Why There Will Never be a Standard Set of Seed Documents (a.k.a “Why Brad Feld will Fail”)

My partner Brad recently wrote a blog post commenting on the proliferation of standardized seed financing documents.  The post was motivated by the highly-publicized release of the fourth instantiation of such a standard series of documents, this time by Ted Wang at Fenwick & West with collaboration from a group of bay-area early stage VC’s and angel investors.

If you are keeping score at home, there now exist the following sets of standards that have been made public:

(**Disclosure: I had participation with the TechStars set**)

Brad noted that it seemed silly to have four different versions and decided to invite everyone together in a room to come up with one, universally accepted set of model documents.  The immediate response was tremendous.  33 comments to the post and countless more emails from lawyers, entrepreneurs, VCs all praising the effort and wanting to know how they could get involved.

And all I could think was “Feld, you haven’t a clue what you’ve gotten yourself into.  This is going to end badly.” (and then the second thought was “Damnit, I bet all of these emails end up in my inbox too,” which they did, but then gave me fodder for this blog).

Why? Because there will never be a standardized set.  Not because there shouldn’t be, but rather once you introduce humans to execute the task, it simply doesn’t work.

And those humans are called lawyers and venture capitalists (and not entrepreneurs).  Despite all the handwringing about “doing it for the entrepreneur” I don’t think these two sets of humans will ever get their act together well enough to do what they say they want to do.  Here is why.


Lawyers are like congress people.  If they aren’t involved in something, it’s nearly impossible to get their vote.  If they are involved then they are obliged to be “value additive” to the process.  In other words, the more lawyers, the more support and the more bloated of a document set, because everyone needs to get in a point to save face.

If you don’t believe me, see the NVCA model documents (I’ve been in the room while they have been drafted).  While the documents are great in that every potential scenarios has been imagined (and even more importantly to show you what should never be included in financing documents by their omission), the documents are too complicated for 90% of the folks out there doing the deals.  And then you add in the east-coast / west-coast differences (I think many east-coast terms can be entrepreneur unfriendly) and now you have a treatise as opposed to streamlined set of documents.  (As an aside, I don’t want this to turn into a east coast / west coast debate.  If you want to see what I think about terms, read this series).

Many of Brad’s email responses included this not-so-veiled threat: “you need me as part of your syndicate, or I won’t sign off on the documents and you’ll not have broad support.  My firm is important [insert canned marketing paragraph here].”  At the end of the day, Brad would have had 50+ lawyers in the room and we’d be right back to where we started with the NVCA project.

Even more importantly, however, lawyers are driven by more important things (to them) than helping entrepreneurs save legal costs.  Lawyers are driven by fees and thus they want to acquire more clients.  Releasing a set of documents that get you on the cover of peHub and Techcrunch is good for business.  You may streamline some hours, but you are betting on more clients.

Therefore, you have no incentive to join other groups, as it’s your name that is getting all the good publicity.  Why be a part of “working group X” when you can be “Joe Smith, super lawyer to the entrepreneur?”  While I can’t disclose the particular emails, rest assured that this paragraph is much more than an assertion, but a fact.

Lastly, there is also pride of authorship, by lawyers, even in situations where the documents should be boilerplate – as the case is here.  Every firm has their set of documents that they consider “better” than others.  Are they?  Or are they lazy and haven’t even read the other firms’ (or maybe they don’t have access).  I haven’t read them all.  I don’t want to either, but I can tell you that I’ve only seen a few firms out there that actually have better forms.

Bottom line:  Too many cooks spoil the soup, while the celebrity chefs don’t even want to cook with you.

Venture Capitalists:

Let’s not let the lawyers take all the blame, though.  While I do think the incentives of the VCs are good here, we have our own issues.

First, we, as the business drivers of the provisions, can’t necessarily agree on the basic terms.  That is problem one.  I don’t have a way to fix this one.

Secondly, most VCs aren’t lawyers and their level of deal comprehension varies greatly.  (Note: there are plenty of non-lawyer VCs that can take me to the woodshed, so this isn’t a statement that all lawyer-VCs are better).  So what do we, as an industry do?  We hire lawyers to produce a standard set of forms that we might not completely understand ourselves.

