You’ll Never Guess Where BB&T Gets Its Big Ideas


strategy-10-19-18.pngIt is well worth any banker’s time to read the vision, mission and purpose statements of BB&T, the eighth biggest commercial bank in the United States.

They will sound at first like similar statements from any other bank, but what makes BB&T’s unique is the inspiration behind them.

They weren’t drawn up with the help of consultants or survey data; they are grounded instead in the writings of philosophers—classical thinkers as well as modern proponents of capitalism.

“The philosophers that influenced me the most are Aristotle, Thomas Aquinas, John Locke, and Ayn Rand,” writes John Allison, the chairman and CEO of BB&T from 1989 to 2008, in his 2014 book, The Leadership Crisis and the Free Market Cure.

BB&T has published an entire pamphlet outlining its culture, encapsulated in its vision, mission and purpose statements, which reduce to one key objective: “Our ultimate purpose is to create superior long-term economic rewards for our shareholders.”

The $223-billion bank based in Winston-Salem, North Carolina, doesn’t just talk the talk; it walks the walk. It ranks in the 98th percentile among publicly traded banks in terms of the total amount of shareholder value it has created during its time as a public entity.

Yet, there’s a nuance to BB&T’s philosophy on creating value that’s easy to overlook. It doesn’t talk about “maximizing” long-term economic rewards for shareholders; it talks instead about “optimizing” those rewards.

Why the difference?

As Allison writes in his book:

When free market economists and finance theorists refer to maximizing shareholders’ returns, they imply a long-term context. In the real world, maximizing tends to be a short-term concept. BB&T’s mission also focuses on ‘creating a safe and sound investment,’ The goal with this wording is to communicate to potential purchasers of the company’s stock that we are in the game for the long-term and will not take inordinate risk even if that risk could maximize short-term returns.

In no industry is a long-term view more important than banking. Banks, as a group, use more leverage than companies in any other industry, typically borrowing $10 for every $1 worth of capital.

This is by design, of course, as a principal purpose of banking is to leverage society’s capital to fuel economic growth—a point Bank of America’s chairman and CEO, Brian Moynihan, made in a recent interview with Bank Director:

[B]anks came up to help people borrow money, which helps economies grow faster. If you’re constrained to only your equity, you only have so much money to spend. But if you borrow against it, now you can spend more. That’s the magic of leverage in terms of accelerating progress.

But there is a downside to all that leverage—it makes banks vulnerable to economic cycles, explaining why more than 17,000 banks have failed since the Civil War.

Bankers are prone to the same impulses that, at the top of a cycle, cause real estate developers to break ground on skyscrapers, retailers to over-invest in inventory and technology entrepreneurs to believe that traditional rules of economics no longer apply.

The difference is that, thanks to leverage, there’s less margin for error in banking than there is in other industries. A mere 10 percent decline in the value of a typical bank’s assets will render it insolvent.

This is one reason BB&T chose the words of its mission statement so carefully in terms of “optimizing” as opposed to “maximizing” shareholder value.

Another reason is that shareholders aren’t a bank’s only constituency—there are also clients, employees and communities. A bank that doesn’t tend to all four is like a table with only three legs.

It’s by optimizing returns among multiple constituencies, in other words, that a bank can maximize the returns to anyone of them. And if a bank does that through multiple cycles, the outcome is even better.

The net result at BB&T, writes Allison, is that “we operate our business in a long-term context by adding value to our clients, employees, and communities and in that context create superior rewards for shareholders.”

In short, while Aristotle, Thomas Aquinas, John Locke and Ayn Rand may seem like an unlikely source for inspiration in banking, if BB&T’s success is any indication, it’s safe to say they were onto something.

Gender Pay Equity and Board Gender Diversity – Is Your Board Prepared?


governance-8-1-18.pngGender pay equity and board gender diversity are two areas of focus for both the media and investors. Lately, many large institutional investors have turned their attention to environmental, social and governance (ESG) issues, where board diversity has taken center stage and questions around gender pay equity are increasing. Boards and management should proactively gain an understanding of their current position and any concerns on these fronts to avoid adverse reactions from employees and/or shareholders.

