GNC 2008 Annual Report Download - page 234

Group, of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of shares or other securities (as defined in
Section 3(a)(10) of the Exchange Act) representing 50% or more of either (1) the Holdings Common Stock or (2) the combined voting power of the securities
of Holdings entitled to vote generally in the election of directors of the Holdings Board (the "Holdings Voting Securities"), in each case calculated on a fully
diluted basis after giving effect to such acquisition; provided, however, that none of the following acquisitions shall constitute a Change in Control as defined
in this clause (i): (A) any acquisition by any Person or group of Persons consisting solely of stockholders of Holdings on the Effective Date, (B) any
acquisition so long as such acquisition does not result in any Person (other than any stockholder or stockholders of Holdings on the Effective Date),
beneficially owning shares or securities representing 50% or more of either the Holdings Common Stock or Holdings Voting Securities, (C) any acquisition,
after which the Permitted Holders or their Related Parties have the right or ability by voting power, contract or otherwise to elect or designate for election a
majority of the Holdings Board; or
(ii) any election has occurred of Persons to the Holdings Board that causes two-thirds of the Holdings Board to consist of Persons other than
(A) Persons who were members of the Holdings Board on the Effective Date and (B) Persons who were nominated for elections as members of the Holdings
Board at a time when two-thirds of the Holdings Board consisted of Persons who were members of the Holdings Board on the Effective Date; provided,
however, that any Person nominated for election by a Holdings Board at least two-thirds of whom constituted Persons described in clauses (A) or (B) or by
Persons who were themselves nominated by such Holdings Board shall, for this purpose, be deemed to have been nominated by a Holdings Board composed
of Persons described in clause (A); or
(iii) approval by the stockholders of Holdings of (A) a complete liquidation or dissolution of Holdings or Centers or (B) the sale or other disposition
(other than a merger or consolidation) of all or substantially all of the assets of Holdings and its subsidiaries, taken as a whole, to any Person other than a
Permitted Holder or a Related Party of a Permitted Holder; or
(iv) Centers ceases to be a direct or indirect wholly owned subsidiary of Holdings.
For purposes of this Section 4.3(i), the following terms shall have the following meanings:
(1) "Permitted Group" means any group of investors that is deemed to be a "person" (as that term is used in Section 13(d) of the Exchange Act) at any
time prior to Holdings' initial public offering of common stock, solely by virtue of the Stockholders Agreement by and among Holdings, Ares, OTPP, the
Executive, and the other parties thereto, as the same may be amended, modified or supplemented from time to time.
(2) "Permitted Holder" means Ares, Ares Management, Inc., Ares Management LLC and OTPP.
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