EX-10.1



 






Exhibit 10.1




EMPLOYMENT AGREEMENT




          THIS EMPLOYMENT AGREEMENT (the “Agreement”) is entered into on December 22, 2005 (the
“Execution Date”), to be effective for all purposes as of January 1, 2006 (the
“Effective Date”), by and among General Nutrition Centers, Inc., a Delaware corporation
(the “Company”), GNC Corporation, a Delaware corporation (“GNC”), and Robert J.
DiNicola (the “Executive”).




          WHEREAS, the Company is a wholly owned subsidiary of GNC;




          WHEREAS, the Executive is currently a member of the Board of Directors of each of GNC and the
Company and is currently serving as the executive Chairman of the Board of each of GNC and the
Company; and




          WHEREAS, the Company desires to continue to employ the Executive, and enter into a new
employment agreement on the terms and subject to the conditions set forth herein, and the Executive
has agreed to be so employed.




          NOW, THEREFORE, in consideration of the mutual representations, warranties, covenants and
agreements set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound,
agree as follows:




          1. Employment of Executive; Duties.




               1.1 Title. During the Employment Period (as defined in Section 2 hereof), the
Executive shall serve as executive Chairman of the Board of the Company and of GNC. The Executive
shall have the normal duties, responsibilities and authority commensurate with such positions.



               1.2 Duties. During the Employment Period, the Executive shall do and perform all
services and acts necessary or advisable to fulfill the duties and responsibilities of the
Executive’s position and shall render such services on the terms set forth herein. In addition,
the Executive shall have such other executive and managerial powers and duties as may reasonably be
assigned to the Executive by the Board of Directors of the Company (the “Board”),
commensurate with the Executive serving as executive Chairman of the Board. The Company may adjust
the duties and responsibilities of Executive as executive Chairman of the Board, notwithstanding
the specific title set forth in Section 1.1 hereof, based upon the Company’s needs from time to
time. Except for sick leave, reasonable vacations and excused leaves of absence, the Executive
shall, throughout the Employment Period, devote the Executive’s working time, attention, knowledge
and skills, to such extent as may be necessary and appropriate as determined by the Executive in
his business judgment and in consultation with the Board, faithfully and to the best of the
Executive’s ability, to the duties and responsibilities of the Executive’s positions in furtherance
of the business affairs and activities of the Company, and its subsidiaries and Affiliates (as
defined in Section 5.4(a) hereof). During the Employment Period, the Executive shall spend
sufficient time at the Company’s corporate headquarters in Pittsburgh, Pennsylvania as the
Executive and the Board shall deem necessary to discharge the Executive’s responsibilities
hereunder, and the Company shall provide the



 









 




Executive with an appropriate office and secretarial support at such corporate headquarters.
Notwithstanding the foregoing, the Company acknowledges that the Executive currently intends not to
reside in Pennsylvania and agrees that the Executive shall not be required to relocate to
Pittsburgh, Pennsylvania or any other location. The Executive shall at all times be subject to,
comply with, observe and carry out (a) the Company’s rules, regulations, policies and codes of
ethics and/or conduct applicable to its employees generally and in effect from time to time and (b)
such rules, regulations, policies, codes of ethics and/or conduct, directions and restrictions as
the Board may from time to time reasonably establish or approve for senior executive officers of
the Company.




          2. Term of Employment.




               2.1 Employment Period. The employment of the Executive hereunder shall continue until
December 31, 2008 (the “Initial Employment Period”), unless terminated earlier in
accordance with the provisions of Section 4 of this Agreement.



               2.2 Extension. Unless terminated earlier in accordance with the provisions of Section
4 of this Agreement, the employment of the Executive hereunder shall continue after the end of the
Initial Employment Period for additional one (1)-year periods (each an “Extension Period”
and, together with the Initial Employment Period, the “Employment Period”), unless the
Company or the Executive notifies the other in writing not less than one year prior to the end of
the Initial Employment Period, or the end of the applicable Extension Period, of its or the
Executive’s election, in its or the Executive’s sole discretion, not to extend the Employment
Period.



          3. Compensation and General Benefits.




               3.1 Base Salary.



                    (a) During the Employment Period, the Company agrees to pay to the Executive an annual base
salary in an amount equal to $750,000 (such base salary, as may be adjusted from time to time
pursuant to Section 3.1(b), is referred to herein as the “Base Salary”). The Executive’s
Base Salary, less amounts required to be withheld under applicable law, shall be payable in equal
installments in accordance with the Company’s normal payroll practices and procedures in effect
from time to time for the payment of salaries to officers of the Company, but in no event less
frequently than monthly.



                    (b) The Board or the Compensation Committee established by the Board (the “Compensation
Committee”) shall review the Executive’s performance on an annual basis and, based on such
review, may change the Base Salary, as it, acting in its sole discretion, shall determine to be
reasonable and appropriate.



               3.2 Bonus.



                    (a) Annual Bonus. With respect to the 2006 calendar year and with respect to each
calendar year that commences during the Employment Period, the Executive shall be eligible to
receive from the Company an annual performance bonus (the “Annual Bonus”) based upon the
Company’s attainment of annual goals established by the Board or the



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Compensation Committee, which are based on the Company’s sales, earnings before interest,
taxes, depreciation and amortization (“EBITDA”) and cash generation goals. The Executive’s target
Annual Bonus shall be fifty percent (50%) of the Executive’s Base Salary with a maximum of one
hundred and twenty percent (120%) of the Executive’s Base Salary if the Company exceeds the EBITDA
and debt amortization goals based on levels to be determined by the Board or the Compensation
Committee for the applicable year. Any Annual Bonus earned shall be payable in full as soon as
reasonably practicable following the determination thereof, but in no event later than May 15 of
the following year, and in accordance with the Company’s normal payroll practices and procedures.
Except as otherwise expressly provided in Section 4 hereof, any Annual Bonus (or portion thereof)
payable under this Section 3.2 shall not be payable unless the Executive is employed by the Company
on the last day of the period to which such Annual Bonus relates.




                    (b) Success Bonus. In the event of the consummation of (i) an initial underwritten
public offering of shares of Common Stock, par value $0.01 per share, of GNC (the “Common
Stock”) or (ii) a Change of Control (as defined in Exhibit A attached hereto), in each case
where GNC Investors LLC has received cash or other consideration representing at least a
twenty-five percent (25%) internal rate of return on its investment in the Common Stock, the
Executive shall be entitled to receive a one-time payment of a cash bonus in the amount of One
Million Dollars ($1,000,000) (the “Success Bonus”), provided that the Executive is serving
as Chairman of the Board at the time of consummation of any such transaction; provided, further
that in the event the Executive is terminated without Cause or terminates for Good Reason (each as
defined herein) (x) within thirty (30) days prior to the consummation of such underwritten initial
public offering of Common Stock or the signing of such Change of Control transaction or (y) between
the signing and closing of such Change of Control transaction, the Executive shall be entitled to
the Success Bonus. Any Success Bonus shall be payable as soon as reasonably practicable after the
determination thereof, but in no event later than 10 days after the effective date of such public
offering or Change of Control.



               3.3 Expenses. During the Employment Period, in addition to any amounts to which the
Executive may be entitled pursuant to the other provisions of this Section 3.3 or elsewhere herein,
the Executive shall be entitled to receive reimbursement from the Company for all reasonable and
necessary expenses incurred by the Executive in performing the Executive’s duties hereunder on
behalf of the Company, subject to, and consistent with, the Company’s policies for expense payment
and reimbursement, in effect from time to time, including, but not limited to, all reasonable
expenses incurred in connection with hotels, meals, transportation and the like while in Pittsburgh
and first-class air travel to and from Pittsburgh for the Executive and his spouse as reasonably
necessary during the Employment Period.



               3.4 Fringe Benefits. Except for sick leave, vacation pay, Company -paid holidays, or
as otherwise expressly set forth in this Agreement, the Executive shall not be entitled to
participate in, or to receive benefits under, any benefit plans, arrangements or policies made
available by the Company to any of its executives and key management employees or employees
generally. In the event the Executive becomes entitled to any fringe benefits under this Section
3.4, the award of any such benefits shall be separate and distinct from the right of the Executive
to receive the Annual Bonus payment from the Company described in Section 3.2(a).



