Exxon Corp.

Feb. 28, 1992

INQUIRY LETTER 1

Exxon Corp.

225 E. John W. Carpenter Freeway

Irving, TX 75062-2298

(214) 444-1478

December 13, 1991

Securities Exchange Act of 1934

Section 14(a) and Rule 14a-8

Office of Chief Counsel

Division of Corporation Finance

Securities and Exchange Commission

450 Fifth Street, N.W.

Judiciary Plaza

Washington, D.C. 20549

Re: Exxon Corporation - Omission of Shareholder Proposal Under SEC Rule 14a-8(c)(1), (3), (7), and (8) -- Shareholders Committee

Dear Sir or Madam:

Exxon Corporation has received from Mr. Robert A.G. Monks a proposal relating to a shareholders committee and statement in support thereof for inclusion in the proxy material for its 1992 annual meeting of shareholders. As Exxon intends to omit the proposal and statement from such proxy material, this letter and its enclosures are being sent to the Commission for filing pursuant to paragraph (d) of Rule 14a-8.

The Proposal and Proponents Statement in Support Thereof

Enclosures Number 1 and Number 2 are copies of the shareholder proposal and supporting statement, respectively, as received from the proponent.

Statement of Reasons for Omission

Exxon believes it may omit the proponents proposal and statement from its 1992 proxy material pursuant to paragraphs (c)(1), (3), (7), and (8) of Rule 14a-8 for the reasons set forth below. To the extent such reasons are based on matters of law, this letter represents the opinion of the undersigned. With respect to the legal matters addressed below in connection with Rule 14a-8(c)(1), I have relied on Enclosure Number 3.

Rule 14a-8(c)(1) -- Proposal Not a Proper Subject for Action

Enclosure Number 3 is an opinion of Pitney, Hardin, Kipp & Szuch, New Jersey counsel for the company, explaining that under the laws of New Jersey, the state of Exxons incorporation, the business and affairs of a corporation are to be managed solely by or under the direction of its Board of Directors. Notwithstanding the attempt in Section 4 of the proposal to cure the proposals state law defects, a shareholder committee assigned to review the business and affairs of the corporation and, in the words of the supporting statement, "oversee the actions of the board of directors in managing the business and affairs of Exxon" would impinge upon and interfere with the Boards management. Accordingly, a proposal to require the establishment of such a committee is not a proper subject for shareholder action in New Jersey and may be omitted under paragraph (c)(1) of Rule 14a-8.

Rule 14a-8(c)(7) -- Proposal Relates to Ordinary Business Operations

The proposal relates to the conduct of Exxons ordinary business operations in several respects and may therefore be omitted under paragraph (c)(7) of Rule 14a-8.

Where a proposal seeks the formation of a committee, the staff must consider "whether the subject matter of the... committee involves a matter of ordinary business; where it does, the proposal will be excludable under Rule 14a-8(c)(7)." Release No. 34-20091 (August 16, 1983). ¹ The current proposal explicitly states that the subject matter of the shareholders committee would be the "business and affairs" of the company. "Business and affairs" and "ordinary business" are synonymous phrases.

In McDonald & Company Investment, Inc. (May 6, 1991) and TRW Inc. (February 12, 1990), the staff declined to concur in the omission under paragraph (c)(7) of proposals to establish a shareholders advisory committee. In each case, the decision was premised on the fact that the proposed committees would be formed for purposes other than "assisting communication between management and shareholders on matters related to the Companys ordinary business operations." By contrast, this proposal, unlike the McDonald and TRW proposals, is for the stated purpose of assisting shareholders in communicating their views to management on the business and affairs of the company, and therefore may be omitted under paragraph (c)(7). See also Mobil Corporation (February 13, 1989) (omission of proposal to establish stockholder committee to review corporate objectives and their implementation).

By its terms, the subject matter of the proposed committee is Exxons ordinary business operations generally. The committee would also by definition intrude upon a particular aspect of Exxons ordinary business, shareholder relations.

Exxon has long been committed to good shareholder relations and communications. This commitment was reinforced in July 1990 when Exxons Board of Directors reorganized the investor relations function as a separate department. To ensure effective two-way communication between Exxon shareholders and senior management, the investor relations group itself is headed by a senior Exxon official, the Vice President-Investor Relations, who reports directly to the Chairman of the Board. The Vice President-Investor Relations and other senior Exxon managers consult on an ongoing basis with respect to shareholder concerns and ways to improve relations with shareholders. Senior Exxon officials also meet directly with shareholders on a regular basis. In 1991 alone, through private sessions, larger meetings, and conferences, several hundred investors or their representatives met with top Exxon management. The Investor Relations group also maintains a full-time staff to answer the calls and letters of every shareholder, large or small, who contacts the company, and has a pro-active program to initiate communication with institutional investors.

The proposal states that the committee would provide a "mechanism" for shareholders to communicate their views to Exxon. The proposal would thus duplicate and directly interfere with the operation of Exxons investor relations department, and may be omitted under the line of precedents holding shareholder relations to be part of a companys ordinary business. See Bank of Boston (January 14, 1991) (shareholder relations involve companys ordinary business); Capital Cities Communications, Inc. (March 14, 1984) (omission of proposal to provide shareholder ombudsman to investigate shareholder complaints, propose solutions, and report to shareholders); and American Express Company (February 15, 1983) (procedures for communicating with shareholders represent ordinary business).

We also note that Section 1 of the proposal would establish an annual budget for the committee of $.01 per outstanding common share. (At present, this appropriation would exceed $12,000,000 per year.) Even where a proposed shareholders committee does not relate to ordinary business operations, as the present proposal does, the decision to fund the committee and the level of any such funding are distinctly matters of ordinary business. See The Southern Company (January 26, 1982), in which the staff stated that "in our view, the determination whether or not to financially support a shareholders association is part of the Companys ordinary business operations."

Budgeting and spending decisions generally are the very essence of the day-to-day management of a business, as the staff held in The American Shipbuilding Company (December 4, 1975) (omission of proposal that "deals directly with activities that relate to the conduct of the companys ordinary business operations, such as... corporate budgeting.") Only management can balance the needs of a particular project against operating expenses, capital expenditure and research and development needs, revenues, financing options, dividend policy, and similar matters. To deprive management of the ability to make spending allocations is to remove from management ultimate control over ordinary business affairs. Inclusion of one proposal with a budget feature raises the specter of shareholders approving conflicting spending programs, or approving multiple spending programs that exceed the resources of a company. This was exactly the concern that led the Commission to adopt Rule 14a-8(c)(13), prohibiting proposals relating to specific amounts of dividends. See Release No. 34-12598 (July 7, 1976).

