exv10w32






Exhibit 10.32




EXECUTION COPY




THE HILLMAN GROUP, INC.

AMENDED AND RESTATED EMPLOYMENT AGREEMENT




     THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this “Agreement”) is made as of
December 21, 2008, by and between The Hillman Group, Inc., a Delaware corporation (the
“Company”), and James P. Waters (“Executive”).



     WHEREAS, the Company and Executive entered into that certain Employment Agreement (the
“Preceding Employment Agreement”) dated March 31, 2004, which was executed concurrently
with the merger of HCI Acquisition Corp., a Delaware corporation, with and into The Hillman
Companies, Inc., a Delaware corporation and the indirect parent of the Company (“Hillman”).



     WHEREAS, the Company and Executive desire to amend and restate the Preceding Employment
Agreement in its entirety as set forth herein.



     In consideration of the mutual covenants contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:



     1. Employment. The Company shall employ Executive, and Executive hereby accepts
employment with the Company, upon the terms and conditions set forth in this Agreement for the
period beginning on the date hereof and ending as provided in Section 4(a) hereof (the
“Employment Period”).



     2. Position and Duties.



          (a) During the Employment Period, Executive shall serve as the Chief Financial Officer of the
Company and shall have the normal duties, responsibilities, functions and authority of the Chief
Financial Officer, subject to the power and authority of the Board or the Chief Executive Officer
to expand or limit such duties, responsibilities, functions and authority and to overrule actions
of officers of the Company. During the Employment Period, Executive shall render such
administrative, financial and other executive and managerial services to Hillman and its
Subsidiaries which are consistent with Executive’s position as the Board or the Chief Executive
Officer may from time to time direct.




          (b) During the Employment Period, Executive shall report to the Board and the Chief Executive
Officer and shall devote his best efforts and his full business time and attention (except for
permitted vacation periods and reasonable periods of illness or other incapacity) to the business
and affairs of Hillman and its Subsidiaries. Executive shall perform his duties, responsibilities
and functions to Hillman and its Subsidiaries hereunder to the best of his abilities in a diligent,
trustworthy, professional and efficient manner and shall comply with



 









 






the Company’s and its Subsidiaries’ policies and procedures in all material respects. During
the Employment Period, Executive shall not serve as an officer or director of, or otherwise perform
services for compensation for, any other entity without the prior written consent of the Board;
provided that Executive may serve as an officer or director of, or otherwise participate
in, purely educational, welfare, social, religious or civic organizations so long as such
activities do not interfere with Executive’s employment.




          (c) For purposes of this Agreement, “Subsidiaries” shall mean, with respect
to any Person, any corporation, limited liability company, partnership, association, or business
entity of which (i) if a corporation, a majority of the total voting power of shares of stock
entitled (without regard to the occurrence of any contingency) to vote in the election of
directors, managers, or trustees thereof is at the time owned or controlled, directly or
indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination
thereof, or (ii) if a limited liability company, partnership, association, or other business entity
(other than a corporation), a majority of partnership or other similar ownership interest thereof
is at the time owned or controlled, directly or indirectly, by any Person or one or more
Subsidiaries of the Person or a combination thereof. For purposes hereof, a Person or Persons
shall be deemed to have a majority ownership interest in a limited liability company, partnership,
association, or other business entity (other than a corporation) if such Person or Persons shall be
allocated a majority of limited liability company, partnership, association or other business
entity gains or losses or shall be or control any managing director or member or general partner of
such limited liability company, partnership, association, or other business entity. For purposes
hereof, “Person” shall mean an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint venture, an
unincorporated organization, or a governmental entity or any department, agency, or political
subdivision thereof.




     3. Compensation and Benefits.



          (a) During the Employment Period, Executive’s base salary shall be $220,000 per annum or such
higher rate as the Board may determine from time to time (such amount, as may be increased from
time to time, and not decreased after any such increase, based on no less frequent than an annual
review by the Board, the “Base Salary”), which Base Salary shall be payable by the Company
in regular installments in accordance with the Company’s general payroll practices in effect from
time to time. During the period beginning on the date of this Agreement and ending December 31,
2008, the Base Salary shall be pro rated on an annualized basis. In addition, during the
Employment Period, Executive shall be entitled to participate in employee benefit programs and
receive perquisites reasonably comparable to those in effect as of the date hereof and as
determined by the Board, including, without limitation, participation in group health insurance and
disability insurance, life insurance, MERP benefits (up to $2,500 of out-of-pocket medical expenses
per annum), participation in the Company’s 401K plan, vacation and paid holidays and participation
in the Company’s deferred compensation plan (provided that any participation in such deferred
compensation plan is funded solely by the Executive other than match by the Company of $.25 per
$1.00 up to $2,500). During the Employment Period, the Company shall reimburse Executive for
reasonable expenses incurred by Executive in connection with leasing an automobile (including lease
payments, licenses and insurance) not to exceed $700 per month (or, if Executive seeks to purchase
an automobile, reimbursement of







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reasonable expenses incurred in connection with such purchase, including car loan payments,
licenses and insurance), subject to the Company’s requirements with respect to reporting and
documentation of such expenses. Executive shall bear the cost of gas, cost of repairs on the
automobile, and costs of any tickets, traffic offenses or fines of any kind.




          (b) During the Employment Period, the Company shall reimburse Executive for all
ordinary and reasonable business expenses incurred by him in the course of performing his duties
and responsibilities under this Agreement which are consistent with the Company’s policies in
effect from time to time with respect to travel, entertainment and other business expenses, subject
to the Company’s requirements with respect to reporting and documentation of such expenses.




