its Subsidiaries or its
Parent.



     2.44 “Termination” means a Termination of Consultancy, Termination of Directorship or
Termination of Employment, as applicable.



     2.45 “Termination of Consultancy” means: (a) that the Consultant is no longer acting
as a consultant to the Company or an Affiliate; or (b) when an entity that is retaining a
Participant as a Consultant ceases to be an Affiliate unless the Participant otherwise is, or
thereupon becomes, a Consultant to the Company or another Affiliate at the time the entity ceases
to be an Affiliate. In the event that a Consultant becomes an Eligible Employee or a Non-Employee
Director upon the termination of his or her consultancy, unless otherwise determined by the
Committee, in its sole discretion, no Termination of Consultancy shall be deemed to occur until
such time as such Consultant is no longer a Consultant, an Eligible Employee or a Non-Employee
Director. Notwithstanding the foregoing, the Committee may, in its sole discretion, otherwise
define Termination of Consultancy in the Award agreement or, if no rights of a Participant are
reduced, may otherwise define Termination of Consultancy thereafter.



     2.46 “Termination of Directorship” means that the Non-Employee Director has ceased to
be a director of the Company; except that if a Non-Employee Director becomes an Eligible Employee
or a Consultant upon the termination of his or her directorship, his or her ceasing to be a
director of the Company shall not be treated as a Termination of Directorship unless and until the
Participant has a Termination of Employment or Termination of Consultancy, as the case may be.



     2.47 “Termination of Employment” means: (a) a termination of employment (for reasons
other than a military or approved personal leave of absence) of a Participant from the Company and
its Affiliates; or (b) when an entity that is employing a Participant ceases to be an Affiliate,
unless the Participant otherwise is, or thereupon becomes, employed by the Company or another
Affiliate at the time the entity ceases to be an Affiliate. In the event that an Eligible Employee
becomes a Consultant or a Non-Employee Director upon the termination of his or her employment,
unless otherwise determined by the Committee, in its sole discretion, no Termination of Employment
shall be deemed to occur until such time as such Eligible Employee is no longer an Eligible
Employee, a Consultant or a Non-Employee Director. Notwithstanding the foregoing, the Committee
may, in its sole discretion, otherwise define Termination of Employment in the Award agreement or,
if no rights of a Participant are reduced, may otherwise define Termination of Employment
thereafter.



     2.48 “Transfer” means: (a) when used as a noun, any direct or indirect transfer, sale,
assignment, pledge, hypothecation, encumbrance or other disposition (including the issuance of
equity in a Person), whether for value or no value and whether voluntary or involuntary (including
by operation of law), and (b) when used as a verb, to directly or indirectly transfer, sell,
assign, pledge, encumber, charge, hypothecate or otherwise dispose of (including the issuance of
equity in a Person) whether for value or



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for no value and whether voluntarily or involuntarily (including by operation of law).
“Transferred” and “Transferrable” shall have a correlative meaning.



ARTICLE III




ADMINISTRATION




     3.1 The Committee. The Plan shall be administered and interpreted by the Committee.



     3.2 Grants of Awards. The Committee shall have full authority to grant, pursuant to
the terms of the Plan, to Eligible Employees, Consultants and Non-Employee Directors: (i) Stock
Options, (ii) Restricted Stock and (iii) Other Stock-Based Awards. In particular, the Committee
shall have the authority:




     (a) to select the Eligible Employees, Consultants and Non-Employee Directors to whom
Awards may from time to time be granted hereunder;




     (b) to determine whether and to what extent Awards are to be granted hereunder to one
or more Eligible Employees, Consultants or Non-Employee Directors;




     (c) to determine, in accordance with the terms of the Plan, the number of shares of
Common Stock to be covered by each Award granted hereunder;




     (d) to determine the terms and conditions, not inconsistent with the terms of the
Plan, of any Award granted hereunder (including, but not limited to, the exercise or
purchase price (if any), any restriction or limitation, any vesting schedule or
acceleration thereof, or any forfeiture restrictions or waiver thereof, regarding any Award
and the shares of Common Stock relating thereto, based on such factors, if any, as the
Committee shall determine, in its sole discretion);




     (e) to determine whether and under what circumstances a Stock Option may be settled in
cash, Common Stock and/or Restricted Stock under Section 6.3(d);




     (f) to determine whether, to what extent and under what circumstances to provide loans
(which may be on a recourse basis and shall bear interest at the rate the Committee shall
provide) to Participants in order to exercise Awards or to purchase or pay for shares of
Common Stock issuable pursuant to Awards under the Plan, provided that on and after the
Registration Date executive officers and directors are not eligible to receive such loans,
and provided further, that all outstanding loans shall be repaid before the Registration
Date;



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     (g) to determine whether a Stock Option is an Incentive Stock Option or Non-Qualified
Stock Option;




     (h) to determine whether to require an Eligible Employee, Non-Employee Director or
Consultant, as a condition of the granting of any Award, not to sell or otherwise dispose
of shares of Common Stock acquired pursuant to an Award for a period of time as determined
by the Committee, in its sole discretion, following the date of the Award;




     (i) to modify, extend or renew an Award, subject to Article XI, provided,
however, that if a Stock Option is modified, extended or renewed and thereby deemed to be
the issuance of a new Stock Option under the Code or the applicable accounting rules, the
exercise price of a Stock Option may continue to be the original exercise price even if
less than the Fair Market Value of the Common Stock at the time of such modification,
extension or renewal; and




     (j) generally, to exercise such powers and to perform such acts as the Committee deems
necessary or expedient to promote the best interests of the Company that are not in
conflict with the provisions of the Plan.



     3.3 Guidelines. Subject to Article XI, the Committee shall, in its sole
discretion, have the authority to adopt, alter and repeal such administrative rules, guidelines and
practices governing the Plan and perform all acts, including the delegation of its administrative
responsibilities (to the extent permitted by applicable law and applicable stock exchange rules),
as it shall, from time to time, deem advisable; to construe and interpret the terms and provisions
of the Plan and any Award granted under the Plan (and any agreements relating thereto); and to
otherwise supervise the administration of the Plan. The Committee may, in its sole discretion,
correct any defect, supply any omission or reconcile any inconsistency in the Plan or in any
agreement relating thereto in the manner and to the extent it shall deem necessary to effectuate
the purpose and intent of the Plan. The Committee may, in its sole discretion, adopt special
guidelines and provisions for persons who are residing in or employed in, or subject to, the taxes
of, any domestic or foreign jurisdictions to comply with applicable tax and securities laws and may
impose any limitations and restrictions that it deems necessary to comply with the applicable tax
and securities laws of such domestic or foreign jurisdictions. To the extent applicable, the Plan
is intended to comply with the applicable requirements of Rule 16b-3 and shall be limited,
construed and interpreted in a manner so as to comply therewith.



     3.4 Decisions Final. Any decision, interpretation or other action made or taken in
good faith by or at the direction of the Company, the Board or the Committee (or any of its
members) arising out of or in connection with the Plan shall be within the absolute discretion of
all and each of them, as the case may be, and shall be final, binding and conclusive on the Company
and all employees and Participants and their respective heirs, executors, administrators,
successors and assigns.



