Do You Have Effective Incentive Plans for Your Commercial Lenders?

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incentive-6-23-17.pngCommercial banking is a core business for most regional and community banks. It is a key driver of profitability as well as organizational growth, and frequently serves as the entry point to many of the bank’s other businesses, such as wealth management, treasury services and deposit gathering. The competition for talent and growth within commercial lending has never been higher, and as a result, commercial lenders continue to be among the mostly highly paid and highly incentivized individuals in the bank. It is of critical importance therefore to think carefully about maximizing your bank’s return on its lender compensation by thoroughly evaluating your incentive programs for this group. Do the plans motivate the right behaviors, properly consider risk elements and successfully align compensation with performance?

Incentive Goals
The first step in evaluating the effectiveness of the incentive plan for the commercial lending group is evaluating the business priorities of the lending group.

  • What is the preferred balance between profit and growth for each of the commercial businesses?
  • How should your business segmentation impact your plan design? For example, does the bank need multiple incentive plans to align with segmentation between C&I and commercial real estate, or one incentive plan covering multiple loan types?
  • What are the cross-selling or referral expectations for lenders?
  • What products and behaviors should your lenders pursue in order to encourage sticky relationships with your commercial clients?
  • What is the performance culture of the commercial lending group, and how can the incentive plan reinforce it?
  • What are the bank’s goals for specific types of commercial business in terms of client type, industry and loan size? For example, if the bank prioritizes C&I loans due to their typically higher level of fee income and associated deposits, rather than larger CRE loans, the incentive plan should reflect that priority.

These are just a few examples of the types of questions that bank board members and executives should be asking right now as they evaluate their commercial lender incentive programs. In order to properly contribute to the bank’s overall success, the incentive plan design and performance goals must reflect the bank’s priorities for the commercial lending group.

The exhibit below highlights some of the most common productivity goals used for commercial lenders at regional and community banks. Data is taken from a flash survey of regional and community banks that was conducted by McLagan earlier this year and that covered a variety of commercial lending topics.

incentive-plan-chart.png

Aligning Pay With Performance
In addition to identifying plan goals vis-à-vis departmental priorities, it is important to evaluate the alignment of incentive awards with the performance necessary to earn those awards. In short, what is the bank’s return on its incentive payments to lenders? If performance and awards are not appropriately aligned, the bank may be overpaying for mediocre performance or not appropriately rewarding its high performers, either of which can have a negative impact on long-term corporate performance.

Robust performance and payout modeling is particularly important when a new or revised incentive program is implemented—changes to plan payout methodologies may necessitate changing performance expectations for lenders. For example, if incentive payout targets are increased in order to remain externally competitive, do performance targets need to increase as well in order to provide an appropriate return to the bottom line?

Risk Considerations
While lender productivity generally has the biggest impact on plan awards, incentive plans cannot ignore risk considerations. The actions of commercial lenders today can have a significant impact on the bank’s credit quality and profitability in future years, and incentive plans should be designed to mitigate any behaviors that are not in line with the bank’s risk policies. In some cases, risk factors may be included as specific objectives under the incentive plan. More frequently, mechanisms outside of the core plan are used to safeguard against risky behaviors or poor risk outcomes. Common plan mechanisms include credit quality payout triggers, clawbacks that seek to recapture pay that has already been awarded, and deferrals that pay out based on long-term risk outcomes, among others.

In summary, commercial lenders can have a significant impact on your bank’s organizational success, and your commercial incentive plan can have a significant impact on the business and behaviors that your lenders pursue. As you begin to plan for 2018, take time now to evaluate the alignment between goals and business needs, payouts and performance, and plan features and risk policies. Doing so will help your bank maximize the potential organizational impact of its commercial incentive dollars.

Rewarding Executives for Successful Bank M&A

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compensation-1-29-17.pngMergers and acquisitions (M&A) can create significant value for shareholders. Accordingly, bank executives should be rewarded when completing and integrating successful transactions. However, in today’s environment of heightened executive pay scrutiny, some approaches to providing additional compensation for M&A can result in criticism from shareholders and advisory firms such as Institutional Shareholder Services and Glass Lewis & Co. Clearly documenting the rationale of rewards and how they align with value enhancement can increase the effectiveness and shareholder support for such compensation.

Evaluate the Context

Roles of involved employees: While M&A activity is an expected part of some executives’ responsibilities, others may be required to go beyond their day jobs as part of the due diligence or integration processes. The extent of work required outside an employee’s normal responsibilities and job expectations should impact discussions of additional compensation.

Activities versus results: Another consideration is whether compensation should result from the additional, typically shorter-term activity during the M&A process or the actual longer term results of the transaction. In some cases, additional pay for transaction activities will be important to retain key talent who have been asked to go beyond their normal responsibilities. Larger, more significant rewards should depend on whether the merger produces improved bank performance and value creation.

