**Exhibit 10.5**

 

**EXECUTION COPY**

 

**EMPLOYMENT AGREEMENT**

 

THIS EMPLOYMENT AGREEMENT is entered into as of February 27, 2004 between AMF Bowling Worldwide, Inc., a Delaware corporation (the“Company”), and Frederick R. Hipp (“Executive”). 

 

WHEREAS, the Company wishes to employ Executive and Executive wishes to accept employment with the Company on the terms set forth herein. 

 

WHEREAS, the Company operates its businesses worldwide, and within the United States, the scope of the business is nationalin character. 

 

NOW THEREFORE, in consideration of the mutualcovenants 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 theterms and conditions set forth in this Agreement for the period beginning on the date hereof and ending as provided in paragraph 4 hereof (the “Employment Period”). 

 

2. Position and Duties. 

 

(a) During the Employment Period, Executive shall render such executive and managerial services to the Company, its Subsidiaries and the Subsidiaries ofKingpin Holdings, LLC (“Holdings” ) as the board of managers (the “Board”) of Holdings may from time to time direct. The Subsidiaries of Holdings (which include the Company and its Subsidiaries) are referred tocollectively herein as the “AMF Companies.” During the Employment Period, Executive shall serve as the Chief Executive Officer of the Company and shall have the normal duties, responsibilities, functions and authority of suchpositions (including full profit and loss responsibility for the operations of the AMF Companies), subject to the power of the Board to expand or limit such duties, responsibilities, functions and authority and to override actions of officers of theCompany. It anticipated that Executive will be a member of the Board of Holdings during the Employment Period. 

 

(b) During the Employment Period, Executive shall report to the Board and shall devote his best efforts and his full business time and attention (exceptfor permitted vacation periods and reasonable periods of illness or other incapacity) to the business and affairs of the AMF Companies. Executive shall perform his duties, responsibilities and functions to the AMF Companies hereunder to the best ofhis abilities in a diligent, trustworthy, businesslike and efficient manner. 

 

(c) For purposes of this Agreement, “Subsidiaries” shall mean, with respect to anyPerson, 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) tovote 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 limitedliability 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 oneor 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 (otherthan 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 general partner of suchlimited 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 $600,000.00 per annum or such higher rate as the Board may determine from time totime (as adjusted from time to time based on annual review by the Board, the “Base Salary”), which salary shall be payable by the Company in regular installments in accordance with the Company’s general payroll practices. Inaddition, during the Employment Period, Executive shall be entitled to receive employee benefits consistent with other senior management of the Company including, but not limited to, health, dental, life, disability, paid vacation and retirementplans as determined by the Board. 

 

(b) During the EmploymentPeriod, the Company shall reimburse Executive for all reasonable 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 totime with respect to travel, entertainment and other business expenses, subject to the Company’s requirements with respect to reporting and documentation of such expenses. In addition, the Company shall reimburse Executive for (i) the rentalcost of temporary housing near the Company’s headquarters in Richmond, Virginia from the February 20, 2004 through August 31, 2004 and (ii) reasonable and customary one-time relocation expenses from Los Angeles, California to Richmond,Virginia, including the broker’s commission payable by Executive in connection with the sale of his principal residence in California, and transportation expenses between Richmond, Virginia and Los Angeles, California in connection with areasonable number (as approved by the Board) of family visits prior to August 31, 2004. Executive shall make his principal residence Richmond, Virginia not later than August 31, 2004. 

 

(c) In addition to the Base Salary, Executive shall be eligible to receive a bonus each year based upon annual targets setby the Board in its discretion which targets shall take into account the AMF Companies’ EBITDA and other performance goals, including, without 

 

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limitation, sales growth, successful renovations, new store openings, key executive recruitment, implementation of customer service standards and debtretirement. Executive’s target bonus each year shall be not less than 50% of his Base Salary then in effect, but Executive shall be eligible to earn up to 100% of his Base Salary then in effect for results exceeding performance targets.

 

Bonuses are earned as of the last day of each calendar yearand shall be paid promptly after delivery of the Company’s audited financial statements for the year in which the bonus is earned. If Executive dies, becomes Disabled (as defined below) or is terminated without Cause or resigns for Good Reasonafter the end of a calendar year but prior to Executive receiving the bonus payment earned in the calendar year prior to such event, Executive (or Executive’s estate) shall be entitled to any such bonus payment. 

 

(d) All amounts payable to Executive as compensation hereunder shall besubject to all required withholding by the Company. 

