Company Name: Bear Stearns Cos Inc.
Public Availability Date: February 11, 2008
Document Sections: INQUIRY LETTER
APPENDIX 1
APPENDIX 2
APPENDIX 3
APPENDIX 4
APPENDIX 5
APPENDIX 6
APPENDIX 7
APPENDIX 8
APPENDIX 9
APPENDIX 10
APPENDIX 11
STAFF REPLY LETTER
[INQUIRY LETTER]
December 27, 2007
VIA HAND DELIVERY
Office of Chief Counsel
Division of Corporation Finance
Securities and Exchange Commission
100 F Street, N.E.
Washington, DC 20549
Re: Stockholder Proposal of the American Federation of State, County and
Municipal Employees Pension Plan et al. Exchange Act of 1934Rule 14a-8
Dear Ladies and Gentlemen:
This letter is to inform you that our client, The Bear Stearns Companies Inc.
(the "Company"), intends to omit from its proxy statement and form of proxy for
its 2008 Annual Meeting of Stockholders (collectively, the "2008 Proxy
Materials") a stockholder proposal and statements in support thereof (the
"Proposal") received from the American Federation of State, County and Municipal
Employees Pension Plan, the New Jersey Division of Investment, and the North
Carolina Equity Investment Fund Pooled Trust (collectively, the "Proponents").
Pursuant to Rule 14a-8(j), we have:
enclosed herewith six (6) copies of this letter and its attachments; and
concurrently sent copies of this correspondence to the Proponents.
Rule 14a-8(k) provides that stockholder proponents are required to send
companies a copy of any correspondence that the proponents elect to submit to
the Securities and Exchange Commission (the "Commission") or the staff of the
Division of Corporation Finance (the "Staff"). Accordingly, we are taking this
opportunity to inform the Proponents that if the Proponents elect to submit
additional correspondence to the Commission or the Staff with respect to this
Proposal, a copy of that correspondence should concurrently be furnished to the
undersigned on behalf of the Company pursuant to Rule 14a-8(k).
THE PROPOSAL
The Proposal states:
RESOLVED, pursuant to Article 12 of the By-laws of The Bear Stearns Companies
("Bear Stearns") and section 109(a) of the Delaware General Corporation Law, the
stockholders amend the By-laws to add the following Article III, section 3.17:
"The Corporation shall include in its proxy materials for a meeting of
stockholders the name, together with the Disclosure and Statement (as defined
below), of any person nominated for election to the Board ("Candidate") by a
stockholder or group thereof satisfying the requirements of this section 3.17
(the "Nominator"), and shall allow stockholders to vote with respect to such
Candidate on the Corporation's proxy card. A Nominator may nominate up to two
Candidates for inclusion in the proxy statement for a meeting, unless more than
one Nominator seeks inclusion of Candidates, in which case (a) each Nominator
may include only one Candidate and (b) Candidates will be included in the order
in which the Nominator satisfies the requirements set forth below, until the
number of Candidates nominated by the Nominators equals (i) 50% of the Directors
to be elected at the meeting minus (ii) one.
A Nominator must:
(a) beneficially own 3% or more of the Corporation's outstanding common stock
for at least two years;
(b) provide written notice received by the Secretary within the time period
specified in Article VI, section 2 clause (c) of the Certificate of
Incorporation; such notice shall contain (i) with respect to each Candidate, (A)
the information required by Items 5(b) and 7 of SEC Schedule 14A and (B) such
Candidate's consent to being named in the proxy statement and to serving as a
director if elected; and (ii) with respect to the Nominator, the information
required by Items 4(b) and 5(b) of Schedule 14A (with separate disclosure for
each stockholder in a group) (all disclosure in this section 3.17(b) is the
"Disclosure"); and
(c) execute an undertaking that it agrees to (i) assume all liability arising
out of any violation of law or regulation in connection with the Nominator's
communications with stockholders of the Corporation, including the Disclosure;
(ii) to the extent it uses soliciting material other than the Corporation's
proxy materials, comply with all laws and regulations relating thereto.