Finally, we note that Section 2 of the proposal would set fees and establish expense and indemnification arrangements for committee members. Establishing specific compensation terms also independently relates to the conduct of the ordinary business operations of Exxon. See Sears, Roebuck and Co. (January 10, 1989) (omission of proposal to set formula for compensation increases and decreases of directors) and Exxon Corporation (January 10, 1989) (omission of proposal to regulate director and officer compensation and bonuses).

Rule 14a-8(c)(3) -- Proposal Contrary to Proxy Rules

The proposal is contrary to the Commissions proxy rules and regulations in several respects and may therefore be omitted under paragraph (c)(3) of Rule 14a-8.

We believe the proposal is inherently misleading within the meaning of Rule 14a-9 because the legal status and implications of the committee are so uncertain. The proposed committee appears to have no authorization or precedent in New Jersey law (see Enclosure Number 3). Thus, it is not known what fiduciary or other standards, if any, would govern the conduct of committee members, or what exposure Exxon might have for committee actions ² For example, Section 1 of the proposal purports to allow the shareholders committee space in Exxons proxy statement for a 2,500 word report on "the committees activities during the year, its evaluation of the management of the corporation by the directors, and its recommendations on any matters proposed for action by shareholders." Would Exxon be liable for material misstatements or omissions in the committees report? What about misstatements in other committee communications? Would Exxon have a duty to correct such misstatements? Would Exxon be subject to controlling person liability for securities law violations by committee members? Would Exxon have a cause of action against committee members for misuse of corporate funds or other breach of duty? Shareholders cannot be asked to vote on a proposal when serious potential consequences of the proposal are unknown.

Similarly, shareholders cannot be asked to approve an indemnification arrangement for committee members without knowing what duties govern committee member conduct or what liabilities the committee members may incur.

We also believe the proposal is misleading in that it fails to specify material features of the proposals implementation. For example, shareholders would be asked to approve a multimillion dollar appropriation without any indication how the money will be spent. Nor does the proposal specify how the committee will "review and oversee the actions of the board." Will the committee simply review the information Exxon already makes available to the public, or is it intended that the committee would have access to proprietary and confidential data? How can Exxon be asked to reveal confidential data to persons over whom the company has no control? This line of inquiry leads back to the uncertain legal status of the committee. Would selective disclosure of material non-public information to committee members trigger a duty to make the information generally available to the public, even if such disclosure would not otherwise be ripe and could damage the companys interests? When such material aspects of a proposal are unspecified, the proposal is fundamentally misleading.

We further believe Section 1 of the proposal, providing for publication in Exxons proxy statement of a 2,500 word committee report, is contrary to Rule 14a-8. Rule 14a-8 provides 13 separate grounds for omission of proposals and supporting statements of shareholders. The Rule also limits proposals and supporting statements to 500 words. The current proposal would give the shareholders committee an unlimited right to include its statement in Exxons proxy statement, regardless of objections that could be made to the content of the statement under Rule 14a-8(c) and of the 500 word limit of Rule 14a-8(b). The statements to be included in Exxons proxy statement in support of committee candidates would also appear to be unrestricted. The proposal would thus deprive Exxon and its other shareholders of the protections afforded by Rule 14a-8 and is contrary to that Rule. See Exxon Corporation (January 11, 1988) (proposal to prevent certain future shareholder proposals contrary to Rule 14a-8 as interpreted by the staff).

We also note Rule 14a-4(a)(1), which requires the form of proxy to indicate in bold face type whether or not the proxy is solicited on behalf of the Board of Directors or, if solicited other than by a majority of the Board, to indicate on whose behalf the solicitation is made. Similarly, Items 4(a)(1) and (2) and Item 5(a)(2) of Schedule 14A require the proxy statement to identify on whose behalf the solicitation is made and to disclose certain information concerning such persons. The proposal contemplates that the Board must solicit a proxy covering both its slate of director nominees and the shareholder committee nominees. Thus, the form of proxy and proxy statement would relate simultaneously to a solicitation on behalf of the Board and a solicitation potentially on behalf of dozens of different shareholders and groups. We believe such a form of proxy and proxy statement would be difficult to reconcile with Rule 14a-9, Note (c), dealing with the failure to so identify proxy soliciting material as to "clearly distinguish" it from the soliciting material of others.

Rule 14a-8(c)(8) -- Proposal Relates to Election to Office

Section 3 of the proposal seeks to give certain shareholders direct access to Exxons proxy statement for the purpose of nominating candidates for the proposed committee. The proposal thus relates to an election to office and may be omitted under paragraph (c)(8) of Rule 14a-8.

The staff has repeatedly allowed omission under paragraph (c)(8) of proposals to afford shareholders direct access to an issuers proxy statement for the purpose of nominating directors. See Unocal Corp. (February 8, 1991) (omission of proposal to allow any shareholder to include director nominees in Company proxy materials); Amoco Corp. (February 14, 1990) (omission of proposal to allow shareholders with more than $100,000 of stock to nominate directors through "common ballot"); and Unocal Corp. (February 6, 1990) (omission of proposal to allow any shareholder who owns or controls at least 125,000 shares to present for election one or more nominees for director).

We recognize that shareholder nominations under the proposal would relate to a shareholders committee, not Exxons Board of Directors. However, the committee members, who would be elected by shareholders, paid a fee, indemnified, reimbursed for expenses, and charged with reviewing the management of the business and affairs of the company, would represent a class of persons being elected to office. We submit that the precedents denying shareholders direct access to issuer proxy statements for the purpose of nominating directors, as well as the underlying policy concerns, should apply to direct nominations of shareholder committee members as well. It would be anomalous to prohibit nomination proposals only if the nominations relate to traditional positions.

The two Unocal letters and Amoco each note that shareholder nomination proposals "establish a procedure that may result in contested elections." Although the proposed shareholder committee members would not contest with managements director nominees, the committee nominees would contest against each other for seats on the committee. Thus, the proposal would create contested elections. The commission has expressly stated that "Rule 14a-8 is not the proper means for conducting campaigns... since other proxy rules, including Rule 14a-11, are applicable thereto." Release No. 34-12598 (July 7, 1976).

