**EXHIBIT 10.2**

 

# **JOSTENS,INC.SEPARATION AGREEMENT AND RELEASE OF CLAIMS**

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This Separation Agreement including a General andSpecial Release of Claims (this “Agreement”) is made as of the 17th day ofSeptember, 2004, by and among JOSTENS HOLDING CORP., a Delaware corporation (“Parent”),JOSTENS, INC., a Minnesota corporation (the “Company”) and Steven A. Tighe (the“Executive”).

 

WITNESSETH:

 

WHEREAS, the Executive is Vice President, HumanResources, of the Company; and

 

WHEREAS, the Executive wishes to resign from hisposition to pursue other interests; and

 

WHEREAS, the parties wish to set forth their agreementas to the timing and circumstances of the Executive’s resignation and theundertakings of the parties in connection therewith;

 

NOW, THEREFORE, in consideration of the mutualcovenants, conditions and obligations set forth herein, and other good andvaluable consideration, the receipt and sufficiency of which are acknowledged,the parties hereby agree as follows:

 

1.             Resignation.

The Executive herebyresigns from his position as Vice President, Human Resources of the Company andterminates his employment with the Company effective as of September 17, 2004(the “Separation Date”).  The Executivealso resigns as an officer of Parent, Company and all subsidiaries andaffiliates of the Company, effective as of the Separation Date.

 

2.             PaymentsAnd Benefits Following Resignation.

Subject to the Executive’scompliance with all of his obligations under this Agreement, and inconsideration of the Executive, among other things, agreeing to maintainconfidential information and not to compete with the Company during the18-month period September 17, 2004 to March 17, 2006 (the “Not to CompetePeriod”), as provided in Sections 4 and 5 below and executing the waivers andreleases set forth in Section 6 below, the Company shall provide the Executivewith the payments and other benefits provided for under this Agreement, asfollows:

 

(a)                                  SeveranceBenefits.  The Company shall pay theExecutive in a lump sum on the fifteenth (15th ) day following theSeparation Date a severance benefit of $578,852****less applicable withholding taxes, representing the 

 

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aggregate of all amountspayable to the Executive upon his termination of service, including salary,medical insurance, and perquisites under the Executive Severance Pay Plan, andExecutive Supplemental Retirement Agreement benefits, but excluding bonus andoption amounts, all as further detailed in Schedule I attached hereto.  A bonus amount of 45% of Executive’s basesalary, pro-rated through July, 2004, and determined in accordance with planperformance, but crediting executive with full on-plan performance forindividual Key Business Initiatives (“KBIs”), will be paid to Executive in thenormal course of business in 2005.

 

(b)                                 Options.  All vested Non-Qualified Stock Optionsgranted to Executive under the Jostens Holding Corp. 2003 Stock Incentive Plan(the “Plan”) will be repurchased by the Company pursuant to the terms of theOption Agreements, specifically Section 8. Repurchase Rights and OtherRestrictions, as soon as practicable following the closing of the proposedtransaction between Jostens Holding Corp. and Fusion Acquisition LLC.  In the event that the transaction does notclose, Executive shall be able to exercise his vested options pursuant to theterms of the Plan.

 

(c)                                  Non-disparagement.  The Executive, the Company and the Parentagree, respectively, that before and after his termination of employment withthe Company, none of them will make any statement or communication ofinformation by whatever means relating to his employment with the Company thatmay be reasonably interpreted to be critical of or derogatory to the otherparties to this Agreement, including, in the case of the Parent and the Company,their respective officers, directors and employees; provided, however, thatnothing in this paragraph is intended to keep either party from testifyingtruthfully under subpoena or other legal process before any court oradministrative agency of competent jurisdiction.

 

3.             ExclusiveSeparation Payments And Benefits.

 

The Executive, the Parentand the Company acknowledge and agree that this Agreement is intended to be theexclusive separation arrangement between the Company and the Executive.  Accordingly, except for the payments andother benefits provided to the Executive pursuant to, or referred to in, thisAgreement or unless otherwise agreed to in writing signed by the Executive, theParent and the Company, the Executive, the Parent and the Company agree thatthe Executive shall not be entitled to any remuneration, payments or otherbenefits under any other severance or separation plan or arrangement of theCompany.  The payments and other benefitsprovided by or referred to in this Agreement include any severance ortermination benefits that may be required by applicable law.

