CoBiz DEF 14A 2012
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Statement Pursuant to Section 14(a) of
April 4, 2012
Dear Fellow Shareholder:
This year's Annual Meeting of Shareholders of CoBiz Financial Inc., a Colorado corporation (the Company), will be held at the Ritz-Carlton Hotel, Fall River Ballroom, 1881 Curtis Street, Denver, Colorado 80202 on May 17, 2012 at 8:00 a.m., M.D.T. You are cordially invited to attend.
We are using the Securities and Exchange Commission (SEC) rule that allows us to furnish our proxy materials to shareholders over the Internet. This means our shareholders will receive only a notice containing instructions on how to access the proxy materials over the Internet and vote online. If you receive this notice but would still like to request paper copies of the proxy materials, please follow the instructions on the notice or on the website referred to on the notice. By delivering proxy materials electronically to our shareholders, we can reduce the costs of printing and mailing our proxy materials. Please visit http:www.edocumentview.com/COBZ for more information about the electronic delivery of proxy materials.
The Company's Board of Directors recommends that you vote:
To be certain that your shares are voted at the Annual Meeting, whether or not you plan to attend in person, you should vote via telephone, via Internet, or by following the instructions on the enclosed notice as soon as possible. Your vote is important.
At the Annual Meeting, I will review the Company's activities during the past year and its plans for the future. Shareholders will be given the opportunity to address questions to the Company's management. I hope you will be able to join us.
COBIZ FINANCIAL INC.
NOTICE OF ANNUAL MEETING OF SHAREHOLDERS
Dated: April 4, 2012
REGARDLESS OF THE NUMBER OF SHARES YOU OWN, YOUR VOTE IS IMPORTANT. WHETHER OR NOT YOU PLAN TO ATTEND THE MEETING, PLEASE VOTE VIA TELEPHONE, INTERNET OR BY FOLLOWING THE INSTRUCTIONS ON THE NOTICE AND REQUESTING PAPER COPIES OF THE PROXY MATERIALS AT YOUR EARLIEST CONVENIENCE. YOU MAY REVOKE YOUR PROXY AT ANY TIME PRIOR TO THE ANNUAL MEETING, AND IF YOU ARE PRESENT AT THE ANNUAL MEETING, YOU MAY WITHDRAW YOUR PROXY AND VOTE IN PERSON.
Table of Contents
COBIZ FINANCIAL INC.
This Proxy Statement is furnished in connection with the solicitation of proxies by the Board of Directors of CoBiz Financial Inc. (the "Board" or "Board of Directors"), a Colorado corporation (the "Company" or "CoBiz"), for use at the Annual Meeting of Shareholders of the Company to be held on May 17, 2012, at 8:00 a.m., M.D.T., at the Ritz-Carlton Hotel, Fall River Ballroom, 1881 Curtis Street, Denver, Colorado 80202, and at any adjournment or postponement of the Annual Meeting.
This Proxy Statement and the accompanying form of proxy are first being transmitted or delivered to holders of the Company's common stock beginning on or about April 4, 2012, together with the Company's 2011 Annual Report to Shareholders.
The Company's principal executive offices are located at 821 Seventeenth Street, Denver, Colorado 80202.
Who Can Vote. Only shareholders of record at the close of business on March 23, 2012 are entitled to notice of and to vote at the Annual Meeting or at any adjournment or postponement thereof. As of that date, there were 39,665,127 shares of common stock outstanding. Each share is entitled to one vote. Cumulative voting is not permitted. Shares as to which the shareholder instructs the proxy to abstain from voting on any matter or withholds authority to vote for a director will be counted as shares that are present and entitled to vote for purposes of determining the presence of a quorum at the Annual Meeting but as not voted for purposes of determining the approval of any such matter or the election of directors. If a broker submits a proxy that indicates the broker does not have discretionary authority as to certain shares to vote on one or more matters (a "broker non-vote"), those shares will be treated in the same manner as abstentions.
Quorum Requirement. The Company's bylaws provide that the holders of not less than a majority of the shares entitled to vote at any meeting of shareholders, present in person or represented by proxy will constitute a quorum.
Information about Votes Necessary for Action to be Taken. Directors are elected by plurality vote, which means that the eleven nominees who receive the most votes will be elected (subject to the majority withheld voting policies described below under "Meetings of the Board and CommitteesGovernance and Nominating Committee"). The remaining matters to be considered at the meeting will be adopted if a majority of the votes are cast in favor. Abstentions and broker non-votes (assuming a quorum is present) will have no effect on the election of Directors or on the remaining matters to be considered at the meeting.
Internet availability of proxy materials. We are using the Securities and Exchange Commission (SEC) notice and access rule that allows us to furnish our proxy materials over the Internet to our shareholders instead of mailing paper copies of those materials to each shareholder. As a result, beginning on or about April 4, 2012, we sent our shareholders by mail a notice containing instructions on how to access our proxy materials over the Internet and vote online. This notice is not a proxy card and cannot be used to vote your shares. If you received a notice this year, you will not receive paper copies of the proxy materials unless you request the materials by following the instructions on the notice or on the website referred to on the notice.
If you own shares of common stock in more than one accountfor example, in a joint account with your spouse and in your individual brokerage accountyou may have received more than one
notice. To vote all of your shares by proxy, please follow each of the separate proxy voting instructions that you received for your shares of common stock held in each of your different accounts.
Voting. If your shares of our common stock are held by a broker, bank or other nominee (i.e., in "street name"), you should receive instructions from that person or entity that you must follow in order to have such shares voted. If you hold shares of our common stock in your own name and not through a broker or another nominee, you may vote such shares:
Whichever of these methods you select to transmit your instructions, the proxy holders will vote your shares of our common stock in accordance with your instructions. Executed but unmarked proxies will be voted:
Vote by Telephone. If you hold shares of our common stock in your own name and not through your broker or another nominee, you can vote such shares by telephone by dialing the toll-free telephone number printed on your notice card. Telephone voting is available 24 hours a day until 1:00 a.m., Central Time, on May 17, 2012. Easy-to-follow voice prompts allow you to vote your shares of our common stock and confirm that your instructions have been properly recorded.
Vote by Internet. If you hold shares of our common stock in your own name and not through your broker or another nominee, you can choose to vote via the Internet. The website for Internet voting is printed on your notice card. Internet voting is available 24 hours a day until 1:00 a.m., Central Time, on May 17, 2012. As with telephone voting, you will be given the opportunity to confirm that your instructions have been properly recorded.
Vote by Mail. You can vote by mail by following the instructions on the attached notice and requesting paper copies of the proxy materials, then signing, dating and returning the proxy card in the postage paid envelope to be provided.
The Company will pay all expenses in connection with the solicitation of proxies. In addition to solicitation by mail, officers, directors and regular employees of the Company who will receive no extra compensation for their services, may solicit proxies telephonically, electronically or by other means of communication.
A shareholder submitting the enclosed proxy may revoke it at any time before his or her vote is cast at the Annual Meeting by delivering to the Secretary of the Company a written notice of termination of the proxy's authority or of a duly executed proxy bearing a later date or by voting in person at the meeting. Shares entitled to vote and represented by properly completed proxies received prior to the Annual Meeting and not revoked will be voted in the manner directed by the shareholder granting such proxy. If no direction is made in the proxy, the shares represented by the proxy will be voted as recommended by the Board of Directors.
1. Election of Directors
The business and affairs of the Company are managed under the direction of its Board of Directors (Board). The Board has the authority under the Company's bylaws to set the number of directors. Effective October 27, 2011, the Board expanded the number of directors from ten to eleven. Concurrent with this expansion, the Board elected Bruce H. Schroffel to fill the resulting vacancy until the 2012 annual meeting.
Candidates for nomination to the Board are selected by the Governance and Nominating Committee, and recommended to the Board of Directors for approval, in accordance with the guidelines established by such Committee, taking into consideration the overall composition and diversity of the Board and areas of expertise that new Board members might be able to offer. Directors are elected by the shareholders at each Annual Meeting, to serve for a one-year term, which expires on the date of the next Annual Meeting.
Steven Bangert, Michael B. Burgamy, Morgan Gust, Evan Makovsky, Douglas L. Polson, Mary K. Rhinehart, Noel N. Rothman, Bruce H. Schroffel, Timothy J. Travis, Mary Beth Vitale and Mary M. White are incumbent directors whose terms will expire at the Annual Meeting. All of them are being nominated for reelection at the Annual Meeting. As a result, there will not be any vacancies on the Board after our shareholders meeting on May 17, 2012 (assuming that all nominated directors are elected at the Annual Meeting).
The Board has determined that directors Burgamy, Gust, Polson, Rhinehart, Rothman, Schroffel, Travis, Vitale and White qualify as independent directors under the NASDAQ listing standards as currently in effect. Directors are encouraged but are not required to attend the Annual Meeting. Last year, all incumbent directors attended the Annual Meeting, other than Mr. Schroffel who was not on the Board at that time.
Each of the eleven nominees standing for election has indicated a willingness to serve, but in case any of them is not a candidate at the Annual Meeting, which is not presently anticipated, the persons named as proxies in the enclosed form of proxy may vote for a substitute nominee at their discretion.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE "FOR" THE
Information regarding director nominees is set forth below:
2. Nonbinding shareholder approval of executive compensation
The Board of Directors has adopted a policy that provides Company shareholders the opportunity to vote on an advisory (nonbinding) resolution at each annual meeting to approve the compensation of the Company's executives named in the annual proxy statement, including the Compensation Discussion and Analysis and related disclosure contained in such proxy statement.