The Nominator may furnish a 500-word statement in support of each Candidate's
election (the "Statement"), which the Corporation shall include in the proxy
statement. The Board shall adopt a procedure for timely resolving disputes over
whether the Disclosure and Statement comply with SEC rules, including 14a-9."
A copy of the Proposal, as well as related correspondence with the Proponents,
is attached to this letter as Exhibit A.
The Company intends to file its definitive 2008 Proxy Materials with the
Commission on or about March 17, 2008.
BASIS FOR EXCLUSION
We hereby respectfully request that the Staff concur in our view that the
Proposal may be excluded from the 2008 Proxy Materials pursuant to Rule
14a-8(i)(8) because the Proposal would establish procedures relating to a
nomination or election for membership on the Company's Board of Directors.
ANALYSIS
The Proposal May Be Excluded under Rule 14a-8(i)(8) Because the Proposal Would
Establish Procedures Relating to a Nomination or Election for Membership on the
Company's Board of Directors.
In December 2007, the Commission amended Rule 14a-8(i)(8) to state that a
stockholder proposal may be excluded if the proposal "relates to a nomination or
an election for membership on the company's board of directors or analogous
governing body or a procedure for such nomination or election." As discussed
below, the Proposal is excludable under Rule 14a-8(i)(8) since by its terms the
Proposal would establish procedures that relate to the nomination and election
of directors.1
A. Adopting Release.
Following the analysis of comments received on the proposed amendment to Rule
14a-8(i)(8) as set forth in Exchange Act Release No. 56161 (July 27, 2007) (the
"Interpretive and Proposing Release"), in December 2007, the Commission adopted
the amendment to Rule 14a-8(i)(8), as proposed. See Exchange Act Release No.
56914 (Dec. 6, 2007) (the "Adopting Release"). By doing so, the Commission
re-codified its longstanding position that stockholder proposals that may result
in a contested election of directors are excludable. Prior to its amendment,
Rule 14a-8(i)(8) permitted the exclusion of a stockholder proposal that "relates
to an election for membership on the company's board of directors or analogous
governing body." The amended Rule 14a-8(i)(8) provides that a proposal may be
excluded if it "relates to a nomination or an election for membership on the
company's board of directors ... or a procedure for such nomination or
election." In the Adopting Release, the Commission emphasized that the term
"procedures" in the election exclusion "relates to procedures that would result
in a contested election either in the year in which the proposal is submitted or
in any subsequent year," thus evidencing the Commission's clear intent,
consistent with its longstanding interpretation, that the Rule 14a-8(i)(8)
exclusion be applied to exclude proposals that would result in a contested
election of directors, regardless of whether a contest would result immediately
or subsequently. As the Commission explained in the Adopting Release:
We are acting today to state clearly that the phrase "relates to an election" in
the election exclusion cannot be read so narrowly as to refer only to a proposal
that relates to the current election, or a particular election, but rather must
be read to refer to a proposal that "relates to an election" in subsequent years
as well. In this regard, if one looked only to what a proposal accomplished in
the current year, and not to its effect in subsequent years, the purpose of the
exclusion could be evaded easily.
Specifically, the purpose of the exclusion in Rule 14a-8(i)(8) is to prevent the
establishment of procedures that could circumvent those protections of the
federal proxy rules that are triggered only by a proxy contest. As the
Commission explained in the Adopting Release:
[W]ere the election exclusion not available for proposals that would establish a
process for the election of directors that circumvents the proxy disclosure
rules, it would be possible for a person to wage an election contest without
providing the disclosures required by the Commission's present rules governing
such contests. Additionally, false and misleading disclosure in connection with
such an election contest could potentially occur without liability under
Exchange Act Rule 14a-9 for material misrepresentations made in a proxy
solicitation.
