counsel and other representatives would be providing you, both in writing and orally, with detailed financial and other business information concerning the Company and its possible future plans.
In consideration and as a condition of such retention, you hereby agree that:
(1) All of the above-referenced information (hereinafter, the "Proprietary Information") will be deemed to be strictly confidential, except to the extent that it is or becomes generally available by means of disclosure other than by you in breach of this confidentiality agreement.
(2) Unless otherwise agreed to by us in writing, you covenant not to (a) disclose or reveal any Proprietary Information to any person or entity other than (i) potential buyers of the Company who are contacted by you in the course of your employment by the undersigned, in which case you will disclose only such Proprietary Information as is contained in a confidential offering memorandum or similar materials that shall have been reviewed in advance by the undersigned, or (ii) persons employed by you or working on your behalf who are directly participating in the giving of advice to the undersigned, or the Company or who otherwise normally have access to information of such nature under your established internal confidentiality procedures (all of which persons or entities you shall cause to observe the terms and conditions set forth herein as though each such person or entity was bound hereby), unless such disclosure is compelled by a final order of a court of competent jurisdiction, or (b) use the Proprietary Information for any purpose other than your giving of advice to the undersigned or the Company.
(3) If the Company should decide not to go forward with a proposed transaction on which you have given advice, or if our retention of you should otherwise be concluded, we will advise you of that fact, and in such case you will promptly, if we so request, deliver to us all of the Proprietary Information furnished to you including all copies, summaries or extracts thereof in your possession or in the possession of any of your employees or agents.
Very truly yours,
^ABC Inc.
By:
Agreed:
^
By:
AGREEMENT C
^[Letterhead of Banker or Agent]
^XYZ Inc.
^
Attention: ^
Dear ^:
As you have been advised, the undersigned ("^MNO") is acting on behalf of ^ABC Inc. ("^ABC") in connection with the possible sale of ^ABC's subsidiary ^DEF Inc. ("^DEF"). For purposes of your evaluation of such a transaction you have requested a copy of a confidential offering memorandum relating thereto (the "Confidential Memorandum") and have also requested certain additional oral and written information from officers, employees and agents of ^ABC, including ^MNO (the Confidential Memorandum and all such other information are hereinafter collectively called the "Evaluation Material"). Such material will be furnished to you on condition that, in consideration thereof, you agree as follows:
(a) You acknowledge that the Evaluation Material is intended solely for your own limited use in evaluating the above described possible transaction, and you agree that it will be used only for such purpose and that neither you nor any director, officer, employee, affiliate, advisor or agent of you (collectively, "Affiliates and Representatives") will disclose any of the Evaluation Material to any third party without prior written authorization from ^ABC or ^MNO and will not use any of the Evaluation Material in a manner or for a purpose directly or indirectly detrimental to ^ABC or ^DEF. In addition, the Evaluation Material will be disclosed only to those of your Affiliates and Representatives who need to know such information for the purpose stated above and who are informed of the confidential nature of such information and agree to keep the information strictly confidential. You agree to be responsible for any breach of this agreement by any of your Affiliates or Representatives.
(b) Notwithstanding the above, any particular portion of the Evaluation Material shall not be considered confidential if and to the extent that:
(i) it was in your possession on a nonconfidential basis at the time it was provided to you hereunder;
(ii) it was known to the general public through publication or otherwise at the time it was provided to you hereunder, or became known to the general public through publication or otherwise, through no act or omission of you or your Affiliates and Representatives, after it was provided to you hereunder or
(iii) was lawfully and independently received by you from a third party after it was provided to you hereunder, provided, however, that it was not directly or indirectly derived from ^ABC or any affiliate of ^ABC subject to a confidentiality obligation.
(c) You will keep a record of the written Evaluation Information that is furnished to you and of the location thereof, and a copy of such record will be made available to ^ABC on its request. You will return all copies of tangible Evaluation Information to ^ABC if a purchase of ^DEF is not consummated by you or if ^ABC requests such return, and you will destroy all copies of any analyses, compilations, studies or other documents prepared by you or for your use containing any Evaluation Material. If ^ABC so requests, you will certify in writing that such return and destruction have taken place.