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     3.5 Procedures. If the Committee is appointed, the Board shall designate one of the
members of the Committee as chairman and the Committee shall hold meetings, subject to the By-Laws
of the Company, at such times and places as it shall deem advisable, including, without limitation,
by telephone conference or by written consent to the extent permitted by applicable law. A
majority of the Committee members shall constitute a quorum. All determinations of the Committee
shall be made by a majority of its members. Any decision or determination reduced to writing and
signed by all the Committee members in accordance with the By-Laws of the Company, shall be as
fully effective as if it had been made by a vote at a meeting duly called and held. The Committee
shall keep minutes of its meetings and shall make such rules and regulations for the conduct of its
business as it shall deem advisable.



     3.6 Designation of Consultants/Liability. (a) The Committee may, in its sole
discretion and to the extent permitted by applicable law and applicable exchange rules, designate
employees of the Company and professional advisors to assist the Committee in the administration of
the Plan and may grant authority to officers to execute agreements or other documents on behalf of
the Committee.



          (b) The Committee may, in its sole discretion, employ such legal counsel, consultants and
agents as it may deem desirable for the administration of the Plan and may rely upon any opinion
received from any such counsel or consultant and any computation received from any such consultant
or agent. Expenses incurred by the Committee or the Board in the engagement of any such counsel,
consultant or agent shall be paid by the Company. The Committee, its members and any person
designated pursuant to this Section 3.6 shall not be liable for any action or determination
made in good faith with respect to the Plan. To the maximum extent permitted by applicable law, no
officer of the Company or member or former member of the Committee or of the Board shall be liable
for any action or determination made in good faith with respect to the Plan or any Award granted
under it.




     3.7 Indemnification. To the maximum extent permitted by applicable law and the
Certificate of Incorporation and By-Laws of the Company and to the extent not covered by insurance
directly insuring such person, each officer or employee of the Company or any Affiliate and member
or former member of the Committee or the Board shall be indemnified and held harmless by the
Company against any cost or expense (including reasonable fees of counsel reasonably acceptable to
the Committee) or liability (including any sum paid in settlement of a claim with the approval of
the Committee), and advanced amounts necessary to pay the foregoing at the earliest time and to the
fullest extent permitted, arising out of any act or omission to act in connection with the
administration of the Plan, except to the extent arising out of such officer’s, employee’s,
member’s or former member’s own fraud or bad faith. Such indemnification shall be in addition to
any rights of indemnification the employees, officers, directors or members or former officers,
directors or members may have under applicable law or under the Certificate of Incorporation or
By-Laws of the Company or any Affiliate. Notwithstanding anything else herein, this
indemnification will not apply to the actions or



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determinations made by an individual with regard to Awards granted to him or her under the
Plan.



     3.8 Stockholders Agreement. Notwithstanding anything herein to the contrary, the Plan
and the operation and administration of the Plan (including any action taken by the Committee)
shall be subject to the terms and conditions set forth in the Stockholders Agreement to the
greatest extent permissible under applicable law.



ARTICLE IV




SHARE LIMITATIONS




     4.1 General Limitations. The aggregate number of shares of Common Stock that may be
issued or used for reference purposes under the Plan or with respect to which Awards may be granted
under the Plan shall not exceed 8,419,178 shares (subject to any increase or decrease pursuant to
Section 4.2), which may be either authorized and unissued Common Stock or Common Stock held
in or acquired for the treasury of the Company or both. If any Award granted under the Plan
expires, terminates, is canceled or is forfeited for any reason, the number of shares of Common
Stock underlying such Award shall again be available for the purposes of Awards under the Plan. To
the extent that a distribution pursuant to an Award is made in cash, the share reserve shall be
reduced by the number of shares of Common Stock bearing a value equal to the amount of the cash
distribution as of the time that such amount was determined.



     4.2 Changes.




     (a) The existence of the Plan and the Awards granted hereunder shall not affect in any
way the right or power of the Board or the stockholders of the Company to make or authorize
(i) any adjustment, recapitalization, reorganization or other change in the Company’s
capital structure or its business, (ii) any merger or consolidation of the Company or any
Affiliate, (iii) any issuance of bonds, debentures, preferred or prior preference stock
ahead of or affecting the Common Stock, (iv) the dissolution or liquidation of the Company
or any Affiliate, (v) any sale or transfer of all or part of the assets or business of the
Company or any Affiliate, (vi) any Section 4.2 Event or (vii) any other corporate act or
proceeding.




     (b) Subject to the provisions of Section 4.2(d), in the event of any change in
the capital structure or business of the Company by reason of any stock split, reverse
stock split, stock dividend, combination or reclassification of shares, recapitalization,
or other change in capital structure of the Company, or an extraordinary cash dividend (a
“Section 4.2 Event”) then (i) the aggregate number and kind of shares that
thereafter may be issued under the Plan, (ii) the number and kind of shares or other
property (including cash) to be issued upon exercise of an outstanding Award or under other
Awards granted under the Plan and (iii) the purchase or exercise price thereof shall be
appropriately adjusted consistent with such change in such manner as the Committee may deem
appropriate and equitable to prevent substantial dilution or enlargement of the



12









 







rights granted to, or available for, Participants under the Plan. Any such adjustment
determined by the Committee in good faith shall be final, binding and conclusive on the
Company and all Participants and their respective heirs, executors, administrators,
successors and assigns. In connection with any Section 4.2 Event, the Committee may
provide, in its sole discretion, for the cancellation of any outstanding Awards and payment
in cash or other property in exchange therefor. Except as provided in this Section
4.2 or in the applicable Award agreement, a Participant shall have no rights by reason
of any issuance by the Company of any class of securities convertible into stock of any
class, any subdivision or consolidation of shares of stock of any class, the payment of any
stock dividend, any other increase or decrease in the number of shares of stock of any
class, any sale or transfer of all or part of the Company’s assets or business or any other
change affecting the Company’s capital structure or business.




     (c) Fractional shares of Common Stock resulting from any adjustment in Awards pursuant
to Section 4.2(a) or (b) shall be eliminated at the time of such adjustment by
rounding-down for any fractional shares. No fractional shares of Common Stock shall be
issued under the Plan. Notice of any adjustment shall be given by the Committee to each
Participant whose Award has been adjusted and such adjustment (whether or not such notice
is given) shall be effective and binding for all purposes of the Plan.




     (d) In the event of an Acquisition Event, the Committee may, in its sole discretion,
terminate all outstanding and unexercised Stock Options or any Other Stock Based Award that
provides for a Participant elected exercise (“Exercisable Awards”), effective as of
the date of the Acquisition Event, by delivering notice of termination to each Participant
at least 20 days prior to the date of consummation of the Acquisition Event, in which case
during the period from the date on which such notice of termination is delivered to the
consummation of the Acquisition Event, each such Participant shall have the right to
exercise his or her Exercisable Awards that are then outstanding to the extent vested as of
the date on which such notice of termination is delivered (or, at the discretion of the
Committee, without regard to any limitations on exercisability otherwise contained in the
Award agreements), but any such exercise shall be contingent upon and subject to the
occurrence of the Acquisition Event, and, provided that, if the Acquisition Event does not
take place within a specified period after giving such notice for any reason whatsoever,
the notice and exercise pursuant thereto shall be null and void. If the Acquisition
Event does take place after giving such notice, any Exercisable Award not exercised prior
to the date of the consummation of such Acquisition Event shall be forfeited simultaneous
with the consummation of the Acquisition Event. For the avoidance of doubt, in the
event of an Acquisition Event, the Committee may, in its sole discretion, terminate any
Exercisable Award for which the exercise price is equal to or exceeds the Fair Market Value
without payment of consideration therefor.



