When Directors Should Talk to Investors

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Company boards have long spoken to investors in indirect ways, through their votes and organizational performance. But as powers shift to large investors and governance norms have changed, investor groups have demanded more one-on-one conversations with bank directors.

Allowing directors to speak to investors comes with risk, and not just due to the potential for legal missteps. The director becomes a public representative of the bank and anything he or she says will be scrutinized, resulting in possible backfire.

“You can’t really say you’re not speaking for the company,” says Peter Weinstock, a partner at the global law firm Hunton Andrews Kurth. “You’re speaking for the company.”

But in an age where activist shareholders have an increased presence and institutional investors such as Blackrock and State Street Corp. have greater power, organizations find that some investors expect this one-to-one interface with directors. When done right, it can ease tension among the investor base, allowing management to maneuver more freely. When done wrong, however, it can result in proxy fights and changes to the board and management.

The topics that investors care about impact the moves that directors and boards make. Board discussions on compensation, for example, are becoming more important. Last year saw the lowest level of shareholder support for executive pay — only 87.4% of S&P 500 companies received shareholder approval in advisory voting during proxy season, according to PwC. That indicates a higher bar for boards to get shareholder buy-in for executive compensation.

Companies also must deal with an increasing amount of activist shareholder proposals. PwC reports there was a 17% increase in shareholder proposals last year. Out of 288 proposals related to environmental, social and governance (ESG) matters, a popular topic last year, 41 proposals passed.

One way to provide context for the company’s efforts on those matters: director conversations.
Institutional investors and shareholder analysis groups have turned their focus to three big concerns – audit, governance and compensation – all of which reside at the board level. With questions surrounding those specific concerns coming from many different groups, banks have turned to so-called “roadshows.” In those organized conversations, directors speak to shareholders or investor services groups about specific governance or audit topics. During those roadshows, board members stick to a prewritten script.

“The advent of the one-way listening session allayed director fear,” says Lex Suvanto, global CEO at the public relations firm Edelman Smithfield. “There isn’t much risk in what they shouldn’t say.”

Certain concerns may require more direct conversations with a specific investment group. When entering those conversations, it’s important to remember what information the shareholders want to glean. “Understand who you are speaking to and what they are all about,” says Tom Germinario, senior managing director at the financial communication firm D.F. King & Co. “Is it a governance department or a portfolio manager, because there’s a difference?”

Each investor will come to the conversation with different goals, investment criteria and questions they want addressed. It’s on the company to prepare the director for what types of questions each investor may need answered.

During those different calls, banks should ask to receive the questions ahead of time. Many investors will provide this, since they understand that the director cannot run afoul of fair disclosure rules, a set of parameters that prevent insider trading. But not all investors will provide those insights upfront.

To head off such concerns, the bank’s communications or investor relations team should run a rehearsal or prepare the director with possible questions, based on the reason for the meeting.

The investors will look for anything that might give them insight. Directors that veer off script could run afoul of what they can legally disclose. Plus, the tenor of the answers must match what the CEO has said publicly about the company. Without practice, the conversation can unwittingly turn awry.

“If a director is on the phone with an investor and something is asked that the company hasn’t disclosed, the director can table that part of the discussion,” says Weinstock. “The company can then make a Regulation Fair Disclosure filing before following up with the investor on a subsequent call. That’s an option if the company wants to release the information.”

It’s important to remember the practice will also protect you, since you will have a significant amount riding on the conversation as well. “Directors may reveal that they’re not in touch with important investor priorities,” says Suvanto. “Directors need to understand and be fully prepared to represent the values and behaviors [of the company].”

Suvanto adds that many directors would have been better not to speak at all than to go into a room with a large institutional investor, unprepared. In a public bank, such a misstep can lead to a proxy battle, which may result in the director (or many directors) being replaced by members the investors view as more favorable or knowledgeable.

