Although we all hope for a quick return to stability, the current environment raises the possibility of an increase in down-round financings—private company financings in which the company has a reduced valuation from its prior financing round. In recent weeks, we have observed pressure on valuations and the emergence of more onerous, less company-friendly terms in several, though certainly not all, financing rounds. Down rounds raise a number of delicate and important issues for companies and investors, including impacts on employees and investors; fiduciary duty considerations for the company’s board (and others), along with a heightened risk of stockholder litigation; and oftentimes complex structuring considerations. In this alert, we provide an overview of such issues—to serve as a refresher for those who have been through down rounds in the past and as a primer for those who have not—as well as practical steps and suggestions in navigating a down round. [1] Recognizing these issues in advance can help a company and investors significantly mitigate the risk that can inhere in a down round.