13









 





     If an Acquisition Event occurs but the Committee does not terminate the outstanding
Exercisable Awards pursuant to this Section 4.2(d), then the applicable provisions of
Section 4.2(b) and Article X shall apply.



     4.3 Minimum Purchase Price. Notwithstanding any provision of the Plan to the
contrary, if authorized but previously unissued shares of Common Stock are issued under the Plan,
such shares shall not be issued for a consideration that is less than as permitted under applicable
law.



ARTICLE V




ELIGIBILITY AND GENERAL REQUIREMENTS FOR AWARDS




     5.1 General Eligibility. All Eligible Employees, Non-Employee Directors and
Consultants and prospective Eligible Employees, Consultants and Non-Employee Directors are eligible
to be granted Non-Qualified Stock Options, Restricted Stock and Other Stock-Based Awards.
Eligibility for the grant of Awards and actual participation in the Plan shall be determined by the
Committee in its sole discretion.



     5.2 Incentive Stock Options. Notwithstanding anything herein to the contrary, only
Eligible Employees of the Company, its Subsidiaries and its Parent (if any) are eligible to be
granted Incentive Stock Options under the Plan. Eligibility for the grant of an Incentive Stock
Option and actual participation in the Plan shall be determined by the Committee in its sole
discretion.



     5.3 General Requirement. The granting, vesting and exercise of Awards granted to a
prospective Eligible Employee, Consultant or Non-Employee Director are conditioned upon such
individual actually becoming an Eligible Employee, Consultant or Non-Employee Director, provided
that no Award may be granted to a prospective Eligible Employee, Consultant or Non-Employee
Director unless the Company determines that the Award will comply with applicable laws, including
the securities laws of all relevant jurisdictions.



ARTICLE VI




STOCK OPTIONS




     6.1 Stock Options. Each Stock Option granted under the Plan shall be one of two
types: (a) an Incentive Stock Option; or (b) a Non-Qualified Stock Option.



     6.2 Grants. The Committee shall, in its sole discretion, have the authority to grant
to any Eligible Employee (subject to Section 5.2) Incentive Stock Options, Non-Qualified
Stock Options or both types of Stock Options. To the extent that any Stock Option does not qualify
as an Incentive Stock Option (whether because of its provisions or the time or manner of its
exercise or otherwise), such Stock Option or the portion thereof that does not qualify, shall
constitute a separate Non-Qualified Stock Option. The



14









 







Committee shall, in its sole discretion, have the authority to grant any Consultant or
Non-Employee Director one or more Non-Qualified Stock Options.



     6.3 Terms of Stock Options. Stock Options granted under the Plan shall be subject to
the following terms and conditions, and shall be in such form and contain such additional terms and
conditions, not inconsistent with the terms of the Plan, as the Committee, in its sole discretion,
shall deem desirable:




     (a) Exercise Price. The exercise price per share of Common Stock subject to a Stock
Option shall be determined by the Committee at the time of grant, provided that the per
share exercise price of a Stock Option shall not be less than 100% (or, in the case of an
Incentive Stock Option granted to a Ten Percent Stockholder, 110%) of the Fair Market Value
of the Common Stock at the time of grant.




     (b) Stock Option Term. The term of each Stock Option shall be fixed by the Committee;
provided, that (i) no Stock Option shall be exercisable more than 10 years after the date
such Stock Option is granted; and (ii) the term of an Incentive Stock Option granted to a
Ten Percent Stockholder shall not exceed five years.




     (c) Exercisability. Stock Options shall be exercisable at such time or times and
subject to such terms and conditions as shall be determined by the Committee at the time of
grant. If the Committee provides, in its discretion, that any Stock Option is exercisable
subject to certain limitations (including, without limitation, that such Stock Option is
exercisable only in installments or within certain time periods or upon the attainment of
certain financial results or other criteria), the Committee may waive such limitations on
the exercisability at any time at or after grant in whole or in part (including, without
limitation, waiver of the installment exercise provisions or acceleration of the time at
which such Stock Option may be exercised), based on such factors, if any, as the Committee
shall determine, in its sole discretion. Unless otherwise determined by the Committee at
grant, the Option agreement shall provide that (i) in the event the Participant engages in
Detrimental Activity prior to any exercise of the Stock Option, all Stock Options held by
the Participant shall thereupon terminate and expire, (ii) as a condition of the exercise
of a Stock Option, the Participant shall be required to certify (or shall be deemed to have
certified) at the time of exercise in a manner acceptable to the Company that the
Participant is in compliance with the terms and conditions of the Plan and that the
Participant has not engaged in, and does not intend to engage in, any Detrimental Activity,
and (iii) in the event the Participant engages in Detrimental Activity during the one-year
period commencing on the later of the date the Stock Option is exercised or the date of the
Participant’s Termination, the Company shall be entitled to recover from the Participant at
any time within one year after such date, and the Participant shall pay over to the
Company, an amount equal to any gain realized as a result of the exercise (whether at the
time of exercise or thereafter). In the event that a written



15









 







employment agreement between the Company and a Participant provides for a vesting
schedule that is more favorable than the vesting schedule provided in the form of Award
agreement, the vesting schedule in such employment agreement shall govern, provided that
such agreement is in effect on the date of grant and applicable to the specific Award.




     (d) Method of Exercise. Subject to whatever installment exercise and waiting period
provisions apply under subsection (c) above, to the extent vested, a Stock Option may be
exercised in whole or in part at any time and from time to time during the Stock Option
term by giving written notice of exercise to the Company specifying the number of shares of
Common Stock to be acquired. Such notice shall be accompanied by payment in full of the
purchase price 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, through a procedure
whereby the Participant delivers irrevocable instructions to a broker reasonably acceptable
to the Committee to deliver promptly to the Company an amount equal to the purchase price,
to the extent authorized by the Committee; or (iii) on such other terms and conditions as
may be acceptable to the Committee (including, without limitation, the relinquishment of
Stock Options or by payment in full or in part in the form of Common Stock owned by the
Participant and for which the Participant has good title free and clear of any liens and
encumbrances) based on the Fair Market Value of the Common Stock on the payment date as
determined by the Committee, in its sole discretion. No shares of Common Stock shall be
issued until payment therefor, as provided herein, has been made or provided for.




     (e) Incentive Stock Option Limitations. To the extent that the aggregate Fair Market
Value (determined as of the time of grant) of the Common Stock with respect to which
Incentive Stock Options are exercisable for the first time by an Eligible Employee during
any calendar year under the Plan and/or any other stock option plan of the Company, any
Subsidiary or any Parent exceeds $100,000, such Options shall be treated as Non-Qualified
Stock Options. In addition, if an Eligible Employee does not remain employed by the
Company, any Subsidiary or any Parent at all times from the time an Incentive Stock Option
is granted until three months prior to the date of exercise thereof (or such other period
as required by applicable law), such Stock Option shall be treated as a Non-Qualified Stock
Option. Should any provision of the Plan not be necessary in order for the Stock Options
to qualify as Incentive Stock Options, or should any additional provisions be required, the
Committee may, in its sole discretion, amend the Plan accordingly, without the necessity of
obtaining the approval of the stockholders of the Company.




     (f) Form, Modification, Extension and Renewal of Stock Options. Subject to the terms
and conditions and within the limitations of the Plan, Stock



16









 







Options shall be evidenced by such form of agreement or grant as is approved by the
Committee, and the Committee may, in its sole discretion, (i) modify, extend or renew
outstanding Stock Options granted under the Plan (provided that (x) the rights of a
Participant are not reduced or adversely affected without his or her consent and (y) such
action does not subject the Stock Options to Section 409A of the Code), and (ii) accept the
surrender of outstanding Stock Options (up to the extent not theretofore exercised) and
authorize the granting of new Stock Options in substitution therefor (to the extent not
theretofore exercised).