(d) You will not and will direct your Affiliates and Representatives not to, without ^ABC's prior written consent, disclose to any person either the fact that an investigation or negotiations are taking place concerning a possible transaction between ^ABC and you or that you have requested or received Evaluation Material, or any substantive terms of such investigation or negotiations, including the status thereof. Notwithstanding the foregoing, if in the opinion of your counsel you are required by federal or state securities laws to make public disclosure of any such information, you will notify ^ABC of the reasons for the proposed disclosure and deliver to ^ABC a copy of the proposed disclosure (or if delivery is not practicable under the circumstances, you will orally communicate the contents of the proposed disclosure), and give ^ABC an opportunity to comment on and suggest possible revision or amendment of such disclosure.
(e) You acknowledge that none of ^ABC, ^DEF, ^MNO or any of their respective affiliates makes any express or implied representation or warranty as to the accuracy or completeness of the Evaluation Information, and that each of ^ABC, ^DEF, ^MNO and their respective affiliates expressly disclaims any and all liability that may be based on the Evaluation Information or errors therein or omissions therefrom. It is understood, however, that the foregoing shall be subject to any representations and warranties of ^ABC or any affiliate of ^ABC, and any limitations and restrictions with respect thereto, as may be set forth in a mutually agreed definitive sale agreement when and if such an agreement is executed.
(f) You will not:
(i) without ^ABC's or ^MNO's prior written consent, initiate or maintain contact during a period of two years from the date hereof, except in the ordinary course of business, with any director, officer, employee or agent of ^ABC or any affiliate of ^ABC regarding ^ABC's business, finances or prospects,
(ii) without ^ABC's or ^MNO's prior written consent, enter into any agreement, arrangement or understanding with a third party regarding the possible purchase of the stock of ^DEF (it being expressly understood that you will not act as joint or co-bidder with any other person), or
(iii) without ^ABC's or ^DEF's prior written consent, within two years from the date hereof directly or indirectly solicit for employment, or within one year after the date hereof employ, any person who is now employed by the ^DEF in an executive position.
(g) If you or any of your Affiliates or Representatives are requested or required by law to disclose any Evaluation Material, you will provide ^ABC with prompt notice of the request so that ^ABC may seek an appropriate protective order and/or waive your compliance with the provisions of this agreement. If in the absence of a protective order or such a waiver you are nonetheless, in the opinion of your counsel, compelled to disclose any Evaluation Material to a court or other tribunal under circumstances where you would be liable for contempt or other penalty if disclosure is not made, you will disclose to such tribunal only that portion of the information that is legally required to be disclosed.
(h) You acknowledge that breach of this agreement by you or any of your Affiliates or Representatives would cause ^ABC to suffer irreparable harm for which legal damages would not be a sufficient remedy. Accordingly, you consent to injunctive or other appropriate equitable relief, including injunction and specific performance, upon the institution of legal proceedings by the ^ABC or any affiliate of ^ABC. Such remedy shall not be deemed to be the exclusive remedy for any such breach of this agreement but shall be in addition to all other remedies available at law or equity to ^ABC or its affiliates.
(i) You unconditionally and irrevocably agree and consent (i) that service of any process by U. S. registered or certified mail addressed to you at the address set forth above shall be effective service of process in any action brought against you under this agreement, and (ii) to submit to the exclusive jurisdiction of the state and federal courts located within the State of Illinois in any such action (and you agree not to commence any action under this agreement except in such courts). This agreement shall be governed by the laws of the State of Illinois applicable to agreements made and to be performed wholly within such state.
If you are in agreement with the foregoing, please sign and return one copy of this letter, which will constitute our agreement with respect to the subject matter hereof.
Very truly yours,
^MNO Inc. on behalf of ^ABC Inc.
By:
Its: ^
Agreed:
^XYZ Inc.