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               3.5 Stock Options.



                    (a) As of the Execution Date, pursuant to the General Nutrition Centers Holding Company
(presently known as GNC Corporation) 2003 Omnibus Stock Incentive Plan (the “Plan”), the
Executive shall be granted one or more options to purchase a total of 150,000 shares of Common
Stock with a per share exercise price equal to $6.00 per share, which has been determined to be no
less than the fair market value per share on the date of grant (the “Option”), for the
Executive’s service as Chairman of the Board of GNC and the Company. The Option shall have a term
of seven (7) years from the date of grant. The Option shall be an “incentive stock option” to the
maximum extent permitted under applicable law and to the extent that the Option does not qualify as
an “incentive stock option,” it shall constitute or be granted as a separate non-qualified stock
option. The Option shall become vested and exercisable immediately with respect to 50% of the
shares subject to the Option and the remaining 50% shall vest and become exercisable on the first
anniversary of the Execution Date, subject to Executive’s continued employment as Chairman of the
Board; provided, however, that in the event of the Executive’s death or “Total Disability” (as
defined in Section 4.2(b) hereof), any unvested portion of the Option shall immediately vest and
become exercisable. If the Executive should no longer be employed as Chairman of the Board, but
continues service as a director of GNC and/or the Company, the option shall not terminate within 90
days as currently provided with respect to incentive stock options, and shall continue to be
exercisable to the extent vested; provided, however, that following 90 days after
the termination of employment, any portion of the Option that is an incentive stock option, to the
extent not previously exercised, shall automatically convert into a non-qualified stock option.
Except as otherwise provided herein, the Option shall be subject to the terms and conditions of the
Plan and the form of option agreement applicable for other senior executives of the Company
approved by the Administrator of the Plan (as defined therein).



                    (b) Subject to Section 4 below and the approval of the Compensation Committee and the GNC
Compensation Committee, or other Administrator of the Plan, the Executive shall be eligible to
participate in and be granted future awards under the Plan.



                    (c) In the event of (i) the Executive’s death or “Total Disability” (as defined in Section
4.2(b) hereof) or (ii) a Change of Control (as defined in Exhibit A attached hereto), all of the
Executive’s stock options granted pursuant to the Plan shall vest in full and become immediately
exercisable, but in no event shall such options be exercisable following their expiration date.



               3.6 Stock Award. Subject to the terms set forth in this Section 3.6, on the Effective
Date, GNC hereby agrees to issue a stock award (the “Stock Award”) to the Executive 25,000
shares of Common Stock (the “Stock Award Shares”).



                    (a) Purchase Price. The purchase price for the Stock Award shall be an amount equal
to the par value per share of the Common Stock multiplied by the number of Stock Award Shares.
Such purchase price shall be deemed paid in full upon issuance in consideration of the Executive’s
services rendered to the Company and GNC.



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                    (b) Securities Law Compliance.



                         (i) Restricted Securities. The Stock Award Shares have not been registered under the
Securities Act of 1933, as amended (the “Securities Act”) and are being issued to the
Executive in reliance upon the exemption for such registration provided by Section 4(2) of the
Securities Act. The Executive hereby confirms that the Executive has been informed that the Stock
Award Shares will be restricted securities under the Securities Act and may not be resold or
transferred unless the Stock Award Shares are first registered under the federal securities laws or
unless an exemption from such registration is available. The Executive understands that GNC is
under no obligation to register any resale of the Stock Award Shares and that an exemption may not
be available or may not permit the Executive to resell or transfer any of the Stock Award Shares in
the amounts or at the times proposed by the Executive. Accordingly, the Executive hereby
acknowledges that the Executive is prepared to hold the Stock Award Shares for an indefinite period
and that the Executive is aware of the requirements of Rule 144 promulgated by the Securities and
Exchange Commission pursuant to the Securities Act (“Rule 144”) and other exemptions from
the registration requirements of the Securities Act.



                         (ii) Restrictions on Disposition of Stock Award Shares. If the Stock Award Shares
have not been registered under the Securities Act, the Executive shall make no disposition of the
Stock Award Shares unless and until there is compliance with all of the following requirements:




                              (A) the Executive shall have furnished the Company with a written summary of
the terms and conditions of the proposed disposition.




                              (B) the Executive shall have complied with all requirements of this Agreement
applicable to the disposition of the Stock Award Shares.




                              (C) the Executive shall have provided the Company with written assurances, in
form and substance satisfactory to the Company, that (1) the proposed disposition
does not require registration of the Stock Award Shares under the Securities Act or
(2) all appropriate action necessary for compliance with the registration
requirements of the Securities Act or any exemption from registration available
under the Securities Act (including Rule 144) has been taken.



                         (iii) Restrictive Legends.




                              (A) The stock certificates for all of the Stock Award Shares shall be endorsed
with the following restrictive legend:




“THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“ACT”), OR APPLICABLE STATE SECURITIES LAWS, AND MAY BE
OFFERED,



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PLEDGED, SOLD, ASSIGNED, TRANSFERRED OR OTHERWISE DISPOSED
OF ONLY IF REGISTERED PURSUANT TO THE PROVISIONS OF THE ACT
AND SUCH LAWS, OR IN COMPLIANCE WITH AN APPLICABLE EXEMPTION
FROM REGISTRATION.”




                              (B) The Stock Award Shares shall be subject to the terms and conditions of that
certain Stockholders’ Agreement, dated as of December 5, 2003, by and among GNC, GNC
Investors, LLC, Apollo Investment Fund V, L.P. and the other stockholders of GNC
signatory thereto. Accordingly, the stock certificates for all of the Stock Award
Shares shall also be endorsed with the following restrictive legend:




“THE SECURITIES EVIDENCED BY THIS CERTIFICATE ARE ALSO
SUBJECT TO A STOCKHOLDERS’ AGREEMENT, DATED AS OF DECEMBER
5, 2003, AS IT MAY BE AMENDED FROM TIME TO TIME (THE
“AGREEMENT”), WHICH CONTAINS PROVISIONS REGARDING (I)
CERTAIN RESTRICTIONS ON THE TRANSFER OF SUCH SECURITIES,
(II) CERTAIN TAG-ALONG RIGHTS AND DRAG-ALONG RIGHTS
APPLICABLE TO SUCH SECURITIES, (III) CERTAIN RESTRICTIONS ON
VOTING AND THE GRANT OF AN IRREVOCABLE PROXY AND (IV)
CERTAIN OTHER MATTERS. A COPY OF SUCH AGREEMENT IS
AVAILABLE FOR INSPECTION AT THE PRINCIPAL OFFICE OF THE
COMPANY. ANY TRANSFER OF THE SECURITIES EVIDENCED BY THIS
CERTIFICATE OR ANY INTEREST THEREIN IN VIOLATION OF THE
AGREEMENT IS NULL AND VOID.”



                    (c) Tax Consequences; Withholding of Taxes. The Executive has reviewed with the
Executive’s own tax advisors the federal, state and local tax consequences of the Stock Award. The
Executive is relying solely on such advisors and not on any statements or representations of GNC or
any of its Affiliates or agents. The Executive understands that the Executive (and not GNC) shall
be responsible for the Executive’s own tax liability as a result of the Stock Award. Since there
are no restrictions on the Stock Award and the Stock Award Shares are fully vested upon issuance,
the Stock Award constitutes compensation income to the Executive for federal or state income tax
purposes. The Executive either shall deliver to the Company such amount of money as required to
meet the Company’s minimum obligation under applicable tax laws or regulations for withholding,



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          4. Termination.




               4.1 General. The employment of the Executive hereunder (and the Employment Period)
shall terminate as provided in Section 2 hereof, unless earlier terminated in accordance with the
provisions of this Section 4.



