SIXTH DIVISION

									December 15, 2000

No. 1-99-2163

WILLIAM KIPNIS,				)		Appeal from the

							)		Circuit Court of

	Plaintiff-Appellant,		)		Cook County.

							)

v.							)		No. 98 CH 5615

							)

MANDEL METALS, INC.,			)		The Honorable

							)	 Dorthy Kirie Kinnaird,

	Defendant-Appellee.			)	 	Presiding Judge.

	JUSTICE BUCKLEY delivered the opinion of the court:

	This action arises from an employment contract dispute.  In

October 1990, Richard Mandel, acting on behalf of defendant, Mandel

Metals, Inc. (MMI), entered into a contract with plaintiff William

Kipnis.  The contract gave Kipnis a 25% interest in the sale of one

or more of MMI's divisions, should such division(s) be sold. 

Alternatively, the contract gave Kipnis the right to make a bona fide offer to purchase such division(s).  MMI would then have the option

to accept or reject Kipnis' offer.  In the latter case, MMI would

pay Kipnis an amount equal to 25% of the gain MMI would have

realized had it accepted Kipnis' offer.  In March 1998, MMI

rejected Kipnis' offer, concluding that it was not a "bona fide offer" pursuant to the employment agreement.  In April 1998, Kipnis filed

a complaint for declaratory judgment and specific performance against MMI.  The complaint sought a declaration that Kipnis' offer

constituted a bona fide offer pursuant to the employment agreement.  Alternatively, the complaint sought a declaration that MMI breached

the employment agreement by refusing to provide Kipnis with

appropriate financial information necessary to formulate a bona fide offer.  In June 1999, the trial court granted summary judgment in

MMI's favor, rejecting both of Kipnis' arguments.  Kipnis raises

the same arguments on appeal.  We reverse.

I. BACKGROUND

	In 1982, MMI hired Kipnis to work in its scrap metal business. 

While employed at MMI, Kipnis helped MMI develop an aluminum

distribution business known as the Service Center Group (SCG).  By

1997, SCG constituted one of MMI's two components, while the scrap

metal division constituted the second component.  SCG consisted of

three subcomponents:  (1) the Service Center Division, which

distributes primary aluminum; (2) Lednam (also called the "Subsid

iary"), which manufactures blank signs for the traffic industry;

and (3) American Aerospace Materials, which sold aluminum to the

aerospace industry.  Kipnis operated SCG since its inception and

eventually expressed an interest in buying it.  

	On October 31, 1990, Kipnis, MMI, and the Subsidiary entered

into an employment agreement.  The employment agreement, drafted by

MMI, covered a 10-year term (ending November 1, 2000) and estab

lished Kipnis' salary, bonus, and severance package.  Additionally,

paragraph 4 of the employment agreement provided in pertinent part:

	"(a) In the event that Service Center

Division and/or the Subsidiary shall be sold, Kipnis shall be paid a sum equal to 25% of the

gain from the sale of such division(s), com

puted as the difference between (a) the agreed

value of the Service Center Division and/or

the Subsidiary as of November 1, 1990, and (b)

the sale price of the Service Center Division

and/or subsidiary ***.  The agreed value of

the Service Center Division and the Subsidiary

as of November 1, 1990, shall be determined by

the Corporation's independent accountant and

approved by Mandel and Kipnis, and said

amounts shall be stated in an [e]xhibit at

tached hereto.  

	(b) Subparagraph (a) shall not apply to

any such sale unless Kipnis is a salaried

employee of the Corporation at the time of

such sale; provided that, (i) if Kipnis'

employment shall be terminated by the Corpora

tion without 'cause,' as defined in Paragraph

6, and (ii) Kipnis shall not have violated the

Noncompetition Agreement in Exhibit A, then

this Paragraph 4 shall apply to any such sale

made within 24 months after the termination of

his employment."  

Additionally, paragraph 5 provided in pertinent part:

	(a) "This [p]aragraph 5 shall apply only

 if (i) the Service Center Division or the

Subsidiary, or both, has not been sold on or before November 1, 2000; (ii) Kipnis (repre

senting himself alone or an investor group)

submits a bona fide offer in writing to the Corporation, to purchase, at a cash price pay-

able in a lump sum at the closing, the Service

Center Division and/or Subsidiary; and such

purchase price is either agreed by the Corpo

ration, or is determined, in the manner here

inafter provided, to be equal to or greater

than the fair market value of the Service

Center Division and/or Subsidiary; (iii) the

Corporation rejects such offer.  In such

event, Kipnis shall be entitled to receive 25%

of the gain which the Corporation would have

realized if such sale had been consummated as

provided in Paragraph 4.  A bona fide offer must include evidence of the availability of funds

to pay the purchase price.

