11 minute read | July.27.2023
Orrick's Founder Series offers monthly top tips for UK startups on key considerations at each stage of their lifecycle, from incorporating a company through to possible exit strategies. The Series is written by members of our market-leading London Technology Companies Group (TCG), with contributions from other practice members. Our Band 1 ranked London TCG team closed over 320 growth financings and tech M&A deals totalling US$9.76bn in 2022 and has dominated the European venture capital tech market for 29 consecutive quarters (PitchBook, Q1 2023). View previous series instalments here.
With a decline in amounts invested, deal volume and valuations so far in 2023, whilst deal terms have generally continued to be relatively company-friendly we have seen a slight uptick in down rounds. So, what is a down round? In the fourteenth instalment of Orrick's Founder Series, our Technology Companies Group offers key guidance for UK founders on what they should be thinking about when considering a down round.
1. What is a down round? When a company undertakes a financing round in which it issues new shares to investors at a price per share that is less than the price per share paid up on a previous financing round, this is colloquially known as a “down round”.
While sentiment towards a down round is generally negative, founders should remember that they are driven by the broader macro-economic environment that impacts company valuations, rather than being a sign that a company’s business is less attractive.
Where there is limited deployment of late-stage capital, a restrictive IPO market and a prior period of inflated valuations, you can expect to see more companies going being subject to down rounds.
2. What is the impact of a down round?
3. Alternatives to a down round (terms). There are several levers a founder can pull when faced with a down round. Founders should consider the implications of each option:
Founders should carefully balance such terms against their overall impact on existing share classes. See our Deal Flow 3.0 report or speak to us directly for insights into which terms are considered more / less commonplace in the market.
4. Alternatives to a down round (structures). During challenging macro-economic climates, other structures offer alternatives to raising a down round:
5. What is anti-dilution? Anti-dilution rights enable investors, holding shares with such rights, to avoid being diluted in a down round.
Anti-dilution provisions are commonly implemented using one of two methods:
The most common method of the two is the bonus issue. It has the advantage of providing immediate certainty as to the dilutive impact and capitalisation of the company following a down round. By contrast, the conversion rate method doesn’t provide such certainty to shareholders until a future conversion event (which may, for example, be triggered by an election by the relevant shareholder or automatically on an IPO).
6. Impact of different anti-dilution constructs. The extent to which the anti-dilution ratchet avoids dilution of investors’ shareholdings will vary depending on whether the full ratchet, broad-based or narrow-based weighted average ratchet is used. Such ratchets will result in a different number of bonus shares being issued to investors who have the benefit of the anti-dilution right, and any dilution will flow to and impact shareholders who do not have such a right.
7. Will investors waive down round protections? Anti-dilution rights represent percentage ownership protection for investors benefiting from them, rather than price protection. Accordingly, you should consider whether greater upside protection could be provided to the relevant investors as sweeteners for a waiver of such rights. A waiver of anti-dilution rights will ultimately protect the future signalling of the company and the investors’ existing investments.
8. Key considerations when negotiating anti-dilution provisions. At the outset (during term sheet negotiations), consider whether anti-dilution rights are appropriate – pessimistic investors often use anti-dilution provisions to protect against an overreaching and optimistic valuation. Accordingly, ensure that your valuation is realistic when you’re negotiating your financing round. This should mitigate against the impact of anti-dilution rights and other downside protection mechanisms used by investors on future rounds. Other considerations include:
9. Ensuring good corporate governance. A company that proceeds with a down round must practice good corporate governance. Appropriate corporate authorities should be put in place and the board should manage investor relationships to ensure such corporate authorities can be duly passed by the requisite number of shareholders to enable the down round to proceed.
The board also should document that it has explored all viable alternatives before authorising the down round, noting the factors that have driven the company to undertake a down round (for example, the fundraising conditions, broader macro-economic environment, etc.).
Directors must be mindful of their statutory duties prescribed in the Companies Act 2006 and ensure they can document that they have acted in the best interests of the company and discharged their other duties. See the eleventh instalment of the Founder Series for more information around Complying with Directors’ Duties.
10. The last resort. Liquidation may be the company’s only viable option if it is unable to raise financing, faces pushback from investors who are no longer willing to back the business and if all other alternatives have been exhausted. See the ninth instalment of the Founder Series for more detail on what founders should consider when Steering a Company Through Financial Difficulties.
Our London TCG practice reflects London’s role as one of the world’s leading financial markets and a centre for international commerce. Nothing inspires us more than helping tech companies develop novel strategies and push boundaries. Through our extensive client portfolio, deal volume, and relationships in the tech ecosystem, we provide commercial and legal insight to each company’s strategy. We work with tech companies on all aspects of their business plans, financing strategies, protecting intellectual assets, retaining talent, securing and monetising data, and advocating for innovation-friendly public policy.
If you would like more details on any of the issues above, please contact Jamie Moore.