Exhibit 10.28
April 26, 2000
Xx. Xxxxx X. Xxxxxx
0000 Xxxxxx Xxxxxx
Xxxxx, XX 00000
Dear Xxxx:
This letter, when signed by you, will confirm the mutual Separation Agreement
("Agreement") we have reached concerning your termination of employment with
Jostens, Inc. ("Jostens").
Your position has been eliminated as part of a corporate restructuring that did
not occur in connection with or as a result of a change in control. You
acknowledge that this Agreement supercedes and cancels the terms and provisions
of the Executive Change in Control Severance Pay Plan adopted January 1, 1999
and any amendments thereto with respect to your termination. Your compensation,
perquisites and benefits will continue through the effective date of your
termination of employment. After the Effective Date of your termination of
employment, you will be entitled to continuing compensation, perquisites and
benefits to the extent provided in your Employment Agreement or as described in
this Agreement.
The following terms and conditions apply:
1. Effective Date: Effective March 31, 2000 your employment with Jostens will
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terminate. In this Agreement, this date is referred to as your "Termination
Date."
2. Accrued Vacation: Your last regular paycheck will include a payment equal
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to the value of your accrued, unused vacation pay.
3. Severance Benefits: You will be entitled to the following benefits under
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your Employment Agreement:
a. Salary Continuation: Your base salary and plan waiver allowance (minus
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federal, state and local withholdings and any liens) will be continued
at your current rate (not including bonuses or other incentives) in
bi-weekly payments until June 30, 2001. At any time after January 1,
2001, Jostens may, but is not required to, pay the remaining payments
to you in a lump sum payment without your consent.
Xx. Xxxxx X. Xxxxxx
Page 2
b. Management Bonus: You will receive a management bonus for calendar
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year 2000 and a pro-rated portion of any management bonus that may be
earned for calendar year 2001. Your bonus for the years 2000 and pro-
rated 2001 will be targeted at the same percentage of base salary used
to determine your 1999 bonus, applied to the annual base salary you
received at your Termination Date, and will be based on overall
Jostens' results for years 2000 and 2001 as determined by Jostens'
Board of Directors. Any bonus earned will be paid to you at the same
time other participants receive their bonus payout.
c. Lump Sum Payment: As additional consideration for the waiver and
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release of any and all claims under your employment agreements and any
rights you may claim under the Executive Change In Control Severance
Pay Plan, Jostens will pay you a lump sum of $100,000.00 less
customary federal and state withholding within 10 days following the
execution of this Agreement.
d. COBRA Premiums: Your current group medical and dental coverages will
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cease on June 30, 2001. Your current group life and vision coverages
will cease on June 30, 2001. You will have the option of continuing
existing medical and dental coverages following these dates by paying
the full cost of the premium as provided by COBRA legislation. You
will be advised separately of your coverage continuation rights by
DCA, Inc., the COBRA administrator.
(You may also be entitled to convert your group life coverage to an
individual policy. Contact Xxxx Xxxxxxxx if you desire conversion
information. You must apply for conversion within 30 days after
coverage terminates or by the end of your group life COBRA
continuation period.)
e. Perquisites: The perquisites you were entitled to receive immediately
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prior to and during the month including your termination date will
remain in effect until June 30, 2001, subject to any reductions
applicable to similarly situated active Jostens employees.
f. Additional Benefits: You are entitled to the following benefits:
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Standard and customary outplacement services for similarly situated
Jostens employees. You may, at your option, elect to receive
$25,000.00 in lieu of such services. Jostens will pay directly to your
legal counsel fees for consultation and negotiation of this Separation
Agreement in an amount not to exceed $9,000.00. Payment will be made
upon submission of a billing statement showing itemized entries in a
form acceptable to Jostens' General Counsel.
Xx. Xxxxx X. Xxxxxx
Page 3
g. Waiver and Release of Claims: You acknowledge that in order to receive
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any payments or benefits under your Employment Agreement, you must
sign this Agreement, which includes a waiver and release of claims,
(see Section 15), and you must not revoke the waiver and release of
claims within the period described in Sections 15 and 16.