This proposal gives you as a shareholder the opportunity to vote for or against the following resolution:
"RESOLVED, that the shareholders of CoBiz Financial Inc. (the "Company") approve the compensation of the Company's executives named in the Summary Compensation Table of the Company's Proxy Statement for the 2012 Annual Meeting of Shareholders, including the Compensation Discussion and Analysis, the Executive Compensation tables and the related disclosure contained in the Proxy Statement."
Because your vote is advisory, it will not be binding upon the Board and may not be construed as overruling any decision by the Board. However, the Compensation Committee may, in its sole discretion, take into account the outcome of the vote when considering future executive compensation arrangements.
Shareholders are encouraged to carefully review the "Compensation Discussion and Analysis" section of this proxy statement for a detailed discussion of the Company's executive compensation program.
Our overall executive compensation policies and procedures are described in the Compensation Discussion and Analysis and the tabular disclosure regarding named executive officer compensation (together with the accompanying narrative disclosure) in this proxy statement. Our compensation policies and procedures are centered on a pay-for-performance culture and are strongly aligned with the long-term interests of our shareholders, as described in the Compensation Discussion and Analysis. The Compensation Committee, which is comprised entirely of independent directors, oversees our executive compensation program and continually monitors our policies to ensure they continue to emphasize programs that reward executives for results that are consistent with shareholder interests.
Our Board and our Compensation Committee believe that our commitment to these responsible compensation practices justifies a vote by shareholders FOR the resolution approving the compensation of our executives as disclosed in this proxy statement.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE "FOR" THE RESOLUTION APPROVING THE COMPENSATION OF EXECUTIVES.
3. Advisory proposal on the frequency (every 1, 2 or 3 years) of future advisory votes regarding executive compensation.
The Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) requires publicly traded companies to allow shareholders to indicate, on an advisory (nonbinding) basis at least once every six years, how frequently the Company should seek an advisory vote on the compensation of our named executive officers, as disclosed pursuant to the SEC's compensation disclosure rules. This proposal allows shareholders to indicate whether they prefer an advisory vote on named executive officers every one, two or three years, through the following resolution:
"RESOLVED, that the shareholders of CoBiz Financial Inc. (the "Company") recommend that the Company hold an advisory vote on the compensation of the named executive officers, as disclosed pursuant to the SEC's rules, every one, two or three years, as determined by the option that receives the highest number of shareholder votes."
As discussed under proposal two, the Board has previously adopted a policy to provide an annual advisory vote on executive compensation. The Board believes that an annual advisory vote on executive compensation allows our shareholders to provide their direct and timely input on our compensation philosophy, policies and practices as disclosed in the proxy statement. Additionally, an annual advisory vote is consistent with our policy of seeking input from, and engaging in discussions with, our shareholders on corporate governance matters and our executive compensation philosophy, policies and practices. If the shareholders approve a frequency other than one year, the Board will consider that vote in a re-examination of its adopted policy.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE "FOR" THE OPTION OF AN ANNUAL NONBINDING ADVISORY VOTE AS THE FREQUENCY WITH WHICH SHAREHOLDERS ARE PROVIDED A FUTURE ADVISORY VOTE REGARDING EXECUTIVE COMPENSATION.
4. Shareholder proposal regarding the independence of the Chairman of the Board.
Mr. Gerald R. Armstrong, whose address and telephone number are 910 Sixteenth Street, No. 412, Denver, Colorado 80202-2917, (303) 355-1199, and who is the beneficial owner of 3,937 shares of the Company's Common Stock, has informed the Company that he intends to present a proposal for consideration at the Annual Meeting. The proposal and supporting statement of Mr. Armstrong are set forth below. The Board of Directors opposes this proposal for the reasons described in the Board of Directors' Statement in Opposition.
That the shareholders of CoBiz Financial Inc. request its Board of Directors to establish a policy requiring that the Board's chairman be an "independent director," as defined by the rules of the New York Stock Exchange and National Association of Securities Dealers, and who has not previously served as an executive officer of CoBiz Financial Inc.
This policy should not be implemented to violate and contractual obligation and should specify: (a) how to select a new "independent" chairman if the current chairman ceases to be independent during the time between annual meetings of shareholders; and, (b) that compliance is excused if no independent director is available and willing to service as chairman.
The proponent believes that the Board of Directors will provide greater oversight of management with an "independent chairman." The absence of an "independent chairman" could be part of the past problems and the inability of CoBiz to regain significant profits and restore reasonable dividends to shareholders.
Steven Bangert has been Chairman and Chief Executive Officer since 1994 and is the most highly compensated officer of CoBiz. It should be noted that his compensation has been increased or maintained at high levels although dividends remain reduced since the second quarter of 2009.
Past "compensation consultants" include a certified public accounting firm and an employee benefits consultant who are not serving other public corporations in that capacity.
The proponent believes that an "independent" board of directors would want an "independent" chairman to lead it. It is apparent that the use of a "Lead Director" has not worked at CoBiz.
Norges Bank Investment Management has stated in support of a similar proposal:
"The roles of Chairman of the Board and CEO are fundamentally different and should not be held by the same person. There should be a clear division of responsibilities between these positions to
insure a balance of power and authority on the Board. Approximately, 43% of S&P 1500 companies have separate CEO and Chairman positions.
"The Board should be led by an independent Chairman. Such structure will put the Board in a better position to make independent evaluations and decisions, hire management, decide a remuneration policy that encourages performance, provide strategic directions and support management in taking a long-term view in development of business strategies. An independently led Board is better able to verse and give guidance to corporation executives, help prevent conflict or the perception of conflict, and effectively strengthen the systems of checks-and-balances within corporate structure and thus protect shareholder value."
If you agree, please vote "FOR" this proposal.
BOARD OF DIRECTORS' STATEMENT IN OPPOSITION:
The Company does not have a formal policy with respect to whether the positions of Board Chairman and CEO should be separate or combined. The Board makes this decision based on the specific needs of the Company and the facts and circumstances in place when the positions are open for consideration.
Mr. Bangert has served as Chairman of the Board and CEO since 1994. As Chairman, he presides over the Board meetings and acts as the primary liaison between the Board and executive management. As CEO, Mr. Bangert oversees the execution of business strategies and day-to-day operations of the Company. The Board believes its governance practices mitigate any potential risks that may be perceived with the combined roles, including:
The Board believes the combined position promotes both guidance and clarity of the Company's mission statement and unified leadership and direction for the Company. The Board believes this structure has been effective in governing the Company and that changes would impede the agility in which the Company has operated when strategic decisions are required.
FOR THESE REASONS, THE BOARD OF DIRECTORS RECOMMENDS A VOTE AGAINST THE PROPOSAL.
The Board of Directors conducts its business through meetings of the Board and the following standing committees: Executive, Audit, Governance and Nominating and Compensation. The standing committees regularly report on their activities and actions to the full Board. Each of the standing committees has the authority to engage outside experts, advisors and counsel to the extent it considers appropriate to assist the committee in its work. With the exception of the Executive Committee, each of the standing committees has adopted and operates under a written charter.
The Company maintains an Internet website located at www.cobizfinancial.com on which, among other things, the Company makes available, free of charge, various reports that it files with or furnishes to the Securities and Exchange Commission (SEC), including its Annual Report on Form 10-K, quarterly reports on Form 10-Q, and current reports on Form 8-K. These reports are made available as soon as reasonably practicable after they are filed with or furnished to the SEC. The public may read and copy any materials we file or furnish with the SEC at the SEC's Public Reference Room at 100 F Street, NE, Washington, DC 20549. Additional information on the operation of the Public Reference Room may be obtained by calling the SEC at 1-800-SEC-0330. The SEC also maintains a website at www.sec.gov that contains reports, proxy and information statements, and other information regarding issuers that file electronically with the SEC. The Company has also made available on its website its Corporate Governance Guidelines, its Excessive or Luxury Expenditures Policy and its Code of Conduct and Ethics, as well as the charters for its Audit Committee, Governance and Nominating Committee and Compensation Committee. To access these materials, visit the Company's website at www.cobizfinancial.com and select "Investor Relations," then select "Governance," and then select the name of the document you wish to view. The content on any website referred to in this filing is not incorporated by reference into this filing unless expressly noted otherwise.
The Board of Directors held five meetings during fiscal year 2011. Each incumbent director attended at least 75% of the total meetings of the Board and Board committees on which the director served during the fiscal year.
The following table reflects the current membership of each Board committee:
The Executive Committee is authorized to exercise certain of the powers of the Board of Directors, subject to ratification by the full Board of Directors, and meets as needed, usually in situations where it is not feasible to take action by the full Board of Directors. The Executive Committee did not meet in 2011.
The Audit Committee operates pursuant to a written charter adopted by the Company's Board of Directors. The Audit Committee has the responsibility to:
The Audit Committee consists of three members, Mr. Burgamy, Mr. Polson, and Ms. Rhinehart, all of whom are "independent" under the NASDAQ listing standards currently in effect. The Board of Directors has designated Mr. Polson and Ms. Rhinehart each as an "audit committee financial expert" within the meaning of the applicable SEC rules. The Board of Directors has determined that the Audit Committee members do not have any relationship to the Company that may interfere with the exercise of independent judgment in carrying out their responsibilities. None of the Audit Committee members are current officers or employees of the Company or its affiliates. The Audit Committee held nine meetings in 2011. At least quarterly, the Audit Committee met in private session with our independent registered public accounting firm and alone in executive sessions without members of management present. Annually, the Audit Committee has met privately with the Chief Financial Officer (CFO) and the Director of Internal Audit of the Company and the Company's legal counsel.
