Exhibit 10.25
JOINT VENTURE AGREEMENT
This Agreement, dated and effective as of November 25, 1994, by and
between CELEX Group, Inc., an Illinois corporation ("Celex"), and Celebrating
Excellence of Minnesota, Inc., a Minnesota corporation ("CEM"), being
hereinafter sometimes collectively called "Partners" and individually called a
"Partner",
W I T N E S S E T H
WHEREAS, the Partners wish to engage together in the operation of
retail "SUCCESSORIES" businesses in the State of Minnesota and, to further that
objective, to form a partnership and adopt this Agreement as the articles of
partnership of such partnership (the "Partnership");
WHEREAS, Celex and CEM previously entered into an Area Development
Agreement dated May 26, 1992 (the "Area Development Agreement") which authorized
CEM to develop and establish one (1) or more Franchised Businesses as defined
therein within the designated territory described therein, each pursuant to a
separate franchise agreement;
WHEREAS, of even date herewith CEM has contributed its right, title and
interest in and to the Area Development Agreement and all franchise agreements
related thereto to the Partnership;
WHEREAS, of even date herewith, CEM has contributed certain assets
directly related to CEM's current retail operations at the Southdale Center in
Edina, Minnesota and the Ridgedale Shopping Center in Minnetonka, Minnesota to
the Partnership;
WHEREAS, Celex and CEM previously signed an agreement dated April 26,
1993 regarding the potential mutual development of a retail store at the Mall of
America in Bloomington, Minnesota which, as of the date of execution of this
Agreement, both parties agree and acknowledge is of no further force or effect
whatsoever;
WHEREAS, as a result of the assignment of the Area Development
Agreement and any related franchise agreements to the Partnership, in addition
to the Partnership relationship established under this Joint Venture Agreement
between Celex and CEM, the parties intend that the terms of this Agreement shall
take precedence over any conflicting provisions of the Area Development
Agreement or any related franchise agreements, it being intended that the rights
and privileges of the parties with regard to the operation of the business of
the Partnership and their relationship to one another as Partners shall be
governed by this Agreement; and
WHEREAS, Celex and CEM agree and acknowledge that all amounts payable
by CEM to Celex for franchise territories "B" and "C" and defined the Area
Development Agreement are hereby forgiven and of no further force or effect.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and benefits herein set forth and contemplated, the Partners agree as
follows:
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ARTICLE I
ORGANIZATION OF THE PARTNERSHIP
(a) ESTABLISHMENT
(i) The Partners hereby form and establish a general partnership (the
"Partnership") under the Illinois Uniform Partnership Act for the limited
purposes and scope set forth herein, and hereby adopt this Agreement as the
Articles of Partnership of the Partnership.
(ii) Except to the extent otherwise provided herein, the rights and
liabilities of the Partners and the conduct and termination of the Partnership
shall be governed by the Illinois Uniform Partnership Act.
(iii) The Partners will promptly execute all certificates and other
documents, and make all such filings and recordings and perform such other acts
as may now or hereafter be necessary or desirable, to comply with the
requirements of Illinois law for the organization and formation of the
Partnership and the carrying on of its business.
(iv) Each Partner shall be a general partner.
(v) All real and other property including permits and licenses
owned by or granted to or held by the Partnership shall be deemed to be owned
by or granted to or held by the Partnership as an entity, and no Partner,
individually, shall have any ownership of or right to use any such property.
(b) NAME
The name of the Partnership is "Minnesota Joint Venture" and the
Partnership's business and affairs shall be conducted only under that name.
(c) EFFECTIVE DATE AND TERM
The Partnership shall commence on the date hereof (hereinafter called
the "Effective Date") and shall continue in effect until terminated as provided
in Article X hereof.
(d) PRINCIPAL OFFICE
The principal office and place of business of the Partnership shall be
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other location as the
Partners may designate.
(e) PURPOSE AND SCOPE
The sole purpose of the Partnership shall be to engage in the business
of operating "Successories" retail businesses in the State of Minnesota and in
other activities incidental to such business; and performing all other
activities, including the borrowing of money and the mortgaging of real or
personal property of the Partnership in connection therewith, as are necessary
or incidental to conducting such business.
The Partners acknowledge and agree that there are certain aspects of
Celex's current business operations which are beyond the scope and purpose of
the Partnership and this Agreement. Specifically, Celex's direct mail marketing
and wholesale sales operations will remain under the exclusive control of Celex
and all profits resulting from such operations will remain the exclusive
property of Celex. The Partnership shall have the ability, however, to conduct
its own direct sales marketing activities within the State of Minnesota and
Celex shall assist in such efforts by providing the names and addresses of
persons from the State of Minnesota who purchase product directly from
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Celex. Further, Celex agrees to include "ink jet" messages on catalogs mailed by
Celex within the State of Minnesota which advise potential customers of the
location of retail stores operated by the Partnership.
