A simple agreement for future equity (SAFE) isn’t always so simple...
A simple agreement for future equity (SAFE) isn’t always so simple. Before startups and investors consider this increasingly popular security, it is important to understand how SAFEs work.
To start, a SAFE is an agreement between an investor and a business in which the business promises to give the investor a future equity stake in the company if certain triggering events take place, usually a contemplated subsequent round of financing or, less often, the sale of the company. A SAFE is usually offered in a very early round of equity funding by a startup business. They were first used in Silicon Valley as a way for venture capital investors to quickly pursue an investment opportunity in a hot startup while avoiding the lengthy and often complex negotiations required for an equity offering.
SAFEs Can Be A Great Tool for Startups
SAFEs are a relatively recently popularized investment tool. The new security is attractive to startups because it allows them (along with other untested businesses) to avoid the difficult issue of valuation when there are no revenues or a new market approach by an operating business with revenues. It resolves that valuation issue by allowing for the subsequent realistic measure of valuation by future investors in a subsequent round. SAFEs are also appealing because they reduce the risks of insolvency associated with common stock, and usually act with the rights similar to preferred stock. They are also less costly in terms of legal expenses and easier to negotiate.
Unique Risks of SAFEs
While a SAFE can be attractive to both investors and startups, it is important to recognize that the security comes with unique risks. It is very different from both traditional common stock and convertible notes.
With common stock, investors receive an ownership stake in the business, which also comes with certain rights under state and federal law. Meanwhile, convertible notes are debt obligations in which the investor agrees to loan money to the business. In return, the investor receives a promise of repayment, interest on the loan for a designated time period, and an ability to convert the outstanding amount into equity of the company at some triggering event. Unlike SAFEs, convertible notes typically represent a current legal obligation by the company to the investor with a specific maturity date for repayment of the outstanding amount of the note.
SAFEs, on the other hand, may never be triggered and may never convert to equity, leaving investors with nothing in return, except the same rights as attendant to preferred stock issuances, if any, until a liquidation event. Although many SAFEs are converted into equity upon an offering of preferred stock, startups may also raise capital via additional SAFEs, convertible notes or conventional bank loans; these fundraising tools might not trigger conversion.
Key Provisions of a SAFE
The provisions of a SAFE can vary significantly. Below are several key provisions that investors and startups should carefully consider:
Conversion: The terms governing conversion will determine whether the amount invested via the SAFE is converted into equity. Triggering events may include any equity offering, the business being acquired by or merged with another company, or the company conducting an initial public offering of securities.
Repurchase rights: Such provisions allow the company to repurchase an investor’s future right to equity instead of it being converted to equity.
Dissolution rights: The provisions govern what happens to an investor’s SAFE and the money invested if the company ends up dissolving.
Voting rights: While SAFEs don’t come with voting rights like common stock, the agreement may authorize investors to vote on certain matters related to their SAFE.
Given that there is no “standard” SAFE, it is essential that investors understand how the terms of a particular agreement will impact your legal rights. For startups, working with experienced legal counsel can help ensure that agreements are negotiated to address your unique business interests.
If you have questions, please contact us
If you have any questions or if you would like to discuss these issues further, please contact Dan Brecher or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.
What Business Owners Get Wrong Before Meeting a Litigation Attorney
What should you expect when meeting a litigation attorney about a business dispute? You should expect to describe the dispute in your own words, hand over the most important documents, flag any deadlines or immediate threats, and leave with a clearer picture of the problem, what information is still needed, and the likely next steps. […]
Arbitration vs. Litigation vs. Mediation: What New Jersey Businesses Should Know Before Signing a Contract
Arbitration resolves disputes privately before an arbitrator whose decision is usually final, while litigation resolves them in court with full rights of appeal. Whether a business ends up in arbitration or litigation is often decided when it signs the contract, long before any dispute arises. Key Takeaways When facing a contract dispute, carefully consider your […]
Can You Own Part of a New Jersey Business Without a Written Agreement?
Can you own part of a business in New Jersey without a written agreement? Yes, it is possible. Under New Jersey’s Uniform Partnership Act, a partnership can arise when two or more people carry on a business as co-owners for profit, whether or not they ever intended to form one. Ownership doesn’t necessarily depend on […]
Crisis-Proofing Your New Jersey Business: Building a Crisis Response Plan Before You Need One
For New Jersey businesses, crisis preparedness should be viewed as a legal and operational function, not simply an emergency-management exercise. A well-designed crisis response plan can help preserve evidence, protect confidential communications, meet reporting obligations, limit unnecessary exposure, and prevent an already difficult situation from becoming a larger legal problem. Key Takeaways A serious crisis […]
Monmouth County's Next Development Wave: What Developers and Investors Need to Know
Monmouth County is entering a significant new phase of development. For those looking to acquire property or undertake a new project, understanding the market opportunity is only the beginning. The more important question is whether a particular property can actually be developed as contemplated and what approvals, agreements, and other conditions will be required to […]
Are Your Conversations with AI Shielded from Discovery? Courts Are Split
Whether a client’s prompts to a generative AI tool and the documents it produces are protected from disclosure depends on the case type, who claims protection, and whether counsel was involved. In United States v. Heppner, a New York federal judge ruled that a criminal defendant’s communications with an AI platform were protected by neither […]
No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.
Sign up to get the latest from our attorneys!
Explore What Matters Most to You.
Consider subscribing to our Firm Insights mailing list by clicking the button below so you can keep up to date with the firm`s latest articles covering various legal topics.
Stay informed and inspired with the latest updates, insights, and events from Scarinci Hollenbeck. Our resource library provides valuable content across a range of categories to keep you connected and ahead of the curve.
Let`s get in touch!
Sign up to get the latest from the Scarinci Hollenbeck, LLC attorneys!
