A Deeper Dive Into Board Pay

How you pay your board may have a surprising effect on its total pay package, according to Bank Director’s 2020 Compensation Survey. This exclusive analysis has been created specifically for members of our Bank Services program.

Across asset sizes, banks paying an annual retainer generally award more total compensation to the board compared to their fee-only peers or those that award a mix of the two. This analysis focuses solely on cash compensation for the full board, in the form of meetings fees and retainers. Committee compensation is excluded due to variances in structure and meeting frequency, although 63% award committee fees.

Estimated Annual Pay, by Type and Asset Size

 >$10B$1B – $10B$500M – $1B$250M – $500M<$250MAll Banks
Annual Retainer Only$595,000$380,000$312,750$180,000$150,000$400,000
Meeting Fee Only$921,000$120,000$140,000$105,000$65,000$107,500
Both Retainer + Fees$225,000$118,000$90,000$85,400$77,500$105,000

*Estimated annual pay assumes 10 directors per board and 10 meetings per year, based on the 2020 Compensation Survey.

The low usage of meeting fees by banks above $10 billion in assets, and of annual retainers by banks below $500 million in assets, result in smaller data sets for those groups.

So, are retainer-only banks overpaying their boards? Are fee-only banks underpaying theirs?

Board responsibilities have risen greatly since the last financial crisis more than a decade ago. Regulators expect more from directors; while the buck stops with the CEO, that individual ultimately reports to the board. So, while it’s hard to say what’s right and what’s wrong when it comes to board pay, the gradual, increased use of annual retainers — from 61% five years ago to 70% today — reflects a realization by many boards that their members are spending more time outside of meetings on bank matters, whether that’s reviewing board packets or educating themselves on issues important to the oversight of the bank.

Annual retainers can better demonstrate the amount of the work directors put in. 

What’s more, technology has expanded how the board can meet. Some boards already offered phone and video conferencing options to more-remote members, like snowbirds who head south for the winter. The Covid-19 pandemic forced entire boards to adopt these measures, so they could become a more permanent feature for some. Should those attending virtually be compensated differently?

Annual Cash Compensation Per Director, by Type and Asset Size

 >$10B$1B – $10B$500M – $1B$250M – $500M<$250MAll Banks
Annual Retainer Only$59,500$38,000$31,275$18,000$15,000$40,000
Meeting Fee Only$92,100$12,000$14,000$10,500$6,500$10,750
Both Retainer + Fees$45,000$28,000$22,500$17,900$14,500$24,000

*Estimated annual pay per director assumes 10 meetings per year, based on the 2020 Compensation Survey. The low usage of meeting fees by banks above $10 billion in assets, and of annual retainers by banks below $500 million in assets, result in smaller data sets for those groups.

Getting the compensation mix right is vital to attracting the new talent a board needs to oversee the bank. Boards are often seeking someone younger. They may be looking to add gender or ethnic diversity. Or they may be looking for new skills.

While the 2017 Compensation Survey indicated that directors serve for loftier reasons than a supplemental paycheck — 62% cited personal growth as the top reason they serve — new, younger directors could be balancing an already high-pressure career with family obligations. And other organizations could be seeking their valuable time. Your bank likely isn’t the only one in its community on the hunt for board talent.

“It’s difficult to fully compensate someone for their time as a director,” says Flynt Gallagher, president of Compensation Advisors. “If you’re going to pay them for the time they put in, the skills they bring to the board — they’d be unaffordable.”

But boards still need to make it worthwhile to serve. Simultaneously, they may feel pressure to maintain current pay levels during the economic downturn.

Compensation committees could consider awarding equity compensation, which wasn’t factored into this analysis. Equity provides a way to pay directors more — and gives them additional skin in the game — without having an outsized effect on total compensation. Roughly half of survey respondents, primarily at public banks, awarded equity to outside directors in fiscal year 2019, at a median fair market value of $30,000. 

Bank Director’s 2020 Compensation Survey, sponsored by Compensation Advisors, surveyed 265 independent directors, CEOs, human resources officers and other senior executives of U.S. banks to understand trends around the acquisition of talent, CEO performance and pay, and director compensation. The survey was conducted in March and April 2020. Compensation data for directors and CEOs for fiscal year 2019 was also collected from the proxy statements of 98 publicly traded banks. Fifty-three percent of the total data represent financial institutions above $1 billion in assets; 59% are public.

Several units in Bank Director’s Online Training Series focus on compensation matters. You can also learn more about finding new talent for the board by reading “Cast a Wider Net for Your Next Director” and “How to Recruit Younger Directors.” If you’re considering virtual meetings, read “Best Practices for Virtual Board Meetings” to learn more about navigating that shift.

Best Practices for Virtual Board Meetings

Dallas Kayser, the chairman at $5.1 billion City Holding Co. in Charleston, West Virginia, says his board has essentially been “on call” throughout the coronavirus crisis, with more frequent board and executive committee meetings to discuss issues like how the bank will offer small business customers the Paycheck Protection Program loans launched under the Coronavirus Aid, Relief, & Economic Security (CARES) Act.

But given the nature of the pandemic, which has shut down many sectors of the U.S. economy, directors aren’t meeting face-to-face in the boardroom. Instead, they’re meeting virtually. 

Covid-19 has quickly changed how boards conduct their business.

