Personal Finance

Don’t let start-up founders flee

Ajay Jindal | Updated on January 17, 2018 Published on August 21, 2016

Jirsak/shutterstock.com

Inserting clauses into shareholder agreement should do the needful



Startups are stressful places. Founders start with a lot of enthusiasm, but sustaining the hard grind over several quarters, sometimes years, is not an easy task. Consider this in light of the situation that, often, there is hardly any financial reward early on. Promoters may not be able to take home any salary at all, and would more likely be cash negative; in other words, investing more than they anticipated before they started out.

Raising an angel fund does reduce the cash burden on the investors, and should ideally allow them to budget in a basic salary. However, it all still remains very frugal, till atleast a reasonable Series A (initial) funding gets raised. Most ventures struggle to raise Series A, or it may come later than budgeted.

That’s simply the stress from fund constraints. Actual conflict in founder relationships can occur as well, due to divergence of views, or if there is difference in value people are bringing to the company.

The problem areas

In short, founders do walk away, often in a huff. Like in a marriage, rarely is a founder parting amicable. For the company’s business, it is not necessarily a bad event. Quite likely a founder exit is actually good for the business: it is mostly the disgruntled founder that walks away. This frees the remaining founders to pursue their plans better. However, reverse may also occur. Sometimes the impact could be significant if the exiting founder tries to actively take away your business.

Besides the direct impact on business, the other concern area is the impact on future funding from the shareholding of the exiting founder. Let’s assume there are 3 founders, each of whom will have 25% holding after a dilution of 25%. A passive shareholder with 25% equity, and who is not adding any continuing value to the business, is a significant put off for a new investor. The continuing promoters will get left with less stake, despite adding all the future value.

Investors need to have all these concerns covered. The tool you have at your disposal is the Share Holder’s Agreement (SHA).

Protective clauses

The basic tenet of the SHA is to bind the promoter to the company till such external investors are present in the company. One normal clause typically says – ‘All promoters, who are signatory to the SHA, shall devote their full time and attention to the company’. This means a promoter cannot do two ventures, or cannot walk out of a venture.

As added protection, some agreements have a clause which states – ‘Promoters will not have the right to resign or leave the company without written permission of the investor’.

If a promoter does really want to exit, then there are clauses to enable continuing shareholders to acquire her shareholding. A sample clause goes like this: ‘If a promoter does not wish to continue working full-time with the Company, such promoter will be required to sell all of its shareholding in the Company at minimum 75% discount to the price at which shares were issued in the round of funding immediately prior to such required sale. Investor and the remaining promoters will be entitled to purchase such shares on a pro-rata basis from such non-committed promoter’.

This an important clause, which should be inserted in an SHA, and should be exercised. This will enable continuing promoters to hike their stake, and increase their commitment to the company.

We have seen a case where the investor reserved the right to acquire shareholding of all promoters at par, if any one promoter exits. This appears quite draconian; everyone acquiring pro-rate makes more sense.

The investor should also insist on a clause whereby any exiting or non-committed promoter should cease to be a director of company immediately (even though their shareholding may continue).

In case the exiting promoter was vital to the business, then the investor may consider invoking material breach. The clauses above do leave the door open for that. A material breach, which may need to be proven in arbitration, can allow the investor to force a sale of the company. While this is not a great outcome, it can help investor salvage some value from the investment, and all parties can move on.

In case an exit is given, the way to take care of any active business impact is very straightforward: non-compete clause. In various forms, this is also there in employment contracts at senior levels. Essentially this stipulates that a promoter, if she/he leaves a company, cannot start or join something which is in the same business area as the investee company. Also, at the same time they cannot hire employees of your venture. The time period for this is typically 3 years and can be upto 5 years as well.

Another small clause to prevent an indirect exit of promoter(s) is to bar them from pledging their shares to any third party, without written permission of the investor.

The writer is a partner at Wisdomsmith Advisors LLP, which also runs an angel platform Wisdom Angels

Published on August 21, 2016

A letter from the Editor


Dear Readers,

The coronavirus crisis has changed the world completely in the last few months. All of us have been locked into our homes, economic activity has come to a near standstill. Everyone has been impacted.

Including your favourite business and financial newspaper. Our printing and distribution chains have been severely disrupted across the country, leaving readers without access to newspapers. Newspaper delivery agents have also been unable to service their customers because of multiple restrictions.

In these difficult times, we, at BusinessLine have been working continuously every day so that you are informed about all the developments – whether on the pandemic, on policy responses, or the impact on the world of business and finance. Our team has been working round the clock to keep track of developments so that you – the reader – gets accurate information and actionable insights so that you can protect your jobs, businesses, finances and investments.

We are trying our best to ensure the newspaper reaches your hands every day. We have also ensured that even if your paper is not delivered, you can access BusinessLine in the e-paper format – just as it appears in print. Our website and apps too, are updated every minute, so that you can access the information you want anywhere, anytime.

But all this comes at a heavy cost. As you are aware, the lockdowns have wiped out almost all our entire revenue stream. Sustaining our quality journalism has become extremely challenging. That we have managed so far is thanks to your support. I thank all our subscribers – print and digital – for your support.

I appeal to all or readers to help us navigate these challenging times and help sustain one of the truly independent and credible voices in the world of Indian journalism. Doing so is easy. You can help us enormously simply by subscribing to our digital or e-paper editions. We offer several affordable subscription plans for our website, which includes Portfolio, our investment advisory section that offers rich investment advice from our highly qualified, in-house Research Bureau, the only such team in the Indian newspaper industry.

A little help from you can make a huge difference to the cause of quality journalism!

Support Quality Journalism
This article is closed for comments.
Please Email the Editor
You have read 1 out of 3 free articles for this week. For full access, please subscribe and get unlimited access to all sections.