Exhibit 10.2
PROPERTIES PURCHASE AGREEMENT
AGREEMENT, made this 17th of March, 1997, by and between Paradise
Magazine, Inc. ("Seller"), a New York corporation with offices at 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and Princeton Publishing, Inc., a Delaware
Corporation with offices at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
("Purchaser").
WHEREAS, Seller is the owner of, and has adopted and used in his
business, the trade name "Leg Scene," which has continuously been used by
Seller in connection with the publication of a periodical (the "Tradename"),
and for which the Seller has accumulated and retained certain associated
materials comprised of subscriptions, subscription lists, advertising lists,
back issues, promotional, advertising and publicity materials, display racks,
works in progress, bi-pad numbers, mechanicals, art work, film, slides (as
described in the annexed schedule), photographs, separations, editorial
materials, circulation records, LTPC code numbers, releases, and all other
books, records, correspondence and memoranda concerning the Tradename and/or
publications bearing the Tradename, whether Seller had first or second rights
to the materials (the "Associated Materials") (the Tradename, any and all
logos associated therewith, and the Associated Materials hereinafter
collectively referred to as the "Properties"); and
WHEREAS, Seller is desirous of selling to Purchaser any and all of
Seller's rights in and to and respecting the Properties, and Purchaser is
desirous of purchasing such rights, upon the terms and conditions herein set
forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein set forth, the parties agree as follows:
1. Termination of Prior Agreements. Any and all prior agreements,
if any, between Purchaser and Seller regarding the Properties are hereby
canceled as of the date hereof and neither party to this agreement shall have
any further obligation to the other pursuant to any such agreement. This
Agreement shall exclusively govern the rights and obligations of the parties
with respect to the Properties.
2. Sale of Properties.
2.1. Sale of Properties. Seller warrants and represents that it
has continuously used the Tradename, and has copyrighted any and all materials
containing the same, for the entire period of time that the same has been used
in commerce in the United States of America. Seller further warrants and
represents that there are no presently pending legal actions or proceedings
concerning the Properties, nor has Seller received any notification that any
such action or proceeding is threatened or imminent. Seller hereby sells,
conveys and transfers to Purchaser any and all of Seller's rights, title,
interest and benefits in and to the Properties upon the terms and conditions
hereinafter set forth. Purchaser hereby purchases any and all of Seller's
rights and benefits in and to the Properties upon the terms and conditions
hereinafter set forth. Simultaneously with the execution of this Agreement,
Seller shall execute and deliver to Purchaser a written Tradename Assignment
of all of Purchaser's right, title and interest in and to the Tradename.
Additionally, Seller shall execute and deliver to Purchaser a written
Assignment of all of Seller's right, title and interest in and to the
Associated Materials and deliver the Associated Materials to Purchaser.
Seller agrees to execute any and all other documents that may reasonably be
requested by Purchaser as necessary and proper in order to effectuate this
Agreement and/or obtain and maintain Tradename registrations for the
Tradename.
3. Covenant Not to Compete. Seller agrees that, for a period of
three (3) years after the date of execution of this Agreement, it will not,
(i) whether as an owner, shareholder, partner, employee or agent of, or
consultant to, any person or company, furnish services relating to the
publication of any adult magazine focusing on the female's lower extremities.
Seller's obligations under this paragraph shall extend to all areas of the
United States and to each foreign nation in which Purchaser is offering any
product bearing the Tradename for sale, either directly or indirectly through
Purchaser, distributors or otherwise. Seller acknowledges that this provision
is a reasonable one in both duration and geographic scope for purposes of
protecting Purchaser's goodwill and its investment pursuant to this Agreement,
and forms an instrumental basis for Purchaser's consent to enter into this
Agreement. Seller represents that its own knowledge and abilities are
sufficient to permit it, during this period of restriction, to earn a
livelihood satisfactory to it without violating this provision.
4. Payment of Purchase Price. As consideration for the conveyance of
the Properties (i) Purchaser shall make available to Seller for a period of
three (3) years from the date of this Agreement, at standard Agency Rates (as
set forth on the annexed schedule), advertising pages in Seller's magazines
(as identified on the annexed schedule, which Purchaser represents are
Magazines owned or licensed by it) in the aggregate amount of $300,000.00
(comprised of at least two pages in Leg Scene magazine and in each of the
magazines identified on the annexed Schedule, provided, however that Purchaser
may exclude such advertisements in two issues of each of the identified
magazine during any calendar year), and (ii) advertising revenues received by
Purchaser as a result of the publication of Leg Scene magazine by Purchaser in
excess of $10,000 for each issue published (such amounts to be received upon
publication), to an aggregate of $100,000.00. In the event that Seller has
not received the entirety of the sum of $100,000.00 on or before one year from
the date of this Agreement, Purchaser shall pay to Seller the difference
between $100,000.00 and such sums as were actually received by Seller pursuant
hereto, upon the publication of the August 1998 issue.
