Company Name: Intel Corp.
Public Availability Date: January 31, 2008Document Sections:
INQUIRY LETTER
INQUIRY LETTER
APPENDIX 1
INQUIRY LETTER
INQUIRY LETTER
STAFF REPLY LETTER
[INQUIRY LETTER]
January 4, 2008
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 Great Neck Capital Appreciation LTD Partnership
Exchange Act of 1934Rule 14a-8
Dear Ladies and Gentlemen:
This letter is to inform you that our client, Intel Corporation (the "Company"),
intends to omit from its proxy statement and form of proxy for its 2008 Annual
Stockholders' Meeting (collectively, the "2008 Proxy Materials") a stockholder
proposal (the "Proposal") received from The Great Neck Capital Appreciation LTD
Partnership, naming John Chevedden as its designated representative (the
"Proponent").
Pursuant to Rule 14a-8(j), we have:
enclosed herewith six (6) copies of this letter and its attachments;
filed this letter with the Securities and Exchange Commission (the
"Commission") no later than eighty (80) calendar days before the Company files
its definitive 2008 Proxy Materials with the Commission; and
concurrently sent copies of this correspondence to the Proponent.
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 Commission or the staff of the Division of Corporation Finance (the
"Staff"). Accordingly, we are taking this opportunity to inform the Proponent
that if the Proponent elects 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 requests that the Board of Directors of the Company amend the
Company's "bylaws and any other appropriate governing documents in order that
there is no restriction on the shareholder right to call a special meeting,
compared to the standard allowed by applicable law on calling a special
meeting." The Proposal also includes statements in support thereof (the
"Supporting Statement") stating that "[s]hareholder control over timing [of
special meetings] is especially important" and advocating the need for special
meetings in order for stockholders to be able to consider matters such as "a
takeover offer," and "a major acquisition or restructuring." A copy of the
Proposal, as well as related correspondence with the Proponent, is attached to
this letter as Exhibit A.
BASES FOR EXCLUSION
We believe that the Proposal may properly be excluded from the 2008 Proxy
Materials pursuant to:
Rule 14a-8(i)(2) because implementation of the Proposal would cause the
Company to violate state law; and
Rule 14a-8(i)(3) because the Proposal is impermissibly vague and indefinite so
as to be inherently misleading.
Alternatively, if the Staff declines to concur that the Proposal is excludable
in its entirety on the bases described above, we respectfully request that the
Staff concur in the exclusion under Rule 14a-8(i)(3) of a portion of the
Supporting Statement that is materially false and misleading in violation of
Rule 14a-9.
ANALYSIS
I. The Proposal May Be Excluded under Rule 14a-8(i)(2)
Because Implementation of the Proposal Would Cause the Company To Violate State
Law.
Rule 14a-8(i)(2) permits a company to exclude a stockholder proposal if
implementation of the proposal would cause it to violate any state, federal or
foreign law to which it is subject. The Company is incorporated under the laws
of the State of Delaware. For the reasons set forth below and in the legal
opinion regarding Delaware law from Potter, Anderson & Corroon LLP, attached
hereto as Exhibit B (the "Delaware Law Opinion"), the Company believes that the
Proposal is excludable under Rule 14a-8(i)(2) because, if implemented, the
Proposal would cause the Company to violate applicable Delaware law, including
the Delaware General Corporation Law (the "DGCL").
The Proposal requests that the Board of Directors of the Company amend the
Company's "bylaws and any other appropriate governing documents in order that
there is no restriction on the shareholder right to call a special meeting,
compared to the standard allowed by applicable law on calling a special
meeting." Further, the Proposal cites the importance of "[s]hareholder control
over timing" of special meetings and the need for special meetings to be held to
consider "takeover offer[s]," "major acquisition[s]" and "restructuring[s]."
However, Delaware law provides restrictions with respect to these same matters.
