GNC 2008 Annual Report Download - page 191

each Stockholder may disclose any confidential information that, based on an opinion of such Stockholder's legal counsel, (i) is required by law, regulation or
applicable rules to be disclosed, but only after providing the Company, to the extent practicable and legally permissible, with prior written notice and an
opportunity to limit or eliminate such disclosure or (ii) is necessary to be disclosed in the context of litigation involving such Stockholder, but only after
providing the Company, to the extent practicable and legally permissible, with prior written notice and an opportunity to limit or eliminate such disclosure.
Prior to disclosure of any confidential information in accordance with clause (y) above, such Stockholder must take commercially reasonable efforts to obtain
a commitment from the party or parties to whom such confidential information is disclosed that such party or parties will afford such information confidential
treatment.
SECTION 4.05. Preemptive Notice.
(a) Each time the Company proposes to issue or sell any shares of, or securities convertible into or exercisable or exchangeable for any shares of, its
Capital Stock ("Additional Stock") pursuant to an Eligible Offering, the Company shall deliver a written notice (a "Preemptive Notice") thereof to each
Stockholder that is an accredited investor within the meaning of Regulation D under the 1933 Act at least 20 days prior to the consummation of such Eligible
Offering. The Preemptive Notice shall:
(i) state the Company's bona fide intention to offer such Additional Stock;
(ii) state the number and class of shares of such Additional Stock to be offered;
(iii) state the price and terms upon which it proposes to offer such Additional Stock, including the proposed purchaser and the date of issuances; and
(iv) contain an offer to sell to such Stockholder at the same price and for the same consideration to be paid by purchasers in the Eligible Offering, an
amount sufficient for such Stockholder to maintain its Pro Rata Portion of the Company's Capital Stock prior to the issuance of Capital Stock pursuant to
the Eligible Offering.
(b) For a period of 15 days following the delivery of such Preemptive Notice, such Stockholder shall be entitled, by written notice to the Company, to
elect to purchase all or part of the securities described therein. Upon the expiration of the above-mentioned 15-day period, the Company shall notify each
Stockholder that has elected to purchase securities pursuant to this Section 4.05 (such Stockholder, an "Electing Stockholder") of any securities for which a
Stockholder has elected not to purchase pursuant to such Eligible Offering (the "Remaining Securities"). Upon receipt of such notification, each Electing
Stockholder shall have three days to indicate to the Company its intention to purchase such Electing Stockholder's Pro Rata Portion of the Remaining
Securities. To the extent that elections pursuant to this Section 4.05 shall not be made with respect to any offered securities within such 15-day period, then
the Company shall not be obligated to issue to such Stockholder such securities for which such Stockholder has elected not to purchase. In the event that any
such offer is accepted by any Stockholder, the Company shall sell to such Stockholder, and such Stockholder shall purchase from the Company for the
consideration and on the terms set forth in the Preemptive Notice the securities that such Stockholder has elected to purchase at the same time as the
consummation of the Eligible Offering.
(c) The Stockholders shall in respect of any issuance of securities required to be issued pursuant to this Section 4.05 take all such actions required to
amend the certificate of incorporation of the Company to provide for such increases in the authorized Capital Stock of the Company as may be necessary to
permit such issuance. The Company shall comply with any applicable securities laws before