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.

Michael Jordan takes another shot, enters high-end tequila business with Jeanie Buss, other owners

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Michael Jordan’s drink of choice? Tequila. And not the cheap stuff poured into a weak house margarita at a tacky chain Mexican restaurant, we’re talking the good, sipping tequila. The stuff the rest of us think we can afford about three drinks into the night already.

Now Jordan is getting into the tequila business with several other NBA owners — the Lakers’ Jeanie Buss, the Bucks’ Wes Edens, and the Celtics Wyc Grousbeck plus his then-fiancée-now-wife Emilia Fazzalari — and the brand has just launched.

Chloe Sorvino at Forbes Magazine had a more detailed breakdown about how this idea came together over a dinner they all shared at an owners’ meeting in New York in 2016.

By the time they were seated, this multibillion-dollar table was discussing the specific characteristics they wished they could find on the shelf—a tequila with a smooth, long finish like a fine cognac or whiskey.

“That was when we realized there was an opportunity in the market to create a new tequila, a better tequila,” says Fazzalari, who spent 29 years in financial services, in part developing information platforms for the energy sector, and has been heading up the project as CEO. “We let our hair down and became true friends that night.”

Tequila-fueled gamesmanship aside, the idea for Cincoro came at the right time. The United States consumes more tequila than any other nation–about 18.3 million cases last year, or 56% of global consumption, according to consultancy IWSR Drinks Market Analysis… The ultra-premium side of the American tequila market (where the starting price is $45 a bottle) is also growing fast—a 19% increase each year since 2013.

Having Jordan’s name and brand attached to the product also can help sales, as Nike will happily attest.

Maybe this works, maybe it doesn’t — much like the restaurant business, the liquor business is a fickle one that tends to defy expectations. These people have the money to afford a little loss, but they didn’t get rich taking losses very often.

Just expect if you’re sitting in the high-end seats near the court this season to watch LeBron James or Giannis Antetokounmpo or Kemba Walker, there will be certain, somewhat pricy tequila available on the menu.

NBA lowers 2020-21 salary-cap projection to $116M

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The Knicks, Raptors, Hawks and Grizzlies project to have major cap room next summer.

Just a little less now.

Shams Charania of The Athletic:

The salary cap won’t be set until the summer it takes effect. So, there’s plenty of time for the exact number to fluctuate. But this projection was updated after evaluating how teams spent this summer – a key factor.

For perspective, the salary cap is currently $109,140,000. So, going to $116 million next offseason would still be a significant increase – just not as large as previously expected.

Next year’s free agent class is weak. It’s Anthony Davis then… maybe not a single other star. So, small shifts in the cap projection will create only minor ripples.

Everyone has their eyes on the 2021-22 cap. LeBron James, Giannis Antetokounmpo, Kawhi Leonard, Paul George, Bradley Beal, Rudy Gobert, Victor Oladipo, Jrue Holiday, Blake Griffin, LaMarcus Aldridge and DeMar DeRozan could all be unrestricted free agents that summer. That amount of talent availability requires careful planning.

Magic exercise Markelle Fultz’s $12M team option

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Magic general manager John Hammond said he had “no idea” when Markelle Fultz will play.

A couple encouraging assessments and an uneventful video later, and Orlando is guaranteeing Fultz $12,288,697 in 2020-21.

Magic:

That’s the power Fultz still holds as a former No. 1 pick. Even Anthony Bennett had his third-year option exercised. (He just never made it to the third season of his rookie-scale contract, taking a buyout instead.) It’s tough to cut bait on premier young talent.

But Fultz’s NBA career has been so miserable so far. With the rookie scale increasing under the current Collective Bargaining Agreement, he’s due a significant salary.

Because the 76ers drafted Fultz, Orlando had more leeway to decline the option without embarrassment. But the Magic are clearly committed to Fultz.

They had until Oct. 31 to decide on these options, which are for the 2020-21 season. These were easy calls on Jonathan Isaac ($7,362,566) and Mohamed Bamba ($5,969,040). But it’s nearly unfathomable Orlando didn’t evaluate the mysterious Fultz in training camp, preseason and even into the regular season before deciding on his future.

Perhaps, the Magic believe the early show of faith will give Fultz much-needed confidence. If so, this is an expensive bet on a player totally unproven at this level.

At least there’s major upside to it.

Rockets owner: Harden and Westbrook talk like brothers ‘instead of one thinking that he’s the mentor’

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Rockets owner Tilman Fertitta hasn’t hidden his discontent with Chris Paul‘s shortcomings.

Sure, Fertitta says plenty of niceties about Paul, whom Houston traded to the Thunder for Russell Westbrook. But even Fertitta’s optimism about James Harden and Westbrook – who were friends as kids and played together in Oklahoma City – includes what sounds like criticism of Paul.

Fertitta, via Sam Amick of The Athletic:

James and Russ go back a long ways in California, so they can talk to each other like brothers, you know, instead of one (player) thinking that he’s the mentor. I just think it’s going to go well.

At the very least, it’ll be impossible to convince anyone that assessment is uninfluenced by seeing Paul throughout the previous two seasons. At most, it’s a deliberate shot at Paul.

Paul has always been the general. As he has gotten older, that has bended into being the mentor.

It’s often very helpful. Paul’s focus, discipline and intensity have generally served his teams well. His teammates have benefited from following his lead.

But Paul can also wear on people. I wouldn’t be surprised if that happened with Harden, who’s better than Paul and had established himself as Houston’s franchise player before Paul ever arrived. Paul had never even gotten past the second round before teaming with Harden. If you were Harden, how much would you want to hear Paul telling you the right way to do things? There were clearly issues between the two.

Now, Harden and Westbrook get a fresh start together. They sound quite eager about teaming up.

But don’t assume it will definitely go better. It’s like friends becoming roommates. Sometimes, it strengthens the relationship. Sometimes, it ruins the relationship. It’s often difficult to tell which way it will go until moving in.

Remember, Harden and Paul were initially enthusiastic about their partnership.