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I am starting a business with my brother and a third party. I do not trust this third party and we are soon to sign contracts that will give him possibly 25% of the company. He has other business ventures and prospects so I do not know is committment to this. I am afraid we will give him 25% and he will sit around while we do all the work and take his percentage of profits. None of us are putting money in from our own pockets but my brother and I own the patent that is the basis of our product. This third party will pay us back proportionately to the value of the patent with his percentage of profits until it is paid back. His main contribution to the company is his prior experience in starting a business(potentially attractive to investors) and his connections in the business world and investors. I expect him to find investors for the company and/or be the reason investors invested money into our company(because of his credentials and/or his pitch of the company) or I don't think he deserves any more than 5%.

Do you think this is fair? What are some things we can do to protect ourselves from this? Is it common to have a contract specifying duties of the co-founders prior to the business being formed(which we will then hire professionals)?

Thank you for any and all advice. We are in a tough spot now as we almost want him out altogether to avoid this but our team of engineers think he is an asset and might walk if we cut him.

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Never do business with someone you don't trust. It always ends in tears. – Susan Jones Feb 23 '11 at 3:29
How tight is money, could you pay a consultant in lieu of this third party? – Scott Feb 23 '11 at 14:47

3 Answers

It doesn't sound like you are getting off to a great start with this "third party." From your description, it sounds like even if this third party is successful raising money for the company, you will still not feel like he deserves 25%. If this is the case, don't grant him 25% but grant him what you think he is worth to the company. You could tie his grant of options (or shares) to achieving certain deliverables if you wanted to, but then it would only be fair to do the same for yourself and your brother. Also, I'm not sure it is fair for you to ask the third party to pay you back for the patent you and your brother are contributing since: a) it sounds like the two of you are getting 75% of the shares which already compensates you for this, and b) it seems very hard to value this patent and somewhat arbitrary to ask your co-founder to pay for it. One last thing, you speak of him as a potential co-founder but then there is a "team of engineers." Are the engineers also founders?

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The engineers are not founders. Yes I agree with the difficulty and compication of valuing the patent and would prefer to avoid this. We just considered the patented as our contribution(75%) and he would need to match that(25%). – user7992 Feb 23 '11 at 0:23
Also, do you think we can find funding without having highly experienced co-founders in starting and managing a business, as long as we have a solid business plan and product? Can we do this without his credentials? That is what the engineers are worried about. I want him out due to his disrespect towards us, but I am here for the business and can push personal reasons aside. Thanks so much for your response. – user7992 Feb 23 '11 at 0:29
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You should definitely not start a business with someone you are not comfortable with. If the investors you are talking to are compelled by the strength of the product, market and engineering team, they will connect you with business people who could augment your team and will leave it up to you to decide which of them fit best. – zippy Feb 23 '11 at 16:43

Everybody should vest with a cliff

Vesting means that you all agree that you will each earn your shares in the company as you work in it overtime.

A cliff means that someone has to stay with the company for a certain period of time (e.g. a year), and at the end of the year all their shares they have earned up to that point vest. If they leave before the year, they get nothing.

There's several reasons why you want to vest shares with a cliff:

  1. Protects the company from someone leaving with a 25% equity share
  2. Allows you to vet out peoples' skills and contributions fairly
  3. You can figure out if you all work well together in the first place
  4. Chances are your idea/roles are going to change. You don't know what you have, so how are you going to decide what everyone should own?

Why a cliff?

You don't want every hire staying for 3 months then leaving with small chunks of equity. Overtime, you could lose 5% - 10% of your company this way.

Example:

You have 4 cofounders with shares divided equally (John, Bill, Sarah & Steve). You vest the shares over 4 years with a 1 year cliff.

John and Bill are programmers. Sarah is general business, and Steve is the "CEO and Fundraising". Everything is great with John and Bill chugging along on code, Sarah doing the incorporating and marketing, and Steve out raising money.

After two months Steve manages to raise money for you guys (woo!) but turns out to be a real jerk and you don't like working with him. During month three, Steve gets a job offer from Google that he "can't turn down" and can't work on the company anymore (bummer...) Steve claims that he has "done his job" and deserves his 25% now. But you guys are taking below market salaries and working 80 hours a week. You haven't even finished the product or got a customer. 90% of the hardwork is ahead of you. Steve stayed for three months. Why does he deserve 25%? Well, luckily you setup vesting with a cliff, and Steve gets nothing and your company can keep moving forward. No harm, no foul.

This happens all the time

Startups are hard and most people can't cut it. Someone in your team will not work out, and your first duty is to protect the company. If the person you're going to potentially work with doesn't agree to do vesting and a cliff, then they are probably not that passionate about the idea and you don't want to be working with them in the first place.

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I do not trust this third party... I am afraid we will give him 25% and he will sit around while we do all the work and take his percentage of profits... we almost want him out altogether... I want him out due to his disrespect towards us...

So the guy doesn't respect you, and you distrust him and can't stand him. And it sounds like the main reason you want him around is:

our team of engineers think he is an asset and might walk if we cut him

This sounds like the business equivalent of marrying somebody you loathe because they have lots of money. If I were you, I'd ditch the startup. let the engineers walk, and keep my sanity and self-respect. Life is too short to trap yourself in a business with someone you hate.

And even if your characterization of him is completely mistaken, and he's really a great guy and would pull his weight, your distrust and personal dislike for him will almost certainly poison things.

Also, do you think we can find funding without having highly experienced co-founders in starting and managing a business, as long as we have a solid business plan and product? Can we do this without his credentials? That is what the engineers are worried about.

If you really think this guy is really such a jerk, you should verify his credentials. I've known a couple of technology wheeler-dealers who claimed wonderful track records, and did a lot of name-dropping. But when I later talked with people at the companies they claimed to have been involved with, my contacts had nothing good at all to say about these guys.

Look around your industry, and see if you can find some other co-founders who are experienced on the business side and who you feel you can trust. You're in the enviable position of already having a patent, so you don't have to worry much about them stealing your idea.

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