          (c) In addition to the Base Salary, the Company shall pay to Executive cash bonus
compensation pursuant to the terms of a performance-based bonus plan. The bonus plan will provide
for performance-based targets to be agreed to annually by the Chief Executive Officer of the
Company and the Board. If 100% of such bonus targets are met in a year, Executive shall be
entitled to a bonus equal to 35% of his Base Salary for that year. If the Company and its
Subsidiaries perform at a level in excess of 100% of the bonus targets, the Executive shall be
entitled to a proportionately higher amount of bonus compensation up to a maximum of 70% of his
Base Salary for that year, i.e., with each 1% increase above 100% of the bonus target, Executive
shall be entitled to an additional 0.35% of his Base Salary for that year. Executive shall be
entitled to bonus compensation in a proportionately reduced amount if the Company and its
Subsidiaries perform at a level that is less than 100% of the bonus targets but in excess of 85% of
the bonus targets, i.e., with each 1% decrease below 100% of the bonus target, Executive’s bonus
shall be reduced from the bonus he would have received had the Company and its Subsidiaries met
100% of the bonus target by 0.35% of his Base Salary for that year. Executive shall not be
entitled to a bonus if 85% or less of the bonus targets are met. Bonuses shall be paid in the
calendar year immediately following the calendar year that contains the end of the relevant
performance period and in accordance with the Company’s general payroll practices (in effect from
time to time).




     4. Term.



          (a) The Employment Period shall be three years beginning effective as of March 31, 2008 (the
“Initial Term”) and shall automatically be renewed on the same terms and conditions set
forth herein as modified from time to time by the parties hereto for additional one-year periods
unless the Company or Executive gives the other party written notice of the election not to renew
the Employment Period (a “Notice of Non-Renewal”) at least 180 days prior to any such renewal date
(the end of the Initial Term or the end of an effective one-year extension period being referred to
herein as the “Expiration Date”); provided that (i) the Employment Period shall
terminate prior to its Expiration Date immediately upon Executive’s resignation (with or without
Good Reason, as defined below), death or Disability, and (ii) the Employment Period may be
terminated by the Company at any time prior to its Expiration Date for Cause (as defined below) or
without Cause. Except as otherwise provided herein, any termination of the Employment Period by
the Company shall be effective as specified in a written notice from the Company to Executive.
Notwithstanding anything to the contrary herein, the termination of the







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employment of the Executive as a result of the Company providing the Executive a Notice of
Non-Renewal shall be treated as a termination of the Executive without Cause.




          (b) In the event of Executive’s death or Disability, or upon the Expiration Date, Executive
shall be entitled to payment of all accrued and unpaid salary (including accrued vacation), expense
reimbursement pursuant to Section 3(b) of this Agreement, and a pro rata share (based on
the number of days that have elapsed from the beginning of the bonus period until the date of
termination of the Employment Period) of that year’s bonus as determined pursuant to Section
3(c) above. In addition, in the event of Executive’s Disability, the Company shall use
commercially reasonable efforts to allow Executive to participate in the Company’s group health
coverage, to the extent permitted by its insurers and under the same terms and conditions that
generally apply to Company employees; provided that Executive pays all of the premiums and similar
costs and expenses for such coverage. Executive shall not be entitled to receive his Base Salary,
or any other perquisites or employee benefits or bonuses for periods after the termination of the
Employment Period, except as otherwise specifically provided for in the Company’s employee benefit
plans or as otherwise expressly required by applicable law.




          (c) If the Employment Period is terminated by the Company for Cause, or if Executive resigns
without Good Reason, Executive shall only be entitled to receive his Base Salary through the date
of such termination, resignation or expiration, accrued vacation and expense reimbursement pursuant
to Section 3(b) of this Agreement. In addition, the Company shall use commercially
reasonable efforts to allow Executive to participate in the Company’s group health coverage, to the
extent permitted by its insurers and under the same terms and conditions that generally apply to
Company employees; provided that Executive pays all of the premiums and similar costs and expenses
for such coverage. Executive shall not be entitled to any other salary, bonuses, employee
benefits, perquisites or other compensation from the Company or its Subsidiaries thereafter, except
as otherwise specifically provided for under the Company’s employee benefit plans or as otherwise
expressly required by applicable law.




          (d) If the Employment Period is terminated by the Company without Cause or if Executive
resigns with Good Reason, then Executive shall be entitled to receive severance compensation in an
amount as determined below:




               (i) If the Employment Period is terminated by the Company without Cause or if Executive
resigns with Good Reason, then Executive shall be entitled to receive (A) an amount equal to his
then applicable Base Salary, (B) the Termination Bonus Amount (as defined in Section
4(d)(ii)), if such termination is during the Initial Term, or 50% of the Termination Bonus
Amount, if such termination is after the Initial Term, and (C) health continuation coverage during
the period beginning on the date of the termination of the Employment Period and ending twelve
months thereafter, at the Company’s expense. For purposes of determining Executive’s rights to
COBRA continuation coverage, the date of termination of the Employment Period shall be the date of
the COBRA qualifying event. In addition, Executive shall be permitted to participate, during the
period beginning on the date of the termination of the Employment Period and ending six months
thereafter, in the Company’s group life and disability coverages, to the extent permitted by its
insurers and under the same terms and conditions that generally apply to Company employees, at the
Company’s expense.



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               (ii) The severance payments outlined in (i) and (ii) of this Section
4(d) are in addition to all accrued and unpaid Base Salary through the date of termination of
the Employment Period, plus accrued vacation, plus a prorated portion (based on the number of days
which have elapsed from the beginning of the bonus period until the date of termination of the
Employment Period) of the bonus for the year in which the termination occurs (as determined
pursuant to Section 3(c) above), plus expense reimbursement pursuant to Section
3(b) of this Agreement. In addition, the Company shall use commercially reasonable efforts to
allow Executive to participate in the Company’s group health coverage, to the extent permitted by
its insurers and under the same terms and conditions that generally apply to Company employees;
provided that, if not a part of the severance payments outlined in Section
4(d)(i)(C) above, Executive pays all of the premiums and similar costs and expenses for such
coverage. Severance payments will be paid and benefit coverage will be provided only if Executive
delivers to the Company an executed Release Agreement in the form of Exhibit A attached
hereto and only so long as Executive has not breached the provisions of Sections 6 and
7 hereof. Severance payments under Section 4(d)(i)(A) above shall be paid by
continuation of regular payroll compensation payments beginning on the date of termination of the
Employment Period but in no event less frequently than monthly and continuing in the case of
Section 4(d)(i)(A), for one year commencing as provided in Section 5. Severance
payments under Section 4(d)(i)(B) above shall be paid annually in each calendar year that
includes the date bonuses are paid in the year following the date of termination of the Employment
Period. For purposes of Section 4(d) hereof, “Termination Bonus Amount” shall mean
an amount equal to the greater of: (A) the annual average of Executive’s annual bonuses for the
preceding three years and (B) the amount of Executive’s last annual bonus received prior to the
termination of the Employment Period.