     (g) Early Exercise. The Committee may provide that a Stock Option include a provision
whereby the Participant may elect at any time before the Participant’s Termination to
exercise the Stock Option as to any part or all of the shares of Common Stock subject to
the Stock Option prior to the full vesting of the Stock Option and such shares shall be
subject to certain restrictions as determined by the Committee and be treated as Restricted
Stock. Any unvested shares of Common Stock so purchased may be subject to a repurchase
option in favor of the Company or to any other restriction the Committee determines to be
appropriate.




     (h) Other Terms and Conditions. Stock Options may contain such other provisions,
which shall not be inconsistent with any of the terms of the Plan, as the Committee shall,
in its sole discretion, deem appropriate.



ARTICLE VII




RESTRICTED STOCK




     7.1 Awards of Restricted Stock. (a) Restricted Stock may be issued either alone or
in addition to other Awards granted under the Plan. The Committee shall, in its sole discretion,
determine the Eligible Employees, Consultants and Non-Employee Directors to whom, and the time or
times within which, grants of Restricted Stock will be made, the number of shares to be awarded,
the purchase price (if any) to be paid by the Participant (subject to Section 7.2), the
time or times at which such Awards may be subject to forfeiture (if any), the vesting schedule (if
any) and rights to acceleration thereof, and all other terms and conditions of the Awards. The
Committee may condition the grant or vesting of Restricted Stock upon the attainment of specified
performance targets or such other factors as the Committee may determine, in its sole discretion.



     Unless otherwise determined by the Committee at grant, each Award of Restricted Stock shall
provide that in the event the Participant engages in Detrimental Activity prior to, or during the
one-year period after, any vesting of Restricted Stock, the Committee may direct that all unvested
Restricted Stock shall be immediately forfeited to the Company and that the Participant shall pay
over to the Company an amount equal to the Fair Market Value at the time of vesting of any
Restricted Stock that had vested in the period referred to above.



17









 





     (b) Restriction Period. The Participant shall not be permitted to Transfer shares of
Restricted Stock awarded under the Plan during a period set by the Committee (if any) (the
“Restriction Period”) commencing with the date of such Award, as set forth in the
applicable Award agreement and such agreement shall set forth a vesting schedule and any events
that would accelerate vesting of the shares of Restricted Stock. Within these limits, based on
service, attainment of Performance Goals pursuant to Section 7.1(b)(ii) and/or such other
factors or criteria as the Committee may determine in its sole discretion, the Committee may
condition the grant or provide for the lapse of such restrictions in installments in whole or in
part, or may accelerate the vesting of all or any part of any Restricted Stock Award.



     7.2 Awards and Certificates. An Eligible Employee, Consultant and Non-Employee
Director selected to receive Restricted Stock shall not have any rights with respect to such Award,
unless and until such Participant has delivered a fully executed copy of the Award agreement
evidencing the Award to the Company and has otherwise complied with the applicable terms and
conditions of such Award. Further, such Award shall be subject to the following conditions:




     (a) Purchase Price. The purchase price (if any) of Restricted Stock shall be
determined by the Committee, but shall not be less than as permitted under applicable law.




     (b) Acceptance. Awards of Restricted Stock must be accepted within a period of 60
days (or such shorter period as the Committee may specify at grant) after the grant date,
by executing an Award agreement and by paying whatever price (if any) the Committee has
designated thereunder and all applicable withholding taxes due upon the granting and
acceptance of the Award (if any) in accordance with the provisions of Section 14.4.




     (c) Legend. Each Participant receiving Restricted Stock shall be issued a stock
certificate in respect of such shares of Restricted Stock, unless the Committee elects to
use another system, such as book entries by the transfer agent, as evidencing ownership of
Restricted Stock. Such certificate shall be registered in the name of such Participant,
and shall bear an appropriate legend referring to the terms, conditions, and restrictions
applicable to such Award, substantially in the following form:




“The anticipation, alienation, attachment, sale, transfer, assignment, pledge, encumbrance
or charge of the shares of stock represented hereby are subject to the terms and conditions
(including forfeiture) of the GNC Acquisition Holdings Inc. (the “Company”) 2007
Stock Incentive Plan (as the same may be amended or supplemented from time to time), and an
Award agreement entered into between the registered owner and the Company dated
                    . Copies of such Plan and Award agreement are on file at the principal office
of the Company.”



18









 






     (d) Custody. The Committee may require that any stock certificates evidencing such
shares be held in custody by the Company until the restrictions thereon shall have lapsed,
and that, as a condition of any grant of Restricted Stock, the Participant shall have
delivered a duly signed stock power, endorsed in blank, relating to the Common Stock
covered by such Award.




     (e) Rights as Stockholder. Except as provided in this subsection and subsection (d)
above and as otherwise determined by the Committee, the Participant shall have, with
respect to the shares of Restricted Stock, all of the rights of a holder of shares of
Common Stock of the Company including, without limitation, the right to receive any
dividends, the right to vote such shares and, subject to and conditioned upon the full
vesting of shares of Restricted Stock, the right to tender such shares. Notwithstanding
the foregoing, the payment of dividends shall be deferred until, and conditioned upon, the
expiration of the applicable Restriction Period, unless the Committee, in its sole
discretion, specifies otherwise at the time of the Award.




     (f) Lapse of Restrictions. If and when the Restriction Period expires without a prior
forfeiture of the Restricted Stock subject to such Restriction Period, the certificates for
such shares shall be delivered to the Participant. All legends shall be removed from said
certificates at the time of delivery to the Participant except as otherwise required by
applicable law or the Stockholders Agreement. Notwithstanding the foregoing, actual
certificates shall not be issued to the extent that book entry recordkeeping is used.



ARTICLE VIII




OTHER STOCK-BASED AWARDS




     8.1 Other Awards. Other Stock-Based Awards (including, without limitation, restricted
stock units and performance share awards) may be granted either alone or in addition to or other
Awards granted under the Plan to all eligible Participants pursuant to Article V. Unless
otherwise determined by the Committee at grant, each Other Stock-Based Award shall provide that in
the event the Participant engages in Detrimental Activity prior to, or during the one-year period
after the later of the date of any vesting of Other-Stock Based Award or the date of the
Participant’s Termination, the Committee may direct (at any time within one year thereafter) that
any unvested portion of such Award shall be immediately forfeited to the Company and that the
Participant shall pay over to the Company an amount equal to any gain the Participant realized from
any such Award that had vested in the period referred to above.



     8.2 Committee. Subject to the provisions of the Plan, the Committee shall have
authority to determine the Eligible Employees, Consultants and Non-Employee Directors to whom, and
the time or times at which, Other Stock-Based Awards shall be made, the number of shares of Common
Stock to be awarded pursuant to such Awards, and all other conditions of the Awards. The Committee
may also provide for the grant of



19









 







Common Stock under such Awards upon the completion of a specified performance period.



     8.3 Terms and Conditions. Other Stock-Based Awards made pursuant to this Article
VIII shall be subject to the following terms and conditions:




     (a) Dividends. Unless otherwise determined by the Committee at the time of
award, subject to the provisions of the Award agreement or grant letter and the Plan, the
recipient of an Award under this Article VIII shall be entitled to receive,
currently or on a deferred basis, dividends or dividend equivalents with respect to the
number of shares of Common Stock covered by the Award, as determined at the time of the
Award by the Committee, in its sole discretion.




