GNC 2009 Annual Report Download - page 213

eliminating the portion of the Payments which are not payable in cash and then by reducing or eliminating cash payments, in each case in
reverse order beginning with payments or benefits which are to be paid the farthest in time from the initial determination, subject to the
confirmation of the Accounting Firm (as defined herein) with respect to the intended effect of such Payment Reduction."
10. Section 4.3(h)(iv) of the Employment Agreement is hereby amended in its entirety as follows:
"a material reduction in the Executive's Base Salary;"
11. The following is hereby added to the end of the first sentence of Section 4.4(b):
"... in accordance with Section 4.2(b)(i)."
12. Section 4.6 of the Employment Agreement is hereby amended in its entirety as follows:
"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
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