When assisting business partners form their entities or when my litigation partner is consulting with me on a case I see the following scenario often:
A business partnership starts with a money person and an idea person. The idea person has a fantastic business plan and the money person has the cash. They think it is perfect. They rush to form a LLC or corporation, downloading an Operating Agreement or Bylaws from the Internet. It even might be worst, they do not even bother with a document. After that, they are running their business, but then several months into it they are fighting.
What do Business Partners Fight About?
Usually, they do not see eye-to-eye on major business decisions. Decisions like:
- how much money should each person contribute;
- who has the authority to sign checks or what is the dollar limit each partner has for contract obligations;
- where should we locate our offices;
- when do we pay ourselves;
- what happens when one of us wants to leave; and
- so many other issues …
Business owners hate hearing this from their attorneys: slow down! They should be deliberative in their collaboration with their business partner. I sometimes remind people that getting a business partner is basically getting married. Also partnering with a friend is different than being a friend, you sometimes do not know their work ethic. This is why we urge business owners to get things in writing with their partners.
The goal when drafting Operating Agreements, Bylaws, and employment agreements* should be what are the processes that governs decision-making, what happens when there is disagreement, or if an owner wants to leave, etc. … Basically, preempt the fights by setting up contractual arrangements. *By the way, if an owner of a business wants to contribute work instead of capital, then the partners should consider an employment agreement. It is solely not just for contract law purposes, but for tax and accounting issues.
Business partners think that their idea will be a money-maker and that their partner is going to make it happen. They fail to calculate that even in success that their business partner may have other ideas on the direction of the business. There is nothing wrong with differences of opinion, but when decision-making is paralyzed it could stop the business from moving forward. Further, for its employees, vendors, and service-providers, knowledge of an ongoing dispute amongst the business owners can make them question the survivability of the business.
Protect your Business Relationship by Communicating
It is easy. Talk about it, come to an agreement, and then get it in writing before the business starts. Many people just want us attorneys to give them their documents or download their own forms for the Internet. They think it saves them time and money. I’d contend that is the wrong way to look at it. The time and money spent on your governing documents is an investment in the relationship. They are a contractual foundation.
If not, you are just pushing disputes to a later date. Consider that when the money has been spent, you’ve worked countless days and nights, and now you are arguing. Then you realize all you have for your contract rights is a poorly drafted document … or worst yet, you don’t have one at all. So do yourself a favor, have the conversation now and plan for the future. Communicating when you are on good terms with a partner is easier, then when you are fighting.