     (b) Vesting. Any Award under this Article VIII and any Common Stock
covered by any such Award shall vest or be forfeited to the extent so provided in the Award
agreement, as determined by the Committee, in its sole discretion. In the event that a
written employment agreement between the Company and a Participant provides for a vesting
schedule that is more favorable than the vesting schedule provided in the form of Award
agreement, the vesting schedule in such employment agreement shall govern, provided that
such agreement is in effect on the date of grant and applicable to the specific Award.




     (c) Waiver of Limitation. The Committee may, in its sole discretion, waive in
whole or in part any or all of the limitations imposed hereunder (if any) with respect to
all or any portion of an Award under this Article VIII.




     (d) Price. Common Stock or Other Stock-Based Awards issued on a bonus basis
under this Article VIII may be issued for no cash consideration; Common Stock or
Other Stock-Based Awards purchased pursuant to a purchase right awarded under this
Article VIII shall be priced as determined by the Committee. Subject to
Section 4.3, the purchase price of shares of Common Stock or Other Stock-Based
Awards may be zero to the extent permitted by applicable law, and, to the extent not so
permitted, such purchase price may not be less than par value. The purchase of shares of
Common Stock or Other Stock-Based Awards may be made on either an after-tax or pre-tax
basis, as determined by the Committee; provided, however, that if the purchase is made on a
pre-tax basis, such purchase shall be made pursuant to a deferred compensation program
established by the Committee, which will be deemed a part of the Plan.




     (e) Payment. The form of payment for the Other Stock-Based Awards shall be
specified in the Award agreement.



20









 





ARTICLE IX




NON-TRANSFERABILITY AND TERMINATION OF



EMPLOYMENT/CONSULTANCY/DIRECTORSHIP




     9.1 Non-Transferability




     (a) Except as otherwise specifically provided herein, no Stock Option shall be
Transferable by the Participant otherwise than by will or by the laws of descent and
distribution. All Stock Options shall be exercisable, during the Participant’s lifetime,
only by the Participant. Shares of Restricted Stock or Other Stock-Based Awards may not be
Transferred prior to the date on which shares are issued, or if later, the date on which
any applicable restriction, performance or deferral period lapses. Any attempt to Transfer
any such Award or share of Common Stock not in accordance with the provisions of
Section 13.2 shall be void and immediately cancelled, and no Award shall in any
manner be liable for or subject to the debts, contracts, liabilities, engagements or torts
of any person who shall be entitled to such Award, nor shall it be subject to attachment or
legal process for or against such person.




     (b) Notwithstanding the foregoing, the Committee may determine, in its sole
discretion, at the time of grant or thereafter that a Non-Qualified Stock Option that is
otherwise not Transferable pursuant to this Section 9.1 is Transferable to a Family
Member in whole or in part and in such circumstances, and under such conditions, as
specified by the Committee. A Non-Qualified Stock Option that is Transferred to a Family
Member pursuant to the preceding sentence (i) may not be subsequently Transferred otherwise
than by will or by the laws of descent and distribution and (ii) remains subject to the
terms of the Plan and the Stock Option agreement. Any shares of Common Stock acquired upon
the exercise of a Stock Option by a Permissible Transferee of a Stock Option or a
Permissible Transferee pursuant to a Transfer after the exercise of the Stock Option shall
be subject to the terms of the Plan and the Stock Option agreement, including, without
limitation, the provisions of Article XIII.



     9.2 Termination. The following rules apply with regard to the Termination of a
Participant.



     (a) Rules Applicable to Stock Options. Unless otherwise determined by the Committee at grant
or, if no rights of the Participant are reduced, thereafter:




     (i) Termination by Reason of Death or Disability. If a Participant’s Termination is
by reason of death or Disability, all Stock Options that are held by such Participant that
are vested and exercisable at the time of the Participant’s Termination may be exercised by
the Participant (or, in the case of death, by the legal representative of the Participant’s
estate) at any time within a period of one



21









 







year from the date of such Termination, but in no event beyond the expiration of the
stated term of such Stock Options.




     (ii) Involuntary Termination Without Cause. If a Participant’s Termination is by
involuntary termination without Cause, all Stock Options that are held by such Participant
that are vested and exercisable at the time of the Participant’s Termination may be
exercised by the Participant at any time within a period of 60 days from the date of such
Termination, but in no event beyond the expiration of the stated term of such Stock
Options.




     (iii) Voluntary Termination. If a Participant’s Termination is voluntary (other than
a voluntary termination described in Section 9.2(a)(iv)(2)), all Stock Options that
are held by such Participant that are vested and exercisable at the time of the
Participant’s Termination may be exercised by the Participant at any time within a period
of 60 days from the date of such Termination, but in no event beyond the expiration of the
stated terms of such Stock Options.




     (iv) Termination for Cause. If a Participant’s Termination: (1) is for Cause or (2)
is a voluntary Termination (as provided in subsection (iii) above) after the occurrence of
an event that would be grounds for a Termination for Cause, all Stock Options, whether
vested or not vested, that are held by such Participant shall thereupon terminate and
expire as of the date of such Termination.




     (v) Unvested Stock Options. Stock Options that are not vested as of the date of a
Participant’s Termination for any reason shall terminate and expire as of the date of such
Termination.



     (b) Rules Applicable to Restricted Stock and Other Stock-Based Awards. Unless otherwise
determined by the Committee at grant or thereafter, upon a Participant’s Termination for any
reason: (i) during the relevant Restriction Period, all Restricted Stock still subject to
restriction shall be forfeited; and (ii) any unvested Other Stock-Based Awards shall be forfeited.



ARTICLE X




CHANGE IN CONTROL PROVISIONS




     Except as otherwise provided by the Committee in an Award agreement, in the event of a Change
in Control of the Company after the Effective Date, the Committee may, but shall not be obligated
to:




     (a) accelerate, vest or cause the restrictions to lapse with respect to all or any
portion of an Award; or



22









 






     (b) cancel Awards for fair value (as determined in good faith by the Committee) which,
in the case of Options, 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 subject to such Options (or, if no consideration is paid in any such
transaction, the Fair Market Value of the shares of Common Stock subject to such Options)
over the aggregate exercise price of such Options; or




     (c) provide for the issuance of substitute Awards that will substantially preserve the
otherwise applicable terms of any affected Awards previously granted hereunder as
determined by the Committee in its sole discretion.



ARTICLE XI




TERMINATION OR AMENDMENT OF PLAN




     Notwithstanding any other provision of the Plan, the Board or the Committee may at any time,
and from time to time, amend, in whole or in part, any or all of the provisions of the Plan
(including any amendment deemed necessary to ensure that the Company may comply with any regulatory
requirement referred to in Article XIV or Section 409A of the Code as described below), or
suspend or terminate it entirely, retroactively or otherwise; provided, however, that if the
Committee, in its sole discretion, determines that the rights of a Participant with respect to
Awards granted prior to such amendment, suspension or termination, may be adversely impaired, the
consent of such Participant shall be required; and provided further, without the approval of the
stockholders of the Company entitled to vote in accordance with applicable law, no amendment may be
made that would:




     (a) increase the aggregate number of shares of Common Stock that may be issued under
the Plan (other than due to an adjustment under Section 4.2);




     (b) change the classification of individuals eligible to receive Awards under the
Plan;




     (c) decrease the minimum exercise price of any Stock Option;




     (d) extend the maximum Stock Option period under Section 6.3; or




     (e) require stockholder approval in order for the Plan to continue to comply with
Section 422 of the Code to the extent applicable to Incentive Stock Options or the rules of
any exchange or system on which the Company’s securities are listed or traded at the
request of the Company.



