<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
-------------------
Date of Report: August 31, 1995
Boston Celtics Limited Partnership
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of organization)
19324 04-2936516
(Commission File Number) (I.R.S. Employer Identification No.)
151 Merrimac Street, Boston, Massachusetts 02114
(Address of principal executive offices) (Zip Code)
(617) 523-6050
(Registrant's telephone number, including area code)
Item 5. Other Events.
On August 30, 1995, Boston Celtics Limited Partnership (BCLP) announced that
it had redeemed an aggregate of 758,444 units representing assignments of
beneficial ownership of limited partnership interest in BCLP.
The redeemed units acquired by BCLP were beneficially owned by Alan Cohen and
his son and daughter. Mr. Cohen was formerly an officer and director of the
corporate general partner of BCLP until his resignation in September 1993.
Under the terms of the redemption, Mr. Cohen's son and daughter were paid
$21.50 in cash for each unit acquired from them -- or an aggregate of
$1,941,450 for the 90,300 units acquired from them.
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Mr. Cohen received two notes from BCLP in exchange for the aggregate of
668,144 units acquired by BCLP from him. The two notes issued by BCLP
to Mr. Cohen in exchange for his units have an aggregate initial face amount
of $14,365,096 -- equal to $21.50 per unit for each of the 668,144 units
acquired from Mr. Cohen. However, the two notes, which are due and payable
on July 1, 2000 (unless prepaid earlier pursuant to mandatory or optional
prepayment provisions contained therein) also provide that the amounts to be
paid to Mr. Cohen pursuant to the terms of the notes will be increased by
specified amounts on each July 1 during their term. If Mr. Cohen holds the
two notes until July 1, 2000 he would be entitled to receive aggregate
payments (excluding interest) in the amount of $20,044,320 pursuant to the
terms of the two notes -- equal to $30.00 per unit for each of the 668,144
units acquired from him. Each of the notes bears interest at the rate of
7.76% per annum and interest will be paid quarterly on the notes.
BCLP also announced that Celtics Limited Partnership (which is 99% owned by
BCLP and which owns and operates the Boston Celtics professional basketball
team) has entered into a three year consulting agreement with Alan Cohen.
The consulting agreement provides that Mr. Cohen is to be paid $260,000 per
year in exchange for making himself available to provide consulting services
to Celtics Limited Partnership.
Reference is hereby made to the text of the press release of BCLP containing
its announcement which is filed herewith as an exhibit and incorporated
herein by reference thereto.
Item 7. Financial Statements and Exhibits.
c) Exhibits
99.1) Unit Redemption Agreement dated August 30, 1995 between
Boston Celtics Limited Partnership and Alan N. Cohen.
99.2) Unit Redemption Agreement dated August 30, 1995 between
Boston Celtics Limited Partnership and Gordon Cohen.
99.3) Unit Redemption Agreement dated August 30, 1995 between
Boston Celtics Limited Partnership and
Laurie Cohen-Fenster.
99.4) Promissory Note dated August 1, 1995 by BCLP to
Alan N. Cohen.
99.5) Promissory Note dated August 1, 1995 by BCLP to
Alan N. Cohen.
99.6) Consulting Agreement dated August 30, 1995 between
Celtics Limited Partnership and Alan N. Cohen.
99.7) Press Release dated August 30, 1995.
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SIGNATURES
Pursuant to requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed by the undersigned,
thereunto duly authorized.
BOSTON CELTICS LIMITED
PARTNERSHIP
By: CELTICS, INC., its General Partner
By: /s/ Thomas M. Bartlett, Jr.
Thomas M. Bartlett, Jr.,
Executive Vice President and
Chief Financial Officer
Date: August 31, 1995
UNIT REDEMPTION AGREEMENT
This UNIT REDEMPTION AGREEMENT, dated August 30, 1995 (this "Agreement"), by
and between Boston Celtics Limited Partnership, a Delaware limited
partnership ("BCLP"), and Alan N. Cohen (the "Seller").
W I T N E S S E T H:
WHEREAS, the Seller is the record and beneficial owner of 668,144 units (the
"Units"), representing assignments of beneficial ownership of limited
partnership interests in BCLP; and
WHEREAS, BCLP wishes to redeem from the Seller, and the Seller wishes to
have BCLP redeem, the Units on the terms and conditions set forth in this
Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements, representations and warranties herein contained, and for other
good and valuable consideration the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
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1. Redemption of Units. Subject to the terms and conditions of this
Agreement, at the Closing described in Section 2 hereof, the Seller is
assigning, transferring and conveying to BCLP, and BCLP is redeeming from
the Seller, all of the Units owned by the Seller, free and clear of all
liens, claims, options, proxies, voting agreements, charges or encumbrances
of whatever nature. The aggregate redemption price being paid by BCLP for
the Units is being paid by BCLP's making and delivering to the Seller
promissory notes in the aggregate principal amount of $14,365,096.00 in the
forms attached hereto as Exhibits A-1 and A-2 (the "Notes").
2. Closing. The closing of the aforesaid redemption (the "Closing")
is taking place simultaneously with the execution and delivery of this
Agreement at the offices of Dickstein, Shapiro & Morin, L.L.P., 598 Madison
Avenue, New York, New York 10022.
3. Deliveries at Closing. At the Closing, (a) the Seller is
delivering to BCLP a certificate or certificates representing all of the
Units, and (b) BCLP is delivering the Notes, duly executed by BCLP, to the
Seller.
4. Seller's Representations and Warranties. The Seller represents
and warrants to BCLP as follows:
(a) The Seller has the full power and authority to execute,
deliver and carry out the terms and provisions of this Agreement and to
consummate the transactions contemplated hereby.
(b) This Agreement has been duly and validly executed and
delivered by the Seller and constitutes a valid and binding obligation of
the Seller, enforceable against the Seller in accordance with its terms.
(c) The Seller is the sole beneficial holder of all of the
Units, free and clear of any lien or other encumbrance.
(d) Upon transfer to BCLP by the Seller of the Units, BCLP will
have good and marketable title to the Units, free and clear of any lien or
other encumbrance.
(e) The Units constitute all of the securities of BCLP
beneficially owned, directly or indirectly, by the Seller or by any of his
"affiliates" or "associates," as such terms are defined in Rule 12b-2 under
the Securities Exchange Act of 1934, as amended (the "Exchange Act") (each
an "Affiliate" or "Associate," respectively), except for units subject to
that certain unit redemption agreement of even date herewith by and between
Gordon Cohen and BCLP, and units subject to that certain unit redemption
agreement of even date herewith by and between Laurie Cohen-Fenster and
BCLP.
(f) Neither the Seller nor any of his Affiliates or Associates
has any outstanding option, warrant or other right to acquire, directly or
indirectly, any securities of BCLP or any securities which are convertible
or exchangeable into or exercisable for any securities of BCLP, nor is the
Seller or any of his Affiliates or Associates subject to any agreement
(whether written or in the nature of an informal understanding) which allows
or obligates the Seller or such Affiliate or Associate to vote or acquire
any such securities.
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5. BCLP's Representations and Warranties. BCLP represents and
warrants to the Seller as follows:
(a) BCLP is a limited partnership duly organized, validly
existing and in good standing under the laws of the State of Delaware. BCLP
has the full power and authority to execute, deliver and carry out the terms
and provisions of this Agreement and the Notes and to consummate the
transactions contemplated hereby, and has taken all necessary action to
authorize the execution, delivery and performance of this Agreement and the
Notes.
(b) Each of the Notes and this Agreement has been duly and
validly authorized, executed and delivered by BCLP and is the legal, valid
and binding obligation of BCLP, enforceable against BCLP in accordance with
its terms.
(c) The execution of this Agreement and the delivery of the
Notes to the Seller by BCLP does not, and the performance by BCLP of its
obligations under this Agreement and the Notes will not, constitute a
violation of the Amended and Restated Agreement of Limited Partnership of
Boston Celtics Limited Partnership, as amended.
6. Certain Agreements.
(a) The Seller covenants with BCLP that, for a period of ten
(10) years after the date hereof (the "Term"), without the prior written
consent of BCLP, duly authorized by its general partner, Celtics, Inc. (or
any successor thereto), the Seller, singly or as part of a "partnership,
limited partnership, syndicate or other group" (within the meaning of
Section 13(d)(3) of the Exchange Act), directly or indirectly, through one
or more intermediaries or otherwise, will not, and will not directly or
indirectly participate (as an officer, director, partner, shareholder or
otherwise, provided, however, that passive ownership of one percent (1%) or
less of the outstanding capital stock of a public company shall not in and
of itself be deemed to be a violation of this Agreement) in the management,
financing or ownership of, or act as a consultant for or employee of, any
Person who acts so as to:
(i) Purchase, acquire or own, or offer or agree to
purchase, acquire or own, any securities of BCLP which (i) are entitled to,
or may be entitled to, vote or (ii) by the terms thereof, are convertible
into or exchangeable for securities which are entitled to vote
(collectively, "Restricted Securities");
(ii) Make, or in any way participate in, directly or
indirectly, any "solicitation" of "proxies" (as such terms are defined or
used in Regulation 14A under the Exchange Act) or become a "participant" in
any "election contest" (as such terms are defined or used in Rule 14a-11 of
the Exchange Act) with respect to BCLP; seek to advise or influence any
"person" (within the meaning of Section 13(d)(3) of the Exchange Act) with
respect to the voting of any securities of BCLP; or execute any written
consent in lieu of a meeting of holders of securities of BCLP or any class
thereof;
(iii) Initiate, propose or otherwise solicit stockholders
for the approval of one or more stockholder proposals with respect to BCLP
as described in Rule 14a-8 under the Exchange Act;
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(iv) Acquire or affect the control of BCLP or directly
or indirectly participate in or encourage the formation of any "group"
(within the meaning of Section 13(d)(3) of the Exchange Act) which owns or
seeks to acquire beneficial ownership of securities of BCLP or to affect
control of BCLP; or
(v) Otherwise act, directly or indirectly, alone or in
concert with others, to seek to control or influence in any manner the
management, policies or affairs of BCLP, or propose or seek to effect any
form of business combination transaction with BCLP or any Affiliate thereof
or any restructuring, recapitalizing or similar transaction with respect to
any thereof, or instigate or encourage any third party to do any of the
foregoing.
(b) (i) Neither the Seller nor his spouse will directly or
indirectly (x) disparage any of BCLP, Celtics, Inc. or any of their
respective Affiliates, Associates, officers or directors or (y) take any
action which would have a harmful effect on the business or reputation of
any of them, provided, however, that management, conduct or ownership of any
business permitted by Section 6 of that certain consulting agreement (the
"Consulting Agreement") of even date herewith by and between the Seller and
Celtics Limited Partnership ("CLP") shall not be deemed to be a violation of
this clause (y).
(ii) Neither BCLP nor any of its Affiliates will
directly or indirectly disparage any of the Seller, his Affiliates or
Associates, or any of their respective officers or directors or take any
action which would have a harmful effect on the business or reputation of
any of them.
