Company Name: New York Community Bancorp, Inc.
Public Availability Date: August 8, 2007
Document Sections:
INQUIRY LETTER
INQUIRY LETTER
APPENDIX
INQUIRY LETTER
INQUIRY LETTER
INQUIRY LETTER
INQUIRY LETTER
STAFF REPLY LETTER
[INQUIRY LETTER]
May 25, 2007
BY OVERNIGHT EXPRESS MAIL
U.S. Securities and Exchange Commission
Division of Corporation Finance
Office of the Chief Counsel
100 F. Street, N.E.
Washington, D.C. 20549-3010
Tel.: 202-551-3500
Re: Shareholder Proposal Submitted to New York Community Bancorp, Inc. by
Charles Miller
Ladies and Gentlemen:
This letter is to inform you that, pursuant to Rule 14a-8(h)(3) under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), New York
Community Bancorp, Inc. (the "Company") will omit from the proxy statement and
form of proxy for its 2007 annual meeting of shareholders (the "2007 Proxy
Materials") a shareholder proposal (the "2007 Proposal") submitted by Charles
Miller, 23 Park Circle, Great Neck, New York 10154, a holder of 600 shares of
the Company's common stock. We hereby request that the staff of the Division of
Corporation Finance (the "Staff") confirm that pursuant to Rule 14a-8(h)(3): (i)
the 2007 Proposal was properly omitted under Rule 14a-8(h)(3) and (ii) any
proposals by the proponent may be omitted from the 2007 Proxy Materials as well
as from the Company's proxy materials for any other meetings of stockholders
held in 2007 and 2008. In addition, we also believe the omission of the 2007
Proposal from the 2007 Proxy Materials permitted under Rule 14a-8(i)(10) and
Rule 14a-8(b).
The full text of the 2007 Proposal and supporting statement are set forth in
Attachment 1 to this letter. The specific reasons why we believe omission of the
2007 Proposal to be proper and the support for this conclusion are set forth
below. We have also set forth in detail the somewhat unusual facts and
circumstances surrounding the submission of the 2007 Proposal, which we believe
are critical both to our conclusion that the proposal is properly omitted and to
the timing of the submission of this letter.
Background
To understand the timing of the submission of this letter relative to the
scheduled date of the Company's annual meeting, Wednesday, May 30, 2007, it is
important to understand the sequence of events that preceded our determination
that 2007 Proposal is properly omitted. As detailed in Attachment 1, the 2007
Proposal is a non-binding resolution requesting that the Company's Board of
Directors take the steps necessary to declassify the Board of Directors. The
2007 Proposal was not included in the 2007 Proxy Materials filed with the SEC on
April 27, 2007 because the Company's officers were not aware of the submission
of the 2007 Proposal until May 14, 2007. The Company was not aware of the
existence of the 2007 Proposal until this late date due to a combination of
factors, including Mr. Miller's initial failure to direct the proposal to the
appropriate corporate officer and, thereafter, an internal clerical oversight
that resulted in the failure to direct the proposal to the attention of
executive management of the Company.
Specifically, Mr. Miller did not send the 2007 Proposal to me, as the Corporate
Secretary of the Company, in accordance with the instructions on the submission
of shareholder proposals disclosed on page 38 of the Company's 2006 proxy
materials, to wit: "To be considered for inclusion in the Company's proxy
statement and form of proxy relating to the Annual Meeting of Shareholders to be
held in 2007, a shareholder proposal must be received by the Secretary of the
Company, at the address set forth on the Notice of Annual Meeting that
accompanies this Proxy Statement, not later than January 12, 2007" (emphasis
added). Indeed, the 2007 Proposal was not addressed to the "Secretary." Instead,
it was apparently sent, on January 10, 2007, via facsimile to:
Mr. Joseph R. Ficalor [sic]
Chairman
New York Community Bancorp, Inc.
615 Merrick Ave
Westbury NY 11590
It is important to note that the 2006 proxy materials (excluding the appendices
and including the form of proxy, Attachment 2) did not include a fax number for
me or anyone else at the Company, nor was facsimile transmission identified as
an appropriate means by which shareholder proposals should be submitted to the
Company. Contrary to Staff guidance (see SEC Staff Legal Bulletin No. 14C, June
28, 2005, Section F) the Company has no record of any contact from Mr. Miller
requesting information regarding a fax number for me or Mr. Ficalora for the
purpose of transmitting a shareholder proposal that would have alerted the
Company to the 2007 Proposal's existence. Further, while the cover letter
accompanying the proposal includes a "cc:" reference to "R. Patrick Quinn
Patrick.Quinn@myNYCB.com, Corporate Secretary," and while this is my e-mail
address, I have no record of receiving any correspondence from Mr. Miller
through any method of delivery, e-mail, facsimile or otherwise, and Mr. Miller,
in his correspondence and in several conversations with Company representatives,
has not asserted that he sent his letter to the Company via e-mail or any method
other than the facsimile addressed to "Mr. Ficalor."