Meeting virtually isn’t new. We’ve had the technology for years, and many boards already had some sort of virtual attendance option in place for far-flung directors — snowbirds, for example, or those more distantly located from the bank’s headquarters. The difference now? “This is the first and only time we’ve all 100% been forced to do it, if we want to meet. That’s why it feels new,”  says Dottie Schindlinger, the executive director of Diligent Institute, part of governance software provider Diligent Corp.

As boards have quickly learned, there are important considerations to keep in mind when meeting virtually. Bank Director compiled the following checklist, based on conversations with industry experts, for your board’s consideration as it navigates this shift.

1. Establish ground rules.
First, the board should understand how state laws and other regulations govern virtual board meetings, including how it will impact procedures like establishing a quorum and voting. Also, review the board’s policies and bylaws to see if they should be updated for meeting virtually.

You’ll also want to consider how the technology used by the board impacts seemingly simple matters like minutes and roll call. If the board is using an audio-only format, a roll call will be necessary. It will also be important for directors to introduce themselves before speaking, to ensure accurate minutes.

The board should also weigh the pros and cons of audio versus video technology. Many find discussions more productive through video, due to the ability to pick up on others’ visual cues.

However, using video raises new questions that boards will have to consider. Should someone record the meeting? Should directors be required to use web cams, so everyone can see one another? Should directors be encouraged to use headsets, to ensure conversations are private? And if the bank’s staff runs the technology, how can the board meet in executive session?

And it’s important to understand any technology needs directors may have now that they’re logging in from their homes. The iPad the bank purchased a few years ago may not be able to run the latest and greatest video-conferencing solution. Also, someone at the bank will need to serve as “tech support” as the board gets used to this new way of meeting.

2. Rethink the agenda.
Consider shorter, more frequent meetings, and focus the agenda on the critical issues that the board needs to discuss at that time. Ensure materials are received in advance to allow sufficient time to review, as directors can’t spend time catching up during the shorter meetings. And clearly define roles in advance, if needed. Who will lead the discussion on a particular issue? Who will take minutes?

Also, wrap up the meeting by reviewing the key items discussed and items that require further action, recommends Denise Kuprionis, the president of The Governance Solutions Group.

And sometimes, old-school methods work. Kayser at City Holding prints out the agenda, so he can check off items as they’re discussed.

3. The role of the facilitator could evolve.
The chair or lead director should make a more concerted effort to engage every director. Everyone’s voice should be heard.

Kuprionis recommends keeping a list of all board members at hand, so no one’s forgotten. “You’re listening to a conversation, you’re participating [and] you get caught up,” she says. “If you have that list in front of you … it helps you remember who’s not there.”

Also, be emboldened to speak up when someone’s dominating the conversation. It’s easy in face-to-face meetings for a single individual to do this; the problem is compounded when visual cues have been removed. Discuss — as a board — how these directors can be reined in. One solution Schindlinger recommends is time limits. When one director has spoken for a predetermined time limit, the chair can interrupt or mute that individual, and move on to request input from other board members.

For more on facilitating effective meetings, read “A Roadmap for Productive Board Discussions.”

4. Ensure secure communications.
Not all formats provide the security boards need, so that should be considered as specific technologies are reviewed. Are passwords required? Is there a waiting room feature, so guests — like executives — can be held outside the meeting until the board is ready?

You’ll also want to wean directors off paper packets, or at least talk with some directors about how to access and print their materials securely. Don’t discuss board business via email, says Schindlinger. “You know the old adage, ‘never waste a good crisis?’ Well, hackers have really taken that to heart. They are looking for opportunities to exploit all of us right now, because we’re vulnerable,” she says. We’re stressed about the pandemic and the economy, cooped up in our houses and spending more time online. “This is not the time to send out stuff via email.”

Also, consider how side conversations will be managed. While Schindlinger says assigning a “board buddy” can be helpful to new directors trying to gain a grasp of the board’s culture, those conversations should be secure — not through text or email. Board portals like Diligent or Nasdaq’s Director’s Desk, which is used at City Holding, allow directors to conduct one-on-one exchanges safely.

Virtual board meetings could become part of the new normal that emerges out of the Covid-19 crisis. It may be awhile before we’re all ready to convene in groups and what’s more, some directors may like the experience. Kayser sees benefits in saving travel and time, along with the ability to schedule discussions on short notice. However, he also feels that discussions on deeper issues — an acquisition, for example — could be challenging.

Boards have an opportunity now to figure out how to make virtual meetings work. “There are no playbooks about this stuff right now,” says Schindlinger. “The right answer is going to be the right answer for your board. Your board is going to come up with the right ideas and vote those in. Just have the conversation.”

Why We Ignore Big Risks

Should we have seen COVID-19 coming?

A pandemic was far from the top risk on corporate radars a few months ago, even though experts in a variety of fields warned about the possibility of one for years.

Best-selling author Michele Wucker refers to risks like this as “gray rhinos.” It’s a metaphor for the obvious challenges that societies tend to neglect, often due to the size of the risk.

“It’s meant to evoke a two-ton thing with its horn [pointed] straight at you, and pawing the ground, snorting, probably about to charge,” says Wucker, the author of “The Gray Rhino: How to Recognize and Act on the Obvious Dangers We Ignore.” She is the CEO and founder of Gray Rhino & Co., which helps leaders and organizations identify and respond to these risks.