The Governance and Nominating Committee (G&N Committee) operates pursuant to a written charter adopted by the Company's Board of Directors. The G&N Committee has the responsibility to:
When evaluating whether an incumbent director should be nominated for reelection, the G&N Committee reviews the director's overall service to the Company during his or her term, including the number of meetings attended, level of participation and quality of performance. When searching for new director candidates, the G&N Committee canvasses its network of professional contacts to compile a list of potential candidates and may also engage a professional search firm if it deems appropriate. The G&N Committee then meets to discuss and consider each candidate's qualifications and selects by majority vote a nominee to recommend to the full Board. The G&N Committee will consider individuals recommended by a shareholder of the Company to serve on the Board. For a description of the procedures for nominating a candidate to the Board and the minimum qualifications for Board membership, please see "Shareholder Recommendations of Director Nominees" below.
At any meeting of the shareholders at which nominees for director are subject to an uncontested election (that is, the number of nominees is equal to the number of seats), any nominee for director who receives a greater number of votes "withheld" from his or her election than votes "for" such election (with "abstentions" and "broker non-votes" not counted as a vote "for" or "against" such nominee's election) (a "Majority Withheld Vote"), promptly shall offer to submit his or her resignation from the Board following certification of the shareholder vote. The G&N Committee shall consider the director's offer and recommend to the Board the action to be taken with respect to same, which can range from accepting the director's offer; to maintaining the director but addressing what the G&N Committee believes were the underlying causes of the "withheld" votes; to resolving that the director will not be renominated in the future for election; or to rejecting the director's offer.
The G&N Committee has created a subcommittee for purposes of handling all matters related to the nomination of directors. Each member of such subcommittee must meet the independence requirements of the NASDAQ listing standards and any other applicable laws, rules and regulations governing independence, as determined by the Board. The director nomination subcommittee of the G&N Committee currently consists of Ms. Vitale and Ms. White, each of whom is "independent" under the NASDAQ listing standards currently in effect. Mr. Makovsky also serves on the G&N Committee, but does not serve on the director nomination subcommittee or have any role in the director nomination function of the G&N Committee. Mr. Travis is an ex-officio member of the G&N Committee and director nomination subcommittee and is eligible to vote in the event a tie-breaking vote is necessary.
The G&N Committee held five meetings in 2011.
The Compensation Committee operates pursuant to a written charter adopted by the Company's Board of Directors. The Compensation Committee assists the Board in the discharge of its responsibilities relating to compensation of the executives and other key employees of the Company, and in connection with administering the Company's employee benefit plans. The Compensation Committee has responsibility to:
The Compensation Committee is comprised of Messrs. Burgamy (through the end of 2011), Gust, Rothman and Schroffel, each of whom is not an employee of the Company, is independent under the NASDAQ listing standards currently in effect and is an "outside director" within the meaning of section 162(m) of the Internal Revenue Service Code (Code).
The Compensation Committee held five meetings in 2011. During several meetings, the Compensation Committee held an executive session without members of management present.
No member of the Compensation Committee was at any time during 2011, or at any other time, an officer or employee of the Company or any of its subsidiaries. Furthermore, no executive officer of the Company served on the compensation committee (or other Board committee performing equivalent functions) or as a director of any other entity that had an executive officer who served as a director or on the Compensation Committee of the Company.
The Bank has invested or committed to invest in several licensed Small Business Investment Companies (SBICs) in which certain directors (including Mr. Rothman, who is a member of the Compensation Committee and Mr. Burgamy who was formerly a member of the Compensation Committee until the end of 2011) and executive officers of the Company also own interests. These investments and the interests of the directors and executive officers in the SBICs are described below.
The Bank has committed to purchase up to $1,000,000 of limited partnership interests in Prairie Capital Mezzanine Fund II, L.P. (Prairie Capital II). As of December 31, 2011, the Bank's aggregate investment in Prairie Capital II was $900,000, and the Bank was subject to additional capital calls of up to $100,000. Messrs. Bangert, Rothman and Burgamy have capital commitments to Prairie Capital II in amounts of $2,000,000, $285,000 and $500,000, respectively, and own interests in Prairie Capital II proportionate to their capital commitments. Mr. Bangert is a member of the Advisory Board of Prairie Capital II.
The Bank has also committed $1,000,000 to Prairie Capital Mezzanine Fund III, L.P. (Prairie Capital III). As of December 31, 2011, the Bank's aggregate investment in Prairie Capital III was $850,000, and the Bank was subject to additional capital calls of up to $150,000 in Prairie Capital III. Messrs. Bangert, Rothman and Burgamy have capital commitments to Prairie Capital III in amounts of $2,000,000, $1,500,000 and $500,000, respectively, and own interests in Prairie Capital III proportionate to their capital commitments. Mr. Bangert is a member of the Advisory Board of Prairie Capital III.
The Bank has committed $7,500,000 to GMB Mezzanine Capital, L.P. (GMB Mezz Fund). As of December 31, 2011, the Bank's aggregate investment in the GMB Mezz Fund was $4,029,000, and the Bank was subject to additional capital calls of up to $3,471,000 in the fund. The GMB Mezz Fund Partnership Agreement stipulates that unused capital calls returned to partners can be subject to recall at a later date which would increase the amount of additional capital calls the Bank is subject to. The GMB Mezz Fund's general partner is Lakeside Capital Partners, LLC (Lakeside Capital). The Company advanced start-up funding to Lakeside Capital while it was forming and marketing the GMB Mezz Fund. In return, Lakeside Capital granted naming rights of the fund to CoBiz and agreed to allocate a portion of their carried-interest in the GMB Mezz Fund to the Company. The following directors have also made capital commitments to the GMB Mezz Fund, as indicated, and own interests proportionate to their capital commitments: Mr. Bangert$2,500,000; Mr. Burgamy$500,000; Mr. Rothman$2,000,000; and Mr. Travis$500,000. Mr. Bangert is also a member of the Advisory Board of GMB Mezz Fund.
The Company has committed $4,000,000 to GMB Mezzanine Capital II, L.P. (GMB Mezz II). As of December 31, 2011, the Company's aggregate investment in GMB Mezz II was $1,000,000, and the Company was subject to additional capital calls of up to $3,000,000 in the fund. The Company was not involved in the formation of the general partner of GMB Mezz II and does not have a financial interest in the general partner. The following directors have also made capital commitments to GMB Mezz II, as indicated, and own interests proportionate to their capital commitments: Mr. Bangert$250,000; Mr. Burgamy$500,000; and Mr. Travis$500,000.
In considering each director and director nominee and the composition of the Board as a whole, the G&N Committee searches for candidates that promote diversity of views, experiences, characteristics, attributes and skills, including diversity in gender and ethnic background, that the G&N Committee believes enables a director to make a significant contribution to the Board and its oversight of the Company. These experiences, characteristics, attributes and skills include management experience, independence, financial expertise, education, community involvement and diversity in gender and ethnic background. The Committee may also consider other experiences, characteristics, attributes and skills, as it deems appropriate, given the needs of the Board and the Company.
The Committee believes that directors who possess these experiences, characteristics, attributes and skills are better able to provide oversight of management and our long-term and strategic objectives. On an annual basis, the G&N committee reviews the nominees selected to serve as directors and considers the diverse backgrounds, education, experiences, and skills of the nominees. While there is no formal diversity policy, the G&N committee also considers in this review, its desire for diversity in gender, race, age, geography and background when recommending committee memberships and nominees. In addition, the G&N committee conducts an annual self-assessment of the Board's effectiveness that includes consideration of the appropriate mix of the board members. The following table sets forth the experience, characteristics, attributes and skills of each director nominee that led
the Board to conclude that such persons should serve as directors. The Board also considered the specific experience described in each nominee's biographical information, as disclosed above.
Mr. Bangert serves as the Chairman of the Board, in addition to his duties as CEO of the Company. He is currently the only director who is also an employee of the Company. The Board has determined that the current structure of the combined Chairmanship and CEO position is in the best interest of the Company. The Board believes that the experience of Mr. Bangert is invaluable to the leadership and the direction of the Company as provided by the Board. The combined position promotes both guidance and clarity of the Company's mission statement. The Board believes that the potential appearance of a conflict of interest that may arise when the positions are combined has been mitigated by steps taken by the Board. Specifically, the Board has elected a lead independent director
as discussed below, conducts executive sessions without the presence of management, utilizes the services of independent consultants to review executive compensation and has aligned incentive compensation with corporate-wide performance goals that do not encourage unnecessary and excessive risks.
Mr. Travis currently serves as the lead independent director of the Board of Directors. He was initially elected to such position by the independent members of the Board of Directors at the May 2009 meeting of the Board of Directors to serve in such position by the independent members of the Board. The lead independent director position will continue to be reviewed annually. The responsibilities of the lead independent director are as follows:
The Board's role in risk oversight is to oversee and monitor the Company's risk management processes and to ensure that management has the skills and resources in place to address areas of risk within the organization. To facilitate that goal, the Company has implemented an enterprise-wide risk analysis and oversight program. This program is designed to: (a) identify the various risks faced by the organization, including credit risk, market risk (including liquidity risk) and operating risk (including technology, operational, compliance and fiduciary risk); (b) identify appropriate mitigation measures for such risks, including assigning responsibility for managing those risks to individual executives within the management team; and (c) align these management assignments with appropriate Boardlevel oversight.
