Exhibit 10.27
April 11, 2000
Xx. Xxxxxx X. Xxxx
00000 Xxxxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
Dear Xxx:
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 only to the extent provided in the Jostens, Inc. Executive Severance
Pay Plan (the "Severance Pay Plan") or as described in this Agreement.
The following terms and conditions apply:
1. Effective Date: Effective March 31, 2000 your employment with Jostens has
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terminated. 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. You will not accrue
vacation after your Termination Date.
Xx. Xxxxxx X. Xxxx
Page 2
3. Severance Pay Plan Benefits: You will be entitled to the following benefits
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under the Severance Pay Plan, subject to the limitations, conditions and
terms set forth in the Severance Pay Plan, a copy of which is attached:
a. Salary Continuation: Your base salary (minus federal, state and local
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withholdings and any liens) will be continued at your current rate
(not including bonuses or other incentives) in bi-weekly payments
until December 31, 2000. At any time, Jostens may, but is not required
to, pay the remaining payments to you in a lump sum payment without
your consent.
b. Management Bonus: You will receive a management bonus for calendar
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year 1999. You will be eligible for a management bonus for the 2000
calendar year prorated through June 30, 2000. Your bonus will be
targeted at the same percentage you had in 1999 applied to the annual
base salary you received at your Termination Date and will be based on
overall Jostens' results as determined by Jostens' Board of Directors.
You will not be eligible for any management bonus for any calendar
year beginning after your Termination Date.
c. COBRA Premiums: Your current group medical and dental coverages will
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remain in effect until December 31, 2000. Your current group life and
vision coverages will cease on your Termination Date. You will have
the option of continuing these existing 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.)
d. Perquisites: The perquisites you were entitled to receive immediately
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prior to your termination date will remain in effect until December
31, 2000, subject to any reductions applicable to similarly situated
active Jostens employees.
Xx. Xxxxxx X. Xxxx
Page 3
e. Additional Benefits: You are entitled to standard and customary
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outplacement services for similarly situated Jostens employees.
Jostens will pay directly to your legal counsel fees in an amount not
to exceed $3,000.00 for consultation and negotiation of this
Separation Agreement. Payment will be made upon submission of a
billing statement showing itemized entries in a form acceptable to
Jostens' General Counsel.
f. Conditions and Limitations:
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(i) Waiver and Release of Claims: You acknowledge that in order to
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receive any payments or benefits under the Severance Pay Plan,
you must sign this Agreement, which includes a waiver and release
of claims, (see Section 18), and you must not revoke the waiver
and release of claims within the period described in Sections 18
and 19. If the waiver and release of claims is at any time
determined to be partially or wholly unenforceable or ineffective
in any respect for any reason, (1) you will no longer be entitled
to reimbursement of health premiums as described in clause (c) or
to continued perquisites as described in clause (d), (2) the
payments described in clauses (a) and (b) will be reduced by 30%
(of the gross payments before any other reductions), (3) you must
promptly reimburse Jostens for the full amount or value of any
reimbursements or perquisites described in clause (c) or (d) that
you previously received and (4) you must promptly reimburse
Jostens for 30% (of the gross payments before any other
reductions) of any payments described in clauses (a) and (b) that
were previously made.
(ii) Non-Compete and Confidentiality: You acknowledge that in order to
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receive payments or benefits under the Severance Pay Plan, you
must not compete with Jostens at any time before December 31,
2000 or disclose confidential information. If you do, (1) you
will no longer be entitled to reimbursement of health premiums as
described in clause (c) or to continued perquisites as described
in clause (d), (2) the payments described in clauses (a) and (b)
will be reduced by 70% (of the gross payments before any after
reductions), (3) you must promptly reimburse Jostens for the full
amount or value of any reimbursements or perquisites described in
clause (c) or (d) that you previously received
Xx. Xxxxxx X. Xxxx
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and (4) you must promptly reimburse Jostens for 70% (of the
gross payments before any other reductions) of any payments
described in clauses (a) and (b) that were previously made. You
will be deemed to compete with Jostens if the Administrator of
the Severance Pay Plan determines that, directly or indirectly,
alone or as a partner, officer, director, shareholder, sole
proprietor, employee or consultant of any other firm or entity,
you have engaged, are engaging or intend to engage in any
commercial activity in competition with any part of the business
of Jostens or any affiliate as conducted at the time in question
or solicit, or you have solicited or interfered, are soliciting
or interfering or intend to solicit or interfere with the
relationship of Jostens or any affiliate with, any customers,
suppliers, employees or sales representatives of Jostens or any
affiliate. 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.
