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HomeMy WebLinkAbout95-02006 ~ o .- - - oJ . -1 ~ I ~ (... ~ \J) , / / ~ r J c:\wpll\jlldt\olua<lcu ., Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW CHARLES R. SHRADER. vs. STEPHEN P. ELLlOn, SACHEM PUBLISHING ASSOCIATES, INC., and FACTS ON FilE, INC., Dofendants NO: 95 -j,.,)r;. CIVil TERM JURY TRIAL DEMANDED N.OI.lCf YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth In the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or Objections to the claims set forth against you. You are warned that If you fall to do so the case may proceed without you and a Judgment may be entered against you by the Court without further notice for any money claimed In the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights Important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A lAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. COURT ADMINISTRATOR CUMBERlAND COUNTY COURT HOUSE FOURTH FLOOR CARLISLE, PA 17013 (717) 240-6200 c:\wplllj>iJalohrw"" , .. 5. Defendant, Sachem Publishing Associates, Inc. Is owned In Its entirety by Defendant, Stephen P. Elliott. 6. On or about March 17, 1987, Defendant Facts on File, Inc. as "publisher" and Defendant Sachem Publishing Associates, Inc. as "author" entered Into an agreement whereby Defendant Sachem Publishing Associates, Inc. would write and edit a literary work, consisting of five volumes, entitled "Reference Guide to the United States Military." A copy of said agreement Is attached hereto, made part hereof, and marked Exhibit "A". 7. By a letter of agreement, dated April 9, 1991, Defendant Sachem PUblishing Associates, Inc. contracted with Plaintiff, by which contract Plaintiff agreed to serve as editor of the aforementlonad literary work, by then known as "Referanca Guide to the United States Military History." A copy of said letter of agreement Is attached hereto, made part hereof, and marked "Exhibit "B". Said letter of agreement was executed by Plaintiff in Cumberland County, Pennsylvania. 8. As more particularly set forth In Exhibit "B", Plaintiff was to receive a fee of $4,000 per volume for his editing services, together with 50% of the royalties paid to Defendant Sachem Publishing Associates, Inc. by Defendant Facts on File, Inc. after repayment of an advance of royalties. 9. Pursuant to said letter of agreement (Exhibit B) Plaintiff performed editing services for Defendant Sachem PUblishing Associates, Inc., with his most recent services to them having been completed on or about March 31, 1994. All services performed by Plaintiff were performed In Cumberland County, Pennsylvania. 2 c:lwpll'rldtlll1ladt,.. , 10. Defendant, Sachem Publishing Associates, Inc. delivered the completed work by Plaintiff to Defendant Facts on File, Inc., which has published several volumes of a Reference Guide to United States Military History and Is receiving Income from the sale of said volumes. 11. Plaintiff, In connection with his editing services, was required to advance funds In the amount of $60.00 for photographic research, and he also Incurred liability to a third party, James Enos, In the amount of $991.00 for photographic services which will be required to be paid for by Plaintiff even If Plaintiff Is not reimbursed for the same by Defendants. 12. The last payments to Plaintiff which have been received under the aforementioned letter of agreement were: $500.00 from Defendant Sachem Publishing Associates, Inc. on or about August 7,1993; and $1,000.00 from Defendant Facts On File, Inc. on or about September 27, 1993. 13. Plaintiff has demanded payment from Defendants, Stephen P. Elliott and Sachem Publishing Associates, Inc. on numerous occasions and said Defendants have acknowledged the debt due to Plaintiff but have failed to make payment thereon. 14. The amount due to Plaintiff as of March 31, 1994 from Defendant Stephen P. Elliott and Sachem Publishing Associates, Inc. Is $8,972.02, as more particularly Itemized on a statement sent to said Defendants on April 14, 1994, which Is attached hereto, made part hereof and made Exhibit "C". 15. In accordance with the attached agreements, Defendants are obligated to provldo Plaintiff with an additional four (4) copies of Volume V of the said literary work but have failed to do so. 3 158:\ Emp,loYltr-1dentificlltipn , . .MiLb.UT_J'roprlflor Soclal-MnlTit,. !lio. /,C3r:,? (~d) I { 3..,. 1 . ~.~ I , 06-0920669 IS .n-';: - ~(.f~ 11'38'- ~ - l/~( 1 I ~ ~ >' - I - Vetl' Y: II' y" 0" - v,'t' or Agt'n"~~o. Acqulslllon Editor John F. Thornton/ Jamie Warren AGREEMENT , " . :', t.,. . , - v AGREBIEST made this 17.h dal' of March 19 87 bet\\een fACTS 0:'\ fiLE, ISC. of ~60 Park Al'enue Soulh. New York. NY 10016 (hcreinafler called the Publisher) and Sachem Publishing of i Graves Avenue, P.O. Box 412, Guilford, CT 06437 (hereinafler called the Author). Repre~nted-by e! rlr, \l'ork I. The Author contracts with the Publisher 10 wrile and edit the following described and tentatil'el} entitled work (hereinafter called the Work): A five volume REFERENCE GUIDE TO THE UNITED STATES MILITARY jler volume par volume The outline and sample material auached as Appendix A shall be regarded as an in. tegral part of this Agreement. The cClmpleted manuscript for the Work shall be approximately 250.000 1I0rds in length and shall include approximatel}' 160 camera-ready illustrations. as well as other material the Publisher ma} reasonably specify for the Work. including copy for the title page. table of contents. preface. index. tables and bibliographies. In addllion. the manuscript and each section thereof shall be submiued to the Publisher iTr ~<' and shall be typed correctly. neatly and double spaced. or in such other form as the Publisher ma} specify. and prepared in accordance with the-r.JC'tS'OnTik SI>ie'Mamrat-ar OIMt~inlilft~51yle guidelines agreed upon by the Publisher and Author and with such other qualifications as ma} be indicated as an addendum to this Agreemenl. If anl""llT!l:"eopr-n ~ftle.Hl~if the copies ure not in legible conditiun. the Publisher may make arrangements for the manuscript to be retyped and copied and shall deduct the cost from any sums due or which may become due to the Author, If the Author does not provide an acceptable index to the 1I0rk within ? 