The Partnership shall have the power to do any act and thing and to
enter into any contract incidental to, or necessary, proper or advisable for,
the accomplishment or attainment of the purpose of the Partnership specified in
this Agreement.
(f) PARTNERS' AUTHORITY
Except as provided in this Agreement, no Partner acting alone shall
have any authority to act for, or to assume any obligations or responsibilities
on behalf of, the other Partner or the Partnership. Each Partner will indemnify
the Partnership and the other Partner against any claim, loss or damage to the
Partnership or such other Partner which may result from the Partner's breach of
this Section (f).
ARTICLE II
OTHER BUSINESSES
Except as otherwise provided herein, nothing contained in this
Agreement shall be deemed to restrict in any way the freedom of either Partner
or of any Affiliate of either Partner to conduct, independently of the
Partnership, any business or activity whatever (other than the business
contemplated to be performed by the Partnership under and in accordance with
this Agreement) without any accountability to the Partnership or to the other
Partner. For purposes of this Agreement "Affiliate" means, as to any entity, a
corporation, company, trust, firm or other entity which directly or indirectly
controls, or is controlled by, or is under common control with, such entity.
Both Partners specifically acknowledge and agree that the purpose of
the Joint Venture is to own and operate retail Successories locations and to
conduct direct sales marketing activities incident thereto. As such, each
Partner agrees that it will not engage in any similar type activity outside of
the Partnership which would reasonably be construed as competitive with the
Partnership.
Further, Celex specifically agrees that it will use its best efforts to
enforce the provisions of any other agreement it may have with a third party
which prohibits the third party from conducting sales or marketing efforts
within the State of Minnesota.
ARTICLE III
CONTRIBUTIONS TO THE PARTNERSHIP
(a) INITIAL CONTRIBUTIONS
On the date of this Agreement Celex and CEM shall contribute to the
capital of the Partnership, and convey, transfer and assign into the name of the
Partnership, all of its right, title and interest in and to the properties,
real, personal and mixed, identified on Exhibit A (the "Initial Properties").
Celex and CEM each represent and warrant to the other and the Partnership that
the respective Initial Properties contributed by each of them are free and clear
of any liens or other interests of third parties of any nature whatsoever.
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(b) ADDITIONAL CONTRIBUTIONS
(i) It is the intention of the Partners to provide all necessary funds
for management, operation and expansion of the Partnership from the cash flow
from operation of the retail Successories businesses. However, from time to time
when required for Partnership purposes as determined by the Partners, the
Partnership may choose to provide additional capital to the Partnership through
a commercial lender or through a loan to the Partnership from Celex Group, Inc.
If such a loan is provided to the Partnership by Celex Group, Inc., the Partners
agree and acknowledge that the loan terms must be commercially reasonable and no
more favorable than could be secured by the Partnership through traditional
commercial lending programs. Any loan by Celex Group, Inc. to the partnership
shall not have a term in excess of five (5) years. Any loan to the Partnership
may only be in the amounts provided for in subsections (A) and (B) below and are
hereinafter referred to as "Working Capital":
(A) the cash costs of the Partnership for the construction,
acquisition or development (whether in the form of acquisition or construction
costs or lease payments) of any new retail stores or related assets, and
(B) all other cash costs of Partnership operations after
taking into account all income available to the Partnership for Partnership
purposes.
(ii) Except as described above, no interest shall be paid by the
Partnership on any capital contributed to the Partnership.
ARTICLE IV
PARTNERSHIP INTERESTS
(a) THE PARTNERS' PERCENTAGE PARTNERSHIP INTERESTS
Each Partner's Interest in the Partnership (its "Partnership Interest")
shall be as follows:
Celex - 60%
CEM - 40%
subject to adjustment as provided in Article VIII.
(b) ALLOCATIONS TO BE ACCORDING TO PARTNERSHIP INTERESTS
Each Partner shall be entitled to each item of the Partnership's
income, profit, gain, loss, cost, deduction, credit or allowance in proportion
to its Partnership Interest.
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ARTICLE V
MANAGEMENT OF THE PARTNERSHIP
(a) THE OPERATING COMMITTEE AND THE MANAGER
The general conduct of the business of the Partnership shall be vested
in an Operating Committee, which shall be empowered to set policy for and issue
instructions to the general manager of the Partnership's business (the
"Manager"), and to make all decisions in respect of the business and operations
of the Partnership, except as otherwise set forth in this Agreement. The Manager
shall have the responsibility for the day to day management of the operations
and activities of the Partnership and shall be subject to the overall
supervision of the Operating Committee. The initial Manager shall be ▇▇▇▇▇▇
▇▇▇▇▇▇ under the terms and provisions of an Employment Agreement (the
"Employment Agreement") as approved by the Operating Committee, but generally as
set forth of Exhibit B attached hereto.
