CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTIONS OF THIS DOCUMENT
HAVE BEEN REDACTED AND HAVE BEEN FILED SEPARATELY WITH THE COMMISSION.
EXHIBIT 10.61
PRODUCT FULFILLMENT SERVICES AGREEMENT
This Product Fulfillment Services Agreement ("Agreement") entered into as
of March 17, 2004 ("Effective Date") by and between Barnes & Noble, Inc., a
Delaware Corporation, with its principal place of business located at 122 Fifth
Avenue, New York, New York 10011 ("B&N"), and AEC One Stop Group, Inc., a
Delaware corporation, with its principal place of business located at 4250 Coral
Ridge Drive, Coral Springs, FL 33065 ("AEC") (each a "PARTY", together the
"PARTIES").
WHEREAS, B&N does business in the area of selling books, and pre-recorded
audio and video products in all formats, by offering such products to individual
customers in B&N's retail stores; and
WHEREAS, AEC is in the business of wholesaling and fulfilling orders for
the following: (i) Pre-recorded audio recordings (i.e., compact discs, and other
related formats); and (ii) video (i.e., DVDs, VHS tape, and other related
formats); and
WHEREAS, the Parties hereto previously entered into a Short Form Agreement
for Fulfillment Services (the "SHORT FORM AGREEMENT"), dated August 15, 2002,
which pursuant to the terms thereof contemplated a long form agreement for
fulfillment services which would supersede and replace the Short Form Agreement;
and
WHEREAS, the Parties hereto desire to enter into this Agreement to
supersede and replace the Short Form Agreement for fulfillment services, and
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein, the receipt and sufficiency of which is hereby acknowledged, the
Parties hereto hereby agree as follows:
1. PRODUCTS
The products covered by this Agreement shall be pre-recorded audio
recordings (i.e., compact discs, and other related formats) and audio
(i.e., DVDs, VHS tape, and other related formats) ("Products"). Other
Products shall be as mutually agreed to in writing between the Parties.
AEC buys Products from third party manufacturers and distributors.
2. PRODUCT EXCLUSIVITY/WHOLESALE FULFILLMENT
a. Exclusivity. B&N shall purchase Products exclusively from AEC.
However, should AEC be unable to make certain Products available to
B&N on a timely basis, B&N may purchase those Products from third
parties until such time as AEC is able to make them available to
B&N. AEC shall provide Products to B&N for distribution within the
United States (other territories as specifically
permitted by the manufacturers and distributors), through B&N's
sales channels, including but not limited, to its present and future
stores and distribution centers.
b. For purposes of clarification, notwithstanding Section 2.a. above,
the Parties herein acknowledge that B&N is permitted to buy Products
direct from manufacturers.
c. Fill Standards. AEC represents that each average fill percentage
over any three (3) consecutive month measurement period shall be as
follows (excluding cut-outs, imports and selected Product not
available from vendors):
i. [***] percent ([***]%) on Commercially Available Products;
ii. [***] percent ([***]%) on Commercially Available Top Hits
Product.
d. Statistical Reserve. B&N shall provide AEC reporting of the
shortages and overages on an ASN level (the "STATISTICAL RESERVE
REPORT").
This Statistical Reserve Report shall be based on a sampling of B&N
control stores, and such control stores to be determined and chosen by
B&N, except that sampling shall include no fewer than forty (40) stores.
To determine the statistical reserve in the Statistical Reserve Report,
B&N, for the relevant time period, shall divide the number of AEC product
shortages (net of overages) into the total number of units shipped by AEC
in that time period for the controlled stores. Such reporting shall
exclude shipments not received by B&N (for which AEC credits separately).
The Statistical Reserve Report shall be provided to AEC within sixty (60)
days of the end of each B&N fiscal quarter and shall be cumulative over
the B&N fiscal year (the B&N Fiscal year runs February 1 to January 31).
The parties have agreed that B&N may hold back such statistical reserve as
follows:
i. From the Effective Date through the first anniversary of the
Term, B&N may hold back [***] percent ([***]%) from payments
due AEC.
ii. For the second (12) twelve months of the Term, B&N may hold
back a statistical reserve equal to the percentage
corresponding to the actual net product shortages/overages
during the first year of the Term.
