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Exhibit 99.2
UNIT PURCHASE AGREEMENT
THIS UNIT PURCHASE AGREEMENT, dated November 30, 1996 (this "Agreement"),
by and among BOSTON CELTICS LIMITED PARTNERSHIP, a Delaware limited partnership
("BCLP"), CELTICS CAPITAL CORPORATION, a Delaware corporation ("CCC"), and XXXX
X. XXXXX, XX. (the "Seller").
W I T N E S S E T H
WHEREAS, the Seller is the record and beneficial owner of 460,000 units
(the "Units"), representing assignments of beneficial ownership of limited
partnership interests in BCLP; and
WHEREAS, CCC wishes to purchase from the Seller, and the Seller wishes to
have CCC purchase, 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 agreement as follows:
1. Purchase of Units. Subject to the terms and conditions of this
Agreement, at the Closing described in Section 2 hereof, the Seller is selling,
assigning, transferring and conveying to CCC, and CCC is purchasing 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, CCC is paying to the
Seller an aggregate purchase price of $13,493,331 in immediately available funds
(the "Purchase Price").
2. Closing. The closing of the aforesaid purchase and sale (the "Closing")
is taking place simultaneously with the execution and delivery of this Agreement
at the offices of Xxxxxxxx Xxxxxx Xxxxxx & Osnato, 000 Xxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000.
3. Deliveries at Closing. At the Closing, (a) the Seller is delivering to
CCC a certificate or certificates representing all of the Units, and (b) CCC 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 and CCC as follows:
(a) The Seller has the full authority to execute, deliver and carry
out the terms of this Agreement and to consummate the transactions contemplated
hereby.
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(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 the 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 CCC by the Seller of the Units, CCC will have
good and marketable title to the Units, free and clear of any lien or other
encumbrance.
(e) The Units and the 320,000 Units owned by Westbury Partners, L.P.
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).
(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.
(g) The execution and delivery by the Seller of this Agreement and
such other agreements and instruments to be executed and delivered by the Seller
pursuant hereto and the consummation of the transactions contemplated hereby and
thereby will not violate any provisions of law, any governmental rule or
regulation or any order of any court or other agency or government to which
Seller or any of his assets are subject and will not violate, conflict with, or
result in any breach of, or constitute a default (or an event which with notice
or lapse of time or both would become a default) under any agreement or other
instrument to which the Seller is a party or by which the Seller or any of his
properties or assets may be bound or affected.
(h) Except for any required approval of the National Basketball
Association, which approval will be obtained prior to Closing, no approval,
authorization, consent or other order or action of or filing or registration
with any (i) court, administrative agency, or other governmental authority or
(ii) stock exchange or other self regulatory authority is required for the
execution and delivery by the Seller of this Agreement or such other agreements
and instruments to be executed and delivered by the Seller pursuant hereto or
the consummation of the transactions contemplated hereby or thereby.
5. CCC's Representations and Warranties. CCC represents and warrants to
the Seller as follows:
(a) CCC is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware. CCC 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.
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(b) This Agreement has been duly and validly authorized, executed
and delivered by CCC and is the legal, valid and binding obligation of CCC,
enforceable against CCC in accordance with its terms.
(c) The execution and delivery of this Agreement by CCC does not,
and the performance by CCC of its obligations under this Agreement will not,
constitute a violation of the Certificate of Incorporation or By-laws of CCC, as
amended, or any provision of law, any governmental rule or regulation or any
order of any court or other agency or government and will not violate, conflict
with, or result in any breach of, or constitute a default (or an event which
with notice or lapse of time or both would become a default) under any agreement
or other instrument to which CCC is a party or by which any of its assets are
bound.
(d) Except for any required approval of the National Basketball
Association, which approval will be obtained prior to Closing, no approval,
authorization, consent or other order or action of or filing or registration
with any (i) court, administrative agency, or other governmental authority or
(ii) stock exchange or other self regulatory authority is required for the
execution and delivery by CCC of this Agreement or such other agreements and
instruments to be executed and delivered by CCC pursuant hereto or the
consummation of the transactions contemplated hereby or thereby.
6. 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, or any provision
of law, any governmental rule or regulation or any order of any court or other
agency or government and will not violate, conflict with, or result in any
breach of, or constitute a default (or an event which with notice or lapse of
time or both would become a default) under any agreement or other instrument to
which BCLP is a party or by which any of its assets are bound.
(d) Except for any required approval of the National Basketball
Association, which approval will be obtained prior to Closing, no approval,
authorization, consent or other order or action of or filing or registration
with any (i) court, administrative agency, or other governmental authority or
(ii) stock exchange or other self regulatory authority is required for the
execution and delivery by BCLP of this Agreement or such other agreements and
instruments to be executed and delivered by BCLP pursuant hereto or the
consummation of the transactions contemplated hereby or thereby.
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7. 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, 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 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.
(a) (i) Neither the Seller nor Affiliates he controls 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.
(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.
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(b) 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
Affiliates he controls 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 Esanu Katsky
Xxxxxx & Siger or counsel to BCLP to maintain compliance with, or to prevent
violation, of applicable laws, (3) disclosures in the course of truthful
testimony as required by court order or other legal process, and (4) disclosures
to the Bank of Boston which are necessary in order to secure the release of any
liens held by it against the Units; 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 (the parties acknowledge that
such notice has been provided with respect to disclosures to the Bank of
Boston). Further, notwithstanding the foregoing, communications by the Seller
consisting of (x) filing 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 A, with no
unfavorable commentary thereon shall be permitted and the proviso contained in
the immediately preceding sentence of this Section 7(c) shall not be applicable
to such communications.
