Exhibit 10.38


 


THIRD AMENDED AND RESTATED 2004 STOCK OPTION PLAN


FOR KEY EMPLOYEES OF


VISANT HOLDING CORP. AND ITS SUBSIDIARIES


 


1.             Purpose
of Plan


 


The Third
Amended and Restated 2004 Stock Option Plan for Key Employees of Visant Holding
Corp. and Its Subsidiaries (the “Plan”) is designed:


 


(a)           to
promote the long term financial interests and growth of Visant Holding Corp.
(the “Company”) and its Subsidiaries by attracting and retaining management and
other personnel with the training, experience and ability to enable them to
make a substantial contribution to the success of the Company’s business;


 


(b)           to
motivate management personnel by means of growth-related incentives to achieve
long range goals; and


 


(c)           to
further the alignment of interests of participants with those of the
stockholders of the Company through opportunities for increased stock, or
stock-based ownership in the Company.


 


2.             Definitions


 


As used in the
Plan, the following words shall have the following meanings:


 


(a)           “Affiliate”
means with respect to any Person, any entity directly or indirectly
controlling, controlled by or under common control with such Person.


 


(b)           “Board”
means the Board of Directors of the Company.


 


(c)           “Change
in Control” means (i) the sale (in one transaction or a series of
transactions) of all or substantially all of the assets of the Company to an
Unaffiliated Person; (ii) a sale (in one transaction or a series of
transactions) resulting in more than 50% of the voting stock of the Company
being held by an Unaffiliated Person; (iii) a merger, consolidation,
recapitalization or reorganization of the Company with or into an Unaffiliated
Person; if and only if any such
event listed in clauses (i) through (iii) above results in the inability
of the Investors, or any member or members of the Investors, to designate or
elect a majority of the Board (or the board of directors of the resulting
entity or its parent company). For purposes of this definition, the term “Unaffiliated
Person” means any Person or Group who is not (x) an Investor or any member
of the Investors, (y) a Rule 405 Affiliate of any Investor or any
member of any Investor, or (z) an entity in which any Investor, or any
member of any Investor holds, directly or indirectly, a majority of the
economic interests in such entity.


 


(d)           “Committee”
means the Compensation Committee of the Board.


 


(e)           “Common
Stock” or “Share” means the Class A common stock, par value $0.01 per share, of
the Company, which may be authorized but unissued, or issued and reacquired.


 

















 


(f)            “Employee”
means a person, including an officer, in the regular employment of the Company
or one of its Subsidiaries who, in the opinion of the Committee, is, or is
expected to have involvement in the management, growth or protection of some
part or all of the business of the Company.


 


(g)           “Exchange
Act” means the Securities Exchange Act of 1934, as amended.


 


(h)           “Fair
Market Value” means the price per share equal to (i) the average of the
last sale price of the Common Stock on the applicable date on each stock
exchange on which the Common Stock may at the time be listed or, (ii) if
there shall have been no sales on any such exchanges on the applicable date on
any given day, the average of the closing bid and asked prices of the Common
Stock on each such exchange on the applicable date or, (iii) if there is
no such bid and asked price on the applicable date, the average of the closing
bid and asked prices of the Common Stock on the next preceding date when such
bid and asked price occurred or, (iv) if the Common Stock shall not be so
listed, the closing sales price of the Common Stock as reported by NASDAQ on
the applicable date in the over-the-counter market, or, (v) if there has
been no Public Offering, the fair market value of the Common Stock as determined
(x) in the good faith discretion of the Board after consultation with
management of the Company and (y) without any premiums for control or
discounts for minority interests or restrictions on transfer.


 


(i)            “Grant”
means an award made to a Participant pursuant to the Plan and described in
Section 5, including, without limitation, an award of a Stock Option, Purchase
Stock, Restricted Stock, Stock Appreciation Right or Dividend Equivalent Right
(as such terms are defined in Section 5), or any combination of the foregoing.


 


(j)            “Grant
Agreement” means an agreement between the Company and a Participant that sets
forth the terms, conditions and limitations applicable to a Grant.


 


(k)           “Group”
means “group,” as such term is used for purposes of Section 13(d) or 14(d) of
the Exchange Act.


