Transition and Consulting Agreement
Effective as of July 1, 2021 (the “Effective Date”), Xxxx Xxxxx & Sons, Inc. (“Wiley”) and The Xxxxxxx Group LLC (“Xxxxxxx” or “you”) have agreed to enter into this Transition and Consulting Agreement (“Transition Agreement”), setting
forth the terms and conditions under which Xxxxxxx shall provide certain post-employment transition and consulting services that are described below (the “Services”).
1. Transition Period: Effective June 30, 2021, Kissner’s prior employment with Wiley as Group Executive Vice President terminated. Xxxxxxx will provide consulting and transition services to Wiley, on an as-needed basis, beginning no earlier
than July 1, 2021 and continuing through September 30, 2021 (“Consulting Period”). The parties further agree that by mutual written agreement they may choose to extend the Consulting Period for consecutive thirty (30) day periods. Such
agreement(s) shall be entered into no later than thirty (30) days from the expiration of the current expiration date of the Consulting Period. Acknowledgement of this agreement may be provided and communicated by email or other writing. During
the Consulting Period, Xxxxxxx will make himself available to provide consulting services within his area of expertise and, as requested by Wiley. Such Services will consist of providing services or briefing information regarding any matters for
which Xxxxxxx had responsibility during his employment. Xxxxxxx shall exercise the highest degree of professionalism and utilize his expertise and creative talents in performing the Services. In connection with the provision of the Services,
Xxxxxxx will be provided with support from a Wiley Executive Assistant.
2. Independent Contractor Status. During the Consulting Period, Xxxxxxx agrees and understands that his status will be that of an independent contractor and not an employee. Xxxxxxx shall have no authority to bind Wiley to any
contractual obligations, whether written, oral or implied. No payments under this agreement shall be deemed to be compensation or salary to you and Xxxxxxx acknowledges and understands that during the Consulting Period, he will not be entitled to
any of the benefits offered by Wiley to its employees, such as group insurance, workers compensation insurance coverage or retirement benefits, other than those set forth in this Agreement, the Separation Agreement and Release Agreement or
otherwise provided by law. As an independent contractor, Xxxxxxx is solely liable for payments of any applicable income taxes and Wiley will not withhold any amounts from Kissner’s fee for this purpose. Xxxxxxx agrees not to hold himself out as,
or give any person reason to believe, that he is an employee, agent, or partner of Wiley.
3. Fee and Schedule. In consideration for the Services set forth above, Wiley agrees to pay
Xxxxxxx, on a retainer basis, the amount of $20,000, on or about the first day of each month from July 1, 2021 through September 30, 2021. This retainer payment is
intended to pay for 3 months of Kissner’s transition and consulting Services. The parties do not intend that Xxxxxxx will work more than one (1) 8-hour day per week. In the event the Company requires and requests Kissner’s services more
than one (1) 8-hour day per week, Xxxxxxx will invoice Wiley for those additional services at the rate of $5,000 per 8-hour day. The parties likewise do not intend that Xxxxxxx will work more than twenty percent (20%) of the average time that he
worked over the 36 month period ending on June 30, 2021 and, accordingly, it is intended that he has a “separation from service” for purposes of Internal Revenue Code Section 409A. Xxxxxxx acknowledges and agrees that he will receive an IRS Form
1099-Misc from Wiley and shall be solely responsible for all federal, state and local taxes.
4. Expenses. In addition to the retainer specified in Paragraph 3, Xxxxxxx will be provided with reimbursement for any reasonable expenses, connected with his consulting services, for such items as meals, tolls, travel expenses and hotel charges. Payment for
such expenses will be made based upon itemized expense records and supporting receipts (for expenses exceeding $25.00 each) submitted by Xxxxxxx to Wiley and will be promptly paid, but in any event no later than the end of the calendar year
following the calendar year in which the expense was incurred.
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5. Other Employment. During the Consulting Period Xxxxxxx will be free to pursue other employment or consulting engagements with third parties and/or render services to others, whether or not such services are performed in a consulting capacity,
provided that Xxxxxxx does not compete with Wiley (as that term is defined in paragraph 7(B) of Kissner’s Separation and Release Agreement) or provide such services which may interfere with or create a possible conflict of interest with respect to
timely completion of the services to Wiley that are provided for by this Agreement. Nothing contained herein relieves Xxxxxxx of his obligations set out in Paragraph 7(B) of the Separation Agreement and General Release between Xxxxxxx and Wiley.