Slow progress on gender diversity in the boardroom has led many large investors to push for an increase in the number of women on boards. Several influential institutional investors such as Blackrock, State Street Global Advisors and Vanguard have added diversity stipulations to their engagement and voting policies, citing studies that link increased female representation on boards with improved shareholder returns. More specifically, these institutions may vote against, and proxy advisory firms such as Institutional Shareholder Services (ISS) and Glass Lewis may recommend voting against, the nominating and governance committee members if there are not a least one or two women on the board. These voting policies have been very impactful, and we have seen a dramatic increase in women serving in board roles at the largest organizations.

Compensation Advisory Partners (CAP) researched the 15 largest public diversified financial services companies in the Fortune 100 and found that approximately 50 of companies had at least three women on their board and an additional 20 percent had at least two. As a comparison, CAP researched the board composition of 90 smaller financial services companies with assets between $5 billion and $20 billion and found approximately 15 have at least three females on their board and an additional 15 have at least two. Similar to other compensation and governance trends, we expect smaller financial organizations to catch up with the increased external pressure.

In addition, initiatives such as the NYC Comptroller’s Boardroom Accountability Project 2.0, focus on enhancing disclosure of board composition through a skills matrix. California is now the first state considering a bill to require a minimum number of women on all boards of the state’s more than 400 companies. These initiatives are driving heightened attention to the diversity and competencies of the board as a whole.

While information on director composition and profiles is public, this is not the case with gender pay equity across an organization. In the U.K. there is a requirement to disclose gender pay statistics for organizations with at least 250 employees, but that does not currently exist in the U.S. Even so, we have observed some institutional investors use shareholder proposals to pressure large organizations to provide public reports on gender pay.

Several financial institutions have been under scrutiny for a lack of female representation in senior roles despite a majority of their employees being female. Unlike the U.K., where all employees must be included in the sample, shareholder proposals in the U.S. focus on a comparison of “like-for-like jobs.” Over the last three years, companies recommended shareholders vote against the proposal, and support averaged around 15 percent. Only 5 proposals (compared to 14 in 2017) have gone to a vote in 2018, none at financial services companies (compared to 7 in 2017), since several large financial organizations such as Citigroup, Bank of America, JPMorgan Chase & Co., and Wells Fargo & Co. were able to have these requests withdrawn from their annual proxy statement and in exchange agreed to publish their gender pay. In all cases, the reports have shown almost no gap, but the approach by company can vary.

These two movements have put a spotlight on the underlying issue of equal representation in the boardroom and pay equality across organizations. The push for board equality has already resulted in progress especially at larger organizations. Boards are reviewing nominating and governance committee charters and adopting policies to promote diversity in the board recruitment process. On the gender pay equity front, even though disclosure is not required in the U.S., momentum and pressure are building from institutional investors for companies to disclose gender pay gaps.

We expect boards of all companies to start asking management if a gender pay gap exists, and what they should be doing to address any gaps that do exist. Conversations on both these topics should be an agenda item in all boardrooms today.

A Timely Reminder About the Importance of Capital Allocation


capital-7-6-18.pngCapital allocation may not be something bank executives and directors spend a lot of time thinking about—but they should. To fully maximize performance, a bank must both earn big profits and allocate those profits wisely.

This is why the annual stress tests administered each year by the Federal Reserve are important, even for the 5,570 banks and savings institutions that don’t qualify as systemically important financial institutions, or SIFIs, and are spared the ritual. The widely publicized release of the results is an opportunity for all banks to reassess whether their capital allocation strategies are creating value.

There are two phases to the stress tests. In the first phase, the results of which were released on June 21, the Fed projects the impact of an acute economic downturn on the participating banks’ balance sheets. This is known as the Dodd-Frank Act stress test, or DFAST. So long as a bank’s capital ratios remain above the regulatory minimum through the nine-quarter scenario, then it passes this phase, as was the case with all 35 banks that completed DFAST this year.

The second phase is the Comprehensive Capital Analysis and Review, or CCAR. In this phase, banks request permission from the Fed to increase the amount of capital they return to shareholders by way of dividends and share buybacks. So long as a bank’s proposed capital actions don’t cause its capital ratios from the first phase to dip below the regulatory minimum, and assuming no other deficiencies in the capital-planning process are uncovered by the Fed during CCAR, then the bank’s request will, presumably, be approved.

There’s reason to believe the participating banks in this year’s stress tests will seek permission to release an increasingly large wave of capital. Banks have more capital than they know what to do with right now, which causes consternation because it suppresses return on equity—a ratio of earnings over equity. And last year’s corporate income tax cut will only further fuel the buildup going forward, as profits throughout the industry are expected to climb by as much as 20 percent.