Subsequently, on May 14, 2007, an administrative assistant for the Company
received a copy of correspondence sent by Mr. Miller on that date via facsimile
to the attention of:
Mr. Joseph R. Ficalor [sic]
Chairman
New York Community Bancorp, Inc.
615 Merrick Ave
Westbury NY 11590
The May 14, 2007 correspondence (Attachment 3) attached Mr. Miller's January 10\th/
correspondence, including another copy of the 2007 Proposal. This was the first
time a Company officer personally received the 2007 Proposal. The May 14, 2007
correspondence included a "Transmission Verification Report" that reflects that
four pages were sent at 7:17 p.m. on January 10\th/ to the fax machine located
at the desk of an administrative assistant to Mr. Ficalora.
Upon receipt of this correspondence, Mr. Ficalora's assistant shared it with the
Company's Chief Operating Officer, Robert Wann, who had not seen any prior
correspondence from Mr. Miller. Mr. Wann gave the material to me and asked me to
prepare a response to Mr. Miller. I immediately searched for a record of receipt
of the 2007 Proposal on that date. Finding no evidence of receipt of the 2007
Proposal prior to the January 12, 2007 deadline, I prepared a draft of a letter
to Mr. Miller advising him that his proposal was not timely. However, later that
day (May 14), an executive office staff member notified me that she had located
Mr. Miller's facsimile transmission and had determined that, as a result of
clerical error, it was never previously distributed to Mr. Ficalora or me
personally.1
Compounding the situation was the fact that during the week of January 8\th/,
Mr. Ficalora and his executive assistant were both working at a location outside
of the Company's principal executive office and did not return to the executive
office until Tuesday January 16, 2007. My search also revealed that Mr. Miller
never sent an original of his January 10\th/ correspondence via U.S. mail or
contacted Mr. Ficalora or me to confirm the Company's receipt of the
correspondence. Further, Mr. Miller allowed an additional 17 days to elapse
after the date the 2007 Proxy Materials were publicly available to notify the
Company regarding the existence of his proposal. Given his admitted awareness
(in a telephone conversation with Mr. Ficalora) of the Company's detailed
opposition to the substantially identical shareholder proposal made last year
(the "2006 Proposa;"), which opposition statement was included in the Company's
proxy materials for the 2006 annual meeting of shareholders (the "2006 Proxy
Materials"), and given his experience in submitting shareholder proposals in
general, Mr. Miller should have expected to receive an opposition statement to
the 2007 Proposal from the Company. The absence of receipt of such an opposition
statement, or any other contact from the Company on the subject, at any point
between January 10, 2007 and May 14, 2007 should have alerted Mr. Miller to the
defect in the delivery of the 2007 Proposal and triggered an earlier response
than his May 14, 2007 correspondence to the Company.
Following receipt of Mr. Miller's May 14, 2007 letter and the Company's
discovery of his earlier fax communication, Mr. Ficalora and I each spoke with
Mr. Miller (I spoke with him at two occasions and Mr. Ficalora spoke with him on
at least one occasion) to discuss the status of the 2007 Proposal in light of
the rapidly approaching annual meeting date. We suggested that, given the
unusual circumstances surrounding the transmission of the 2007 Proposal, it
would be appropriate for Mr. Miller to withdraw the 2007 Proposal without
prejudice to its submission in a subsequent year. The Company strongly believes
that, considering the circumstances, this is a reasonable compromise to the
situation. However, in the course of these conservations, Mr. Miller freely
admitted that the proposal was in fact submitted on behalf of Mr. John Chevedden,
who, as described more fully below, was also the proponent of the 2006 Proposal
included in the 2006 Proxy Materials. Mr. Miller further stated that he would
have to consult with Mr. Chevedden regarding any decision to withdraw the 2007
Proposal and at one point even suggested that the Company contact Mr. Chevedden
directly to discuss whether Mr. Chevedden would be amenable to the Company's
suggestion that the 2007 Proposal be withdrawn and included in next year's proxy
materials. Mr. Miller even gave me Mr. Chevedden's telephone number in
California so that I might speak with him about the proposal. Subsequent to
these discussions, the Company concluded that, for the reasons set forth below,
the 2007 Proposal could be properly omitted pursuant to Rule 14a-8(h)(3).
