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Partnerships

Take Time to Lay the Right Legal Foundation

Don’t let a lack of legal foundations cost you in the long run.

Jody Doyle

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Working at our practice can be very rewarding. Many of our clients are innovative start-ups and it is wonderful to see their entrepreneurial ideas in action. However, we always advise business that are starting out to lay the necessary legal foundations from the get go – failing to do so could end up costing them dearly in the long run.

A good starting point would be the drafting of thorough founding agreement(s), including a memorandum of incorporation and/or shareholders’ agreement. This often gets put off and delayed because it’s fairly tedious work, but it’s absolutely critical.

The memorandum of incorporation and/or the shareholders’ agreements are the documents that will likely regulate the main aspects of your relationship with the company and that of your fellow shareholders. There are no basic legal obligations attached to being a shareholder, generally speaking, so whatever you require of each other should be agreed and recorded in writing.

Getting the basics right

Founders all start out as optimistic and enthusiastic about their business and their partners – and their shares aren’t worth anything, so all of them are on equal footing, splitting the shares without considering the potential future value of such shares. But a few months down the line, those shares start becoming valuable, and some disillusionment sets in.

Perhaps there are founders who feel that they’ve worked harder than others, but the non-performing founder still holds the shares and is fully entitled to enjoy dividends, if any, in addition to the others.  Or perhaps, the founders of a start-up fall out, and one leaves to start a rival company doing very much the same thing.

But he refuses to sell his shares in the first company, entitling him to continue enjoying the rights attached to the shares in the original company while competing with the original company.

These scenarios aren’t far-fetched – in fact, they are quite common – which is why shareholders in start-ups can’t afford to be passive. It’s important to thrash out what is expected of every single party involved – whether it’s funding, skills or expertise – as well as reasonably objective criteria for deciding whether those obligations were met.

Answering the right questions

Our advice would be to sit down and agree to the value of each contribution before you start. Ask important questions:

  • How much is my capital investment worth?
  • What is the value of any person providing expertise? How is this to be compensated?
  • What is the value of the services provided by any person running the daily operations? How is this to be compensated?
  • What will happen if someone does not meet their obligations?
  • What will happen if someone wishes to sell?
  • How will we value the firm?
  • What will the payment terms be?
  • What happens if there is no cash to pay sellers out with?

These are the questions that will be asked sooner or later and to avoid a lengthy legal battle, it’s best to answer them beforehand.

These legal documents rarely feature high on the priority list when you are busy setting up your business. But it is almost certainly guaranteed to become an issue at some point. Take the time to lay the right legal foundation before building your company – or it may come tumbling down.

Jody Doyle completed a BA LLB at the University of Cape Town and thereafter worked at Edward Nathan Sonnenbergs Inc., during which time he specialised in corporate and commercial law, with a particular focus on mergers and acquisitions and corporate finance. He subsequently joined Dommisse Attorneys, a niche corporate and commercial firm, and has developed an advisory practice focussed primarily on assisting tech-based startup companies.

Partnerships

The Case For A Business Partner Who Makes You Uncomfortable

Should you even have a comfort zone?

Kimanzi Constable

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As humans, we love living within our comfort zone. Science tells us that our comfort zones are a place where activities and experiences fit a pattern and a routine that we’re used to. It’s a place of minimum risk for us, which is why it feels so good to stay in that bubble. The idea of adding experiences and actions that could be stressful, lead to failure or worse is not appealing to our minds. So, we get into comfortable routines and rationalise why we are not doing all the things we’ve dreamt and talked about doing in our businesses. This is a familiar pattern that we’ve repeated most of our adult life.

As you grow a business, there comes a point where it makes sense to bring in others who could help the business grow.

This could be a business partner, it could be a board of advisors, or it can be contractors that do tasks we’re not qualified to do. There is a safe route where you can bring in only what makes you comfortable and only entrepreneurs that are YES people – they agree with what you do and say even though they know it’s not right. Or, you can take a different path. You can explore the zone right outside of your comfort zone.

Related: Choosing a Business Partner and Making the Partnership Work

Charlie Munger is the vice chairman of Berkshire Hathaway. Warren Buffet describes him as “his partner.” They have been in business together for 56 years.

Munger has been quoted saying, “we don’t agree totally on everything, and yet we’re quite respectful of one another.”

Over the years, the advice Munger has given Buffet has not been as a yes man to Buffet, and for that reason, both have flourished. They’ve built an amazing company that keeps growing every year.

In April of 1975, Bill Gates and Paul Allen formed a partnership that led to a little company called Microsoft. You are probably using some of their products as you read this article. Their company has become one of the largest in the world. These days, it seems their partnership is not what it once was but it was those early days of partnering with someone who made Bill Gates step outside of his comfort zone that helped the company grow. They complimented each other in different ways. They weren’t yes partners. They pushed and challenged each other and that’s what led to growth.

