Category Archives: Silicon Valley

The Triangle of Director Protections: D&O Insurance, Indemnification Agreements, and Charter Provisions

A corporate lawyer friend once told me to think about director protections as a triangle with three legs [1]:

  • D&O insurance, which stands for directors and officers insurance (and with which most people are familiar)
  • Indemnification agreements (with which some people are familiar)
  • Charter provisions (with which it seems almost nobody is familiar)

Why does this matter?  If you want to attract strong, experienced individuals to your board of directors, they are going to ask your company to provide reasonable and standard protections from potential liability associated with that work [2] [3].  The same holds true for corporate executive officers, though they are often less aware of the exposure.

And, by the way, as a founder/CEO you should want to protect yourself.

My goals for this post are to:

  • Put this topic on your radar, framed not just as “D&O insurance” but the “whole package” of director protections (i.e., the “triangle”)
  • Share what I’ve learned as a brief introduction and provide links to more authoritative posts (e.g., from law firms)
  • Remind you to seek legal counsel in addressing director and officer protections because the topic gets complicated fast, as the embedded links below demonstrate.

D&O Insurance
Most startups purchase some sort of D&O insurance fairly early in their evolution; VCs often require it.  Per this The Hartford post, “D&O insurance protects the personal assets of corporate directors and officers, and their spouses, in the event they are personally sued by employees, vendors, competitors, investors, customers, or other parties, for actual or alleged wrongful acts in managing a company.”

Woodruff Sawyer outlines Eight Reasons Private Companies Should Buy D&O Insurance:

  • Attracting new directors
  • VC requirements
  • Emerging risks
  • Regulatory exposures
  • Bankruptcy
  • M&A
  • Shareholder lawsuits
  • IPO considerations

Per this site, startups typically purchase between $1M and $3M in coverage and the median annual cost of a policy is $3,800 for companies having raised <$5M, $9,600 for those having raised between $5M and $20M, and $17,000 for those having raised >$20M.

Despite the acronym proximity, D&O should not be confused with E&O (errors and omissions) insurance, which protects your company from lawsuits claiming mistakes in professional services, and which many startups also often purchase.  Beyond the scope of this post, Silicon Valley Bank has a nice overall startup insurance primer, Everything Founders Should Know about Protecting Their Property, that also discusses business property and general liability insurance, employment practices liability insurance (EPLI), and with links to other types of commonly purchased insurance.

Indemnification Agreements
In my experience, indemnification agreements are important, but generally less well understood than D&O insurance.

Let’s start with defining indemnification.  Per this Cornell Law site:

To indemnify another party is to compensate that party for losses that that party has incurred or will incur as related to a specified incident.

So, in our context, indemnification means that if a director is sued as a result of their work with the company that the company will compensate them for any losses they sustain as a result.

An indemnification agreement is a contract that specifies that, provided the director meets a minimum standard of conduct (e.g., acted in good faith, acted in a manner reasonably believed to be in the company’s best interests, had no reasonable cause to believe they were acting illegally), the company will defend the director against the cost of certain claims, including legal fees, litigation awards, and settlement costs [4].  For an example, see this model indemnification agreement from The National Venture Capital Association (NVCA) [5], which provides a detailed introduction in its preface as well as detailed in-line comments.

As with all things legal, the devil’s in the detail on indemnification agreements.  Some of the bigger issues include:

  • Advancing expenses.  There’s paying your costs at the end of the process and then there’s paying them along the way.  To understand the need, imagine a case that costs $250K to defend over four years.
  • Specific circumstances.  In the indemnification mandatory or permitted?  Does it apply to all claims or only certain types?  What are the procedures and default presumptions to determine if the director is entitled to indemnification on any given case?
  • Duration.  Is the indemnification only for active directors? What if a director no longer serves on the board, but is sued in a claim related to work done in the past when they were active?
  • Choice of counsel.  If the company’s paying, does it get to pick the law firm?  What if the director wants to hire the most expensive firm in town?
  • Pathological cases.  I’m not 100% sure about this one, but I love corner cases so — what if the company is suing the director?  Does it have to indemnify them in that case as well?