The end-result is our trusty lawyer tells us “our forms are better” and we take it for granted never minding the misalignment of incentives (lawyers want to make money, we want to save money for the entrepreneurs).  In fact, if you ask some of the business people around the table of these four sets, they really can’t tell you how any of these documents differ from the others.  They will always refer you to their lawyer.

Want more proof?  The latest set of documents from Fenwick and supported by a number of investors has a provision allowing for $10k of investor counsel fees.  If the investors really understood everything in the documents and were prepared to take them “as is” I would expect that number to be zero.  In fact, the three other sets of standardized documents have $0 fees for investor counsel.

Bottom line: until the VCs truly understand everything in these documents, they are going to continue to rely on the forms of their favorite lawyers and not those generated by others.

So which of the four forms are better to use?  I don’t know.  I’ve only read half of them.  And I don’t really have the burning desire to read more of them, as I predict even more proliferation.  That being said, here are a couple of interesting factoids.

1.  Yokum Taku has a nice post and matrix comparing the documents; and

2.  I heard from one name-brand law firm that working with one of these standardized sets (which I won’t name either for professional courtesy reasons) is a horrific experience in spell checking, capitalized term mismanagement and sloppy draftsmanship.  So just because they are released and publicized doesn’t mean they are necessarily any good.

So my prediction?  My dear partner Brad, while heart in the right place, will fail to come up with one set of widely used seed documents.  Sad, but true.

Of course the horrible irony is that none of this is intellectually difficult.  Maybe I’ll just come up with my own set of documents and…. oh wait……

  • Giff

    If it is run like a committee it will fail. If brad, who has his heart in the right place, runs it like a dictatorship, it might succeed.  If big law firm X doesn’t sign off, who cares. Stuff ’em. This isn’t for them but for entrepreneurs. If the process strips out unnecessary baggge and creates a better, more consolidated standard, then entrepreneurs and, by extension quality early stage investors, win. 

    Don’t think congress, think benevolent dictator. Unlike national laws, the results of this are voluntary. If the product is good, it will get used.

    • I wish this was true, but it’s not.  Law firms won’t buy into the documents if a dictator and they won’t be used no matter how good they are.  They won’t even take the time to evaluate them. 

  • Excellent post, Jason. You’re absolutely correct that “lawyers are driven by more important things (to them) than helping entrepreneurs save legal costs.” Indeed, that’s why I quit the big law firm in New York City and moved out here to California to open my own shop: to help entrepreneurs save legal costs. I am all for standardized documents, but agree that it “simply doesn’t work.” That being said, like all great entrepreneurs, we shouldn’t stop trying. Kudos to Ted Wang for trying. Take care, Scott (@ScottEdWalker)

    • I'll second Scott's comment and I agree with you, Jason – it is the lawyers whose "priorities" get in the way of this kind of innovation. Having been on the inside of these kinds of deals at name-brand firms, there is even form competition among lawyers at the same firm!

      That being said, I think I side more with Brad's optimism that some standards can be reached to create a more predictable and healthier deal climate. There are many successful lawyers (even more in the last couple of years) abandoning the old way for a smarter and more agile model. A quick look around the Tubes and you will find them (us). That kind of progressive thinking will hopefully start to supplant some of the self-interested dealing that gives lawyers a bad name. (@dryanesq)

  • Trish

    Hahahahaha…ha…ha. True.

  • mikemcgrath

    Someone should start a startup law firm with a flat fee.

  • That's an awesome post – and on the money. The benefit of the exercise though is that you end up with groupings of issues/terms that are relevant for a season. That's of value, but still not capable of providing a standard set. Every deal, industry and economic cycle is different and trends in deal terms can and do reflect the need to adapt to those differences.

  • You know Jason, if this VC thing doesn't work out, you might have a future in venture law…

    • I don’t know.  I’m not sure that I have the stomach for that.

  • For the record, I've offered to get in a room with Brad and other attorneys/investors, but I really think that it needs to be an investor-driven process for any set of standard docs to gain widespread acceptable. For example, WSGR will generally not use the NVCA docs on a company-side Series A financing unless absolutely demanded by the investor. (It seems like this is generally true of other firms on the West Coast in my experience.) The WSGR-template Series A documents can be generated using document automation software, which makes it easy for us to draft — and most of the firms that do a lot of venture financings are very familiar with the WSGR forms.

