Exhibit 10.14
1994 SENIOR EXECUTIVE EMPLOYMENT AGREEMENT
AGREEMENT made as of the 1st day of
July, 1994, as amended and restated as of the 29th
day of March, 1995, by and between John Wiley &
Sons, Inc., a New York corporation, with offices
at 605 Third Avenue, New York, New York 10158
(hereinafter referred to as the
"Corporation"), and Charles R. Ellis presently residing
at 300 East 54th Street, Apartment 34K, New York,
New York 10022 (hereinafter referred to as the
"Executive").
W I T N E S S E T H :
Executive is presently employed as
President and Chief Executive Officer of the
Corporation. The Corporation and Executive entered
into an Agreement dated as of July 1, 1994 (the
"Original Agreement") regarding Executive's employment
with the Corporation. The Corporation and
Executive desire to amend and restate the Original
Agreement and to enter into an agreement of
employment on the terms and subject to the
conditions hereinafter set forth.
NOW THEREFORE, the parties agree as follows:
1. Employment.
1.1 The Corporation hereby employs Executive
as President and Chief Executive Officer of the
Corporation.
1.2 Executive hereby accepts such employment
and shall devote his full business time, attention,
knowledge and skills faithfully, diligently and to the
best of his ability to the performance of his duties.
Executive shall do such traveling as may be
reasonably required of him in the performance of his
duties. Executive shall be subject to and shall
observe and carry out such reasonable rules,
regulations, policies, directions and
restrictions consistent with the duties to be performed
by him hereunder as the Corporation shall from time to
time establish.
1.3 If at any time during the term of
employment the Board of Directors of the Corporation
shall, without his consent, and other than for cause or
on account of death, disability or retirement, fail to
re-elect Executive as President and Chief Executive
Officer or shall remove him from such office, Executive
shall have the right, exercisable by written notice to
the Corporation within ten business days after the
occurrence of such failure to re-elect or removal, to
terminate his services hereunder, effective as of the
last day of the month of receipt by the Corporation of
any such written notice, and Executive shall have no
further obligation under this Agreement. Termination of
Executive's services under this Section shall be
treated as a termination of employment by the
Corporation other than for cause and shall be governed
by the provisions of Section 6.2 of this Agreement.
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1.4 Executive shall not be entitled to
compensation other than the compensation provided for
(or otherwise referred to) in this Agreement for any
services he may render as a director or officer of any
of the Corporation's subsidiaries.
1.5 Executive shall not without the prior
written approval of the Corporation accept employment
or compensation from or perform services of any nature
for any business enterprise other than the Corporation
or any of its subsidiaries or joint-venture entities.
1.6 Executive shall not without the prior
written approval of the Corporation invest in any
business enterprise -
1.6.1 if such enterprise engages in or
involves a "Restricted Business" as that term is hereinafter
defined in Section 8.1;
1.6.2 if such investment interferes with the
performance of Executive's duties hereunder; or
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1.6.3 if such investment would violate the
Corporation's announced business policy with respect to
employee interests in suppliers of goods or services to
the Corporation or any of its subsidiaries.
Notwithstanding the foregoing, Executive may invest
in securities of any company if such securities are
listed for trading on a national stock exchange or
traded on the over-the-counter market and Executive's
investment therein represents less than one percent
(1%) of the total number of outstanding shares of the
class of shares or outstanding principal amount of the
class of other securities of such company, as the
case may be.
1.7 Executive shall not without the prior
written approval of the Corporation serve on the board
of directors of any business enterprise other than
the Corporation or any of its subsidiaries.
2. Term.
2.1 Executive's term of employment hereunder
shall commence as of July 1, 1994 and shall continue
through July 20, 1998, unless sooner terminated in
accordance with this Agreement, and thereafter as
herein provided. Executive's term of employment
shall automatically renew for a subsequent two
year term, beginning on July 21, 1998, subject to
the terms of this Agreement, unless either party gives
written notice 90 days or more prior to the
expiration of the then existing term of his or its
decision not to renew. Failure by the
Corporation to renew, although not a termination by
the Corporation without cause or for cause, shall for
purposes of the benefits intended to be provided to
Executive (and the obligations of Executive under
Section 6.5) be deemed to constitute a termination
without cause.
