| | |
partnership were sold at a price equal to the greater of | | liquidation value or going concern value without the departing | | partner. Liquidation value is not intended to mean distress sale | | value. Under general principles of valuation, the hypothetical | | selling price in either case should be the price that a willing and | | informed buyer would pay a willing and informed seller, with | | neither being under any compulsion to deal. The notion of a | | minority discount in determining the buyout price is negated by | | valuing the business as a going concern. Other discounts, such as | | for a lack of marketability or the loss of a key partner, may be | | appropriate, however. |
|
| | | Since the buyout price is based on the value of the business | | at the time of dissociation, the partnership must pay interest on | | the amount due from the date of dissociation until payment to | | compensate the dissociating partner for the use of his interest | | in the firm. Section 104(b) provides that interest shall be at | | the legal rate unless otherwise provided in the partnership | | agreement. The UPA Section 42 option of electing a share of the | | profits in lieu of interest has been eliminated. |
|
| | | UPA Section 38(2)(c)(II) provides that the good will of the | | business not be considered in valuing a wrongfully dissociating | | partner's interest. The forfeiture of good will rule is | | implicitly rejected by RUPA. See Section 602(c) and Comment 3. |
|
| | | The Section 701 rules are merely default rules. The partners | | may, in the partnership agreement, fix the method or formula for | | determining the buyout price and all of the other terms and | | conditions of the buyout right. Indeed, the very right to a | | buyout itself may be modified, although a provision providing for | | a complete forfeiture would probably not be enforceable. See | | Section 104(a). |
|
| | | 4. Subsection (c) provides that the partnership may offset | | against the buyout price all amounts owing by the dissociated | | partner to the partnership, whether or not presently due, | | including any damages for wrongful dissociation under Section | | 602(c). This has the effect of accelerating payment of amounts | | not yet due from the departing partner to the partnership, | | including a long-term loan by the partnership to the dissociated | | partner. Where appropriate, the amounts not yet due should be | | discounted to present value. A dissociating partner, on the | | other hand, is not entitled to an add-on for amounts owing to him | | by the partnership. Thus, a departing partner who has made a | | long-term loan to the partnership must wait for repayment, unless | | the terms of the loan agreement provide for acceleration upon | | dissociation. |
|
|