Exhibit 10.9
PARTIES TO THE AGREEMENT TO ARBITRATE
Each of the following persons are parties to their own separate agreement with
John Wiley & Sons, Inc. in the form attached:
E. Cousens
T. King
S. Kippur
W. Pesce
R. Rudick
AGREEMENT TO ARBITRATE
AGREEMENT TO ARBITRATE (this "Agreement") made as of the 29th day of April,
2003, by and between John Wiley & Sons, Inc., a New York corporation, with
offices at 111 River Street, Hoboken, New Jersey 07030 (hereinafter referred to
as the "Company"), and (see above list) (hereinafter referred to as
"Executive").
The Company and the undersigned agree as follows:
1. Binding Arbitration
a. Executive and the Company hereby agree that any controversy or
claim arising out of or relating to the Employment Agreement
between Executive and the Company executed on the same date as
this Agreement, as it may be amended or extended from time to
time by the parties (the "Employment Agreement"), the employment
relationship between Executive and the Company, or the
termination thereof, including the arbitrability of any
controversy or claim, which cannot be settled by mutual agreement
will be finally settled by binding arbitration in accordance with
the Federal Arbitration Act (or if not applicable, the applicable
state arbitration law) as follows: Any party who is aggrieved
will deliver a notice to the other party setting forth the
specific points in dispute. Any points remaining in dispute
twenty (20) days after the giving of such notice may, upon ten
(10) days' notice to the other party, be submitted to arbitration
in New York, New York, to the American Arbitration Association,
before a single arbitrator appointed in accordance with the
Commercial Dispute Resolution Procedures and Rules of the
American Arbitration Association, as such procedures and rules
may be amended from time to time and modified only as herein
expressly provided. The arbitrator may enter a default decision
against any party who fails to participate in the arbitration
proceedings. Notwithstanding the foregoing, any controversy or
claim arising out of or relating to the Non-Competition and
Non-Disclosure Agreement between Executive and the Company,
executed on the same date as this Agreement, as it may be amended
from time to time (the "Non-Competition Agreement") shall not be
subject to this Agreement and shall be resolved only in
accordance with provisions of the Non-Competition Agreement.
b. The decision of the arbitrator on the points in dispute will be
final, unappealable and binding, and judgment on the award may be
entered in any court having jurisdiction thereof. The parties
agree that this Agreement has been entered by the parties to
rapidly and inexpensively resolve any disputes between them and
that this Agreement will be grounds for dismissal of any court
action commenced by either party with respect to this Agreement,
other than post-arbitration actions seeking to enforce an
arbitration award. In the event that any court determines that
this arbitration procedure is not binding, or otherwise allows
any litigation regarding a dispute, claim, or controversy covered
by this Agreement to proceed, the parties hereto hereby waive any
and all right to a trial by jury in or with respect to such
litigation.
c. Except as otherwise provided in this Agreement or by law, the
arbitrator will be authorized to apportion its fees and expenses
and the reasonable attorneys' fees and expenses of any such party
as the arbitrator deems appropriate. In the absence of any such
apportionment, the fees and expenses of the arbitrator will be
borne equally by each party, and each party will bear the fees
and expenses of its own attorney.
d. The parties will keep confidential, and will not disclose to any
person, except as may be required by law, the existence of any
controversy hereunder, the referral of any such controversy to
arbitration or the status or resolution thereof. In addition, the
confidentiality restrictions set forth in paragraph A(4) of the
Non-Competition Agreement shall continue in full force and
effect.
e. Executive acknowledges that prior to the signing of this
agreement Executive has had a sufficient opportunity to read and
has read the Commercial Dispute Resolution Procedures and Rules
of the American Arbitration Association, which are available on
the web site of the American Arbitration Association at
http://www.adr.org.
2. Waiver
Executive acknowledges that this agreement to submit to arbitration
includes all controversies or claims of any kind (e.g., whether in contract
or in tort, statutory or common law, legal or equitable) now existing or
hereafter arising under any federal, state, local or foreign law (except
for any claims or controversy arising out of the Non-Competition
Agreement), including, but not limited to, the Age Discrimination in
Employment Act, Title VII of the Civil Rights Act of 1964, the Civil Rights
Act of 1866, the Employee Retirement Income Security Act, the Family and
Medical Leave Act, the Americans With Disabilities Act, the New York State
Human Rights Law, the New York City Human Rights Law, and all similar
federal, state and local laws, and Executive hereby waives all rights
thereunder to have a judicial tribunal and/or a jury determine such claims.
3. Acknowledgement
Executive acknowledges that before entering into this Arbitration
Agreement, Executive has had the opportunity to consult with any attorney
or other advisor of Executive's choice, and that this Agreement constitutes
advice from the Company to do so if Executive chooses. Executive further
acknowledges that Executive has entered into this Agreement of Executive's
own free will, and that no promises or representations have been made to
Executive by any person to induce Executive to enter into this Arbitration
Agreement other than the express terms set forth herein. Executive further
acknowledges that Executive has read this Agreement and understands all of
its terms, including the waiver of rights set forth in paragraph 2 of this
Agreement immediately above. Executive may take up to twenty-one (21) days
from today to consider, sign and return this Agreement. In addition,
Executive may revoke this Arbitration Agreement after signing it, but only
by delivering a signed revocation notice to the Employer within seven
(7) days of signing this Agreement. Such a revocation shall constitute
a resignation from Executive's employment, and shall void the
Employment Agreement and the Non-Competition Agreement, except for
paragraph A(4) of the Non-Competition Agreement regarding Executive's
duty not to use or disclose confidential information, which shall remain
in full force and effect.
4. Miscellaneous
a. This Agreement together with the Employment Agreement and the
Non-Competition Agreement constitute the sole and entire
agreements and understandings between Executive and the Company
with respect to the matters covered thereby, and there are no
other promises, agreements, representations, warranties or other
statements between Executive and the Company in respect to such
matters not expressly set forth in these Agreements. These
Agreements supersede all prior and contemporaneous agreements,
understandings or other arrangements concerning the subject
matter thereof. These Agreements may not be changed or terminated
orally but only by an agreement in writing signed by the parties
hereto.
b. No course of dealing or any delay on the part of the Corporation
or Employee 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.
c. This Agreement shall be governed by, and construed in accordance
with federal law including the Federal Arbitration Act, and to
the extent that federal law is not applicable the laws of the
State of New York without regard to the choice of law rules of
any state or where Executive is in fact required to work.
d. If any provision or clause of this Agreement, or portion thereof,
shall be held by any court of competent jurisdiction or any
arbitrator to be illegal, void or unenforceable, the remainder of
such provisions shall not thereby be affected and shall be given
full effect, without regard to the invalid portion.
e. The obligations of Executive may not be delegated and, Executive
may not assign or otherwise transfer this Agreement or any
obligations hereunder. This Agreement and all of the Company's
rights and obligations under this Agreement may be assigned or
transferred by the Company to and may be assumed by and inure to
the benefit of any successor or other transferee of all or a
substantial part of the assets of the Company's business in which
Executive works.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered, effective as of the date first indicated above by a
duly authorized officer of the Company.
JOHN WILEY & SONS, INC.
Signed by all parties of agreement.