UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(D) OF THE

SECURITIES EXCHANGE ACT OF 1934

Date of Report (Date of earliest event reported): May 30, 2017

 

 

Donnelley Financial Solutions, Inc.

(Exact Name of Registrant as Specified in Its Charter)

 

 

Delaware

(State or Other Jurisdiction of Incorporation)

 

001-37728   36-4829638
(Commission File Number)   (IRS Employer Identification No.)

 

35 West Wacker Drive,  
Chicago, Illinois   60601
(Address of Principal Executive Offices)   (Zip Code)

(844) 866-4337

(Registrant’s Telephone Number, Including Area Code)

Not Applicable

(Former Name or Former Address, if Changed Since Last Report)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

  ☐ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

  ☐ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

  ☐ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

  ☐ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company  ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  ☐

 

 

 

Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

 

  (a) Adoption of Executive Severance Plan .

On May 30, 2017, Donnelley Financial Solutions, Inc. (the “Company”) adopted the Donnelley Financial Solutions, Inc. Executive Severance Plan (the “Severance Plan”), which provides severance benefits under certain circumstances to Severance Plan participants selected by the Compensation Committee of the Board of Directors (the “Committee”). The new Plan will apply to Thomas F. Juhase (Executive Vice President, Chief Operating Officer), David A. Gardella (Executive Vice President, Chief Financial Officer), Jennifer B. Reiners (Executive Vice President, General Counsel) and Kami S. Turner (Executive Vice President, Chief Accounting Officer), as well as other executives of the Company as approved by the Committee. The participating officers described above have agreed to waive any existing severance rights under their employment or severance agreements, as applicable, and they shall not be entitled to duplicative benefits. The Severance Plan will not apply to the Company’s Chief Executive Officer, Daniel N. Leib, whose severance entitlements will continue to be governed by the terms of his employment agreement, as set forth in Exhibit 10.5 to the Form 8-K filed by the Company on October 3, 2016, as amended as set forth in Exhibit 99.1 to the Form 8-K filed by the Company on October 27, 2016.

Under the Severance Plan, if an eligible participant is terminated by the Company without “cause” (as defined in the Severance Plan), the participant will be entitled to (i) a severance payment equal to one times (one and one-half times in the case of Mr. Juhase) the sum of the participant’s base salary and target annual bonus for the year of termination, (ii) a pro-rata annual bonus based on actual performance for the year of termination, (iii) payment of the participant’s annual bonus for the year prior to termination, if unpaid, and (iv) medical, dental and vision insurance benefit continuation/COBRA coverage for one year.

If a participant’s employment is terminated by the Company without cause or if the participant terminates his or her employment for “good reason” (as defined in the Severance Plan) (a “Qualifying Termination”), in either case, within three months prior to or two years following a “change in control” (as defined in the Severance Plan), then instead of receiving the benefits described above, the participant will be entitled to (i) a severance payment equal to one and one-half times the sum of the participant’s base salary and target annual bonus for the year of termination, (ii) a pro-rata target annual bonus for the year of termination, (iii) payment of the participant’s annual bonus for the year prior to termination, if unpaid, and (iv) medical, dental and vision insurance benefit continuation/COBRA coverage for 18 months. In addition, upon a change in control, any unvested performance-based equity awards granted after May 30, 2017 will be deemed earned at the target performance level with respect to all open performance periods and will continue to be subject to time-based vesting in accordance with the original performance period, but will vest upon a Qualifying Termination. All other equity or cash-based awards held by the participant will also vest in full upon a Qualifying Termination following a change in control.

If any payments or benefits under the Severance Plan or otherwise would cause a participant to become subject to the excise tax imposed under section 4999 of the Internal Revenue Code, then those payments and benefits will be reduced to the amount that would not cause the participant to be subject to the excise tax if such a reduction would put the participant in a better after-tax position than if the participant were to pay the tax.

All payments and other benefits under the Severance Plan are conditioned on the participant’s granting of a release and compliance with certain non-competition, non-solicitation, non-disparagement and confidentiality covenants.

The foregoing description of the Severance Plan is a summary and is qualified in its entirety by reference to the full text of the Severance Plan, which is attached hereto as Exhibit 10.1 and incorporated herein by reference.

 

  (b) Waiver of Existing Severance Rights; Amendment of Certain Award Agreements .

Effective as of June 1, 2017, June 5, 2017 and May 31, 2017, each of Mr. Juhase, Mr. Gardella and Ms. Reiners, respectively, who are named executive officers of the Company, (i) entered into a Waiver of Severance Benefits (the “Waivers”) to waive pre-existing severance rights under their employment and severance agreements, as applicable and (ii) commenced participation in the Severance Plan. The Waivers also amend the award agreements for each of the executive’s grant of performance restricted stock awarded March 2, 2017 to provide that upon a change in control (as defined in the award agreements), each performance condition shall be deemed met at the target performance level (instead of actual performance) with respect to each open performance period. Mr. Leib and Ms. Turner entered into amendments to their March 2, 2017 performance restricted stock award to reflect the foregoing change.

The foregoing description of the Waivers is a summary and is qualified in its entirety by reference to the full text of the Waivers, which are attached hereto as Exhibits 10.2, 10.3 and 10.4 and incorporated herein by reference.

Item 9.01. Financial Statements and Exhibits

 

(d) Exhibits

 

Exhibit
No.

  

Description of Exhibit

10.1    Donnelley Financial Solutions, Inc. Executive Severance Plan
10.2    Waiver of Severance Benefits, dated as of June 1, 2017, by and between Thomas F. Juhase and Donnelley Financial Solutions, Inc.
10.3    Waiver of Severance Benefits, dated as of June 5, 2017, by and between David A. Gardella and Donnelley Financial Solutions, Inc.
10.4    Waiver of Severance Benefits, dated as of May 31, 2017, by and between Jennifer B. Reiners and Donnelley Financial Solutions, Inc.
10.5    Form of Amendment to Performance Restricted Stock Award

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

    DONNELLEY FINANCIAL SOLUTIONS, INC.
Date: June 5, 2017     By:   /s/ Jennifer B. Reiners
      Jennifer B. Reiners
      Executive Vice President, General Counsel

Exhibit 10.1

DONNELLEY FINANCIAL SOLUTIONS, INC.

EXECUTIVE SEVERANCE PLAN

(Effective May 30, 2017)

1. Purpose . The purpose of the Donnelley Financial Solutions, Inc. Executive Severance Plan (the “ Plan ”) is to retain certain senior executives of the Company by providing appropriate severance benefits and to ensure their continued dedication to their duties in connection with certain types of termination of employment, including after a Change in Control.

2. Eligible Participants . Employees participating in the Plan (each, a “ Participant ”) will be any executive of the Company who is selected by the Compensation Committee in its sole discretion for coverage by the Plan.

3. Non-Change in Control Severance Benefits . If a Participant’s employment is terminated due to a Qualifying Termination other than during a CIC Termination Period, then, subject to the Participant’s execution of a Release, which shall be provided to the Participant no later than five (5) days after the Date of Termination and must be executed by the Participant, become effective and not be revoked by the Participant by the sixtieth (60th) day following his or her Date of Termination, the Company shall provide to the Participant:

 

  (a) a cash payment equal to one (1) (or such higher multiple as determined by the Compensation Committee) times the sum of (i) the Participant’s Base Salary and (ii) the Participant’s target annual cash bonus under the Company’s Annual Incentive Plan (the “ AIP ”), based on the target in effect as of the date of such Qualifying Termination;

 

  (b) a lump sum cash payment equal to the Participant’s actual annual cash bonus under the AIP that Participant would have received for the year in which his or her Date of Termination occurs, but for the Participant’s Qualifying Termination, determined on the basis of actual achievement of the performance goals applicable under the AIP for such performance period (the “ Actual Bonus ”), multiplied by a fraction, the numerator of which equals the number of days the Participant was employed by the Company during the year which the Date of Termination occurred, and the denominator of which is 365;

 

  (c) if the Participant’s Qualifying Termination occurs after the end of a performance period, but before the payment of annual cash bonuses for such period under the AIP, a lump sum cash payment equal to the Participant’s actual annual cash bonus under the AIP that the Participant would have received for the year prior to which his or her Date of Termination occurs, but for the Participant’s Qualifying Termination, determined on the basis of actual achievement of the performance goals applicable under the AIP for such performance period (the “ Prior Year Bonus ”); and

 

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  (d) for one (1) year after the Participant’s Date of Termination, the Participant, his or her spouse and his or her dependents will continue to be entitled to participate in the Company’s group health, medical and vision insurance plans in which the Participant, his or her spouse and his or her dependents participate immediately prior to the Date of Termination, at the same rate as paid by similarly situated employees from time to time (“ Benefits Coverage ”); provided that the Participant timely elects continuation coverage under Section 4980B(f) of the Code; provided , further , that the Participant, his or her spouse and his or her dependents shall cease to be entitled to Benefits Coverage if and when the Participant obtains alternative employment and becomes eligible for insurance coverage that is substantially similar to the Benefits Coverage, in which case, the Participant must notify the Company within ten (10) days of the commencement of such alternative employment; and provided , further , that to the extent the applicable health and life insurance plans do not permit continuation of the Participant’s or his or her spouse’s or dependents’ participation throughout such period, for the portion of the period during which such continuation is not permitted, the Company shall provide the Participant, on the first business day of each calendar quarter, in advance, with an amount which is equal to the Company’s cost of providing such benefits, less the applicable employee rate of participation.

 

  (e) If the Participant is the Company’s Chief Executive Officer (the “ CEO ”), the Participant shall be entitled to the same benefits specified in this Section 3 due to a Qualifying Termination that occurs other than during a CIC Termination Period; provided that :

 

  (i) the cash payment specified in Section 3(a) shall be equal to two (2) times the sum of (i) the Participant’s Base Salary and (ii) the Participant’s target annual cash bonus under the AIP, based on the target in effect as of the date of such Qualifying Termination; and

 

  (ii) the Participant, his or her spouse and his or her dependents will continue to be entitled to the Benefits Coverage specified in Section 3(d) for twenty-four (24) months after Participant’s Date of Termination, subject to the same terms and conditions specified therein.

Subject to the Release requirement described above, the cash severance payments specified in Section 3(a) and Section 3(e)(i) shall be paid in equal installments on the 15th and last days of each of the twelve (12) months following the 30th day after the date of the Participant’s Date of Termination (or, if the 15th and last day of a month is not a business day, on the closest business day to such date). The cash payments specified in Section 3(b) and Section 3(c) shall be paid on the dates on which the Actual Bonus or the Prior Year Bonus would have been paid to Participant under the AIP in accordance with the terms of the AIP, but for Participant’s Qualifying Termination during or following the performance period.

4. Change in Control Severance Benefits .

 

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  (a) Effect of a Change in Control on Performance-Based Equity Awards . Upon a Change in Control, each outstanding Performance-Based Equity Award held by a Participant that was granted after the Effective Date shall be deemed earned at the target performance level with respect to all open performance periods and will cease to be subject to any further performance conditions but will continue to be subject to time-based vesting following the Change in Control in accordance with the original performance period.

 

  (b) Change in Control Severance Benefits . If, during a CIC Termination Period, the employment of a Participant is terminated due to a Qualifying Termination, then, subject to the Participant’s execution of a Release, which shall be provided to the Participant no later than five (5) days after his or her Date of Termination and must be executed by the Participant, become effective and not be revoked by the Participant by the sixtieth (60th) day following his or her Date of Termination, the Company shall provide to the Participant:

 

  (i) a lump sum cash payment equal to one and one-half (1.5) times the sum of (i) Participant’s Base Salary and (ii) Participant’s target annual cash bonus under the AIP;

 

  (ii) a lump sum cash payment equal to Participant’s target annual cash bonus under the AIP, multiplied by a fraction, the numerator of which equals the number of days the Participant was employed by the Company during the year which the Date of Termination occurred, and the denominator of which is 365;

 

  (iii) if the Participant’s Qualifying Termination occurs after the end of a performance period under the AIP, but before the payment of annual cash bonuses for such period under the AIP, a lump sum cash payment equal to the Participant’s Prior Year Bonus;

 

  (iv)

for eighteen (18) months after Participant’s Date of Termination, Participant, his or her spouse and his or her dependents will continue to be entitled to Benefits Coverage; provided that the Participant timely elects continuation coverage under Section 4980B(f) of the Code; provided , further , that the Participant, his or her spouse and his or her dependents shall cease to be entitled to Benefits Coverage if and when the Participant obtains alternative employment and becomes eligible for insurance coverage that is substantially similar to the Benefits Coverage, in which case, the Participant must notify the Company within ten (10) days of the commencement of such alternative employment; and provided , further , that to the extent that the applicable health and life insurance plans do not permit continuation of the Participant’s or his or her spouse’s or dependents’ participation throughout such period, for the portion of the period during which such

 

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  continuation is not permitted, the Company shall provide the Participant, on the first business day of each calendar quarter, in advance, with an amount which is equal to the Company’s cost of providing such benefits, less the applicable employee rate of participation; and

 

  (v) effective as of the Participant’s Date of Termination during the CIC Termination Period (or, if later, the date the Change in Control occurs), any unvested equity or other long-term cash incentive awards held by the Participant shall vest in full.

 

  (vi) If the Participant is the CEO, the Participant shall be entitled to the same benefits specified in this Section 4 upon a Qualifying Termination during the CIC Termination Period under the Plan; provided that :

 

  (A) the cash payment specified in Section 4(b)(i) shall be equal to two and one-half (2.5) times the sum of (i) the Participant’s Base Salary and (ii) the Participant’s target annual cash bonus under the AIP; and

 

  (B) the Participant, his or her spouse and his or her dependents will continue to be entitled to the Benefits Coverage specified in Section 4(b)(iv) for twenty-four (24) months after Participant’s Date of Termination, subject to the same terms and conditions specified therein.

Subject to the Release requirement described above, the cash payments specified in paragraphs (i), (ii) and (vi)(A) of this Section 4(b) shall be paid on the sixtieth (60 th ) day (or the next following business day if the sixtieth (60 th ) day is not a business day) following the Participant’s Date of Termination. The cash payment specified in paragraph (iii) of this Section 4(b) shall be paid on the date on which the Prior Year Bonus would have been paid to Participant under the AIP in accordance with the terms of the AIP, but for Participant’s Qualifying Termination following the performance period.

5. Accrued Obligations . The Company shall pay to the Participant all of the Participant’s Accrued Obligations, in each case determined in accordance with the terms of the relevant plan or policy. Payment of such Accrued Obligations shall be made to the Participant as soon as administratively practicable following the Participant’s Date of Termination.

6. No Duplication of Benefits . Except as otherwise expressly provided pursuant to the Plan, the Plan shall be construed and administered in a manner which avoids duplication of compensation and benefits which may be provided under any other plan, program, policy, or other arrangement or individual contract or under any statute, rule or regulation. In the event a Participant is covered by any other plan, program, policy, individually negotiated agreement or other arrangement, in effect as of his or her Date of Termination, that may duplicate the payments and benefits provided for in Section 3 or Section 4 , the Compensation Committee is specifically empowered to reduce or eliminate the duplicative benefits provided for under the

 

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Plan, such that the Participant receives the treatment provided for by the more favorable provision.

7. Withholding Taxes . The Company shall withhold from all payments due to the Participant (or his beneficiary or estate) hereunder all taxes which, by applicable federal, state, local or other law, the Company is required to withhold therefrom.

8. Expenses . If any contest or dispute shall arise under the Plan involving termination of a Participant’s employment with the Company or involving the failure or refusal of the Company to perform fully in accordance with the terms hereof, each party shall be responsible for its own legal fees and related expenses, if any, incurred in connection with such contest or dispute; provided , however , that with respect to any contest or dispute arising after a Change in Control, in the event the Participant substantially prevails with respect to such contest or dispute, the Company shall reimburse the Participant on a current basis for all reasonable legal fees and related expenses incurred by the Participant in connection with such contest or dispute, which reimbursement shall be made within thirty (30) days after the date the Company receives the Participant’s statement for such fees and expenses.

