How to issue stock to founders: What early startups need to know

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Meer informatie 
  1. Inleiding
  2. What is stock in a startup?
  3. Startup stock allocation: What do founders get?
  4. How to issue stock to founders
    1. Factors to consider
    2. Ways to issue stock to founders

While equity distribution in startups can be complicated, it sets the stage for a company’s future. Approximately 40% of startups with two founders and only 3% of startups with five founders choose a simple, equal split, while the rest opt for more complex allocation strategies. Founders must consider many factors when devising an equity distribution plan, including tax implications, control dynamics, and future investment rounds. These choices can significantly shape the company’s ability to attract talent, raise funds, and ultimately realize its vision.

Beyond how much equity each founder gets, they also must decide how that equity will be structured and distributed. The mechanisms of issuing this stock can range from direct issuance to complex financial instruments such as convertible notes. The issuing method doesn’t just impact the founders but also future employees, investors, and potential acquirers.

In this article, we’ll discuss what startup teams need to know about issuing stock to founders, including direct stock issuance, restricted stock, stock options, and convertible instruments. We’ll also cover the tax implications and governance issues associated with each issuing method. With diligent research and support from tax advisors, creating a plan for issuing this stock can maximize long-term benefits for founders and their companies.

What’s in this article?

  • What is stock in a startup?
  • Startup stock allocation: What do founders get?
  • How to issue stock to founders

What is stock in a startup?

Stock in a startup is made up of shares that represent ownership in the company. This ownership provides potential financial gains and determines how decisions are made within the company. It incentivizes stockholders—from founders to employees—influencing immediate actions and long-term plans. Each type of stock has specific rights and responsibilities impacting control and valuation. The initial distribution sets the stage for all future financial and operational adjustments.

Startup stock allocation: What do founders get?

How ownership is distributed among founders is more than a simple division of equity. It establishes the governance structure and sets precedence for future financial engagements, such as fundraising rounds and acquisitions. It also creates a roadmap for how decisions will be made and how rewards and responsibilities will be shared.

Founders typically receive common stock, along with associated voting rights and claims on future earnings or sales of the company. However, the rights attached to these shares can differ based on agreements among the founders. Elements such as vesting schedules can come into play, incentivizing long-term engagement with the startup. Vesting usually takes place over a period of years and may include a “cliff,” a set period before any shares vest, to ensure commitment to the venture.

There are several methods to determine how much stock each founder receives. One common method is the “contributions evaluation,” where each founder’s percentage of ownership corresponds to what they bring into the company—be it capital, intellectual property, or specialized skills. Another popular method is “dynamic equity,” where ownership adjusts over time based on ongoing contributions, usually determined by preapproved metrics.

Equity dilution is another factor founders need to consider. As the startup progresses through various funding rounds, the introduction of external investors will usually dilute the ownership percentages of the founders. However, this dilution is often accepted willingly in exchange for the capital needed to scale the business.

Agreements detailing the allocation of founder equity should be well-documented, addressing scenarios such as exits, additional fundraising, or changes in roles. These documents serve as the guiding framework for the company’s internal operations and external engagements. While legal and financial advice is always recommended, the ultimate decisions will be made by the founders, who must balance their immediate needs with future goals for their startup.

How to issue stock to founders

The process of issuing stock to founders starts with determining how much equity each founder will hold, which we’ve previously discussed. But there are several more elements to consider.

Factors to consider

Type of stock

Here are the major types of equity startups tend to use:

  • Common stock: This type of equity is often allocated to founders and employees, offering them voting rights and a portion of dividends or proceeds from a sale of the company.

  • Preferred stock: These shares usually go to investors and offer advantages such as first entitlements on dividends and assets if the company is liquidated; they may also feature antidilution provisions.

  • Stock options: These give employees the opportunity to buy shares at a set price within a designated period, often requiring certain conditions to be met for exercising the option.

