"Material Risk" Prompts Leading Proxy Advisor ISS to Recommend Shareholders Withhold Votes from Five Directors
April 30, 2013
/PRNewswire-USNewswire/ -- ISS, the country's largest proxy voting advisory firm, issued a report yesterday recommending that shareholders withhold votes from all members of the Swift Transportation Company
Board of Directors' Audit Committee over concerns about the CEO's extensive pledging of stock.
ISS cites concerns over the material risk and potential conflicts of interest created by pledging the shares, and notes the audit committee's responsibility to oversee the management of enterprise and financial risks as well as potential conflicts of interest. Swift Transportation will hold its annual meeting of shareholders on
sent to the board's independent chairman and audit committee member
, Teamsters General Secretary Treasurer
urged immediate board action to protect the interests of public shareholders from the risks associated with the excessive pledging of stock by Swift's founder, CEO and controlling shareholder
by prohibiting any future stock pledging.
The letter states, "The Board's current policy gives employees or directors the opportunity to pledge up to 20 percent of their family holdings. Moyes and various 'Moyes Affiliates' have not only pledged shares up to that amount—just over 12 million shares – for a variety of personal loans, but also pledged an additional 23.8 million shares of Class B common stock (representing
in value of shares of Class A common stock) to an unaffiliated trust as part of a Stockholder Offering entered into at the time of the 2010 Initial Public Offering (IPO). Any or all of the pledged shares could be converted into Class A common stock as of December, 2013….In all, Moyes and the Moyes Affiliates have pledged a total of 35.8 million shares, or nearly two-thirds of his entire equity stake in the company and approximately 25 % of the total outstanding shares."
"Allowing the company's CEO and controlling shareholder
to gamble nearly 25 percent of Swift's total outstanding shares as collateral for his personal loans is indefensible," Hall said. "It is vital that this board exercise its independence and authority to protect the interests of public shareholders."
The company's financial statements also identify Moyes' substantial ownership interests in and guarantees to other businesses as a material risk to investors given his exposure to potential lawsuits or liabilities. According to the company's 2012 annual report, Moyes has given "personal guarantees to lenders to the various businesses and real estate investments in which he has an ownership interest and in certain cases, the underlying loans are in default and in the process of being restructured and/or settled. If Mr. Moyes is otherwise unable to settle or raise the necessary amount of proceeds to satisfy his obligations to such lenders he may be subject to significant lawsuits."