9. No Guarantee of Continued Employment . Nothing in the Plan shall be deemed to entitle the Participant to continued employment with the Company or any of its subsidiaries.

10. Restrictive Covenants .

 

  (a) Noncompetition . If a Participant’s employment is terminated in accordance with Section 3 or Section 4 of the Plan, then during the twelve (12) month period immediately following the Participant’s Date of Termination (the “ Restricted Period ”), the Participant shall not, directly or indirectly, manage, control, participate in, consult with, render services for, or in any manner engage in a Competitive Enterprise.

 

  (b) Nonsolicitation of Customers . During the Restricted Period, the Participant shall not, directly or indirectly through another entity, solicit or attempt to solicit or induce or attempt to induce any customer, supplier, licensee or other business relation of the Company to transact business with a Competitive Enterprise or to cease doing business with the Company or in any way interfere with the relationship between any such customer, supplier, licensee or business relation and the Company.

 

  (c) Nonsolicitation of Employees . During the twenty-four (24) month period immediately following the Participant’s Date of Termination, the Participant shall not, directly or indirectly through another entity:

 

  (i) induce or attempt to induce any employee of the Company to leave the employ of the Company, or in any way interfere with the relationship between the Company and any employee, or

 

  (ii) hire any person who was an employee of the Company within 180 days prior to the date of hire.

 

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  (d) Non-Disparagement . In the event a Participant’s employment is terminated in accordance with Section 3 or Section 4 of the Plan, after the Participant’s Date of Termination, (i) the Participant shall not make any statement that would libel, slander or disparage the Company or its past or present officers, directors, employees or agents; provided , however , that the Participant or the Company may respond accurately to any question, inquiry or request for information from any regulator or investor, or when required by legal process or legal and regulatory requirements, including disclosure requirements under applicable laws.

 

  (e) Confidentiality . No Participant shall disclose to any unauthorized person, firm, corporation or other entity or use for his or her own account any information, observations and data obtained by the Participant during the course of his or her employment concerning the business and affairs of the Company or any Related Entities, including any information concerning acquisition opportunities in or reasonably related to the Company’s business or industry of which the Participant become aware during the Participant’s employment, without the Board’s written consent, unless and to the extent that the aforementioned matters:

 

  (i) become generally known to and available for use by the public other than as a result of the Participant’s acts or omissions,

 

  (ii) were known to the Participant prior to the Participant’s employment with the Company, or

 

  (iii) are required to be disclosed pursuant to any applicable law or court order.

The Participant shall deliver to the Company upon the termination of the Participant’s employment, or at any other time the Company may request in writing, all memoranda, notes, plans, records, reports and other documents (and copies thereof) relating to the business of the Company or any of its subsidiaries (including, without limitation, all acquisition prospects, lists and contact information) that the Participant may then possess or have under his or her control. For the avoidance of doubt, nothing in the Plan or any agreement with, or policy of, the Company restricts or impedes a Participant from providing truthful information to governmental or regulatory bodies, including a Participant’s right to make disclosures under the whistleblower provisions of applicable law or regulations.

 

  (f)

Enforcement . If, at the time of enforcement of this Section 10 , a court holds that the restrictions stated herein are unreasonable under circumstances then existing, the maximum duration, scope or geographical area reasonable under such circumstances shall be substituted for the stated period, scope or area, and the court shall be allowed to revise the restrictions contained herein to cover the maximum duration, scope and area permitted by law. Because each Participant’s services are unique, the parties hereto agree that monetary damages would be an inadequate remedy for any breach of this Section 10 . Therefore, in the event of a breach or threatened breach of this Section 10 , the Company may, in

 

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  addition to other rights and remedies existing in its favor, apply to any court of competent jurisdiction for specific performance 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).

 

  (g) Recoupment; Cessation of Obligations . In the event that the Participant breaches Sections 10(a) , 10(b) , 10(c) , 10 (d) or 10(e) hereof or materially breaches another provision of the Release, the Company shall have the right to recoup from the Participant all payments and benefits (or the value thereof as determined by the Compensation Committee in its sole discretion) provided to such Participant under the Plan and any obligation of the Company to make or provide any payments or benefits under the Plan will cease.

11. Section 280G of the Code .

 

  (a) In the event that any payments or benefits (whether under the Plan or otherwise) payable to a Participant (i) constitute “parachute payments” within the meaning of Section 280G of the Code, and (ii) but for this Section 11 , would be subject to the excise tax imposed by Section 4999 of the Code, then such payments and benefits will be either (x) delivered in full, or (y) delivered as to such lesser extent that would result in no portion of such payments and benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income and employment taxes and the excise tax imposed by Section 4999 of the Code (and any equivalent state or local excise taxes), results in the receipt by the Participant, on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such payments and benefits may be taxable under Section 4999 of the Code. Any reduction in payments and/or benefits required by this provision will occur in the following order, in each case with payments and benefits with a higher “parachute payment” value for purposes of Section 280G of the Code reduced before payments with a lower value: (1) reduction of vesting acceleration of equity awards that are not eligible for reduction under Treasury Regulation 1.280G Q&A-24(c); (2) reduction of Benefits Coverage; (3) reduction of cash payments that are not eligible for reduction under Treasury Regulation 1.280G Q&A-24(c); (4) reduction of vesting acceleration of equity awards that are eligible for reduction under Treasury Regulation 1.280G Q&A-24(c); and (5) reduction of cash payments that are eligible for reduction under Treasury Regulation 1.280G Q&A-24(c). In the event that acceleration of vesting of equity awards or cash payments is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant for such awards. If two or more awards were granted on the same date, each award will be reduced on a pro-rata basis.

 

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  (b) All determinations required to be made under this Section 11 , including the reduction payments hereunder and the assumptions to be utilized in arriving at such determinations, will be made by a public accounting firm that is retained by the Company as of the date immediately prior to the Change in Control (the “ Accounting Firm ”), which will provide detailed supporting calculations both to the Company and the Participant within fifteen (15) business days of the receipt of notice from the Company or the Participant that there has been a payment that may be subject to Section 4999 of the Code, or such earlier time as is requested by the Company, and whose determination will be conclusive and binding upon the Participant and the Company for all purposes. For purposes of making the calculations required by this Section 11 , the Accounting Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good-faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Participant agree to furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this provision. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this provision. Any determinations by the Accounting Firm with respect to whether any payments or benefits are subject to reduction under this Section 11 shall be binding upon the Company and the Participant.

12. Successors; Binding Agreement . This Plan shall survive any Change in Control, and the provisions of this Plan shall be binding upon the surviving corporation, which shall be treated as the Company hereunder. The benefits provided under this Plan shall inure to the benefit of and be enforceable by the Participant’s personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees. If the Participant dies while any amounts would be payable to the Participant hereunder had the Participant continued to live, all such amounts, unless otherwise provided herein, shall be paid in accordance with the terms of this Plan to such person or persons appointed in writing by the Participant to receive such amounts or, if no person is so appointed, to the Participant’s estate.

13. Notice .

 

  (a) For purposes of the Plan, all notices and other communications required or permitted hereunder shall be in writing and shall be deemed to have been duly given when delivered or five (5) days after deposit in the United States mail, certified and return receipt requested, postage prepaid and addressed as follows:

 

       If to the Participant:

 

       The address listed as the Participant’s address in the Company’s personnel files.

 

       If to the Company:

 

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       Donnelley Financial Solutions, Inc.
       Attention: General Counsel
       35 W. Wacker Drive
       Chicago, IL 60601.

 

       or to such other address as either party may have furnished to the other in writing in accordance herewith, except that notices of change of address shall be effective only upon receipt.

 

  (b) A written notice of the Participant’s Date of Termination by the Company or the Participant, as the case may be, to the other, shall (i) indicate the specific termination provision in the Plan relied upon, (ii) to the extent applicable, set forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of the Participant’s employment under the provision so indicated and (iii) specify the Date of Termination (which date shall be not less than thirty (30) nor more than ninety (90) days after the giving of such notice). The failure by the Participant or the Company to set forth in such notice any fact or circumstance which contributes to a showing of Good Reason or Cause shall not waive any right of the Participant or the Company hereunder or preclude the Participant or the Company from asserting such fact or circumstance in enforcing the Participant’s or the Company’s rights hereunder.

14. Full Settlement; Resolution of Disputes and Costs .

 

  (a) In no event shall the Participant be obligated to seek other employment or take other action by way of mitigation of the amounts payable to the Participant under any of the provisions of the Plan and, except as provided in the Release, such amounts shall not be reduced whether or not the Participant obtains other employment; provided that the Participant’s entitlement to Benefits Coverage may terminate in connection with the Participant’s commencement of alternative employment as set forth in Section 3(d) or Section 4(b)(iv) .

 

  (b)

Any dispute or controversy arising under or in connection with the Plan shall be settled exclusively by arbitration in Chicago, Illinois by three arbitrators in accordance with the commercial arbitration rules of the Judicial Arbitration and Mediation Services, Inc. (“ JAMS ”) then in effect. One arbitrator shall be selected by the Company, the other by the Participant and the third jointly by these arbitrators (or if they are unable to agree within thirty (30) days of the commencement of arbitration, the third arbitrator will be appointed by the JAMS). Judgment may be entered on the arbitrators’ award in any court having jurisdiction. Notwithstanding anything in the Plan to the contrary, any arbitration panel that adjudicates any dispute, controversy or claim arising between a Participant and the Company, or any of their delegates or successors, in respect of a Participant’s Qualifying Termination that occurs during a CIC Termination Period, will apply a de novo standard of review to any

 

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  determinations made by such person. Such de novo standard shall apply notwithstanding the grant of full discretion hereunder to any such person or characterization of any such decision by such person as final, binding or conclusive on any party.

15. Employment with Subsidiaries . Employment with the Company for purposes of the Plan shall include employment with any subsidiary of the Company.

16. Survival . The respective obligations and benefits afforded to the Company and the Participant as provided in Sections 3 , 4 (to the extent that payments or benefits are owed as a result of a termination of employment that occurs during the term of the Plan), 7 , 8 , 10 , 12 and 14 shall survive the termination of the Plan.

17. GOVERNING LAW; VALIDITY . EXCEPT TO THE EXTENT THE PLAN IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ ERISA ”), ALL RIGHTS AND OBLIGATIONS UNDER THE PLAN SHALL BE CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICT OF LAWS. THE INVALIDITY OR UNENFORCEABILITY OF ANY PROVISION OF THE PLAN SHALL NOT AFFECT THE VALIDITY OR ENFORCEABILITY OF ANY OTHER PROVISION OF THE PLAN, WHICH OTHER PROVISIONS SHALL REMAIN IN FULL FORCE AND EFFECT.

18. Amendment and Termination . The Compensation Committee may amend or terminate the Plan at any time without the consent of the Participants and may remove a Participant from the Plan for any reason, provided that the Compensation Committee must give notice to Participants at least twelve (12) months prior to the effective date of any amendment if such amendment will materially impair the rights of Participants under the Plan. Notwithstanding the foregoing, during a CIC Termination Period, the Plan may not be amended in a manner that is adverse to the interests of the Participants or terminated by the Compensation Committee (or any successor committee thereto) and any Participant’s participation hereunder may not be terminated, in each case without the prior written consent of such Participant.

19. Interpretation and Administration . The Plan shall be administered by the Compensation Committee (or any successor committee). The Compensation Committee (or any successor committee) shall have the authority (a) to exercise all of the powers granted to it under the Plan, (b) to construe, interpret and implement the Plan, (c) to prescribe, amend and rescind rules and regulations relating to the Plan, (d) to make all determinations necessary or advisable with respect to the administration of the Plan, (e) to correct any defect, supply any omission and reconcile any inconsistency in the Plan, and (f) to delegate its responsibilities and authority hereunder to a subcommittee of the Compensation Committee. All determinations by the Compensation Committee (or any successor committee) shall be made in the committee’s reasonable discretion and be final and binding on Participants; provided that a de novo standard of review will apply to any such determinations made following a Change in Control.

20. Claims and Appeals . Participants may submit claims for benefits by giving notice to the Company pursuant to Section 13 of the Plan. If a Participant believes that he or she has not received coverage or benefits to which he or she is entitled under the Plan, the Participant may notify the Compensation Committee in writing of a claim for coverage or benefits. If the claim

 

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for coverage or benefits is denied in whole or in part, the Compensation Committee shall notify the applicant in writing of such denial within thirty (30) days (which may be extended to sixty (60) days under special circumstances), with such notice setting forth: (i) the specific reasons for the denial; (ii) the Plan provisions upon which the denial is based; (iii) any additional material or information necessary for the applicant to perfect his or her claim; and (iv) the procedures for requesting a review of the denial. Upon a denial of a claim by the Compensation Committee, the Participant may: (i) request a review of the denial by the Compensation Committee or, where review authority has been so delegated, by such other person or entity as may be designated by the Compensation Committee for this purpose; (ii) review any Plan documents relevant to his or her claim; and (iii) submit issues and comments to the Compensation Committee or its delegate that are relevant to the review. Any request for review must be made in writing and received by the Compensation Committee or its delegate within sixty (60) days of the date the applicant received notice of the initial denial, unless special circumstances require an extension of time for processing. The Compensation Committee or its delegate will make a written ruling on the applicant’s request for review setting forth the reasons for the decision and the Plan provisions upon which the denial, if appropriate, is based. This written ruling shall be made within thirty (30) days of the date the Compensation Committee or its delegate receives the applicant’s request for review unless special circumstances require an extension of time for processing, in which case a decision will be rendered as soon as possible, but not later than sixty (60) days after receipt of the request for review. All extensions of time permitted by this Section 20 will be permitted at the sole discretion of the Compensation Committee or its delegate. If the Compensation Committee does not provide the Participant with written notice of the denial of his or her appeal, the Participant’s claim shall be deemed denied.

21. Type of Plan . The Plan is intended to be, and shall be interpreted as an unfunded employee welfare plan under Section 3(1) of ERISA and Section 2520.104-24 of the Department of Labor Regulations, maintained primarily for the purpose of providing employee welfare benefits, to the extent that it provides welfare benefits, and under Sections 201, 301 and 401 of ERISA, as a plan that is unfunded and maintained primarily for the purpose of providing deferred compensation, to the extent that it provides such compensation, in each case for a select group of management or highly compensated employees (i.e., a “top hat” plan).

22. Nonassignability . Benefits under the Plan may not be assigned by the Participant. The terms and conditions of the Plan shall be binding on the successors and assigns of the Company.

23. Section 409A .

 

  (a)

To the extent a Participant would otherwise be entitled to any payment or benefit that under the Plan, or any plan or arrangement of the Company or its affiliates, constitutes “deferred compensation” subject to Section 409A and that if paid or provided during the six (6) months beginning on the date of termination of a Participant’s employment would be subject to the Section 409A additional tax because the Participant is a “specified employee” (within the meaning of Section 409A and as determined by the Company), the payment or benefit will be paid or provided (or will commence being paid or provided, as applicable) to the Participant on the earlier of the six (6) month anniversary of the Participant’s Date of

 

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  Termination or the Participant’s death. In addition, any payment or benefit due upon a termination of the Participant’s employment that represents a “deferral of compensation” within the meaning of Section 409A shall be paid or provided to the Participant only upon a “separation from service” as defined in Treasury Regulation Section 1.409A-1(h). Each severance payment made under the Plan shall be deemed to be separate payments, and amounts payable under Section 3 or Section 4 of the Plan shall be deemed not to be a “deferral of compensation” subject to Section 409A to the extent provided in the exceptions in Treasury Regulation Sections 1.409A-1(b)(4) (“short-term deferrals”) and (b)(9) (“separation pay plans,” including the exception under subparagraph (iii)) and other applicable provisions of Treasury Regulation Sections 1.409A-1 through A-6.

 

  (b) Any payment due upon a Change in Control will be paid only if such Change in Control constitutes a “change in ownership” or “change in effective control” within the meaning of Section 409A, and in the event that such Change in Control does not constitute a “change in the ownership” or “change in the effective control” within the meaning of Section 409A, such award will vest upon the Change in Control and any payment will be delayed until the first compliant date under Section 409A.