Timing of additional compensation: Compensation can reward M&A results at different points during the transaction process. While the closing of the deal may be viewed as a trigger point for additional pay, the integration process is critical to ensuring the deal reaches its expected potential. Shareholders will be most concerned with the financial results generated from the transaction, and may be more receptive to additional compensation tied to the long-term financial impact of the deal.

Current programs: The current compensation program may already provide the opportunity to reward M&A, lessening the need for additional one-time pay that can be scrutinized.

Evaluate Rewards
There are many ways to reward M&A activity and results. Where possible, it is preferable to reward executives through existing programs, although special awards may be appropriate in some cases. Creating flexibility within the total pay program in advance of any transactions can help increase the number of tools the bank has to recognize executives. All of the potential components should be considered together since recognition may result from more than one of the following components:

Base Salary Adjustments: M&A activity can result in executives taking on new responsibilities, and pay increases may be appropriate. Since salaries can drive the size of incentive awards, considering the potential target total compensation of the new role can help ensure the executive is rewarded over the short and long-term.

Annual Incentives: Annual incentive plans can recognize short-term contributions and efforts during transactions and through integration. Depending on the plan’s structure, recognition could be incorporated as a component in a goal-based plan (i.e. based on strategic or individual performance) or as a consideration in a discretionary plan. Significant special cash bonuses solely for merger completion are not favored by shareholders.

Long-term Incentives: These programs are designed to recognize the long-term performance and value creation resulting from a company’s business strategy. Prior awards such as stock options and restricted stock will recognize stock price appreciation and shareholder views of the acquisition. Performance shares also recognize the long term value from successful transactions. The structure of the grant process should be considered. Is there flexibility to recognize individual contributions during the M&A process, for example, through a grant of stock? If so, this can be an effective way to reward contributions immediately, with compensation tied to shareholder value creation.

Special Awards: In some situations, additional, one-time awards may be appropriate. The best practice is to provide recognition in the form of long-term equity, preferably with some performance criteria or hurdle. This can help address concerns of some shareholders and advisory firms that are critical of M&A bonuses or grants.

Other Considerations: In more significant M&A transactions, it is appropriate to review the compensation peer group and assess whether compensation opportunities should be adjusted to reflect the new organization’s size and complexity. It is also important to monitor the pay-performance alignment over subsequent years to ensure compensation is appropriately recognizing performance.

Conclusion
Successful M&A, over the longer term, should result in commensurate rewards for the executives that execute the transaction. The key is ensuring that current pay programs have the flexibility to provide such recognition and that the pay levels, over time, are aligned with the company’s performance and shareholder value creation.

Severance Pay May Be Forbidden, Court Rules

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severance-pay-8-31-16.pngNo one wants to imagine bad times for the bank. But it makes sense to plan in advance, just in case. Your bank needs to motivate and keep the executive management team in place during difficult times, and one way to ensure this is to put in place a competitive compensation package when times are good.

A troubled bank can have significant restrictions imposed on its executive compensation programs. In particular, 12 C.F.R. Part 359 (Part 359) broadly prohibits the payment of, or entering into an agreement for the payment of, any golden parachute payment without prior regulatory approval. For an overview of Part 359, see our BankDirector.com article dated September 23, 2011.

A decision in July of 2016 from the U.S. Court of Appeals for the 8th Circuit once again confirms the view of the “impossibility” of severance pay under Part 359 and serves as a reminder that prior planning can help a bank to work within those rules.

Overview of Von Rohr
Jerry Von Rohr was a long-serving senior executive at Reliance Bank, serving lastly as chief executive officer before Reliance terminated his employment. At the time, the bank was subject to Part 359. Von Rohr claimed he was entitled to compensation for a year following the effective date of his termination. Because it was subject to Part 359, Reliance asked the Federal Deposit Insurance Corp. (FDIC) whether the claimed payment could be made to Von Rohr. The FDIC advised that the payment would be a “golden parachute payment” under Part 359, which Reliance could not make without prior FDIC approval. Reliance declined to make the requested payment. Von Rohr filed a lawsuit against Reliance and the FDIC. He alleged breach of contract and requested a declaration that federal law does not prohibit the payment. The trial court upheld the FDIC’s determination and granted summary judgment to Reliance on the breach of contract claim. The appeals court affirmed the trial court’s decision.

In granting summary judgment to Reliance, the court affirmed the trial court’s finding that the FDIC’s determination made Reliance’s performance under Von Rohr’s contract “impossible.”

In upholding the FDIC’s determination that any post-employment payment to Von Rohr under his employment agreement would be a golden parachute because it would be a payment “for services he did not render,” the appeals court made clear that whether or not something is called severance or a “golden parachute” is irrelevant to the analysis as to whether it is prohibited under Part 359. Von Rohr had argued that the payment he was due was simply his compensation for the remainder of the term of his contract, not a payment solely and specifically contemplating his termination. The court indicated that, if it accepted Von Rohr’s view, it would “create a giant loophole” in the prohibitions of Part 359. The intent of the regulatory scheme is to prevent troubled banks from draining their already low resources with payments to terminated executives who may have been responsible for the bank’s condition. It would not serve that intent to allow artful drafting to avoid it.