The 2007 Proposal Is Properly Omitted Under Rule 14a-8(h)(3)
Under Rule 14a-8(h)(1), the proponent of a shareholder proposal or his qualified
representative must aftend the company's annual meeting to present the proposal.
Rule 14a-8(h)(3) provides that if a shareholder or qualified representative
fails, without good cause, to appear and present a shareholder proposal that was
included in the company's proxy materials, the company exclude all of such
stockholder's proposals from the company's proxy materials for any meeting held
in the following two calendar years.
Last year, the 2006 Proposal, which is substantially identical to the 2007
Proposal, was included in the 2006 Proxy Materials. The proponent of the 2006
Proposal was listed as "William Steiner, 112 Abbottsford Gate, Piermont, NY
10968." However, as demonstrated by Attachment 4, which reflects the
communication of the 2006 Proposal to the Company by John Chevedden himself,2
and through conversations between the Company's representatives and Mr. Steiner
prior to the 2006 annual meeting, it was beyond dispute that Mr. Steiner, like
Mr. Miller, was acting on behalf of John Chevedden, the sponsor of several
shareholder proposals substantially identical to the 2006 and 2007 Proposals
during recent proxy seasons. As stated above, Mr. Miller freely admitted that
the proposal was being submitted on behalf of Mr. Chevedden. Further emphasizing
the connection between Mr. Miller, Mr. Steiner, (who had, as noted above, also
admitted that he was acting on Mr. Chevedden's behalf) and Mr. Chevedden, Mr.
Miller also told Mr. Ficalora that his "friend" Mr. Steiner was "embarrassed"
for getting lost en route to the Company's 2006 Annual Meeting which prevented
him from properly presenting the 2006 Proposal at that meeting. The depth of the
connections between Mr. Miller, Mr. Steiner and Mr. Chevedden establish a clear
path back to Mr. Chevedden that strongly suggests, if not concludes, that he is
the real proponent of the 2006 and 2007 Proposals.
As noted above, the 2006 Proposal was included in the 2006 Proxy Materials
included as Attachment 2. The 2006 annual meeting was held at the Sheraton
LaGuardia East Hotel, 135-20 39\th/ Avenue, in Flushing, New York, where it has
been held since 2005. The meeting was convened promptly in accordance with the
notice to shareholders at 10:05 a.m. Mr. Steiner arrived at the meeting well
after the closing of the polls and, therefore, did not present the 2006 Proposal
in accordance with the rules of the meeting. In fact, Mr. Steiner did not
announce his presence to the meeting until after Mr. Ficalora had concluded his
presentation regarding the Company's performance and toward the end the informal
question and answer session that followed.
At the meeting, Mr. Steiner advised Ms. Angarola, the Company's Director of
Investor Relations, that he had not been able to locate the annual meeting site.
The annual meeting site is located within the Company's original market area in
Queens, New York. Mr. Steiner requested permission from the Chairman of the
meeting, Mr. Ficalora, that he be permitted to make a statement regarding the
2006 Proposal. Mr. Ficalora acceded to Mr. Steiner's request and introduced Mr.
Steiner to shareholders, noting to attendees that had the 2006 Proposal been
presented, it would have been defeated. Mr. Steiner spoke at the meeting about
the 2006 Proposal for several minutes.
Based on the foregoing, the Company has good cause to believe that the proponent
of the 2006 and 2007 Proposals is Mr. Chevedden and that the failure of his
representative, Mr. Steiner, to present the 2006 Proposal provides an
appropriate basis under Rule 14a-8(h)(3) to exclude the 2007 Proposal offered by
Mr. Chevedden through his 2007 representative, Mr. Miller. Mr. Steiner's failure
to present the 2006 Proposal at the 2006 annual meeting was clearly attributable
to a failure on his part to make adequate plans to travel to the meeting site,
as many of the Company's other shareholders had done, allowing sufficient time
to participate in the business of the meeting and to present his proposal. It
was Mr. Steiner's responsibility to ensure his timely attendance at the meeting.