(b) OPERATING COMMITTEE MEMBERS, VOTING AND MEETINGS
The Operating Committee shall be composed of two representatives of
each Partner. Each Partner may from time to time and for any reason replace any
member of the Operating Committee appointed by it or designate an alternate to
act for any member, which alternate shall be deemed a member of the Operating
Committee while so acting. Each appointment made by a Partner to the Operating
Committee shall remain in effect until the Partner making such appointment shall
notify the Partnership and the other Partner of a change in such appointment.
The members of the Operating Committee representing each Partner shall vote as a
unit, and at all meetings of the Operating Committee a member shall be acting
solely as the representative of the Partner which appointed him. All actions of
the Operating Committee shall be taken by majority vote with the representative
or representatives of each Partner present being entitled to vote in proportion
to such Partner's Partnership Interest. Bi-annual meetings of the Operating
Committee, at which among other things programs and budgets shall be considered,
shall be held at the principal office of the Partnership on the first business
day of February and August of each year (or such other date as the Operating
Committee shall designate) and other meetings of the Operating Committee shall
be held from time to time as the Operating Committee shall determine. Special
meetings may be called by any member upon three days notice to each of the
Partners. No business shall be conducted at any meeting of the operating
Committee, however, unless Partners with at least a majority of the Partnership
Interests are represented. Minutes shall be kept reflecting the actions of the
Operating Committee, copies of which shall be promptly transmitted to each
member and the Partners. Each Partner represents that it will use its best
efforts to have its representative(s) present at all regular and properly
noticed special meetings of the Partnership. Any action of the Partnership
requiring a vote of the Operating Committee may be taken by unanimous written
consent of the partners without a meeting.
(c) EMPLOYEES
Celex shall employ and pay such persons, and provide such
employees with such fringe benefits as the Operating Committee shall from time
to time authorize, and the costs and expenses of such employees shall be
reimbursed from the Partnership to Celex on a monthly basis, not later than the
fifteenth (15th) day of each month as to the prior month. Celex shall report to
the Partnership, not later than the fifth (5th) day of each month, the invoiced
amount for such employee expenses as to the prior month.
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(d) CERTAIN MATTERS REQUIRING UNANIMOUS CONSENT
Notwithstanding any other provision herein, the specific consent of
each Partner shall be required in connection with the following matters and no
action on such matters shall be taken by the Operating Committee or the Manager
except in accordance with the consent of both Partners:
(i) Any contract or agreement (including without limitation any
contract or agreement for engineering, architectural, construction,
environmental or financial or other consulting services, or any lease of
equipment or facilities or extension of credit on behalf of a supplier) calling
for, or reasonably expected to call for, the payment over its term by the
Partnership of more than $5,000.00.
(ii) Incurring, guaranteeing or otherwise becoming liable for
indebtedness for borrowed money in an amount in excess of $10,000.00 in the
aggregate, or $5,000.00 with respect to a specific transaction.
(iii) Any charge, mortgage, lien or other encumbrance on or with
respect to property owned by the Partnership other than charges, liens or
encumbrances incurred in the ordinary course of business and removed or
discharged within thirty days of the incurring thereof.
(iv) Any lease or sublease of any property owned by the Partnership.
(v) The acquisition or agreement to acquire or lease any property under
a lease, conditional sale or other title retention agreement or subject to any
lien, charge or encumbrance.
(vi) Any action or inaction which might cause the breach or termination
of any material agreement to which the Partnership or any Partner is a party, or
termination of any rights or benefits to which the Partnership or any Partner is
entitled.
(vii) Any sale or transfer of any property or asset of the Partnership,
other than obsolete or worn-out assets and property or assets, except in the
ordinary course of business.
(viii) The employment or discharge of employees of the Partnership at
the level of store manager or any higher level.
(ix) The adoption of pension and other employee benefit plans.
(x) The liquidation or dissolution of the Partnership, except pursuant
to Article XII hereof.
(xi) Any transfer, assignment, charge, mortgage, lien or other
encumbrance of, on or in respect of a Partners Partnership Interest, except as
provided in Article IX.
(xii) Amendment of this Agreement or any of its Exhibits.
(xiii) Merger or consolidation of the Partnership into or with any
other entity.
(xiv) Any reduction or discontinuance of operations of the Partnership.
(xv) Approval or modification of the Annual Business Plan and Annual
Budget as set forth in Article VI below.
(xvi) Development of any new business operations.
(xvii) Approval or modification of material changes in accounting
procedures or policies.
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(e) DEVELOPMENT OF ADDITIONAL STORES
(i) The terms of this Agreement contemplate that the Partners and the
Operating Committee must agree upon the timing and expense to be incurred by the
Partnership in connection with the opening of new retail operations within the
State of Minnesota.
(ii) The Partners agree that they will cooperate with one another in
good faith to determine the appropriate time and location for expansion of
business operation of the Partnership recognizing that as Partners they have a
fiduciary relationship on to the other.
(iii) The Partners agree that time is of the essence in the development
of all retail operations undertaken by the Partnership and that the Partnership
will develop and operate at least three (3) Successories retail locations (one
(1) of which will be the Mall of America location in Bloomington, Minnesota) or
maintain a cash balance of more than Twenty-Five Thousand Dollars ($25,000.00)
before requesting any sort of cash or profit distributions to the Partners.
