Company Name: Exxon Mobil Corp.
Public Availability Date: November 4, 2004
Document Sections:
INQUIRY LETTER
APPENDIX 1
APPENDIX 2
STAFF REPLY LETTER
[INQUIRY LETTER]
November 4, 2004
VIA Network Courier
U. S. Securities and Exchange Commission
Division of Corporation Finance
Office of Chief Counsel
450 Fifth Street, N.W.
Washington, DC 20549
RE: Securities Exchange Act of 1934Section 14(a); Rule 14a-8 Omission of
Shareholder Proposal Regarding Votes Against Directors
Gentlemen and Ladies:
Enclosed as Exhibit 1 are copies of correspondence between Robert D. Morse and
Exxon Mobil Corporation regarding a shareholder proposal for ExxonMobil's
upcoming annual meeting. We intend to omit the proposal from our proxy material
for the meeting for the reasons explained below. To the extent this letter
raises legal issues, it is my opinion as counsel for ExxonMobil.
Proponent failed to attend last year's meeting.
Enclosed as Exhibit 2 is a copy of a shareholder proposal submitted by Mr. Morse
for ExxonMobil's 2004 annual meeting, held on May 26, 2004. The proposal was
included in our 2004 proxy material. However, as Mr. Morse confirms in his
letter dated September 3, 2004 (included in Exhibit 1), neither Mr. Morse nor
his representative attended the 2004 annual meeting to present the proposal.1
In telephone conversations with ExxonMobil staff several days before the 2004
meeting, Mr. Morse indicated that he would be unable to attend the meeting due
to his wife's medical condition.2 He reiterates this point in his latest
correspondence, and also generally objects to the attendance requirement of Rule
14a-8.
Rule 14a-8 addresses situations in which a proponent is unable to attend a
meeting in person by allowing a proposal to be presented by the proponent's duly
authorized representative. Mr. Morse had adequate opportunity to arrange for a
representative but failed to do so. By way of explanation, Mr. Morse notes in
his September 3 letter that "the supply of possible attendees names and
addresses is very limited". This does not constitute "good cause" within the
meaning of Rule 14a-8(h)(3) and therefore Mr. Morse's proposal for the 2005
annual meeting may be omitted under that provision.
We respectfully request that the staff specifically confirm in its response that
Mr. Morse will not be eligible to submit a shareholder proposal for ExxonMobil's
2006 annual meeting and that any proposal submitted by Mr. Morse for such
meeting may be omitted without the need for further correspondence with the
staff. See IDACORP, Inc. (available October 21, 2004) (where proponent failed to
attend 2004 annual meeting, staff response "will also apply to any future
submissions ... by the same proponent with respect to any shareholder meetings
during calendar year 2005 and calendar year 2006").
Proposal would cause ExxonMobil to violate the proxy rules.
Mr. Morse's current proposal asks ExxonMobil to revise its proxy material to
provide for votes "against" director candidates. This same proposal was included
in a submission made by Mr. Morse for ExxonMobil's 2002 annual meeting. The
staff concurred that Mr. Morse's 2002 proposal on this point could be excluded
from ExxonMobil's proxy material under Rule 14a-8(i)(2). See Exxon Mobil
Corporation (available March 28, 2002) (granting request for reconsideration).
The staff noted that ExxonMobil's governing instruments do not opt out of
plurality voting otherwise specified for elections of directors under New Jersey
law and that implementing the proposal would therefore result in ExxonMobil's
proxy materials being false or misleading under Rule 14a-9.3 Accordingly, should
the staff not concur with the omission of Mr. Morse's current proposal under
Rule 14a-8(h), the proposal may be omitted under Rule 14a-8(i)(2) on the same
basis as the 2002 proposal.
We will be happy to provide additional briefing on this issue should the staff
require it, including an opinion from outside New Jersey counsel confirming the
continued applicability of the opinion rendered in support of our successful
2002 no-action letter request on this subject.
If you have any questions or require additional information, please contact me
directly at 972-444-1478. In my absence, please contact Lisa K. Bork at
972-444-1473.
Please file-stamp the enclosed copy of this letter and return it to me in the
enclosed self-addressed postage-paid envelope. In accordance with SEC rules, I
also enclose five additional copies of this letter and the enclosures. A copy of
this letter and the enclosures is being sent to Mr. Morse.