    • Yep. I know that you were one of the ones who offered. Nice review of the series, too

      Jason Mendelson

      Sent from my iPhone
      – please forgive iTypos.

    • Yokum, I wonder if opening up the document automation software is the way to go. You guys have done a great thing and set a good precedent by putting your term sheet generator out there publicly. When it comes to the purchase agreement and other deal docs, rather than try to cull things down to one standard "output" or iteration of what is possible, the goal might actually be more reachable if all the possible variations were accessible, modularized, and it wouldn't be so challenging to keep "manual" track of how choices are impacting the output. Also feel you are right that standardization has to follow from the principals…

  • Dave

    I assumed the investors counsel fee was to cover due diligence, which is a legitimate use of funds. For a true angel round, it should not run $10K but having IP contribution vetted, proper assignment of inventions, etc. is something many angel investors should have done. This seemed like a good idea in a world where companies can often get started for very little money but new entrepreneuers may not spend enough time getting things in order. Did I miss something?

    • $10k for diligence?  It should only take $5k or so (max) to set all of this up, so a couple hours of legal work is all it should take.  Maybe $1-2k, in my opinion.

      • Dave

        I agree it should be cheap, particularly if you are dealing with a company that has not done any sort of financing and is really a raw startup. I was more commenting that zero seemed odd to me. However, at SV firms' rates does $1-2K even get a cup of coffee? $1K is at most a few hours of time from a clueless first year associate or a couple of hours of time from anyone who knows anything.

  • Dave

    Doesn't this get agreed on only if regular angel investors drive adoption? Lawyers are not going to drive adoption for all the reasons Jason outlined. Angels will need to tell their lawyers that X is the documents they use, but then be willing to stand behind that if a company says it only uses Y which seems unlikely. Maybe the effort will fail because there are inherently no large market participants to drive standardization unlike some other financial markets with standard forms for much more complex transctions–such as the ISDA forms for derivative transactions. At a minimum, these form documents should help people stay focused on the fact that angel investor deals should be simple.

    NVCA docs are a good example. I think they are way too cumbersome and investor friendly, protests from many East Coast investors notwithstanding. Angel docs need to run in the other way.

    • Also – per my post – VCs (angels) are to blame, too, b/c we can’t figure out a way to agree on terms, either.  Not just the lawyers.

  • Giff

    I bow to your greater deal experience, but I would imagine that if both investor and entrepreneur agree to a doc template the lawyer isn’t going to block. Certainly if mine did, I would change firms. But that does only bring us to your other point – a reasonable percent of the investor community needs to agree.

  • Jason

    I think its early in the battle to surrender. You've raised some real obstacles towards the adoption of the Series Seed Documents (or any standard), but I think there's a path forward if folks stay united in the goal.

    • I would love it if you are right.  But I’ve seen this movie before, I think… J

  • It seems to me that this debate is being framed in the wrong manner. Instead of saying, "well there are four /five set of documents and therefore nothing good will ever come of it', we should look at the postive signs. There are a bunch of form documents available online for enterprenuers and investors to use for free. I've offered to open source the Series Seed Documents and take anybody's comments so as to harmonize them to the maximum extent possible. Maybe mine will become the standard, maybe somebody else's will, but whatever result we are moving towards more openness and more standardization and that is a good thing for all parties. It is certainly better for enterpreneuers that they can look at a set of documents and at least ask for them in the process (as Giff suggests). I also think its a good thing that there are some big name investors who have said that they will use the Series Seed Documents. As I discussed with Brad, my hope is that this will cause the Series Seed Documents to "tip." I may be wrong about this, but this is my go to market strategy. All of this, however, is directionally correct.

  • Unfortunately the debate has been around which form is better or what process should be taken to adopt the documents. I'd rather talk about the doucments themselves. So for one example Yokum and I are planning to sit down and geek out on the documents. Maybe this will move the documents to a place where he is comfortable with the Series Seed, maybe not, but it will at least put us in a place where we understand each other's point of view. There are some investors whom I've worked with who have raised objections to my firm's form documents (not Series Seed). With those folks, I've come to accomodations (I know which form to start with to take their comments). Of course, this falls far short of the idea of "fill in the blank" documents that I am espousing, but it is a step forward that saves startups time and money and (as Martha Stewart would say) that's a good thing. I don't want to let the best be the enemy of the good.

