GNC 2008 Annual Report Download - page 192

issuing any securities pursuant to this Section 4.05 and shall not be in violation of the provisions hereof by reason of such compliance; provided, that it uses
commercially reasonable efforts to so comply.
(d) The terms "Stockholder" and "Electing Stockholder", as used in this Section 4.05 in the case of Ares, shall mean Ares and the Co-Investors as a
group; provided, that for purposes of determining whether a Stockholder is an accredited investor within the meaning of Regulation D under the 1933 Act,
each of Ares and the Co-Investors shall be treated as separate Stockholders.
SECTION 4.06. Board of Directors and Board Veto Rights.
(a) Board of Directors. At each annual or special stockholders meeting called for the election of directors, and whenever the stockholders of the
Company act by written consent with respect to the election of directors, each Stockholder agrees to vote or otherwise give such Stockholder's consent in
respect of all shares of the Capital Stock of the Company (whether now owned or hereafter acquired) owned by such Stockholder, and take all other
appropriate action and the Company shall take all necessary and desirable actions (and, following an Initial Public Offering, as permitted by any applicable
securities exchange or equivalent listing requirements), to cause:
(i) the Bylaws of the Company to provide that the authorized number of directors on the Board shall be nine (provided that if Ares or Teachers
designates, or both Ares and Teachers each designates, an additional independent director as permitted under clause (ii) below, the Bylaws of the Company
shall provide that the authorized number of directors on the Board shall be ten or eleven, as the case may be);
(ii) the election to the Board of:
(1) four directors designated by Ares (or five directors designated by Ares if Ares determines, at its sole option, to designate a fifth director, which
director shall be an independent director) (the "Ares Directors"); provided that if the Ares Investors hold less than 10% of the outstanding Common
Stock, Ares shall have the right to designate only one director and shall not have the right to designate an additional independent director;
(2) four directors designated by Teachers (or five directors designated by Teachers if Teachers determines, at its sole option, to designate a fifth
director, which director shall be an independent director)(the "Teachers Directors"); provided that if the Teachers Investors hold less than 10% of the
outstanding Common Stock, Teachers shall have the right to designate only one director and shall not have the right to designate an additional
independent director; and
(3) the then-current chief executive officer of the Company (the "CEO Director");
all of which persons shall hold office subject to their earlier removal in accordance with clause (iii) below, the Bylaws of the Company and applicable law,
until their respective successors shall have been elected and shall have qualified;
(iii) the removal from the Board of any director elected in accordance with clause (ii) above, with or without cause:
(1) in the case of any Ares Director, upon the written request of Ares;