 

  (c)

Notwithstanding anything to the contrary in the Plan or elsewhere, any payment or benefit under the Plan or otherwise that is exempt from Section 409A pursuant to final Treasury Regulation Sections 1.409A-1(b)(9)(v)(A) or (C) shall be paid or provided to the Participant only to the extent that the expenses are not incurred, or the benefits are not provided, beyond the last day of the Participant’s second taxable year following the Participant’s taxable year in which the “separation from service” occurs; and provided , further , that such expenses are reimbursed no later than the last day of the Participant’s third taxable year following the taxable year in which the Participant’s “separation from service” occurs. Except as otherwise expressly provided herein, to the extent any expense reimbursement or the provision of any in-kind benefit under the Plan is determined to be subject to Section 409A, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one (1) calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which the Participant incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefit. Notwithstanding anything to the contrary in the Plan or elsewhere, in the event that a Participant waives the provisions of another severance or change in control agreement or arrangement to participate in the Plan and such participation in the Plan is later determined to be a “substitution”

 

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  (within the meaning of Section 409A) for the benefits under such agreement or arrangement, then any payment or benefit under the Plan that such Participant becomes entitled to receive during the remainder of the waived term of such agreement or arrangement shall be payable in accordance with the time and form of payment provisions of such agreement or arrangement.

24. Effective Date . The Plan shall be effective as of May 30, 2017 (the “ Effective Date ”).

25. Definitions . As used in the Plan, the following terms shall have the respective meanings set forth below. Capitalized terms not defined herein shall have the same meaning as under the Donnelley Financial Solutions, Inc. 2016 Performance Incentive Plan, as may be amended from time to time, or any successor plan thereto (the “ 2016 PIP ”).

 

  (a) “ Accrued Obligations ” means, as of the Date of Termination, the sum of (i) Participant’s Base Salary through the Date of Termination to the extent not theretofore paid, (ii) the amount of any other cash compensation earned by Participant as of the Date of Termination to the extent not theretofore paid, (iii) any vacation pay, expense reimbursements and other cash payments to which Participant is entitled as of the Date of Termination to the extent not theretofore paid, and (iv) all other benefits which have accrued and are vested as of Date of Termination. For the purpose of this paragraph (a) under Section 25 , except as provided in the applicable plan, program or policy, amounts shall be deemed to accrue ratably over the period during which they are earned, but no discretionary compensation shall be deemed earned or accrued until it is specifically approved in accordance with the applicable plan, program or policy.

 

  (b) “ Base Salary ” means the Participant’s annual rate of base salary as in effect on the Participant’s termination date of a Qualifying Termination (or, if greater, the highest annual rate of base salary during the twelve-month period immediately prior to the Participant’s termination date).

 

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

 

  (d) “ Cause ” means any of the following with respect to a Participant:

 

  (i) the Participant’s willful and continued failure to perform substantially his or her duties with the Company (other than any such failure resulting from the Participant’s incapacity due to physical or mental illness or any such failure subsequent to the Participant’s being delivered a notice of termination without Cause) after a written demand for substantial performance is delivered to the Participant by the Chief Operating Officer, the CEO (except if the Participant is the CEO), or the Board that identifies the manner in which the Participant have not performed his or her duties;

 

-13-

  (ii) the Participant’s willful engaging in conduct which is demonstrably and materially injurious (monetarily or otherwise) to the business, reputation, character or community standing of the Company;

 

  (iii) conviction of or the pleading of nolo contendere with regard to a felony or any crime involving fraud, dishonesty or moral turpitude; or

 

  (iv) a refusal or failure to attempt in good faith to follow the written direction of the Chief Operating Officer, the CEO (except if the Participant is the CEO), or the Board (provided that such written direction is consistent with the Participant’s duty and station) promptly upon receipt of such written direction.

For the purposes of this definition, no act or failure to act by the Participant shall be considered “willful” unless done or omitted to be done by the Participant in bad faith and without reasonable belief that the Participant’s action or omission was in the best interests of the Company. Any act, or failure to act, based upon authority given pursuant to a resolution duly adopted by the Board or based upon the advice of the Company’s principal outside counsel shall be conclusively presumed to be done, or omitted to be done, by the Participant in good faith and in the best interests of the Company. Notwithstanding the foregoing, the Company shall provide the Participant with a reasonable amount of time, after a notice and demand for substantial performance is delivered to the Participant, to cure any such failure to perform, and if such failure is so cured within a reasonable time thereafter, such failure shall not be deemed to have occurred.

Notwithstanding the foregoing, if a Participant is party to an effective employment agreement with the Company that provides a definition for “Cause”, “Cause” shall have the same meaning as under such agreement.

 

  (e) “ Change in Control ” has the meaning set forth in the 2016 PIP.

 

  (f) “ CIC Termination Period ” means the period of time beginning three (3) months prior to a Change in Control and ending twenty-four (24) months following such Change in Control; provided that the period of time three (3) months prior to such Change in Control shall only be considered part of the CIC Termination Period if the Participant’s employment is terminated by the Company without Cause or by the Participant for Good Reason at the request of a third party purchaser in connection with a Change in Control, as determined in good faith by the Compensation Committee.

 

  (g) “ Code ” means the Internal Revenue Code of 1986, as amended.

 

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

 

-14-

  (i) “ Competitive Enterprise ” means any business competing with the businesses of the Company as of a Participant’s Date of Termination, provided that the Participant may hold up to a 1% passive equity interest in a public company that may be a Competitive Enterprise.

 

  (j) “ Company ” means Donnelley Financial Solutions, Inc., together with its subsidiaries.

 

  (k) “ Date of Termination ” means the effective date on which the Participant’s employment by the Company terminates as specified in a prior written notice by the Company or the Participant, as the case may be, to the other, delivered pursuant to Section 13 .

 

  (l) “ Disability ” means a disability that would entitle a Participant to payment of regular disability payments under any Company disability plan or as otherwise determined by the Compensation Committee.

 

  (m) “ Good Reason ” means the occurrence of one or more of the following circumstances, without the Participant’s express written consent:

 

  (i) a change in the Participant’s duties or responsibilities (including reporting responsibilities) that taken as a whole represents a material and adverse diminution of the Participant’s duties, responsibilities or status with the Company (other than a temporary change that results from or relates to the Participant’s incapacitation due to physical or mental illness);

 

  (ii) a reduction by the Company in the Participant’s rate of annual base salary or annual target bonus opportunity (including any material and adverse change in the formula for such annual bonus target) as the same may be increased from time to time; or

 

  (iii) any requirement of the Company that the Participant’s office be more than seventy-five (75) miles from the Participant’s primary work location.

Notwithstanding the foregoing, a termination for Good Reason shall not have occurred unless (x) the Participant gives written notice to the Company describing in reasonable detail the Good Reason event that has occurred within ninety (90) days of the Participant’s obtaining knowledge of the event, (y) the Company has failed within thirty (30) days of receipt of such written notice to remedy the circumstances constituting Good Reason and (z) the Participant’s termination of employment occurs no later than 150 days following the initial existence of the circumstances constituting Good Reason.

Notwithstanding the foregoing, if a Participant is party to an effective employment agreement with the Company that provides a definition for “Good Reason”, “Good Reason” shall have the same meaning as under such agreement.

 

-15-

  (n) “ Performance-Based Equity Award ” means any equity-based award that is subject to pre-established performance criteria and is intended to constitute performance-based compensation.

 

  (o) “ Qualifying Termination ” means a termination of the Participant’s employment with the Company (i) other than during a CIC Termination Period, by the Company other than for Cause or, for the CEO only, by the CEO for Good Reason, or (ii) during a CIC Termination Period, by the Company other than for Cause or by the Participant for Good Reason. Termination of the Participant’s employment on account of death, Disability, by the Company for Cause or by the Participant other than for Good Reason shall not be treated as a Qualifying Termination. Notwithstanding the preceding sentence, the death of the Participant after notice of termination for Good Reason or without Cause has been validly provided shall be deemed to be a Qualifying Termination.

 

  (p) “ Release ” means a final and non-revocable general release in a form determined by the Company.

 

  (q) “ Section 409A ” means Section 409A of the Internal Revenue Code of 1986, as amended, and the final Treasury regulations issued thereunder.

 

-16-

Exhibit 10.2

WAIVER OF SEVERANCE BENEFITS

Waiver of Severance Benefits (“ Waiver ”), dated as of the date set forth below, by and between Thomas F. Juhase (“ Executive ”), and Donnelley Financial Solutions, Inc., a Delaware corporation (the “ Company ”).

Recitals

WHEREAS , the Company has entered into an employment agreement with Executive, dated July 27, 2007 and amended as of November 25, 2008 (the “ Agreement ”). A copy of the Agreement is attached as to this Waiver as Annex A ; and

WHEREAS , Compensation Committee of the Company’s Board of Directors (the “ Committee ”) has determined it is advisable and in the best interests of the Company to implement an Executive Severance Plan, effective May 30, 2017 (the “ Severance Plan ”) for certain senior officers and key management employees; and

WHEREAS , the Committee has selected Executive for participation in the Severance Plan; and

WHEREAS , to the extent provided below, in order to participate in and receive benefits under the Severance Plan, Executive desires to waive any severance payments provided to him under the Agreement in connection with the termination of his employment.

NOW, THEREFORE , in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

Waiver

 

  1. Defined Terms . Capitalized terms not defined herein shall have the meanings specified shall have the meanings ascribed to such terms in the Agreement.

 

  2. Waiver of Severance Entitlements .

 

  a. The parties acknowledge that Section 4(a) of the Agreement states that, in the event that Executive’s Separation from Service from the Company is initiated without Cause, Executive is entitled to an amount equal to one and one-half (1.5) times his Annualized Total Compensation, subject to Executive’s prompt execution of the Company’s customary release, payable in equal installments on the 15 th and last days of each of the twelve (12) months following the 30 th day after the date of such Separation from Service (or, if the 15 th and last day of a month is not a business day, on the closest business day to such date) (the “ Original Severance Entitlement ”).

 

  b. In consideration of Executive’s participation in the Severance Plan and the benefits he is entitled to therein, Executive hereby waives, releases, forfeits and relinquishes any and all right, claim, title and interest in and to the Original Severance Entitlement, subject to Section 3 of this Waiver below.

  3. Limits on Severance Plan Amendment . Notwithstanding Section 18, “Amendment and Termination”, of the Severance Plan (under which the Committee may amend or terminate the Severance Plan at any time without the consent of the Severance Plan participants) or any other provision contained therein or herein to the contrary, the Committee has acknowledged and determined that the Severance Plan may not be amended in a manner that will materially impair the rights of Executive by reducing Executive’s severance benefits to less than the Original Severance Entitlement without Executive’s prior written consent.

 

  4. March 2017 Performance Restricted Stock Grant . Executive was previously awarded a grant of performance restricted stock on March 2, 2017 (the “ Performance Award ”). The first sentence of Section 2(c), “Vesting”, in the associated award agreement for such Performance Award (the “ Award Agreement ”) is replaced in its entirety with the following:

“Notwithstanding anything provided in the 2016 PIP or any other agreement with Grantee to the contrary, upon the date of a Change in Control, each Performance Condition shall be deemed met at the target performance level with respect to each open Performance Period.”

All other terms and conditions of the Award Agreement shall remain in full force and effect.

 

  5. Length of Restricted Period . Executive agrees and acknowledges that the length of his Restricted Period (as defined in the Severance Plan) shall be the eighteen (18) month period immediately following his Date of Termination (as defined in the Severance Plan).

 

  6. Non-Change in Control Severance Payment . Section 3(a) of the Severance Plan, as applicable to Executive only, is replaced in its entirety with the following:

“(a) a cash payment equal to one and one-half (1.5) (or such higher multiple as determined by the Compensation Committee) times the sum of (i) the Participant’s Base Salary and (ii) the Participant’s target annual cash bonus under the Company’s Annual Incentive Plan (the “AIP”), based on the target in effect as of the date of such Qualifying Termination;”

Any such payment shall be paid in equal installments on the 15 th and last days of each of the eighteen (18) months following the 30 th day after Executive’s Date of Termination (or, if the 15 th and last day of a month is not a business day, on the closest business day to such date).

 

  7. Section 409A Compliance .

 

  a.

Section 4(b)(i), “Change in Control Severance Benefits”, of the Severance Plan provides that if Executive experiences a Qualifying Termination (as defined in the Severance Plan) during a CIC Termination Period (as defined in the Severance Plan), Executive is entitled to, in part, a lump sum cash payment equal to one and one-half (1.5) times the sum of his (i) Base Salary (as defined in the Severance Plan) and (ii) target annual cash bonus under the Company’s Annual Incentive Plan (the “ CIC Severance Payment ”). Notwithstanding Section 4(b)(i) of the Severance Plan or anything contained

 

2

  therein or herein to the contrary, Executive agrees and acknowledges that any such CIC Severance Payment owed to him shall instead be paid in equal installments on the 15 th and last days of each of the eighteen (18) months following the 30 th day after Executive’s Date of Termination (or, if the 15 th and last day of a month is not a business day, on the closest business day to such date).

Except as otherwise provided in this Waiver, all other terms and conditions of the Severance Plan as applicable to Executive, including, but not limited to, Executive’s fulfillment of any release requirement described in the Severance Plan, shall be as set forth in the Severance Plan.

 

  b. This Waiver is intended to comply with, or be exempt from, the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (together with the applicable regulations thereunder, “ Section 409A ”). To the extent that any provision in this Waiver is ambiguous as to its compliance with Section 409A or to the extent any provision in this Waiver must be modified to comply with Section 409A (including, without limitation, Treasury Regulation 1.409A-3(c)), such provision will be read, or will be modified (with the mutual consent of the parties, which consent will not be unreasonably withheld), as the case may be, in such a manner so that all payments due under this Waiver will comply with Section 409A. For purposes of Section 409A, each payment made under this Waiver will be treated as a separate payment. In no event may Executive, directly or indirectly, designate the calendar year of payment.

 

  8. Miscellaneous .

 

  a. This Waiver shall inure to the benefit of the Company and its successors and assigns. In the event any provision hereof is determined to be unenforceable or invalid such provision or such part thereof as may be unenforceable or invalid shall be deemed severed from this Waiver and the remaining provisions carried out with the same force and effect as if the severed provisions or part thereof had not been made a part hereof.

 

  b. No provisions of this Waiver may be amended, modified, or waived unless such amendment or modification is agreed to in writing signed by Executive and by a duly authorized officer of the Company, and such waiver is set forth in writing and signed by the party to be charged. The invalidity or unenforceability of any provision or provisions of this Waiver will not affect the validity or enforceability of any other provision of this Waiver, which will remain in full force and effect.

 

  c. Any controversy arising out of or relating to this Waiver or the breach of this Waiver that cannot be resolved by Executive and the Company shall be governed by the terms of Section 13, “Full Settlement; Resolution of Disputes and Costs”, of the Severance Plan.

 

  d.

All disputes arising under or related to this Waiver shall at all times be governed by and construed in accordance with the internal laws (as opposed to the conflict of law provisions) and decisions of the State of Delaware as

 

3

  applied to agreements executed in and to be fully performed within that state.

 

  e. Any notices or other communications required or arising under this Waiver shall be governed by the terms of Section 12, “Notice”, of the Severance Plan.

 

  f. This Waiver may be executed in any number of counterparts, each of which will be deemed an original, and all of which together will constitute one and the same instrument. This Waiver will become binding when one or more counterparts hereof, individually or taken together, will bear the signatures of all of the parties reflected hereon as the signatories. Photographic, faxed or PDF copies of such signed counterparts may be used in lieu of the originals for any purpose.

[ signature page follows ]

 

4

IN WITNESS WHEREOF , the parties hereto have executed this Waiver on the date first above written.

