CONSULTING AGREEMENT
71
Exhibit (mmmm)
THIS CONSULTING AGREEMENT (the "Agreement"), dated July 1, 1996, by and
between Boston Celtics Limited Partnership, a Delaware limited partnership,
including any of its subsidiaries and any Person which is an Affiliate thereof
(the "Partnership"), and Thomas M. Bartlett, Jr. (the "Consultant").
W I T N E S S E T H:
WHEREAS, the Consultant is willing to make himself available to provide
certain specified consulting services to the Partnership 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 business and operations and (ii)
secure the Consultant's agreement not to compete with the Partnership in certain
circumstances and for certain time periods described in this Agreement; and
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 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:
Definitions.
"Affiliate" means any Person now or hereafter controlling, controlled by or
under common control with another Person.
"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.
"Person" means any individual, partnership, firm, corporation or other business
entity.
Term.
This Agreement shall commence on the date hereof and shall continue
for a period of five (5) years. Thereafter, this Agreement may be extended for
such periods, and upon such terms and conditions, as the parties may mutually
agree in writing.
72
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 Thousand
Dollars ($200,000.00) payable in equal quarterly installments commencing on July
1, 1996. The retainer shall continue to be paid notwithstanding the death or
disability of the Consultant to his wife or widow, Garda Dean Bartlett, or, in
the event she does not survive him, to the estate of the Consultant.
Consulting Services.
The Consultant hereby accepts and agrees to such retention and agrees
to make himself reasonably available at such times and such places as shall be
mutually agreed upon by the parties hereto, 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.
The Consultant agrees to perform his duties and responsibilities
hereunder in good faith and in compliance with all applicable laws, rules and
regulations.
Nondisclosure.
The Consultant agrees not to disclose to any person not employed on a
full-time basis by the Partnership or not engaged to render services to the
Partnership any confidential information obtained by him while in the employ of
the Partnership; 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.
Noncompetition.
The Consultant agrees that he will not engage in any Competitive
Activity during the five (5) year period during which he is entitled to receive
payments pursuant to this Agreement.
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:
Thomas M. Bartlett, Jr.
P.O. Box 149
Old Ferry Road
Phippsburg, ME 04562
Telephone No. (207) 443-9701
73
with a copy to:
Garda Dean Bartlett
P.O. Box 149
Old Ferry Road
Phippsburg, ME 04562
Telephone No. (207) 443-9701
(ii) if to the Partnership:
Boston Celtics Limited Partnership
33 East 63rd Street
New York, NY 10021
Telephone No. (212) 644-3800
Attention: Paul E. Gaston
with a copy to:
Dickstein Shapiro Morin & Oshinsky L.L.P.
2101 L Street, N.W.
Washington, D.C. 20037-1526
Telephone No. (202) 828-2293
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.
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.
Relationship of Parties.
This Agreement shall be construed to create the relationship of
contractor and independent contractor between the Partnership and the
Consultant. Except as provided in Section 1(b) of that certain Unit Option dated
December 31, 1993 between the Partnership and the Consultant in no event shall
the Consultant be deemed to be an employee of the Partnership.
Miscellaneous.
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.
74
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.
This Agreement shall be construed and enforced in accordance with the
laws of the State of Delaware, without regard to such jurisdiction's conflicts
of law principles.
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.
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.
BOSTON CELTICS LIMITED PARTNERSHIP
By: CELTICS, INC., its General Partner
By: /s/ Paul E. Gaston
------------------------------------
PAUL E. GASTON
Chairman of the Board
and Chief Executive Officer
CONSULTANT: /s/ Thomas M. Bartlett, Jr.
-----------------------------
Thomas M. Bartlett, Jr.