The conversation also works differently, depending on the size of the bank and whether it’s a private or public institution. Institutional investors likely will focus on larger banks. Small banks may not account for an oversized spot in the institutional investor’s portfolios. Instead, for smaller companies, it’s often about getting the CEO and chief financial officer in front of investors to encourage investment. Often, this does not need a director’s voice.

For private banks, however, there are certain moments where directors may be asked to step in. If, say, an organization has questions about its auditing practices. Or what if a competitor bank has major governance violations? To address questions from investors concerning those issues, it may be advisable to have the committee head for the specific concern speak to investors about the bank’s practices.

But even a private bank cannot ignore concerns about releasing information that’s meant to stay within the board room. “It’s important to realize that information does not belong to a director,” says Weinstock. “It’s also important to realize that private companies could have insider trading violations.”

What else could go wrong? A director could overpromise when the company isn’t ready to address the issue. This can happen in the environmental, social and governance (ESG) space with regards to addressing social concerns, for example. If a director commits to social commitments that the company cannot yet adopt, it can pit the director against the board or management. Either the company will decide to adopt the promised measures, or the director will have misled the investor.

“A director should never get on the phone alone,” says Germinario. “You never want an investor to misconstrue a promise.”

A Challenging Deal Environment In 2023

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The year ahead is likely to present a challenging environment for M&A. According to Dory Wiley, president and CEO of Commerce Street Holdings, the rising interest rate environment, possible deposit runoff and economic uncertainty are likely to tamp down deal activity in 2023. Nonbank deals could be more attractive to some buyers, in part because they draw less regulatory scrutiny. And banks focused primarily on organic growth need to shore up capital at the holding company level to make sure they have options, too.

Topics include:

  • Interest Rates’ Impact on Valuations
  • Appeal of Nonbank M&A
  • Emphasis on Capital

Exclusive: The Inside Story of Colorado’s Leading Bank

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bank-4-25-19.pngGreat leaders are eager to learn from others, even their competitors. That’s why Bank Director is making available—exclusively to members of our Bank Services program—the unabridged transcripts of in-depth conversations our writers have with the executives of top-performing banks.

One such bank is FirstBank Holding Co.

With $18.5 billion in assets, FirstBank is the third-largest privately-held bank in the United States and the biggest bank based in Colorado, where its headquarters sits 10 miles west of downtown Denver. It’s among the most efficient institutions in the industry, with an efficiency ratio often dipping below 50 percent. It has an abundance of risk-based capital. And its return on equity has ranked in the top 10 percent of large bank holding companies in all but one of the past 12 years.

Bank Director’s executive editor, John J. Maxfield, interviewed FirstBank’s CEO Jim Reuter and Chief Operating Officer Emily Robinson for the second quarter 2019 issue of Bank Director magazine. (You can read that story, “How FirstBank Profits from Being Private,” by clicking here.)

In the interview, Reuter and Robinson shed light on:

  • The benefits of being a privately-held bank
  • How FirstBank became a leader in the digital evolution of banking
  • Strategies to stay disciplined at the top of the cycle
  • The advantage of having three former FirstBank CEOs serving on the board
  • Their philosophy on capital management and allocation

The interview has been edited for brevity, clarity and flow.

download.png Download transcript for the full exclusive interview

How Open Banking Changes the Game for Private Banks

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technology-2-4-19.pngOpen banking is the most prominent response to the strong push from technology, competition, regulation and customer expectations. This begs the questions, why should a private bank’s open banking strategy be individual? What impact does it have on the IT architecture? How does it improve customer service?

The new “ex-custody 2.0” model provides the answers.

Regulation, competition from digital giants, changing client expectations, the rise of open API technology and next generation scalable infrastructure are the forces unbundling the financial industry’s business model. Open banking, or the shift from a monolithic to a distributed business model, is one strategy for banks to harness these forces and generate value.