Embrace discomfort

A wise man once said that if you’re not uncomfortable, you’re not growing. We have run from discomfort when the reality is that there are situations in which the discomfort comes from growing. When you can learn to embrace the opportunity to get uncomfortably from growth, you can take your business to whatever the next level is for you.

There are things you excel in. There are things you’re not so good at. The right business partner – and business partnerships – can help complete the areas you lack. We know that we’re the average of the people we associate with. Traditional logic tells you to associate and partner with people that make you comfortable.

While we want to associate with people whose personalities match, we want to seek out entrepreneurs that will push, inspire, motivate, and challenge us in the ways we can’t do for ourselves.

You want a business partner that will call you out when you’re clearly making excuses. They will challenge traditional ways of thinking about growth strategies. They will inspire you through the actions they’re already taking in their life and business. They walk their talk and let their success doing all the talking for them publicly. They are sincerely invested in seeing you succeed without expecting anything in return. They have love for you. They will stay with you through the good times and especially the hard times.

Related: Why Partnerships Will Make Or Break Your Business

Don’t pick YES entrepreneurs or add them to your circle. Pick entrepreneurs that make you uncomfortable in a way that leads to growth in life and business. You only get one life to live. You have a goal and dream for your business. The right partners or partners can help you get there in a way that helps you scale.

This article was originally posted here on Entrepreneur.com.

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Partnerships

Selling Your Business To Your Business Partner

Follow these tips for creating a deal to sell your business that both you and your business partner will be satisfied with.

Mark J Kohler

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The following excerpt is from Mark J. Kohler and Randall A. Luebke’s book The Business Owner’s Guide to Financial Freedom

Selling your business to a partner is probably the most common ownership transfer among small businesses. The reason is, your partners have a clear picture as to the value of the business, its potential, and what they need to do in order to replace you in the operations.

Selling to a partner is often one of the easier transfers to handle legally – not that partners don’t have their battles and disagreements – but most buying partners want to make the transition smooth and get the selling partner out quickly and painlessly. Many times, I feel that partners are amenable and anxious to define the transaction and process so that they themselves can utilise the same method with a good conscience in the future.

The document that typically lays the groundwork for a partnership sale like this is called the “Buy-Sell Agreement.” These types of agreements are drafted daily by law firms around the country and are actually implemented for more reasons than a partner wanting to sell.

Related: 4 Essential Steps To Take To Successfully Sell Your Business

In a more elaborate Buy-Sell Agreement for a more mature or established partnership, the document will cover issues of divorce, death, disability and a requested departure or exit. I call these the “Four Ds,” and each is important to address with predefined terms.

The primary purpose of the Buy-Sell Agreement is to define the procedure for the transfer of ownership, price, terms and transition well in advance of any event causing a transfer. This is a powerful tool because it prevents a partner from holding another partner hostage at a price or process in the heat of emotions when the transfer is needed.

For example, if all partners understand the process to determine the value well in advance, then they can work more clearly toward increasing the value of the business. Each party also knows that they’re all held to the same equation and process no matter what side they’re on. This way, it will be fair when the time comes for each partner to leave the partnership (at least, that’s the goal of the document and can certainly minimise the chance of a lawsuit). Following are some details you need to know about the Buy-Sell Agreement.

Determining the value

Most Buy-Sell Agreements require the partners to agree to the value of the company on an annual basis and record it in the annual partnership meeting. This may seem arbitrary, but if everybody agrees (typically requiring a unani­mous vote) and everyone knows the value applies to every­one, then who cares what anyone from the outside thinks? If the partners can’t agree, then a third-party appraiser is brought in to do a formal valuation if a buyout is triggered during the upcoming year.

Terms

Oftentimes, the terms are based on a note, with interest, paid out over five to 10 years. This can obviously create the retirement income a partner is looking for, and over the period of payments, it will spread out the tax bill as well. Some Buy-Sell Agreements require the remaining partners to obtain a loan for a good portion of the purchase price and then finish off the rest with a Note. This allows the departing partner to invest the initial money received wisely to create additional cash flow and prepare for when the payments under the Note end.

First right of refusal

Typically, there’s a first right of refusal that must be given to the remaining partner(s) when a partner wants to leave or sell. This means that before a partner can run out into the open market and look for another buyer, they first have to offer their ownership interest to the other partners. This obviously can create some hurdles for the partner wanting to sell because they first have to find a third party willing to buy into a partnership where they may not be welcomed with open arms, probably be in a minority position, and then have to wait around for the other partners to exercise their first right of refusal. But, again, it’s a protection mechanism that “cuts both ways” and protects all the partners.