(iv) The Partners agree that all Stores will operated in accordance
with the standards established by Celex for its company-owned stores and,
further, that the Partnership will purchase product for its retail stores in
accordance with the price list established by Celex for its company-owned
stores, which price list generally reflects Celex's fully absorbed cost.
ARTICLE VI
ACCOUNTING MATTERS; BOOKS AND RECORDS; TAX RETURNS
(a) FISCAL YEAR
The fiscal year of the Partnership shall be a calendar year, which is
the Federal income tax year of Celex.
(b) BOOKS, RECORDS AND ACCOUNTS
(i) In consideration of the services rendered by Celex to the
Partnership as provided for in subsection (b), (c) and (d) of the Article VI,
the Partnership agrees to pay to Celex, on a monthly basis, an administrative
fee equal to each store's pro rata portion of administrative overhead charge for
retail Successories businesses owned or operated by Celex, but in any event in
an amount not to exceed three percent (3%) of the net revenues of the
Partnership on an annualized basis. For purposes of this Agreement, "net
revenues" shall refer to the total revenues associated with the Partnership
operations, less all applicable taxes and freight charges. Not later than ninety
(90) days after the close of each fiscal year of the Partnership, Celex shall
provide an accounting of the administrative fees paid to Celex for that fiscal
period together with a reconciliation of amounts owed to the Partnership by
Celex or amounts owed by the Partnership from Celex to adjust the payment to the
annualized amount provided for herein.
(ii) The books and records of the Partnership shall be maintained on an
accrual basis in accordance with generally accepted accounting principles based
upon information supplied by Manager to Celex so as to reflect accurately, among
other things:
(A) contributions by each Partner,
(B) the capital account of each Partner,
(C) distributions to each Partner,
(D) assets and liabilities,
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(E) receivables from and payables to each Partner,
(F) income of the Partnership, and
(G) adequate records to permit the filing of Partners' and
Partnership tax returns showing gross receipts, cost of goods sold, gross
income, other income, deductions, losses, allowances, credits and net profits or
losses.
(c) FINANCIAL REPORTS; INDEPENDENT AUDITS
Promptly after the end of each month, Celex, on behalf of the
Partnership, shall prepare and deliver to each Partner financial statements and
related reports reflecting the financial position of the Partnership at the
close of the month and the results of operations of the Partnership for the
month. The Partnership shall have a certified audit of its books made as soon as
practicable after the close of each fiscal year by Price Waterhouse or such
other nationally recognized firm of public accountants as the Partners shall
designate, and shall furnish each Partner copies of such financial statements
and related reports reflecting the financial position of the Partnership at the
close of the fiscal year and the results of operations of the Partnership for
the fiscal year, together with the certificate of the public accountants
covering the results of such audit.
(d) TAXES AND TAX RETURNS
Celex, on behalf of the Partnership, shall prepare and file all tax
returns required to be filed by the Partnership pursuant to the Internal Revenue
Code of 1986, as amended (the "Code"), or any successor statutes, and all state
and local tax returns required to be filed by the Partnership. The tax books of
the Partnership shall be kept on an accrual basis. For tax purposes each item of
gross income, profit, gain, loss, cost, deduction, credit or allowance shall be
allocated to each partner in proportion to its Partnership Interest. No changes
in the accounting methods for the purpose of preparation of tax returns of the
Partnership shall be made without the consent of each Partner.
(e) ANNUAL BUDGET
Within forty-five (45) days of the commencement of each fiscal year of
the Partnership, other the fiscal year commencing January 1, 1994, the Partners
shall agree upon, on a pro forma basis, the estimated receipts and expenditures
(capital, operating and other) and an income statement for the ensuing fiscal
year (the "Annual Budget"). Until such time as the initial Annual Budget is
approved by the Partnership, the Operating Committee is authorized to incur such
expenses on behalf of the Partnership in the ordinary course of business for the
initial retail operation constituting part of the Initial Capital of the
Partnership.
(f) ANNUAL BUSINESS PLAN
Within forty-five (45) days of the commencement of each fiscal year of
the Partnership, other than the fiscal year commencing January 1, 1994, the
Operating Committee shall agree upon a business plan for the operation of the
business of the Partnership during the ensuing fiscal year (the "Annual Business
Plan"). The Annual Business Plan will set forth an Annual Budget as described in
subsection (e) above, and a plan and schedule for the operation of existing
retail businesses of the Partnership as well as a plan for the development of
additional retail businesses as contemplated by the Partners. The Partnership
shall use its best efforts to implement the Annual Business Plan and Annual
Budget and each subsequently approved Annual business Plan and Annual Budget in
accordance with the terms thereof.