5. Indemnities.
(a) Any and all liabilities of Seller (including, but not limited to,
any past due Retail Display Allowances or National Distributor payables) shall
remain exclusively the obligation of Seller, and Purchaser assumes no
liability whatsoever for any debts of Seller. The first issue of Leg Scene
magazine to be published by Purchaser shall be the September, 1997 issue. Any
revenues attributable to the publication of any issue of Leg Scene magazine
prior to the September, 1997 issue shall be the property of, and paid to,
Seller. Any revenues attributable to the publication of any issue of Leg
Scene magazine subsequent to the May, 1997 issue shall be the property of, and
paid to, Purchaser. Seller agrees to indemnify and hold Purchaser harmless
against any judgment, costs, damages and/or attorneys' fees incurred in
connection with any claim, action or proceeding contesting the validity,
legality or ownership of the Properties, or any part thereof, or based upon
the prior publication of any periodical by Seller bearing the Tradename. In
the event that Purchaser is named as a party to any action stemming from any
such claim, Seller shall be responsible for defending the interests of
Purchaser at Seller's sole cost and expense. In the event that Seller is
named as a party to any action stemming from any such claim, Seller shall be
responsible for defending its interests at Seller's sole cost and expense.
Each party shall give the other prompt notice of any claim or suit covered by
the provisions of this paragraph. Seller shall have the option to settle, or
to undertake and conduct the defense of, any suit so brought; except that
Seller shall not, without Purchaser's consent, enter into any settlement
agreement which prohibits or impairs the use of the Properties by Seller or
Purchaser. Each party shall cooperate with the other in the defense of any
such suit.
(b) Purchaser agrees to indemnify, defend and hold Seller harmless
against any claims or suits of third parties arising out of Purchaser's acts
of publication subsequent to the date of this Agreement. Each party shall
give the other prompt notice of any such claim or suit. In the event that
Seller is named as a party to any action stemming from any such use of the
Properties by Purchaser, Purchaser shall defend such action in the name of
Seller, shall provide counsel mutually agreeable to Seller with respect
thereto, and shall indemnify Seller against any judgment, costs, damages
and/or attorneys' fees, obtained against Seller in connection therewith.
Purchaser shall have the option to settle or to undertake and conduct the
defense of any suit so brought. Each party shall cooperate with the other in
the defense of any such suit.
6. Governing Law and Arbitration. This Agreement shall be governed
by the law of the State of New York, USA. Any controversy arising from, or
related to, this Agreement shall be determined by arbitration in the City of
New York, State of New York, USA, in accordance with the rules of the American
Arbitration Association, and judgment upon any such determination or award may
be entered in any court having jurisdiction.
7. Notices. All notices and reports required or permitted by the
terms of this Agreement shall be in writing and shall be sent to Purchaser at
the address first above noted with a copy to The Law Firm of Xxxxxxx Xxxxxx,
000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxx,
and to Seller at the address first above noted with a copy to Braff & Xxxxxxx,
00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or to such different or additional
parties and addresses as either party may hereafter designate as the address to
which such notices or reports are to be sent. Notices required by the terms
of this Agreement shall be sent by overnight carrier or personal delivery,
with copies being sent by overnight carrier or facsimile transmission, and
shall be effective one (1) day after sending.
8. Resale of Properties. Purchaser shall have the right to resell or
discontinue the Properties; provided, however, that (i) in the event of any
such resale or discontinuance Purchaser shall remain liable for all
obligations assumed by Purchaser Hereunder and (ii) in the event of a resale,
such resale takes place by way of a simultaneous written agreement obligating
any transferee to adhere to the terms of this Agreement (although specific
reference to this Agreement, or its terms, need not be made in such resale
agreement).
9. Security Interest. Seller shall maintain a security interest in
the Properties until all funds due, and owing by Purchaser pursuant to this
Agreement are paid in full. Purchaser hereby agrees to execute and promptly
deliver to Seller a UCC-1 financing statement in favor of Seller with respect
to the Properties. Seller shall simultaneously execute and deliver to
Purchaser's attorney a UCC-3 termination statement, which termination
statement may be filed by Seller's attorney upon the payment by Seller to
Purchaser of all funds due and owing by Purchaser to Seller pursuant to this
Agreement.
10. Construction.
(a) The rights and powers herein granted to Purchaser are those of a
Purchaser only and this Agreement shall not, and is not intended to, create
any other relationship nor make, constitute or appoint Seller an agent or
employee of Purchaser.
(b) This Agreement cannot be modified, changed, discharged or
terminated, except by an instrument in writing signed by the party against
whom the enforcement of a waiver, change, discharge or termination is sought.
(c) Neither party has relied on any representation or warranty made
by the other party as an inducement to enter into this Agreement except for
those warranties and representations expressly set forth in this Agreement.
(d) No waiver of a breach or default under any provision hereof shall
be deemed a waiver of such provisions or of any subsequent breach or default
of the same or similar nature.
(e) Each party hereto has been represented by independent counsel of
its own choosing in connection with this Agreement; and that Seller has had
its independent counsel review this agreement and advise Seller with respect
thereto. Neither party hereto shall be deemed the drafter of this Agreement
for an [sic] purpose.
IN WITNESS WHEREOF, the parties have set their hands as of the day and
year first above written.
Paradise Magazine, Inc.
By: /s/
Princeton Publishing, Inc.
By: /s/ Xxxxx XxXxxxxxx, President
/s/ Xxxxx XxXxxxxx, Chairman
Agency Rate Card
TITLE PAGE RATE
Oui $2,115
Oui Int'l $900
Oriental Women $900
ACR $900
Blueboy $1,080
Jock $1,080
Stars $1,080
Numbers $1,080
Obsessions $900
Iniquity/Hard $900
Machismo $900
Jock All Stars $900
Gent $1,785
Nugget $1,285
DECEMBER LEG SCENE 1996
Xxxx Xxxxxxx
Xxx Xxxxx
FEBRUARY LEG SCENE 1997
Selena
MARCH LEG SCENE 1997
Xxxxxx Xxxx
Xxxxx Xxxxx