To learn about preparing for the next big threat, I interviewed Wucker about why we often ignore obvious threats, and how to approach the next crisis. The transcript that follows has been edited for brevity, clarity and flow.

BD: What are the most powerful forces that keep us from identifying and addressing gray rhinos?
MW: There are psychological and organizational and governmental [forces] that keep us from recognizing what we need to. Human beings are hardwired to ignore some of the things that we don’t want to see. We tend to deny information if we don’t like it — if we don’t like the solution to a problem. A lot of this is unconscious. So, when you recognize that unconscious bias, you’re way ahead of everybody else because it makes you much more able to see what’s in front of you.

But in terms of organizations and governments, more structural and policy factors, some of them have to do with decision-making. We like to surround ourselves with people who think the way that we do. And when we do that, it confirms what we already think. It makes us even less likely to see red flags. So, decision-making processes and organizational culture are one reason.

In terms of governments and even corporations, the incentives that we’ve set up are misaligned.

Businesses look so much at quarterly earnings, and too often pay so much attention to the short term, that they forget they are putting long-term value at risk. And for politicians who are looking at election cycles of just a few years, it’s much easier for them to tell people what they want to hear and kick the can down the road so that the problem explodes on the next guy’s watch. Our society tends to reward people for picking up the mess after the fact. And when somebody makes a hard decision that prevents the mess from happening in the first place, we don’t celebrate as much as we should.

BD: One of the things we often talk about [at Bank Director] is the danger of groupthink and the lack of diversity on corporate boards. As we’re looking at the impact of this pandemic, I would not be surprised to see things like diversity and similar initiatives taking a back seat to these more short-term concerns that we’re seeing now. Is that a mistake?
MW: Absolutely. It would be a huge mistake to stop looking at how we can make better decisions by bringing the right voices around the table, having a group of people who can overcome groupthink. And really what would be most helpful now would be an extra emphasis on who else are you going to bring to the table to help solve the problems right now? An injection of diversity in decision-making could be one of the most important factors helping us to not just get out of the crisis, but set ourselves up for future success.

In “The Gray Rhino,” I quote [European Central Bank President] Christine Lagarde … [her] comment that if Lehman Brothers had been Lehman Sisters instead, we wouldn’t have had that problem. In my mind, that’s not quite right. It should have been Lehman Siblings, because too much of any gender or outlook or perspective or risk attitude is the wrong approach to take. There’s a lot of research showing that when you have diverse voices in different demographics, different specializations, different perspectives, you’re much better set up to make good decisions for the future.

One problem we are having right now is that there were unintended consequences of some of the decisions that were made to get us out of the 2008 crisis. It’s important when you’re getting out of a crisis to make sure that you’re not setting yourself up for something worse down the road, and to put in place check-in measures along the way, to make sure that the fixes you put in place are working the way you meant them to.

BD: Crises can force change. What do you hope to see business leaders learn from this current crisis to ensure they’re better prepared for the next crisis on the horizon?
MW: I love the way you phrased that because people are always trying to look backwards, because they’re so used to thinking of black swans. [Editor’s Note: A “black swan” refers to a rare, unforeseeable crisis.] It’s important to look back to learn what we’ve done wrong, but unless you apply it to the future, it’s a bit of an exercise in futility.

The biggest lesson I think people should learn is how important it is to be proactive about problems, particularly big problems that seem overwhelming. It’s very important for everybody to do their part to address problems. … Leaders really need to focus on two new mindsets. One, proactive, long-term, forward-looking emphasis on creating value, and thinking in complex systems. The Business Roundtable statement last August about restating the purpose of a corporation was interesting in that way. They came out and said it’s no longer a matter of prioritizing your shareholders alone, because if you don’t think about all of the other stakeholders in your orbit, that has the potential to reduce shareholder value.

I think it really brought a complex systems approach to this debate in business communities. For so long, people had looked just at shareholders, and thought about other stakeholders’ needs as a zero-sum game. This new systems-thinking approach shows how they’re all related; that you can’t effectively protect your shareholders unless you’re also looking at your other stakeholders. That brings us back to your point about having diverse voices and making sure you’re getting all the inputs you need.

BD: What are the other gray rhinos that banks and corporations might be ignoring right now?
MW: I’ve been focusing personally on a trio of interrelated gray rhinos. Inequality. The fact that the people in the bottom whatever percent you want to apply are falling behind. [This is] already hurting economic growth and making the entire economy much more vulnerable, as we’re now seeing in a painful way. So, inequality is the first one.

Second one is climate change, which is closely related to inequality, because the people who are contributing the most to greenhouse gas emissions and climate change generally tend to not be the same ones as the people who are affected the most. And third, financial fragilities, which are closely related to both climate change and inequality, as we’re seeing right now when the bottom part of the population loses their jobs and they’re blown apart, taking the whole economy down with it.

As we saw in the conversations in Davos in January, and with BlackRock’s statement about climate risk and investment risk being one and the same, there’s a close relationship between climate change decisions and shoring up the way that the whole financial system and the global economy works. Many central banks and researchers around the world last year made the point that insurers are undercapitalized if you look at the potential impact of climate change.