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ARTICLE VII
DISTRIBUTIONS
Except as otherwise specifically provided in this Agreement, all
distributions and withdrawals of any Partnership assets shall be made only as
and when determined by unanimous agreement of both Partners and only after the
repayment of any loans made to the Partnership by a Partner as required by the
terms of such loan. All distributions of any Partnership assets, including those
on termination and dissolution of the Partnership, shall be in accordance with
their respective Partnership interests.
ARTICLE VIII
FAILURE TO PAY
(a) FAILURE OF A PARTNER TO PAY
For a period of five (5) years after the execution of this Agreement,
the Partners agree that all additional contributions to the Partnership shall be
in accordance with the terms and conditions of Article III(b) of this Agreement.
After five (5) years, however, if a partner fails in its obligation to pay or
contribute promptly any amount required hereunder to the Partnership, such
obligation shall constitute indebtedness due from such Partner to the
Partnership and shall bear interest at the monthly rate of one percent (1%). In
addition to the right of the Partnership to recover such indebtedness and
interest:
(i) the other Partner may, but shall not be required to, make such
payment contribution (together with interest thereon) to the Partnership on
behalf of such defaulting Partner, which if made shall constitute indebtedness
due from such defaulting Partner to such other Partner and shall bear interest
at the monthly rate of one percent (1%), and
(ii) such other Partner may at any time recover from the defaulting
Partner the amount of such debt and interest and may recover any other damages
suffered as a result of such failure to make such a payment or contribution. If
such other Partner elects to apply the provision of Section (b) of this Article
VIII with respect to such failure, the provisions of this Section (a) shall no
longer be applicable with respect to such obligation.
(b) CERTAIN CONSEQUENCES AND REMEDIES
If the amount referred to in Section (a) of this Article VIII that a
Partner shall have failed to pay or contribute shall at any time exceed $10,000
in the aggregate, and such failure (hereinafter in this Section (b) called a
"default") continues for a period of 120 days after notice thereof to the
Defaulting Partner from the other Partner (hereinafter in this Section (b)
called the "Non-Defaulting Partner"), which notice shall state that the
Non-Defaulting Partner elects to have the provisions of this Section (b) apply,
then the remaining Partners who are willing to do so may, but shall not be
required to, make a contribution in excess of their proportionate share, in such
amounts as said Partners may agree among themselves. If they are unable to
agree, then each such Partner who is able and willing to make a contribution
shall have the primary right to contribute that portion of such excess computed
by the proportion which such contributor's Partnership Interest bears to the
aggregate capital interests of all such contributors, and also a secondary right
to contribute any remaining portion of such excess which is not desired to be
contributed by any other Partner in the exercise of his primary right; if there
is more than one Partner desiring to exercise secondary rights, they shall be
entitled to contribute the said remaining portion of such excess in the same
proportion as stated above with regard to primary rights.
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After such contributions are made, each Partner's Partnership Interest
shall be adjusted and determined by dividing the aggregate contributions of all
the Partners to the Partnership since the inception of the Partnership into the
aggregate contribution of each Partner. The resulting quotient with respect to
each Partner shall be the adjusted Percentage Interest of such Partner.
ARTICLE IX
RESTRICTIONS ON TRANSFER OF PARTNERSHIP
INTERESTS
(a) PERMITTED TRANSFERS
Neither Partner may transfer, sell, alienate, assign or otherwise
dispose of all or any part of its interest in the Partnership, whether
voluntarily, involuntarily or by operation of law, or at a judicial sale or
otherwise; provided that nothing herein contained shall be construed to prohibit
either
(i) the transfer of Celex's (a) entire interest in the Partnership to
any corporation 100% of the capital stock of each class of which is owned
directly or indirectly by Celex, or a corporation under common control with
Celex, or (b) the sale of all or substantially all of the assets of Celex or the
sale of all the capital stock of Celex; or
(ii) the transfer of CEM's entire interest in the Partnership to any
corporation 100% of the capital stock of each class of which is owned directly
or indirectly by CEM.
In the case of any proposed transfer as described above, such
transferee shall, immediately upon such transfer, become a Partner and expressly
assume in writing the due and punctual performance of all the obligations of the
transferring Partner under this Agreement and consent and undertake in writing
to assume and perform all the obligations hereunder not theretofore performed
and discharged by such Partner and to execute this Agreement and to be bound by
all the terms and provisions hereof; provided further, however, that no such
transfer shall be permitted without the express written consent of the
non-transferring Partner if such transfer would, in the reasonable opinion of
the non-transferring Partner, result in adverse tax consequences to the
non-transferring Partner.
(b) CONDITION OF PERMITTED TRANSFER
Whenever pursuant to this Article IX any transferee is entitled to
become a Partner, the other Partner shall execute an appropriate instrument
admitting such transferee as a Partner.
(c) RELEASE UNDER CERTAIN CIRCUMSTANCES
No transfer or other occurrence referred to above in this Article IX
shall release the transferring party of any obligations under this Agreement
(and such transferring party shall remain jointly and severally liable hereunder
with such transferee corporation) unless the other Partner shall consent
thereto, which consent may not be unreasonably withheld.
