CHANGE IN CONTROL AGREEMENT
Exhibit 10.2
This
Change in Control Agreement (this “Agreement”) between
____________ (the
“Employee”) and
X. Xxxxxxxx, Inc., a Delaware corporation (the
“Corporation”), is effective as of May ____, 2011
(“Effective Date”).
WHEREAS, the Employee currently is employed by the Corporation; and
WHEREAS, in order to induce the Employee to remain in the employ of the Corporation, the
Corporation desires to provide the Employee with certain severance benefits in the event his
employment with the Corporation terminates in connection with a Change in Control under the
circumstances described herein.
NOW, THEREFORE, in consideration of the mutual promises and agreements hereinafter set forth,
the Corporation and the Employee agree as follows:
Section 1. Definitions
When used in this Agreement, the following terms will have the meanings given to them in this
section unless another meaning is expressly provided elsewhere in this Agreement. When applying
these definitions, the form of any term or word will include any of its other forms.
1.1 “Affiliate” shall mean any entity with whom the Corporation would be considered a single
employer under Sections 414(b) and 414(c) of the Code.
1.2 “Board” shall mean the Corporation’s Board of Directors.
1.3 “Cause” shall mean:
(a) any act of fraud, embezzlement, misappropriation or conversion by the Employee of the
assets or business opportunities of the Corporation and its Affiliates;
(b) the Employee’s conviction of (or plea of guilty or nolo contendere to) a felony or a
misdemeanor that originally was charged as a felony but was reduced to a misdemeanor as part of a
plea bargain;
(c) intentional and repeated material violations by the Employee of the written policies or
procedures of the Corporation or, to the extent applicable to the Employee, any of its Affiliates,
or the intentional and material breach of any contract with, or violation of any legal obligation
owed to, the Corporation or any of its Affiliates, provided that the Employee fails to cure, to the
best of the Employee’s ability and to the extent that the breach is amenable to cure, such breach
within thirty (30) days after delivery to the Employee of a notice from the Board specifying such
breach; or
(d) the Employee’s willful engagement in gross misconduct or intentional misrepresentation
that is materially and demonstrably injurious to the Corporation or any of its Affiliates, provided
that such breach is not cured to the best of the Employee’s ability and to the
extent that the breach is amenable to cure within thirty (30) days after delivery to the Employee
of a notice from the Board specifying such breach.
For purposes of this definition, no act or failure to act, on the Employee’s part shall be
deemed “willful” unless done or omitted to be done, by Employee, not in good faith and without a
reasonable belief that Employee’s act or failure to act was in the best interest of the Corporation
or any Affiliate. In the event of a dispute concerning this definition of Cause, no claim by the
Corporation or an Affiliate that Cause exists shall be given effect unless the Corporation
establishes by clear and convincing evidence that Cause exists.
1.4 “Change in Control” shall mean the occurrence of any of the following:
(a) the acquisition by any person (as defined under Section 409A of the Code), or more than
one person acting as a group (as defined under Section 409A of the Code), of stock of the
Corporation that, together with the stock of the Corporation held by such person or group,
constitutes more than fifty percent (50%) of the total fair market value or total voting power of
the stock of the Corporation;
(b) the acquisition by any person, or more than one person acting as a group, within any
twelve (12) month period, of stock of the Corporation possessing thirty percent (30%) or more of
the total voting power of the stock of the Corporation;
(c) a majority of the members of the Board are replaced during any twelve (12) month period by
directors whose appointment or election is not endorsed by a majority of the members of the Board
prior to the date of the appointment or election; or
(d) the acquisition by any person, or more than one person acting as a group, within any
twelve (12) month period, of assets from the Corporation that have a total gross fair market value
equal to or more than forty percent (40%) of the total gross fair market value of all of the assets
of the Corporation immediately prior to such acquisition or acquisitions.
This definition of Change in Control shall be interpreted in a manner that is consistent with
the definition of a “change in control event” under Section 409A of the Code and the Treasury
Regulations promulgated thereunder.
Notwithstanding the foregoing, a Change in Control shall not be deemed to have occurred if
there is consummated any transaction or series of integrated transactions immediately following
which the record holders of the common stock of the Corporation immediately prior to such
transaction or series of transactions continue to have substantially the same proportionate
ownership in an entity which owns all or substantially all of the assets of the Corporation
immediately following such transaction or series of transactions.