I think there’s also complex systems thinking, a limit to that — if you’re financing fossil fuel companies, but you have other investments that are negatively affected by climate change, say oceanfront property, then you’re basically investing in hurting the other companies and investments in your portfolio.

So, that trio to me is important, and the pandemic has shown how dangerous all three of them are and that we need to deal with all three of them together.

Board Governance For The New Year

Business conditions, financial markets and competitive landscapes are always changing. But perhaps there is no arena of business undergoing a more significant transformation at the moment than corporate governance.

Whether driven by activists investors, regulators, institutional shareholders, governance gadflies or best practices, corporate governance is in the crosshairs for many organizations today. And in the banking sector — where some in Washington have placed a bullseye on the industry’s back — an enhanced focus on governance is the order of the day.

Bank boards today would be well served to pay close attention to three important aspects of governance: board composition, size and director age and tenure. When left to their own devices, too often inertia will set in, causing boards to ignore needed enhancements to corporate governance and boardroom performance. Even in the private company and mutual space, there is room for improvement and incorporation of best practices if a bank wants to continue to remain strong and independent.

Some governance advocates adopt a certain viewpoint that downplays an institution’s history. “If you were building the board for your bank today at its current size, how many of the existing directors would you select for the board?” the viewpoint goes. This obviously ignores historical contributions and the context that took the bank to its current state.  However, as the old saying goes: “What got you here often won’t get you there.”

For many institutions — particularly those that have grown significantly through acquisition — the size of the board has become unwieldy. Oftentimes, executives doled out seats to get a deal done; in some extreme cases, boards now have 16, 18, 20 — or more — directors.

While this allows for ample staffing of committees, pragmatically there may be too many voices to hear before the board can make decisions. At the same time, banks with only six or seven  directors may not be able to adequately staff board committees, and perhaps operate as a “committee of the whole” in some cases.  Often times, this low number of directors implies a high level of insularity.

Research from sources including both Bank Director and the National Association of Corporate Directors suggests that the average board size is between 10 and 11 directors, including the CEO. Furthermore, the CEO is now typically the sole inside director, unless the CEO transition plan is underway and a president has been named as heir apparent to the CEO role (similar to KeyCorp’s September 2019 succession announcement). Too many or too few directors can impede a board’s effectiveness, and 75% of public boards have between nine and 12 directors.

Board composition, of course, speaks to the diversity seated around the board table. Whether you accept the prevailing sentiment or not, there is ample evidence that boards with more diverse perspectives perform better. In order to garner more diverse viewpoints, the board needs to be less homogenous (read: “not full of largely middle-aged white men”) and more representative of the communities served and employee demographics of today and tomorrow. And let’s not forget about age diversity, which helps to bring the perspectives of younger generations (read: “vital future customers and employees”) into the boardroom. One real world example: How would you feel if your bank lost a sizable municipal deposit relationship because a local ordinance required a diverse board in order to do business with an institution? It can happen.

Lastly, many boards are aging. The average public director today is 63 — roughly two years older than a decade ago. And as directors age and begin to see the potential end of their board service, a number of community bank boards have responded by raised their mandatory retirement age and prolonging the inevitable. Yet with rising tenure and aging boards, how can an institution bring on next-level board talent to ensure continued strong performance and good governance, without becoming unnecessarily large? Boards need to stay strong and hold to their longstanding age and tenure policies, or establish a tenure or retirement limit, in order to allow for a healthy refresh for the demands ahead.

High-performing companies typically have high-performing boards. It is rare to see an institution with strong performance accompanied by a weak or poorly governed board. Boards that take the time to thoughtfully optimize their size, composition and refreshment practices will likely improve the bank’s performance — and the odds of continued independence.

Creating the Correct Dividend Policy


dividend-7-17-19.png“I believe non-dividend stocks aren’t much more than baseball cards. They are worth what you can convince someone to pay for it.” – Mark Cuban, investor and owner of the NBA’s Dallas Mavericks

Directors can use dividends to convey confidence and attract yield-hungry investors, but they must strike a balance between payouts and future growth.

Dividends are an important part of the capital management strategy at many banks, and the operating environment has made yield more important to analysts and investors. A bank’s dividend policy is a highly visible signal of management’s confidence to deliver consistent results. The board of directors is responsible for determining a bank’s cash dividend; it is paramount they strike the right payout.

After carefully considering regulatory capital requirements, a board still has a fair amount of discretion when establishing the dividend policy while retaining sufficient funds for growth. Boards often weigh dividends against share repurchases to manage capital. However, trading multiples and capital levels heavily influence stock repurchases, which tend to be more discretionary than regular dividend payments. A lower tax rate on dividends and ordinary income is another factor that favors dividends over share repurchases.

Dividends can be a good measure of corporate governance. A dividend payout policy means that investors can worry less about unchecked growth or inefficient investments that do not maximize shareholder value.

Optimal Dividend Policy
The appropriate capital management policy can help a bank achieve an optimal trading multiple. The optimal dividend policy depends on a company’s earnings growth, capital requirements and ability to communicate its strategy to the investment community. Although cash dividends have been historically respected by bank investors, the prolonged low interest rate environment and the perception that banks are increasingly utility-like has elevated the importance of dividend payouts.

There is, however, an opportunity cost of using cash to pay out dividends rather than fuel growth initiatives. And an increased dividend can indicate that management expects higher future cash flows and possibly higher future valuations.