By:
Its: ^
[This form is Form 9.8 from ILLINOIS CORPORATE AND BUSINESS FORMS by Thomas N. Jersild (Copyright © 1995 by Michie), and is reprinted by permission. Information about the publication may be obtained at (800)562-1197.]
General partnership agreement of a business owned by individuals
By Thomas N. Jersild, Mayer Brown & Platt, Chicago
[Note: This form contemplates a partnership of a group of individuals engaged in holding and managing real estate (or another business). The form delegates decision-making authority to partners holding an agreed percentage of the partnership interests; gives the partnership and the other partners a right of first offer on sales of partnership interests to third parties; provides for purchase of partnership interests by the partnership at an appraised value under certain circumstances on death, retirement, bankruptcy or encumbrance; and provides an installment payment procedure for such purchases.]
ARTICLES OF PARTNERSHIP OF ^ABCD ASSOCIATES
[Editor's note: The ^ denotes insertion point for person or entity name, or date.]
ARTICLES OF PARTNERSHIP of ^, ^, ^, and ^, dated ^, 19^.
RECITAL
The parties hereto wish:
(a) to enter together into the business of purchasing, acquiring, operating, leasing, owning and selling real property, including but not limited to that certain parcel of land described on Exhibit A hereto and all improvements constructed thereon and
(b) in order to provide for and carry out the foregoing, to form and do business as a general partnership under and pursuant to Illinois law.
NOW THEREFORE, in consideration of the premises and the mutual covenants and agreements set forth herein, the parties agree as follows:
Definitions.
As used in this Agreement the terms listed below will have the meanings stated below, and other terms defined elsewhere will have the meanings there ascribed to them:
"Agreement" or "this Agreement," these Articles of Partnership.
"Bankruptcy," with respect to any Person, shall mean that such Person shall have become insolvent or generally failed to pay, or admitted in writing his or its inability to pay, debts as they become due; or shall have applied for, consented to, or acquiesced in the appointment of, a trustee, receiver or other custodian for such Person or any property of such Person, or such Person makes a general assignment for the benefit of creditors; or, in the absence of such application, consent or acquiescence, a trustee, receiver or other custodian is appointed for such Person or for a substantial part of the property of such Person and is not discharged with sixty days; or any bankruptcy, reorganization, debt arrangement, or other case or proceeding under any bankruptcy or insolvency law, or any dissolution or liquidation proceeding is commenced in respect of such Person and if such case or proceeding is not commenced by such Person, it is consented to or acquiesced in by such Person or remains for sixty days undismissed; or such Person takes any action to authorize, or in furtherance of, any of the foregoing.
"Partner," each or any of the parties hereto and any other Person or entity that may hereafter become a partner of this Partnership pursuant to the terms of this Agreement.
"Partnership," the general partnership formed under and pursuant to this Agreement.
"Person," a natural person, partnership, corporation, unincorporated association, trust, estate or any other entity.
"Retirement," the determination of a Partner, of which notice shall have been given to all other Partners, no longer to continue as a Partner.
Section 1.
Name.
The name of the Partnership shall be "^ABCD Associates."
Section 2.
Principal Place of Business.
The Partnership's principal office and place of business (the "Office") shall be ^, ^, Illinois.
The Partnership shall have such other or additional offices as the Partners may from time to time designate in accordance with this Agreement.
Section 3.
Business and Purpose.
3.1. The Partnership's business and purpose are to acquire, hold, manage, operate, develop, sell and lease real property or interests therein ("Property"), including but not limited to that certain parcel of land and all improvements constructed thereon described on Exhibit A hereto, and to engage in any other business that the Partners, acting in accordance with Section 8 of this Agreement, shall determine.
3.2. The Partnership shall have authority and power to engage in any other activities necessary to conduct the business described in Section 3.1 including, by way of illustration and not limitation, arranging for and delivering contracts of sale, deeds, leases, deeds of trust, ground leases, mortgages, notes and other evidence of indebtedness, security agreements, and other security instruments; entering into agreements for the construction, design and management of improvements; and doing all things reasonably incident to the development, management, leasing and sale of Property.