When it comes startups, it’s important to remember the Achilles’ heel of indemnification: an indemnification agreement is only as good as the company’s ability to pay.  In situations where a startup goes “cash out” (as in, out of cash), that ability is zero.  Hence the need for the full triangle of director protections, including D&O insurance.

Charter Provisions
The last leg of our triangle is Charter provisions.  A corporate Charter, also known as a company’s Articles of Incorporation, is a document that establishes the existence of a corporation, is filed with the government, and that lays out the major components of a company including its objectives, structure, and planned operations.

When it comes to director protection, I believe the best practice is for the Charter to contain both (a) exculpatory charter provisions that limit or eliminate directors’ personal monetary liability and, (b) indemnification language that says the company will provide directors with the fullest indemnification allowed by law (e.g., “indemnification to the fullest extent permitted by [Delaware] law.”)

Apparently, a certain amount of indemnification is automatically provided by statute (in some states) and the “fullest indemnification allowed by law” language supplements that where necessary, allowing any specific indemnification agreements to kick in [6].  I know this point is technical, but I also know that the corporate lawyers with whom I’ve worked emphasize that D&O alone is not enough, you need to look at the whole triangle of director protections — and that Charter provisions are one leg of that triangle.

I hope you enjoyed this rather in-depth primer and that I successfully put this issue on your radar.  If you’re unsure about where your company stands on director (and officer) protection, you should give your lawyers a call.  I’m sure they’d love to hear from you.

List of Best Links I Found
I did a lot of web surfing to support this post.  Many of the pieces I found were not focused on a given subtopic, but the whole thing.  That’s good to the extent my primary argument is “look at the whole package,” but it was bad for my hyperlinking because it was, e.g., hard to find articles that discussed indemnification agreements without also discussing charter provisions.  Ergo, I recommend using control-F to scan through these articles if you are looking for one specific topic of interest.  In rough order of accessibility:

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Notes

[1]  I am not a lawyer; just a business person doing his best to try and figure things out and share what I’ve learned along the way.  See my FAQ and the blog’s license agreement for additional disclaimers as well.

[2] I am writing about for-profit enterprises, though those interested in non-profit boards also face potential liability issues.

[3] I have skin the game here; I serve on the board of directors of several companies.

[4] There is an argument that startup executive officers who are not directors should also have an indemnification clause in their employment agreement.  See your lawyer for more.

[5] The NCVA provides a great collection of model legal documents, including a voting agreement, a term sheet, a stock purchase agreement, and many others.

[6] I am at/beyond my legal depth here.  All I know is you should ask your lawyer what needs to in the Charter to provide for maximum director protection.  See the Skadden Arps two-part series linked above for more detail on this specific topic.

Appearance on the “Yes, And Marketing” Podcast

A few days ago, Steve Pockross released a new episode of his Yes, And Marketing podcast on which he interviews a series of “eclectic and enlivening” marketers where “your weird shower thoughts and disparate liberal arts references take a road trip.” I was last week’s featured guest, and I don’t think the episode fails to deliver on its rather unusual promise.

Steve posted a nice summary of the session which lays out the topics we discussed including:

  • A rambling introduction where we talked about the Grateful Dead as related to marketing and business models, the philosophy of math and Russell’s paradox, the linkage between mysticism and quantum mechanics, the art of the proper French dinner, an unlikely similarity between geophysics and marketing (inverse problems), the quote from A Christmas Carol that most applies to upwardly mobile CMOs (“mankind was my business”), Gad Elmaleh, The Three-Body Problem trilogy, and stuff like that.
  • Imposing simplicity, a critical duty for all marketers
  • The two archetypal marketing messages, Bags Fly Free and Soup is Good Food.
  • Long vs. short copy and how to correctly apply David Ogilvy’s “long copy sells” adage.
  • Content marketing, and when to write C+ deliverables vs. A+ deliverables, and how to be explicit about that in planning.  (Lest you end with straight Bs.)
  • What to look for in a CMO for a startup, particularly if they’re potentially joining from a large company and you’re worried they may struggle in a startup environment.
  • Aligning sales and marketing, a perennial favorite topic, but this time both from the CMO and the individual marketer perspective.
  • The importance of rigorous definitions in messaging, and how you can use them to turn gray messages into black-and-white messages.
  • Walking the benefits stack by repeatedly asking “so what?” and not being afraid to do so.
  • Never forgetting the kiss, i.e., the ultimate benefit from the point of view of the customer, in your marketing.