Mr. Steiner was an experienced proponent of shareholder proposals and,
therefore, should have specific knowledge of the timing and process of an annual
shareholders meeting. Accordingly, consistent with prior Staff interpretations
of the "good cause" exception to Rule 14a-8(h)(3), good cause did not exist for
Mr. Steiner's failure to present the proposal. See, e.g., Great Western
Financial Corporation, SEC No-Action Letter (February 5, 1991). In fact, the
Company believes that it is reasonable to believe that the use of Mr. Miller,
rather than Mr. Steiner, in connection with the 2007 Proposal is a deliberate
attempt to avoid the application of Rule 14a-8(h)(3) in light of Mr. Chevedden's
failure to present the 2006 Proposal through Mr. Steiner.
The 2007 Proposal Is Properly Omitted Due to Mr. Chevedden's Failure to Satisfy
Rule 14a-8(b)
The evidence clearly supports the conclusion that Mr. Chevedden is the proponent
of the 2006 and 2007 Proposals. Mr. Chevedden has not satisfied the requirements
of Rule 14a-8(b). Specifically, Mr. Chevedden did not furnish the Company with a
written statement that he intends to continue to hold his Company stock through
the date of the meeting of shareholders or otherwise prove his eligibility to
submit a shareholder proposal in accordance with Rule 14a-8(b). The
circumstances described above prevented the Company from communicating this
deficiency to Mr. Chevedden at an earlier date. As a result, the Company
believes the deficiency cannot be remedied (nor would Mr. Chevedden wish to
remedy the deficiency given the mysterious manner in which the 2007 Proposal was
submitted to the Company). Accordingly, Mr. Chevedden's failure to demonstrate
his eligibility to submit a shareholder proposal pursuant to Rule 14a-8(b) is
sufficient additional grounds to omit the 2007 Proposal from the 2007 Proxy
Materials.
The Proposal Has Been Substantially Implemented and May Be Omitted Under Rule
14a-8(i)(10)
In my conversations with Mr. Miller on May 16, 2007 and May 18, 2007 (and in Mr.
Ficalora's conversation with Mr. Miller on May 22, 2007) Mr. Miller offered to
withdraw his proposal and include it in next year's proxy materials if the
Company's Board would include a statement in support of the proposal in those
proxy materials. On Monday May 21, 2007, Mr. Ficalora returned to the office
after two straight weeks of investor meetings and presentations on the West
coast and in Europe. On that day, Mr. Ficalora placed a call to Mr. Miller which
Mr. Miller returned on Tuesday, May 22, 2007. May 22\nd/ was the Board's
regularly scheduled meeting date. The Board met from approximately 2:30 p.m. to
5:30 p.m. During those meetings, Mr. Ficalora was notified that Mr. Miller was
returning his call, at which time (approximately 4:00 p.m.) Mr. Ficalora excused
himself from the meeting to take Mr. Miller's call. During this call, in
response to Mr. Ficalora's reiteration of our proposal to include the 2007
Proposal in next year's proxy statement, Mr. Miller offered to withdraw the
proposal if the Board would support a similar proposal in next year's proxy
statement. Mr. Ficalora noted the Board's opposition to the 2006 Proposal, but
offered that he would take the proposal to the Board for its consideration. Mr.
Miller acknowledged this and requested that Mr. Ficalora report back to him if
the Board determined to support the proposal. Following the call and upon the
returning to the Board meeting, Mr. Ficalora presented Mr. Miller's proposal to
the Board. The Board considered the proposal and unanimously opposed it. Given
its non-binding nature, the board's consideration of the proposal placed Mr.
Miller in precisely the same position as if the 2007 Proposal had been included
in the 2007 Proxy Materials and voted on and adopted by shareholders.
As a result of the Board's actions, and notwithstanding its right to omit the
2007 Proposal on the other grounds stated in this letter, the Company submits
that it has substantially implemented the 2007 Proposal and, accordingly, the
2007 Proposal may be excluded under Rule 14a-8(i)(10).
Conclusion
For the foregoing reasons, the Company believes that it is appropriate to omit
the 2007 Proposal under Rule 14a-8(h)(3), and alternatively, for the proponent's
failure to satisfy Rule 14a-8(b) under Rule 14a-8(i)(10) and, hereby, requests
that the Staff confirm this conclusion. In addition, the Company hereby requests
Staff confirmation that, pursuant to Rule 14a-8(h)(3), the Company may properly
exclude proposals from Mr. Chevedden or his representatives from any subsequent
meetings of shareholders held in 2007 and 2008. Based on the facts and
circumstances detailed above, the Company believes that good cause exists for
the late timing of this submission relative to the 2007 annual meeting date to
the extent that any otherwise applicable deadline under Rule 14a-8 has not been
satisfied. It is the Company's intention to hold its 2007 annual meeting as
scheduled on May 30, 2007. By copy of this letter, we are also providing Mr.