 

DONNELLEY FINANCIAL SOLUTIONS, INC.
By:   /s/ Diane Bielawski
  Diane Bielawski
  Chief Human Resources Officer

 

EXECUTIVE
By:   /s/ Thomas F. Juhase
  Thomas F. Juhase

Dated as of this 1st day of June, 2017

[ Signature page to Waiver ]

ANNEX A

FORM OF ASSIGNMENT OF EMPLOYMENT AGREEMENT

Assignment of Employment Agreement (“Assignment Agreement”), dated as of September 29, 2016, by and between R.R. Donnelley & Sons Company (“RRD”), a Delaware corporation, and Donnelley Financial Solutions, Inc., a Delaware corporation (“Donnelley Financial”).

Recitals

WHEREAS, RRD has entered into an employment agreement with Thomas F. Juhase of RRD (the “Executive”), dated July 27, 2007 (the “Employment Agreement”). A copy of the Employment Agreement is attached as to this Assignment Agreement as Annex A ; and

WHEREAS, RRD desires to assign the Employment Agreement to Donnelley Financial, and Donnelley Financial desires to acquire all of RRD’s right, title and interest in the Employment Agreement; and

WHEREAS, the Executive has acknowledged and acquiesced to the assignment of his Employment Agreement and the transfer of his employment to Donnelley Financial.

NOW, THEREFORE, in consideration of the premises and the mutual covenants set forth below, the parties hereby agree as follows:

Agreement

 

  1. Assignment of Employment Agreement . Effective as of the Donnelley Financial Distribution Date, as defined in the Separation and Distribution Agreement by and among RRD, LSC Communications, Inc. and Donnelley Financial (the “Distribution Date”), RRD hereby irrevocably, absolutely and unconditionally assigns, transfers, conveys and delivers to Donnelley Financial and its successors and assigns all of RRD’s right, title and interest in, to and under the Employment Agreement.

 

  2. Acceptance of Assignment . From and after the Distribution Date, Donnelley Financial hereby irrevocably, absolutely and unconditionally assumes, undertakes and agrees to pay, perform and discharge in full any and all claims and obligations arising under and/or in connection with the Employment Agreement.

 

  3. References . From and after the Distribution Date, all references in the Employment Agreement to “Donnelley” or the “Company” shall be deemed to be references to Donnelley Financial, including, but not limited to, with respect to any triggers such as those relating to a Change in Control or related events.

 

  4.

Executive Acknowledgement . The Executive acknowledges and agrees that the transfer of his employment as described in this letter will not constitute a termination of the Executive’s employment (whether or not without “cause” by RRD), nor grounds for leaving with “good reason”, as such terms may be defined under the Employment

 

6

  Agreement as in effect through the Distribution Date. This acknowledgement and agreement is without limitation on the Executive’s rights in the event that he is subsequently terminated without “cause” or would be allowed to leave for “good reason” by Donnelley Financial.

 

  5. Restrictive Covenants . The Executive also acknowledges and agrees that he will be fully obligated to Donnelley Financial under the non-compete, employee non-solicit and customer non-solicit covenants (together, the “Restrictive Covenants”) of the Employment Agreement. In addition, beginning on the Distribution Date and ending on the day eighteen (18) months following the Distribution Date (the “Wear Away Period”), if the Executive terminates employment for any reason, he shall be fully obligated to each of RRD and LSC under the Restrictive Covenants for the period, if any, beginning on the date of the Executive’s termination and ending at the conclusion of the Wear Away Period. The Executive acknowledges and agrees that the confidentiality and non-disparagement covenants shall survive at all times, both during and after employment, with respect to Donnelley Financial, and shall survive and apply to each of RRD and LSC at all times after employment. The Executive, Donnelley Financial and RRD acknowledge that LSC is a third party beneficiary for purposes of enforcement of this Section 5.

 

  6. Miscellaneous . This Assignment Agreement shall inure to the benefit of the Donnelley Financial, its successors and assigns. In the event any provision hereof is determined to be unenforceable or invalid such provision or such part thereof as may be unenforceable or invalid shall be deemed severed from this Assignment Agreement and the remaining provisions carried out with the same force and effect as if the severed provisions or part thereof had not been made a part hereof.

[ signature page follows ]

 

7

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

 

R.R. DONNELLEY & SONS COMPANY       DONNELLEY FINANCIAL SOLUTIONS, INC.
By:   /s/ Daniel L. Knotts       /s/ Daniel N. Leib
  Daniel L. Knotts       Daniel N. Leib
  Chief Operating Officer       Chief Executive Officer

Acceptance of Assignment by Executive

I, Thomas F. Juhase, do hereby consent to the assignment of my Employment Agreement by and between R.R. Donnelley & Sons Company and Donnelley Financial Solutions, Inc.

Dated: September 29, 2016

 

By:   /s/ Thomas F. Juhase
  Thomas F. Juhase

ANNEX A

[ Copy of Employment Agreement ]

 

9

RR Donnelley    Global Headquarters
   111 South Wacker Drive
   Chicago, Illinois 60606-4301
   Telephone (312) 326 8000

July 27, 2007

Mr. Thomas Juhase

[address]

Dear Tom:

In recognition of your importance to R.R. Donnelley & Sons Company, its officers, directors, subsidiaries, affiliates, and successors, including but not limited to Moore Wallace North America, Inc. (“Donnelley” or “Company”) and to further the Company’s interests, we are pleased to offer you a new employment letter (“Agreement”). The purpose of this Agreement is to amend and restate in its entirety the employment letter, dated as of June 14, 2005, between you and the Company. All capitalized terms used but not defined in the text of this Agreement shall have the meanings assigned to such terms in Annex A.

The terms of this Agreement are as follows:

 

  1. Title and Responsibilities . You are currently President, Global Capital Markets, and, effective as of the date hereof, you shall serve as President, Financial, in accordance with the terms and provisions of this Agreement as well as any employment and other policies applicable to employees of the Company and its subsidiaries from time to time during the term of your employment. You will have the customary duties, responsibilities and authorities of such position. You will also receive such office, staffing and other assistance as is commensurate with that received by other executives at your level in the Company.

 

  2. Employment at Will . You and we hereby acknowledge that your employment with the Company constitutes “at-will” employment and that either party may terminate your employment at any time upon written notice of termination within a reasonable period of time before the effective date of the termination.

 

  3. Compensation . You will receive the following compensation and benefits, from which the Company may withhold any amounts required by applicable law:

 

  a. Base Salary . The Company will pay you a base salary (“Base Salary”) at the rate of $375,000 per year. This Base Salary will be paid in accordance with the normal payroll practices of the Company.

 

  b.

Annual Bonus . In respect of each calendar year of the Company, you will be eligible to receive an annual bonus (the “Annual Bonus”) in accordance with the Company’s annual incentive compensation plan (“Plan”) with a

  target bonus opportunity of 100% of Base Salary. The performance objectives for your Annual Bonus with respect to each calendar year will be determined as provided for in the Plan. You will be eligible for all benefits available generally to executives at your level.

 

  c. Vacation . You will be eligible for 4 weeks vacation annually.

 

  d. Benefits . You will continue to be eligible to participate in the employee benefit plan and programs generally applicable to RR Donnelley employees.

 

  4. Severance . If the Company terminates your employment without Cause, the following will apply:

 

  a. Severance Pay . The Company will pay you an amount equal to one and one-half times your Annualized Total Compensation (“Severance Pay”), subject to the execution by you of the Company’s customary release, which amount shall be payable in equal installments on the 15 th and last days of each of the 18 months following your Separation Date (if the 15 th or last day of a month is not a business day, on the closest business day to such).

 

  b. Benefits . Your medical, dental and vision insurance coverage in effect immediately before your Separation Date will continue to be available to you under the group health plan continuation coverage laws (“COBRA”) for a period of 18 months following your Termination Date (the “COBRA Period”). If you elect COBRA coverage, it will be available to you for 18 months at the same cost your insurance coverage is available to active employees. Your short-term and long-term disability, group life insurance and accidental death and dismemberment insurance end on your Termination Date.

 

  c. Resignations . You shall resign from such offices and directorships, if any, of the Company that you may hold from time to time.

 

  d. Indemnification . Your rights of indemnification under the Company’s organizational documents, any plan or agreement at law or otherwise and your rights thereunder to director’s and officer’s liability insurance coverage for, in both cases, actions as an officer of the Company shall survive any termination of your employment.

 

  e.

Section 409A . If you are considered a “specified employee” by the Committee on your Separation Date, then any amounts payable pursuant to this Agreement or otherwise that (i) become payable as a result of your Separation from Service and (ii) are subject to section 409A of the Code as a result of your Separation from Service (“Section 409A Severance”), shall not be paid until the earlier of (x) six months and two days after your Separation Date or (y) your death, unless such an amount may be paid earlier pursuant

  to final regulations or other ruling or pronouncement of the U.S. Department of Treasury or Internal Revenue Service. Notwithstanding the immediately preceding sentence, your Section 409A Severance not in excess of $400,000 shall not be subject to the six-month delay in payment.

 

  5. Restrictive Covenants. You and Donnelley recognize that due to the nature of your employment and relationship with Donnelley, you will have access to and develop confidential business information, proprietary information, and trade secrets relating to the business and operations of Donnelley and its affiliates. You acknowledge that such information is valuable to the business of Donnelley and its affiliates, and that disclosure to, or use for the benefit of, any person or entity other than Donnelley or its affiliates, would cause substantial damage to Donnelley. You further acknowledge that your duties for Donnelley include the opportunity to develop and maintain relationships with Donnelley customers, employees, representatives and agents on behalf of Donnelley; and that access to and development of those close relationships with Donnelley customers render your services special, unique and extraordinary. In recognition that the good will and relationships described herein are assets and extremely valuable to Donnelley, and that loss of or damage to those relationships would destroy or diminish the value of Donnelley, you agree as follows:

 

  a. Noncompetition . In consideration of the covenants and agreements of the Company herein contained, the payments to be made by the Company pursuant to this Agreement, the positions of trust and confidence you occupy and have occupied with the Company and the information of a highly sensitive and confidential nature obtained as a result of such positions, you agree that, from the date of your separation for any reason, including termination by Donnelley with or without Cause, and for 18 months thereafter, you will not, directly or indirectly, either as an employee, employer, consultant, agent, principal, partner, stockholder, corporate officer, director or in any other individual or representative capacity, worldwide, engage in any business which is competitive with the business of Donnelley. You may, however, own stock or the rights to own stock in a company covered by this paragraph that is publicly owned and regularly traded on any national exchange or in the over-the-counter market, so long as your holdings of stock or rights to own stock do not exceed the lesser of (i) 1% of the capital stock entitled to vote in the election of directors or (ii) the combined value of the stock or rights to acquire stock does not exceed your gross annual earnings from the Company.

 

  b.

Importance of Customer Relationships . You recognize that Donnelley’s relationship with the customer or customers you serve, and with other employees, is special and unique, based upon the development and maintenance of good will resulting from the customers’ and other employees’ contacts with Donnelley and its employees, including you. As a result of your position and customer contacts, you recognize that you will

  gain valuable information about (i) Donnelley’s relationship with its customers, their buying habits, special needs, purchasing policies, (ii) the skills, capabilities and other employment-related information about Donnelley employees, and (iii) other matters which you would not otherwise know and which is not otherwise readily available. Such knowledge is essential to the business of Donnelley and you recognize that if your employment terminates, Donnelley will be required to rebuild that customer relationship to retain the customer’s business. You recognize that during a period following termination of your employment, Donnelley is entitled to protection from your using the information and customer and employee relationships with which you have been entrusted by Donnelley during your employment.

 

  c. Nonsolicitation of Customers . You shall not, while employed by Donnelley and for a period of 18 months from the date of termination of your employment with Donnelley for any reason, including termination by Donnelley with or without Cause, directly or indirectly, either on your own behalf or on behalf of any other person, firm or entity, solicit or provide services which are the same as or similar to the services Donnelley provided or offered while you were employed by Donnelley to any customer or prospective customer of Donnelley (i) with whom you had direct contact in the course of your employment with Donnelley or about whom you learned confidential information as a result of your employment with Donnelley or (ii) with whom any person over whom you had supervisory authority at any time had direct contact during the course of his or her employment with Donnelley or about whom such person learned confidential information as a result of his or her employment with Donnelley.

 

  d. Nonsolicitation of Employees . You shall not while employed by Donnelley and for a period of two years from the date of termination of my employment with Donnelley for any reason, including termination by Donnelley with or without Cause, either directly or indirectly solicit, induce or encourage any Donnelley employee(s) to terminate their employment with Donnelley or to accept employment with any competitor, supplier or customer of Donnelley, nor shall you cooperate with any others in doing or attempting to do so. As used herein, the term “solicit, induce or encourage” includes, but is not limited to, (a) initiating communications with a Donnelley employee relating to possible employment, (b) offering bonuses or additional compensation to encourage Donnelley employees to terminate their employment with Donnelley and accept employment with a competitor, supplier or customer of Donnelley, or (c) referring Donnelley employees to personnel or agents employed by competitors, suppliers or customers of Donnelley.

 

  e.

Confidential Information . You are prohibited from, at any time during your employment with the Company or thereafter, disclosing or using any Confidential Information for your benefit or any other person or entity,

  unless directed or authorized in writing by the Company to do so, until such time as the information becomes generally known to the public without your fault. “Confidential Information” means information (i) disclosed to or known by you as a consequence of your employment with the Company, (ii) not generally known to others outside the Company, and (iii) that relates to the Company’s marketing, sales, finances, operations, processes, methods, techniques, devices, software programs, projections, strategies and plans, personnel information, industry contacts made during your employment, and customer information, including customer needs, contacts, particular projects, and pricing. These restrictions are in addition to any confidentiality restrictions in any other agreement you may have signed with the Company.

 

  f. Obligation upon Subsequent Employment . If you accept employment with any future employer during the time period that equals the greater of one year following the date of termination and the Severance Period (regardless of whether you actually receive severance benefits during that period), you will deliver a copy of this Agreement to such employer and advise such employer concerning the existence of your obligations under this Agreement.

 

  g. Company’s Right to Injunctive Relief. By execution of this Agreement, you acknowledge and agree that the Company would be damaged irreparably if any provision under this Section 5 were breached by you and money damages would be an inadequate remedy for any such nonperformance or breach. Accordingly, the Company and its successors or permitted assigns in order to protect its interests, shall pursue, in addition to other rights and remedies existing in its favor, an injunction or injunctions to prevent any breach or threatened breach of any of such provisions and to enforce such provisions specifically (without posting a bond or other security). With respect to such enforcement, the prevailing party in such litigation shall be entitled to recover from the other party any and all attorneys’ fees, costs and expenses incurred by or on behalf of that party in enforcing or attempting to enforce any provision under this Section 5 or any other rights under this Agreement.

 

  6. General

 

  a. Acknowledgement of Reasonableness and Severability . You acknowledge and agree that the provisions of this Agreement, including Section 5, are reasonable and valid in geographic, temporal and subject matter scope and in all other respects, and do not impose limitations greater than are necessary to protect the goodwill, Confidential Information and other business interests of the Company. If any court subsequently determines that any part of this Agreement, including Section 5, is invalid or unenforceable, the remainder of the Agreement shall not be affected and shall be given full effect without regard to the invalid portions. Further, any court invalidating any provision of this Agreement shall have the power to revise the invalidated provisions such that the provision is enforceable to the maximum extent permitted by applicable law.

  b. Non-duplication of Severance Pay . You shall not be eligible for the severance benefits set forth in Section 4 above if you are or become covered under a different individually negotiated arrangement providing for severance benefits. If, upon ultimate termination of employment, the separation pay for which you would be eligible under the R.R. Donnelley & Sons Company Separation Pay Plan applicable to employees generally, if any, would be greater than the separation pay payable under to this Agreement, then your Severance Pay shall be increased to correspond to the pay you would have been eligible for under such Plan. To avoid duplicate payments, if you are eligible to receive severance under this Agreement, you hereby waive any payments under the R.R. Donnelley & Sons Company Separation Pay Plan.

 

  c. Employee Breach . If you breach this Agreement or any other agreement you have signed with the Company, the Company may, in its complete discretion, stop making any of the payments provided for in this Agreement.