(c) Except as permitted by the two sentences immediately next
succeeding and except for communications made with the prior written
approval of the board of directors of the general partner of BCLP, neither
the Seller nor his spouse will make any public or private communication of
any nature, including, without limitation, press releases, written notices
or oral or electronic or other forms of communication, concerning or
characterizing (i) the existence, nature or terms of this Agreement or (ii)
the existence, nature or terms of any dealings by the Seller or any of his
agents, advisors or representatives with BCLP, Celtics, Inc. or any of their
respective Affiliates, Associates, officers, directors or employees.
Notwithstanding the foregoing, the following communications by the Seller
shall be permitted: (1) disclosures made in a filing with the Securities
and Exchange Commission required by and in compliance with Schedule 13D
under the Exchange Act, (2) other disclosures to the public or to
governmental authorities which are considered necessary by Paul, Weiss,
Rifkind, Wharton & Garrison or counsel to BCLP to maintain compliance with,
or to prevent violation of, applicable laws, and (3) disclosures in the
course of truthful testimony as required by court order or other legal
process; provided that in any case copies and/or notice of such permitted
disclosure shall be provided by the Seller to BCLP prior to any release or
disclosure by the Seller. Further, notwithstanding the foregoing,
communications by the Seller consisting of (x) filing of tax returns and any
statements made by or proceedings undertaken by the Seller in connection
with any tax matters or (y) references to the press release of BCLP in the
form attached hereto as Exhibit B, with no unfavorable commentary thereon,
shall be permitted and the proviso contained in the immediately preceding
sentence shall not be applicable to such communications.
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(d) Except as permitted by the sentence immediately next
succeeding and except for communications made with the prior written
approval of the Seller, neither BCLP nor any of its Affiliates, agents,
advisors or representatives will make any public or private communications
of any nature, including, without limitation, press releases, written
notices or oral or electronic or other forms of communication, concerning or
characterizing (i) the existence, nature or terms of this Agreement or (ii)
the existence, nature or terms of any dealings respecting this Agreement or
the subject matter hereof. Notwithstanding the foregoing, the following
communications by BCLP shall be permitted: (1) disclosures made in any
filing with the Securities and Exchange Commission, (2) other disclosures to
the public or to governmental authorities which are considered necessary by
counsel to BCLP to maintain compliance with, or to prevent violation of,
applicable laws, (3) communications by BCLP or its Affiliates consisting of
filing of tax returns and any statements made by or proceedings undertaken
by or on behalf of BCLP or any of its Affiliates in connection with any tax
matters and (4) the press release in the form attached hereto as Exhibit B.
7. Releases; Waiver. (a) Except with respect to any cause of action
which a party to this Agreement may have pertaining to the enforcement of
liabilities and/or obligations under this Agreement, the Consulting
Agreement and/or any Note, each of the parties to this Agreement for
himself/itself and his/its spouses, successors and assigns and, in the case
of BCLP, Affiliates controlled by it, hereby releases and discharges the
other party hereto and, as the case may be, each of their respective present
or former partners, directors, employees, officers, Affiliates,
representatives, attorneys, agents, successors and assigns (each a "Released
Person") from all suits, claims, charges, liabilities and causes of action
whatsoever, whether known or unknown, at law or in equity or otherwise (each
a "Claim"), which the other party hereto or his/its spouses, successors and
assigns and, in the case of BCLP, Affiliates controlled by it have or may
have against any or all of such Released Persons arising out of, relating to
or in connection with any occurrences or events whatsoever occurring up to
the Closing; provided, however, that, except with respect to Claims against
BCLP, its Affiliates and their respective officers and directors, all of
which are absolutely and unconditionally released hereby, this release shall
not apply to any Claim completely unrelated to the management, operations
and businesses of BCLP and its Affiliates.
(b) The Seller, for himself and his successors and assigns,
hereby waives, and covenants and agrees that he or they will have no right
to assert or enforce, any Claim with regard to the conduct and management of
the business and affairs of BCLP or any of its Affiliates (relating to
conduct occurring after the date of this Agreement), except for Claims
pertaining to the enforcement of this Agreement, the Consulting Agreement,
or any Note in accordance with the express terms hereof or thereof.
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8. Specific Performance. BCLP and the Seller each acknowledge and
agree that in the event of any breach of this Agreement, the non-breaching
party would be irreparably harmed and could not be made whole by monetary
damages. It is accordingly agreed that BCLP and the Seller, in addition to
any other remedy to which they may be entitled at law or in equity, shall be
entitled to compel specific performance of this Agreement in any action
instituted in any federal or state court sitting in the State of Delaware,
or, in the event said court would not have jurisdiction of such action, in
any court of the United States or any state having subject matter
jurisdiction. BCLP and the Seller each consent to personal jurisdiction in
any such action brought in any federal or state court sitting in the State
of Delaware and to service of process upon it or him, as the case may be, in
the manner set forth in Section 10(g) hereof.
9. Expenses; Brokerage Fees. All fees and expenses incurred by the
Seller, and all sales, transfer or other similar taxes payable by the Seller
in connection with this Agreement (including, without limitation, any
transfer taxes payable in connection with the redemption of the Units), will
be borne by the Seller, and all fees and expenses incurred by BCLP in
connection with this Agreement will be borne by BCLP. BCLP, on the one
hand, and the Seller, on the other, represent and warrant to the other that
the negotiations relevant to this Agreement have been carried on by each
directly with the other and that there are no claims for finder's fees or
other like payments in connection with this Agreement or the transactions
contemplated hereby. BCLP, on the one hand, and the Seller, on the other,
agree to indemnify and hold harmless the other from and against any and all
claims or liabilities for finder's fees or other like payments incurred by
reason of any action taken by it or him.
10. Miscellaneous.
(a) This Agreement constitutes the entire agreement and
supersedes all prior agreements and understandings, whether oral or written,
between the parties hereto with respect to the subject matter hereof. This
Agreement may not be amended orally, but only by an instrument in writing
signed by each of the parties to this Agreement.
(b) This Agreement shall inure to the benefit of and be binding
upon the parties hereto and their heirs, legal representatives, successors
and assigns.
(c) Section headings contained in this Agreement are for
reference purposes only and shall not affect the meaning or interpretation
of this Agreement.
(d) All representations, warranties and covenants shall survive
the Closing.
(e) This Agreement may be executed in any number of
counterparts, each of which shall, when executed, be deemed to be an
original and all of which shall be deemed to be one and the same instrument.
(f) This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Delaware, without
regard to the conflict of laws principles thereof.
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(g) All notices and other communications under this Agreement
shall be in writing and delivery thereof shall be deemed to have been made
either (i) if mailed, when received, or (ii) when transmitted by hand
delivery, telegram, telex, telecopier or facsimile transmission to the party
entitled to receive the same at the address indicated below or at such other
address as such party shall have specified by written notice to the other
party hereto given in accordance herewith:
(A) if to the Seller:
Alan N. Cohen
c/o Alfred D. Youngwood, Esq.
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019-6064
with a copy to:
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019-6064
Attention: Neale M. Albert, Esq.
(B) if to BCLP:
Boston Celtics Limited Partnership
151 Merrimac Street
Boston, Massachusetts 02114
Attention: Thomas M. Bartlett, Jr.
with a copy to:
Dickstein, Shapiro & Morin, L.L.P.
2101 L Street, N.W.
Washington, D.C. 20037
Attention: John W. Griffin, Esq.
In the event of any acceleration of any loan to the Seller secured by one of
the Notes as described in Section 8 of Exhibit A-2, the Seller shall
immediately, but in no event more than three (3) business days after Seller
receives notice of such acceleration, give notice to BCLP of such
acceleration as provided in this Section 10(g).
(h) Any waiver by a party of a breach of any provision of this
Agreement shall not operate as or be construed to be a waiver of any other
breach of such provision or of any breach of any other provision of this
Agreement. The failure of a party to insist upon strict adherence to any
term of this Agreement on one or more occasions shall not be considered a
waiver or deprive that party of the right thereafter to insist upon strict
adherence to that term or any other term of this Agreement.
(i) No provision in this Agreement shall constitute any
person a third party beneficiary.
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(i) Tax Covenant of Seller and BCLP. The Seller and BCLP each
agree that (a) payments of the principal amount of the Notes (together with
interest paid thereon) will be reported by each of them for federal, state
and local income tax purposes as distributions by BCLP pursuant to Section
736(b) of the Internal Revenue Code of 1986, as amended (the "Code"), and
(b) payments of the Additional Amounts set forth in Section 1 of the Notes
(together with interest paid thereon) will be reported by each of them for
federal, state and local income tax purposes as payments by BCLP pursuant to
Section 736(a) of the Code in respect of the Seller's distributive share of
BCLP income in the taxable years in which such Additional Amounts accrue
under the table set forth in such Section 1. Except as set forth in clause
(b) above with respect to such Additional Amounts, the Seller shall not be
entitled to be allocated, and BCLP shall not allocate to the Seller, any
distributive share of BCLP's income for any period after August 31, 1995.
IN WITNESS WHEREOF, and intending to be legally bound hereby, each of
BCLP and the Seller has executed or caused to be executed this Agreement as
of the date first above written.
BOSTON CELTICS LIMITED PARTNERSHIP
By: CELTICS, INC.,
its General Partner
By: /s/ Paul E. Gaston
Name: Paul E. Gaston
Title: Chairman of the Board and
Chief Executive Officer
SELLER:
/s/ Alan N. Cohen
Alan N. Cohen
UNIT REDEMPTION AGREEMENT
This UNIT REDEMPTION AGREEMENT, dated August 30, 1995 (this "Agreement"), by
and between Boston Celtics Limited Partnership, a Delaware limited
partnership ("BCLP"), and Gordon Cohen (the "Seller").
<PAGE> 11
W I T N E S S E T H:
WHEREAS, the Seller is the record and beneficial owner of 45,150 units (the
"Units"), representing assignments of beneficial ownership of limited
partnership interests in BCLP; and
WHEREAS, BCLP wishes to redeem from the Seller, and the Seller wishes to
have BCLP redeem, the Units on the terms and conditions set forth in this
Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements, representations and warranties herein contained, and for other
good and valuable consideration the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. Redemption of Units. Subject to the terms and conditions of this
Agreement, at the Closing described in Section 2 hereof, the Seller is
assigning, transferring and conveying to BCLP, and BCLP is redeeming from
the Seller, all of the Units owned by the Seller, free and clear of all
liens, claims, options, proxies, voting agreements, charges or encumbrances
of whatever nature. In consideration of the aforesaid redemption, BCLP is
paying to the Seller an aggregate purchase price of $970,725.00 ($21.50 per
Unit) in immediately available funds (the "Purchase Price").