Miller with notice of our reasons for the omission of the 2007 Proposal he
submitted on behalf of Mr. Chevedden.
We have enclosed six copies of this letter and the attachments to this letter.
Please acknowledge receipt of the enclosed materials by date-stamping the
enclosed receipt copy of this letter and returning it in the enclosed return
envelope.
We would be happy to provide you with any additional information and address any
questions you may have regarding this submission. If we can be of any further
assistance in this matter, please contact the undersigned at 516-683-4570 or
Joseph R. Ficalora at 516-683-4404.
Sincerely yours,
NEW YORK COMMUNITY BANCORP, INC.
/s/
R. Patrick Quinn
Executive Vice President, Chief Corporate Governance Officer, and Corporate
Secretary
cc: Charles Miller (via Federal Express)
-----FOOTNOTES-----
1 The Company notes that it has already taken action to educate all staff
members (and temporary staff members) as to the nature and appearance of
shareholder proposals so that they are readily identifiable and delivered to me
so that such clerical errors are not repeated.
2 As indicated in Attachment 3, Mr. Steiner's October 13, 2005 letter
specifically states "Please direct all future communication to Mr. Chevedden"
and provides Chevedden's address.
[INQUIRY LETTER]
Charles Miller
23 Park Circle
Great Neck, NY 10154
Mr. Joseph R. Ficalor
Chairman
New York Community Bancorp, Inc. (NYB)
615 Merrick Ave
Westbury NY 11590
Rule 14a-8 Proposal
Dear Mr. Ficalor,
This Rule 14a-8 proposal is respectfully submitted in support of the long-term
performance of our company. This proposal is submitted for the next annual
shareholder meeting. Rule 14a-8 requirements are intended to be met including
the continuous ownership of the required stock value until after the date of the
respective shareholder meeting and presentation of the proposal at the annual
meeting. This submitted format, with the shareholder-supplied emphasis, is
intended to be used for definitive proxy publication.
Your consideration and the consideration of the Board of Directors is
appreciated in support of the long-term performance of our company.
Sincerely,
/s/
Charles Miller 8 January 2007
cc: R. Patrick Quinn<Patrick.Quinn@myNYCB.com>
Corporate Secretary
Phone: 516 683-4100
Fax: 516 683-4424
Fax: 516-683-8385
T: 516-683-4570
F: 516-683-8344
[APPENDIX]
[Rule 14a-8 Proposal, January 8, 2007]
3 - Elect Each Director Annually
RESOLVED: Shareholders request that our Directors take the steps necessary, in
the most expeditious manner possible, to adopt annual election of each director.
This includes complete transition from the current staggered system to 100%
annual election of each director in one election cycle unless this is absolutely
impossible. Also to transition solely through direct action of our board unless
this is absolutely impossible.
The Council of Institutional Investors www.cii.org formally recommends adoption
of this proposal topic. This topic also won a 67% yes-vote average at 43 major
companies in 2006.
The election of directors is the primary avenue for shareholders to influence
corporate governance policies and to hold management accountable for its
implementation of those policies.
Our current practice, in only a portion of the board being elected annually, is
not in the best interest of our Company and its stockholders. Eliminating this
system would require each director to stand for election annually and would give
stockholders an opportunity to register their view on the performance of each
director annually. Electing directors in this manner is one of the best methods
available to stockholders to ensure that the Company will be managed in a manner
that is in the best interest of stockholders.
In recent years, more than 20 companies including Pfizer, Dell, Hasboro,
Bristol-Myers Squibb, Cendant, Sprint, Groat Lakes Chemical and Dow Jonessought
and received shareholder approval for all directors to be elected annually
Some companies express the unfounded concern that the annual election of each
director could leave a company without experienced directors in the event that
all incumbents are voted out by stockholders. In the unlikely event that
stockholders would vote to replace all directors, such a decision would express
an overwhelming dissatisfaction with the incumbent directors and would reflect
the need for change.
