EXHIBIT 4.3
[Face of Note]
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CUSIP/CINS ____________
8-1/2% Senior Subordinated Notes due 2010
No. ___ $____________
GENERAL NUTRITION CENTERS, INC.
promises to pay to ____________or registered assigns,
the principal sum of _________________________________________________________
DOLLARS on December 1, 2010.
Interest Payment Dates: June 1 and December 1
Record Dates: May 15 and November 15
Dated: __________________
GENERAL NUTRITION CENTERS, INC.
By: ____________________________________
Name:
Title:
This is one of the Notes referred to
in the within-mentioned Indenture:
[TRUSTEE],
as Trustee
By: _________________________________
Authorized Signatory
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[Back of Note]
8-1/2% Senior Subordinated Notes due 2010
[Insert the Global Note Legend, if applicable pursuant to the provisions of the
Indenture]
[Insert the Private Placement Legend, if applicable pursuant to the provisions
of the Indenture]
Capitalized terms used herein have the meanings assigned to them in the
Indenture referred to below unless otherwise indicated.
(1) INTEREST. General Nutrition Centers, Inc., a Delaware
corporation (the "Company"), promises to pay interest on the principal
amount of this Note at 8-1/2% per annum from ________________, 20__
until maturity and shall pay the Liquidated Damages, if any, payable
pursuant to Section 5 of the Registration Rights Agreement referred to
below. The Company will pay interest and Liquidated Damages, if any,
semi-annually in arrears on June 1 and December 1 of each year, or if
any such day is not a Business Day, on the next succeeding Business Day
(each, an "Interest Payment Date"). Interest on the Notes will accrue
from the most recent date to which interest has been paid or, if no
interest has been paid, from the date of original issuance; provided
that if there is no existing Default in the payment of interest, and if
this Note is authenticated between a record date referred to on the
face hereof and the next succeeding Interest Payment Date, interest
shall accrue from such next succeeding Interest Payment Date; provided
further that the first Interest Payment Date shall be _____________,
20__. The Company will pay interest (including post-petition interest
in any proceeding under any Bankruptcy Law) on overdue principal and
premium, if any, from time to time on demand at the rate that is then
in effect on the Notes to the extent lawful; it will pay interest
(including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest and Liquidated
Damages, if any, (without regard to any applicable grace periods) from
time to time on demand at the same rate to the extent lawful. Interest
will be computed on the basis of a 360-day year of twelve 30-day
months.
(2) METHOD OF PAYMENT. The Company will pay interest on the
Notes (except defaulted interest) and Liquidated Damages, if any, to
the Persons who are registered Holders of Notes at the close of
business on the May 15 or November 15 next preceding the applicable
Interest Payment Date, even if such Notes are canceled after such
record date and on or before such Interest Payment Date, except as
provided in Section 2.12 of the Indenture with respect to defaulted
interest. If a Holder has given wire instructions to the Company, the
Company will pay all principal, interest and premium and Liquidated
Damages, if any, on that Holder's Notes in accordance with those
instructions. All other payments on the Notes will be made at the
office or agency of the Company maintained for such purpose within the
City and State of New York, or, at the option of the Company, payment
of interest and Liquidated Damages, if any, may be made by check mailed
to the Holders at their addresses set forth in the register of Holders;
provided that payment by wire transfer of immediately available funds
to the accounts specified by the Depositary, or its nominee will be
required with respect to principal of and interest, premium and
Liquidated Damages, if any, on, all Global Notes. Such payment will be
in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts.
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(3) PAYING AGENT AND REGISTRAR. Initially, U.S. Bank, National
Association, the Trustee under the Indenture, will act as Paying Agent
and Registrar. The Company may change any Paying Agent or Registrar
without notice to any Holder. The Company or any of its Subsidiaries
may act in any such capacity.
(4) INDENTURE. The Company issued the Notes under an Indenture
dated as of December 5, 2003 (the "Indenture") among the Company, the
Guarantors and the Trustee. The terms of the Notes include those stated
in the Indenture and those made part of the Indenture by reference to
the TIA. The Notes are subject to all such terms, and Holders are
referred to the Indenture and such Act for a statement of such terms.
To the extent any provision of this Note conflicts with the express
provisions of the Indenture, the provisions of the Indenture shall
govern and be controlling. The Notes are unsecured obligations of the
Company. The Company will be entitled to issue Additional Notes
pursuant to Section 2.13 of the Indenture.
(5) OPTIONAL REDEMPTION.
Except as set forth in subparagraph (b) of this Paragraph 5, the
Company will not have the option to redeem the Notes prior to December 1, 2007.
