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EXHIBIT 10.4(b)
LIGHTHOUSE PUBLISHING GROUP, INC.
PUBLISHING AGREEMENT
This AGREEMENT hereby replaces in whole the Agreement entitled
"Lighthouse Publishing Group, Inc. Publishing Agreement" dated January 1, 1997,
between Xxxx Xxxx Seminars and Lighthouse Publishing Group, Inc.
This AGREEMENT is effective the 1st day of January 1997 , between Xxxx
X. Xxxx of Seattle, Washington (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 RIGHTS The Author hereby grants, assigns, and
transfers to the Publisher the following exclusive
rights and privileges to and in connection with a
Work, presently entitled Stock Market Miracles 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 January 31 , 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
MANUSCRIPT Author 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
COMPLIANCE acceptability 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
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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 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,
REVISIONS it shall 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
DETERMINATION manuscript of the Work for the printer in such
manner as 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 REPRINT B. The Publisher shall pay the Author one
EDITION half of the stipulated royalty, as stated above, on
all copies sold from 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
SHEETS remainder, the 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
PERMISSIONS rights to the 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.
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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 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
- OVERSTOCK Work shall become unsalable in the ordinary channels
of the trade the 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
RIGHTS to in 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
DATE granted, 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
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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
proceeding asserted or instituted against the
Publisher based upon the publication sale of the
Work by reason of anything contained therein.
PLAINTIFF ACTION B. The Author hereby grants to the Publisher
COPYRIGHT the right, if copyright is in the Author's name, to
ASSIGNMENT bring in the name of the Author as plaintiff or
complainant, any action or 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
WORKS consent of 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
PERMISSION Author 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. In case the Publisher fails to keep said Work
WITHDRAWAL in print and for sale and after written demand from
OF WORK 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,
EXAMINATION shall have the 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 of account to March 31st and
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ANNUAL September 30th of each year, on the succeeding July
STATEMENTS PAYMENTS 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 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
COPIES 100 (one 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. RECOVERABLE All payments made by Publisher to the Author,
PAYMENTS whether under this agreement or not, shall be
chargeable against and 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,
WITHHOLDING and Foreign 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
ASSIGNMENT shall ensure 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
ARBITRATION agreement 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. Any written notice required under any of the
NOTICES 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. A waiver of any breach of this agreement or
WAIVER 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 OF This agreement shall not be binding on either
CONTRACT the 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 PUBLISHING 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/ XXXXX XXXXXXXX
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Witness Xxxx Xxxxx Witness
Name: Name:
6/26/97 6/26/97
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Date: Date:
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