 

(e) Forpurposes of this Agreement, “EBITDA” shall mean earnings before interest, taxes, depreciation and amortization, determined in accordance with United States generally accepted accounting principles consistently applied. 

 

4. Term. 

 

(a) The Employment Period shall continue until the earlier of (i)Executive’s resignation (whether with or without Good Reason), death or Disability, or (ii) the date upon which Executive’s employment is terminated by the Company (whether for or without Cause) (the “Termination Date”).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. For the purposes of this Agreement, “Disability” or“Disabled” means Executive’s inability to perform his duties hereunder (as determined by the Board) for any period of 180 consecutive days and Executive’s return to his duties for periods of 15 days or less shall not interruptsuch 180 day period. 

 

(b) If the Employment Period isterminated by the Company without Cause pursuant to Section 4(a)(ii) or by resignation of Executive for Good Reason, Executive shall be entitled to receive (i) his Base Salary through the date of termination; (ii) any accrued but unusedvacation; (iii) any unreimbursed expenses incurred in accordance with the Company’s policies for business expenses and (iv) an amount equal to 100% of his annual Base Salary at the time of termination, such amount to be paid in substantiallyequal monthly installments over a period of twelve (12) months from the date of such termination, if and only if Executive has executed and delivered to the Company the General Release substantially in form and substance as set forth in ExhibitA attached hereto and only so long as Executive has not breached the provisions of Sections 5, 6, and 7 hereof, and Executive shall not be entitled to any other salary, compensation or benefits after termination of the Employment Period.

 

(c) If the Employment Period is terminated by the Company forCause, by resignation of Executive without Good Reason, by Executive’s death or Disability in accordance with Section 4(a)(i) above, Executive shall only be entitled to receive his Base Salary through the 

 

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date of termination plus any (i) accrued but unused vacation and (ii) unreimbursed expenses incurred in accordance with the Company’s policies forbusiness expenses, and Executive shall not be entitled to any other salary, compensation or benefits from the Company thereafter. 

 

(d) Except as otherwise expressly provided herein, all of Executive’s rights to salary, bonuses, fringe benefits and other compensation hereunderwhich accrue or become payable after the termination or expiration of the Employment Period shall cease upon such termination or expiration, other than those expressly required under applicable law (such as COBRA). The Company may offset any amountsthat Executive owes to Holdings or the AMF Companies against any amounts that the Company owes to Executive hereunder. 

 

(e) For purposes of this Agreement, “Cause” shall mean (i) the conviction of a felony or a crime involving moral turpitude, (ii) thecommission of any other substantial act or omission involving dishonesty, disloyalty or fraud with respect to any of the AMF Companies or any of their customers or suppliers, (iii) intentional conduct outside of the performance of Executive’snormal duties having the effect of bringing any of the AMF Companies into substantial public disgrace or disrepute, (iv) substantial and repeated failure to perform duties as reasonably directed by the Board, (v) gross negligence or willfulmisconduct with respect to any of the AMF Companies, (vi) a material failure to observe policies or standards approved by the Board regarding employment practices, nondiscrimination and sexual harassment as the Board may address in writing from timeto time, (vii) any other material breach of this Agreement or (viii) any material breach of the Executive Securities Agreement between Executive and Holdings. Notwithstanding the foregoing, in the case of clauses (iv) through (viii) above, theCompany must give written notice to the Executive of the act or acts constituting Cause and such acts shall not be deemed to constitute Cause if they are of such a nature that substantially all detriment otherwise resulting to the Company and itsSubsidiaries can by cured to the Board’s reasonable satisfaction by action which the Executive causes to be taken within 30 days following written notice from the Company. 

 

(f) For purposes of this Agreement, “Good Reason” shall mean without Executive’s consent (i) a changein Executive’s status, title, position or reporting responsibilities which represents a demotion from his status, title, position, duties or reporting responsibilities as in effect immediately prior thereto, (ii) a reduction in Executive’ssalary and nondiscretionary bonuses as of the date hereof, (iii) the Company’s requiring Executive to be permanently relocated outside a 50-mile radius from Richmond, Virginia or (iv) the failure while employed by the Company, to be elected orre-elected as a member of the Board of Holdings. Notwithstanding the foregoing, in the case of clause (i) above, Executive must give written notice to the Company of his objection to such act within 30 days of the occurrence of the change and suchact shall not be deemed to constitute Good Reason if it is of such a nature that substantially all detriment otherwise resulting to Executive can by cured by appropriate action which the Company causes to be taken within 30 days following writtennotice from Executive. 

