Level up governance presentation dave litwiller - march 2013

Building Better Boards of DirectorsGrowth- and Expansion-Stage Tech Companies

Dave LitwillerExecutive-in-Residence

March 27, 2013

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Copyright, David J. Litwiller 2013 2

Introduction

• Looking beyond standardized recommended and legally required practices for growth- and expansion-stage tech company boards of directors

• Discussion of the tools, traits and techniques which have the highest direct influence on board performance, and company performance


Going from Good to Great

• Collective productivity increase:– 3* to 10* higher for great vs. good– More time thoughtfully researching and deliberating the right

things – Faster learning– Better ongoing adaptation – More constructive handling of conflict

• Outsized contribution to: – Company leadership , by example and positive tension– Winning culture – Ecology of sustained outsized success


Overview

• People• Board Evolution• High Impact Practices• CEO Performance Evaluation and Communication• Chairmanship• Board Assessment

- Break -• Corporate Metrics and Practices to Monitor• Governance of High Impact Growth Initiatives• Later-Stage Financing and Liquidity Board Issues


My Background• Twenty+ year trajectory of R&D, marketing, finance and general

management roles in early-, growth-stage and scaled-up tech companies in Waterloo region

• Governance

• Spent a number of years heading M&A, divestiture, turnaround, and corporate venture finance activities in semiconductor and enterprise software businesses, as well as work in instrumentation, automation, and med/biotech

• As EIR, presently advise over sixty tech companies’ founders, boards and investors


People• Being a director is work, and people need to be work-like about it

• Yearly commitment of time to do it well– Regular director: 250 hours– Committee chair: 350 hours– Non-executive chairman: 450 hours

• Devote time outside the boardroom 2:1 compared to the hours spent in board and committee meetings

• Available to each other, the chairman and the CEO for 1:1 ad hoc discussions


People

• The board needs to collectively be knowledgeable about all salient aspects of the business and its context, even though individual directors’ skills can be more narrow

• Capable of expressing independent viewpoints, and challenge others when necessary

• Not afraid to ask a “dumb” question

• Strongly competitive and ambitious for the business, but tempered with integrity, judgment and adaptability


People

• Attuned to the emotions and body language of others as discussion unfolds

• Able to hear and assimilate what others are saying

• Able to adopt decisions as their own, after a decision has been reached

• Willingly and easily communicate frame of reference (goals, criteria) and thought process for reaching conclusions, not just the conclusions themselves


People

• Bias for action; somewhat impatient

• Relentlessly questioning to make the most of the company’s opportunity

• Sound out their major concerns off-line with the chair in advance of board meetings

• Usually operate more in a Socratic method than telling management what to do, unless a crisis is unfolding


People

• At least one person who is the Ying to the CEO’s Yang– i.e. if the CEO has a sales background and

personality, a counterweight board member with a technology or operations focus

• At least one person who personifies the target market or competitive ecosystem– Frequently filled with one or more of the

independent director seats


Evolving the BoD - General

• Term limits, typically three years

• Current directors and officers routinely networking to develop director candidates

• Periodic board self assessment to identify weaknesses and skill gaps as the basis for targeting new nominees, shifting skills and backgrounds, and better practices


Evolving the BoD - General

• Designate directors to see that planned new practices get implemented well, quickly, and further tuned

• Balanced origination of nominees from CEO and non-executive directors as business conditions vary– Don’t pendulate from one to the other


Evolving BoD Skills with the Stage of Company Development

CompanyStage

Typical # of Directors

Typical Director Mix

Key Skills

Seed and Start-up

3 1 Founder1 Investor1 Independent

Recruiting, technology, operational set-up, angel/VC funding, ecosystem relationship development critical to success over next 18 months

Growth 5 2 Founders2 Investors1 Independent

Commercialization, operational refinement, institutionalizing know-how, scaling, growth finance, working capital management, international reach

Late Expansion

7 2 Founders2 Investors3 Independents

Increasing financial sophistication, acquisition or IPO savvy, governance discipline and improvement, reduction of surprises, sustaining strong growth


