"The central innovation of holistic
estate planning is the full involvement of the adult beneficiaries
in conversations with their parents in the early stages of the planning
proves, which allows the broadest range of concerns to be addressed."
David Gage, Ph.D., Principal
BMC Associates
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Washington Post, Washington Business
by Marianne Kyriakos
December 2, 1991
A good business partnership
combines complementary
skills, expertise, energy and
capital, especially if the strengths
and weaknesses of the individual
partners are balanced.
Many entrepreneurs pool their resources—financial and intellectual—to launch a business.
The Small Business Administration estimates that there are 1.5 million partnerships nationally.
But good partnerships are like
good marriages. Your chances are
better if you start out as friends, and
if you have some basic ground rules.
"People have to get along well
simply as people if they plan on succeeding as business partners," said
David Gage, a clinical psychologist in
Washington who counsels small business partners.
Here, condensed from interviews
with Washington attorneys and business advisers, is a partnership primer to help tie the knot:
- Consider establishing a partnership only if you and your prospective
partner have shared values, goals and business strategies.
"Partnerships often form for all the wrong reasons," Gage said.
They often come together simply because people have money, and that's understandable. But it is not the way you want to form a partnership, which is very much like a marriage, because of the amount of time spent together and the cooperation necessary to make it work," he said.
- Draw up a partnership agreement.
"This is almost a 'sine qua non,' "
said Thomas Gause, business development specialist at the Small Business Administration.
"In other words, without the agreement in writing, you really
don't have a partnership," Gause said.
The partnership agreement should spell out in plain language everything potential partners need to work out in advance: who owns the business in percentage terms, who is
investing what (equity? sweat equity?), who is going to run the show (consensus? majority rules?), how new partners will be chosen, how
the business will be managed or dissolved, and how it will transfer hands in general terms.
"You want all the contingencies decided when the parties are happy
with one another, when it is just getting started," Gage said.
- Sign a buy-sell agreement. Another crucial document, the buy-sell agreement specifies how the value of the business will be determined.
Its main purpose is to give the remaining owner or owners the right to keep the business if a partner dies, retires or is disabled.
The two basic methods for buying out a business partner are with cash generated from the business or through time payments. Other possibilities are cash-value life insurance policies or a cash down payment and a note.
"The buy-sell makes provisions for either partner to terminate," said Robert Reif, a lawyer with Epstein Becker & Green in the District. "You are laying the groundwork for
success by determining how to dissolve," Reif said.
According to Reif, the "Russian roulette provision" is the single most important feature of any buy-sell agreement. Assuming that each partner owns 50 percent of the business, such a provision provides for one party to set a price for the business, and the other to determine
whether he or she will sell at that price or buy a partner out.
"This ensures two things," Reif said. "The first is that it is not a ridiculous price, and the second is that the business keeps going."
- Decide what organizational form the partnership will take. There are
several possibilities.
In a general partnership, which Reif said is the simplest and most common small business arrangement, the parties share jointly the assets, liabilities and obligations of
the partnership.
A limited partnership is another organizational form where the main partner is the person at risk for the partnership; he or she manages the business and is the decision-maker.
Other people invest in the partnership, for which they receive tax benefits and depreciation allowances. Limited partnerships are common in real estate businesses. "It is really an investment vehicle," said Reif.
Another avenue to consider is the corporation. The point of incorporating is to protect business partners, who are now called shareholders, from personal liability.
"Your personal assets are not at risk for example, if somebody slips on the spaghetti sauce in your restaurant," Reif said.
A variation of the regular corporation is the S corporation. "The advantage is that an S corporation does not pay federal taxes on its income, and any income or losses are passed along to the shareholders," Gause said.
The S corporation is more limited in structure, he said. There is a limit of 35 shareholders, only one class of stock is authorized, and all the shareholders must be individuals rather than a partnership, trust or another corporation.
- Have a lawyer look over the agreement. "I would even advise that they have an attorney draft it," said Washington lawyer Irena 1. Karpinski, "because the partners may not be able to foresee all the potential problems that could arise. An attorney can point out the things they need to discuss and think about."
"An attorney can't ensure that partners will stay together for very long," Karpinski said, "but he or she can ensure that each will have his rights protected."
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