Founder agreements, vesting and the cap table you will be judged on

The cap table is read as evidence

An investor reading your ownership list is reading a record of decisions: who committed and stayed, who left and on what terms, who was paid in shares because there was no cash. They also check whether what is left will still motivate the people doing the work after two or three more rounds of dilution (utvanning).

Very little of this is private. The share register (aksjeeierbok) is open to anyone on request (Companies Act, aksjeloven, § 4-6), so the ownership list can be read before you are asked for it.

What decides the conversation cannot be read from the register: the options nobody has issued yet, the convertible loan outstanding, the pledge over a founder’s shares, and whatever was promised to an adviser three years ago.

Investor evaluation forms therefore ask for the fully diluted share count and the option pool as a percentage of share capital, and check the answers against the register afterwards.

The patterns that reliably cause trouble are few. Check your own list against them before anyone else does.

• Shares still held by founders who left.
• A long tail of small passive holders.
• Service providers who were paid in equity.
• Option or convertible overhang that nobody can quantify.

Messy cap tables and co-founder conflicts are among the things that kill deals outright. None of these makes a company un-investable by itself, but each needs explaining, and the explanation is where a raise loses weeks.

The founder agreement: a prenuptial signed while it is still easy

The founder agreement is a prenuptial agreement, signed while everyone is still friends. It is negotiated at the only point when nobody knows who will benefit from which clause.

“We trust each other” is the argument for signing, not for skipping. Trust is what makes the negotiation cheap. Without the document, the disagreement happens later, with lawyers, at the moment the company can least afford it, and usually with an investor watching.

Use the table as the agenda for the founders’ first session with counsel. Every clause is cheap to agree now and expensive once someone has left.

The document that carries all of this is a founders’ agreement with reverse vesting and an assignment of intellectual property. It is separate from the shareholders’ agreement (aksjonæravtale) you will later sign with investors, and it should exist before one.

Vesting and reverse vesting in a Norwegian AS

Investors expect founder shares to be earned over time. Capital goes in on the assumption that this team will build the company, and shares issued at incorporation were paid for with nothing but intent.

The Norwegian mechanics differ from the American ones. There is no stock plan under which shares are granted as they vest. Founders already own their shares, so the agreement writes the reverse: a buyback or call right, in favour of the company or the other founders, over a portion of the holding that shrinks as the founder serves time.

The price depends on how they leave. A good leaver (illness, an agreed departure, removal without cause) sells the unearned portion at a defined value. A bad leaver (walking out, or being removed for cause) sells at a punitive price, often the nominal value paid.

All of this is contract; nothing in the Companies Act creates it. The Act does constrain how the buyback is executed, and those constraints decide whether your clause can be enforced at all.

• A company may acquire its own shares only where the consideration fits within what it could distribute as dividend, the shares are fully paid, and the board acts under a general meeting authorisation limited to two years that states the maximum number of shares and a minimum and maximum price (§§ 9-2 to 9-4, jf. § 8-1). A startup with no distributable equity often cannot buy back its own shares at all.
• The alternatives are redemption through a capital reduction under the Act’s chapter 12, which needs a two-thirds majority and a creditor notice period, or a transfer of the shares to the remaining founders or to someone the company designates.
• Any of those routes is a share transfer, and share transfers run into the statutory defaults. Acquisition requires the company’s consent, decided by the board, with consent deemed given if no refusal is notified within two months (§§ 4-15 and 4-16). The other shareholders hold a pre-emption right (forkjøpsrett) over shares that have changed owner unless the articles say otherwise, exercisable within two months of the company being notified (§§ 4-19 and 4-23).

Badly drafted leaver clauses fail on the last point. If the agreement sends a departing founder’s shares to the remaining founders pro rata, but the articles leave the statutory pre-emption right in place, every other shareholder can claim a share of them.

Either mirror the leaver mechanics in the articles of association, or pair the clause with standing consents and waivers from everyone who could otherwise block or intercept the transfer.

Price deserves the same care. Where the statute prices an exit it uses actual value (virkelig verdi), on redemption after a refused consent and on the exercise of a pre-emption right (§§ 4-17 and 4-23). A contract may instead pre-agree a formula: nominal value for a bad leaver, book value, or a discount to the last round.

Such clauses are valid as contract, but an outcome that is grossly unreasonable can be set aside or revised under avtaleloven § 36. A bad-leaver price of zero on a founder who worked for three years invites that argument.

On tax, the starting point is Skatteetaten’s principle statement of 28 March 2022 on share incentive models. Where a shareholder acquires shares at market value on real commercial terms, no employment income arises at acquisition; substance governs over labels; and where the holder carries no real capital risk, a gain can be reclassified from capital income to employment income.

A personal shareholder’s sale of shares is taxed under the shareholder model: the gain is multiplied by an upward adjustment factor before ordinary income tax applies, which lifts the effective rate well above the headline rate on ordinary income. Skatteetaten sets the factor annually and publishes it with the rate.

