Founders agreement: what to lock down before you ship

A founders agreement is the first contract your company signs with itself. Two or three pages decide who owns what, how the team makes decisions, and what happens when someone walks away. Founders skip it because the relationship feels easy at month one. That is exactly when it is cheap to write, and exactly when honest answers are still possible.

Swiss law gives you almost no defaults here. A Schweizer AG sits on top of the Code of Obligations (OR Art. 620 et seq.), but the OR only governs the relationship between the company and its shareholders, not the relationship between you and the person sitting across from you in the kitchen. Everything you do not write down is governed by trust, which is fine until it is not.

The five clauses that matter

Most founder disputes come down to the same handful of questions. Answer them in writing and the rest of the agreement is plumbing.

• Equity split, with the exact percentages and a one-paragraph rationale you can defend in two years (past contributions, future commitment, opportunity cost).
• Reverse vesting over four years with a one-year cliff, backdated to incorporation, not to the day you sign.
• Full IP assignment from each founder to the company, including pre-incorporation code, designs and brand assets. Without this clause OR Art. 332 (which only covers employees) does not save you.
• Decision rights: which calls need unanimity (issuing new shares, taking debt above CHF 100k, dismissing a founder), which need a simple majority, which the CEO makes alone.
• Leaver mechanics: good leaver keeps vested shares at fair value, bad leaver loses unvested and sells vested at nominal value (typically CHF 0.01 to CHF 1.00 per share).

Vesting is not optional, and it has to start at incorporation

Reverse vesting means a founder owns the shares from day one but the company can buy them back at nominal value if the founder leaves early. The typical Swiss schedule is four years with a one-year cliff: nothing vests in the first twelve months, then 25 percent at the cliff, then monthly accrual for the remaining 36 months. Investors will refuse to lead a round without this in place, and they will demand it apply to founder shares already issued, so doing it now saves a painful renegotiation later.

What happens if a co-founder leaves before the cliff?

If your agreement is clean, they walk with nothing and the company buys back the shares at the nominal price recorded in the share issuance, usually CHF 0.01 to CHF 1.00 per share. If your agreement is silent, they walk with the full equity stake and you spend the next two years trying to buy them out at a price you cannot afford. The pre-cliff period is the most common exit moment, plan for it as the default rather than the exception.

Backdate the vesting start to the date of incorporation, not the date you formalise the contract. Founders routinely set up the AG in month one and sign the founders agreement in month six. If vesting starts at signature, those first six months of work earn zero vested equity. Backdating restores the time you already invested and aligns with what investors expect to see in the data room.

IP assignment, including the code you wrote on your laptop in 2024

Swiss copyright law (URG Art. 17) assigns work-product to the employer only for employees, and only for work created in the course of employment. A founder before incorporation is neither. Without an explicit assignment, the prototype you built last winter remains your personal property even after the company is registered. Add a clause that retroactively assigns all pre-incorporation IP to the company, with a CHF 1 consideration to make the transfer legally clean.

Do I really need a lawyer for this, or can I copy a template?

A template gets you eighty percent of the way and a Swiss commercial lawyer at CHF 250 to 450 per hour finishes it in three to five hours of work, so budget CHF 1'500 to 2'500 for the first version. That is cheaper than the same lawyer reviewing a broken cap table after a dispute, which starts at CHF 10'000. If the budget is genuinely zero, the Swiss Startup Association and Swisspreneur publish unbranded templates that are a reasonable starting point.

What this document is not

A founders agreement is not the articles of association (Statuten) you lodge with the commercial register, and it does not replace a shareholders agreement (Aktionärsbindungsvertrag, ABV) once you take outside money. It is a bridge document for the period between incorporation and the first priced round, typically twelve to twenty-four months. Keep it under ten pages. The day you sign a term sheet, the ABV supersedes most of it and the founders agreement becomes a historical artefact.

Do we have to file the founders agreement with the commercial register?

No. The Handelsregister only sees the Statuten (articles of association) and the public-facing officers. The founders agreement stays between the founders, which is part of why it can be candid about vesting, leaver mechanics and decision rights. Sign it on paper, store one signed original per founder, and keep a scanned PDF in the data room. That is the entire filing protocol.

The conversation that produces it

Block half a day, write the answers down, then ask a third party (a Swiss commercial lawyer, an experienced operator, or a board adviser) to read the draft before you sign. The third party is the one who catches the assumption you all share but none of you have stated out loud. Sign in the same room on the same day. A founders agreement that sits unsigned for a month is worse than no agreement at all, because it tells everyone in the room that the team cannot finish what it starts.