Minutes

• All directors need to be engaged, active contributors, and documented as such

• A director’s duty of care and fiduciary duty require consideration of multiple possibilities on major decisions

• Bodies under observation (or prospect of future study) behave better than those not– Minutes serve as a kind of self-observation

• Vanilla minutes, describing decisions only, are insufficient


High Impact Board PracticesCompany Stage

Practice Helps

Growth • Executive sessions• CEO and management

performance feedback• Agenda effort

• Independence of board• Correct quickly and early• Keep up spirited inquiry in the most

impactful areasLate Expansion

• Continuous improvement of governance

• Methodical director onboarding

• Seek diversity in director candidates

• Evolution of the BoD as a self-regulating body

• Accelerate time to full individual and group productivity, facilitating renewal

• Avoid path dependency


BoD Advice• There’s no shortcut for spending the time and doing a lot of reading and

networking for a director to bring an informed, independent viewpoint about a company’s strategic environment

• Speed, decisiveness and dexterity improve with a somewhat smaller board than larger, IFF, sufficiently broad, experienced, and dedicated directors are available to span the requisite disciplines with a marginally smaller group

• Meet eight times per year, in person

• Don’t let the flurry of other business push aside a deep dive each meeting into the matters which are keeping the CEO and CFO up at night, and to understand what alternate data , viewpoints and interpretations exist to richen the discussion on those matters


BoD Advice• Require board packages be delivered to directors 72 hours in advance of

meeting, with a cover memo identifying which items are informational only, and those which will be deliberated and decided

• Structure discussion so that management’s recommendations are clear, yet with room for director input, but stopping short (usually) of unbounded possibilities

• At every board meeting, discuss the quality of information, agenda, time allocation, and deliberation process with each director contributing 1-2 improvements for future meetings

• Conduct brief executive sessions at each board meeting to discuss management and board performance without members of management present, as well as who will deliver that feedback


BoD Advice• Have executive management provide regular feedback on where it has

gotten the most help, and the most frustration, from the BoD

• In normal circumstances, use 75% of time in the boardroom looking forward (strategic, market), and 25% looking back (finance, ops)– Don’t get into caught in the trap of exciting near term events, routine updates,

and KPIs taking all the time

• Rotate which board member will take a hard stand on difficult issues as they arise, so that one person does not always take the role of critic

• Designate one responsible director for the CEO performance evaluation process, even though all directors participate


CEO Performance Evaluation

• Make sure this isn’t the agenda item that gets cut for time meeting after meeting

• Have a rigorous process for evaluation

• Separate short- and long-term goals

• Define poor, acceptable and outstanding performance up front


CEO Performance Evaluation• Discuss in executive sessions the potential for incentive bias

– Ensure employment agreements include claw-backs for awards which are subsequently wiped out by restatements

• Have two or more non-executive directors deliver performance feedback– Criticism then doesn’t come across as an axe being ground by one which

isn’t shared by others

• Be very cautions about retroactive performance target revisions for compensation– Quickly becomes corrosive to a culture of execution– Trickle down effect throughout organization


CEO Succession Planning

• Know who takes over from the BoD or from executive management in the event of temporary CEO incapacitation

• Routinely discuss who would take over in a planned or compelled transition– The half life of a growth stage tech company CEO is about three years– Succession is not a remote probability which can be downplayed– The probability of success with an insider is higher than an outsider

(culture, industry knowledge, technology know-how)– Get to know the high potential executives below the CEO who are

able to work within the current system, but can also break from the status quo


CEO Succession Planning

• Directly confronting CEO succession prompts the most constructive behaviours by the BoD to provide regular performance feedback– Boards which cannot confront succession planning

tend to also be much weaker on CEO evaluation


Director Onboarding

• Get to know inbound directors as individuals before the first meeting, outside of the boardroom, to help build communication and trust

• Have an incumbent non-executive director act as a mentor to a new director

• Help prepare for first meeting to get a fast start contributing

• Arrange 1:1 meetings with the CEO, other executive managers, and all directors


Director Onboarding

• Onboarding education package including past two years’ minutes, last two reading packages, corporate by-laws, etc.