(c) 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 CCC and 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 A.
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2. Indemnification
(a) Seller shall indemnify and hold CCC and BCLP harmless from and
against any and all claims, liabilities, damages, losses, costs and expenses,
including reasonable attorney's fees (collectively, "Claims") arising out of or
accruing from (a) any misrepresentation or breach of the representations and
warranties of Seller set forth in this Agreement or in any certificate or
Exhibit furnished to CCC or BCLP pursuant to this Agreement; and (b) any
noncompliance by Seller with any covenants, agreements or undertakings of Seller
contained in or made pursuant to this Agreement.
(b) BCLP and CCC shall jointly and severally indemnify and hold
Seller harmless from and against any and all Claims arising out of or accruing
from (a) any misrepresentation or breach of the representations and warranties
of CCC or BCLP set forth in this Agreement or in any certificate or Exhibit
furnished to Seller pursuant to this Agreement; and (b) any noncompliance by CCC
or BCLP with any covenants, agreements or undertakings of CCC or BCLP contained
in or made pursuant to this Agreement.
3. Nondisclosure. The Seller agrees not to disclose, during the three (3)
year period following the date of this Agreement, to any person any confidential
information concerning the business and operations of CCC or BCLP and Affiliates
controlled by them obtained by him while an officer or director of BCLP or any
Affiliate controlled by it, except with the prior written consent of Xxxx X.
Xxxxxx in his capacity as Chairman of the Board and Chief Executive Officer of
Celtics, Inc.; 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 CCC or Affiliates controlled by them or from disclosure
required by law or court order.
4. 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, BCLP and CCC on the one hand and Seller on the
other for himself/itself and his/its Associates, successors and assigns, and
Affiliates controlled by him/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
"Released Claim"), which the other party hereto or his/its Associates,
successors and assigns and, in the case of BCLP and CCC, Affiliates controlled
by them, have or may have against any or all such Released Persons arising out
of, relating to or in connection with any occurrences or events whatsoever
occurring up to the Closing related to BCLP or CCC or any Affiliates controlled
by them.
(b) The Seller, for himself and his successors and assigns, and
Affiliates controlled by it, hereby waives, and covenants and agrees that he or
they will have no right to assert or enforce, any Released Claim with regard to
BCLP or any Affiliates controlled by it (relating to conduct occurring after the
date of this Agreement), except for Released Claims pertaining to the
enforcement of this Agreement in accordance with the express terms hereof.
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5. Specific Performance. BCLP, CCC 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 CCC, 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 New York, 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, CCC and the Seller
each consent to personal jurisdiction in any such action brought in any federal
or state court sitting in the State of New York and to service of process upon
it or him, as the case may be, in the manner set forth in Section 13(g) hereof.
6. Expenses; Brokerage Fees. All fees and expenses incurred by the Seller,
and sales, transfer or other similar taxes payable by the Seller in connection
with this Agreement will be borne by the Seller, and all fees and expenses
incurred by CCC or BCLP in connection with this Agreement will be borne by CCC.
CCC and 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. CCC and 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.
7. Tax Matters
(a) All payments to the Seller pursuant to this Agreement shall be
treated as payments made solely for the purchase of Seller's Units.
(b) The parties shall each file all required Federal, state, and
local income tax returns and related returns and reports in a manner consistent
with the foregoing provisions of this Section 13. In the event a party does not
comply with the preceding sentence, the non-complying party shall indemnify and
hold the other party wholly and completely harmless from all cost, liability,
and damage that such other party may incur (including, without limitation,
incremental tax liabilities, legal fees, accounting fees, and other expenses) as
a consequence of such failure to comply.
(c) The provisions of this Section 13 shall survive the Closing.
8. 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.
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(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 Seller:
Xxxx X. Xxxxx, Xx.
00 Xxxxxx Xxx
Xxxxxx, XX0X 0XX
Xxxxxx Xxxxxxx
with a copy to:
Esanu Katsky Xxxxxx & Siger
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
(B) if to CCC or BCLP:
Boston Celtics Limited Partnership
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx
with a copy to:
Xxxxxxxx Xxxxxx Xxxxxx & Osnato
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
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(a) 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 in 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.
(b) No provision in this Agreement shall constitute any person a
third party beneficiary.
[SIGNATURES ARE ON THE FOLLOWING PAGE]
IN WITNESS WHEREOF, and intending to be legally bound hereby, each of
BCLP, CCC and the Seller has executed and caused to be executed this Agreement
as of the date first above written.
CELTICS CAPITAL CORPORATION
/s/ Xxxx X. Xxxxxx
Xxxx X. Xxxxxx, President
BOSTON CELTICS LIMITED PARTNERSHIP
By: CELTICS, INC.,
its General Partner
/s/ Xxxx X. Xxxxxx
Xxxx X. Xxxxxx, Chief Executive Officer
SELLER:
/s/ Xxxx X. Xxxxx, Xx.
Xxxx X. Xxxxx, Xx.
