ES Bancorp, Staten Island, NY (ESBS)

May 09, 2024

Evading Shareholder Proposals, Non-SEC Filer Edition

For the most part, you can expect that a bank receiving a shareholder proposal will pull whatever tricks it can to avoid giving other shareholders an opportunity to vote on the proposal. That's the nature of the beast — banks deserving of shareholder proposals are by definition typically not run by Managers who naturally do the right thing by their shareholders.

Photo of White Male in Black Suit Pulling Ace of Clubs from His Sleeve

Since my Timyan Bank Alert October 2023 post on the topic of SEC Rule §14a-8, I've delivered three shareholder proposals of my own, and am learning that the specific tricks a bank will pull can vary more than I had imagined.

My third shareholder proposal so far was to ES Bancorp / Empire State Bank. As a Non-SEC Filer, ES Bancorp had a special trick to pull, and has elected to withhold my proposal from the Proxy for their Annual Meeting this month. See below for The Skinny.

If you are an ESBS shareholder who isn't thrilled about being robbed of the opportunity to vote on Timyan's shareholder proposal, let Finkelstein and Guarnieri know.

Disclosure: As of this posting, I own shares of ESBS and may subsequently either dispose of them or purchase more.

Prospective Buyers

All four of these area banks have shown recent interest in growing via acquisition and would make better use of Empire State Bank's assets going forward than its current managers ever have, ever could, or ever will.

BCB Bancorp, Bayonne, NJ (BCBP)
Northfield Bancorp, Woodbridge, NJ (NFBK)
Spencer Savings Bank, Elmwood Park, NJ (private)
Unity Bancorp, Clinton, NJ (UNTY)

Financial Snapshot

Scoundrels

Andrew G. Finkelstein, Chairman
Philip Guarnieri, President and CEO
Michael P. Ostrow, Director

The Skinny

Why Timyan Submitted a Shareholder Proposal to ES Bancorp

For a full quarter of a century, ES Bancorp's operators, Finkelstein and Guarnieri, have failed to earn even a modest return for shareholders.

Management never lived up to its 1999 IPO projections, nor either of its later recap projections. Finkelstein and Guarnieri spurned a 2021 indication of acquisition interest by BCB Bancorp that was well above today’s ESBS stock price. And the pair is always chock full of excuses, blaming Covid, interest rates, local market forces — y'know, things every other banker in the nation faces.

In a merit-based world — which publicly held companies are supposed to be operating within — these guys should have been canned decades ago.

How ES Bancorp Got Around SEC Requirements to Publish Timyan's Proposal

SEC Filers that want to exclude your proposal from their proxy statement need to submit a formal No Action Request to the SEC and succeed in proving their case for exclusion.

ES Bancorp is not an SEC Filer,* so Maryland State Law dictates what's required and allowed in response to the bank's receipt of a Shareholder Proposal.

Although Maryland State law on this matter is similar to SEC rules in most material regards, it requires no official ruling on grounds for exclusion of a proposal from the upcoming proxy statement.

To enforce inclusion would require additional legal action, which is too late to pursue given the Annual Meeting is this month.

Word on the street has it that Finkelstein and Guarnieri are pretending the reason for excluding my shareholder proposal from the bank’s proxy statement is that I allegedly withdrew it myself. On this matter, nothing could be further from the truth.

My shareholder proposal to ES Bancorp is neither deficient, nor withdrawn.

*How to Determine Whether a Bank is an SEC Filer

The best way to tell whether a bank is an SEC Filer is to use the CIK Lookup page on the SEC Edgar website.