We probably won’t know exactly how much capital the SIFIs as a group plan to return over the next 12 months until, at the soonest, second-quarter earnings are reported in July. But early indications suggest a windfall from most banks. Immediately after CCAR results were released on June 28, for example, Bank of America Corp. said it will increase its dividend by 25 percent and repurchase $20.6 billion worth of stock over the next four quarters, nearly double its repurchase request over last year.

The importance of capital allocation can’t be overstated. It’s one of the most effective ways for a bank to differentiate its performance. Running a prudent and efficient operation is necessary to maximize profits, but if a bank wants to maximize total shareholder return as well, it must also allocate those profits in a way that creates shareholder value.

One way to do so is to repurchase stock at no more than a modest premium to book value. This is easier said than done, however. The only time banks tend to trade for sufficiently low multiples to book value is when the industry is experiencing a crisis, which also happens to be when banks prefer to hoard capital instead of return it to shareholders.

As a result, the best way to add value through capital allocation is generally to use excess capital to make acquisitions. And not just any ole’ acquisition will do. For an acquisition to create value, it must be accretive to a bank’s earnings per share, book value per share or both, either immediately or over a relatively brief period of time.

If you look at the two best-performing publicly traded banks since 1980, measured by total shareholder return, this is the strategy they have followed. M&T Bank, a $119 billion asset bank based in Buffalo, New York, has made 23 acquisitions since then, typically doing so at a discount to prevailing valuations. And Glacier Bancorp, a $12 billion asset bank based in Kalispell, Montana, has bolstered its returns with two dozen bank acquisitions throughout the Rocky Mountain region.

The point is that capital allocation shouldn’t be an afterthought. If you want to earn superior returns, the process of allocating capital must be approached with the same seriousness as the two other pillars of extraordinary performance—prudence and efficiency.

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


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



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

Capitalizing on Good Times



With a strong economy, a corporate tax cut and more sympathetic regulators in Washington, banks have a lot to look forward to in 2018. But don’t confuse brains with a bull market—or a tax cut, says Tom Brown of Second Curve Capital. Happy days may be here again, but banks can’t afford to be complacent. In this interview with Steve Williams, a principal at Cornerstone Advisors, Brown offers four tips for CEOs looking to invest their bank’s expected tax windfall back into the business.

  • The Need To Transform
  • How CEOs Should Focus Their Attention

Making the Most of Tax Reform


tax-reform-1-18-18.pngTax reform could be a net positive for the banking industry, with an expected long-term boost to profits due to a significant cut in the corporate tax rate, from 35 percent to 21 percent. Its proponents believe that it will fuel the broader economy as well.

But despite the anticipated net gains, boards and management teams need to look at how tax reform will impact their organizations. Certain areas will be negatively impacted or warrant discussion to ensure the bank’s making the most of these changes. With that in mind, here are some of the topics your board should tackle in light of tax reform, and how it could affect your bank.

Initial Tax Hit
Tax reform just passed in late December, but many banks are already aware of its short-term downside, as the deferred tax assets on bank balance sheets, calculated based on a higher tax rate, have resulted in write downs on fourth quarter 2017 earnings. (Some banks have deferred tax liabilities on their balance sheets, which will positively impact earnings.)

These losses are expected to be recouped rather quickly. Kristine Hoeflin, a partner at Moss Adams LLP, recommends that banks quickly communicate this to shareholders and other stakeholders, so they understand that this is a one-time loss.

Impact on Compensation Plans
Under the new tax law, companies can no longer deduct executive pay above $1 million—a shift from the old law, which allowed companies to deduct performance-based pay in excess of $1 million. In another change, companies can’t deduct compensation surpassing $1 million for a departed named executive—the CEO, chief financial officer and three highest paid officers. “You can’t beat it by paying it out after they step down,” says Doug Faucette, a partner with the law firm Locke Lord LLP.

Banks still need to provide their executives with competitive compensation, so for most entities this will likely become just another cost of doing business—and with a lower tax rate, the scales still tip in the industry’s favor. However, a review of compensation plans is still warranted, and acquisitive banks will also want to determine the potential impact in a deal.