Rule 14a-8 has never been viewed as permitting shareholder nominations in issuer proxy statements. The staff has previously studied the issue of shareholder nominations, but under the assumption that allowing direct shareholder nominations would require the Commission to issue a new rule. See generally SEC, "Staff Report on Corporate Accountability: A Re-Examination of Rules Relating to Shareholder Communications, Shareholder Participation in the Corporate Electoral Process and Corporate Governance Generally," Senate Comm. on Banking, Housing, and Urban Affairs, 96th Congress., 2d. Sess., pp. A36-A65. In that Report, the staff declined to recommend development of a shareholder nomination rule, noting the "danger that... shareholder nominations will encourage the harassment of management and the waste of corporate assets and render issuers proxy statements unintelligible." Id. at A47.

The identical policy concerns arise under this proposal, which would permit shareholders or groups holding $10 million or more of Exxon stock over a three-year period to nominate shareholder committee candidates, with each nominee entitled to a biography and 500 word supporting statement in Exxons proxy statement. At present, the market capitalization of Exxon is in excess of $60 billion. Thousands of different shareholder nominating groups could potentially be formed. The proposal also sets no limit on the number of nominees per nominating group, or on the participation of a particular shareholder in multiple nominating groups. It is thus conservative to project dozens of committee nominees and thousands of words of supporting text wasting Exxons assets and rendering Exxons proxy statement unintelligible.

Pursuant to paragraph (d) of Rule 14a-8, enclosed are five additional copies of this letter and six copies of the aforementioned enclosures, and a copy of this letter is being sent to the proponent. If you desire any further information with respect to this matter, please telephone me or, in my absence, Richard E. Gutman at 214-444-1480.

Very truly yours,

James Earl Parsons

JEP:sao

cc: Mr. Robert A.G. Monks

L144.JEP

INQUIRY LETTER 2

PITNEY, HARDIN, KIPP & SZUCH

P.O. BOX 1945

MORRISTOWN, NEW JERSEY 07962-1945

Enclosure Number 3

Exxon Corporation

225 E. John Carpenter Freeway

Irving, TX 75062-2298

Gentlemen:

The shareholder proposal to adopt a new by-law so as to require the corporation to establish a shareholders advisory committee to review the management of the business and affairs of the corporation by the board and advise and oversee the board, with the members of such committee to be elected by the shareholders, is not a proper subject for action by securityholders under New Jersey law, the state of incorporation of Exxon Corporation ("Exxon"). Rule 14a-8(c)(1). ¹

There appears to be only one decision construing New Jersey law which addressed whether a shareholder proposal was not a proper subject for shareholder action and, therefore, could be omitted from a companys proxy statement. See Brooks v. Standard Oil Company, 308 F. Supp. 810 (S.D.N.Y. 1969) (the district court concluded that the proposal at issue was not a proper subject for shareholder action). ² The Standard Oil court first cited the New Jersey Business Corporation Act ("NJBCA") and then quoted the applicable by-law provision addressing the powers of the Standard Oil board of directors. Id. at 814.

Section 14A:6-1 of the NJBCA provides that "the business and affairs of the corporation shall be managed by or under direction of its board. . .," and Exxons By-laws similarly provide that "the business and affairs of the corporation shall be managed by its board of directors. . ."

As in Standard Oil, there is not any New Jersey judicial decision that squarely holds that the proposal at issue is or is not a proper subject for shareholder action. Standard Oil, 308 F. Supp. at 814. However, the district court concluded that "the cases do indicate that the scope of management authority is very broad indeed," quoting two New Jersey chancery decisions. Id.

"It is a well-settled rule of law that questions of business policy devolve upon the officers and directors. . .."

Laredef Corp. v. Federal Seaboard Terra Cotta Corp., 131 N.J. Eq. 368, 374 (Ch. 1942). See also Ellerman v. Chicago Junction Railways & c. Co., 49 N.J. Eq. 217 (Ch. 1891), in which the court stated:

Questions of policy of management, of expediency of contracts or action. . . are left solely to the honest decision of the directors. . .. To hold otherwise would be to substitute the judgment and discretion of others in place of those determined on by the scheme of incorporation.

Id. at 232 (quoted in Bresnick v. Franklin Capital Corp., 10 N.J. Super 234, 242 (App. Div. 1950), affd per curiam, 7 N.J. 184 (1951), in which the Appellate Division court recognized that the Ellerman rule has been followed in numerous cases). See also Daloisio v. Peninsula Land Co., 43 N.J. Super. 79, 93 (App. Div. 1956) (stating that the Ellerman rule is sound).

The shareholder proposal to adopt a by-law requiring the corporation to establish a shareholders advisory committee to review the boards management of the business and affairs of the to advise and oversee ³ the board is not a proper subject for action by the shareholders because, if the proposal were implemented, such a committee would impinge upon and interfere with the business and affairs of the corporation being managed by the board in violation of Section 14A:6-1 of the NJBCA. ⁴ Madsen v. Burns Brothers, 108 N.J. Eq. 275, 281 (Ch. 1931) ("The authority of the directors in the conduct of the business of the corporation must be regarded as an absolute when they act within the law"). Cf. Blauvelt v. The Citizens Trust Co., 3 N.J. 551 (1950) ("The business of a corporation is operated by and under the direction and authority of its board of directors"). Section 14A:2-9 of the NJBCA does authorize shareholders to make, alter and repeal by-laws. However, that authority is not unlimited. Shareholders may not, simply by adopting a by-law, accomplish that which is not otherwise a proper subject for shareholder action. The New Jersey statute does not provide for or authorize the adoption of a by-law (by shareholders or otherwise) which restricts the board in its management of the business of the corporation. ⁵ If the shareholders of a New Jersey corporation are not satisfied with the management of the corporation, they should elect new directors.

The law of this state commits the management of the affairs of corporations to a board of directors chosen by stockholders, and it has been said by our courts that if stockholders do not like the way the corporation is managed their recourse is to elect a new board of directors.

Casson v. Bosman, 137 N.J. Eq. 532, 535 (E&A 1945).

On the basis of the foregoing, it is our opinion, although there apparently is no judicial opinion directly on point, that the proposed by-law, requiring a shareholders advisory committee to review the management of the business and affairs of the corporation by the board and advise and oversee the board is not a proper subject for action by shareholders under New Jersey law and, therefore, may be omitted by Exxon from its proxy materials in accordance with Rule 14a-8(c)1.

