the cigar business, which shall be ascertained and determined as follows: (aa) The real estate, buildings, unmanufactured stock, stock in process of manufacture, and that fully manufactured, shall be paid for, at the cost thereof to the Partners, as shown by the books of the Partners, if the same shall have been accurately kept. In arriving at the cost of any of such property, no amount shall be allowed for interest on the investment made by the Partners. But, in the case of stock of tobacco, the actual cost of carriage, storage and insurance shall be considered and allowed. (bb) Machinery and fixtures, such as are useful and available in the cigar business, shall be paid for, at its actual cost and agreed value; but, in no case, at a price exceeding the cost. (cc) Wrapping materials, labels and supplies, other than leaf and manufactured stock, shall be paid for, as provided in subdivision "(aa)" of this article, provided, however, that none shall be taken or paid for by the said new corporation, except such as will be useful and available to it in its business. (dd) Such leasehold as the said Partners have, useful to said new corporation in its business, shall be turned over to said new corporation, without premium. (ee) If the Partners shall have made advances on contracts for the purchase of leaf, and additional amounts shall be due to the vendors thereof, the said new corporation will, upon receipt of such leaf, if said contract is taken by said new corporation, pay for the same, by returning to the Partners the amount advanced by them, without interest, and settling with the vendors for the balance due him. (ff) No contracts of whatever sort not set out in "Schedule A" hereto attached, shall be taken over by said new corporation, unless the same shall be approved of and agreed to by Harry Koe, who is hereby appointed the agent for that purpose, for both the New York Corporation and the New Jersey Corporation. 10. It is agreed that said new corporation shall be organized under the direction of the legal advisers of the New York Corporation and the New Jersey Corporation, and that no charge shall be made to said new corporation for the legal advice and services in its organization. The expense of such organization, other than legal advice and services, shall, however, be borne by the said new corporation. 11. (a) The stock of said new corporation shall be issued for cash, at par, and it shall be issued and paid for in the proportion of seven (7%) per cent to the Partners, or to their nominees, and forty-six and one-half (462%) per cent to the New York Corporation, or its nominees, and forty-six and one-half (462%) per cent to the New Jersey Corporation, or its nominees; and each of the parties shall meet any call for cash made by the board of directors of said new corporation, as follows: (1) Seven (7%) per cent of the amount so called shall be paid by the Partners, or their nominees; and (2) Forty-six and one-half (462%) per cent thereof, by the New York Corporation, or its nominees; and (3) Forty-six and one-half (462%) per cent thereof, by the New Jersey Corporation, or its nominees. (b) Stock shall issue to the amount that payments shall be made, and at the time when such payments shall be made, instead of being credited to the subscribers paying the same on their respective stock subscriptions. (c) In case the board of directors of said new corporation shall decide to purchase any other property, or business, and to pay for the same in stock, and not in cash, the stock necessary and used in such purchase shall be deducted equally from the amount that under this agreement would be coming to the New York Corporation and the New Jersey Corporation and the payments required by them shall be likewise abated. 12. That said new Corporation shall be organized with a paid-up capital stock of ten thousand ($10,000) dollars, of which the nominees of the New York Corporation and the nominees of the New Jersey Corporation shall hold ninety-three hundred ($9,300) dollars, and the Partners, and their nominees, shall hold seven hundred ($700) dollars; and these first stockholders shall organize and elect a board of directors, and, thereafter, such board of directors shall control the operation of said new corporation, controlling only by the provisions of this agreement. The said nominees of said New York Corporation and New Jersey Corporation shall select a name for said new corporation and fix the number of its directors. IN WITNESS WHEREOF, on the day and year first above written, the Partners have caused this instrument to be signed and sealed in their partnership name, by John Doe, one of the active partners, and they have individually set their hands and seals hereto, and the New York Corporation and the New Jersey Corporation has each hereunto signed its name, by its President, thereunto duly authorized, and affixed its corporate seal, attested by its Secretary. Doe & Co., Agreement to operate a department in store of one adventurer, upon profit-sharing basis." THIS AGREEMENT, made January 5, 1923, by John Doe, residing at No. 112 Broadway, Borough of Manhattan, New York City (herein called the "First Party"), and Richard Roe, residing at No. 371⁄2 Broadway, Borough of Manhattan, New York City (herein called the "Second Party"), WITNESSETH: WHEREAS, the First Party is now engaged in business, under the name and style of John Doe & Co., in the premises, known as No. 112 Broadway, Borough of Manhattan, New York City; and Adapted from Stoller v. Franken (1916), 171 App. Div. 371, 157 N. Y. Supp. WHEREAS, the Second Party is about to engage in business in the said premises, as herein more fully described: Now, THEREFORE, IT IS HEREBY MUTUALLY AGREED, AS FOLLOWS: 1. That the Second Party shall operate a department for selling dress fabrics in the said premises of the First Party, which shall be known as the "Roe Department of Doe & Co.," and that such department shall be independent of any other business conducted in said premises; and, in the event of the removal of the First Party from said premises, such department shall be conducted at such other place to which the First Party may move. 2. That the First Party shall furnish the cash and credit for all merchandise ordered, or secured, for the purpose of such department, and shall pay the running expenses and salaries of employes of said department, and that the full amount thereof shall be deducted and remitted to him from the gross income of the said department before the division of the profits thereof. 3. That there shall be paid to the First Party a monthly rental of fifty ($50) dollars, for the space necessary for the conduct of the business of said department, and the reasonable value of the gas and electricity consumed in the operation of the said department. 4. (a) That the Second Party shall manage the business of said department, and shall buy and sell, with the approval of the First Party, all goods and merchandise, both in this country and abroad, which are necessary for the successful maintenance and conduct of the business of said department. (b) That the Second Party shall faithfully and diligently, and according to the best of his ability, in all respects, purchase the goods, wares and merchandise needed for the said department, and sell the same for the best interests of the department. (c) That the Second Party shall draw the sum of forty-five ($45) dollars a week, which shall be debited as an expense of the said department, and that he shall receive, at the end of each year, fifty (50%) per cent of the net profits of the said department. 5. That all moneys, checks, or negotiable instruments, belonging to this department, shall be in the custody and under the supervision of the First Party, and that all books, accounts and papers, belonging to the said department, shall always be open and subject to the inspection of each party hereto. 6. (a) That the First Party shall receive and draw, at the end of each and every year, fifty (50%) per cent of the net profits of the said department; and, in addition thereto, shall receive and draw the sum of twenty-five ($25) dollars per week, which shall be debited as an expense of said department. (b) That the Second Party shall make no purchase, without the written consent of the First Party, and that the Second Party shall not endorse any note, nor sign any checks to be paid by the First Party, nor charged to the department heretofore set forth, nor incur any obligations whatsoever, in connection therewith, without the written consent of the First Party. 7. That this agreement shall continue for a period of two (2) years, from the date hereof. 8. That, in the event of any violation of this agreement by either party hereto, the other party may terminate this agreement, by giving ten (10) days' notice in writing, setting forth in writing that part of the agreement which it shall be claimed has been violated. IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and seals, the day and year first above written. In the presence of John Smith. John Doe (L.S.). |