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3. Compensation.
3.1 As compensation for his services
hereunder, the Corporation shall pay Executive a base salary at the
rate of three hundred seventy thousand ($370,000)
Dollars per annum, subject to increase as hereinbelow
provided, payable in equal installments no less
frequently than monthly.
3.2 Executive shall be eligible to participate
in all of the Corporation's
executive compensation plans in which any senior vice
president is eligible to participate, including but not
limited to the Executive Annual Incentive Plan
("EAIP"), the Executive Long Term Incentive Plan
("ELTIP"), or equivalents, for so long as such plans
remain in effect and shall also be entitled to all of
his other presently existing employment benefits and
perquisites or equivalents.
3.3 Executive's compensation shall be reviewed
periodically in accordance with procedures and policies
established by the Corporation for salary review of its
officers.
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3.4 To the extent coverage is not
duplicative of that provided under an executive
compensation plan in which Executive is eligible to
participate, Executive shall be included to the extent
eligible under any and all plans providing benefits
generally for the Corporation's employees, including,
but not limited to, pension, group life insurance,
hospitalization, medical and disability plans. The
Corporation shall not, however, be under any obligation
to continue the existence of any executive compensation
or other employee benefit plan referred to in Section
3.2 or this Section 3.4.
3.5 The Executive Compensation and
Development Committee (the "Committee") intends, at a
meeting of the Committee to be held before the end of
June 1995, to grant to Executive under the 1991 Key
Employee Stock Plan 15,000 post 7/6/94 split shares of
Class A Common Stock of the Corporation, par value $1
per share ("Common Stock"), pursuant to substantially
the same terms and subject to substantially the same
conditions and restrictions as the restricted stock
awarded to Executive by the Corporation on June 23,
1994, as the same may be amended from time to time;
provided, however, that no "Transfer Restriction" (as
defined in the Restricted Stock Award Agreement, dated
as of June 23, 1994, between the Corporation and
Executive) shall be placed on the restricted stock
granted in 1995. Upon the retirement of Executive with
the consent and approval of the Board of Directors of
the Corporation, all restrictions with respect to all
restricted stock granted to Executive shall lapse.
3.6 Subject to the next sentence of this
Section 3.6, (i) should the 1995 restricted stock award
contemplated by Section 3.5 not be timely granted, or
should any such award be altered or impaired
thereafter, other than as contemplated by the 1991 Key
Employee Stock Plan or (ii) should the Corporation
cease to provide incentive compensation plans in which
Executive is eligible to participate, substantially
similar to those described in Section 3.2 above, and of
a value to Executive substantially similar to that of
the present plans, Executive shall have the right to
terminate his services hereunder, exercisable by
written notice to the Corporation within ten business
days after (i) the end of June 1995, or (ii) the
cessation of such plans, as applicable, effective as of
the last day of the month of receipt by the Corporation
of any such notice, and Executive shall have no further
obligation of any kind under or arising out of this
Agreement. Should a circumstance or event not within
the reasonable contemplation of the parties at the date
hereof arise on or before the date when the Committee
meets to award grants of the kind contemplated by
Section 3.5 that makes it inadvisable or undesirable in
the reasonable judgment of the Committee to grant to
Executive the awards contemplated by that Section, and
should the Committee and/or the Board of Directors of
the Corporation (as may be required) on or about such
date, because of such intervening circumstance or
event, instead bestow upon Executive benefits of
reasonably equivalent value and having comparable
vesting dates, Executive shall thereupon forego his
right of termination under the preceding sentence.
Termination of Executive's services under this Section
3.6 shall be treated as a termination of employment by
the Corporation other than for cause and shall be
governed by the provisions of Section 6.2.
4. Vacation.
Executive shall be entitled to four
weeks of paid vacation, or such greater amount, if
any, as provided in the policies of the Corporation
then applicable to Executive, each calendar year
during the period of his employment hereunder, to be
taken at times mutually agreeable to Executive and
the Corporation.