Right to Audit Statistical Reserve Reports. During the Term of this
Agreement and for two (2) years thereafter, B&N will permit its books and
records to be audited by AEC during normal business hours at a mutually
agreeable time and place solely as may be
- ----------
[***] indicates confidential material redacted and filed separately with the
Commission.
-2-
necessary to verify accuracy of the Net Shortage/Overage Reports. AEC has
the right to audit only those books and records as may be required for the
purpose of determining the accuracy of such report. The books and records
of B&N and all results of the audit shall be deemed Confidential
Information of B&N under the terms of this Agreement. An audit may be
performed of the books and records only once per year and no statement may
be audited more than once. The Parties shall promptly reconcile any
overpayments or underpayment.
3. PRODUCT AVAILABILITY
Definitions
a. "Commercially Available". A particular Product is Commercially
Available if, at the time the Order for such Product is received by
AEC, or during the process of such Order being fulfilled, such
Product is in the inventory of AEC and (a) is generally available
for sale as a special order; or (b) has not been deleted from the
catalog of the company that releases such Product.
b. "Ordered Product" shall mean the units of Product ordered by B&N
with a Verified Order.
c. "Verified Order" or "Order" means an order for Product that has been
authorized by AEC because such order Commercially Available.
d. "Product Availability File" contains information gathered by AEC
from Product manufacturers and distributors (with no representation
from such suppliers as to continuing accuracy) regarding Product
availability and pricing. Such file may also contain information
about Products that AEC can secure on behalf of B&N as a special
order. AEC agrees to provide B&N, "as is" and at no cost, access to
a Product availability file.
4. TERM
This Agreement will terminate two (2) years from the Effective Date
("Term"). This Agreement will terminate two (2) years from the Effective
Date, with automatic one (1) year renewals for each of the following
successive three years only (the "Term"), unless one Party notifies the
other in writing of its intent to terminate this Agreement no less than
ninety (90) days before the Term then in effect.
5. PRICES
The prices charged to B&N for the Products are as follows:
Audio Product Pricing - [***]% off of AEC's "sheet price" (or
"SPI").
- ----------
[***] indicates confidential material redacted and filed separately with the
Commission.
-3-
Video Product Pricing - [***]% above "manufacturer sheet pricing"
(or "C Cost")
6. TAXES
AEC's prices do not include sales, use, excise, or similar taxes. The
amount of any valid present or future sales, use, excise, or other similar
tax that is attributable to B&N shall be paid by B&N.
7. FEES AND COSTS
Any fees and costs charged to B&N herein shall be in accordance with the
existing wholesale relationship between the Parties.
8. PAYMENT
All shipments other than new B&N stores will continue to be invoiced net
xxx (xxx) days; new B&N store initial orders shall be invoiced net
xxx (xxx) days from the store's first open date.
9. SHIPPING TERMS
The wholesale fulfillment services (including without limitation, product
stickering, special handling, account representative services, and
shipping and return services and procedures) shall be performed by AEC in
accordance with the existing wholesale relationship between the Parties.
10. RETURNS
a. Incentives. B&N shall have [***] percent ([***]%) returns privileges
with the ability to earn rebates in any 12-month period as follows
(12-Month Measure Period shall be from the Effective Date through
the last day of the twelfth month of the Term; or from the
thirteenth month through the twenty-fourth month of the Term);
Return - S Incentives* * For every [***] percent ([***]%) point increment
[***] to [***]% $[***] commencing with returns levels less than [***]
percent ([***]%), through returns levels down to
[***] to [***]% $[***] [***] percent ([***]%), B&N shall receive [***]
dollars ($[***]).
For the avoidance of doubt, if B&N returns in a
twelve (12) month measured period were equal to:
- ----------
[***] indicates confidential material redacted and filed separately with the
Commission.
-4-
(a) [***] ([***]%) percent, then B&N shall earn
[***] dollars ($[***]) in returns rebates; or
(b) [***] percent ([***]%), then B&N shall earn
[***] dollars ($[***]) in returns rebates.
Rebates earned, if any, shall be paid within [***] days
after the completion of any twelve (12) month measured
period.
b. B&N Returns of breached product. Any opened or breached Product
returned to AEC, which AEC is not permitted to return to
manufacturer or distributor for credit, shall be sold and credited
to B&N upon terms mutually agreed between B&N and AEC.
