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EXHIBIT 10.5
LIGHTHOUSE PUBLISHING GROUP, INC.
PUBLISHING AGREEMENT
This AGREEMENT is effective the 1st day of March 0000, xxxxxxx Xxxx X.
Xxxx xx Xxxxxxx, Xxxxxxxxxx (hereinafter called the Author) and Lighthouse
Publishing Group, Inc. , whose principal place of business is at 00000
Xxxxxxxxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxxx, 00000-0000, (hereinafter called
the Publisher).
X. XXXXX OF The Author hereby grants, assigns, and transfers to the
RIGHTS Publisher the following exclusive rights and privileges to
and in connection with a Work, presently entitled Bear
Market Balony which Work is a book.
A. The sole and exclusive book publication rights in
the United States, its territories, dependencies, and
possessions, the Republic of the Philippines, and Canada,
and the right to sell copies of the Work in the open market
throughout the world.
B. The sole and exclusive subsidiary publication and
performance rights set forth in Article VIIA below. These
subsidiary publication and performance rights are granted to
the Publisher for the United States, its territories,
dependencies, and possessions, the Republic of the
Philippines, and Canada, and include the right to authorize
others to exercise in any foreign country any of the rights
granted to the Publisher.
II. COPYRIGHT It is understood and greed that the copyright shall be
secured by the Publisher in the name of the book and the
Publisher is hereby authorized to take all steps required to
secure such copyright in the United States of America. The
Publisher agrees to print an appropriate copyright notice in
each and every copy of the published work and to require all
parties to whom it grants licenses in connection with the
work to do the same. The party in whose name copyright is
registered shall hold for the benefit of the other such
rights as the equities hereby created may prescribe. Unless
it specifically agrees to do so in writing, the Publisher
shall not be responsible for securing any copyright outside
the United States of America.
III. MANUSCRIPT The Author agrees to deliver to the Publisher not
later than March 28, 1997 three finally revised copies of
the manuscript, approximately 70,000 words in length,
satisfactory in form, style, and content and acceptable to
the Publisher in its sole judgment and discretion.
FORM OF A. Unless otherwise agreed in writing, the Author
MANUSCRIPT shall furnish promptly and free of charge to the Publisher,
complete and ready for reproduction, all drawings, maps,
photographs, charts and designs which are a part of or
necessary to the text. If the Author fails to supply any
necessary drawings, maps, photographs, charts and designs in
satisfactory form and within the specified time, the
Publishers shall have the right to have them made and the
charges and expenses of making them shall be paid for by the
Author.
B. The Publisher may, at his discretion, cause an
index to be made of the work and charge the cost thereof
against any sums due the Author hereunder.
AUTHOR C. The provisions as to satisfaction and acceptability
COMPLIANCE to the Publisher and time of delivery of such copy are
material terms of this agreement and upon the Author's
failure to comply with any of such provisions, the Publisher
may at its option by written notice to the Author terminate
this agreement, whereupon the Author shall return to the
Publisher all amounts which it may have advance to him. In
such event, if the manuscript should be completed
subsequently, the Author shall nevertheless be obligated to
offer the same to the Publisher, which at its option, shall
have the right to publish the same upon the terms of the
agreement.
CORRECTIONS D. If the Publisher is directed by the Author to make
alterations in any proofs from final copy as delivered,
which shall cost more than ten percent of the cost of
composition of the Work, the Author agrees to pay said
excess. The Author shall pay in full for any corrections in
the plates which
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he requires or which are necessary for the correction of
actual errors after the plates have been made in conformity
with the last proof as corrected by the Author. The
Publisher shall upon request keep the Author informed of
such excess charges.
SUBSEQUENT E. When the Publisher considers it necessary, it shall
REVISIONS have the right in its sole discretion to call upon the
Author to revise the Work, and the Author shall make such
revisions. The provisions of this agreement shall apply to
revision of the Work by the Author as though any such
revision were the original Work being published for the
first time, except that the manuscript of the revised Work
shall be delivered in final form by the Author to the
Publisher within a reasonable amount of time; further, no
initial payment shall be made in connection with such
revision. Should the Author not provide the revision within
a reasonable time, or should the Author be deceased, the
Publisher may have the revision done and charge the cost of
such revision against royalties due or that may become due
the Author, and may display in the revised Work, and in
advertising, the name of the person or persons who revised
the Work.
RETYPING F. If in the opinion of the publisher it is
considered expedient to have the manuscript retyped in as
many copies as shall be necessary, the cost of such retyping
shall be borne by the Author.
