By Jeff Haden
Setting up a business partnership is a little like starting a romantic relationship, although admittedly the benefits package and perks are a lot different.
In the beginning stages it’s easy to only focus on the positives, but a solid partnership agreement also takes into account a number of scenarios, especially the potential for negative outcomes. If the worst does happen, your partnership agreement should protect both you and your partner.
Make sure your partnership agreement covers what will happen if:
One of you wants out. Exit clauses are standard in partnership agreements. For example, if you want out, your partner may be obligated to purchase your ownership share.
That’s the easy part. The tricky part is determining the value of the business when that happens. Business valuation is part science, part art, and different approaches often result in very different results. Whether you agree to use liquidation value, book value, or the income, asset, or market approaches, stipulate in your partnership agreement how the business will be valued and whether a third party will conduct the valuation. Then the breakup will be a lot cleaner and less emotional.
One of you passes away. Say your partner dies. Typically his or her ownership stake passes to the spouse or children. You automatically get new partners — new partners you may not want. A buy-sell agreement can allow you to purchase your deceased partner’s share, but what if you don’t have the money or can’t get financing?
There’s an easy solution: Stipulate that each partner will carry life insurance sufficient to cover the purchase of the other partner’s share. Each partner designates the other partner as beneficiary. Then, if your partner passes away, you always have the funds to complete the buy-sell agreement. Just make sure you add additional coverage as the value of your business grows.
One of you wants to change the agreement. Paul Allen claimed Bill Gates asked him to change their ownership split of Microsoft several times. Perspectives change as a business evolves, and partnership agreements can be amended as often as you like — as long as all partners agree.
Sometimes one of you might not agree to proposed changes, so stipulate how fundamental disagreements will be resolved: Mediation, arbitration, triggering a buy-sell clause, etc. Knowing how a problem will eventually be resolved if you aren’t able to agree often makes it easier to work through differences.
You can no longer get along. No matter how well you work together now, misunderstandings, hurt feelings, and changing priorities can damage the best relationships. When that happens, falling back on the terms of your partnership agreement can help both of you stay objective.
For example, your partnership agreement may stipulate you are responsible for 60% of the work since your partner provided a greater share of initial capital. If he feels you aren’t doing your share, the more clearly you defined what “the work” means in your agreement, the easier it is to determine whether you are in fact pulling your weight. Whenever possible, use hours, numbers, dollars — quantifiable measurements.
Your business is already established. If the agreement you have is insufficient — or if you don’t have a written agreement — it’s not too late.
Take a step back and create a comprehensive partnership agreement. If your partner hesitates, explain you aren’t trying to change your current working conditions. All you’re trying to do is eliminate as many ways you might disagree in the future as possible.
Fortunately, talking about potential negatives with a potential business partner is a lot easier than having a similar discussion with a romantic partner. Setting up a prenuptial agreement may not be the greatest way to start a relationship, but setting up a comprehensive written partnership agreement is the perfect way to start a business partnership.