Arthur Levitt, Chairman of the Securities and Exchange Commission, 1993-2001
said: "In my view it's best for the investor if the entire board is elected once
a year. Without annual election of each director shareholders have far less
control over who represents them."
Notes:
Charles Miller, 23 Park Circle, Grest Neck, NY 10154 sponsors this proposal.
[INQUIRY LETTER]
Office of Chief Counsel
Division of Corporation Finance
Securities and Exchange Commission
FX: 202-772-9201
New York Community Bancorp, Inc. (NYB)
Response to Company No Action Request
Ladies and Gentlemen,
This is in response to the company no action request first received in the
afternoon on the day before the May 30, 2007 annual meeting and dated May 25,
2007. The company raises for the first time the issue of proper submission. This
belated raising of an issue of proper submission is not credible because I had a
30-minute discussion a week ago with Mr. Ficalor, the Chairman of the company
about this proposal, Mr. Ficalor did not mention proper submission at all. If a
rule 14a-8 proposal is truly not properly submitted there is no need for the
Chairman of the company to be involved with such a technicality.
The company also distorts my contact with other persons and at the same time
seems to provide a motive for the company to ignore my proposal and avoid the
usual time-sensitive rule 14a-8 no action steps.
On the other hand the company no action request indeed confirms that the second
fax of this proposal was received at company headquarters at the same fax number
as the first proposal fax in January of 2007.
This is to therefore request that the company be required to give shareholders
the opportunity to vote on my proposal as soon as possible and to bring the
company in conformance under the jurisdiction of the rule 14a-8 no action
process.
Sincerely,
Charles Miller
23 Park Circle
Great Neck, NY 10154
cc:
Joseph R. Ficalor
Chairman
New York Community Bancorp, Inc. (NYB)
615 Merrick Ave
Westbury NY 11590
PH: 516 683-4100
FX: 516-683-8344
[INQUIRY LETTER]
June 15, 2007
Office of Chief Counsel
Division of Corporation Finance
Securities and Exchange Commission
FX: 202-772-9201
New York Community Boncorp, Inc. (NYB)
Response to Company No Action Request
Ladies and Gentlemen,
The company no action request contains an implicit request for an expectation of
low company professionalism. For instance the company implicitly argues that if
key personnel are out of the office, they should not be expected to eventually
catch up with a fax that arrives during their absence.
The company highlights a need to follow information provided in the proxy. Yet
it cites no proxy mention of a purported shareholder obligation to contact the
company if a shareholder has not received a management opposition statement by
an undisclosed deadline.
The company does not provide any words to support a claim of a proponent's
"freely admitted" statement only a gratuitous conclusion from the missing words.
The company does not address whether its no action request is consistent or
inconsistent with; Sempra Energy WSB No.: 0306200064 Public Availability Date:
Tuesday, February 29, 2000 Abstract: ... Two shareholder proposals, the first of
which relates to reinstating simple majority vote on all matters that are
submitted to shareholder vote, and the second of which relates to electing the
entire board of directors each year, may not be omitted from the company's proxy
material under rule 14a-8(b) or (c).
The company provides the gratuitous claim that a 2006 proposal "would Have been
defeated." This claim is made further gratuitous by not including whether this
would be based on counting all shares in existence or counting shares that
voted. The company provides no support for its implied claim that rule 14a-8
issues should be decided on whether a previous proposal by another proponent won
a majority of votes.
If the company "clerical error" logic were applied to a proponent, a rule 14a-8
proposal submitted one-day late due to "clerical error" would be considered
timely filed if the proponent took corrective action to prevent "clerical error"
in the future.
The company claims there should be a loosening of rule 14a-8 enforcement if a
party is out of town on a day in question.
The company describes its bogus offer to me of non-prejudice regarding a 2008
proposal in return for withdrawing a yet-to-be published 2007 proposal.
The company is one-year late in making a claim that Mr. William Steiner was
purportedly not the proponent of his 2006 proposal published by the company and
supported by Mr. Steiner's attendance at the 2006 annual meeting.
Perhaps the most revealing point is that Mr. Ficalore repeatedly pointed out to
me that that it would be costly to publish my proposal that the company
purportedly misplaced for 4-months.
This is to therefore request that the company be required to give shareholders
the opportunity to vote on my proposal as soon as possible and to bring the
company in conformance under the jurisdiction of the rule 14a-8 no action
process. This is to request that rule 14a-8 standards not be loosened if the
company makes a claim of "clerical error" or a claim of being out of the office
on a particular day.