11. DELETED PRODUCT/CUT-OUTS
On the tenth (10th) day of each month, AEC shall provide B&N a Deleted
Product Cut-Outs Report containing Product processed for the previous
calendar month. AEC shall credit B&N an amount equal to [***] ([***]%)
percent of such product reported that is returned by B&N to AEC within the
[***] days following the date of the report. AEC shall credit B&N an
amount equal to [***] ([***]%) percent of such product reported that is
returned by B&N to AEC between the [***] and [***] day following the date
of the report. For returns after [***] days, B&N shall have no right to
any such credit.
12. PRODUCT RETURNS DEDUCTION CAP
During the Term, B&N shall be limited to deducting no more than [***]
dollars ($[***]) for returns against any weekly remittance due from
January 1 through June 30 in any year. Any credit balance due B&N from AEC
as a result of the returns deduction cap shall be paid by AEC to B&N in 13
equal weekly installments, commencing with the first Friday in July in
that year.
13. GECC
The Parties acknowledge that General Electric Credit Corporation ("GECC")
is AEC's lienholder, and as such B&N agrees that it shall permit GECC,
with respect to any AEC owned inventory located at B&N's warehouse:
i. reasonable access to any such AEC's inventory; and
- ----------
[***] indicates confidential material redacted and filed separately with the
Commission.
-5-
ii. to enter into a customary access agreement with B&N, as reasonably
required by GECC, to permit such access; and
iii. to foreclose upon or take possession of any such AEC's inventory at
B&N's premises pursuant to the terms of its security interest in
such inventory.
14. CONFIDENTIALITY AND PROPRIETARY RIGHTS
a. During and following the term hereof, each Party to this Agreement
expressly undertakes to retain in confidence, and to require and
cause its subsidiaries and affiliates and its and their respective
employees, contractors and agents to retain in confidence, all
information and know-how transmitted to such Party (the "RECEIVING
PARTY"), (i) which the disclosing Party hereunder (the "DISCLOSING
PARTY") has identified in writing as being proprietary and/or
confidential or (ii) which the Receiving Party reasonably should
know, based upon the nature of the information being disclosed,
ought to be treated as confidential (collectively "Confidential
INFORMATION"). The Receiving Party will make no use of such
Confidential Information except as expressly authorized under this
Agreement. Either party may, however, disclose Confidential
Information if required by law, provided such Party shall give the
other reasonable notice prior to such disclosure and shall comply
with any applicable protective order or equivalent. Under no
circumstances shall a Disclosing Party be entitled to terminate this
Agreement for an alleged unauthorized use or disclosure by the
Receiving Party of Confidential Information which was not marked as
"confidential" or "proprietary" unless such disclosure was of such
material nature as to cause harm to the non-disclosing Party (in
which case the Disclosing Party may terminate this Agreement to the
extent permitted under Section 17 herein).
b. Without limiting the generality of Section 14(a) above, the Parties
agree that the following information disclosed by one Party to the
other shall be deemed Confidential Information: the capabilities,
technical descriptions and source code relating to either Party's
released or unreleased software or hardware products or services;
the marketing or promotion plans of any product or service of either
Party; either Party's business policies or practices; and
information received from others that either Party is obligated to
treat as confidential.
c. Both Parties acknowledge that unauthorized disclosure or use of
Confidential Information could cause irreparable harm and
significant injury, which may be difficult to ascertain.
Accordingly, both Parties agree that the aggrieved Party will have
the right to seek and obtain injunctive relief from breaches of this
Section 14, in addition to any other rights and remedies it may
have. Both parties agree that each has and shall retain ownership
rights to its own Confidential Information, and that upon expiration
or termination of this Agreement each Party shall return and shall
not retain the Confidential Information of the other Party.
-6-
d. Notwithstanding anything in this Section 14 to the contrary,
Confidential Information shall not be construed to mean any
information which the Receiving Party can show: (i) is, or
subsequently becomes, publicly available other than as a result of
the Receiving Party's breach of any obligation owed to the
Disclosing Party or a third party; (ii) became known to the
Receiving Party prior to the Disclosing Party's disclosure of such
information to the Receiving Party, (iii) became known to the
Receiving Party from a source other than the Disclosing Party other
than as a result of such source's breach of an obligation of
confidentiality owed to the Disclosing Party; (iv) is independently
developed by the Receiving Party, or (v) has been authorized for
disclosure by the Disclosing Party.