 


(l)            “Investors”
means Fusion Acquisition LLC, a Delaware limited liability company, and DLJ
Merchant Banking Partners III, L.P., DLJ Offshore Partners III-1, C.V., DLJ
Offshore Partners III-2, C.V., DLJ Offshore Partners III, C.V., DLJ MB Partners
III GmbH & Co. KG, Millennium Partners II, L.P. and MBP III Plan Investors,
L.P.


 


(m)          “Participant”
means an Employee, non-employee member of the Board, consultant or other person
having a relationship with the Company or one of its Subsidiaries, to whom one
or more Grants have been made and remain outstanding.


 


(n)           “Person”
means “person,” as such term is used for purposes of Section 13(d) or 14(d) of
the Exchange Act.


 


(o)           “Public
Offering” means the sale of shares of Common Stock to the public subsequent to
the date hereof pursuant to a registration statement under the Securities Act
of 1933, as amended, which has been declared effective by the Securities and
Exchange Commission (other than a registration statement on Form S-4, S-8
or any other similar form).


 


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(p)           “Subsidiary”
means any corporation in an unbroken chain of corporations beginning with the
Company if each of the corporations, or group of commonly controlled
corporations, other than the last corporation in the unbroken chain then owns
stock possessing 50% or more of the total combined voting power of all classes
of stock in one of the other corporations in such chain.


 


3.             Administration
of Plan


 


(a)           The
Plan shall be administered by the Committee. The Committee may adopt its own
rules of procedure, and action of a majority of the members of the Committee
taken at a meeting, or action taken without a meeting by unanimous written
consent, shall constitute action by the Committee. The Committee shall have the
power and authority to administer, construe and interpret the Plan, to make
rules for carrying it out and to make changes in such rules. Any such
interpretations, rules, and administration shall be consistent with the basic
purposes of the Plan.


 


(b)           The
Committee may delegate to the Chief Executive Officer and to other senior
officers of the Company its duties under the Plan subject to such conditions
and limitations as the Committee shall prescribe except that only the Committee
may designate and make Grants to Participants who are subject to Section 16 of
the Exchange Act.


 


(c)           The
Committee may employ counsel, consultants, accountants, appraisers, brokers or
other persons. The Committee, the Company, and the officers and directors of
the Company shall be entitled to rely upon the advice, opinions or valuations
of any such persons. All actions taken and all interpretations and
determinations made by the Committee in good faith shall be final and binding
upon all Participants, the Company and all other interested persons. No member
of the Committee shall be personally liable for any action, determination or
interpretation made in good faith with respect to the Plan or the Grants, and
all members of the Committee shall be fully protected by the Company with
respect to any such action, determination or interpretation.


 


4.             Eligibility


 


The Committee
may from time to time make Grants under the Plan to such Employees, or other
persons having a relationship with Company or any of its Subsidiaries, and in
such form and having such terms, conditions and limitations as the Committee
may determine. The terms, conditions and limitations of each Grant under the
Plan shall be set forth in a Grant Agreement, in a form approved by the Committee,
consistent, however, with the terms of the Plan; provided, however,
that such Grant Agreement shall contain provisions dealing with the treatment
of Grants in the event of the termination of employment, death or disability of
a Participant, and may also include provisions concerning the treatment of
Grants in the event of a Change in Control of the Company.


 


5.             Grants


 


From time to
time, the Committee will determine the forms and amounts of Grants for
Participants. Such Grants may take the following forms in the Committee’s sole
discretion:


 


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(a)           Stock
Options - These are options to purchase Common Stock. At the time of Grant
the Committee shall determine, and shall include in the Grant Agreement or other
Plan rules, the option exercise period, the option exercise price, vesting
requirements, and such other terms, conditions or restrictions on the grant or
exercise of the option as the Committee deems appropriate including, without
limitation, the right to receive dividend equivalent payments on vested and/or
unvested options. In addition to other restrictions contained in the Plan, an
option granted under this Section 5(a) may not be exercised after the end of
the calendar year that is 10 years after the date it is granted. Payment of the
option exercise price shall be made in cash or in shares of Common Stock that
the Participant has held for at least six months, or a combination thereof, in
accordance with the terms of the Plan, the Grant Agreement and of any
applicable guidelines of the Committee in effect at the time.