 

  d. Arbitration . Any controversy arising out of or relating to this Agreement or the breach of this Agreement that cannot be resolved by you and the Company, including any dispute as to the calculation of any payments hereunder, and the terms of this Agreement, shall be determined by a single arbitrator in New York, New York, in accordance with the rules of JAMS; provided , however , that either party may seek preliminary injunctive relief to maintain or restore the status quo pending a decision of the arbitrator, and the parties consent to the exclusive jurisdiction of the courts of the State of Delaware or the Federal courts of the United States of America located in the District of Delaware in connection therewith. The decision of the arbitrator shall be final and binding and may be entered in any court of competent jurisdiction. The arbitrator may award the party he determines has prevailed in the arbitration any legal fees and other fees and expenses that may be incurred in respect of enforcing its respective rights.

 

  e. Governing Law . All disputes arising under or related to this Agreement shall at all times be governed by and construed in accordance with the internal laws (as opposed to the conflict of law provisions) and decisions of the State of Delaware as applied to agreements executed in and to be fully performed within that State.

 

  f. Notice and Execution . This Agreement may be executed in counterparts. Any notice or request required or permitted to be given hereunder shall be sufficient if in writing and deemed to have been given if delivered personally or sent by certified mail, return receipt requested, to you at the address above, and to the Company at its Corporate Headquarters (Attn: Corporate Secretary).

  g. Entire Agreement . This Agreement shall constitute the entire agreement between the parties with respect to the subject matter contained herein, and fully supersedes any prior agreements or understandings between us. This Agreement may not be changed or amended orally, but only in writing signed by both parties.

 

  h. Waiver . The failure of either party hereto to enforce at any time any provision of this Agreement shall not be construed as a waiver of such provision nor in any way to affect the validity of this Agreement or any part hereof or the right of such party thereafter to enforce each and every such provision. No waiver of any breach of this Agreement shall be held to constitute a waiver of any other or subsequent breach.

 

  i. Assignments and Successors. The rights and obligations of the Company under this Agreement shall inure to the benefit of and be binding upon its successors and assigns. Your rights and obligations under this Agreement shall inure to the benefit of and be binding upon your designated beneficiary or legal representative, provided, however, that you may not assign any of your rights and obligations hereunder.

If the foregoing terms and conditions are acceptable and agreed to by you, please sign on the line provided below to signify such acceptance and agreement and return the executed copy to me, at 3075 Highland Parkway, Downers Grove, Illinois, 60515-1261.

 

Very truly yours,
R. R. Donnelley & Sons Company
By:  

/s/ Thomas Carroll

  Thomas Carroll
  Group Executive Vice President, Human Resources
ACCEPTED AND AGREED to this 30 day of July 2007

/s/ Thomas Juhase

Thomas Juhase

Annex A

Definitions

 

1. “Annualized Total Compensation” means Base Salary plus Annual Bonus (at the target level) for one year at the rate in effect immediately before the Termination Date, but, for these calculations only, your Base Salary and target bonus percentage shall not be less than the amount set forth in Section 3, above

 

2. “Cause” means (i) your willful and continued failure to perform substantially your duties with the Company (other than any such failure resulting from your incapacity due to physical or mental illness or any such failure subsequent to your being delivered a notice of termination without Cause) after a written demand for substantial performance is delivered to you by the Group President, the Chief Executive Officer, or the Board that identifies the manner in which you have not performed your duties, (ii) your willful engaging in conduct which is demonstrably and materially injurious (monetarily or otherwise) to the business, reputation, character or community standing of the Company, (iii) conviction of or the pleading of nolo contendere with regard to a felony or any crime involving fraud, dishonesty or moral turpitude, or (iv) a refusal or failure to attempt in good faith to follow the written direction of the Group President, the Chief Executive Officer, or the Board (provided that such written direction is consistent with your duty and station) promptly upon receipt of such written direction. For the purposes of this definition, no act or failure to act by you shall be considered “willful” unless done or omitted to be done by you in bad faith and without reasonable belief that your action or omission was in the best interests of the Company. Any act, or failure to act, based upon authority given pursuant to a resolution duly adopted by the Board or based upon the advice of the Company’s principal outside counsel shall be conclusively presumed to be done, or omitted to be done, by you in good faith and in the best interests of the Company. Notwithstanding the foregoing, the Company shall provide you with a reasonable amount of time, after a notice and demand for substantial performance is delivered to you, to cure any such failure to perform, and if such failure is so cured within a reasonable time thereafter, such failure shall not be deemed to have occurred.

 

3. “Committee” means a committee designated by the Chief Human Resources Officer of the Company.

 

4. “Separation Date” means the date of your Separation from Service.

 

5. “Separation from Service” means any separation from employment with the Company within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended, as determined by the Committee.

RR Donnelley     

Corporate Headquarters

111 South Wacker Drive

Chicago, Illinois 60606-4301

www.rrdonnelley.com

    
    
    

November 25, 2008

Thomas Juhase

[address]

Dear Tom:

This letter constitutes an amendment to the agreement (the “Agreement”) dated July 27, 2007 between you and R. R. Donnelley & Sons Company (the “Company”) in order to conform the Agreement with the requirements of section 409A of the Internal Revenue Code of 1986, as amended. All provisions of the Agreement that are not specifically amended by this amendment shall remain in full force and effect.

 

  1. For purposes of the Agreement, all references to “termination of employment” (or variations thereof) shall mean “separation from service” within the meaning of Treasury Regulation § 1.409A-1(h) with the Company and its at least 80% owned subsidiaries and affiliates.

 

  2. The following sentence shall be added at the end of Section 3.b.: “Any Annual Bonus which you become entitled to receive shall be paid to you no later than the 15 th day of the third month following the end of the calendar year in which the bonus was earned, unless you timely elect to defer all or a portion of such bonus pursuant to the Company’s deferred compensation plan.”

 

  3. In Section 4.a., the following changes will be made: (i) the word “prompt” will be added prior to the words “execution by you of a customary release” (ii) the words, “the thirtieth (30 th ) day after the date of your Separation from Service” shall be added after “the 18 months following” and (iii), the words “your Separation Date” shall be deleted.

Therefore, the new Section 4.a. shall read as follows: “The Company will pay you an amount equal to one and one half times your Annualized Total Compensation (“Severance Pay”), subject to the prompt execution by you of the Company’s customary release, which amount shall be payable in equal installments on the 15 th and last days of each of the 18 months following the thirtieth (30 th ) day after the date of your Separation from Service (if the 15 th or last day of a month is not a business day, on the closest business day to such date).”

 

  4. Section 4.e. shall be deleted and replaced with the following:

Compliance with Section 409A of the Internal Revenue Code.

If you are a “specified employee” within the meaning set forth in the document entitled “409A: Policy of R.R. Donnelley & Sons Company and its Affiliates Regarding

Specified Employees” on your Termination Date, then any amounts payable pursuant to this Agreement or otherwise that (i) become payable as a result of your Separation from Service and (ii) are subject to Code Section 409A as a result of your Separation from Service shall not be paid until the earlier of (x) the first business day of the sixth month occurring after the month in which the Termination Date occurs and (y) the date of your death. Notwithstanding the immediately preceding sentence, amounts payable to you as a result of your Separation from Service that do not exceed two times the lesser of (i) your annualized compensation based upon your annual rate of Base Salary for the year prior to the year in which the date of your Separation from Service occurs and (ii) the maximum amount that may be taken into account under Code Section 401(a)(17) in the year in which the date of your Separation from Service occurs may be paid as otherwise scheduled. If any compensation or benefits provided by this letter may result in the application of Code Section 409A, then the Company shall, in consultation with you, modify this Agreement to the extent permissible under Code Section 409A in the least restrictive manner necessary in order to exclude such compensation and benefits from the definition of “deferred compensation” within the meaning of such Code Section 409A or in order to comply with the provisions of Code Section 409A. By signing this Agreement you acknowledge that if any amount paid or payable to you becomes subject to Code Section 409A, you are solely responsible for the payment of any taxes and interest due as a result.

 

  5. Sections 4 and 5 of Annex A shall be deleted.

 

Yours very truly,
R. R. Donnelley & Sons Company
By:   /s/ Thomas Carroll
Title:   Chief Human Resources Officer

 

AGREED AND ACCEPTED this 4 day of December, 2008:
/s/ Thomas Juhase

Exhibit 10.3

WAIVER OF SEVERANCE BENEFITS

Waiver of Severance Benefits (“ Waiver ”), dated as of the date set forth below, by and between David Gardella (“ Executive ”), and Donnelley Financial Solutions, Inc., a Delaware corporation (the “ Company ”).

Recitals

WHEREAS , the Company has entered into a severance agreement with Executive, dated November 6, 2012 (the “ Agreement ”). A copy of the Agreement is attached as to this Waiver as Annex A ; and

WHEREAS , Compensation Committee of the Company’s Board of Directors (the “ Committee ”) has determined it is advisable and in the best interests of the Company to implement an Executive Severance Plan, effective May 30, 2017 (the “ Severance Plan ”) for certain senior officers and key management employees; and

WHEREAS , the Committee has selected Executive for participation in the Severance Plan; and

WHEREAS , to the extent provided below, in order to participate in and receive benefits under the Severance Plan, Executive desires to waive any severance payments provided to him under the Agreement in connection with the termination of his employment.

NOW, THEREFORE , in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

Waiver

 

  1. Defined Terms . Capitalized terms not defined herein shall have the meanings specified shall have the meanings ascribed to such terms in the Agreement.

 

  2. Waiver of Severance Entitlements .

 

  a. The parties acknowledge that Section 2(a) of the Agreement states that, in the event that Executive’s Separation from Service from the Company is initiated without Cause, Executive is entitled to an amount equal to one (1) times his Annualized Total Compensation, subject to Executive’s prompt execution of the Company’s customary release, payable in equal installments on the 15 th and last days of each of the twelve (12) months following the 30 th day after the date of such Separation from Service (or, if the 15 th and last day of a month is not a business day, on the closest business day to such date) (the “ Original Severance Entitlement ”).

 

  b. In consideration of Executive’s participation in the Severance Plan and the benefits he is entitled to therein, Executive hereby waives, releases, forfeits and relinquishes any and all right, claim, title and interest in and to the Original Severance Entitlement, subject to Section 3 of this Waiver below.

  3. Limits on Severance Plan Amendment . Notwithstanding Section 18, “Amendment and Termination”, of the Severance Plan (under which the Committee may amend or terminate the Severance Plan at any time without the consent of the Severance Plan participants) or any other provision contained therein or herein to the contrary, the Committee has acknowledged and determined that the Severance Plan may not be amended in a manner that will materially impair the rights of Executive by reducing Executive’s severance benefits to less than the Original Severance Entitlement without Executive’s prior written consent.

 

  4. March 2017 Performance Restricted Stock Grant . Executive was previously awarded a grant of performance restricted stock on March 2, 2017 (the “ Performance Award ”). The first sentence of Section 2(c), “Vesting”, in the associated award agreement for such Performance Award (the “ Award Agreement ”) is replaced in its entirety with the following:

“Notwithstanding anything provided in the 2016 PIP or any other agreement with Grantee to the contrary, upon the date of a Change in Control, each Performance Condition shall be deemed met at the target performance level with respect to each open Performance Period.”

All other terms and conditions of the Award Agreement shall remain in full force and effect.

 

  5. Section 409A Compliance .

 

  a. Section 4(b)(i), “Change in Control Severance Benefits”, of the Severance Plan provides that if Executive experiences a Qualifying Termination (as defined in the Severance Plan) during a CIC Termination Period (as defined in the Severance Plan), Executive is entitled to, in part, a lump sum cash payment equal to one and one-half (1.5) times the sum of his (i) Base Salary (as defined in the Severance Plan) and (ii) target annual cash bonus under the Company’s Annual Incentive Plan (the “ CIC Severance Payment ”). Notwithstanding Section 4(b)(i) of the Severance Plan or anything contained therein or herein to the contrary, Executive agrees and acknowledges that any such CIC Severance Payment owed to him shall instead be paid as follows:

 

  i. Executive will receive an amount equal to one (1) times the sum of (i) his Base Salary and (ii) target annual cash bonus under the Company’s Annual Incentive Plan, paid in equal installments on the 15 th and last days of each of the twelve (12) months following the 30 th day after Executive’s Date of Termination (as defined in the Severance Plan) (or, if the 15 th and last day of a month is not a business day, on the closest business day to such date); and

 

  ii. Executive will receive a lump sum payment equal to one-half (.5) times the sum of (i) his Base Salary and (ii) target annual cash bonus under the Company’s Annual Incentive Plan, paid on the 60 th day (or the next following business day if the 60 th day is not a business day) following Executive’s Date of Termination.

 

2

All other terms and conditions of the Severance Plan as applicable to Executive, including, but not limited to, Executive’s fulfillment of any release requirement described in the Severance Plan, shall be as set forth in the Severance Plan.

 

  b. This Waiver is intended to comply with, or be exempt from, the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (together with the applicable regulations thereunder, “ Section 409A ”). To the extent that any provision in this Waiver is ambiguous as to its compliance with Section 409A or to the extent any provision in this Waiver must be modified to comply with Section 409A (including, without limitation, Treasury Regulation 1.409A-3(c)), such provision will be read, or will be modified (with the mutual consent of the parties, which consent will not be unreasonably withheld), as the case may be, in such a manner so that all payments due under this Waiver will comply with Section 409A. For purposes of Section 409A, each payment made under this Waiver will be treated as a separate payment. In no event may Executive, directly or indirectly, designate the calendar year of payment.

 

  6. Miscellaneous .

 

  a. This Waiver shall inure to the benefit of the Company and its successors and assigns. In the event any provision hereof is determined to be unenforceable or invalid such provision or such part thereof as may be unenforceable or invalid shall be deemed severed from this Waiver and the remaining provisions carried out with the same force and effect as if the severed provisions or part thereof had not been made a part hereof.

 

  b. No provisions of this Waiver may be amended, modified, or waived unless such amendment or modification is agreed to in writing signed by Executive and by a duly authorized officer of the Company, and such waiver is set forth in writing and signed by the party to be charged. The invalidity or unenforceability of any provision or provisions of this Waiver will not affect the validity or enforceability of any other provision of this Waiver, which will remain in full force and effect.

 

  c. Any controversy arising out of or relating to this Waiver or the breach of this Waiver that cannot be resolved by Executive and the Company shall be governed by the terms of Section 13, “Full Settlement; Resolution of Disputes and Costs”, of the Severance Plan.

 

  d. All disputes arising under or related to this Waiver shall at all times be governed by and construed in accordance with the internal laws (as opposed to the conflict of law provisions) and decisions of the State of Delaware as applied to agreements executed in and to be fully performed within that state.

 

  e. Any notices or other communications required or arising under this Waiver shall be governed by the terms of Section 12, “Notice”, of the Severance Plan.

 

  f.

This Waiver may be executed in any number of counterparts, each of which will be deemed an original, and all of which together will constitute one and

 

3

  the same instrument. This Waiver will become binding when one or more counterparts hereof, individually or taken together, will bear the signatures of all of the parties reflected hereon as the signatories. Photographic, faxed or PDF copies of such signed counterparts may be used in lieu of the originals for any purpose.

[ signature page follows ]

 

4

IN WITNESS WHEREOF , the parties hereto have executed this Waiver on the date first above written.

 

DONNELLEY FINANCIAL SOLUTIONS, INC.
By:   /s/ Diane Bielawski
 

Diane Bielawski

Chief Human Resources Officer

EXECUTIVE
By:   /s/ David Gardella
  David Gardella
  Dated as of this 5th day of June, 2017

[ signature page to waiver ]

ANNEX A

FORM OF ASSIGNMENT OF SEVERANCE AGREEMENT

Assignment of Severance Agreement (“Assignment Agreement”), dated as of September 29, 2016, by and between R.R. Donnelley & Sons Company (“RRD”), a Delaware corporation, and Donnelley Financial Solutions, Inc., a Delaware corporation (“Donnelley Financial”).