1 days of receipt of page proofs. the Publisher may prepare said index and deduct the editorial com of such preparallon from any sums due or becoming due to the Author. Dclhery and Acceptance ~, The Author is aware of the publication commitments of the Publisher and of the great importance to the Publisher of meeting such commilments, The Author shall prepare *The Author also agrees to deliver the complete text of each volume of the Work on diskettes compatible \:ith the Publisher's word processing capabilities and to work out any issues con~erninf such delivery with the Publisher's word processing department head. Failure to do so and to do so in a timely fashion will constitute nondelivery of the Work or any individual volume thereof. and delil'er the Wor}; 10 the Publi~her ~3Ii~(aclory in both (arm and contenl. according to the following schedule: . See Appendix A, page 17 volume or Deliven of the manu~cripl and eac~ section thereof shall be deemed made when the Publisher has gi\ en its receipt. bUI such receipt shall nOI be deemed acceptance of form or content. Within a rea~onable time afler receipt of each portion of the manuscript. the Pub. lisher shall eithcr accept it or. if it is not acceptable In form or content. return it to Ihe Aulhor for correction or revision within a reasonable lime to be specificd by Ihc Publishcr. . In thc cvcnt the Author fails to delivcr Ihe manuscripl 011 schcdule. or the AUlhor fails or refuscs to pcrform any correclion or rcvision of the manuscript within the time specified by the Publisher. thc Publisher shall ha\'e Ihe right. in its discrelion: (1) to terminate this Agreement on Ihiny (30) days wrillen notice to Ihe Author. or (2) to make such other arrangements as Ihe Publisher deems advisable 10 com. plete. correct or revise thc manuscript. in which event the reasonable cost for such arrangements may be charged. in the Publisher's discrelion. against an>. sums due or becom- ing due to the Author under this Agreement. The Publisher shall be the solc judge of Ihe acceptability of the manuscript in form and cont~nt. The Publisher shall ha\.e the right. without the Author's consent. to make such editorial revisions and changes in Ihe manuscript and each section thereof as it deems desir- able to insure factual or grammatical accuracy or proper spelling and punctuation. butlhe Author shall be given an opportunity to review these changes. The Publisher may consider any comments which are promptly made. but shall have no obligation to accept them. Any wrillen or oral statement by the Publisher or its editorial employees requesting changes or substantiation of an)' S18lement in Ihe manuscript shall be deemed to constitute a statemenlthatthe manuscript is unacceptable in form or content until such changes or sub. stantiation satisfactory 10 the Publisher have been received and accepted. Regardless of any payments made to the Author. Ihe manuscript of the Work shall not be deemed finally accepted as satisfactory in form and content until the Author and Publisher have reached agreement on the final typeset version of the Work or. in Ihe eventlhe AUlhor fails 10 relurn proofs or indexes promptly or fails 10 agree 10 changes Ihe Publisher believes necessary. Ihe Publisher prints Ihe Work and offers il for sale. The Author shall read. correct and reI urn to Ihe Publisher all proofs of Ihe Work within 21 days of receiving such proofs from the Publisher. If the AUlhor makes or causes to be made any alteralions in the type. illustrations or film which are nOlthe result of the Publisher's errors or Iypographical errors and the cost of which ex. ceeds ten (10) percent of the COSI of original composition and artwork. the cost of Ihe excess alterations shall be charged against any sums due or becoming due to the Author under Ihis Agreement. The Author shall havc the ultimate dUlY to carefully read the galleys and proofs fumished by Ihe Publisher and to chcck. correcl and verify the samc. If Ihe Author fails 10 read and return such proofs promplly. as defined above.lhe Publisher shall have Ihe right 10 2 . publish the "or~ 'l\ithout awaiting any corrections the Author mal' have. Errors resuhing from a failure lw the AUlhor to prompt I)' and carefully proofread the ~allel's and proofs shall be deemed to b.: us a re~ulr of the AUlhor's negligence and the cost of correctin~ them shall be char~ed to the Author\ royalty account, In the eventlhatthe publisher erroneously includes or states inaccurate or unauthorized informal ion or material. or omits information or malerial Ilhich should hale been included. Ihe Author mal" as his ani)' redress. request thai Ihe Publi~her correct ~uch errors in future printings and include an errata notice calling anention to any serious and material error~ in unsold copies already prinled. The Author represent~ thai he shall hal'e retained a copy of the manuscript and each seclion thereof. and that the Publisher shall not be liable for an)' loss resuhing to the Author from. the injury. destruction or loss of the manuscripl or an)' section of the work. Permissions .3. If the Author incorporates into the Work any material not in Ihe public domain. the AUlhor shall procure al his I)\\'n expense wrillen authorizalion salisfactory to Ihe Pub. lisher to include it in the Wor~ and shall deliver copies of such authorizalion 10 Ihe Publisher with the manuscript. The permissions secured \1l' the AUlhor must be consistenl with Ihe righls ~ranled 10 the Publisher in this Agreement in order :lJat they may caler