          (e) If a Change of Control occurs, and within 90 days after such Change of Control,
the Employment Period is terminated by the Company without Cause or Executive resigns with Good
Reason, Executive shall be entitled to a lump sum payment payable 30 days after such termination or
resignation in an amount equal to the amount payable pursuant to Sections 4(d)(i)(A) and
(B). In addition, Executive shall be entitled to receive his Base Salary through the date of
such termination or resignation, accrued vacation, a prorated portion (based on the number of days
which have elapsed from the beginning of the bonus period until the date of termination of the
Employment Period) of the bonus for the year in which the termination occurs and expense
reimbursement pursuant to Section 3(b) of this Agreement. In addition, the Company shall
use commercially reasonable efforts to allow Executive to participate in the Company’s group health
coverage, to the extent permitted by its insurers and under the same terms and conditions that
generally apply to Company employees; provided that Executive pays all of the premiums and similar
costs and expenses for such coverage. Payments will not be paid under this Section 4(e)
unless Executive delivers to the Company an executed Release Agreement in the form of Exhibit
A attached hereto. A “Change of Control” means any transaction or series of
transactions pursuant to which any Person(s) or a group of related Persons (other than the
investors purchasing shares in Hillman and/or its Subsidiaries as of the date hereof and their
affiliates) in the aggregate acquire(s) (i) capital stock of Hillman possessing the voting power
(other than voting rights accruing only in the event of a default, breach or event of
noncompliance) to elect a majority of the board of Hillman (whether by merger, consolidation,
reorganization, combination, sale or transfer of Hillman’s capital stock, shareholder or
voting agreement, proxy, power of attorney or otherwise) or (ii) all or







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substantially all of Hillman’s assets determined on a consolidated basis; provided, that a
Change of Control shall not include a Public Offering; provided, further, that such
Change of Control also constitutes a change in control event for purposes of Code Section 409A (as
defined below) (a “409A Change of Control”). A “Public Offering” means an
underwritten initial public offering and sale, registered under the Securities Act, of shares of
Hillman’s common stock. In the event the Change of Control is not a 409A Change in Control, the
payments described in this Section 4(e) shall still be paid, but the schedule of such
payments shall be the schedules described in Section 4(d).




          (f) The amounts payable pursuant to Sections 4(d) and 4(e) are mutually
exclusive, and under no circumstances shall Executive be entitled to receive payments under both
Sections.




          (g) Executive agrees and acknowledges that Executive shall be responsible for the payment of
any and all taxes arising from continued coverage under the Company’s benefit plans.




          (h) Upon the expiration of the Employment Period, to the extent permitted under the terms of
any applicable life insurance policy, Executive shall be permitted to purchase from the Company
life insurance policies issued in his name; provided that Executive pays the purchase price of any
such life insurance policies, including any fees and expenses associated with such a transfer.




          (i) For purposes of this Agreement, “Cause” is defined as (i) willful failure to
substantially perform duties hereunder, other than due to Disability; (ii) willful act which
constitutes gross misconduct or fraud and which is injurious to Hillman or its Subsidiaries; (iii)
conviction of, or plea of guilty or no contest, to a felony or (iv) material breach of
confidentiality, noncompete or non-solicitation agreements (including Sections 6 and
7 hereof) with the Company which is not cured within ten (10) days after written notice
from the Company.




          (j) For purposes of this Agreement, “Good Reason” means termination of this Agreement
by Executive due to (i) any material diminution in Executive’s position, authority or duties with
the Company, (ii) the Company reassigning Executive to work at a location that is more than
seventy-five (75) miles from his current work location, (iii) any amendment to the Company’s bylaws
which results in a material and adverse change to the officer and director indemnification
provisions contained therein or (iv) a material breach of Sections 3 or 4 of this
Agreement by the Company which is not cured within 10 days following written notice from Executive.
For purposes of this Agreement, the “HCI Stockholders Agreement” means the HCI
Stockholders Agreement dated as of the date hereof by and among HCI Acquisition Corp., Code
Hennessy & Simmons IV LP, Ontario Teachers’ Pension Plan Board, HarbourVest Partners, LLC and each
of the other purchasers listed on Schedule A attached thereto.




          (k) For purposes of this Agreement, “Disability” shall mean Executive’s inability to
perform the essential duties, responsibilities and functions of his position with the Company and
its Subsidiaries for more than 26 weeks in any 12-month period as a result of any






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mental or physical disability or incapacity as defined in the Americans with Disabilities Act
or as otherwise determined by the Board in its reasonable good faith judgment.




     5. Section 409A Compliance.



          (a) The intent of the parties is that payments and benefits under this Agreement comply with
Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder
(collectively “Code Section 409A”) and, accordingly, to the maximum extent permitted, this
Agreement shall be interpreted to be in compliance therewith. In no event whatsoever shall the
Company be liable for any additional tax, interest or penalty that may be imposed on Executive by
Code Section 409A or damages to Executive for failing to comply with 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) To the extent that severance payments or benefits pursuant to this Agreement are
conditioned upon the execution and delivery by Executive of a release of claims, Executive shall
forfeit all rights to such payments and benefits unless such release is signed and delivered (and
no longer subject to revocation, if applicable) within sixty (60) days following the date of
Executive’s termination of employment. If the foregoing release is executed and delivered and no
longer subject to revocation as provided in the preceding sentence, then the following shall apply:




               (i) To the extent any such cash payment or continuing benefit to be provided is not “deferred
compensation” for purposes of Code Section 409A, then such payment or benefit shall commence upon
the first scheduled payment date immediately after the date the release is executed and no longer
subject to revocation (the “Release Effective Date”). The first such cash payment shall
include payment of all amounts that otherwise would have been due prior to the Release Effective
Date under the terms of this Agreement applied as though such payments commenced immediately upon
Executive’s termination of employment, and any payments made thereafter shall continue as provided
herein. The delayed benefits shall in any event expire at the time such benefits would have
expired had such benefits commenced immediately following Executive’s termination of employment.