               4.2 Death or Disability of the Executive.



                    (a) The employment of the Executive hereunder (and the Employment Period) shall terminate upon
(i) the death of the Executive, and (ii) at the option of the Company, upon not less than fifteen
(15) days’ prior written notice to the Executive or the Executive’s personal representative or
guardian, if the Executive suffers a “Total Disability” (as defined in Section 4.2(b) hereof).
Upon termination for death or Total Disability, (A) the Company shall pay to the Executive,
guardian or personal representative, as the case may be, the Executive’s current Base Salary for
the remainder of the Employment Period in effect immediately prior to the date of termination, and
(B) the Company shall also pay to the Executive, guardian or personal representative, as the case
may be, a prorated share of the Annual Bonus pursuant to Section 3.2 hereof (based on the period of
actual employment) that the Executive would have been entitled to had the Executive worked the full
year during which the termination occurred, provided that bonus targets are met for the year of
such termination. Any bonus shall be payable as soon as reasonably practicable following the
determination thereof, but in no event later than May 15 of the following year, and in accordance
with the Company’s normal payroll practices and procedures



                    (b) Subject to the last sentence of this Section 4.2(b), for purposes of this Agreement,
“Total Disability” shall mean (i) if the Executive is subject to a legal decree of
incompetency (the date of such decree being deemed the date on which such disability occurred),
(ii) the written determination by a physician selected by the Company (which expense shall be paid
by the Company) that, because of a medically determinable disease, injury or other physical or
mental disability, the Executive is unable substantially to perform, with or without reasonable
accommodation, the material duties of the Executive required hereby, and that such disability has
lasted for ninety (90) consecutive days or any one hundred twenty (120) days during the immediately
preceding twelve (12)-month period or is, as of the date of determination, reasonably expected to
last six (6) months or longer after the date of determination, in each case based upon medically
available reliable information or (iii) Executive’s qualifying for benefits under the Company’s
long-term disability coverage, if any. In conjunction with determining mental and/or physical
disability for purposes of this Agreement, the Executive hereby consents to (x) any examinations
that the Board or the Compensation Committee determines are relevant to a determination of whether
the Executive is mentally and/or physically disabled or are required by the Company physician, (y)
furnish such medical information as may be reasonably requested and (z) waive any applicable
physician patient privilege that may arise because of such examination. All expenses incurred by
the Executive under this subsection shall be paid by the Company. Notwithstanding anything to the
contrary in this Section 4.2(b), Total Disability shall have the definition of “Disabled” contained
in Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), in any
instance in which amounts are paid under this Agreement as a result of Executive’s Total Disability
and such amounts are treated as deferred compensation under Section 409A of the Code.



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                    (c) With respect to outstanding stock options and other equity-based awards held by the
Executive as of the date of termination pursuant to this Section 4.2, (i) as provided in Section
3.5(b), all of the Executive’s stock options granted pursuant to the Plan shall vest in full and
become immediately exercisable, and (ii) any such vested and exercisable options shall expire
immediately following the expiration of the one hundred eighty (180)-day period following such date
of termination.



               4.3 Termination by the Company Without Cause or Resignation by the Executive For Good
Reason.



                    (a) The Company may terminate the Executive’s employment without “Cause” (as defined in
Section 4.3(g)), and thereby terminate the Executive’s employment (and the Employment Period) under
this Agreement at any time with no requirement for notice to the Executive.



                    (b) The Executive may resign, and thereby terminate the Executive’s employment (and the
Employment Period), at any time for “Good Reason” (as defined in Section 4.3(f) hereof), upon not
less than sixty (60) days’ prior written notice to the Company specifying in reasonable detail the
reason therefore; provided, however, that the Company shall have a reasonable
opportunity to cure any such Good Reason (to the extent possible) within thirty (30) days after the
Company’s receipt of such notice; and provided further that, if the Company is not seeking
to cure, the Company shall not be obligated to allow the Executive to continue working during such
period and may, in its sole discretion, accelerate such termination of employment (and the
Employment Period) to any date during such period.



                         (i) Executive may not terminate employment under this Agreement for Good Reason regarding any
of the Company’s acts or omissions of which Executive had actual notice for 60 days or more prior
to giving notice of termination for Good Reason.



                         (ii) A determination of whether the Executive legitimately has Good Reason for termination of
the Executive’s employment under this Agreement, and of whether the Company has effectively cured
and thus eliminated the grounds for such Good Reason, shall be made only by the disinterested
members of the Board, within the sole judgment and discretion of the disinterested members of the
Board.



               (c) In the event the Executive’s employment is terminated pursuant to this Section 4.3, then,
subject to Section 4.3(d) hereof, the following provisions shall apply:



                         (i) The Company shall continue to pay the Executive the Base Salary to which the Executive
would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of
termination) had the Executive remained in the employ of the Company until the expiration of the
Employment Period in effect immediately prior to the date of termination, with all such amounts
payable in accordance with the Company’s normal payroll practices and procedures in the same manner
and at the same time as though the Executive remained employed by the Company.



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                         (ii) If such termination occurs upon or within six (6) months following a Change of Control
(as defined in Exhibit A attached hereto), the Company shall continue to pay the Executive the Base
Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base
Salary rate during the year of termination) for the greater of (A) the period set forth in Section
4.3(c)(i) hereof or (B) a two (2)-year period following such date of termination, with all such
amounts payable in accordance with the Company’s normal payroll practices and procedures in the
same manner and at the same time as though the Executive remained employed by the Company, subject
to Section 4.3(c)(viii) hereof.



                         (iii) In the event the Executive’s employment is terminated pursuant to this Section 4.3
without Cause, and if the Company has previously effected reductions in the Executive’s Base Salary
and the base salary of all executives at the same level as the Executive, which reductions were
substantially similar, then the Base Salary rate for purposes of Section 4.3(c)(i) or (ii) hereof
shall be the Base Salary rate in effect immediately prior to such reductions.



                         (iv) The Company shall pay to the Executive a prorated share of the Annual Bonus pursuant to
Section 3.2 hereof (based on the period of actual employment) that the Executive would have been
entitled to had the Executive worked the full year during which the termination occurred, provided
that bonus targets are met for the year of such termination. The bonus shall be payable as soon as
reasonably practicable following the determination thereof, but in no event later than May 15 of
the following year, and in accordance with the Company’s normal payroll practices and procedures.



                         (v) With respect to outstanding options and other equity-based awards held by the Executive as
of the date of termination pursuant to this Section 4.3, (A) any such options that are not vested
or exercisable as of such date of termination shall immediately expire and any such equity-based
awards that are not vested as of such date of termination shall immediately be forfeited, and (B)
any such options that are vested and exercisable as of such date of termination shall expire
immediately following the expiration of the one hundred eighty (180)-day period following such date
of termination.



                    (d) As a condition precedent to the Executive’s right to receive the benefits set forth in
Section 4.3(c) hereof, the Executive agrees to execute a release of the Company and its respective
Affiliates, officers, directors, stockholders, employees, agents, insurers, representatives and
successors from and against any and all claims that the Executive may have against any such Person
(as defined in Section 5.4(f) hereof) relating to the Executive’s employment by the Company and the
termination thereof, such release to be in form and substance reasonably satisfactory to the
Company.



                    (e) Anything in this Agreement to the contrary notwithstanding, if it shall be determined that
any payment, vesting, distribution or transfer by the Company or any successor, or any Affiliate of
the foregoing or by any other Person or that any other event occurring with respect to the
Executive and the Company for the Executive’s benefit, whether paid or payable or distributed or
distributable under the terms of this Agreement or otherwise (including under any employee benefit
plan) (a “Payment”) would be subject to or result in the imposition of the excise tax
imposed by Section 4999 of the Code (and any



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regulations or guidance promulgated or issued thereunder, any successor provision, and any
similar provision of state or local income tax law) (collectively, the “Excise Tax”), then
the amount of the Payment shall be reduced to the highest amount that may be paid by the Company or
other entity without subjecting any such Payment to the Excise Tax (the “Payment
Reduction”). The Executive shall have the right to designate those payments or benefits that
shall be reduced or eliminated under the Payment Reduction to avoid the imposition of the Excise
Tax, subject to the confirmation of the Accounting Firm (as defined herein) with respect to the
intended effect thereof. Notwithstanding the foregoing, the Payment Reduction shall not apply if
the Executive would, on a net after-tax basis, receive less compensation than if the Payment were
not so reduced.




