EX-10.13



 




Exhibit
10.13

Award Number:                    




GNC ACQUISITION HOLDINGS INC.




NON-QUALIFIED STOCK OPTION AGREEMENT

PURSUANT TO THE

GNC ACQUISITION HOLDINGS INC.

2007 STOCK INCENTIVE PLAN




          AGREEMENT (“Agreement”), dated as of March 16, 2007 (the “Grant Date”) by and
between GNC Acquisition Holdings Inc., a Delaware corporation (the
“Company”) and [•] (the
“Participant”).




Preliminary Statement




     The Committee has authorized this grant of a non-qualified stock option (the “Option”)
on the Grant Date to purchase the number of shares of the Company’s Class A Common Stock, par value
$0.001 per share (the “Common Stock”) set forth below to the Participant, as an Eligible
Employee of the Company or an Affiliate (collectively, the Company and all Affiliates of the
Company shall be referred to as the “Employer”). Except as otherwise indicated, any
capitalized term used but not defined herein shall have the meaning ascribed to such term in the
GNC Acquisition Holdings Inc. 2007 Stock Incentive Plan (the “Plan”). A copy of the Plan
has been delivered to the Participant. By signing and returning this Agreement, the Participant
acknowledges having received and read a copy of the Plan and agrees to comply with it, this
Agreement and all applicable laws and regulations.



     Accordingly, the parties hereto agree as follows:



     1. Tax Matters. No part of the Option granted hereby is intended to qualify as an
“incentive stock option” under Section 422 of the Internal Revenue Code of 1986, as amended.



     2. Grant of Option. Subject in all respects to the Plan and the terms and conditions
set forth herein and therein, the Participant is hereby granted an Option to purchase from the
Company [•] shares of Common Stock, at a price per share of $[•] (the “Option Price”).



     3. Exercise. (a). The Option shall vest and become exercisable as provided below,
which shall be cumulative. To the extent that the Option has become exercisable with respect to a
number of shares of Common Stock as provided below, the Option may thereafter be exercised by the
Participant, in whole or in part, at any time or from time to time prior to the expiration of the
Option as provided herein and in accordance with Section 6.3(d) of the Plan, including, without
limitation, the filing of such written form of exercise notice, if any, as may be required by the
Committee and payment in full of the Option Price multiplied by the number of shares of Common
Stock underlying the portion of the Option exercised. Upon expiration of the Option, the Option
shall be canceled and no longer exercisable. The following table indicates each date upon which
the Participant shall be vested and entitled to exercise the Option with respect to the percentage
indicated beside that date provided that the Participant has not suffered a Termination prior to
the applicable vesting date:



 









 






	 	 	 
	Vesting Date	 	Percent Vested
	March 16, 2008
	 	20%
	March 16, 2009
	 	40%
	March 16, 2010
	 	60%
	March 16, 2011
	 	80%
	March 16, 2012
	 	100%






          There shall be no proportionate or partial vesting in the periods prior to each vesting date
and all vesting shall occur only on the appropriate vesting date.




          (b) Notwithstanding the foregoing, the Participant may not exercise the Option unless the
shares of Common Stock issuable upon such exercise are then registered under the Securities Act,
or, if such shares of Common Stock are not then so registered, the Company has determined that such
exercise and issuance would be exempt from the registration requirements of the Securities Act.
The exercise of the Option must also comply with other applicable laws and regulations governing
the Option, and the Participant may not exercise the Option if the Company determines that such
exercise would not be in material compliance with such laws and regulations. In addition, the
Participant may not exercise the Option if the terms of the Plan do not permit the exercise of
Options at such time.




          (c) The provisions in the Plan regarding Detrimental Activity shall apply to the Option. In
the event that the Participant engages in Detrimental Activity prior to the exercise of the Option,
the Option shall terminate and expire as of the date the Participant engaged in such Detrimental
Activity. As a condition of the exercise of the Option, the Participant shall be required to
certify (or 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. In
the event the Participant engages in Detrimental Activity during the one year period commencing on
the date the Option is exercised, the Company shall be entitled to recover from the Participant at
any time within one year after such exercise, and the Participant shall pay over to the Company, an
amount equal to any gain realized as a result of the exercise of the Option (whether at the time of
exercise or thereafter).




