Fifth Amendment to Stalking Horse Agreement, dated October 7, 2020

Exhibit 10.1

EXECUTION VERSION

FIFTH AMENDMENT

TO

STALKING HORSE AGREEMENT

This Fifth Amendment to Stalking Horse Agreement (this “Amendment”), is made and entered into as of October 7, 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 People’s 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, by and among the Selling Entities and the Buyer, as amended by that certain First Amendment dated as of August 15, 2020, that certain Second Amendment dated as of August 19, 2020, that certain Third Amendment dated as of September 8, 2020 and that certain Fourth Amendment dated as of September 17, 2020 (collectively, the “Agreement”). 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:

“Post-Effective Date Escrow Amount” means the portion of the Effective Date True-Up Amount the Selling Entities and the Buyer determine is necessary for any remaining unpaid expenses and contingent liabilities of the Selling Entities.

(d) all (x) royalties, advances, prepaid assets, security and other deposits, prepayments and other current assets relating to the Business, the Assumed Agreements and the Assumed Real Property Leases, in each case of the Selling Entities as of the Closing and (y) royalty payments required to be made with respect to the right to use the GNC Names and Marks by counterparties to Contracts of the Selling Entities that are rejected in the Bankruptcy Case, to the extent that such rights were retained by any such counterparties (it being understood and agreed, for the avoidance of doubt, the Buyer shall not be liable for any Liabilities related to the Debtors’ rejection of such contracts);

(b) From and after the date of this Agreement until one (1) Business Day prior to the Bid Deadline (as defined in the Bidding Procedures Order), the Buyer may, in its sole discretion, designate any Contract of any Selling Entity as an Assumed Agreement or

Assumed Real Property Lease, as applicable, or remove any such Contract from Section 2.1(e) or Section 2.1(f) of the Seller Disclosure Schedule, respectively, such that it is not an Assumed Agreement or Assumed Real Property Lease, in each case by providing written notice of such designation or removal to the Seller, in which case Section 2.1(e) or Section 2.1(f) of the Seller Disclosure Schedule, as applicable, shall automatically be deemed to be amended to include or remove, as applicable, such Contract as an Assumed Agreement or an Assumed Real Property Lease, in each case, without any adjustment to the Purchase Price. Notwithstanding any of the foregoing to the contrary, in consideration for the Buyer’s agreement to add Contracts as Assumed Agreements and Assumed Real Property Leases as set forth in Selling Entities’ twenty-ninth through thirty-third omnibus motions for entry of an order authorizing the Selling Entities to assume and assign certain unexpired leases, the Parties agree that the Contracts set forth on Appendix A attached hereto shall not be Assumed Agreements or Assumed Real Property Leases, as applicable, and shall be deemed removed from Section 2.1(e) and Section 2.1(f) of the Seller Disclosure Schedule, as applicable, and the Liabilities (to the extent such Liabilities constitute General Unsecured Claims (as defined in the Plan)) arising under or related to the such Contracts shall be Excluded Liabilities; provided, that any Allowed Administrative Claim, Allowed Priority Tax Claim or other Allowed Priority Claim (each as defined in the Plan) arising under or relating to such Contracts shall be Assumed Liabilities.

(c) Concurrently with final distributions under the Plan, tThe Buyer hereby directs the Seller to pay, and the Seller shall, on behalf of Buyer, pay or cause to be paid, to GLAS Trust Company LLC, as administrative agent under the Second Lien Credit Agreement (or any successor administrative agent), an aggregate amount in cash equal to the Effective Date True-Up Amount as a prepayment of the amount of outstanding Second Lien Loans in accordance with the Second Lien Documents, which Effective Date True-Up Amount shall be paid as follows: (i) concurrently with final distributions under the Plan, an amount equal to (x) the Effective Date True-Up Amount minus (y) the Post-Effective Date Escrow Amount, (ii) from time to time, in the discretion of the Selling Entities, to the extent the Selling Entities determine that the remaining Post-Effective Date Escrow Amount at such time exceeds the amount necessary for any remaining unpaid expenses and contingent liabilities of the Selling Entities, the amount of such excess, and (iii) concurrently with the winding-up of the Selling Entities, the Post-Effective Date Escrow Amount to the extent not used or reserved for expenses of the Selling Entities.

(d) Not less than three (3) Business Days prior to the Effective Date, the Seller shall deliver to the Buyer a written notice of (i) the actual cash distributions made and to be made by