                         (i) Subject to the provisions of Section 4.3(e)(ii), all determinations required to be made
under this Section 4.3(e), including whether and when a Payment is subject to Section 4999 and the
assumptions to be utilized in arriving at such determination and in determining an appropriate
Payment Reduction, shall be made by PricewaterhouseCoopers LLP, or any other nationally recognized
accounting firm that shall be the Company’s outside auditors at the time of such determination (the
“Accounting Firm”), which Accounting Firm shall provide detailed supporting calculations to
the Executive and the Company within fifteen (15) business days of the receipt of notice from the
Company or the Executive that there will be a Payment that the Person giving notice believes may be
subject to the Excise Tax. All fees and expenses of the Accounting Firm shall be borne by the
Company. Any determination by the Accounting Firm shall be binding upon the Company and the
Executive in determining whether a Payment Reduction is required and the amount thereof (subject to
Sections 4.3(e)(ii) and (iii)), in the absence of material mathematical or legal error.



                         (ii) As a result of uncertainty in the application of Section 4999 that may exist at the time
of the initial determination by the Accounting Firm, it may be possible that in making the
calculations required to be made hereunder, the Accounting Firm shall determine that a Payment
Reduction need not be made that properly should be made (an “Overpayment”) or that a
Payment Reduction not properly needed to be made should be made (an “Underpayment”). If,
within seventy-five (75) days after the Accounting Firm’s initial determination under Section
4.3(e)(i), the Accounting Firm shall determine that an Overpayment was made, any such Overpayment
shall be treated for all purposes, to the extent practicable and subject to applicable law, as a
loan to the Executive with interest at the applicable Federal rate provided for in Section 1274(d)
of the Code and shall be repaid by the Executive to the Company within thirty-five (35) days after
the Executive receives notice of the Accounting Firm’s determination; provided,
however, that the amount to be repaid by the Executive to the Company either as a loan or
otherwise as a lump sum payment (where a loan is not practicable or permitted by law) shall be
reduced to the extent that any portion of the Overpayment to be repaid will not be offset by a
corresponding reduction in tax by reason of such repayment of the Overpayment. If the Accounting
Firm shall determine that an Underpayment was made, any such Underpayment shall be due and payable
by the Company to the Executive within thirty-five (35) days after the Company receives notice of
the Accounting Firm’s determination.



                         (iii) The Executive shall give written notice to the Company of any claim by the IRS that, if
successful, would require the payment by the Executive of an Excise Tax, such notice to be provided
within fifteen (15) days after the



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Executive shall have received written notice of such claim. The Executive shall cooperate
with the Company in determining whether to contest or pay such claim and shall not pay such claim
without the written consent of the Company, which shall not be unreasonably withheld, conditioned
or delayed.




                         (iv) This Section 4.3(e) shall remain in full force and effect following the termination of
the Executive’s employment for any reason until the expiration of the statute of limitations on the
assessment of taxes applicable to the Executive for all periods in which the Executive may incur a
liability for taxes (including Excise Taxes), interest or penalties arising out of the operation of
this Agreement.



                    (f) For purposes of this Agreement, the Executive would be entitled to terminate the
Executive’s employment for “Good Reason” if without the Executive’s prior written consent:



                         (i) the Company fails to comply with any material obligation imposed by this Agreement;



                         (ii) the Company changes the Executive’s position from that of Chairman of the Board;
provided, however, that a change in the Executive’s duties or responsibilities
without a change in the Executive’s position as Chairman of the Board shall not constitute Good
Reason;



                         (iii) the Company effects a reduction in the Executive’s Base Salary, unless all executives at
the same level as the Executive receive a substantially similar reduction in base salary;



                         (iv) The Company requires the Executive to relocate his residence; or



                         (v) the failure of GNC to grant the Executive the Option.



                    (g) For purposes of this Agreement, “Cause” means the occurrence of any one or more of
the following events, and the Company shall have the sole discretion to determine the existence of
Cause:



                         (i) a failure by the Executive to comply with any obligation under this Agreement;



                         (ii) the Executive’s being indicted for (A) any felony or (B) any misdemeanor that causes or
is likely to cause harm or embarrassment to the Company or any of its Affiliates, in the reasonable
judgment of the Board;



                         (iii) theft, embezzlement or fraud by the Executive in connection with the performance of the
Executive’s duties hereunder;



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                         (iv) the Executive’s engaging in any activity that gives rise to a material conflict with the
Company or any of its Affiliates;



                         (v) the misappropriation by the Executive of any material business opportunity of the Company
or any of its Affiliates;



                         (vi) any failure to comply with, observe or carry out the Company’s rules, regulations,
policies and codes of ethics and/or conduct applicable to its employees generally and in effect
from time to time, including (without limitation) those regarding conflicts, potential conflicts of
interest or the appearance of a conflict of interest



                         (vii) any failure to comply with, observe or carry out the rules, regulations, policies,
directions, codes of ethics and/or conduct and restrictions established or approved by the Board
from time to time for senior executive officers of the Company, including (without limitation)
those regarding conflicts, potential conflicts of interest or the appearance of a conflict of
interest;



                         (viii) substance abuse or use of illegal drugs that, in the reasonable judgment of the Board,
(A) impairs the Executive’s performance of the Executive’s duties hereunder or (B) causes or is
likely to cause harm or embarrassment to the Company or any of its Affiliates; and



                         (ix) engagement in conduct that Executive knows or should know is injurious to the Company or
any of its Affiliates.



     4.4 Termination For Cause, Voluntary Resignation Other Than For Good Reason or Election
Not to Extend the Employment Period.



                    (a) (i) The Company may, upon action of the Board, terminate the employment of the Executive
(and the Employment Period) at any time for “Cause,” (ii) the Executive may voluntarily resign
other than for Good Reason and thereby terminate the Executive’s employment (and the Employment
Period) under this Agreement at any time upon not less than thirty (30)-days’ prior written notice
or (iii) either the Company or the Executive may elect not to extend or further extend the
Employment Period pursuant to Section 2.2 hereof.



                    (b) The following provisions shall apply upon termination by the Company for Cause, by the
Executive as the result of resignation for other than for Good Reason, or by the Company or the
Executive at the end of the Employment Period as the result of an election not to extend or further
extend the Employment Period:



                         (i) The Executive shall be entitled to receive all amounts of earned but unpaid Base Salary
and benefits accrued through the date of such termination. Except as provided below, all other
rights of the Executive (and all obligations of the Company) hereunder shall terminate as of the
date of such termination.



                         (ii) With respect to outstanding options and other equity-based awards held by the Executive
as of the date of termination pursuant to this Section 4.4, (i) any such options that are not
vested or exercisable as of such date of termination




12










 





shall immediately expire and any such equity-based awards that are not vested as of such date
of termination shall immediately be forfeited, and (ii) any such options that are vested and
exercisable as of such date of termination shall expire immediately following the expiration of the
ninety (90)-day period following such date of termination.




                    (c) Before the Company may terminate the Executive for Cause pursuant to Section 4.4(a)(i),
the disinterested members of the Board shall deliver to the Executive a written notice of the
Company’s intent to terminate the Executive for Cause, and the Executive shall have been given a
reasonable opportunity to cure any such acts or omissions (which are susceptible of cure as
reasonably determined by the disinterested members of the Board) within thirty (30) days after the
Executive’s receipt of such notice.



               4.5 Resignation from Officer Positions. Upon the termination of the Executive’s
employment for any reason (unless otherwise agreed in writing by the Company and the Executive),
the Executive will be deemed to have resigned, without any further action by the Executive, from
any and all officer, director and/or director positions that the Executive, immediately prior to
such termination, (a) held with the Company or any of its Affiliates and (b) held with any other
entities at the direction of, or as a result of the Executive’s affiliation with, the Company or
any of its Affiliates. If for any reason this Section 4.5 is deemed to be insufficient to
effectuate such resignations, then Executive will, upon the Company’s request, execute any
documents or instruments that the Company may deem necessary or desirable to effectuate such
resignations. In addition, the Executive hereby designates the Secretary or any Assistant
Secretary of the Company and of any Affiliate to execute any such documents or instruments as the
Executive’s attorney-in-fact to effectuate such resignations if execution by the Secretary or any
Assistant Secretary of the Company or Affiliate is deemed by the Company or the Affiliate to be a
more expedient means to effectuate such resignation or resignations.



