GNC 2009 Annual Report Download - page 186

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.
(a) Although GNC does not guarantee to the Executive any particular tax treatment relating to the payments and benefits under this
Agreement, it is intended that such payments and benefits be exempt from, or comply with, Section 409A of Code and the regulations and
guidance promulgated thereunder (collectively "Code Section 409A"), and all provisions of this Agreement shall be construed in a manner
consistent with the requirements for avoiding taxes or penalties under Code Section 409A.
(b) A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the
payment of any amounts or benefits upon or following a termination of employment unless such termination is also a "separation from service"
within the meaning of Code Section 409A and, for purposes of any such provision of this Agreement, references to a "termination," "termination
of employment" or like terms shall mean "separation from service."
(c) With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by
Code Section 409A, (i) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit; (ii) the
amount of expenses eligible for reimbursement, or in-kind benefits, provided during any taxable year shall not affect the expenses eligible for
reimbursement, or in-kind benefits to be provided, in any other taxable year, provided, that the foregoing clause (ii) shall not be violated with
regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a
limit related to the period the arrangement is in effect; and (iii) such payments shall be made on or before the last day of the Executive's taxable
year following the taxable year in which the expense was incurred.
(d) Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., "payment shall be
made within ten (10) days following the date of termination"), the actual date of payment within the specified period shall be within the sole
discretion of Centers.
(e) If under this Agreement, an amount is to be paid in two or more installments, for purposes of Code Section 409A, each installment
shall be treated as a separate payment. 14