               (ii) To the extent any such cash payment or continuing benefit to be provided is “deferred
compensation” for purposes of Code Section 409A, then such payments or benefits shall be made or
commence upon the sixtieth (60) day following Executive’s termination of employment. The first
such cash payment shall include payment of all amounts that otherwise would have been due prior
thereto under the terms of this Agreement had such payments commenced immediately upon Executive’s
termination of employment, and any payments made thereafter shall continue as provided herein. The
delayed benefits shall in any event expire at the



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time such benefits would have expired had such benefits commenced immediately following
Executive’s termination of employment.




     The Company may provide, in its sole discretion, that Executive may continue to participate in
any benefits delayed pursuant to this section during the period of such delay, provided that
Executive shall bear the full cost of such benefits during such delay period. Upon the date such
benefits would otherwise commence pursuant to this Section, the Company may reimburse Executive the
Company’s share of the cost of such benefits, to the extent that such costs would otherwise have
been paid by the Company or to the extent that such benefits would otherwise have been provided by
the Company at no cost to Executive, in each case had such benefits commenced immediately upon
Executive’s termination of employment. Any remaining benefits shall be reimbursed or provided by
the Company in accordance with the schedule and procedures specified herein.



          (d) To the extent that this Agreement provides for the reimbursement of expenses or the
provision of in-kind benefits that constitute “non-qualified deferred compensation” under Code
Section 409A, the following shall apply: (i) All such reimbursements under shall be made on or
prior to the last day of the taxable year following the taxable year in which such expenses were
incurred by the Employee; (ii) Any right to reimbursement or in kind benefits shall not be subject
to liquidation or exchange for another benefit; and (iii) No such reimbursement, expenses eligible
for reimbursement, or in-kind benefits provided in any taxable year shall in any way affect the
expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year.




          (e) For purposes of Code Section 409A, Executive’s right to receive any installment payment
pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct
payments.




          (f) Whenever a payment under this Agreement specifies a payment period with reference to a
number of days (e.g., “payment shall be made within thirty (30) days following the date of
termination”), the actual date of payment within the specified period shall be within the sole
discretion of the Company.




          (g) Notwithstanding any other provision of this Agreement to the contrary, in no event shall
any payment under this Agreement that constitutes “deferred compensation” for purposes of Code
Section 409A be subject to offset by any other amount unless otherwise permitted by Code Section
409A.




     6. Confidential Information.



          (a) Obligation to Maintain Confidentiality. Executive acknowledges that the
information, observations and data (including trade secrets) obtained by him during the course of
his employment with the Company and its Subsidiaries concerning the business or affairs of Hillman
or any its Subsidiaries (“Confidential Information”) are the property of Hillman or such
Subsidiary. Therefore, Executive agrees that he shall not disclose to any person or entity or use
for his own purposes any Confidential Information without the prior written consent of the
Board, unless and to the extent that the Confidential Information becomes generally known to








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and available for use by the public other than as a result of Executive’s acts or omissions.
Executive shall deliver to the Company at the termination or expiration of the Employment Period,
or at any other time the Company may request in writing, all memoranda, notes, plans, records,
reports, computer files, disks and tapes, printouts and software and other documents and data (and
copies thereof) embodying or relating to Confidential Information, Third Party Information (as
defined in Section 6(b) below), Work Product (as defined in Section 6(c) below) or
the business of Hillman or any other Subsidiaries which he may then possess or have under his
control.




          (b) Third Party Information. Executive understands that Hillman and its Subsidiaries
and Affiliates will receive from third parties confidential or proprietary information (“Third
Party Information”) subject to a duty on Hillman’s and its Subsidiaries’ and affiliates’ part
to maintain the confidentiality of such information and to use it only for certain limited
purposes. During the Employment Period and thereafter, and without in any way limiting the
provisions of Section 6(a) above, Executive will hold Third Party Information in the
strictest confidence and will not disclose to anyone (other than personnel of Hillman or its
Subsidiaries and affiliates who need to know such information in connection with their work for
Hillman or such Subsidiaries and affiliates) or use, except in connection with his work for Hillman
or its Subsidiaries and affiliates, Third Party Information unless expressly authorized by a member
of the Board in writing.




          (c) Intellectual Property, Inventions and Patents. Executive acknowledges that all
discoveries, concepts, ideas, inventions, innovations, improvements, developments, methods,
designs, analyses, drawings, reports, patent applications, copyrightable work and mask work
(whether or not including any confidential information) and all registrations or applications
related thereto, all other proprietary information and all similar or related information (whether
or not patentable) which relate to Hillman’s or any of its Subsidiaries’ actual or anticipated
business, research and development or existing or future products or services and which are
conceived, developed or made by Executive (whether alone or jointly with others) while employed by
the Company and its Subsidiaries, whether before or after the date of this Agreement (“Work
Product”), belong to the Company or such Subsidiary. Executive shall promptly disclose such
Work Product to the Board and, at the Company’s expense, perform all actions reasonably requested
by the Board (whether during or after the Employment Period) to establish and confirm such
ownership (including, without limitation, assignments, consents, powers of attorney and other
instruments). Executive acknowledges that all Work Product shall be deemed to constitute “works
made for hire” under the U.S. Copyright Act of 1976, as amended.




