Friends,

In last month’s newsletter, we drilled down into venture capital financing trends in the equity markets. Due to several contributing factors, venture capital investors reduced their investments and became more strategic about where they allocated their capital.

This month, we reflect on the venture debt market and recent trends we are seeing. In 2023, the aggregate amount of U.S. venture debt capital issuance fell to only $30.2 billion, nearly 28% lower than its peak in 2021, and the total deal count dropped to 1,483 in 2023, the lowest since 2017.

Why venture debt, some may ask? When an emerging growth company raises a round of equity financing from a venture capital firm, a venture debt facility can be secured for an 18- or 24-month period for a minimal commitment fee and expenses. If equity is not available or at the right price, the company can then draw on the debt facility when needed in the amounts required to extend its runway until market conditions enable it to raise, and at a better valuation. Even though venture debt carries a high rate of interest and sometimes comes at a cost of equity warrant coverage, if it succeeds in extending the runway for a company to be able to raise its next round of equity capital when it’s valuation is higher, it can be well worth it. So, instead of looking at it as “credit card debt,” think of venture debt as insurance against market conditions, operational hiccups and unforeseen capital needs, and a way to reduce your company’s net cost of capital to fund operations.

What are we seeing in 2024? Well, one year after the regional banking crisis and the FDIC takeover of SVB and Signature Bank, green shoots are finally sprouting… the Federal Reserve promises three interest rate cuts in 2024, and a whole cohort of new players are writing venture debt term sheets at competitive terms. Pitchbook has noted that the venture debt market is continuing its gradual recovery, positively affecting certain start-up borrowers, creating a renewed competitive landscape for venture debt capital.

Late-stage, growth-stage and venture-backed companies will likely find the debt market far friendlier in 2024 than 2023. For seed and early-stage founders without a well-known U.S.-based venture capital investor having recently led a Series A (or later) round, however, securing a debt facility will not likely be an option. Lenders are also doing much more front-end due diligence before a deal closes than when this was considered a cursory step.

As always, do not hesitate to reach out if we can help you brainstorm a legal or business challenge you are facing, or if we can connect you to a potential investor, professional, or entrepreneur.

Spotlight on GCVI

Foley at GCVI Dinner | March 12, 2024
Once again, Foley’s emerging growth and venture capital team represented at the Global Corporate Venture Institute in Monterey, California last month. While the “rising stars” were celebrated over dinner in the main conference venue, Foley attorneys Natasha Allen (Venture Capital Co-Chair, Silicon Valley), Louis Lehot (Partner, Silicon Valley), Lyman Thai (Partner, Silicon Valley), André Thiollier (Partner, Silicon Valley), and Alidad Vakili (Of Counsel, San Francisco) hosted an exclusive dinner for the “stars” already risen. This dinner jump-started GCVI, which is known for being one of the biggest dedicated conferences for corporate venture capital and C-suite innovation leadership. Our guests left the dinner with great insights, connections, and trend updates that carried forward into the GCVI conference.

Recent Events:

Health Table | March 6, 2024
Natasha Allen (Venture Capital Co-Chair, Silicon Valley) and Alidad Vakili (Of Counsel, San Francisco) hosted a lunch and tasting in Napa, California, in collaboration with Lucy Reynales from Health Table. They were surrounded by friends, founders, investors, advisors, and all those looking to drive health tech forward. Startups had the opportunity to give quick two-minute pitches and create video content to leverage for promotion.

Artificial Intelligence: Risks and Opportunities in the Creative Industry | March 6, 2024
Freddie Goudie (Partner, Miami) recently spoke during the AI and Business Ethics panel as part of the American Chamber of Commerce for Brazil’s Artificial Intelligence: Risks and Opportunities in the Creative Industry conference.

The NYC Health Care Innovation Ecosystem: A Growth Partnering and Deal-Making Hub | March 7, 2024
Columbia Business School Alumni Club of NY, in collaboration with Endeavor Venture Funds, and hosted by David Kantaros (Venture Capital Co-Chair, Boston) and Shabbi Khan (Partner, Boston) of Foley, joined for an evening of fostering collaboration, connecting stakeholders, and driving investments in health care technology and solutions. During the program, attendees were invited to network before and after a panel comprising thought leaders that discussed how to supercharge the intersection of emerging AI companies into health care investment and deal making.

