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.

James Harden scores 61, ties Kobe Bryant’s Madison Square Garden visitor’s record (VIDEO)

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James Harden has been on a Wilt Chamberlain-level streak the past few weeks, it’s unlike anything we have seen in the modern NBA.

Wednesday night he topped himself.

James Harden scored 61 points against the Knicks. That would be:

• Harden’s career high.
• Tied with Kobe Bryant for most points scored by an opponent in Madison Square Garden (Carmelo Anthony holds the overall record at 62).
• A Rockets’ franchise record.
• His 21st consecutive 30-point game, tying Chamberlain for fourth-longest such streak in league history.

Oh, and Harden had the seal and dunk that sealed the win.

Harden also had 15 rebounds in the game. The last player to have 60+ points and 15+ rebounds in a game? Some guy named Shaquille O’Neal back on March 6, 2000, with the Lakers.

Harden is playing like an MVP — and the banged-up Rockets need him to if they are to have a chance to win every night.

Report: Wizards not trading Bradley Beal, but if team slips Otto Porter could be available

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The Washington Wizards have won 7-of-10 and have climbed up to the nine seed, just a couple of games out of the playoffs in the East. Without John Wall, the Wizards are making a push to get into the postseason.

Which impacts whether they are willing to trade players at the deadline.

The Wizards are not trading Bradley Beal — the most coveted of their stars — but might be open to Otto Porter trades if the team slides back, reports Shams Charania of The Athletic.

Wizards star guard Bradley Beal is not going anywhere, which Washington has made adamantly clear, league sources told The Athletic. Depending on how the next week to two weeks shape up, the Wizards could look more aggressively toward moving Otto Porter. The Utah Jazz have been an interested suitor for Porter, league sources said.

History suggests the Wizards will not be sellers. The pattern for owner Ted Leonsis and GM Ernie Grunfeld has always been to think short term and make the playoff push, even when it was not the smart thing to do. We should expect that again. Maybe Washington crawls into one of the final playoff slots in the East, but is that the smart play?

Don’t expect the Wizards to move Porter, even if they wanted to finding a team to take on his $26 million for 13 points a game this season would be difficult (although Utah would be a good fit), plus Porter is owed $27.3 million next season and has a player option he very likely will pick up for $28.5 million two seasons from now.

Pacers’ Victor Oladipo stretchered off court after scary knee injury (VIDEO)

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Let’s hope this is not as scary as it looks.

Pacers’ All-NBA, All-Star guard Victor Oladipo was trying to defend a length-of-the-court pass to Pascal Siakam when Oladipo went down with a brutal knee injury were his kneecap was clearly not in the right place. Oladipo had to be taken off the court on a stretcher. The video is below, but be warned this is not pretty.

The team’s official announcement called the injry “serious.”

Oladipo is the Pacers’ best player and was a lock to be an All-Star reserve averaging 19.2 points, 5.7 rebounds, and 5.2 assists a game this season in Indiana. His efficiency had dropped his season as teams game planned more for him. Beyond that, you’d be hard pressed to find a kinder, more genuine person around the NBA than Oladipo.

Quickly the NBA community rallied on social media to Oladipo.

Grizzlies franchise burning down. Literally. They had a locker room fire Wednesday.

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Things have seemed like they are burning down around the Grizzlies the past few weeks: The team has lost 12-of-13 games and now long-time franchise stars Mike Conley and Marc Gasol are on the trade block.

Now the franchise is on fire — literally. They had a locker room fire in the FedEx Forum, which fortunately was small and no one was injured.

Fortunately, there were no injuries or serious damage.

But this seems about right for the Grizzlies lately.