all the uses to which the male rial mal evenluall) be put as contemplated by Ihis Agreemenl. In addition. Ihe Author shall nOlif)' Ihe Publisher in writing of Ihe existence and location of all malerial in Ihe public domain or not su\1jectto copyright "hen such material constilutes a si~nificam ponion of Ihe Work. Grant of Rights 4. The Author here\1y grants and assigns exclusively to Ihe Publisher Ihe ri~hts listed \1elow in English and all other languages throughoutlhe world. which shall include but not be limited to all copyrights and all renewals. extensions and conlinualions Ihereof in the Work. togelher with all exclusive righls granted to an author under the copyri~hllaws of Ihe United States and foreign countries and internalional copyri~ht conventions and Ihe righl 10 grant Ihese righ15 or any pan of Ihem to Ihird panies and to re~isler or record these ri~hts in the Author's/l141Wi~$.. name, Specifically. these rights shall include. withoutlimitalion excepI as olherwise speci. fied in Ihis Agreem~nt. the folloll ing book form rights: (a) The right to print. publish. reprint. sell and license Ihe Work in book form in English throughout Ihe world (b) The right to prinl. pu\1lish. reprint. sell and license trade or mass-market paperback Engli~h.language editions of the Work throu~houtthe world lc) The right to pnnl. publish. reprint. sell and license premium. condensed. updaled. reo vised or abridged \ersion~ of the Work in book form in English throughout the world (d) The right to prinl. publish. reprint. sell and license book club. mail order. deluxe. juven' ile. lCxt\1ook or other derivatile forms of Ihe Work in book form in English throughout Ihe world. 3 Specifi~ally. the Author al~o exclusively grants to the Publisher the following secondary rights (sometimes known as subsidiar)' rights) to exploit directly or license to third parties in English or other languages throughoul the world: (e I Translation ril)hts to the Work in book and other secondary' rights forms granted herein (f) publication in extracts or deril'ative form in periodicals prior to publication (I) I Publication in extracts or deril'atil'e form in periodicals after publication (h) Publication of extracts or quotations from the Work (sometimes known as permission rights) (i I Commercial and merchandising rights (i) Electronic data base. retrieval. optical disk and videotext rights now conceived or to be conceived (k) Software rights (I) Dramatic. performing. radio. movie. videotape. filmstrip and television rights (m) Phonograph and audiotape recording rights (n) Microfilm and microfiche rights (0) Transcription or publication of the Work in Braille or in other forms for the physically or visually handicapped. In grantinl) the exclusive rights specified herein. the Author agrees to cooperate and assist the Publisher in all reasonable ways to exploit said rights. The Author also agrees not to attempt to offer for sale any rights granted herein to the Publisher without the Publisher's prior written con~ent unless and until such rights have reverted to the Author under the terms of this Agreement. The Author hereby expressly agrees not to sell or attempt to sell any' periodical anicle before or after publication of the Work based on. extracted from or derived from the con- tents of the Work without the express written permission of the Publisher unless and until such rights rel'ert to the Author. The Author appoints the Publisher to execute any documents the Publisher deems necessary or desirable to perfect. register or record any of the rights granted herein with the Cniled States Copyright Office or elsewhere, The Author agrees to execute any further documents to effect the purpose of this Agreement. All right~ not herein granted to the Publisher shall remain the exclusive property of the Author, Advance and Royalties :" In consideration for the Tights granted herein and as full payment to the Author. the Publisher shall pay to the Author the following: 4 a, i 100.000 as an adl'ance against all amounts payable 10 the Author under this A~reement. pa)'able as follows: See Appendix A, pogeo 15-17 In addition, 0 nonroyalty amount of $81,600 will be paid as productibn ' . '0, fees, to be pal'able according to the schedule attached in Appendix A, pages 15-17. b, Ten (10) percent of the Publisher's retail price of each hardco\'er cop)' of the Work sold by the Puhlisher for use or distribution within Ihe Uniled States or its dependencies (except as otherwise prol'ided in Ihis Paragraph S) c, Fil'e (~) percent of the Publisher's retail price of each hardco\'er copy of the Work sold by . lhe Publisher under its own imprint or those of its affiliates for use or dis. tribution out!ide Ihe United Stales or its dependencies d, Fil'e (~) percent of the Publisher's member's price of each COpl' of the Work sold through the Publisher's own book clubs . . e. Ten (10) percent of lhe Publisher's net receipts from all special sales of copies oflhe \\'ork, Special sales shall mean sales-in the United States or elseWhere-at a dis- count of fifty,one (~I) percent or more. includin~ sales for premiums or promotional use. other special edition sales. sales made under special dis. tribution or copuhlication arrangements and bulk or \'olume sales. exce~J1 in the case of sales to reco~nized book clubs or foreign EngliSh-language publishers (, Six (6) percent of the Publisher's retail price of each copy of the Work sold for use or dis- tribution within the United States or its dependencies under the Publisher's 0\\ n imprint or those of its affiliates in paperback or less expensive editions than the standard hardcover /c1othbound edilion, Half ro}'ahy rates shall appl)' on paperback copies of the Work sold by the Publisher under its own impnnt or lhose of its affiliales for use or dimibution outside the United Statcs or ils dependencies g, File (5) percent of the Publisher's