 

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4.             ConfidentialInformation.

 

The Executive shall not,at any time or for any reason, disclose or divulge, directly or indirectly, toany person, corporation or entity, or use for his own benefit, any Confidentialor Proprietary Information.  For thepurposes of this Agreement, “Confidential or Proprietary Information” shallmean information relating to the business or affairs of the Company or any ofits Affiliates, including, but not limited to, information relating tofinancial statements, customer identities, potential customers, employees,sales representatives, suppliers, servicing methods, equipment, programs,strategies and information, analyses, profit margins or other proprietaryinformation used by the Company or any of its Affiliates; provided, however,that Confidential Information does not include any information which is in thepublic domain or becomes known in the industry through no wrongful act on thepart of the Executive; provided that Confidential Information shall not includeinformation that (i) is or becomes generally known to the public other than asa result of a disclosure by Executive in violation of this Agreement, (ii) isor was available to the Executive on a non-confidential basis prior to itsdisclosure to Executive, or (iii) was or becomes available to Executive on anon-confidential basis from a source other than the Company, which source is orwas (at the time of  receipt of therelevant information) not, to Executive’s best knowledge, bound by aconfidentiality agreement with the Company or another person.

 

In the event theExecutive shall be requested, by subpoena or otherwise, in a judicial, administrativeor government proceeding to make disclosures of Confidential or ProprietaryInformation which are otherwise prohibited by this Agreement (whether by way oforal questions, interrogatories, requests for information or documents,subpoenas or similar process), the Executive shall notify the Company inwriting of such request (and shall provide a copy of such request to theCompany) within two (2) business days of the Executive’s receipt thereof andbefore providing any information in response to such request.  The Company shall provide counsel torepresent the Executive at the Company’s expense in connection with respondingto any such subpoena or request for information.

 

The Executive shallreturn to the Company immediately upon separation with the Company all of theCompany’s property and Confidential or Proprietary Information which is intangible form (including, but not limited to, all correspondence, memoranda,files, manuals, books, lists, records, equipment, computer disks, magnetictape, and electronic or other media and equipment) and all copies thereof inthe Executive’s possession, custody or control.

 

5.             CovenantNot to Compete.

 

During the term ofthe Not to Compete Period, Executive shall not, directly or indirectly, aloneor as a partner, officer, director, shareholder, sole proprietor, employee orconsultant of any other firm or entity (A) engage or intend to engage 

 

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in any commercialactivity with companies that compete with Jostens, including, but not limitedto, LifeTouch, American Achievement, Herff Jones, Walsworth, Friesens, orIntergold; or (B)(i) cause, solicit, induce or encourage any employees,independent sales representatives, Company sales representatives, consultants orcontractors of the Company or its Subsidiaries or Affiliates to leave suchemployment or service, or hire, employ or otherwise engage any such individual;or (ii) cause, induce or encourage any actual or prospective client, customer,supplier, or licensor of the Company or its Subsidiaries or Affiliates, orother Person who has a material business relationship with the Company or itsSubsidiaries or Affiliates to terminate or modify any such actual orprospective relationship.

 

(a)                                  TheExecutive agrees that the restrictions imposed upon him by the provisions ofthis Section 5 are fair and reasonable considering the nature of the Company’sbusiness, and are reasonably required for the protection of the Company.  The Executive further agrees that theprovisions of Sections 2 and 5 relating to areas of restriction and timeperiods of restriction were specifically discussed in good faith and areacceptable to the Executive. Nevertheless, to the extent that these restrictions exceed the maximumareas of restriction, limitations or periods of time which a court of competentjurisdiction would enforce, the areas of restriction, limitations or timeperiods shall be modified by such court to be the maximum areas of restriction,limitations or time periods which such court would enforce in any state inwhich such court shall be convened.  Ifany other part of this Section 5 is held to be invalid or unenforceable, theremaining parts shall nevertheless continue to be valid and enforceable asthough the unenforceable portions were absent.