Thus, as discussed below and as supported by the Delaware Law Opinion,
implementation of the Proposal would cause the Company to violate state law
since the Proposal requests "no restriction" on the right of stockholders to
call special meetings.
As discussed in the Delaware Law Opinion, "Because the General Corporation Law
places standards on stockholders' ability to call special meetings, the Company
is not free to ignore the `standard allowed by applicable law' by adopting a
bylaw with `no restriction on the shareholder right to call a special meeting,'
and, therefore, the bylaw requested by the Proposal would, by its own terms,
violate Delaware law and would be invalid." Specifically, Delaware law limits
the subject matter to be considered at special meetings of stockholders and the
ability of stockholders to control the timing of special meetings. For example,
the Supporting Statement argues that one reason for the Proposal is that "[s]hareholder
control over timing is especially important." However, as stated in the Delaware
Law Opinion, "under the proposed bylaw, stockholders could call a special
meeting of stockholders to be held on less than 10 days' notice or more than 60
days' notice. This timing would violate Section 213(a) of the General
Corporation Law, which requires that a record date for a stockholders meeting be
not less than 10 days nor more than 60 days prior to the meeting date, as well
as Section 222(b) of the General Corporation Law, which requires that notice of
a stockholders meeting be given not less than 10 days nor more than 60 days
prior to the meeting date." Thus, it would violate state law for the Company's
Board to amend the Company's bylaws to provide "no restriction" on the timing of
special meetings called by stockholders.
The Proposal also calls for the amendment of the Company's bylaws or other
governing documents to enable a stockholder to call a meeting with "no
restriction" on what the stockholder specifies as the purpose of the meeting,
which would include even matters that are not a proper subject for stockholder
action. The Supporting Statement specifically discusses the need to be able to
call a special meeting for the purpose of considering "takeover offer[s],"
"major acquisition[s]" and "restructuring[s]." As discussed in the Delaware Law
Opinion, the Proposal is fundamentally inconsistent with Delaware law in that
"the General Corporation Law in several instances mandates that board action on
particular subjects occur before certain actions are submitted to stockholders.
Among the matters in which Delaware law requires board action before stockholder
action are what the Proposal's supporting statement refers to as `takeover
offers' in the form of merger proposals." Thus, the Proposal seeks to create
rights that are inconsistent with the DGCL.
The Staff previously has concurred with the exclusion, under Rule 14a-8(i)(2) or
its predecessor, of stockholder proposals that requested the adoption of a bylaw
or charter amendment that was invalid because it would violate state law. See,
e.g., PG&E Corp. (avail. Feb. 14, 2006) (requesting the amendment of the
company's governance documents to institute majority voting in director
elections where Section 708(c) of the California Corporation Code required that
plurality voting be used in the election of directors); Hewlett-Packard Co.
(avail. Jan. 6, 2005) (recommending that the company amend its bylaws so that no
officer may receive annual compensation in excess of certain limits without
approval by a vote of "the majority of the stockholders" in violation of the
"one share, one vote" standard set forth in DGCL Section 212(a)); GenCorp Inc.
(avail. Dec. 20, 2004) (concurring with the exclusion of a proposal requesting
an amendment to the company's governing instruments to provide that every
stockholder resolution approved by a majority of the votes cast be implemented
by the company since the proposal would conflict with Section 1701.59(A) of the
Ohio Revised Code regarding the fiduciary duties of directors). See also The
Boeing Co. (avail. Mar. 4, 1999) (concurring with the exclusion of a proposal
requesting that every corporate action requiring stockholder approval be
approved by a simple majority vote of shares since the proposal would conflict
with provisions of the DGCL that require a vote of at least a majority of the
outstanding shares on certain issues); Tribune Co. (avail. Feb. 22, 1991)
(concurring with the exclusion of a proposal requesting that the company's proxy
materials be mailed at least 50 business days prior to the annual meeting since
the proposal would conflict with Sections 213 and 222 of the DGCL, which set
forth certain requirements regarding the notice of, and the record date for,
stockholder meetings).