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5. Change of Position
5.1 At any time during the term of this
Agreement, or upon completion of Executive's first
term of employment hereunder on July 20, 1998,
Executive may, upon 90 days written notice to the
Corporation, request to be employed by the Corporation
(x) in a senior management position with less
responsibility than President and Chief Executive
Officer for a period of 24 months or (y) as an
internal consultant to management and/or the Board of
Directors of the Corporation (provided, that under
such consultancy the knowledge, skills and experience
of Executive would be generally available and
accessible to the Corporation in such a manner as
would continue to qualify him as an employee of
the Corporation) for a period of 24 months (either
(x) or (y), a "Change of Position"), and the
Corporation shall honor such request. In the event
of a Change of Position, the obligations of the
Corporation to Executive shall be limited to the
following:
5.1.1 Salary accrued to the effective date of
such Change of Position;
5.1.2 Continuation of base salary at the per
annum rate then in effect, for a period of 24 months
from the effective date of such Change of Position
(hereinafter the "Change Period"); and
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5.1.3 Coverage during such Change Period under
the employee benefit plans referred to in Section 3.4
or provisions for comparable benefits outside such
plans. Executive shall have no right to continued
employment with the Corporation beyond the Change
Period. The Board of Directors is not precluded
from, in its discretion, awarding Executive
supplemental bonus compensation based on the
contributions of Executive to the Corporation and the
performance of the Corporation during the Change
Period. Notwithstanding the foregoing, the
obligations of the Corporation to Executive under
this Section 5.1 shall not extend beyond July 20, 2000
without the consent of the Board of Directors of the
Corporation.
6. Termination of Employment By
Corporation.
6.1 The Corporation may terminate
Executive's employment hereunder at any time for cause
without further obligation or liability except as
hereinbelow stated in this Section 6.1. For purposes
of this Agreement, the term "cause" shall be limited to
the following grounds:
6.1.1 Executive's refusal to substantially
perform his duties or otherwise fulfill his material
obligations under this Agreement (for reasons other
than death or disability), in any such case after
due written notice thereof, or serious willful
misconduct in respect of his obligations hereunder;
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6.1.2 Conviction of a felony crime;
6.1.3 Perpetration of a fraud against the
Corporation or misappropriation of the Corporation's
property;
6.1.4 Habitual intoxication or illegal use of
habit forming substances; or
6.1.5 Knowingly making a material false
statement to the Corporation's Board of Directors or
management regarding the affairs of the Corporation.
In the event Executive's employment is terminated for
cause, no further payments of salary or benefits of
any kind or nature (except to the extent accrued to the
date of termination) shall be paid to Executive,
and Executive shall have no further claim against the
Corporation under the terms of this Agreement or
otherwise relating to his employment.
6.2 Corporation may terminate Executive's
employment hereunder at any time without cause. In the
event of such termination the obligations of the
Corporation to Executive shall be limited to the
following:
6.2.1 Salary accrued to the effective date of
such termination;
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6.2.2 Continuation of base salary at the per
annum rate then in effect, until July 20, 1998, and for
a period of 24 months thereafter (hereinafter the
"Severance Period");
6.2.3 The "target incentive amount" under any
executive annual incentive plan established by the
Corporation for a fiscal year ending during the
Severance Period, and the same "target incentive
amount" for any such executive annual incentive plan,
pro-rated to the end of the Severance Period, for a
fiscal year commencing during but ending after the
Severance Period, or the equivalent under any bonus or
variable compensation plan which may hereafter be
adopted by the Corporation in lieu of such executive
annual incentive plan;
6.2.4 The value of the "payout amount," in
cash, for any executive long term incentive plan
established by the Corporation, the plan cycle of which
ends within 12 months after the effective date of
termination, pro-rated to the date of termination;
6.2.5 Lapse of restrictions on any outstanding
restricted stock awards granted under any executive
long term incentive plan established by the
Corporation, but not vested on the effective date of
termination, or at the Corporation's option, the cash
value of the restricted stock forfeited under such
awards based on "fair market value" on the effective
date of termination; and
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6.2.6 Coverage during such Severance Period
under the following employee benefit plans or
provisions for comparable benefits outside such plans,
but only to the extent comparable coverage is not
provided by any new employer: (1) Group Health
Insurance Program; (2) Long-Term Disability Plan (as
provided under such Plan, the Executive shall be
required to pay the premium); (3) Group Life and
Accidental Death and Dismemberment Insurance (at the
levels in effect at the date of termination of
employment, taking into account any waiver of coverage
under the Corporation's Supplemental Executive
Retirement Program).