          5. Confidentiality, Work Product and Non-Competition and Non-Solicitation.




               5.1 Confidentiality.



                    (a) In connection with the Executive’s employment with the Company, the Company promises to
provide the Executive with access to “Confidential Information” (as defined in Section 5.4 hereof)
in support of the Executive’s employment duties. The Executive recognizes that the Company’s
business interests require a confidential relationship between the Company and the Executive and
the fullest practical protection and confidential treatment of all Confidential Information. At
all times, both during and after the Employment Period, the Executive shall not directly or
indirectly: (i) appropriate, use or disclose, or otherwise “Misappropriate” (as defined in Section
5.4 hereof), any Confidential Information, including, without limitation, originals or copies of
any Confidential Information, in any media or format, except for the Company’s benefit
within the course and scope of the Executive’s employment or with the prior written consent of the
Chief Executive Officer of the Company (the “Chief Executive Officer”); or (ii) take or
encourage any action that would circumvent, interfere with or otherwise diminish the value or
benefit of the Confidential Information to any of the Company Parties.



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                    (b) All Confidential Information is the property of the respective Company Parties, the
appropriation, use and/or disclosure of which is governed and restricted by this Agreement.



                    (c) The Executive acknowledges and agrees that:



                         (i) the Executive occupies a unique position within the Company, and the Executive is and will
be intimately involved in the development and/or implementation of Confidential Information;



                         (ii) in the event the Executive breaches this Section 5.1 with respect to any Confidential
Information, such breach shall be deemed to be a Misappropriation of such Confidential Information;
and



                         (iii) any Misappropriation of Confidential Information will result in immediate and
irreparable harm to the Company.



                    (d) Upon receipt of any formal or informal request seeking the Executive’s direct or indirect
disclosure or production of any Confidential Information to any Person, the Executive shall
promptly and timely notify the Company and provide a description and, if applicable, hand deliver a
copy of such request to the Company. The Executive irrevocably nominates and appoints the Company
as the Executive’s true and lawful attorney-in-fact to act in the Executive’s name, place and stead
to perform any act that the Executive might perform to defend and protect against any disclosure of
Confidential Information.



                    (e) At any time the Company may request, during or after the Employment Period, the Executive
shall deliver to the Company all originals and copies of Confidential Information and other Company
property within the Executive’s possession, custody or control, regardless of form or format,
including, without limitation any Confidential Information produced by the Executive. Both during
and after the Employment Period, the Company shall have the right of reasonable access to review,
inspect, copy and/or confiscate any Confidential Information within the Executive’s possession,
custody or control.



                    (f) During the Employment Period, the Executive represents and agrees that the Executive will
not use or disclose any confidential or proprietary information or trade secrets of others,
including but not limited to former employers, and that the Executive will not bring onto the
premises of the Company or access such confidential or proprietary information or trade secrets of
such others, unless consented to in writing by said others, and then only with the prior written
authorization of the Company.



               5.2 Work Product/Intellectual Property.



                    (a) Assignment. The Executive hereby assigns to the Company all right, title and
interest to all “Work Product” (as defined in Section 5.4 hereof) that relates to any of the
Company Parties’ actual or anticipated business, research and development or existing or future
products or services, or that is conceived, reduced to practice, developed or made using any
equipment, supplies, facilities, assets, information or resources of any of the Company Parties
(including, without limitation, any intellectual property rights).



14









 





                    (b) Disclosure. The Executive shall promptly disclose Work Product to the Chief
Executive Officer and perform all actions reasonably requested by the Company (whether during or
after the Employment Period) to establish and confirm the ownership and proprietary interest of any
of the Company Parties in any Work Product (including, without limitation, the execution of
assignments, consents, powers of attorney, applications and other instruments). The Executive
shall not file any patent or copyright applications related to any Work Product except with the
written consent of the Chief Executive Officer.



               5.3 Non-Competition and Non-Solicitation.



                    (a) In consideration of the Confidential Information being provided to the Executive as stated
in Section 5.1 hereof, and other good and valuable new consideration as stated in this Agreement,
including, without limitation, employment and/or continued employment with the Company, and the
business relationships, Company goodwill, work experience, customer relationships and other fruits
of employment that the Executive will obtain, use and develop under this Agreement, the Executive
agrees to the restrictive covenants stated in this Section 5.3.



                    (b) During the Employment Period and until the end of the Restricted Period (as defined in
Section 5.4 hereof), the Executive agrees that the Executive will not, directly or indirectly, on
the Executive’s own behalf or on the behalf of any other Person, within the United States of
America or in any other country or territory in which the businesses of the Company are conducted:



                         (i) engage in a Competing Business, including, without limitation, by owning, managing,
operating, controlling, being employed by, providing services as a consultant or independent
contractor to or participating in the ownership, management, operation or control of any Competing
Business;



                         (ii) induce or attempt to induce any customer, vendor, supplier, licensor or other Person in a
business relationship with any Company Party, for which the Executive or employees working under
the Executive’s supervision had any direct or indirect responsibility during the Employment Period,
(A) to do business with a Competing Business, or (B) to cease, restrict, terminate or otherwise
reduce business with the Company for the benefit of a Competing Business, regardless of whether the
Executive initiates contact ; or



                         (iii) (A) solicit, recruit, persuade, influence, or induce, or attempt to solicit, recruit,
persuade, influence, or induce anyone employed or otherwise retained by any of the Company Parties
(including any independent contractor or consultant), to cease or leave their employment or
contractual or consulting relationship with any Company Party, regardless of whether the Executive
initiates contact for such purposes, or (B) hire, employ or otherwise attempt to establish, for any
Person, any employment, agency, consulting, independent contractor or other business relationship
with any Person who is or was employed or otherwise retained by any of the Company Parties
(including any independent contractor or consultant).



15









 





                    (c) The parties hereto acknowledge and agree that, notwithstanding anything in Section
5.3(a)(i) hereof, (i) the Executive may own or hold, solely as passive investments, securities of
Persons engaged in any business that would otherwise be included in Section 5.3(a)(i), as long as
with respect to each such investment the securities held by the Executive do not exceed five
percent (5%) of the outstanding securities of such Person and such securities are publicly traded
and registered under Section 12 of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”); and (ii) the Executive may serve on the board of directors (or other
comparable position) or as an officer of any entity at the request of the Board; provided,
however, that in the case of investments otherwise permitted under clause (i) above, the
Executive shall not be permitted to, directly or indirectly, participate in, or attempt to
influence, the management, direction or policies of (other than through the exercise of any voting
rights held by the Executive in connection with such securities), or lend the Executive’s name to,
any such Person.



                    (d) The Executive acknowledges and agrees that, for purposes of this Section 5.3, indirect
acts by the Executive shall include, without limitation, an act by the Executive’s spouse,
ancestor, lineal descendant, lineal descendant’s spouse, sibling or other member of the Executive’s
immediate family.



                    (e) the Executive acknowledges that (i) the restrictive covenants contained in this Section
5.3 hereof are ancillary to and part of an otherwise enforceable agreement, such being the
agreements concerning Confidential Information and other consideration as stated in this Agreement,
(ii) at the time that these restrictive covenants are made, the limitations as to time, geographic
scope and activity to be restrained, as described herein, are reasonable and do not impose a
greater restraint than necessary to protect the good will and other legitimate business interests
of the Company, including without limitation, Confidential Information (including trade secrets),
relationships with existing and prospective customers, customer goodwill and business productivity,
(iii) in the event of termination of the Executive’s employment, the Executive’s experiences and
capabilities are such that the Executive can obtain gainful employment without violating this
Agreement and without the Executive incurring undue hardship, and (iv) based on the benefits stated
in Sections 3 and 5.1 hereof and other new consideration as recited in Section 5.3(a) hereof,
including, without limitation, the disclosure and use of Confidential Information, the restrictive
covenants of this Section 5.3, as applicable according to their terms, shall remain in full force
and effect even in the event of the Executive’s involuntary termination from employment, with or
without Cause.