PUBLISHER'S G. The Publisher shall be free to prepare the
DETERMINA- manuscript of the Work for the printer in such manner as
TION shall be consistent with their publishing house style. All
details as to the manner of publication, distribution and
advertising, including the format and price of the Work in
its manufactured form and the number and distribution of
free copies, shall be left to the sole discretion of the
Publisher.
H. The Publisher will use the same care in protecting
the manuscript and other material supplied to it hereunder
as is its customary practice in protecting similar material
in its possession, but it shall not be liable for damages,
if any, resulting from the loss or destruction of such
materials or any part thereof.
IV. ADVANCE The Publisher will pay to the Author as an advance
payment against all monies accruing to the Author under this
agreement the sum of: None
V. ROYALTIES A. The Publisher shall pay to the Author the following
royalties on regular net sales, other than sales falling
within (B) through (F) below on the Retail selling price of
each copy sold: 10% on all copies sold.
LIMITED B. The Publisher shall pay the Author one half of the
REPRINT stipulated royalty, as stated above, on all copies sold from
EDITION a reprinting of 3,500 copies or less, made after one year
from the date of the first publication, this reduced royalty
being provided by reason of the increased cost of
manufacturing of small reprintings, to enable the Publisher
to keep the Work in print and circulation as long as
possible.
SALE OF C. Where sheets are sold, except as a remainder, the
SHEETS percentage of royalty shall be the same as for bound books
and shall be calculated on the net amount received by the
Publisher.
FREE COPIES D. No royalties shall be paid on copies furnished
gratis to the Author, or for review, advertising, samples or
like purposes.
EXCERPTS E. The Author grants sole and exclusive rights to the
PERMISSIONS Publisher in the exercise of its discretion, to grant
permission to publish extracts from the Work, whether or not
a fee shall be collected on the Work for such use, the
Publisher warranting to make no gratuitous grants of
permissions, except as shall, in its estimate, advance the
sale of the Work or enhance the public esteem of the Author;
the Publisher shall pay to the Author one half of all sums
of money received as compensation for such grants of
permission to reprint extracts.
The Publisher is authorized to permit publication of
the Work in Braille, or photographing, recording and/or
microfilming the Work for the physically handicapped without
payment of fees and
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without compensation to the Author, providing no
compensation is received by the Publisher. In case a
compensation is received, the Publisher shall pay the Author
fifty percent (50%) of the proceeds.
VI. REMAINDERS - A. If, in the opinion of the Publisher, the Work shall
OVERSTOCK Publisher may at its option sell part or all of the
remaining copies as "remainders" after first informing the
Author of its intention to do so.
B. The Author shall receive a royalty of ten percent
of the amount of the Publisher's sale price secured over the
cost of production for all copies of overstock which the
Publisher deems it expedient to sell at "remainder" prices,
i.e., at less than half of the catalog retail price, except
when these are sold at or below cost, in which case no
royalty shall be paid.
VII. SUBSIDIARY A. The further and additional rights referred to in
RIGHTS this agreement are hereby defined to include the rights
enumerated below, and are to be shared by the Author and the
Publisher in the percentage indicated, less only such direct
expenses, including agent's commissions, as shall be
incurred by the Publisher in disposing of such rights:
To Author To Publisher
1. Abridgment, condensation, or digest.............. 50% 50%
2. Anthology or quotation........................... 50% 50%
3. Book clubs or similar organizations.............. 50% 50%
4. Reprint.......................................... 50% 50%
5. Special editions................................. 50% 50%
6. Second serial and syndication (including
reproduction in compilations, magazines,
newspapers, or books)............................ 50% 50%
B. All revenue derived from the sale of rights not
specifically enumerated, whether now in existence or
hereinafter coming into existence, shall be shared equally
by the Author and the Publisher.
C. All such rights shall be disposed of by the sale,
lease, license, or otherwise by the Publisher who for that
purpose is constituted the attorney-in-fact of the Author.
The Author agrees to sign, make, execute, deliver and
acknowledge all such papers, documents and agreements as may
be necessary to effectuate the grants hereinabove
contemplated. In the event that the Author shall fail to do
so, they may be signed, executed, delivered and acknowledged
by the Publisher as the attorney-in-fact of the Author with
the same full force and effect as if signed by the Author.
