Header - S#16 / Founder Starts Competing Entity · Owner - Lukas · Date - 2025-09-07 · Version - v1 · Pass-Fail - Pending

Problem statement - Founder quietly seeds a NewCo and moves people, IP, customers, or contracts there, starving OpCo where the SPV holds equity and diverting exit value away from the SPV; we need hard IP and transfer fences plus fast remedies.

Legal vulnerabilities

• Weak or missing PIIA and assignment of inventions, so code and inventions sit with founder or contractors instead of OpCo.
• No or non-enforceable employee and customer non-solicit/no-hire covenants.
• Corporate opportunity and conflicts policy gaps allow routing deals to NewCo.
• Poor trade-secret hygiene (no access controls, logging, NDAs) enables misappropriation.
• Reserved matters missing, so founder can approve asset or IP transfers and licenses without an independent veto.
• No-leakage and aggregation absent, so value parks in side contracts, earn-outs, consulting, or IP splits.
• Pre-emptive and consent gaps let OpCo refresh the option pool and grant cheap equity to movers, diluting the SPV.
• No NY emergency arbitration or specific-performance hooks, slowing injunctive relief.

Regulatory risks

• Misrepresentation optics if the real business migrates to NewCo while tokens were marketed as “backed by the company” and resource allocations distributions continue.
• Securities-drift optics if paying while value is siphoned, so safest posture is auto-pause during disputes.

Market precedents

• Failures - Founder spin-outs with IP sitting outside OpCo, staff migrations, and side IP or licensing that leaves the shell behind.
• Survivals - Tight IP chain-of-title, no-leakage and aggregation, independent approvals for related-party deals, fast injunctive relief, and collars or true-ups at exit.

Proposed mitigations

• Big lever - Own the IP at OpCo: present-assignment PIIA, contractor flow-downs, repo ownership, invention disclosure and recorded assignments, plus confidentiality and trade-secret program with access controls, logging, exit certifications, and signed builds.
• Big lever - Independent brakes on transfers: reserved-matters schedule and dual-key for any asset or IP transfer, license, pledge, related-party deal, or waiver; founders not on signer lists.