Very truly yours,

PITNEY, HARDIN, KIPP & SZUCH

Enclosure Number 1

RESOLVED: To adopt the following new by-law:

Article IIIA

COMMITTEE OF SHAREHOLDER REPRESENTATIVES

1. The corporation shall have a committee of shareholder representatives consisting of three members. The committee shall review the management of the business and affairs of the corporation by the board of directors and shall advise the board of its views and the views of shareholders which are expressed to the committee. The committee may, at the expense of the corporation, engage expert assistance and incur other expenses in a reasonable amount not to exceed in any fiscal year $.01 multiplied by the number of common shares outstanding at the beginning of the year. The committee shall be given the opportunity to have included in the corporations proxy statement used in its annual election of directors a report of not more than 2,500 words on the committees activities during the year, its evaluation of the management of the corporation by the directors, and its recommendations on any matters proposed for action by shareholders.

2. The members of the committee shall be elected by the shareholders by plurality vote at their annual meeting. Elections of members shall be conducted in the same manner as elections of directors. Each member shall be paid a fee equal to half the average fee paid to nonemployee directors, shall be reimbursed for reasonable travel and other out-of-pocket expenses incurred in serving as a member, and shall be entitled to indemnification and advancement of expenses as would a director.

3. The corporation shall include in its proxy materials used in the election of directors nominations of and nominating statements for members of the committee submitted by any shareholder or group of shareholders (other than a fiduciary appointed by or under authority of the directors) which has owned beneficially, within the meaning of section 13(d) of the Securities Exchange Act of 1934, at least $10 million in market value of common stock of the corporation continuously for the three-year period prior to the nomination. Nominations must be received by the corporation not less than ninety nor more than 180 days before the annual meeting of shareholders. The corporations proxy materials shall include biographical and other information regarding the nominee required to be included for nominees for director and shall also include a nominating statement of not more than 500 words submitted at the time of nomination by the nominating shareholder or group of shareholders.

4. Nothing herein shall restrict the power of the directors to manage the business and affairs of the corporation.

5. This Article IIIA shall not be altered or repealed without approval of shareholders.

ACCOMPANYING STATEMENT

The proposed by-law would establish a three-member committee of shareholder representatives which would review and oversee the actions of the board of directors in managing the business and affairs of Exxon. We believe such a committee could be an effective mechanism for shareholders to communicate their views to the board and would serve a useful advisory function at relatively little cost.

INQUIRY LETTER 3

KRAMER, LEVIN, NESSEN, KAMIN & FRANKEL

919 THIRD AVENUE

NEW YORK, N.Y. 10022

TELEPHONE(212) 715-9100

January 08, 1992

Office of Chief Counsel

Division of Corporation Finance

Securities and Exchange Commission

450 Fifth Street, N.W.

Judiciary Plaza

Washington, D.C. 20549

Re: Exxon Corporation - Shareholder Proposal of Robert A.G. Monks under SEC Rule 14a-8

Dear Sir or Madam:

Robert A.G. Monks (the "Proponent") has submitted a proposal (the "Proposal") to Exxon Corporation for inclusion in Exxons proxy material for its 1992 annual meeting of shareholders pursuant to Rule 14a-8 under the Securities Exchange Act of 1934. Exxon has notified the Proponent of its intention to omit the Proposal from its proxy material and has forwarded to him a letter dated December 13, 1991 and its enclosures purporting to set forth a statement of reasons why Exxon deems the omission of the Proposal to be proper.

On behalf of the Proponent we are writing in response to each of the points raised by Exxon in its letter dated December 13 and in the opinion of Messrs. Pitney, Hardin, Kipp & Szuch dated December 12, 1991 enclosed therewith.

Rule 14a-8(c)(1) -- Proposal Not a Proper Subject for Action

Exxon argues that, under the laws of New Jersey, the state of Exxons incorporation, the business and affairs of a corporation are to be managed solely by or under the direction of its board of directors and that "a shareholder committee assigned to review the business and affairs of the corporation. . . would impinge upon and interfere with the Boards management."

Exxon totally misconceives the Proposal. The Proposal would adopt a new by-law which would provide for a three-member committee of shareholder representatives. The shareholder committee is not "assigned to review the business and affairs of the corporation." The committees function, in the words of the proposed by-law, is to "review the management of the business and affairs of the corporation by the board of directors," to "advise the board of its views and the views of shareholders which are expressed to the committee," and to report to shareholders "on the committees activities during the year, its evaluation of the management of the corporation by the directors, and its recommendations on any matters proposed for action by shareholders." (emphasis supplied)

The New Jersey corporate statute in relevant part is virtually identical to the statutes of Delaware, New York and most, if not all, states. Section 14A:6-1 of the New Jersey Business Corporation Act provides that "the business and affairs of the corporation shall be managed by or under direction of its board. . .," and Exxons by-laws similarly provide that "the business and affairs of the corporation shall be managed by its board of directors. . ." As is stated in the Pitney, Hardin opinion letter, "if the shareholders of a New Jersey corporation are not satisfied with the management of the corporation, they should elect new directors."

The law of this state commits the management of the affairs of corporations to a board of directors chosen by stockholders, and it has been said by our courts that if stockholders do not like the way the corporation is managed their recourse is to elect a new board of directors.

Casson v. Bosman, 137 N.J. Eq. 532, 535 (E&A 1945).

The proposed by-law is premised on precisely that notion. Each shareholder has the right -- indeed, shareholders who hold stock as fiduciaries for others may have the duty to their beneficiaries -- to review and evaluate the performance of the directors in managing the business and affairs of the corporation in order to make an informed judgment when voting for their election or reelection as directors. Some shareholders, particularly institutional shareholders, hold equity securities in many hundreds, if not thousands, of companies. The purpose of the proposed committee of shareholder representatives is to assist shareholders in their evaluation of the performance of the directors in managing the business and affairs of the corporation. The scope of the committees activities has been carefully delineated so as not to impinge upon or interfere with the authority of the board of directors to manage the business and affairs of the corporation but simply to review and evaluate the performance of the board in carrying out its management responsibility and reporting thereon to shareholders. If there could be any doubt in this regard, it is dispelled by the explicit statement in section 4 of the proposed by-law that "nothing herein shall restrict the power of the directors to manage the business and affairs of the corporation." ¹

If, nonetheless, the staff feels any language in the proposed by-law or accompanying statement is objectionable, the Proponent would be pleased to modify it accordingly. ²

Rule 14a-8(c)(7) -- Proposal Relates to Ordinary Business Operations

Exxon argues that the Proposal may be omitted under paragraph (c)(7) of Rule 14a-8 because it relates to the conduct of Exxons ordinary business operations in several respects.