Responsibility for the oversight of the program itself has been delegated to the G&N Committee. Under the program, a risk matrix has been developed and the organization's most prominent risks have been identified, responsibility for such risks has been assigned to appropriate executives, and assignments have been aligned for appropriate Board oversight. Responsibility for managing these risks includes strategies related to both mitigation (acceptance and management) and transfer (insurance). The G&N Committee reviews and updates the matrix annually or as necessary if there are significant changes to products, services or risks. Such reviews are performed with input from individuals tasked with risk oversight, including our Chief Operations Officer, Chief Credit Officer, Internal Audit Director, Treasurer, Chief Information Officer and Compliance Manager. After input is received from these officers, the G&N Committee submits the risk matrix to the full BOD for review.
The Board also regularly reviews the organizational structure of the Board, its committees and the management structure of the Company to ensure that risk oversight is appropriately addressed. The Board or a Board committee also meets in executive sessions without management, including executive sessions with our independent registered public accountants, to discuss items that include risk. The Board meets regularly with our Chief Operations Officer and other members of management to review the risk profile of the Company and risks related to the introduction of new and/or changed products.
As part of its oversight of the Company's executive compensation program, the Compensation Committee and the Company's management team are responsible for evaluating the risks presented by the Company's compensation programs and confirming that such programs: (i) do not encourage risk taking to a degree that is reasonably likely to have a materially adverse impact on the Company; (ii) do not encourage the management team to take unnecessary and excessive risks that threaten the value of the Company; and (iii) do not encourage the manipulation of reported earnings of the Company. At a minimum, the Compensation Committee reviewed such risks every six months during the period the Company had an outstanding obligation to the U.S. Treasury under the Troubled Asset Relief Program.
We are committed to the continuing education of the Board. The Company provides an orientation program for new directors and a continuing education program for all members of the Board. These programs include presentations from senior management on the Company's strategic plans, significant financial, accounting and risk management issues, compliance programs, and management structure. The Company also provides ongoing funding for director training.
Each director who is not an employee, but serves in the roles described below, receives the following:
In addition, during 2011 each incumbent director who was not an employee of the Company received options to purchase 1,000 shares of common stock for $7.22 per share, which represented 110% of the closing market price of the stock on the date of grant. Furthermore, any director who is not an employee of the Company who also served on the Bank's Board of Directors received an option to purchase an additional 1,000 shares of common stock for $7.22 per share and was paid a fee of $1,000 for each meeting of the Bank's Board they attended. Any non-employee director who is on the Bank's Board of Directors also received an annual retainer fee of $6,000. Directors of the Company who are employees do not receive additional compensation for their services as directors or committee members.
No director received perquisites or personal benefits in excess of $10,000 during 2011.
The following table shows the compensation of the members of our Board of Directors during fiscal year 2011.
The directors held options at December 31, 2011, as follows:
Information regarding executive officers of the Company is set forth below. Biographical information for Mr. Bangert is set forth above under "Election of Directors."
This section describes the Company's compensation philosophy, policies and programs and the compensation paid during 2011 to the Company's principal executive officer (i.e., our CEO) and principal financial officer (i.e., our CFO) and the three other officers of the Company having the highest total compensation for executive officers. We refer to these five individuals throughout the proxy statement as the "Named Executive Officers" or "NEOs."
The Compensation Committee of the Board is responsible for establishing and overseeing our executive compensation policies and practices. The Compensation Committee's determination of appropriate levels of compensation for the NEOs for 2011 was influenced by the U.S. Treasury's (Treasury) Troubled Asset Relief Program / Capital Purchase Program (TARP) that prohibited and limited certain executive compensation practices. However, the Company repaid TARP on
September 8, 2011 and was only restricted by TARP until August 19, 2011, the date the Company was informed that it would be permitted to redeem the TARP securities (TARP Period).
The Compensation Committee has taken the following actions related to NEO compensation for 2011:
Measures taken by the Compensation Committee to strengthen governance of our compensation practices include:
Measures being considered by the Compensation Committee to further strengthen governance of our compensation practices include:
The general compensation philosophy of the Company is to provide executive compensation that allows the Company to recruit, retain and motivate a highly qualified management team that formulates and implements the Company's business strategies that ultimately lead to enhancing long-term shareholder value. To achieve this objective, the Company's compensation plan includes a combination of base salary and annual cash incentive compensation to reward short-term performance, and the grant of time-vested restricted stock and options to encourage retention and long-term performance.
The financial performance of CoBiz significantly improved during 2011, particularly in the fourth quarter of the year. Noted below are some of the significant financial performance measures and operational results for 2011:
The section titled "Components of our 2011 Compensation Program" noted below describes in more detail how the Company's executive officers were compensated for their performance in 2011. Additional information on the Company's business results can be found in the Company's 2011 Annual Report under the Management's Discussion and Analysis section.
Set out below is the CD&A, which is a discussion of the Company's executive compensation programs and an analysis of the compensation of the NEOs for 2011.
TARP Compensation Standards
On December 19, 2008, CoBiz became a participant in TARP when the Treasury purchased preferred stock issued by the Company. As a result, we are required to comply with a number of executive compensation standards set forth in the Emergency Economic Stabilization Act of 2008 (EESA) until the date the Company was informed it would be permitted to redeem the TARP securities, which was on August 19, 2011.
Initially, there were four standards, which applied to our CEO, CFO and the three next highest paid executive officers. These standards were in effect at the end of 2008 and consisted of limits on severance; clawback provisions for bonuses, retention awards and incentive compensation; a requirement for the Compensation Committee to review compensation programs for unnecessary and excessive risks; and a limit on tax deductible compensation. The NEOs at the time we began participation in the CPP agreed that their separation entitlements and bonuses, retention awards and other incentive compensation would comply with these standards.
On February 17, 2009, the American Reinvestment and Recovery Act of 2009 (ARRA) required the Treasury to enact additional compensation standards. These standards extended beyond our NEOs and applied to up to the twenty next most highly-compensated employees during the TARP Period. On June 15, 2009, the Treasury issued an interim final rule to provide guidance on the executive compensation provisions of the ARRA. Under ARRA, the compensation standards were required to include the following with respect to the TARP Period:
from the Company for any reason, other than payments for services performed or benefits accrued.
The Compensation Committee has appointed our COO to serve as the Company's TARP compliance officer. In this capacity, the COO has overseen the Company's TARP compliance efforts and prepared a planning agenda for the Compensation Committee to review such compliance.
Independent Consultant and Peer Group Analysis
Annually, the Compensation Committee reviews the total compensation structure for the CEO and other NEOs. The Compensation Committee has the authority to retain outside consultants or advisors to assist in their analysis. In 2009, the Compensation Committee engaged the services of Ehrhardt, Keefe, Steiner & Hottman PC (EKS&H), a Denver-based accounting and business advisory firm. EKS&H was engaged to provide general executive compensation consulting services and to formulate an appropriate incentive compensation plan for the Company. The components and design of the plan were adopted in 2010, and it continues as the Company's incentive compensation plan. EKS&H may
also perform special executive compensation projects and consulting services from time to time as directed by the Compensation Committee. In addition, in early 2012, the Compensation Committee engaged EKS&H and Denver Compensation & Benefits LLC (Denver Compensation), to assist in reviewing the overall compensation practices of the Company. Denver Compensation was a subcontractor for EKS&H in the formulation of the incentive compensation plan. Both consultants report to the Compensation Committee. The fees paid to EKS&H and Denver Compensation for all services did not exceed $120,000 individually.
Annually, the Compensation Committee considers the market competitiveness of NEO compensation. As part of this consideration, the Compensation Committee reviews a group of peer companies who have somewhat similar attributes of size, product offerings and geographical location. In 2011, the Compensation Committee considered the following ten publicly traded, regional banks with assets between $2-7 billion:
The Compensation Committee considered the differences, as well as similarities in business models of these specific peers in its evaluation of the appropriateness and adequacy of the Company's compensation structure for its top executive officers. The Compensation Committee also reviewed data reported by SNL Securities as set forth below.
The information reviewed by the Compensation Committee included reported average compensation levels for various executive positions. The Compensation Committee does not benchmark executive compensation at a certain level or percentile based on the data. The data is only one of the components considered when setting executive compensation. Other factors include, but are not necessarily limited to, level of responsibility, results of regulatory examinations, individual performance, operating unit performance, overall Company performance and achievement of specific goals.
Components of our 2011 Compensation Program
The following discussion should be read with the understanding that during the TARP Period, the Company could not make any award under its Annual Incentive Compensation Plan or Equity Award Programs to the extent such award violated any ARRA restrictions. See TARP Compensation Standards above.
2011 compensation for the NEOs was allocated between base salary, annual incentive compensation and longer-term awards as follows:
Base Salary. The Company believes that competitive base salaries are necessary to attract and retain high performing executive officers. Generally, base salary is revised and adjusted once each year near the beginning of the year. The CEO conducts annual performance reviews for all NEOs, excluding himself. The performance reviews take into account individual performance, experience, unique contributions to the Company and the Company's need for certain types of expertise. The Compensation Committee considers its members' and the CEO's evaluation of both company and individual performance, the CEO's salary recommendations and competitive market data in determining appropriate base salary.