In the Adopting Release, the Commission also emphasized the need for clarity and
certainty in the 2008 proxy season, stating: "It is our intention that this
[amendment] will enable shareholders and companies to know with certainty
whether a proposal may or may not be excluded under Rule 14a-8(i)(8)." The
Commission further noted that the amendment "will facilitate the staff's efforts
in reviewing no-action requests and interpreting Rule 14a-8 with certainty in
responding to requests for no-action letters during the 2008 proxy season."
B. The Proposal Establishes Procedures Relating to a Nomination or Election for
Membership on the Company's Board of Directors.
In furtherance of this goal, we request that the Commission concur that the
Proposal be excluded under Rule 14a-8(i)(8) because it would establish a
procedure that relates to the nomination and election of directors.
Specifically, the Proposal provides that "Nominators" may nominate candidates
for the Board of Directors and that the names of such candidates must be
included in the Company's proxy materials. This plainly falls within the terms
of Rule 14a-8(i)(8). We note also that the Proposal would result in contested
elections of directors: the Company's Board of Directors nominates a sufficient
number of candidates for all available seats on the Board of Directors. Thus,
because the Proposal would require the Company to include in its proxy materials
additional candidates who would run in opposition to the Board's candidates for
a fixed number of seats, the Proposal would necessarily establish a procedure
that would result in a contested election by forcing the Company to include in
its proxy materials candidates opposed to the Company's nominees.
Accordingly, we believe that the Proposal may be properly excluded from the 2008
Proxy Materials under Rule 14a-8(i)(8), and we request that the Staff concur in
our conclusion.
CONCLUSION
Based upon the foregoing analysis, we respectfully request that the Staff concur
that it will take no action if the Company excludes the Proposal from its 2008
Proxy Materials. We would be happy to provide you with any additional
information and answer any questions that you may have regarding this subject.
Moreover, the Company agrees to promptly forward to the Proponents any response
from the Staff to this no-action request that the Staff transmits by facsimile
to the Company only.
If we can be of any further assistance in this matter, please do not hesitate to
call me at (202) 955-8653, my colleague Elizabeth A. Ising at (202) 955-8287 or
Robert K. Kane, Managing Director at the Company, at (212) 272-9867.
Sincerely,
/s/
Amy L. Goodman
ALG/smr
Enclosures
cc: Robert K. Kane, The Bear Stearns Companies Inc.
Jeffrey Lipman, The Bear Stearns Companies Inc.
Charles Jurgonis, American Federation of State, County and Municipal Employees
Pension Plan
William G. Clark, New Jersey Division of Investment
Lisa Schneider, North Carolina Equity Investment Fund Pooled Trust
-----FOOTNOTES-----
1 The Proposal would be excludable under Rule 14a-8(i)(8), even if that
provision had not been amended, in light of the provision's text and its
longstanding interpretation by the Commission, including the Commission's
authoritative interpretation in the recent rulemaking. See Exchange Act Release
No. 56161 (July 27, 2007) (confirming the Commission's longstanding position
that stockholder proposals that would result in an election contest, either in
the current year or a subsequent year, may be excluded under Rule 14a-8(i)(8));
see also Exchange Act Release No. 56914 (Dec. 6, 2007) (reiterating and
codifying the Commission's longstanding interpretation after public comment).
[APPENDIX 1]
EXHIBIT A
[APPENDIX 2]
November 27, 2007
VIA Overnight Mail and Telecopier (212) 272-4785
The Bear Stearns Companies Inc.
383 Madison Avenue
New York, NY 10179
Attention: Kenneth L. Edlow, Corporate Secretary
Dear Mr. Edlow:
On behalf of the AFSCME Employees Pension Plan (the "Plan"), I write to give
notice that pursuant to the 2007 proxy statement of Bear Stearns (the "Company")
and Rule 14a-8 under the Securities Exchange Act of 1934, the Plan intends to
present the attached proposal (the "Proposal") at the 2008 annual meeting of
shareholders (the "Annual Meeting"). The Plan is the beneficial owner of 761
shares of voting common stock (the "Shares") of the Company, and has held the
Shares for over one year. In addition, the Plan intends to hold the Shares
through the date on which the Annual Meeting is held.
