Brigham Young University Law Review
J. Brad Bernthal, The Evolution of Entrepreneurial Finance: A New Typology, 2018 BYU L. Rev. 773, available at https://scholar.law.colorado.edu/articles/1215/.
There has been an explosion in new types of startup finance instruments. Whereas twenty years ago preferred stock dominated the field, startup companies and investors now use at least eight different instruments—six of which have only become widely used in the last decade. Legal scholars have yet to reflect upon the proliferation of instrument types in the aggregate. Notably missing is a way to organize instruments into a common framework that highlights their similarities and differences.
This Article makes four contributions. First, it catalogues the variety of startup investment forms. I describe novel instruments, such as revenue-based financing, which remain understudied within law and entrepreneurship. Second, this Article shows the limitations of the debt vs. equity distinction as a classification method for startup financial contracts. Reliance on this traditional distinction obscures understanding of how instruments function. Third, the Article proposes a “new typology” to classify investment instruments based upon their economic, control, time, and regulatory dimensions. Three new broad categories— Payouts, Lock-in, and Park-n-ride—provide an insightful way to group these contracts. And fourth, the new typology explains how an expansion in instrument types creates complex capital structures which increase horizontal conflicts among startup investors. Further, new instruments increasingly place investors into a non-shareholder role that is outside the boundaries of corporate law’s protections. As early-stage investors increasingly fall outside the protections of corporate law, a greater burden shifts to contract law to resolve disputes arising from divergent investor interests.
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