Joint ventures are always interesting
We’ve written a lot recently about how cannabis companies are falling on tough economic times in this roiling economy. When times get lean, cannabis companies need to innovate and get more competitive with services and product offerings. This is in addition to consolidation, cost cutting, and going after third parties that owe you money.
One of the ways to get creative, and what I’m seeing more of lately in practice, are very strategic cannabis joint ventures. Joint ventures are always interesting to me–you never know what will come out of them, but collaboration and ingenuity usually drive the boat between parties. Cannabis joint ventures are no different. And whether it’s a brand collaboration over a new product line, expansion of certain business segments, or to bridge related markets (like CBD, health and wellness, spirits, etc.), cannabis joint venture candidates need to keep a few things in mind when they head to the bargaining table.
What is a joint venture?
A joint venture (or “JV”) occurs when two or more parties agree to join together for a commercial objective for a set period of time. A JV can take several forms but generally involves a joint venture agreement (and, most often, the formation of a business entity to most efficiently govern the parties) between multiple parties that involves some level of profit sharing for joint activities.
Unfortunately, many cannabis companies think a JV is the answer to pretty much every relationship. Not the case. JVs require highly specific circumstances to work, including a stated purpose or goal that’s limited in time. Other run-of-the-mill business arrangements like distribution agreements or IP licensing do not require a JV relationship.
Cannabis joint venture components
Even if your cannabis joint venture involves the formation of a business entity, you still want to have a joint venture agreement that governs the relationship between the parties. And the governing document for the JV entity should track the joint venture agreement. The cannabis joint venture agreement should detail:
- The identity of the parties;
- The structure of the JV entity;
- The purpose of the venture;
- The length of the venture;
- Resources that will be shared between the parties;
- Profit sharing allocations (and for losses, too);
- Duties and obligations regarding management, governance, economic, and control rights;
- Termination of the JV;
- Sale of JV-owned assets;
- Dealing with JV liabilities; and
- What to do when disputes occur.
Other considerations for a cannabis joint venture agreement and entity include initial and ongoing capitalization obligations, labor allocation, capital calls, and taking on debt. A lot of this can be elegantly handled in the entity governance document, like an operating agreement for a limited liability, for example.
Finding your ideal cannabis joint venture partner can be a tough undertaking where a lot of cannabis operators have never conducted business through a joint venture, let alone in a highly regulated environment. In turn, when looking for that JV partner in cannabis, your partner candidate should be cognizant and capable of compliance with the multitude of state regulation that now surrounds cannabis businesses (including residency, criminal record issues, and capital start-up mandates).
The joint venturer should also: (i) understand what’s happening with cannabis at the federal level (i.e., the Sessions memo and the unwillingness of Congress to move at all on federal legalization), (ii) be aware of the capital it will take to support and sustain the JV in a heavily regulated but also state-by-state cottage environment, and (iii) be mindful of the myriad of state regulations the cannabis joint venture may face depending on what its goals are in the cannabis industry (i.e., understand the heavy burden of regulatory compliance).
When these joint ventures make the most sense
A joint venture designed just to secure a state cannabis license only really makes sense for parties that absolutely need market access and/or resources they cannot otherwise get themselves, or through their own investors. On the other hand, cannabis joint ventures may be a good option when: a) it comes to the development of cannabis or cannabis ancillary intellectual property, including for white labeling or brand houses, or b) for the development of certain cannabis based or related products that we wouldn’t otherwise see in the marketplace from a single company with limited resources. In such cases, the joint venture agreement should clearly spell out who has ultimate ownership and control of any “assets” developed by the venturers during the term of the JV (especially the IP).
More cannabis joint ventures on the horizon? Let’s hope
Outside financiers or other industry pros often know nothing about producing, manufacturing, or even selling cannabis. At the same time, some of the best cannabis talent still lacks both cash and the corporate know-how necessary to run a complex, highly-regulated cannabis business, or even an ancillary company in competitive state-by-state markets. Each side wants and needs a partner to cover some resource and knowledge gaps; however, the parties often are unwilling to share direct ownership in their own respective businesses.
The beauty of a cannabis joint venture is that no purchase and/or sale of assets or equities needs to take place (which would otherwise set off an entirely different host of issues from securities law to cannabis regulatory change of ownership issues). Overall, cannabis joint ventures can help reduce costs and waste for cannabis companies while promoting expansion, innovation, and strategic business alliances. My hope is that we’ll see more well-constructed cannabis joint ventures during these rocky economic times.
Source: Canna Law Blog