retail price of each copy of the \\'ork sold through the mail directly to consumers h, Ten ( 10) percent of the Publisher's retail price of the Work on copies sold under the Pub. Iisher's own imprint or those ofilS affiliates in deluxe editions at a retail price hi~her than lhe standard hardcover edition i. Tllell'e (I~) percenl of the Publisher's net receipts from the sale of jUl'enile. textbook, con. densed. denl'atile or ahridged I'ersions of the Work sold by the Publisher under it! own imprint or those of its affiliates, exccpt as specified in Paragraph 5g abol'e j,T\\e1l'e (I~) percenl of the Publisher's net receipts from the sale of software \ersions. data bases. information retrieval. optical disks and videotext rights of and to the Wor,", produced and/or sold by the Publisher or its affiliates ,"" On all sales of copies of reprint edilions of the Work undertaken by the Publisher more than I~ months after publication for which the lotal pressrUn is fewer than 2.200 copies, the Publisher shall pa)" a royalty equil'alentlo half the rates specified above in Subparagraphs b. c. d. e, f. g. hand i I. S I, The percentages specified belo" of the advances and royahies. after doductin~ any com. missions or allorney's fees, from the sale or license of the following sec- ondary' (or subsidiary') rights: .",. -,I " Author's Publisher's ~.' :..: Share Share .j, Translatior, rillhlS 50'if_ 500/(_ -ii. Foreign English-language rights 50'if_ 50'<<_ -iii. Hardcover or paperback reprint 500/(_ 50'/(_ rights in North America ~lIth_ ~1I'i;_ -iv, Book club rights . v. Periodical rights prior to 50th --:... 50th _ publication in book form ~Ot;;_ 50t;;_ vi. Periodical rights after publication in book form 50th _ 500/(_ vii. Extract or quotation rights . (some limes referred to as permissions) 50'7r_ viii. Commercial and merchandising 50th _ rights -ix. Data base, information 50t;;_ 511'7r_ retriel'al, optical disk and videotext rights x. Software rights ~Ot;;_ 511<;;_ xi. Dramatic, performing. radio, 50r:;_ 50', _ movie. videotape, filmstrip and television rights xii. Phonograph and audiotape ~1I<;(_ 50',_ recording rthts , xiii. Microfilm an microfiche 5()t;(_ 5W;_ rights ~W;_ xiI'. Direct mail s\'ndication and 50<;f_ premium rights The Author expressly acknowledges that the items marked by an asterisk (_ ) abo\'e at times require the sale of goods or sen'ices by the Publisher 10 the purchaser of said rights. In such cases. the Author shall not be entitled to share in the proceeds of such sales unless the proceeds exceed the Publisher's documented costs of manufacturing (including a prorated share oftypselling. plates. film and set-up costs when bound books are sold). The Publisher expressly warrants that it shall not include or attempt to include any overhead charges in such costs. Should the Publisher adopt a so-called freight-pass. through (FPT) policy in the future, allowing retailers to pass through the Publisher's freight charges 10 consumers, such additional freight charges shall not be used in the computation of royahies. No royalty or other payment shall be due on (I) any copies of Ihe Work, or a deri\'ative work, sold by the Publisher al the Publisher's manufacturing cost or less: (2) supplementary materials distributed with but not sold separately from the Work; (3) any copies of the Work. or a deri\'ative work or selections from it, furnished by the Publisher to others without pa)'ment for the purpoles of promotion or publicity or for any other purpose deemed appropriate by the Publisher in its sole discrelion; (4) any nOI-for-profit publication 6 of Ihe Work. or a derivative work. in Braille or in special edilions for the physicall)' or lisuall) handicapped: and (5) deslroyed copies. For purposes of this Agreement net receipts shall mean the Publisher's gross receipu less rebates. discounu. credits. returns (or a reasonable reser\'e for relurns), sales laxes and shipping and insurance charges, Following the first publicalion of Ihe Work. Ihe Publisher shall submit semiannual statements to the Author, as of June 30 and December 31, such statements to reflect calcula. tion of an)' payments due to Ihe Author hereunder. Such slatements are due to the Author wilhin three months of the close of each semiannual period and shall be accompanied by any pa\'ment shown thereon to be due the Author. The Publisher shall ha\'e lhe righlto eSlablish reasonable reser\'es for returns before computing any rO)'allies due the Author. Any o\'er. payment for copies subsequent I)' returned shall be deducted from any fUlure sums due the Author. . The Author may. upon IHillen request. examine the books of accounts of lhe Pub. lisher insofar as they relate 10 the Work. Such examinations shall be allhe Author's expense unless errors of accounting amounting 10 S500.00 and fil'e (5) percent or more of the tolal sums accrued 10 Ihe Author shall be found 10 the Author's disad\'antage. in which case the reasonable CIlSt of the examination shall be borne by the Publisher anc' payment of the amount due shall be made within thirty (30) days thereafter. Style and Manner of Publication 6, The Publisher has the sole right 10 delermine when and in what style and manner the Work will be published and may publish and otherwise exploit the Work as prol'ided for herein. with such lrademarks. service marks and imprint> of the Publisher and include within the binding of the Work promotional materials relating to books, services and products pro\'ided or distributed by the Publisher. and offer for sale the Work al such prices as the Publisher shall deem suitable. including. without limitation. the right to eSlablish reduced prices on \'olume or bulk sales. Free Copies 7. The Publisher may distribute gratis nonroyalty copies of the Work or excerpls lherefrom which. in its sole discrelion. Ihe Publisher beliel'es will publicize the Work or pro- mOle the sale of the Work, The Publisher mal' also distribute gratis nonroyalty copies to assist the visuall) or physically handicapped. Publisher'! Own Works 8. Any material that the Publisher may prol'ide the Author from any of ils pub- lications shall be used ~olely for the preparation of the Work and the Publisher shall conlinue to hale all property rights and copyrights in such material. Option 9:-:Im- r'ru1 nor 'fIPee!'ntlt1e-offff-I(loJ;ee~Filf-or-all9lh6f-fl\lbUshor....;m,..olIl.r ~h-wIlr-J..fot-rltblie&\~rt'H>f'iEHflf4!liW'f~~ 4R..