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Kings ownership documents reveal major potential stumbling blocks for Seattle

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CORRECTION:  February 8, 2013

An earlier version of this post incorrectly referred to a May 2003 document as an addendum to the Kings’ 1992 ownership agreement.  The May 2003 document is self-described as a proposal, which, if approved, would constitute a basis for an amendment of the Kings’ partnership agreement.  The version of the May 2003 document viewed by PBT was unsigned.

This item was co-written by Aaron Bruski and James Ham

The fight over the Sacramento Kings is building to a fever pitch.

In one corner, Seattle-based investors led by hedge fund manager Chris Hansen and Microsoft CEO Steve Ballmer have entered into an agreement to purchase the Kings from the Maloof family with the intention of moving to Seattle.

In the other corner, former NBA All-Star and Sacramento Mayor Kevin Johnson is moving comfortably toward an announcement of his equity partners, which will come at some time this week. Sources close to the situation have said that these owners will more than meet NBA criteria and be able to compete with or beat Seattle’s offer. Additionally, these owners will come to the table willing to pay their portion in an arena deal that was previously approved by the NBA, and sources say will be approved by the Sacramento City Council, as well.

USA Today and the Sacramento Bee reported that big money guys Ron Burkle and Mark Mastrov were in serious talks with the city, and USA Today reported that Burkle met with David Stern in New York on Thursday, January 24th. PBT can confirm each of those reports.

Since the Sacramento Bee’s report on the issue January 24, there has been speculation whether Kings minority owners have the “Right of First Opportunity” to purchase the team from the Maloofs.

They well may.

NBC ProBasketballTalk has acquired a copy of the Kings’ 1992 ownership agreement and an unsigned May 2003 proposal to amend the ownership agreement.

Article VII of the 1992 ownership agreement, “Transfer of Partnership Interests” starts off in Section 7.1 “Restrictions on Transfer” with the basic tenet that, “…no sale, assignment, transfer, encumbrance or hypothecation (herein referred to as a “Transfer”) shall be made by a Partner of the whole or any part of its or his Partnership interest (including, but not limited to, its or his interest in the capital or profits of the Partnership).” Section 7.2 permits certain specified sales to “Affiliates,” which in theory covers sales to essentially the same ownership (more on “Affiliates” below).

A little further down in Article VII, Section 7.3 spells out the right of first refusal in plain legalese.

“Section 7.3. Right of First Opportunity.

Notwithstanding the provisions of Section 7.1 hereof, if a Partner desires to assign all or part of his or its interest in the Partnership and such assignment is not specifically permitted under Sections 7.2A or 7.2B above, then the assignment shall be subject to the right of first opportunity hereinafter described in this Section 7.3. Before a Partner (the “Selling Partner”) actually concludes a sale of its interest in the Partnership subject to this Section 7.3, the Selling Partner shall give notice to (a) the General Partner and each other Limited Partner if he Selling Partner is a Limited Partner, and (b) to each Limited Partner if the Selling Partner is the General Partner (such Partner or Partners other than the Selling Partner being individually and collectively herein called “Non-Selling Partner”) setting forth the purchase price for which it will offer such Partnership interest for sale (which purchase price must be payable entirely in cash or part in cash and the balance pursuant to one or more promissory notes).

Section 7.3 further adds that a “non-selling partner” must step forward with its right to match within 30-days notice of the team’s sale. When that authority is exercised, the minority owner would have a 45-day window to complete a purchase.

The language is clear, but perhaps the Maloof family is counting on an earlier clause:

“Section 5.3. Limitations on Authority of the General Partner.

Notwithstanding the provisions of Sections 5.1 and 5.2 hereof:

A. The following decisions shall require the approval of Partners then holding Partnership Percentages aggregating at least 65%:

(1) The moving of the Team from the Sacramento area to another City prior to February 1, 2002;

(2) The sale of all or substantially all of the Partnership Property

Section 5.1 details the “Authority of the General Partner.” It includes language giving the majority owner “exclusive authority to manage the operations and affairs and to make all decisions regarding the Partnership and its business…”

Section 5.2 addresses the “Sale or Financing of Partnership Property.” It includes clear language stating “the General Partner shall have the sole and unrestricted right to and discretion to determine all matters in connection with any sale of the partnership Property or any part thereof…”

In layman’s terms, sections 5.1 through 5.3 establish the potential for a super-majority in the franchise’s decision-making authority. By reaching a 65-percent threshold of controlling interest, the Maloof family and partner Bob Hernreich have accomplished that by purchasing minority shares during the last decade.

While this all seems alarming for the Kings’ minority owners, it is not the end of the story. Nowhere in Sections 7.1 through 7.3 is an exception carved out protecting Section 5.3 and the Maloofs super-majority clause from the right of first opportunity. This means that while the Maloofs’ have the right to sell and/or relocate without minority approval, it doesn’t appear they have the right to sell any portion of their interest in the club without first giving the limited partners a chance to match.

