If Executive has been employed by the Company for one full year or longer, then the Company will accelerate the vesting of any equity awards granted to Executive prior to Executive’s employment termination such that twenty-five percent (25%) of all shares or options subject to such awards which are unvested as of the employment termination date shall be accelerated and deemed fully vested as of … Acceleration of Vesting Upon Termination. In my view I had earned the equity – we were not a newly minted company with no product or customers. Exhibit 10.2 . You can clash with your acquirer too. Vesting options are intended to create incentives to a valuable company to stay. My shares vested at 1/48th per month. The terms of founders stock will generally provide that vesting accelerates with respect to a portion or all of the shares upon a change of control of the company. As usual, the best way to avoid unfair termination and avoid hiring a bad CEO is to create a board that reflects the ownership of the company with hacks like making a new board seat for a new CEO. // Apr 25, 2007 at 7:12 am. A single trigger acceleration occurs when one event triggers the acceleration of vesting, allowing an equity owner to receive the full or partial value of his or her stock. Over time, your continuing contributions to the company will become relatively less important to its success. there is a material adverse change in employee’s position of employment causing such position to be of materially less stature or of materially less responsibility, including without limitation, a change of title or responsibilities normally associated with such title, without employee’s consent (other than, with respect to the Founder(s), a change, in connection with the appointment of a new CEO, to an executive officer level position with normally associated responsibilities that reports directly to the CEO or the Board of Directors), there is a reduction of more than ten percent (10%) of employee’s base compensation unless in connection with similar decreases of other similarly situated employees of the Company, or, employee refuses to relocate to a facility or location more than sixty (60) miles from such employee’s principal work site; and. Note that the definition of good reason below assumes the company plans on hiring a new CEO at some point: A Founder In many cases, acceleration of time-based vesting outside of the context of termination of employment is a probable-to-probable (Type I) modification and will not result in any additional expense to the company (because the before and after fair values will be the same). Accelerated Vesting Upon Termination. If the company decides to terminate him without cause to avoid possible lawsuits, your co-founder will walk away with a lot of shares. Several of the commentaries suggest that this is possible, and I think I agree, but wanted to run my analysis through the message board to see if others agree. Acceleration. However, they really wanted me gone. The offer was way below the value of the previous round so I said I would leave, but retain the shares and a board seat. By definition, a new CEO is hired to change the way things are and provide new leadership to the business. In addition to the five important considerations for founder vesting schedules discussed in 5 Important Considerations for Founder Vesting Schedules, founders also need to decide whether their shares should be subject to acceleration and if so, what form of acceleration to choose.. What’s Vesting? THIS ACCELERATED VESTING AGREEMENT (this “ Agreement ”), dated as of June 13, 2008, is by and among TravelCenters of America LLC, a Delaware limited liability company (the “ Company ”) and John R. Hoadley (“ Mr. Hoadley ”). It is not uncommon for senior people to try to negotiate accelerated vesting on termination. Vesting of Separated Participants upon Plan Termination. Definitions that we have used in term sheets in the past follow. co-founder about to go I was forced out of the company but still have some vested equity (around 6%). I am one of 5 co-founders in a startup. In that case, I should walk out the door with the shares I came in with.”. Additional filters are available in search, All contents of the lawinsider.com excluding publicly sourced documents are Copyright © 2013-, Accelerated vesting upon certain terminations of employment, Compensation Upon Termination of Employment, Obligations of the Company Upon Termination of Employment, Termination of Employment Following a Change in Control, Company Obligations Upon Termination of Employment, Termination of Employment and Severance Benefits, Cessation of Employment Change of Control. I would hire a lawyer who has experience with termination in startups to guide you through other issues. These are options which have already been "granted" but are not yet "vested." Is fully accelerating stock the only other protection option here? Ug. You have told us that the founders are critical to the company — that we