Recitals

WHEREAS, RRD has entered into a severance agreement with David A. Gardella of RRD (the “Executive”), dated November 6, 2012 (the “Severance Agreement”). A copy of the Severance Agreement is attached as to this Assignment Agreement as Annex A ; and

WHEREAS, RRD desires to assign the Severance Agreement to Donnelley Financial, and Donnelley Financial desires to acquire all of RRD’s right, title and interest in the Severance Agreement; and

WHEREAS, the Executive has acknowledged and acquiesced to the assignment of his Severance Agreement and the transfer of his employment to Donnelley Financial.

NOW, THEREFORE, in consideration of the premises and the mutual covenants set forth below, the parties hereby agree as follows:

Agreement

 

  1. Assignment of Severance Agreement . Effective as of the Donnelley Financial Distribution Date, as defined in the Separation and Distribution Agreement by and among RRD, LSC Communications, Inc. and Donnelley Financial (the “Distribution Date”), RRD hereby irrevocably, absolutely and unconditionally assigns, transfers, conveys and delivers to Donnelley Financial and its successors and assigns all of RRD’s right, title and interest in, to and under the Severance Agreement.

 

  2. Acceptance of Assignment . From and after the Distribution Date, Donnelley Financial hereby irrevocably, absolutely and unconditionally assumes, undertakes and agrees to pay, perform and discharge in full any and all claims and obligations arising under and/or in connection with the Severance Agreement.

 

  3. References . From and after the Distribution Date, all references in the Severance Agreement to “Donnelley” or the “Company” shall be deemed to be references to Donnelley Financial, including, but not limited to, with respect to any triggers such as those relating to a Change in Control or related events.

 

  4. Executive Acknowledgement . The Executive acknowledges and agrees that the transfer of his employment as described in this letter will not constitute a termination without “cause” by RRD, as defined under the Severance Agreement as in effect through the Distribution Date. This acknowledgement and agreement is without limitation on the Executive’s rights in the event that he is subsequently terminated without “cause” by Donnelley Financial.

 

6

  5. Restrictive Covenants . The Executive also acknowledges and agrees that he will be fully obligated to Donnelley Financial under the non-compete, employee non-solicit and customer non-solicit covenants (together, the “Restrictive Covenants”) of the Severance Agreement. In addition, beginning on the Distribution Date and ending on the day twelve (12) months following the Distribution Date (the “Wear Away Period”), if the Executive terminates employment for any reason, he shall be fully obligated to each of RRD and LSC under the Restrictive Covenants for the period, if any, beginning on the date of the Executive’s termination and ending at the conclusion of the Wear Away Period. The Executive acknowledges and agrees that the confidentiality covenant shall survive at all times, both during and after employment, with respect to Donnelley Financial, and shall survive and apply to each of RRD and LSC at all times after employment. The Executive, Donnelley Financial and RRD acknowledge that LSC is a third party beneficiary for purposes of enforcement of this Section 5.

 

  6. Miscellaneous . This Assignment Agreement shall inure to the benefit of Donnelley Financial, RRD and LSC, and each of their respective successors and assigns, as applicable. In the event any provision hereof is determined to be unenforceable or invalid such provision or such part thereof as may be unenforceable or invalid shall be deemed severed from this Assignment Agreement and the remaining provisions carried out with the same force and effect as if the severed provisions or part thereof had not been made a part hereof.

[ signature page follows ]

 

7

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

 

R.R. DONNELLEY & SONS COMPANY       DONNELLEY FINANCIAL SOLUTIONS, INC.
By:   /s/ Daniel L. Knotts       /s/ Daniel N. Leib
  Daniel L. Knotts       Daniel N. Leib
  Chief Operating Officer       Chief Executive Officer

Acceptance of Assignment by Executive

I, David A. Gardella, do hereby consent to the assignment of my Severance Agreement by and between R.R. Donnelley & Sons Company and Donnelley Financial Solutions, Inc.

Dated: September 29, 2016

 

By:   /s/ David A. Gardella
  David A. Gardella

ANNEX A

[ Copy of Severance Agreement ]

 

9

RR Donnelley    Global Headquarters
   111 South Wacker Drive
   Chicago, Illinois 60606-4301
   Telephone (312) 326 8000

November 6 th , 2012

Dave Gardella

[address]

Dear Dave:

In recognition of your importance to R.R. Donnelley & Sons Company, its officers, directors, subsidiaries, affiliates, and successors or assigns (“Donnelley” or “Company”) and to further the Company’s interests, we are pleased to offer you this Agreement. All capitalized terms used but not defined in the text of this Agreement shall have the meanings assigned to such terms in Annex A.

The terms of this Agreement are set forth below.

 

  1. Employment Relationship . It is agreed and understood that your employment with RR Donnelley is to be at will, and either you or RR Donnelley may terminate the employment relationship at any time, with or without cause, and with or without notice to the other.

 

  2. Severance . If your Separation from Service with the Company (and the members of the Company’s controlled group within the meaning of section 414(b) and (c) of the Code) is initiated by the Company without Cause the following provisions will apply.

 

  a. Severance Pay . The Company will pay you an amount equal to one times your Annualized Total Compensation (“Severance Pay”), subject to your prompt execution of the Company’s customary release, which amount shall be payable in equal installments on the 15th and last days of each of the 12 months following the 30th day after the date of your Separation from Service (if the 15th or last day of a month is not a business day, on the closest business day to such date. This amount constitutes “Separation Pay” under the terms of the R.R. Donnelley & Sons Company Separation Pay Plan (“SPP”) and all provisions of the SPP shall apply thereto and no other amount shall be payable under the SPP.

Any disputes regarding Severance Pay will be governed by the claims and appeals procedures of the SPP.

All payments made pursuant to this Agreement shall be reduced by applicable tax withholdings.

 

  b. Benefits . Your medical insurance coverage in effect immediately before the date of your Separation from Service will continue to be available to you under the group health plan continuation coverage laws (“COBRA”) for a period of 18 months following your Separation Date (the “COBRA Period”). Your medical coverage will be subsidized for 12 months, so you pay the normal employees rates.

 

  c. Section 409A If you are a “specified employee” within the meaning set forth in the document entitled “409A: Policy of R.R. Donnelley & Sons Company and its Affiliates Regarding Specified Employees” on your Termination Date, then any amounts payable pursuant to this Agreement or otherwise that (i) become payable as a result of your Separation from Service and (ii) are subject to Code Section 409A as a result of your Separation from Service shall not be paid until the earlier of (x) the first business day of the sixth month occurring after the month in which the Termination Date occurs and (y) the date of your death. Notwithstanding the immediately preceding sentence, amounts payable to you as a result of your Separation from Service that do not exceed two times the lesser of (i) your annualized compensation based upon your annual rate of Base Salary for the year prior to the year in which the date of your Separation from Service occurs and (ii) the maximum amount that may be taken into account under Code Section 401(a)(17) in the year in which the date of your Separation from Service occurs may be paid as otherwise scheduled. If any compensation or benefits provided by this letter may result in the application of Code Section 409A, then the Company shall, in consultation with you, modify this Agreement to the extent permissible under Code Section 409A in the least restrictive manner necessary in order to exclude such compensation and benefits from the definition of “deferred compensation” within the meaning of such Code Section 409A or in order to comply with the provisions of Code Section 409A. By signing this Agreement you acknowledge that if any amount paid or payable to you becomes subject to Code Section 409A, you are solely responsible for the payment of any taxes and interest due as a result.

 

  3. Restrictive Covenants . You and Donnelley recognize that, due to the nature of your employment and relationship with Donnelley, you will have access to and develop confidential business information, proprietary information, and trade secrets relating to the business and operations of Donnelley and its affiliates. You acknowledge that such information is valuable to the business of Donnelley and its affiliates, and that disclosure to, or use for the benefit of, any person or entity other than Donnelley or its affiliates, would cause substantial damage to Donnelley. You further acknowledge that your duties for Donnelley include the opportunity to develop and maintain relationships with Donnelley customers, employees, representatives and agents on behalf of Donnelley and that access to and development of those close relationships with Donnelley customers render your services special, unique and extraordinary. In recognition that the goodwill and relationships described herein are assets and extremely valuable to Donnelley, and that loss of or damage to those relationships would destroy or diminish the value of Donnelley, you agree as follows:

 

  a. Noncompetition . In consideration of the covenants and agreements of the Company herein contained, the payments to be made by the Company pursuant to this Agreement, the positions of trust and confidence you occupy and have occupied with the Company and the information of a highly sensitive and confidential nature obtained as a result of such positions, you agree that, from the date of your Separation from Service for any reason, including a Separation from Service initiated by Donnelley with or without Cause, and for 12 months thereafter, you will not, directly or indirectly, either as an employee, employer, consultant, agent, principal, partner, stockholder, corporate officer, director or in any other individual or representative capacity, worldwide, engage in any business which is competitive with the business of Donnelley. You may, however, own stock or the rights to own stock in a company covered by this paragraph that is publicly owned and regularly traded on any national exchange or in the over-the-counter market, so long as your holdings of stock or rights to own stock do not exceed the lesser of (i) 1% of the capital stock entitled to vote in the election of directors and (ii) the combined value of the stock or rights to acquire stock does not exceed your gross annual earnings from the Company.

  and relationships described herein are assets and extremely valuable to Donnelley, and that loss of or damage to those relationships would destroy or diminish the value of Donnelley, you agree as follows:

 

  a. Noncompetition . In consideration of the covenants and agreements of the Company herein contained, the payments to be made by the Company pursuant to this Agreement, the positions of trust and confidence you occupy and have occupied with the Company and the information of a highly sensitive and confidential nature obtained as a result of such positions, you agree that, from the date of your Separation from Service for any reason, including a Separation from Service initiated by Donnelley with or without Cause, and for 12 months thereafter, you will not, directly or indirectly, either as an employee, employer, consultant, agent, principal, partner, stockholder, corporate officer, director or in any other individual or representative capacity, worldwide, engage in any business which is competitive with the business of Donnelley. You may, however, own stock or the rights to own stock in a company covered by this paragraph that is publicly owned and regularly traded on any national exchange or in the over-the-counter market, so long as your holdings of stock or rights to own stock do not exceed the lesser of (i) 1% of the capital stock entitled to vote in the election of directors and (ii) the combined value of the stock or rights to acquire stock does not exceed your gross annual earnings from the Company.

 

  b. Importance of Customer Relationships . You recognize that Donnelley’s relationship with the customer or customers you serve, and with other employees, is special and unique, based upon the development and maintenance of goodwill resulting from the customers’ and other employees’ contacts with Donnelley and its employees, including you. As a result of your position and customer contacts, you recognize that you will gain valuable information about (i) Donnelley’s relationship with its customers, their buying habits, special needs, purchasing policies, (ii) the skills, capabilities and other employment-related information about Donnelley employees, and (iii) other matters which you would not otherwise know and which is not otherwise readily available. Such knowledge is essential to the business of Donnelley and you recognize that if your employment terminates, Donnelley will be required to rebuild that customer relationship to retain the customer’s business. You recognize that during a period following the date of your Separation from Service, Donnelley is entitled to protection from your using the information and customer and employee relationships with which you have been entrusted by Donnelley during your employment.

 

  c.

Nonsolicitation of Customers . While employed by Donnelley and for a period of 12 months from the date of your Separation from Service with Donnelley for any reason, including your Separation from Service initiated by Donnelley with or without Cause, you shall not, directly or indirectly, either on your own behalf or on behalf of any other person, firm or entity, solicit or provide services which are the same as or similar

  to the services Donnelley provided or offered while you were employed by Donnelley to any customer or prospective customer of Donnelley (i) with whom you had direct contact in the course of your employment with Donnelley or about whom you learned confidential information as a result of your employment with Donnelley or (ii) with whom any person over whom you had supervisory authority at any time had direct contact during the course of his or her employment with Donnelley or about whom such person learned confidential information as a result of his or her employment with Donnelley.

 

  d. Nonsolicitation of Employees . While employed by Donnelley and for a period of two years from the date of your Separation from Service with Donnelley for any reason, including your Separation from Service initiated by Donnelley with or without Cause, you shall not either directly or indirectly solicit, induce or encourage any Donnelley employee(s) to terminate their employment with Donnelley or to accept employment with any entity, including but not limited to a competitor, supplier or customer of Donnelley, nor shall you cooperate with any others in doing or attempting to do so. As used herein, the term “solicit, induce or encourage” includes, but is not limited to, (a) initiating communications with a Donnelley employee relating to possible employment, (b) offering bonuses or additional compensation to encourage Donnelley employees to terminate their employment with Donnelley and accept employment with a competitor, supplier or customer of Donnelley, or (c) referring Donnelley employees to personnel or agents employed by competitors, suppliers or customers of Donnelley.

 

  e. Confidential Information . You are prohibited from, at any time during your employment with the Company or thereafter, disclosing or using any Confidential Information for your benefit or any other person or entity, unless directed or authorized in writing by the Company to do so, until such time as the information becomes generally known to the public without your fault. “Confidential Information” means information (i) disclosed to or known by you as a consequence of your employment with the Company, (ii) not generally known to others outside the Company, and (iii) that relates to the Company’s marketing, sales, finances, operations, processes, methods, techniques, devices, software programs, projections, strategies and plans, personnel information, industry contacts made during your employment, and customer information, including customer needs, contacts, particular projects, and pricing. These restrictions are in addition to any confidentiality restrictions in any other agreement you may have signed with the Company.

 

  f. Obligation upon Subsequent Employment . If you accept employment with any future employer during the time period that equals the greater of one year following the date of your Separation from Service and the Severance Period (regardless of whether you actually receive severance benefits during that period), you will deliver a copy of this Agreement to such employer and advise such employer concerning the existence of your obligations under this Agreement.

  g. Geographic Scope . You understand that the Company has sales and manufacturing facilities throughout the United States and in a number of foreign countries, that it purchases equipment and materials from suppliers located throughout the world, and that it expects to expand the scope of its international activities in the future. You therefore agree that your obligations under Paragraph 5 shall extend worldwide.

 

  h. Other Agreements . In the event a covenant in this Agreement covers the same subject matter of a provision contained in one or more other agreements between you and the Company, you agree that the provision containing the greatest enforceable time, territorial, and/or prohibited activity restriction(s) shall control.

 

  i. Company’s Right to Injunctive Relief . By execution of this Agreement, you acknowledge and agree that the Company would be damaged irreparably if any provision under this Section 5 were breached by you and money damages would be an inadequate remedy for any such nonperformance or breach. Accordingly, in order to protect its interests, the Company shall be entitled to pursue, in addition to other rights and remedies existing in its favor, an injunction or injunctions to prevent any breach or threatened breach of any of such provisions and to enforce such provisions specifically (without posting a bond or other security). With respect to such enforcement, the prevailing party in such litigation shall be entitled to recover from the other party any and all attorneys’ fees, costs and expenses incurred by or on behalf of that party in enforcing or attempting to enforce any provision under this Section 5 or any other rights under this Agreement.

 

  4. General

 

  a. Acknowledgement of Reasonableness and Severability . You acknowledge and agree that the provisions of this Agreement, including Section 5, are reasonable and valid in geographic, temporal and subject matter scope and in all other respects, and do not impose limitations greater than are necessary to protect the goodwill, Confidential Information and other business interests of the Company. If any court subsequently determines that any part of this Agreement, including Section 5, is invalid or unenforceable, the remainder of the Agreement shall not be affected and shall be given full effect without regard to the invalid portions. Further, any court invalidating any provision of this Agreement shall have the power to revise the invalidated provisions such that the provision is enforceable to the maximum extent permitted by applicable law.

  b. Non-duplication of Severance Pay . By signing this Agreement, you hereby waive any right to any “Benefits” under the SPP, other than those specified in this Agreement.

 

  c. Employee Breach . If you breach this Agreement or any other agreement you have signed with the Company, the Company may, in its complete discretion, stop making any of the payments provided for in this Agreement.