Another note: Banks are expected to earn more in 2018 as a result of the new tax code. Make sure the bank is truly rewarding the executive’s performance, not improved metrics that resulted from the tax cut.

Impact on Organizational Structures
Banks should also look at their own organizational structures following tax reform, particularly if the bank is a Subchapter S corporation, which has 100 or fewer shareholders and is taxed as a partnership while enjoying the benefits of being a corporation. Management should make a presentation to the board outlining the impact of tax reform on the bank, along with an analysis of how the bank would be affected in a conversion from a Sub S to a C Corporation and management’s recommendation on the best choice for the organization, says Robert Klingler, a partner at the law firm Bryan Cave.

How the bank wants to deploy its profits will factor into this decision, says Hoeflin. For banks that prefer to continually reinvest profits into the company, “the C Corp set-up, with this low tax rate, would present some favorable circumstances,” she explains. For banks that want to share those profits directly with shareholders, the Sub S structure will continue to make more sense, as Sub S shareholders avoid the double taxation that occurs with a C Corporation.

Shareholder agreements should be reviewed regularly, and will outline how the board can proceed if it wants to change the bank’s structure. “Many times it will involve the consent of the holders of two-thirds of your shares,” says Jonathan Hightower, a Bryan Cave partner, but that threshold differs with each bank. Sometimes the board has the discretion to change the structure without shareholder approval.

Subchapter S banks will still benefit from tax reform—but your bank could benefit even more as a C Corporation, depending on its strategic goals. A current analysis will make that clear to the board.

Another item to note: Banks below $10 billion assets will still qualify for the same deduction for premiums paid to the Federal Deposit Corp. that they have been receiving, but banks between $10 billion and $50 billion will qualify for a partial deduction for these premiums, and banks above $50 billion will no longer qualify for any deduction.

Impact on Local Markets
The mortgage interest deduction is now capped at a principal balance of $750,000, down from $1 million. “That could reduce demand for new home purchase mortgages if folks decide not to move because of the inability to deduct their interest going forward,” says Michael Giammalvo, a partner at Crowe Horwath LLP. Demand could dampen in certain markets more than others. For example, the average home price in California is $697,539, according to Trulia, compared to an average $230,000 for a home in Nebraska.

If your bank has a significant market presence in a state with higher real estate taxes, the cap on itemized deductions at $10,000 for state and local income and property taxes could throw additional cold water on the decision to purchase a new home. “It’s not as tax-advantaged as it used to be, to be a homeowner in an expensive market, says Giammalvo.

Interest is also no longer deductible for home equity lines of credit, so demand could be diminished there as well, adds Giammalvo.

Companies can no longer deduct entertainment expenses—taking a client out for dinner, for example—that were previously deductible at 50 percent of the money spent. That’s a potential pain point for commercial lenders. “I’m hearing from a lot of banks that the inability to deduct entertainment expenses going forward is a problem,” says Giammalvo.

Banks serving businesses with average gross receipts over $25 million should understand that interest expense deductions are now limited for these businesses. “Would we start to see in the banking industry a decrease in demand for lending, because [companies] would find equity for the financing rather than debt sources?” asks Hoeflin.

Take care not to overestimate the positive impact of tax reform on loan demand. While many in the industry expect a wave of commercial loans as companies earn more money, Bill Demchak, CEO of PNC Financial Services Group, has expressed skepticism on this front, as reported in The Wall Street Journal. He believes that companies with more money in their pockets as a result of tax reform will have less need to borrow from banks, dampening rather than fueling demand.

Since each bank’s markets and competitive niches will differ, a strategic discussion around how the impact will be felt will benefit the board and management. “A tailored and careful conversation for each bank, particularly for smaller community banks, makes sense,” says Hightower.

Making the Most of Earnings Gains
Perhaps the biggest question for boards to consider is how to invest the gains derived from a lower rate. Many banks have already announced that they’re spreading the wealth to employees and communities, through one-time donations to a community fund, for example, and hourly wage increases and bonuses for employees.

This a good public relations move for the industry, as the tax cuts were seen by some Americans as a favor to corporate America. “Banks need to make sure that the benefit they’re getting from tax reform really works for the country at large,” says Hightower.