Section 4.
Term.
The Partnership shall commence on the date of this Agreement and, unless sooner terminated in accordance with this Agreement, shall continue until the close of business on ^, 19^.
Section 5.
Capital Contributions.
5.1. The initial capital contribution of each Partner to the Partnership shall be made within ^ days following the date of this Agreement in the amount set forth below after his or her name:
Name of Partner / Amount of Initial Contribution
^$^
^$^
^$^
^$^
5.2. An individual capital account shall be maintained for each Partner and shall consist of his or her initial capital contribution, increased by (a) additional capital contributions made by him or her and (b) his or her share of Partnership profits and gains, and decreased by (i) distributions of profits and capital to him or her and (ii) his or her share of Partnership losses, deductions and credits, and otherwise in accordance with generally accepted accounting principles.
5.3. Except as specifically provided in this Agreement or by applicable law, no Partner shall have the right to withdraw his or her contributions to the capital of the Partnership.
Section 6.
Partnership Interests.
6.1. Each Partner's interest in the Partnership (his or her "Partnership Interest") shall be as follows:
Name of Partner / Partnership Interest
^^%
^^%
^^%
^^%
Total 100%
6.2. All profits and losses, and all items of income, gain, loss, deduction or credit, shall be shared by the Partners in accordance with their respective Partnership Interests.
Section 7.
Distribution of Profits.
7.1. The Net Cash From Operations (as defined in Section 7.2) of the Partnership shall be distributed to the Partners in accordance with their respective Partnership Interests at such regular time or times as the Partners acting in accordance with Section 8 shall determine; provided that no distribution of Net Cash From Operations shall be made at any time when any Installment of Purchase Price (as defined in Section 19) shall be due and owing but unpaid.
7.2. As used in this Section 7, the term "Net Cash From Operations" means, with respect to any period in time:
7.2.1. The taxable income of the Partnership for federal income tax purposes as shown on the books of the Partnership for such period, increased by:
(a) the depreciation and amortization deductions taken in computing such taxable income, and
(b) any non-taxable income or receipts of the Partnership for such period, reduced by:
(i) payments made during such period of principal of any indebtedness of the Partnership for borrowed money, and
(ii) such expenditures and reserves for capital improvements or replacements, repairs, other anticipated expenses and working capital needs as the Partners, acting in accordance with Section 8, shall deem reasonably necessary for the conduct of the business;
plus:
7.2.2. Any other funds (including without limitation amounts earlier set aside for reserves but no longer deemed necessary for such purpose) deemed available for the distribution by the Partners acting in accordance with Section 8.
7.3. In addition to regular distributions made pursuant to Section 7.1, upon any sale, transfer or other disposition of any capital asset of the Partnership (hereinafter referred to as a "Disposition"), the proceeds of such Disposition net of selling or other expenses and the repayment of indebtedness secured by the asset subject to the Disposition (the "Net Proceeds") shall be retained by the Partnership or be distributed to the Partners in proportion to their respective Partnership Interests, all as the Partners acting in accordance with Section 8 shall determine.
Section 8.
Management of the Partnership.
8.1. Except as all of the Partners may otherwise agree in writing, all actions and decisions respecting the management, operation and control of the Partnership and its business (including without limitation all determinations referred to in this Agreement) may be taken or made with (and shall not be taken or made except with) the consent and agreement of Partners having aggregate Partnership Interests of not less than ^%.
8.2. Each Partner shall devote to the business of the Partnership so much of his or her time as shall in such Partner's sole judgment be reasonably necessary for the efficient operation of the business.
8.3. Nothing contained in this Agreement shall be deemed to constitute any Partner the agent of another Partner or to limit the Partners in the carrying on of their separate respective business activities. Without limiting the foregoing it is expressly recited that any Partner may engage in and possess any interest in any business or venture other than the business of the Partnership, independently or with other persons, and whether or not directly or indirectly in competition with the business of the Partnership, and neither the Partnership nor any other Partner shall