Further, notwithstanding the foregoing, any event or transaction which would otherwise
constitute a Change in Control (a “Transaction”) shall not constitute a Change in Control for
purposes of this Agreement if, in connection with the Transaction, the Employee participates as an
equity investor in the acquiring entity or any of its affiliates (the
“Acquiror”). For purposes of
the preceding sentence, the Employee shall not be deemed to have participated as an equity
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investor in the Acquiror by virtue of: (i) obtaining beneficial ownership of any equity interest in
the Acquiror as a result of the grant to the Employee of an incentive compensation award under one
or more incentive plans of the Acquiror (including, but not limited to, the conversion in
connection with the Transaction of incentive compensation awards of the Corporation into incentive
compensation awards of the Acquiror), on terms and conditions substantially equivalent to those
applicable to other employees of the Corporation and its Affiliates immediately prior to the
Transaction, after taking into account normal differences attributable to job responsibilities,
title and similar matters; (ii) obtaining beneficial ownership of any equity interest in the
Acquiror on terms and conditions substantially equivalent to those obtained in the Transaction by
all other stockholders of the Corporation; or (iii) passive ownership of less than three percent
(3%) of the stock of the Acquiror.
1.5 “Change in Control Protection Period” shall mean the period from the occurrence of a
Change in Control and ending on the second anniversary thereof, even if such period extends beyond
the Expiration Date (as defined in Section 2).
1.6 “Code” shall mean the Internal Revenue Code of 1986, as amended.
1.7 “Good Reason” shall mean the occurrence of any of the following without the Employee’s
express prior written consent:
(a) a diminution in the Employee’s base compensation or incentive compensation opportunity;
(b) the failure by the Corporation, to pay to the Employee any portion of the Employee’s
current compensation, or to pay to the Employee any portion of an installment of deferred
compensation under any deferred compensation program of the Employer, within seven (7) days of the
date such compensation is due;
(c) the failure by the Corporation to continue in effect any compensation plan in which the
Employee participates immediately prior to the Change in Control which is material to the
Employee’s total compensation, unless an equitable arrangement (embodied in an ongoing substitute
or alternative plan) has been made with respect to such plan, or the failure by the Corporation to
continue the Employee’s participation therein (or in such substitute or alternative plan) on a
basis not materially less favorable, both in terms of the amount of benefits provided and the level
of the Employee’s participation relative to other participants, as existed at the time of the
Change in Control;
(d) the failure by the Corporation to continue to provide the Employee with benefits
substantially similar to those enjoyed by the Employee under any of the Corporation’s pension, life
insurance, medical, health and accident, or disability plans in which the Employee was
participating at the time of the Change in Control, the taking of any action by the Corporation
which would directly or indirectly materially reduce any of such benefits or deprive the Employee
of any material fringe benefit enjoyed by the Employee at the time of the Change in Control, or the
failure by the Corporation to provide the Employee with the number of paid vacation days to which
the Employee is entitled on the basis of years of service with the
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Corporation in accordance with the Employer’s normal vacation policy in effect at the time of the
Change in Control; or
(e) a diminution in the Employee’s title, authority, duties, responsibilities or reporting
relationships, including the requirement that the Employee report to a corporate officer or
employee instead of to the Board;
(f) a diminution in the authority, duties, or responsibilities of the supervisor to whom the
Employee is required to report;
(g) a diminution in the budget over which the Employee retains authority;
(h) a reassignment of the Employee to an office location twenty-five (25) miles or more from
the office location of the Employee prior to a Change in Control, except for required travel to an
extent substantially consistent with the Employee’s business travel obligations prior to a Change
in Control;
(i) the failure by the Corporation, in the event the Employee consents to a relocation at the
request of the Corporation or its successor, to pay (or reimburse the Employee) for all reasonable
moving expenses incurred by the Employee relating to a change of the Employee’s principal residence
in connection with such relocation and to indemnify the Employee against any loss realized on the
sale of the Employee’s principal residence in connection with any such change of residence; or
(j) any other action or inaction that constitutes a material breach of the terms of this
Agreement.
1.8 “Notice of Termination” shall mean a written notice that describes in reasonable detail
the facts and circumstances claimed to provide a basis for Termination.
1.9 “Termination” shall mean a “separation from service” with the Corporation and its
Affiliates within the meaning of Treasury Regulation §1.409A-l(h).