Further, investors will be expecting banks to deploy excess capital to fuel improvements and growth. For banks slow to use that capital for M&A, or to provide share repurchases or dividends to shareholders, “we may actually see activist pressure accelerate and those [banks] may become potential targets,” says Sharon Dogonniuck, senior managing director at Ernst & Young Capital Advisors LLC. Investment in technology is another way to deploy that capital, and could provide a much needed-boost to banks that have struggled with the financial industry’s digital evolution. Smart investment in technology will define community banking’s winners and losers, says Dogonniuk. “Technology costs money, and [banks] need technological scale.”

The discussions occurring now in boardrooms spurred by tax reform could be a once in a lifetime occurrence for the banking industry and businesses at large. “I’ve doing this for 24 years, and we’ve never seen anything like this, where there’s such a transformation in the business tax world,” says Giammalvo.

Sellers: Be Vigilant About Stock in a Deal


bank-stock-11-10-17.pngThrough the first nine months of 2017, the pace of bank merger and acquisitions has been up slightly from prior years in terms of the number of deals, and the strong performance of bank stocks since the U.S. Presidential election—the KBW Nasdaq Bank Index is up almost 40 percent—has led to an increase in deal prices for bank sellers in 2017. Price to tangible book value for all deals through Sept. 30, 2017, is up approximately 24 percent compared to the same nine-month period in 2016. Although sellers are happy about rising deal prices and bank stocks trading at high levels, they should consider how to protect the value of a deal in an all- or mostly-stock transaction negotiated in the period after the announcement and beyond the deal closing. Here are three considerations for boards and management teams.

1. Use a stock collar.
A stock collar allows the selling institution to walk away from the transaction without penalty, given a change in the buyer’s stock price. A double trigger often is required, meaning an agreed-upon decline in the buyer’s stock price along with a percentage deviation from a set market index. A 15 to 20 percent trigger often is used. The seller may require that a cap be used if a collar is requested. A cap would act in a similar manner as a collar and provide the buyer with the chance to walk away or renegotiate the number of shares should the buyer’s stock increase 15 or 20 percent from the announcement date. While collars and caps often are symmetrical, they do not need to be, and a higher cap percentage can be negotiated. The need for a collar tends to be driven by the buyer’s recent stock trends and financial performance.

2. Consider trading volumes and liquidity in your deliberations.
In an all-stock or a combination stock and cash deal, the seller makes a significant investment for their shareholders in the stock of the buyer. For many shareholders, this represents a significant opportunity for liquidity and wealth diversification. But these goals can be thwarted if the buyer’s stock is not liquid or doesn’t trade in enough daily volume to absorb the shares without detrimental impact. The table below indicates some of the volume and pricing differences between exchanges. The total number of shares to be issued in a transaction should be considered in comparison to the number of shares that trade on a weekly basis.

Exchange Avg Weekly Volume/Shares Outstanding (%) Number of Banks Median Price/LTM Core EPS (x) Median Price/Tangible Book (%) Median Dividend Yield (%)
Grey Mkt 0.00 8 13.60 92.38 2.07
OTC Pink 0.07 433 15.02 109.55 1.79
OTCQB 0.14 36 15.34 130.59 2.00
OTCQX 0.20 76 16.06 126.04 2.00
NASDAQ 1.18 344 19.35 184.02 1.69
NYSE MKT 0.98 6 18.88 197.00 2.10
NYSE 3.10 51 16.40 197.75 1.99

Source: S&P Global Market Intelligence as of Sept. 30, 2017
LTM: Last 12 months

3. Request reverse due diligence.
The larger a seller is in comparison to the buyer and the more stock a seller is asked to take, the more there is a need for reverse due diligence. Boards and management should require the opportunity to dig into the books and records of the buyer, when appropriate, to make sure the stock investment will provide the returns and values promised by the buyer. However, the request for reverse due diligence may be denied if the transaction is fairly small in scale for the buyer or only token amounts of stock are offered.

Reverse due diligence tends to be abbreviated compared to typical due diligence, and it’s more focused on the items that can materially affect stock price. Reverse due diligence tends to focus on items such as earnings and credit performance, regulatory issues that the risk committee is monitoring, pending litigation or other potential unrecorded liabilities, review of board and committee minutes, and dialogue around future performance and initiatives. Also, sellers should review a buyer’s stock characteristics, including reading equity analyst reports, transcripts of earnings calls, conference presentations and other public sources of information that could help to develop a holistic view of how the market might react to the transaction once it’s announced.