For purposes of Section 6.2.5, the "fair market
value" shall be the mean between the bid and asked
prices at which the Common Stock is quoted in the over-
thecounter market on the effective date of
termination as reported by NASDAQ or any successor
thereto. If no such quotations are available on
such date, the most recent date, within a
reasonable time, upon which such quotations
are available shall be used. If at any time Common
Stock shall be listed on a national securities
exchange, the mean between the highest and lowest
prices at which the Common Stock is traded on such
exchange on such date shall be used. If there is
no sale of the Common Stock on such
exchange on such date, the mean between the bid and
asked prices on such exchange at the close of the
market on such date shall be deemed to be the fair
market value of the Common Stock.
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Executive shall not be required to
seek other employment during such Severance Period, but
in the event Executive renders personal services
during such period to any person or firm other than
the Corporation, whether as an employee, a partner
or as a self-employed individual and earns income
(whether or not then payable) attributable to the
performance of such personal services during either
the 12 month period commencing on the date of
termination of employment or the next succeeding 12
month period in excess of $75,000 per such 12 month
period, (i) Executive shall notify the Corporation, in
accordance with Section 10.3 hereof, within 15 days of
the commencement of such employment, and (ii) the
amount of salary which the Corporation would
otherwise be required to pay Executive during such
12 month period shall be reduced dollar for dollar
by such excess amount. If as a result of
Executive's accruing such income, the Corporation
has overpaid Executive, Executive shall promptly
reimburse the Corporation for the amount of such
overpayment.
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6.3 Executive agrees that the payments
described in Section 6.2 shall be full and adequate
compensation to Executive for all damages he may
suffer as a result of the termination of his
employment pursuant to Section 6.2, and hereby waives
and releases the Corporation from any and all
obligations or liabilities to Executive arising from or
in connection with Executive's employment with the
Corporation or the termination of his employment
including, without limitation, all rights and claims
Executive may have under the Corporation's severance
policy and federal, state or local statutes,
regulations or ordinances or under any common law
principles of breach of contract or the covenant of
good faith and fair dealing, defamation, wrongful
discharge, intentional infliction of emotional distress
or promissory estoppel; provided, however, that any
rights and benefits Executive may have under the
employment benefit plans and programs of the
Corporation, including, without limitation, the
Corporation's Supplemental Executive
Retirement Program, in which Executive is a
participant, shall be determined in accordance with
the terms and provisions of such plans and
provisions.
6.4 If Executive voluntarily resigns from
all employment with the Corporation, the Corporation
shall have no further obligation to Executive except
for salary accrued to the effective date of such
resignation.
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6.5 In the event the Corporation terminates
Executive's employment, whether with or without cause,
or in the event of Executive's voluntary resignation
from all employment with the Corporation, Executive if
so requested by the Corporation shall assist in the
orderly transfer of authority and responsibility to his
successor.
7. Death or Disability.
7.1 In the event of the death of Executive
during the term of employment under this Agreement
or during the period when payments are being made
pursuant to Section 6.2.2, this Agreement shall
terminate and all obligations to Executive shall
cease as of the date of death except that the
Corporation will pay the then base salary under
Section 3.1 until the end of the month in which
Executive dies, and except for any rights and benefits
of Executive under the benefit plans and programs of
the Corporation including, without limitation, the
Supplemental Executive Retirement Plan in which
Executive is a participant, as determined in
accordance with the terms and provisions of
such plans and programs. The payout under the EAIP,
or equivalent, for the fiscal year in which Executive's
death occurs, shall be annualized and paid at the
normal time to Executive's estate pro rata to the
date of death. The value of the "payout amount,"
in cash, for any executive long term incentive plan
established by the Corporation, the plan cycle of
which ends within 12 months after the date of
Executive's death, shall be paid at the normal time to
Executive's estate.
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7.2 In the event that Executive shall become
entitled to salary continuation payments under the
Corporation's Group Long-Term Disability Insurance Plan
or under any generally similar plan then in effect, the
Corporation may, at its option, terminate the
employment of Executive hereunder without further
obligation or liability on the part of the Corporation
under the terms of this Agreement.
