質問
We are discussing the shareholder agreement for our technology startup. At this point, there are no external shareholders so only co-founders are supposed to have equity in the company. A problem of the agreement seems to be a case where – for whatever reason – a shareholder is not able/willing to continue working on the project. One person says that a shareholder should not lose their share in the company ever, the others say the non-continuing co-founder should either return their equity or at least have it reduced. What is the usual way to do this in a shareholder agreement?
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While you may have a difficult time wresting or otherwise compromising a shareholder's capital contributions (or equity directly tied thereto), a manageable way to hedge against the risk of an uncooperative co-founder is to tie vesting of a substantial portion of his equity to performance, e.g., via a Management Equity Agreement ("MEA") that is periodically reviewed by the founders. An uncooperative founder, responsible under the MEA for some level of contribution or time spent, can be found in breach and thus forfeit subsequent equity from vesting. Schedules and other terms by which vesting would occur will need to be negotiated, of course, and even if the facts of your particular situation warrant another framework, it is very advisable to contact local corporate counsel to explore specific paths forward.
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