Reverse Vesting: Key Insights and Considerations

Reverse vesting of shares is a mechanism employed by institutional investors investing in startups at an early stage. The primary objective is to align the interests of founders and investors by ensuring that founders earn the shares held by them whether as per time specific milestones or performance- based milestones. Reverse vesting is critical in protecting the interests of the investors and it also acts as an incentive for founders to contribute effectively to the business.

1. What is Reverse Vesting?

Reverse vesting essentially is the opposite of a vesting schedule construct which is common for employee stock option schemes. Vesting is where an employee earns equity incrementally over time while reverse vesting is for the founders to earn the equity already held by them. This is different from traditional vesting. [1] Specific terms, such as the duration of the vesting period and any cliff period (a set period before any of the shares are vested), are usually specified in the shareholders’ agreement.

2. Investor and Founder Alignment

The primary advantage of reverse vesting is that it aligns the long-term interests of the founders with those of the investors. As a result of the reverse vesting and earning their shares over time, founders are incentivised to stay with the company and strive towards its success. This alignment is crucial in the early stages of a startup when the departure of a key founder could negatively impact the prospects of the company. Certain kind of investors such as the venture capitalists insist on reverse vesting clauses to ensure that the founders remain committed to the company during its early years. [2]

3. Legal Framework

Legally, reverse vesting is governed by the shareholders’ agreement, which is a critical document outlining the terms and conditions under which shares will vest. The agreement typically includes the vesting schedule, the percentage of shares that vest each year, and any conditions that could accelerate or delay vesting. For example, if a founder leaves the company after two years, with a four-year vesting schedule in place, they will only retain 50% of their shares. The remaining shares would be returned to the company or be redistributed amongst the other existing founders.

4. Challenges and Potential Conflicts

While reverse vesting is beneficial in many ways, it can also create tensions between founders and investors. Founders may feel that their autonomy and control is being restricted, particularly if the vesting terms are seen as overly harsh. This is especially true if the vesting agreement does not account for unforeseen circumstances, such as a founder leaving due to health issues or personal emergencies. Such situations can lead to disputes, especially if the reverse vesting terms are perceived as unfair or rigidly applied. [3]

5. Common Practice

Reverse vesting has been employed as a common practice in several startups to ensure stability during their initial growth phase. For example, early-stage companies often include a one-year cliff in their vesting agreements, ensuring that if a founder leaves within the first year, they leave without any equity. This helps in avoiding situations where the founder leaves the company within a short period after its incorporation, which may jeopardize investor confidence and the further of the company.

6. Flexibility and Negotiation

A well-drafted reverse vesting agreement will include some flexibility to account for unique circumstances. [4] For instance, acceleration clauses might allow a founder to retain more shares if the company is acquired or if the founder is asked to leave by the board without cause. These provisions ensure that the agreement remains fair and does not unduly penalize a founder who has made significant contribution to the company’s success. [5]

7. Conclusion

Reverse vesting is a critical tool in the startup ecosystem. It helps to ensure that founders remain committed to their companies and that investors are protected from the risks associated with a founder’s premature departure. However, the effectiveness of reverse vesting depends on the fairness and clarity of the agreement. Both founders and investors must carefully negotiate and agree on the terms to ensure that the arrangement works in everyone’s best interests. A balanced approach that considers the potential risks and rewards for all parties involved is essential for the long-term success of the startup.

References:

[1] Eeles, M. (2022) What Is Reverse Vesting?, LinkedIn. Available at: https://www.linkedin.com/pulse/what-reverse-vesting-martyn-eeles/

[2] The comprehensive guide on reverse vesting for startup founders (no date) Capboard. Available at: https://www.capboard.io/en/captable/reverse-vesting

[3] Dreyfuss, A. (2017) Reverse vesting and Holdback – Good News for entrepreneurs?, Mondaq. Available at: https://www.mondaq.com/capital-gains-tax/571188/reverse-vesting-and-holdback-good-news-for-entrepreneurs

[4] Share re-purchase mechanism (‘reverse vesting’) (2022) Mondaq. Available at: https://www.mondaq.com/corporate-and-company-law/1183318/share-re-purchase-mechanism-reverse-vesting

[5] Explainer: Change in domicile status: Why startups are returning home (2024) Mondaq. Available at: https://www.mondaq.com/india/shareholders/1473406/explainer-%7C-change-in-domicile-status-
why-startups-are-returning-home