Four strategies for private banks
While banks have traditionally played the role of an integrator, offering products to clients through their own channels and IT infrastructure, open banking provides them with more possibilities.

These include being a producer, or offering products through an application programming interface (API) as white-label to other institutions; a distributor that combines innovative products from third-party providers on their platform; or a platform provider that brings third-party products and third-party clients together.

Private banks may adopt a mix of these roles.

Two Areas of Products
The products generated through open banking can be separated into two areas. The first area includes the API data from regulatory requirements such as PSD2 in Europe. These products are dependent on payment account information as well as payment executions over the mandated APIs.

The second area of products is part of the open banking movement and use of APIs in general. The scope of potential products is much wider as they depend on more than just payment account data or payment execution. Many trend products like crowdfunding, event-driven insurance, financial data economy or comparison services are shaped by the open banking movement.

In practice, many products depend on regulatory APIs, but also on data from other sources. This has been developed into a multi-banking product dubbed “ex-custody 2.0.”

Multi-banking – The ex-custody 2.0 model shows how a client’s wealth can look if his bank can aggregate account information and other data. Technology like the automated processing of client statements or enhanced screen scraping allows, upon client consent, to gather and aggregate investment or lending data as well. The client’s full wealth can then be displayed in one place. From the bank’s perspective, what better place can there be than its own online portal? Terms like multi-banking, account aggregation and holistic wealth management have been coined by the market. We want to add another term to those existing ones:

“Ex-custody 2.0.” Ex-custody is not a new term in the industry. It refers to positions of an accounting area not banked by the bank itself, but where the bank takes over administrative custody and reporting tasks for the principal bank. Ex-custody 2.0 for multi-banking is the next step, where the principal bank does not need to compensate the custodian bank for any services. In the case of screen-scraping, it does not necessarily know the other bank.

Contrary to other multi-banking or account aggregation implementations, the ex-custody 2.0 model is not a standalone application or dashboard, but fully integrated into the bank’s core technology and online banking system. Data is sourced from fintech aggregators through APIs and batch files.

Positions are then booked in a separate accounting area before being fed to the online banking system. This allows the bank to offer innovative products to the customer that rely on integration with both a booking and an online system.

New products include:

  • Multi-banking: the service to manage one’s wealth on one portal
  • Automated advice suitability based on all connected positions on the platform
  • Dynamic Lombard lending based on bank and external investments
  • Cross-selling via direct saving suggestions
  • Risk profiling and portfolio monitoring across institutions and borders
  • Balance sweeping across the family wealth or managed trusts and businesses
  • What-if and scenario simulation through big data modules on the platform.

Conclusion
Open banking will change the business model of private banks. It is a great opportunity, but also a great threat to existing business. The opportunities consist mainly of new scalability options for products, new integration possibilities for third-party products and the creation of new products using the data from open banking.

The main threat is the loss of the direct relationship between banks and clients. However, there is no mix of the four strategies that fits every bank’s business model. It is vital for a private bank to define a position according to the four strategies discussed here and to do so in an individual, conscious manner.

How The Fed Changed The Game for Private Banks

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stock-11-20-18.pngIn late August 2018, the Federal Reserve issued an interim final rule increasing the asset threshold from $1 billion to $3 billion under the Fed’s Small Bank Holding Company Policy Statement. The interim policy now covers almost 95 percent of the financial institutions in the U.S., significantly enhances the flexibility in capital structure, acquisitions, stock repurchases and ownership transfers, among other things, for institutions organized under a holding company structure.

No Consolidated Capital Treatment
The most significant benefit of small bank holding company status is that qualifying banks are not subject to consolidated capital rules. Instead, regulatory capital is evaluated only at the subsidiary bank level. As a result, small bank holding companies have the unique ability to issue debt at the holding company level and contribute the proceeds to its subsidiary bank as Tier 1 common equity without adversely impacting the regulatory capital condition of the holding company or the bank. Due to the expanded coverage of the new rule, banking organizations with up to $3 billion in assets can now take advantage of this benefit to support organic and acquisitive growth, stock repurchases and other corporate transactions.
Acquisition Leverage

Perhaps the most significant application of this benefit is in acquisitions by private institutions, whose equity may be less attractive or undesirable acquisition currency. For these institutions, an acquisition of any scale often requires additional capital, and, without access to public capital markets, utilizing leverage may represent the only viable option to fund the transaction.