The Proposal is attached. I represent that the Plan or its agent intends to
appear in person or by proxy at the Annual Meeting to present the Proposal. I
declare that the Plan has no "material interest" other than that believed to be
shared by stockholders of the Company generally. Please direct all questions or
correspondence regarding the Proposal to Charles Jurgonis at (202) 429-1007.
Sincerely,
/s/
GERALD W. McENTEE
Chairman
Enclosure
[APPENDIX 3]
RESOLVED, pursuant to Article 12 of the By-laws of The Bear Stearns Companies
("Bear Stearns") and section 109(a) of the Delaware General Corporation Law, the
stockholders amend the By-laws to add the following Article III, section 3.17:
"The Corporation shall include in its proxy materials for a meeting of
stockholders the name, together with the Disclosure and Statement (as defined
below), of any person nominated for election to the Board ("Candidate") by a
stockholder or group thereof satisfying the requirements of this section 3.17
(the "Nominator"), and shall allow stockholders to vote with respect to such
Candidate on the Corporation's proxy card. A Nominator may nominate up to two
Candidates for inclusion in the proxy statement for a meeting, unless more than
one Nominator seeks inclusion of Candidates, in which case (a) each Nominator
may include only one Candidate and (b) Candidates will be included in the order
in which the Nominator satisfies the requirements set forth below, until the
number of Candidates nominated by Nominators equals (i) 50% of the Directors to
be elected at the meeting minus (ii) one.
A Nominator must:
(a) beneficially own 3% or more of the Corporation's outstanding common stock
for at least two years;
(b) provide written notice received by the Secretary within the time period
specified in Article VI, section 2 clause (c) of the Certificate of
Incorporation; such notice shall contain (i) with respect to each Candidate, (A)
the information required by Items 5(b) and 7 of SEC Schedule 14A and (B) such
Candidate's consent to being named in the proxy statement and to serving as a
director if elected; and (ii) with respect to the Nominator, the information
required by Items 4(b) and 5(b) of Schedule 14A (with separate disclosure for
each stockholder in a group) (all disclosure in this section 3.17(b) is the
"Disclosure"); and
(c) execute an undertaking that it agrees to (i) assume all liability arising
out of any violation of law or regulation in connection with the Nominator's
communications with stockholders of the Corporation, including the Disclosure;
(ii) to the extent it uses soliciting material other than the Corporation's
proxy materials, comply with all laws and regulations relating thereto.
The Nominator may furnish a 500-word statement in support of each Candidate's
election (the "Statement"), which the Corporation shall include in the proxy
statement. The Board shall adopt a procedure for timely resolving disputes over
whether the Disclosure and Statement comply with SEC rules, including Rule
14a-9."
SUPPORTING STATEMENT
We believe that Bear Stearns' corporate governance will benefit if stockholders
are empowered to nominate director candidates. Three of our directors have
served on the board for over 20 years, three serve on five or more boards and
two are octogenarians. Our company is being sued for the collapse of in-house
hedge funds that cost investors $1.6 billion, and our financial performance has
been subpar, as shares lost more than 40% in 2007.
We urge stockholders to vote for this proposal.
[APPENDIX 4]
November 27, 2007
VIA Overnight Mail and Telecopier (212) 272-4785
The Bear Stearns Companies Inc.
383 Madison Avenue
New York, NY 10179
Attention: Kenneth L. Edlow, Corporate Secretary
Dear Mr. Edlow:
On behalf of the AFSCME Employees Pension Plan (the "Plan"), I write to provide
you with verified proof of ownership from the Plan's custodian. If you require
any additional information, please do not hesitate to contact me at the address
above.
Sincerely,
/s/
Charles Jurgonis
Plan Secretary
Enclosure
[APPENDIX 5]
November 27, 2007
Lonita Waybright
A.F.S.C.M.E.