The Federal Reserve’s monetary policy encourages yield-hungry investors to favor stocks over fixed-income instruments. Given the current economic and interest rate environment, equity investors can achieve the safety of bonds through a combination of cash dividends and any upside from capital appreciation inherent in stocks. Dividend popularity has increased, due to respectable corporate cash flows, more favorable tax rates, and broad consumer confidence in the economy and stock market. Currently, the S&P 500 dividend yield is around 1.86 percent, compared to a 2.4 percent yield on 10-year Treasury notes.

In response to these considerations, management should determine the retention ratio, which lies in the earnings power above the dividend payment. Effectively measuring market, liquidity and credit risk—often done through stress testing—is vital to determining the margin of protection a bank needs to ensure the consistency of dividend payments. The DuPont formula, where return on equity equals return on assets times the equity multiplier, should underpin the financial perspective.

Industry-wide challenges like continued pressure on net interest margins and a diminishing ability to trim reserves will stretch the safety margin in the current environment. Banks with slower earnings growth need to carefully determine their dividend payout ratios. Increasing or stable dividends are generally positive signals to the market regarding the institution’s financial condition and prospects, while a dividend cut could paint a negative picture.

Changing Investor Views
The attitudes of analysts and the investment community regarding dividends have come full circle. This was not always the case, as investors preferred that banks retain capital for growth or to fund stock repurchases.

Retail investors, including executives and members of the board, are attracted to community bank stocks because of the sector’s predictable dividend payments. Directors would be well advised to focus on their bank’s dividend policy and the efficient use of capital as part of their fiduciary duties to shareholders.

Five Critical Mistakes to Avoid in Any Headquarters Project


headquarters-5-15-19.pngCorporate headquarter projects are likely one of the biggest investments a bank will make in itself.

With a lot of time and money on the line, it is no surprise that these massive projects quickly become an area of major stress for executives. Most management teams have limited experience in executing projects of this kind. The stakes are high. Bad workplace design costs U.S. businesses at least $330 billion annually in lost efficiency, productivity and overall employee engagement, according to Facility Executive.

A lot can go wrong when planning a corporate headquarters. Executives should use a data-based approach and address these issues in order to avoid five critical oversights:

1. Overpromising and Under-delivering to the Board
You should feel confident that every decision for your planned headquarters is the right one. The last thing you want to do after you get the board’s approval on the size, budget and completion date for the project is go back for more money and time because of educated guesses or bad estimates.

Avoiding this comes down to how you approach the project. Select a design-build firm that considers your needs and asks about historical and projected growth, trends and amenities, among other issues. This will help mitigate risk and create a plan, budget and timeline based on research and deliberation

2. Miscommunication Between Design and Construction
Partnering with a design-build firm helps alleviate the potential for miscommunication and costly changes between architects and construction crews. Look for firms with a full understanding of costs, locally available resources and current rates, so they can design with a budget in mind. Some firms offer a guaranteed maximum price on a project that can eliminate surprises. 

3. Missing the Mark on Efficiencies and Adjacencies
The way employees work individually and collaborate with others is changing. Growing demand for work areas like increased “focus spaces,” more intimate conference rooms and other amenities should not to be ignored. Forgetting to consider which departments should be next to each other to foster efficiency is also an oversight that could dampen your bank’s overall return. Look for a firm that has an understanding of banking and how adjacencies can play a role in efficiency that can guide you toward which trends are right for your bank.

4. Outgrowing the New Space too Soon
I have witnessed a project that was not properly planned, and the board was asked to fund another project for a new, larger building only five years after the first one. As you can probably imagine, the next project is being watched and scrutinized at every turn.

Most architectural designers will ask you what you want and may look at whatever historical data you provide. Beyond that, how will you know if the building will last? A good design-build firm should incorporate trends from the financial industry into your design; a great one will provide you with data, projected growth patterns and research, so you can demonstrate to the board that the bank is making the right investment and that the new space will last.

5. Forgetting the People Piece
Not communicating with your employees or leadership on the reasons behind the change or how to use the new space often means leaving money and happiness on the table. The design and the features of the building frame the company culture, but the people complete the picture.

Make sure to show your workforce the purpose of the new space. Help get everyone excited and on the same page with the use, process and procedures. Do not drop the ball after the hard work of building the headquarters.

When it comes to any project—especially one of this size and magnitude—always measure twice and cut once.

Review Your Director Equity Plans


equity-4-17-19.pngOutside director compensation has been on the minds of shareholders and compensation committees after a 2017 court decision and a continuing focus of proxy advisory firms that recommend how institutional investors vote on matters presented to public company stockholders.

In late 2017, the Delaware Supreme Court issued a decision involving claims of excessive nonemployee director compensation at Investors Bancorp, a Short Hills, New Jersey-based bank. In that case, the court applied a higher legal standard to decisions made by directors about their own compensation.

Since the 2017 decision, other cases have been settled involving similar claims against public companies, and more new cases were filed in 2018. The two primary proxy advisory firms have also shown an enhanced focus since the 2017 decision on compensation awarded to outside directors.

With these cases in mind, focus on outside director compensation continues, and public companies especially should review their decision-making processes about discretionary stock equity plans and non-employee director compensation.

Stockholder claims concerning the conduct of directors generally are subject to review under the business judgment rule, where the presumption is that the board acted in good faith, on an informed basis and in the best interests of stockholders.