Under the Small Bank Holding Company Policy Statement, an acquiring bank holding company may fund up to 75 percent of the purchase price of a target with debt, which equates to a maximum debt to equity ratio of 3-to-1, so long as the acquirer can reduce its debt to equity ratio to less than 0.3-to-1 within 12 years and fully repay the debt within 25 years. The enhanced ability to utilize debt in this context is designed to enable private holding companies to be more competitive with other institutions who have access to the public capital markets or who have a public currency to exchange.

Stock Repurchases
Ownership succession also remains a critical issue for many private holding companies, and the new rule extends the ability to use debt to enhance shareholder liquidity to an expanded group of organizations. In many cases, and especially for larger blocks of stock, a holding company represents the only prospective acquirer for privately-held shares. By using debt to fund stock repurchases, a small bank holding company can create liquidity to a selling shareholder, while providing a benefit to the remaining shareholders through the increase in their percentage ownership.

Moreover, stock repurchases often present themselves at times and in amounts that make equity offerings a less suitable alternative for funding. Finally, as discussed below, stock repurchases can be utilized to enhance shareholder value.

Attractiveness to Investors
While the new rule increases the operating flexibility of banking organizations by providing additional tools for corporate transactions, the use of leverage as part of an organization’s capital structure also results in a number of meaningful benefits to shareholders. First, holding company leverage, whether structured as senior or subordinated debt, generally carries a significantly lower cost of capital, as compared to equity instruments. The issuance of debt is non-dilutive to common shareholders, which means existing shareholders can realize the full benefit associated with corporate growth or stock repurchases funded through leverage without having to spread those benefits over a larger group of equity holders. In addition, unlike dividends, interest payments associated with holding company debt are tax deductible, which lowers the effective cost of the debt. Accordingly, funding growth or attractively priced stock repurchases through leverage can be immediately accretive to shareholders.

Final Thoughts
Funding growth, stock repurchases and other corporate transactions can be a challenge for banking organizations that do not have access to public capital markets or have a public currency. However, the revised Small Bank Holding Company Policy Statement provides management teams and boards of directors with additional tools to fund corporate activities and growth, manage regulatory capital, and enhance shareholder liquidity and value.

The Dos and Don’ts of Shareholder Recordkeeping for Private Banks

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shareholder-5-1-18.pngPublic and private banks are vastly different, but in some areas, they might be more alike that you may think.

Public banks are required to work with a transfer agent for their investor recordkeeping. Private banks, including institutions that are not listed on a stock exchange or regularly file financial reports with the Securities and Exchange Commission, do not have the same obligations as their publicly traded counterparts; however, this does not mean that sound recordkeeping practices are not just as important.

Based on my more than 30 years in the industry, these are the most important Do’s and Don’ts to consider when it comes to managing your investor records:

DO keep a close eye on your overall share balance. It is critical that the shares held on your share register match the number of shares outstanding that your financial reporting office says are there. Changes in shares outstanding (where there is an increase or decrease in this overall figure) don’t happen very often and may not cause an issue in your day-to-day business. But, if shares are not in balance, trouble will arise in the instance of a change-in-control event, such as an acquisition. The need to rehabilitate the list could complicate and delay the corporate event.

DON’T let share issuance discrepancies linger. When a share transfer takes place, the transaction must be recorded for both the transferor and transferee. For private banks, shares are often not liquid and transfers rarely happen. Given their rarity, it’s important to take special care to properly record transfers on the books of the company. Errors can be hard to find later on— especially when the person who had a photographic memory of the list has retired. It’s best not to let discrepancies happen in the first place, but if they do, resolve them now and avoid a messy accounting issue much later on.