 

5. Confidential Information.

 

(a) Obligation to Maintain Confidentiality. Executiveacknowledges that the information, observations and data obtained by him during the course of his employment (as employee or consultant) with the Company concerning the business and affairs of the Company 

 

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and its affiliates are the property of the Company and such affiliates, including information concerning acquisition opportunities in or reasonably relatedto the Company’s business or industry of which Executive becomes aware during the such employment. Therefore, Executive agrees that he will not disclose to any unauthorized person or use for his own account any of such information, observationsor data without the Board’s written consent, unless and to the extent that the aforementioned matters become generally known to and available for use by the public other than as a result of Executive’s acts or omissions to act. Executiveagrees to 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 and other documents (and copies thereof) relating tothe business of the Company and its affiliates (including, without limitation, all acquisition prospects, lists and contact information) which he may then possess or have under his control. 

 

(b) Third Party Information. Executive understands that the Companyand its affiliates will receive from third parties confidential or proprietary information (“Third Party Information”) subject to a duty on the Company’s and its affiliates’ part to maintain the confidentiality of suchinformation and to use it only for certain limited purposes. During the Executive’s employment (as employee or consultant) with the Company and thereafter, and without in any way limiting the provisions of Section 5(a) above, Executivewill hold Third Party Information in the strictest confidence and will not disclose to anyone (other than personnel of the Company or its affiliates or agents who need to know such information in connection with their work for the Company or itsaffiliates or agents) or use, except in connection with his work for the Company or its affiliates, Third Party Information unless expressly authorized by a member of the Board in writing. 

 

6. Noncompetition; Non-Solicitation. Executive acknowledges that inthe course of his employment (as employee or consultant) with the Company he will become familiar with the AMF Companies’ trade secrets and with other confidential information concerning the AMF Companies and that his services will be ofspecial, unique and extraordinary value to the Company. Therefore, Executive agrees that: 

 

(a) Noncompetition. During the Employment Period and for a period of twelve (12) months thereafter (so long as the Company is not in breach of its obligations to Executive under Section 4(b) hereof),Executive shall not, within the United States, the United Kingdom and Australia, or any other state or territory in which the AMF Companies conduct business at the time of the Termination Date, directly or indirectly own, manage, control,participate in, consult with, render services for, or in any manner engage in any business which operates bowling centers (or other entertainment venues that feature bowling) or designs, manufacturers, services, markets, sells, distributes ordelivers bowling-relating products and machines or billiards-related products; provided, however, that with respect to entities other than Holdings and the AMF Companies, the Executive may own, directly or indirectly, solely as an investment,publicly traded securities of any entity if Executive (a) is not a controlling person with respect to such entity and (b) does not, directly or indirectly, own two (2%) percent or more of any class of the securities of such entity. 

 

(b) Nonsolicitation. During the Employment Period and for a period ofeighteen (18) months thereafter, Executive shall not directly or indirectly through another entity (i) induce 

 

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or attempt to induce an employee of any of the AMF Companies who is of center-level or district-level manager seniority or higher (including, withoutlimitation, all executive-level employees and corporate officers)(each such employee, a “Restricted Employee”) to leave the employ of such AMF Company, or in any way interfere with the relationship between any AMF Company and anyRestricted Employee, (ii) hire any person who was a Restricted Employee of any of the AMF Companies within 180 days prior to the time such Person was hired by Executive, (iii) induce or attempt to induce any customer, supplier, licensee or otherbusiness relation of any of the AMF Companies to cease doing business with the AMF Companies or in any way interfere with the relationship between any such customer, supplier, licensee or business relation and any of the AMF Companies or (iv)directly or indirectly acquire or attempt to acquire an interest in any business relating to the business of any of the AMF Companies and with which any of the AMF Companies has entertained discussions or has requested and received informationrelating to the acquisition of such business by any AMF Company in the eighteen (18) month period immediately preceding the end of the Employment Period; provided, however, that with respect to entities other than Holdings and the AMFCompanies, Executive may own, directly or indirectly, solely as an investment, publicly traded securities of any entity if Executive (a) is not a controlling person with respect to such entity and (b) does not, directly or indirectly, own twopercent or more of any class of the securities of such entity. 