               5.4 Definitions. For purposes of this Agreement, the following terms shall have the
following meanings:



                    (a) An “Affiliate” of any specified Person means any other Person, whether now or
hereafter existing, directly or indirectly controlling or controlled by, or under direct or
indirect common control with, such specified Person. For purposes hereof, “control” or any other
form thereof, when used with respect to any Person, means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms “controlling” and “controlled” shall have
meanings correlative to the foregoing.



16









 





                    (b) “Company Parties” means the Company, and its direct and indirect parents,
subsidiaries and Affiliates, and their successors in interest.



                    (c) “Competing Business” means any business that competes with any of the Company
Parties, including, without limitation, any enterprise that engages in, owns or operates businesses
that market, sell, distribute, manufacture or otherwise are involved in the nutritional supplements
industry



                    (d) Confidential Information.



                         (i) Definition. “Confidential Information” means any and all material,
information, ideas, inventions, formulae, patterns, compilations, programs, devices, methods,
techniques, processes, know how, plans (marketing, business, strategic, technical or otherwise),
arrangements, pricing and other data of or relating to any of the Company Parties (as well as their
customers and/or vendors) that is confidential, proprietary or trade secret (A) by its nature, (B)
based on how it is treated or designated by a Company Party, (C) because the disclosure of which
would have a material adverse effect on the business or planned business of any of the Company
Parties and/or (D) as a matter of law.



                         (ii) Exclusions. Confidential Information does not include material, data, and/or
information (A) that any Company Party has voluntarily placed in the public domain, (B) that has
been lawfully and independently developed and publicly disclosed by third parties, (C) that
constitutes the general non-specialized knowledge and skills gained by the Executive during the
Employment Period or (D) that otherwise enters the public domain through lawful means;
provided, however, that the unauthorized appropriation, use or disclosure of
Confidential Information by the Executive, directly or indirectly, shall not affect the protection
and relief afforded by this Agreement regarding such information.



                         (iii) Inclusions. Confidential Information includes, without limitation, the following
information (including without limitation, compilations or collections of information) relating or
belonging to any Company Party (as well as their customers and/or vendors) and created, prepared,
accessed, used or reviewed by the Executive during or after the Employment Period: (1) product and
manufacturing information, such as ingredients, combinations of ingredients and manufacturing
processes; (2) scientific and technical information, such as research and development, tests and
test results, formulas and formulations and studies and analysis; (3) financial and cost
information, such as operating and production costs, costs of goods sold, costs of supplies and
manufacturing materials, non-public financial statements and reports, profit and loss information,
margin information and financial performance information; (4) customer related information, such as
customer related contracts, engagement and scope of work letters, proposals and presentations,
customer related contacts, lists, identities, and prospects, customer practices, plans, histories,
requirements and needs, customer related price information and formulae and information obtained
from customers concerning their products, businesses or equipment specifications; (5) vendor and
supplier related information, such as the identities, practices, history or services of any vendors
or suppliers and vendor or supplier contacts; (6) sales, marketing and price information, such as
marketing and sales programs and related data, sales and marketing strategies and plans, sales and
marketing procedures and processes, pricing methods, practices and techniques and pricing



17









 







schedules and lists; (7) database, software, and other computer related information, such as
computer programs, data, compilations of information and records, software and computer files,
presentation software and computer-stored or backed-up information including e-mails, databases,
word processed documents, spreadsheets, notes, schedules, task lists, images and video; (8)
employee-related information, such as lists or directories identifying employees, representatives
and contractors, and information regarding the competencies (knowledge, skill, experience),
compensation and needs of employees, representatives and contractors and training methods; and (9)
business- and operation-related information, such as operating methods, procedures, techniques,
practices and processes, information about acquisitions, corporate or business opportunities,
information about partners and potential investors, strategies, projections and related documents,
contracts and licenses and business records, files, equipment, notebooks, documents, memoranda,
reports, notes, sample books, correspondence, lists and other written and graphic business records.



                    (e) “Misappropriate”, or any form thereof, means:



                         (i) the acquisition of any Confidential Information by a Person who knows or has reason to
know that the Confidential Information was acquired by theft, bribery, misrepresentation, breach or
inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other
means (each, an “Improper Means”); or



                         (ii) the disclosure or use of any Confidential Information without the express consent of the
Company by a Person who (A) used Improper Means to acquire knowledge of the Confidential
Information; or (B) at the time of disclosure or use, knew or had reason to know that his or her
knowledge of the Confidential Information was (x) derived from or through a Person who had utilized
Improper Means to acquire it, (y) acquired under circumstances giving rise to a duty to maintain
its secrecy or limit its use, or (z) derived from or through a Person who owed a duty to the
Company to maintain its secrecy or limit its use; or (C) before a material change of his or her
position, knew or had reason to know that it was a Confidential Information and that knowledge of
it had been acquired by accident or mistake.



                    (f) “Person” means any individual, corporation, partnership, limited liability
company, joint venture, association, business trust, joint-stock company, estate, trust,
unincorporated organization, government or other agency or political subdivision thereof or any
other legal or commercial entity.



                    (g) “Restricted Period” means the longer of (i) twelve (12) months after the date of
termination of employment (the Executive’s last day of work for the Company) or (ii) the period
during which the Executive is receiving payments from the Company pursuant to Section 4 hereof.



                    (h) “Work Product” means all patents and patent applications, all inventions,
innovations, improvements, developments, methods, designs, analyses, drawings, reports, creative
works, discoveries, software, computer programs, modifications, enhancements, know-how,
formulations, concepts and ideas, and all similar or related information (in each case whether or
not patentable), all copyrights and copyrightable works, all trade secrets, confidential



18









 







information, and all other intellectual property and intellectual property rights that are
conceived, reduced to practice, developed or made by the Executive either alone or with others in
the course of employment with the Company (including employment prior to the date of this
Agreement).



               5.5 Remedies. Because the Executive’s services are unique and because the Executive
has access to Confidential Information, the Executive acknowledges and agrees that if the Executive
breaches any of the provisions of Section 5 hereof, the Company may suffer immediate and
irreparable harm for which monetary damages alone will not be a sufficient remedy. The restrictive
covenants stated in Section 5 hereof are without prejudice to the Company’s rights and causes of
action at law.



               5.6 Interpretation; Severability.



                    (a) The Executive has carefully considered the possible effects on the Executive of the
covenants not to compete, the confidentiality provisions and the other obligations contained in
this Agreement, and the Executive recognizes that the Company has made every effort to limit the
restrictions placed upon the Executive to those that are reasonable and necessary to protect the
Company’s legitimate business interests.



                    (b) The Executive acknowledges and agrees that the restrictive covenants set forth in this
Agreement are reasonable and necessary in order to protect the Company’s valid business interests.
It is the intention of the parties hereto that the covenants, provisions and agreements contained
herein shall be enforceable to the fullest extent allowed by law. If any covenant, provision or
agreement contained herein is found by a court having jurisdiction to be unreasonable in duration,
scope or character of restrictions, or otherwise to be unenforceable, such covenant, provision or
agreement shall not be rendered unenforceable thereby, but rather the duration, scope or character
of restrictions of such covenant, provision or agreement shall be deemed reduced or modified with
retroactive effect to render such covenant, provision or agreement reasonable or otherwise
enforceable (as the case may be), and such covenant, provision or agreement shall be enforced as
modified. If the court having jurisdiction will not review the covenant, provision or agreement,
the parties hereto shall mutually agree to a revision having an effect as close as permitted by
applicable law to the provision declared unenforceable. The parties hereto agree that if a court
having jurisdiction determines, despite the express intent of the parties hereto, that any portion
of the covenants, provisions or agreements contained herein are not enforceable, the remaining
covenants, provisions and agreements herein shall be valid and enforceable. Moreover, to the
extent that any provision is declared unenforceable, the Company shall have any and all rights
under applicable statutes or common law to enforce its rights with respect to any and all
Confidential Information or unfair competition by the Executive.