23









 





     The Committee may amend the terms of any Award theretofore granted, prospectively or
retroactively, but, subject to Article IV or as otherwise specifically provided herein, no
such amendment or other action by the Committee shall adversely impair the rights of any holder
without the holder’s consent. Notwithstanding anything herein to the contrary, the Board or the
Committee may amend the Plan or any Award granted hereunder at any time without a Participant’s
consent to comply with Section 409A of the Code or any other applicable law. Nothing in the Plan
is intended to provide a guarantee of particular tax treatment to any Participant.



ARTICLE XII




UNFUNDED PLAN




     The Plan is an “unfunded” plan for incentive and deferred compensation. With respect to any
payments as to which a Participant has a fixed and vested interest but that are not yet made to a
Participant by the Company, nothing contained herein shall give any such Participant any rights
that are greater than those of a general unsecured creditor of the Company.



ARTICLE XIII




COMPANY CALL RIGHTS; RIGHTS OF FIRST REFUSAL




     13.1 Company Call Rights.




     (a) In the event of a Participant’s Termination for Cause or a Participant’s voluntary
Termination or the discovery that a Participant engaged in Detrimental Activity,
the Company may at any time within 180 days of the date of Termination repurchase (or may
cause its designee to repurchase) from the Participant (or his or her transferee) any
shares of Common Stock previously acquired by the Participant through the exercise of a
Stock Option or pursuant to Other Stock-Based Awards granted under the Plan at a repurchase
price equal to the lesser of (A) the purchase price or exercise price (as applicable), if
any or (B) the Fair Market Value of a share of Common Stock on the date of Termination.




     (b) In the event of a Participant’s Termination for Cause or a Participant’s voluntary
Termination or the discovery that a Participant engaged in Detrimental Activity,
the Company may at any time within 180 days of the date of Termination repurchase (or may
cause its designee to repurchase) from the Participant (or his or her transferee) any
shares of Common Stock previously acquired by the Participant pursuant to Restricted Stock
granted under the Plan at a repurchase price equal to the lesser of (A) the Fair Market
Value of a share of Common Stock on the date of grant or (B) the Fair Market Value of a
share of Common Stock on the date of Termination.



24









 






     (c) In the event of a Termination for any reason other than for Cause or on account of
a Participant’s voluntary Termination (including Termination due to retirement, death,
Disability or involuntary termination without Cause), (i) the Company may at any time
within 180 days of the date of Termination repurchase (or may cause its designee to
repurchase) from the Participant (or his or her transferee) any shares of Common Stock
acquired by the Participant through the exercise of a Stock Option on or prior to the date
of his or her Termination at a repurchase price equal to the Fair Market Value on the date
of Termination and (ii) the Company may at any time within 60 days of the date of
Termination (A) repurchase (or may cause its designee to repurchase) from the Participant
the outstanding vested portion of the Option based on the difference between the exercise
price of a share of Common Stock relating to such Stock Option and the Fair Market Value of
a share of Common Stock on the date of Termination or (B) repurchase (or may cause its
designee to repurchase) from the Participant (or his or her transferee) any shares of
Common Stock acquired by the Participant through the exercise of a Stock Option after the
date of Termination at a repurchase price equal to the Fair Market Value on the date of
repurchase. Notwithstanding the foregoing, if the Company elects to exercise its right to
repurchase shares of Common Stock pursuant to Section 13.1(c)(ii)(B) within 5 days
of the applicable exercise date, in lieu of such exercise and repurchase, the Company will
repurchase the number of shares to be purchased pursuant to such written notice of exercise
based on the difference between the exercise price of a share of Common Stock relating to
such Stock Option and the Fair Market Value of a share of Common Stock on the date of
Termination.




     (d) In the event of a Termination for any reason other than for Cause or a
Participant’s voluntary Termination (including Termination due to retirement, death,
Disability or involuntary termination without Cause), the Company may at any time within
180 days of the date of Termination repurchase (or may cause its designee to repurchase)
from the Participant (or his or her transferee) any shares of Common Stock previously
acquired by the Participant pursuant to Restricted Stock or Other Stock-Based Awards under
the Plan at a repurchase price equal to the Fair Market Value on the date of Termination.




     (e) (i) To exercise the call rights under this Section 13.1, the Company (or
its designee) shall deliver a written notice to the Participant setting forth the
securities to be repurchased and the applicable purchase price thereof, and the date on
which such repurchase is to be consummated, which date shall be not less than 15 days or
more than 30 days after the date of such notice (provided, that such period shall be
extended at any time when repurchase by the Company is prohibited pursuant to (i) any
applicable law or (ii) any debt instrument of the Company or any of its Affiliates or (iii)
would result in adverse accounting consequences for the Company).



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     (ii) At such closing, the Company will pay the Participant the repurchase
price as specified in this Section 13.1 in cash, or by cancellation of
indebtedness of the Participant to the Company.



     13.2 Transfer Limit. (a) Restrictions on Transfer. No Participant shall, directly
or indirectly, prior to the Registration Date or such other date determined by the Committee,
Transfer any shares of Common Stock acquired through the exercise of a Stock Option or pursuant to
Restricted Stock or Other Stock-Based Award under the Plan prior to the Participant’s Termination
and expiration of the time period provided in Sections 13.1(a) through (d) hereof (the
“Transfer Restriction Period”). Notwithstanding the foregoing, the Participant shall have
the right to Transfer such shares of Common Stock to a Permissible Transferee who takes the shares
subject to the terms of the Plan and applicable Award agreement provided that such Transfer
shall not be effective unless and until the Company shall have been furnished with information
reasonably satisfactory to it demonstrating that such Transfer is exempt from or not subject to the
provisions of Section 5 of the Securities Act and any other applicable securities laws.




     (b) Right of First Refusal. After the Transfer Restriction Period, no Participant
shall Transfer any Common Stock acquired through the exercise of a Stock Option or pursuant
to Restricted Stock or Other Stock-Based Award under the Plan to any Person other than a
Permissible Transferee unless in each such instance the Participant (or his or her estate
or legal representative) shall have first offered to the Company the Common Stock proposed
to be Transferred pursuant to a bona fide offer to a third party.




     (c) Notice of Proposed Transfer. Prior to any proposed Transfer of the Common Stock
acquired through the exercise of a Stock Option or pursuant to Restricted Stock or Other
Stock-Based Award under the Plan, the Participant shall give a written notice (the
“Transfer Notice”) to the Company describing fully the proposed Transfer, including
the number of shares of Common Stock, the name and address of the proposed Transferee (the
“Proposed Transferee”) and, if the Transfer is voluntary, the proposed Transfer
price, and containing such information necessary to show that the Participant has obtained
a bona fide binding offer to Transfer the Common Stock for cash from a third party. The
Participant shall provide a separate Transfer Notice with regard to each Proposed
Transferee. The Transfer Notice shall be signed by both the Participant and the Proposed
Transferee and must constitute a binding and unconditional commitment of the Participant
and the Proposed Transferee for the Transfer of the Common Stock to the Proposed Transferee
for cash subject only to the right of first refusal specified herein.