	***

	(d) This paragraph 5 shall not apply to

any offer submitted by Kipnis unless he is a

salaried employee of the Corporation; provided

that, (i) if Kipnis' employment shall be

terminated by the Corporation without 'cause,'

as defined in paragraph 6, and (ii) Kipnis

shall not have violated the Noncompetition

Agreement in Exhibit A, then this Paragraph 5 shall apply to an offer submitted by Kipnis

within 12 months after the termination of his

employment."

	In sum, paragraphs 4 and 5 collectively provided that, if MMI

sold the Service Center Division and/or the Subsidiary within the

contractual period, it would pay Kipnis 25% of the gain.  If it did

not sell the Service Center Division and/or the Subsidiary, Kipnis

could make an offer for it.  MMI then had the option to accept

Kipnis' offer or, alternatively, reject Kipnis' offer and pay him

an amount equal to 25% of the gain it would have realized had it

accepted.  The foregoing was subject to Kipnis' continued employ

ment at MMI.  If Kipnis no longer worked for MMI, he could retain

his rights under the employment agreement for only 12 months from

the termination date, and only if he was terminated without cause.

	On March 25, 1997, MMI terminated Kipnis without cause.  On

May 17, 1997, the parties entered into a termination agreement. 

The termination agreement acknowledged that MMI terminated Kipnis

without cause and preserved his rights under paragraphs 4 and 5 of

the employment agreement.  The termination agreement also provided

that Kipnis could retain copies of certain financial records,

already in his possession, for purposes of exercising his rights

under the employment agreement.  The termination agreement did not

require MMI to provide other records nor did it expressly limit

Kipnis' access to those records in his possession.

	In June 1997, Kipnis began requesting information regarding

the Service Center Division, advising MMI that such information was

necessary to formulate his offer and to obtain financing.  MMI

forwarded several balance sheets, reports, and other financial statements to Kipnis.  Kipnis continued to request financial

information and, in September 1997, Mandel informed Kipnis that MMI

would not release any other documents until Kipnis made a "bona fide offer."  Over the next several months, Kipnis continued to request

financial information.  Kipnis also advised Mandel that both

Kipnis' investor and lender requested audits and tours of the plant

before they would commit financial backing, but Mandel refused

access.  MMI continued to take the position that it would provide

no further information until it received a bona fide offer.

	On March 10, 1998, Kipnis sent MMI a letter expressing his

intention to purchase the Service Center Division and the Subsid

iary.  The letter stated that it "constitute[d] *** Kipnis['] for-

mal submission of a bona fide offer" and set forth several terms, including the scope of purchased assets, the calculation of the

purchase price, and adjustment for uncollectible receivables and

elimination of intercompany receivables.  Kipnis' letter also

declared the existence of financial commitments subject to due

diligence. 

	On March 25, 1998, the 12-month period in which Kipnis could

make a bona fide offer expired.  On March 26, 1998, MMI's counsel sent Kipnis a letter in which it determined that the March 10, 1998,

letter did not constitute a bona fide offer as contemplated by para- graph 5(a) of the employment agreement. MMI based its reasoning on

several points, including (1) the letter, by its own terms, was not

binding on the parties; (2) the letter contained unreasonable con-

ditions and ambiguities; (3) the terms set forth in the letter were

inconsistent; and (4) Kipnis failed to provide evidence that he had sufficient funds. 

	In April 1998, Kipnis filed a complaint for declaratory judg-

ment and specific performance against MMI.  The complaint sought a

declaration that the March 10, 1998, letter constituted a bona fide offer pursuant to paragraph 5(a) of the contract.  Alternatively,

the complaint sought a declaration that MMI breached the employment

agreement by refusing to provide Kipnis with appropriate financial

information.  As a remedy for the alleged breach, Kipnis asked the

trial court to order MMI to provide such information and to allow

Kipnis a reasonable period to submit a bona fide offer.

	In June 1998, MMI filed a motion to strike and dismiss.  The

trial court denied MMI's motion and allowed discovery to proceed. 

	In March 1999, MMI moved for summary judgment, arguing that

the March 10, 1998, letter did not constitute a bona fide offer and that MMI had no obligation to provide Kipnis with financial infor-

mation.  In June 1999, the trial court granted summary judgment in

MMI's favor.  In its ruling, the trial court found that the March

10, 1998, letter did not constitute a bona fide offer.  The trial court essentially based its decision on the same factors MMI iden-

tified in the March 26, 1998, letter to Kipnis.  The court further

found that no implied duty of good faith and fair dealing required

MMI to provide Kipnis with financial information or access to the

plant.  To impose such a duty, the trial court concluded, would be

tantamount to rewriting the employment agreement.  The trial court

further noted that the termination agreement manifested the

parties' agreement as to information that Kipnis could retain for

purposes of making an offer.  Kipnis then filed the instant appeal. 