15. WARRANTIES AND REPRESENTATIONS
a. By AEC. AEC warrants and represents for the benefit of B&N as
follows: (i) the AEC Services will be rendered in accordance with
all requirements identified in this Agreement and (ii) AEC has all
rights, licenses and authorizations required to enter into and
perform this Agreement, and the performance by AEC of its
obligations pursuant to this Agreement will not violate any United
States federal, state or municipal laws, rules, regulations or
ordinances or the provisions of any agreement to which AEC is a
party or by which AEC is bound; (iii) AEC will use commercially
reasonable efforts to ensure that any reports to be delivered to B&N
hereunder will be complete and accurate provided, however, that AEC
expressly disclaims any warranty or representation regarding the
accuracy of the availability and pricing data and generally any data
contained in the Product Availability File (given such data's
origination with the suppliers); and (iv) AEC's title to the
Products is good and free and clear of all encumbrances and liens.
b. By B&N. B&N warrants and represents for the benefit of AEC as
follows: (i) B&N responsibilities and promises herein will be
rendered in accordance with all requirements identified in this
Agreement; (ii) B&N has all rights, licenses and authorizations
required to enter into and perform this Agreement and the
performance by B&N of its obligations pursuant to this Agreement
will not violate any United States federal, state or municipal laws,
rules, regulations or ordinances or the provisions of any agreement
to which B&N is a party or by which B&N is bound; (iii) B&N will use
commercially reasonable efforts to ensure that any reports to be
delivered to AEC hereunder will be complete and accurate; (iv) B&N
has all necessary rights to sell Products to Customers; and (v) B&N
shall provide a sales tax resale certificate for each state that
shipment is to be made to, and if necessary, B&N shall provide
resale certificates for any state upon AEC's request.
16. INDEMNIFICATION
a. By AEC. AEC shall indemnify, hold harmless and defend B&N and all of
B&N's employees, officers, directors and agents from and against any
and all subpoenas
-7-
served, and/or claims threatened, damages, losses, liabilities,
suits, actions, demands, proceedings (whether legal or
administrative) and expenses (including but not limited to
reasonable attorneys' fees incurred, with or without suit, in
arbitration or mediation, on appeal or in a bankruptcy or similar
proceeding) (collectively, "Claims") threatened, asserted or filed
by a third party against any of the aforesaid persons or entities to
the extent that such third party Claims arise out of or relate to
(i) the breach of any material warranty, representative or agreement
made by AEC in this Agreement; or (ii) any grossly negligent or
tortious act, willful misconduct or willful omission by AEC;
provided, however, the foregoing indemnity obligation shall be
binding if, and only to the extent that, the Claim at issue does not
arise out of or relate to: (a) a matter in respect of which AEC is
entitled to indemnification under Section 16(b) below, or (b) the
Product Availability File.
b. By B&N. B&N shall indemnify, hold harmless and defend AEC and all
employees, officers, directors and agents of AEC from and against
any and all subpoenas served, Claims threatened, asserted or filed
by a third party against any of the aforesaid persons or entities to
the extent that such third party Claims arise out of or relate to:
(i) the breach of any material warranty, representation or agreement
made by B&N in this Agreement; or (ii) any grossly negligent or
tortious act, willful misconduct or willful omission by B&N. The
foregoing indemnity obligation shall be binding if, and only to the
extent that, the Claim at issue does not arise out of or relate to a
matter in respect of which B&N is entitled to indemnification under
Section 16(a) above.
c. Manner of Exercise. Any person or entity that is entitled to be
indemnified pursuant to this Section 16 ("Indemnified Party") must
first give prompt notice to the indemnifying Party (the
"Indemnifying Party") in writing of the occurrence of the Claim for
which indemnity is requested and, at the option of the Indemnifying
Party, the Indemnifying Party may assume the handling, settlement
and defense of such Claim, in which event the Indemnified Party will
cooperate in all reasonable respects with the Indemnifying Party at
the Indemnifying Party's expense. The Indemnifying Party shall
reimburse the Indemnified Party on demand for any payment made by
the Indemnified Party in respect of any Claim to which the foregoing
indemnity relates which either (i) has resulted in an adverse
judgment against the Indemnified Party or (ii) has been settled with
the written consent of the Indemnifying Party, which it may withhold
for any reason.