2. Closing. The closing of the aforesaid redemption (the "Closing")
is taking place simultaneously with the execution and delivery of this
Agreement at the offices of Dickstein, Shapiro & Morin, L.L.P., 598 Madison
Avenue, New York, New York 10022.
3. Deliveries at Closing. At the Closing, (a) the Seller is
delivering to BCLP a certificate or certificates representing all of the
Units, and (b) BCLP is delivering the Purchase Price through a wire transfer
to a bank account of the Seller specified in writing on or before the
business day prior to the date of the Closing.
4. Seller's Representations and Warranties. The Seller represents and
warrants to BCLP as follows:
(a) The Seller has the full power and authority to execute,
deliver and carry out the terms and provisions of this Agreement and to
consummate the transactions contemplated hereby.
(b) This Agreement has been duly and validly executed and
delivered by the Seller and constitutes a valid and binding obligation of
the Seller, enforceable against the Seller in accordance with its terms.
(c) The Seller is the sole beneficial holder of all of the
Units, free and clear of any lien or other encumbrance.
(d) Upon transfer to BCLP by the Seller of the Units, BCLP will
have good and marketable title to the Units, free and clear of any lien or
other encumbrance.
<PAGE> 12
(e) The Units constitute all of the securities of BCLP
beneficially owned, directly or indirectly, by the Seller or by any of his
"affiliates" or "associates," as such terms are defined in Rule 12b-2 under
the Securities Exchange Act of 1934, as amended (the "Exchange Act") (each
an "Affiliate" or "Associate," respectively), except for units subject to
that certain unit redemption agreement of even date herewith by and between
Alan N. Cohen and BCLP, units subject to that certain unit redemption
agreement of even date herewith by and between Laurie Cohen-Fenster and BCLP
and units owned by his employer or any of its Affiliates and Associates.
(f) Neither the Seller nor any of his Affiliates or Associates
has any outstanding option, warrant or other right to acquire, directly or
indirectly, any securities of BCLP or any securities which are convertible
or exchangeable into or exercisable for any securities of BCLP, nor is the
Seller or any of his Affiliates or Associates subject to any agreement
(whether written or in the nature of an informal understanding) which allows
or obligates the Seller or such Affiliate or Associate to vote or acquire
any such securities.
5. BCLP's Representations and Warranties. BCLP represents and
warrants to the Seller as follows:
(a) BCLP is a limited partnership duly organized, validly
existing and in good standing under the laws of the State of Delaware. BCLP
has the full power and authority to execute, deliver and carry out the terms
and provisions of this Agreement and to consummate the transactions
contemplated hereby, and has taken all necessary action to authorize the
execution, delivery and performance of this Agreement.
(b) This Agreement has been duly and validly authorized,
executed and delivered by BCLP and is the legal, valid and binding
obligation of BCLP, enforceable against BCLP in accordance with its terms.
(c) The execution and delivery of this Agreement by BCLP does
not, and the performance by BCLP of its obligations under this Agreement
will not, constitute a violation of the Amended and Restated Agreement of
Limited Partnership of Boston Celtics Limited Partnership, as amended.
6. Certain Agreements.
(a) The Seller covenants with BCLP that, for a period of ten
(10) years after the date hereof (the "Term"), without the prior written
consent of BCLP, duly authorized by its general partner, Celtics, Inc. (or
any successor thereto), the Seller, singly or as part of a "partnership,
limited partnership, syndicate or other group" (within the meaning of
Section 13(d)(3) of the Exchange Act), directly or indirectly, through one
or more intermediaries or otherwise, will not, and will cause each Person
controlled by or under common control with (but not as a fellow employee)
the Seller not to:
(i) Purchase, acquire or own, or offer or agree to
purchase, acquire or own, any securities of BCLP which (i) are entitled to,
or may be entitled to, vote or (ii) by the terms thereof, are convertible
into or exchangeable for securities which are entitled to vote
(collectively, "Restricted Securities");
<PAGE> 13
(ii) Make, or in any way participate in, directly or
indirectly, any "solicitation" of "proxies" (as such terms are defined or
used in Regulation 14A under the Exchange Act) or become a "participant" in
any "election contest" (as such terms are defined or used in Rule 14a-11 of
the Exchange Act) with respect to BCLP; seek to advise or influence any
"person" (within the meaning of Section 13(d)(3) of the Exchange Act) with
respect to the voting of any securities of BCLP; or execute any written
consent in lieu of a meeting of holders of securities of BCLP or any class
thereof;
(iii) Initiate, propose or otherwise solicit stockholders
for the approval of one or more stockholder proposals with respect to BCLP
as described in Rule 14a-8 under the Exchange Act;
(iv) Acquire or affect the control of BCLP or directly or
indirectly participate in or encourage the formation of any "group" (within
the meaning of Section 13(d)(3) of the Exchange Act) which owns or seeks to
acquire beneficial ownership of securities of BCLP or to affect control of
BCLP; or
(v) Otherwise act, directly or indirectly, alone or in
concert with others, to seek to control or influence in any manner the
management, policies or affairs of BCLP, or propose or seek to effect any
form of business combination transaction with BCLP or any Affiliate thereof
or any restructuring, recapitalizing or similar transaction with respect to
any thereof, or instigate or encourage any third party to do any of the
foregoing.
(b) (i) Neither the Seller nor his spouse will directly or
indirectly (x) disparage any of BCLP, Celtics, Inc. or any of their respective
Affiliates, Associates, officers or directors or (y) take any action which
would have a harmful effect on the business or reputation of any of them
provided, however, that management, conduct or ownership of any business
which would be permitted under Section 6 of that certain consulting
agreement of even date herewith between Alan N. Cohen and Celtics Limited
Partnership ("CLP") (construed as if Seller was party thereto as Consultant)
shall not be deemed to be a violation of this clause (y).
(ii) Neither BCLP nor any of its Affiliates will directly
or indirectly disparage any of the Seller, his Affiliates or Associates, or
any of their respective officers or directors or take any action which would
have a harmful effect on the business or reputation of any of them.
<PAGE> 14
(c) Except as permitted by the two sentences immediately next
succeeding and except for communications made with the prior written
approval of the board of directors of the general partner of BCLP, neither
the Seller nor his spouse will make any public or private communication of
any nature, including, without limitation, press releases, written notices
or oral or electronic or other forms of communication, concerning or
characterizing (i) the existence or terms of this Agreement or (ii) the
existence, nature or terms of any dealings by the Seller or any of his
agents, advisors or representatives with BCLP, Celtics, Inc. or any of their
respective Affiliates, Associates, officers, directors or employees.
Notwithstanding the foregoing, the following communications by the Seller
shall be permitted: (1) disclosures made in a filing with the Securities
and Exchange Commission required by and in compliance with Schedule 13D
under the Exchange Act, (2) other disclosures to the public or to
governmental authorities which are considered necessary by Paul, Weiss,
Rifkind, Wharton & Garrison or counsel to BCLP to maintain compliance with,
or to prevent violation of, applicable laws, and (3) disclosures in the
course of truthful testimony as required by court order or other legal
process; provided that in any case copies and/or notice of such permitted
disclosure shall be provided by the Seller to BCLP prior to any release or
disclosure by the Seller. Further, notwithstanding the foregoing,
communications by the Seller consisting of (x) filing of tax returns and any
statements made by or proceedings undertaken by the Seller in connection
with any tax matters or (y) references to the press release of BCLP in the
form attached hereto as Exhibit B, with no unfavorable commentary thereon,
shall be permitted and the proviso contained in the immediately preceding
sentence of this Section 6(c) shall not be applicable to such
communications.
(d) Except as permitted by the sentence immediately next
succeeding and except for communications made with the prior written
approval of the Seller, neither BCLP nor any of its Affiliates, agents,
advisors or representatives will make any public or private communication of
any nature, including, without limitation, press releases, written notices
or oral or electronic or other forms of communication, concerning or
characterizing (i) the existence, nature or terms of this Agreement or (ii)
the existence, nature or terms of any dealings respecting this Agreement or
the subject matter hereof. Notwithstanding the foregoing, the following
communications by BCLP shall be permitted: (1) disclosures made in any
filing with the Securities and Exchange Commission, (2) other disclosures to
the public or to governmental authorities which are considered necessary by
counsel to BCLP to maintain compliance with, or prevent violation of,
applicable laws, (3) communications by BCLP or its Affiliates consisting of
filing of tax returns and any statements made by or proceedings undertaken
by or on behalf of BCLP or any of its Affiliates in connection with any tax
matters and (4) the press release in the form attached hereto as Exhibit B.
<PAGE> 15
7. Nondisclosure. The Seller agrees not to disclose, during the three
(3) year period following the date of this Agreement, to any person not
employed on a full-time basis by BCLP or any Affiliate thereof, or not
engaged to render services to BCLP or any Affiliate thereof, except with the
prior written consent of Paul E. Gaston in his capacity as Chairman of the
Board and Chief Executive Officer of Celtics, Inc., any confidential
information obtained by him while a consultant to or in the employ of BCLP
or any Affiliate thereof; provided, however, that this provision shall not
preclude the Seller from the use or disclosure of information known
generally to the public or of information not considered confidential by
persons engaged in any of the businesses of BCLP or from disclosure required
by law or court order. The agreement made in this Section 7 shall be in
addition to, and not in limitation or derogation of, any obligations
otherwise imposed by law or by separate agreement upon the Seller in respect
of confidential information of BCLP or any Affiliate thereof.
8. Releases; Waiver. Except with respect to any cause of action which
a party to this Agreement may have pertaining to the enforcement of
liabilities and/or obligations under this Agreement, each of the parties to
this Agreement for himself/itself and his/its spouses, successors and
assigns and, in the case of BCLP, Affiliates controlled by it, hereby
releases and discharges the other party hereto and, as the case may be, each
of their respective present or former partners, directors, employees,
officers, Affiliates, Associates, representatives, attorneys, agents,
successors and assigns (each a "Released Person") from all suits, claims,
charges, liabilities and causes of action whatsoever, whether known or
unknown, at law or in equity or otherwise (each a "Claim"), which the other
party hereto or his/its spouses, successors and assigns and, in the case of
BCLP, Affiliates controlled by it, have or may have against any or all of
such Released Persons arising out of, relating to or in connection with any
occurrences or events whatsoever occurring up to the Closing; provided,
however, that, except with respect to Claims against BCLP, its Affiliates
and their respective officers and directors, all of which are absolutely and
unconditionally released hereby, this release shall not apply to any Claim
completely unrelated to the management, operations and businesses of BCLP or
any of its Affiliates.
(b) The Seller, for himself and his successors and assigns,
hereby waives, and covenants and agrees that he or they will have no right
to assert or enforce, any Claim with regard to the conduct and management of
the business and affairs of BCLP or any of its Affiliates (relating to
conduct occurring prior to or after the date of this Agreement), except for
Claims pertaining to the enforcement of this Agreement in accordance with
the express terms hereof.