     (d) Bona Fide Transfer. If the Company determines that the information provided by
the Participant in the Transfer Notice is insufficient to establish the bona fide nature of
a proposed voluntary Transfer, the Company shall give the Participant written notice of the
Participant’s failure to comply with



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the procedure described herein, and the Participant shall have no right to Transfer
the Common Stock without first complying with this procedure. The Participant shall not be
permitted to Transfer the Common Stock if the proposed Transfer is not bona fide.




     (e) Exercise of Right of First Refusal. If the Company determines the proposed
Transfer to be a bona fide Transfer, the Company shall have the right to repurchase all or
any part of the shares of Common Stock at the proposed Transfer price per share, by
delivering to the Participant (or his or her estate or legal representative) written notice
of such exercise within 30 days after the date the Company has determined that the proposed
Transfer is bona fide. The Company’s exercise or failure to exercise the right of first
refusal with respect to any proposed Transfer described in a Transfer Notice shall not
affect the Company’s right to exercise the right of first refusal with respect to any
proposed Transfer described in any other Transfer Notice, whether or not such other
Transfer Notice is issued by the Participant or issued by a person other than the
Participant with respect to a proposed Transfer to the same Proposed Transferee. If the
Company exercises the right of first refusal, the Company and the Participant shall
thereupon consummate the sale of the Common Stock to the Company within five days after the
date the Company has decided to exercise the right of first refusal described herein
(unless a longer period is offered by the Proposed Transferee). For purposes of the
foregoing, cancellation of any indebtedness of the Participant to the Company shall be
treated as payment to the Participant in cash to the extent of the unpaid principal and any
accrued interest canceled.




     (f) Failure to Exercise Right of First Refusal. If the Company fails to exercise the
right of first refusal with respect to any share of Common Stock within the period
specified in subsection (e) above, and the Company has not given notice to the Participant
that the proposed Transfer is not a bona fide Transfer pursuant to subsection (d) above,
the Participant may conclude a Transfer to the Proposed Transferee of the Common Stock on
the terms and conditions described in the Transfer Notice, provided such Transfer occurs
not later than five days after the date the Company has determined not to exercise the
right of first refusal described herein. The Company shall have the right to demand
further assurances from the Participant and the Proposed Transferee (in a form satisfactory
to the Company) that the Transfer of the Common Stock was actually carried out on the terms
and conditions described in the Transfer Notice. No Common Stock shall be transferred on
the books of the Company until the Company has received such assurances, if so demanded,
and has approved the proposed Transfer as bona fide. Any proposed Transfer on terms and
conditions different from those described in the Transfer Notice, as well as any subsequent
proposed Transfer by the Participant (or his or her estate or legal representative), shall
again be subject to the right of first refusal and shall require compliance by the
Participant with the procedure described in this Section 13.2.



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     (g) Assignment of Right of First Refusal. The Company shall have the right to assign
the right of first refusal at any time, whether or not there has been an attempted
Transfer, to one or more persons as may be selected by the Company, from time to time.




     (h) Application to Transferees. This Section 13.2 shall apply to any
Permissible Transferee in the same manner as it applies to a Participant.



     13.3 Alternative Call Rights and Rights of First Refusal. The Committee may provide
in the applicable Award agreement alternative (or no) call rights and/or rights of first refusal at
the time of grant (or, thereafter, if no rights of the Participant are reduced) as it may decide in
its sole discretion. Notwithstanding anything herein to the contrary, if a Participant executes a
stockholder’s agreement (or similar agreement) that provides call rights and/or rights of first
refusal or rights of first offer, the provisions in the stockholder’s agreement (or similar
agreement) shall control to the extent they are inconsistent with this Article XIII.



     13.4 Effect of Registration. Notwithstanding the foregoing, unless otherwise
determined by the Committee, the Company shall cease to have rights pursuant to this Article
XIII on and after the Registration Date.



ARTICLE XIV




GENERAL PROVISIONS




     14.1 Legend. The Committee may require each person receiving shares of Common Stock
pursuant to an Award granted under the Plan to represent to and agree with the Company in writing
that the Participant is acquiring the shares without a view to distribution thereof and such other
securities law related representations as the Committee shall request. In addition to any legend
required by the Plan, the certificates and/or book entry accounts for such shares may include any
legend that the Committee, in its sole discretion, deems appropriate to reflect any restrictions on
Transfer.



     All certificates and/or book entry accounts for shares of Common Stock delivered under the
Plan shall be subject to such stop transfer orders and other restrictions as the Committee may, in
its sole discretion, deem advisable under the rules, regulations and other requirements of the
Securities and Exchange Commission, any stock exchange upon which the Common Stock is then listed
or any national automated quotation system on which the Common Stock is then quoted, any applicable
Federal or state securities law, and any applicable corporate law, and the Committee may cause a
legend or legends to be put on any such certificates to make appropriate reference to such
restrictions.



     14.2 Other Plans. Nothing contained in the Plan shall prevent the Board from adopting
other or additional compensation arrangements, subject to stockholder approval if such approval is
required; and such arrangements may be either generally applicable or applicable only in specific
cases.



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     14.3 No Right to Employment/Consultancy/Directorship. Neither the Plan nor the grant
of any Award hereunder shall give any Participant or other employee, Consultant or Non-Employee
Director any right with respect to continuance of employment, consultancy or directorship by the
Company or any Affiliate, nor shall they be a limitation in any way on the right of the Company or
any Affiliate by which an employee is employed or a Consultant or Non-Employee Director is retained
to terminate his or her employment, consultancy or directorship at any time.



     14.4 Withholding of Taxes. The Company shall have the right to deduct from any
payment to be made to a Participant, or to otherwise require, prior to the issuance or delivery of
any shares of Common Stock or the payment of any cash hereunder, payment by the Participant of, any
Federal, state or local taxes required by law to be withheld. Upon the vesting of Restricted Stock
(or other Award that is taxable upon vesting), or upon making an election under Section 83(b) of
the Code, a Participant shall pay all required withholding to the Company. Any statutorily
required withholding obligation with regard to any Eligible Employee may be satisfied, subject to
the advanced consent of the Committee, by reducing the number of shares of Common Stock otherwise
deliverable or by delivering shares of Common Stock already owned. Any fraction of a share of
Common Stock required to satisfy such tax obligations shall be disregarded and the amount due shall
be paid instead in cash by the Participant.



     14.5 Listing and Other Conditions.




     (a) Unless otherwise determined by the Committee, as long as the Common Stock is
listed on a national securities exchange or system sponsored by a national securities
association, the issue of any shares of Common Stock pursuant to an Award shall be
conditioned upon such shares being listed on such exchange or system. The Company shall
have no obligation to issue such shares unless and until such shares are so listed, and the
right to exercise any Award with respect to such shares shall be suspended until such
listing has been effected.




     (b) If at any time counsel to the Company shall be of the opinion that any sale or
delivery of shares of Common Stock pursuant to an Award is or may in the circumstances be
unlawful or result in the imposition of excise taxes on the Company under the statutes,
rules or regulations of any applicable jurisdiction, the Company shall have no obligation
to make such sale or delivery, or to make any application or to effect or to maintain any
qualification or registration under the Securities Act or otherwise with respect to shares
of Common Stock or Awards, and the right to exercise any Award shall be suspended until, in
the opinion of said counsel, such sale or delivery shall be lawful and will not result in
the imposition of excise taxes on the Company.