Benefits Administrator
1625 L Street N.W.
Washington, D.C. 20036
Re: Shareholder Proposal Record Letter for BEAR STEARNS (cusip 073902108)
Dear Ms Waybright:
State Street Bank and Trust Company is Trustee for 761 shares of Bear Stearns
common stock held for the benefit of the American Federation of State, County
and Municiple Employees Pension Plan ("Plan"). The Plan has been a beneficial
owner of at least 1% or $2,000 in market value of the Company's common stock
continuously for at least one year prior to the date of this letter. The Plan
continues to hold the shares of Bear Stearns stock.
As Trustce for the Plan, State Street holds these shares at its Participant
Account at the Depository Trust Company ("DTC"). Cede & Co., the nominee name at
DTC, is the record holder of these shares.
If there are any questions concerning this matter, please do not hesitate to
contact me directly.
Sincerely,
/s/
Kevin Yakimowsky
[APPENDIX 6]
November 27, 2007
VIA Overnight Mail and Telecopier (212) 272-4785
The Bear Stearns Companies Inc.
383 Madison Avenue
New York, NY 10179
Attention: Kenneth L. Edlow, Corporate Secretary
Dear Mr. Edlow:
On behalf of the New Jersey Division of Investment, I write to give notice that
pursuant to the 2007 proxy statement of Bear Stearns (the "Company") and Rule
14a-8 under the Securities Exchange Act of 1934, the New Jersey Division of
Investment intends to cosponsor the attached proposal (the "Proposal") submitted
to the Company under separate cover by the AFSCME Employees Pension Plan, for
consideration at the 2008 annual meeting of shareholders (the "Annual Meeting").
The New Jersey Division of Investment is the beneficial owner of 145,000 shares
of voting common stock (the "Shares") of the Company. In addition, the Division
of Investment intends to hold at least $2,000 in market value of the company's
securities entitled to be voted on through the date on which the Annual Meeting
is held. A copy of our proof of ownership will follow this notice.
I represent that the AFSCME Employees Pension Plan or one of the Proposal's
cosponsors intends to appear at the Annual Meeting to present the Proposal.
Please direct all questions or correspondence regarding the Proposal to me at
609/292-5163.
Sincerely,
/s/
William G. Clark
Director
Enclosure
[APPENDIX 7]
RESOLVED, pursuant to Article 12 of the By-laws of The Bear Stearns Companies
("Bear Stearns") and section 109(a) of the Delaware General Corporation Law, the
stockholders amend the By-laws to add the following Article III, section 3.17:
"The Corporation shall include in its proxy materials for a meeting of
stockholders the name, together with the Disclosure and Statement (as defined
below), of any person nominated for election to the Board ("Candidate") by a
stockholder or group thereof satisfying the requirements of this section 3.17
(the "Nominator"), and shall allow stockholders to vote with respect to such
Candidate on the Corporation's proxy card. A Nominator may nominate up to two
Candidates for inclusion in the proxy statement for a meeting, unless more than
one Nominator seeks inclusion of Candidates, in which case (a) each Nominator
may include only one Candidate and (b) Candidates will be included in the order
in which the Nominator satisfies the requirements set forth below, until the
number of Candidates nominated by Nominators equals (i) 50% of the Directors to
be elected at the meeting minus (ii) one.
A Nominator must:
(a) beneficially own 3% or more of the Corporation's outstanding common stock
for at least two years;
(b) provide written notice received by the Secretary within the time period
specified in Article VI, section 2 clause (c) of the Certificate of
Incorporation; such notice shall contain (i) with respect to each Candidate, (A)
the information required by Items 5(b) and 7 of SEC Schedule 14A and (B) such
Candidate's consent to being named in the proxy statement and to serving as a
director if elected; and (ii) with respect to the Nominator, the information
required by Items 4(b) and 5(b) of Schedule 14A (with separate disclosure for
each stockholder in a group) (all disclosure in this section 3.17(b) is the
"Disclosure"); and
(c) execute an undertaking that it agrees to (i) assume all liability arising
out of any violation of law or regulation in connection with the Nominator's
communications with stockholders of the Corporation, including the Disclosure;
(ii) to the extent it uses soliciting material other than the Corporation's
proxy materials, comply with all laws and regulations relating thereto.
