GNC 2012 Annual Report Download - page 131

Agreement, to the extent that Indemnitee has been successful on the merits or otherwise in defense of any or all Claims relating in
whole or in part to an Indemnifiable Event or in defense of any issue or matter therein, including dismissal without
prejudice, Indemnitee shall be indemnified against all Expenses incurred in connection therewith.
7. Contribution.
(a) Contribution Payment. To the extent the indemnification provided for under any provision of this
Agreement is determined (in the manner hereinabove provided) not to be permitted under applicable law, the Company, in lieu of
indemnifying Indemnitee, shall, to the extent permitted by law, contribute to the amount of any and all Expenses, judgments, fines,
penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in
respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of a Claim by reason of (or arising in part out of)
an Indemnifiable Event incurred or paid by Indemnitee for which such Indemnification is not permitted. The amount the Company
contributes shall be in such proportion as is appropriate to reflect the relative fault of Indemnitee, on the one hand, and of the
Company and any and all other parties (including officers and directors of the Company other than Indemnitee) who may be at fault
(collectively, including the Company, the "Third Parties"), on the other hand.
(b) Relative Fault. The relative fault of the Third Parties and the Indemnitee shall be determined (i) by
reference to the relative fault of Indemnitee as determined by the court or other governmental agency or (ii) to the extent such court or
other governmental agency does not apportion relative fault, by the Reviewing Party after giving effect to, among other things, the
relative intent, knowledge, access to information, and opportunity to prevent or correct the relevant events, of each party, and other
relevant equitable considerations. The Company and Indemnitee agree that it would not be just and equitable if contribution were
determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations
referred to in this Section 7(b).
8. Burden of Proof. In connection with any determination by the Reviewing Party or otherwise as to whether
Indemnitee is entitled to be indemnified or to contribution hereunder the burden of proof shall be on the Company to establish that
Indemnitee is not so entitled.
9. No Presumptions. For purposes of this Agreement, the termination or conclusion of any claim, action, suit or
proceeding, by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere,
or its equivalent, shall not create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular
belief or that a court has determined that indemnification is not permitted by applicable law. In addition, neither the failure of the
Reviewing Party to have made a determination as to whether Indemnitee has met any particular standard of conduct or had any
particular belief, nor an actual determination by the Reviewing Party that Indemnitee has not met such standard of conduct or did not
have such belief, prior to the commencement of legal proceedings by Indemnitee to secure a judicial determination that Indemnitee
should be indemnified under applicable law shall be a defense to Indemnitee's claim or create a presumption that Indemnitee has not
met any particular standard of conduct or did not have any particular belief.
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10. Nonexclusivity, Etc. The rights of the Indemnitee hereunder shall be in addition to any other rights Indemnitee may
have under the Company's By-Laws or the Delaware General Corporation Law or otherwise. To the extent that a change in the
Delaware General Corporation Law (whether by statute or judicial decision) permits greater indemnification by agreement than would
be afforded currently under the Company's By-Laws and this Agreement, it is the intent of the parties hereto that Indemnitee shall
enjoy by this Agreement the greater benefits so afforded by such change.
11. Liability Insurance. To the extent the Company maintains an insurance policy or policies providing directors' and
officers' liability insurance, Indemnitee shall be covered by such policy or policies, in accordance with its or their terms, to the
maximum extent of the coverage available for any Company director or officer.
12. Period of Limitations. No legal action shall be brought and no cause of action shall be asserted by or in the right of
the Company against Indemnitee, Indemnitee's spouse, heirs, executors or personal or legal representatives after the expiration of two
years from the date of the occurrence of the events leading to such cause of action, and any claim or cause of action of the Company
shall be extinguished and deemed released unless asserted by the timely filing of a legal action within such two-year period; provided,
that if any shorter period of limitations is otherwise applicable to any such cause of action such shorter period shall govern.
13. Amendments, Etc. No supplement, modification or amendment of this Agreement shall be binding unless executed
in writing by both of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a
waiver of any other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.
14. Subrogation. In the event of payment under this Agreement, the Company shall be subrogated to the extent of such
payment to all of the rights of recovery of Indemnitee, who shall execute all papers required and shall do everything that may be
necessary to secure such rights, including the execution of such documents necessary to enable the Company effectively to bring suit
to enforce such rights.
15. No Duplication of Payments. The Company shall not be liable under this Agreement to make any payment in
connection with any Claim made against Indemnitee to the extent Indemnitee has otherwise actually received payment (under any
insurance policy, By-Law or otherwise) of the amounts otherwise indemnifiable hereunder.