Doing Business in India Dinner | March 7, 2024
Foley hosted a dinner in San Francisco, California, where Natasha Allen (Venture Capital Co-Chair, Silicon Valley), Thomas Carlucci (Partner, San Francisco), Eric Chow (Partner, Silicon Valley), Louis Lehot (Partner, Silicon Valley), Joe Swanson (Partner, Tampa), and Alidad Vakili (Of Counsel, San Francisco) joined a group of general counsels and investors to hear insight and thoughts on doing business in India from our featured guest Sherbir Panag.

Life Science Intelligence’s USA 2024 Emerging Medtech Summit | March 18, 2024 — March 22, 2024
Nathan Beaver (Partner, Washington, D.C.) and Natasha Allen (Venture Capital Co-Chair, Silicon Valley) spoke at LSI’s USA ’24 Emerging Medtech Summit on March 20. Nathan spoke during the panel “FDA Breakthrough Designation: ROI and Considerations With Shifts in Coverage,” and Natasha moderated the session titled “Advent of AI: What Will it Take to Drive True Adoption in Clinical Workflows?”

Florida Venture Forum’s Orlando Community Reception | March 19, 2024
Foley recently sponsored the Florida Venture Forum’s Orlando Community Reception. This evening featured some of Florida’s most active venture investors, and Mike Okaty (Transactions Co-Chair, Orlando) led an informative panel discussion.

How to Navigate the Federal Trade Commission in 2024 | March 21, 2024
Foley recently cohosted a panel discussion on navigating the Federal Trade Commission (FTC) with the National Association of Corporate Directors (NACD) Northern California Chapter. Ed Burbach (Government Solutions Chair, Austin) and Deborah Heisz (Co-CEO, Neora) provided lessons learned from their seven-and-a-half-year battle and historic win in 2023 in federal court against the FTC. Ben Dryden (Partner, Washington, D.C.) also shared some of the latest insights on merger guidelines and how to shepherd transactions through the antitrust authorities. Click here for key takeaways from their discussion.

Critical Legal Issues and Trends Facing the Automotive Industry | March 21, 2024
In collaboration with the Society of Automotive Analysts, Foley provided an in-depth review of some of the most critical legal issues and trends facing the automotive industry in 2024. Topics covered included a review of cybersecurity issues facing the industry, including ransomware and other threats, as well as a discussion of key concerns related to data privacy and artificial intelligence. The event summarized recent court decisions involving various pricing disputes that continue to impact all levels of the automotive supply chain.

Prepare 4 VC: Breakthrough Program Demo Day Celebration | March 27, 2024
Foley hosted Prepare 4 VC in collaboration with Boston New Technology and presented the heavily anticipated Breakthrough Program Demo Day Celebration. This exclusive event marked the culmination of the latest cohort’s journey, showcasing the innovative startups poised to transform their industries.

Upcoming Events:

Rooftop Reception at IAPP Global Privacy Summit 2024 | April 3, 2024
Following the first day of the International Association of Privacy Professionals’ (IAPP) 2024 Global Privacy Summit, Foley’s Cybersecurity & Data Privacy team will host a networking reception on the rooftop of The Delegate, conveniently located across the street from the venue.

Women in Climate Investing & Finance | April 3, 2024
Foley and JP Morgan are co-sponsoring the Women in Climate Investing & Finance LA chapter one-year anniversary event. This is a half-day conference that will take place from 2:00 p.m. — 7:00 p.m. in Marina Del Ray, Los Angeles, and will include two panels, a keynote speaker, followed by a reception. Annie Tsai (Senior Counsel, Los Angeles) will moderate a discussion on capital deployment through different asset classes. The Women in Climate Investing & Finance organization has connected hundreds of women in early-stage venture capital to late-stage infrastructure financing, and everything in between, including women considering a career pivot.