In cases where the business judgment rule applies, the court will not second-guess a board’s business decision.

Before the Investors Bancorp decision, this was the standard applied to cases challenging director compensation decisions, with a few exceptions. In the cases where the Delaware courts reviewed challenges to director compensation approved by directors themselves, the courts recognized a stockholder ratification defense for director compensation in cases in which stockholders had approved the following:

  • An equity plan that provides for fixed awards
  • The specific awards made under an equity plan
  • An equity plan that includes “self-executing” provisions—awards that are determined based on a formula specified in the plan without further discretion by the directors
  • An equity plan that includes “meaningful limits” on director compensation—a cap on the awards that could be made to nonemployee directors

In cases where a company can take advantage of the stockholder ratification defense, the company can seek dismissal of the stockholder claim under the business judgment rule.

In the Investors Bancorp case, the Delaware Supreme Court considered the scope of stockholder ratification of director compensation decisions for the first time in more than 50 years, and in doing so limited the ratification defense when directors make equity awards to themselves under an equity incentive plan.

The Delaware court determined that the more onerous rule—the “entire fairness” test—applies, where a plaintiff can show a majority of the board was interested or lacked independence regarding the decision, or would receive a personal financial benefit from the decision.

For equity grants awarded to directors under the plan, that test requires the board to prove equity incentive awards they grant themselves are fair to the company and its stockholders. The Delaware court found that while the stockholders in the Investors Bancorp case had approved the general parameters of the equity plan that contained a limit on the aggregate amount of stock awards that could be made to directors, they had not ratified the specific awards to directors and, therefore, the business judgment rule did not apply.

The decision therefore calls into question whether the ratification defense is still feasible for plans that contain only “meaningful limits” on director awards. The Delaware Supreme Court sent the case back to the lower court to review under the entire fairness standard, and that case is currently pending.

Key Takeaways
Boards and compensation committees should consider the following to mitigate potential risks in implementing equity incentive plans or making awards to directors under existing equity incentive plans:

  • Careful consideration of peer group selection
  • Retention of a compensation consultant experienced in banking
  • Whether to include director compensation limits in equity plans
  • Ensuring that director compensation decisions are made after a robust process that accounts for market practices and peer group practices

And finally, boards and compensation committees should carefully describe the decision-making process and other key factors for equity awards to nonemployee directors in the company’s annual proxy statement.

12 Questions Directors Should Ask About New Bank Activities


governance-3-18-19.pngA bank’s board of directors must answer to a variety of constituencies, including shareholders, regulatory agencies, customers and employees. At times those constituencies may have competing interests or priorities. Other times, what may appear to be competing interests are actually variations of aligned interests.

One area where this is particularly true is the board’s responsibility to strike the right balance between driving revenues and ensuring the bank adheres to its risk appetite established as part of its enterprise risk management framework.

The failure to strike this proper balance can be devastating to the institution, and if widespread, could result in consequences across the entire industry, such as the 2008 financial crisis. As technology and innovation accelerate the pace of change in the banking industry, that balance will become more critical and difficult to manage. And as banks explore ways to increase profits and remain competitive, especially with respect to noninterest income, bank directors will need to remain diligent in their oversight of new bank activities.

Regulators have offered guidance to bank boards on the subject. For example, the Office of the Comptroller of the Currency (OCC) issued a bulletin in 2017 that defines “new activities” to include new, modified, and/or expanded products and services and provide guidance related to risk management systems for new activities. While it is management’s role to execute strategy and operate within the established risk appetite on a day-to-day basis, the board’s role is to oversee and evaluate management’s actions, and the board should understand the impact and risks associated with any new activities of the bank.

To exercise this responsibility, directors should challenge plans for new activities by posing the following questions to help them determine if the proper risk approach has been taken. Questions may include:

  • Does the activity align with the bank’s strategic objectives?
  • Was a thorough review of the activity conducted? If so what were the results of that review and, specifically, what new or increased risks are associated with the activity, the controls, and the residual risk the bank will be assuming?
  • Is the associated residual risk acceptable given the bank’s established risk appetite?
  • Is the bank’s infrastructure sufficient to support the new activity?
  • Are the right people in place for the activity to be successful (both the number of people required and any specific expertise)?
  • Are there any new or special incentives being offered for employees? If so, are they encouraging the correct behavior and, just as importantly, discouraging the wrong behavior?
  • What are the specific controls in place to address any risks created?
  • How will success be measured? What reporting mechanism is in place to track success?
  • Will there be any impact on current customers? Or in the case of consumers, will there be any disparate impact or unfair or deceptive acts or practices (UDAAP) implications?
  • What third parties are required for successful implementation?
  • What limits on the amount of new business (concentration limits) should be established?
  • Are the applicable regulators aware of the bank’s plans, and what is their position/guidance?

These threshold questions will assist directors in becoming fully informed about the proposed new activities, and the answers should encourage follow up questions and discussions. For example, if third parties are necessary, then the focus would shift to the bank’s vendor management policies and procedures. Discussions around these questions should be properly documented in the meeting minutes to evidence the debate and decision-making that should be necessary steps in approving any new bank activity.

If these questions had been posed by every bank board contemplating the subprime lending business as a new activity, it may have averted the challenges faced by individual banks during the financial crisis and lessened the impact on the entire industry.