  • So on the fees question, I picked 10k as number because the investors counsel is going to have to due diligence, review the financing documents and make sure the pre-money calculations all work out, go through the schedule of exceptions etc.. I'm not wedded to that number (though I 've had comments that it's both too low and too high), but would be happy to make changes. I don't think it's a fair characterization to say that the 10k fee is itself "proof" that VCs aren't paying attention. I also don't think 1k is realistic for the tasks set forth above.

  • Finally (for now) I think we'd all be better served if this discussion were more civil. It seems to me folks are ascribing nefarious motives to various participants in the process (me included). I agree with you that getting a bunch of lawyers together is unlikely to result in moving the ball forward. You partner Brad has a different view. That's fine, we can agree to disagree, but I don't see why that calls people's intent into question. The cost of seed financing documents is a problem has bothered me for years and I'm trying to solve it. So far, I've had some success with my own clients (4 companies have succesfully used these docs to date) and I'm hoping that making these documents widely avaiable will help other. My tactics may be misguided and my efforts may be for naught, though I certainly hope that isn't the case, but I'm trying to do something good for the community that has given me so much.

    • I don’t think this is an uncivil conversation, but I’m trying to highlight what, in general, are the motives of lawyers in this process.  I’m not ascribing any particular comment to any particular person.

      • In my first conversation with Brad, I told him I disagreed with him on tactics. His response was that I don't care about enterpreneurs and was just a publicity hound. I tried to convince him that we were just disagreeing on HOW to help, but he was having none of it.

        In this post you say "Lawyers are driven by fees and thus they want to acquire more clients. " and "Releasing a set of documents that get you on the cover of peHub and Techcrunch is good for business." Seriously, if I wanted more business Series Seed Documents and all that goes with it (including this excahnge) is not the best use of my time. The language is civil, granted, but the point is not too subtle. Your either impugning the motives of me or Yokum (so I'm going to guess me)

        Let's have a debate about what should be in a standard set of early stage docs and what's the best way to get more people to use them and not take cheap shots at each other. I just don't see the point.

        • Ted, I don't recall saying (or even implying) anything remotely close to the response you attribute to me (e.g. "that you don't care about entrepreneurs and are just a publicity hound.") In fact, I think I suggested a priori that I accepted your motives to try to standardize on a seed term sheet which was why I was talking to you in the first place!

          I remember our call quite clearly where you said you didn't know me at all but were quite sure that my approach of getting a group of thought leaders (several VCs, several angels, several entrepreneurs, and several lawyers) in a room together would fail. We spent the better part of the call trying to discuss that idea – you asserted multiple times that my approach was doomed. I tried to suggest why it might be useful – you told me quite clearly that I wasn't convincing in any way. When I asked at the end of the call if you would join a meeting like this if I convened one, you said you would.

          Ironically, even though you are now arguing with Jason, your underlying message to me was exactly the same as Jason's! And – as you'll see in the post I'll put up shortly, I agree with you (that the approach I blogged about was doomed to fail.)

          • Brad: I guess it's like a Kurasowa movie in which eryone has their own perspectives. I apologize if you think I've mischaracterized your views but I certainly thought I heard them and these same concepts were echoe'd by Jason in this post.

            I really want to get AWAY from all this and focus on making the financing process better for seed stage companies. I am committed to iterating on documents and engaging in an open dialouge about how to improve this process. Let's go forward together and work toward that objective. I think you and Jason both do a great service by openly disucssing these issues. Let's keep the conversation positive about what is working and how to make it better!

  • So in short, let's not give up just yet! Let's talk about "standard seed documents" and see where that leads. It may take years, but I've got a long horizon.

  • Great post Jason.

    There's obviously a lot of sincerity and authenticity coming from the contributors to this discussion, but the idea that "the problem is we can't get all the lawyers and vc's to agree" does make me chuckle. If we did have a document that all the lawyers and VC's agreed on, it would scare the bejeezus out of me as an entrepreneur.