DO pay special attention to executive equity awards. It’s usually not a good idea—or a good career move—to keep improper and inaccurate equity award records of your executives and directors.

DON’T underestimate the importance of data security. Keeping accurate shareholder records is important. Safeguarding that information is even more important. This means protecting data from both outside intrusion and weak internal processes that could threaten it. Data security and security breach notifications are also legal matters that need to be addressed to comply with state and federal law.

DO maintain regular communications with your investors. Part of the C-suite’s business is to continue to attract investors to the company—both to help boost the demand for the stock but also to try to attract some liquidity as well. You can make the C-suite’s job easier by delivering timely communications to your existing investors, keeping them happy.

DON’T lose sight of your regulatory obligations. Companies that file with the SEC obviously need to follow its reporting guidelines. But even those that don’t report to the SEC will need to comply with state or federal regulations applicable to the bank regarding governance and investor relations.

DO perform a regular review of your company charter and bylaws. You should have your counsel review these documents from time to time. This gives you the opportunity to make updates that support your business objectives. For example, you should consider the elimination of stock certificates if they are specifically mentioned in the bylaws.

Making this update allows for the use of book-entry statements (much like those one might see if they own a mutual fund or have their own brokerage account) and for more modern communications and proxy voting technology such as the electronic delivery of annual meeting materials and online voting. Your counsel will need to review applicable banking regulations to ensure these options are available.

Proper tracking of your investors and their holdings is as critical to the success of your business as your relationship with your banking customers. Adhering to strong governance and compliance practices will reduce opportunities for mistakes and risk going forward.

Creating Liquidity: Alternatives To Selling The Bank

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Executives and boards of private banks have to think outside the box if they want to create a path to liquidity for shareholders that doesn’t require selling the bank. In this video, Eric Corrigan of Commerce Street Capital outlines three liquidity alternatives to consider, and shares why a proactive approach can help a bank control its own destiny.

  • Challenges in Creating Liquidity
  • Three Liquidity Alternatives
  • Benefits and Drawbacks to Each Solution
  • Questions Boards Should Be Asking

The M&A Limitations of Privately-Held Banks

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More than half of bank executives and directors responding the Bank Director’s 2018 Bank M&A Survey see an environment that’s more favorable to deal activity, but those at privately-held institutions—which comprise 52 percent of survey respondents—are slightly more likely to see a less favorable environment for deals, and significantly more likely to expect limitations in their ability to attract an acquisition partner and complete the transaction.

In the survey, 30 percent of respondents from private banks say their bank has acquired or merged with another institution within the past three years, compared to 53 percent of respondents from publicly traded institutions. Respondents from private banks—which, it should be noted, also tend to be smaller institutions—are also less likely to believe that their bank will acquire another institution in 2018, with 47 percent of private bank respondents saying their institutions are somewhat or very likely to acquire another bank within the next year, compared to 61 percent of public bank respondents.

Rising bank valuations are largely to blame for dampened enthusiasm on the part of private banks that would like to consider acquisitions as a growth strategy, but feel excluded from the M&A market. Higher valuations mean two things. Potential sellers have higher price expectations, according to 84 percent of survey respondents. And public buyers—whose currency now holds more value in a favorable market—could have an edge in making a deal. Half of private bank respondents say that rising bank valuations have made it more difficult for the institution to compete for or attract acquisition targets, compared to 36 percent of respondents from public banks looking to acquire.

manda-bank-valuations-chart.png

For the most part, private buyers “have to do an all-cash deal,” says Rick Childs, a partner at Crowe Horwath LLP, which sponsored the 2018 Bank M&A Survey. Banks under $1 billion in assets have some flexibility in leveraging their holding company to lessen the impact on the bank’s capital ratios in such a transaction, as a small bank holding company can use debt to fund up to 75 percent of the purchase price. “I can borrow fairly easily in today’s environment at the holding company, then fuse it down into the bank and make the capital ratios acceptable, and be able to use those cash funds,” says Childs. “But it does mean that there’s an upper limit on how much [the bank] can pay because of the goodwill impact, and that I think is having a detrimental impact on [privately-held] institutions.”