The Proposal requests that the Company's Board act so that there is "no
restriction on the shareholder right to call a special meeting, compared to the
standard allowed by applicable law on calling a special meeting." However,
Delaware law imposes certain restrictions on the procedures for calling, and the
substance of, special meetings, none of which can be altered by the Company.
Therefore, the Proposal is excludable pursuant to Rule 14a-8(i)(2) because, as
supported by the Delaware Law Opinion, implementation of the Proposal would
cause the Company to violate applicable state law.
II. The Proposal May Be Excluded under Rule
14a-8(i)(3) Because It Is Impermissibly Vague and Indefinite so as To Be
Inherently Misleading.
Rule 14a-8(i)(3) permits the exclusion of a stockholder proposal if the proposal
or supporting statement is contrary to any of the Commission's proxy rules or
regulations, including Rule 14a-9, which prohibits materially false or
misleading statements in proxy soliciting materials. For the reasons discussed
below, the Proposal is impermissibly misleading and vague and, therefore, is
excludable under Rule 14a-8(i)(3).
The Staff consistently has taken the position that vague and indefinite
stockholder proposals are inherently misleading and therefore excludable under
Rule 14a-8(i)(3) because "neither the stockholders voting on the proposal, nor
the company in implementing the proposal (if adopted), would be able to
determine with any reasonable certainty exactly what actions or measures the
proposal requires." Staff Legal Bulletin No. 14B (Sept. 15, 2004) ("SLB 14B").
In this regard, the Staff has permitted the exclusion of a variety of
stockholder proposals, including proposals requesting amendments to a company's
charter or bylaws. For example, in Alaska Air Group Inc. (avail. Apr. 11, 2007),
the Staff concurred with the exclusion of a stockholder proposal requesting that
the company's board amend the company's governing instruments to "assert, affirm
and define the right of the owners of the company to set standards of corporate
governance" as "vague and indefinite." See also Peoples Energy Corp. (avail.
Nov. 23, 2004) (concurring in the exclusion as vague of a proposal requesting
that the board amend the charter and bylaws "to provide that officers and
directors shall not be indemnified from personal liability for acts or omissions
involving gross negligence or reckless neglect").
Moreover, the Staff has on numerous occasions concurred that a proposal was
sufficiently misleading so as to justify exclusion where a company and its
stockholders might interpret the proposal differently, such that "any action
ultimately taken by the [c]ompany upon implementation [of the proposal] could be
significantly different from the actions envisioned by shareholders voting on
the proposal." Fuqua Industries, Inc. (avail. Mar. 12, 1991). See also Bank of
America Corp. (avail. June 18, 2007) (concurring with the exclusion of a
stockholder proposal calling for the board of directors to compile a report
"concerning the thinking of the [d]irectors concerning representative payees" as
"vague and indefinite"); Puget Energy, Inc. (avail. Mar. 7, 2002) (permitting
exclusion of a proposal requesting that the company's board of directors "take
the necessary steps to implement a policy of improved corporate governance");
Dyer v. SEC, 287 F.2d 773, 781 (8th Cir. 1961) ("[I]t appears to us that the
proposal, as drafted and submitted to the company, is so vague and indefinite as
to make it impossible for either the board of directors or the stockholders at
large to comprehend precisely what the proposal would entail.").
While the Proposal is not a model of clarity, on its face it requests that the
Company's Board of Directors amend the bylaws and any other appropriate
governing documents to place "no restriction" on the right of stockholders to
call special meetings, without regard to the requirements set forth in Delaware
corporate law related to stockholders calling special meetings. This reading of
the Proposal is supported by the references in the Supporting Statement to the
need for stockholder control over the timing and subject matter of special
meetings. If the Proponent intends another meaning of the Proposal, a close
examination of the language of the Proposal and Supporting Statement does not
make that meaning evident and only serves to demonstrate the vagueness of, and
ambiguities in, the Proposal. For example, the Proposal refers to "no
restriction" on the "right" of stockholders to call special meetings "compared
to the standard allowed by applicable law on calling a special meeting" is vague
and misleading in a number of respects. First, under Delaware law, stockholders
do not possess a "right" to call special meetings; only the board of directors
is specifically granted the power to call special meetings. See DGCL, 211(d).