With respect to the base salary of the Company's CEO, all of the members of the Compensation Committee discuss the CEO's and the Company's performance at one or more Compensation Committee meetings and then advise the CEO of the results of this review. As with all the NEO's, this performance review of the CEO is generally based on both objective and subjective criteria, with a subjective analysis of all matters considered relevant by the Compensation Committee being the determining factor in ultimately fixing base salary.
Objectively, the Compensation Committee looks at the performance of the Company with particular emphasis on performance compared to budget for earnings. The Compensation Committee also considers, among other things, loan performance, loan and deposit growth, efficiency ratio, regulatory ratings and earnings from the fee based businesses (i.e., all of our businesses other than the Bank). Of these criteria, none has a specific performance objective for which a set base salary increase has been mandated.
In its subjective analysis the Compensation Committee considers the accomplishment of strategic objectives such as growth and loan performance, reputation of the Company and the CEO, integrity and honesty, interaction of the CEO with employees and the Board, development of management, the availability of funds and all other matters which any member of the Compensation Committee wants to consider or discuss regarding their perception of the performance of the CEO.
The NEOs' base salaries for 2011 were reviewed by the Compensation Committee at the beginning of 2011. While the Company made significant progress in strengthening its financial position in 2010 over 2009, the Compensation Committee determined that no increase in the base salary for NEOs would be awarded in 2011. This decision was made based on the net loss in 2010 and the Company's focus on returning to profitability in 2011. Consistent with our financial results, the Compensation Committee has kept base salaries at the same level since 2008.
The Compensation Committee has conducted its annual review of NEOs base salaries for 2012 and again determined that, with the exception of Ms. Andrich, no increase in the base salary will be awarded for 2012, as will be more fully discussed in the 2013 proxy statement.
Annual Incentive Compensation Plan. The Company's annual incentive plan is an important component of the Company's total compensation program for executive officers and other employees. The Company's philosophy is that incentive pay should generally constitute a meaningful component of total direct compensation. Annual incentive pay should award both short-term performance and also provide a longer term component. Annual cash bonus is intended to reward short-term performance and to be competitive with the marketplace. The long-term component of compensation was historically provided in the form of stock options that vest ratably over three- to four-years, but more recently includes time-vested restricted stock. The longer-term component is intended as a retention tool and also to advance the interests of the Company and its shareholders by encouraging and enabling executive officers and other employees to acquire and retain a proprietary interest in the Company. Through equity grants, the long-range interests of management and employees are aligned with those of shareholders, as the employees accumulate meaningful stakes in the Company.
For 2010 with the assistance of EKS&H, the Compensation Committee approved an incentive compensation program for NEOs. This incentive compensation plan provides for (i) a portion of total bonus to be calculated objectively on the financial performance of the Company in relation to the financial performance of a peer group of companies and (ii) a portion of total bonus to be paid more subjectively based on an analysis of the individual employee's performance. The maximum amount which may be earned by an employee is established as a percentage of an individual employee's base salary. The total bonus earned by an employee is paid partially in cash to award short-term performance and partially in restricted stock, granted in the subsequent year, which is subject to future vesting requirements to encourage retention and longer-term Company performance. For the NEOs, no portion of the Company performance component is payable unless the Company achieves profitability for the year, as measured by Return on Assets. In addition, cash bonuses and the terms of restricted stock were limited by the Company's participation in TARP during the TARP Period.
The Compensation Committee discussed and reviewed the financial metrics that were used to calculate the Company portion of the awards and determined that the metrics would not cause executive management to take unnecessary and excessive risks that could threaten the value of the Company and would not encourage the manipulation of reported earnings. The selected financial metrics emphasize long-term sustainable growth and not short term results. The Compensation Committee also agreed that these financial metrics will incentivize the right behavior by the NEOs.
The range of potential incentive awards and the weighting of individual versus Company performance in calculating those awards for the NEOs, are as set forth below for 2010 and 2011:
At the end of the fiscal year, each of these financial metrics is compared against the same metrics of other banking and financial services organizations in the Western and Southwestern region with assets of $1 billion to $10 billion, as reported by SNL Securities. The percentage of the Company performance portion of the award that is earned is based on a sliding scale depending on the quartile achieved by the Company with respect to each of the relevant performance metrics as noted below:
There is a further sliding scale adjustment to the Company performance portion of the award based on the profitability of the Company, as measured by ROA, if the Company's ROA is 0.25% or below, there will not be any Company performance portion of the award.
With respect to Mr. Callow, Company performance includes a separate analysis of the performance of the Company's Wealth Management initiative.
The following quantitative performance measures and the associated earned bonus percentages for 2011 were as follows:
The individual performance awards of our NEOs for 2011 reflect the improved financial performance of the Company and the attainment of certain goals during the latter part of 2011. The Compensation Committee believes that the CEO and the other NEOs performed well in managing the Company in the face of the financial and economic climate and worked hard and diligently for the Company's and Shareholders' best interests. The Compensation Committee also considered that the NEOs had not received an annual incentive award since 2007. In 2011, the Compensation Committee awarded the NEOs an individual performance incentive payment for the following factors (among others) that occurred after the TARP Period:
The following award percentages, based on 2011 individual and Company performance, for the NEOS was as follows:
The Compensation Committee may also elect to grant bonuses outside of the incentive compensation plan, whether cash or stock, based on the accomplishment of a particular goal or objective that requires additional commitment of time and effort by an executive officer. No such stock awards were made to NEO's for 2011 outside of the incentive compensation plan. Mr. Callow had previously notified the Company of his intention to retire in early 2012. Due to his planned retirement, the annual incentive award for Mr. Callow in 2011 was made in all cash. In addition, the Compensation Committee awarded an additional cash bonus of $50,000 to Mr. Callow in recognition of his success in consolidating and restructuring the Company's wealth management offering.
The Compensation Committee may at any time amend or rescind the incentive compensation plan or modify or amend its goals. These decisions are subjective and based generally on a review of the circumstances affecting results to determine if any events were unusual or unforeseen. At the end of 2011, the Compensation Committee determined that certain features of the annual incentive plan warranted adjustment for 2012. While a final determination of the changes has not been made, the Compensation Committee has preliminarily decided to increase the ROA hurdle used in determining the payout to all employees, including the NEOs. In addition, for 2011, the maximum amount available to the NEOs was 160% of their annual base salary. Beginning in 2012, the Compensation Committee intends to reduce the maximum amount available. In addition, to recognize the differences in executive positions, the percentage of annual incentive compensation available to each NEO will be adjusted so
that the CEO has the highest percentage, which will be lower than the 2011 percentage. The percentage available to the other NEOs will be adjusted to an amount that reflects their position and responsibilities, but will be lower than the CEOs percentage.
Retirement and Other Benefits
Supplemental Executive Retirement Plan. In 2004, the Compensation Committee, with the assistance of an independent compensation consultant, determined that SERP benefits were customary and appropriate for the NEO positions and were necessary to retain top talent in the Company. All of the NEOs, with the exception of Mr. Callow, participated in the SERP in 2011. The present value of accumulated benefits under the SERP for each of the NEOs is set forth in the section titled "Pension Benefits" below.
Given the economic environment in late 2008 and early 2009, the Compensation Committee took the step of suspending participation in the ongoing plan, making the suspension effective for the 2009 plan year. This suspension reduced the annual service cost contribution to the SERP program. After reviewing the overall compensation package of the NEOs, including the fact that base salaries were not increased in 2009 or 2010 and bonuses were not paid in 2008 or 2009, the Committee approved reinstating participation in the plan for 2010. The reinstatement was effective for the 2010 plan year and did not have any impact on the suspension for the 2009 plan year. Participation in the plan continued for the 2011 plan year.
In early 2012, the Compensation Committee conducted a review of the SERP as part of its ongoing assessment of overall compensation. The Compensation Committee has determined that the SERP is no longer aligned with the Company's objectives. The SERP was initiated at a time when the NEOs did not have a structured incentive bonus plan in place, which is no longer the case. In addition, the Committee decided that the SERP does not promote a direct link between executive compensation and the performance of the Company. Finally, SERP benefits when combined with potential incentive plan payments exceed the overall compensation levels desired by the Compensation Committee. Due to these factors, the Compensation Committee terminated the SERP in 2012 and no additional benefits will accrue to the NEOs. With the termination of the Plan, the benefits previously accrued will be distributed to the participants in accordance with the plan provisions, IRS code section 409A and the Pension Benefit Guaranty Corporation requirements.
Split-Dollar Endorsed Life Insurance. Initially associated with the SERP benefit was a death benefit for participating NEO's designated beneficiaries. Beneficiaries designated by an executive are entitled to a split-dollar share of the death proceeds from life insurance policies on each executive, which vary depending on the executive's employment status with the Company at the time of death, and eligibility to receive SERP payments.
Defined Contribution Plan. The Company maintains a 401(k) retirement savings plan available to all eligible employees, including the NEOs. Under the plan, the Company typically matches a portion of employee contributions. For 2011, employee contributions were matched up to a maximum of 3.0% of compensation subject in the case of the named executives to certain limitations in the Code. At December 31, 2011, all employer contributions made on behalf of the NEOS, were vested in accordance with the vesting schedule of the plan, generally five years from commencement of employment, on the basis of the officers' past service with the Company.