9. Specific Performance. BCLP and the Seller each acknowledge and
agree that in the event of any breach of this Agreement, the non-breaching
party would be irreparably harmed and could not be made whole by monetary
damages. It is accordingly agreed that BCLP and the Seller, in addition to
any other remedy to which they may be entitled at law or in equity, shall be
entitled to compel specific performance of this Agreement in any action
instituted in any federal or state court sitting in the State of Delaware,
or, in the event said court would not have jurisdiction of such action, in
any court of the United States or any state having subject matter
jurisdiction. BCLP and the Seller each consent to personal jurisdiction in
any such action brought in any federal or state court sitting in the State
of Delaware and to service of process upon it or him, as the case may be, in
the manner set forth in Section 11(g) hereof.
<PAGE> 16
10. Expenses; Brokerage Fees. All fees and expenses incurred by the
Seller, and all sales, transfer or other similar taxes payable by the Seller
in connection with this Agreement (including, without limitation, any
transfer taxes payable in connection with the redemption of the Units), will
be borne by the Seller, and all fees and expenses incurred by BCLP in
connection with this Agreement will be borne by BCLP. BCLP, on the one
hand, and the Seller, on the other, represent and warrant to the other that
the negotiations relevant to this Agreement have been carried on by each
directly with the other and that there are no claims for finder's fees or
other like payments in connection with this Agreement or the transactions
contemplated hereby. BCLP, on the one hand, and the Seller, on the other,
agree to indemnify and hold harmless the other from and against any and all
claims or liabilities for finder's fees or other like payments incurred by
reason of any action taken by it or him.
11. Miscellaneous.
(a) This Agreement constitutes the entire agreement and
supersedes all prior agreements and understandings, whether oral or written,
between the parties hereto with respect to the subject matter hereof. This
Agreement may not be amended orally, but only by an instrument in writing
signed by each of the parties to this Agreement.
(b) This Agreement shall inure to the benefit of and be binding
upon the parties hereto and their heirs, legal representatives, successors
and assigns.
(c) Section headings contained in this Agreement are for
reference purposes only and shall not affect the meaning or interpretation
of this Agreement.
(d) All representations, warranties and covenants shall survive
the Closing.
(e) This Agreement may be executed in any number of
counterparts, each of which shall, when executed, be deemed to be an
original and all of which shall be deemed to be one and the same instrument.
(f) This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Delaware, without
regard to the conflict of laws principles thereof.
(g) All notices and other communications under this Agreement
shall be in writing and delivery thereof shall be deemed to have been made
either (i) if mailed, when received, or (ii) when transmitted by hand
delivery, telegram, telex, telecopier or facsimile transmission to the party
entitled to receive the same at the address indicated below or at such other
address as such party shall have specified by written notice to the other
party hereto given in accordance herewith:
(A) if to the Seller:
Gordon Cohen
c/o Alfred D. Youngwood, Esq.
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019-6064
<PAGE> 17
with a copy to:
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019-6064
Attention: Neale M. Albert, Esq.
(B) if to BCLP:
Boston Celtics Limited Partnership
151 Merrimac Street
Boston, Massachusetts 02114
Attention: Thomas M. Bartlett, Jr.
with a copy to:
Dickstein, Shapiro & Morin, L.L.P.
2101 L Street, N.W.
Washington, D.C. 20037
Attention: John W. Griffin, Esq.
(h) Any waiver by a party of a breach of any provision of this
Agreement shall not operate as or be construed to be a waiver of any other
breach of such provision or of any breach of any other provision of this
Agreement. The failure of a party to insist upon strict adherence to any
term of this Agreement on one or more occasions shall not be considered a
waiver or deprive that party of the right thereafter to insist upon strict
adherence to that term or any other term of this Agreement.
(i) No provision in this Agreement shall constitute any person a
third party beneficiary.
IN WITNESS WHEREOF, and intending to be legally bound hereby, each of
BCLP and the Seller has executed or caused to be executed this Agreement as
of the date first above written.
BOSTON CELTICS LIMITED PARTNERSHIP
By: CELTICS, INC.,
its General Partner
By: /s/ Paul E. Gaston
Name: Paul E. Gaston
Title: Chairman of the Board and
Chief Executive Officer
SELLER:
/s/ Gordon Cohen
Gordon Cohen
<PAGE> 18
UNIT REDEMPTION AGREEMENT
This UNIT REDEMPTION AGREEMENT, dated August 30, 1995 (this "Agreement"), by
and between Boston Celtics Limited Partnership, a Delaware limited
partnership ("BCLP"), and Laurie Cohen-Fenster (the "Seller").
W I T N E S S E T H:
WHEREAS, the Seller is the record and beneficial owner of 45,150 units (the
"Units"), representing assignments of beneficial ownership of limited
partnership interests in BCLP; and
WHEREAS, BCLP wishes to redeem from the Seller, and the Seller wishes to
have BCLP redeem, the Units on the terms and conditions set forth in this
Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements, representations and warranties herein contained, and for other
good and valuable consideration the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. Redemption of Units. Subject to the terms and conditions of this
Agreement, at the Closing described in Section 2 hereof, the Seller is
assigning, transferring and conveying to BCLP, and BCLP is redeeming from
the Seller, all of the Units owned by the Seller, free and clear of all
liens, claims, options, proxies, voting agreements, charges or encumbrances
of whatever nature. In consideration of the aforesaid redemption, BCLP is
paying to the Seller an aggregate purchase price of $970,725.00 ($21.50 per
Unit) in immediately available funds (the "Purchase Price").
2. Closing. The closing of the aforesaid redemption (the "Closing")
is taking place simultaneously with the execution and delivery of this
Agreement at the offices of Dickstein, Shapiro & Morin, L.L.P., 598 Madison
Avenue, New York, New York 10022.
3. Deliveries at Closing. At the Closing, (a) the Seller is
delivering to BCLP a certificate or certificates representing all of the
Units, and (b) BCLP is delivering the Purchase Price through a wire transfer
to a bank account of the Seller specified in writing on or before the
business day prior to the date of the Closing.
4. Seller's Representations and Warranties. The Seller represents and
warrants to BCLP as follows:
a. The Seller has the full power and authority to execute,
deliver and carry out the terms and provisions of this Agreement and to
consummate the transactions contemplated hereby.
<PAGE> 19
b. This Agreement has been duly and validly executed and
delivered by the Seller and constitutes a valid and binding obligation of
the Seller, enforceable against the Seller in accordance with its terms.
c. The Seller is the sole beneficial holder of all of the Units,
free and clear of any lien or other encumbrance.
d. Upon transfer to BCLP by the Seller of the Units, BCLP will
have good and marketable title to the Units, free and clear of any lien or
other encumbrance.
e. The Units constitute all of the securities of BCLP
beneficially owned, directly or indirectly, by the Seller or by any of her
"affiliates" or "associates," as such terms are defined in Rule 12b-2 under
the Securities Exchange Act of 1934, as amended (the "Exchange Act") (each
an "Affiliate" or "Associate," respectively), except for units subject to
that certain unit redemption agreement of even date herewith by and between
Alan N. Cohen and BCLP, and units subject to that certain unit redemption
agreement of even date herewith by and between Gordon Cohen and BCLP.
f. Neither the Seller nor any of her Affiliates or Associates
has any outstanding option, warrant or other right to acquire, directly or
indirectly, any securities of BCLP or any securities which are convertible
or exchangeable into or exercisable for any securities of BCLP, nor is the
Seller or any of her Affiliates or Associates subject to any agreement
(whether written or in the nature of an informal understanding) which allows
or obligates the Seller or such Affiliate or Associate to vote or acquire
any such securities.
5. BCLP's Representations and Warranties. BCLP represents and
warrants to the Seller as follows:
a. BCLP is a limited partnership duly organized, validly
existing and in good standing under the laws of the State of Delaware. BCLP
has the full power and authority to execute, deliver and carry out the terms
and provisions of this Agreement and to consummate the transactions
contemplated hereby, and has taken all necessary action to authorize the
execution, delivery and performance of this Agreement.
b. This Agreement has been duly and validly authorized, executed
and delivered by BCLP and is the legal, valid and binding obligation of
BCLP, enforceable against BCLP in accordance with its terms.
c. The execution and delivery of this Agreement by BCLP does
not, and the performance by BCLP of its obligations under this Agreement
will not, constitute a violation of the Amended and Restated Agreement of
Limited Partnership of Boston Celtics Limited Partnership, as amended.
<PAGE> 20
6. Certain Agreements.
a. The Seller covenants with BCLP that, for a period of ten (10)
years after the date hereof (the "Term"), without the prior written consent
of BCLP, duly authorized by its general partner, Celtics, Inc. (or any
successor thereto), the Seller, singly or as part of a "partnership, limited
partnership, syndicate or other group" (within the meaning of Section
13(d)(3) of the Exchange Act), directly or indirectly, through one or more
intermediaries or otherwise, will not, and will cause each Person controlled
by or under common control with (but not as a fellow employee) the Seller
not to:
i) Purchase, acquire or own, or offer or agree to
purchase, acquire or own, any securities of BCLP which (i) are entitled to,
or may be entitled to, vote or (ii) by the terms thereof, are convertible
into or exchangeable for securities which are entitled to vote
(collectively, "Restricted Securities");
ii) Make, or in any way participate in, directly or
indirectly, any "solicitation" of "proxies" (as such terms are defined or
used in Regulation 14A under the Exchange Act) or become a "participant" in
any "election contest" (as such terms are defined or used in Rule 14a-11 of
the Exchange Act) with respect to BCLP; seek to advise or influence any
"person" (within the meaning of Section 13(d)(3) of the Exchange Act) with
respect to the voting of any securities of BCLP; or execute any written
consent in lieu of a meeting of holders of securities of BCLP or any class
thereof;
iii) Initiate, propose or otherwise solicit stockholders
for the approval of one or more stockholder proposals with respect to BCLP
as described in Rule 14a-8 under the Exchange Act;
iv) Acquire or affect the control of BCLP or directly or
indirectly participate in or encourage the formation of any "group" (within
the meaning of Section 13(d)(3) of the Exchange Act) which owns or seeks to
acquire beneficial ownership of securities of BCLP or to affect control of
BCLP; or
v) Otherwise act, directly or indirectly, alone or in
concert with others, to seek to control or influence in any manner the
management, policies or affairs of BCLP, or propose or seek to effect any
form of business combination transaction with BCLP or any Affiliate thereof
or any restructuring, recapitalizing or similar transaction with respect to
any thereof, or instigate or encourage any third party to do any of the
foregoing.
b. (i) Neither the Seller nor her spouse will directly or
indirectly (x) disparage any of BCLP, Celtics, Inc. or any of their
respective Affiliates, Associates, officers or directors or (y) take any
action which would have a harmful effect on the business or reputation of
any of them provided, however, that management, conduct or ownership of any
business which would be permitted under Section 6 of that certain consulting
agreement of even date herewith between Alan N. Cohen and Celtics Limited
Partnership ("CLP") (construed as if Seller was party thereto as Consultant)
shall be not be deemed to be a violation of this clause (y).