As attorneys do, how an attorney may interpret the document may depend on who is paying their bills. And a judge may get to make the final call.

A May 2003 proposal to amend the ownership agreement proposed to strip the “Affiliate” language that sources tell PBT may have provided a small loophole for a transfer of the team’s majority share while circumventing the rights of the minority owners. The proposal included the following language:

“2. Partners Right of First Refusal

To clarify the issue of First Right of Refusal on purchase of partnership shares, the following is a proposed amendment to the Partnership Agreements:

A. Partner’s Proposal to Transfer. If a Partner proposes to sell, assign, or otherwise dispose of all or any part of the Partner’s Interest, however it is held, i.e. whether or not the interest is owned directly by it, or through another entity, individual, etc. (Hereafter “Such Interest”), then the Partner (“Selling Partner”) shall first make a written offer to sell such Interest to the remaining Partners, pro rata (as not all of the other Partners are required to participate in the purchase) based on their then ownership positions in the Partnership. The price, terms and conditions shall be as mutually agreed by the parties.

The following section goes on to propose that in the case of a third-party offer, the minority owners retain their right of first refusal for 60 days after receiving the selling Partner’s written notice and it finishes with this definitive statement:

“No Partner shall sell, transfer or otherwise dispose of their Interest, even if owned through a different entity and it is the purported different entity selling all or a portion of itself within the holder of the Interest, except in accordance with the provisions of this Article.”

There is one more note of interest in Section 3 of the proposal titled “Sale of an Interest in the General Partner”:

“Any offer received by the General Partners to purchase a portion, or all, of their interest, which was not purchased by the Limited Partners pursuant to their Right of First Refusal, would be considered an offer to purchase that percentage of the total entity.”

Meaning, that if the Maloofs sell their interest to the Hansen-Ballmer group for the reported $525 million and the minority owners do not take up the Right of First Refusal, Hansen and Ballmer would be required to purchase a proportional stake of the minority share as well.

We aren’t looking at $341 million (the Maloof and Hernreich 65-percent share), we would be looking at the entire $525 million. Although whether that sum would make the Seattle group even blink is up for debate.

The proposal language states that if the proposal is approved by the partners, it will constitute a basis for an amendment of the ownership agreement to be drafted and executed by all partners.  The version of the May 2003 proposal viewed by PBT was unsigned but according to a source with intimate knowledge of the situation, the proposal was signed in May of 2003.  PBT is not aware of an amendment to the ownership agreement that was later drafted and executed by all partners.

So the question now becomes, is there a Right of First Opportunity/Refusal and if so, is there a minority owner who is willing to step up and invoke that right? If so, can that owner come up with the financial backing to match the deal from the Hansen-Ballmer group?  What is the backstory of the May 2003 proposal and what became of it?  And lastly, will the NBA continue to back a Seattle deal that may have ignored the rights of minority owners?

It would be surprising if the NBA didn’t have some serious questions for the Maloofs and the Seattle group.

Kevin Durant shines in first game at new home Oracle Arena, USA routs China again 107-57

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OAKLAND, Calif. (AP) — Cheered all night long by his basketball-crazed new fan base, Kevin Durant knocked down a 3-pointer on the Americans’ first touch and slammed home a dunk the very next time down the floor.

Then, another pretty one-handed jam just a few minutes after that.

What a performance for Golden State’s latest big star to help lead the U.S. Olympic team past China 107-57 on Tuesday night for a third dominant victory in as many exhibition games.

Durant, who finalized his two-year contract with the Warriors on July 8, scored all 13 of his points during a 13 1/2-minute span of the first half while playing his first game at his new home, Oracle Arena.

He was the first American player back on the floor after halftime to get in some more shots, all while Warriors general manager Bob Myers stood close by along the sideline.

Booed in Los Angeles a couple days back, Durant received a far more friendly reception in the Bay Area he will now call home. He emerged for pregame warmups to huge roars. He departed the court before the game to a swarm of autograph hounds hanging over the railings in the tunnel – and kindly obliged. One person held a sign that read, “KD is not a Villain.”

Durant received a rousing standing ovation when introduced along with Warriors All-Stars Draymond Green and Klay Thompson.

Also cheered was former Golden State forward Harrison Barnes, part of this past season’s runner-up team that squandered a 3-1 series lead to the Cleveland Cavaliers to miss out on a repeat title.

The sellout crowd went nuts again when Durant checked back into the game at the 2:32 mark of the third quarter.

Mike Krzyzewski’s latest star-studded roster sure looks untouchable just more than a week before the Rio Games begin.

Chants of “M-V-P! M-V-P!” greeted Durant in the building where Stephen Curry has won the past two NBA MVPs, becoming this first unanimous winner last season.