     4. Option Term. The term of the Option shall be until March 15, 2017, after which
time it shall terminate, subject to earlier termination in the event of the Participant’s
Termination as specified in Section 5 below.



     5. Termination.



     (a) Subject to the terms of the Plan and this Agreement, the Option, to the extent vested at
the time of the Participant’s Termination, shall remain exercisable as provided in Section 9.2(a)
of the Plan.



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          (b) Any portion of the Option that is not vested as of the date of the Participant’s
Termination for any reason shall terminate and expire as of the date of such Termination.





	6.	 	Restriction on Transfer of Option. No part of the Option shall be Transferable
other than by will or by the laws of descent and distribution and during the lifetime of the
Participant, may be exercised only by the Participant or the Participant’s guardian or legal
representative. In addition, the Option shall not be assigned, negotiated, pledged or hypothecated
in any way (except as provided by law or herein), and the Option shall not be subject to execution,
attachment or similar process. Upon any attempt to Transfer the Option or in the event of any levy
upon the Option by reason of any execution, attachment or similar process contrary to the
provisions hereof, the Option shall immediately become null and void.
	 
	7.	 	Company Call Rights; Restrictions on Transfer. The Option, and any shares of
Common Stock that the Participant acquires upon exercise of the Option, shall be subject to the
Company call rights and restrictions on transfer (including the Company’s right of first refusal)
set forth in Article XIII of the Plan. To ensure that the shares of Common Stock issuable upon
exercise of the Option are not transferred in contravention of the terms of the Plan and this
Agreement, and to ensure compliance with other provisions of the Plan and this Agreement, the
Company may deposit the certificates evidencing the shares of Common Stock to be issued upon the
exercise of the Option with an escrow agent designated by the Company.
	 
	8.	 	Securities Representations. Upon the exercise of the Option prior to the
registration of the Common Stock subject to the Option pursuant to the Securities Act or other
applicable securities laws, the Participant shall be deemed to acknowledge and make the
representations and warranties as described below and as otherwise may be requested by the Company
for compliance with applicable laws, and any issuances of Common Stock by the Company shall be made
in reliance upon the express representations and warranties of the Participant.





          (a) The Participant is acquiring and will hold the shares of Common Stock for investment for
his account only and not with a view to, or for resale in connection with, any “distribution”
thereof within the meaning of the Securities Act or other applicable securities laws.




          (b) The Participant has been advised that the shares of Common Stock have not been registered
under the Securities Act or other applicable securities laws, on the ground that no distribution or
public offering of the shares of Common Stock is to be effected (it being understood, however, that
the shares of Common Stock are being issued and sold in reliance on the exemption provided under
Rule 701 under the Securities Act), and that the shares of Common Stock must be held indefinitely,
unless they are subsequently registered under the applicable securities laws or the Participant
obtains an opinion of counsel (in the form and substance satisfactory to the Company and its
counsel) that registration is not required. In connection with the foregoing, the Company is
relying in part on the Participant’s representations set forth in this Section. The Participant
further acknowledges and understands that the Company is under no obligation hereunder to register
the shares of Common Stock.




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          (c) The Participant is aware of the adoption of Rule 144 by the Securities and Exchange
Commission under the Securities Act, which permits limited public resales of securities acquired in
a non-public offering, subject to the satisfaction of certain conditions. The Participant
acknowledges that he is familiar with the conditions for resale set forth in Rule 144, and
acknowledges and understands that the conditions for resale set forth in Rule 144 have not been
satisfied and that the Company has no plans to satisfy these conditions in the foreseeable future.




          (d) The Participant will not sell, transfer or otherwise dispose of the shares of Common Stock
in violation of the Plan, this Agreement, Securities Act (or the rules and regulations promulgated
thereunder) or under any other applicable securities laws. The Participant agrees that he will not
dispose of the Common Stock unless and until he has complied with all requirements of this
Agreement applicable to the disposition of the shares of Common Stock.




          (e) The Participant has been furnished with, and has had access to, such information as he
considers necessary or appropriate for deciding whether to invest in the shares of Common Stock,
and the Participant has had an opportunity to ask questions and receive answers from the Company
regarding the terms and conditions of the issuance of the Common Stock.