II. ANALYSIS

	In cases involving summary judgment, the standard of review is

de novo.  Truman L. Flatt & Sons Co. v. Schupf, 271 Ill. App. 3d 983, 986 (1995).  Summary judgment is appropriate if the evidence shows

no genuine issue exists as to any material fact, and the moving

party is entitled to a judgment as a matter of law.  735 ILCS 5/2-

1005(c) (West 1998); Golla v. General Motors Corp., 167 Ill. 2d 353, 358 (1995).  On a defendant's motion for summary judgment,

plaintiff need not establish its case as it would at trial, but

must present some factual basis that would arguably entitle it to

judgment.  Hall v. Burger, 277 Ill. App. 3d 757, 761 (1996).  Because summary judgment is a drastic means of disposing of liti

gation, the court has a duty to construe the record strictly

against the movant and liberally in favor of the nonmoving party. 

Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 113 (1995).

A. Whether a Bona Fide Offer Existed

	Kipnis first argues that summary judgment was inappropriate

because questions of fact exist as to whether the March 10, 1998,

letter constituted a bona fide offer under the employment agreement.  We disagree.  

	As a threshold matter, we note that the employment agreement

does not specifically define a "bona fide offer."  Paragraph 5(a) of the employment agreement does, however, require that such an offer

be made in writing and must propose a cash price payable in a lump

sum at closing.  Further, a "bona fide offer must include evidence of the availability of funds to pay the purchase price."  

	In any event, we must recognize that, before we can find that

Kipnis made a bona fide offer, we must first determine whether he made any sort of offer at all.  The trial court answered this question

in the negative, finding that the March 10, 1998, letter was simply

a letter of intent to enter into further negotiation.  We agree

with the trial court.  

	For a valid contract to exist, an offer must be so definite as

to its material terms or require such definite terms in the

acceptance that the promises and performances to be rendered by

each party are reasonably certain.  Academy Chicago Publishers v. Cheever, 144 Ill. 2d 24, 29 (1991).  The March 10, 1998, letter did not meet this requirement.  The letter stated unequivocally that

"the provisions contained herein are not binding on the parties

unless specifically so stated, except to the extent that they

reflect the intent of the parties to enter into further negotia

tions and to develop a definitive written agreement for the

purchase of [a]ssets and the [s]tock, in a form mutually satisfac

tory to [Kipnis] and [MMI]."  We conclude that such language ren-

ders the letter a nonbinding letter of intent.  See Quake Construc tion, Inc. v. American Airlines, Inc., 141 Ill. 2d 281, 288 (1990) (holding that letters of intent are not necessarily enforceable

unless the parties intend them to be contractually binding). 	Additionally, the March 10, 1998, letter did not provide

sufficient evidence that Kipnis had sufficient funds to pay the

purchase price, as required under paragraph 5(a) of the employment

agreement.  The letter contained a statement that Kipnis would

personally pay $400,000 prior to closing.  However, it offered no evidence that Kipnis had, or could obtain, such money.  Similarly,

the appended letter from Kipnis' investor, Richard Taxman, stated

that he would contribute $1,650,000, yet the letter contained no

evidence that Taxman had such money.  Finally, the March 10, 1998,

letter contained a preliminary term sheet from the American

National Bank.  The first paragraph of the term sheet states,

"[t]he following is an outline of preliminary financing terms

subject to your comments and due diligence by American National

Bank and Trust Company of Chicago. *** Please understand this

outline is solely for discussion purposes and does not represent a commitment to lend."  (Emphasis added.)  Based on these facts, we agree with the trial court's conclusion that the March 10, 1998,

letter did not constitute a bona fide offer.

B. Implied Duty of Good Faith

	Relying primarily on Spircoff v. Spircoff, 74 Ill. App. 3d 119 (1979), Kipnis next argues that, even if we determine that he

failed to submit a bona fide offer, we should nevertheless reverse because MMI breached its implied duty of good faith.  We agree.  

	A covenant of good faith and fair dealing is implied in every

contract absent a provision that specifically states otherwise. 

Dayan v. McDonald's Corp., 125 Ill. App. 3d 972, 989 (1984).  Even though such a covenant may be absent in the contract's express

language, courts must compel performance in accordance with good

faith and fair dealing.  Spircoff, 74 Ill. App. 3d at 128.