• Disclosure of any matters discussed at most recent executive sessions or full board meetings, not yet minuted, of which the inbound director should be aware


Chairmanship

• The BoD can only be as good as its chairmanship for setting the tone and interpersonal chemistry– Leading among peers– Tact: ability to disagree without being

disagreeable; constructive dissent– Bringing everyone into the discussion, and not

letting one voice dominate– Setting high expectations– Communicating easily with other directors, the

CEO, and management


Chairmanship

– Encouraging debate and expression of minority viewpoints while sustaining cohesion

– Keeping conflict at a task level or a frame of reference level, and not a relationship level or a fact level

– On difficult, divisive issues • Requesting multiple options from each individual to prevent

premature polarization to single views• Having proponents express both pro and con arguments to foster

balance and intellectual honesty

– Knowing directors’ leading concerns before each meeting– Probing for unspoken concerns


Chairmanship

– Formally checking with all members before a major decision– Keeping debate from dragging on to the point of frustration– Structuring deliberation and decision into a two-step

process on divisive issues– Effort and preparation, leading by example– Marshaling varied input into coherent action points– Collaborating on agenda development with the CEO,

showing a clear sense of purpose– Making sure that major business, financial, strategic and

team issues get discussed, and not pushed aside by smaller matters


Chairmanship

– Driven improvement of board practices– Quickly reconciling emerging differences among directors’

visions for the board’s role, and those of management– Promoting openness by encouraging board members to

make direct proposals, not disguised or oblique ones– Weaving themes and points of importance together to create

an integration of each meeting around major current issues– Set-up each portion of the discussion with a purpose, what

management is expecting from the BoD (info sharing, debate, decision), scope, and what has come before


Chairmanship

– Being able to both criticize and support management by intermixing comments

– Quickly dealing with director underperformance– Rapidly addressing informational or disclosure issues

which cause surprises


Executive Sessions

• Have at least one executive session at each board meeting

• Better is two– One just before the meeting to discuss any desired changes

to the agenda based on review of the reading packages and other late breaking developments

– The other just after the meeting to discuss impressions and provide feedback to the chair and CEO

• Routine executive sessions cut down on CEO apprehension about directors meeting without him/her


Executive Sessions

• Regular in camera meetings provide a safe, non-adversarial environment where non-executive directors can speak their minds – Helps keep little issues from growing into big ones

• Minutes

• Chaired by the board chairman if non-executive, and otherwise by the lead independent director


Executive Sessions

Matters to Always Discuss:• Is time being devoted by the board to the right work?• Is the supplied information adequate? • Strengths and concerns about the performance of the CEO and

executive management• How we’re doing coaching and providing performance feedback to

the CEO• Executive compensation• How are we, the board, doing?• Gaps in board skills which are emerging?• Implementation of action plans coming out from recent board

self-assessments


Executive Sessions

Cautions:• If self-evaluation of the board starts devolving

to structural issues only, rather than effectiveness issues– Can happen to protect egos, out of fear, or

complacency


CEO Communication - Biggest Worries

Three Quarters Ago Two Quarters Ago Last Quarter This Quarter

#1

#2

#3

#4


CEO Communication – Reading Package Cover Memo

Summary of:• What has gone well vs. plan• What has not• Portions of the reading package to review with

particular care• Potential changes to strategic goals• What most needs to be discussed• Decisions needed from the BoD• What help is most needed from the BoD


Board Assessment

• Beyond the standard checklist– Systemic Learning

• Learning not just about outcomes, but about the decision process the board uses

• Emphasis– Experience is knowing what happened– Learning is knowing why it happened– Learning to learn is the ultimate goal– It is the only way to achieve peak productivity in a rapidly changing

and complex environment


Board Assessment

Decision Process• What have I learned about my own frames of

reference?• About the frames of others?• About the way we gather intelligence?• About the process we use to reach conclusions?• Overall, what do I value and not value about our

decision process?