     7. Non-Compete, Non-Solicitation.



          (a) Non-Compete. In further consideration of the compensation to be paid to Executive
hereunder, Executive acknowledges that during the course of his employment with the Company and its
Subsidiaries he has and shall become familiar with the Company’s trade secrets and with other
Confidential Information and that his services have been and shall continue to be of special,
unique and extraordinary value to the Company and its Subsidiaries. Therefore, Executive agrees
that, during the Employment Period and (i) in the event of termination of the







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Employment Period by the Company without Cause or resignation by Executive with Good Reason, one
year following the date of such termination of the Employment Period, or (ii) in the event
of termination of the Employment Period by the Company without Cause or by Executive with Good
Reason within ninety (90) days of a Change of Control which occurs after the third anniversary of
the date hereof, one year following the date of such termination of the Employment Period,
or (iii) in the event of termination of the Employment Period by the Company for Cause or
by Executive without Good Reason, one year following the date of such termination of the Employment
Period, or (iv) upon the expiration on the Expiration Date of the Employment Period or
termination of the Employment Period due to Disability, one year following the date of such
termination of the Employment Period, Executive shall not, directly or indirectly own any interest
in, manage, control, participate in, consult with, render services for, be employed in an
executive, managerial or administrative capacity by, or in any manner engage in any business
competing with the businesses of the Company or its Subsidiaries, as such businesses exist or are
in the process of being implemented during the Employment Period or on the date of the termination
or expiration of the Employment Period, within any geographical area in which the Company or its
Subsidiaries engage or plan to engage in such businesses. Executive acknowledges (i) that the
business of the Company and its Subsidiaries will be conducted throughout the United States, (ii)
notwithstanding the state of incorporation or principal office of the Company or any of its
Subsidiaries, or any of its executives or employees (including the Executive), it is expected that
the Company and its Subsidiaries will have business activities and have valuable business
relationships within its industry throughout the United States and (iii) as part of his
responsibilities, Executive will be traveling throughout the United States in furtherance of the
business and relationships of the Company and its Subsidiaries. Nothing herein shall prohibit
Executive from being a passive owner of not more than 2% of the outstanding stock of any class of a
corporation which is publicly traded, so long as Executive has no active participation in the
business of such corporation.




          (b) Non-Solicitation. During the Employment Period and for two years following the
date of termination or expiration of the Employment Period, Executive shall not directly or
indirectly through another person or entity (i) induce or attempt to induce any employee of the
Company or any Subsidiary to leave the employ of the Company or such Subsidiary, or in any way
interfere with the relationship between the Company or any Subsidiary and any employee thereof,
(ii) hire any person who was an employee of the Company or any Subsidiary at any time during the
Employment Period or (iii) induce or attempt to induce any customer, supplier, licensee, licensor,
franchisee or other business relation of the Company or any Subsidiary to cease doing business (or
materially reduce the amount of business done) with the Company or such Subsidiary, or in any way
interfere with the relationship between any such customer, supplier, licensee or business relation
and the Company or any Subsidiary (including, without limitation, making any negative or
disparaging statements or communications regarding the Company or its Subsidiaries).




          (c) Scope of Restrictions. If, at the time of enforcement of this Section 7,
a court shall hold that the duration, scope or area restrictions stated herein are unreasonable
under circumstances then existing, the parties agree that the maximum duration, scope or area
reasonable under such circumstances shall be substituted for the stated duration, scope or area






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and that the court shall be allowed to revise the restrictions contained herein to cover the
maximum period, scope and area permitted by law.




          (d) Equitable Relief. In the event of the breach or a threatened breach by Executive
of any of the provisions of this Section 7, the Company would suffer irreparable harm, and
in addition and supplementary to other rights and remedies existing in its favor, the Company shall
be entitled to specific performance and/or injunctive or other equitable relief from a court of
competent jurisdiction in order to enforce or prevent any violations of the provisions hereof
(without posting a bond or other security). In addition, in the event of a breach or violation by
Executive of this Section 7, the time periods referenced in this Section 7 shall be
automatically extended by the amount of time between the initial occurrence of the breach or
violation and when such breach or violation has been duly cured.




     8. Executive’s Representations. Executive hereby represents and warrants to the
Company that (i) the execution, delivery and performance of this Agreement by Executive do not and
shall not conflict with, breach, violate or cause a default under any contract, agreement,
instrument, order, judgment or decree to which Executive is a party or by which he is bound, (ii)
Executive is not a party to or bound by any employment agreement, noncompete agreement or
confidentiality agreement with any other person or entity and (iii) upon the execution and delivery
of this Agreement by the Company, this Agreement shall be the valid and binding obligation of
Executive, enforceable in accordance with its terms. Executive hereby acknowledges that the
provisions of Section 7 above are in consideration of (i) employment (as employee or
consultant) with the Company, (ii) the issuance of certain securities of Hillman under the
Executive Securities Agreement between Executive and Hillman and (iii) additional good and valuable
consideration as set forth in this Agreement. In addition, Executive agrees and acknowledges that
the restrictions contained in Section 7 above are reasonable, do not preclude him from
earning a livelihood, that he has reviewed his rights and obligations under this Agreement with his
legal counsel and that he fully understands the terms and conditions contained herein. In
addition, Executive agrees and acknowledges that the potential harm to the Company of the
non-enforcement of Section 7 outweighs any potential harm to Executive of its enforcement
by injunction or otherwise. Executive acknowledges that he has carefully read this Agreement and
has given careful consideration to the restraints imposed upon Executive by this Agreement, and is
in full accord as to their necessity for the reasonable and proper protection of confidential and
proprietary information of the Company now existing or to be developed in the future. Executive
expressly acknowledges and agrees that each and every restraint imposed by this Agreement is
reasonable with respect to subject matter, time period and geographical area.



     9. Survival. Sections 4(b) through 22, inclusive, shall survive and
continue in full force in accordance with their terms notwithstanding the expiration or termination
of the Employment Period.



     10. Notices. Any notice provided for in this Agreement shall be in writing and shall
be either personally delivered, sent by reputable overnight courier service or mailed by first
class mail, return receipt requested, to the recipient at the address below indicated:




Notices to Executive:



11









 






James P. Waters

10590 Hamilton Avenue

Cincinnati, OH 45231

Telecopy: (513) 851-5531




Notices to the Company:




The Hillman Group, Inc.