Section 2. Term of Agreement
Subject to Sections 5.3 and 6.3, the term of this Agreement shall commence on the Effective
Date and end on December 31, 2014 (the “Expiration
Date”).
Section 3. Effect of Termination
3.1 Termination for Any Reason Prior to or After the Change in Control Protection Period. The
Employee’s employment may be Terminated by the Corporation or by the Employee, in each case by
delivering a Notice of Termination, for any reason prior to a Change in Control or following the
expiration of the Change in Control Protection Period, and the Employee will not be entitled to any
payments or benefits under this Agreement.
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3.2 Termination During a Change in Control Protection Period.
(a) Termination Without Cause or for Good Reason. The Employee will be entitled to receive
the payments and benefits described in Section 4.1 if, during the Change in Control Protection
Period:
(i) The Corporation Terminates the Employee without Cause by delivering to the Employee a
Notice of Termination; or
(ii) The Employee Terminates for Good Reason by delivering to the Corporation a Notice of
Termination for Good Reason, provided that such Notice of Termination is delivered within ninety
(90) days of the initial existence of the condition constituting Good Reason and the Corporation
does not remedy the condition constituting Good Reason within thirty (30) days of the date of such
Notice of Termination. If the Employee fails to provide such written notice to the Corporation
within the period described above, then the Employee will be deemed to have consented to such
condition and the Corporation shall have no obligation to pay the compensation and benefits
described in Section 4.1 with respect to such condition.
(b) Termination for Any Other Reason. If, during a Change in Control Protection Period, the
Employee is Terminated or Terminates for any reason other than as described in Section 3.2(a),
including a Termination for Cause by the Corporation or due to the Employee’s death or disability
(within the meaning of Section 409A of the Code), the Employee will not be entitled to any payments
or benefits under this Agreement.
Section 4. Change in Control Severance Payments
4.1 Calculation of Severance Payments. Subject to the terms of this Agreement, if the
Employee is Terminated or Terminates for any reason described in Section 3.2(a), the Employee shall
be entitled to the following:
(a) Continued payment of the Employee’s compensation and provision of benefits through the
date of Termination. Any accrued, but unpaid amounts or benefits shall be paid in a lump sum within
thirty (30) days following the Employee’s date of Termination or, if earlier, the date specified in
the applicable plan, program or arrangement.
(b) An amount equal to any accrued, but unused vacation days, as determined under the
Corporation’s personnel policy, which amount shall be paid in a lump sum within thirty (30) days
following the Employee’s date of Termination.
(c) A lump sum cash payment, which shall be paid within thirty (30) days following the
Employee’s date of Termination, equal to the sum of: (i) two hundred percent (200%) of the
Employee’s base salary for the calendar year immediately preceding the year in which the date of
Termination occurs; plus (ii) two hundred percent (200%) of the Employee’s annual target bonus for
the fiscal year in which the date of Termination occurs.
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(d) For 18 months after the Employee’s date of Termination, the Corporation will maintain in
full force and effect, for the Employee’s continued benefit (and that of all family members and
other dependents who were enrolled in the programs on the Employee’s date of Termination) all life,
medical and dental insurance programs in which the Employee (and members of the Employee’s family
or other dependents) were participating or by which such individuals were covered immediately
before the Employee’s date of Termination. If the terms of any of such programs do not allow the
continued participation described in the preceding sentence, the Corporation will: (i) provide
benefits that are substantially similar (including eligibility conditions, conditions on benefits,
the value of benefits and the scope of coverage) to those provided by the life, medical and dental
insurance programs in which the Employee, members of the Employee’s family and dependents were
participating immediately before the Employee’s date of Termination; and (ii) ensure that any
eligibility or other conditions on benefits under these programs, including deductibles and
co-payments, will be administered by applying the Employee’s experience under any predecessor
program in which the Employee (and members of the Employee’s family and dependents) were
participating before Termination. With respect to this Section 4.1(d), any benefits or payments
relating to medical and dental insurance that are provided after completion of the applicable
continuation period permitted under the Consolidated Omnibus Budget Reconciliation Act of 1986, as
amended, and any benefits or payments relating to life insurance shall be subject to the following:
(A) the amount of expenses eligible for reimbursement or the benefits or payments provided during
any taxable year of the Employee may not affect the expenses eligible for reimbursement or the
benefits or payments to be provided to the Employee in any other taxable year; (B) reimbursement of
any eligible expense must be made on or before the last day of the Employee’s taxable year
following the taxable year in which the expense was incurred; and (C) the right to reimbursement or
to such benefits or payments is not subject to liquidation or exchange for another benefit. To the
extent that any benefit extended under this Section 4.1(d) would result in taxable compensation for
the Employee, the Employee shall be solely responsible for any such taxes.