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the Selling Entities to the holders of Allowed Tranche B-2 Term Loan Claims and the holders of TLB Allowed DIP Term Roll-Up Loan Claims (each as defined in the Plan) in respect of such Allowed Tranche B-2 Term Loan Claims and the holders of TLB Allowed DIP Term Roll-Up Loan Claims (the “Actual TLB Distribution Amount”), (ii) the aggregate amount of interest paid or accrued from the Closing Date through the Effective Date pursuant to the Debtor-in-Possession Term Loan Credit Agreement, dated as of June 26, 2020, among GNC Corporation, General Nutrition Centers, Inc., GLAS Trust Company, LLC, as administrative agent and collateral agent, and the lenders party thereto from time to time (the “DIP Term Loan Interest Amount”) and the cash amount to be distributed or paid in settlement to the holders of General Unsecured Claims, Convertible Unsecured Notes Claims, or Tranche B-2 Term Loan Deficiency Claims (each, as defined in the Plan) in excess of $5,000,000 (such amount in excess of $5,000,000 and the DIP Term Loan Interest Amount, taken together with the Actual TLB Distribution Amount, the “Adjusted TLB Distribution Amount”). Concurrently with the final distributions under the Plan, the Buyer shall cause GNC Newco to issue to the Seller or, at the Seller’s written direction, to the holders of Allowed Tranche B-2 Term Loan Claims, new Second Lien Loans in an aggregate principal amount equal to the lesser of (i) $12,000,00020,000,000 and (ii) (x) $410 million minus (y) the aggregate principal amount of Second Lien Loans issued pursuant to Section 3.1(c)(ii) minus (z) the Adjusted TLB Distribution Amount. If the resulting amount in the immediately preceding clause (ii) is a negative number, then concurrently with and as part of the final distribution under the Plan, Seller shall cause Second Lien Loans in the aggregate principal amount equal to the absolute amount of such negative number to be distributed to GNC Newco and not the holders of Allowed Tranche B-2 Term Loan Claims and GNC Newco agrees to cancel such Second Lien Loans upon receipt thereof.

In the event of a Financing Failure Event, the Buyer shall use its reasonable best efforts to arrange to obtain alternative financing from alternative sources on terms approved by the Seller in writing, such approval not to be unreasonably withheld (and the Buyer agrees that withholding its approval for any alternative financing shall be deemed to be reasonable in the event any material term of such alternative financing is less favorable to the Buyer (or any other loan party) in any material respect) (any such alternative financing on terms reasonably acceptable to the Seller, an “Alternative Financing”), in an aggregate amount sufficient to consummate the transactions contemplated hereby promptly following the occurrence of such event. The Buyer shall deliver to the Seller true and complete copies of all agreements pursuant to which any such alternative source shall have committed to provide the Buyer with any portion of such alternate financing. For the avoidance of doubt, the funding by Buyer or any of its Affiliates of the amount contemplated by the Aland Debt Commitment Letter shall not be a Financing Failure Event.

(a) Section 7.10(a) of the Seller Disclosure Schedule sets forth a list containing the names of Employees to whom the Buyer expects that neither the Buyer nor a Buyer Designee will make an offer of employment. At least ten (10) Business Days prior to the Closing, the

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Buyer will provide the Seller with an updated Section 7.10(a) of the Seller Disclosure Schedule setting forth a list of the names of all Employees to whom the Buyer or a Buyer Designee will not make an offer of employment (the “Specified Employees”). Prior to the Closing, the Buyer shall, or shall cause a Buyer Designee to, make an offer of employment, to commence as of the Closing, to each of the Employees who are not Specified Employees (each such Employee, an “Offered Employee”). Each Offered Employee who receives and accepts such an offer of employment with Buyer or a Buyer Designee is referred to herein as a “Transferred Employee”, and the Buyer shall, or shall cause the applicable Buyer Designee to, employ each Transferred Employee in accordance with such accepted offer as of the Closing. The Buyer hereby agrees that the offers to the Offered Employees shall include, and for the period immediately following the Closing through and including the twelve (12) month anniversary of the Closing, the Buyer shall, or shall cause the applicable Buyer Designee to, provide (i) a level of base salary and wages to each Transferred Employee that is no less favorable to the base salary and wages provided to such Offered Employee as of the date hereof, and (ii) benefit plans for the benefit or welfare of each Transferred Employee (each, a “Buyer Benefit Plan”), that are comparable in the aggregate to the benefits (except with respect to equity-based compensation) provided to such Offered Employee as of the date hereof. Notwithstanding the foregoing, for Transferred Employees in Canada, to the extent required by applicable Law, such offers will be on substantially similar basis as such Employees received from the Selling Entities as of the date hereof. Buyer agrees not to amend the GNC Executive Severance Pay Policy prior to the twelve (12) month anniversary of the Closing in any manner that would adversely impact a Transferred Employee’s amount of severance or the events qualifying a Transferred Employee for severance.

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[Signature pages follows]

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IN WITNESS WHEREOF, the Parties hereto have caused this Fifth Amendment to the Stalking Horse Agreement to be executed as of the date first written above.

[SIGNATURE PAGE TO FIFTH AMENDMENT TO STALKING HORSE AGREEMENT]

[SIGNATURE PAGE TO FIFTH AMENDMENT TO STALKING HORSE AGREEMENT]

Appendix A

Additional Excluded Contracts

[Attached]

GNC    

Executory Contracts - Removal from Assumption List    

GNC

Real Property Leases - Removal from Assumption List

Appendix B

Specified Liabilities

Appendix C

Claimants with Third-Party Beneficiary Rights

GNC Holdings

Asserted Administrative Claims

Per Claims Register as of 10/01/20