EXHIBIT 3.38
CERTIFICATE OF INCORPORATION
OF
GNC US DELAWARE, INC.
FIRST. The name of the corporation is GNC US Delaware, Inc.
SECOND. The address of the corporation's registered office in the State
of Delaware is 1209 Orange Street, Wilmington, DE 19801, New Castle County,
Delaware. The name of its registered agent at such address is Corporation Trust
Company.
THIRD. The nature of business to be conducted or promoted and the
purpose of the corporation is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of the State of
Delaware.
FOURTH. The total number of shares of stock which the corporation shall
have authority to issue is two thousand (2000) shares, all of which shall be
Common Stock, $ (.01) par value per share.
FIFTH. The name and mailing address of the incorporator is as follows:
Guy E. Snyder, Esq.
Vedder, Price, Kaufman & Kammholz
222 N. LaSalle Street, Suite 2400
Chicago, Illinois 60601
SIXTH. The number of directors of the corporation shall be fixed from
time to time by the By-Laws of the corporation. Election of directors need not
be by written ballot unless the By-Laws so provide.
SEVENTH. In furtherance and not in limitation of the powers conferred
by statute, the Board of Directors is expressly authorized to make, alter or
repeal the By-Laws of the corporation.
EIGHTH. The corporation shall indemnify, to the full extent that it
shall have power under applicable law to do so and in a manner permitted by such
law, any person made or threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative, by reason of the fact that he is or was a director or officer
of the corporation against liabilities and expenses reasonably incurred or paid
by such person in connection with such action, suit or proceeding. The
corporation may indemnify, to the full extent that it shall have power under
applicable law to do so and in a manner permitted by such law, any person made
or threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he is or was an employee or agent of the corporation, or
is or was serving at the request of the corporation as director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against liabilities and expenses reasonably incurred or paid by
such person in connection with such
action, suit or proceeding. The words "liabilities" and "expenses" shall
include, without limitation: liabilities, losses, damages, judgments, fines,
penalties, amounts paid in settlement, expenses, attorneys' fees and costs. The
indemnification and advancement of expenses provided by or granted pursuant to
this Article EIGHTH shall not be deemed exclusive of any other rights to which
any person indemnified or being advanced expenses may be entitled under any
statute, By-Law, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, and shall continue as to a person
who has ceased to be such director, officer, employee or agent and shall inure
to the benefits of the heirs, executors and administrators of such person.
The corporation may purchase and maintain insurance on behalf of any
person referred to in the preceding paragraph against any liability asserted
against him and incurred by him in any such capacity, or arising out of his
status as such, whether or not the corporation would have the power to indemnify
him against such liability under the provisions of this Article EIGHTH or
otherwise.
For purposes of this Article EIGHTH, references to "the Corporation"
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, and employees
or agents, so that any person who is or was a director, officer, employee or
agent of such constituent corporation, or is or was serving at the request of
such constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
shall stand in the same position under the provisions of this Article with
respect to the resulting or surviving corporation as he would have with respect
to such constituent corporation if its separate existence had continued.
The provisions of this Article EIGHTH shall be deemed to be a contract
between the Corporation and each director or officer who serves in any such
capacity at any time while this Article and the relevant provisions of the
General Corporation Law of the State of Delaware or other applicable law, if
any, are in effect, and any repeal or modification of any such law or of this
Article shall not affect any rights or obligations then existing with respect to
any state of facts then or theretofore existing or any action, suit or
proceeding theretofore or thereafter brought or threatened based in whole or in
part upon any such state of facts.
For purposes of this Article, references to "other enterprises" shall
include employee benefit plans; references to "fines" shall include any excise
taxes assessed on a person with respect to an employee benefit plan; and
references to "serving at the request of the Corporation" shall include any
service as a director, officer, employee or agent of the Corporation which
imposes duties on, or involves services by, such director, officer, employee, or
agent with respect to an employee benefit plan, its participants, or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the best interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner not opposed to the best interests of the Corporation.
NINTH. The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter
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prescribed by statute, and all rights conferred upon stockholders herein are
granted subject to this reservation.
TENTH. Whenever a compromise or arrangement is proposed between the
Corporation and its creditors or any class of them and/or between the
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of the Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for the Corporation under the
provisions of Section 291 of Title 8 of the Delaware Code or on the application
of trustees in dissolution or of any receiver or receivers appointed for the
Corporation under the provisions of Section 279 of Title 8 of the Delaware Code
order a meeting of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of the Corporation, as the case may be, to
be summoned in such manner as the said court directs. If a majority in number
representing three-fourths in value of the creditors or class of creditors,
and/or of the stockholders or class of stockholders of the Corporation, as the
case may be, agree to any compromise or arrangement and to any reorganization of
the Corporation as consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or class of
stockholders, of the Corporation, as the case may be, and also on the
Corporation.
ELEVENTH. No director of the Corporation shall be liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the General Corporation Law of the
State of Delaware, or (iv) for any transaction from which the director derived
an improper personal benefit.
The undersigned incorporator, for the purpose of forming a corporation
pursuant to the General Corporation Law of the State of Delaware, has signed
this Certificate this 28th day of October, 2003.
/s/ Guy E. Snyder
-----------------------
Guy E. Snyder
Sole Incorporator
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