<PAGE> 21
(ii) Neither BCLP nor any of its Affiliates will directly
or indirectly disparage any of the Seller, her Affiliates or Associates, or
any of their respective officers or directors or take any action which would
have a harmful effect on the business or reputation of any of them.
c. Except as permitted by the two sentences immediately next
succeeding and except for communications made with the prior written
approval of the board of directors of the general partner of BCLP, neither
the Seller nor her spouse will make any public or private communication of
any nature, including, without limitation, press releases, written notices
or oral or electronic or other forms of communication, concerning or
characterizing (i) the existence or terms of this Agreement or (ii) the
existence, nature or terms of any dealings by the Seller or any of her
agents, advisors or representatives with BCLP, Celtics, Inc. or any of their
respective Affiliates, Associates, officers, directors or employees.
Notwithstanding the foregoing, the following communications by the Seller
shall be permitted: (1) disclosures made in a filing with the Securities
and Exchange Commission required by and in compliance with Schedule 13D
under the Exchange Act, (2) other disclosures to the public or to
governmental authorities which are considered necessary by Paul, Weiss,
Rifkind, Wharton & Garrison or counsel to BCLP to maintain compliance with,
or to prevent violation of, applicable laws, and (3) disclosures in the
course of truthful testimony as required by court order or other legal
process; provided that in any case copies and/or notice of such permitted
disclosure shall be provided by the Seller to BCLP prior to any release or
disclosure by the Seller. Further, notwithstanding the foregoing,
communications by the Seller consisting of (x) filing of tax returns and any
statements made by or proceedings undertaken by the Seller in connection
with any tax matters or (y) references to the press release of BCLP in the
form attached hereto as Exhibit B, with no unfavorable commentary thereon,
shall be permitted and the proviso contained in the immediately preceding
sentence of this Section 6(c) shall not be applicable to such
communications.
d. Except as permitted by the sentence immediately next
succeeding and except for communications made with the prior written
approval of the Seller, neither BCLP nor any of its Affiliates, agents,
advisors or representatives will make any public or private communication of
any nature, including, without limitation, press releases, written notices
or oral or electronic or other forms of communication, concerning or
characterizing (i) the existence, nature or terms of this Agreement or (ii)
the existence, nature or terms of any dealings respecting this Agreement or
the subject matter hereof. Notwithstanding the foregoing, the following
communications by BCLP shall be permitted: (1) disclosures made in any
filing with the Securities and Exchange Commission, (2) other disclosures to
the public or to governmental authorities which are considered necessary by
counsel to BCLP to maintain compliance with, or prevent violation of,
applicable laws, (3) communications by BCLP or its Affiliates consisting of
filing of tax returns and any statements made by or proceedings undertaken
by or on behalf of BCLP or any of its Affiliates in connection with any tax
matters and (4) the press release in the form attached hereto as Exhibit B.
<PAGE> 22
7. Nondisclosure. The Seller agrees not to disclose, during the three
(3) year period following the date of this Agreement, to any person not
employed on a full-time basis by BCLP or any Affiliate thereof, or not
engaged to render services to BCLP or any Affiliate thereof, except with the
prior written consent of Paul E. Gaston in her capacity as Chairman of the
Board and Chief Executive Officer of Celtics, Inc., any confidential
information obtained by her while a consultant to or in the employ of BCLP
or any Affiliate thereof; provided, however, that this provision shall not
preclude the Seller from the use or disclosure of information known
generally to the public or of information not considered confidential by
persons engaged in any of the businesses of BCLP or from disclosure required
by law or court order. The agreement made in this Section 7 shall be in
addition to, and not in limitation or derogation of, any obligations
otherwise imposed by law or by separate agreement upon the Seller in respect
of confidential information of BCLP or any Affiliate thereof.
8. Releases; Waiver. Except with respect to any cause of action which
a party to this Agreement may have pertaining to the enforcement of
liabilities and/or obligations under this Agreement, each of the parties to
this Agreement for herself/itself and her/its spouses, successors and
assigns and, in the case of BCLP, Affiliates controlled by it, hereby
releases and discharges the other party hereto and, as the case may be, each
of their respective present or former partners, directors, employees,
officers, Affiliates, Associates, representatives, attorneys, agents,
successors and assigns (each a "Released Person") from all suits, claims,
charges, liabilities and causes of action whatsoever, whether known or
unknown, at law or in equity or otherwise (each a "Claim"), which the other
party hereto or her/its spouses, successors and assigns and, in the case of
BCLP, Affiliates controlled by it, have or may have against any or all of
such Released Persons arising out of, relating to or in connection with any
occurrences or events whatsoever occurring up to the Closing; provided,
however, that, except with respect to Claims against BCLP, its Affiliates
and their respective officers and directors, all of which are absolutely and
unconditionally released hereby, this release shall not apply to any Claim
completely unrelated to the management, operations and businesses of BCLP or
any of its Affiliates.
(b) The Seller, for herself and her successors and assigns,
hereby waives, and covenants and agrees that he or they will have no right
to assert or enforce, any Claim with regard to the conduct and management of
the business and affairs of BCLP or any of its Affiliates (relating to
conduct occurring prior to or after the date of this Agreement), except for
Claims pertaining to the enforcement of this Agreement in accordance with
the express terms hereof.
<PAGE> 23
9. Specific Performance. BCLP and the Seller each acknowledge and
agree that in the event of any breach of this Agreement, the non-breaching
party would be irreparably harmed and could not be made whole by monetary
damages. It is accordingly agreed that BCLP and the Seller, in addition to
any other remedy to which they may be entitled at law or in equity, shall be
entitled to compel specific performance of this Agreement in any action
instituted in any federal or state court sitting in the State of Delaware,
or, in the event said court would not have jurisdiction of such action, in
any court of the United States or any state having subject matter
jurisdiction. BCLP and the Seller each consent to personal jurisdiction in
any such action brought in any federal or state court sitting in the State
of Delaware and to service of process upon it or her, as the case may be, in
the manner set forth in Section 11(g) hereof.
10. Expenses; Brokerage Fees. All fees and expenses incurred by the
Seller, and all sales, transfer or other similar taxes payable by the Seller
in connection with this Agreement (including, without limitation, any
transfer taxes payable in connection with the redemption of the Units), will
be borne by the Seller, and all fees and expenses incurred by BCLP in
connection with this Agreement will be borne by BCLP. BCLP, on the one
hand, and the Seller, on the other, represent and warrant to the other that
the negotiations relevant to this Agreement have been carried on by each
directly with the other and that there are no claims for finder's fees or
other like payments in connection with this Agreement or the transactions
contemplated hereby. BCLP, on the one hand, and the Seller, on the other,
agree to indemnify and hold harmless the other from and against any and all
claims or liabilities for finder's fees or other like payments incurred by
reason of any action taken by it or her.
11. Miscellaneous.
a. This Agreement constitutes the entire agreement and
supersedes all prior agreements and understandings, whether oral or written,
between the parties hereto with respect to the subject matter hereof. This
Agreement may not be amended orally, but only by an instrument in writing
signed by each of the parties to this Agreement.
b. This Agreement shall inure to the benefit of and be binding
upon the parties hereto and their heirs, legal representatives, successors
and assigns.
c. Section headings contained in this Agreement are for
reference purposes only and shall not affect the meaning or
interpretation of this Agreement.
d. All representations, warranties and covenants shall survive
the Closing.
e. This Agreement may be executed in any number of counterparts,
each of which shall, when executed, be deemed to be an original and all of
which shall be deemed to be one and the same instrument.
f. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Delaware, without
regard to the conflict of laws principles thereof.
<PAGE> 24
g. All notices and other communications under this Agreement
shall be in writing and delivery thereof shall be deemed to have been made
either (i) if mailed, when received, or (ii) when transmitted by hand
delivery, telegram, telex, telecopier or facsimile transmission to the party
entitled to receive the same at the address indicated below or at such other
address as such party shall have specified by written notice to the other
party hereto given in accordance herewith:
(A) if to the Seller:
Laurie Cohen-Fenster
c/o Alfred D. Youngwood, Esq.
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019-6064
with a copy to:
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019-6064
Attention: Neale M. Albert, Esq.
(B) if to BCLP:
Boston Celtics Limited Partnership
151 Merrimac Street
Boston, Massachusetts 02114
Attention: Thomas M. Bartlett, Jr.
with a copy to:
Dickstein, Shapiro & Morin, L.L.P.
2101 L Street, N.W.
Washington, D.C. 20037
Attention: John W. Griffin, Esq.
h. Any waiver by a party of a breach of any provision of this
Agreement shall not operate as or be construed to be a waiver of any other
breach of such provision or of any breach of any other provision of this
Agreement. The failure of a party to insist upon strict adherence to any
term of this Agreement on one or more occasions shall not be considered a
waiver or deprive that party of the right thereafter to insist upon strict
adherence to that term or any other term of this Agreement.
i. No provision in this Agreement shall constitute any person a
third party beneficiary.
IN WITNESS WHEREOF, and intending to be legally bound hereby, each of
BCLP and the Seller has executed or caused to be executed this Agreement as
of the date first above written.
BOSTON CELTICS LIMITED PARTNERSHIP
By: CELTICS, INC.,
its General Partner
<PAGE> 25
By: /s/ Paul E. Gaston
Name: Paul E. Gaston
Title: Chairman of the Board and
Chief Executive Officer
SELLER:
/s/ Laurie Cohen-Fenster
Laurie Cohen-Fenster
PROMISSORY NOTE
$1,000,008.00 August 1, 1995
FOR VALUE RECEIVED, on or before the Maturity Date (as defined in
Section 3), the undersigned BOSTON CELTICS LIMITED PARTNERSHIP, a Delaware
limited partnership (the "Maker"), hereby promises to pay to the order of
ALAN N. COHEN or his successors and assigns (collectively, the "Payee"), at
33 East 63rd Street, New York, New York, or at such other place as the
holder hereof may from time to time designate in writing, the principal sum
of One Million and Eight Dollars ($1,000,008.00), hereinafter referred to as
the "Principal Amount," plus accrued but unpaid interest thereon at the
interest rate set forth below. In addition, the Maker hereby promises to
pay to the order of the Payee at the location designated in the preceding
sentence any Additional Amounts which may become payable pursuant to Section
1 below, plus accrued but unpaid interest thereon at the rate set forth
below.
