It is said that business partnerships are like marriage: easy to get into, messy to get out of. Typically, entrepreneurs require something only a partner can bring to the table, such as money, contacts or a skill set. Sometimes an entrepreneur needs the confidence that can only be provided by working with someone else. Often entrepreneurs spend more time interviewing and assessing the fit of an employee than a prospective partner and end up regretting getting into business with their partner. Watch event video for more: http://www.marsdd.com/videos/?sort=&se=bestpractices

1. #MaRSBP

2. Partnerships – A Necessary Evil?
Jeff Dennis May 8, 2012
Tracy Hooey

3. Introduction
Jeff Dennis
Entrepreneur in Residence
Fasken Martineau
416 868 7544
jdennis@fasken.com
Tracy Hooey
Partner
Securities and Mergers & Acquisitions
Fasken Martineau
416 868 3439
thooey@fasken.com

4. Outline
• Do you really want a partner?
• Is this the right partner?
• Roles, responsibilities and powers
• Communication
• Get it in writing
• Legal form of relationship
• Contributions of each partner (financially and otherwise)
• Compensation
• Right to information
• Decision making
• Control who your partner is (today and in the future)
• Restrict what your partner does
• Exit options

5. Do You Really Want a Partner

6. Do You Really Want a Partner
• Partnership* is like a marriage – easy to get into; messy to
get a divorce
• Make your partnership decision carefully
• There are alternatives to partnership, including hiring
someone, rather than giving them equity in your business
* When used in this presentation, partnership is used broadly to mean any association between two or
more persons and may include corporations, general partnerships, limited partnerships or joint
ventures.

7. Is This the Right Partner
• More often than not, entrepreneurs spend more time
interviewing employees than they spend time getting to know
a prospective partner
• Get to know your prospective partner:
• Do they share your values?
• Do they share your goals and expectations – personal
and business?
• Do they share your timeline?
• What are you each contributing?
• Money
• Property
• Sweat equity
• Trust your gut!!

8. Define Roles, Responsibilities and
Powers
• Distinguish between ownership and employment
• Limits on obligations and risk
• How are decisions made?
• Strategic
• Major business decisions
• New partners/investors
• Operational
• Signing cheques
• Signing contracts

9. Communication
• What’s the vision for your business?
• Strategic planning – quarterly and annual reviews
• Performance reviews
• Annual partner retreat
• Disclosure rights
• Financial information
• Financial Statements
• Annual business plan/budget
• Corporate records
• Claims – liability and litigation

10. Get it in Writing!
• Crystallize your intentions and expectations (including with
respect to risk) in a binding agreement.
• Customize to your situation.
• Assess your bargaining power. Will the provisions be
mutual?
• You will learn a lot about your partner during the drafting and
negotiation process.
• Address both your current and future needs and the
perspective of a future investor.
• Hope for the best, prepare for the worst.

11. Key Issues
• Legal form of relationship
• Contributions of each partner (financially and otherwise)
• Compensation
• Right to information
• Decision making
• Control who your partner is (today and in the future)
• Restrict what your partner does
• Exit options

12. Legal Form of Relationship
• The legal form of your relationship (eg. partnership, limited
partnership, shareholder of corporation) may be determinative
of certain issues, only some of which you can modify by
contracts
• Statutory and/or common law rights may govern
• Limits on liability (ie. if you are a shareholder or a limited
partner)
• Duties to partner (ie. common law duties of good faith,
fiduciary duties of directors, each partner can bind others,
joint and several liability)
• Decision making (shareholder rights)
• Tax implications

13. Contributions of each Partner
• Types of Contributions
• Tangible and intangible assets (like intellectual property)
• Financial equity (initial and ongoing capital requirements;
guarantees of obligations of partnership)
• Sweat equity (services)
• How are they valued? What is the consideration?