Thanks to Steve for having me, to Crispin Read for referring me (his episode is well worth a listen), and to all of you who find the time to listen.  While I’ve been doing a  lot of podcast interviews of late, like the Grateful Dead, I promise that each show is different.  And this one’s a barn burner.

“The Board Brought Me In” Telltale

There’s only one executive who should ever say, “the board brought me in,” and that is the chief executive officer (CEO).  Yet, you’d be surprised how often you hear other executives — chief revenue officers (CROs), chief marketing officers (CMOs), chief product officers (CPOs), and most often chief financial officers (CFOs) — say, “the board brought me in.”

It usually comes up in an interview, with a candidate running through their background.

“Well, I was at XYZ-Co, and things were going great, but at PDQ-Co they needed some help, so the board brought me in to help get things back on track.”

A+ on storytelling, but (usually a) C- on reality attachment.  “And where,” methinks, “was the CEO during all this board bringing in and such?”

(And if things really were going so well at XYZ-Co, tell me why’d you jump ship to do a fixer-upper at PDQ-Co again?)

I always view “the board brought me in” language as a telltale.  Of what, I’m not entirely sure, but it’s usually one of these things:

  • Self-aggrandizement.  Sometimes, it’s just the candidate trying to sound larger-than-life and they think it sounds good to say, “the board brought me in.”  In this case, the candidate’s judgement and credibility come into question.
  • Innocent miscommunication.  Perhaps the candidate knew an existing board member and was referred into the position by them.  OK, I suppose technically they could think, “the board brought me in,” but didn’t the CEO interview them and make the final call?  Did the board really bring them in — as in, against the CEO’s wishes?  Maybe it’s just old-fashioned communications confusion.  Maybe.
  • Genuine confusion.  Or, perhaps the candidate is under the illusion that they somehow work for the board and not the CEO.  This can happen with CFOs in particular because, unlike all other CXOs, there is something of a special relationship between the board and the CFO.  But in tech startups, in my humble opinion, the CFO works for the CEO, period — not for the board.  They may have a special relationship with the board, they may meet with the board without the CEO being present (e.g., audit committees).  But they work for the CEO.  If you feel differently, great.  If you feel like I do — best to use this as a telltale of a potentially huge problem downstream.
  • A placeholder CEO.  There is always some chance the CEO is somehow a placeholder (e.g., a founder who’s lost all but positional power in the organization and acting in some lame duck capacity).  In this case, the CXO in question might just be saying the truth — perhaps the board really did bring them in.  But then the candidate’s going to need to explain why they jumped into such a mess [1].

I’m sure there are other possibilities as well.  But the main point of this post is to say that your ears should perk up every time you hear a CXO [2] candidate say, “the board brought me in.”  Mine do.

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Notes

[1] And I suspect the most common answer will be, “and they were planning to make me CEO in X months once they worked on the transition.”  In which case, I’d want to understand why the candidate is so trusting (or naïve), what written assurances were given, and why they would take a CXO job with a dubious call option on CEO as opposed to taking a straight-up CEO job.  (To which the best, but still somewhat unfortunate, answer is — it was the only available path I had at the time.)

[2] For all values of X != E.

 

 

B2B SaaS Metrics 2020 Benchmark Report: A Discussion with Ray Rike and The SaaS CFO

The purpose of this post is to embed the video recording of my recent appearance on Monday Night Metrics with Ray Rike of RevOps^2 and Ben Murray, also known by the sobriquet, The SaaS CFO.