4. AD&D and Business Travel Accident Insurance: Your current accidental death
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and dismemberment insurance coverage and business travel accident coverage
will remain in effect until the last day of the pay period that includes
June 30, 2001. There is no continuation or conversion option for either of
these coverages.
5. 401(k) Retirement Savings Plan: You may continue to make 401(k)
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contributions through your salary continuation period. Any outstanding
loans will become due in full on June 30, 2001. Distribution of your
account balances, if any, will be made in accordance with the terms of the
Plan.
6. Short and Long Term Disability: Short-and Long-Term Disability coverage
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will cease on your June 30, 2001. Contact your HR representative if you
desire conversion information on the Long-Term Disability Plan. You must
apply for conversion within 30 days after coverage terminates.
7. Performance Pays Bonus: You will receive a Performance Pays bonus for
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calendar year 2000. You will not be entitled to receive a Performance Pays
bonus for the performance period ending calendar year 2001.
8. Stock Options and Restricted Stock: You have until the end of the three (3)
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month period following June 30, 2001 to exercise any of your Jostens stock
options that have become vested on or before that date. During the period
beginning on December 31, 1999, and ending June 30, 2001, all of your
Jostens stock options and your shares of restricted Jostens stock that were
outstanding on December 31, 1999, will remain outstanding and will continue
to vest according to the terms of the Jostens, Inc. 1992 Stock Incentive
Plan (the "Incentive Plan") and the instruments granting those options and
shares, as if you were employed by Jostens throughout that period, subject
to the rights of Jostens to fully vest and redeem such options and shares
at an earlier date, pursuant to the Incentive Plan, in the event of a
Change in Control of Jostens, as defined in the Incentive Plan and the
instruments granting those options and shares (a "Change in Control"). At
the end of that period, any of those options and shares that remain
outstanding and have not become vested will be automatically forfeited.
Jostens represents and warrants that such options and shares will become
fully vested under the terms of the Incentive Plan in the event of a Change
in Control during that period.
Xx. Xxxxx X. Xxxxxx
Page 4
9. Executive Stock Purchase Plan: The restricted shares you hold pursuant to
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the Executive Stock Purchase Plan will become totally vested on the closing
date of the sale of substantially all of the stock of Jostens to
Investcorp. In that event, notwithstanding any contrary provision in the
Plan, Jostens will arrange to have your shares tendered and will cover any
prepayment penalty due the First National Bank of Chicago. You agree to
participate in the liquidation procedure Jostens puts in place for the
Executive Stock Purchase Program. You also agree that severance payments to
you may be offset by amounts Jostens is required to pay to First National
Bank of Chicago as a guarantor of the loan you took out with that bank for
the purpose of purchasing stock under this program should you default in
your loan payments.
10. Confidentiality/No Admission: You agree to keep the existence and all
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specific terms of this Agreement confidential and you further agree not to
disclose any information concerning this Agreement to any person, company,
entity or third party other than your attorney, accountant, tax advisor,
spouse and other immediate family. You and Jostens also agree that the
existence of this Agreement is not an admission by Jostens that the
termination of your employment was in any way wrongful or discriminatory or
violated any law. The terms of this Agreement will be kept confidential and
disclosed only to those of management with a need to know for the purpose
of administering the terms hereof. No other disclosure will occur except to
the extent required by applicable law or regulations.
11. Confidentiality Duty: You acknowledge that while employed by Jostens you
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had access to Jostens' confidential and proprietary information and/or
trade secrets. You further acknowledge your continuing duty not to
disclose, furnish or otherwise make available such information and/or trade
secrets to any person, company, entity or third party. Confidential
information means any information relating to the business or affairs of
Jostens or any affiliate, including but not limited to information relating
to financial statements, customer identities, potential customers,
employees, sales representatives, suppliers, servicing methods, equipment,
programs, strategies and information, analyses, profit margins or other
proprietary information used by Jostens or an affiliate except for
information in the public domain or known in the industry through no
wrongful act on your part.