     (c) Upon termination of any period of suspension under this Section 14.5, an
Award affected by such suspension that shall not then have expired or terminated shall be
reinstated as to all shares available before such suspension and



29









 







as to shares that would otherwise have become available during the period of such
suspension, but no such suspension shall extend the term of any Award.




     (d) A Participant shall be required to supply the Company with any certificates,
representations and information that the Company requests and otherwise cooperate with the
Company in obtaining any listing, registration, qualification, exemption, consent or
approval the Company deems necessary or appropriate.



     14.6 Stockholders Agreement and Other Requirements. Notwithstanding anything herein
to the contrary, as a condition to the receipt of shares of Common Stock pursuant to an Award
granted under the Plan, the Participant shall execute and deliver, to the extent required by the
Committee, a stockholder’s agreement or such other documentation which shall set forth certain
restrictions on transferability of the shares of Common Stock acquired upon exercise or purchase, a
right of first refusal of the Company with respect to shares, and such other terms or restrictions
as the Board or Committee shall from time to time establish. Such stockholder’s agreement or other
documentation shall apply to the Common Stock acquired under the Plan and covered by such
stockholder’s agreement or other documentation. The Company may require, as a condition of
exercise, the Participant to become a party to any other existing stockholder’s agreement or other
agreement.



     14.7 Governing Law. The Plan and the actions taken in connection herewith shall be
governed by and construed in accordance with the internal laws of the State of Delaware, without
giving effect to its principles of conflict of laws.



     14.8 Construction. Wherever any words are used in the Plan in the masculine gender
they shall be construed as though they were also used in the feminine gender in all cases where
they would so apply, and wherever any words are used herein in the singular form they shall be
construed as though they were also used in the plural form in all cases where they would so apply.



     14.9 Other Benefits. No Award granted or paid out under the Plan shall be deemed
compensation for purposes of computing benefits under any retirement plan of the Company or its
Affiliates nor affect any benefits under any other benefit plan now or subsequently in effect under
which the availability or amount of benefits is related to the level of compensation.



     14.10 Costs. The Company shall bear all expenses associated with administering the
Plan, including expenses of issuing Common Stock pursuant to any Award granted hereunder.



     14.11 No Right to Same Benefits. The provisions of Awards need not be the same with
respect to each Participant, and Awards granted to individual Participants need not be the same.



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     14.12 Death/Disability. The Committee may in its sole discretion require the
transferee of a Participant to supply it with written notice of the Participant’s death or
Disability and to supply it with a copy of the will (in the case of the Participant’s death) or
such other evidence as the Committee deems necessary to establish the validity of the transfer of
an Award. The Committee may, in its sole discretion, also require the agreement of the transferee
to be bound by all of the terms and conditions of the Plan.



     14.13 Section 16(b) of the Exchange Act. On and after the Registration Date, all
elections and transactions under the Plan by persons subject to Section 16 of the Exchange Act
involving shares of Common Stock are intended to comply with any applicable exemptive condition
under Rule 16b-3. The Committee may, in its sole discretion, establish and adopt written
administrative guidelines, designed to facilitate compliance with Section 16(b) of the Exchange
Act, as it may deem necessary or proper for the administration and operation of the Plan and the
transaction of business thereunder.



     14.14 Severability of Provisions. If any provision of the Plan shall be held invalid
or unenforceable, such invalidity or unenforceability shall not affect any other provisions hereof,
and the Plan shall be construed and enforced as if such provisions had not been included.



     14.15 Headings and Captions. The headings and captions herein are provided for
reference and convenience only, shall not be considered part of the Plan, and shall not be employed
in the construction of the Plan.



     14.16 Securities Act Compliance. Except as the Company or Committee shall otherwise
determine, the Plan is intended to comply with Section 4(2) or Rule 701 of the Securities Act, and
any provisions inconsistent with such Section or Rule of the Securities Act shall be inoperative
and shall not affect the validity of the Plan.



     14.17 Successors and Assigns. The Plan shall be binding on all successors and
permitted assigns of a Participant, including, without limitation, the estate of such Participant
and the executor, administrator or trustee of such estate.



     14.18 Payment to Minors, Etc. Any benefit payable to or for the benefit of a minor,
an incompetent person or other person incapable of receipt thereof shall be deemed paid when paid
to such person’s guardian or to the party providing or reasonably appearing to provide for the care
of such person, and such payment shall fully discharge the Committee, the Board, the Company, its
Affiliates and their employees, agents and representatives with respect thereto.



     14.19 Agreement. As a condition to the grant of an Award, if requested by the Company
and the lead underwriter of any public offering of the Common Stock (the “Lead
Underwriter”), a Participant shall irrevocably agree not to sell, contract to sell, grant any
option to purchase, transfer the economic risk of ownership in, make any short sale of, pledge or
otherwise transfer or dispose of, any interest in any Common Stock or any securities convertible
into, derivative of, or exchangeable or exercisable for,



31









 







or any other rights to purchase or acquire Common Stock (except Common Stock included in such
public offering or acquired on the public market after such offering) during such period of time
following the effective date of a registration statement of the Company filed under the Securities
Act that the Lead Underwriter shall specify (the “Lock-up Period”). The Participant shall
further agree to sign such documents as may be requested by the Lead Underwriter to effect the
foregoing and agree that the Company may impose stop-transfer instructions with respect to Common
Stock acquired pursuant to an Award until the end of such Lock-up Period.



     14.20 No Rights as Stockholder. Except as provided in Article VII with
respect to Restricted Stock or Article VIII with respect to Other Stock-Based Awards,
subject to the provisions of the Award agreement, no Participant or Permissible Transferee shall
have any rights as a stockholder of the Company with respect to any Award until such individual
becomes the holder of record of the shares of Common Stock underlying the Award.



     14.21 Section 409A of the Code. To the extent applicable, the Plan is intended to
comply with the applicable requirements of Section 409A of the Code and shall be limited, construed
and interpreted in accordance with such intent. To the extent that any Award is subject to Section
409A of the Code, it shall be paid in a manner that will comply with Section 409A of the Code,
including proposed, temporary or final regulations or any other guidance issued by the Secretary of
the Treasury and the Internal Revenue Service with respect thereto. Notwithstanding anything
herein to the contrary, any provision in the Plan that is inconsistent with Section 409A of the
Code shall be deemed to be amended to comply with Section 409A of the Code and to the extent such
provision cannot be amended to comply therewith, such provision shall be null and void.



     14.22 Consideration. Awards may be awarded in consideration for past services
actually rendered to the Company or an Affiliate for its benefit; provided, however, that in the
case of an Award to be made to a new Eligible Employee, Non-Employee Director, or Consultant who
has not performed prior services for the Company, the Company will require payment of the par value
of the Common Stock by cash or check in order to ensure proper issuance of the shares in compliance
with Delaware General Corporation Law.



ARTICLE XV




EFFECTIVE DATE OF PLAN




     The Plan shall become effective upon adoption by the Board or such later date as provided in
the adopting resolution, subject to the approval of the Plan by the stockholders of the Company
within 12 months before or after adoption of the Plan by the Board in compliance with Delaware
General Corporation Law.



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ARTICLE XVI




TERM OF PLAN




     No Award shall be granted pursuant to the Plan on or after the tenth anniversary of the
earlier of the date the Plan is adopted by the Board and the date of stockholder approval, but
Awards granted prior to such tenth anniversary may, and the Committee’s authority to administer the
terms of such Awards shall, extend beyond that date.




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