EXHIBIT 10.17
AGREEMENT made and entered into at New York, New York this 14th day of
May, 1996 by and between Princeton Publishing, Inc., a New York corporation,
whose place of business is at 00 Xxxx 00xx Xx., Xxx Xxxx, XX 00000-0000
(hereafter PUBLISHER) and KABLE NEWS COMPANY, INC., an Illinois corporation,
whose place of business is at Mount Morris, Illinois, with its executive
offices at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx (hereafter DISTRIBUTOR).
1. DEFINITIONS
(a) "Completion of Shipping" with respect to each issue of a Publication
shall mean the date the PUBLISHER's printer completed shipping all copies of
such issue to Distributor's Sales Outlets in accordance with DISTRIBUTOR's
shipping instructions as stated on the Printer's Completion Notice.
(b) "Cover Price" with respect to each issue of a Publication shall mean the
suggested retail selling price of such issue specified on the cover of each
copy thereof.
(c) "Distributor's Estimated Final Not Xxxxxxxx" with respect to each issue
of a Publication shall mean DISTRIBUTOR's estimate of what the Not Xxxxxxxx of
such issue will be at such time as when all Returns have been received from
Distributor's Sales Outlets.
(d) "Distributor's Sales Outlets shall mean customers of DISTRIBUTOR.
(e) "Net Xxxxxxxx" with respect to each issue of a Publication shall mean
Publisher's Gross Xxxxxxxx with respect to such issue, less Return Credits
with respect to such issue.
(f) "Off-Sale Date" with respect to each issue of a Publication shall mean
the On-Sale Date of such Publication's next issue, or such other date as
designated by PUBLISHER and agreed to by DISTRIBUTOR, that all copies of such
issue are scheduled to be removed from retail outlets for sale to the general
public.
(g) "On-Sale Date" with respect to each issue of a Publication shall mean
the date as designated by PUBLISHER that such issue is scheduled to be placed
in retail outlets for sale to the general public.
(h) "Printer's Completion Notice" with respect to each issue of a
Publication shall mean a notice delivered to DISTRIBUTOR and executed by an
appropriate representative of the printer of such issue, which shall certify
the specific number of copies of such issue shipped in accordance with
DISTRIBUTOR's instructions, and the date of completion of such shipping.
(i) "Publisher's Billing Price with respect to each issue of a Publication
shall mean the amount charged DISTRIBUTOR by PUBLISHER for each copy of such
issue distributed hereunder.
(j) "Publisher's Gross Xxxxxxxx" with respect to each issue of a Publication
shall mean the product of Publisher's Billing Price with respect to such issue
multiplied by the number of copies distributed hereunder in accordance with
the Printer's Completion Notice with respect to such issue.
(k) "Publication(s)" shall mean the title(s) listed on Schedule "A"
including any "one-shots," annuals or titles derived therefrom, as
amended from time to time to include any additional titles subsequently
covered by the terms hereof as provided herein or as provided by agreement of
the parties.
(1) "RDA" still mean a retail display allowance offered pursuant to a
PUBLISHER authorized program to retailer engaged in the sale of PUBLISHER'S
Publication(s) for (i) each copy sold of each Publication and/or (ii) a
specified position in a retailer sales fixture.
(m) "Returns" with respect to each issue of a Publication shall mean any and
all copies of such issue returned for credit by Distributor's Sales Outlets
pursuant to Paragraph 9 hereof and for which DISTRIBUTOR has issued such a
credit.
(n) "Return Credit" with respect to each issue of a Publication shall mean
the product of Publisher's Billing Price multiplied by the number of Returns
of such issue.
(o) "Territory" shall mean the United States of America and all its
possessions, all Army and Fleet Post Office designations, Canada and the rest
of the world.
2. GRANT OF RIGHTS.
PUBLISHER hereby gives and grants unto the DISTRIBUTOR, effective as of the
date of this Agreement and during the term hereof (and any renewal term
thereof) the sole and exclusive right to purchase from PUBLISHER and to resell
and distribute throughout the Territory, the Publication(s) of PUBLISHER,
except that PUBLISHER reserves the right to sell copies thereof to individual
subscribers at subscription prices. Al purchases shall be subject to
DISTRIBUTOR's right to receive Return Credits for Returns as set forth in
Paragraph 9 hereof. This grant of rights shall survive the sale, assignment,
transfer or other disposition of PUBLISHER's rights in and to the
Publications, or the failure to publish same.
3. TERM.
(a) The term of this Agreement shall be for a period of four (4) years
from the On-Sale Date of the first issue distributed hereunder and shall
include all issues of all Publications whose scheduled On-Sale Date(s) are
prior to the expiration of such Period. This Agreement shall automatically
continue for successive terms of equal length thereafter unless either party
hereto shall give written notice of its intention to terminate ("Notice of
Termination") no less than ninety (90) days prior to the last day of any such
term; such Notice of Termination to be sent by certified mail, return receipt
requested, and addressed to the other party at its last known place of
business.
(b) It is agreed that the On-Sale Date of the first issue to be distributed
hereunder will be no later than two hundred and ten (210) days after the date
of this Agreement and that the failure of PUBLISHER to comply with this
provision shall give DISTRIBUTOR the unequivocable right to terminate this
Agreement upon ten (10) days written notice thereof.
(c) Any and all of the respective rights and duties of the PUBLISHER and
DISTRIBUTOR under this Agreement shall survive its termination with regard to
copies of the Publication(s) distributed hereunder, the distribution of which
had commenced before such termination.