On or after December 1, 2007 and prior to maturity, the Company may, at its
option, redeem all or a part of the Notes at any time and from time to time upon
not less than 30 nor more than 90 days' notice, at the redemption prices
(expressed as percentages of principal amount) set forth below plus accrued and
unpaid interest and Liquidated Damages, if any, on the Notes redeemed to the
applicable redemption date, if redeemed during the twelve-month period beginning
on December 1, of the years indicated below, subject to the rights of Holders on
the relevant record date to receive interest on the relevant interest payment
date:
Year Percentage
- ---- ----------
2007......................................................... 104.250%
2008......................................................... 102.125%
2009 and thereafter.......................................... 100.000%
Unless the Company defaults in the payment of the redemption price,
interest will cease to accrue on the Notes or portions thereof called for
redemption on the applicable redemption date.
(b) Notwithstanding the provisions of subparagraph (a) of this
Paragraph 5, at any time prior to December 1, 2006, the Company may on any one
or more occasions redeem up to 35% of the aggregate principal amount of Notes
issued under the Indenture at a redemption price equal to 108.500% of the
aggregate principal amount thereof, plus accrued and unpaid interest and
Liquidated Damages, if any to the redemption date, with the Net Cash Proceeds of
one or more Equity Offerings; provided that at least 65% in aggregate principal
amount of the Notes originally issued under the Indenture (excluding Notes held
by the Company and its Subsidiaries) remains outstanding immediately after the
occurrence of such redemption and that such redemption occurs within 60 days
after the date of the closing of such Equity Offering.
(6) MANDATORY REDEMPTION.
The Company is not required to make mandatory redemption or sinking
fund payments with respect to the Notes.
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(7) REPURCHASE AT THE OPTION OF HOLDER.
(a) If there is a Change of Control, each Holder
will have the right to require the Company to repurchase all or any
part (equal to $1,000 or an integral multiple of $1,000) of that
Holder's Notes, pursuant to an offer that the Company will make to all
Holders at a purchase price in cash equal to 101% of the principal
amount thereof, plus accrued and unpaid interest and Liquidated
Damages, if any, thereon to the date of purchase, subject to the rights
of Holders on the relevant record date to receive interest due on the
relevant interest payment date. Subject to the exceptions in Section
4.15 of the Indenture, within thirty days following any Change of
Control, the Company will mail a notice to each Holder with a copy to
the Trustee setting forth the procedures governing the Change of
Control Offer as required by the Indenture.
(b) If the Company or a Restricted Subsidiary of
the Company consummates any Asset Dispositions, within 15 days of the
periods specified in Section 4.10(3)(A) and (B) of the Indenture, after
which Excess Proceeds exist, the Company will commence an offer to all
Holders of Notes and all holders of other Indebtedness that is pari
passu with the Notes containing provisions similar to those set forth
in the Indenture with respect to offers to purchase or redeem at a
purchase price of 100% of the principal amount thereof, plus accrued
and unpaid interest to the Purchase Date, and liquidated damages, if
any, with the proceeds of sales of assets (an "Asset Disposition
Offer") pursuant to Section 3.09 of the Indenture to purchase the
maximum principal amount of Notes (including any Additional Notes) and
such other pari passu Indebtedness that may be purchased out of the
Excess Proceeds at an offer price in cash in an amount equal to 100% of
the principal amount thereof plus accrued and unpaid interest and
Liquidated Damages, if any, thereon to the date of purchase, in
accordance with the procedures set forth in the Indenture. To the
extent that the aggregate amount of Notes (including any Additional
Notes) and other pari passu Indebtedness tendered pursuant to an Asset
Disposition Offer is less than the Excess Proceeds, the Company (or
such Restricted Subsidiary) may use such deficiency for any purpose not
otherwise prohibited by the Indenture. If the aggregate principal
amount of Notes and other pari passu Indebtedness tendered into such
Asset Disposition Offer exceeds the amount of Excess Proceeds, the
Trustee shall select the Notes and such other pari passu Indebtedness
to be purchased on a pro rata basis.
(8) NOTICE OF REDEMPTION. Notice of redemption will be mailed
at least 30 days but not more than 90 days before the redemption date
to each Holder whose Notes are to be redeemed at its registered
address. Notes in denominations larger than $1,000 may be redeemed in
part but only in whole multiples of $1,000, unless all of the Notes
held by a Holder are to be redeemed.
(9) DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Notes may be registered and Notes
may be exchanged as provided in the Indenture. The Registrar and the
Trustee may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and the Company may
require a Holder to pay any taxes and fees required by law or permitted
by the Indenture. The Company need not exchange or register the
transfer of any Note or portion of a Note selected for redemption,
except for the unredeemed portion of any Note being redeemed in part.
Also, the Company need not exchange or register the transfer of any
Notes for a
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period of 15 days before a selection of Notes to be redeemed or during
the period between a record date and the corresponding Interest Payment
Date.