Von Rohr also claimed that the FDIC’s position is in conflict with its consistently held view that Part 359 does not preclude payment of damages for statutory claims (e.g., discrimination, whistleblower retaliation, etc.). The court dismissed this claim by acknowledging the FDIC’s view on statutory claims and noting that Von Rohr was raising a contractual claim, not a statutory claim.

Planning Opportunities
Significantly, exempt from the scope of the prohibition of Part 359 are payments under tax-qualified retirement plans, benefit plans, bona fide deferred compensation plans and nondiscriminatory severance plans, as well as those required by statute or payable following death or disability.

In particular, Part 359 exempts bona fide deferred compensations and nondiscriminatory severance plans only where such arrangements have been in place at least (and not modified to increase benefits within) one year prior to the troubled condition designation.

Between bona fide deferred compensation, nondiscriminatory severance and death or disability benefits, a bank should be able to build the basics of an attractive compensation package for a member of executive management. However, many banks put off current consideration of these types of arrangements for one reason or another. The Von Rohr case should serve as a reminder that Part 359 is inflexible. Therefore, banks should consider today whether to implement such arrangements.

Finally, should a bank find itself involved in litigation related to an executive’s termination, it should remember that Part 359 does not prohibit payment of damages for statutory claims.

Team Lift-Outs: Compensation to Entice and Integrate Revenue Producers

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A “lift-out” is often used to describe the hiring of a group of individuals from the same company who have worked well with each other and can make an immediate and long-term contribution. A successful lift-out can create financial gain or provide competitive advantage such as replacing or crowding out a competitor. It can help expand the bank’s geographic markets or solidify its existing footprint.

Lift-outs, however, are not without risk. Management that becomes too enamored with a team can overlook essential steps required to determine whether it would be accretive. Inadequate due diligence or simply “paying up” on compensation without having a reasonable understanding of the expected results can cause a myriad of issues. In order to mitigate the risk, bankers should follow a standardized process, as outlined below:

Stages of a Successful Lift-Out

Initial Conversation Due Diligence Team Transfer Cultural Integration
Bank and team leader discuss potential market opportunities and competitive advantages. Team leader gauges interest of other members, develops market projections and business plan for the bank’s review. Both sides investigate reputation, culture, resources and viability of a union. Team joins bank and transfers client relationships in accordance with any contractual agreements. The bank plans for and announces the acquisition of the team internally and externally. The team, which is now on the bank’s operational platform, becomes fully integrated and establishes relationships with other groups within the bank.

The compensation structure for the lift-out team should also support the four stages:

During the Initial Conversation stage, discuss high-level compensation expectations. Often, these conversations provide insight into the team’s current compensation levels and programs. It can help the bank determine whether the team can easily fit into the current compensation structure or whether additional compensation is required to entice the team to come onboard. If additional compensation is required, it is important to determine (i) how much?, (ii) in what form?, (iii) for how long?, and (iv) whether it will create any internal equity or pay compression issues for existing talent.

During the Due Diligence stage, the bank must determine compensation levels that are commensurate with the economic value of the lift-out. Understanding the amount and the timing of each team member’s individual production is essential. It can also help the bank make the determination about which team members are essential and truly accretive. Determining the expected production streams can help determine who needs a compensation package outside of the current structure and who within the team could readily be integrated into the current structure.

It may be helpful to create a program where the additional pay phases out over a period of time or is only paid if the individual (or team) meets the production expectations agreed on at the time of the lift-out. For example:

  • Special equity awards could vest based on the achievement certain levels of production within a specified period of time or could cliff vest (e.g., after 3 years) providing time to assess talent prior to vesting
  • Special bonuses could be paid if certain levels of production are achieved.

During the Team Transfer stage, care should be taken to address any internal equity concerns and ensure that non-competition/non-solicitation commitments are upheld.

Possible rationales for accepting differing levels of compensation among like positions could include the limited nature or timing of the differences or the financial impact of the additional revenue stream.

Revenue producing roles are increasingly subject to non-competition and non-solicitation agreements. To avoid litigation, it is extremely important to ask lift out team members for any documents that involve their interaction with clients or the solicitation of former employees. The bank should review these and seek the advice of legal counsel.

During the Cultural Integration Stage, the Bank should assess whether pay differences should (a) remain given the structure and/or economics of the team or (b) be discontinued.

Maintaining pay differences makes sense if the team continues to outperform or if the group is highly-sought after by other institutions. However, if the results are commensurate with those in similar roles, it may become increasingly divisive to maintain special programs. Integration into the existing pay programs is a more natural choice.

In summary, team lift-outs provide a way for banks to accelerate growth by acquiring, rather than developing, proven revenue producers. Thoughtful management of compensation during the stages of a lift-out ensures that individuals are enticed to move and are motivated to produce for the bank.