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ARTICLE X
NON-COMPETE PROVISIONS
(i) After the execution of this Agreement, while CEM shall remain a
Partner and, in order to protect the goodwill of the Partnership for a period of
one (1) year following the dissolution of the Partnership or any purchase of its
Partnership Interest, CEM, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ each
agree that they will not engage directly or indirectly through any person or
entity controlled by them in the marketing or sale of any motivational or
self-improvement products other than those of Celex, anywhere (i) in the United
States, or (ii) in any foreign jurisdiction in which Celex is engaged in sales
or marketing activities; provided, however, if the sale of its Partnership
Interest results from a Change in control of Celex, as defined in Article X
above, then the provisions of this Section (d) shall terminate as of the date of
such purchase. Ownership of less than five percent (5%) of the common stock of
any publicly held company shall not be deemed to be a violation of this
Paragraph.
(ii) CEM, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ each
understand and agree that Celex could not be reasonably or adequately
compensated in damages in an action at law for their collective or individual
breach of an obligation under this Article. Accordingly, CEM, ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ specifically agree that, in addition to any
other remedies to which Celex may be entitled, Celex shall be entitled to
injunctive relief without any requirement for the posting of any bond to enforce
the provisions of this Section.
ARTICLE XI
If a Partner fails to cure any default of its obligations under this
Agreement (other than the failure to pay contributions due hereunder as provided
for in Article VIII which failure to make contributions shall be governed by the
provisions of Article VIII), within thirty (30) days after the effective date of
notice of such default, or if the default is of such a character as to
reasonable require more than thirty (30) days to cure, and the defaulting
Partner shall fail to commence to cure the default within said thirty (30) day
period and diligently thereafter to pursue completion of such cure or shall fail
to use reasonable diligence in curing its default after the service of notice,
then the other Partner, by giving written notice to that effect to the
Partnership may cause dissolution of the Partnership as provided for in Article
XII below. If the defaulting Partner disputes the existence of a default, the
Partners shall arbitrate the issue of whether a default exists in accordance
with the provisions of Article XIII hereof.
ARTICLE XII
TERM; DISSOLUTION; TERMINATION
(a) TERM
The Partnership shall continue until terminated in accordance with the
provisions of this Article XII. No Partner shall have the right to and each
Partner agrees not to dissolve, terminate or liquidate, or to petition a court
for the dissolution, termination or liquidation of the Partnership, except as
provided in this Agreement.
(b) EVENTS OF DISSOLUTION
(i) The Partnership shall dissolve:
(A) upon the unanimous written agreement of the Partners to
dissolve the Partnership,
(B) upon the ninety-ninth anniversary of this Agreement,
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(C) upon the occurrence of any of the following: a Partner
becomes insolvent or generally fails to pay, or admits in writing its inability
to pay, debts as they become due, or a Partner applies for, consents to, or
acquiesces in the appointment of, a trustee, receiver or other custodian for
such Partner or any property thereof, or 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 a Partner
or for a substantial part of its property and is not discharged within
thirty-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 a Partner and if such case or
proceeding is not commenced by such Partner, it is consented to or acquiesced in
by such Partner or remains for thirty days undismissed.
(D) at the option of the non-defaulting Partner, upon a
default of a Partner as provided for in Article XI.
(ii) Upon the dissolution of the Partnership pursuant to either of
Subsections (b)(i)(A) or (b)(ii)(B) of this Article XII, the Partnership and its
business shall promptly be wound up and terminated. Upon the dissolution of the
Partnership caused by any other event set forth in Section (b) of this Article
XII:
(A) the Partner as to whom the event described in such
sections has occurred (the "Withdrawing Partner") shall immediately cease to be
a Partner, and
(B) the remaining Partner may send such notices of the
dissolution of such persons and entities as the remaining Partner may deem
appropriate and necessary under the circumstances,
(C) the remaining Partner shall settle the business of the
Partnership as promptly as is consistent with obtaining fair market value of the
assets, and the liquidation shall be conducted in compliance with law and sound
business practices; provided the remaining Partner shall be entitled to
determine the sales price and terms of sale of assets of the Partnership in
liquidation. Any Partner may make a bid or tender on any part of the Partnership
assets, provided such bid is consistent with the fair market value of the
Partnership assets.
(D) without limiting any other right or remedy of the
remaining Partner (hereinafter in this Subsection (E) called the "Purchasing
Partner"), the remaining Partner shall have the right and option to acquire the
Partnership Interest of the Withdrawing Partner, which option shall be exercised
(if at all) by giving notice to the Withdrawing Partner setting forth the
intention of the remaining Partner to acquire such Partnership Interest, the
purchase price that the Purchasing Partner is willing to pay for such
Partnership Interest and the date (which shall not be earlier than thirty days
nor later than sixty days from the date such notice is given) upon which such
Partnership Interest shall be transferred by the Withdrawing Partner to the
Purchasing Partner. The Withdrawing Partner shall be bound by the provision of
such notice relating to such purchase price and such date, unless within 60 days
after the date of such notice the Withdrawing Partner give the Purchasing
Partner notice that such purchase price is unacceptable. If the Withdrawing
Partner gives such notice as to unacceptability, the purchase price shall be the
fair market value of such Partnership Interest (after taking into consideration
any reduction in the Selling Partner's Partnership Interest or the value thereof
as a result of the operation of or the events described in Article VIII)
determined by arbitration pursuant to Article XI.