 

(b)                                 TheExecutive acknowledges that a breach of any of the provisions of thisSection 5 may result in continuing and irreparable damages to the Companyfor which there may be no adequate remedy at law and that the Company, inaddition to all other relief available to it, shall be entitled to the issuanceof a temporary restraining order, preliminary injunction and permanentinjunction restraining the Executive from committing or continuing to commitany breach of the provisions of Section 4 above or this Section 5 pendingfurther legal proceedings and for appropriate periods in the future.

 

6.             Releaseand Waiver of Claims Against the Company.

 

(a)                                  TheExecutive, on behalf of himself, his agents, heirs, successors, assigns,executors and administrators, in consideration for the payments and otherconsideration provided for under this Agreement, hereby forever releases anddischarges the Company and its successors, their affiliated entities andcontrolling persons, and their past and present directors, employees, agents,attorneys, accountants, representatives, plan fiduciaries, successors andassigns from any and all known and unknown causes of action, 

 

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actions, judgments,liens, indebtedness, damages, losses, claims, liabilities, and demands ofwhatsoever kind and character in any manner whatsoever arising on or prior tothe date of this Agreement, including but not limited to (i) any claim forbreach of contract, breach of implied covenant, breach of oral or writtenpromise, wrongful termination, intentional infliction of emotional distress,defamation, interference with contract relations or prospective economicadvantage, negligence, misrepresentation or employment discrimination, and includingwithout limitation alleged violations of Title VII of the Civil Rights Act of1964, as amended, prohibiting discrimination based on race, color, religion,sex or national origin; the Family and Medical Leave Act; the Americans WithDisabilities Act prohibiting discrimination based on disability; the AgeDiscrimination in Employment Act prohibiting discrimination based on age over40; the Minnesota Human Rights Act, Minn. Stat. Ch. 363, other federal, stateand local laws, ordinances and regulations, and any unemployment or workers’compensation law; (ii) any and all liability that was or may have been allegedagainst or imputed to the Company by the Executive or by anyone acting on hisbehalf; (iii) all claims for wages, monetary or equitable relief, employment orreemployment with the Company in any position, and any punitive, compensatoryor liquidated damages; and (iv) all rights to and claims for attorneys’ feesand costs except as otherwise provided herein; provided, however, that thisrelease shall not extend to the obligations of the Company that arespecifically recited or referred to in this Agreement.  The Executive expressly waives any and allrights granted by any federal, state or local laws or ordinances or regulationsthat are intended to protect the Executive from waiving unknown claims.

 

(b)                                 TheExecutive shall not file or cause to be filed any action, suit, claim, chargeor proceeding with any federal, state or local court or agency relating to anyclaim within the scope of this Section 6. The Executive represents and warrants that he has not assigned any claimreleased herein, or authorized any other person to assert any claim on hisbehalf.

 

(c)                                  Inthe event any action, suit, claim, charge or proceeding within the scope ofthis Section 6 is brought by any government agency, putative classrepresentative or other third party to vindicate any alleged rights of theExecutive, (i) the Executive shall, except to the extent required or compelledby law, legal process or subpoena, refrain from participating, testifying orproducing documents therein, and (ii) all damages, inclusive of attorneys’fees, if any, required to be paid to the Executive by the Company as aconsequence of such action, suit, claim, charge or proceeding shall be repaid tothe Company by the Executive within ten (10) days of his receipt thereof.

 

(d)                                 Notwithstandinganything in this Agreement to the contrary, in the event of a violation of thisSection 6 by the Executive, the Company’s 

 

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obligations pursuant tothis Agreement shall cease as of the date of such violation and the Executiveshall be liable to the Company for all amounts paid to Executive under thisSeparation Agreement and any actual damages the Company suffers as a result ofsuch violation, including costs, expenses and all attorneys’ fees and expenses.