(d) Termination of this Agreement for any reason shall not affect any right
of either party to receive any money owed by the other hereunder, the amount
of which shall be calculated in the manner which would have otherwise been
required hereby, absent such termination. Anything to the contrary in this
Agreement notwithstanding, PUBLISHER shall not have the right to terminate
this Agreement at any time that the PUBLISHER is indebted to the DISTRIBUTOR
for any reason whatsoever without first reimbursing the DISTRIBUTOR to the
full amount of such indebtedness.
4. PUBLISHER REPRESENTATIONS
(a) PUBLISHER represents and warrants that (i) it is the sole and exclusive
owner of all rights, including but not limited to, copyrights, titles,
trademarks, tradenames, trade dress, logos, formats, in and to the
Publication(s) (collectively the "Rights") and that such Rights are not
subject to any liens or encumbrances of any nature; (ii) the Rights herein
granted to DISTRIBUTOR have not been granted to any other person, firm, or
corporation, (iii) it has the right and authority to enter into this Agreement
and to perform the obligations hereunder to be performed by PUBLISHER; (iv)
there are no existing contracts, agreements or other arrangements which in any
way whatsoever prevent or interfere with the PUBLISHER's making and entering
into this Agreement or performing hereunder (v) that to the best of
PUBLISHER's knowledge, there are no suits or proceedings pending or threatened
against or affecting PUBLISHER which, if adversely determined, would impair
the Rights herein granted to DISTRIBUTOR or prevent PUBLISHER from performing
hereunder; (vi) and nothing contained in any Publication will be grounds for
an action either to prevent distribution thereof or for damages by reason of
the fact that the material contained therein is libelous, slanderous, obscene,
invades any right of privacy, a violation of any copyright, trademark, or
other personal property rights or for any reason whatsoever.
(b) PUBLISHER represents and agrees that all issues of said Publication(s)
shall substantially conform to the specimen copy(ies) or facsimile(s), or to
any specifications or other descriptions, exhibited by PUBLISHER to
DISTRIBUTOR, and approved by DISTRIBUTOR.
5. FIRST OPTION
DISTRIBUTOR shall have the first option to purchase from PUBLISHER, and to
resell and distribute any and all additional periodical(s) or publication(s)
intended to be published by PUBLISHER and/or any of its principals,
stockholders, officers and/or directors during the term of this Agreement (or
any other renewal term thereof) on the same terms and conditions as set forth
in this Agreement. PUBLISHER and/or the above named parties shall
promptly notify the DISTRIBUTOR in writing of its (their) intention to publish
and distribute any such additional publication(s), and DISTRIBUTOR shall
within fifteen (15) days after receipt of said written notice advise
of its willingness or refusal to distribute any such additional
publication(s).
6. NUMBER OF COPIES, COVER PRICE AND FREQUENCY
The Cover Price, the number of copies to be printed and the frequency of each
issue of the publication(s) shall be as PUBLISHER and DISTRIBUTOR shall
mutually agree upon, and the PUBLISHER agrees to deliver or promptly cause to
be delivered the specified number of copies of each issue of the
Publication(s) with the assigned xxxxx number, Universal Product Code Symbol,
Cover Price and the letter "K" imprinted on the front cover of each copy
thereof to each and every Distributor's Sales Outlet designated by DISTRIBUTOR
in accordance with DISTRIBUTOR's shipping instructions. PUBLISHER further
agrees that only copies distributed by DISTRIBUTOR shall have the letter "K,"
the Universal Product Code Symbol, and the xxxxx number assigned by
DISTRIBUTOR imprinted on the front cover.
7. TRANSPORTATION AND RELATED COSTS
PUBLISHER shall pay all transportation costs, including without limitation,
insurance costs, Canadian Goods and Service Tax (hereafter GST), import-export
charges or tariffs and other duties relating to the shipment of each issue of
the Publication(s) to Distributor's Sales Outlets.
8. PUBLISHER's BILLING PRICE, FOREIGN CURRENCY
(a) The Publisher's Billing Price to DISTRIBUTOR shall be in accordance with
the price(s) set forth in Schedule "A"; provided, however, that upon any
change in the Cover Price of a Publication, the Publisher's Billing Price
shall automatically be revised pro rata with respect to the issues with the
changed Cover Price so that the ratio of Publisher's Billing Price to Cover
Price shall remain consistent with that determined by reference to the prices
then in effect in Schedule "A," which shall, following each change in Cover
Price, be deemed amended with or without a written amendment as otherwise
required by Paragraph 29(a).
(b) All monies which may be due PUBLISHER pursuant to the terms of this
Agreement shall be paid in United States dollars, and PUBLISHER will reimburse
DISTRIBUTOR for any losses realized by DISTRIBUTOR, due to a difference in
foreign exchange rates, including those of Canada, on monies received from
Distributor's Sales Outlets in payment for Publication(s) distributed
hereunder, and DISTRIBUTOR agrees to pay PUBLISHER any gains realized due to
said difference. DISTRIBUTOR has the right to make any adjustment for foreign
exchange rates prior to making any payment(s) to PUBLISHER.
9. RETURNS
(a) DISTRIBUTOR has the option and is authorized to accept as Returns from
Distributor's Sales Outlets whole copies, front covers, headings of front
covers, and affidavits or statements of returns including those electronically
transmitted, of the Publication(s). DISTRIBUTOR has the exclusive right to
determine the method of return from Distributor's Sales Outlets. DISTRIBUTOR
is specifically authorized by PUBLISHER to destroy or arrange for the
destruction of said Returns at any time after receiving same in any manner
deemed suitable by DISTRIBUTOR, unless at least thirty (30) days prior to the
On-Sale Date of any particular issue of the Publication(s), PUBLISHER shall
have given DISTRIBUTOR notice in writing of PUBLISHER's request that the
Returns of said issue be held for thirty (30) days after date of Settlement
with respect thereof so that PUBLISHER can audit said Returns at its own cost
and expense. Said audit and count must be made by PUBLISHER during such
thirty (30) day period at the particular place of storage thereof maintained
by DISTRIBUTOR at such time. PUBLISHER agrees not to request more than one
(1) audit per year per Publication unless, as a result of two (2) or more
prior audits, substantial discrepancies were discovered by PUBLISHER.