(Gmpk~~FJ;.Ihal-l~~Il~'lIb- -jcet-eHhi~A11reemefli-i"-it5'{ineHefffl. The Author further agrees that the Publisher shall be lhe first publisher offered the right to publish the Author's neXl nonfiction work/.md shall of a similar nature 7 hav~ si~IY (60,! da~~ in which 10 ~~~rcis~ this right of rim refusal. The lerm.s and conditions of ani' n~w agre~menl reOccting such rillht shall be subject 10 the mutual consent of bOlh parlies. lft~f~-IHittM-A-uiftetff'jfof~+ot.ft.f.IIfl6tfte.AulItet'iW9soqu.n1. 1\'..+i-4U.fOO.;j tl1l9Ii~hiR~_~~ItiM-lti!r-4'FllI~..oo.IiQIl'IHi0n6-RlOl'._~'~abl6-lGo"~ A~ItQ~~~~r~PWB~~-4k'~4RirR~'R~~~aA~~U'R~QA~4 Wil~.(~i>l'loWidiR@4JK..-P1l9~~wjIlHlll~~~UAil~-40-Il'Ial'R.yi4-4'Rm~~_ dil~illtin-fi~'~~~""OrIi~ili~'f.M~""'il~fMllk'''!r~\iI4~,~It...JlubI~J;Ql' thi!rpw~-4Il.-AIlIhor~""'+do-lfio.llllbli~illl ] c!)flY gf.Iho-pFOJlO"d cOOl~4- fNHI..incllldin@-~!r.-f"K'Rtal!r\. ~!r~~lhG.~iO-dclai~aA~ sllC~.~gfk.f~."i-\.tI,.-IR~llf_fll.-4lli~l!ublj!rlltJ.lOp6-wch-b.".~fcr~fil.:t-<~ pfK'fll.Ql'~ro,-lIl..p.ubl~+'4.of~~311 90 a~.d~~..A urllgr w'~.{u~UlCi'l' tiiligAIo~\h.glhor.paOlWi<<!r~\:lOOH.oo..i~lanUi~~AUdl~.Wlu"a}'AI4l'JAw aJl.il!J44llI'Il~~rglllc.r~~.w;Ub"c~.\.O-lIl..A.lltbo1~llc.xt qOllfj~Il>>'Qr~ on , tN~Ad4iMi-1.w.f.1",gf.abl'-lball~!lQ~U.ud.b!,&!lc.~b1iib.r.QJ'.~~aQ.lG.pl~ d'-'iA!,.{)lIl"~~Il~fGr~~.,.um~.-A.lU!lQJ'.~i~~:C*.lbll \\:or~.j!r-lbHul>~~-UJi!oApr'clll4nl~lIb~~-iA-a (,OPlplcu. aRt! satilfworr f ()fin, Joint Accountinll 10. Any sums owing from the Author 10 the Publisher. ~1l'f.gf.~1HiAAt~~ thir~uRlOOl..ma~ l1e charged againsl any sums accruing to the Author under this Agree. m~nl .or-IIAd'H"iA!<--GlM~~..me.JH~_~AulIlQf..amI-~.p~idit~, Revisions J]. If the Pul1lisher shall publish a r~vised edilion of the Work (revised edition means a new work using more Ihan fifly [SO] percent of the malerial included in the Author's original manuscripl). il shall be deemed to be covered b) this Agreement as if it were the Work pre\ iousl)' referred 10 in this Agreem~nt, except that an}' ro)'alty rates which ascend or descend l1ased on number of copies sold shall return to the initialle\'el for purposes of calcu. lating royalties due on re'l'ised editions of the Work, If a rel'ised edition of the Work is deemed advisable l1y the Pul1lisher. il shall offer to the Author the first option 10 prepare the relisions required with an advance against royalties to be determined by mutual agreement proportionale to Ihe work required, Should the Author nOI agrel' 10 prepare said revisions. the Publisher shall be free to contract another author to prepare the revisions althe Pub. Iisher's expense. If a person other than the Author prepares the revisions. the Publisher shall deduct from the royalties due the Author (of the original edition of the Work) the reasonable com of such preparation actually paid to such other author. prO\'ided that such deduction shall in no event result in Ihe original AUlhor receiving less than fifty (50) percent of all sums that would olherwise be due the Author on the firsl revised edition. and twenty-five (25) per- cent on Ihe second and subsequent re\'ised edilions, Re\'ersion of Rights 10 Author 12. The Pul1lisher shall have the righl. al any time. for any reason. to discontinue pub. lication of the Work and 10 dispose of surplus stock at such price as the Publisher in its sole discretion may determine, The AUlhor shall be entitled 10 receive royalty paymenls onl)' on such surplus sold at a price abol'e the Publisher's cOSt of manufacture and only to an amount equal to no more than rift} (:'0) percent of the Publisher's net proceeds after deducting all com of sales and manufaclure. Discontinuance shall be deemed 10 have occurred if the Work is taken off the Pub- B li~h~r's pu~lication lim. and those publications Iim of licensees or parties to which the Pub- Iish~r assigned an~ of its right~ her~under. for more than a year and is not restored within nin~IY (90) day~ after wrillen notice is recei\'ed from th~ Author requesting that eilher Ihe Work be r~slored 10 the Publisher's publication Iim or that the rights relerllO the Author. prolided. howe\'er. thai if Ihe Publisher (or such license~s or assignees) shall ha\'e been pre- I'enl~d from restoring the Work to the Publisher's publication lim by mike~. fir~s. short- age~ of labor or material. mechanical difficulti~s. gOl'ernmental restriction~. the breakdown of markel distribution facilities or other circumslances be\'ond Ihe Publisher's conlrol. whether similar or dissimilar 10 those idenlified. such notice from Ihe Author shall be eff~cti\'e only afler Ih~ Puhlisher continues its failure for a period of six (6) months afler ler- minalion of Ihe circumstanc~s which pre\'ented restoration 10 Ihe Publisher's publicalion Iim,ln Ihe evenl ofsuch discontinuance. all rights shall rCl'ert to Ihe Author. subject to (I) - any license. contraCl or oplion granted to Ihird parties'by Ihe Publisher before lhe dis- continuance and Ihe Publisher's right 10 its share of Ihe proceeds from such granls after Ihe discclOlinuance and (~) the Publish~r's continuing righlto sell all remaining bound copies and sheets of Ihe Work. and all its derivati\'e works. which are on hand allhe time of the dis- continuance. After Ihe Publisher has disconlinued publication of the Work. Ihe Author shall ha\'e Ihe right. upon wrillen request. to buy copies of Ihe Work al a price equal to the Publisher's manufacturing unit cost or the bm remainder bid. whichCl'er is greater. Author's Credit and Promotion 13. The Author shall recei\'e credit for authorship on Ihe binding. jackel and lit Ie page of the Work. The Publisher. and any holder of a sublicense to the Work granted under Ihis agreement. shall hal'e Ihe right. Wilhoul any addilional compensalion. 