Comment intégrer légalement un cofondateur : explication des accords d’équité, de PI et d’acquisition

Bringing a co-founder on board is one of the most critical steps in the early stages of a startup. However, how to legally onboard a co-founder is not as simple as shaking hands and starting to work. Founders need to be cautious and intentional about the legal framework surrounding their partnership to ensure long-term success and avoid potential conflicts down the road. The process involves various legal agreements, including equity allocation, intellectual property (IP) ownership, and vesting schedules. In this article, we will break down these critical aspects and explain the necessary steps to ensure both legal compliance and fairness in the partnership.

The Importance of Legally Onboarding a Co-Founder

When you think about how to legally onboard a co-founder, it’s easy to focus solely on the excitement of building something together. However, overlooking the legal details can have significant ramifications. A lack of proper legal structure can lead to disputes over ownership, responsibilities, or intellectual property down the road. As a result, securing legally binding agreements from the outset is essential to creating a solid foundation for your startup.

Before diving into specific legal agreements, it’s important to understand why legal onboarding is necessary. A well-drafted agreement can prevent misunderstandings, reduce potential conflicts, and set clear expectations for all parties involved. It also provides a framework for handling issues like the departure of a co-founder or changes in ownership percentages.

Let’s dive deeper into the core components of legally onboarding a co-founder: equity agreements, intellectual property, and vesting schedules.

1. Equity: Defining Ownership and Roles

One of the most critical aspects of legally onboarding a co-founder is determining equity distribution. How much ownership should each founder receive, and what factors will influence the division of equity? This is a question that requires careful consideration, as it will shape the future dynamics of the startup.

Understanding Equity Distribution

The distribution of equity reflects each founder’s contribution to the company, both in terms of initial capital and the long-term role they will play. Generally, equity is split based on a combination of several factors:

• Initial Contribution: This could include financial investment, industry expertise, or previous work relevant to the startup.
• Role and Responsibilities: The founder who takes on a more prominent role or provides technical expertise might warrant more equity.
• Sweat Equity: This refers to the non-monetary contribution of time, effort, and skill. A co-founder who dedicates more time and resources will typically receive more equity.

While equity distribution may seem straightforward, it’s essential to remember that unequal contributions should be reflected in a legal agreement to avoid future resentment or confusion.

Legal Agreements for Equity

Once you’ve determined how much equity each co-founder will receive, you must formalize this agreement. A Shareholders’ Agreement is the primary document to outline the equity distribution, including the rights and obligations of each party. This agreement can also specify restrictions on the transfer of shares, voting rights, and any protections for minority shareholders.

2. Intellectual Property (IP) Ownership and Protection

A co-founder’s role in creating intellectual property can be one of the most significant contributions to a startup. Whether it’s software code, branding, product designs, or even business strategies, IP can be the company’s most valuable asset. Thus, when onboarding a co-founder, it’s critical to address ownership of intellectual property.

Assigning Ownership of IP

To ensure clarity, all intellectual property developed by co-founders during the startup’s existence should be assigned to the company from the outset. In most cases, this involves an IP Assignment Agreement, which legally transfers ownership of any intellectual property to the company as soon as it is created. This agreement ensures that both co-founders and the startup itself are protected in the event of disputes or if one co-founder decides to leave the company.

The “Work for Hire” Doctrine

Under U.S. law, when someone is employed to create intellectual property, the “work for hire” doctrine generally assigns the intellectual property to the employer, rather than the creator. This principle is often included in contracts between founders to ensure that any intellectual property developed during the course of the startup’s operations remains the property of the company.

However, if the co-founders are working in a capacity where they are not considered employees, it’s vital to include a clause that explicitly transfers ownership of the IP to the company. Without this, there’s a risk that a co-founder could claim ownership of critical assets if the partnership dissolves.

3. Vesting Agreements: Protecting the Long-Term Health of the Startup

When learning how to legally onboard a co-founder, another key element to address is the vesting schedule. Vesting refers to the process by which a co-founder earns their equity over time, rather than receiving all of it upfront.

What is Vesting?

A vesting agreement ensures that co-founders remain committed to the company over the long term. Without vesting, a co-founder could leave the company early and retain a significant share of the equity. A standard vesting schedule for co-founders typically spans four years, with a one-year cliff. This means that the co-founder will earn 25% of their equity after one year, and the rest will vest monthly over the following three years.

Why is Vesting Important?

Vesting helps prevent a situation where a co-founder leaves shortly after receiving equity, potentially leaving the company with an equity holder who is no longer contributing. It also ensures that co-founders are incentivized to stay with the company and work toward its long-term success.

Additionally, vesting protects the remaining co-founder(s) in the event that one co-founder fails to deliver on their promises or leaves early. Without a vesting agreement, a departing co-founder could take a substantial portion of the company’s equity with them, potentially undermining the efforts of the remaining team.

The Role of Cliff Vesting

The concept of a “cliff” is another important aspect of vesting schedules. Typically, this first-year cliff means that no equity is vested until the co-founder has been with the company for at least one year. If they leave before the cliff period ends, they forfeit their equity. If they stay for the full year, they vest 25% of their equity, with the rest vesting monthly over the subsequent years.

4. Legal Protections: Key Clauses to Include

In addition to equity distribution, IP ownership, and vesting schedules, a few key legal clauses should be included in any co-founder agreement to protect the interests of all parties involved.

Non-Compete and Non-Disclosure Agreements (NDA)

To protect the company’s sensitive information and trade secrets, a non-compete et non-disclosure agreement peut être extrêmement bénéfique. Ces clauses interdisent aux cofondateurs de divulguer des informations commerciales confidentielles ou de créer une entreprise concurrente pendant une certaine période après avoir quitté l'entreprise.

Stratégies de sortie et dissolution

Bien qu'il soit difficile d'anticiper l'avenir, il est important d'avoir un plan pour ce qui se passe si les cofondateurs souhaitent se séparer. A convention d'achat-vente ou clause de stratégie de sortie peut décrire comment un cofondateur peut racheter les parts de l'autre si le partenariat se dissout. Cet accord aide à prévenir les conflits et garantit que les deux parties ont une voie claire à suivre si la relation se termine.

Conclusion

Savoir comment intégrer légalement un cofondateur est une étape essentielle dans la création d'une startup réussie. En abordant des aspects juridiques clés comme la répartition des actions, la propriété intellectuelle et les calendriers d'acquisition, vous créez une base solide pour une croissance à long terme. Que vous rédigiez un pacte d'actionnaires, que vous cédiez la propriété intellectuelle ou que vous établissiez un calendrier d'acquisition équitable, ces accords juridiques protégeront à la fois les fondateurs et l'entreprise.

Le processus peut sembler complexe, mais la mise en place d'un cadre juridique clair dès le départ garantit que tous les cofondateurs sont alignés sur leurs objectifs et leurs responsabilités. Investir du temps et des ressources dans ces accords juridiques peut éviter des maux de tête importants à l'avenir et fournir la stabilité nécessaire à la prospérité de la startup.