Startup Series: The art of equity distribution among the early employees

By Shefaly Yogendra

As a professional and an advisor, I have been on both the founder’s and the early employee’s sides of the question of equity for early employees.

In an early stage venture, equity is an idea, and equity distribution an art rather than a hard science, regardless of how much algorithmic formula type advice you find floating on the web or from well-meaning people. At an early stage, both founders and early employees are driven by the vision and the possible value creation from realising that vision. Both sides need preparation and clarity on their best number, their best argument to a negotiated agreement (BATNA), and their respective exit strategies.

This column draws upon the several startup situations I have been or advised in and covers some essential considerations in such a discussion.

For her part, the founder sets aside a pool of X percent equity, from which early and later-but-crucial employees, and members of advisory board etc., will receive shares. Some of this X is designed to be given away as restricted stock, which is “granted” or “given”, and other as stock options, which must “vest”. The founder should have at least a rough plan for using this pool, with clear ideas on how the cliff, vesting, clawback etc may work. If she is unable to find how other startups are thinking about this, she may be able to get advice from an experienced startup lawyer, whose role in a startup has been discussed in earlier columns in this series. I have experienced at least one situation where creating the pool was an afterthought and created avoidable friction among the co-founders.

Often early employees are advised by well-meaning mentors to demand a percent of equity and not budge. Equally, founders are advised to make a fixed offer and stick to it. Both of these are poor advice. Not only is the making and the accepting of the offer a very personal decision for both sides where formulaic approaches may not work, but negotiation is also normal and an inflexible attitude does not help the situation.

Both stock grant and stock options have different implications for the recipient’s personal taxation and wealth generative situation as well as his “tie-in” to the company. Both may have a cliff, and a lock-in period or vesting schedule. The lock-in is where the founder’s and the early employee’s interests may diverge. The founder wouldn’t want a valuable employee to quit as soon as his options vest, for instance. The potential employee may rightly want to maximise his professional and wealth generative opportunities. The founder should be clear about communicating the terms of such grant or options. The potential employee will have to determine for himself whether the schedule and the lock-in are in line with his vision of his career and life.

It is worthwhile for founders to be transparent about exit avenues being envisioned or developed for the startup, and for early employees to understand those possibilities. In very early stage startups, this can be a fuzzy discussion. But it can be made better by discussing what the company is already doing, what the trajectories are, and what outcomes are feasible. This would enable the potential employee to make up his own mind about whether the offer is appealing enough for the associated risks of accepting a pay cut and the uncertainties that come with a startup.

Who drives the process? Here is some advice specifically for the potential employee. Unless you are an absolutely crucial hire, the founder will get distracted if the negotiation carries on too long. In a start-up, there are always more important things to do than discussing your specific situation ad nauseam, so you have to be the one driving the process. It would be wise to agree on a date to close an agreement. This is just a practical pointer. Sometimes we can get so hung up on the maths that we forget to have the actual conversation.

Finally, if things do not work out, it is worth remembering that walking away is a valid option for both the founder and the potential employee.

Leaving on good terms may earn the startup a friend and there may be a chance to engage again sometime in the future.