8 Restricted Covenant.
8.1 In consideration of the Corporation
entering into this Agreement, Executive shall
not, directly or indirectly, until July 21, 2000
(unless compliance herewith is excused pursuant to
Section 8.2), be employed by, render services to or
participate in the management, operation or control
of, or serve as advisor or consultant to or
otherwise become financially interested (other than
by passive ownership of securities constituting less
than one percent (1%) of such class of securities in
any one case) in any business of the same nature
as that now (or hereafter during the term of this
Agreement) carried on by the Corporation or any of
its subsidiaries (a "Restricted Business").
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8.2 Should a Change of Control (as defined
in the Corporation's Supplemental Executive Retirement
Plan) occur during the term of employment and should
the Executive terminate his employment for "Good
Reason" (as defined in said Plan) within a period of 18
months following such Change of Control such
termination by Executive shall constitute a waiver by
the Corporation of the restrictive covenant set forth
in Section 8.1 and Executive shall have no further
obligation to comply with its terms.
8.3 Executive acknowledges and agrees that
in the event of any violation of the restrictive
covenant set forth in Section 8.1, the Corporation
shall be authorized and entitled to obtain from any
court of competent jurisdiction temporary, preliminary
or permanent injunctive relief as well as an equitable
accounting of all profits or benefits arising out of
such violation and any damages for the breach of this
Agreement which may be applicable. The aforesaid
rights and remedies shall be independent, severable and
cumulative and shall be in addition to any other rights
or remedies to which the Corporation may be entitled.
8.4 The restrictions contained in this
Section 8 are intended to be reasonable. In the event
that any restriction contained herein is held by any
court of competent jurisdiction or arbitrator to be in
any respect unreasonable, the court so holding may
limit the territory to which it pertains or the period
of time in which it operates, or affect any other
change to the extent necessary to make it enforceable.
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The remaining provisions shall not be affected, but
shall, subject to the discretion of such court, remain
in full force and effect and any invalid and
unenforceable provision shall be deemed without further
action on the part of the parties hereto modified,
amended and limited to the extent necessary to render
the same valid and enforceable to the maximum extent
permissible.
8.5 Executive shall hold in a fiduciary
capacity for the benefit of the Corporation all
confidential information, knowledge and data relating
to or concerned with the Corporation's products,
operations, sales, business and affairs which are
proprietary and not readily ascertainable from trade
sources or other publicly available data, and he shall
not, at any time hereafter, use, disclose or divulge
any such confidential information, knowledge or data to
any person, firm or corporation other than to the
Corporation, its subsidiaries or its designees or
except as may otherwise be required in connection with
the business and affairs of the Corporation. A breach
of Executive's obligations hereunder shall entitle the
Corporation to seek injunctive or equitable relief
and/or damages from any court of competent
jurisdiction.
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9. Change of Control Agreements.
It is understood and agreed that none
of the benefits accruing to Executive under the 1991
Key Employee Stock Option Plan or Supplemental
Executive Retirement Plan resulting from a "change of
control" shall derogate from the rights granted to
Executive under this Agreement, and the rights
granted to him thereunder shall, subject to the
triggering events thereof, be supplementary to and not
in substitution for his rights hereunder.
10. General.
10.1 Subject to Section 8.2 and Section 9
hereof, this Agreement constitutes the entire
agreement concerning Executive's employment, and no
amendment or modification hereof shall be valid or
binding unless made in writing and signed by the
party against whom enforcement thereof is sought.
10.2 The provisions of Section 8 hereof shall
survive the termination or expiration of this
Agreement.
10.3 Any notice required, permitted, or
desired to be given pursuant to any of the provisions
of this Agreement shall be deemed to have been
sufficiently given or served for all purposes if
delivered in person or sent by registered or certified
mail, return receipt requested, postage and fees
prepaid, as follows:
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If to the Corporation, at:
605 Third Avenue
New York, New York 10158
Attention: W. Bradford Wiley II
with a copy to:
Richard S. Rudick, Esq.
John Wiley & Sons, Inc.