In addition, while Delaware law imposes some restrictions on stockholders'
ability to call special meetings (as discussed above), it otherwise "allows" for
the adoption of a wide variety of bylaw or charter provisions to enable
stockholders to call a special meeting. Stated differently, Delaware law does
not establish a default standard for when stockholders can call a special
meeting; a provision authorizing a special meeting to be called by holders of
40% of a company's common shares or by any person who has held more than 25% of
a company's common shares for more than a year would each be "allowed" under
Delaware law, as would many other standards. Thus, in the absence of default
standards in Delaware law, the reference to a "comparison" to the "standard
allowed by applicable law" fails to clarify the Proposal's meaning, leaving it
vague and misleading.
Similar to the Staff's findings on numerous occasions, the Company's
stockholders "cannot be expected to make an informed decision on the merits of
the Proposal without at least knowing what they are voting on." The Boeing Corp.
(avail. Feb. 10, 2004); see also Capital One Financial Corp. (avail. Feb. 7,
2003) (excluding a proposal under Rule 14a-8(i)(3) where the company's
stockholders "would not know with any certainty what they are voting either for
or against"). Moreover, neither the Company's stockholders nor the Board would
be able to determine with any certainty what actions the Company would be
required to take in order to comply with the Proposal. Accordingly, we believe
that as a result of the vague and indefinite nature of the Proposal, the
Proposal is impermissibly misleading and, thus, excludable in its entirety under
Rule 14a-8(i)(3).
III. The Proposal Requires Revision Because the Proposal Contains False and
Misleading Statements in Violation of Rule 14a-9.
Should the Staff not concur that the Proposal is excludable under Rule
14a-8(i)(2) or Rule 14a-8(i)(3) as set forth above, we respectfully request that
the Staff concur in the exclusion of a portion of the Supporting Statement in
accordance with Rule 14a-8(i)(3). Rule 14a-8(i)(3) permits the exclusion or
revision of a stockholder proposal or supporting statement if the proposal or
supporting statement is contrary to any of the Commission's proxy rules or
regulations (including Rule 14a-9, which prohibits materially false or
misleading statements).
In SLB 14B, the Staff clarified its views regarding when modification or
exclusion of a stockholder proposal or supporting statement is appropriate under
Rules 14a-8(i)(3) and 14a-9. Moreover, the Staff has indicated that modification
or exclusion is appropriate when "the company demonstrates objectively that a
factual statement is materially false or misleading." Here, the Supporting
Statement is materially false and misleading because it suggests that the
Proposal would enjoy broad stockholder support, whereas the concept of there
being "no restriction" on a stockholder's ability to call special meetings is a
radical proposition that we are not aware of ever having been implemented by any
corporation or considered by any of the persons referred to in the Supporting
Statement.
Specifically, we believe it is false and misleading for the Supporting Statement
to state, "Fidelity and Vanguard support a shareholder right to call a special
meeting," as this statement improperly indicates that those entities would
support the Proposal. However, according to Vanguard's proxy voting guidelines,
Vanguard's "funds support shareholders' right to call special meetings of the
board (for good cause and with ample representation) and to act by written
consent. The funds will generally vote for proposals to grant these rights to
shareholders and against proposals to abridge them." (emphasis added). Thus,
Vanguard's published standards do not indicate that it would support a proposal
that allowed stockholders to call special meetings for any reason and without a
demonstration that the stockholder represents an ample number of shares. See
Exhibit C. Similarly, Fidelity's proxy voting guidelines contain no reference to
an unqualified right of stockholders to call special meetings. See Exhibit C.