10 use Ihe Author's name. likeness and biographical data in conneclion with distribution. promotion and adl'ertising of the Work. The Author shall pro\'ide this informalion and male rial in a complete and timel~ fashion. The Author agrees to assislthe Publisher in any promotion of the Work Ihatlhe Put<. lis her. in its sole discrelion. deems appropriate and desirable. including personal appearances. tele\'ision. radio and prinl media interviews and Ihe like after consulting wilh the Publisher prior 10 publicalion of i~e Work 10 determine a mutually agreeable schedule. The AUlhor agrees to let aside days,{or such promolional per volUlm assistance should Ihe Publisher request it. The Publisher shall pay reasonable and necessary Iral'el and h\'ing eXpell!eS for such promotional appearances as il arranges. If Ihe Author fails to cooperate in the promotion of Ihe Work or in any way publicly denigrates. repudiates or olherwise interferes with the sale or distrihution of the Work or any subsequent edilion. reprints. translatiom or deril'atil'e works in any form or media. the Author shall forfeit any and all sums owing him or becoming due to him if he persists in such action after receipt from lhe Puhlisher of wrillen notic~ Ihal he is in violalion of this paragraph, Copublication 14, Th~ Publish~r shall hal'e the sol~ righllo arrang~ for copublicalion oflh~ Work or for sp~cial distribution arrangem~nts pf the Work. Author's Copies Fifteen (15) 15. The Publish~r shall furnish :0 Ihe Author fre~ of charg~'tentte) copi~!.bf any edi. per volume 9 tion of Ihe Work published b~ the Publisher. Th~ Author shall be entitled to receive additional copies for personal use on a nonroyalty basis and not for resale at !Jne-half the Publisher's retail price, . Meetings 16. Atlhe Publisher's request. and upon reasonable request. the Author shall allend meelings with representatives of Ih~ Publi~her at such times and places as may reasonably be required. Termination 17. This Agreement may be terminated: a. By' the Publisher because of the Author's failure to deliver by the required date a manuscript or any portion Ihereof as specified b)' Paragraph 2 of this Agreement. In the event of such default by the Author. the Author shall return any and all monies paid to him by' the Publisher or submitlhe com pie Ie and final manuscript within thirty (3U) days of notification by the Publisher that it considers the Author in default. If the Author fails to return said monies to the Publisher within thim' (30) days of due nOlice. (1) the Publisher shall have the right to seek restitution through legal action in New York or in any' state or jurisdiction where the Author owns assets or property. and (2) th~ Author agrees to pay interest at the rate often (10) percent per year until all such sums are paid. If legal expenses are incurred by the Publisher to recover such sums. the Author agrees to reimburse the Publisher for all costs. The Publisher is explicitly granted the right to seek a lien on any property the Author may own or to allach the Author's salary or other form's of income. b. B)' the Publisher if. in the Publisher's sole opinion. the manuscript as delivered by the Author is unsatisfactory in fonn or content. If the Author has made all reasonable efforts to deliver a satisfactory manuscript in form and content and the manuscript is in accordance with the descriptions set forth in Paragraphs I and 2 of this Agreement and any appendixes hereto. the Author shall retain any and all monies paid to him by the Publisher to date and shall be entitled to an assignment of all rights to the Work upon returning all such advances 10 the Publisher no later than upon and from the Author's receipt of the first proceeds of an)' subsequent sale of the rights to the Work to a third pari)' or upon and from the first receipts should the Author publish the Work independently. However. if the manuscript submiued and deemed unsatisfactory is materially different in length. content or form from the descriptions set forth in Paragraphs I and 2 and any appendixes auached hereto. the Author shall be deemed in default as if no delivery had taken place. and the Author shall return all monies to the Publisher and the Publisher shall be entilled to the legal remedies as described in Paragraph 17a above. c, By the AUthor. if the Publisher fails either to (1) publish the Work in book form within eighteen (18) months of acceptance of the manuscript as complete and satisfac- tory. except that in cases of delay caused by strikes. fires. shortages of labor or material. mechanical difficulties. governmental restrictions. the breakdown of market distribution facilities or other circumstances bevond the Publisher's con. trol. whether similar or dissimilar to those identified. the Publisher mav defer the publication date to the extent reasonable and necessary. or (2) nOlify the Author that it does not intend to publish the Work within six (6) months of acceptance of the manuscript as complete and satisfactory. In either event. the Author shall be entitled 10 retain an)' and all monies paid to him by the Publisher and the Author 10 a~ree~ that no other damage~ will be claimed or any action~ or proceedings will be inslituted or maintained by Ihe Author against the Publisher for the Publi~her's failure to publi~h the Work or so notify the Author. d, The Publisher may allo terminate this Agreement prior to publication of the Work but not more than six (6) month~ after acceptance of a complete and satISfactory' manuscript. by' notice 