Related: The 6 Most Common Questions Business Owners Ask Before Selling Their Business

Security

To protect both parties, there can be a provision requiring the departing partner to sign a noncompete, and also the remaining partner or partners to “pledge” the partnership interest they purchased as security or collateral for the Note they’re paying off. Thus, if the buying partner(s) defaults, the selling partner can come back into the company as an equity partner to try to recover the remaining sales price or value sold in the original agreement.

It’s OK for a partnership not to have a Buy-Sell Agreement in place, but it can increase the tension in the case of a partner selling when the remaining partners didn’t foresee the situation and don’t have the wherewithal to buy out their partner. In these situations, I tell the partners to turn immediately to their partnership agreement (typically an LLC Operating Agreement) to understand what the governing document allows for when it comes to a partner who wants to get out or sell.

If you’re in a partnership and you have the slightest thought that you might want to sell in the next 10 years, and your partner might just be the buyer, then implement a Buy-Sell Agreement immediately. Don’t mess around with the disaster that can be created in a partnership when it becomes volatile or a partner up and decides they want out.

This article was originally posted here on Entrepreneur.com.

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Company Posts

The Foundations Of Growth

How Jurie Venter has focused on working with the right partners and doing thorough market research to achieve business success.

Introstat

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Vital stats

  • Player: Jurie Venter
  • Company: umAfrika Gaming Technology
  • Est: 2014
  • About: umAfrika is the provider of Gaming Products and Services to South Africa and all other countries in Sub-Sahara Africa and the Indian Ocean Islands.

Three years ago, umAfrika Gaming Technology co-founder, Jurie Venter split from an international company to start a more locally focused business. umAfrika bought a going concern in the South African gaming market. It was a great opportunity with one big catch: They had to launch with an ageing international infrastructure.

Look for opportunities

Although leaving a large international brand and all the support it offers can be daunting, Jurie understood his goals, and how he aimed to get there.

“Although there was a shift from an international focus to a local one, the foundation of the business stayed the same, with the added benefit that we now had local shareholders and could service local businesses.”

Related: Listen And Learn: Why Podcasts Aren’t Just For Start-up Founders

Jurie knew he could build a strong business because he had done thorough research into the South African market. The international market was similar enough to South Africa to prove the concept, and research revealed the local market was large enough to offer a great opportunity.

The Lesson: Make sure there is a need for your offering. By international standards, South Africa is a relatively small market. Jurie and his team needed to ensure there was a large enough local market before they invested in support, staff or infrastructure.

Partner for success

“It’s very important to work with the right partners,” says Jurie. “Focus on developing long-term relationships wherever you can. You want a partner that is reliable and has the right tools to help and enhance your business. I want to know that whenever I pick up the phone to a supplier, there is always someone on the other side who can help me.”

What’s the secret to building such great partnerships?

“Be honest and open in your business and partner with companies that are honest and open with you,” says Jurie.

“For example, we have an excellent partnership with Introstat, which had been building momentum for a few years — long before we created our own independent business. What’s been phenomenal is how we’ve grown together. When they first came onto our radar they only supplied printers. Over the years Introstat has grown into the areas that we needed to grow and enhance our business. We’ve been able to walk this path together.”

The Lesson: As a start-up or SME, you will often work with service providers who are also on a growth path. Work together — with the right relationship and support, you’ll actually grow together. This can work in a number of ways. Your support allows your suppliers to grow and extend their product and service offerings, which then helps you to expand, or in other cases, clients expand overseas and can take you with them. Partner with a business that you can develop a close relationship with, someone who is reliable and has your best interest at heart. The best way to do this is to ensure your values are aligned. Relationships and support are the foundations of business. Build these with your suppliers and your clients — look at business holistically.

Related: The 10 Best New-Age Business Ideas You Haven’t Heard About Yet

What Introstat can do for you:

  • Years of ICT sector experience brought forward to help you grow your business
  • As an HP Platinum Partner Introstat has access to the full range of HP products from Hardware, Software, Networking  to HP Financing and leasing options
  • Through its consulting expertise, Introstat determines the finest solution for your business
  • Introstat has a team of qualified engineers  that can service and maintain your printer fleet and ICT environment nationwide
  • Offers both onsite and remote technical support
  • Provides services within IT Security, Managed Print, Networking, Server/Storage, Cloud, Hosting, VOIP and IoT Connectivity
  • Introstat is a Premium supplier of PCs, laptops, printers, ink and toner with a national distribution infrastructure
  • A BBBEE level 1 company.

Let Introstat show you the new HP A3 Multifunctional range, the most secure printing devices in the world.

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