The New Convertible Equity Document for Early-Stage Startup Financing, Created by Nova Law
Brief History of Convertible Equity Documents.
Early-stage startups often need to raise capital before the company is ready for an outside valuation. The convertible note, which was spawned from the bridge loan, initially solved this problem. As a loan with interest, the note will convert into preferred shares if the company raises a priced round before the maturity date (a funding round in which a newly created class of shares are purchased) at a discount to the price paid by the investors in that priced round.
If the company is able to raise a priced round, then the equity will likely ultimately be more valuable than being repaid plus (2-8%) interest. Often there is a minimum qualifying financing amount (e.g., $1M) before the note converts so the company cannot just eliminate the repayment obligation by raising a small priced round to convert the note. If there is no priced round (or not large enough), the note is repayable on the maturity date, just like a traditional loan.
The convertible note provided a way to kick valuations down the road while giving those very early investors adequate risk protection (repayment) and upside benefit (preferred stock at a discount). However, there were issues. The looming maturity date caused companies to have priced rounds before they were ready, raise more than needed to meet the qualifying amount, or focus on profitability over growth and R&D (which would make the company and future preferred shares more valuable) in order to repay the loan. In the worst case, a startup can be liquidated if it is unable to raise an adequate priced round or repay the note.
In 2013, Carolynn Levy of Y Combinator created the Simple Agreement for Future Equity, or as everyone knows it, simply the "SAFE." The SAFE solved many issues with the convertible note. Convertible note lenders were really giving startups capital because they wanted equity in a successful startup, not to be repaid. The SAFE acts more like a document for future equity by removing the maturity date and interest rate. It also corrected the shadow stock problem with convertible notes. In 2018, YC released a second version of the SAFE for reasons explained here.
Why create a new convertible equity document?
Over time, it has become clear that there are also issues with SAFEs. The lack of a maturity date being most notable. While the maturity date was clearly an issue with the convertible note, removing it altogether was not the right move. This makes the SAFE appropriate only for companies that absolutely plan to raise venture capital (and do) to convert the SAFE. Otherwise, nothing happens. If the company becomes so profitable it doesn't need to hold a priced round, the SAFE holder never receives equity and the company is never obligated to repay the SAFE. Obviously, this is a problem.
Additionally, the SAFE has become ubiquitous. The term is now used to describe all types of convertible equity instruments, including extensively modified "SAFEs." Calling all convertible equity documents SAFEs is misleading to investors and no longer provides the benefit of reduced legal costs for either party.
Lastly, YC notes that the biggest advantage of the post-money SAFE is the ability to immediately calculate the amount of ownership sold. However, there has been plenty of criticism regarding the increased founder dilution caused by the new SAFE. Founders are confused as to which version to use or even that there are different versions (the pre-money version is no longer on YC's website and difficult to find online). By only featuring the post-money SAFE, YC makes clear it is trying to push this new "standard" in the market.
As lawyers to startups, this is not a standard we agree with. Many startups raised capital responsibly under the pre-money SAFE (and we will release conversion modeling and planning tools). Once educated on the difference in dilution between the two SAFEs, founders always choose the pre-money version.
That said, the post-money SAFE did include useful updates (e.g., additional equity-like features). As a result, the best SAFE is now a hybrid of the two versions which only an experienced startup lawyer can create (eliminating the cost saving benefit of a standard document).
What is the NOVA?
Nova Law created the NOVA, a fundraising document for early-stage startups that incorporates the equity-like features of SAFEs, clever edits seen in the wild, and additional logical terms (e.g., a maturity conversion) missing from the SAFE in all its intended brevity. This new convertible equity instrument is not a SAFE and it would be misleading to call it that.
"NOVA" is the feminine nominative singular of the Latin word "novus" (meaning "new"). The term also refers to the sudden extreme increase in the brightness of a star.
Every term in the NOVA exists for a reason, as outlined below. The NOVA is slightly longer than the SAFE, however it is better organized and easier to quickly ascertain the most pertinent information. Variable terms are laid out in the introduction so investors don't need to search through clauses to find the numbers they care about most (e.g., minimum investment for pro rata rights or the multiple payable in a liquidity event).