First, Exxon cites Release No. 34-20091 (August 16, 1983) to the effect that proposals requesting issuers to prepare reports on specific aspects of their business or to form special committees to study a segment of their business would be excludable if the subject matter of the special report or of the committee involves a matter of "ordinary business." Exxon then mistakenly recites: "The current proposal explicitly states that the subject matter of the shareholders committee would be the business and affairs of the company." That, of course, is not so. The function of the committee is to review and evaluate the performance of the directors in managing the business and affairs of the company. This review and evaluation by the committee is made for the purpose of assisting shareholders in voting in the annual election of directors. It does not involve a matter of "ordinary business" within the meaning of the Release.

Second, Exxon contrasts the Proposal here with the McDonald and TRW proposals by mistakenly asserting that this Proposal "is for the stated purpose of assisting shareholders in communicating their views to management on the business and affairs of the company." This, again, is not so. The proposed by-law states that the committee shall advise the board of its views and the views of shareholders which are expressed to the committee. That advisory role, however, is in the context of the committees basic function -- to review and evaluate the performance of the directors in managing the business and affairs of the corporation. We believe the scope of the advisory role -- communicating the views of the committee and the views of shareholders which are expressed to the committee -- is clearly limited to the committees overall purpose and function. If there is any doubt that the advisory role is so limited, the Proponent would be pleased to make an appropriate modification to the proposed by-law.  INQ03 Third, Exxon argues that "the committee would also by definition intrude upon a particular aspect of Exxons ordinary business, shareholder relations," in that the Proposal would duplicate and directly interfere with the operation of Exxons investor relations department. This, too, is not so.

The communication contemplated by the Proposal is communication between shareholders or shareholder representatives and Exxons board of directors regarding the performance of the directors in managing the business and affairs of the corporation. Thus, the by-law speaks of advising the board of the committees views and the views of shareholders which are expressed to the committee. The scope of the communication, like the scope of the advisory role, is clearly limited to the committees overall purpose and function -- to review and evaluate the performance of the directors in managing the business and affairs of the corporation. Again, if there is any doubt that the communication role is so limited, the Proponent would be pleased to make an appropriate modification to the proposed by-law. ³

Fourth, Exxon argues the Proposal would establish an "annual budget" for the committee and that, at present, this "appropriation" would exceed $12 million per year. Again, that is not so. There is no "annual budget" and no "appropriation." The proposed by-law merely authorizes the committee to engage expert assistance and incur other expenses in a reasonable amount at the expense of the corporation -- such reasonable amount not to exceed in any fiscal year $.01 multiplied by the number of common shares outstanding at the beginning of the year. The $.01 per share figure is not a "budget" or an "appropriation." It is simply a limitation. If the staff has any concern about the inclusion of a specific dollar limitation, the Proponent would be willing to strike the words "not to exceed in any fiscal year $.01 multiplied by the number of common shares outstanding at the beginning of the year" from the third sentence of Section 1 of the proposed new by-law.

Finally, Exxon notes that Section 2 of the proposed new by-law would set fees and establish indemnification arrangements for committee members. The purpose of the third sentence of Section 2 is to enable shareholders to attract qualified individuals to serve on the committee of shareholders representatives. The amount of fees payable to committee members is in effect set by Exxons board of directors in that it is one-half the average fee paid to nonemployee directors. We do not believe any of the reimbursement of expenses or indemnification provisions is objectionable under paragraph (c)(7) of Rule 14a-8.

Rule 14a-8(c)(3) -- Proposal Contrary to Proxy Rules

Exxon argues the Proposal is contrary to the Commissions proxy rules in several respects and may therefore be omitted under paragraph (c)(3) of Rule 14a-8.

First, Exxon argues the Proposal is inherently misleading "because the legal status and implications of the committee are so uncertain." This is not so. As Exxon concedes, members of the committee "would not appear" to be officers or employees of the company. It is clear that neither the committee nor any member thereof has authority to act for the company or bind the company in any way. The committees functions are to review and evaluate the directors performance, advise the board in this regard, and report and recommend to shareholders. In so doing, committee members serve as professionals retained to act as shareholder representatives on behalf of shareholders, much as investment bankers are often retained to review and evaluate certain matters and to report thereon to the board of directors and/or shareholders. The standard governing the conduct of such persons would be the standard applicable to persons retained to act as such under common law as modified by whatever indemnification or other contractual arrangements have been entered into. Similarly, here, the standard governing the conduct of committee members would be determined under common law after giving effect to the indemnification provisions applicable to committee members, which, under section 2 of the proposed by-law, are the same as those applicable to Exxons directors.

Given that the committee cannot act for the company or bind the company in any way, it is hard to imagine what exposure Exxon might have for committee actions. Regarding the committees report to shareholders, if Exxon believes any portion of such report to shareholders, if Exxon believes any portion of such report contains material misstatements or omissions, Exxon could, in the first instance, refuse to include such portion of the report in its proxy statement (unless the alleged material misstatements or omissions were corrected) or point out in its proxy statement any alleged misstatements or omissions in the report and correct them. We do not see how Exxon could be held liable for any misstatement or omission in the committees report, particularly if, as Exxon is free to do, Exxon states that it is including the report in its proxy statement pursuant to Article IIIA, Section 1, of its by-laws and disclaims any responsibility for the contents of the report.

Nor do we see any basis for Exxon being held liable as a controlling person for securities law violations by committee members, where Exxon is not a "controlling person" of the committee or any member thereof within the meaning of any federal or state securities law.

Exxon argues the Proposal is misleading in that "it fails to specify material features of the proposals implementation." This is not so. The committee will conduct its review and evaluation of the boards management on the basis of the information available to it. The proposed by-law does not require the board of Exxon to meet with the committee, make any information available to it, or respond to any inquiries the make. It is, of course, hoped that the Exxon board would cooperate with the committee so that the committee could function in a manner most beneficial to the company and its shareholders. Thus, the Exxon board could, in its discretion, give the committee access to confidential data on such terms and conditions of confidentiality as the board deems appropriate to safeguard the interests of the corporation.