The Nominator may furnish a 500-word statement in support of each Candidate's
election (the "Statement"), which the Corporation shall include in the proxy
statement. The Board shall adopt a procedure for timely resolving disputes over
whether the Disclosure and Statement comply with SEC rules, including Rule
14a-9."
SUPPORTING STATEMENT
We believe that Bear Stearns' corporate governance will benefit if stockholders
are empowered to nominate director candidates. Three of our directors have
served on the board for over 20 years, three serve on five or more boards and
two are octogenarians. Our company is being sued for the collapse of in-house
hedge funds that cost investors $1.6 billion, and our financial performance has
been subpar, as shares lost more than 40% in 2007.
We urge stockholders to vote for this proposal.
[APPENDIX 8]
November 28, 2007
Ms. Patty Schwartz
Manager, Domestic Accounting
Division of Investment
Department of the Trcasury, State of New Jersey
50 West State Street, 9\th/ floor
Trenton, New Jersey 08625
Fax: 609/984-4425
Re: Shareholder Proposal Record Letter for Bear Stearns (cusip 073902108)
Dear Ms. Schwartz:
US Bank is Trustee for 145,000 shares of Bear Stearns common stock held for the
benefit of the New Jersey State Pension Plan ("Common Pension Fund A") under the
management of the Division of Investment.
The Plan has held at least 145,000 shares of Bear Stearns stock continuously
since 2001. This satisfies the Company's basic ownership requirement that the
Plan be beneficial owner of at least one percent or $2,000 in market value of
the Company's common stock continuously for at least one year prior to the date
of this letter.
As Trustce for the Plan, US Bank holds these shares as a custodian bank for the
State of New Jersey. The State is the record holder for these shares.
If there are any questions concerning this matter, please do no hesitate to
contact me directly.
Sincerely,
/s/
Sue E Massey
[APPENDIX 9]
November 27, 2007
VIA Overnight Mail and Telecopier (212) 272-4785
The Bear Stearns Companies Inc.
383 Madison Avenue
New York, NY 10179
Attention: Kenneth L. Edlow, Corporate Secretary
Dear Mr. Edlow:
As Treasurer of the State of North Carolina, I am the sole Trustee for the North
Carolina Equity Investment Fund Pooled Trust (the "Trust"). On behalf of the
Trust, I write to give notice that pursuant to the 2007 proxy statement of Bear
Stearns (the "Company") and Rule 14a-8 under the Securities Exchange Act of
1934, the Trust intends to cosponsor the attached proposal (the "Proposal")
submitted to the Company under separate cover by the AFSCME Employees Pension
Plan for consideration at the 2008 annual meeting of shareholders (the "Annual
Meeting"). The Trust is the beneficial owner of 93,409 shares of voting common
stock (the "Shares") of the Company. In addition, the Trust intends to hold the
Shares through the date on which the Annual Meeting is held. A copy of our proof
of ownership is enclosed.
I represent that the AFSCME Employees Pension Plan or one of the Proposal's
cosponsors intends to appear at the Annual Meeting to present the Proposal.
Please direct all questions or correspondence regarding the Proposal to Lisa
Schneider, Director of Corporate Governance, at 919-508-1040.