12. Return of Company Property: You acknowledge that prior to the date on which
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you sign this Agreement, you have returned all Jostens' property in your
possession or control, including, but not limited to, any company credit
card (or any credit card on which the company is guarantor), Jostens'
business files, documents or data in any form, computer, fax, printer or
other equipment. Further, you agree to repay to Jostens the amount of any
permanent or temporary advances and balance owing on any credit cards of
any monies due and owing Jostens or for which Jostens is a guarantor.
13. Nondisparagement: You and Jostens agree that before or after your
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termination of employment with Jostens neither you or Jostens will make any
statement or communication
Xx. Xxxxx X. Xxxxxx
Page 5
of information by whatever means to any person relating to your employment
with Jostens which may be reasonably interpreted to be critical or
derogatory of the other party to this Agreement; including in the case of
Jostens, its officers, directors or employees. Nothing herein however is
intended to bar either party from truthfully testifying under Subpoena or
other legal process before any court or administrative agency authorized to
compel testimony.
14. Cooperation: You agree (i) to cooperate fully in the defense of any suit or
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claim asserted against Jostens or you individually or jointly with Jostens
or its subsidiaries, based on any alleged act or omission by you severally
or jointly with others, in your alleged capacity as employee or agent of
Jostens or any of its subsidiaries, and (ii) to cooperate fully with
Jostens and any of its subsidiaries and any of their directors, officers,
employees, attorneys or other personnel retained in any litigation, dispute
or controversy in which Jostens or any of its subsidiaries is a party
involving claims which arose during your service with Jostens or a
subsidiary or to which Jostens believes your knowledge or expertise relate.
As used herein, "cooperate fully" means that you will make yourself
available on reasonable notice and participate in such proceedings as
reasonably are necessary to complete such matters. Subject to your
compliance with these obligations, Jostens will, to the extent required by
applicable law and under the conditions set out in its Articles and By-
Laws, defend and hold you harmless from suits and claims covered by part
(i) of this paragraph and shall compensate you at a reasonable rate (at
least $250.00 per hour) for time spent in providing services and reimburse
you for reasonable and necessary expenses incurred at Jostens' request
under paragraph (ii) of this paragraph.
15. Waiver and Release of Claims:
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a. In consideration of the benefits provided to you under this Agreement
you agree: you release and forever discharge Jostens, its subsidiaries
and affiliated companies including each of their officers, directors,
agents and employees from and waive all causes of action, damages,
liability and claims of whatever nature relating to or arising out of
your employment with Jostens, its subsidiaries and affiliated
companies and the termination of your employment, including but not
limited to, claims under federal, state or local discrimination laws,
claims arising out of wrongful termination, whistle blowing claims and
the Age Discrimination in Employment Act. The prior sentence does not
release or discharge Jostens or you from obligations under this
Agreement or which arise after the date you sign this Agreement.
Nothing in this Agreement prevents you from filing a charge or
complaint, including a challenge to the validity of this Agreement or
the waiver and release of claims in this section, with the Equal
Employment Opportunity Commission or participating in any
investigation or proceeding conducted by the Equal Employment
Opportunity Commission.
Xx. Xxxxx X. Xxxxxx
Page 6
b. Jostens, Inc., its subsidiaries, affiliates successors and any company
related to it releases, waives and discharges Xxxxx X. Xxxxxx from any
and all claims, demands, actions, suits, liabilities and damages which
they may have relating to or arising out of his employment with
Jostens as of the date of this agreement.
16. Revocation:
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a. You have the right to revoke only that portion of this waiver and
release which relate to claims under the Age Discrimination in
Employment Act within 7 days from the date you sign this Agreement.
You likewise have the right to rescind only that portion of this
waiver and release which relates to claims under the Minnesota Human
Rights Act by written notice to Jostens within 15 days from the date
you sign this Agreement. To be effective, this rescission or
revocation must be in writing and hand delivered or mailed to Jostens
to the attention of Xxxxxxx X. Xxxxxx, General Counsel, Jostens, 0000
Xxxxxx Xxxxxx Xxxxx, Xxxxxxxxxxx, XX 00000 and sent by certified mail,
return-receipt requested. Rescission or revocation of the release will
result in cessation of any future separation payments to be paid.
b. You agree that if you exercise any right of rescission or revocation,
payments made to you by Jostens under this Agreement will be
sufficient consideration for the release of all other claims you have
against Jostens, except those under the Age Discrimination in
Employment Act and in Minnesota, those under the Minnesota Human
Rights Act.