 

(c) Enforcement. If, at the time of enforcement of Section 5 or this Section 6, a court holds that the restrictions stated herein are unreasonable under circumstances then existing, the parties hereto agree that themaximum duration, scope or geographical area reasonable under such circumstances shall be substituted for the stated period, scope or area and that the court shall be allowed to revise the restrictions contained herein to cover the maximum duration,scope and area permitted by law. Because Executive’s services are unique and because Executive has access to confidential information, the parties hereto agree that money damages would be an inadequate remedy for any breach of this Agreement.Therefore, in the event a breach or threatened breach of this Agreement, the Company or its successors or assigns may, in addition to other rights and remedies existing in their favor, apply to any court of competent jurisdiction for specificperformance and/or injunctive or other relief in order to enforce, or prevent any violations of, the provisions hereof (without posting a bond or other security). 

 

(d) Additional Acknowledgments. Executive acknowledges that the provisions of this Section 6 are inconsideration of: (i) employment (as employee or consultant) with the Company, (ii) the issuance of certain securities of Holdings under the Executive Securities Agreement between Executive and Holdings, and (iii) additional good and valuableconsideration as set forth in this Agreement. In addition, Executive agrees and acknowledges that the restrictions contained in Section 5 and this Section 6 do not preclude Executive from earning a livelihood. In addition, Executiveagrees and acknowledges that the potential harm to the Company of the non-enforcement of Section 5 and this Section 6 outweighs any potential harm to Executive of its enforcement by injunction or otherwise. Executive acknowledges thathe 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 proprietaryinformation 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 geographicalarea. 

 

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7. 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 orby 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 theCompany, this Agreement shall be the valid and binding obligation of Executive, enforceable in accordance with its terms. Executive hereby acknowledges and represents that he has consulted with independent legal counsel regarding his rights andobligations under this Agreement and that he fully understands the terms and conditions contained herein. 

 

8. Survival. Paragraphs 5 through 16 shall survive and continue in full force in accordance with their terms notwithstanding the expiration ortermination of the Employment Period. 

 

9. Notices. Anynotice provided for in this Agreement must be in writing and must be either personally delivered, sent via facsimile, sent by first class mail (postage prepaid and return receipt requested) or sent by reputable overnight courier service (chargesprepaid) to the Company or the Executive at the addresses set forth below. Notices will be deemed to have been given hereunder when delivered personally, three business days after deposit in the U.S. mail and one business day after deposit with areputable overnight courier service: 

 

Notices toExecutive: 

 

Frederick R. Hipp****

321 Dalehurst Avenue 

Los Angeles, CA 90024

Facsimile: 

 

With Copies to: 

 

Pillsbury Winthrop LLP 

725 South FigueroaStreet, Suite 2800 

Los Angeles, California 90017-5406 

Facsimile: (213) 226-4017 

Attn: Anna M. Graves, Esq.

 

Notices to the Company: 

 

AMF Bowling Worldwide, Inc. 

8100 AMF Drive 

Mechanicsville, VA

Facsimile: (804) 559-6249****

Attn: General Counsel 

 

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With Copies to: 

 

Code Hennessy & Simmons LLC 

10 South Wacker Drive 

Suite 3175 

Chicago, IL 60606 

Telecopy No.: (312)876-3854 

Attn: Thomas J. Formolo 

           Richard A. Lobo 

 

Kirkland & Ellis 

200 East Randolph Drive 

Chicago, Illinois 60601 

Telecopy No.: (312)861-2200 

Attn: Kevin R. Evanich, 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 underthis Agreement shall be deemed to have been given when so delivered, sent or mailed. 

 

10. 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 beinvalid, 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 action in any other jurisdiction, but this Agreementshall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein. 

 

11. Complete Agreement. This Agreement, those documents expressly referred to herein and other documents of even date herewith embody the completeagreement 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. 

 

12. No Strict Construction. The language used in this Agreement shallbe 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. 

 

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

 

14.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 ordelegate his duties or obligations hereunder without the prior written consent of the Company. 

 

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**15. Choice of Law. All issues and questions concerning the construction, validity, enforcementand 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.**

 

16. Amendment and Waiver. The provisions of this Agreement may be amended or waived only with the prior writtenconsent 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. 