 

  d. Arbitration . Any controversy arising out of or relating to this Agreement or the breach of this Agreement that cannot be resolved by you and the Company, including any dispute as to the calculation of any payments hereunder, and the terms of this Agreement, shall be determined by a single arbitrator in New York, New York, in accordance with the rules of JAMS; provided, however , that either party may seek preliminary injunctive relief to maintain or restore the status quo pending a decision of the arbitrator, and the parties consent to the exclusive jurisdiction of the courts of the State of Delaware or the Federal courts of the United States of America located in the District of Delaware in connection therewith. The decision of the arbitrator shall be final and binding and may be entered in any court of competent jurisdiction. The arbitrator may award the party he determines has prevailed in the arbitration any legal fees and other fees and expenses that may be incurred in respect of enforcing its respective rights.

 

  e. Governing Law . All disputes arising under or related to this Agreement shall at all times be governed by and construed in accordance with the internal laws (as opposed to the conflict of law provisions) and decisions of the State of Delaware as applied to agreements executed in and to be fully performed within that State.

 

  f. Notice and Execution . This Agreement may be executed in counterparts. Any notice or request required or permitted to be given hereunder shall be sufficient if in writing and deemed to have been given if delivered personally or sent by certified mail, return receipt requested, to you at the address above, and to the Company at its Corporate Headquarters (Attn: Corporate Secretary).

 

  g. Entire Agreement . This Agreement shall constitute the entire agreement between the parties with respect to the subject matter contained herein, and fully supersedes any prior agreements or understandings between us. This Agreement may not be changed or amended orally, but only in writing signed by both parties.

 

  h. Waiver . The failure of either party hereto to enforce at any time any provision of this Agreement shall not be construed as a waiver of such provision nor in any way to affect the validity of this Agreement or any part hereof or the right of such party thereafter to enforce each and every such provision. No waiver of any breach of this Agreement shall be held to constitute a waiver of any other or subsequent breach.

  i. Severability . If any provision contained in this Separation Agreement is finally held to be invalid, illegal or unenforceable (whether in whole or in part), such provision shall be deemed modified, but only to the extent necessary, to make such provision valid, legal and enforceable. In any event, the remainder of this Agreement shall continue to be valid and enforceable to the fullest extent permitted by law.

 

  j. Assignments and Successors. The rights and obligations of the Company under this Agreement may be assigned by the Company without consent or notice and shall inure to the benefit of and be binding upon its successors and assigns. You may not assign any of your rights and obligations hereunder.

You agree to keep the existence and terms of this Agreement confidential, and you will not disclose its terms to anyone, except to your attorneys, accountants, or if required to do so by law. To the extent you do disclose to anyone as permitted by this paragraph, you will obtain his or her agreement to keep the existence and terms of this Agreement confidential. If the Agreement or the contents are disclosed by you it will be considered breach of the terms outlined in the agreement and jeopardize the continuation of this agreement. This Agreement may, however, be used as evidence in a judicial proceeding in which any of the parties allege a breach of this Agreement.

If the foregoing terms and conditions are acceptable and agreed to by you, please sign on the line provided below to signify such acceptance and agreement and return the executed copy to Tom Carroll.

 

Very truly yours,
R. R. Donnelley & Sons Company
By:   /s/ Tom Carroll
Tom Carroll
EVP and Chief HR Office

ACCEPTED AND AGREED to this 6 day of November, 2012:

/s/ Dave Gardella

Dave Gardella

Annex A

Definitions

 

1. “Annualized Total Compensation” means Base Salary plus Annual Bonus (at the target level) for one year at the rate in effect immediately before the Separation Date, but, for these calculations only, your Base Salary and target bonus percentage shall not be less than the amount in effect on the date listed on this agreement.

 

2. “Cause” means (i) your willful and continued failure to perform substantially your duties with the Company (other than any such failure resulting from your incapacity due to physical or mental illness or any such failure subsequent to your being delivered a notice of termination without Cause) after a written demand for substantial performance is delivered to you by the Group President, the Chief Executive Officer, or the Board that identifies the manner in which you have not performed your duties, (ii) your willful engaging in conduct which is demonstrably and materially injurious (monetarily or otherwise) to the business, reputation, character or community standing of the Company, (iii) conviction of or the pleading of nolo contendere with regard to a felony or any crime involving fraud, dishonesty or moral turpitude, or (iv) a refusal or failure to attempt in good faith to follow the written direction of the Group President, the Chief Executive Officer, or the Board (provided that such written direction is consistent with your duty and station) promptly upon receipt of such written direction. For the purposes of this definition, no act or failure to act by you shall be considered “willful” unless done or omitted to be done by you in bad faith and without reasonable belief that your action or omission was in the best interests of the Company. Any act, or failure to act, based upon authority given pursuant to a resolution duly adopted by the Board or based upon the advice of the Company’s principal outside counsel shall be conclusively presumed to be done, or omitted to be done, by you in good faith and in the best interests of the Company. Notwithstanding the foregoing, the Company shall provide you with a reasonable amount of time, after a notice and demand for substantial performance is delivered to you, to cure any such failure to perform, and if such failure is so cured within a reasonable time thereafter, such failure shall not be deemed to have occurred.

 

3. “Committee” means a committee designated by the Chief Human Resources Officer of the Company.

 

4. “Separation from Service” means a termination of employment with the Company within the meaning of Treasury Regulation §1.409A-1(h).

Exhibit 10.4

WAIVER OF SEVERANCE BENEFITS

Waiver of Severance Benefits (“ Waiver ”), dated as of the date set forth below, by and between Jennifer Reiners (“ Executive ”), and Donnelley Financial Solutions, Inc., a Delaware corporation (the “ Company ”).

Recitals

WHEREAS , the Company has entered into a severance agreement with Executive, dated December 10, 2012 (the “ Agreement ”). A copy of the Agreement is attached as to this Waiver as Annex A ; and

WHEREAS , Compensation Committee of the Company’s Board of Directors (the “ Committee ”) has determined it is advisable and in the best interests of the Company to implement an Executive Severance Plan, effective May 30, 2017 (the “ Severance Plan ”) for certain senior officers and key management employees; and

WHEREAS , the Committee has selected Executive for participation in the Severance Plan; and

WHEREAS , to the extent provided below, in order to participate in and receive benefits under the Severance Plan, Executive desires to waive any severance payments provided to her under the Agreement in connection with the termination of her employment.

NOW, THEREFORE , in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

Waiver

 

  1. Defined Terms . Capitalized terms not defined herein shall have the meanings specified shall have the meanings ascribed to such terms in the Agreement.

 

  2. Waiver of Severance Entitlements .

 

  a. The parties acknowledge that Section 2(a) of the Agreement states that, in the event that Executive’s Separation from Service from the Company is initiated without Cause, Executive is entitled to an amount equal to one (1) times her Annualized Total Compensation, subject to Executive’s prompt execution of the Company’s customary release, payable in equal installments on the 15 th and last days of each of the twelve (12) months following the 30 th day after the date of such Separation from Service (or, if the 15 th and last day of a month is not a business day, on the closest business day to such date) (the “ Original Severance Entitlement ”).

 

  b. In consideration of Executive’s participation in the Severance Plan and the benefits she is entitled to therein, Executive hereby waives, releases, forfeits and relinquishes any and all right, claim, title and interest in and to the Original Severance Entitlement, subject to Section 3 of this Waiver below.

  3. Limits on Severance Plan Amendment . Notwithstanding Section 17, “Amendment and Termination”, of the Severance Plan (under which the Committee may amend or terminate the Severance Plan at any time without the consent of the Severance Plan participants) or any other provision contained therein or herein to the contrary, the Committee has acknowledged and determined that the Severance Plan may not be amended in a manner that will materially impair the rights of Executive by reducing Executive’s severance benefits to less than the Original Severance Entitlement without Executive’s prior written consent.

 

  4. March 2017 Performance Restricted Stock Grant . Executive was previously awarded a grant of performance restricted stock on March 2, 2017 (the “ Performance Award ”). The first sentence of Section 2(c), “Vesting”, in the associated award agreement for such Performance Award (the “ Award Agreement ”) is replaced in its entirety with the following:

“Notwithstanding anything provided in the 2016 PIP or any other agreement with Grantee to the contrary, upon the date of a Change in Control, each Performance Condition shall be deemed met at the target performance level with respect to each open Performance Period.”

All other terms and conditions of the Award Agreement shall remain in full force and effect.

 

  5. Section 409A Compliance . This Waiver is intended to comply with, or be exempt from, the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (together with the applicable regulations thereunder, “ Section 409A ”). To the extent that any provision in this Waiver is ambiguous as to its compliance with Section 409A or to the extent any provision in this Waiver must be modified to comply with Section 409A (including, without limitation, Treasury Regulation 1.409A-3(c)), such provision will be read, or will be modified (with the mutual consent of the parties, which consent will not be unreasonably withheld), as the case may be, in such a manner so that all payments due under this Waiver will comply with Section 409A. For purposes of Section 409A, each payment made under this Waiver will be treated as a separate payment. In no event may Executive, directly or indirectly, designate the calendar year of payment.

 

  6. Miscellaneous .

 

  a. This Waiver shall inure to the benefit of the Company and its successors and assigns. In the event any provision hereof is determined to be unenforceable or invalid such provision or such part thereof as may be unenforceable or invalid shall be deemed severed from this Waiver and the remaining provisions carried out with the same force and effect as if the severed provisions or part thereof had not been made a part hereof.

 

  b. No provisions of this Waiver may be amended, modified, or waived unless such amendment or modification is agreed to in writing signed by Executive and by a duly authorized officer of the Company, and such waiver is set forth in writing and signed by the party to be charged. The invalidity or unenforceability of any provision or provisions of this Waiver will not affect the validity or enforceability of any other provision of this Waiver, which will remain in full force and effect.

 

2

  c. Any controversy arising out of or relating to this Waiver or the breach of this Waiver that cannot be resolved by Executive and the Company shall be governed by the terms of Section 13, “Full Settlement; Resolution of Disputes and Costs”, of the Severance Plan.

 

  d. All disputes arising under or related to this Waiver shall at all times be governed by and construed in accordance with the internal laws (as opposed to the conflict of law provisions) and decisions of the State of Delaware as applied to agreements executed in and to be fully performed within that state.

 

  e. Any notices or other communications required or arising under this Waiver shall be governed by the terms of Section 12, “Notice”, of the Severance Plan.

 

  f. This Waiver may be executed in any number of counterparts, each of which will be deemed an original, and all of which together will constitute one and the same instrument. This Waiver will become binding when one or more counterparts hereof, individually or taken together, will bear the signatures of all of the parties reflected hereon as the signatories. Photographic, faxed or PDF copies of such signed counterparts may be used in lieu of the originals for any purpose.

[ signature page follows ]

 

3

IN WITNESS WHEREOF , the parties hereto have executed this Waiver on the date first above written.

 

DONNELLEY FINANCIAL SOLUTIONS, INC.
By:   /s/ Diane Bielawski
  Diane Bielawski
  Chief Human Resources Officer

 

EXECUTIVE
By:   /s/ Jennifer B. Reiners
  Jennifer B. Reiners

Dated as of this 31st day of May, 2017

[ Signature page to Waiver ]

ANNEX A

FORM OF ASSIGNMENT OF SEVERANCE AGREEMENT

Assignment of Severance Agreement (“Assignment Agreement”), dated as of September 29, 2016, by and between R.R. Donnelley & Sons Company (“RRD”), a Delaware corporation, and Donnelley Financial Solutions, Inc., a Delaware corporation (“Donnelley Financial”).

Recitals

WHEREAS, RRD has entered into a severance agreement with Jennifer B. Reiners of RRD (the “Executive”), dated December 10, 2012 (the “Severance Agreement”). A copy of the Severance Agreement is attached as to this Assignment Agreement as Annex A ; and

WHEREAS, RRD desires to assign the Severance Agreement to Donnelley Financial, and Donnelley Financial desires to acquire all of RRD’s right, title and interest in the Severance Agreement; and

WHEREAS, the Executive has acknowledged and acquiesced to the assignment of his Severance Agreement and the transfer of her employment to Donnelley Financial.

NOW, THEREFORE, in consideration of the premises and the mutual covenants set forth below, the parties hereby agree as follows:

Agreement

 

1. Assignment of Severance Agreement. Effective as of the Donnelley Financial Distribution Date, as defined in the Separation and Distribution Agreement by and among RRD, LSC Communications, Inc. and Donnelley Financial (the “Distribution Date”), RRD hereby irrevocably, absolutely and unconditionally assigns, transfers, conveys and delivers to Donnelley Financial and its successors and assigns all of RRD’s right, title and interest in, to and under the Severance Agreement.

 

2. Acceptance of Assignment. From and after the Distribution Date, Donnelley Financial hereby irrevocably, absolutely and unconditionally assumes, undertakes and agrees to pay, perform and discharge in full any and all claims and obligations arising under and/or in connection with the Severance Agreement.

 

3. References. From and after the Distribution Date, all references in the Severance Agreement to “Donnelley” or the “Company” shall be deemed to be references to Donnelley Financial, including, but not limited to, with respect to any triggers such as those relating to a Change in Control or related events.

 

4. Executive Acknowledgement. The Executive acknowledges and agrees that the transfer of her employment as described in this letter will not constitute a termination without “cause” by RRD, as defined under the Severance Agreement as in effect through the Distribution Date. This acknowledgement and agreement is without limitation on the Executive’s rights in the event that she is subsequently terminated without “cause” by Donnelley Financial.

 

5

5. Restrictive Covenants. The Executive also acknowledges and agrees that she will be fully obligated to Donnelley Financial under the non-compete, employee non-solicit and customer non-solicit covenants (together, the “Restrictive Covenants”) of the Severance Agreement. In addition, beginning on the Distribution Date and ending on the day twelve (12) months following the Distribution Date (the “Wear Away Period”), if the Executive terminates employment for any reason, she shall be fully obligated to each of RRD and LSC under the Restrictive Covenants for the period, if any, beginning on the date of the Executive’s termination and ending at the conclusion of the Wear Away Period. The Executive acknowledges and agrees that the confidentiality covenant shall survive at all times, both during and after employment, with respect to Donnelley Financial, and shall survive and apply to each of RRD and LSC at all times after employment. The Executive, Donnelley Financial and RRD acknowledge that LSC is a third party beneficiary for purposes of enforcement of this Section 5.

 

6. Miscellaneous. This Assignment Agreement shall inure to the benefit of Donnelley Financial, RRD and LSC, and each of their respective successors and assigns, as applicable. In the event any provision hereof is determined to be unenforceable or invalid such provision or such part thereof as may be unenforceable or invalid shall be deemed severed from this Assignment Agreement and the remaining provisions carried out with the same force and effect as if the severed provisions or part thereof had not been made a part hereof.

[ signature page follows ]

 

6

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

 

R.R. DONNELLEY & SONS COMPANY     DONNELLEY FINANCIAL SOLUTIONS, INC.

By:

  /s/ Daniel L. Knotts     /s/ Daniel N. Leib
 

Daniel L. Knotts

Chief Operating Officer

   

Daniel N. Leib

Chief Executive Officer

Acceptance of Assignment by Executive

I, Jennifer B. Reiners, do hereby consent to the assignment of my Severance Agreement by and between R.R. Donnelley & Sons Company and Donnelley Financial Solutions, Inc.

Dated: September 29, 2016

 

By:   /s/ Jennifer B. Reiners
  Jennifer B. Reiners

ANNEX A

[ Copy of Severance Agreement ]

 

8

RR Donnelley     

Global Headquarters

 

111 South Wacker Drive

Chicago, Illinois 60606-4301

Telephone (312) 326 8000

    
    
    

December 10, 2012

Jennifer Reiners

[address]

Dear Jennifer:

In recognition of your importance to R.R. Donnelley & Sons Company, its officers, directors, subsidiaries, affiliates, and successors or assigns (“Donnelley” or “Company”) and to further the Company’s interests, we are pleased to offer you this Agreement. All capitalized terms used but not defined in the text of this Agreement shall have the meanings assigned to such terms in Annex A.

The terms of this Agreement are set forth below.