If the staff feels the Proposal is misleading in any respect, the Proponent would be pleased to modify it accordingly. ⁴

Exxon argues that Section 1 of the Proposal, providing for publication in Exxons proxy statement of a 2,500-word committee report, is contrary to Rule 14a-8. It is not. Rule 14a-8 gives each shareholder (owning a certain minimum amount of stock) who intends to present a proposal for action at a shareholders meeting the right to have his or her proposal included in the companys proxy statement subject to the conditions and limitations of the Rule. The committee report would not be included in Exxons proxy statement pursuant to Rule 14a-8. If the Proposal is adopted by majority vote of shareholders, the committee report would be included in Exxons proxy statement pursuant to the companys by-laws. The purpose of this provision is to enable the committee to report to shareholders in advance of shareholder meetings. It is felt that allowing the committee to include its report in the companys proxy statement -- rather than in a separate mailing -- is the most efficient and least costly way of making the report available to shareholders. If Exxon management feels otherwise, it certainly is free to argue the merits of its position in its statement in opposition to the Proposal.

Finally, Exxon notes Rule 14a-4(a)(1) as well as Items 4(a)(1) and (2) and Item 5(a)(2) of Schedule 14A, which require the form of proxy and proxy statement to indicate on whose behalf the solicitation is made. We dont see why Exxon should have any difficulty distinguishing, in its proxy statement and form of proxy, (i) the election of directors, in which presumably the board of directors of Exxon would solicit proxies on behalf of its slate of nominees, from (ii) the election of a committee of shareholder representatives, for which the proxy statement and form of proxy would include the names of nominees for election and the proxy statement would include statements in support of the nominees. We dont see why Exxon could not specify in its proxy statement and form of proxy, in each instance, on whose behalf the solicitation is being made.

Rule 14a-8(c)(8) -- Proposal Relates to Election to Office

Exxon argues that, in giving certain shareholders direct access to Exxons proxy statement for the purpose of nominating candidates for the proposed committee, the Proposal "relates to an election to office" and may be omitted under paragraph (c)(8) of Rule 14a-8. Exxon cites three letters in which the staff allowed omission under paragraph (c)(8) of proposals which would have given shareholders the right to have their nominees for directors included in the issuers proxy materials. Exxon recognizes that the cited letters all involve elections of directors, not elections of a committee of shareholder representatives, but Exxon argues that the precedents and policy concerns applying to the election of directors should apply to the election of committee members as well.

There are several answers. As stated above, committee members are not directors, officers or employees of the company, and election to membership on the committee is not an "election to office" within the meaning of paragraph (c)(8) of Rule 14a-8. More importantly, the rationale of the staff position in the letters cited by Exxon is that nominations by shareholders can result in election contests, and that Rule 14a-11 sets forth a comprehensive scheme for solicitations of proxies in contested elections. As the Commission stated in Release No. 34-12598 (July 7, 1976), upon which the cited staff letters are based, "Rule 14a-8 is not the proper means for conducting campaigns. . . since other proxy rules, including Rule 14a-11, are applicable thereto." Rule 14a-11, by its terms, applies only to solicitations with respect to election or removal of directors -- not any other elections. Thus, the rationale of the cited letters applies only to elections of directors -- not to the elections of committee members, to which Rule 14a-11 would never be applicable.

Finally, Exxon argues that, under the Proposal, "thousands of different shareholder nominating groups could potentially be formed," and it is "conservative to project dozens of committee nominees and thousands of words of supporting text wasting Exxons assets and rendering Exxons proxy statement unintelligible." By this same logic, hundreds of thousands of shareholder proposals could potentially be required to be included in Exxons proxy statement under SEC Rule 14a-8. We note that Exxon management is free to argue the merits of its position in a statement in opposition to the Proposal. We also note that the proposed by-law may be amended or rescinded by shareholder vote at any time if shareholders feel any aspect of the Proposal in fact imposes undue burdens on the company.

We urge the Division to inform Exxon that the Division is unable to concur in Exxons view that the Proposal may be excluded from its proxy materials.

Very truly yours,

Joshna M. Berman

INQUIRY LETTER 4

EXXON CORPORATION

225 E. JOHN W. CARPENTER FREEWAY

IRVING, TX 75062-2298

TELEPHONE(214) 444-1478

January 29, 1992

Securities Exchange Act of 1934

Section 14(a) and Rule 14a-8

Office of Chief Counsel

Division of Corporation Finance

Securities and Exchange Commission

450 Fifth Street, N.W.

Judiciary Plaza

Washington, D.C. 20549

Re: Exxon Corporation - Omission of Shareholder Proposal Under SEC Rule 14a-8(c)(1), (3), (7) and (8) -- Shareholders Committee

Dear Sir or Madam:

By letter dated December 13, 1991, Exxon Corporation notified you of its intention to omit from its 1992 proxy materials a shareholder proposal and supporting statement relating to a shareholders committee.

Last Friday, by chance, we obtained a copy of a letter dated January 8, 1992, addressed to you from the firm of Kramer, Levin, Nessen, Kamin & Frankel, on behalf of the proponent, challenging certain arguments made in our original letter. The letter does not show Exxon as being the recipient of a copy, and in fact no copy was sent to us. We are writing in response to the Kramer, Levin letter.

We further wish to note that articles concerning the proponent and the proposal he has submitted to Exxon have been appearing in publications around the country for several weeks. We enclose a representative sampling. We believe the proponent is soliciting support for his proposal without having filed any soliciting material with the Securities and Exchange Commission.

Rule 14a-8(c)(1) -- Proposal Not a Proper Subject for Action

In the opinion of Pitney, Hardin, Kipp & Szuch, Exxons New Jersey counsel, the proposed By-law is not a proper subject for shareholder action under the laws of the State of New Jersey (see Enclosure Number 3 to our original letter). The New York firm of Kramer, Levin may have other views, but such views are not the law in New Jersey. According to the 1991 Official List of Active Members of the Bar of New Jersey, Mr. Joshua Berman, author of the Kramer, Levin letter, is not even licensed to practice law in the State of New Jersey.

According to proponents counsel, the proposed committee is not intended to be involved in the management of Exxons business. The proposal itself, which would install the committee directly into Exxons corporate structure, indicates otherwise. The committee would be formally embodied in the corporate By-Laws and funded by the corporation. The committee would have the right to issue statements through managements proxy soliciting material. Committee members would be paid, reimbursed, and indemnified as if they were directors. Clearly, this "shadow board" is intended to be part of management. Section 4 does not cure the defects inherent in Sections 1 through 3 of the proposal.