Board Assessment

Decision Process• Where should we spend more and less time

versus the recent past?– Discussing frames of reference– Gathering information– Coming to conclusions– Learning from outcomes


Board Assessment

• Lessons learned– From two recent successes– From two recent failures

• Balance is vital in lessons learned analysis because human bias is for successes to be seen as more relevant over time, whereas more learning potential is often embedded in the failures

• Immediate after-action lessons learned are particularly important in time- and resource-critical decision environments


Board Assessment

• Learning Capacity– Sufficient and clear information about decision results– Enough time to make sense of the information available– Opportunity to test learning conclusions in new decisions– Ability to see how observed conclusions might be interpreted

differently– Willingness to expose ourselves to learning feedback– Open mindedness before reaching conclusions– Feedback fidelity, acceptance and assimilation– Objectivity separating skill from luck– Learning fast and early, in time to make midcourse corrections


Board Assessment

• Like many other tools, assessments get dull over time and less effective if the format and questions don’t change– Change the format yearly to get people thinking

and communicating in new ways


BoD Early Warning SignsSignals of insufficient director effort or poor skill correlation with the needs of the business:

• Overreliance on service providers; they do not just provide expert input, the BoD effectively outsources decisions

• Routine over-deference to the one board member with the most expertise in a subject area

• Vital decisions are almost always made just with the facts and arguments on hand, rather than spending time in some instances to question the source information and get more, varied, and better data


Early Warning Signs• Insufficient give and take between directors and management

• Lackluster inquiry into areas of underperformance

• Poor meeting management– Time– Agenda – Spiraling out of control on issues without an ability to

summarize work to date, forward actions, and move ahead to other business

• Insufficient declaration of conflicts


Early Warning Signs

• Lack of discretion or confidentiality– What goes on in the boardroom stays in the boardroom

• Inability to discuss– Assumptions– Dependencies– Next best alternatives– Scenario plans and signals/conditions to shift tracks

• Premature major investments


- Break -


Corporate Metrics


Master Metrics• Customer preference ranking – quantitative and qualitative

– Get data not just from current customers, but also those that are wavering and recently departed

– Good customers define quality– Cohort analysis to monitor trends

• Rising efficiency (RoA, RoE, margins)– Aim for fast completion of measurements, not for perfection– It is big changes that need to be picked up upon and investigated

• Returns above the cost of capital (CoC)– Regular review of past major investments and whether they retuned at

the expected levels, above the CoC, and why


Master Metrics

• Growth of market share well above the market’s rate of growth– Look also for further evidence of whether or not the company is

setting industry expectations to which competitors have to react, rather than the reverse

• Variances in results from success-premised plans– Rapid attention when variability first re-emerges after a period of

relatively consistent and predictable growth– Correlation=causality mindsets in mgmt & BoD often have taken

hold during the recent past time of smooth sailing– Drill into recent past variances at more atomized level to diagnose

lurking trouble quickly


Master Metrics

• Speed of execution, and, speed of feedback adaptation– Idea to product– Market to sell– Quotation to cash– Forecast to delivery– Issue to resolution


Diagnosing Corporate HR Practices

People• There is selective recruitment, challenging training,

methodical enculturation and removal of misfits

• The business targets and rewards those who seek responsibility and not merely accept it

• Staff and management see themselves as responsible for more than their job descriptions


Diagnosing Corporate HR PracticesLeadership• Defines, communicates and reiterates corporate vision and strategy

– Staff is engaged and involved in the debate, though decisions are made by leaders – Once decisions are made, everyone abides by them as if those decisions were their

own

• Over-communicates about company progress, challenges, measures of performance, and relationships to mission objectives – Particularly in challenging circumstances, communication keeps up

• Hires for capability and a positive, winning attitude – Roots out passivity, poor attitudes and passive dissent

• Walks the talk, leading by example



Culture• Results matter. There is a desire to win in all circumstances

• Work is fun. Energy is high. Whining is unacceptable

• There is one ego in the company, the company itself. There is esprit de corps and a shared pride in the organization

• Group pursuit of mastery in the company’s endeavor. This superordinate goal produces engagement, grit and determination. It releases greater creativity than more rote objectives and converts much more of work into something pleasurable