1. ADDITIONAL AMOUNTS. In addition to the Principal Amount, which is
payable as provided herein, additional amounts (the "Additional Amounts")
shall accrue from and after July 1, 1996 in the amount set forth below, and
shall bear interest at the rate set forth below. The Additional Amounts for
a specified period shall be calculated by multiplying the number of
Equivalent Units (as defined below) existing at the end of that period by
the following dollar amounts (which are set forth on a cumulative basis from
July 1, 1996):
<PAGE> 26
<TABLE>
<CAPTION>
Period Additional Amount
------ -----------------
(in dollars per Equivalent Unit)
<S> <C>
From July 1, 1996 to June 30, 1997 $1.48
From July 1, 1997 to June 30, 1998 $3.06
From July 1, 1998 to June 30, 1999 $4.75
From July 1, 1999 to June 29, 2000 $6.56
From and after June 30, 2000 $8.50
</TABLE>
For the purposes of this Note, "Equivalent Units" shall mean 46,512 units of
limited partnership interest of the Maker (the "Units").
2. INTEREST; PAYMENTS. Interest on this Note shall accrue on the
outstanding Principal Amount, plus accrued and unpaid Additional Amounts, if
any, from August 1, 1995 until the date paid, at the rate of seven and
76/100 percent (7.76%) per annum. From the date hereof until the Maturity
Date, interest on this Note shall be payable in successive quarterly
installments, commencing on September 30, 1995 and continuing on each
December 31, March 31, June 30 and September 30 thereafter until the
Maturity Date, at which time the entire Principal Amount, plus all
Additional Amounts, and all accrued and unpaid interest thereon, shall be
due and payable in full. All payments hereunder shall be payable in lawful
currency of the United States of America and in immediately available funds.
3. MATURITY DATE. The "Maturity Date" of this Note shall be the
first to occur of (a) June 30, 2000, (b) the date of optional prepayment of
this Note in whole pursuant to Section 4 or (c) the date of mandatory
prepayment of this Note in whole pursuant to Section 5.
4. OPTIONAL PREPAYMENT. This Note may be prepaid at the option of
the Maker, in whole but not in part, at any time on or before June 30, 1998,
in the event that the Maker will, as of or before June 30, 2000, become an
association taxable as a corporation under the Internal Revenue Code of
1986, as amended, by payment of an amount which equals the number of
Equivalent Units then existing multiplied by $28.00, plus all accrued but
unpaid interest. This Note may be prepaid at the option of the Payee, in
whole but not in part, at any time on or before June 30, 1998, in the event
that the Maker will become an association taxable as a corporation under the
Internal Revenue Code of 1986, as amended, by payment of an amount which
equals the number of Equivalent Units then existing multiplied by $28.00,
plus all accrued but unpaid interest. Payment of the full amount specified
above (together with all accrued but unpaid interest) shall be deemed to be
satisfaction and payment in full of all amounts owing under this Note.
<PAGE> 27
5. MANDATORY PREPAYMENT.
(a) Upon the prepayment in full of the $13,365,088 promissory
note dated the date hereof by Maker to Payee pursuant to Section 5(b) or (c)
thereof, Maker shall prepay the entire outstanding Principal Amount of this
Note on the date of such prepayment, plus Additional Amounts, if any,
payable for the period in which prepayment occurs, plus all interest accrued
but unpaid with respect to the Principal Amount plus Additional Amounts, if
any, to the date of prepayment.
(b) Upon the occurrence of a Change of Control Event (as
defined below), and within thirty (30) days of receipt by the Maker of a
written notice of mandatory prepayment under this Section 5, given by the
Payee in accordance with Section 10(g) of the Unit Redemption Agreement
referred to below, the Maker shall prepay this Note, in whole only, by
paying the entire outstanding Principal Amount, plus Additional Amounts, if
any, payable for the period in which prepayment occurs, plus all interest
accrued but unpaid with respect to the Principal Amount plus Additional
Amounts, if any, to the date of prepayment. For purposes of this Note, a
"Change of Control Event" means and includes any of the following events:
(i) The Maker ceases to own more than fifty percent (50%)
of the equity interests of Celtics Limited Partnership, a Delaware limited
partnership.
(ii) Any person or "group" (within the meaning of Section
13(d)(3) of the Securities Exchange Act of 1934, as amended) not controlled
by any of Don F. Gaston, Paula B. Gaston, Paul E. Gaston, Paul R. Dupee,
Jr. or their respective Affiliates (as such terms are defined in Section
4(e) of the Unit Redemption Agreement referred to below) acquires more than
fifty percent (50%) of the issued and outstanding Units of the Maker.
6. DEFAULTS. If any one or more of the following events (herein
termed "Events of Default") shall happen, that is to say:
(a) Any default shall occur in the payment of principal of or
interest on this Note, as and when the same shall become due and payable
(whether at any due date hereof, by mandatory prepayment, acceleration or
otherwise) and such default shall continue for a period of fifteen (15)
days; or
(b) The Maker shall:
(i) commence a voluntary case under Title 11 of the United
States Code;
(ii) have filed against it a petition commencing an
involuntary case under said Title 11 which shall not have been dismissed
within one hundred twenty (120) days after the date on which said petition
is filed;
(iii) file an answer or other pleading admitting or
failing to deny the material allegations of such petition or seeking,
consenting to or acquiescing in the relief therein provided;
<PAGE> 28
(iv) have entered against it an order by a court of
competent jurisdiction (A) ordering or approving its liquidation or
reorganization or (B) assuming custody of, or appointing a receiver or other
custodian for, all or a substantial part of its property; or
(v) make an assignment (other than in the ordinary course
of its business) for the benefit of, or enter into a composition with, its
creditors, or appoint or consent to the appointment of a receiver or other
custodian for all or a substantial part of its property; or
(c) The Maker shall breach the covenant set forth in Section 13
hereof;
then, upon the occurrence of any such Event of Default and at any time
thereafter, while such Event of Default is continuing, the Payee may, by
written notice to the Maker (unless there shall have occurred an Event of
Default under Section 6 (b), in which case the amount set forth below shall
automatically become due and payable), declare the amount set forth below to
be due and payable, without presentment, demand, protest or other notice of
any kind, all of which are hereby expressly waived, and the Payee shall be
entitled to payment of this Note, in whole, in an amount which equals the
number of Equivalent Units then existing multiplied by $30.00, plus all
interest accrued but unpaid with respect to the Principal Amount, plus
Additional Amounts, if any.
If any one or more Events of Default shall occur and be continuing,
the Payee's sole and exclusive remedy with respect to such Event of Default
shall be to proceed to enforce the payment of this Note. The remedies
provided the Payee in this Note may be pursued singly, successively or
together against the Maker or any of the property of the Maker, at the
option of the Payee. The failure to exercise or delay in exercising any
such remedy shall not be construed as a waiver or release thereof.
<PAGE> 29
7. UNIT REDEMPTION AGREEMENT; SETOFF; TRANSFER. This Note is issued
pursuant to the terms of a certain Unit Redemption Agreement dated as of
August 30, 1995, by and between the Maker and the Payee (the "Unit
Redemption Agreement"). All of the terms, conditions and agreements
contained in the Unit Redemption Agreement to be kept, observed or performed
by the Maker are hereby made a part of this Note and incorporated herein by
reference to the same extent and with the same force and effect as if they
were fully set forth herein, and the Maker promises and agrees to keep,
observe and perform them, or cause them to be kept, observed and performed,
strictly in accordance with the terms and provisions thereof. Payments of
principal of, Additional Amounts with respect to, and interest on, this Note
are subject to the right of the Maker to set off or deduct from such
payments the amount of any liability which the Payee may have to the Maker
arising out of any breach by the Payee of any covenant, representation or
warranty set forth in the Unit Redemption Agreement. If the Payee obtains a
final and non-appealable judgment of a court of competent jurisdiction that
the Maker was not entitled to make all or any part of any such setoff or
deduction, the Maker will restore this Note and pay to the Payee any amount
that would have been due but for such setoff, deduction or part thereof with
interest thereon through such date. In addition, if such judgment has made
a determination favorable to the Payee of every issue in dispute, the Maker
will reimburse the Payee for reasonable legal fees and expenses actually
incurred by him in contesting the claimed liability. The burden of proof in
any legal proceeding commenced by Payee with respect to any exercise by
Maker of its setoff rights hereunder shall be allocated between Maker and
Payee in the same manner as if Maker had initiated legal proceedings against
Payee for breach of the Unit Redemption Agreement. Neither this Note nor
any portion thereof or any interest therein may be assigned, transferred,
pledged or hypothecated by the Payee.
8. WAIVER. Presentment, demand, notice of dishonor, notice of
protest and protest are hereby waived by all makers, sureties, guarantors
and endorsers hereof. This Note shall be the joint and several obligation
of all makers, sureties, guarantors and endorsers, and shall be binding upon
them and their successors and assigns. No release of any person liable for
the indebtedness evidenced hereby, or any portion thereof, and no extension,
alteration, amendment, subordination or waiver of any provision of this Note
made by agreement between the Payee and any other person or party shall
release, discharge, modify, change or affect the liability of the Maker or
any other person now or hereafter liable under this Note.
9. GOVERNING LAW. This Note shall be governed by the laws of the
State of Delaware, without regard to conflict of laws provisions, and shall
be binding upon and inure to the benefit of the parties hereto and their
respective heirs, executors, administrators, personal representatives,
successors and assigns.
<PAGE> 30
10. LEGAL RATE OF INTEREST. This Note is subject to the express
condition that at no time shall the Maker be obligated or required to pay
interest on the Principal Amount at a rate in excess of the maximum rate
which the Maker is permitted by law to contract or agree to pay. If by the
terms of this Note, the Maker at any time is required or obligated to pay
interest on the Principal Amount at a rate in excess of such maximum rate,
then the rate of interest hereunder shall be deemed to be reduced
immediately and automatically to such maximum rate, interest payable
hereunder shall be computed at such maximum rate and any prior interest
payment made in excess of such maximum rate shall be immediately and
automatically applied to, and shall be deemed to have been payment made in
reduction of, the Principal Amount.
11. INVALIDITY. In the event any one or more of the provisions
contained in this Note shall for any reason be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Note but this
Note shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein.
12. MODIFICATION. This Note may not be modified, amended, discharged
or waived orally, but only by an agreement in writing signed by the party
against whom such modification, amendment, discharge or waiver is sought to
be enforced.
13. MAKER'S COVENANT. During the term of this Note, Maker shall
maintain, as of the last day of each fiscal year of Maker, consolidated
Partners' Capital (as defined below) equal to or greater than two (2) times
the outstanding Principal Amount plus Additional Amounts, if any, applicable
as of the following day. For purposes of the foregoing, "Partners' Capital"
means Partners' Capital as reflected in Maker's audited balance sheet,
provided that, for the purpose of determining the value of BCLP's limited
partnership interest in Celtics Limited Partnership ("CLP"), the net assets
of CLP shall be valued at the greater of (a) the amount of such net assets
reflected on such audited balance sheet or (b) as long as CLP owns the
Basketball team, $150 million, less any bank debt of CLP.
[This space intentionally left blank]
IN WITNESS WHEREOF, the undersigned has caused this Note to be executed as
of the day and year first above written.