Kramer, Levin appears to concede that a shareholders committee assigned to "review the business and affairs" of a corporation would be contrary to the laws of the State of New Jersey. Counsel then argues that the proposed committee would not review the business and affairs of the corporation but would review the "management of the business and affairs of the corporation." We fail to see the distinction. To argue that a committee will review the management of the business and affairs of a corporation but not the business and affairs of the corporation is absurd.

Rule 14a-8()(7) -- Proposal Relates to Ordinary Business Operations

As explained above, to review the management of the business and affairs of the corporation is to review the business and affairs of the corporation. However the words are arranged, the subject matter of the proposed committee is, quite plainly, Exxons ordinary business operations.

It also cannot be plainer that the proposed committee would directly interfere with Exxons existing shareholder relations program. The proposal explicitly states that the committee would advise the board of "the views of shareholders which are expressed to the committee" and would be a "mechanism for shareholders to communicate their views to the board." As we have explained, this is precisely one of the functions of Exxons Investor Relations department. Moreover, it is clear from the staff decisions cited in our original letter that shareholder communications and relations fall within the realm of ordinary business affairs, the management of which is reserved to the Board.

Kramer, Levin further argues that Section 1 of the proposal, providing that the committee may spend up to $.01 per outstanding common share per year, does not represent an "annual budget" or "appropriation" (apparently conceding that such a proposal is impermissible), but rather a limit on the committees expenditures. Again, there is no distinction. The point is that spending decisions are the very essence of the management of ordinary business operations, and must rest ultimately with the Board of Directors. Counsel would cure this defect by giving the committee unlimited spending power. Of course, this modification would only make the problem worse.

Finally, as indicated by the prior staff letters cited in our original letter, specific compensation and expense terms such as those established by the proposal are matters of ordinary business reserved to the Board.

Rule 14a-8(c)(3) -- Proposal Contrary to Proxy Rules

The Kramer, Levin letter supports our argument that the legal status of the proposed committee is wholly unclear. Kramer, Levin is unable to cite any precedent or authority that would indicate the nature or scope of the duties and liabilities of committee members. Proponents counsel simply states that the legal nature of the committee would be governed by "common law." In other words, in order to assess the consequences of their votes, shareholders voting upon the proposal must guess what decisions various courts may render in cases yet to be brought. This is not adequate disclosure under Rule 14a-9.

Similarly, while the proponent believes committee members require indemnification, proponents counsel is unable to describe what liabilities committee members may incur. Shareholders cannot render a meaningful vote in the face of such uncertainty. ¹

Proponents counsel goes on to make various conclusory statements about the status of this unprecedented committee under the federal securities laws, again without benefit of citation or authority. These bare assertions are of little persuasive value.

We also continue to believe that, as explained in our original letter, a proposal with the intent and future effect of allowing certain shareholders to circumvent the protections embodied in Rule 14a-8 is contrary to that rule.

Finally, we restate our view that a form of proxy and proxy statement simultaneously solicited on behalf of the Board of Diretors, with respect to certain issues, and dozens of other and competing groups, with respect to other issues, would very likely be misleading to shareholders.

Rule 14a-8(c)(8) -- Proposal Relates to Election to Office

Since the proponent attempts to invent a new corporate position, we must look to staff interpretations in analogous situations for guidance. The staff has repeatedly declined to grant shareholders direct access to issuer proxy statements under Rule 14a-8 for purposes of making nominations, and has specifically declined to recommend adoption of a new rule permitting such nominations. The policy basis for these positions is relevant to any election to office, whether of directors or shareholder committee members.

Proponents counsel compares the proposal to Rule 14a-8 itself. The comparison is inapposite. Unlike Rule 14a-8, the proposal sets no limit on the number of statements a particular shareholder or group may include in the proxy statement; contains no substantive grounds for excluding statements; and does not contemplate prior review of statements by the Commission staff.

Amendment of Proposal

In five separate instances, proponents counsel offers to amend the proposal in accordance with staff guidance. While the staff does permit amendment of proposals in certain limited respects, it is also true that where a proposal in its entirety is defective and misleading, the proposal may be omitted without giving the proponent the opportunity to amend. See Release No. 34-19135 (October 14, 1982). We believe this proposal presents just such a case. Any amendment of the proposal that effectively answered its many defects under Rule 14a-8 would of necessity be so substantial as to result in an entirely new proposal. Such new proposal could be omitted under Rule 14a-8(a)(3)(i) since it would not have been timely submitted for Exxons 1992 annual meeting.

If you desire any further information with respect to this matter, please telephone me or, in my absence, Richard E. Gutman at 214-444-1480. To the extent this letter addresses legal issues, it should be considered my opinion. With respect to the laws of New Jersey, I have relied on Enclosure Number 3 to my original letter.

Very truly yours,

James Earl Parsons

JEP:sao

cc: Mr. Robert A.G. Monks

Joshua M. Berman, Esq.

(Kramer, Levin, Nessen, Kamin & Frankel)

L162.JEP

INQUIRY LETTER 5

KRAMER, LEVIN, NESSEN, KAMIN & FRANKEL

919 THIRD AVENUE

NEW YORK, N.Y. 10022

TELEPHONE(212) 715-9100

February 19, 1992

Office of Chief Counsel

Division of Corporation Finance

Securities and Exchange Commission

450 Fifth Street, N.W.

Judiciary Plaza

Washington, D.C. 20549

Re: Exxon Corporation - Shareholder Proposal of Robert A.G. Monks under SEC Rule 14a-8

Dear Sir or Madam:

We have received a copy of a letter from Exxon Corporation to you dated January 29 regarding the shareholder proposal of Robert A.G. Monks (the "Proponent") submitted for inclusion in Exxons proxy material pursuant to Rule 14a-8.

The January 29 Exxon letter merely restates some of the arguments made in Exxons letter to you dated December 13, 1991. We believe all these arguments have been addressed and answered in our response of January 8, 1992. On behalf of the Proponent, we are writing in further response to the January 29 Exxon letter.

Rule 14a-8(c)(1) -- Proposal Not a Proper Subject for Action

Exxon again offers the opinion of Pitney, Hardin, Kipp & Szuch for the conclusory proposition that the proposed by-law establishing a shareholders advisory committee is not a proper subject for shareholder action under the laws of the state of New Jersey because "such a committee would impinge upon and interfere with the business and affairs of the corporation being managed by the board in violation of Section 14A:6-1 of the NJBCA." Pitney Hardin acknowledges that "there apparently is no judicial opinion directly on point," and Exxon does not dispute that Section 14A:6-1 of the NJBCA, in relevant part, is virtually identical to the statutes of Delaware, New York and most, if not all, states.