(e) Reimbursement for all legal fees and expenses incurred by the Employee: (i) in disputing
in good faith any issue relating to the Termination of the Employee’s employment during the
Change-in-Control Protection Period; (ii) in seeking in good faith to obtain or enforce any benefit
or right provided by this Agreement; or (iii) in connection with any good faith dispute regarding
the application of Section 4.2 of this Agreement, including, but not limited to, any tax audit or
proceeding to the extent attributable to the application of Section 4999 of the Code to any payment
or benefit provided thereunder. Such payments shall be made within five (5) business days after
delivery of the Employee’s written requests for payment accompanied with such evidence of fees and
expenses incurred as the Corporation reasonably may require.
(f) Any other change in control benefits to which the Employee is entitled under any other
plan, program or agreement with the Corporation or any Affiliate. Such benefits shall be provided
in accordance with the terms and conditions of the applicable plan, program or agreement.
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4.2 Excess Parachute Payment.
(a) Notwithstanding anything to the contrary in this Agreement, if any payments or benefits
paid or payable to the Employee pursuant to this Agreement or any other plan, program or
arrangement maintained by the Corporation or an Affiliate would constitute a “parachute payment”
within the meaning of Section 280G of the Code, then the Employee shall receive the greater of: (i)
one dollar ($1.00) less than the amount which would cause the payments and benefits to constitute a
“parachute payment”; or (ii) the amount of such payments and benefits, after taking into account
all federal, state and local taxes, including the excise tax imposed under Section 4999 of the
Code, if such amount would be greater than the amount specified in Section 4.2(a), after taking
into account all federal, state and local taxes. Any reduction to any payment made pursuant to
Section 4.2(a) shall be made consistent with the requirements of Section 409A of the Code.
(b) All determinations required to be made under this Section 4.2 shall be made by a public
accounting firm that is retained by the Corporation to provide tax advice as of the date
immediately prior to the Change in Control (the “Accounting Firm"). The Accounting Firm shall
provide detailed supporting calculations both to the Corporation and the Employee within 15
business days of the receipt of notice from the Corporation or the Employee that there has been a
potential “parachute payment” within the meaning of Section 280G of the Code, or such earlier time
as requested by the Corporation. Notwithstanding the foregoing, in the event: (i) that the
Accounting Firm is precluded from performing such services under applicable auditor independence
rules; or (ii) the Accounting Firm is serving as accountant or auditor for the individual, entity
or group effecting the Change in Control, the Corporation shall appoint another nationally
recognized public accounting firm to be the Accounting Firm.
(c) If, pursuant to Section 4.2(a), any payment or benefit payable hereunder is required to be
reduced, the Accounting Firm shall provide a written opinion to the Employee that: (i) such
reduction is necessary in order for the Employee to avoid having to pay or report any excise tax
pursuant to Section 4999 of the Code; and (ii) that the Employee is not required to pay or report
any excise tax under Section 4999 of the Code on the Employee’s federal income tax return.
(d) All fees, costs and expenses (including, but not limited to, the costs of retaining
experts) of the Accounting Firm shall be borne by the Corporation. The determination by the
Accounting Firm shall be binding upon the Corporation and the Employee.
4.3 Conditions Affecting Payments.
(a) Except as expressly provided in this Agreement, the Employee’s right to receive the
payments and benefits described in this Agreement will not decrease the amount of, or otherwise
adversely affect, any other benefits payable to the Employee under any plan, agreement or
arrangement between the Employee and the Corporation or any Affiliate.
(b) The Employee is not required to mitigate the amount of any payment or benefit described in
this Agreement by seeking other employment or otherwise, nor will the
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amount of any payment or benefit provided for in this Agreement be reduced by any compensation
that the Employee earns in any capacity after Termination or by reason of the Employee’s receipt of
or right to receive any retirement or other benefits on or after Termination.
(c) The amount of any payment made under this Agreement will be reduced by amounts the
Corporation or any Affiliate is required to withhold with respect to any income, wage or employment
taxes imposed on the payment.