    I'd be much more likely to trust an entrepreneur-driven set. There are enough serial entrepreneurs with great reputations, who are now also doing angel investments, that we should be able to find people willing to live with both sides of the same boilerplate.

    As an entrepreneur or investor, that would be good enough for me.

  • One of the reasons I wanted Marc Andreesseen as my launch partneron the Series Seed Documents was that he fit this bill exactly. Investor who was an entrepreneur. Kopleman too. I think that's why they supported this idea.

    • I think any rational investor that was also an entrepreneur would support this. I'll use me as an example. I started out as an entrepreneur (first company – $10 of financing, sold seven years later to a public company, zero legal fees until the sale), angel investor (75 angel investments between 1994 – 1996 and 2006 – 2007 including many seed investments off of a one page term sheet that I use) and VC investor (Mobius Venture Capital from 1997 and Foundry Group from 2007).

      The idea of one set of standardized seed documents that are widely accepted is a great one. However, the idea of N (I've now been exposed to over 10!) isn't helpful, especially if they aren't structured in a way to easily migrate to a full Series A financing regardless of investor counsel.

      • I have a slightly different perspective. While I agree that one set of standardized documents for every seed deal is ideal, there is value in achieving more modest objectives at first. I now know of 5 companies that have used the Series Seed Documents and those went well. My hunch is that after the first set of companies use these forms new start-ups will hear about them from their friends in the community. That will lead others entrepreneurs to ask for these documents as part of the deal. Some investors will say yes, others no, but after time there will be a snowball effect and the documents will begin to take market share.

        Also, while I agree with Jason that trying to force all the lawyer to agree is unlikely to yield any result, I think that if certain companies are getting their seed deals done quickly and cheaply, that market pressures regarding fees and timing will drive lawyers toward standardization for seed round documents. It doesn't solve everything in one fell swoop but over time I think it will be effective.

  • So, all good points. The only thing I want to add to the discussion is that I think the NVCA forms project has been a massive success. With respect to Boston/New England series A deals, our firm has been tracking the use of the NVCA forms over two years (we track other deal points as well) and publishing the results quarterly in EEC Perspectives. Adoption rates for the NVCA forms in series A deals in Boston/New England in Q4 of 2009 were approximately 77%. There have been similar rates of adoption in prior quarters for the two years that we have been tracking the data. I have not aggregated the data and calculated a two year adoption rate, but I could have it done. We don't track west coast deals, so this data says nothing about the west coast. In my view, this level of adoption suggests that the NVCA forms project is a smashing success. Sarah Reed of Charles River Ventures was one of the moving forces behind the forms project. Brad and others should talk to her about how she did it.

    • I think it’s different by region and firm type, actually.  It’s great to hear that you guys are using the documents – bravo.  However, most of the west coast brand name firms are still using their own firm documents.  I was one of the original drafts persons, along with Sarah at the NVCA drafting sessions and sit on the board of the NVCA now.  Trust me, I have a large vested interest in having these documents accepted by all, but also know the realities.  Also the horse trading that went on in some of those sessions was hilarious.

  • I too participated in the initial session. I missed several years due to scheduling conflicts but attended this year. My view is that we had a good high quality discussion (although, at this point the changes to the docs have become small tweaks). The knock on the forms has always been that they may be VC friendly. At the risk of bringing opprobrium upon myself, I will assert that some law firms market against them on that basis. Despite the fact that there are a few niggley things (like the way "broad based" is defined and used in the antidilution formula) that might be characterized as unfair to founders, I don't agree with people who assert that the NVCA forms are deeply and systemically biased. I take your point about regional differences, but VCs across regions (and within regions) have substantial consensus about the concepts that need to be included in their investment docs. Whatever you think of redemption rights, some very large percentage of deals have them. Angels and other seed players are too diverse and don't share a consensus around what they need in their investment docs. I think your partner, Brad, is going to have to segment the seed ecosystem and look for smaller groups where there is consensus as to needed terms. If he can identify some of those he may be able to get to forms with them. I wish him good luck.

