Tech and Term Sheets

Creating a Canadian standard for term sheets to get more and better deals done, faster

​Over the past year and a half I have been conducting a workshop on term sheets and structuring deals across Canada. This is part of the National Angel Capital Organization of Canada’s (NACO) effort to encourage angel investing and in particular help tech businesses get off the ground. It has taken me to Niagara, Kitchener-Waterloo, Calgary, Victoria, my hometown Vancouver, Kingston in Jamaica and next week Regina and Saskatoon. Wherever I go there are keen and very diverse audiences willing to learn how to structure and do better deals. Having done this work for many years it is sometimes surprising to see how light the knowledge about this is on the ground and what difference an intense 4-hour workshop can make, not to mention getting people enthusiastic about participating in an asset class that was until recently the domain of a privileged few. Because yes, people are writing cheques into high-risk ventures or into funds that are trying to get a return on supporting emerging tech firms across Canada. As I have learned, the term sheet is the starting point of what sometimes can be a very long and rocky relationship, so better get it right on day one.

In the process it has become clear that Canadian start-ups often use outdated term sheets, sometimes found after a Google search or by simply copying American documents that are an awkward fit for local deals. As a board member of an angel fund, I see many founder generated term sheets and even when there are reputable advisors or directors involved, the quality is generally poor. I do not need to see a term sheet where one page is dedicated to director biographies. These are not deal terms and documents like this go straight to the garbage can, unless we find the company willing to renegotiate and rewrite the document. In most case such a joint effort yields much better term sheets and at the same time we have enhanced the entrepreneurs’ understanding of the process.

So how great it was that Boris Mann – another Vancouver tech veteran – and I got invited to project manage #NACOCommondocs, a project designed to launch a Canadian standard for Common and Preferred share deals as well as Convertible Loan and Convertible Equity, the latter also known as SAFEs, or Simply Agreement for Future Equity. As easy as it would have been for Boris and me to lock ourselves in a room for a day and bang these new standards out, they have to reflect the Canadian market place and regional opinions. And, some deep legal thought from the six law firms that are sponsoring this important project, not to mention accounting opinions. So we have travelled to Montreal, Toronto, Calgary, Victoria, Halifax and of course Vancouver where lawyers, angel investors and entrepreneurs commented on our work and at times ripped apart some of our assumptions and deeply held beliefs. Our egos, believe me, can take that. There is nothing like solid and constructive feedback that seeks to improve your product.  And yes, there are regional differences. In some parts of the country angels will insist on having the ‘redemption right’ in any term sheet, whereas in Vancouver and Calgary the mere mentioning of this concept generated outright hostility. Try and synthesize those two points of view into one standard document!
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But as always in life, the truth is somewhere in the middle and there are many ways is which we can bridge the discrepancies and still present a menu card from which to build a perfect term sheet for your start-up. Both angel investors and founders can now use a base term sheet with options to extend with additional clauses that will better reflect their deal. At the same time lawyers will no longer have to worry about wasting billable time on educating cash strapped company founders on what a term sheet really is. They will be able to point to the NACO website and say: educate yourself, negotiate a deal and we can help you with the rest.  

As we dove into this it became clearer that there are indeed many aspects depending on if you are doing a common share, preferred share, convertible loan or a convertible equity (SAFE) deal. Tax implications, share options, vesting schedules, you name it, it is all more than just sticking a clause in an agreement. So in addition to the term sheets and accompanying educational notes we will present a number of one-pagers on the NACO portal when the project is launched April that will complement and enhance knowledge. Expect notes on tax credits, friends & family rounds and the not unimportant one that answers the question: which document to use when?
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But above all the key drive is to build better companies as Canada’s economy is diversifying while at the same time being asked to compete in a razor sharp global environment. Last week’s BC Tech Summit in Vancouver made me realize how far we have come over the past twenty years and how mature start ups have become, even when (often) using crappy term sheets. There is strong momentum with many ideas and readily available capital, although we can do more to create better companies and mobilize more investment dollars. The challenge will be for solid people to combine these ingredients and build a strong technology cluster that will – as much as angel investors like exits – stay in Canada and build wealth right here.