Written July 1, 2020
By the time a startup compensates an advisor with incentive equity, it is best practice for startups to also have a written agreement typically called an “Advisor Agreement” or “Advisor Letter” in place to protect the startup. The Advisor Agreement also has the side benefit of managing expectations on both sides.
A typical advisor agreement defines the startup-advisor relationship. For example, the Advisor Agreement will typically set forth the advisor’s incentive equity amount and type (i.e. options or restricted stock grant) and a vesting schedule. (Note that the Advisor Agreement is not a substitute for the Stock Option Agreement or Stock Grant Agreement, you'll need one of those as well to actually convey the stock.)
The Advisor Agreement should include, or have attached, the following terms and conditions.
The protection of confidential information should be addressed. To be useful as an advisor, they will have to know all about your startup including some or all of the confidential information and/or technology you may have. Advisors aren’t in the business of divulging confidential information, but worst case scenario you will have an agreement in place and set the expectation that your startup’s confidential information is not to be disclosed or used for any other purpose. This type of clause is non-negotiable; if a potential advisor will not agree to the confidential information clause, it’s time to find a new advisor.
Another essential issue relates to the assignment of intellectual property. While all startup employees should be party to an inventions assignment, the inventions assignment provision in an Advisor Agreement should likely be ‘narrower’ then a typical employee’s inventions assignment clause. And in some cases, it may be deleted. It does depend on the actual circumstances, including how involved such advisor will be with confidential information and the development of the company’s products or services. The more involved, the more likely at least a light inventions assignment would be ideal.
Finally, usually, advisor agreements may be terminated by either the startup or the advisor at will (i.e., immediately). Sometimes an advisor requests a longer termination period, but before you write such into the advisor agreement, ask why he or she is asking for that clause. Usually, there’s a workaround in their incentive equity grant that is a better solution.
Because D.I.Y. won’t C.Y.A.
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