          (f) The Participant is aware that his investment in the Company is a speculative investment
that has limited liquidity and is subject to the risk of complete loss. The Participant is able,
without impairing his financial condition, to hold the Shares for an indefinite period and to
suffer a complete loss of his investment in the Common Stock.




     9. Rights as a Stockholder. The Participant shall have no rights as a stockholder
with respect to any shares covered by the Option unless and until the Participant has become the
holder of record of the shares, and no adjustments shall be made for dividends in cash or other
property, distributions or other rights in respect of any such shares, except as otherwise
specifically provided for in the Plan. Notwithstanding the foregoing, prior to the expiration of
the Option as provided herein or the exercise of the Option in full, the Participant shall be
entitled to receive a special bonus payment for any extraordinary cash dividends paid to Ares
Corporate Opportunities Fund II, L.P. and Ontario Teachers’ Pension Plan Board or their Affiliates
while the Option is outstanding (other than special dividends paid to the holders of the Class B
Common Stock of Holdings in accordance with the Company’s Amended and Restated Certificate of
Incorporation, as amended, restated or replaced from time to time), in the manner and subject to
such terms and conditions imposed on the receipt of such bonus payment as determined by the
Committee in its sole discretion and in a manner consistent with Section 409A of the Code, as
applicable.



     10. Provisions of Plan Control. This Agreement is subject to all the terms,
conditions and provisions of the Plan, including, without limitation, the amendment provisions
thereof, and to such rules, regulations and interpretations relating to the Plan as may be adopted
by the Committee and as may be in effect from time to time. The Plan is incorporated herein by
reference. If and to the extent that this Agreement conflicts or is inconsistent with the terms,
conditions and provisions of the Plan, the Plan shall control, and this Agreement shall be



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deemed to be modified accordingly. This Agreement contains the entire understanding of the
parties with respect to the subject matter hereof (other than any exercise notice or other
documents expressly contemplated herein or in the Plan) and supersedes any prior agreements between
the Company and the Participant with respect to the subject matter hereof.




     11. Notices. Any notice or communication given hereunder shall be in writing and
shall be deemed to have been duly given: (i) when delivered in person; (ii) two (2) days after
being sent by United States mail; or (iii) on the first business day following the date of deposit
if delivered by a nationally recognized overnight delivery service, to the appropriate party at the
address set forth below (or such other address as the party shall from time to time specify):




If to the Company, to:


GNC Acquisition Holdings Inc.

300 Sixth Avenue

Pittsburgh, Pennsylvania 15222

Attention: Mark Weintraub





with copies (which shall not constitute notice) to:


c/o Ares Corporate Opportunities Fund II, L.P.

1999 Avenue of the Stars

Los Angeles, California 90067

Facsimile: 310-210-4170

Attention: David Kaplan





and


c/o Ontario Teachers’ Pension Plan Board

5650 Yonge Street

Toronto, Ontario

M2M 4H5

Facsimile: 416-730-5082

Attention: Lee Sienna

With a copy by Facsimile to: 416-730-3771

Attention: Legal Department





If to the Participant, to the address on file with the Company.



     12. No Obligation to Continue Employment. This Agreement is not an agreement of
employment. This Agreement does not guarantee that the Employer will employ the Participant for
any specific time period, nor does it modify in any respect the Employer’s right to terminate or
modify the Participant’s employment or compensation.



     13. Agreement. As a condition to the receipt of shares of Common Stock when the
Option is exercised, the Participant shall execute and deliver a Stockholders Agreement or such
other documentation which shall set forth certain restrictions on transferability of the shares of



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Common Stock acquired and such other terms or restrictions as the Committee shall from time to
time establish. Such Stockholders Agreement or other documentation shall apply to the Common Stock
acquired under the Plan and covered by such Stockholders Agreement or other documentation. The
Company may require, as a condition of exercise, the Participant to become a party to any other
existing stockholder agreement or other agreement.




     14. WAIVER OF JURY TRIAL. EACH PARTY TO THIS AGREEMENT, FOR ITSELF AND ITS
AFFILIATES, HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED
ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THE ACTIONS OF THE PARTIES HERETO OR
THEIR RESPECTIVE AFFILIATES PURSUANT TO THIS AGREEMENT OR IN THE NEGOTIATION, ADMINISTRATION,
PERFORMANCE OR ENFORCEMENT OF THIS AGREEMENT.



     15. Governing Law. This Agreement 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.



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