Sincerely,
/s/
JEP/clh
Enclosures
-----FOOTNOTES-----
1 In fairness to shareholders who voted on the proposal, and to track
shareholder support for purposes of Rule 14a-8(i)(12), ExxonMobil's Secretary
introduced the proposal at the meeting so that the votes cast could be recorded.
However, our Secretary explicitly did not act as Mr. Morse's representative for
this purpose.
2 Mr. Morse states in his correspondence that, should ExxonMobil seek to omit
his proposal from our proxy material, he intends to provide "printouts of
Medical records to your Company and SEC" [sic]. We are not questioning the
accuracy of Mr. Morse's statements about his wife's health. There is thus no
need for him to introduce personal medical information into the staff's
consideration of this request and we urge him not to do so.
3 Including "against" as a voting choice in the election of directors would
mislead shareholders to believe that such a vote could affect the outcome of the
election, when in fact an "against" vote would have no legal effect in the
election of directors.
[APPENDIX 1]
EXHIBIT 1
August 24, 2004
Office of The Secretary
ExxonMobil Corporation
5959 Las Calinas Blvd.
Irving, TX 75039-2298
Dear Secretary:
I wish to enter the enclosed Proposal to be printed in the Year 2005 Proxy
Material. for a vote. I will hold my necessary equity in the Company until after
the meeting. I also can provide evidence that I am unable to attend, but will
try to be represented at the meeting. My wife had a mild heart attack at the end
of Year 2003, was in 2 hospitals, and is under-going daily blood sugar tests,
and has been taking 7 or 8 pills daily to alleviate her ailments. This requires
my nearby presence to monitor such. Thank you for your understanding.
Sincerely,
Robert D. Morse
/s/
[APPENDIX 2]
August 24, 2004
Office of The Secretary
ExxonMobil Corporation
5959 Las Calinas Boulevard
Irving, TX 75039-2298
PROPOSAL
I, Robert D. Morse, of 212 Highland Ave., Moorestown, NJ 08057-2717, propose
that Management and Directors return the word "Against" to all voting cards for
the Year 2005 meeting.
REASONS: As you vote, keep in mind that "Against" was removed from most all
proxy ballots about 1975, but ONLY in the vote for DIRECTORS BOX. Most major
companies registered in DE, MD, NJ, NY, and VA have explained that shareowners
might be "confused" that they would be voting "Against", when they have no right
to if voting under "Plurality" Contrived Rules adopted by those States and
Corporate Registrants therein. Under this system, any nominee can be elected
with even one vote "For" if that many are listed as available for the number of
directors requested.
You are denied "The Right of Dissent", a violation of the Constitution, and/or
The Bill of Rights. Insist on a return to Democracy, not a power grab. Example:
In year 2003 the CEO of ExxonMobil Corp. gained $28 million as a result of this
process. Since Management nominates the Directors, might this not come under a
"conflict of interest" interpretation? These are YOUR assets being diverted for
mostly Management's gain.
Ford Motor Company agreed to return "Against" two years ago, showing the
American Way spirit as a fine U.S. Corporation.
By voting out company nominated directors, your say has an effect on rejecting
Directors who defy your wishes to reduce Management's outlandish remuneration.
Remember that the Product or Services, and its Advertising and Acceptance are
the source of income. A fair stated salary and minimal perks are sufficient to
maintain a good lifestyle, not an exorbitant one that they desire.
Thank you All for accepting this as good advice for the proper conduct of the
Company.
Robert D. Morse
/s/
[STAFF REPLY LETTER]
December 14, 2004
Response of the Office of Chief Counsel Division of Corporation Finance
Re: Exxon Mobil Corporation Incoming letter dated November 4, 2004
The proposal requests that the board make a particular revision to its proxy
materials.
There appears to be some basis for your view that ExxonMobil may exclude the
proposal under rule 14a-8(h)(3). We note your representation that ExxonMobil
included the proponent's proposal in its proxy statement for its 2004 annual
meeting, but that neither the proponent nor his representative appeared to
present the proposal at this meeting. Moreover, the proponent has not stated a
"good cause" for the failure to appear. Under the circumstances, we will not
recommend enforcement action to the Commission if ExxonMobil omits the proposal
from its proxy materials in reliance on rule 14a-8(h)(3). This response will
also apply to any future submissions to ExxonMobil by the same proponent with
respect to an annual meeting held during calendar year 2006. In reaching this
position, we have not found it necessary to address the alternative basis for
omission upon which ExxonMobil relies.
Sincerely,
/s/
Mark F. Vilardo
Special Counsel
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