Command and conquer: Start-up law essentials

By IDAN BAR-DOV, OMER GOLDBERG
September 12, 2017 22:05

The purpose of this piece is to familiarize you with the essentials, to demystify complex legal terms and clarify key issues usually encountered when starting your own company.

4 minute read.



Command and conquer: Start-up law essentials

Workers take a break . (photo credit:REUTERS)

Be it software, hardware or firmware, entrepreneurs focus on their company’s core product.

While this focus is key, too much can lead to tunnel vision. What is usually sidelined is the legal work.

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Too often entrepreneurs delay legal until absolutely required, and create a mass of unnecessary risk, for themselves and the company alike. Though perceived as complicated, legal must be engaged with as early as possible.

The purpose of this piece is to familiarize you with the essentials, to demystify complex legal terms and clarify key issues usually encountered when starting your own company.

Company 101

Though we intuitively understand what a company is, its legal definition is quite different from what we know.

There are different kinds of companies. However, in the context of the start-up world, when someone says “I just started my own company” it usually means that they have incorporated a private for-profit organization.

In other words, it’s a privately operated legal entity intended for financial gain.

Legally speaking, a company is independent. It can enter into agreements, assume obligations and be held accountable for its actions. Incorporators may share a great deal of interest with their company, but legally they are not the company. The employees, founders, board members and even the CEO are all a part of the company, but combined do not equate to the company itself.

Nevertheless, companies are run by people. Like a ship, steered by the captain and crew, companies are led by their board of directors and operated by the people who control the “Company Organs.” These include shareholders, directors, officers, etc., who all affect the decision-making processes in their various capacities.

Company incorporation and the corporate veil

Founders are usually the individuals who “give birth” to the company. They fill out the paperwork, pay the incorporation fee and sign the relevant documents. In this context remember the following rule of thumb: No Registration = No Incorporation. Namely, company registration must be approved by the state.

The main benefit of incorporating is gaining a distinction between individual and company – a “corporate veil.” As separate legal entities, companies are accountable for their debts and obligations, as opposed to the individuals who operate them. In other words, each individual’s contribution marks the limit of their potential financial risk. Hence the term “limited liability company.”

However, the veil’s protection is not absolute. In certain cases individuals may be held personally accountable for their actions. For example, when using a company for fraud, illegal actions, or to circumvent existing obligations.

Equity, or company “currency”

Crash course definition: equity = holdings, owning a chunk of the company.

When founders say equity they usually refer to shares. This is the company’s “currency,” which entitles its holders to certain privileges, such as financials, control, and information rights.

There is no gold standard in dividing equity among co-founders; it’s subject to discretion. Founders may be equal equity partners, divide the equity based on their skill and contribution to the company, etc.

Preparing for founder departure Once equity has been issued, a founder’s reason for departure won’t matter much. They are already an equity owner – it’s theirs, no turning back.

Such a departure may generate “dead equity,” shares held by a founder who is no longer involved with the company. This creates an involvement-equity mismatch, which has negative impact, especially on the company’s fundraising front.

The solution is defining the founders’ relationship upfront, by entering into a founders’ agreement. A departure case must be addressed before it occurs, preferably even before incorporating. Think of a founders’ agreement like a prenup, which obviously should be signed before getting married.

Equity-wise, it is customary to include a “vesting schedule,” which determines the founders’ equity eligibility.

The purpose of a vesting arrangement is to incentivize founders to remain engaged with the company and diminish any involvement-equity mismatch.

A standard time-based vesting schedule will specify that if a founder leaves before date X, then he will give up Y equity. For example, in a linear three-year vesting schedule, if a founder leaves after a year, he gets to keep a third of his shares and must transfer the rest to the remaining founders. It’s a quid pro quo arrangement: work = equity.

Top takeaways for entrepreneurs

1. Don’t procrastinate – even it seems dull, take care of your legal foundations from the get-go and don’t wait until it’s too late.

2. Expectation management – defining the founders’ relationship early on helps all founders see eye to eye.

3. Attracting investors – even if your product or tech is extremely impressive, having your legal ducks in a row is always a plus. It conveys awareness and shows investors you’re sincere, organized and devoted.

4. Prevention is the best medicine – building a company is an intense endeavor, and it can bring out a drastically emotional side of you. So set up defense mechanisms before taking off with your team, when everyone is as clear-headed and calm as possible.

Adv. Idan Bar-Dov is an associate at Pearl Cohen’s hi-tech group. Idan’s practice focuses on the representation of investors, tech entrepreneurs and emerging growth companies.

Omer Goldberg is a software developer and entrepreneur.

He works as a software engineer and recently graduated from Y Combinator’s Startup School with his current venture, Mindflow.ai.

Disclaimer: The content herein is intended for informational purposes only and does not constitute legal advice, nor does it create any attorney-client relationship.

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