GNC 2008 Annual Report Download - page 236

entities at the direction of, or as a result of the Executive's affiliation with, GNC or any of its Affiliates. If for any reason this Section 4.5 is deemed to be
insufficient to effectuate such resignations, then the Executive will, upon GNC's request, execute any documents or instruments that GNC may deem
necessary or desirable to effectuate such resignations. In addition, the Executive hereby designates the Secretary or any Assistant Secretary of Holdings,
Centers or of any of their Affiliates to execute any such documents or instruments as the Executive's attorney-in-fact to effectuate such resignations if
execution by the Secretary or any Assistant Secretary of Holdings, Centers or their Affiliates is deemed by GNC or its Affiliates to be a more expedient means
to effectuate such resignation or resignations.
4.6 Section 409A of the Code. It is intended that any amounts payable under this Agreement will comply with Section 409A of the Code and the
regulations relating thereto so as not to subject the Executive to the payment of interest, tax, and penalties which may be imposed under Section 409A of the
Code. Accordingly, the Executive and Centers agree to use reasonable best efforts to cooperate, including by restructuring the timing of payments under this
Agreement, to avoid the imposition of any additional interest, tax, or penalty charge under Section 409A of the Code in respect of payments to the Executive
under this Agreement. Notwithstanding anything in this Agreement to the contrary, (i) if upon the employment termination date, the Executive is a "specified
employee" as defined in Section 409A of the Code and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result
of such separation from service is necessary in order to avoid the imposition on the Executive of any tax or penalty, including interest, under Section 409A of
the Code, then Centers will defer the commencement of any such payments or benefits hereunder (without any reduction in such payments or benefits
ultimately paid or provided to the Executive) until the date that is six (6) months following the Executive's separation from service with Centers (or the
earliest date as is permitted under Section 409A of the Code) and Centers will make all applicable payments that have accrued during such six (6) month
period in a lump sum to the Executive following the expiration of such period. In no event whatsoever shall GNC or any of their Affiliates be liable for any
additional tax, interest or penalties that may be imposed on the Executive by Section 409A of the Code or any damages for failing to comply with
Section 409A of the Code other than for withholding obligations or other obligations applicable to employers, if any, under Section 409A of the Code.
4.7 No Mitigation. The Executive shall not be required to mitigate the amount of any payment or benefit provided for in this Section 4 by seeking other
employment or otherwise, and, except as specifically provided in this Agreement, the amounts of compensation and benefits payable or otherwise due to the
Executive under this Section 4 or other provisions of this Agreement shall not be reduced by compensation or benefits received by the Executive from any
other employment he shall choose to undertake following termination of his employment under this Agreement. Further, any amounts owed to the Executive
under this Agreement may not be offset by any claims Centers may have against the Executive, and Centers' obligation to make the payments provided for in
this Agreement and otherwise to perform its obligations under this Agreement will not be affected by any other circumstances, including, without limitation,
any counterclaim, right of set-off, recoupment, defense, or other right that Centers may have against the Executive or other Persons.
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