In the future, if boards seek the answers to these questions, the following discussions will help ensure directors will give thoughtful consideration to new activities while properly balancing the interests of all of their constituencies.

How to Recruit Younger Directors


recruirment-6-22-18.pngA stagnant board is an ineffective one. While some directors can serve long tenures and continue to be actively engaged in the affairs of the bank, some directors grow less effective. What’s more, a board composed of directors who have served together for a number of years, or even decades, can grow complacent in their approach to bank strategy and oversight. This isn’t in the best interest of shareholders, employees or customers.

So how can boards fight complacency? Bring on some new blood. “That’s the attraction of bringing a young person in,” says Ben Wynd, a 40-year-old director at Franklin Financial Network, a $4.1 billion asset bank holding company headquartered in Franklin, Tennessee. He joined the board in 2015 and is an accountant with public company reporting expertise. “I have a desire to grow my practice. I have a desire to grow and become successful individually. I have energy, and I ask a lot of questions.”

It is rare for a bank to bring on a director aged 40 or younger as Franklin Financial has done. The 2018 Compensation Survey, conducted in March and April, finds that a whopping 84 percent report their board lacks any directors in this age group.

But boards like that of Franklin Financial, as well as $1.8 billion asset ESSA Bancorp in Stroudsburg, Pennsylvania, and $2.4 billion asset Sierra Bancorp in Porterville, California, are finding a way to attract young professionals to their board. Here’s how.

Actively seek prospective younger directors.
Your board can’t count on a skilled, young professional just falling out of the sky, so at least one director on the board should be advocating for the addition of younger perspectives and identifying potential board members. The more directors serving as advocates, the better.

Wynd says Paul Pratt Jr., a director who served on the Franklin Financial board since its 2007 founding, was just that sort of advocate. (Pratt’s term expired in 2018, but he continues to serve on the bank board.) “Any time I see a great talented young person, I try to engage them” and understand their goals, Pratt says. “There’s a lot of supreme young talent out there that needs to be on bank boards helping make critical decisions on how the bank grows.”

Board members can also leverage friends and family to identify prospective board members.

“A member of the board lived in my community and is friendly with my parents,” says Christine Gordon, 42, a director at ESSA since 2016, who has a background as a lawyer and experience as the deputy chief compliance officer at Olympus Corp. of the Americas, as well as deep connections in the community. “He approached me and asked whether I’d be interested in joining the board and talked to me a bit about what it would entail.”

Similarly, Vonn Christenson, a 38-year-old attorney who was appointed to Sierra Bancorp’s board in 2016, says he was approached by a Sierra director who was his parents’ friend and neighbor. “The bank had been expanding, had been acquiring other banks and was looking to expand more. Their board members were aging, so they were looking to add some members.”

Communicate the benefits of serving on a bank board.
Prospective younger directors with the skill sets that bank boards need are in demand, and not just within the banking industry. “In all honesty, I probably have more opportunities [to serve on boards] than I have time and than my wife is willing to allow me to, so I’ve had to be selective in what I am involved in,” says Christenson. Make sure that the busy young professionals you seek as board members understand the benefits of serving on the board, as well as the bank’s growth trajectory.

And as much as long-term bank directors say that serving on a board is not about the money—just 14 percent of survey respondents indicate that offering a competitive director compensation package is a top challenge relative to their board’s composition—it could be the factor that leads an in-demand professional to pick your board over another.

Christenson says he had the opportunity to serve on the board of a local hospital but turned it down in favor of the bank. The bank “is a local success story in many ways, so there’s some more prestige that goes with it,” he says. Christenson also knew more members of the bank’s board, and “there’s compensation on the bank board, whereas it was voluntary on the hospital board.”

Ease the time burden.
Juggling the professional demands of younger directors may necessitate rethinking how the board approaches meetings. Gordon has found web conferencing to be effective in allowing her to participate in ESSA’s board meetings when she’s traveling for work. And using technology like a board portal can help streamline board materials, making them easier to digest. “They’ve got a real nice platform to produce materials and keep them organized for future reference,” says Gordon. The board provided tablets to directors, so they can easily access the board portal.

Invest in creating a successful board.
New directors, particularly younger ones, won’t be up to speed about the issues facing the banking industry, or even the fundamentals. “Educating new board members is very important. You join a bank board where folks have been there for years and years,” says Gordon. “I’ve been a board director for a couple of years, and I’m still learning.”

New directors should also meet with key members of the executive team, as well as one-on-one with board members. At ESSA, the management team teaches new directors about the bank and its primary areas of focus, says Gordon. The board also brings in speakers about specific topics, which can be vital to director education for old and new board members.

Investing in external training can be beneficial as well. But also expect to field a lot of questions from engaged new directors. And remember, those questions can benefit the board as a whole by leading if they lead to an examination of the bank’s practices and strategy. That’s the benefit of a fresh perspective, after all.

Ensure there’s a process to make room for new board members.
Age diversity goes both ways—the board benefits from the views of young professionals as well as older, established directors who better understand the banking industry and have a historic perspective of their markets.

Establishing a mandatory retirement age can help cycle ineffective directors off the board, but some banks are uncomfortable with the possibility of losing engaged older directors. Providing exceptions for particularly skilled and effective board members, coupled with a mandatory retirement age, can be effective, as can term limits for banks uncomfortable with designating an age cap.