          6. Miscellaneous.




               6.1 Public Statements.



                    (a) Media Nondisclosure. The Executive agrees that during the Employment Period or at
any time thereafter, except as may be authorized in writing by the Company, the Executive will not
directly or indirectly disclose or release to the Media any



19









 




information concerning or relating to any aspect of the Executive’s employment or termination
from employment with the Company and/or any aspect of any dispute that is the subject of this
Agreement. For the purposes of this Agreement, the term “Media” includes, without
limitation, any news organization, station, publication, show, website, web log (blog), bulletin
board, chat room and/or program (past, present and/or future), whether published through the means
of print, radio, television and/or the Internet or otherwise, and any member, representative, agent
and/or employee of the same.




                    (b) Non-Disparagement. The Executive agrees that during the Employment Period or at
any time thereafter, the Executive will not make any statements, comments or communications in any
form, oral, written or electronic to any Media or any customer, client or supplier of the Company
or any of its Affiliates, which would constitute libel, slander or disparagement of the Company or
any of its Affiliates, including, without limitation, any such statements, comments or
communications that criticize, ridicule or are derogatory to the Company or any of its Affiliates;
provided, however, that the terms of this Section 6.1(b) shall not apply to
communications between the Executive and, as applicable, the Executive’s attorneys or other persons
with whom communications would be subject to a claim of privilege existing under common law,
statute or rule of procedure. The Executive further agrees that the Executive will not in any way
solicit any such statements, comments or communications from others.



               6.2 ARBITRATION. SUBJECT TO THE RIGHTS UNDER SECTION 6.3 HEREOF TO SEEK INJUNCTIVE OR
OTHER EQUITABLE RELIEF, BINDING ARBITRATION SHALL BE THE EXCLUSIVE REMEDY FOR ANY AND ALL DISPUTES,
CLAIMS, OR CONTROVERSIES, WHETHER STATUTORY, CONTRACTUAL OR OTHERWISE, BETWEEN THE PARTIES HERETO
ARISING UNDER OR RELATING TO THIS AGREEMENT OR THE EXECUTIVE’S EMPLOYMENT BY OR TERMINATION FROM
THE COMPANY (INCLUDING, BUT NOT LIMITED TO, THE AMOUNT OF DAMAGES, OR THE CALCULATION OF ANY BONUS
OR OTHER AMOUNT OR BENEFIT DUE) (COLLECTIVELY, “DISPUTES”). THE PARTIES EACH WAIVE THE
RIGHT TO A JURY TRIAL AND WAIVE THE RIGHT TO ADJUDICATE THEIR DISPUTES UNDER THIS AGREEMENT OUTSIDE
THE ARBITRATION FORUM PROVIDED FOR IN THIS AGREEMENT, EXCEPT AS OTHERWISE PROVIDED IN THIS
AGREEMENT. In the event either party provides a notice of arbitration of any dispute to the other
party, the parties agree to submit that dispute to a single arbitrator selected from a panel of
arbitrators of JAMS located in Pittsburgh, Pennsylvania. The arbitration will be governed by the
JAMS Comprehensive Arbitration Rules and Procedures in effect at the time the arbitration is
commenced. If for any reason JAMS cannot serve as the arbitration administrator, the Company may
select an alternative arbitration administrator such as the American Arbitration Association, to
serve under the terms of this Agreement.



                    (a) VENUE. THE PARTIES STIPULATE AND AGREE THAT THE EXCLUSIVE VENUE OF ANY SUCH
ARBITRATION PROCEEDING (AND OF ANY OTHER PROCEEDING, INCLUDING ANY COURT PROCEEDING, UNDER THIS
AGREEMENT) SHALL BE ALLEGHENY COUNTY, PENNSYLVANIA (THE “AGREED VENUE”).



20









 





                    (b) Authority and Decision. The arbitrator shall have the authority to award the same
damages and other relief that a court could award. The arbitrator shall issue a reasoned award
explaining the decision and any damages awarded. The arbitrator’s decision will be final and
binding upon the parties and enforceable by a court of competent jurisdiction. The parties will
abide by and perform any award rendered by the arbitrator. In rendering the award, the arbitrator
shall state the reasons therefor, including (without limitation) any computations of actual damages
or offsets, if applicable.



                    (c) Fees and Costs. In the event of arbitration under the terms of this Agreement,
the fees charged by JAMS or other arbitration administrator and the arbitrator shall be borne by
the parties as determined by the arbitrator, except for any initial registration fee, which the
parties shall bear equally. Otherwise, the parties shall each bear their own costs, expenses and
attorneys’ fees incurred in arbitration; provided, however, that the prevailing
party shall be entitled to recover and have awarded its attorneys’ fees, court costs, arbitration
expenses, and its portion of the fees and costs charged by JAMS or other arbitration administrator,
regardless of which party initiated the proceedings, in addition to any other relief to which it
may be entitled.



                    (d) Limited Scope. The following are excluded from binding arbitration under this
Agreement: claims for workers’ compensation benefits or unemployment benefits; replevin; and
claims for which a binding arbitration agreement is invalid as a matter of law.



               6.3 Injunctive Relief. The parties hereto may seek injunctive relief in arbitration;
provided, however, that as an exception to the arbitration agreement set forth
Section 6.2 hereof, the parties, in addition to all other available remedies, shall each have the
right to initiate an action in any court of competent jurisdiction in order to request injunctive
or other equitable relief regarding the terms of Sections 5 or 6.2 hereof. The exclusive venue of
any such proceeding shall be in the Agreed Venue. The parties agree (a) to submit to the
jurisdiction of any competent court in the Agreed Venue, (b) to waive any and all defenses the
Executive may have on the grounds of lack of jurisdiction of such court and (c) that neither party
shall be required to post any bond, undertaking or other financial deposit or guarantee in seeking
or obtaining such equitable relief. Evidence adduced in any such proceeding for an injunction may
be used in arbitration as well. The existence of this right shall not preclude or otherwise limit
the applicability or exercise of any other rights and remedies that a party hereto may have at law
or in equity.



               6.4 Settlement of Existing Rights. In exchange for the other terms of this Agreement,
the Executive acknowledges and agrees that: (a) the Executive’s entry into this Agreement is a
condition of employment and/or continued employment with the Company, as applicable; (b) except as
otherwise provided herein, this Agreement will replace any existing employment agreement between
the parties and thereby act as a novation, if applicable; (c) the Executive is being provided with
access to Confidential Information, including, without limitation, proprietary trade secrets of one
or more Company Parties, to which the Executive has not previously had access; (d) all Company
inventions and intellectual property developed by the Executive during any past employment with the
Company and all goodwill developed with the Company’s clients, customers and other business
contacts by the Executive during any past



21









 







employment with Company, as applicable, is the exclusive property of the Company; and (e) all
Confidential Information and/or specialized training accessed, created, received or utilized by the
Executive during any past employment with Company, as applicable, will be subject to the
restrictions on Confidential Information described in this Agreement, whether previously so agreed
or not.



               6.5 Entire Agreement; Waiver. This Agreement contains the entire agreement between
the Executive and the Company with respect to the subject matter hereof, and supersedes any and all
prior understandings or agreements, whether written or oral. No modification or addition hereto or
waiver or cancellation of any provision hereof shall be valid except by a writing signed by the
party to be charged therewith. No delay on the part of any party to this Agreement in exercising
any right or privilege provided hereunder or by law shall impair, prejudice or constitute a waiver
of such right or privilege.



               6.6 Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the Commonwealth of Pennsylvania, without regard to principles of conflict of
laws.



               6.7 Successors and Assigns; Binding Agreement. The rights and obligations of the
parties under this Agreement shall be binding upon and inure to the benefit of the parties hereto
and their heirs, personal representatives, successors and permitted assigns. This Agreement is a
personal contract, and, except as specifically set forth herein, the rights and interests of the
Executive herein may not be sold, transferred, assigned, pledged or hypothecated by any party
without the prior written consent of the others. As used herein, the term “successor” as it
relates to the Company, shall include, but not be limited to, any successor by way of merger,
consolidation, or sale of all or substantially all of such Person’s assets or equity interests.