NFT.NYC | April 3, 2024 — April 5, 2024
Non-Fungible Tokens (NFTs) and Innovative Technology sector team members Andy Lee (Of Counsel, New York), Jane Blaney (Associate, Washington, D.C.), and Jose Lazaro (Associate, Milwaukee) will be on a variety of panel discussions as part of the NFT.NYC 2024 conference.

NACD Signature Series: Cybersecurity Enterprise Risk Management | April 9, 2024
Foley is a proud sponsor of the National Association of Corporate Directors’ (NACD) Signature Series: Cybersecurity Enterprise Risk Management. Cybersecurity is a complex and dynamic risk for enterprises — across the ecosystems of both their operations and those of their partners. This category of enterprise risk requires new levels of integration across a company’s operations, and it includes new levels of accountability for senior management and the board. Join us on April 9 for a lively debate and practical advice on adapting your board’s oversight and improving your organization’s readiness.

Cybersecurity: Review of Current Issues | April 10, 2024
Steve Millendorf (Partner, San Diego) and Avi Ginsberg (Associate, Boston) will join the New England Corporate Counsel Association for a hybrid in-person/virtual seminar on current issues in cybersecurity. As technology continues to evolve, new security threats and compliance risks confront companies worldwide and require in-house counsel to quickly assess and respond to these constant challenges to minimize damage, losses, and liability to their clients, assets, and reputations. Our team will lead an interactive discussion of some selected cybersecurity issues that in-house counsel are likely to face in 2024 because of new developments.

2024 Latam Tech Forum | April 11, 2024 — April 12, 2024
Foley will participate in the upcoming Latam Tech Forum (LTF). LTF facilitates an annual private interactive and off-the-record gathering, as well as access to a digital platform and private meetings and discussions to promote further connectivity among invited technology leaders across the region. This is an invitation-only event. If you are interested in attending, please connect with Louis Lehot (Partner, Silicon Valley) or André Thiollier (Partner, Silicon Valley).

Managing Regulatory Risk in Earnouts and Other Deferred Pay-outs in Health Care Transactions | April 16, 2024
Larry Vernaglia (Partner, Boston) is speaking at the American Health Law Association’s Health Care Transactions Conference in a session titled “Managing Regulatory Risk in Earnouts and Other Deferred Pay-outs in Health Care Transactions.”

ABA Science & Technology Law Section: Privacy and Emerging Technology Institute and Spring Meeting | April 17, 2024 — April 19, 2024
Foley is proud to support the American Bar Association (ABA) Science & Technology Law Section’s (SciTech) Spring Meeting. The event will feature ABA’s new Privacy and Emerging Technology Institute, other programming on the hottest SciTech topics, brainstorming sessions on issues that matter, networking events, and the section’s 50th anniversary celebration. Steve Millendorf (Partner, San Diego) and Jennifer Urban (Partner, Milwaukee) will be speaking on several panels.

Digital Disruption in Manufacturing — A Brainwaives Event | April 25, 2024
Foley’s signature Brainwaves event series will be hosted on April 25, 2024, in Chicago for an exclusive gathering of business and legal executives. The half-day forum will explore fundamental shifts driving change and disruption in manufacturing. Manufacturers, innovators, and investors will share insights on navigating the challenges and opportunities automation, robotics, artificial intelligence, and other technologies create.

The Next Generation of Telehealth: From Reactionary to Visionary | April 29, 2024 — May 1, 2024
Kyle Faget (Partner, Boston) and Monica Chmielewski (Partner, Chicago), will be joined by Jessa Boubker (Associate, Boston) as speakers at the Northwest Regional Telehealth Resource Center’s (NRTRC) 2024 Conference, “The Next Generation of Telehealth: From Reactionary to Visionary.” Attendees will engage with industry experts, thought leaders, and innovators and discuss cutting-edge technologies, best practices, and the evolving landscape of digital inclusion in health care access.