In this fast-paced episode we move through topical discussions of the major SaaS metrics followed by investors and operators alike, and look at the size-segmented benchmarks presented in Ray’s 2020 B2B SaaS Metrics report.

I think the episode is suitable both for the SaaS metrics beginner because we review the basics for most metrics as well as for the grizzled professional because we dive into topical (and sometimes fairly non-obvious) discussions for many of them.

Here’s the video:

Thanks to Ray and Ben for having me!

A Quick Critique of Clubhouse

As you may know, I have been experimenting with Clubhouse over roughly the past six months in several capacities:  as a regular user, an occasional audience participant/questioner, and as the host of a regular room I’ve been running with Thomas Otter, the SaaS Product Power Breakfast.

I love to get involved with new social media platforms early because I’m interested in new forms of media (and the often subtle differences they bring), I enjoy watching early evolution of the products and their usage (e.g., the invention of hashtags or URL shortening on Twitter, the applause convention [1], speaking protocols [2], or the use of Instagram DMs on Clubhouse [3]), I like watching the minimum viable product (MVP) questions play out in real time, and I love to see strategy at work.

So, in that light, here is my quick critique of Clubhouse intended as both critical and constructive.

As a startup- and media-watcher, I’m of the opinion that, after raising money at a $4B valuation in April (and with maybe 50 total employees at the time), Clubhouse appears to have lost significant momentum in the past several months.  Why?

  • The pandemic is winding down.  I think Clubhouse got a significant pandemic tailwind when people were locked in, Zoomed out, and looking for new ways to connect with other humans.
  • Certain communities returned to IRL mode, notably comedians, one of several core Clubhouse communities.  Some of my favorite rooms were in Leah Lamarr’s Hot on the Mike club and it appears that many of those outstanding comedians are back working at physical clubs.  That’s great for them, but not for me — as a Clubhouse user I can’t just login when I’m free and easily find a great comedy room as I once could.
  • It’s hard to reliably find live content.  The key difference between podcasts and Clubhouse rooms is the serendipity of live content (e.g., when I stumbled into a room with John Mayer) and the potential for interactivity [4].  Without those two things, I can just listen to a recorded podcast.  If you can’t find content, what good is the app?  It becomes like cable TV — 500 channels, but nothing to watch.  Every day I am less enthusiastic about firing up the app because I think I’ll either spend half my time looking for something [5] or fail entirely.
  • The app doesn’t get the most basic thing right:  language.  While I do listen to content in two languages, the app is constantly showing rooms in my hallway with titles (and dialog) in languages that I don’t speak.
  • The app has no room-search functionality.  The single most basic, MVP-level feature is (still) missing:  search in-progress rooms by keyword (or topic) in the title or description.  Not there.  Stunning.
  • The follow paradigm is wrong.  Content discovery is based primarily on people, not topics.  Using myself as an example, I like:  enterprise software, the Grateful Dead, French language, comedy, startups, mathematics, and philosophy.  Just because you like enterprise software doesn’t mean you like the Grateful Dead or topology.  While the app notionally supports topics, they appear ignored in composing your hallway [6].
  • The app does not appear to learn.  While the app does not appear to learn what I like in formulating suggestions in the hallway, it does appear to learn some bad lessons:  e.g., if you actually stumble into a single Russian room it seems to suggest them endlessly.
  • The app breaks trust in machine learning.  In an era of sophisticated users, I’m OK to hide-room numerous times in order to teach the app my preferences.  While hide-room didn’t appear to actually do anything (yet), I was confident that at some point they’d leverage that data to improve my experience.  Then one day hide-room seems to have simply disappeared from the app, so all that teaching appears to have been wasted.  That breaks my trust.  Don’t ask me questions if you’re going to throw away the answers.
  • The app is gameable in odd ways.  It appears that long-running rooms get some advantage in hallway prioritization so there are people who run rooms for days on end (e.g., Scenes From an Airport Terminal) that pollute my hallway, and that now I can’t even hide.  If the app were focused on topics and not people and duration, they could eliminate this.
  • The community has too many hucksters and charlatans.  Everyone seems to be a millionaire, successfully running five companies, a great venture investor, and yet still somehow need $99 from you to take their masterclass.  Just reading the bios of the moderators in many rooms makes me feel vaguely ill.  Hearing the advice these people give to would-be entrepreneurs makes me feel worse.  Don’t get me wrong, some rooms are amazing and offer an experience you can find nowhere else.  But a lot of Clubhouse feels like the vapid self-help section of a bookstore.  Oh, and don’t forget your laser eyes before going into the crypto rooms.