(b) In the event that DISTRIBUTOR has not received all Returns of any
issue(s) distributed hereunder from any of the Distributor's Sales Outlets for
any reason, including without limitation, that such outlets or that any one of
them (i) are subject to the appointment of a receiver, or (ii) are adjudicated
a bankrupt after filing of a petition of voluntary or involuntary bankruptcy,
or (iii) are reorganized or managed by a trustee or committee of creditors
under the Federal Bankruptcy Act, or (iv) are dissolved, terminated or no
longer in business, or (v) are destroyed by fire, flood or other disaster, or
(vi) are unable to return all unsold copies of any such issue due to strikes,
lockouts, other labor disputes, bankruptcy or for any other reason, then
DISTRIBUTOR shall be entitled to charge PUBLISHER for Returns from such
Distributor's Sales Outlets, in an amount equal to the product of the average
return-percentage of the applicable Distributor's Sales Outlet(s) for such
Publication(s) for the twelve (12) month period (or such lesser period if
applicable) prior to the issue(s) for which DISTRIBUTOR has not received all
Returns, multiplied by the number of copies received by said Distributor's
Sales Outlet(s) for such issue(s).
(c) In the event PUBLISHER desire to receive whole copy Returns, written
notice of the quantities thereof desired, and the address to which such whole
copy Returns shall be sent, shall be supplied to DISTRIBUTOR not less than
thirty (30) days prior to the On Sale Date of such issue. PUBLISHER shall pay
DISTRIBUTOR at the rate of six ($.06) cents per copy for packing and handling
costs for whole copy returns received by DISTRIBUTOR, and PUBLISHER shall
reimburse DISTRIBUTOR for all direct costs incurred by DISTRIBUTOR, including
all shipping costs, all container costs and all costs charged by Distributor's
Sales Outlets, for arranging, receiving and delivering such whole copy
Returns. Upon receipt of such written notice requesting whole copy Returns,
the sole obligation of DISTRIBUTOR in this regard shall be to make written
request for the same from Distributor's Sales Outlets, it being understood and
agreed that nothing herein contained shall require DISTRIBUTOR to take any
other action with respect to such request. PUBLISHER represents and warrants
that it will only use said whole copy Returns to fulfill subscription orders
or for such other purpose that is mutually agreed upon between PUBLISHER and
DISTRIBUTOR.
10. RDA
(a) DISTRIBUTOR is authorized to offer on PUBLISHER's behalf PUBLISHER's RDA
program and PUBLISHER agrees to be bound by the term of its RDA program as
offered by DISTRIBUTOR. PUBLISHER further agrees to execute any necessary
documents in connection therewith.
(b) DISTRIBUTOR shall administer PUBLISHER's RDA program and PUBLISHER shall
pay to DISTRIBUTOR on demand any and all amounts paid or due to be paid by
DISTRIBUTOR on PUBLISHER's behalf to retailers participating in PUBLISHER's
RDA program as administered by DISTRIBUTOR.
(c) In consideration of the services performed by DISTRIBUTOR in
administering PUBLISHER's RDA program, PUBLISHER will pay to DISTRIBUTOR a fee
of forty-five ($.45) cents per issue per retailer for each payment made by
DISTRIBUTOR on PUBLISHER's behalf to participating retailers.
(d) Notwithstanding the provision of Paragraph 10(b), DISTRIBUTOR may
decline to advance sums due to retailers participating in PUBLISHER's RDA
Program in the event PUBLISHER becomes indebted to DISTRIBUTOR on an actual or
estimated basis, or PUBLISHER refuses to pay DISTRIBUTOR for sums paid to
retailers. In the event DISTRIBUTOR declines to pay retailers, PUBLISHER
shall pay retailers directly.
11. DISCOUNTS AND ALLOWANCES
PUBLISHER shall pay DISTRIBUTOR for any and all discounts and allowances,
which are in excess of DISTRIBUTOR's national billing discount for each
Publication, made by DISTRIBUTOR to any of Distributor's Sales Outlets in
locations where special labor conditions and/or other situations and
conditions exist causing such discounts or allowances.
12. RISK OF LOSS; SHORTAGES, etc.
Any loss, shortage, destruction of, or damage to copies of any issue(s) of
each Publication, including, but not limited to, any loss, shortage, or damage
to such copies as reported by DISTRIBUTOR's Sales Outlets and for which
credits are claimed, or to any Returns as defined in Paragraph 9 hereof, shall
at all times be at the risk of and be borne solely by PUBLISHER, and
DISTRIBUTOR shall be entitled to charge PUBLISHER's account with DISTRIBUTOR
for such copies, and same may be deducted by DISTRIBUTOR from any sums
otherwise due PUBLISHER. The parties specifically agree that credits granted
to Distributor's Sales Outlets by DISTRIBUTOR for shortages, lost or damaged
copies shall be conclusive and binding upon the PUBLISHER, and upon
PUBLISHER's written request DISTRIBUTOR shall furnish to PUBLISHER such
information DISTRIBUTOR may have with respect to any loss, shortage,
destruction or damage. The right and responsibility of filing any shortage
claims with the shipper of record and/or carrier is the obligation of the
PUBLISHER, provided, however, that DISTRIBUTOR shall assist PUBLISHER in the
filing of such claims. In the event that DISTRIBUTOR shall recover any part
of such loss, then the DISTRIBUTOR shall include same in Net Xxxxxxxx and
shall charge PUBLISHER the DISTRIBUTOR's actual costs, including counsel fees
and other expenses, incurred in recovering such loss; however, DISTRIBUTOR
shall not be under any obligation to institute any action or proceeding for
recovery of any such loss. In the event PUBLISHER recovers any part of such
loss directly from the shipper, PUBLISHER will pay DISTRIBUTOR a sum equal to
the amount DISTRIBUTOR would have earned if such recovery were included in Net
Xxxxxxxx for such Publication, or in the alternative, DISTRIBUTOR may deduct
such sums from any payments thereafter due PUBLISHER or charge PUBLISHER's
account. PUBLISHER acknowledges and agrees that DISTRIBUTOR is not liable for
any losses to copies of Publications or other materials stored at
DISTRIBUTOR's warehouse(s) occasioned by fire, water damage, natural
catastrophes, acts of God and/or theft, and that it is the obligation of the
PUBLISHER to obtain insurance to cover any such loss at its own expense.