Capital Connect: Finance & Funding in Life Sciences | May 15, 2024
Join Foley and Slone Partners in San Francisco for an informative and engaging afternoon exploring the latest trends and strategies in financing within the Life Sciences Industry. Capital Connect will feature a distinguished panel of industry experts who will share their insights and experiences on navigating the complex landscape of finance and funding in the life sciences space. Whether you are an investor, entrepreneur, or industry professional, this event will provide valuable perspectives and networking opportunities to help you stay ahead in this rapidly evolving sector.

Thought Leadership

Strategies for the Tech Sector in 2024
After two very difficult years in the tech sector, everyone is hoping for a comeback. We are looking at a more positive economic climate, the prospect of interest rates dropping, and there is much less talk of a recession. There is renewed optimism that we could enter a recovery stage for the tech sector, although it will likely be slow growth to start.

Learn More

Palkon v. Maffei: Delaware’s Warning Shot to Controlling Stockholders Seeking to Evade Fiduciary Duties by Reincorporating
In late February, the Chancery Court denied a motion to dismiss a stockholder lawsuit against the controlling stockholder and board of directors of TripAdvisor, Inc., seeking to enjoin a reincorporation of TripAdvisor into Nevada based on allegations that the reincorporation was an unfair self-interested transaction. Gregory B. Maffei controlled TripAdvisor through a dual-class voting structure (Maffei exercised control through a holding company, the board members of which were also defendants). Plaintiffs argued that Nevada law was less protective of stockholder litigation rights and more protective of corporate fiduciaries than Delaware law and that, by pursuing the reincorporation, Maffei and the directors were obtaining benefits not shared by the minority stockholders in breach of their fiduciary duties.

Learn More

SEC v Panuwat: The SEC’s Novel “Shadow Trading” Insider Trading Case Goes to Trial
Insider trading is a concept that most people are generally familiar with. In its simplest form, it involves a corporate insider trading in securities of his or her corporation based on material nonpublic information (MNPI) about that corporation. “Shadow trading” involves the misappropriation of confidential information about one company to trade in securities of a second company where there is a sufficient “market connection” between the two companies. In 2021, the SEC brought insider trading charges against Matthew Panuwat, a business development executive at a biotech company, Medivation, Inc. The SEC alleged that Panuwat used confidential nonpublic information about a potential acquisition of Medivation by Pfizer to purchase call options in a second biotech company, Incyte Corporation, in the belief that Incyte’s stock price would materially increase following the announcement of the Pfizer deal. The case was scheduled to go to trial on March 25 and was keenly watched by practitioners to see how potent a weapon the “shadow trading” theory is likely to be in the SEC’s arsenal against insider trading.

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Exploring Business Opportunities in India: Insights from Foley’s General Counsel Series
In today’s globalized world, understanding international markets is crucial for businesses aiming to expand their footprint and capitalize on emerging opportunities. As part of Foley’s ongoing series of General Counsel focused initiatives, we recently had the pleasure of hosting a dinner with our featured guest, Sherbir Panag, founder and managing partner of leading Indian law firm Panag & Babu, shedding light on the intricacies of working in India.The Corporate Transparency Act and the Impact on M&A in the U.S.

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Deals

Foley Represents GamerSafer in Acquisition of Minehunt
Foley represented GamerSafer, a security and online gamer experience startup, in the acquisition of the Minehunt business unit from Super League.

Foley Represents SixSibs Capital in Investment in Stevenson Search Partners
Foley served as legal advisor to SixSibs Capital in its significant long-term investment in Stevenson Search Partners, a global life sciences executive search firm with offices in the U.S. and the United Kingdom.

Foley Represents Riverwood Capital as Lead Investor in Series E Round for BigID
Foley represented Riverwood Capital as lead investor in the $60 million Series E funding round for cybersecurity startup BigID. Riverwood was joined by additional investors Silver Lake Waterman and Advent International.

Foley Represents Fieldguide in $30M Series B Funding Round
Foley represented Fieldguide, an AI platform for advisory and audit services, in its $30 million Series B funding round led by Bessemer Venture Partners. Other investors included 8VC, Elad Gil, and leading AI and SaaS company CEOs.

Originally published on Foley.