Culture• Motivation for staff comes from developing and maintaining

the respect of their peers as much as from monetary rewards

• Obsess over customers. Do what it takes to make them successful

• Exhibit mutual respect for what different people and functions bring to the table

• The best idea wins, no matter from whom or where it came


Diagnosing Corporate HR PracticesCulture• Truth speaks to power, connecting leaders authentically to people,

protecting the capacity to inquire and improve

• Value learning and constructively harnessing the lessons of failure – Smart failure – fast, cheap and not the same way twice - is not harshly punished – Mistakes are disclosed as soon as they are known so that they can be corrected

most quickly and cheaply

• Integrity is without compromise – If integrity lapses occur, they attack all other aspects of an otherwise enduring

and strong culture – Integrity breaches rapidly become malignant– Any integrity deviations must be swiftly and decisively fixed


Major New Growth Initiatives – Re-Learning Early-Stage Skills

• Growth- and expansion-stage companies are accustomed to being right far more than they are wrong

• Overconfidence can easily start overtaking governance and executive teams

• Slowing growth leads people to seek to reaccelerate through nonlinear growth endeavours

• Major new growth initiatives require a diametrically different mindset– The initial trajectory is likely wrong– The name of the game is to decrease the amount of “wrong-ness” as quickly

and methodically as possible– Back to the Future: An early-stage mindset


High Impact Board Practices – Major Growth Initiatives

Practice Helps

• Prospective hindsight• Reference class analysis• Pre-commitment• Commitment limits

• Manage risk, coaching, coach-ability• Reduce sampling and intuition errors• Catalyze learning, antidote groupthink• Counter decision drift & confirmation bias• Do more with less; pivot effectively


Major Growth Initiatives – Warning Signs

• Big bang initiatives– Signal overconfidence– Start instead with MVP and MVF, and iterate fast

toward the long-term goal

• Adjacency to the core business that is more tenuous than people first recognize1

– Probability of success with true adjacency is about 40%– It drops to under 10% as distance in technology,

markets and operations depart from the core business 1. Source: “Beyond the Core”, Zook, 2004


Financing and Liquidity


Institutional Growth-Stage Equity Financing

• Get to know the accounting used by a candidate fund to report to its LP’s and for calculating partner variable compensation– Funds don’t like to talk about this– Differences in accounting models and

compensation mechanisms are considerable– These mismatches become most acute when

work-outs are required to adapt to changing circumstances, complicating board function


Institutional Growth-Stage Equity Financing

– Moreover, if the fund has a board appointee, the double fiduciary duty introduces intrinsic conflicts which have derivative impacts to behaviour

– Due diligence through past investees of the same fund and partners is the best way to understand accounting models, prospective gaming, and whether the intrinsic conflict for an appointee of the fund is likely manageable or not


Institutional Growth-Stage Debt Financing

• Bank Lines and Structured Commercial Credit– Periodically review the key terms, structures and

restrictive covenants


Institutional Growth-Stage Debt Financing

• Venture Debt– If the company is not yet cash flow positive, pay particular

attention to jurisdictional fiduciary duties in the zone of insolvency if the company is contemplating venture debt financing

– Be watchful for material adverse change (MAC) clauses (a.k.a. subjective default) which amplify technical, execution and market risk

– Learn if candidate venture lenders are co-financing other ventures with the governed business’ other investors since reciprocity can be at play and introduce conflicts down the line


Liquidity - IPO

• Rely much more on IPO data than i-banker advice when contemplating sustainability and advisability

• i-banker largely just wants the fees as long as the company can put $75M on the cover of a prospectus, and has some visibility and predictive operating history

• From a governance perspective, the IPO process itself is just the race to the starting line for crystallizing value; the real race comes after


Liquidity - IPO

• There are unique small cap issues which make IPO success about much more than operating execution– Very different world from large caps where execution is

enough

• Trading volume is the root of almost all premature IPO difficulties, not the culprits people would rather cite which obscure the real issue


