A: Hi - what does the contract say? We are looking for the choice of law clause. If the contract provides for NY choice of law then fantastic! You hire an attorney in New York, send them a demand letter and file in a New York State Court - on the day after the expiration date for your letter. Once you get your judgment in New York, you hire a collections attorney in Montana to go collect your judgement (if they won't pay up - its amazing how much they are willing to pay when you get a local lawyer to put a lien on their house!) If the choice of law clause says Montana - you can (i) be certain and hire a lawyer in Montana and follow the same process or (ii) be aggressive, hire and file in New York, just to ensure that they have to hire a New York lawyer to get the case dismissed. The second situation would be if you think they would rather settle with you than pay someone in New York to get the case dismissed. There is a lot of strategy to consider - but the most important thing in any of this is to be decisive and move forward with a lawyer quickly once you decide on a course of action. I've seen clients who had stronger cases lose in the end because the other side was aggressive in Court and had their lawyer on a retainer immediately and filed before my client could finish "considering her options."
A: Both SAFES (Simple Agreements for Equity) and Convertible Notes "convert" into equity. The fundamental difference between the two is that SAFES have no built-in interest rate and have no "end date." Convertible Notes are debt so they have an interest rate and after a certain period of time (perhaps two years in most cases) they can be "cashed in" by the holder who can force the start-up to pay back the investor (principal plus interest).
SAFES have become very accepted in the investing community at this time and I always recommend that a start-up issue SAFES (and conversely I always recommend that an investor get a convertible note).
A: Start-ups do raise capital through the use of Convertible Notes. Convertible Notes are starting to fade as the preferred sort of convertible instrument for start-ups and as SAFES become more prevalent.
Convertible Notes are still quite common in more "traditional" start-up industries, such as those that involve real estate, manufacturing and other legacy industries.
A: It depends. In many cases the lawyers representing the seller draft the asset purchase agreement. This is not always the case and at least forty percent (40%) of the deals I have worked on have featured the buyer drafting the asset purchase agreement.
Who drafts the agreement may often depend upon who is in a stronger position and/or who has attorneys with the bandwidth to properly support the deal, as envisioned in the relevant term sheet.