605 Third Avenue
New York, New York 10158
If to Executive, at:
300 East 54th Street
Apartment 34K
New York, New York 10022
Either of the parties hereto may at any time and from
time to time change the address to which notices shall
be sent hereunder by notice to the other party.
10.4 No course of dealing or any delay on the
part of the Corporation or Executive in exercising
any rights hereunder shall operate as a waiver of any
such rights. No waiver of any default or breach of
this Agreement shall be deemed a continuing waiver of
any other breach or default.
10.5 This Agreement relates to services to be
performed principally in, and accordingly shall
be governed, interpreted and construed in accordance
with the laws of the State of New York.
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10.6 If any provision or part of this
Agreement shall be held or declared to be void,
invalid or illegal for any reason by any court of
competent jurisdiction, such provision or part shall
be ineffective but shall not in any way invalidate or
affect any other provision or part of this
Agreement.
10.7 This Agreement, and the respective
rights and obligations of the parties hereunder, shall
inure to the benefit of, and shall be binding upon,
the Corporation and its successors and assigns.
10.8 Should there arise any claim, dispute or
controversy relating to this Agreement, or the
breach thereof, the parties shall use their best
efforts and good will to settle such claim,
dispute or controversy by amicable negotiations.
Except as provided in Sections 8.2 and 8.4, any such
claim, dispute or controversy that arises between the
parties relating to this Agreement that is not
amicably settled shall be resolved by arbitration,
as follows.
10.8.1 Any such arbitration shall be heard in
New York, New York, before a panel consisting of one
(1) to three (3) arbitrators, each of whom shall be
impartial. Except as the parties may otherwise agree,
all arbitrators shall be appointed in the first
instance by the President of the Association of the
Bar of the City of New York or, in the event of
his unavailability by reason of
disqualification or otherwise, by the Chairman of
the Executive Committee of the Association of the Bar
of the City of
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New York. In determining the number and
appropriate background of the arbitrators, the
appointing authority shall give due consideration to
the issues to be resolved, but his decision as to the
number of arbitrators and their identity shall be
final. Except as otherwise provided in this
Section 10.8, or as the parties may otherwise
agree, arbitration hereunder shall be governed by the
rules of the American Arbitration Association, as they
then exist.
10.8.2 An arbitration may be commenced by any
party to this Agreement by the service of a written
Request for Arbitration upon the other affected
parties. Such Request for Arbitration shall summarize
the controversy or claim to be arbitrated, and shall
be referred by the complaining party to the
appointing authority for appointment of arbitrators
ten (10) days following such service or
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thereafter. If the panel of arbitrators is not
appointed by the appointing authority within
thirty (30) days following such reference, any party
may apply to any court within the State of New
York for an order appointing arbitrators qualified
as set forth below. No Request for Arbitration shall
be valid if it relates to a claim, dispute,
disagreement or controversy that would have been time
barred under the applicable statute of limitations had
such claim, dispute or controversy been submitted to
the Supreme Court of the State of New York.
10.8.3 All attorneys' fees and costs of the
arbitration shall in the first instance be borne by
the respective party incurring such costs and fees,
but the arbitrators shall have the discretion to award
costs and/or attorneys' fees as they deem
appropriate under the circumstances. In addition
to the waiver set forth in Section 6.3 above, the
parties hereby expressly waive punitive damages, and
under no circumstances shall an award contain any
amount that in any way reflects punitive damages.
10.8.4 Judgment on the award rendered by the
arbitrators may be entered in any court having
jurisdiction thereof.
10.8.5 It is intended that claims, disputes or
controversies submitted to arbitration under this
Section 10.8 shall remain confidential, and to that
end it is agreed by the parties that neither the
facts disclosed in the arbitration, the issues
arbitrated, nor the views or opinions of any persons
concerning them, shall be disclosed to third persons
at any time, except to the extent necessary to
enforce an award or judgment or as required by law or
in response to legal process or in connection with
such arbitration.
IN WITNESS WHEREOF, the parties hereto have
caused this Agreement to be duly executed as of the day
and year first above written.
JOHN WILEY & SONS, INC.
Date: March 31, 1995
By /s/ W. Bradford Wiley II
Chairman of the
Board of Directors
/s/ Charles R. Ellis