AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT
Exhibit 10.16.2
AMENDMENT NO. 1
TO
AMENDMENT (“Amendment”) made as of this 3rd day of March, 2009 to the
Employment Agreement dated as of October 31, 2008 (the “Employment Agreement”), by and
between General Nutrition Centers, Inc., a Delaware corporation (the “Company”), which is
an indirect wholly owned subsidiary of GNC Acquisition Holdings, Inc., a Delaware corporation, and
Xxxxxxx X. Xxxxx (the “Executive”).
WHEREAS, the Company and the Executive have previously entered into the Employment Agreement;
and
WHEREAS, the Company and the Executive desire to amend the Employment Agreement in a manner
intended to comply with Section 409A of the Internal Revenue Code of 1986, as amended.
NOW, THEREFORE, effective as of January 1, 2009, the Employment Agreement is hereby amended as
follows:
1. The third sentence of Section 3.2 of the Employment Agreement is hereby amended in its
entirety as follows:
“Any Annual Bonus earned shall be payable in full no later than March
15 of the year following the year the bonus is earned.”
2. The last sentence of Section 4.2(a) of the Employment Agreement is hereby amended in its
entirety as follows:
“The Base Salary shall be paid in accordance with the Company’s
general payroll practices and procedures and any bonus shall be paid
no later than March 15 of the year following the year the bonus is
earned, and in accordance with the Company’s general payroll practices
and procedures.”
3. The last sentence of Section 4.3(c)(iv) of the Employment Agreement is hereby amended in
its entirety as follows:
“The bonus shall be payable no later than March 15 of the year
following the year the bonus is earned, and in accordance with the
Company’s general payroll practices and procedures.”
4. The last sentence of Section 4.3(e) of the Employment Agreement is hereby amended in its
entirety as follows:
“To the extent necessary to effect the Payment Reduction, the Company
shall reduce or eliminate the Payments by first reducing or
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.”
5. Section 4.3(f)(iii) of the Employment Agreement is hereby amended in its entirety as
follows:
“the Company effects a material reduction in the Executive’s Base
Salary, unless all executives at the same level as the Executive
receive a substantially similar reduction in base salary.”
6. Section 4.4(a)(iii) of the Employment Agreement is hereby amended in its entirety as
follows:
“either the Company or the Executive may elect not to extend or
further extend the Employment Period pursuant to Section 2.2 hereof,
provided that the Executive shall be required to continue to provide
services hereunder through the end of the Employment Period.”
7. The last sentence of Section 4.6 of the Employment Agreement is hereby amended in its
entirety as follows:
“In this regard, notwithstanding anything to the contrary in this
Section 4, to the extent necessary to comply with Section 409A of the
Code, any payment required under this Section 4 shall be deferred for
a period of six (6) months, regardless of the circumstances giving
rise to or the basis for such payment, and the Company will make all
applicable payments that have accrued during such six (6) month
period, together with interest accrued thereon at the applicable
federal rate, in a lump sum to the Executive following the expiration
of such period.”
8. Section 6.16(c) of the Employment Agreement is hereby amended in its entirety as follows:
“(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
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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.”
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IN WITNESS WHEREOF, the undersigned has caused this Amendment to be executed this
3rd day of March 2009.
| EXECUTIVE |
||||
| /s/ Xxxxxxx X. Xxxxx | ||||
| Name: | Xxxxxxx X. Xxxxx | |||
| GENERAL NUTRITION CENTERS, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxxxxxxx, Xx. | |||
| Name: | Xxxxxx X. Xxxxxxxxxxx, Xx. | |||
| Title: | Senior Vice President, Chief Legal Officer | |||
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