The Proposal's reference to Fidelity and Vanguard's "support [of] a shareholder
right to call a special meeting" suggests that these well-known, influential
institutional investors support the Proposal's broad request for such a right,
which is materially false and misleading.
In an analogous situation, the company in Bob Evans Farms, Inc. (avail. June 26,
2006) sought the exclusion of contact information for the five largest
stockholders of the company from a proposal where the inclusion of that
information suggested, without any actual support, that those stockholders
supported the proposal. The Staff permitted the exclusion of that portion of the
stockholder proposal as being "materially false or misleading." Moreover, the
Staff has on many occasions permitted companies to rely on Rule 14a-8(i)(3) to
exclude proposals or portions of proposals from proxy statements when those
portions made the proposal materially false or misleading. See e.g., Bank of
America Corp. (avail. Feb. 12, 2007) (permitting the exclusion of a portion of a
proposal as "materially false and misleading" where the company argued the
portion was unrelated and irrelevant to the actions requested by the proposal);
State Street Corp. (avail. Mar. 1, 2005) (permitting the exclusion of a
stockholder proposal that included false statements regarding the company's
legal authority to implement the proposal as "materially false and misleading");
Procter & Gamble Co. (avail. Jul. 15, 2004) (permitting the exclusion of
portions of a stockholder proposal as "materially false and misleading" where
the portions mischaracterized the company's animal research); Amerada Hess Corp.
(avail. Mar. 15, 2004); Kerr-McGee Corp., (avail. Mar. 15, 2004).
For the reasons stated above, we respectfully submit that the Proposal must be
amended to delete the sentence "Fidelity and Vanguard are among the mutual funds
supporting a shareholder right to call a special meeting" because it is
materially false and misleading under Rule 14a-8(i)(3).
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. Alternatively, should the Staff not concur that the Proposal is
excludable in its entirety, we respectfully request that the Staff concur in the
exclusion of a portion of the Supporting Statement in accordance with Rule
14a-8(i)(3). We would be happy to provide you with any additional information
and answer any questions that you may have regarding this subject. In addition,
the Company agrees to promptly forward to the Proponent 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) 955-8671, my colleague Elizabeth A. Ising at (202) 955-8287 or
Doug A. Stewart, the Company's Senior Attorney, Legal and Corporate Affairs at
(408) 765-5532.
Sincerely,
/s/
Ronald O. Mueller
Enclosure
cc: Doug A. Stewart, Intel Corporation
John Chevedden
[INQUIRY LETTER]
November 5, 2007
Mr. Craig R. Barrett
Chairman
Intel Corporation (INTC)
2200 Mission College Blvd.
Santa Clara CA 95052
PH: 408 765-8080
FX: 408 765-9904
Rute 14a-8 Proposal
Dear Mr. Barrett,
This Rule 14a-8 proposal is respectfully submitted in support of the long-term
performance of our company. This proposal is submitted for the next annual
shareholder meeting. Rule 14a-8 requirements are intended to be met including
the continuous ownership of the required stock value until after the date of the
respective shareholder meeting and the presentation of this proposal at the
annual meeting. This submitted format, with the shareholder-supplied emphasis.
is intended to be used for definitive proxy publication. This is the proxy for
John Chevedden and/or his designee to act on my behalf regarding this Rule 14a-8
proposal for the forthcoming shareholder meeting before, during and after the
forthcoming shareholder meeting. Please direct all future communication to John
Chevedden at:
olmsted7p (at) earthlink.net
(In the interest of company cost savings and improving the efficiency of the
rule 14a-8 process please communicate via email.)
PH: 310-371-7872
2215 Nelson Ave., No. 205, Redondo Beach, CA 90278
Your consideration and the consideration of the Board of Directors is
appreciated in support of the long-term performance of our company, Please
acknowledge receipt of this proposal by email.