13. PROMOTION AND SOLICITATION COSTS
PUBLISHER shall at its own expense provide DISTRIBUTOR with reasonable
quantities of promotional materials for DISTRIBUTOR's use. PUBLISHER shall
pay DISTRIBUTOR for all direct costs in connection with all promotion and
solicitation mailings, including those associated with PUBLISHER's RDA
program, made for PUBLISHER's Publications. If PUBLISHER requests DISTRIBUTOR
to incur advertising or promotional expenses on behalf of PUBLISHER or for any
of the Publication(s), PUBLISHER shall pay DISTRIBUTOR for all such expenses.
PUBLISHER agrees that in all trade press advertising pertaining to single copy
circulation, it will include a phrase substantially as follows: "Exclusively
(internationally) distributed by KABLE NEWS COMPANY, INC."
14. MISCELLANEOUS CHARGES
PUBLISHER shall pay DISTRIBUTOR for the following charges:
(a) Administration fee of two hundred ($200.00) dollars for each Audit
Bureau of Circulation ABC State Circulation Analysis requested by PUBLISHER
and fifteen hundred ($1,500.00) dollars for each ABC County Report requested
by PUBLISHER.
(b) Fee of one hundred and twenty-five ($125.00) dollars for producing a
galley for an issue which is cancelled or for producing any additional
shipping galleys occasioned by PUBLISHER's errors, omissions or failure to
notify DISTRIBUTOR of changes on a timely basis.
(c) Any reshipment charges incurred by DISTRIBUTOR.
(d) Any other charges or expenses incurred by DISTRIBUTOR specifically on
PUBLISHER's behalf or for its Publication(s).
15. PAYMENTS TO PUBLISHER
DISTRIBUTOR shall pay PUBLISHER the Net Xxxxxxxx of each issue of each
Publication distributed pursuant to this Agreement less all credits to which
DISTRIBUTOR shall be entitled, as follows:
(a) "GST Advance Payment" paid on PUBLISHER's behalf to the Canadian
government of an amount equal to the GST required to be paid with respect to
such issue; said GST advance to be deducted from the Initial Advance Payment
required in sub-paragraph 15(b) hereof, and the GST Advance shall be repaid by
DISTRIBUTOR to PUBLISHER sixty (60) days after payment by DISTRIBUTOR of the
Initial Advance Payment for such issue.
(b) "Initial Advance Payment" of an amount equal to twenty * See Rider "A"
(20%) of Publisher's xxxxxxxx with respect to such issue, less the GST Advance
Payment for such issue ten (10) days after the Completion of Shipping or five
(5) days after receipt by Distributor of the Printer's Completion Notice,
whichever date is later, of such issue and to continue this method of making
Initial Advance Payments on subsequent issues if in DISTRIBUTOR's sole
judgment the sales warrant them; DISTRIBUTOR's obligation to make such Initial
Advance Payment being conditioned upon timely shipment by PUBLISHER of the
particular issue to meet its scheduled On Sale Date, and that PUBLISHER is in
compliance with all of the terms of this Agreement.
*Such advance to be paid upon receipt of notification of shipment by MSA via
next day mail (at Publishers expense).
(c) "Second Advance Payment" of an amount equal to eighty (80%) percent of
Distributor's Estimated Final Net Xxxxxxxx with respect to such issue, less
the aggregate amount of the Initial Advance Payment made by DISTRIBUTOR to
PUBLISHER for such issue, the GST Advance Payment, and all charges,
allowances, discounts, other advances and other credits and reimbursements
incurred or accrued to which DISTRIBUTOR shall be entitled, forty-five(45)
days after the Off-Sale Date of such issue of each Publication. If on the
Second Advance Payment date of any issue, the previous advances made by
DISTRIBUTOR to PUBLISHER on that issue exceed the amount due as a result of
the Second Advance Payment calculation, then DISTRIBUTOR may deduct such
excess from any monies due or thereafter due PUBLISHER pursuant to this
Agreement, or any other Agreement between the parties, or DISTRIBUTOR at its
sole option may require PUBLISHER to pay DISTRIBUTOR for such excess within
ten (10) days following DISTRIBUTOR's request thereof.