(d) Notwithstanding anything in this Agreement to the contrary, if the Employee is a
“specified employee” (within the meaning of Treasury Regulation §1.409A-l(i) and as determined
under the Corporation’s policy for determining specified employees) on the date of Termination and
any payment pursuant to Section 4.1(b) or 4.1(c) is subject to Section 409A of the Code, then such
payment shall not be paid to the Employee until the first day of the seventh month following the
Employee’s date of Termination or, if earlier, the date of the Employee’s death.
Section 5. Employee’s Obligations
5.1 Confidential Information. The Corporation’s and its Affiliates’ methods, plans for doing
business, processes, pricing, compounds, customers and supplies are vital and, to the extent not
made public by the Corporation or its Affiliates, constitute confidential information subject to
their proprietary rights therein. The Employee covenants and agrees that during the term of this
Agreement and at all times thereafter, the Employee will not, directly or indirectly, make known,
divulge, furnish, make available or use, otherwise than in the regular course of the Employee’s
employment or to the extent that disclosure is required pursuant to a compulsory proceeding in
which the Employee’s failure to disclosure such confidential information would subject the Employee
to criminal or civil sanctions, but only to the extent that Employee provides reasonable prior
notice to the Corporation prior to disclosure, any invention, product, process, apparatus or design
of the Corporation or its Affiliates, or any knowledge or information in respect thereof
(including, but not limited to, business methods and techniques), or any other confidential or
so-called “insider” information of the Corporation or its Affiliates. This covenant shall apply
without regard to the time or circumstances of any Termination of the Employee’s employment.
5.2 Non-Competition and Non-Solicitation. If within the Change in Control Protection Period,
the Employee shall have an involuntary Termination of employment by the Corporation other than for
Cause, or shall have a voluntary Termination of employment for Good Reason, then and for a period
of one (1) year immediately following the Termination Date, the Employee shall not, directly or
indirectly, either as an individual for the Employee’s own account or as an investor, or other
participant in, or as an employee agent, or representative of, any other business enterprise: (a)
solicit, employ, entice, take away or interfere with, or attempt to solicit, employ, entice, take
away or interfere with, the employment of any person who was an employee of the Corporation or any
Affiliate during the term of this Agreement; or (b) engage or participate in or finance, aid or be
connected with any enterprise which competes with the Corporation or any Affiliate during the term
of this Agreement. The geographical limitations of the foregoing
shall include any country in which the Corporation or any Affiliate shall be doing business as of
the Termination Date.
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5.3 Effect of Breach of Obligations. If the Employee breaches any obligation described in
this Agreement and such breach occurs before a Change in Control or before the Employee has
Terminated, this Agreement will terminate as of the date of the breach, even if the fact of the
breach becomes apparent at a later date.
Section 6. Waiver; Amendment; Termination
6.1 Waiver. No provisions of this Agreement may be waived or discharged unless such waiver or
discharge is expressly agreed to in writing signed by the Employee and such officer as may be
specifically designated by the Corporation. In the event that the Employee continues his or her
employment during the Change in Control Protection Period, such continued employment shall not
constitute a waiver or diminish or eliminate, in any way whatsoever, any of Employee’s rights or
obligations under this Agreement, including the Employee’s right to Terminate for Good Reason under
Section 3.2(a). No waiver by either party hereto at any time of any breach by the other party
hereto of or compliance with, any condition or provision of this Agreement to be performed by such
other party shall be deemed a waiver of similar or dissimilar provisions or conditions at the same
or at any prior or subsequent time.
6.2 Amendment. This Agreement may be amended at any time by written agreement between the
Employee and the Corporation.
6.3 Termination. Except as provided in Section 5.3, this Agreement will terminate prior to
the Expiration Date upon the earliest of the following to occur:
(a) The Employee’s Termination pursuant to Sections 3.1 or 3.2(b);
(b) The mutual written agreement of the Corporation and the Employee to terminate this
Agreement, whether or not it is replaced with a similar agreement; or
(c) The full payment and provision of all payments and benefits due under this Agreement have
been fully paid and provided.
6.4 Reimbursement of Legal Fees. If during the term of this Agreement, the Corporation seeks
the Employee’s express written consent to a waiver or amendment of this Agreement (as required
under Sections 6.1 and 6.2 hereof) or the termination of this Agreement under Section 6.3(b), the
Corporation shall reimburse the Employee for all legal fees and expenses incurred in good faith by
the Employee in relation to such requested waiver, amendment or termination. Such payments shall be
made within five (5) business days after delivery of the Employee’s written requests for payment
accompanied with such evidence of fees and expenses incurred as the Corporation reasonably may
require.