               6.8 Representation by Counsel; Independent Judgment. Each of the parties hereto
acknowledges that (a) it or the Executive has read this Agreement in its entirety and understands
all of its terms and conditions, (b) it or the Executive has had the opportunity to consult with
any individuals of its or the Executive’s choice regarding its or the Executive’s agreement to the
provisions contained herein, including legal counsel of its or the Executive’s choice, and any
decision not to was the Executive’s or its alone, and (c) it or the Executive is entering into this
Agreement of its or the Executive’s own free will, without coercion from any source, based upon its
or the Executive’s own independent judgment.



               6.9 Interpretation. The parties and their respective legal counsel actively
participated in the negotiation and drafting of this Agreement, and in the event of any ambiguity
or mistake herein, or any dispute among the parties with respect to the provisions hereto, no
provision of this Agreement shall be construed unfavorably against any of the parties on the ground
that the Executive, it, or the Executive’s or its counsel was the drafter thereof.



               6.10 Survival. The provisions of Sections 5 and 6 hereof shall survive the
termination of this Agreement.



22









 





               6.11 Notices. All notices and communications hereunder shall be in writing and shall
be deemed properly given and effective when received, if sent by facsimile or telecopy, or by
postage prepaid by registered or certified mail, return receipt requested, or by other delivery
service which provides evidence of delivery, as follows:


If to the Company or GNC, to:



General Nutrition Centers, Inc.

300 Sixth Avenue

Pittsburgh, PA 15222

Attn: Board of Directors




          with a copy (which shall not constitute notice) to:



Gardere Wynne Sewell LLP

1601 Elm Street, Suite 3000

Dallas, Texas 75201-4761

Attention: Ronald M. Gaswirth, Esq.

Telephone: (214) 999-4601

Facsimile: (214) 999-3601

E-mail: rgaswirth@gardere.com



If to the Executive, to:



Robert J. DiNicola

The most recent address of the Executive on file with the Company



or to such other address as one party may provide in writing to the other party from time to time.




               6.12 Counterparts. This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original and all of which together shall constitute one and the same
instrument. Facsimile transmission of any signed original document or retransmission of any signed
facsimile transmission will be deemed the same as delivery of an original. At the request of any
party, the parties will confirm facsimile transmission by signing a duplicate original document.



               6.13 Captions. Paragraph headings are for convenience only and shall not be
considered a part of this Agreement.



               6.14 No Third Party Beneficiary Rights. Except as otherwise provided in this
Agreement, no entity shall have any right to enforce any provision of this Agreement, even if
indirectly benefited by it.



               6.15 Withholding. Any payments provided for hereunder shall be paid net of any
applicable withholding required under Federal, state or local law and any additional withholding to
which Executive has agreed.



[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]




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          IN WITNESS WHEREOF, the parties have duly executed this Agreement, intending it as a document
under seal, on the Execution Date to be effective for all purposes as of the Effective Date.




	 	 	 	 	 	 	 
	WITNESS/
	 	 	 	 	 	 
	ATTEST:

	 	 	 	 	 	GENERAL NUTRITION CENTERS, INC.
	 
	 	 	 	 	 	 
	/s/ Sheila B. Kiggins

	 	 	 	By:
	 	      /s/ Joseph Fortunato
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Name: Joseph Fortunato
	 

	 	 	 	 	 	Title: President and Chief Executive Officer
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	GNC CORPORATION
	 
	 	 	 	 	 	 
	/s/ Sheila B. Kiggins

	 	 	 	By:
	 	     /s/ Joseph Fortunato
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Name: Joseph Fortunato
	 

	 	 	 	 	 	Title: President and Chief Executive Officer
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	EXECUTIVE
	 
	 	 	 	 	 	 
	/s/ Randall G. Ray 

	 	 	 	 	 	     /s/ Robert J. DiNicola
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Name: Robert J. DiNicola




Signature Page



 









 








EXHIBIT A




Definition of Change of Control




     “Change of Control” means:



     (1) any event occurs the result of which is that any “Person,” as such term is used in
Sections 13(d) and 14(d) of the Exchange Act, other than one or more Permitted Holders or their
Related Parties, becomes the beneficial owner, as defined in Rules l3d-3 and l3d-5 under the
Exchange Act (except that a Person shall be deemed to have “beneficial ownership” of all shares
that any such Person has the right to acquire within one year) directly or indirectly, of more than
50% of the Voting Stock of GNC or any successor company, including, without limitation, through a
merger or consolidation or purchase of Voting Stock of GNC; provided that the Permitted Holders or
their Related Parties do not have the right or ability by voting power, contract or otherwise to
elect or designate for election a majority of the GNC Board of Directors; provided further that the
transfer of 100% of the Voting Stock of GNC to a Person that has an ownership structure identical
to that of GNC prior to such transfer, such that GNC becomes a wholly owned Subsidiary of such
Person, shall not be treated as a Change of Control for purposes of the indenture;



     (2) after an initial public offering of Capital Stock of GNC, during any period of two (2)
consecutive years, individuals who at the beginning of such period constituted the GNC Board of
Directors, together with any new directors whose election by such GNC Board of Directors or whose
nomination for election by the stockholders of GNC was approved by a vote of a majority of the
directors of GNC then still in office who were either directors at the beginning of such period or
whose election or nomination for election was previously so approved, cease for any reason to
constitute a majority of the GNC Board of Directors then in office;



     (3) the sale, lease, transfer, conveyance or other disposition, in one or a series of related
transactions other than a merger or consolidation, of all or substantially all of the assets of GNC
and its Subsidiaries taken as a whole to any Person or group of related Persons other than a
Permitted Holder or a Related Party of a Permitted Holder; or



     (4) the adoption of a plan relating to the liquidation or dissolution of GNC.



     For purposes of this definition, the following terms shall have the meanings set forth below:



     An “Affiliate” of any specified Person means any other Person, whether now or hereafter
existing, directly or indirectly controlling or controlled by, or under direct or indirect common
control with, such specified Person. For purposes hereof, “control” or any other form thereof,
when used with respect to any Person, means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms “controlling” and “controlled” shall have meanings correlative to the
foregoing.



     “Apollo” means Apollo Management V, L.P. and its Affiliates or any entity controlled



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thereby or any of the partners thereof.



     “Capital Stock” of any Person means any and all shares, interests, rights to purchase,
warrants, options, participations or other equivalents of or interests in, however designated,
equity of such Person, including any Preferred Stock, but excluding any debt securities convertible
into such equity.



     “Exchange Act” means the Securities Exchange Act of 1934, as amended.



     “GNC” means GNC Corporation, a Delaware corporation.



     “GNC Board of Directors” means the Board of Directors of GNC or any committee thereof duly
authorized to act on behalf of such Board of Directors.



     “Permitted Holder” means Apollo.



     “Person” means any individual, corporation, partnership, limited liability company, joint
venture, association, business trust, joint-stock company, estate, trust, unincorporated
organization, government or other agency or political subdivision thereof or any other legal or
commercial entity.



     “Preferred Stock” as applied to the Capital Stock of any corporation means Capital Stock of
any class or classes, however designated, that is preferred as to the payment of dividends, or as
to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of Capital Stock of any other class of such corporation.



     “Related Party” means:




     (1) any controlling stockholder, 80% (or more) owned Subsidiary, or immediate family
member (in the case of an individual) of any Permitted Holder; or




     (2) 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 the immediately preceding clause (1).



     “Subsidiary” means, with respect to any specified Person:




     (1) any corporation, association or other business entity of which more than 50% of the
total voting power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency and after giving effect to any voting agreement or stockholders’ agreement
that effectively transfers voting power) to vote in the election of directors, managers or
trustees of the corporation, association or other business entity is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries
of that Person (or a combination thereof); and



A-2









 






     (2) any partnership (a) the sole general partner or the managing general partner of
which is such Person or a Subsidiary of such Person or (b) the only general partners of
which are that Person or one or more Subsidiaries of that Person (or any combination
thereof).



     “Voting Stock” of an entity means all classes of Capital Stock of such entity then outstanding
and normally entitled to vote in the election of directors or all interests in such entity with the
ability to control the management or actions of such entity.



     Notwithstanding anything to the contrary in this Exhibit A, the definition of Change of
Control shall be interpreted consistently with the definition of “Change of Control” contained in
Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and regulations
and guidance issued by the Internal Revenue Service under Section 409A of the Code, including IRS
Notice 2005-1.




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