Thirty-five percent of private bank respondents say they would favor an all-cash transaction if their bank were to make an acquisition, compared to 5 percent of public respondents. More than half of private bank respondents would want to structure a transaction as a combination of cash and stock—despite these banks’ stocks being thinly traded at best and relatively illiquid. Equity in the transaction “potentially adds to the pool of available shareholders who might want to buy stock back and produce a more liquid market,” says Childs. While some sellers may prefer to take stock in a deal to defer taxes until the stock can be sold, shareholders still want to know that they will be able to take that stock and cash out if desired. Private buyers that want to issue stock in the transaction should have a plan for that stock to become more liquid within a relatively short period of time, says Childs. Remember, boards have a fiduciary duty to represent their owners’ best interests. If another bank is willing to offer a deal that provides more liquidity, that’s going to be of more interest to most sellers.

manda-transaction-chart.png

For a private bank, offering a cash deal has its benefits, despite limiting the size of the target the bank can acquire. Just 39 percent of private bank directors and executives responding to the survey say they would agree to an all-stock or majority-stock transaction if the board and management team sold the bank, compared to 63 percent of public bank respondents. “For some sellers, that’s actually easier to understand, because it gives you ultimate liquidity and takes some of the decision-making anxiety out of the seller’s hands” in terms of how long the seller should hold onto the stock and how it fits within that person’s portfolio, says Childs. The tax repercussions are immediate, but the seller is also paying today’s tax rates, versus an unknown future rate that could be higher.

That’s not to say that private banks won’t make deals in 2018. Some will, of course, buy other banks. But other types of transactions could pique the interest of private institutions and be particularly advantageous. Branch deals allow banks to cherry-pick the markets they want to enter and pick up deposits at a better price, says Childs. Thirty-nine percent of respondents from privately-held banks say their institution is likely to buy a branch in 2018, compared to 30 percent of public bank respondents.

acquisition-chart.PNG

Private banks are also more inclined to acquire nondepository lines of business, as indicated by 30 percent of survey respondents from private banks, compared to 20 percent from publicly traded institutions. Acquiring wealth management firms and specialty lending shops are of particular interest to private banks, according to Childs. Both allow the institution to expand its services to customers and generate fee income without going too far afield of the bank’s primary strategic focus.

Both branch and nondepository business line acquisitions carry fewer due diligence and integration burdens as well.

Potential regulatory reform on the horizon could make the deal environment even more competitive, says Childs. Bank boards and management teams that worried about the impact of the regulatory burden on the sustainability of their bank may feel that the viability of their institution as an independent entity is suddenly more certain. “That likely lowers the pool of institutions that feel like they have to sell,” says Childs. And most bank executives and directors indicate that they want to remain independent—in this year’s survey, just 18 percent of respondents say they’re open to selling, with another 4 percent indicating their institution is considering a sale or in an agreement with another bank, and 1 percent actively seeking an acquirer.

The 2018 Bank M&A Survey gathered responses from 189 directors and executives of U.S. banks to examine the M&A landscape, M&A strategies and the economic, regulatory and legislative climate. The survey was conducted in September and October of 2017, and was sponsored by Crowe Horwath LLP. Click here to view the full results of the survey.

Private Banks Can Get Deals Done

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The vast majority of the banking industry is composed of privately owned stock banks. Of the 794 non-FDIC assisted bank M&A deals that were announced in 2013 through 2015, almost two-thirds involved a non-exchange traded buyer. Non-publicly traded banks are clearly getting deals done. There are several key facets that FinPro Capital Advisors (FCA) works on with its non-exchange traded bank clients in order to get an M&A transaction done.