BOSTON CELTICS LIMITED PARTNERSHIP
[CORPORATE SEAL] By: CELTICS, INC.,
its General Partner
/s/ Paul E. Gaston
Name: Paul E. Gaston
Title: Chairman of the Board and
Chief Executive Officer
<PAGE> 31
PROMISSORY NOTE
$13,365,088.00 August 1, 1995
FOR VALUE RECEIVED, on or before the Maturity Date (as defined in
Section 3), the undersigned BOSTON CELTICS LIMITED PARTNERSHIP, a Delaware
limited partnership (the "Maker"), hereby promises to pay to the order of
ALAN N. COHEN or his successors and assigns (collectively, the "Payee"), at
33 East 63rd Street, New York, New York, or at such other place as the
holder hereof may from time to time designate in writing, the principal sum
of Thirteen Million Three Hundred Sixty-Five Thousand and Eighty-Eight
Dollars ($13,365,088.00), hereinafter referred to as the "Principal Amount,"
plus accrued but unpaid interest thereon at the interest rate set forth
below. In addition, the Maker hereby promises to pay to the order of the
Payee at the location designated in the preceding sentence any Additional
Amounts which may become payable pursuant to Section 1 below, plus accrued
but unpaid interest thereon at the rate set forth below.
1. ADDITIONAL AMOUNTS. In addition to the Principal Amount, which is
payable as provided herein, additional amounts (the "Additional Amounts")
shall accrue from and after July 1, 1996 in the amount set forth below, and
shall bear interest at the rate set forth below. The Additional Amounts for
a specified period shall be calculated by multiplying the number of
Equivalent Units (as defined below) existing at the end of that period by
the following dollar amounts (which are set forth on a cumulative basis from
July 1, 1996):
<TABLE>
<CAPTION>
Period Additional Amount
------ -----------------
(in dollars per Equivalent Unit)
<S> <C>
From July 1, 1996 to June 30, 1997 $1.48
From July 1, 1997 to June 30, 1998 $3.06
From July 1, 1998 to June 30, 1999 $4.75
From July 1, 1999 to June 29, 2000 $6.56
From and after June 30, 2000 $8.50
</TABLE>
For the purposes of this Note, "Equivalent Units" shall mean 621,632 units
of limited partnership interest of the Maker (the "Units") less the
cumulative number of Units applicable to all mandatory prepayments after any
mandatory prepayment pursuant to Section 5(a) or 5(b).
<PAGE> 32
2. INTEREST; PAYMENTS. Interest on this Note shall accrue on the
outstanding Principal Amount, plus accrued and unpaid Additional Amounts, if
any, from August 1, 1995 until the date paid, at the rate of seven and
76/100 percent (7.76%) per annum. From the date hereof until the Maturity
Date, interest on this Note shall be payable in successive quarterly
installments, commencing on September 30, 1995 and continuing on each
December 31, March 31, June 30 and September 30 thereafter until the
Maturity Date, at which time the entire Principal Amount, plus all
Additional Amounts, and all accrued and unpaid interest thereon, shall be
due and payable in full. All payments hereunder shall be payable in lawful
currency of the United States of America and in immediately available funds.
3. MATURITY DATE. The "Maturity Date" of this Note shall be the
first to occur of (a) June 30, 2000, (b) the date of optional prepayment of
this Note in whole pursuant to Section 4 or (c) the date of mandatory
prepayment of this Note in whole pursuant to Section 5.
4. OPTIONAL PREPAYMENT. This Note may be prepaid at the option of
the Maker, in whole but not in part, at any time on or before June 30, 1998,
in the event that the Maker will as of or before June 30, 2000 become an
association taxable as a corporation under the Internal Revenue Code of
1986, as amended, by payment of an amount which equals the number of
Equivalent Units then existing multiplied by $28.00, plus all accrued but
unpaid interest. This Note may be prepaid at the option of the Payee, in
whole but not in part, at any time on or before June 30, 1998, in the event
that the Maker will become an association taxable as a corporation under the
Internal Revenue Code of 1986, as amended, by payment of an amount which
equals the number of Equivalent Units then existing multiplied by $28.00,
plus all accrued but unpaid interest. Payment of the full amount specified
above (together with all accrued but unpaid interest) shall be deemed to be
satisfaction and payment in full of all amounts owing under this Note.
5. MANDATORY PREPAYMENT. The Maker shall make mandatory prepayments
from time to time, in part or in whole, upon written notice from the Payee,
as follows:
(a) Within thirty (30) days of receipt by the Maker of a notice
of mandatory prepayment under this Section 5(a), given by the Payee in
accordance with Section 10(g) of the Unit Redemption Agreement referred to
below, the Maker shall prepay such amount not to exceed One Million Dollars
($1,000,000.00) as may be specified in such notice; provided, however, that
the Payee may not give such notice sooner than one (1) year after the giving
of any previous notice pursuant to this Section 5(a).
(b) Within six (6) months of receipt by the Maker of a notice of
mandatory prepayment under this Section 5(b), given by the Payee in
accordance with Section 10(g) of the Unit Redemption Agreement referred to
below, the Maker shall prepay such amount as may be specified in such
notice; provided, however, that the Payee may not give such notice more than
once in any fiscal year of the Maker prior to the Maturity Date. In the
event of any such mandatory prepayment pursuant to Section 5(a) or 5(b)
hereof, the number of Units of the Maker equivalent to such prepayment
(Equivalent Units) shall be calculated by dividing the dollar amount prepaid
pursuant to Section 5(a) or 5(b) by the sum of $21.50 plus the per Unit
Additional Amount, if any, which has accrued and rounding the quotient to
the nearest whole number.
<PAGE> 33
(c) Upon the occurrence of a Change of Control Event (as
defined below), and within thirty (30) days of receipt by the Maker of a
notice of mandatory prepayment under this Section 5(c), given by the Payee
in accordance with Section 10(g) of the Unit Redemption Agreement referred
to below, the Maker shall prepay this Note, in whole only, by paying the
entire outstanding Principal Amount, plus Additional Amounts, if any,
payable for the period in which prepayment occurs, plus all interest accrued
but unpaid with respect to the Principal Amount plus Additional Amounts, if
any, to the date of prepayment. For purposes of this Note, a "Change of
Control Event" means and includes any of the following events:
(i) The Maker ceases to own more than fifty percent (50%)
of the equity interests of Celtics Limited Partnership, a Delaware limited
partnership.
(ii) Any person or "group" (within the meaning of Section
13(d)(3) of the Securities Exchange Act of 1934, as amended) not controlled
by any of Don F. Gaston, Paula B. Gaston, Paul E. Gaston, Paul R. Dupee, Jr.
or their respective Affiliates (as such terms are defined in Section 4(e) of
the Unit Redemption Agreement referred to below) acquires more than fifty
percent (50%) of the issued and outstanding Units of the Maker.
(d) In the event of any mandatory prepayment pursuant to Section
5(a) or 5(b) hereof, all accrued but unpaid interest shall be paid with
respect to the Equivalent Units applicable to such prepayments.
6. DEFAULTS. If any one or more of the following events (herein
termed "Events of Default") shall happen, that is to say:
(a) Any default shall occur in the payment of principal of or
interest on this Note, as and when the same shall become due and payable
(whether at any due date hereof, by mandatory prepayment, acceleration or
otherwise) and such default shall continue for a period of fifteen (15)
days; or
(b) The Maker shall:
(i) commence a voluntary case under Title 11 of the United
States Code;
(ii) have filed against it a petition commencing an
involuntary case under said Title 11 which shall not have been dismissed
within one hundred twenty (120) days after the date on which said petition
is filed;
(iii) file an answer or other pleading admitting or
failing to deny the material allegations of such petition or seeking,
consenting to or acquiescing in the relief therein provided;
(iv) have entered against it an order by a court of
competent jurisdiction (A) ordering or approving its liquidation or
reorganization or (B) assuming custody of, or appointing a receiver or other
custodian for, all or a substantial part of its property; or
<PAGE> 34
(v) make an assignment (other than in the ordinary course
of its business) for the benefit of, or enter into a composition with, its
creditors, or appoint or consent to the appointment of a receiver or other
custodian for all or a substantial part of its property;
(c) The Maker shall breach the covenant set forth in Section 14
hereof.
then, upon the occurrence of any such Event of Default and at any time
thereafter, while such Event of Default is continuing, the Payee may, by
written notice to the Maker (unless there shall have occurred an Event of
Default under Section 6 (b), in which case the amount set forth below shall
automatically become due and payable), declare the amount set forth below to
be due and payable, without presentment, demand, protest or other notice of
any kind, all of which are hereby expressly waived, and the Payee shall be
entitled to payment of this Note, in whole, in an amount which equals the
number of Equivalent Units then existing multiplied by $30.00, plus all
interest accrued but unpaid with respect to the Principal Amount, plus
Additional Amounts, if any.
If any one or more Events of Default shall occur and be continuing,
the Payee's sole and exclusive remedy with respect to such Event of Default
shall be to proceed to enforce the payment of this Note. The remedies
provided the Payee in this Note may be pursued singly, successively or
together against the Maker or any of the property of the Maker, at the
option of the Payee. The failure to exercise or delay in exercising any
such remedy shall not be construed as a waiver or release thereof.
7. NO SETOFF. Payments of principal of, or interest on, or
Additional Amounts with respect to, this Note are not subject to any right
of the Maker to set off or deduct from any such payments the amount of any
claim or claims which the Maker or any other person or entity may have
against the Payee or any other person or entity arising under that certain
Unit Redemption Agreement dated as of August 30, 1995, by and between the
Maker and the Payee or otherwise.
8. TRANSFER. Neither this Note, any portion thereof nor any interest
therein may be assigned, transferred, pledged or hypothecated by the Payee,
except as provided in this Section 8. The Payee may (a) transfer this Note,
in whole but not in part, only for estate planning purposes and only to a
trust for the benefit of one or more of his spouse, his children and/or his
grandchildren or (b) pledge this Note, in whole but not in part, only to a
single commercial bank and only for the purpose of securing a loan to him
from such bank, provided that in event of any acceleration by such bank of
any such loan to the Payee, the Maker of this Note shall forthwith have the
right to discharge its obligations hereunder in full by prepaying the entire
outstanding Principal Amount, plus Additional Amounts, if any payable for
the period in which prepayment occurs, plus all interest accrued but unpaid
with respect to the Principal Amount plus Additional Amounts, if any, to the
date of prepayment.
<PAGE> 35
9. WAIVER. Presentment, demand, notice of dishonor, notice of protest
and protest are hereby waived by all makers, sureties, guarantors and
endorsers hereof. This Note shall be the joint and several obligation of
all makers, sureties, guarantors and endorsers, and shall be binding upon
them and their successors and assigns. No release of any person liable for
the indebtedness evidenced hereby, or any portion thereof, and no extension,
alteration, amendment, subordination or waiver of any provision of this Note
made by agreement between the Payee and any other person or party shall
release, discharge, modify, change or affect the liability of the Maker or
any other person now or hereafter liable under this Note.