(d) "Settlement Payment" of an amount equal to the Net Xxxxxxxx with respect
to such issue less the aggregate amount of all advance payments made by
DISTRIBUTOR to PUBLISHER or for is account, and all charges, allowances
discounts and other credits or reimbursements incurred or accrued to which
DISTRIBUTOR shall be entitled for such issue or which have been incurred or
accrued by DISTRIBUTOR for other issues and which were not previously
deducted, and any reserve DISTRIBUTOR, in its sole judgment, estimates is
needed for Return Credits for Returns yet to be received; all of the foregoing
to be set forth on a "Publisher Statement" prepared by the DISTRIBUTOR ninety-
five (95) days after the Off-Sale Date with respect to such issue and sent
thereafter to PUBLISHER together with the amount shown due, if any. In the
event that the Publisher Statement indicates an amount due DISTRIBUTOR
("Overpayment"), then DISTRIBUTOR at its sole option may deduct such
Overpayment from any monies due or thereafter due PUBLISHER, and/or require
PUBLISHER to pay DISTRIBUTOR for such Overpayment on demand. Any Returns
received and/or charges or credits incurred or accrued by DISTRIBUTOR with
respect to any issue of PUBLISHER's Publication(s) subsequent to the
preparation of the Publisher Statement with respect to such issue of the
Publication(s) shall be included as a credit to DISTRIBUTOR on any subsequent
Publisher Statement and deducted from any monies thereafter payable to
PUBLISHER, or DISTRIBUTOR at its option may require PUBLISHER to pay
DISTRIBUTOR on demand for any such charges and credits. PUBLISHER agrees to
accept any Publisher Statement from DISTRIBUTOR as an account stated and the
items therein enumerated as true and correct, except as to any specific item
or item appearing therein to which the PUBLISHER may object in writing within
thirty (30) days from the date of the mailing of said Statement.
(e) If, at any time after an issue has been On-Sale for at least thirty (30)
days, the DISTRIBUTOR, in its sole judgment, determines that the total of
advance payments, disbursements, allowances, discounts and other credits
incurred or accrued for which DISTRIBUTOR shall be entitled to reimbursement,
are in excess of Distributor's Estimated Final Net Xxxxxxxx with respect to
such issue, then DISTRIBUTOR may deduct any such excess from any payments
thereafter due PUBLISHER, or DISTRIBUTOR at its option may require PUBLISHER,
and PUBLISHER agrees, to pay DISTRIBUTOR for such excess within ten (10) days
following DISTRIBUTOR's request thereof.
(f) Notwithstanding anything in this Agreement to the contrary, DISTRIBUTOR
may at any time withhold any funds otherwise due PUBLISHER and apply same to
any monies due and owing to DISTRIBUTOR from PUBLISHER.
(g) No advances or other payments shall be payable by DISTRIBUTOR to
PUBLISHER:
(i) For any issue(s) for which DISTRIBUTOR has exercised its right not to
distribute pursuant to Paragraph 19 hereof, or
(ii) For any issue(s) following a party's exercise of its option to terminate
pursuant to Paragraph 22(b) hereof, or
(iii) For any issue(s) of any Publication it DISTRIBUTOR has reason to believe
and has notified PUBLISHER that PUBLISHER has not published said issue in
accordance with this Agreement or if DISTRIBUTOR has reason to believe
PUBLISHER will not continue to publish further issues of said Publication as
provided for in this Agreement, or
(iv) For the last two (2) issues of each Publication to be distributed by
DISTRIBUTOR for PUBLISHER hereunder subsequent to the giving by either party
to the other a Notice of Termination pursuant to Paragraph 3 of this Agreement
(h) Settlement Payment for the two (2) issues of each Publication
immediately preceding the exercise of an option to terminate pursuant to
Paragraph 22(b) and for any issues distributed thereafter, or for the two (2)
issues immediately preceding a notice by DISTRIBUTOR pursuant to Paragraph
15(g)(iii), or for the last two (2) issues of each Publication to be
distributed by DISTRIBUTOR under this Agreement following a Notice of
Termination pursuant to Paragraph 3, shall be made by DISTRIBUTOR to PUBLISHER
one hundred and eighty (180) days after the Off-Sale Date of the last issue of
all Publication(s) being terminated. DISTRIBUTOR shall be entitled to
withhold a reasonable reserve from the sum otherwise due PUBLISHER from the
Settlement Payment of such last two (2) issues. Said reserve shall be in an
amount equal to (i) DISTRIBUTOR's estimate of Return Credits for Returns yet
to be received, (ii) DISTRIBUTOR's estimate of RDA claims yet to be received
from retailers participating in PUBLISHER's RDA program as so forth in
Paragraph 10 hereof, (iii) the amount which DISTRIBUTOR estimates will be
needed to reimburse DISTRIBUTOR for charges, allowances and discounts to be
made or given on behalf at PUBLISHER and, (iv) for such other credits for
which DISTRIBUTOR will be entitled to be reimbursed, which will or may be
incurred subsequent to the preparation of the Publisher Statement for such
last two (2) issues. In the event that such reserve is insufficient,
PUBLISHER agrees to pay DISTRIBUTOR any such sum within ten (10) days
following DISTRIBUTOR's request thereof.
(i) The parties agree that payment(s) for copies of Publications distributed
to Distributor's Sales Outlets located outside the United States of America
and Canada will be made ninety (90) days later than the dates indicated in
Paragraphs 15(c), 15(d) and 15(h).
(j) Any and all overpayment shall be repaid by PUBLISHER to DISTRIBUTOR upon
termination of this Agreement or at such time as DISTRIBUTOR shall have
discontinued distributing, for any reason whatsoever, any Publication, or any
particular issue of any Publication.
(k) The respective obligations of PUBLISHER and DISTRIBUTOR under this
Paragraph 15 shall survive the termination of this Agreement.