	The court in Spircoff examined this issue under similar circumstances.  There, a brother and sister entered into an agree-

ment under which the sister retained ownership over a parcel of land.  However, the brother retained the right to sell the parcel

within four years and, if he did so, he would receive $50,000 of

the proceeds.  Despite the brother's repeated requests, the sister

refused to provide the financial statements necessary to effectuate

a sale.  The trial court held that an implied condition of coopera-

tion existed between the parties and that such condition required

that the sister provide the financial information necessary to

secure a purchaser.  Spircoff, 74 Ill. App. 3d at 126-27.  On appeal, the court agreed, acknowledging the well-settled rule that

every contract contains an implied promise of good faith and fair

dealing.  Spircoff, 74 Ill. App. 3d at 128.  The court noted that the evidence "established that a statement of income and expenses

would be necessary for the type of property in question" and that

"a buyer *** would require such information."  Spircoff, 74 Ill. App. 3d at 128.  On that basis, the court concluded that the sister

breached an implied duty of good faith and fair dealing.   

Spircoff, 74 Ill. App. 3d at 128.

	In the instant case, the trial court rejected Kipnis' reliance

on Spircoff.  The court found the facts of Spircoff inapposite, stating that, "in Spircoff the parties had entered into a joint venture, thereby triggering an implied duty of cooperation.  No

such relationship exists here."  We find that a close reading of

Spircoff fails to support the trial court's conclusion.  The Spircoff court clearly did not rely on the nature of the parties' relationship but, rather, on the nature of the contract and the

inherent necessities connected to the brother's ability to exercise

his rights under it.  We agree that an implied duty to cooperate

and to act in good faith and fair dealing existed here.  Whenever the cooperation of one party is necessary for the other party's

performance, there is an implied condition that such cooperation

will be given.  See 6 W. Jaeger, Williston on Contracts §887, at

427-31 (3d ed. 1962). 

	MMI contends that Kipnis is asking us to rewrite the employ

ment agreement by adding an implied duty of good faith.  See Pacini v. Regopoulos, 281 Ill. App. 3d 274, 283 (1996) (finding that the court must enforce an agreement as written).  We disagree.  As

previously mentioned, a covenant of good faith and fair dealing is

implied in every contract absent a provision that specifically states otherwise.  Dayan, 125 Ill. App. 3d at 989-90.  Thus, an implied duty already exists.  Additionally, we conclude that such

a duty is consistent with the agreement's express terms.

	In a related argument, MMI notes that, because the termination

agreement allowed Kipnis to retain copies of various financial

records, he should be precluded from requesting any others.  We do

not read the termination agreement so narrowly.  The termination

agreement referred only to documents that Kipnis already had in his

possession and stated that he could retain copies.  It did not

limit Kipnis' access to those records already in his possession.

	MMI also argues that Kipnis forfeited his claim on this issue

because he failed to seek a court order requiring MMI to produce

financial documents until after the employment agreement expired. 

We reject MMI's argument on this point under the circumstances. 

See Melrose Park National Bank v. Carr, 249 Ill. App. 3d 9, 17 (1993) (holding that courts should not fault plaintiffs for

attempting to avoid litigation).  Further, we note that the

employment agreement explicitly stated that "[n]o delay or failure by any party to exercise any right under this [a]greement *** shall

constitute a waiver of that or any other right."  

	In sum, we hold that an implied duty to cooperate and act in

good faith and fair dealing existed in the parties' contract.  The

contract specifically stated, inter alia, that MMI's performance would not come due unless Kipnis presented a bona fide offer.  MMI cannot rely on Kipnis' failure to satisfy this condition when it hindered

his performance through uncooperative conduct.  See Grill v. Adams, 123 Ill. App. 3d 913, 918 (1984); E.B. Harper & Co. v. Nortek, Inc., 104 F.3d 913, 919 (7th 1997).

III. CONCLUSION

	For the foregoing reasons, we find that the trial court

correctly concluded that Kipnis' March 10, 1998, letter did not

constitute a bona fide offer.  However, we reject the trial court's finding that MMI had no duty to disclose financial information that

Kipnis required in order to formulate an offer.  We instruct the

trial court to enter an order directing MMI to act in a manner con-

sistent with its obligations of good faith and fair dealing.  Such

a course of conduct must include, without limitation, the produc

tion of all documents reasonably necessary to Kipnis to formulate

a bona fide offer.  The trial court shall then provide Kipnis with a reasonable time to formulate a bona fide offer.

	We, therefore,v vadcacate the summary judmgnegment order ans d  remand

with instructions.

	Remand with instructions.

	Campbell, P.J., and O'Brien, J., concur.