1. Know Your Value
Value for a bank is driven by earnings per share (EPS) and tangible book value per share (TBVS). A bank’s stock price is equal to TBVS multiplied by a TBVS market multiple and EPS multiplied by an EPS market multiple. Those market multiples are the market’s perception of the risk profile of the bank, and a bank can influence that market multiple by changing its risk profile and communicating the appropriate risk profile to the public. As seen below in the table, a lower risk profile bank will likely have a higher TBVS market multiple, resulting in a much higher value.

Tangible Book Value Per Share – Range of Market Multiples 2016Q1
    High Risk Average Risk Low Risk
A Tangible Common Equity $150,000 $150,000 $150,000
B Common Shares Outstanding $5,000 $5,000 $5,000
C=A/B Tangible Book Value Per Share $30.00 $30.00 $30.00
D Price/TBVS Multiple 80.00% 100.00% 120.00%
C x D Stock Price $24.00 $30.00 $36.00

Value is measured primarily by stock price, which means that for both potential nonpublic buyers and sellers it is critical to conduct a quarterly valuation. A private bank can actually have more control over its valuation and the communication around the bank’s value proposition. A private bank controls its message, whereas a publicly traded bank’s message is heavily influenced by the market. FCA believes banks must continue to fix their risk profile, enhance value creators and reduce value detractors in order to increase inherent value. Then, this inherent value must be conveyed to the potential partner involved in the transaction.

2. Know Your Opportunities
In order to reflect all strategic options available, FCA periodically analyzes for each of its clients a full range of buy-side and sell-side options to reflect the full universe of options available to the institution. The detailed process includes:

  1. Comprehensive screening based on strategy
  2. Prioritizing the initial screen to approximately 10 potential targets (or buyers/strategic partners)
  3. Modeling to ensure appropriate assumptions with pro forma financials
  4. Rankings reflecting long-term strategy and multiple pro forma analyses

Once this preliminary list is established, further refinement and prioritization of both buyers and targets can be conducted based on M&A parameters, strategic rationale, and market knowledge as established by your institution’s board of directors. Once you have a prioritized list of strategic partners, be active in staying in contact with those institutions. You can never be sure when another institution on your list will seek a strategic partner.

3. Model Transactions Based On Quantitative and Qualitative Factors
After a short-list is established, comprehensive pro forma financials can be modeled. A buy-side institution needs defined parameters before modeling to maintain discipline. Exceptions to parameters require a strong qualitative rationale behind the deal. Whether you are a buyer or target, a more sophisticated understanding of modeling assumptions directly relates to unlocking greater value in the transaction and recognizing synergies. Regardless of whether you are a buyer or a seller, remember that banking is a people business so make sure to lock up key people as part of the transaction.

M&A-Guidelines.png

4. Understand Key Issues for Consideration
Though a deal must work financially, it is not just about the numbers. FCA spends a great deal of time working with its clients on nonfinancial aspects of the deal:

  • Choosing the correct legal, corporate and operating structure
  • Maintaining or reducing the risk profile of the combined entity
  • Understanding the regulatory view of the transaction
  • Understanding synergies (not just financial synergies) for the combined entity
  • Establishing the branding and marketing of the combined entity
  • Recruiting and retaining key talent is vital to any transaction
  • Establishing the corporate culture going forward
  • Effectively integrating the target to ensure future value

Just because an institution doesn’t trade on a national exchange, doesn’t mean it can’t be involved in M&A. Know your value, know your opportunities and understand the process. Whether you engage in a transaction or not, the organizations which move the quickest to capitalize on these opportunities are the ones which follow these four steps on a regular basis. Just make sure to choose your strategic M&A partner based upon the long term value of the combined entity.