are the DNA of the business. The issue was that I had backed the company myself for two years and then had angels in the business for 12 months. Pursuant to a Restricted Share Agreement, dated as of November 26, 2007, by and … I’m currently the majority shareholder and founder of the company. I think that is generous and if you have that, I would be grateful such a provision exists. What would you do? The investors, board, and management will almost certainly agree to fire your ass if you continuously clash with a new CEO and you will lose your unvested shares upon termination. Of course, most CEOs would be reluctant to agree to that clause for obvious reasons. Double-trigger acceleration, as the name implies, requires two events to trigger acceleration – most typically the sale of the company and the involuntary termination of the employee, usually within 9-18 months after closing, and in some cases including a short pre-closing window (3 months or shorter) to counter any preemptive termination by the company to avoid a payout. Which will make me much more comfortable with hiring a new CEO. // Mar 15, 2008 at 3:57 pm, Anonymous Eventually we reached a compromise, but the lessons learned were: 1. For a discussion of vesting, see "Founders' Equity," by Mary Beth Kerrigan and Shannon S. Zollo, VC Spotlight, Q3 07.Neither is the purpose of the article to discuss the theory behind what should happen to unvested stock upon a change of control. So pushing for accelerated vesting on founder shares may not really help you that much (and may make it more difficult for you to recruit employees if you aren’t willing to give them the same terms). If agreed upon, the employee will typically ask that the competitors be listed and limited to a few direct competitors. The VC is taking a controlling stake in the company, board control and applying a new CEO. Those both sound like reasonable requests. But if I’m removed from the business, I lose the right to earn my shares back. Detailed definitions are included in the Appendix below. I don’t the details of your situation, but as a co-founder and CEO of three startups, I would share the same sentiment as your CEO. Important things to understand are (i) on […], How common is it for founders to vest a portion of their equity up-front?…, VCs don’t like it–and they’ll resist–but they will accept almost complete vesting either up front or upon early termination. If the company has done down rounds, the founder’s existing ownership may be small. ‘Clashing with the CEO’ is not cause. Down Another Round // Apr 26, 2007 at 4:52 pm. // Apr 20, 2007 at 1:01 pm. After the financing, I will have to earn these shares back over the next four years — I’ve agreed to that. Double trigger acceleration which means 25% to 100% of your unvested stock vests immediately if you are fired by the acquirer (termination without cause) or you quit because the acquirer wants you to move to Afghanistan (resignation for good reason). After 10 months, our VC consortium decided to stop funding the company of which I was the sole founder. How is equity given to founders, after the vesting period (or 3 or 4 years) is over? Resist vesting if you have devoted time and your own capital to a business prior to VC investment. Your lawyers will help you define cause and good reason. The new CEO has already made it clear that he doesn’t like me. Don't blow up your Series A term sheet by over-optimizing terms | A View from the Valley It’s called Double Trigger Acceleration because vesting occurs immediately (faster than the original schedule) when two triggers have occurred - first, the acquisition and, second, the termination. Sometimes a small percentage of the vesting accelerates upon a sale (e.g., 25% of the shares). They are playing really hard on a Termination Without Cause, where there is absolutely no severance guaranteeing my employment. With Double Trigger Acceleration rights, if an individual is terminated without cause after an acquisition, unvested equity immediately vests. Otherwise, you need to decide which is worse: the expected value of misbehaving co-founders who leave with a lot of shares or the expected value of leaving a lot of shares behind after your termination. Summary: You made a commitment to the company by agreeing to a vesting schedule — the company should reciprocate and commit to you by granting acceleration upon termination. It was obvious that the new VCs wanted to replace me as VC and it was probably time to take that step. // Mar 15, 2008 at 3:56 pm. “During the whole funding process they said, ‘We’re interested in you guys because of your management team; we think you’re fantastic…’ Two weeks later they pull me into the office – before even the first board meeting – and say, ‘We want to replace you as CEO.’”. Can someone please explain how a VC can make your equity worhtless by doing a down round? I suppose they could also give you cash severance. 