17. DEFAULT AND TERMINATION
a. B&N shall have the right to terminate this Agreement before the
expiration of the Term:
i. if AEC fails to meet the Fill Standards set forth in Section
2(c) above; or
-8-
ii. upon an AEC Change of Control (as defined below), provided B&N
notifies AEC of the election to terminate not later than
thirty (30) days following the dare of the consummation of an
AEC Change of Control.
As used herein, an "AEC CHANGE OF CONTROL" shall be
defined as (a) the sale, exchange or transfer of all or
substantially all of AEC's assets; (b) any transaction
or series or related transactions in which one or more
entities directly or indirectly acquire ownership of or
control over capital stock of AEC (or securities
exchangeable for or convertible into such stock)
entitled to elect fifty percent (50%) of the number of
shares of AEC common stock outstanding on the date
thereof, or (c) otherwise become (by contract or
otherwise) entitled to exercise control over or elect
fifty percent (50%) or more of AEC's Board of Directors.
b. Default. In the event of a default (a "DEFAULT"), the non-defaulting
Party shall have the right to terminate this Agreement by giving
notice to the other Party under this Agreement and of its election
to terminate this Agreement, after the non-defaulting Party becomes
aware of such Default. Each of the following is a Default:
i. The failure of either Party to materially perform any of such
Party's obligations contained in this Agreement, which failure
has not been cured within ten (10) days, in the case of a
breach in any payment obligation hereunder, or thirty (30)
days, in the case of a breach in any other kind of obligation
hereunder, after the non-breaching Party provides notice to
the breaching Party describing the breach(s) in reasonable
detail.
ii. The occurrence of any of the following: (a) any Party admits
in writing its inability to pay its debts generally or makes a
general assignment for the benefit of creditors; (b) any
affirmative act of insolvency by any party filing by any Party
of any petition or action under any bankruptcy,
reorganization, insolvency, arrangement, liquidation,
dissolution or moratorium law, or any other similar law or
laws for the benefit of, or relating to, debtors; (c) the
filing, by any third party, against any party of any petition
or action of the type described in clause (b) above, which has
not been either controverted by such Party within fifteen (15)
days after its receipt of the service of process dating to
such filing, or stayed or dismissed within thirty (30) days
after the time of such receipt; (d) the subjection of a
material part of any Party's property to any levy, seizure,
assignment or sale for or by any creditor, third party or
governmental agency, provided that such levy, seizure,
assignment or sale has not been stayed, discharged or reversed
within thirty (30) days after the date of issuance of the
order or decree which authorized the same; or (e) the issuance
of an injunction enjoining either Party from performing any of
its material obligations hereunder, which injunction has not
been stayed,
-9-
discharged or reversed within thirty (30) days after the date
of issuance of the order or decree which authorized the same.
c. Effect of Default and Termination. If there is a Default or this
agreement is terminated or otherwise expired, this Agreement shall
terminate and the Parties shall have all rights and remedies
provided in this Agreement upon termination in addition to those
rights and remedies it may have under law or equity, subject to
Section 18 (Limitation of Liability) hereof. Upon termination or
expiration of the Agreement, B&N's access to the Product
Availability File shall cease, and B&N shall purge and destroy all
Product Availability File data from any location it was placed by
B&N. Within seven (7) days of termination or expiration, the Parties
shall certify, in writing, to the cessation and destruction of any
proprietary information of the other Party.
18. LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT,
SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OF ANY NATURE OR LOST PROFIT
DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
The foregoing shall not be interpreted to limit either Party's right to be
fully indemnified to the extend provided under Section 16 for damages
claimed by a third party.
19. FORCE MAJEURE
Neither Party shall be in breach of this Agreement solely due to causes
beyond the control and without the fault or negligence of such Party. Such
causes may include, but are not restricted to, acts of God or of a public
enemy, acts of terrorism, acts of war, acts of the government in either
its sovereign or contractual capacity, fires, floods, epidemics,
quarantine restrictions, strikes, freight embargoes, power failure, or
failure of the U.S. postal system. Both Parties agree to inform the other
of any Force Majeure event within 72 hours of its occurrence, or as soon
as possible. Failure to notify of such event within 72 hours may result in
forfeiture by either Party to claim that such an event has occurred.