Preparing for the New Reality of Bank Activism

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activism-4-8-16.pngFrom 2000 to 2014, activist hedge fund assets under management are reported to have swelled from less than $5 billion to nearly $140 billion. This sharp rise in assets under management is reflected in a 57 percent increase in activist campaign activity over the last five years. And while performance can vary greatly by fund, reports are that activist hedge funds have generally outperformed other alternative investment strategies in recent years. The upshot for the banking industry is clear: as more activist investors with more dry powder are looking for investment opportunities, activists have moved beyond the “low-hanging fruit” into regulated industries, including financial services, which had previously been considered too complex.

Banks historically were viewed as unlikely targets for activist investors. The burdens are significant on an investor deemed to “control” the bank (from a bank regulatory perspective). The investor must be concerned with an intrusive Change in Bank Control Act filing and fundamental changes may be mandated by the Bank Holding Company Act if the investor’s voting, director and activist activities result in it crossing often less than well-defined “control” thresholds. However, today’s activists have learned that even small holdings of a bank’s stock—for example less than 5 percent of voting stock—often suffice to generate the desired change and provide the desired return. Many activists thus have successfully achieved their objectives without triggering bank regulatory consequences.

As activist investors sharpen their focus on the banking sector, their criteria for which entities to target remain the same. Target companies generally share several key characteristics: underperforming (on a relative basis), broadly held ownership structures and/or easily exercisable shareholder rights. An underperforming business presents the potential for economic upside, while a dispersed ownership structure and easily exercisable shareholder rights provide access to the boardroom, or at least the ability to make demands. Activist stakes are often small as a percentage of overall capital and many activist campaigns rely on winning over institutional and other investors on measures to improve the performance of the business and, ultimately, the stock price. These measures can range from those intended to result in a sale of the bank, such as changing directors, to less disruptive, but nonetheless material changes, such as enhancing clawback features in executive compensation plans.

While no two activist campaigns are alike, activist engagement generally begins with a private approach to the board of directors or management. If the activist does not succeed in private conversations, more public disclosure of the activist’s campaign can take the form of public letters to the board of directors or management, public letters to stockholders, white papers laying out the activist proposal, or filings with the Securities and Exchange Commission related to ownership of the target’s stock. Finally, and at greater cost to the activist and target alike, activists can commence a proxy contest or litigation.

So how is a bank to know whether an activist has taken a position in its stock? For smaller, privately held banks, it is more important than ever to maintain close oversight of investor rolls. Publicly traded banks need to monitor Schedule 13D and Form 13F filings. An investor that accumulates beneficial ownership of more than 5 percent of a voting class of a company’s equity securities must file a Schedule 13D within 10 days. In an activist campaign, however, 10 days can represent a very long time and an activist can build up meaningful economic exposure through derivatives without triggering a Schedule 13D filing obligation. 13F filings are made quarterly by institutional investment managers. On the antitrust front, and likely more relevant to midsize and larger banks, an investor that intends to accumulate more than $78.2 million of a company’s equity securities must generally make a Hart-Scott-Rodino (HSR) filing with the Federal Trade Commission and notify the issuer of the securities. As with Schedule 13D filings, an activist can use derivative investments to avoid triggering an HSR filing. Given the limits of these regulatory filings, many publicly traded companies turn to proxy solicitors and other advisors who offer additional data analytics services to track a company’s shareholder base.

Boards must proactively prepare for such events. Any activist response plan will address a handful of key issues, including an assessment of the bank’s vulnerabilities, an analysis of the bank’s shareholder rights profile, engagement with shareholders on strategic priorities generally, identification of the proper team to respond to an activist approach, and ongoing analysis and monitoring of the shareholder base. No plan will address all potential activist approaches, but the planning exercise alone, done well in advance without pressures of an activist campaign, can position a bank to minimize exposure to activist pressures and to respond quickly, proactively and effectively to activist approaches.