A "NOVA Series" is a funding round in which multiple NOVAs, all with uniform terms, are issued to raise up to the aggregate total Series Amount. When the NOVAs converts into the "NOVA Series I Preferred Stock" (e.g.), the liquidation preference per share, anti-dilution conversion price, and dividend amount will be based on the price per share paid by that NOVA Series. This is not a novel concept, but keeping the instruments organized from the beginning is invaluable.
Any unique NOVAs would necessary need to be issued a different series of preferred stock based on the price per share actually paid by that NOVA holder. Such one-off documents create too much complexity on the cap table. Setting the NOVA as part of a uniform, organized, non-negotiable series reduces complexity upon conversion and makes it easier for the company to draw a hard line on its terms.
Listing the intended total Series Amount also creates transparency and shows investors that the company is planning its funding rounds (and not using NOVAs for unorganized fundraising - a common issue with the pre-money SAFEs).
Valuation Cap & Discount
SAFEs and convertible notes come in 4 flavors (both valuation cap and discount; valuation cap only; discount only; and MFN (most favored nation)).
The NOVA offers similar options, but with two different MFN versions:
NOVA: Valuation Cap & Discount
NOVA: Valuation Cap only
NOVA: Discount only
NOVA: Friends & Family MFN
NOVA: Bridge MFN
The NOVA Bridge MFN is meant for true bridge rounds. In typical MFN fashion, the holder is entitled receive the more beneficial terms as subsequent investors.
The NOVA F&F MFN, is meant for the earliest funding round and may not convert for a long time. Rather than just receiving the same terms as the next NOVA series or a discount to the priced round, the F&F MFN will receive a discount to the next NOVA series (a "super MFN"). This clever modification was introduced by José Ancer of Silicon Hills Lawyer in his F&F SAFE Template and it made sense to make this a standard NOVA option.
The details of each option are too complex for this page. For very early-stage startups, the Friends & Family MFN or discount MFN are best. Early-stage valuations are a shot in the dark and valuation caps have caused serious issues with fundraising strategies; an overvalued cap can result in a future down round (a common problem); an undervalued cap creates too large of a discount (e.g., a $5M cap that converts on a $20M priced round equals a 75% discount). Or, VCs may anchor the company's valuation to the undervalued caps and acquire a larger percentage for the same investment amount.
Pro Rata Rights
The pre-money SAFE gave every SAFE holder an automatic right to purchase its pro rata share of securities sold after the equity financing via a separate pro rata rights agreement. This pro rata right was given to all SAFE holders regardless of how nominal the purchase amount which caused issues with VC investors. The awkward language made it unclear whether the SAFE holder could participate in the priced round, or the financing round after that, or if the company was supposed to hold a separate sale for the SAFE holders after or concurrent with the initial priced round. Consequently, VC investors often negotiated to amend or remove this right altogether. The newer SAFE does not include a pro rata for SAFE investors, and YC instead provides a separate pro rata rights template letter on its website which the company can offer to specific investors.
Pro rata rights are very important to early-stage investors because they will be significantly diluted as the company grows and raises more capital. The best approach is to offer a pro rata right to participate in future NOVA rounds (not the priced round) for a minimum investment amount (set by the company). This incentivizes larger investment amounts and the company doesn't have to renegotiate with all NOVA holders at its Series A if the VC doesn't want to honor the right. The minimum Pro Rata Right amount is on the first page of the NOVA.
Although the Toptal situation is the most infamous, there are many discrete SAFE holders whose investment will never entitle them to more than a 5-page document. The lack of a maturity date or maturity conversion incentivizes irresponsible fundraising; SAFEs have enabled startups to raise Series A size rounds without any repercussions at all. If the company becomes profitable enough (or can use the SAFE funds to scale) raising VC funds may be unnecessary (and/or undesirable). If this is truly an instrument for future equity (without a repayment right), then a priced financing round should not be the only conversion trigger.
If a priced round doesn't happen (for whatever reason), the NOVA will convert into equity at the Maturity Date. Based on experience with early-stage startups, a date between 3 to 5 years is recommended. This gives the company a chance to develop without the pressure of the maturity conversion, but prevents a complete deadlock situation. If the company issues more NOVAs, the larger NOVA holders will have a pro rata right to invest in those future NOVA series. That the NOVA will definitely convert into equity at some future point incentives better planning and tracking of funding rounds.