 

7.             Releaseand Waiver of Claims Against the Executive.

 

The Company herebyforever releases and discharges the Executive from any and all actions, causesof action, claims or demands in general, special or punitive damages, attorneys’fees and costs, expenses or other compensation which in any way relate to orarise out of the Company’s employment of the Executive or the termination ofsuch employment or otherwise, which the Company may now or hereafter have underany federal, state or local law, regulation or ordinance.  The release and waiver contained in thisSection 7 of this Agreement shall not apply to any act of fraud or criminalconduct by the Executive of which the Company is not aware as of the date ofthis Agreement, nor to any act of non-compliance with the terms of thisAgreement by the Executive.

 

8.                NoAdmission of Wrongdoing.

 

The release and waiver ofclaims by the Company in Section 7 of this Agreement, and the payment by theCompany of that portion of the amounts and other benefits set forth in thisAgreement to which the Executive would not otherwise be entitled, are beinggiven to the Executive in return for the Executive’s agreements and covenantscontained in this Agreement.  Nothingcontained in this Agreement shall be construed as an admission of liability orwrongdoing by either the Executive or the Company.

 

9.             VoluntaryExecution of Agreement.

 

BY HIS SIGNATURE BELOW, THE EXECUTIVE ACKNOWLEDGESTHAT:

 

(A)          IHAVE RECEIVED A COPY OF THIS AGREEMENT AND WAS OFFERED A PERIOD OF TWENTY-ONE(21) DAYS TO REVIEW AND CONSIDER IT;

 

(B)           IFI SIGN THIS AGREEMENT PRIOR TO THE EXPIRATION OF TWENTY-ONE DAYS, I KNOWINGLYAND VOLUNTARILY WAIVE AND GIVE UP THIS RIGHT OF REVIEW;

 

(C)           IHAVE THE RIGHT TO REVOKE THIS AGREEMENT FOR A PERIOD OF FIFTEEN DAYS AFTER ISIGN IT BY MAILING OR DELIVERING A WRITTEN NOTICE OF REVOCATION TO THE GENERALCOUNSEL OF THE COMPANY, NO LATER THAN THE CLOSE OF BUSINESS ON THE FIFTEENTHDAY AFTER THE DAY ON WHICH I SIGNED THIS AGREEMENT;

 

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(D)          THISAGREEMENT SHALL NOT BECOME EFFECTIVE OR ENFORCEABLE UNTIL THE FIFTEEN-DAYREVOCATION PERIOD HAS EXPIRED WITHOUT THE AGREEMENT HAVING BEEN REVOKED;

 

(E)           THISAGREEMENT WILL BE FINAL AND BINDING AFTER THE EXPIRATION OF THE REVOCATIONPERIOD REFERRED TO IN (C).  I AGREE NOTTO CHALLENGE ITS ENFORCEABILITY;

 

(F)           IAM AWARE OF MY RIGHT TO CONSULT AN ATTORNEY, HAVE CONSULTED WITH AN ATTORNEY,PRIOR TO SIGNING THIS AGREEMENT;

 

(G)           NOPROMISE OR INDUCEMENT FOR THIS AGREEMENT HAS BEEN MADE EXCEPT AS SET FORTH INTHIS AGREEMENT;

 

(H)          IAM LEGALLY COMPETENT TO EXECUTE THIS AGREEMENT AND ACCEPT FULL RESPONSIBILITYFOR IT; AND

 

(I)            IHAVE CAREFULLY READ THIS AGREEMENT INCLUDING THE RELEASE SET FORTH IN SECTION6, ACKNOWLEDGE THAT I HAVE NOT RELIED ON ANY REPRESENTATION OR STATEMENT,WRITTEN OR ORAL, NOT SET FORTH IN THIS DOCUMENT OR THE WRITTEN MATERIALSPRESENTED TO ME WITH THIS AGREEMENT, AND WARRANT AND REPRESENT THAT I AMSIGNING THIS AGREEMENT KNOWINGLY AND VOLUNTARILY.

 

10.           Notices.

 

All notices, requests,demands and other communications required or permitted hereunder shall be inwriting, shall be deemed properly given if delivered personally or sent bycertified or registered mail, postage prepaid, return receipt requested, orsent by telegram, telex, telecopy or similar form of telecommunication, andshall be deemed to have been given when received.  Any such notice, request, demand orcommunication shall be addressed:  (a) ifto the Company, to the General Counsel of the Company, 5501 American BoulevardWest, Minneapolis, Minnesota 55437; (b) if to the Executive, to his last knownhome address on file with the Company; or (c) to such other address as theparties shall have furnished to one another in writing.