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Section 7. Equitable Relief; Dispute Resolution
7.1 Uniqueness of Obligations. The Employee’s obligations described in Section 5 of this
Agreement are of a special and unique character which gives them a peculiar value to the
Corporation and its Affiliates and the Corporation and its Affiliates cannot be reasonably or
adequately compensated in damages in an action at law if the Employee breaches those obligations.
The Employee therefore expressly agrees that, in addition to any other rights or remedies that the
Corporation or its Affiliates may have, the Corporation or its Affiliates will be entitled to
injunctive and other equitable relief in the form of preliminary and permanent injunctions without
bond or other security if the Employee actually breaches (or threatens to breach) any obligation
under this Agreement.
7.2 Arbitration. Except as provided in Section 7.1, any: (a) disagreement concerning the
calculation of any payment due under this Agreement; (b) breach of any term of this Agreement; or
(c) other dispute or controversy arising out of or relating to this Agreement, including the basis
on which the Employee is Terminated, will be resolved by arbitration in accordance with the rules
of the American Arbitration Association. The award of the arbitrator will be final, conclusive and
nonappealable and judgment upon the award rendered by the arbitrator may be entered in any court
having competent jurisdiction. The arbitrator must be an arbitrator qualified to serve in
accordance with the rules of the American Arbitration Association and one who is approved by the
Corporation and the Employee. If the Employee and the Corporation fail to agree on an arbitrator,
each must designate a person qualified to serve as an arbitrator in accordance with the rules of
the American Arbitration Association and these persons will select the arbitrator from among those
persons qualified to serve in accordance with the rules of the American Arbitration Association.
Any arbitration relating to this Agreement will be held in Akron, Ohio. Each party shall bear its
own costs of arbitration, except that that the parties will equally share in the cost of the
arbitrator.
Section 8. Miscellaneous
8.1 Nonassignment. The right of the Employee or any other person to receive any payment or
benefit under this Agreement may not be assigned, transferred, pledged or encumbered except by will
or by applicable laws of descent and distribution. Any attempt to assign, transfer, pledge or
encumber any payment or benefit that is or may be receivable under this Agreement will be null and
void and of no legal effect.
8.2 Successors to the Employee. Subject to Section 6.3, this Agreement inures to the benefit
of and may be enforced by the Employee’s personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees.
8.3 Notices. All notices and other communications provided for in this Agreement must be in
writing and will be deemed to have been given when deposited with a reputable delivery service or
in United States registered mail, return receipt requested, postage prepaid. For purposes of this
Agreement:
(a) all notices must be directed to the addresses shown on the last page of this Agreement;
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(b) notices and other communications to the Corporation will not be deemed to have been given
unless they are directed to the attention of the Corporation’s Director of Human Resources and
copies are sent to the Corporation’s Secretary; and
(c) neither party will be required to use any address other than that shown on the last page
of this Agreement unless notified of a change in the other party’s address. Any change in either
party’s address must be given in writing to the other party and will be effective only upon
receipt.
8.4 Complete Agreement. No agreements or representations, oral or otherwise, express or
implied, with respect to the subject matter of this Agreement have been made by either party that
are not set forth expressly in this Agreement.
8.5 Applicable Law. The validity, interpretation, construction and performance of this
Agreement will be governed by the laws (but not the law of conflicts of laws) of the State of Ohio.
8.6 Validity. The invalidity or unenforceability of any provisions of this Agreement will not
affect the validity or enforceability of any other provisions of this Agreement, which will remain
in full force and effect.
8.7 Counterparts. This Agreement may be executed in several counterparts, each of which shall
be deemed to be an original but all of which together will constitute one and the same instrument.
8.8 Section 409A of the Code. This Agreement is intended to comply with or be exempt from
Section 409A of the Code and shall be interpreted, construed and operated consistent with this
intent.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as of the date
and year first above written.
| X. XXXXXXXX,
INC. |
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| By: | ||||
| Title: | ||||
| Address: 3550 West Market Street Akron, Ohio 44333 |
||||
| [NAME OF EXECUTIVE] |
||||
| Address: | ||||
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