Employment Agreements. An additional component of the executive relationship with the Company intended to attract and retain key executive officers is an employment agreement. In addition to being market competitive, a comprehensive employment agreement supports a long-term commitment to each other between the Company and the executive, as well as a long-term perspective in the executive's leadership of the Company. It also provides the Company with valuable
non-solicitation restrictions on the executive should his or her employment terminate. For the CEO, as well as other NEOs, a change in control benefit supports retention of key executives during potential merger and acquisition discussions and permits such discussions to take place with limited distraction arising from personal concerns.
Employee Stock Purchase Plan (ESPP). The ESPP is a form of equity-based compensation that is available to all employees of the Company who own less than 5% of the Company's outstanding common stock. Under the ESPP, employees may elect, prior to the beginning of each calendar quarter, to purchase shares of the Company's common stock through payroll deduction at a price equal to 90% of the market price of the stock at the end of the calendar quarter. The ESPP provides an attractive vehicle for employees to acquire the Company's stock, which further aligns their financial interests with those of other shareholders.
Perquisites and Other Benefits. Perquisites and other benefits represent a small part of the Company's overall compensation package, and are offered only after consideration of business need. The Company believes that perquisites are generally a part of executive officers' market-competitive total compensation packages. We annually review the perquisites and other personal benefits that we provide to executive management. The primary perquisites are the use of a Company auto or auto allowance, club memberships, parking, and reimbursement for certain spousal travel. In conjunction with the Company's participation in the CPP, any perquisite in excess of $25,000 paid to the five most highly compensated employees during the TARP Period will be reported to the Treasury and no tax gross-ups were permitted to be paid to any NEO or the next twenty most highly compensated employees during the TARP Period.
It has been and continues to be the Company's intent that compensation payments generally be deductible unless maintaining such deductibility would undermine our ability to meet our primary compensation objectives or is otherwise not in our best interest.
Section 162(m). Under Section 162(m) as in effect before the enactment of EESA, we could not deduct annual compensation in excess of $1,000,000 paid to our named executives unless the compensation was performance-based. EESA, as further amended by the ARRA, amended Section 162(m) for TARP CPP participants to reduce the annual compensation tax deductibility cap to $500,000 and eliminate the exception for performance-based compensation. Although the majority of the compensation paid during 2011 was deductible, some components of the Company's compensation programs may result in payments from time to time that are subject to the restriction on deductibility. The Compensation Committee believes that it may be appropriate from time to time to exceed limitations on deductibility under Section 162(m) to ensure that executive officers are compensated in a manner that it believes to be consistent with the best interests of the Company and its shareholders consistent with the Company's executive compensation philosophy and objectives. In view of all of the circumstances, the Compensation Committee has concluded that no further action with respect to qualifying such compensation for deductibility is necessary at this time. The Compensation Committee, however, reserves the authority to continue to approve non-deductible compensation in appropriate circumstances. Also, because of ambiguities and uncertainties as to the application and interpretation of Section 162(m), no assurance can be given that compensation intended by the Company to satisfy requirements for deductibility under Section 162(m) will in fact do so.
Section 409A. Section 409A generally governs the form and timing of nonqualified deferred compensation payments. Section 409A imposes sanctions on participants in nonqualified deferred compensation plans that fail to comply with Section 409A rules, including accelerated income inclusion, an additional 20% income tax (in addition to ordinary income tax) and an interest penalty.
Stock Ownership Guidelines
The Compensation Committee established stock ownership guidelines for executive officers in 2004. Under these guidelines, each NEO and director of the Company is required to own shares of common stock having a market value of at least $10,000 at the time of purchase. In addition, shares issuable upon exercise of in-the-money stock options do not count toward this requirement. All of the NEOs and directors currently hold sufficient amounts of our common stock to meet or exceed the stock ownership requirements.
The Company also has an Insider Trading Policy that discourages employees from holding CoBiz stock in a margin account or pledging CoBiz stock as collateral for a loan unless they have adequate financial resources to prevent a forced sale. Employees are also prohibited from any short sales of CoBiz stock and from engaging in option trading or hedging transactions on CoBiz stock.
Recoupment of Annual Incentives
In compliance with the TARP requirements, the employment agreements for each of the NEOs was amended to ensure the Company had the ability to recover or clawback certain bonus and incentive payments made if the payments were based on materially inaccurate financial statements or other materially inaccurate performance metrics during the TARP Period. In addition, the Company has executed clawback agreements with the 20 most-highly compensated employees that allow the Company to recover any bonus or other incentive payments paid on the basis of materially inaccurate financial or other performance criteria.
After the TARP Period in the event that the financial results of the Company are restated as a result of fraud or misconduct, the Company would require, in compliance with Sarbanes-Oxley Act of 2002, as amended, our CEO and our CFO to reimburse the Company for certain incentive- or equity-based compensation and any profits from the sale of securities of the Company received during the 12-month period following the date of the financial statements that were subject to restatement were issued. The Compensation Committee is also considering the Dodd-Frank requirement for a clawback that is subject to final regulation and expects to make additional changes to the Company's policy on clawbacks once the guidance is issued.
Role of Executive Officers in Determining Executive Compensation
The Compensation Committee oversees the administration of executive compensation plans, including the design, performance measures, and award opportunities for the executive incentive programs, and certain employee benefits. The Compensation Committee has the authority to determine, reviews the performance and approves all compensation and awards, to the CEO and other NEOs. The CEO assists in such review as described above. The CEO determines the compensation of other senior officers based in part on market data provided by the compensation consultant, and the Compensation Committee may review the general elements of such compensation. Executive officers do not otherwise determine or make recommendations regarding the amount or form of executive or director compensation.
The Compensation Committee has reviewed all compensation programs relating to the NEOs in order to confirm that such programs: (1) do not encourage the NEOs to take unnecessary and excessive risks that threaten the value of the Company; and (2) do not encourage the manipulation of reported earnings of the Company.
2011 Compensation Program. The Compensation Committee has discussed its compensation programs for its NEOs with the Company's risk managers and has concluded that the Company's 2011
compensation policies and practices for its NEOs do not encourage unnecessary and excessive risk-taking and do not encourage the manipulation of reported earnings for the following reasons:
The Compensation Committee has reviewed and discussed the Compensation Discussion and Analysis with management. Based upon this review and discussion, the Compensation Committee recommended to the Board of Directors that the Compensation Discussion and Analysis be included in this proxy statement.
The Compensation Committee of CoBiz Financial Inc. certifies that:
(1) It has reviewed with senior risk officers the senior executive officer (SEO) compensation plans and has made all reasonable efforts to ensure that these plans do not encourage SEOs to take unnecessary and excessive risks that threaten the value of CoBiz Financial Inc.;
(2) It has reviewed with senior risk officers the employee compensation plans and has made all reasonable efforts to limit any unnecessary risks these plans pose to CoBiz Financial Inc.; and
(3) It has reviewed the employee compensation plans to eliminate any features of these plans that would encourage the manipulation of reported earnings of CoBiz Financial Inc. to enhance the compensation of any employee.
Submitted by the Compensation Committee of the Board:
The following table provides compensation information for the year ended December 31, 2011 for the NEOs. The "Executive CompensationCompensation Discussion and Analysis" section of this proxy statement includes information regarding the material terms of plans and agreements pursuant to which certain items set forth below are paid.
of the company provided auto. The cost of the company provided auto was calculated based on the Annual Lease Value Tables published by the IRS multiplied by the estimated personal use of the vehicle or the cash value of an auto allowance.
The following table shows all plan-based awards granted to NEOs during fiscal year 2011. Certain terms of the Company's stock plan pursuant to which the grants identified in the table were made are described in the "Executive CompensationCompensation Discussion and Analysis" section of this proxy statement.
The following table shows all outstanding equity awards held by NEOs as of December 31, 2011.
The following table shows all stock awards exercised or vested and the value realized upon exercise or vest, by NEOs during the year ended December 31, 2011.
The Company has adopted several incentive stock option plans to reward and provide long-term incentives for directors and key employees of the Company. No option issued under any of these plans may have a term longer than ten years from the date of grant. The significant terms of each plan are set forth below.
The 1997 Plan permits the granting of Incentive Stock Options to officers and other key employees. The exercise price of options granted under the 1997 Plan must be at least 100% of the fair market value of the common stock on the date of grant. Options granted under the 1997 Plan vest in equal installments on the first four anniversaries of the date of grant. There are no additional shares available for issuance under the 1997 Plan.
The 1998 Plan permits the granting of Incentive Stock Options and non-qualified stock options to officers and other key employees. The exercise price of options granted under the 1998 Plan must be at least 100% of the fair market value of the common stock on the date of grant. The Compensation Committee has the authority to establish the terms of vesting, payment and termination of options granted under the 1998 Plan. There are no additional shares available for issuance under the 1998 Plan.
The 2002 Plan provides for the issuance of Incentive Stock Options and non-qualified stock options to officers and other key employees, as well as consultants and directors. The exercise price of Incentive Stock Options granted under the 2002 Plan must be at least 100% of the fair market value of the common stock on the date of grant, and the exercise price of non-qualified stock options must be at least 85% of the fair market value of the common stock on the date of grant. The Compensation Committee has the authority to establish the exercise price and the terms of vesting, payment and termination of options granted under the 2002 Plan. As of December 31, 2011, there were 170,679 shares remaining for issuance under the 2002 Plan.
