Issues to Address when Forming a Partnership

To reduce the chances of disputes among the partners, a written partnership agreement always should be drawn up before going into business as a partnership.

The Revised Uniform Partnership Act (RUPA) was issued in 1994. It is a revision of the original Uniform Partnership Act that dates back to 1914. UPA is interstitial; it fills in the gaps in the specific partnership agreement.

Issues to address in forming a general partnership:

· Amount of capital contributed by each person, and if more is needed at a later date, who contributes it, and any limitations to someone's maximum contribution.

· Rights and responsibilities of each partner.

· Division of profits among the partners.

· Distribution of assets upon dissolution of the company. If one partner wakes up one day and wants out, the partnership dissolves. But liquidation would destroy the value of the business, so the partnership agreement should provide rules for a partner's exit. One partner can transfer a profit interest to an external party, but not control. Some options for distribution of assets include:

o Right of first refusal - a provision that requires the departing partner to allow the remaining partners to buy his or her share of the business at the same price of a bona fide external offer.

o Right of first offer - since the time delay associated with giving existing partners the right of first refusal may discourage external parties' interest in bidding, the right of first offer may be used instead. The right of first offer is a provision that requires the departing partner to offer to sell his or her share of the business to the other partners before offering it externally.

o Dutch auction - a provision in which one partner offers to sell to the other partner at a particular price. If the other partner refuses, the first partner must buy the other partners share at that price. This arrangement provides strong incentive for a fair asking price. Note that the term "Dutch auction" has other meanings as well - it also refers to both a descending price auction and to an auction in which several identical items are auctioned and all successful bidders pay the either the price of the lowest successful bidder or their bid prices, depending on the specific auction rules.

o Third party arbitrator - an outside party sets the price.

The general partnership is an association between two or more people in business seeking a profit. General partnerships have pass-through taxation and the owners are personally liable for the debts of the business. General partnerships can be formed with little formality, but because more than one person is involved it is wise to have a written partnership agreement stipulating the terms of the partnership.

Limited Partnership

A limited partnership (LP) consists of two or more persons, with at least one general partner and one limited partner. While a general partner in an LP has unlimited personal liability, a limited partner's liability is limited to the amount of his or her investment in the company. LP's are creatures of statute since they must file with the state to form them. Because of the limited liability of limited partnerships, they often are used as vehicles for raising capital. The limited partnership is a separate entity and files taxes as a separate entity.

The statute that provided for the formation of limited partnerships was the Uniform Limited Partnership Act (ULPA), which dates back to 1916. In 1976, ULPA was revised into the Revised Uniform Limited Partnership Act (RULPA), which was amended in 1985 to address the issue of limited partners' taking control.

RULPA states that a limited partner shall not be liable as a general partner unless he or she takes control of the business. However, a limited partner is not considered to control the business if he or she is a member of the board of directors.

Because the general partner is exposed to unlimited personal liability, LP's sometimes are set up so that the general partner is a corporation or an LLC.

Дата добавления: 2015-11-16