10 the Author. In that event. the Author f.hal\..FOUlJA-al\.. retain all/ / paid to date by ad\ances~9the Pulllisher /ltHalilf-4hiA~iAII.fFGffiolM-AlIlIlGf:\oH'Oip\.Q~W and the rig ft~'Pf9i~9~8A~-Mlb~4Iloii@hlH94h..w&f1i491l-1biF<i~~r in the Work ~_,;jAQ_./f9Itl-4M_./if~l-~"hQllI4-\hG--AutllgF-ploIbIi'Il-~-~U;. shall rever ~M4A~. to the Author Upon termination and the return of any monies due the Publisher under Sub- - paragTaph~ a. b or d above. all rights to the Work ~hall re\'ert to the Author. Warranty and Indemnity .18, The Author represents and warrants to the Publisher that the Author has full power and authority 10 enter into this Agreement and to grant the rights granted in this Agreement: that the Work has not been published before and is not in the public domain: that the Work is original except for material in the public domain and such excerpts from other works as may' be included with the wrillen permission of the copyright owners or from works in which the copyright is held exclusivel)' by the Publisher: that the material in the Work asserted as factual is indeed verifiable 3S fact: that the Work does not contain an\' libelous or obscene material or injurious formulas. recipe~ or instructions: that the Work doe~ not infringe on an)' trade name. trademark or copyright: and thaI the Work and its ex. ploitation as provided for herein do not invade or violate any' right of privacy. publicity. per. sonal or proprietary right or other common law or statutory right. The Author shall indem- nify the Publisher and its licensees and assignees under this Agreement and hold them harmless from any and all losses. damages, liabilities. C0515. charges and expenses. including reasonable allorney's' fee~ for counsel of the Publisher's own choosing. ari~ing out of any breach of an) of the Author's representations and warranties contained in this Agreement or third.pan)' claims relating to the mailers covered by' these representations and warranties. and cooperate fully with the Publisher in an) such third-party claims, In addition to the other remedies available to the Publisher. the Publisher may charge the amount of any such los~es. damages. liabilitie~. com. charges and expenses against any sums due or becoming due to the AUlhor under this Agreement. The provisions of this Paragraph 16 shall survive any termination of thi~ Agreement, It is understood and agreed that the above warranties made by the Author apply to all materials recei\'ed by the Author for which the Author has not given his express wrinen disapproval to the Publisher. ConOicting Pulllicalions 19, While this Agreement i~ in cffect. the Author shall not. without the prior wrillen consent of the Publisher. write. edit. print or publish or cause to be wrillen. edited. printed or published any other edition of the Work. whether it is revised. based upon. supplemental 10. corrected. enlarged. or abridged from or otherwise related to the Work: or any other work. including articles or interviews in periodicals. of a nature which might interfere with. impair. frustrate or injure the sales or other exploitation or licensing of the Work by the Pub. Iisher as permined under this Agreement. or allow the use of the Author's name in connec. tion with any such work, Author's Agent 20. If the Author is represented b)' an agent. said agent shall be regarded by'the Pub. 11 lisher as ful" empq\\ered to act for and on behalf of Ihe Author in re~ard.to this Agreement unless any agenl'~ clause attached hereto specilically states otherwise. Survil'orship 21. If the AUlhor dies afler publication but during the life of this Agreement, his rights and obligalions shall be assumed b)' his estate. However, the Publisher shall be freed of an}' obligations of consultation or consent that Ihe Author mal' ha\'e been entitled to under this Agreement. If the Author dies before publication. the Publisher shall ha\'e the right to terminate this Agreement and recover any sums pre\'iously paid the Author from the Author's estale. Suits for Infringement 22. If during the existence of this Agreement the copyright. or an\' other right in respect to the Work, is infringed or violated, Ihe Publisher mal'. at its own cost and e.~pense and with counsel of its own choosing with the Author's cooperation. take such legal action. in the Author's name if necessary. as may be required to restrain such infringement and to seek damages therefor. The Publisher shall not be liable to the Author for the Publisher's failure to take such legal action. If the Publisher does not bring such an action, the Author maydo so in his own name and at his own cost and expense. Monies recovered for an infringement shall be applied first toward the repa)'ment of the expense of bringing and maintaining the action. and thereafter the balance shall be tlil'ided equally belween the Author and Publisher. Singulars and Plurals 23. In this Agreement, where\'er required b)' the context. the singular shall be deemed to include the plural and Ihe masculine shall include the feminine and the neuter. The word Author shall be read as Authors, if there is more than one, or Proprietor, if appli. cable. Assigns and Successors 2~. This Agreement shall be binding upon and shall inure to the benefit of the panies and the heirs. executors. administrators and permitted successors and assigns of the Author and upon any successors and assigns of the Publisher. The Author may not assign any right or obligation hereunder without the Publisher's written consem. If there are multiple authors under this Agreement. the obligations of all the authors shall be joint and several un. less otherwise expressl)' provided in Ihis Agreemenl. Applicable Law and Modification 25, This Agreement shall be construed in accordance with the laws of the State of New York regardless of its place of execution or performance and it constitutes the complete