Reinforcing Loop of Low Trading Volume

Low(er) Trading Volume

Illiquidity

Increased Risk

Lack of Institutional

Interest

Lack of Analyst Coverage


Low Public Company Trading Volume

• With low trading volume, a tech company ends up in the untenable position of having to try to appeal mainly to retail investors

• Ineffectual long-term manoeuvres then become the only levers available, such as – Engaging IR communication firms – Stock buy-backs and reverse splits – These kinds of measures only exacerbate matters mid- to

long-term for companies that should be growing rapidly


Low Public Company Trading Volume

• Raises cost of capital, harming strategic flexibility

• Pressures company to divulge more competitively sensitive information than is wise, to try to recapture investor interest in advance of having better operating results

• Overall, balance of power shifts: – The company needs investors much more than investors

need the company


Liquidity - IPO

• Empirically and definitively: – Trading volume falls off exponentially (not linearly) as

valuation drops below $500M

• Microcap options on venture exchanges in most cases are only productive for junior resource plays and some early stage pharma, not most tech companies– Predictive value of early metrics much higher in resources– Jr. exchanges are a financing vehicle, not a liquidity

vehicle


Liquidity - IPO

• Bottom line: An IPO is only a robust liquidity avenue if a market cap above $500M can be comfortably sustained through some post-IPO ups and downs

• This has inferences even for express or implied competitive liquidity alternatives to M&A as the primary liquidity vehicle


Liquidity – M&A

• To drive competitive buyer dynamics to maximize shareholder value and stakeholder flexibility, there need to be five motivated buyers for a business when it wants to sell

• This end-game requirement has inferences for growth-stage partnership formation

• It also affects zero-start auction mechanics requiring at least forty plausible suitors in steady business conditions, and up to eighty in more challenging times


Hiring Legal Counsel – Tectonic Events

• Financings and Litigation– Extensive, recent experience (prior 18 months)– Representing similarly situated companies– Similar financings or litigation– Reference checks (quantity doesn’t ensure quality)– Not: allegiance or incumbency from earlier times

• IP Disputes– Above, plus– Venue expertise


Summary• Get the right people• Focus as much on what to discuss and independent learning, as is

spent in deliberation itself• Delve into assumptions, dependencies and alternate interpretations

and approaches as much as the facts and figures themselves• Keep up attention during implementation, both to foster execution, as

well as to provide further adaption• Be pleased when things go well, but never be satisfied• Never shy away from difficult conversations• Evolve, learn and renew• On target an IPO if the market cap can stay >$500M• Strategic buyer dynamics are much better with five or more motivated

suitors


Resources and Further Reading– Directors’ Duties in Canada, Barry Reiter

http://www.cch.ca/product.aspx?WebID=3688

– Decisions 2.0: The Power of Collective Intelligence, Bonabeauhttp://people.icoserver.com/users/eric/SMR_Collective_Decisions.pdf

– The Big Idea: Before You Make That Big Decision…, Kahnemanhttp://www.paginasprodigy.com.mx/RPA1958/BigDecision.pdf

– Winning Decisions, Russo and Schoemakerhttp://www.randomhouse.com/book/159138/winning-decisions-by-j-edward-russo-and-paul-jh-schoemaker

– The Psychology of Human Misjudgment, Munger

http://law.indiana.edu/instruction/profession/doc/16_1.pdf



http://people.icoserver.com/users/eric/SMR_Collective_Decisions.pdf

http://people.icoserver.com/users/eric/SMR_Collective_Decisions.pdf

http://www.paginasprodigy.com.mx/RPA1958/BigDecision.pdf

http://www.paginasprodigy.com.mx/RPA1958/BigDecision.pdf

http://www.randomhouse.com/book/159138/winning-decisions-by-j-edward-russo-and-paul-jh-schoemaker

http://www.randomhouse.com/book/159138/winning-decisions-by-j-edward-russo-and-paul-jh-schoemaker



© David J. Litwiller, 2013 74

Follow-up Discussion

Contact:

dave [dot] litwiller [at] communitech.ca

Business

Level up governance presentation dave litwiller - march 2013