  • Restricted stock units (RSUs): These represent a promise to award a certain number of shares at a future date, dependent on meeting specific conditions such as staying with the company for a set time or hitting performance targets.

  • Warrants: These are similar to stock options but are typically given to investors, allowing them to purchase shares at a specific price.

  • Convertible notes and SAFEs: These financial documents transform into equity during future fundraising rounds, usually under terms more favorable to the holder. A Simple Agreement for Future Equity (SAFE) grants the investor the right to receive shares later on, while convertible notes are company loans in which the debt converts to shares instead of being repaid.

While common stock is often the first choice for founders, it’s worth considering whether to issue other types of equity, such as restricted stock or stock options. Restricted stock usually comes with vesting schedules, which encourage sustained commitment to the startup. Stock options, while less straightforward, can offer tax advantages and enable more flexible long-term planning.

Voting rights

Voting rights should reflect the balance of power among the founders, and they are usually documented in the company’s bylaws or a separate voting agreement. When making these arrangements, consider each founder’s role, level of involvement, and desired influence on governance matters. You can create special voting shares to give certain founders extra voting power, but this could complicate future investment rounds or potential exits.

Tax implications

The timing of the stock issuance, as well as the type of stock issued, can affect the tax burden for founders. Most founding teams consult tax advisors familiar with their industry and corporate structure before making decisions about equity. These advisors can explain the implications of different equity scenarios and provide better insight into tax strategies related to stock issuance. For example, an advisor might consult on whether to file an 83(b) election in the United States, which allows founders to lock in a lower valuation for tax purposes when receiving restricted stock.

Documentation

Founders should have comprehensive shareholder agreements outlining the terms of the stock issuance, from vesting schedules to what happens if a founder exits or the company is acquired. These legal documents govern the startup’s equity structure, providing clarity and preventing future disputes.

Intellectual property

Finalize any third-party agreements—such as intellectual property transfers—before issuing stock. If a founder is bringing in preexisting intellectual property, they need to officially transfer it to the company to avoid future conflicts.

Ways to issue stock to founders

There are several methods for issuing stock to founders, each with its own implications for tax treatment, governance, and dilution risk. Here are some of the most commonly used methods:

  • Direct stock issuance
    This is the simplest form of stock issuance. The company issues new shares directly to founders. A stock purchase agreement is drafted, specifying terms such as purchase price, vesting schedule, and any restrictions. Though straightforward, it requires clear documentation to avoid future disputes or ambiguities.

  • Restricted stock
    This type of stock—also called RSUs—has a vesting schedule, meaning founders earn their shares over time. If a founder leaves the startup before their RSUs are fully vested, the company has the right to repurchase unvested shares, often at cost.

  • Stock options
    These are options to buy shares at a fixed price, known as the strike price. Stock options are not actual shares, but they offer the potential to own shares in the future. Often subject to vesting, these can be beneficial in situations where a founder’s future involvement is uncertain.

  • Convertible instruments
    These financial vehicles, such as convertible notes or SAFEs, do not immediately issue shares but convert into equity at a later date—usually during a funding round. They can be a good fit when the company’s valuation is hard to determine.

  • Phantom stock and stock appreciation rights (SARs)
    These are contractual agreements that grant the right to receive cash payments, shares of stock, or a combination of both based on the value of a stated number of shares, to be paid out on a future date. Companies often use these to reward certain founders without diluting the equity pool.

  • Warrants
    These long-term options to buy shares can be a strategic tool for startups, particularly when issued to founders who are also investors or strategic partners. They usually have a much longer life compared to stock options.

Each method requires a different set of documents, so the chosen method will dictate the complexity and volume of legal paperwork. For example, restricted stock usually requires a restricted stock purchase agreement and often an 83(b) election form. Stock options necessitate an option grant agreement and a stock option plan under which to issue the options. Convertible notes require a convertible note purchase agreement and the note itself.

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