Sincerely,
/s/
Richard H. Moore
Enclosure
[APPENDIX 10]
RESOLVED, pursuant to Article 12 of the By-laws of The Bear Stearns Companies
("Bear Stearns") and section 109(a) of the Delaware General Corporation Law, the
stockholders amend the By-laws to add the following Article III, section 3.17:
"The Corporation shall include in its proxy materials for a meeting of
stockholders the name, together with the Disclosure and Statement (as defined
below), of any person nominated for election to the Board ("Candidate") by a
stockholder or group thereof satisfying the requirements of this section 3.17
(the "Nominator"), and shall allow stockholders to vote with respect to such
Candidate on the Corporation's proxy card. A Nominator may nominate up to two
Candidates for inclusion in the proxy statement for a meeting, unless more than
one Nominator seeks inclusion of Candidates, in which case (a) each Nominator
may include only one Candidate and (b) Candidates will be included in the order
in which the Nominator satisfies the requirements set forth below, until the
number of Candidates nominated by Nominators equals (i) 50% of the Directors to
be elected at the meeting minus (ii) one.
A Nominator must:
(a) beneficially own 3% or more of the Corporation's outstanding common stock
for at least two years;
(b) provide written notice received by the Secretary within the time period
specified in Article VI, section 2 clause (c) of the Certificate of
Incorporation; such notice shall contain (i) with respect to each Candidate, (A)
the information required by Items 5(b) and 7 of SEC Schedule 14A and (B) such
Candidate's consent to being named in the proxy statement and to serving as a
director if elected; and (ii) with respect to the Nominator, the information
required by Items 4(b) and 5(b) of Schedule 14A (with separate disclosure for
each stockholder in a group) (all disclosure in this section 3.17(b) is the
"Disclosure"); and
(c) execute an undertaking that it agrees to (i) assume all liability arising
out of any violation of law or regulation in connection with the Nominator's
communications with stockholders of the Corporation, including the Disclosure;
(ii) to the extent it uses soliciting material other than the Corporation's
proxy materials, comply with all laws and regulations relating thereto.
The Nominator may furnish a 500-word statement in support of each Candidate's
election (the "Statement"), which the Corporation shall include in the proxy
statement. The Board shall adopt a procedure for timely resolving disputes over
whether the Disclosure and Statement comply with SEC rules, including Rule
14a-9."
SUPPORTING STATEMENT
We believe that Bear Stearns' corporate governance will benefit if stockholders
are empowered to nominate director candidates. Three of our directors have
served on the board for over 20 years, three serve on five or more boards and
two are octogenarians. Our company is being sued for the collapse of in-house
hedge funds that cost investors $1.6 billion, and our financial performance has
been subpar, as shares lost more than 40% in 2007.
We urge stockholders to vote for this proposal.
[APPENDIX 11]
November 27, 2007.
NC Department of State Treasurer
Attn: Lisa Schneider
325 N. Salisbury Street
Raleigh, NC
27603
To Whom It May Coricem,
RE: Certification of Ownership for BEAR STEARNS COS INC COM CUSIP: 073902108
Please be advised that 93,409 shares were beneficially owned by our client as of
the close of business on November 28\th/, 2007.
TREASURER OF THE STATE OF N.C. EQUITY INVESTMENT FUND
325 N SALISBURY ST.
RALEIGH, NC
27603
Of the 93,409 shares which were beneficially owned, 93,371 were out on loan as
of close of business on November 26, 2007.
Please contact me directly if you have any questions. Thank-you.
Sincerely,
/s/
Melissa Tarasovich
AVP, Melion Global Securities Services
Phone: (412) 234-2475
Email: tarasovich.mk@mellon.com
[STAFF REPLY LETTER]
February 11, 2008
Response of the Office of Chief Counsel Division of Corporation Finance
Re: The Bear Stearns Companies Inc. Incoming letter dated December 27, 2007
The proposal amends the bylaws to require that
Bear Stearns include in its proxy materials the name, along with certain
disclosures and statements, of any person nominated for election to the board by
a stockholder who has beneficially owned 3% or more of Bear Stearns' outstanding
common stock for at least two years.
There appears to be some basis for your view that Bear Stearns may exclude the
proposal under rule 14a-8(i)(8). Accordingly, we will not recommend enforcement
action to the Commission if Bear Stearns omits the proposal from its proxy
materials in reliance on rule 14a-8(i)(8).
Sincerely,
John R. Fieldsend
Attorney-Adviser
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