 


(b)           Stock
Appreciation Rights - The Committee may grant Stock Appreciation Rights in
connection with, or independent of, the grant of a Stock Option. Each Stock
Appreciation Right shall be subject to such other terms as the Committee may
determine. A Stock Appreciation Right means the right to transfer and surrender
to the Company all or a portion of a Stock Option in exchange for a cash amount
equal to the excess of (i) the aggregate Fair Market Value, as of the date such
Option or portion thereof is transferred or surrendered, of the Common Stock
underlying by such Option or portion thereof, over (ii) the aggregate exercise
price of such Option or portion thereof, relating to such Common Stock.


 


(c)           Purchase
Stock - Purchase Stock are Shares offered to a Participant at such price as
determined by the Committee, the acquisition of which may make the Participant
eligible to receive Grants under the Plan, including, but not limited to, Stock
Options.


 


(d)           Restricted
Stock – Restricted Stock are Shares granted by the Committee to a
Participant, without charge to the Participant (other than as may be required
by applicable law). The Restricted Stock shall be subject to such other terms
as the Committee may determine.


 


(e)           Dividend
Equivalent Rights – The Committee may grant Dividend Equivalent Rights
either alone or in connection with the grant of a Stock Option. A Dividend
Equivalent Right means the right to receive a payment in respect of one share
of Common Stock (whether or not subject to a Stock Option) equal to the amount
of any dividend paid in respect of one share of Common Stock held by a
shareholder in the Company. Each Dividend Equivalent Right shall be subject to
such terms as the Committee may determine.


 


6.             Limitations
and Conditions


 


(a)           The
number of Shares available for Grants under this Plan shall be 510,230 unless
restricted by applicable law. Shares related to Grants that are forfeited,
terminated, canceled or expire unexercised, shall immediately become available
for new Grants.


 


(b)           No
Grants shall be made under the Plan beyond ten years after the effective date
of the Plan, but the terms of Grants made on or before the expiration of the
Plan may extend beyond such expiration. At the time a Grant is made or amended
or the terms or conditions of a Grant are changed in accordance with the terms
of the Plan or the Grant Agreement, the Committee may provide for limitations
or conditions on such Grant.


 


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(c)           Nothing
contained herein shall affect the right of the Company or any of its
Subsidiaries to terminate any Participant’s employment at any time or for any
reason.


 


(d)           Other
than as specifically provided in the Form of Amended and Restated Management
Stockholder’s Agreement attached hereto as Exhibit A, no benefit under the Plan
shall be subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, or charge, and any attempt to do so shall be void.
No such benefit shall, prior to receipt thereof by the Participant, be in any
manner liable for or subject to the debts, contracts, liabilities, engagements,
or torts of the Participant.


 


(e)           Participants
shall not be, and shall not have any of the rights or privileges of,
stockholders of the Company in respect of any Shares purchasable in connection
with any Grant unless and until certificates representing any such Shares have
been issued by the Company to such Participants (or book entry representing
such shares has been made and such Shares have been deposited with the
appropriate registered book-entry custodian).


 


(f)            No
election as to benefits or exercise of any Grant may be made during a
Participant’s lifetime by anyone other than the Participant except by a legal
representative appointed for or by the Participant.


 


(g)           Absent
express provisions to the contrary, any Grant under this Plan shall not be
deemed compensation for purposes of computing benefits or contributions under
any retirement plan of the Company or its Subsidiaries and shall not affect any
benefits under any other benefit plan of any kind now or subsequently in effect
under which the availability or amount of benefits is related to level of
compensation. This Plan is not a “Retirement Plan” or “Welfare Plan” under the
Employee Retirement Income Security Act of 1974, as amended.


 


(h)           Unless
the Committee determines otherwise, no benefit or promise under the Plan shall
be secured by any specific assets of the Company or any of its Subsidiaries,
nor shall any assets of the Company or any of its Subsidiaries be designated as
attributable or allocated to the satisfaction of the Company’s obligations
under the Plan.


 


7.             Transfers
and Leaves of Absence


 


For purposes
of the Plan, unless the Committee determines otherwise: (a) a transfer of a
Participant’s employment without an intervening period of separation among the
Company and any Subsidiary (or among any Subsidiaries) shall not be deemed a
termination of employment, and (b) a Participant who is granted in writing a
leave of absence or who is entitled to a statutory leave of absence shall be
deemed to have remained in the employ of the Company (and any Subsidiary)
during such leave of absence.