    • You are 100% right on law firms marketing then as VC friendly.  I should have included this in the post.  I am clearly biased, but done correctly, I think they are fair

  • Hi Jason – I think there is value in proceeding with this effort. See my post about this on the Walker Corporate Law Group blog (http://bit.ly/dlxpQu), and tell me if you don't agree with, at least, some part of what I am saying! 🙂

    • Yes, saw the post and it is possible to come up with a term sheet, but the devil is in the details of the forms and I still think my original posts stands. I hope I am wrong, but think that I am right. I spoke to another active early stage VC the other day and we can't even agree on terms.

      Jason Mendelson

      Sent from my iPhone
      – please forgive iTypos.

  • Sammy

    Another legal topic worthy of your analysis…..


    • Yep.  I’ve been saying this for a long, long time in my law firm 2.0 series. 

  • Thanks for taking the time to discuss this, I feel strongly about it and love learning more on this topic. If possible, as you gain expertise, would you mind updating your blog with more information? It is extremely helpful for me.welcome to my site: http://www.weddingdressesonline.us
    weddingdresses Designer wedding gowns Wholesale wedding dresses Evening Dresses

  • Pingback: Technically Philly » Does the VC industry need document standards? | Covering the Community of People Who Use Technology in Philadelphia.()

  • Anonymous

    nFounded in 1921 Gucci is perhaps the most famous and prestigious Italian fashion house.gucci men bagnn The company originally started out making luxury leather goods including luggage and handbags for which it is still justly famous today.coach crossbody bagnn For decades Gucci was beset by internal wrangling between family members which brought the company to near bankruptcy until in the 1990’s the company nnsuccessfully re-launched itself, bringing in Tom Ford as Creative Director who was to prove a revolutionary success in creating a new image, cheap coach bagnnmuch increased turnover and an upturn in the company’s fortunes.gucci leather nnhandbagnn Our Gucci menswear collection includes a comprehensive range of Trainers, Shoes, Shirts and Wallets.gucci outlet nnonlinennOur official online store offer you the most vogue and well-known new gucci handbags with unique design.Want to be attrative and charming? You definitly can nnnot miss these pretty gucci handbags . Latest style,discont price,free & fast shipping,enjoy shopping here!n

  • Anonymous

    In order to make your choice a bit easier, you can look at different fashion magazines that often have different fashion reviews of different fashion nndesigners. On the internet, you can also find web sites that are dedicated to the subject of online fashion reviews that can have links to the sites, so that nnyou could order the products online. That way it is easier to look through the collections of the different fashion designers.nnAnd, of course if you wish a high quality product, then you should look for world famous brands. coach carryallnnOne of the best known fashion brands is Gucci. Gucci is one of the oldest fashion houses that have different collections today.nnThe Gucci house started as a pretty small leather goods store. The first Gucci boutique was opened in 1921; it became famous right away. Today, it is hard to nnfind a person who doesn’t know about the house of Gucci and their fashionable collections. Today, al of the world’s capitals has Gucci boutiques. In London, nnParis, Madrid, and New York, and other places, you will find at least one Gucci boutique.nnThe Gucci group also owns different brands like Yves Saint Laurent and Fendi. classic guccinThis of course increases the number of Gucci collections. So, you can find products dealing with fashion perfume, and accessories under the Gucci label.nnIn the accessory collections, you will find a number of Gucci bags.gucci outlet onlinenn Of course, most of these collections are meant for women, but there is also different Gucci men’s bag. One example of Gucci men’s bag is the Gucci men’s nnwaist bag. It isn’t a very popular accessory in European countries today.cheap guccinn But, it is not the only thing in the Gucci men’s bag collection. Another portion that represents Gucci men’s bag collection is Gucci D-ring messenger bag nnand wallets collection. In this sector of Gucci men’s bag, it is probably the biggest kind of products.nnBut, of course Gucci’s women’s bag collection is larger than its Gucci man’s bag collection. There are so many Gucci women’s bags that it is hard to count nnthem all.n

  • Anonymous

    Thank you! You often write very interesting articles.cheap wedding dresses You improved my mood.I’ll be back again.  http://www.dressiton.com/

  • Anonymous

    Thank you! You often write very interesting articles.cheap wedding dresses You improved my mood.I’ll be back again.   http://www.dressiton.com/

  • Anonymous

    Thanks for your article,like your blog very much,well done.   http://www.momentdresses.com/