Sincerely,
Charles Miller
23 Park Carcle
Great Neck, NY 10154
cc:
Joseph R. Ficalor
Chairman
New York Community Bancorp, Inc. (NYB)
615 Merrick Ave
Westbury NY 11590
PH: 516 683-4100
FX: 516-683-8344
[INQUIRY LETTER]
June 22, 2007
Office of Chief Counsel
Division of Corporation Finance
Securities and Exchange Commission
FX: 202-772-9201
New York Community Bancorp, Inc. (NYB)
Response to Company No Action Request
Ladies and Gentlemen,
The fact that Mr. Ficalora spoke to me for 20 minutes about my proposal
implicitly establishes that in his mind Mr. Ficalora accepts me as the proponent
of my proposal.
Additionally the company has not responded to my rebuttal of the company no
action request.
Perhaps the most revealing point here is that Mr. Ficalora repeatedly pointed
out to me that that it would be costly to publish my proposal that the company
purportedly misplaced for 4-months.
This is to therefore request that the company be required to give shareholders
the opportunity to vote on my proposal as soon as possible and to bring the
company in conformance under the jurisdiction of the rule 14a-8 no action
process. This is to request that rule 14a-8 standards not be relaxed because a
company makes a claim of "clerical error" or a claim of being out of the office
on a particular day.
Sincerely,
Charles Miller
23 Park Circle
Great Neck, NY 10154
cc:
Joseph R. Ficalora
Chairman
New York Community Bancorp, Inc. (NYB)
615 Merrick Ave
Westbury NY 11590
PH: 516 683-4100
FX: 516-683-8344
[INQUIRY LETTER]
June 26, 2007
BY OVERNIGHT EXPRESS MAIL
U.S. Securities and Exchange Commission
Division of Corporation Finance
Office of the Chief Counsel
100 F. Street, N.E.
Washington, D.C. 20549-3010
Re: Shareholder Proposal Submitted to New York Community Bancorp, Inc. by
Charles Miller
Ladies and Gentlemen:
This letter supplements my correspondence to the staff of the Division of
Corporate Finance (the "Staff"), dated May 25, 2007, on behalf of New York
Community Bancorp, Inc. (the "Company") regarding the above-referenced
shareholder proposal submitted to the Company by Charles Miller (the "2007
Proposal"). My May 25\th/ letter set forth certain reasons for omitting the 2007
Proposal from the Company's proxy materials for its 2007 annual meeting of
stockholders (the "2007 Proxy Materials") which was held on May 30, 2007. In
addition to the reasons for omitting the 2007 Proposal as set forth in my May
25\th/ letter, the Company hereby requests that the Staff confirm that the 2007
Proposal was also properly omitted from the 2007 Proxy Materials pursuant to
Rule 14a-8(e)(2) under the Securities Exchange Act of 1934, as amended.
Background
The unique facts surrounding the submission of the 2007 Proposal to the Company
are set forth in my May 25\th/ letter. As that letter explains, I did not
receive, by any means of transmission, the 2007 Proposal until May 14, 2007,
five months after the January 12, 2007 deadline for the submission of
shareholder proposals to be considered for inclusion in the 2007 Proxy Materials
(and 17 days after the 2007 Proxy Materials were mailed to shareholders). I did
not receive the 2007 Proposal until May 14, 2007 because Mr. Miller failed to
follow the unambiguous procedure for submitting shareholder proposals to the
Company as set forth on page 38 of the proxy materials for the Company's 2006
annual meeting of stockholders (the "2006 Proxy Materials"). In the 2006 Proxy
Materials, the Company clearly identified the address to which shareholder
proposals should have been sent, that they must be received by me, and the
deadline for submitting proposals. In pertinent part, the proxy disclosure
clearly states that: "To be considered for inclusion in the Company's proxy
statement and form of proxy relating to the Annual Meeting of Shareholders to be
held in 2007, a shareholder proposal must be received by the Secretary of the
Company, at the address set forth on the Notice of Annual Meeting that
accompanies this Proxy Statement, not later than January 12, 2007" (emphasis
added). The address set forth in the Notice was "615 Merrick Avenue, Westbury,
New York 11590" no facsimile number was provided.
Mr. Miller did not adhere to this procedure. He did not address the 2007
Proposal to my attention and apparently sent his letter to a facsimile number
that was not provided in the 2006 Proxy Materials. The Company has no record of
any contact from him regarding alternative instructions for sending a
shareholder proposal. As a result, the Company had no reasonable expectation
that shareholder proposals would be received at that number addressed to "Joseph
Ficalor" [sic].
