Company Name: Procter & Gamble Co.
Public Availability Date: August 18, 2006
Document Sections:
INQUIRY LETTER
STAFF REPLY LETTER
[INQUIRY LETTER]
July 28, 2006
Via Federal Express Overnight Delivery
U.S. Securities and Exchange Commission
Division of Corporation Finance
Office of Chief Counsel
100 F Street, N.E.
Washington, D.C. 20549
RE: The Procter & Gamble Company / Second Proposal Submitted by John J. Crapo
Ladies and Gentlemen:
This letter and the enclosed materials are submitted on behalf of The Procter &
Gamble Company (the "Company") in accordance with Rule 14a-8(j) under the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
In a letter dated June 6, 2006, the Company requested the Staff's concurrence
that no enforcement action will be recommended if the Company omits a proposal
submitted by John Jennings Crapo (the "Proponent") to the Company on March 6,
2006 (the "March Proposal"). The Company intends to omit the March Proposal
under Rule 14a-8(f)(1) on the ground that the Proponent did not comply with the
word limit requirements of paragraph (d), despite a notification by the Company
of this deficiency. On July 10, 2006, the Company received a second handwritten
shareholder proposal from the same Proponent (the "June Proposal"), dated June
24, 2006. Mr. Crapo requested inclusion of the June Proposal in the Company's
Proxy Statement for its 2006 Annual Meeting of shareholders.
The Company intends to omit the June Proposal under Rule 14a-8(f)(1) on the
ground that this is a second proposal in violation of Rule 14a-8(c). In
accordance with Rule 14a-8(f)(1), we did not notify Mr. Crapo of this deficiency
because it cannot be remedied. The June Proposal contains other procedural and
substantive deficiencies, but we have refrained from raising such objections at
this time. We respectfully reserve the right to raise such objections should the
relief requested herein not be granted by the Staff. The Company respectfully
requests the Staff's concurrence that no enforcement action will be recommended
if the Company omits the June Proposal from its Proxy Statement, which is
scheduled to be filed on August 29, 2006.
Pursuant to Rule 14a-8(j) under the Exchange Act, please find enclosed six
copies of the June Proposal by Mr. Crapo, and this letter. The Company is
simultaneously providing a copy of this submission to Mr. Crapo.
The June Proposal fails to comply with Rule 14a-8(c).
Rule 14a-8(c) provides that each shareholder may submit no more than one
proposal for a particular shareholders' meeting. Though it is difficult to
decipher the actual proposals, to the extent that one can, the March Proposal
and the June Proposal constitute two entirely unrelated and distinct proposals.
The Proponent makes no distinction that the June Proposal was intended to serve
as a revision or replacement of the March Proposal. The June Proposal does not
mention the March Proposal at all, nor does the June Proposal mention the
Company's letter informing the Proponent of the defects in his March Proposal.
Therefore, the Company believes that the June Proposal may be excluded from the
Company's Proxy Statement because it violates Rule 14a-8(c).
In this regard, we note that the Staff has consistently concurred with the
exclusion of a second proposal pursuant to rule 14a-8(c). We refer the Staff to
the no-action letter received by the Company in 2004 when the same Proponent,
Mr. Crapo, submitted two separate shareholder proposals. Please see The Procter
& Gamble Company, August 10, 2004, attached. The Staff has consistently
concurred with the exclusion of proposals in several other cases in which the
Proponent submitted two proposals. See The Adams Express Company, September 25,
1992, in which the Staff concurred that a second proposal by Mr. Crapo was
excludable as a violation of the single proposal requirement. See also The
Procter & Gamble Company, March 20, 2003, in which the Staff concurred that a
proposal by Mr. Crapo was excludable because he had previously submitted a
proposal for inclusion in the Company's proxy material with respect to the same
meeting. Because of this, we note that Proponent should be well aware of the
prohibition against the submission of multiple proposals.
Request for waiver of 80-day rule under 14a-8(j)(1).
The Company requests a waiver of the 80-day rule under Rule 14a-8(j)(1) because
the June Proposal was received less than 80 days before the filing of our
definitive 2006 proxy materials, which is scheduled to occur on August 29, 2006.
Because the Proposal was received by the Company on July 10, 2006, the Company
submits that good cause exists for our filing of this request later than 80 days
prior to the filing of our proxy materials. We, therefore, respectfully request
a waiver of the 80 day rule under Rule 14a-8(j)(1). See, e.g., International
Business Machines Corporation (March 7, 2006) (waiver of 80 day rule granted
when proposal sent 31 days before anticipated filing date).
Since the Proponent submitted a second proposal in violation of Rule 14a-8(c),
the Company respectfully requests that you concur in its view that, in
accordance with Rule 14a-8(j), it may properly exclude the Proposal from its
Proxy Materials for the 2006 Annual Meeting. Your confirmation that the Staff
will not recommend enforcement if the Proposal is omitted from the 2006 Proxy
Statement is respectfully requested.
Should you have any questions regarding this matter or require additional
information, please contact me at 513-983-7695. Given that our Proxy Statement
will be filed on August 29, 2006, any immediate attention you can provide to
this request is appreciated. Please acknowledge receipt of this letter by
date-stamping the enclosed additional copy of this letter and returning it to me
in the enclosed envelope.
Very truly yours,
/s/
Susan S. Whaley
Senior Counsel
Enclosures
cc: John Jennings Crapo - w/enclosures
Handwritten text will be available August 23, 2006.
Handwritten text will be available August 23, 2006.
Handwritten text will be available August 23, 2006.
Handwritten text will be available August 23, 2006.
Handwritten text will be available August 23, 2006.
Handwritten text will be available August 23, 2006.
Handwritten text will be available August 23, 2006.
[STAFF REPLY LETTER]
August 18, 2006
Response of the Office of Chief Counsel Division of Corporation Finance
Re: The Procter & Gamble Company Incoming letter dated July 28, 2006
The proposal relates to a report.
There appears to be some basis for your view that Procter & Gamble may exclude
the proposal under rule 14a-8(c). Accordingly, we will not recommend enforcement
action to the Commission if Procter & Gamble omits the proposal from its proxy
materials in reliance on rule 14a-8(c).
We note that Procter & Gamble 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 will file definitive proxy materials as required by rule
14a-8(j)(1). Noting the circumstances of the delay, we grant Procter & Gamble's
request that the 80-day requirement be waived.
Sincerely,
/s/
Mary Beth Breslin
Special Counsel
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