(c) CONTINUING CONDUCT OF THE PARTNERSHIP
During the pendency of any arbitration or request for arbitration or of
the enforcement of any claim against a Partner for a breach of or for default
under the terms of this Agreement, the business and affairs of the Partnership
shall be conducted so as to maintain and preserve the value of the Partnership
as a going concern. During any period of winding up, the business and affairs of
the Partnership shall be conducted as to maintain and preserve the assets of the
Partnership in a manner consistent with the winding up of the affairs thereof.
Each Partner will indemnify the Partnership and the other Partner against any
claim, loss or damage to the Partnership or such other Partner which may result
from the Partner's breach of this Section (c).
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(d) LIQUIDATION AND DISTRIBUTION PROCEDURE
In the event of any liquidation and distribution as a result of the
termination of the Partnership, the assets of the Partnership shall be
distributed in accordance with the provisions of the Illinois Uniform
Partnership Act except as otherwise provided herein.
(e) SURVIVAL OF CLAIMS
Notwithstanding anything to the contrary contained in this Agreement,
any claim of any Partner against another Partner hereunder and any claim
asserted by any Partner on behalf of the Partnership against another Partner
hereunder shall survive any dissolution or termination of the Partnership.
ARTICLE XIII
ARBITRATION
Either Partner may cause to be submitted to arbitration of all
disputes, controversies or questions of interpretation arising out of this
Agreement or any breach or default hereunder by giving to the other Partner
notice to that effect. The arbitration shall be held in Chicago, Illinois and
shall be conducted in accordance with the Commercial Arbitration Rules of the
American Arbitration Association as in effect at the time of such arbitration
except as follows. The Partner desiring arbitration shall include in its notice
to the other Partner the name of the arbitrator chosen by it. Within twenty days
after receipt of such notice the Partner receiving notice shall, by written
notice to the Partner desiring arbitration, name the arbitrator chosen by it and
within twenty days after the appointment of the second arbitrator an additional
arbitrator shall be selected by the two arbitrators theretofore appointed;
provided, however, if one of the Partners shall have failed to appoint an
arbitrator as hereinabove provided, the sole arbitrator appointed by the other
Partner shall arbitrate the matter alone. If the two arbitrators shall have
failed to select an additional arbitrator within the above stated time, the
additional arbitrator shall be appointed by the Chief Judge of the United States
Court of Appeals for the Seventh Circuit, acting in his individual capacity, or
in the event of his failure to appoint the additional arbitrator, by the Chicago
Regional Director of the American Arbitration Association. No arbitrator shall
be an employee or former employee of the Partnership, either Partner, or an
Affiliate of either Partner. After their selection, the arbitrators (or sole
arbitrator as the case may be) shall proceed promptly with the arbitration
proceedings and shall come to a decision and shall deliver a written report
thereof to both Partners no later than ninety days after the selection of the
last of their number (or in the case of a sole arbitrator, 110 days after his
selection). Each Partner shall pay the cost and expenses of the arbitrator
appointed by it and shall share equally the other costs and expenses of the
arbitration, including the costs and expenses of the additional arbitrator. The
right of either Partner to seek or obtain any remedy pursuant to this Article XI
shall be in addition to the remedies provided for in Article X hereof and shall
survive the dissolution of the Partnership or the sale and purchase of a
Partner's Interest in the Partnership pursuant to Article X hereof.
ARTICLE XIV
GENERAL
(a) NOTICES
All notices, demands or requests required or permitted to be given
pursuant to this Agreement shall be in writing and shall be deemed to have been
given when delivered personally or when deposited in the United States Mail,
postage prepaid, by registered or certified mail, with return receipt requested,
addressed as follows:
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If to CELEX, to:
CELEX Group, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
With a Copy to:
C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, Ltd.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
or at such other address as CELEX may have furnished ▇▇▇▇▇ CEM by
notice;
If to CEM:
▇▇▇▇▇▇ ▇▇▇▇▇▇
Celebrating Excellence of Minnesota, Inc.
Successories Mall of America
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
With a Copy to:
▇▇▇▇ ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
or at such other address as CEM may have furnished CELEX by notice.
(b) AMENDMENT
This Agreement may not be amended except by a written instrument
executed by all Partners.
(c) APPLICABLE LAW
This Agreement and the performance of the Partners hereunder shall be
interpreted, construed and enforced in accordance with the laws of the State of
Illinois and no presumption shall be deemed to exist in favor of or against
either Partner as a result of the preparation and/or negotiation of hereof.