10590 Hamilton Avenue

Cincinnati, OH 45231

Attn: Chief Executive Officer




and




Code Hennessy & Simmons LLC

10 South Wacker Drive, Suite 3175

Chicago, IL 60606

Telecopy: (312) 876-1840

Attn: Peter M. Gotsch




With copies, which shall not constitute notice, to:




Kirkland & Ellis LLP

200 East Randolph Drive

Chicago, Illinois 60601

Telecopy: (312) 861-2200

Attn: Stephen L. Ritchie, P.C.


or such other address or to the attention of such other person as the recipient party shall have
specified by prior written notice to the sending party. Any notice under this Agreement shall be
deemed to have been given when so delivered, sent or mailed.




     11. Severability. Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be invalid, illegal or unenforceable in any respect under any
applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall
not affect any other provision of this Agreement or any action in any other jurisdiction, but this
Agreement shall be reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.



     12. Complete Agreement. This Agreement and those documents expressly referred to
herein and other documents of even date herewith embody the complete agreement and understanding
among the parties and supersede and preempt any prior understandings, agreements or representations
by or among the parties, written or oral, which may have related to the subject matter hereof in any way (including, without
limitation, the Preceding Employment



12









 




Agreement and the Management Term Sheet dated February 14, 2004, which shall be terminated and of
no further force or effect as of the date of the execution and delivery of this Agreement, but
excluding any breaches thereof by either party prior to the date hereof).




     13. No Strict Construction. The language used in this Agreement shall be deemed to be
the language chosen by the parties hereto to express their mutual intent, and no rule of strict
construction shall be applied against any party.



     14. Counterparts. This Agreement may be executed in separate counterparts, each of
which is deemed to be an original and all of which taken together constitute one and the same
agreement.



     15. Successors and Assigns. This Agreement is intended to bind and inure to the
benefit of and be enforceable by Executive, the Company and their respective heirs, successors and
assigns, except that Executive may not assign his rights or delegate his duties or obligations
hereunder without the prior written consent of the Company.



     16. Choice of Law. All issues and questions concerning the construction, validity,
enforcement and interpretation of this Agreement and the exhibits and schedules hereto shall be
governed by, and construed in accordance with, the laws of the State of Delaware, without giving
effect to any choice of law or conflict of law rules or provisions (whether of the State of
Delaware or any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Delaware.



     17. Amendment and Waiver. The provisions of this Agreement may be amended or waived
only with the prior written consent of the Company (as approved by the Board) and Executive, and no
course of conduct or course of dealing or failure or delay by any party hereto in enforcing or
exercising any of the provisions of this Agreement (including, without limitation, the Company’s
right to terminate the Employment Period for Cause) shall affect the validity, binding effect or
enforceability of this Agreement or be deemed to be an implied waiver of any provision of this
Agreement.



     18. Insurance. The Company may, at its discretion, apply for and procure in its own
name and for its own benefit life and/or disability insurance on Executive in any amount or amounts
considered advisable. Executive agrees to cooperate in any medical or other examination, supply
any information and execute and deliver any applications or other instruments in writing as may be
reasonably necessary to obtain and constitute such insurance. Executive hereby represents that he
has no reason to believe that his life is not insurable at rates now prevailing for healthy men of
his age.



     19. Indemnification and Reimbursement of Payments on Behalf of Executive. The
Company and its Subsidiaries shall be entitled to deduct or withhold from any amounts owing from
the Company or any of its Subsidiaries to Executive any federal, state, local or foreign
withholding taxes, excise tax, or employment taxes (“Taxes”) imposed with respect to
Executive’s compensation or other payments from the Company or any of its Subsidiaries or
Executive’s ownership interest in the Company (including, without limitation, wages, bonuses,
dividends, the receipt or exercise of equity options and/or the receipt or vesting of
restricted



13









 




equity). In the event the Company or any of its Subsidiaries does not make such deductions or
withholdings, Executive shall indemnify the Company and its Subsidiaries for any amounts paid with
respect to any such Taxes, together with any interest, penalties and related expenses thereto.




     20. MUTUAL WAIVER OF JURY TRIAL. BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX
TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND EXPERT PERSON AND THE
PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE
PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS.
THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF
ARBITRATION, EACH PARTY TO THIS AGREEMENT HEREBY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION,
SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE BETWEEN OR AMONG ANY OF THE PARTIES HERETO,
WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED OR
INCIDENTAL TO THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREBY AND/OR THE RELATIONSHIP
ESTABLISHED AMONG THE PARTIES HEREUNDER.



     21. Corporate Opportunity. During the Employment Period, Executive shall submit to
the Board all business, commercial and investment opportunities or offers presented to Executive or
of which Executive becomes aware which relate to the areas of business engaged in by the Company at
any time during the Employment Period (“Corporate Opportunities”). Unless approved by the
Board, Executive shall not accept or pursue, directly or indirectly, any Corporate Opportunities on
Executive’s own behalf.



     22. Executive’s Cooperation. During the Employment Period and thereafter, Executive
shall cooperate with the Company and its Subsidiaries in any internal investigation, any
administrative, regulatory or judicial proceeding or any dispute with a third party as reasonably
requested by the Company (including, without limitation, Executive being available to the Company
upon reasonable notice for interviews and factual investigations, appearing at the Company’s
request to give testimony without requiring service of a subpoena or other legal process,
volunteering to the Company all pertinent information and turning over to the Company all relevant
documents which are or may come into Executive’s possession, all at times and on schedules that are
reasonably consistent with Executive’s other permitted activities and commitments). In the event
the Company requires Executive’s cooperation in accordance with this paragraph, the Company shall
reimburse Executive solely for reasonable travel expenses (including lodging and meals) upon
submission of receipts.



     23. Directors’ and Officers’ Liability Insurance. Executive shall be a beneficiary of
any directors’ and officers’ liability insurance policy maintained by the Company so long as
Executive remains an officer or director of the Company.