What to do about it?

  • Strategically, Clubhouse seems to have missed the systematic expansion memo (e.g., Amazon from books to DVDs to cameras and onward, or Facebook from Harvard students to Ivy League students to College students to broader groups).  I think their decision to port the app to Android before coming even close to completing it (e.g., content discovery, search) was a big mistake.  They need to focus on completing the app first.  Get to MVP before porting the app.
  • Systematic expansion includes not only product but community.  Just as they need to prioritize their product features to complete the product in a logical order, they need to decide which communities they want to serve (and, no, “creators” is not a sufficiently focused community definition).  I think comedians may be gone for good because the time that people want to hear them is precisely the time they are out at work.  But there are lots and lots of communities on Clubhouse they can try to develop (e.g., Silicon Valley VC/startups which had an early focus but seems to have faded away, crypto, activism, real estate, investing).  Just pick some and complete the app for them.
  • Appoint community mangers.  In addition to product managers to drive functionality, appoint and empower community managers and not just to makes rules about content [7] but to help build the community in a given topic area.  Just as retailers have category managers (someone responsible for, e.g., swimwear at a business level) so should Clubhouse have community managers.
  • Play for your users, not your VCs.  Existing users definitionally were not pushing for Android.  I’m guessing the VCs were — so they could continue to show great adoption.  But what good is great adoption if, after using the app a few times, everyone drops off because they can’t find anything they want to listen to?  Without great content on the app, there is no need for the app.
  • Stay in touch and on the ground.  One of my favorite rooms was cofounder Paul Davison’s weekly introduction [8] for new members (on Thursday evenings) that I assume he’s still running.  I know he runs a weekly Town Hall as well.  Paul is a great spokesperson, communicator, and listener and I love that he stays in such direct touch with his user base.  They just need to add some more systematic strategic focus atop that and some Geoffrey Moore 101 to go with it — complete the app, use-case by use-case and don’t get stretched too far, too fast in the process.

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Notes

[1] Muting and unmuting your microphone in rapid succession

[2] Examples:  Pull-to-refresh (PTR) order.  Or the “this is Dave and I am done speaking” protocol, which is seemingly for several reasons including:  to identify speakers in rooms with large numbers of moderators where you may not be able to find the speaker (e.g., if they are buried three screens down), as a basic courtesy protocol, and for accessibility reasons for people who are unable see the grey ring indicating speaker identity.

[3] A great example of not needlessly building DMs a feature, but instead supporting profiles that link to Instagram and the community quickly embracing Instagram as the default DM method on Clubhouse.

[4] If you want to raise your hand and ask a question and are so selected — itself another issue as I’d been in numerous rooms where people said they waited literally for hours

[5] And because Clubhouse can be and is often best done while multi-tasking, it needs to be fast and easy to find something, e.g., when you’re hopping on the treadmill.

[6] The app suggests if you’re not finding content you want to “follow more people” — not to like more topics.

[7] The narrow definition of community manager is about making and enforcing rules for rooms, dealing with reported speakers, etc.  While such activity is important, it’s table stakes — a community manager should be far more than a security guard, but instead a leader trying to build the community, drive membership, foster and promote rooms, etc.

[8] Even though it was notionally an “introduction” I attended for several weeks just to hear Paul talk about the app and his vision.