Curry – who opted out of playing for the Americans in their Rio Olympic run – had a courtside seat to watch with his wife, Ayesha.

Two-time Olympic gold medalist and former Warriors star Chris Mullin was in the house sitting next to Mitch Richmond.

Warriors assistant coach and former member of the Thunder staff Ron Adams was an early arrival to watch Durant’s warmup routine. At his introductory news conference, Durant joked, “Ron Adams was the only reason I came.”

Before joining Golden State, Durant and the Oklahoma City Thunder blew a 3-1 lead to the Warriors in the Western Conference finals. He is ready to chase a championship with Curry and Co.

Green, joined on the court by Durant and Thompson, took the microphone before tipoff to thank the fans.

“We appreciate the support,” he said. “We look forward to going on to Rio and winning the gold.”

It will be the second straight Olympics the Americans have three teammates on the roster. Durant, James Harden and Russell Westbrook represented the U.S. four years ago at the London Games.

The next stop for Krzyzewski’s team will be in Chicago to face Venezuela on Friday night at United Center before wrapping up its pre-Olympic tour against Nigeria on Monday in Houston.

China, which lost to the Americans 106-57 on Sunday, and the U.S. also meet in their Olympic opener Aug. 6.

A moment of silence was held for former Warriors great Nate Thurmond, a Hall of Famer who died earlier this month at age 74 after a short bout with leukemia.

Dion Waiters explains decision to sign with the Heat in an Instagram post

OKLAHOMA CITY, OK - MAY 24:  Dion Waiters #3 of the Oklahoma City Thunder reacts in the first quater against the Golden State Warriors in game four of the Western Conference Finals during the 2016 NBA Playoffs at Chesapeake Energy Arena on May 24, 2016 in Oklahoma City, Oklahoma. NOTE TO USER: User expressly acknowledges and agrees that, by downloading and or using this photograph, User is consenting to the terms and conditions of the Getty Images License Agreement.  (Photo by Ronald Martinez/Getty Images)
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On Monday, Dion Waiters agreed to a one-year, $2.9 million deal with the Heat, far less than most people thought he would get as one of the few significant free agents still on the market. Tuesday afternoon, he posted an explanation on Instagram for his deal.

Here’s what he said:

I didn’t do it for the money… I did it for the opportunity to go out & ball & have fun. Everything else will take care of its self!!! I just felt like it was the best situation for me…& my family. I could have waited & got wat I wanted. But I rather be happy then miserable at the end of the day!!! Meaning Yu can have everything & still not be happy… #heatnation let’s get it!!! #provethemwrong #stamped #Philly

It seems clear, based on the market, that the kinds of offers Waiters was hoping for weren’t out there for him. In Miami, with Dwyane Wade gone, he’ll probably start at shooting guard and have plenty of opportunities to prove himself in hopes of landing a long-term deal next summer.

Report: Celtics sign second-round pick Demetrius Jackson to four-year deal

PHILADELPHIA, PA - MARCH 27:  Demetrius Jackson #11 of the Notre Dame Fighting Irish walks to the bench late in the second half against the North Carolina Tar Heels during the 2016 NCAA Men's Basketball Tournament East Regional Final at Wells Fargo Center on March 27, 2016 in Philadelphia, Pennsylvania.  (Photo by Elsa/Getty Images)
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While we wait for the Celtics to make a bigger move to trade for another star, they’re filling out the end of their roster. Sheridan Hoops’ Michael Scotto is reporting that they’ve signed Demetrius Jackson, the No. 45 pick in last month’s draft, to a four-year deal.

Jackson declared for the draft after his junior season at Notre Dame. Talent-wise, he has the chance to be a major steal for Boston — DraftExpress has him ranked as the 17th-best overall prospect in this year’s draft class. But he might not play much his first year. The Celtics’ roster is already crowded and there’s still the chance that they’ll make another move with some of their much-vaunted assets if the right star becomes available.

Hawks sign former Michigan State center Matt Costello

ST LOUIS, MO - MARCH 18: Matt Costello #10 of the Michigan State Spartans handles the ball against Darnell Harris #0 of the Middle Tennessee Blue Raiders in the second half during the first round of the 2016 NCAA Men's Basketball Tournament at Scottrade Center on March 18, 2016 in St Louis, Missouri.  (Photo by Dilip Vishwanat/Getty Images)
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ATLANTA (AP) — The Atlanta Hawks have signed undrafted rookie free agent center Matt Costello of Michigan State.

The 6-foot-9, 245-pound Costello averaged 5.7 points and 5 rebounds on the Hawks’ summer league team in Las Vegas.

Costello averaged 10.7 points and 8.2 rebounds as a senior at Michigan State. He holds the school’s career record with 146 blocked shots.

Terms of the deal were not released.