Over the holidays, I finally got around to reading Bad Blood, the story of the rise and fall of the blood testing startup Theranos and its founder, Elizabeth Holmes, written by the Wall Street Journal investigative reporter, John Carreyrou, who broke the story that led to the company’s downfall. I cannot recommend the book more highly. However, you’re not here for book reviews, so let’s move on.
In early 2015, I wrote about SAFE instruments, which I then had heard about but not yet seen in my practice, with a gently mocking but grudgingly intrigued tone, which likely resulted from the trend having originated on the West Coast. (As a native New Yorker, I have been trained to roll my eyes at each new development from California and then promptly forget about that when I incorporate it into my life.) With over three years of experience with SAFEs in my practice, I thought it appropriate to update my post, less the cynicism, since they have become pretty common and accepted in the world of early stage corporate finance.
A SAFE instrument (Simple Agreement for Future Equity) is an alternative to convertible notes for startups seeking bridge financing to keep the lights on until they can raise substantial funds in a true equity round. Y Combinator offers open source SAFE equity forms with some background information. With a convertible note, the seed investor acts temporarily as a lender, with the note being converted to equity if and when the company completes a qualifying equity financing. With SAFE equity, the investor simply receives the right to receive preferred equity when the qualified financing is completed, without the need to temporarily treat it as a loan. There is no interest, maturity date, repayment terms or any other provisions that you’d associate with a debt instrument.
SAFE promoters correctly point out that these seed investors are not ultimately seeking a debt-like steady return on their investment. As early-stage equity investors, they have more of a high risk/high reward orientation. Convertible notes are usually not repaid in cash. The more likely scenarios are that (1) they are converted into equity, or (2) the company fails to complete a financing and realistically is not able to pay back the note. In the first scenario, the accrued interest adds to the amount of shares issued upon conversion, giving the investors a windfall that they would not have expected by making a simple equity investment. With SAFEs, the investment is treated like an equity instrument, which reflects the intent of both parties.
The SAFE folks also tout the relative simplicity of the SAFE documentation. There is only one five-page document to be executed, and there aren’t a lot of moving parts requiring much customization. Essentially, the parties need to only agree on whether there is a cap on the valuation of the later financing for purposes of determining the number of shares to be issued to the investor, and whether the investor receives a discount on the conversion price when the later financing is completed. In fairness, convertible notes are themselves fairly simple and are used because they are themselves much simpler than VC equity documents, but SAFE equity appropriately combines simplicity with avoiding introducing debt concepts where not intended.
Finally, the absence of a maturity date with SAFEs takes the time pressure off of the company to complete the equity offering within a particular timeline, though investors may prefer having such a deadline in place to incentivize a quick completion of an offering.
Business professor Adam Grant, writing in the New York Times, argues that business networking activities are overrated. (Grant is the author of Give and Take, one of the rare business advice books that I have actually read. It’s worthwhile.) Formalized networking events, Grant argues, are not only uncomfortable (we knew that already), but they’re ineffectual as a means of building real professional connections. Instead of using networking to seek to achieve things, he contends, we should reverse the order and use our great achievements to build a network.
William D. Cohan, writing in the New York Times’ DealBook, characterizes the third-party valuations of private companies under Section 409A of the Internal Revenue Code as Silicon Valley’s “dirty little secret” and a “shell game.” Especially in the aftermath of the financial crisis, there has been plenty of populist rhetoric about practices in the business world, and much of that criticism has had basis in fact, but this take on 409A valuations seems awfully strained.
As described in Cohan’s article, Section 409A and the related rules require that companies obtain independent valuations in connection with their issuance of equity-based awards to employees, and failure to comply results in tax penalties. Cohan details the fact that various service providers charge significant fees to undertake these valuations, using words like “supposed” experts to make the whole enterprise seem like a racket, but the reality is that the rules do exist, and these valuations have to be done. If it was possible for just anyone to make up a valuation for a bargain-basement fee, heck, I would consider doing it as a side gig from my legal work. But the rules actually go into detail as to the required qualifications for firms providing these services. Cohan notes in the article that the SEC would not comment on these practices, but this is really more of an issue of tax law than securities law. What constrains companies and their hired valuation help from simply making up numbers out of thin air is the fact that their decisions are subject to later IRS scrutiny and sanctions.
The Wall Street Journal reports on a study finding that startups that have a founder staying on as chief executive or chairman past the first two years following inception have a significantly lower valuation, on average, than companies who replace their leadership during that period. The study’s author attempts to explain the difference in valuation by focusing on the relative attributes of founders versus executives that are brought on later. In other words, founders may have the inspiration to get the startup conceptualized and off the ground, but professional executives have a different and necessary skill set that the company needs at a later stage.
This may be part of the explanation, but it seems to me to be confusing correlation and causation. There may be a reason other than the qualities of the founders themselves that account for the different performance. One possible alternate factor is the manner in which startups are funded. Startups that receive venture capital funding are, in my experience, more likely to see a change in leadership, sometimes imposed by the venture fund as a condition to investment. On the other hand, startups that are funded by less heavy-handed capital sources (friends and family money, bank loans, etc.) are more likely to have the founders continue in their role indefinitely.
Venture capital firms can contribute far more to a company’s success other than providing new executives to replace the founders. Particularly if the firm focuses on a specific industry, the firm will have seen and invested in many similar companies and will be able to provide useful advice that would not be available to startups that rely on non-VC funding. Such expert guidance from investors could account for significant differences in company valuation. In addition, VC firms generally invest more than a startup needs to spend immediately, so the simple fact of there being more cash in the bank could lead a VC-backed startup to have a higher valuation than one that isn’t VC-funded. [Read more…]