(iii) Return to Jostens: If you return to work for Jostens or one of
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its affiliates, you will not be entitled to any further benefits
under the Severance Pay Plan.
(iv) Other Work: If you perform any services for which you receive,
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directly or indirectly, remuneration as an employee, consultant,
sole proprietor, partner, member, owner or otherwise (other than
as an employee of Jostens or an affiliate), it will not affect
any payments made to you by Jostens under this Agreement.
(v) Other: You acknowledge that you have carefully reviewed the
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Severance Pay Plan, and particularly Section 4.5 of the
Severance Pay Plan, and understand the other limitations on the
benefits described above.
Xx. Xxxxxx X. Xxxx
Page 5
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
your Termination Date. There is no continuation or conversion option for
either of these coverages.
5. Spending Accounts: If you participated in either the Health Care Expense
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Account or Dependent Care Account, deductions will stop as of the last day
of the pay period that includes your Termination Date. Your Health Care
Expense account may be continued through COBRA. You will be advised
separately of coverage continuance rights by DCA, Inc., the COBRA
administrator.
6. Pension Plan: Your entitlement to benefits under the Pension Plan will be
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determined in accordance with the terms of the Plan. For purposes of
vesting service credit under Pension Plan D, you shall be granted service
credit through December 31, 2000.
7. 401(k) Retirement Savings Plan: You may elect to make 401(k) contributions
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through your salary continuation period. Any outstanding loans will become
due in full on December 31, 2000. Distribution of your account balances, if
any, will be made in accordance with the terms of the Plan.
8. Executive Supplemental Retirement Agreement: You will not accrue additional
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benefits or earn additional service for vesting or any other purposes under
your Executive Supplemental Retirement Agreement after your Termination
Date. You acknowledge that you are not entitled to receive any benefits
under your Executive Supplemental Retirement Agreement because you have
neither reached age 55 nor completed at least 7 years as an executive
officer of Jostens.
9. Short and Long Term Disability: Short-and Long-Term Disability coverage
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will cease on your Termination Date. 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.
10. Performance Pays Bonus: You will not be entitled to receive any Performance
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Pays bonus for the performance period ending this calendar year or for any
subsequent performance period.
Xx. Xxxxxx X. Xxxx
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11. Stock Options and Restricted Stock: You have until the end of the six (6)
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month period following December 31, 2000, 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 December 31, 2000, 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.
12. 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.
13. 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.
Xx. Xxxxxx X. Xxxx
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14. 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.
15. 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.
Notwithstanding the above, you may retain the laptop computer provided you
by Jostens. You understand that Jostens will first review all information,
data, records and files stored therein and retrieve or destroy at its
discretion any information, data, records or files constituting the
property of Jostens.
16. 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 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.
17. 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
Xx. Xxxxxx X. Xxxx
Page 8
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
($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.
18. 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.
b. Jostens, Inc., its subsidiaries, affiliates successors and any company
related to it releases, waives and discharges Xxxxxx X. Xxxx 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.
19. 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
Xx. Xxxxxx X. Xxxx
Page 9
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.
20. 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 unenforceable, the
Agreement will be deemed modified to remaining provisions will remain in
full force and effect.
Xx. Xxxxxx X. Xxxx
Page 10
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 11, 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/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
4/11/00
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DATE
ACKNOWLEDGMENT
I acknowledge that on April 11, 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/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
4/11/00
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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