Sincerely,
/s/
Mark Filiberto,
General Partner
cc: Cary I. Klafter
Corporate Secretary
Rachel Kosmal
FX: 408 653-5661
FX: 408 765-1859
[APPENDIX 1]
[INTC: Rule 14a-8 Proposal, November 8, 2007]
3Special Shareholder Meetings
RESOLVED, Special Shareholder Meetings, Shareholders ask our board to amend our
bylaws and any other appropriate governing documents in order that there is no
restriction on the shareholder right to call a special meeting, compared to the
standard allowed by applicable law on calling a special meeting.
Special meetings allow investors to vote on important matters, such as a
takeover offer, that can arise between annual meetings. If shareholders cannot
call special meetings, management may become insulated and investor returns may
suffer.
Shareholders should have the ability to call a special meeting when they think a
matter is sufficiently important to merit expeditious consideration. Shareholder
control over timing is especially important regarding a major acquisition or
restructuring, when events unfold quickly and issues may become moot by the next
annual meeting.
Fidelity and Vanguard support a shareholder right to call a special meeting. The
proxy voting guidelines of many public employee pension funds, including the New
York City Employees Retirement System, also favor this right. Governance ratings
services, such as The Corporate Library and Governance Metrics International,
take special meeting rights into account when assigning company ratings.
Eighteen (18) proposals on this topic averaged 56%-support in 2007including
74%-support at Honeywell (HON) according to RiskMetrics (formerly Institutional
Shareholder Services).
The merits of this proposal should also be considered in the context of our
company's overall corporate governance structure and individual director
performance. For instance in 2007 the following structure and performance issues
were reported:
The Corporate Library http://www.thecorporatelibrary.com, an independent
investment research firm said Intel's share price underperformed the S&P 500 by
28% in 2006 and lost $31 billion in value for shareholders.
We had no Independent ChairmanIndependence concern.
Our Lead Director, Mr. Yoffie, had 18-years Intel director tenure
-Independence concern.
Mr. Hundt was designated a "problem director" The Corporate Library due to his
involvement with the board of Allegiance Telecom, which filed for Chapter 11
bankruptcy.
Ms. Barshefsky received 29% withhold votesabout 10-times as many withhold
votes as each of our other directors.
No shareholder right to:
1) Cumulative voting.
2) Act by written consent.
3) Call a special meeting.
Additionally:
Six of our directors also served on 8 boards rated D or F by the Corporate
Library: |[NCCDEF] |[UCA1] |[TDC4,MP1,QL,VU] |[TCC4,MP2,QL,VU] |[XT]
|[ST]|[LC25]|[RS4]1) Ms. Barshefsky |[TA]American Express (AXP) Estee Lauder
(EL) |[ST]|[VE3]2) Mr. Thornton |[TA]Ford (F) News Corp. (NWS) |[ST]3) Ms.
Decker |[TA]Costco (COST) |[ST]4) Mr. Shaw |[TA]McKesson (MCK) |[ST]5) Mr. Guzy
|[TA]Cirrus Logic (CRUS) |[ST]6) Mr. Plummer |[TA]International Rectifier (IRF)
|[ET]
The above concerns shows there is room for improvement and reinforces the reason
to take one step forward now and encourage our board to respond positively to
this proposal:
Notes:
Mark Filiberto, General Partner, The Great Neck Capital Appreciation LTD
Partnership, 1981 Marcus Ave., Suite C114, Lake Success, NY 11042 sponsored this
proposal.
The above format is requested for publication without re-editing, re-formatting
or elimination of text, including beginning and concluding text, unless prior
agreement is reached. It is respectfully requested that this proposal be
proofread before it is published in the definitive proxy to ensure that the
integrity of the submitted format is replicated in the proxy materials. Please
advise if there is any typographical question.
Please note that the title of the proposal is part of the argument in favor of
the proposal. In the interest of clarity and to avoid confusion the title of
this and each other ballot item is requested to be consistent throughout all the
proxy materials.