(10) PERSONS DEEMED OWNERS. The registered Holder of a Note
may be treated as its owner for all purposes.
(11) AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain
exceptions set forth in Section 9.02 of the Indenture, the Indenture,
the Notes and the Note Guarantees may be amended or supplemented with
the consent of the Holders of at least a majority in aggregate
principal amount of the then outstanding Notes including Additional
Notes, if any, voting as a single class, and any existing Default or
Event or Default or compliance with any provision of the Indenture or
the Notes or the Note Guarantees may be waived with the consent of the
Holders of at least a majority in aggregate principal amount of the
then outstanding Notes including Additional Notes, if any, voting as a
single class. Without the consent of any Holder of a Note, the
Indenture or the Notes or the Note Guarantees may be amended or
supplemented to cure any ambiguity, omission, defect or inconsistency;
to provide for the assumption by a successor corporation of the
obligations of the Company under the Indenture; to provide for
uncertificated Notes in addition to or in place of certificated notes;
provided, however, that the uncertificated Notes are issued in
registered form for purposes of Section 163(f) of the Code, or in a
manner such that the uncertificated Notes are described in Section
163(f)(2)(B) of the Code; to add Guarantees with respect to the Notes,
to secure the Notes, to add to the covenants of the Company for the
benefit of the Holders or to surrender any right or power conferred
upon the Company; to make any change that does not adversely affect the
rights of any Holder; to comply with any requirement of the SEC in
connection with the qualification of the Indenture under the TIA; to
conform the text of the Indenture, the Note Guarantees or the Notes to
any provision of the Description of Notes to the extent that such
provision in the Description of Notes was intended to be a verbatim
recitation of a provision of the Indenture, the Note Guarantees or the
Notes; or to provide for the issuance of Additional Notes in accordance
with the limitations set forth in the Indenture as of the date of the
Indenture.
(12) DEFAULTS AND REMEDIES. Events of Default include: (i) a
default in any payment of interest on, or Liquidated Damages, if any,
with respect to, any Note when due, whether or not such payment is
prohibited by the provisions of Article 10 of the Indenture, continued
for 30 days; (ii) a default in the payment of principal of, or premium,
if any, on any Note when due at its Stated Maturity, upon optional
redemption, upon required repurchase, upon declaration or otherwise,
whether or not such payment is prohibited by the provisions of Article
10 of the Indenture; (iii) the failure by the Company or any of its
Restricted Subsidiaries to comply with its obligations under Articles 5
of the Indenture; (iv) the failure by the Company or any of its
Restricted Subsidiaries to comply for 30 days after written notice from
the Trustee or the Holders of at least 25% in principal amount of the
outstanding Notes with any of its obligations under Sections 4.07,
4.09, 4.10, 4.15 of the Indenture, in each case, other than a failure
to purchase Notes; (v) the failure by the Company or any of its
Restricted Subsidiaries to comply with its other agreements contained
in the Notes or the Indenture for 60 days after written notice from the
Trustee or the Holders of at least 25% in principal amount of the
outstanding Notes; (vi) the failure by the Company or any Significant
Subsidiary to pay any Indebtedness within any applicable grace period
after final maturity or the acceleration of any such Indebtedness by
the holders thereof because of a default if the total amount of such
Indebtedness unpaid or accelerated exceeds $20 million; (vii) certain
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events of bankruptcy or insolvency with respect to the Company or any
of its Significant Subsidiaries specified in the Indenture; (viii) the
rendering of any judgment or decree for the payment of money in an
amount, net of any insurance or indemnity payments actually received in
respect thereof prior to or within 90 days from the entry thereof, or
to be received in respect thereof in the event any appeal thereof shall
be unsuccessful, in excess of $20 million against the Company or a
Significant Subsidiary that is not discharged, bonded or insured by a
third Person if either an enforcement proceeding thereon is commenced,
or such judgment or decree remains outstanding for a period of 90 days
and is not discharged, waived or stayed; or (ix) the failure of any
Guarantee of the Notes by a Guarantor that is a Significant Subsidiary
to be in full force, except as contemplated by the terms thereof or of
the Indenture, or the denial in writing by any such Guarantor of its
obligations under the Indenture or any such Guarantee if such Default
continues for 10 days. If any Event of Default occurs and is
continuing, the Trustee, by notice to the Company, or the Holders of at
least a majority in aggregate principal amount of the then outstanding
Notes, by notice to the Company and the Trustee, may declare all the
Notes to be due and payable immediately. Notwithstanding the foregoing,
in the case of an Event of Default arising from certain events of
bankruptcy or insolvency set forth in the Indenture, all outstanding
Notes will become due and payable immediately without further action or
notice. Holders may not enforce the Indenture or the Notes except as
provided in the Indenture. Subject to certain limitations set forth in
the Indenture, Holders of at least a majority in aggregate principal
amount of the then outstanding Notes may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Holders
of the Notes notice of any continuing Default or Event of Default
(except a Default or Event of Default relating to the payment of
principal or interest or premium or Liquidated Damages, if any,) if it
determines that withholding notice is in their interest. The Holders of
at least a majority in aggregate principal amount of the then
outstanding Notes by notice to the Trustee may, on behalf of the
Holders of all of the Notes, rescind an acceleration or waive any
existing Default or Event of Default and its consequences under the
Indenture except a continuing Default or Event of Default in the
payment of interest or premium or Liquidated Damages, if any, on, or
the principal of, the Notes. The Company is required to deliver to the
Trustee annually a statement regarding compliance with the Indenture,
and the Company is required, upon becoming aware of any Default or
Event of Default, to deliver to the Trustee a statement specifying such
Default or Event of Default, in each case as provided in the Indenture.