 

  1. Employment Relationship . It is agreed and understood that your employment with RR Donnelley is to be at will, and either you or RR Donnelley may terminate the employment relationship at any time, with or without cause, and with or without notice to the other.

 

  2. Severance . If your Separation from Service with the Company (and the members of the Company’s controlled group within the meaning of section 414(b) and (c) of the Internal Revenue Code of 1986, as amended (the “Code”)) is initiated by the Company without Cause the following provisions will apply.

 

  a. Severance Pay . The Company will pay you an amount equal to one times your Annualized Total Compensation (“Severance Pay”), subject to your prompt execution of the Company’s customary release, which amount shall be payable in equal installments on the 15th and last days of each of the 12 months following the 30th day after the date of your Separation from Service (if the 15th or last day of a month is not a business day, on the closest business day to such date). This amount constitutes “Separation Pay” under the terms of the R.R. Donnelley & Sons Company Separation Pay Plan (“SPP”) and all provisions of the SPP shall apply thereto and no other amount shall be payable under the SPP.

Any disputes regarding Severance Pay will be governed by the claims and appeals procedures of the SPP.

All payments made pursuant to this Agreement shall be reduced by applicable tax withholdings.

 

  b. Benefits . Your medical, dental and vision coverage under the Company’s group health plans in effect immediately before the date of your Separation from Service will continue to be available to you under the group health plan

  continuation coverage laws (“COBRA”) for a period of 18 months following your Separation Date (the “COBRA Period”). If you elect COBRA coverage, it will be available to you for the first six months of the COBRA Period at the same cost the coverage you had in effect immediately before the date of your Separation from Service is available to active employees. If your years of service with the Company qualify you for a COBRA premium subsidy under the SPP for longer than six months, you shall be entitled to the subsidy for the period specified in the SPP.

 

  c. Section 409A If you are a “specified employee” within the meaning set forth in the document entitled “409A: Policy of R.R. Donnelley & Sons Company and its Affiliates Regarding Specified Employees” on your Termination Date, then any amounts payable pursuant to this Agreement or otherwise that (i) become payable as a result of your Separation from Service and (ii) are subject to Code Section 409A as a result of your Separation from Service shall not be paid until the earlier of (x) the first business day of the sixth month occurring after the month in which the Termination Date occurs and (y) the date of your death. Notwithstanding the immediately preceding sentence, amounts payable to you as a result of your Separation from Service that do not exceed two times the lesser of (i) your annualized compensation based upon your annual rate of Base Salary for the year prior to the year in which the date of your Separation from Service occurs and (ii) the maximum amount that may be taken into account under Code Section 401(a)(17) in the year in which the date of your Separation from Service occurs may be paid as otherwise scheduled. If any compensation or benefits provided by this letter may result in the application of Code Section 409A, then the Company shall, in consultation with you, modify this Agreement to the extent permissible under Code Section 409A in the least restrictive manner necessary in order to exclude such compensation and benefits from the definition of “deferred compensation” within the meaning of such Code Section 409A or in order to comply with the provisions of Code Section 409A. By signing this Agreement you acknowledge that if any amount paid or payable to you becomes subject to Code Section 409A, you are solely responsible for the payment of any taxes and interest due as a result.

 

  3. Restrictive Covenants . You and Donnelley recognize that, due to the nature of your employment and relationship with Donnelley, you will have access to and develop confidential business information, proprietary information, and trade secrets relating to the business and operations of Donnelley and its affiliates. You acknowledge that such information is valuable to the business of Donnelley and its affiliates, and that disclosure to, or use for the benefit of, any person or entity other than Donnelley or its affiliates, would cause substantial damage to Donnelley. You further acknowledge that your duties for Donnelley include the opportunity to develop and maintain relationships with Donnelley customers, employees, representatives and agents on behalf of Donnelley and that access to and development of those close relationships with Donnelley customers render your services special, unique and extraordinary. In recognition that the goodwill and relationships described herein are assets and extremely valuable to Donnelley, and that loss of or damage to those relationships would destroy or diminish the value of Donnelley, you agree as follows:

 

  a. Importance of Customer Relationships . You recognize that Donnelley’s relationship with the customer or customers you serve, and with other employees, is special and unique, based upon the development and maintenance of goodwill resulting from the customers’ and other employees’ contacts with

  Donnelley and its employees, including you. As a result of your position and customer contacts, you recognize that you will gain valuable information about (i) Donnelley’s relationship with its customers, their buying habits, special needs, purchasing policies, (ii) the skills, capabilities and other employment-related information about Donnelley employees, and (iii) other matters which you would not otherwise know and which is not otherwise readily available. Such knowledge is essential to the business of Donnelley and you recognize that if your employment terminates, Donnelley will be required to rebuild that customer relationship to retain the customer’s business. You recognize that during a period following the date of your Separation from Service, Donnelley is entitled to protection from your using the information and customer and employee relationships with which you have been entrusted by Donnelley during your employment.

 

  b. Nonsolicitation of Customers . While employed by Donnelley and for a period of 12 months from the date of your Separation from Service with Donnelley for any reason, including your Separation from Service initiated by Donnelley with or without Cause (the “Severance Period”), you shall not, directly or indirectly, either on your own behalf or on behalf of any other person, firm or entity, solicit or provide services which are the same as or similar to the services Donnelley provided or offered while you were employed by Donnelley to any customer or prospective customer of Donnelley (i) with whom you had direct contact in the course of your employment with Donnelley or about whom you learned confidential information as a result of your employment with Donnelley or (ii) with whom any person over whom you had supervisory authority at any time had direct contact during the course of his or her employment with Donnelley or about whom such person learned confidential information as a result of his or her employment with Donnelley.

 

  c. Nonsolicitation of Employees . While employed by Donnelley and for a period of two years from the date of your Separation from Service with Donnelley for any reason, including your Separation from Service initiated by Donnelley with or without Cause, you shall not either directly or indirectly solicit, induce or encourage any Donnelley employee(s) to terminate their employment with Donnelley or to accept employment with any entity, including but not limited to a competitor, supplier or customer of Donnelley, nor shall you cooperate with any others in doing or attempting to do so. As used herein, the term “solicit, induce or encourage” includes, but is not limited to, (a) initiating communications with a Donnelley employee relating to possible employment, (b) offering bonuses or additional compensation to encourage Donnelley employees to terminate their employment with Donnelley and accept employment with a competitor, supplier or customer of Donnelley, or (c) referring Donnelley employees to personnel or agents employed by competitors, suppliers or customers of Donnelley.

 

  d. Confidential Information . You are prohibited from, at any time during your employment with the Company or thereafter, disclosing or using any Confidential Information for your benefit or any other person or entity, unless directed or authorized in writing by the Company to do so, until such time as the information becomes generally known to the public without your fault. “Confidential Information” means information (i) disclosed to or known by you as a consequence of your employment with the Company, (ii) not generally known to others outside the Company, and (iii) that relates to the Company’s

  marketing, sales, finances, operations, processes, methods, techniques, devices, software programs, projections, strategies and plans, personnel information, industry contacts made during your employment, and customer information, including customer needs, contacts, particular projects, and pricing. These restrictions are in addition to any confidentiality restrictions in any other agreement you may have signed with the Company.

 

  e. Obligation upon Subsequent Employment . If you accept employment with any future employer during the time period that equals the greater of one year following the date of your Separation from Service and the Severance Period (regardless of whether you actually receive severance benefits during that period), you will deliver a copy of this Agreement to such employer and advise such employer concerning the existence of your obligations under this Agreement.

 

  f. Geographic Scope . You understand that the Company has sales and manufacturing facilities throughout the United States and in a number of foreign countries, that it purchases equipment and materials from suppliers located throughout the world, and that it expects to expand the scope of its international activities in the future. You therefore agree that your obligations under Section 3 shall extend worldwide.

 

  g. Other Agreements . In the event a covenant in this Agreement covers the same subject matter of a provision contained in one or more other agreements between you and the Company, you agree that the provision containing the greatest enforceable time, territorial, and/or prohibited activity restriction(s) shall control.

 

  h. Company’s Right to Injunctive Relief . By execution of this Agreement, you acknowledge and agree that the Company would be damaged irreparably if any provision under this Section 3 were breached by you and money damages would be an inadequate remedy for any such nonperformance or breach. Accordingly, in order to protect its interests, the Company shall be entitled to pursue, in addition to other rights and remedies existing in its favor, an injunction or injunctions to prevent any breach or threatened breach of any of such provisions and to enforce such provisions specifically (without posting a bond or other security). With respect to such enforcement, the prevailing party in such litigation shall be entitled to recover from the other party any and all attorneys’ fees, costs and expenses incurred by or on behalf of that party in enforcing or attempting to enforce any provision under this Section 3 or any other rights under this Agreement.

 

  4. General

 

  a. Acknowledgement of Reasonableness and Severability . You acknowledge and agree that the provisions of this Agreement, including Section 3, are reasonable and valid in geographic, temporal and subject matter scope and in all other respects, and do not impose limitations greater than are necessary to protect the goodwill, Confidential Information and other business interests of the Company. If any court subsequently determines that any part of this Agreement, including Section 3, is invalid or unenforceable, the remainder of the Agreement shall not be affected and shall be given full effect without regard to the invalid portions. Further, any court invalidating any provision of this Agreement shall have the power to revise the invalidated provisions such that the provision is enforceable to the maximum extent permitted by applicable law.

  b. Non-duplication of Severance Pay . By signing this Agreement, you hereby waive any right to any “Benefits” under the SPP, other than those specified in this Agreement.

 

  c. Employee Breach . If you breach this Agreement or any other agreement you have signed with the Company, the Company may, in its complete discretion, stop making any of the payments provided for in this Agreement.

 

  d. Arbitration . Any controversy arising out of or relating to this Agreement or the breach of this Agreement that cannot be resolved by you and the Company, including any dispute as to the calculation of any payments hereunder, and the terms of this Agreement, shall be determined by a single arbitrator in New York, New York, in accordance with the rules of JAMS; provided, however , that either party may seek preliminary injunctive relief to maintain or restore the status quo pending a decision of the arbitrator, and the parties consent to the exclusive jurisdiction of the courts of the State of Delaware or the Federal courts of the United States of America located in the District of Delaware in connection therewith. The decision of the arbitrator shall be final and binding and may be entered in any court of competent jurisdiction. The arbitrator may award the party he determines has prevailed in the arbitration any legal fees and other fees and expenses that may be incurred in respect of enforcing its respective rights.

 

  e. Governing Law . All disputes arising under or related to this Agreement shall at all times be governed by and construed in accordance with the internal laws (as opposed to the conflict of law provisions) and decisions of the State of Delaware as applied to agreements executed in and to be fully performed within that State.

 

  f. Notice and Execution . This Agreement may be executed in counterparts. Any notice or request required or permitted to be given hereunder shall be sufficient if in writing and deemed to have been given if delivered personally or sent by certified mail, return receipt requested, to you at the address above, and to the Company at its Corporate Headquarters (Attn: Corporate Secretary).

 

  g. Entire Agreement . This Agreement shall constitute the entire understanding and agreement between the parties concerning the subject matterhereof, and fully supersedes all prior agreements, understandings, discussions, negotiations and undertakings, whether written or oral, between us with respect thereto, except that any restrictive covenant, confidentiality or intellectual property obligations that you have to the Company shall survive and not be superseded, including, without limitation, those set forth in the Company’s policies. This Agreement may not be changed or amended orally, but only in writing signed by both parties.

 

  h. Waiver . The failure of either party hereto to enforce at any time any provision of this Agreement shall not be construed as a waiver of such provision nor in any way to affect the validity of this Agreement or any part hereof or the right of such party thereafter to enforce each and every such provision. No waiver of any breach of this Agreement shall be held to constitute a waiver of any other or subsequent breach.

  i. Severability . If any provision contained in this Separation Agreement is finally held to be invalid, illegal or unenforceable (whether in whole or in part), such provision shall be deemed modified, but only to the extent necessary, to make such provision valid, legal and enforceable. In any event, the remainder of this Agreement shall continue to be valid and enforceable to the fullest extent permitted by law.

 

  j. Assignments and Successors. The rights and obligations of the Company under this Agreement may be assigned by the Company without consent or notice and shall inure to the benefit of and be binding upon its successors and assigns. You may not assign any of your rights and obligations hereunder.

If the foregoing terms and conditions are acceptable and agreed to by you, please sign on the line provided below to signify such acceptance and agreement and return the executed copy to Tom Carroll.

 

Very truly yours,
R. R. Donnelley & Sons Company
By:   /s/ Tom Carroll
Tom Carroll
EVP and Chief HR Office
ACCEPTED AND AGREED to this 18 th day of December, 2012:

/s/ Jennifer Reiners

Jennifer Reiners

Annex A

Definitions

 

1. “Annualized Total Compensation” means Base Salary plus Annual Bonus (at the target level) for one year at the rate in effect immediately before the Separation Date, but, for these calculations only, your Base Salary and target bonus percentage shall not be less than the amount in effect on the date listed on this agreement.

 

2. “Cause” means (i) your willful and continued failure to perform substantially your duties with the Company (other than any such failure resulting from your incapacity due to physical or mental illness or any such failure subsequent to your being delivered a notice of termination without Cause) after a written demand for substantial performance is delivered to you by the Group President, the Chief Executive Officer, or the Board that identifies the manner in which you have not performed your duties, (ii) your willful engaging in conduct which is demonstrably and materially injurious (monetarily or otherwise) to the business, reputation, character or community standing of the Company, (iii) conviction of or the pleading of nolo contendere with regard to a felony or any crime involving fraud, dishonesty or moral turpitude, or (iv) a refusal or failure to attempt in good faith to follow the written direction of the Group President, the Chief Executive Officer, or the Board (provided that such written direction is consistent with your duty and station) promptly upon receipt of such written direction. For the purposes of this definition, no act or failure to act by you shall be considered “willful” unless done or omitted to be done by you in bad faith and without reasonable belief that your action or omission was in the best interests of the Company. Any act, or failure to act, based upon authority given pursuant to a resolution duly adopted by the Board or based upon the advice of the Company’s principal outside counsel shall be conclusively presumed to be done, or omitted to be done, by you in good faith and in the best interests of the Company. Notwithstanding the foregoing, the Company shall provide you with a reasonable amount of time, after a notice and demand for substantial performance is delivered to you, to cure any such failure to perform, and if such failure is so cured within a reasonable time thereafter, such failure shall not be deemed to have occurred.

 

3. “Committee” means a committee designated by the Chief Human Resources Officer of the Company.

 

4. “Separation from Service” means a termination of employment with the Company within the meaning of Treasury Regulation §1.409A-1(h).

Exhibit 10.5

DONNELLEY FINANCIAL SOLUTIONS, INC.

AMENDMENT TO

PERFORMANCE RESTRICTED STOCK AWARD

Amendment to Performance Restricted Stock Award (“ Amendment ”), dated as of             , 2017, by and between Donnelley Financial Solutions, Inc., a Delaware corporation (the “ Company ”) and             (“ Grantee ”).

WHEREAS , the Company and Grantee are parties to the Performance Restricted Stock Award, dated March 2, 2017 (the “ Award Agreement ”); and

WHEREAS , the Company and Grantee have determined it is in the best interests of the Company and the Grantee to amend certain provisions of the Award Agreement.

NOW, THEREFORE , the parties hereby agree as follows:

 

  1. The first sentence of Section 2(c), “Vesting”, shall be deleted and replaced in its entirety with the following language:

“Notwithstanding anything provided in the 2016 PIP or any other agreement with Grantee to the contrary, upon the date of a Change in Control, each Performance Condition shall be deemed met at the target performance level with respect to each open Performance Period.”

 

  2. All other terms and conditions of the Award Agreement shall remain in full force and effect.

 

  3. This Amendment and the rights and obligations of the parties hereunder shall be governed by and interpreted, construed and enforced in accordance with the laws of the State of Delaware.

[ signature page follows ]

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

 

DONNELLEY FINANCIAL SOLUTIONS, INC.
By:    
  Diane Bielawski
  Chief Human Resources Officer

 

EXECUTIVE
By:    
  [Name]