 

***    *    *    *    *    **

 

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

 
**AMF BOWLING WORLDWIDE, INC.**By: 
/s/ Christopher F. Caesar
  
Its:
 
Christopher F. Caesar
/s/ Frederick R. Hipp**Frederick R. Hipp**
 

**Exhibit A**

 

**GENERAL RELEASE**

 

1. I, Frederick R. Hipp, in consideration of and subject to the performance by AMF Bowling Worldwide, Inc., a Delaware corporation (together with itssubsidiaries, the “Company”), of its material obligations under the Employment Agreement, dated as of the date as of February     , 2004 (the “Agreement”), do hereby release and foreverdischarge as of the date hereof the Company, Kingpin Holdings, LLC (the parent of the Company) and all present and former directors, officers, agents, representatives, employees, successors and assigns of the Company and Kingpin Holdings, LLC andtheir direct or indirect owners (collectively, the “Released Parties”) to the extent provided below. 

 

2. I understand that any payments or benefits paid or granted to me under paragraph 4(b) of the Agreement represent, in part, consideration for signingthis 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 4(b) of the Agreement unless I execute this General Releaseand do not revoke this General Release within the time period permitted hereafter or breach this General Release. 

 

3. Except as provided in paragraph 4 below, I knowingly and voluntarily release and forever discharge the Company and the other Released Parties from anyand all claims, 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 liabilitiesof any nature whatsoever in law and in equity, both past and present (through the date of this General Release) and whether known or unknown, suspected, or claimed against the Company or any of the Released Parties which I, my spouse, or any of myheirs, executors, administrators or assigns, may have, which arise out of or are connected with my employment with, or my separation from, the Company (including, but not limited to, any allegation, claim or violation, arising under: Title VII ofthe 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 withDisabilities Act of 1990; the Family and Medical Leave Act of 1993; the Civil Rights Act of 1866, as amended; the Worker Adjustment Retraining and Notification Act; the Employee Retirement Income Security Act of 1974; any applicable Executive OrderPrograms; 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, orother expenses, including attorneys’ fees incurred in these matters) (all of the foregoing collectively referred to herein as the “Claims”). 

 

4. I represent that I have made no assignment or transfer of any right, claim, demand, cause of action, or other mattercovered by paragraph 2 above. 

 

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5. I agree that this General Release does not waive or release any rights or claims that I may have underthe 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 asthe basis for any claim or action (including, without limitation, any claim under the Age Discrimination in Employment Act of 1967). I agree that this General Release does not waive my rights to assert a claim for which I am vested under anyemployee benefit plan nor am I releasing any rights or claims that may arise from events, circumstances or set of facts occurring solely after the date hereof. 

 

6. 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 hereinabovementioned 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 anystate 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 thiswaiver 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 theCompany, 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 anypending charge or complaint of the type described in paragraph 2 as of the execution of this General Release. 

 

7. I agree that neither this General Release, nor the furnishing of the consideration for this General Release, shall be deemed or construed at any timeto be an admission by the Company, any Released Party or myself of any improper or unlawful conduct. 

 

8. 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 alsoagree 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 returnall payments received by me pursuant to the Agreement. 

 

9. Iagree 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 effecthereof or as required by law, and I will instruct each of the foregoing not to disclose the same to anyone. 

 

10. Any non-disclosure provision in this General Release does not prohibit or restrict me (or my attorney) from responding to any inquiry about thisGeneral 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. 

 

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11. I agree to reasonably cooperate with the Company in any internal investigation or administrative,regulatory, or judicial proceeding. 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 theCompany’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 mypossession 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 willreimburse me solely for reasonable travel expenses, including lodging and meals, upon my submission of receipts and pay me a per diem allowance which is reasonable in light of all the circumstances at the time such cooperation is required.

 

12. Notwithstanding anything in this General Release to thecontrary, 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. 

 

13. Whenever possible, each provision of this General Release shall beinterpreted 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, suchinvalidity, 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 provisionhad never been contained herein. 

 

BY SIGNING THIS GENERAL RELEASE, I REPRESENTAND AGREE THAT: 

 

(a) I HAVE READ IT CAREFULLY; 

 

(b) I UNDERSTAND ALL OF ITS TERMS AND KNOW THAT I AM GIVING UP IMPORTANTRIGHTS, 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 THEEMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED; 

 

(c) I VOLUNTARILY CONSENT TO EVERYTHING IN IT; 

 

(d) IHAVE 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; 

 

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(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 ENFORCEABLEUNTIL THE REVOCATION PERIOD HAS EXPIRED; 

 

(h) I HAVE SIGNEDTHIS 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 IN WRITING SIGNED BY ANAUTHORIZED REPRESENTATIVE OF THE COMPANY AND BY ME. 

 

DATE:                         ,         
             
Frederick R. Hipp

 

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