16. INDEMNIFICATION
(a) PUBLISHER shall indemnify, hold harmless and promptly reimburse the
DISTRIBUTOR, and Distributor's Sales Outlets and their retail outlets and all
of their respective officers, directors, employees, agents and representatives
(here collectively referred to as Indemnities), from and against any losses,
damages, fines, judgments, expenditures, claims, reasonable counsel fees,
legal and court expenses, bond and bail charges and premiums, as well as any
and all other costs of any kind or nature, resulting from defending or
settling any claims, civil or criminal actions or proceedings and/or
supplementary proceedings, or in connection with any inquiries, proceedings or
actions by any federal, state, local and/or any other governmental agencies or
authorities (collectively "Claims") which in anyway relate to, or arise from
or by reason of: (i) the title, contents or any printed matter contained
within any of the Publication(s), including, but not limited to, editorial
contents, photographs, pictures. cartoons, caricatures, drawings or other
artwork, advertisements, and classifieds, whether contained on any cover, or
any page or advertisement contained in or for said Publication(s), or any
promotional material for PUBLISHER or the Publication(s); (ii) the breach or
alleged breach of any of PUBLISHER's representations and warranties contained
in Paragraph 4 of this Agreement, (iii) any services performed, or terms or
program offered by DISTRIBUTOR pursuant to the specific request of PUBLISHER,
or pursuant to incorrect information supplied by PUBLISHER, or (iv) any other
act of PUBLISHER relating to or affecting the distribution or sale of the
Publication(s) or the services performed by any of the Indemnities in
connection with the Publications.
(b) If any such Claim is brought or made against the aforesaid Indemnities,
DISTRIBUTOR shall have the right at the PUBLISHER's expense to (i) retain
counsel of its own choosing for itself and/or Distributor's Sales Outlets
and/or their retail outlets and/or (ii) authorize the retention of counsel by
Distributor's Sales Outlets and/or their retail outlets if PUBLISHER shall
also be named a party thereto. PUBLISHER shall have the right to its own
counsel at its expense. DISTRIBUTOR shall give PUBLISHER notice of any such
suits, proceedings, actions, claims or demands as soon as practicable after
receipt of same.
(c) PUBLISHER agrees that PUBLISHER shall have no right to compromise or
settle any Claim in which DISTRIBUTOR is named unless DISTRIBUTOR is given ten
(Do) days notice and such compromise or settlement shall result in a full and
final release of all Claims against DISTRIBUTOR.
(d) During the pendency of any such Claim, DISTRIBUTOR may withhold payments
as security, to the extent reasonably necessary, which otherwise would be due
to the PUBLISHER under this or any other agreement between PUBLISHER and
DISTRIBUTOR. DISTRIBUTOR may apply the payments so withhold to satisfy in
whole or in part, PUBLISHER's obligations under this Paragraph 16.
(e) PUBLISHER will name DISTRIBUTOR as an additional named insured under any
PUBLISHER's liability insurance carried by PUBLISHER and will deliver a
certificate of such insurance to DISTRIBUTOR.
(f) PUBLISHER's obligations hereunder shall survive the termination of this
Agreement.
17. GALLEYS AND SHIPPING INSTRUCTIONS
DISTRIBUTOR shall supply the PUBLISHER or at PUBLISHER's request, its printer
or forwarding agent with one set per issue of shipment galleys, shipping
instructions and labels designating the names and addresses of Distributor's
Sales Outlets specifying the number of copies of each issue of each
Publication to be sent to each of them or computer tapes containing such
information or electronically transmit such information, sufficiently in
advance of the Completion of Shipping with respect to such issue so that such
issue can be shipped to arrive at Distributor's Sales Outlets receiving
point(s) prior to the On-Sale Date of such issue.
18. ACCESS TO RECORDS
DISTRIBUTOR shall give PUBLISHER or its duly authorized representatives,
during business hours, reasonable access to DISTRIBUTOR's draw, sale and
Return figures relating to each issue of the Publication(s) and other
necessary records in support of all items of charges and credits made by
DISTRIBUTOR to PUBLISHER pursuant to this Agreement and shall permit PUBLISHER
at its own cost and expense reasonable access, to inspect and make copies of
the same; said records to be maintained for a period of twelve (12) months
following the Off-Sale Date of each issue of each Publication.
19. DISTRIBUTOR'S RIGHT TO REFUSE DISTRIBUTION
Anything to the contrary in this Agreement notwithstanding, the DISTRIBUTOR
may at any time, without prior notice, and without incurring any liability
therefor, refuse to distribute any issue(s) of any Publication(s) covered by
this Agreement, or at its option exercise the right to terminate this
Agreement, if it comes to the attention of DISTRIBUTOR that such issue(s) may
contain libelous, obscene or indecent material, or invade any person's right
of privacy or other personal right, or infringe a copyright or trademark owned
by a third party, or contain any matter of any kind that is in violation of
law, or if such Publication still be refused the use of the mails by the
United States Postal Service or such public corporation as may then exist for
the handling of mail, or if any such issue is refused entry into the United
States or Canada. In the event DISTRIBUTOR refuses distribution hereunder
with respect to an issue of a Publication no payments shall be due PUBLISHER
under Paragraph 15 with respect to such issue. Distribution of any issue of
any Publication(s)covered by this Agreement or receipt of promotional copies
does not and shall not establish nor constitute knowledge or approval by the
DISTRIBUTOR of the contents of such issue. The PUBLISHER is aware that
DISTRIBUTOR does not regularly, and is not obligated, to examine or pass upon
any issues of the Publication(s). Nothing contained in this Paragraph 19
shall affect any rights of DISTRIBUTOR under Paragraph 16.
20. FORCE MAJEURE
Neither party shall be liable for any damage due to causes beyond its control,
including but not limited to, acts of civil or military authority, orders,
rules or other actions by appropriate regulatory authorities, labor
difficulties, fire, flood, power failure, or other natural or human
catastrophes, acts of God, national emergencies, quarantine, insurrection,
riots and failure of transportation and equipment, nor shall any of the above
be deemed a default by either party.