 

11.           Terminationand Amendments; Miscellaneous.

 

(a)           ThisAgreement may only be terminated, or the provisions of this Agreement amendedor waived, prior to the expiration of the Company’s and the Executive’sobligations under this Agreement, by a writing signed by the Parent, theCompany and the Executive.

 

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(b)           TheCompany may withhold from any amounts payable under this Agreement suchfederal, state or local taxes as shall be required to be withheld pursuant toany applicable law or regulation.

 

(c)           Thefailure to insist upon strict compliance with any provision hereof, or thefailure to assert any right hereunder, shall not be deemed to be a waiver ofsuch provision or right or of any other provision or right under thisAgreement.  In the event that any term,provision or release of claims or rights contained in this Agreement is foundor determined to be illegal or otherwise invalid and unenforceable, whether inwhole or in part, such invalidity shall not affect the enforceability of theremaining terms, provisions and releases of claims or rights.

 

(d)           Exceptfor payments to be made from the trust under the Company’s  401(k) Retirement Savings Plan, all paymentsto be made hereunder shall be paid from the Company’s general funds and nospecial or separate fund shall be established and no segregation of assetsshall be made to assure the payment of such amounts.  Nothing contained in this Agreement shallcreate or be construed to create a trust of any kind, or a fiduciaryrelationship between the Company and the Executive or any other person withrespect to amounts to be paid hereunder; provided, however, that this Agreementdoes not affect the existing fiduciary duties of the Company under its 401(k)Retirement Savings Plan.

 

(e)           Nothingin this Agreement shall confer upon the Executive any right to continue in theemploy of the Company or its affiliates.

 

(f)            ThisAgreement sets forth the entire agreement and understanding between the partiesas to the subject matter hereof and supersedes all prior oral and written andall contemporaneous oral discussions, agreements and understandings of any kindor nature.  This Agreement shall inure tothe benefit of and be binding upon the parties hereto and their respectivepermitted successors and assigns.

 

(g)           Anyreference within this Agreement to an action, judgment, conclusion, ordetermination by the Company shall mean an action, judgment, conclusion, ordetermination of the Board of Directors of the Company or its authorizedrepresentative(s).

 

(h)           The headings preceding the text of the sections hereof are inserted solely forconvenience of reference, and shall not constitute a part of this Agreement, norshall they affect its meaning, construction or effect.

 

(i)            ThisAgreement shall be governed by, and construed and enforced in accordance withthe laws of the State of Minnesota.

 

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(j)                                     ThisAgreement may be executed in two or more counterparts, all of which shall havethe same force and effect as if all parties thereto had executed a single copy.

 

IN WITNESS WHEREOF, the Company and the Executive haveacknowledged and executed this Agreement effective as of the fifteenth dayfollowing the Separation Date first set forth above, unless revoked by theExecutive in the manner set forth in Section 9 above.

 
| EXECUTIVE       |   |   |   |   |   | JOSTENS HOLDING  CORP. |
|-----------------|--------|--------|--------|--------|--------|------------------------|
|            |   |   |   |   |   |                   |
|            |   |   |   |   |   |                   |
|            |   |   |   |   |   | By:                    |   |
| Steven A. Tighe |   |   |   |   |   |                   |
|            |   |   |   |   |   |                   |
|            |   |   |   |   |   | Name:                  |   |   |
|            |   |   |   |   |   |                   |   |   |
|            |   |   |   |   |   | Title:                 |   |
|            |   |   |   |   |   |                   |
|            |   |   |   |   |   |                   |
|            |   |   |   |   |   | JOSTENS, INC.          |
|            |   |   |   |   |   |                   |
|            |   |   |   |   |   |                   |
|            |   |   |   |   |   | By:                    |   |
|            |   |   |   |   |   |                   |
|            |   |   |   |   |   | Name:                  |   |
|            |   |   |   |   |   |                   |   |
|            |   |   |   |   |   | Title:                 |   |
|                 |        |        |        |        |        |                        |  |  |  |  |

 

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