(13) SUBORDINATION. Payment of principal, interest and premium
and Liquidated Damages, if any, on the Notes is subordinated to the
prior payment of Senior Indebtedness on the terms provided in the
Indenture.
(14) TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its
individual or any other capacity, may make loans to, accept deposits
from, and perform services for the Company or its Affiliates, and may
otherwise deal with the Company or its Affiliates, as if it were not
the Trustee.
(15) NO RECOURSE AGAINST OTHERS. No director, officer,
employee, incorporator or stockholder of the Company or any Guarantor,
as such, will have any liability for any obligations of the Company or
any Guarantor under the Notes, the Indenture, the Note Guarantees, or
for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of Notes by accepting a Note
waives and releases all such liability. The waiver and release are part
of the consideration for
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issuance of the Notes. The waiver may not be effective to waive
liabilities under the federal securities laws.
(16) AUTHENTICATION. This Note will not be valid until
authenticated by the manual signature of the Trustee or an
authenticating agent.
(17) ABBREVIATIONS. Customary abbreviations may be used in the
name of a Holder or an assignee, such as: TEN COM (= tenants in
common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants
with right of survivorship and not as tenants in common), CUST (=
Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
(18) ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES
AND RESTRICTED DEFINITIVE NOTES. In addition to the rights provided to
Holders of Notes under the Indenture, Holders of Restricted Global
Notes and Restricted Definitive Notes will have all the rights set
forth in the Registration Rights Agreement dated as of December 5,
2003, among the Company, the Guarantors and the other parties named on
the signature pages thereof or, in the case of Additional Notes,
Holders of Restricted Global Notes and Restricted Definitive Notes will
have the rights set forth in one or more registration rights
agreements, if any, among the Company, and the other parties thereto,
relating to rights given by the Company to the purchasers of any
Additional Notes (collectively, the "Registration Rights Agreement").
(19) CUSIP NUMBERS. Pursuant to a recommendation promulgated
by the Committee on Uniform Security Identification Procedures, the
Company has caused CUSIP numbers to be printed on the Notes, and the
Trustee may use CUSIP numbers in notices of redemption as a convenience
to Holders. No representation is made as to the accuracy of such
numbers either as printed on the Notes or as contained in any notice of
redemption, and reliance may be placed only on the other identification
numbers placed thereon.
(20) THE INDENTURE, THIS NOTE AND THE NOTE GUARANTEES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF NEW YORK,
INCLUDING WITHOUT LIMITATION SECTION 5-1401 OF THE NEW YORK OBLIGATIONS
LAW.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
General Nutrition Centers, Inc.
300 Sixth Avenue
Pittsburgh, Pennsylvania 15222
Attention: Chief Legal Officer
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to: __________________________________
(Insert assignee's legal name)
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date: _______________
Your Signature: _______________________________
(Sign exactly as your name appears on the
face of this Note)
Signature Guarantee*: _________________________
* Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.10 or 4.15 of the Indenture, check the appropriate box
below:
Section 4.10 Section 4.15
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.10 or Section 4.15 of the Indenture, state the
amount you elect to have purchased:
$_______________
Date: _______________
Your Signature: ____________________________
(Sign exactly as your name appears
on the face of this Note)
Tax Identification No.: _____________________
Signature Guarantee*: _________________________
* Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
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SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE *
The following exchanges of a part of this Global Note for an interest
in another Global Note or for a Definitive Note, or exchanges of a part of
another Global Note or Definitive Note for an interest in this Global Note, have
been made:
Principal
Amount of Amount of Amount
decrease in increase in of this Global Signature of
Principal Principal Note following authorized
Date of Amount of Amount of such decrease officer of Trustee
Exchange this Global Note this Global Note (or increase) or Custodian
- -------- ---------------- ---------------- ------------- ---------
* This schedule should be included only if the Note is issued in global
form.