No Skatteetaten guidance located addresses whether agreeing a reverse-vesting or buyback condition on shares a founder already owns is itself a taxable event. Nor does any address a leaver buyback at nominal value where market value is higher, for the departing founder’s loss or for any benefit to the shareholders who remain.

Take both questions to an adviser before the clause is drafted.

Dead equity: the departed co-founder problem

Dead equity is equity owned by people who are no longer building the business. It leaves fewer shares for the people doing the work, and the next investor is asked to fund a company where part of the upside already belongs to someone who stopped.

It is almost always created the same way. Three founders take equal thirds at incorporation, one leaves within the year, and because nothing was signed, they leave with a third of the company. Nobody behaved badly; the document that would have handled it did not exist.

No source states a percentage at which dead equity becomes fatal, so be suspicious of anyone who quotes one. Investors price it and test whether it can be moved. The ways out, in the order they usually work:

1. Buy the shares back, subject to the constraints above. This costs cash the company usually does not have, and the price is a negotiation with someone who does not have to sell.
2. Renegotiate the holding down, typically to a stake that reflects the time actually served, sometimes with a small retained position so the departing founder keeps an interest in the outcome. This works when the departure was amicable and both sides prefer the company to succeed.
3. Disclose it and defend it. A departed founder holding a defensible stake, with the reason documented and the relationship intact, is a fact an investor can price. A departed founder nobody has spoken to in two years, whose signature the round will need, is a risk they cannot.

What does not work: leaving it off the slide, describing the holding as “being sorted out” when no conversation has happened, or relying on a side letter the shareholder never signed.

The ownership arithmetic investors run forward

An investor pricing a round runs the ownership forward. The question is whether the founding team will still hold enough after this round and the next two to stay in the company and take the risk.

The arithmetic is multiplicative. Each round dilutes what is left of the previous position, and the option pool dilutes it too, usually before the money comes in. Run your own cap table through the same steps before you set an ask, so the number you quote survives the investor’s spreadsheet.

Those numbers show the multiplication and nothing about your rounds. Carta’s Founder Ownership Report 2026 finds that the median founding team retains about 56 per cent of fully diluted equity by the time it raises a seed round, falling to 36 per cent by Series A, from US companies on Carta’s platform between 2021 and 2025.

Norwegian rounds are smaller and more often angel-led, so American Series A medians overstate how far a Norwegian company is diluted at the same stage. Use the direction, not the figure.

Fully diluted means every share that would exist if all options were exercised and all convertibles converted, counted at their terms. Overhang counts even when it is undocumented. A convertible loan with an uncapped discount is a dilution you cannot yet size, so an investor will ask you to size it before agreeing a price.

Repairing a cap table before the raise

Take the repairs in order of cost, cheapest first. The early ones need only the founders’ signatures; the later ones need cash, corporate steps and other people’s goodwill.

Sign the agreement. If the founders have never signed anything with each other, start here; it can be done in weeks. It cannot rewrite the past, but it fixes the terms going forward (work obligations, leaver mechanics for whoever leaves next, IP assignment, transfer restrictions), and its absence is a finding in its own right.

Add vesting where there is none. Reverse vesting applied to existing founders is a change to their own holdings, so it needs their agreement, and the founder most reluctant to sign is the one the investor is most concerned about. Doing it before an investor requires it is a materially better negotiation than doing it after.

Then the buybacks. These need cash or a capital reduction, plus the corporate steps above, plus a willing counterparty. Start the conversation early, because the timeline is set by the other person’s availability and mood.

Then the structure. Holding companies for founder shares are legitimate and common in Norway. Expect the shareholders’ agreement to treat a change of control in a founder’s holding company as a transfer of the underlying shares; otherwise selling the holding company is a way around the consent and pre-emption rules, and investors close that gap by contract. If founders are moving shares into holding companies, do it before the round.

Disclose the rest. In the investment agreement founders warrant personally that the picture they have given is complete: ownership of the intellectual property, no third-party claims, taxes and VAT paid, valid contracts, no disputes, and full disclosure. Applied to the cap table, that means no undisclosed rights, options, convertible claims or pledges over the shares.

If a warranty turns out to be wrong, the investors have a claim against the founders personally, or take compensation shares instead. An undisclosed promise is therefore a personal liability with your name on it. Anything you cannot fix, write down and hand over.

Where you start depends on where the company is. Most founder companies fall into one of these.

• Two or three founders, nothing signed, no outside money. Sign the founders’ agreement with reverse vesting and IP assignment now; there is nobody else to consult. Put the leaver mechanics into the articles at the same time, while the founders are the only shareholders who need to vote.
• A founder has already left. Open the conversation before you approach investors. If the departure was amicable, start by renegotiating the stake down; a buyback needs distributable equity you probably do not have. Document the reason for the departure and the terms either way.
• Angels or friends and family already on the register. Every consent and waiver a leaver transfer needs now takes their signatures too. Collect standing waivers when the founders’ agreement is signed, and check the articles for the pre-emption right before any founder share moves.
• A convertible loan outstanding. Size it at every plausible conversion price before you set an ask. An uncapped discount is the first thing the investor will ask you to quantify.