Here's the scenario: Myself and 2 partners have been working on a project since January. Since we are all friends (mistake number 1) we orally agreed to split the future company's equity three ways with a 4 year quarterly vest and moved forward without an LLC & Operating Agreement (mistake number 2). We've made significant progress since January, but one of the partners hasn't contributed much of anything (although she thinks she has) and the other partner and I agree that we need to part ways.
We want this "divorce" to be as fair and friendly as possible. The three of us are very close to signing an Operating Agreement and forming an LLC. Should we do this first so everyone understands what happens if a member has to leave? It seems counterintuitive (and somewhat underhanded) to be signing an Op Agreement while we know we're going to part ways with one partner nearly right away. But would this better protect the remaining members? If we don't sign, would the remaining partners be exposed to legal action in the future?
I look forward to and thankful for the community's advice!
I think you're making this a lot more complicated than it really is. If you want to be fair and minimize the possibility of future lawsuits, then you should A) Tell her that you don't have a place for her in the company going forward, B) Let her walk away with the 4% equity that is already vested, C) have her sign the operating agreement of the new LLC, and then D) possibly have the company make an offer to buy back her shares. Letting her keep the 4% equity already vested may seem painful, but that represents the terms of the legal agreement that you all consented to.
Actually You need to discuss this matter with your third friend, and the rest,try to convince why you had taken this decision,Because you want a friendly divorce, not want to break the relation ship, since you all are friends, so better try to talk with #3 friend.
Value the company at a date. If all partners have invested in the company, and one wants to leave. Have the others buy that person out(Pay them what they put into the company). If they haven't bought in. Then, just let them cash out the equity they have in the company.
The trick is really to cash or buy out. Create a paper trail of this transaction & it's purpose. If you do that, they wont have a claim later on. Also you can have them sign a document to release them of liability & Ownership.
I am sorry for you and your friendships that the partnership on this endeavor has not worked out as you hoped. It is clearly now creating a challenge for you and confronting it is the right thing to do. It will not get better.
There are lots of strategies if the value of the friendship is to be dismissed. These include the development of a partnership or operating agreement which is setting up the foundation for dismissal or dissolution, create benchmarks for capitalization from all partners with a hope that she doesn't step to the plate, or setting up accountability structures which she can't perform within, or . . .
But the bottom line is that if you want to maintain the relationship you will need to take the ultimate risk and sit down and talk. Here are some pointers you may find valuable in thinking about how to have the talk:
I wish you the best. I hope you choose the path that honors the relationship! In the end the meaningful relationships we have with people are far more important than successful projects her or there.
Discuss as much as you want, but the IRS says that state partnership law will prevail when no agreement exists. End of story.