21. RELATIONSHIP OF PARTIES
It is understood and agreed that the relationship between PUBLISHER and
DISTRIBUTOR is that of creditor and debtor. All monies paid by, or due and
owing from Distributor's Sales Outlets for copies of said Publication(s) not
returned to DISTRIBUTOR, are and shall at all times belong to and remain the
absolute property of the DISTRIBUTOR. It is further agreed that DISTRIBUTOR
is not the agent of the PUBLISHER except in connection with any services
performed pursuant to Paragraph 10 of this Agreement, nor is PUBLISHER the
agent of DISTRIBUTOR. Further, this Agreement does not constitute and shall
not be construed as constituting a partnership or joint venture between
PUBLISHER and DISTRIBUTOR. Neither party shall have any right to obligate or
bind the other party in any manner whatsoever, except as otherwise
specifically set forth herein, and nothing herein contained shall give, or is
intended to give, any right of any kind whatsoever to any third persons.
22. ASSIGNMENT, TRANSFERS AND SALE OF RIGHTS, ETC.
(a) PUBLISHER may not assign this Agreement or any rights thereunder to any
other person, firm or corporation without the prior written consent of the
DISTRIBUTOR; provided, however, nothing herein contained shall be construed to
prevent PUBLISHER from assigning any right to receive any advance(s) or
payment(s) which the DISTRIBUTOR may make to the PUBLISHER under this
Agreement to any printer in connection with the production of any particular
issue of any Publication covered by the Agreement provided, however, that such
assignment shall be on a form provided by DISTRIBUTOR and shall expressly
state therein that at all times the same is subject and subordinate in all
respects to any and all of the rights of DISTRIBUTOR under this Agreement and
under any other agreement between PUBLISHER and DISTRIBUTOR, and provided
further that a copy of such assignment shall be first submitted and approved
by DISTRIBUTOR at least forty (40) days prior to the On-Sale Date of the
particular issue. PUBLISHER agrees to pay DISTRIBUTOR a thirty-five ($35.00)
dollar administration fee for each assignment processed by DISTRIBUTOR,
payable at the time the assignment is delivered to DISTRIBUTOR.
(b) Either party hereto may terminate this Agreement at any time during the
term hereof in the event that the other party shall make a general assignment
for the benefit of creditors, have a receiver appointed of its assets, be
adjudicated a bankrupt, make a petition for reorganization, or take advantage
of any insolvency statute. However, should any of the foregoing events occur
with respect to PUBLISHER, DISTRIBUTOR may elect to continue this Agreement
without payment of any advances otherwise due under paragraph 15(a) and 15(b).
(c) In the event PUBLISHER enters into an agreement to (i) sell, transfer or
dispose of all or substantially all of the assets of PUBLISHER, or (ii) sell,
transfer, assign, license or otherwise relinquish or dispose of any of its
rights to any or all of the Publication(s) or their title(s) or trademark(s)
covered under, or distributed pursuant to, this Agreement, to a third party
(hereinafter "Acquiring Party"), then PUBLISHER guarantees that any such
agreement between PUBLISHER and Acquiring Party shall contain a provision
requiring, (x) at DISTRIBUTOR's option, that either any such Acquiring Party
be bound by and enter into an agreement assuming all the terms and conditions
of this Agreement, relating to the title or titles acquired, including any
liabilities to DISTRIBUTOR hereunder, or in the alternative, that the
Acquiring Party enter into a New Distribution Agreement with DISTRIBUTOR under
the same terms and conditions of this Agreement for a term equal to the then
remaining term of this Agreement, and (y) that the DISTRIBUTOR be named as a
third party beneficiary with regard to that required provision. However, any
such sale, transfer, assignment or license, or the entering into of a New
Distribution Agreement, shall not relieve PUBLISHER of any existing or
estimated obligation or liability to DISTRIBUTOR, or any subsequent obligation
or liability if same concerns Publications distributed prior to such sale,
transfer, assignment or license (hereafter "Continuing Obligations"). Any
existing obligation together with any DISTRIBUTOR's estimate of any sums to be
owed, shall be paid by PUBLISHER prior to such sale, transfer, assignment or
license of any Publication(s). Any Continuing Obligations of PUBLISHER shall
be paid by PUBLISHER to DISTRIBUTOR upon demand. DISTRIBUTOR has the right to
require that any proceeds to be paid by an Acquiring Party to PUBLISHER should
first be paid to DISTRIBUTOR to satisfy any sums or estimated to be owed to
DISTRIBUTOR by PUBLISHER hereunder.
(d) DISTRIBUTOR may not assign this Agreement or any rights hereunder to any
other person, firm or corporation without the prior written consent of the
PUBLISHER, except in connection with the sale or transfer of all or
substantially all of the assets of DISTRIBUTOR.
23. ONE-SHOTS AND/OR ANNUALS
Any one-shots and/or annuals derived from any of the Publication(s) as may
hereafter be published shall be included in this Agreement on the same terms
and conditions as set forth herein. Notwithstanding the foregoing, in the
event the DISTRIBUTOR wishes to change the amount and/or timing of advance
payments and the timing of Settlement, the parties hereby agree to negotiate
in good faith as to the amount and timing of such payments.
24. WAREHOUSING
In the event that any Publication(s) or other materials of PUBLISHER are
stored at DISTRIBUTOR's warehouse, PUBLISHER agrees to pay DISTRIBUTOR its
handling and storage costs as they may be increased from time to time.
DISTRIBUTOR reserves the right to limit the amount of space allotted to
PUBLISHER. PUBLISHER agrees to remove any Publication(s) or other material
from DISTRIBUTOR's premises upon thirty (30) days notice. In the event
PUBLISHER does not remove its property within such thirty (30) day period,
DISTRIBUTOR may remove and dispose of same as it sees fit at PUBLISHER's
expense. Nothing contained in this Paragraph 24 shall affect PUBLISHER's risk
of loss as set forth in Paragraph 12.