While no one can predict what will happen with stock prices over the next 12 months, it does seem that many believe the current run-up in bank stock prices is the result of the general election, the Federal Reserve’s increase in interest rates and expected additional rate increases. Stocks are trading at high levels, but bank sellers still need to be cautious about which stock they take in a deal.

What Makes Activist Investors Go After Banks


activism-11-6-17.pngShareholders of public companies pushing to nominate activists in the boardroom are becoming more common. Boards of directors aren’t necessarily keen on the idea, although it’s becoming frequent enough that attitudes among board directors are becoming more accepting as they become accustomed to it.

Proxy Access Is Changing Relationships Between Directors and Shareholders
Board directors and shareholders clearly have different motives and perspectives about the demographics of board seats, especially when it comes to their views on proxy access.

Some of the larger public companies use a proxy access system. Companies that use the proxy access system typically have a governance committee or nominating committee that recruits and vets board candidates to fill the slots of board directors whose terms have ended. The board secretary prepares a proxy card with a listing of board director nominees and mails it out to the shareholders. Most share classes offer shareholders one vote per share. Shareholders can then vote for candidates on the slate by proxy or in person at the annual shareholder’s meeting, or write in a candidate of their own choosing. Activist shareholders and large shareholders favor the proxy access system because directors represent their interests and proxy access gives them a strong say in the choice of board directors.

The proxy access system is not as popular with directors as it is with investors. Board directors assess the expertise, talents, diversity and independence of boards when forming the voting slate. Nominating committees feel that they know what the board needs to help the company progress, so they should be able to select the nominees with little or no interference from shareholders.

Activism May Potentially Disrupt the Integrity of Corporate Governance
As activism begins to invade boardrooms, many are questioning other longstanding principles of good corporate governance and whether they still have meaning in today’s financial arena. For example, directors have typically had board terms that are staggered. The reason for this is to maintain some sense of tenure, history and experience on the board. In today’s climate, groups of formidable investors believe that directors should be elected every year. This approach gives shareholders the right to clean house when profit margins are lagging.

In recent decades, it has been common for directors to serve on multiple boards. Changes in the financial industry call into question whether directors who sit on many boards can truly meet the time constraints to effectively strategize and comply with the growing set of regulations. Weak boards create a climate that is ripe for activists to gain control. Large companies are prime targets for activists when they have large boards with weak skill sets and overly long-term appointments.

Procter & Gamble Is the Largest Company to Face a Proxy Fight
Procter & Gamble is one such large company that is facing the possible intrusion of an activist shareholder. Nelson Peltz is the CEO and founder of Trian Fund Management. With 3.3 billion P&G shares, Trian is one of Procter & Gamble’s largest shareholders. Trian has been dissatisfied with Procter & Gamble’s repeated poor returns. Their solution is to nominate and elect Nelson Peltz to the board of directors. As Peltz has a reputation for being a billionaire activist, the P&G board is justifiably concerned.

Trian cites many reasons for putting an activist on the board. In addition to disappointing shareholder returns, Procter & Gamble’s market share is deteriorating, and while they’ve cut some costs, the cost of bureaucracy is excessive.
Trian says that the culture of Procter & Gamble’s board is highly resistant to change, so it’s no surprise that the pressure is making them uneasy. Trian shareholders have given the board chances to improve results in the past, but their strategies have been unsuccessful. Now, Trian is insisting on the addition of a financially motivated, independent director, and they’ve chosen Peltz. Trian shareholders are not being completely unreasonable. They are offering to reappoint whichever director loses his or her board seat, once Peltz gets appointed.

Defending Against Activists
No board is exempt from the risk of a proxy fight, especially when earnings reports are not showing good results. The best defense against activism is to work at keeping performance metrics high. Companies experiencing a downturn for any reason would do well to spend time on researching which activists may have their eyes on a board seat. Knowing who is interested in joining the board will help directors anticipate what the activist wants to change and have some plans in place if a proxy fight looks imminent.

Facing Strategic Anxiety Head On



Banks need to be more agile to face the challenges in today’s marketplace, and boards and management teams need to focus on strategy more frequently. Brian Stephens of KPMG outlines the strategic issues impacting banks and how they should be addressed by bank leaders.

  • How Shareholder Expectations Have Changed
  • Questions to Ask About the Customer Experience
  • A New Approach to Strategic Planning