As set forth in our January 8 response, the purpose of the proposed committee of shareholder representatives is to assist shareholders in their evaluation of the performance of the directors in managing the business and affairs of the corporation. The committees function, in the words of the proposed by-law, is to "review the management of the business and affairs of the corporation by the board of directors," to "advise the board of its views and the views of shareholders which are expressed to the committee," and to report to shareholders "on the committees activities during the year, its evaluation of the management of the corporation by the directors, and its recommendations on any matters proposed for action by shareholders." Neither Pitney Hardin nor Exxon has stated how such a committee formed for this purpose and performing this function would "impinge upon and interfere with the business and affairs of the corporation being managed by the board" in violation of the relevant corporate statute.

Rule 14a-8(c)(7) -- Proposal Relates to Ordinary Business Operations

Exxon argues again, as it did in its December 13 letter, that the proposed committee would "directly interfere with Exxons existing shareholder relations program." As we pointed out in our January 8 response, the communication contemplated by the proposal is communication between shareholders (or shareholder representatives) and Exxons board of directors. The scope of the communication, like the scope of the advisory role, is limited to the committees purpose and function -- to review and evaluate the performance of the directors in managing the business and affairs of Exxon.

As we further pointed out in our response of January 8, the organization and operation of Exxons existing shareholder relations program (as described in Exxons letter of December 13) is designed to ensure effective two-way communication between Exxons shareholders and senior management (not its board of directors). So far as appears, there are at present no established procedures for shareholders to communicate their views directly to the board of directors or any nonemployee director on matters coming within the scope of the proposed by-law.

Rule 14a-8(c)(3) -- Proposal Contrary to Proxy Rules

Exxon restates its assertion that "the legal status of the proposed committee is wholly unclear." As we stated in our January 8 response, this is not so. The committees functions are to review and evaluate the directors performance, advise the board in this regard, and report and recommend to shareholders. In so doing, committee members serve as professionals retained to act as shareholder representatives on behalf of shareholders, much as other professionals (e.g., investment bankers) are often retained to review and evaluate certain matters and to report thereon to the board of directors and/or shareholders.

The proposal contemplates indemnification of committee members because, in the Proponents view, qualified individuals who could be recruited as committee members would require that they be entitled to reasonable indemnification rights as a condition to their agreement to serve as committee members. Other professionals routinely seek and obtain agreements to be indemnified by the corporation when they are engaged to review and evaluate matters and to report thereon to the board of directors and/or shareholders.

Rule 14a-8(c)(8) -- Proposal Relates to Election to Office

Exxon argues, as it did in its December 13 letter, that the policy underlying the staff positions denying shareholders direct access to issuer proxy statements under Rule 14a-8 for the purpose of nominating directors is relevant to any election to office, whether of directors or shareholder committee members. As we pointed out in our January 8 response, the rationale of this policy is that nominations by shareholders for directors can result in "election contests," and that Rule 14a-11 sets forth a comprehensive scheme for solicitations of proxies in contested elections. Rule 14a-11, by its terms, applies only to solicitations with respect to election or removal of directors -- not any other election to office. Accordingly, the policy underlying the staff positions on nominating directors would not be applicable to nominations of shareholder committee members.

Very truly yours,

Joshua M. Berman

cc: James Earl Parsons, Esq.

Mr. Robert A.G. Monks

STAFF REPLY LETTER

FEB 28, 1992

RESPONSE OF THE OFFICE OF CHIEF COUNSEL

DIVISION OF CORPORATION FINANCE

Re: Exxon Corporation (the "Company")

Incoming letters dated December 13, 1991 and January 29, 1992

The proposal provides for a bylaw that will establish a shareholders committee to review and evaluate the performance of the Companys Board of Directors.

The Division is unable to concur with your view supported by the accompanying legal opinion, that the proposal may be excluded pursuant to rule 14a-8(c)(1). In this regard, the staff is unable to conclude that the applicable state law prohibits a bylaw for a committee with a charter limited to advising the Companys board. Under these circumstances we do not believe that rule 14a-8(c)(1) may be relied on as a basis to omit the proposal from the Companys proxy materials.

The Division is unable to concur in your position that the proposal may be excluded entirely pursuant to rule 14a-8(c)(3) either as contrary to the Commissions proxy rules or as vague, indefinite and, therefore, potentially misleading. In reaching our positions, the staff believes that the bylaw makes provisions not inconsistent with the requirements under the Commissions proxy rules which for example, accommodate the solicitation of authority through a proxy by a person on all matters scheduled to be acted upon a meeting (albeit, not sponsored by that person), and notes that decisions with respect to implementing and interpreting provisions in the Companys bylaws appear to reside with the Board. There appears to be some basis, however, for your view that the first sentence of the supporting statement accompanying the proposal should either be deleted or revised. In the staffs view, use of the term "oversee" as used in this context is inappropriate insofar as it tends to suggest that the shareholders committee would have a supervisory role over the Board which is beyond the terms of the proposed bylaw that provides only for an advisory role. Assuming the Proponent provides the Company with a supporting statement amended in the manner indicated, within seven calendar days after receipt of this response, we do not believe that rule 14a-8(c)(3) may be relied on as a basis for excluding this sentence from the Companys proxy materials.

The Division is unable to concur with your position that the proposal may be excluded under rule 14a-8(c)(7) on the basis that it relates to the conduct of the Companys ordinary business operations. In this regard, it appears to the staff that the proposal involves the formation of a shareholders committee for the purpose of reviewing and evaluating the directors performance in managing the Company and representing the interests of shareholders on matters under consideration by the Board. Furthermore, under the terms of the proposal, although the purpose of the shareholders committee is to provide a means of communication with management, the nature and scope of that communication would appear as not involving matters concerning the conduct of the Companys ordinary business operations. Accordingly, the staff does not believe that rule 14a-8(c)(7) may be relied on as a basis to omit the proposal from the Companys proxy materials.

The Division does not agree with your views concerning the applicability of rule 14a-8(c)(8). In reaching a position the staff is unable to concur with your view that the ability to exclude proposals involving the election of directors would apply to the selection of committee members under this bylaw. We do not believe, therefore, that this argument provides a basis to omit the proposal from the Companys proxy materials.

Sincerely,

John C. Brousseau

Special Counsel

SEC_CODE_REF_0090001192884