The signing of a contract should generally be based on the agreement of both parties, that is, the meaning is consistent. The process of concluding a contract is a process in which both parties make their expressions of will tend to be consistent, which is called offer and acceptance in contract law. When signing a partnership agreement, we should pay attention to the following points: (1) Relevant provisions on withdrawal of shares and responsibilities of contract partners 1. Details of capital contribution, and how to pay dividends according to how much each person contributes. 2. Rules of procedure, which stipulate how to discuss major issues. 3, responsibility details, the content of the agreement is everyone's responsibility, if implemented. 4. Withdrawal mechanism, which specifies the circumstances under which partners can withdraw shares and how to calculate capital when withdrawing shares. (2) Resolving differences of opinion 1. For the adjustment plan after the wrong business direction, it can be agreed whether to change the business direction or implement the strategy. 2. For the solution of the difference, it can be agreed whether to vote directly or to negotiate with experts before solving it. (III) Distribution of planned benefits and responsibilities of operating projects 1. What projects does the partnership mainly engage in? 2. How to promote commercial projects in stages? 3. How to distribute the income of operating projects and how to take responsibility for failure. 4. Under what circumstances should a commercial project be terminated? Simply put, one party makes an offer to the other party and gives specific conditions. If the other party accepts the offer, this contract will be concluded on the basis of equality and voluntariness. A contract is an expression of the will of both parties, and there can be no behavior that goes against the will of one party. At the same time, both parties should study the contents of the contract in detail to avoid possible subsequent situations. Legal basis: Article 19 of the Partnership Enterprise Law shall come into force after being signed and sealed by all partners. Partners shall enjoy rights and perform obligations in accordance with the partnership agreement. Modifying or supplementing the partnership agreement shall be unanimously agreed by all partners; However, unless otherwise agreed in the partnership agreement. Matters not stipulated or clearly stipulated in the partnership agreement shall be decided by the partners through consultation; If negotiation fails, it shall be handled in accordance with the provisions of this Law and other relevant laws and administrative regulations.
Second, how to sign the partnership agreement of the entrepreneurial team?
First of all, the organizational form of the entrepreneurial team is a company, and the legal form of partnership is basically not adopted. The biggest difference between a partnership and a company is that the shareholders of the company bear limited liability for the debts of the company, while the partners of the partnership bear unlimited joint liability. Of course, partnerships are divided into general partnerships and limited partnerships, which are not specific here. However, because everyone is used to calling it a partnership, as long as it is Z's article in the future, the partnership business is the company business, the shareholders are called partners, and the shareholders' agreement is called a partnership agreement.
The partnership agreement, specific to the partner structure of different entrepreneurial teams, different industries and different projects, has different terms. Today we will only talk about some terms of the partnership agreement that I think should be standard.
The importance of the partnership agreement may feel very important in an instant, but many entrepreneurial teams didn't sign the partnership agreement before I intervened in counseling, and they all thought it was most important to work hard and do things well. Generally speaking, the people who can start a business together are basically good classmates, old friends and buddies. Generally speaking, there is no problem, there is nothing we can't talk about, but it is precisely because of this wrong concept that many things have happened. People's psychology is to seek advantages and avoid disadvantages. When they can't see the benefits, nothing matters, but when the benefits appear, haha, everything matters.
At the highest level, the partnership agreement is the charter of the entrepreneurial team, in other words, the rules of the game between partners. Its value lies not only in protecting and standardizing the rights and obligations between partners, but also in protecting entrepreneurial projects. Therefore, the entrepreneurial team must pay full attention to the partnership agreement.
Now let's talk about the format terms of the partnership agreement in detail.
1 cooperation background
The partnership background is easily overlooked, but it is the most basic. Elaborating the cooperation background is the analysis of the resource integration based on the cooperation of partners, and the carding process of their respective roles and contributions to the project.
2 Overview of entrepreneurial projects
Entrepreneurial projects are the carrier of partnership. Before starting work, always make clear what to do, including project type, business scope, field, positioning, operation mode, project promotion plan, development vision, etc.
3 Capital contribution
Mode of capital contribution. The modes of capital contribution stipulated by law include capital, real estate such as land and factory buildings, various movable property such as automobiles, and intellectual property such as patents, trademarks and copyrights. In entrepreneurial practice, some people invest in technology, specific services or specific resources. Then, is this form of capital contribution ok? The law clearly stipulates that labor service cannot be used as the mode of capital contribution, and I think specific resources and unvalued technology are also not allowed. But what really needs to be done in entrepreneurial practice? Then it needs to be technically handled and legalized through the terms.
Duration of capital contribution. The investment period includes the receipt of funds and the transfer of real rights of movable and immovable property. In the entrepreneurial team, the common transfer is the transfer of intellectual property rights. Clearly stipulate the mode of capital contribution and the time limit for payment, ensure that the cooperation resources of partners are in place synchronously, and ensure the smooth progress of entrepreneurial projects.
4 Equity ratio
Generally speaking, the proportion of capital contribution represents the proportion of equity. But in fact, many entrepreneurial teams I coach are not arranged in this way, because in many cases, only the amount of capital contribution is considered, and the comprehensive contribution factors and value of partners to the project are not considered; Moreover, when making the equity structure, we must consider the equity incentive pool, future financing and the introduction of new partners' equity holdings. Therefore, in the equity ratio clause, the established agreement cannot be made, and the situation of holding shares should be particularly clear.
5 division of labor
In terms of division of labor, it should not be difficult. Partners should have a clear understanding and definition of each other's division of labor at the moment when they decide to start a joint venture, but they should still be fixed in writing. Who should be the CEO, CTO and COO? The importance of a clear division of labor is also directly related to the responsibilities of partners in the project. The perfect partner team structure is back to back, each with its own side. You do your thing and I do mine, which is determined in writing and is also the basis of decision-making authority.