un. demanding of the panies and supersedes all prior agreements of the panies relating to the Wor~.. No modirication, amendment or waiver of any provision of this Agreement shall be valid or binding unless executed in writing and signed b)' all parties affected by the amend. ment, modification or waiver. The failure of either pany 10 object to the failure on the part of the other party to comply with any lerm. prol'ision or condition of this Agreement, or any delay in doing so. or any custom or practice of the parties at variance therewith. shall neither constitute a waiver or modification of this Agreement, nor affect the validity of any pan of 12 sachem publishing associates inc. 2o:J"4e:]-4::J2B April 9, 1991 Charles R. Shrader 910 Forbes Road Carlisle, PA 17013 Dear Reg: Re: Reference Guide to United States Military History (5 Volumes, Facts On File) This letter, when countersigned by you and returned to Sachem, will serve as our agreement for your work as the editor on the above title. Please sign one copy of the letter and retain the other for your files. You will act as the editor on the Reference Guide to United States Military History and will receive title-page credit for this work. As editor you will help select the authors and will make the preliminary approaches to them; will advise on the contents of each volume; and will actively advise (including review of longer articles). For your work as editor, you will receive a fee of $4,000 per volume, to be paid in two installments: $2,000 at start- up of each volume; $2,000 at completion. "At completion" means when the edited manuscript on disk and art is delivered to Facts On File. Any text chapters or articles that you agree to write for the Reference Guide will be done for additional fees and will be covered by separate agreements. Any other work, such as involvement with the illustration program, will also be paid for separately, at fees mutually agreed upon. Sachem will reimburse you tor out-of-pocket expenses on the project (such as postage, copying, and telephone) upon receiving itemized invoices from you. Finally, you will receive 5 copies of each volume. In addition to the editor's fees, you will receive 50t of the royalties paid to Sachem by Facts On File, Inc. after sales of the book have repaid the original advance on royalties from Facts On File, Inc. Stephen R Elliott Mtv.....g AO::"-"!Ia p 0 80X ..:112 GUIL.FORO. CCJNNECTlCUT aSA3? S., m: ""-; :'-':::-"'!S!S a :i1=a.:..vES AVENue C;U'LFa~D CONNECTICUT 08437 . ~-:;,"","=.::;;:;t:'-="-=c;;.~~',,,-='::;:""-":;l"1;..=:;;;;;:"-=-~ .......... - ) c:' / ( -.:> ,. {Jd Cc~ .. '10. ':)tl oj.uu Sa 1:.-- v 'I ~ ~1> IN 1m: mul~l' 01,' C.tlflON 1'lJ':J\S OJMIllmI/INP CXJlMl'Y, PI':NIlriVI.VlINIl\ CIVrr, I\Cl'1ON - IJ\\~ l-!>I,__~L, _.. rlVJI, 'l'l:ltL~o'_~~-~~ '::::;"'_"__.'__."4__._."~_' ...._ .._,__, ._,_ _'0 _ 'I'" InJ 'J'.: r"11'95 I' .. ~..j : ' : ,'. \.,'t alNUJ~ H. l;IIIWJI':n, Plaintiff v. STEPIIEN P. mJ.lal'l', Sl\ClmM PllllLISIIING J\SSOCIl\TES, INC., nnll f'1IL"1'S 00 f'ILB, INC., Do f cndnn l:s CCJ>lI>U\INT -_._---- -~~_._- FLOWER. MORGENTHAL. FLOWER &. LINDSAY A I'ROHSSlllNAL CORrORATION ATTllllNEYS AT LAW 11 EAST HIGH STREET CARLISLE. PENNSYLVANIA 17013 ( I JAMES D, FLOWER 06272 (xl ROGER M, MORGENTHAL 17143 ( ) JAMES D. FI.OWER. JR. 27742 ( I CAIWL J, LINDSAY 44693 -_.. - . _.---- -- CJ~ .10'1? ,.....' Charles R. Shrader vs Stephen P. Elliott and Sachem Publishing Assoc., Inc. Facts on File lnc In the Court of Common Pleas of Cumberland County, Pennsylvania No. 95-2006 Civil Term Complaint in Civil Action Law and Notice R. Thomas Kline, Sheriff, hwo being duly sworn according to law says that he served the above Complaint in Civil Action Law nnd Notice in the following manner. The Sheriff mailed one of the within named defendants, to wit. Stephen P. Elliott a notice of the within Complaint in Civil Action Law and Notice by certified mail to his last known address at Two Graves Avenue Gilford, Connecticut 06437 This letter was mailed under the date of April 20, 1995 and was received by Stephen P. Elliott on April 24, 1995 with return receipt card signed by Stephen P. Elliott. Return receipt card is hereto attached. R. Thomas Kline, Sheriff, who being duly sworn according to law says that he served the above Complaint in Civil Action Law and Notice in the following manner. The Sheriff mailed one of the within named defendants, to wit: Sachem PUblishing Assoc., Inc. a notice of the within Complaint in Civil Action Law and Notice by certified mail to there last known address at Two Graves Avenue Gilford, Connecticut 06437. This letter was mailed under the date of April 20, 1995 and was received by Sachem pUblishiDg Assoc., Inc. on April 24, 1995 with return receipt card signed by Stephen P. Elliott for Sachem Publishing Assoc., Inc. Return receipt card is here to attached. R. Thomas Kline, Sheriff, hwo being duly sworn according to law, says that he served the above Complaint in Civil Action Law and Notice in the following manner. The Sheriff mailed one of the within named defendants, to wit. Facts on File Inc. a notice of the within Complaint in Civil Action Law and Notice by certified mail to there last known address at 460 Park Avenue South, New York, New York 10016. This letter was mailed under the date of April 20, 1995 and was received by Facts on File Inc. on April 24, 1995 with return receipt card signed by Jackson for Facts on File Inc. Return receipt card is hereto attached. Sheriff's Costs: Docekting Surcharge Cert. Mail So answers: 30.00 6.00 8.94 44.94 Pd. by Atty. 4-27-95 ,~ ,.~'!'." '.' r<.' /. R. Thomas Kline, Sheriff Sworn and subscribed to before me this S .... day of 711.c" !' . f' ~ ~~}/hO(~ ~'t b ~c.rr 1995, A.D. ..j ('j " ,~ I r; ..., -c-l r r:; ., " ..~ -r'" I' ~ I:J 'L t:\ i .. ; . I'L '."-" ! '..~;-t lIt " li.P, J: >) :.: ...:.\ 0 r.: r, 5. ,:-:;rn ,~i ..I 1:\ (i ~. {JJ " ~ .J:- 11..