Under the 2005 Plan, as amended, the Compensation Committee has the authority to determine the identity of the key employees, consultants, and directors who shall be granted
options or restricted stock awards; the option price, which shall not be less than the fair market value of the common stock on the date of grant; the vesting requirements; and the manner and times at which the options shall be exercisable. As of December 31, 2011, there were 1,519,529 shares available for grant under the 2005 Plan.
The following table sets forth certain information concerning all equity compensation plans previously approved by shareholders and all equity compensation plans not previously approved by the shareholders as of December 31, 2011.
Supplemental Executive Retirement Plan. As discussed in the Compensation Discussion and Analysis, the Compensation Committee elected to terminate the SERP in 2012. In 2004, CoBiz implemented a SERP for certain NEOs, at that time, to provide retirement benefits to be market competitive, and to restore and supplement benefits available under the 401(k) plan. The SERP was unsecured and unfunded and there were no plan assets. CoBiz has purchased single premium Bank Owned Life Insurance policies (BOLI policies) on the lives of the NEOs and used income from the BOLI policies to offset SERP benefit expenses. Under the terms of the SERP, participants were entitled to an annual supplemental retirement and other benefit of up to one-half of their final average annual compensation (the five highest paid years during the first ten years of participation in the SERP), prorated based on their years of participation in the SERP for a period of up to ten years. SERP benefits vested at the rate of 20 percent per year of service and generally were payable at the later of (a) the participant's normal retirement date or (b) after the participant's tenth year of participation in the SERP. The benefit was payable either monthly over 10 years or in a lump sum equal to the actuarially adjusted present value of the right to receive those monthly payments. Vesting, and payment under the plan, was accelerated upon the disability of the participant or a change in control of the Company. If a participant terminated employment prior to normal retirement age, payment of any earned and vested benefit under the plan would have been paid based on the actuarial equivalent value as defined in the plan. If a participant died while employed by the Company, the retirement benefit was forfeited. The retirement benefits were funded from accruals to a benefit account during the participant's employment. The amount of the accrual was determined annually.
The following table shows each participating NEOs' number of years of service, present value of accumulated benefit and payments during the year ended December 31, 2011 under the SERP. During 2011, none of the participants received payments under the plan.
Prior to 2005, the Company entered into employment agreements with each of the NEOs, other than Mr. Callow. The agreement with Mr. Callow was executed in 2010. Each such agreement provides for annual salary and eligibility for a bonus. The agreements also provide certain fringe benefits including an automobile allowance or the use of a Company automobile, as well as an allowance for membership dues at a country, health or social club. Each such agreement provides that, during the term of the agreement and for one year thereafter, the employee is prohibited from soliciting any employees or customers of the Company or the Bank.
In the event that the Company terminates the employment agreement for reasons other than "for cause" or constructively discharges the employee (for example, by materially decreasing his or her responsibilities or his or her compensation) or the employee's employment is terminated because of disability or death, the Company will pay the following severance benefits:
as an Employee under all of Company's retirement plans in which Employee was a participant on the date of termination of Employee's employment or under which Employee would become eligible during such twelve (12) month period (hereinafter referred to collectively as the "Retirement Plan"). Benefits due to Employee under the Retirement Plan shall be computed as if Employee had continued to be an Employee of Company for the twelve (12) month period following termination of employment. If under the terms of the Retirement Plan such continued coverage is not permitted, Company will pay to Employee or Employee's estate a supplemental benefit in an amount which, when added to the benefits that Employee is entitled to receive under the Retirement Plan, shall equal the amount that Employee would have received under the Retirement Plan had Employee remained an employee of Company during such twelve (12) month period; and
Notwithstanding the foregoing, for all NEOs, with the exception of Mr. Callow, in the event that Employee terminates his or her employment within 24 months after a change in control, Employee shall be entitled to receive a multiple of the amounts specified in clauses (i) and (ii) above and the amount specified in clause (ii) above shall be for an entire year and not prorated to the date of termination. With respect to Mr. Callow, in the event that employment is terminated by the Company without Cause or by Employee with Good Reason within 180 days after a change in control, Employee shall be entitled to receive a multiple of the amounts specified in clauses (i) and (ii) above and the amount specified in clause (ii) above shall be for an entire year and not prorated to the date of termination
Severance arrangements were entered into by the Company to help assure the retention of the CEO and other NEOs experience, skills, knowledge and background for the benefit of the Company. These arrangements also reinforce and encourage continued attention and dedication to duties without the distraction arising from the possibility of a change in control of the Company and provide our business with a smooth transition in the event of a change in control of the Company. In addition, these arrangements provide the Officers with a severance amount to help financially ease their transition from the Company.
Stock Award Acceleration
The Compensation Committee, in its sole discretion, in the event of a change in control, may take such actions as it deems appropriate to provide for the acceleration of the exercisability and vesting in connection with such change in control of any or all outstanding options upon such conditions and to such extent as the Compensation Committee shall determine. Any such acceleration shall be conditioned upon the consummation of the change in control.
The table below represents the lump sum maximum amount each NEO would have been eligible to receive upon a change in control or if their employment was terminated under one of the various scenarios described below as of December 31, 2011. The actual amounts that would be payable in these circumstances can only be determined at the time of the executive's separation and may differ from the amounts set forth in the tables below based on various factors.
The following table summarizes the aggregate fees billed to the Company by Deloitte & Touche LLP:
The Audit Committee is responsible for appointing, setting compensation for and overseeing the work of the Company's independent registered public accounting firm. The Audit Committee has established a policy requiring its pre-approval of all audit and permissible non-audit services provided by the independent registered public accounting firm in order to ensure that the provision of such services does not impair the independence of the independent registered public accounting firm. The policy provides for the general pre-approval of specific types of audit, audit-related, tax and other services, gives guidance to management regarding the specific services that are eligible for general pre-approval and provides specific cost limits for each such service on an annual basis. The policy also provides that specific pre-approval of services to be provided by the independent registered public
accounting firm will be required if such services have not been generally pre-approved by the Audit Committee or if such services exceed specific de minimis limits.
The policy provides that the Audit Committee may delegate pre-approval authority to one or more of its members. Any member or members of the Audit Committee to whom such authority is delegated is required to report any pre-approval decisions to the Audit Committee at its next scheduled meeting. The policy prohibits the Audit Committee from delegating its responsibilities to pre-approve services to be performed by the independent registered public accounting firm to management of the Company.
The policy contains a de minimis provision that operates to provide retroactive approval for permissible non-audit services under certain circumstances. The provision allows for the pre-approval requirement to be waived if all of the following criteria are met:
During 2011, there were no fees approved under the de minimis provision. All fees were pre-approved in 2011.
In accordance with its written charter, a copy of which is available on the Company's website (www.cobizfinancial.com), the Audit Committee assists the Board of Directors in its oversight role over the Company's financial accounting and reporting process, the Company's system of internal control over financial reporting established by management and the external audit process. The Board has determined, in its business judgment, that Ms. Rhinehart and Mr. Polson qualify as an "audit committee financial expert" as defined by SEC regulations.
Management is responsible for the financial reporting process, the preparation of consolidated financial statements in accordance with generally accepted accounting principles, the system of internal controls, including internal control over financial reporting, and procedures designed to ensure compliance with accounting standards and applicable laws and regulations. The Company's independent registered public accounting firm is responsible for the audit of the consolidated financial statements and internal control over financial reporting. The Audit Committee's responsibility is to monitor and oversee these processes and procedures. The Audit Committee reviews and reports to the Board of Directors regarding the performance of the internal audit function and independent registered public accounting firm, the integrity of the financial statements, management's efforts to maintain a system of internal control over financial reporting, and compliance with legal and regulatory requirements.
The Audit Committee has reviewed and discussed the audited financial statements included in the Company's 2011 Form 10-K with management. The Audit Committee separately met with representatives of our internal audit department and independent registered public accounting firm, with and without management, to discuss the results of their examinations and their observations and recommendations regarding the Company's internal controls. The Audit Committee discussed with the Company's independent registered public accounting firm the matters required to be discussed by Statement on Auditing Standards No. 61, Communication with Audit Committees, as amended by SAS No. 90, Audit Committee Communications.
The Audit Committee has received from our independent registered public accounting firm, as required by the Public Accounting Oversight Board, a written disclosure, indicating all relationships, if any, between the independent registered public accounting firm and its related entities and the Company and its related entities which, in the auditor's professional judgment, reasonably may be thought to bear on the auditor's independence, and a letter from the independent registered public accounting firm confirming that, in its professional judgment, it is independent of the Company. The Audit Committee discussed with the independent registered public accounting firm any relationship that may have an impact on its objectivity and independence and satisfied itself as to the auditor's independence.
Based upon the review, discussion, disclosures and materials described above, the Audit Committee recommended to the Board of Directors that the audited financial statements be included in the 2011 Form 10-K.
This report is submitted by the Audit Committee.
K. Rhinehart, Chair
The following table sets forth, as of March 7, 2012, certain information regarding beneficial ownership of the Company's common stock by (i) each director of the Company, (ii) each NEO and (iii) all of the Company's directors and NEOs as a group. Unless otherwise indicated, the Company believes that the shareholders listed below have sole investment and voting power with respect to their shares based on information furnished to the Company by such owners.