The company is requested to assign a proposal number (represented by "3" above)
based on the chronological order in which proposals are submitted. The requested
designation of "3" or higher number allows for ratification of auditors to be
item 2.
This proposal is believed to conform with Staff Legal Bulletin No. 14B (CF[Text
is illegible] September 15, 2004 including:
Accordingly, going forward, we believe that it would not be appropriate for
companies to exclude supporting statement language and/or an entire proposal in
reliance on rule 14a-8 (i)(3) in the following circumstances:
the company objects to factual assertions because they are not supported;
the company objects to factual assertions that, while not materially false or
misleading, may be disputed or countered;
the company objects to factual assertions because those assertions may be
interpreted by shareholders in a manner that is unfavorable to the company, its
directors, or its officers; and/or
the company objects to statements because they represent the opinion of the
shareholder proponent or a referenced source, but the statements are not
identified specifically as such.
See also: Sun Microsystems, Inc. (July 21, 2005).
Stock will be held until after the annual meeting and the proposal will be
presented at the annual meeting.
Please acknowledge this proposal promptly by email and advise the most
convenient fax number and email address to forward a broker letter, if needed,
to the Corporate Secretary's office.
[INQUIRY LETTER]
January 8, 2008
Office of Chief Counsel
Division of Corporation Finance
Securities and Exchange Commission
100 F Street, NE
Washington, DC 20549
#1 Intel Corporation (INTC)
Shareholder Position on Company No-Action Request
Rule 14a-8 Proposal: Special Shareholder Meetings
The Great Neck Capital Appreciation LTD Partnership
Ladies and Gentlemen:
The January 4, 2008 company no action request appears to be a deliberate
misreading of the resolution which in fact states:
RESOLVED, Special Shareholder Meetings, Shareholders ask our board to amend our
bylaws and any other appropriate governing documents in order that there is no
restriction on the shareholder right to call a special meeting, compared to the
standard allowed by applicable law on calling a special meeting.
In other words the proposal asks that the board amend the bylaws and any other
appropriate governing documents in order that there is no limit on the
shareholder right to call a special meeting compared to, relative to or
consistert with the limits allowed by the applicable Delaware law on
shareholders calling a special meeting.
Since the proposal establishes as a floor the limits called for by Delaware law,
the rule 14a-8 proposal does not restrict the company in its adherence to
Delaware law.
Thus the text in the supporting statement about enabling shareholders to have
some control over the timing and subject matter of a special meeting is again
calling attention to this issue within the limits allowed by the applicable
Delaware law on shareholders calling a special meeting.
Although the company argument is not clear it seems to claim that there is no
explicit "default standard" or bold heading of "default standard" in Delaware
law regarding shareholders calling special meetings and thus there is
purportedly no way to determine what is allowed by Delaware law on shareholders
calling special meetings. Apparently the company cannot accept the concept of an
implicit default standard based on analyzing the text of a statute.
The company bolsters the text in the shareholder proposal regarding Fidelity and
Vanguard, to supplement to its deliberate misreading above, and then complains
to the staff about its own bolstered text. For instance the company has
essentially rewritten a proposal sentence to state that Fidelity and Vanguard
are among the mutual funds supporting "an unqualified right of shareholders" to
call a special meeting and then the company attacks its own words. There is no
text in the proposal about "an unqualified right of shareholders" in regard to
special meetings and therefore the company argument is misplaced.
A copy of this letter is forwarded to the company in a non-PDF email. In order
to expedite the rule 14a-8 process it is requested that the company forward any
addition rule 14a-8 response in the same type format to the undersigned.
For these reasons it is requested that the staff find that this resolution
cannot be omitted from the company proxy. It is also respectfully requested that
the shareholder have the last opportunity to submit material in support of
including this proposalsince the company had the first opportunity.