All sums due under this Agreement shall be paid to the
Author's agent Money Chef, Inc. or other designated agent.
whose receipt shall be a full and valid discharge of the
Publisher's obligations and who shall act with the authority
of the Author in all matters arising out of this agreement.
IX. PUBLICATION The Publisher, in consideration of the rights granted,
DATE agrees to publish the work at its own expense, in such style
or styles as the Publisher deems most advisable, not later
than 3 months after the Publisher's acceptance of the final
revised manuscript (except on account of late delivery of
manuscript by the Author, strikes, fires, other
contingencies beyond the control of the Publisher or its
suppliers, or advisability of postponement because of
prospective advantageous trade conditions, in which event
publication shall be postponed.)
XI. AUTHOR'S A. The Author represents and warrants to the
WARRANTY Publisher: (a) that the work is original; (b) that he is the
sole author and proprietor thereof, and has full power to
enter into this agreement; c) that the work has not
heretofore been published in whole or part in volume form
and that he has not entered into or become subject to any
contract, agreement or understanding with respect thereto
other than this agreement; (d) that if published it will not
infringe upon any proprietary right at common law, or any
statutory copyright, or any other right whatsoever; and (e)
that it is innocent and contains no matter whatsoever that
is obscene, libelous, in violation of any right of privacy
or otherwise in contravention of law. The Author shall
indemnify and hold harmless the Publisher against any damage
or judgment, including court costs and attorneys' fees,
which may be sustained or recovered against the Publisher by
reason of the publication or sale of the Work, arising from
anything contained therein. Author shall also reimburse the
Publisher for all expenses including court costs, attorneys'
fees and amounts paid in settlement, sustained by the
Publisher in resisting any claim, demand, suit, action or
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proceeding asserted or instituted against the Publisher
based upon the publication sale of the Work by reason of
anything contained therein.
PLAINTIFF B. The Author hereby grants to the Publisher the right,
ACTION if copyright is in the Author's name, to bring in the name
COPYRIGHT of the Author as plaintiff or complainant, any action or
ASSIGNMENT proceeding for the enjoining of an infringement of the
copyright in the said Work and for any damages resulting
therefrom, and the net amount recovered after deducting all
expenses of suit shall be divided equally between the Author
and Publisher. The copyright shall be assigned by either
party to the other on demand, when necessary for bringing,
defending or maintaining a copyright action under this
agreement, after the termination of which action the
copyright shall on demand be reassigned.
COMPETING C. The Author will not, without the written consent of
WORKS the Publisher, write, print, publish or produce, or cause to
be written, printed, published or produced, during the
continuance of this contract, any other edition of said Work
or any work in any form of a similar character or title
tending to interfere with or injure the sale of the Work in
any manner.
AUTHOR'S D. The Author agrees, in the event that the Author
PERMISSION plans to incorporate in the Work any writings or composition
previously published elsewhere, to obtain and deliver to the
Publisher proper and complete written permission and
authorization to reprint same from the owner of the
copyright covering same.
XII.
WITHDRAWAL In case the Publisher fails to keep said Work in print
OF WORK and for sale and after written demand from the Author,
declines or neglects to reprint the work within six months
and to offer it for sale, or in the event that, after one
year from the date of the first publication, the Work in the
opinion of the Publisher is no longer merchantable or
profitable, and it gives one month's notice to the Author of
its desire and intention to discontinue publication, this
contract shall terminate and all rights preserved, with any
plates of illustrations furnished by the Author and any
remaining copies and sheets shall be transferred to the
Author, provided that Author shall pay the manufacturing
costs (including composition) of such plates and the
manufacturing cost of such remaining copies or sheets, in
default of which payments the Publisher shall have the
rights to destroy any plates and to sell remaining copies or
sheets at cost of less, without payment of royalty to the
Author upon such copies or sheets. In case of the
termination of the contract, if the copyright is in the name
of the Publisher it shall assign said copyright to the
Author.
The Work shall not be considered to be out of print if
it is on public sale in any printed edition, in the United
States, or if there shall be in existence a contract for
cheap edition publication which provides for publication
within six (6) months after the work is out of print in the
regular edition.
XIII.
BANKRUPTCY A. If a petition in bankruptcy (as distinguished from
reorganization or arrangement) shall be filed by the
Publisher, or shall be filed against the Publisher and
finally sustained, the Author shall have right to buy back,
at his option, to be exercised in thirty days, the rights of
publication at their fair market value, to be determined by
agreement, together with any plates or remaining copies of
sheets, at their fair market value, this also to be
determined by agreement, and thereupon this contract shall
terminate. However, no reversion of rights under this clause
shall take place until after the Author has repaid to the
Publisher any indebtedness incurred by him and still
outstanding under this agreement. If this agreement contains
a clause of option on future books by the Author, such
clause shall become null and void in event of the
Publisher's bankruptcy or receivership.