(d) ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties
hereto relating to the subject matter hereof and there are not other
understandings, representations or warranties, oral or written, relating to the
subject matter of this Agreement, which shall be deemed to exist or to bind any
of the parties hereto, their respective successors or assigns except as referred
to herein.
(e) FURTHER ASSURANCES
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Each Partner shall execute such deeds, assignments, endorsements and
other instruments and evidences of transfer, give such further assurances and
perform such acts as are or may become necessary or appropriate to effectuate
and to carry out the provisions of this Agreement. All such deeds, assignments,
endorsements and other instruments and evidences of transfer and all other acts
of any kind which are to be as of the date of this Agreement shall be delivered
or taken as soon as possible following the date of this Agreement.
(f) THIRD PARTIES
No person not a party to this Agreement (including any employee of
either Partner or its Parent or the Partnership) shall have or acquire any
rights by reason of this Agreement nor shall any party hereto have any
obligations or liabilities to such other person by reason of this Agreement.
(g) ADMISSION OF ADDITIONAL PARTNERS
Except as provided in Article IX hereof, no additional Partners may be
admitted to the Partnership except upon the unanimous consent of the Partners
and upon such terms and conditions as the Partners may agree upon.
(h) SEVERABILITY
If any provisions of this Agreement or the application thereof to any
person or circumstances shall be invalid or unenforceable to any extent, the
remainder of the Agreement and the application of such provisions to other
persons or circumstances shall not be affected thereby and shall be enforced to
the greatest extent permitted by law.
(i) BINDING AGREEMENT
Subject to the restrictions on transfers and other dispositions set
forth herein, this Agreement shall insure to the benefit of and be binding upon
the undersigned Partners and their respective successors and assigns.
(j) HEADINGS
The headings of Sections in this Agreement are for convenience only and
are not a part of this Agreement.
(k) ATTORNEY'S FEES
In any Partner or the Partnership commences an action against any other
Partner or the Partnership to interpret or enforce any of the terms of this
Agreement or as a result of a breach by any other Partner or the Partnership of
any terms hereof, the losing (or defaulting) party shall pay to the prevailing
party all reasonable attorney's fees, costs and expenses incurred in connection
with the prosecution or defense of such action, whether the action is prosecuted
to final judgment.
(l) EQUITABLE REMEDIES
In the event of a breach or threatened breach of this Agreement by any
Partner, the remedy at law in favor of the other Partners will be inadequate and
such other Partners, in addition to any and all other rights which may be
available, shall accordingly have the right of specific performance in the event
of any breach and the right to an injunction in the event of any threatened
breach of this Agreement by any Partner.
(m) NO THIRD PARTY RIGHTS
The provision of this Agreement are for the exclusive benefit of the
Partners and the Partnership and no other party (including without limitation
any creditor of the Partnership) shall have any right or claim against the
Partnership
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or any Partner by reason of those provisions or be entitled to enforce any of
those provisions against the Partnership or any Partner.
ARTICLE XV
REPRESENTATIONS AND WARRANTIES
(a) Each party represents and warrants to the other that it is a
corporation duly organized and validly existing and in good standing under the
laws of its State of Incorporation and that it has all requisite corporate power
and authority to enter into and perform this Agreement and that its entry into
and performance of this Agreement does not violate the terms of any prior
agreement or violate any order, writ, injunction, decree, statute, rule or
regulation applicable to such Partner. Each party represents that this Agreement
has been duly executed and delivered by it and is a valid and legally binding,
enforceable obligation of such Partner.
(b) As to the Initial Capital, each Partner represents that there is no
litigation pending or to their knowledge threatened which in any manner affects
the Initial Capital Contributions.
(c) Each Partner represent that the Initial Capital contributed by it
is not subject to any title defects or encumbrances. Each party represents and
warrants that it has full right, title and authority to enter into the related
documents associated with this Joint Venture Agreement and all related
documentation.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement in the State of Illinois by their duly authorized officers, effective
as of the date and year first above written.
CELEBRATING EXCELLENCE OF CELEX GROUP, INC.
MINNESOTA, INC.
BY: _______________________________ BY: _______________________________
ITS: _______________________________ ITS: _______________________________
_______________________________ _______________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
_______________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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EXHIBIT A
CEM: All assets (except cash, cash equivalents and accounts
receivable directly related to CEM's current retail operations
in the State of Minnesota including, but not limited to the
retail stores in the Southdale Center and Ridgedale Shopping
Center. The value of inventory on hand at said retail stores
shall be applied against those current outstanding amounts
payable by CEM to Celex.
All right, title and interest in and to the Area Development
and Franchise Agreement dated May 26, 1992 by and between CEM
and Celex and relating to the State of Minnesota.
CELEX: The commitment and ability to secure a retail location in the
Mall of America in Bloomington, Minnesota as well as the
ability and commitment to secure funding for the Joint Venture
and its operations.
All right, title and interest in the development rights and
franchise rights for the State of Minnesota.
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