6. Intellectual Property. Xxxxxxx agrees that all materials, including but not limited to
writings, documents, summaries or other matters provided, created or written by him or by Wiley in the course of performing the Services hereunder, shall be and remain the sole and exclusive property of Wiley and considered a work made for hire on
behalf of Wiley and Wiley shall own the copyright and all the rights comprised in the copyright for the Materials. To the extent the materials do not qualify as a work made for hire, Xxxxxxx hereby conveys, transfers and assigns to Wiley all
right, title and interest (including copyright) in and to the materials including the right, by itself or with others, throughout the universe, to print, publish, republish, transmit and distribute the materials and to prepare, publish, transmit
and distribute derivative works based on the Materials, in all languages and in all media of expression now known or later developed, and to license or permit others to do so. Wiley shall have the right to make alterations to the Materials. In the
event Wiley has approved Kissner’s use of subcontractors in the creation of the Materials, Xxxxxxx shall obtain a transfer of rights equivalent to the rights granted in this agreement from each subcontractor on Wiley’s behalf.
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(a)
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Confidentiality. Xxxxxxx
agrees that during the Consulting Period and thereafter, he shall regard as confidential and proprietary all of the information communicated to him by Wiley or its affiliates in connection with his performance of Services under this
Agreement (which information shall at all times be the property of Wiley or its affiliates) or information developed by him in the course of performing the Services. Xxxxxxx shall use the Confidential Information solely as necessary to
perform the Services and shall not use any Confidential Information for his own benefit or the benefit of any third party or in such a way as to obtain commercial advantage over Wiley. Xxxxxxx shall use reasonable efforts to protect the
Confidential Information from disclosure including keeping any electronic copies of the Confidential Information (including the Materials) on a password protected computer and not storing it on any network. Upon conclusion of the Services
or upon Wiley’s request, you shall return or destroy all Confidential Information (and shall provide a certificate of destruction upon Wiley’s request).
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i.
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In performing the Services under this agreement, Xxxxxxx represents and warrants that it will observe and comply with all
applicable current and future (1) data privacy laws and (2) security laws. Xxxxxxx shall (i) process personal data in accordance with Wiley’s instructions and only to fulfill Kissner’s obligations under this agreement; (ii) ensure persons
authorized to process personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality; and (iii) maintain effective information security measures to protect personal data from
unauthorized disclosure or use.
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8. No minimum work/exclusivity. Xxxxxxx agrees that Wiley is not required to provide any
minimum amount of work or payment to the Xxxxxxx over and above the aforementioned $20,000 monthly fee and that Wiley may engage other individuals or companies to provide similar services.
9. General. This agreement is for your personal services. Neither this agreement nor any of Kissner’s obligations may be assigned without Wiley’s prior written consent. Subject to the foregoing, this agreement shall be
binding on and inure to the benefit of the subsidiaries and assigns of the parties. As used herein, “including” means “including without limitation” and is not a limiting term. This agreement constitutes the entire understanding between the
parties with respect to the subject matter set forth herein. This agreement may not be changed in whole or in part except by written agreement of the parties. No waiver by either party of any provision of this agreement shall constitute a
continuing waiver of such provision or a waiver of any other provision of this agreement. Any waiver must be in writing. All notices shall be sent in writing to the addresses set forth above (or such other address as a party advises in writing),
with a copy of any notice to Wiley sent to Xxxx Xxxxx & Sons, Inc., 000 Xxxxx Xxxxxx, Xxxxxxx XX 00000 Attn: EVP & General Counsel. All notices will be deemed given on the earlier of (a) actual receipt, or (b) the next business day after
deposit by overnight courier service, or (c) the next business day after deposit by certified mail.
10. Governing Law and Dispute Resolution.
This agreement and any dispute arising out of or in connection with it (including non-contractual
disputes or claims) will be governed by the laws of, and without regard to conflict of law rules or rules requiring construction against the drafter, the State of New York, and any dispute must be brought within a court of competent jurisdiction
within New York, New York.
This agreement and any dispute arising out of or in connection with it (including non-contractual disputes or claims) will be governed by the laws of the
country as set out below, which correspond to the Wiley entity which has entered into this agreement, without regard to any conflict of law rules requiring construction against the drafter:
Each party hereby consents and submits to the exclusive jurisdiction of such forum and waives any objection to venue in such nominated forum.
11. Data Protection You acknowledge that, during the term of
this agreement and thereafter (for as long as necessary), Wiley and its licensee and subcontractors may process your personal data, including storing or transferring data outside of the country of your residence, to process transactions related to
this agreement and to communicate with you and that Wiley has a legitimate interest in processing your data. By entering into this agreement, you agree to the processing of your personal data. Wiley shall comply with all applicable laws, statutes
and regulations relating to data protection and privacy and shall process such personal data in accordance with Wiley’s Privacy Policy located at: xxxx://xxx.xxxxx.xxx/xx/xxxxxxx.
[Signature Page Follows]
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ACCEPTED AND AGREED:
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Xxxx Xxxxx & Sons, Inc.
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| /s/ Xxxxxxx Xxxxxxx |
By: /s/ Xxxxxxxx XxXxxxx
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The Xxxxxxx Group LLC
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Xxxxxxxx XxXxxxx
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EVP and Chief People Officer
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| June 11, 2021 |
June 15, 2021 |
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Date
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Date
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