11. It only increases your vested shares (and decreases your unvested shares by the same amount). “Single trigger” acceleration refers to automatic accelerated vesting upon a merger. my understanding of the issuance of “sweat equity” is that it is for the value added at founding, and not dependent on future involvement. Get a very competent lawyer. thanks. So I have just noticed that my Series A Founders Stock Restriction Agreement appears to contain the dreaded provision to repurchase my VESTED founders stock in the event that I am terminated for cause or decide to leave voluntarily before the full vesting is up after 3 months. Sometimes such accelerated vesting will be conditioned upon the founder being terminated by the company other than for “cause” in connection with the change of control, which is referred to as “double trigger” acceleration. How about this– if you vest, they vest. Make sure you receive this acceleration whether or not your termination or resignation is in connection with a change in control of the company, such as a sale of the business. I understand that it can get dilluted, but I always thought that it get dilluted equally for all shareholders. Founders generally make their greatest contributions at the early stages of the business but their vesting is spread evenly over three to four years. In the event the Executive's services are terminated in a Non-Cause Termination of Employment during the year after a Change in Control, any stock options granted to the Executive to purchase the Company's common stock that are not otherwise vested (including any stock options with effective dates after a Change in Control) shall have their vesting accelerated in full so as to become 100% vested, … They have not offered to do so. So new grants for critical founders after 3-4 years could be relatively significant. =), Anonymous Can the service recepient accelerate vesting in connection with a plan termination and distribute the vested amounts prior to 12/31/05. Acceleration may cause consternation among your investors but it is easy to justify: “A founder’s most important contributions generally occur in the early stages of a business but he earns his shares evenly over time. Its logical- if VCs knew anything about running businesses, they would be running businesses, not managing teachers money for a no-effort fee. After all ,when a VC invests, they are buying value that *you* created. Yes. Notwithstanding any other term or provision of this Agreement, in the event that the Recipient’s Continuous Service is terminated either by the Company without Cause or by the Recipient for Good Reason, the shares of Restricted Stock subject to this Agreement shall become immediately vested as of the date of the termination of the Recipient’s Continuous Service.] The inevitable changes that the new owner will want to make can cause friction and make the original members of the team want to leave. Anonymous I assume they would be getting additional grants, but (given the relatively less value due to more employees, lesser risk, etc) they options that the would be vesting after the first 4 years, would be miniscule compared to what they got in their first 4 years, right? In order to prevent such consequences, acceleration clauses are often negotiated before or during the ac… Another major concern of terminated executives is that, due to their departure, they will lose out on valuable future vesting of stock options under one or more stock option agreements. Four months later I was asked if I wanted to leave and sell my shares. Cause typically includes willful misconduct, gross negligence, fraudulent conduct, and breaches of agreements with the company. Wow, I really appreciate this post. Acceleration of vesting of underwater stock options can be an exception. Even without vesting, founders may stick around to try to increase the value of the shares they already own. // Apr 20, 2007 at 11:03 pm. Even after you stop paying them, they still do work for you because it makes their stock more valuable. The investment proceeded and I stepped aside. In California, it is actually very difficult to prove cause unless an employee engages in criminal activity. Also, I am surprised to hear that you get accelerated vesting if you voluntarily leave. 2 Have a board seat linked to the shareholding, not the employment contract. If you are leaving a startup, you are no longer fighting the war and will no longer play a direct role in the long-term success of the company. In some cases, the acquiring company can simply let founders and other employees go, leaving them without the ownership they expected. that they would engineer a down round just to force me out. It defines the employee's rights in terms of receiving notice of termination, severence, or pay in lieu of notice. My lawyer told me that this would not happen, but I am starting to doubt my legal advice now. is this fair? ACCELERATED VESTING AGREEMENT . So I turned those VC’s down and accepted an offer from a different bunch. 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