GNC 2008 Annual Report Download - page 204

of a release from all liability in respect of such claim or litigation. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim
will not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim,
unless in the reasonable judgment of any indemnified party there may be one or more legal or equitable defenses available to such indemnified party which
are in addition to or may conflict with those available to any other of such indemnified parties with respect to such claim, in which event the indemnifying
party shall be obligated to pay the reasonable fees and expenses of such additional counsel or counsels.
(d) Contribution. If for any reason the indemnification provided for in the preceding paragraphs (a) and (b) of this Section 5.05 is unavailable to an
indemnified party as contemplated by the preceding paragraphs (a) and (b) of this Section 5.05 or is insufficient to hold such indemnified party harmless, then
the indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability (i) in such
proportion as is appropriate to reflect the relative benefits received by the indemnified party and the indemnifying party, or (ii) if the allocation provided by
the preceding clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in the
preceding clause (i) but also the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations. The
relative fault of the Company on the one hand and of the sellers of Registrable Securities and any other sellers participating in the registration statement on the
other hand shall be determined by reference to, among other things, whether the untrue or alleged omission to state a material fact relates to information
supplied by the Company or by the sellers of Registrable Securities or other sellers participating in the registration statement and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission. In no event shall the liability of any such Stockholder be
greater in amount than the amount of net proceeds received by such Stockholder upon such sale or the amount for which such indemnifying party would have
been obligated to pay by way of indemnification if the indemnification provided in paragraph (b) of this Section 5.05 had been available.
SECTION 5.06. Holdback Agreements.
(a) Whenever the Company proposes to register any of its equity securities under the 1933 Act in an underwritten offering for its own account (other
than on Form S-4 or S-8 or any similar successor form or another form used for a purpose similar to the intended use of such forms) or is required to use its
reasonable efforts to effect the registration of any Registrable Securities under the 1933 Act pursuant to Section 5.01 or 5.02, each holder of Registrable
Securities agrees by acquisition of such Registrable Securities not to effect any sale or distribution, including any sale pursuant to Rule 144 under the 1933
Act, or to request registration under Section 5.02 of any Registrable Securities for the time period reasonably requested by the managing underwriter for the
underwritten offering; provided, that in no event shall such period exceed 180 days (the "Lock-up Period") after the effective date of the registration statement
relating to such registration, except (i) as part of such registration or (ii) in the case of a private sale or distribution, unless the transferee agrees in writing to
be subject to this Section 5.06. If requested by such managing underwriter, each holder of Registrable Securities agrees to execute a holdback agreement, in
customary form, consistent with the terms of this Section 5.06(a); provided, that the form of the lock-up shall be substantially identical as to each similarly
situated Stockholder; provided, further, that if the Company releases any holder of Registrable Securities from such holdback agreement, it shall similarly
release all other holders of Registrable Securities on a pro rata basis. Notwithstanding the foregoing, no Stockholder shall be subject to a Lock-up Period in
excess of 180 days in any calendar year due to the registration of any Registrable Securities pursuant to Section 5.02.