6 Profit and loss commitment
This is a very important clause, and its significance is self-evident. Partnership can't just talk about feelings, and feelings can't be eaten. Therefore, the profit and loss should be made clear, including how to divide the profits and how to bear the losses. Principles, rules and procedures should be villains in front of gentlemen.
7 salary
Founding partners are generally not paid. If you want to get paid, you can learn from Google and other models. The founder receives a symbolic monthly salary of 1 USD. This clause is dispensable, but it is also a very happy thing to look back at the hard years when we started the IPO. Of course, for partners who need to get paid, they still have to make specific agreements.
8 Finance
The financial affairs of entrepreneurial teams are generally very irregular, and there are no full-time or accounting personnel. At this time, although there are no professionals, it is still necessary to standardize the custody, expenditure, accounting and supervision of funds.
9 Decision-making and voting
There is no doubt that partners enjoy legal shareholder rights according to law. However, the uncertainty of entrepreneurship determines that its decision-making power and voting power must be different, and divergent voting rules must be introduced. Entrepreneurial team needs a core, which is CEO, boss and big brother. Therefore, the CEO should be given importance and even veto power in voting on major issues of entrepreneurial projects and teams, but at the same time, as a boss, he should also take responsibility and be responsible for his own decision-making behavior; For professional issues, such as product function and positioning, CTO should first be responsible for the opinions of partners. If other partners disagree, CTO insists. At this time, if CEO supports CTO's opinion, CTO will continue to implement it, but CEO and CTO will bear joint and several liability.
10 Equity expires
It is very important to discuss the expiration mechanism of equity. Lawyer Z has outlined it in the previous article "Lawyer Z's Viewpoint: Ownership Structure Design of Entrepreneurial Team", so I won't repeat it here.
1 1 equity dilution
When financing a startup project, the shares must be diluted. Generally speaking, the founder's shares are evenly diluted according to the proportion of shares, but there are also cases of uneven dilution and special cases of holding shares on behalf of others. Therefore, for the dilution of equity, specific arrangements should be made according to different situations.
12 guarantee of entrepreneurial projects
Entrepreneurial projects are the painstaking efforts of partners and the darling of partners. However, general partnership agreements tend to ignore the protection of entrepreneurial projects.
In the process of starting a business, it is easy for the entrepreneurial team to fall apart because of various differences, and some partners quit, taking away the technology, knowledge, experience and model accumulated in starting a business and starting a new stove.
In order to prevent this from happening, I usually ask the startup team to add confidentiality, non-competition, prohibition of peers, full commitment and business model protection clauses in the partnership agreement. There are relatively few protection clauses for business models. In the United States, the business model is protected by law, but the current intellectual property protection in China does not include the business model. However, the fact that the law is not included in the scope of protection does not mean that it cannot be agreed. Therefore, I generally ask for an increase in the terms of business model protection, that is, to clearly define the business model of entrepreneurial projects. Anyone who starts a new stove or leaks water will be liable for breach of contract or compensation.
13 equity transfer, withdrawal and access
In order to ensure the stability of entrepreneurial projects, partners are generally prohibited from transferring shares to the outside world.
In the process of starting a business, it is normal for some partners to quit for various reasons because new partners are introduced into the project. But the rules of quitting and joining partners must be well understood, otherwise the impact on the project will be very great and even fatal. Here, the reasons for permission, exit process, access conditions, voting and exit process need to be agreed in detail.
14 liquidation
Liquidation clauses are also important. Although entrepreneurial projects want to succeed, they should also consider possible failures, and stipulate the liquidation procedures and rules for partnership enterprises and property after entrepreneurial failure, especially the liquidation of intellectual property achievements obtained in the process of entrepreneurship.
Well, the above are the important standard terms summarized for your reference only.
References:
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Three, two people start a business in partnership, how to distribute the shares is more appropriate?
1. Before the establishment of the company, an agreement can be signed to clarify the capital contribution and shareholding ratio of both parties;
If he contributes, he can get the corresponding shares. If he doesn't contribute, you can pay him according to his contribution.
3. You should also sign a confidentiality agreement with all the people involved or working to prevent the disclosure of business secrets. 1, two people start a business in partnership. In order to avoid unnecessary in the later period, it is suggested that the share distribution method should be determined by the real contribution ratio. If a shareholder shares in a non-monetary way, the best way is to price the non-monetary resources and take the price negotiated by both parties as shares. If the registered capital is 1 10,000 yuan, and one party makes a price of 200,000 yuan in a non-monetary way, and the other party does not add any monetary contribution, then both. 2. In order to balance the unequal contribution of two people's business ability and resources to the business, we can make up for the unequal contribution of two people's ability and resources through salary commission, and then balance the contradictions and conflicts of interest between two people. 3. On the topic of how to realize total control, the company law is traditionally defined on the basis of equity ratio. For example, holding 67% of the shares is considered as absolute holding, which has the advantage of complete discourse power, 5 1% is considered as having relative adjudication power, and 34% is considered as a person who must solicit decisions. Unless otherwise agreed in the articles of association and partnership agreement, holding 67% of the company's shares can basically achieve absolute dictatorship in any decision. Because the standard version of the Articles of Association and the Company Law stipulates that "major decisions must obtain 2/3 votes", 67% is just above 2/3 voting rights.
Fourth, how to sign the partnership agreement of the entrepreneurial team?
You can go to E-deed online contract customization, which has a partnership agreement customized for entrepreneurs. You can generate a copy for free to see if it suits you.