*   *   *    *   *




14









 





          IN WITNESS WHEREOF, the parties hereto have executed this Amended and Restated Employment
Agreement as of the date first written above.




	 	 	 	 	 
	 	 	THE HILLMAN GROUP, INC.
	 
	 	 
	 
	 	/s/ Max W. Hillman
	 	 	 
	 

	 	By:	 	Max W. Hillman
	 

	 	 	 	 
	 

	 	Its:	 	Chief Executive Officer
	 

	 	 	 	 
	 
	 	 	 	 
	 	 	/s/ James P. Waters
	 	 	 
	 	 	James P. Waters






 









 





EXHIBIT A


GENERAL RELEASE




     I, James P. Waters, in consideration of and subject to the performance by The Hillman
Companies, Inc., a Delaware corporation (together with its subsidiaries, the “Company”), of
its obligations under the Amended and Restated Employment Agreement, dated as of December 21, 2008,
(the “Agreement”), do hereby release and forever discharge as of the date hereof the
Company and its affiliates and all present and former directors, officers, agents, representatives,
employees, successors and assigns of the Company and its affiliates and the Company’s direct or
indirect owners (collectively, the “Released Parties”) to the extent provided below.




	1.	 	I understand that any payments or benefits paid or granted to me under Sections 4(d)
and 4(e) of the Agreement represent, in part, consideration for signing this General
Release and are not salary, wages or benefits to which I was already entitled. I understand
and agree that I will not receive the payments and benefits specified in paragraph
Sections 4(d) and 4(e) of the Agreement unless I execute this General Release
and do not revoke this General Release within the time period permitted hereafter or breach
this General Release. I also acknowledge and represent that I have received all payments and
benefits that I am entitled to receive (as of the date hereof) by virtue of any employment by
the Company.
	 
	2.	 	Except as provided in paragraph 4 below and except for the provisions of my Agreement which
expressly survive the termination of my employment with the Company, I knowingly and
voluntarily (for myself, my heirs, executors, administrators and assigns) release and forever
discharge the Company and the other Released Parties from any and all claims, suits,
controversies, actions, causes of action, cross-claims, counter-claims, demands, debts,
compensatory damages, liquidated damages, punitive or exemplary damages, other damages, claims
for costs and attorneys’ fees, or liabilities of any nature whatsoever in law and in equity,
both past and present (through the date this General Release becomes effective and
enforceable) and whether known or unknown, suspected, or claimed against the Company or any of
the Released Parties which I, my spouse, or any of my heirs, executors, administrators or
assigns, may have, which arise out of or are connected with my employment with, or my
separation or termination from, the Company (including, but not limited to, any allegation,
claim or violation, arising under: Title VII of the Civil Rights Act of 1964, as amended; the
Civil Rights Act of 1991; the Age Discrimination in Employment Act of 1967, as amended
(including the Older Workers Benefit Protection Act); the Equal Pay Act of 1963, as amended;
the Americans with Disabilities Act of 1990; the Family and Medical Leave Act of 1993; the
Worker Adjustment Retraining and Notification Act; the Employee Retirement Income Security Act
of 1974; any applicable Executive Order Programs; the Fair Labor Standards Act; or their state
or local counterparts; or under any other federal, state or local civil or human rights law,
or under any other local, state, or federal law, regulation or ordinance; or under any public
policy, contract or tort, or under common law; or arising under any policies, practices or
procedures of the Company; or any claim for wrongful discharge, breach of contract, infliction
of emotional distress, defamation; or any claim for costs,





 









 











	 	 	fees, or other expenses, including attorneys’ fees incurred in these matters) (all of the
foregoing collectively referred to herein as the “Claims”).
	 
	3.	 	I represent that I have made no assignment or transfer of any right, claim, demand, cause of
action, or other matter covered by paragraph 2 above.
	 
	4.	 	I agree that this General Release does not waive or release any rights or claims that I may
have under the Age Discrimination in Employment Act of 1967 which arise after the date I
execute this General Release. I acknowledge and agree that my separation from employment with
the Company in compliance with the terms of the Agreement shall not serve as the basis for any
claim or action (including, without limitation, any claim under the Age Discrimination in
Employment Act of 1967).
	 
	5.	 	In signing this General Release, I acknowledge and intend that it shall be effective as a bar
to each and every one of the Claims hereinabove mentioned or implied. I expressly consent that
this General Release shall be given full force and effect according to each and all of its
express terms and provisions, including those relating to unknown and unsuspected Claims
(notwithstanding any state statute that expressly limits the effectiveness of a general
release of unknown, unsuspected and unanticipated Claims), if any, as well as those relating
to any other Claims hereinabove mentioned or implied. I acknowledge and agree that this waiver
is an essential and material term of this General Release and that without such waiver the
Company would not have agreed to the terms of the Agreement. I further agree that in the
event I should bring a Claim seeking damages against the Company, or in the event I should
seek to recover against the Company in any Claim brought by a governmental agency on my
behalf, this General Release shall serve as a complete defense to such Claims. I further agree
that I am not aware of any pending charge or complaint of the type described in paragraph 2 as
of the execution of this General Release.
	 
	6.	 	I agree that neither this General Release, nor the furnishing of the consideration for this
General Release, shall be deemed or construed at any time to be an admission by the Company,
any Released Party or myself of any improper or unlawful conduct.
	 
	7.	 	I agree that I will forfeit all amounts payable by the Company pursuant to the Agreement if I
challenge the validity of this General Release. I also agree that if I violate this General
Release by suing the Company or the other Released Parties, I will pay all costs and expenses
of defending against the suit incurred by the Released Parties, including reasonable
attorneys’ fees, and return all payments received by me pursuant to the Agreement.
	 