17. Miscellaneous: You acknowledge that you have been given at least 45 days
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from the date you receive this Agreement to consider this Agreement and
that you have been advised to and have had the opportunity to consult legal
counsel of your own choosing concerning this Agreement and that you have
entered into it of your own free will and without compulsion. Both you and
Jostens agree that any written changes to this Agreement, whether material
or immaterial will not restart the running of the 45-day period.
You acknowledge that you have been provided with a list of the job titles
and ages of all individuals in the same job classification or
organizational unit whose positions were involuntarily eliminated in this
corporate restructuring and the ages of all individuals in the same job
classification or organizational unit whose positions were not
involuntarily eliminated. (Exhibit A)
This Agreement contains the entire agreement and understanding of the
parties. No representations have been made or relied upon by either party
other than those that are expressly set forth in this Agreement, and each
party has entered into this Agreement voluntarily and without coercion. If
any portion or provision of this Agreement is deemed
Xx. Xxxxx X. Xxxxxx
Page 7
unenforceable, the Agreement will be deemed modified to remaining
provisions will remain in full force and effect.
If you die during the continuation period of this Agreement, then all
remaining payments due under this Agreement will be paid to your named
beneficiary.
This Agreement may not be altered, amended or modified unless done in
writing and signed by an executive officer of Jostens and you. Nothing in
this Agreement, however, in any way prevents or limits Jostens from
amending or terminating any of its benefit plans, policies or practices and
in such a case, your rights would be determined solely under the terms of
the plan, policy or practice in question.
If this Agreement is acceptable to you, please sign and return this letter
to Xxxxxxx X. Xxxxxx, General Counsel, Jostens, 0000 Xxxxxx Xxxxxx Xxxxx,
Xxxxxxxxxxx, XX 00000 by April 28, 2000. Should any overpayments be made to
you under this Agreement or after a revocation or rescission of this
Agreement, you are responsible for immediate repayment to Jostens.
Yours truly,
/s/ Xxxxxx Xxxxxxxxxx
Xxxxxx Xxxxxxxxxx
Chief Executive Officer
AGREED AND ACCEPTED:
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
4/27/2000
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DATE
ACKNOWLEDGMENT
I acknowledge that on April 27, 2000 I was provided with the attached
Separation Agreement ("Agreement").
I further acknowledge that I have been advised to consult with an attorney
before entering into the attached Agreement, and that I have been given a period
of at least 45 days to consider whether to accept the Agreement.
I have received and read the above acknowledgment, and I fully understand
its meaning.
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
4/27/2000
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Date
EXHIBIT A
In accordance with the Older Workers' Benefit Protection Act/Age Discrimination
in Employment Act [Sec. 7(f)(1)(H)], listed below are the titles and ages of
individuals whose positions were and were not eliminated as a result of the
restructuring of Senior Management as of March 1, 2000:
1. Class/Unit: Senior Management
2. Eligibility Factor: Senior Management
3. Time Limits to Program: All persons who are being offered consideration
under a separation agreement must sign the agreement and return it to Jostens
General Counsel within 45 days after receipt. Once the signed agreement is
returned, the employee has 7 days to revoke the waiver.
4. Job Titles/Ages of Individual(s) Selected for Eliminations:
Executive Vice President and Chief Operating Officer................... 61
Vice President - Consumer Marketing and Channel Development............ 51
Vice President - Strategic Marketing................................... 48
Vice President and General Manager - North American Photo.............. 45
5. Job Titles/Ages of Individual(s) Not Selected for Elimination:
Chairman of the Board, President and Chief Executive Officer........... 52
Senior Vice President - Manufacturing.................................. 60
Senior Vice President and Chief Financial Officer...................... 55
Senior Vice President - Jostens School Solutions....................... 44
Vice President, General Counsel and Corporate Secretary................ 51
Vice President and General Manager - Business Ventures................. 47
Vice President - Treasurer............................................. 43