14. Capital Requirements
• What are the partnership’s initial and anticipated future capital
requirements and how will these be funded?
• Who will determine the timing and terms of any capital calls?
• What are the repercussions of non-compliance with calls by
any partner?
• How will this impact your relative ownership?
• Provide for pre-emptive rights (the right to participate) in the
event of third party financings (to prevent dilution of interest)

15. Compensation
• Consider how you will be ‘paid’ and who will determine
• Will there be cash and non-cash (eg. options) compensation?
• Consider tax implications of different forms of compensation
• Balance the need for compensation with capital requirements
of organization

16. Right to Information
• What information do you need about your business
• While you are a partner
• Financial statements
• Annual business plan and budget (and variations from
them)
• Tax Information
• Minute books/corporate records
• Information regarding disputes/litigation/proceedings
• After you leave the partnership

17. Decision Making
• Who will make key strategic decisions?
• Will there be a board of directors or other governing body and
what will be the composition of it and its powers?
• Who will make operational decisions and who will select
those people?

18. Significant Decisions
• Are there some decisions that require a prescribed level of
approval of partners (such as unanimous, super majority,
prescribed quorum, veto rights)
• Capital expenditures of certain dollar amount
• Termination or sale of partnership/underlying business
• Declaration of dividends/distributions
• Borrowings and guarantees
• Significant contracts and signing authority (bank accounts)
• Approval of Annual Business Plan/Budget
• Fundamental transactions
• Transfer of ownership interests or addition of new partner

19. Control Who Your Partner Is
• Restrict the active transfer of partnership interests (whether
securities or contractual rights) without your consent
• Protect against transfers of assets by statute (i.e. at the time
of death, disability, insolvency or divorce of your partner)
• Consider indirect transfers (i.e. upon a change of control of
your partner)
• Consider the ability to pledge interests
• Consider the ability to add a new partner (of equal or lesser
priority)

20. Restrict What Your Partner Does
• Non-competition
• Non-solicit (customers, employees, clients, suppliers)
• Confidentiality
• Dispute resolution (will it be restricted to arbitration?)

21. Exit
• A time may come when you or your partner no longer wants
to be part of the business
• Unless your contract provides for it, you may not be able to
buy out or sell to your partner
• Anticipate the worst

22. Exit Options
• Right to transfer (with a right of first refusal)
• Piggyback/Drag along rights
• Put/Sell option
• Shotgun

23. Right of First Refusal
• Sell interest only after giving your other partner(s) the right to
purchase or refuse to purchase
• Different options – is the right of first refusal triggered only if a
partner receives a good faith offer from a third party to
purchase a partner’s interest or can a partner simply offer its
interest to other partners on terms established by the partner?

24. Piggyback/Drag-Along Rights
• Piggyback Right
• If one partner offers to sell its interest to a third party, the
other partner can “piggyback” on the sale and sell its
interest too
• The purchaser of one partner’s interest must purchase all
interests on the same terms and conditions
• Improves the liquidity if you are a minority partner but can
limit liquidity if you are the majority partner
• Drag-Along Right
• If one partner sells its interest, it can compel the other
partner(s) to sell to the same purchaser on the same terms
and conditions
• Will result in forced sale even if not interested

25. Put/Call Rights
• Put Rights
• One partner requires the other partner(s) to buy its interest
• Call Rights
• One partner requires the other partner(s) to sell its interest
- usually upon certain events (ie. death, incapacity,
insolvency, resignation, change of control)
• Valuation – need to have a mechanism to determine value

26. Shotgun
• One partner notifies the other partner(s) the price at which it
is willing to buy or sell its interest
• Other partner(s) must either elect to buy or sell at that price
• Addresses deadlock situations
• May not be optimal if partners have unequal financial
resources
• Consider requiring a minimum price

27. Summary
• Do you really want a partner?
• Is this the right partner?
• Define the roles, responsibilities, contributions and powers of
each partner in advance and document them in a binding
agreement
• Communication among partners is critical – Annual plan,
quarterly reviews, annual retreat
• Control who your partner is (today and in the future)
• Exit options

28. Contact Information
Jeff Dennis
Entrepreneur in Residence
Fasken Martineau
416 868 7544
jdennis@fasken.com
Tracy Hooey
Partner
Securities and Mergers & Acquisitions
Fasken Martineau
416 868 3439
thooey@fasken.com