	8.	 	I agree that this General Release is confidential and agree not to disclose any information
regarding the terms of this General Release, except to my immediate family and any tax, legal
or other counsel I have consulted regarding the meaning or effect hereof or as required by
law, and I will instruct each of the foregoing not to disclose the same to anyone.
Notwithstanding anything herein to the contrary, each of the parties (and each affiliate and
person acting on behalf of any such party) agree that each party (and each employee,
representative, and other agent of such party) may disclose to any and all




A-2









 












	 	 	persons, without limitation of any kind, the tax treatment and tax structure of this
transaction contemplated in the Agreement and all materials of any kind (including opinions
or other tax analyses) that are provided to such party or such person relating to such tax
treatment and tax structure, except to the extent necessary to comply with any applicable
federal or state securities laws. This authorization is not intended to permit disclosure
of any other information including (without limitation) (i) any portion of any materials to
the extent not related to the tax treatment or tax structure of this transaction, (ii) the
identities of participants or potential participants in the Agreement, (iii) any financial
information (except to the extent such information is related to the tax treatment or tax
structure of this transaction), or (iv) any other term or detail not relevant to the tax
treatment or the tax structure of this transaction.
	 
	9.	 	Any non-disclosure provision in this General Release does not prohibit or restrict me (or my
attorney) from responding to any inquiry about this General Release or its underlying facts
and circumstances by the Securities and Exchange Commission (SEC), the National Association of
Securities Dealers, Inc. (NASD), any other self-regulatory organization or governmental
entity.
	 
	10.	 	I agree to reasonably cooperate with the Company in any internal investigation, any
administrative, regulatory, or judicial proceeding or any dispute with a third party. I
understand and agree that my cooperation may include, but not be limited to, making myself
available to the Company upon reasonable notice for interviews and factual investigations;
appearing at the Company’s request to give testimony without requiring service of a subpoena
or other legal process; volunteering to the Company pertinent information; and turning over to
the Company all relevant documents which are or may come into my possession all at times and
on schedules that are reasonably consistent with my other permitted activities and
commitments. I understand that in the event the Company asks for my cooperation in accordance
with this provision, the Company will reimburse me solely for reasonable travel expenses,
(including lodging and meals), upon my submission of receipts.
	 
	11.	 	I agree not to disparage the Company, its past and present investors, officers, directors or
employees or its affiliates and to keep all confidential and proprietary information about the
past or present business affairs of the Company and its affiliates confidential unless a prior
written release from the Company is obtained. I further agree that as of the date hereof, I
have returned to the Company any and all property, tangible or intangible, relating to its
business, which I possessed or had control over at any time (including, but not limited to,
company-provided credit cards, building or office access cards, keys, computer equipment,
manuals, files, documents, records, software, customer data base and other data) and that I
shall not retain any copies, compilations, extracts, excerpts, summaries or other notes of any
such manuals, files, documents, records, software, customer data base or other data.
	 
	12.	 	Notwithstanding anything in this General Release to the contrary, this General Release shall
not relinquish, diminish, or in any way affect any rights or claims arising out of any breach
by the Company or by any Released Party of the Agreement after the date hereof.





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	13.	 	Whenever possible, each provision of this General Release shall be interpreted in, such
manner as to be effective and valid under applicable law, but if any provision of this General
Release is held to be invalid, illegal or unenforceable in any respect under any applicable
law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not
affect any other provision or any other jurisdiction, but this General Release shall be
reformed, construed and enforced in such jurisdiction as if such invalid, illegal or
unenforceable provision had never been contained herein.




BY SIGNING THIS GENERAL RELEASE, I REPRESENT AND AGREE THAT:





	(a)	 	I HAVE READ IT CAREFULLY;
	 
	(b)	 	I UNDERSTAND ALL OF ITS TERMS AND KNOW THAT I AM GIVING UP IMPORTANT RIGHTS, INCLUDING BUT
NOT LIMITED TO, RIGHTS UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, AS AMENDED,
TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, AS AMENDED; THE EQUAL PAY ACT OF 1963, THE
AMERICANS WITH DISABILITIES ACT OF 1990; AND THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED;
	 
	(c)	 	I VOLUNTARILY CONSENT TO EVERYTHING IN IT;
	 
	(d)	 	I HAVE BEEN ADVISED TO CONSULT WITH AN ATTORNEY BEFORE EXECUTING IT AND I HAVE DONE SO OR,
AFTER CAREFUL READING AND CONSIDERATION I HAVE CHOSEN NOT TO DO SO OF MY OWN VOLITION;
	 
	(e)	 	I HAVE HAD AT LEAST 21 DAYS FROM THE DATE OF MY RECEIPT OF THIS RELEASE SUBSTANTIALLY IN ITS
FINAL FORM ON                      ___, ___TO CONSIDER IT AND THE CHANGES MADE SINCE THE
                     ___, ___VERSION OF THIS RELEASE ARE NOT MATERIAL AND WILL NOT RESTART THE
REQUIRED 21-DAY PERIOD;
	 
	(f)	 	THE CHANGES TO THE AGREEMENT SINCE                      ___, ___EITHER ARE NOT MATERIAL OR WERE
MADE AT MY REQUEST.
	 
	(g)	 	I UNDERSTAND THAT I HAVE SEVEN DAYS AFTER THE EXECUTION OF THIS RELEASE TO REVOKE IT AND THAT
THIS RELEASE SHALL NOT BECOME EFFECTIVE OR ENFORCEABLE UNTIL THE REVOCATION PERIOD HAS
EXPIRED;
	 
	(h)	 	I HAVE SIGNED THIS GENERAL RELEASE KNOWINGLY AND VOLUNTARILY AND WITH THE ADVICE OF ANY
COUNSEL RETAINED TO ADVISE ME WITH RESPECT TO IT; AND
	 
	(i)	 	I AGREE THAT THE PROVISIONS OF THIS GENERAL RELEASE MAY NOT BE AMENDED, WAIVED, CHANGED OR
MODIFIED EXCEPT BY AN INSTRUMENT




A-4









 






	 	 	IN WRITING SIGNED BY AN AUTHORIZED REPRESENTATIVE OF THE COMPANY AND BY ME.





	 	 	 	 	 
	DATE: 
December 21, 2008

	 	/s/ James P. Waters
 

James P. Waters
	 	 







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