AUTHOR'S B. The Author, upon his written request, shall have the
EXAMINATION right to examine or cause to be examined through certified
public accountants the books of account of the Publisher
insofar as such books of account shall relate to the Work.
If such examination shall reveal errors of accounting (other
than those arising from an interpretation of this agreement)
amounting to a sum in excess of ten percent of the total
royalties earned in the period under examination to the
Author's disadvantage, the costs of such examination shall
be borne by the Publisher, otherwise such costs shall be
borne by the Author.
XIV. SEMI- The Publisher agrees to render semi-annual statements
ANNUAL of account to March 31st and September 30th of each year,
STATEMENTS on the succeeding July 1st and January 1st and to make
settlements in cash or about said last mentioned dates. In
making accountings, the Publisher shall have the right to
allow
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PAYMENTS for a reasonable reserve against returns and nonpayment of
invoices for copies billed out by the Publisher.
XV. AUTHOR'S The Publisher agrees to present to the Author 100 (one
COPIES hundred) free copies of said Work upon publication, and to
permit the Author to purchase from it further copies for its
own personal use, at a discount of forty percent off list
price. Author shall be billed directly for these copies, and
shall make payment therefor within 30 days of invoice date.
No consignment sales shall be made to Author. Author shall
not receive royalties on sales made to him.
XVI. All payments made by Publisher to the Author, whether
RECOVERABLE under this agreement or not, shall be chargeable against and
PAYMENTS recoverable from any or all monies accruing to the Author
under this contract and for all other contracts between the
parties or their assigns.
XVIII. TAX It is mutually agreed that State, Federal, and Foreign
WITHHOLDING taxes on the Author's earnings, when paid by the Publisher,
are proper charges against the Author's earnings due under
this agreement, and may be withheld by the Publisher.
XVIII. This agreement shall be binding upon and shall ensure
ASSIGNMENT to the benefit of the parties hereto, their successors,
assigns, executors, administrators and/or personal
representatives and may be assigned by either party hereto,
except that no assignment by the Author shall be valid
against the Publisher unless the Publisher has received
written notice therefrom from the Author and has consented
to the same in writing.
XIX. Any controversy or claim arising out of this agreement
ARBITRATION or the breach thereof shall be settled by arbitration in
accordance with rules then obtaining of the American
Arbitration Association, and judgment upon the award may be
entered in the highest court of the form, State or Federal,
having jurisdiction. Such arbitration shall be held in the
City of Seattle, Washington, unless otherwise agreed by the
parties. The Author may at his option, in case of failure to
pay royalties, refuse to arbitrate, and pursue his legal
remedies.
XX. NOTICES Any written notice required under any of the
provisions of this agreement shall be deemed to have been
properly served by delivery in person or by mailing the same
to the parties hereto at the addresses set forth above,
except as the addresses may be changed by notice in writing;
provided, however, that notices of termination shall be sent
by registered mail.
XXI. WAIVER A waiver of any breach of this agreement or of any of
the terms or conditions by either party thereto shall not be
deemed a waiver of any repetition of such breach or in any
wise affect any other terms or conditions hereof; no waiver
shall be valid or binding unless it shall be in writing, and
signed by the parties.
XXII. DELIVERY This agreement shall not be binding on either the
OF CONTRACT Publisher or the Author unless it is signed by both parties
and delivered to the Publisher within a period of two months
from the date of the agreement.
The changes, alterations and interlineations made in Articles VII, X, XVI of
this contract and the additional Articles numbered NONE made and added before
execution hereof.
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IN WITNESS WHEREOF, the parties hereto have hereunto affixed their
respective hands and seals the day and year first above written.
LIGHTHOUSE PUBLIISHING GROUP, INC.
/s/ XXXXXX XXXXXX /s/ XXXX X. XXXX
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By: Xxxxxx Xxxxxx Xxxx X. Xxxx, Author
6-26-97 6-26-97
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Date: Date:
/s/ XXXX XXXXX /s/ XXXXXXX XXXXXX
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Witness Witness
Name: Xxxx Xxxxx Name: Xxxxxxx Xxxxxx
6-26-97 6-26-97
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Date: Date:
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