25. NOTICES
Except as otherwise specifically provided herein, all notices permitted or
required hereunder shall be in writing and shall be given by receipted
personal delivery, registered or certified mail, or Federal Express (or
similar overnight service) at the respective addresses set forth below, or at
such other address or addresses as may be designated by either party. Such
notices shall be deemed given when mailed or delivered to the post office or
such overnight delivery service, except that a notice of change of address
shall be effective only from the date of its receipt. A copy of each notice
shall be sent simultaneously to:
TO DISTRIBUTOR: with a copy to: TO PUBLISHER:
Kable News Company, Inc. Kable Non Company, Inc. Princeton Publishing,
Inc.
Attention: President Attention: Vice President Attention: President
000 Xxxxxxxxx Xxxxxx of Finance 00 Xxxx 00xx Xx., 0xx
Xx.
Xxx Xxxx, XX 00000 00 Xxxxx Xxxxxx Xxxxxx Xxx Xxxx, XX 00000-0000
Xxxxx Xxxxxx
Xxxxx Xxxxxx, XX 00000
or to such other person(s) or address(es) as such parties shall designate to
the other by written notice.
26. NON-DISCLOSURE
(a) The parties each acknowledge that the terms and conditions contained in
this Agreement constitute confidential business information, and that
therefore, each agree that they, their representatives, agents and employees
will not disclose the terms and conditions of this Agreement to any person or
organization except as otherwise provided in subparagraph (b)of this Paragraph
26.
(b) Notwithstanding the provisions of subparagraph (a) of this Paragraph 26
to the contrary,
(i) Either party may disclose the provisions of this Agreement to any
potential purchaser, assignee, or licensee of any Publication or other asset
of such party or to underwriters, accountants, lawyers, bankers or other
lenders, or such other party or parties as such party may reasonably require
in the ordinary course of business; provided that such potential purchaser,
assignee, licensee, underwriter, accountant, lawyer, banker or other lender,
or other party agree in willing to hold the provisions of this Agreement
confidential in the same manner as required by the terms of this Paragraph 26;
and
(ii) Either party may disclose the existence or provisions of this
Agreement
if required to do so by any court order or subpoena, or if in the reasonable
opinion of its counsel it is required to do so by any state of Federal
securities or other law or regulation; and
(iii) Either party may disclose the existence or any provisions of this
Agreement if any such information has already been publicly disclosed.
27. CONSTRUCTION
This Agreement shall be governed by and construed in accordance with the laws
of the State of Now York applicable to agreements executed and fully performed
therein. The courts of Now York (state and federal) will have exclusive
jurisdiction over any controversies regarding this Agreement; any action or
proceedings which involves such a controversy will be brought only in those
courts, in New York County. Any process in any such action or proceeding may,
among other methods, be served by delivery or certified mail, return receipt
requested. Any such delivery or mail service shall be deemed to have the same
force and effect as personal service within the State of New York.
28. HEADINGS
The headings in this Agreement are for convenience of reference only, and
shall not limit or otherwise affect the meaning hereof.
29. GENERAL
(a) No waiver of any breach of this Agreement shall be held to be a waiver
of any other or subsequent breach. No waiver, modification or cancellation of
any term or condition of this Agreement or any amendment thereto shall be
effective unless executed in writing by the party to be charged. All remedies
afforded by this Agreement shall be taken and construed as cumulative, that
is, in addition to every other remedy provided herein or by law.
(b) In the event that the date on which any payment is to be made under this
Agreement is a Saturday, Sunday, or legal holiday, the payment shall be made
on the next business day thereafter.
(c) This Agreement shall be binding upon the parties hereto and their
respective legal representatives, heirs, successors and assigns.
(d) No oral or other representations, understandings or agreements have been
made or relied upon in the making of this Agreement other than these
specifically set forth herein. This Agreement supersedes all existing
agreements by and between the parties hereto and constitutes final expression
of their agreement with respect to the subject matter hereof and is a complete
and exclusive statement of the terms thereof.
(e) The Schedules attached to this Agreement are incorporated into and
hereby made a part hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers, as the day and year first written
above.
Princeton Publishing, Inc. KABLE NEWS COMPANY, INC.
"PUBLISHER" "DISTRIBUTOR"
By: /s/ Xxxx XxXxxxxxx By: /s/ Xxxxxxx Xxxxx 10/26/96
Xxxx XxXxxxxxx - President Xxxxxxx Xxxxx- Sr. V.P., Client
Relations
SCHEDULE "A"
PUBLISHER'S
TITLE FREQUENCY COVER PRICE BILLING PRICE
U.S. CANADA U.S. CANADA
KARATE INTERNATIONAL Bi-monthly $3.95 $4.95 $2.0935 $2.6235
RIDERS TO THE DISTRIBUTION CONTRACT DATED MAY 14, 1996 BETWEEN PRINCETON
PUBLISHING, INC. AND KABLE NEWS COMPANY, INC.
RIDER "A"
Commencing with the next Initial Advance Payment due subsequent to the date of
final payment of the third issue distributed hereunder for each title, the
Initial Advance Payment shall be in an amount equal to eighty (80%) percent of
the average final net sale percentage of prior three (3) settled issues.
RIDER "B"
Distributor shall be entitled to withhold from the Final Payment of each
issue, as provided for in Paragraph 15 (d , a reasonable reserve for estimated
late returns to be received from Foreign and Military sales outlets. Said
Reserve shall be closed out at such time as the Distributor determines that
the majority of the Returns have been received. Any net balance in the
Reserve shall be paid to the Publisher by the Distributor. In the event that
the Reserve is insufficient to cover the Returns, the Distributor shall be
entitled to deduct the deficiency from the next available monies due the
Publisher under this contract.