Conducting a board evaluation with individual director assessments and using a board matrix to identify knowledge gaps can be useful tools to create space on the board regardless of age. To be effective, a strong governance chair or similar director should be empowered to have conversations with board members who aren’t pulling their weight.

In the survey, 44 percent of respondents reveal concern about recruiting tech-savvy directors. While youth is no substitute for technology expertise, and technology expertise isn’t limited to the young, it’s important to remember that younger directors are more likely to have an intuitive handle on technology trends, particularly as relates to the bank’s retail and commercial customers.

But youth isn’t synonymous with engagement. New directors should “bring a vision and new ideas to help bring the bank into the future,” says Christenson.

Bank Director’s 2018 Compensation Survey was sponsored by Compensation Advisors, a member of Meyer-Chatfield Group. Click here to view the full results to the survey.

Investor Pressure Points for the 2018 Proxy Season


proxy-2-9-18.pngInvestors need to stay focused on long-term performance and strategy in 2018. So says Larry Fink, the chief executive of BlackRock, the world’s largest asset manager with $6.3 trillion in assets under management, in a recent and well-circulated letter. “Companies must be able to describe their strategy for long-term growth,” says Fink. “A central reason for the risk of activism—and wasteful proxy fights—is that companies have not been explicit enough about their long-term strategies.”

Focusing on long-term success isn’t controversial, but Fink’s letter underlines the fact that proxy advisors and investment management firms are more frequently looking at broader issues—gender diversity and equality, and other cultural and environment risks—that can serve as indicators of long-term performance.

Board composition will continue to be a growing issue. BlackRock, along with State Street Global Advisors, the asset management subsidiary of State Street Corp., both actively vote against directors where boards lack a female member. “[Institutional investors] are tired of excuses,” says Rusty O’Kelley, global leader of the board consulting and effectiveness practice at Russell Reynolds Associates. “Regional banks [in particular] need to take a very close look at board quality and composition.” Fink, in his letter, said that diverse boards are more attuned to identifying opportunities for growth, and less likely to overlook threats to the business as they’re less prone to groupthink.

The use of board matrices, which help boards examine director expertise, and disclosure within the proxy statement about the use of these matrices, are increasingly common, according to O’Kelley. The varied skill sets found on the board should link to the bank’s overall strategy, and that should be communicated to shareholders. Expertise in cybersecurity is increasingly desired, but that doesn’t necessarily mean the board should seek to add a dedicated cybersecurity expert. “Institutional investors view cybersecurity as a risk the entire board should be paying attention to,” says O’Kelley. “They want all directors to be knowledgeable.”

Some investors are pursuing gender equality outside of the boardroom. On February 5, 2018, Bank of New York Mellon Corp. disclosed the pay gap between men and women—the fourth bank to do so in less than a month, following Citigroup, Bank of America Corp. and Wells Fargo & Co. “Investors are demanding gender pay equity on Wall Street, and we have no intention of easing up,” said Natasha Lamb, managing partner at the investment firm Arjuna Capital, in a release commenting on BNY Mellon’s gender pay disclosure. These banks, along with JPMorgan Chase & Co., Mastercard and American Express, rejected Arjuna’s proposals last year to disclose the pay gap between male and female employees, along with policies and goals to address any gap in compensation.

A domino effect can occur with these types of issues. “[Activist investors will] move on to the next bank,” says Charles Elson, director of the Weinberg Center for Corporate Governance at the University of Delaware.

Shareholders are aware that cultural risks can damage an organization. This includes bad behavior by employees—Wells Fargo’s account opening scandal, for example—as well as an organization’s approach to sexual harassment and assault, an issue that has received considerable attention recently due to the “Me Too” movement. “Shareholders are very focused on whether or not boards and management teams are doing a sufficient job in trying to understand what the tone is throughout the organization, understand what the corporate culture is,” says Paul DeNicola, managing director at PwC’s Governance Insights Center. Metrics such as employee turnover or the level of internal complaints can be used to analyze the organization’s culture, and companies should have a crisis management plan and employee training program in place. Boards are more frequently engaging with employees also, adds DeNicola.

Investors are keenly aware of environmental risks following a year that witnessed a record-setting loss estimate of $306 billion due to natural disasters, according to the National Oceanic and Atmospheric Administration. Institutional investors expect boards to consider the business risk related to environmental change, says O’Kelley, particularly if the bank is at greater risk due to, for example, a high level of real estate loans in coastal areas.

Finally, investors will be looking at how organizations use the expected windfall from tax reform. “What will you do with the increased after-tax cash flow, and how will you use it to create long-term value?” said Fink in his letter. It’s an opportunity for companies to communicate with shareholders regarding how additional earnings will be distributed to shareholders and employees, and investments made to improve the business.

In an appearance on CNBC’s “Squawk Box,” Fink explained that BlackRock votes with the companies it invests in 91 percent of the time due to the engagement that occurs before the proxy statement is released. Fink’s preference is that engagement occurs throughout the year—not just during proxy season—to produce better long-term results for the company’s investors.

Engaging with shareholders—and listening to their concerns—can help companies succeed in a serious proxy battle. “If you have good relations with your investors, you’re apt to, in a contest, fair a bit better,” says Elson.