20. NOTICES
All notices, requests, demands and other communications which are required
or may be given under this Agreement shall be in writing and shall be
deemed to have been duly given if hand-delivered or mailed by either
registered or certified mail, return receipt requested, or by nationally
recognized overnight courier service, receipt confirmed. In the case of
notices via first-class or courier service, notices shall be deemed
effective upon the date of receipt or upon the date returned for
non-delivery. Notices shall be addressed to the Parties as set forth
below, unless either Party notifies the other of a change of address, in
which case the latest noticed address shall be used:
-10-
Notices to BYN: Notices to AEC:
Mr. Chuck Gorman AEC One Stop Group, Inc.
Vice President of Music and Video Attn: President and CEO
Barnes & Noble, Inc. 4250 Coral Ridge Drive
122 Fifth Avenue, 7th Floor Coral Springs, FL 33065
New York, NY 10011
Copy to: Copy to:
Barnes & Noble, Inc. Legal Dept.
122 Fifth Avenue Fax: 954-255-4068
New York, NY 10011 Phone: 954-255-4058
Attn: Legal Department Email: legsec@acnt.com
21. GENERAL
a. Relationship of the Parties. The relationship between the Parties
shall be an independent contractor relationship. Nothing herein
shall be construed as creating or constituting the relationship of
employer/employee, franchisor/franchisee, principal/agent,
partnership, or joint venture between the Parties.
b. Governing Law; Jurisdiction. This Agreement shall be governed by and
interpreted under the laws of the State of New York without regard
for conflict of laws provisions.
c. Enforceability. If any provision of this Agreement is held to be
unenforceable by a court of competent jurisdiction, such provision
shall be more narrowly and equitably construed so that it becomes
legal and enforceable or simply deleted if that is not possible, and
the entire Agreement shall not fail on account thereof and the
balance of the Agreement shall continue in full force and effect.
d. No Waiver. Any of the provisions of this Agreement may be waived by
the Party entitled to the benefit thereof. Neither Party will be
deemed, ;by any act or omission, to have waived any of its right or
remedies hereunder unless such waiver is in writing and signed by
the waiving Party, and then only to the extent specifically set
forth in such writing. A waiver with reference to one event will not
be construed as continuing or as a bar to or waiver of any other
right or remedy, or as to a subsequent event.
e. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of
which together will constitute one and the same instrument.
f. Entire Agreement. This Agreement contains the entire agreement
between the Parties with respect to the subject matter hereof,
supersedes all prior agreements, negotiations and oral
understandings, if any, and may not be amended, supplemented, or
modified in any way, except by an amendment in writing and signed by
authorized officers of the Parties hereto, including, but not
limited to that certain June 19, 1998 Database License and
Fulfillment Services Agreement
-11-
as amended February 1, 1999 and the Short Form Agreement. No
amendment shall be in effect or accomplished by the acknowledgement
or acceptance of a purchase order, invoice, or other forms
stipulating different terms. This Agreement shall inure to the
benefit of and be binding upon each of the Parties and their
respective successors and administrators, trustees and legal
representatives.
g. Headings. Headings used in this Agreement are for the purposes of
convenience only and shall not affect the legal interpretation of
this Agreement.
h. Draftsmanship. Each of the Parties hereto has been represented by
its own counsel. In the event of a dispute, no provisions of this
Agreement shall be construed in favor of one Party and against the
other by reason of the draftsmanship of this Agreement.
i. Survival. The terms and provisions of this Agreement if by their
sense and context are intended to survive the performance of such
term or provision or of this Agreement shall so survive the
completion of performance and termination of this Agreement,
including without limitation the provisions of Sections 14, 15, 16
and 18 hereof.
j. Effective Date. This Agreement shall be effective on the Effective
Date.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the date first above written.
Barnes & Noble, Inc. AEC One Stop Group, Inc.
Name: Chuck Gorman Alan Tuchman
--------------------------------- ---------------------------------
Individual signing (please print) Individual signing (please print)
Signature: /s/ Chuck Gorman /s/ Alan Tuchman
----------------------------- ---------------------------------
Title: Vice President Music/Video President
-12-