Typical Business Contexts
Joseph W. Bartlett, Special Counsel, McCarter & English LLP, Co-Founder of VCExperts
McCarter & English LLP
2002-08-02
While the possibilities are almost infinite, some of the more common include the following:
A Euphemism for a Licensing Agreement: An OEM Contract et al.
Any long-term contract–a license, a lease, OEM manufacture–can be called a joint venture if it suits the parties' interests. Thus, a high-tech start-up licensing software to, say, IBM may prefer to style the agreement as a "joint venture" since it lends cachet to the development-stage enterprise.
A Cross-Border Marketing and Distribution Arrangement
International joint venturers are increasingly popular. Venturer A makes a product in Detroit, the market is in Germany, but A has no real capacity, at any realistic level of cost, to market and distribute in Germany. The answer is a joint venture with a German firm (perhaps even a competitor) which understands the local market. The cross-border joint venture may also facilitate the permeation of trade barriers and avoid restrictions on foreign ownership of domestic industry, what one might call a "mercantilism-busting" joint venture.
R&D Joint Venture
The tax-driven R&D partnership, typically a partnership between a high-tech issuer and tax-averse investors, is no longer popular–a victim of the 1986 Tax Reform Act, plus the fact that many such partnerships turned out to be more trouble than they were worth. Early-stage companies need "big brother" financing, nonetheless. The current fashion, which has never been out of fashion, is a joint venture between a strategic investor and an early-stage issuer, sometimes intermediated by a co-investment from a venture-capital fund in which the strategic investor is a partner, the fund acting as a pathfinder for the strategic investor.
Risk-Sharing Joint Venture
On occasion, a project will be too large for any one firm to be able, or want, to undertake it. The ubiquitous joint ventures between oil companies to develop particular prospects exemplify this genre.
Pro-Competitive Joint Venture
If a given firm, number one in a given market, threatens to mop up its competitors by virtue of its overbearing market share, competitors down the ladder may joint venture, in lieu of merging, to preserve their existence in the market.
LLC
With the advent of the Limited Liability Company vehicle, many joint ventures are organized as LLCs, which are taxed as partnerships. The value of the LLC format is that it provides limited liability to the owners but they are free to draft the operating agreement more or less as they see fit.