The newer valuation cap version of the SAFE is known as "post-money" because the cap is based on the value of the company after the investment. The cap in the "pre-money" SAFE is based on the value of the company before counting the new money coming in (to be clear the pre/post-money issue only applies to SAFEs with valuation caps, not discount only SAFEs).
Using the post-money valuation cap makes it possible to immediately calculate the percentage of the company being purchased/sold simply by dividing the investment amount by the post-money cap (e.g., a $500K SAFE with a $10M cap = 5% of the company). This feat of investor-friendly drafting was accomplished by changing the definition of "Company Capitalization" to include all "Converting Securities." Converting Securities is defined as that SAFE, all other SAFEs, and any other convertible securities issued prior to the conversion of the SAFE. The percentage of the company purchased with each SAFE will remain static through all future funding rounds until the SAFE converts so that only the company's common shareholders take the entire impact of the dilution (but the SAFEs will not be diluted by each other).
The severely dilutive impact of the post-money SAFE essentially punishes the company for raising capital through convertible instruments. The NOVA's definition of Company Capitalization does not include other NOVAs or any other convertible instruments. Founders are strongly recommended to plan out fundraising rounds and using pro forma models (which is our next project).
SAFE holders are paid the "Cash-Out-Amount" (the SAFE purchase amount) upon a liquidity or dissolution event. The Cash-Out-Amount mimics a 1x liquidation preference given to preferred stock. In the spirit of future equity, the NOVA more closely resembles preferred stock rights by making the liquidation preference a negotiable feature (the Liquidity Rate). The Liquidity Rate is the multiple on which the NOVA purchase amount will be paid out in a liquidity or dissolution event. While a 1x multiple is generally fair, a greater multiple (1.5x; 2x) may be more appropriate for riskier startups and those startups may receive more funding interest under the NOVA.
Alternatively, NOVA holders have the right to payment on the Liquidity Conversion Amount (using the valuation cap for discount rate for conversion into preferred stock) and to participate pari passu with the common stock on an as-converted to common basis if that method results in a larger payout for the NOVA holder.
Another equity-like feature YC added to the SAFE is the dividend right. The original SAFE explicitly stated that the holder was not entitled to any rights of a shareholder, including the right to vote and the right to receive dividends. The new SAFE added a right to a dividend if and when a dividend is paid on the common stock.
This makes sense. Although dividend rights are generally only offered by mature (mostly public) companies, it is not unheard of for startups to become extremely profitable (and never convert funding instruments). If the board declares a dividend payment before the NOVA has converted, the NOVA holders receive the same benefit on an as-converted to common basis. The also aligns with the purpose of a document for future equity.
The convertible note is an "equity-like" debt instrument which is treated as an open transaction by the taxing authorities since it may become repayable. The more equity-like SAFEs do not have a maturity date or interest rate and founders and investors generally view SAFEs as deferred or unpriced equity (not debt). However, the tax treatment of SAFEs has been wildly uncertain with tax authorities often viewing the SAFE as a derivative instrument, similar to a variable prepaid forward contract. This can cause issues with the company's creditors because it gives the SAFE holders a legal priority repayment on par with those creditors in a dissolution.
Convertible equity instruments that have no right to be repaid are not debt and should be treated the same as preferred stock in a dissolution (paid out after creditors, but before the common stock). To negate the SAFE's unpredictable tax treatment, YC added an express liquidation priority to the new SAFE. This concept was included in the NOVA with an updated negotiable liquidation preference (the Liquidity Rate).
In any liquidity or dissolution event, the NOVA holders will be paid out as if the NOVAs had first converted into preferred shares. NOVA holders who opt to use the Liquidity Preference will be paid after the company's legitimate creditors/debt holders, but before the common shareholders. NOVA holders who opt to use the Liquidity Conversion Amount will be paid out par passu with the common shareholders (after creditors and after the Liquidity Preference NOVAs) on an as-converted to common basis.
For the avoidance of any doubt (by the taxing authorities), YC also added a clause in the new SAFE expressly stating that the SAFE is intended to be treated as equity (specifically, common stock) for tax purposes. While there is no guarantee that the tax authorities will agree, we like the clarity it adds and that the investor also agrees to treat the instrument as equity for its own tax purposes.