The Company's procedure for the submission of shareholder proposals is
consistent with the SEC's proxy rules and Delaware Corporate Law and is designed
to insure that shareholder proposals are properly and promptly transmitted and
received by me for consideration. The unambiguous instructions in the Company's
proxy materials is designed to provide shareholders with a clear understanding
of how and to whom proposals are to be transmitted, specifically to avoid the
very fact pattern that has resulted from Mr. Miller's failure to follow those
instructions.
The 2007 Proposal Is Properly Omitted Under Rule 14a-8(e)(2)
Rule 14a-8(e)(2) provides that "shareholder proposals must be received at the
company's principal executive offices not less than 120 calendar days before the
date of the company's proxy statement released to shareholders in connection
with the previous year's annual meeting." The Company's proxy statement for its
2006 annual meeting was dated and released May 12, 2006. Pursuant to Rule
14a-8(e)(1), the 2006 Proxy Materials advised shareholders that shareholder
proposals for the 2007 annual meeting had to be received by me at the Company's
principal executive offices by January 12, 2007 to be considered for inclusion
in the Company's 2007 Proxy Materials. As stated above and in my May 25\th/
letter, Mr. Miller's failure to follow the unambiguous procedure for submitting
shareholder proposals to the Company as set forth in the 2006 Proxy Materials
resulted in my not receiving the 2007 Proposal until May 14, 2007, well past the
January 12, 2007 deadline. The Staff has been consistent in permitting companies
to omit proposals that are received after the deadline, even in cases where
there is substantial compliance or good faith efforts by the shareholder. See,
e.g., International Business Machines Corporation, SEC No-Action Letter
(December 5, 2006), Xerox Corporation, SEC No-Action Letter (May 2, 2005), The
DirecTV Group, Inc., SEC No-Action Letter (March 23, 2005), International
Business Machines Corporation, SEC No-Action Letter (January 11, 2005), and
Intel Corporation, SEC No-Action Letter (March 5, 2004).
Conclusion
For the foregoing reasons, the Company believes that, in addition to the reasons
set forth in my May 25\th/ letter, it was appropriate to omit the 2007 Proposal
from the 2007 Proxy Materials under Rule14a-8(e)(2) and, hereby, requests that
the Staff confirm this conclusion. Additionally, based on the facts and
circumstances detailed above and my May 25\th/ letter, the Company believes that
good cause exists for the late timing of this submission and requests a waiver
from the 80 day notice requirement of Rule 14a-8(j)(1) for good cause.
We have enclosed six copies of this letter. Please acknowledge receipt of the
enclosed materials by date-stamping the enclosed receipt copy of this letter and
returning it in the enclosed return envelope.
We would be happy to provide you with any additional information and address any
questions you may have regarding this submission. If we can be of any further
assistance in this matter, please contact the undersigned at 516-683-4570 or
Joseph R. Ficalora at 516-683-4404.
Sincerely yours,
NEW YORK COMMUNITY BANCORP, INC.
/s/
R. Patrick Quinn
Exccutive Vice President, Chief Corporate Governance Officer, and Corporate
Secretary
cc: Charles Miller
[STAFF REPLY LETTER]
August 8, 2007
Response of the Office of Chief Counsel Division of Corporation Finance
Re: New York Community Bancorp, Inc. Incoming letter dated May 25, 2007
The proposal relates to annual election of directors.
There appears to be some basis for your view that New York Community Bancorp may
exclude the proposal under rule 14a-8(e)(2) because New York Community Bancorp
did not receive the proposal before the deadline for submitting proposals. We
note in particular your representation that the proponent did not obtain a
correct facsimile number for submitting proposals. Accordingly, we will not
recommend enforcement action to the Commission if New York Community Bancorp
omits the proposal from its proxy materials in reliance on rule 14a-8(e)(2). In
reaching this position, we have not found it necessary to address the
alternative bases for omission upon which New York Community Bancorp relies.
We note that New York Community Bancorp did not file its statement of objections
to including the proposal in its proxy materials at least 80 days before the
date on which it filed definitive proxy materials as required under rule
14a-8(j)(1). Noting the circumstances of the delay, we grant New York Community
Bancorp's request that the 80-day requirement be waived.
Sincerely,
/s/
Ted Yu
Special Counsel
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