10. GOVERNING LAW. This Note shall be governed by the laws of the
State of Delaware, without regard to conflict of laws provisions, and shall
be binding upon and inure to the benefit of the parties hereto and their
respective heirs, executors, administrators, personal representatives,
successors and assigns.
11. LEGAL RATE OF INTEREST. This Note is subject to the express
condition that at no time shall the Maker be obligated or required to pay
interest on the Principal Amount at a rate in excess of the maximum rate
which the Maker is permitted by law to contract or agree to pay. If by the
terms of this Note, the Maker at any time is required or obligated to pay
interest on the Principal Amount at a rate in excess of such maximum rate,
then the rate of interest hereunder shall be deemed to be reduced
immediately and automatically to such maximum rate, interest payable
hereunder shall be computed at such maximum rate and any prior interest
payment made in excess of such maximum rate shall be immediately and
automatically applied to, and shall be deemed to have been payment made in
reduction of, the Principal Amount.
12. INVALIDITY. In the event any one or more of the provisions
contained in this Note shall for any reason be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Note but this
Note shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein.
13. MODIFICATION. This Note may not be modified, amended, discharged
or waived orally, but only by an agreement in writing signed by the party
against whom such modification, amendment, discharge or waiver is sought to
be enforced.
14. MAKER'S COVENANT. During the term of this Note, Maker shall
maintain, as of the last day of each fiscal year of Maker, consolidated
Partners' Capital (as defined below) equal to or greater than two (2) times
the outstanding Principal Amount plus Additional Amounts, if any, applicable
as of the following day. For purposes of the foregoing, "Partners' Capital"
means Partners' Capital as reflected in Maker's audited balance sheet,
provided that, for the purpose of determining the value of BCLP's limited
partnership interest in Celtics Limited Partnership ("CLP"), the net assets
of CLP shall be valued at the greater of (a) the amount of such net assets
reflected on such audited balance sheet or (b) as long as CLP owns the
Basketball team, $150 million, less any bank debt of CLP.
[This space intentionally left blank]
<PAGE> 36
IN WITNESS WHEREOF, the undersigned has caused this Note to be
executed as of the day and year first above written.
BOSTON CELTICS LIMITED PARTNERSHIP
[CORPORATE SEAL] By: CELTICS, INC.,
its General Partner
By: /s Paul E. Gaston
Name: Paul E. Gaston
Title: Chairman of the Board and
Chief Executive Officer
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement"), dated August 30, 1995, by and
between Celtics Limited Partnership, a Delaware limited partnership (the
"Partnership"), and Alan N. Cohen (the "Consultant").
W I T N E S S E T H
WHEREAS, the Consultant is willing to make himself available to provide,
upon the written request of the Partnership, certain specified consulting
services to the Partnership and any of its Affiliates and the Partnership is
willing to compensate the Consultant for such consulting services, all upon
the terms, covenants and conditions hereinafter set forth;
WHEREAS, the Partnership desires to (i) keep confidential all information
regarding the Partnership and its Affiliates and their business and
operations and (ii) secure the Consultant's agreement not to compete with
the Partnership or its Affiliates in certain circumstances and for certain
time periods described in this Agreement;
WHEREAS, the Consultant understands the necessity of keeping the
aforementioned information confidential, recognizes the proprietary nature
of such information, and is willing not to compete with the Partnership or
its Affiliates in the circumstances and for the time periods specified in
this Agreement; NOW, THEREFORE, in consideration of the mutual covenants,
agreements and promises hereinafter set forth, the parties hereto, intending
to be legally bound, agree as follows:
<PAGE> 37
A. Definitions.
1. "Affiliate" means any Person now or hereafter controlling,
controlled by or under common control with another Person.
2. "Competitive Activity" means activity, without the written
consent of an authorized representative of the Partnership (which consent
shall not be unreasonably withheld), consisting of the Consultant's
participation (directly or indirectly) in the management or ownership of, or
his acting as a consultant for or employee of, any business operation of any
enterprise which directly or indirectly owns, operates, manages or acts as a
consultant for any sports franchise located in Connecticut, Maine,
Massachusetts, New Hampshire, Rhode Island or Vermont.
3. "Person" means any individual, partnership, firm, corporation
or other business entity.
B. Term.
This Agreement shall commence on the date hereof and shall continue for a
period of three (3) years. Thereafter, this Agreement may be extended for
such periods, and upon such terms and conditions, as the parties may
mutually agree in writing.
C. Compensation.
The Partnership shall pay to the Consultant, and the Consultant shall accept
from the Partnership in full payment for the Consultant's agreement to
render consulting services hereunder, an annual retainer of Two Hundred
Sixty Thousand Dollars ($260,000.00), payable annually on each anniversary
date of this Agreement. The Partnership shall withhold such sums from the
Consultant's compensation as may be required by applicable tax law. The
compensation shall continue to be paid notwithstanding the death or
disability of the Consultant.
D. Consulting Services.
1. The duties of the Consultant are to consult only on such
matters as may be deemed appropriate and necessary as determined by Paul E.
Gaston in his capacity as Chairman of the Board and Chief Executive Officer
of Boston Celtics Corporation, which is the general partner of the
Partnership, from time to time. All communications by the Consultant
pursuant to this Agreement shall be with Paul E. Gaston. During the term of
this Agreement, the Consultant shall not have any contacts or communications
pertaining to the affairs or businesses of the Partnership or any of its
"affiliates" or "associates" (as such terms are defined in Rule 12b-2 under
the Securities Exchange Act of 1934, as amended) with any other person who
is an officer, director or employee of the Partnership or any such affiliate
or associate unless such contacts or communications have been approved in
writing by Paul E. Gaston. The Consultant hereby accepts and agrees to such
retention and agrees to make himself reasonably available at such times and
such places as he shall decide, subject to all of his other activities and
commitments, to the Partnership for such consultations. The Consultant
shall not be required to consult for any particular amount of time, and may
consult by telephone.
<PAGE> 38
2. The Consultant agrees to perform his duties and
responsibilities hereunder in good faith and in compliance with all
applicable laws, rules and regulations.
E. Nondisclosure.
The Consultant agrees not to disclose, during the three (3) year period
during which he is entitled to receive payments pursuant to this Agreement,
to any person not employed on a full-time basis by the Partnership or any
Affiliate thereof, or not engaged to render services to the Partnership or
any Affiliate thereof, except with the prior written consent of Paul E.
Gaston in his capacity as Chairman of the Board and Chief Executive Officer
of Boston Celtics Corporation, any confidential information obtained by him
while in the employ of the Partnership or any Affiliate thereof; provided,
however, that this provision shall not preclude the Consultant from the use
or disclosure of information known generally to the public or of information
not considered confidential by the Partnership or from disclosure required
by law or court order. The agreement made in this Section 5 shall be in
addition to, and not in limitation or derogation of, any obligations
otherwise imposed by law or by separate agreement upon the Consultant in
respect of confidential information of the Partnership or any Affiliate
thereof.
F. Noncompetition.
The Consultant agrees that he will not engage in any Competitive Activity
during the three (3) year period during which he is entitled to receive
payments pursuant to this Agreement.
G. Notice.
For purposes of this Agreement, notices and all other communications
provided for in this Agreement shall be in writing and shall be deemed to
have been duly given when delivered or mailed by United States registered
mail, return receipt requested, postage prepaid, addressed as follows:
(i) if to the Consultant:
Alan N. Cohen
c/o Alfred D. Youngwood, Esq.
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019-6064
with a copy to:
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019-6064
Attention: Neale M. Albert, Esq.
(ii) if to the Partnership:
Celtics Limited Partnership
151 Merrimac Street
Boston, Massachusetts 02114
Attention: Thomas M. Bartlett, Jr.
<PAGE> 39
with a copy to:
Dickstein, Shapiro & Morin, L.L.P.
2101 L Street, N.W.
Washington, D.C. 20037
Attention: John W. Griffin, Esq.
or to such other address as either party may have furnished to the other
party in writing in accordance herewith, except that notices of change of
address shall be effective only upon receipt.
H. Benefit and Burden.
The obligations of the Consultant are personal to the Consultant and shall
not be assigned or transferred without the express written consent of the
Partnership. Subject to the preceding sentence, this Agreement shall inure
to the benefit of, and shall be binding upon, the parties hereto and their
respective legatees, distributees, estates, executors, administrators,
personal representatives, heirs, successors and assigns, and other legal
representatives.
I. Relationship of Parties.
This Agreement shall be construed to create the relationship of contractor
and independent contractor between the Partnership and the Consultant. In
no event shall the Consultant be deemed to be an employee of the Partnership
and the Consultant shall not at any time be deemed to be an agent of the
Partnership or have any power to bind or commit the Partnership or otherwise
act on the Partnership's behalf.
J. Miscellaneous.
1. No change or modification of this Agreement shall be valid
unless the same is in writing and signed by each of the parties hereto. No
waiver of any provision of this Agreement shall be valid unless in writing
and signed by the party against whom it is sought to be enforced. The
failure of a party at any time to insist upon strict performance of any
condition, promise, agreement or understanding set forth herein shall not be
construed as a waiver or relinquishment of the right to insist upon strict
performance of the same or other conditions, promises, agreements or
understandings at a future time.
2. This Agreement contains all of the promises, agreements,
conditions, understandings, warranties and representations between the
parties hereto with respect to the subject matter hereof, and there are no
promises, agreements, conditions, understandings, warranties or
representations, oral or written, express or implied, between them with
respect to such matters other than as set forth herein. Any and all prior
agreements between the parties hereto with respect to such matters are
hereby revoked and are deemed null and void. This Agreement is, and is
intended by the parties to be, an integration of any and all prior
agreements or understandings, oral or written, with respect to the subject
matter hereof.
3. This Agreement shall be construed and enforced in accordance
with the laws of the State of Delaware, without regard to such
jurisdiction's conflict of laws principles.
<PAGE> 40
4. The headings and other captions in this Agreement are for
convenience and reference only and shall not be used in interpreting,
construing or enforcing any of the provisions of this Agreement.
5. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
CELTICS LIMITED PARTNERSHIP
By: BOSTON CELTICS CORPORATION,
its General Partner
By: /s/ Paul E. Gaston
Name: Paul E. Gaston
Title: Chairman of the Board and
Chief Executive Officer
CONSULTANT:
/s/ Alan N. Cohen
Alan N. Cohen
FOR IMMEDIATE RELEASE
August 30, 1995
Contact: Joseph G. DiLorenzo
(617) 367-2916
Boston, Massachusetts, August 30, 1995 - Boston Celtics Limited Partnership
(BCLP) today announced that it has redeemed an aggregate of 758,444 units
representing assignments of beneficial ownership of limited partnership
interest in BCLP.
<PAGE> 41
The redeemed units acquired by BCLP were beneficially owned by Alan Cohen and
his son and daughter. Mr. Cohen was formerly an officer and director of the
corporate general partner of BCLP until his resignation in September 1993.