The following sets forth certain information concerning the only persons known to us who may be considered a beneficial owner of more than 5% of the outstanding shares of CoBiz common stock as of March 2, 2012.
Our executive officers, key employees, directors and principal shareholders, members of their immediate families and businesses in which they hold controlling interests are our customers, and it is anticipated that such parties will continue to be our customers in the future. All outstanding loans and extensions of credit by us to these parties were made in the ordinary course of business in accordance with applicable laws and regulations and on substantially the same terms, including interest rates and collateral, as those prevailing at the time for comparable loans with persons not related to the Company, and, in our opinion, do not involve more than the normal risk of collectability or contain other features unfavorable to us. At December 31, 2011, the aggregate balance of our loans and advances under existing lines of credit to these parties was approximately $7,415,000, or 0.5% of our total loans and leases.
We lease our downtown Denver banking facility and executive and administrative offices from Kesef, LLC (Kesef), an entity in which Mr. Makovsky owns 20%. Messrs. Bangert, Lorenz, and Rothman (through Namtor) each previously owned a 16% interest in Kesef, but sold their interests in 2002. Kesef purchased the building in January 1998. The initial term of this lease was ten years, with an option to renew for an additional ten-year term at the current market rates. In addition, Shames-Makovsky Realty Company, an entity of which Mr. Makovsky is the majority owner and managing general partner, acts as the property management firm for our facility located in Surprise, Arizona, and receives compensation directly from the owning entity for its services. Shames-Makovsky Realty Company has also been engaged by the owners of our Northeast Denver location to act as their property manager. Rent payments for these related party leases for the year ended December 31, 2011 were $2,016,000.
The Company completed a private placement of $20,984,000 of Subordinated Unsecured Promissory Notes (the Notes) during the third and fourth quarter of 2008. The Notes will mature in 2018, 10 years after the initial issue date (August 18, 2008). The Notes bear a fixed annual interest rate of 9.00%, pay interest quarterly, and can be prepaid at par without penalty at any time on or after the fifth anniversary of the initial issue date. The Notes qualify as Tier 2 capital for regulatory capital purposes. Certain employees and directors of the Company and executive officers of the Company also participated in the private placement. At December 31, 2011, $3,550,000 in Notes was owed to related parties.
For information on certain other relationships and transactions between the Company and certain officers, directors and principal shareholders, see "Committees of the Board of DirectorsCompensation Committee Interlocks and Insider Participation" above.
The Company has various written procedures in place to identify potential related party transactions, which are reported and reviewed with the Company's Disclosure and Audit Committees. Some ordinary course transactions or relationships are not reviewed by the Disclosure or Audit Committees, including ordinary course customer relationships such as the banking and lending relationships described above. The Company has other written policies and procedures in place to
ensure compliance with applicable bank regulatory requirements regarding those banking and lending relationships. Furthermore, the Company's Code of Conduct and Ethics addresses potential conflicts of interest, and requires that conflicts be disclosed to the Company's Director of Internal Audit, requesting a waiver and cooperating in the establishment of appropriate procedures to neutralize the conflict. Waivers for directors and executive officers must be approved by the Company's Board of Directors. These procedures are intended to determine whether any such related party transaction impairs the independence of a director or presents a conflict of interest on the part of a director or executive officer.
On an annual basis, all directors and executive officers of the Company complete a questionnaire that, among other things, requires confirmation of any completed or proposed transaction with the Company that exceeds $120,000 to which they or an immediate family member were involved. The Audit Committee of the Company reviews all related party transactions that are required to be disclosed under Item 404 of SEC Regulation S-K.
In addition, each quarter the Company's Disclosure Committee requests all senior officers to identify any related party transaction of which they are aware. Transactions identified through this process are reported to the Audit Committee each quarter. Our procedures for reviewing related party transactions, other than approving waivers of compliance with the Code of Conduct and Ethics and transactions required to be disclosed under Item 404, do not require the approval or ratification of such transactions.
Section 16(a) of the Exchange Act requires executive officers and directors and persons who beneficially own more than 10% of the outstanding common stock to file initial reports of ownership on Form 3 and reports of changes in ownership on Forms 4 and 5 with the SEC. Executive officers, directors, and greater than 10% beneficial owners are required by SEC regulations to furnish the Company with copies of all Section 16(a) forms that they file.
Based solely on a review of the copies of such forms furnished to the Company, each of the Company's directors, officers and beneficial owners of more than 10% of the outstanding common stock have filed all forms required by Section 16 of the Exchange Act in fiscal 2011.
Included with this Proxy Statement is the Company's 2011 Annual Report to Shareholders, which includes its Annual Report on Form 10-K for the fiscal year ended December 31, 2011, as filed with the SEC.
Any shareholder of the Company who desires to make his or her thoughts known to an individual director of the Company, the Board or a committee of the Board may do so by mail to: Board of Directors, c/o CoBiz Financial Inc., Corporate Secretary, 821 Seventeenth Street, Denver, Colorado 80202. The Secretary will forward all shareholder communications, other than communications that are not properly directed or are frivolous, to the individual director of the Company, the Board or a committee of the Board, as requested in the communication. This policy is intended to apply only to communications from shareholders in their capacities as such. Communications to the Company from one of its officers, employees or agents will only be forwarded to a director, the Board or a committee of the Board if the communication is made solely in the person's capacity as a shareholder. The policy does not apply to shareholder proposals submitted pursuant to Rule 14a-8 under the Exchange Act, which will be handled in accordance with applicable SEC rules.
The G&N Committee will consider individuals recommended by the shareholders of the Company to serve on the Board. Shareholders who wish to recommend individuals for consideration by the G&N Committee may do so by submitting a written recommendation to: Director Nominations, c/o CoBiz Financial Inc., Corporate Secretary, 821 Seventeenth Street, Denver, Colorado 80202. Submissions must include:
Submissions must be accompanied by a written consent of the individual recommended to stand for election if nominated by the Board and to serve if elected by the shareholders of the Company.
The G&N Committee believes that candidates for director should have the following minimum qualifications:
Shareholder proposals submitted for inclusion in the Company's proxy statement for the Annual Meeting of Shareholders in the year 2013 must be received by the Secretary of the Company not later than December 5, 2012.
If the Company does not receive notice of a matter or proposal to be considered for the 2013 Annual Meeting of Shareholders (whether or not the proponent thereof intends to include such matter or proposal in the proxy statement for such annual meeting) on or before February 18, 2013, then the persons appointed by the Board of Directors to act as proxies for such annual meeting will be allowed to use their discretionary voting authority with respect to any such matter or proposal raised at such annual meeting.
The Board of Directors knows of no matters other than those that are described in this Proxy Statement that may be brought before the meeting. However, if any other matters are properly brought before the Annual Meeting, persons named in the enclosed proxy or their substitutes will vote in accordance with their best judgment on such matters.
Whether or not you plan to attend the Annual Meeting, please vote via telephone, via Internet, or by marking, signing, dating and promptly returning the enclosed proxy in the enclosed return envelope.
Only one Notice of Internet Availability of Proxy Materials or Annual Report and Proxy Statement, as applicable, will be delivered to multiple shareholders sharing an address unless CoBiz received contrary instructions from one or more of the shareholders.
If a shareholder at a shared address to which a single copy of the Notice of Internet Availability of Proxy Materials or Annual Report and Proxy Statement, as applicable, was delivered wishes to receive a separate copy of the Annual Report or Proxy Statement, he or she should contact the Company's Corporate Secretary, by telephoning (303) 312-3412, or by writing to CoBiz at 821 Seventeenth Street, Denver, Colorado 80202. The shareholder will be delivered, without charge, a separate copy of the Notice of Internet Availability of Proxy Materials or Annual Report or Proxy Statement, as applicable, promptly upon request.
If shareholders at a shared address currently receiving multiple copies of the Notice of Internet Availability of Proxy Materials or Annual Report and Proxy Statement, as applicable, wish to receive only a single copy of these documents, they should contact the Company's transfer agent, Computershare Investor Services LLC (Computershare), by writing to Computershare at 350 Indiana Street, Suite 750, Golden, CO 80401.
UPON WRITTEN REQUEST OF A BENEFICIAL OWNER OF COMMON STOCK ENTITLED TO VOTE AT THIS SHAREHOLDERS MEETING WHO DID NOT RECEIVE A COPY OF THE ENCLOSED ANNUAL REPORT TO SHAREHOLDERS, THE COMPANY WILL FURNISH, WITHOUT CHARGE, A COPY OF ITS FORM 10-K FOR THE YEAR ENDED DECEMBER 31, 2011, ACCOMPANIED BY A LIST BRIEFLY DESCRIBING ALL THE EXHIBITS THERETO AND NOT CONTAINED THEREIN. THE COMPANY WILL FURNISH A COPY OF ANY EXHIBIT UPON THE ADDITIONAL REQUEST OF SUCH PERSON AND THE PAYMENT OF A FEE OF $0.25 PER PAGE. ADDRESS ANY SUCH REQUESTS TO MARY PERROTT SMITH, CORPORATE SECRETARY, COBIZ FINANCIAL INC., 821 SEVENTEENTH STREET, DENVER, CO 80202. THE REQUEST MUST CONTAIN A GOOD FAITH REPRESENTATION THAT, AS OF THE RECORD DATE FOR THE MEETING, THE PERSON MAKING THE REQUEST WAS A BENEFICIAL OWNER OF SECURITIES ENTITLED TO VOTE AT THE MEETING.