First Amendment to Stalking Horse Agreement, by and among GNC Holdings, Inc., on behalf of itself and the other Debtors, and Harbin, dated August 15, 2020
STALKING HORSE AGREEMENT
This First Amendment to Stalking Horse Agreement (this Amendment), is made and entered into as of August 14, 2020 by and among GNC Holdings, Inc., a Delaware corporation (the Seller), on behalf of itself and the other Selling Entities, and Harbin Pharmaceutical Group Holding Co., Ltd., a corporation incorporated in the Peoples Republic of China (the Buyer, together with the Seller and the other Selling Entities, the Parties and each, a Party), and amends the Stalking Horse Agreement, dated as of August 7, 2020 (the Agreement), by and among the Selling Entities and the Buyer. Capitalized terms used herein and not otherwise defined herein have the meanings ascribed to such terms in the Agreement.
WHEREAS, the Parties, in accordance with Section 10.1 of the Agreement, wish to amend the
Agreement as set forth in this Amendment.
NOW, THEREFORE, for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
Amendment to Section 1.1. Section 1.1 of the Agreement is hereby amended by adding the following definition:
Bidding Protections Order means the Bankruptcy Courts Order Approving (I) The Debtors Entry into Stalking Horse Agreement and Related Bid Protections and (II) Granting Related Relief.
Amendment to Section 7.14(a). Section 7.14(a) of the Agreement is hereby amended by (x) adding the double-underlined bolded text (indicated textually in the same manner as the following example: double-underlined bolded text) and (y) deleting the bolded text with strikethrough (indicated textually in the same manner as the following example:
(a) If (i) (x) an Auction takes place and the Buyer is not identified as the Successful Bidder, (y) at the time the Successful Bidder is identified, the Buyer is not in material breach of this Agreement such that the conditions in Section 8.3(a) and Section 8.3(b) would not then be satisfied, and (z) a sale of all or substantially all of the Purchased Assets to a Person (a Third-Party) other than GNC Newco, the Buyer or an Affiliate of the Buyer (a Third-Party Sale) is consummated or (ii) a stand-alone Chapter 11 plan of reorganization, including the Restructuring, under which the Selling Entities secured lenders receive a material portion of the equity and/or debt in the reorganized Seller (a Restructuring Transaction) is consummated, then, in each case, the Buyer will be entitled to receive, without further order of the Bankruptcy Court or the Canadian Court, from the proceeds of such Third-Party Sale, (A) an amount in cash equal to $22,800,000 (the Termination Fee) plus (B) the amount of the Buyers reasonable documented out-of-pocket expenses (including expenses of outside counsel, accountants and financial advisers) incurred in connection with the Buyers evaluation, consideration and negotiation of a possible transaction with the Seller and in connection with the transactions contemplated hereby, up to a maximum amount of $3 million (the Expense Reimbursement and together with the Termination Fee, the Termination Payment); provided, that the Termination Payment shall not be payable to the Buyer in the event a Restructuring Transaction is consummated following the termination of this Agreement (I) by the Seller pursuant to Section 9.1(f), Section 9.1(i) or Section 9.1(k), (II) by the
Seller or Buyer pursuant to Section 9.1(a),
or Section 9.1(j) , or Section 9.1(l), (III) pursuant to any other provision of Section 9.1 at a time when the Seller would have been permitted to terminate this Agreement pursuant to Section 9.1(f), Section 9.1(i) or Section 9.1(k) or (IV) by the Seller at a time when the Deposit shall have become payable to Seller as a result of a Buyer Default Termination; provided, further, that in no event shall Buyer be entitled to receive Expense Reimbursement on more than one occasion, and to the extent Buyer shall have received any Expense Reimbursement pursuant to Section 7.14(b) prior to the payment of any Termination Payment pursuant to this Section 7.14(a), such Termination Payment shall be reduced by the amount of Expense Reimbursement previously paid.
Amendment to Section 9.1. Section 9.1 of the Agreement is hereby amended by adding a new Section 9.1(l) immediately after Section 9.1(k) and before the proviso at the end of Section 9.1, as follows:
(l) the Buyer or the Seller, if (i) the Bidding Protections Order has not been entered by the Bankruptcy Court by August 20, 2020 or (ii) following the entry of the Bidding Protections Order, the Bidding Protections Order ceases to be in full force and effect, or is revoked, rescinded, vacated, reversed or stayed, or otherwise rendered ineffective by a court of competent jurisdiction;
Effect of Amendment. Expect as expressly amended by the foregoing, all of the terms and conditions of the Agreement shall remain unchanged and in full force and effect. Whenever the Agreement is referred to in the Agreement or in any other agreements, documents and instruments, such reference shall be deemed to be to the Agreement as amended by this Amendment. Notwithstanding the foregoing, references to the date of the Agreement, and references to the date hereof and the date of this Agreement or words of like import shall continue to refer to August 7, 2020.
Counterparts. This Amendment may be executed by facsimile or other electronic signature (including portable document format) and in one or more counterparts, and by the different Parties in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement, and which shall become effective when one or more counterparts have been signed by each of the Parties and delivered (by facsimile, electronic mail or otherwise) to the other Parties.
Miscellaneous. The terms set forth in each of Section 10.1 (Amendment and Modification), Section 10.3 (Notices), Section 10.4 (Assignment), Section 10.5 (Severability), Section 10.6 (Governing Law), Section 10.9 (Submission to Jurisdiction; WAIVER OF JURY TRIAL), Section 10.12 (Entire Agreement), Section 10.13 (Remedies) and Section 10.17 (Mutual Drafting) of the Agreement are incorporated herein by reference mutatis mutandis as if set forth herein.
[Signature pages follows]
IN WITNESS WHEREOF, the Parties hereto have caused this First Amendment to the Stalking Horse Agreement to be executed as of the date first written above.
|GNC HOLDINGS, INC., on behalf of itself and the other Selling Entities|
|Name:||Tricia K. Tolivar|
|Title:||Executive Vice President and Chief Financial Officer|
[Signature Page to First Amendment to Stalking Horse Agreement]
|HARBIN PHARMACEUTICAL GROUP HOLDING CO, LTD.|
|Name:||Yong Kai Wong|
[Signature Page to First Amendment to Stalking Horse Agreement]