 


8.             Adjustments


 


In the event
of any change in the outstanding Common Stock by reason of a stock split,
spin-off, stock combination, reclassification, recapitalization, liquidation,
dissolution, reorganization, merger, Change in Control, or other event
affecting the capital stock of the Company, the Committee may adjust
appropriately (a) the number and kind of shares subject to


 


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the Plan and available for or
covered by Grants and (b) share prices related to outstanding Grants, and make
such other revisions to outstanding Grants as it deems, in good faith, are
equitably required (including, without limitation, to the exercise price of
Stock Options).


 


9.             Merger,
Consolidation, Exchange, Acquisition, Liquidation or Dissolution


 


In its
absolute discretion, acting in good faith, and on such terms and conditions as
it deems appropriate, coincident with or after the grant of any Grant, the
Committee may provide that such Grant cannot be exercised after the
amalgamation, merger or consolidation of the Company with or into another
corporation, the exchange of all or substantially all of the assets of the
Company for the securities of another corporation, the acquisition by another
corporation of 80% or more of the Company’s then outstanding shares of voting
stock or the recapitalization, reorganization, reclassification, liquidation,
dissolution, or other event affecting the capital stock of the Company, and the
Committee shall, on such terms and conditions as it deems appropriate, acting
in good faith, also provide, either by the terms of such Grant or by a
resolution adopted prior to the occurrence of such amalgamation, merger,
consolidation, exchange, acquisition, recapitalization, reorganization,
reclassification, liquidation, dissolution or other event affecting the capital
stock of the Company, that, after written notice to all affected Participants
and for a reasonable period of time prior to such event, such Grant shall be
exercisable as to any Shares subject thereto which is being made unexercisable
after any such event, notwithstanding anything to the contrary herein (but
subject to the provisions of Section 6(b)) and that, upon the occurrence of
such event, such Grant shall terminate and be of no further force or effect; provided,
however, that the Committee may also provide, in its absolute
discretion, that even if the Grant shall remain exercisable after any such
event, from and after such event, any such Grant shall be exercisable only for
the kind and amount of securities and/or other property, or the cash equivalent
thereof (as determined by the Committee in good faith), receivable as a result
of such event by the holder of a number of Shares for which such Grant could
have been exercised immediately prior to such event.


 


10.           Amendment
and Termination


 


(a)           The
Committee shall have the authority to make such amendments to any terms and
conditions applicable to outstanding Grants as are consistent with this Plan
provided that no such action shall modify any Grant in a manner adverse to the
Participant without the Participant’s consent except as such modification is
provided for or contemplated in the terms of the Grant or this Plan (except
that any adjustment that is made pursuant to Section 8 or 9 hereof shall be
made by the Committee reasonably and in good faith).


 


(b)           The
Board of Directors may amend, suspend or terminate the Plan except that no such
action, other than an action under Section 8 or 9 hereof, may be taken which
would, without stockholder approval, increase the aggregate number of Shares
available for Grants under the Plan, decrease the price of outstanding Grants,
change the requirements relating to the Committee, extend the term of the Plan
or be materially adverse to all Participants with respect to any outstanding
Grants.


 


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11.           Governing
Law; International Participants


 


(a)           This
Plan shall be governed by and construed in accordance with the laws of Delaware
applicable therein.


 


(b)           With
respect to Participants who reside or work outside the United States of America
and who are not (and who are not expected to be) “covered employees” within the
meaning of Section 162(m) of the Code, the Committee may, in its sole
discretion, amend the terms of the Plan or Awards with respect to such
Participants in order to conform such terms with the requirements of local law
or to obtain more favorable tax or other treatment for a Participant, the
Company or an Affiliate.


 


12.           Withholding
Taxes


 


The Company
shall have the right to deduct from any cash payment made under the Plan any
minimum federal, state or local income or other taxes required by law to be
withheld with respect to such payment. It shall be a condition to the
obligation of the Company to deliver Shares upon the exercise of a Stock Option
that the Participant pay to the Company such amount as may be requested by the
Company for the purpose of satisfying any liability for such minimum
withholding taxes.


 


13.           Effective
Date and Termination Dates


 


The Plan shall be effective on and as of the date of its approval by
the stockholders of the Company and shall terminate ten years later, subject to
earlier termination by the Board pursuant to Section 10.


 


Original Plan approved by stockholders on
October 4, 2004.


 


Amended and Restated Plan approved by stockholders
on January 6, 2005.


 


Second Amended and Restated Plan approved by
stockholders on March 14, 2005.


 


Third Amended and Restated Plan approved by
stockholders on March 22, 2006.


 


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