Sincerely,
John Chevedden
cc:
Mark Filiberto
Douglas Stewart<doug.a.stewart@intel.com>
Senior Attorney
[INQUIRY LETTER]
January 23, 2008
Office of Chief Counsel
Division of Corporation Finance
Securities and Exchange Commission
100 F Street, NE
Washington, DC 20549
#2 Intel Corporation (INTC)
Shareholder Position on Company No-Action Request
Rule 14a-8 Proposal: Special Shareholder Meetings
The Great Neck Capital Appreciation LTD Partnership
Ladies and Gentlemen:
In further response to the January 4, 2008 company no action request, that
claims the company, a Delaware company, is unable to adopt this resolutionthis
is a timely example of a Delaware company adopting the same resolution:
Form 8-K for BORDERS GROUP INC
18-Jan-2008
ITEM 5.03. AMENDMENTS TO ARTICLES OF INCORPORATION OR BYLAWS; CHANGES IN FISCAL.
YEAR
On and effective as of January 17, 2007, the Board of Directors adopted the
Fourth Amendment to the restated By-Laws of the Company. The purpose of the
Fourth Amendment was to provide that Special Meetings of Stockholders, for any
purpose or purposes, may be called by the Chief Executive Officer or by the
Board of Directors acting pursuant to a resolution adopted by a majority of the
entire Board of Directors, and shall be called by the Secretary upon the request
of the holders of at least twenty-five percent (25%) of the shares of the
Corporation outstanding and entitled to vote at the meeting. A copy of the
Fourth Amendment to the Restated By-Laws of the Company is attached hereto as
Exhibit 3.7 and is incorporated herein by reference.
The January 4, 2008 company no action request appears to be an implicit
admission that the best way to attack this resolution is to deliberately misread
the resolution:
RESOLVED, Special Shareholder Meetings, Shareholders ask our board to amend our
bylaws and any other appropriate governing documents in order that there is no
restriction on the shareholder right to call a special meeting, compared to the
standard allowed by applicable law on calling a special meeting.
In other words the proposal asks that the board amend the bylaws and any other
appropriate governing documents in order that there is no limit on the
shareholder right to call a special meeting compared to, relative to or
consistent with the applicable Delaware law on shareholders calling a special
meeting.
The company provides no definition of the "compared to" phrase used in the
resolution to support its conclusion of absolutely "no restriction."
Since the proposal establishes as a floor the limits called for by Delaware law,
the rule 14a-8 proposal does not restrict the company in its adherence to
Delaware law.
Thus the text in the supporting statement about enabling shareholders to have
some control over the timing and subject matter of a special meeting is again
calling attention to this issue within the limits allowed by the applicable
Delaware law on shareholders calling a special meeting. Contrary to the company
argument, there is no text in the proposal calling for absolute or unilateral
shareholder control on the timing and subject matter of a special meeting.
Although the company argument is not clear it seems to claim that there is no
explicit "default standard" or bold heading of "default standard" in Delaware
law regarding shareholders calling special meetings and thus there is
purportedly no way to determine what is allowed by Delaware law on shareholders
calling special meetings. Apparently the company cannot accept the concept of an
implicit default standard based on analyzing the text of a statute.
The company bolsters the text in the shareholder proposal regarding Fidelity and
Vanguard, as a consistent supplement to its deliberate misreading of the
resolution above, and then complains to the staff about its own bolstered text.
For instance the company has essentially rewritten a proposal sentence to state
that Fidelity and Vanguard are mutual funds supporting "an unqualified right of
shareholders" to call a special meeting and then the company attacks its own
words. There is no text in the proposal about "an unqualified right of
shareholders" in regard to special meetings and therefore the company argument
is misplaced.
A copy of this letter is forwarded to the company in a non-PDF email. In order
to expedite the rule 14a-8 process it is requested that the company forward any
addition rule 14a-8 response in the same type format to the undersigned.
For these reasons it is requested that the staff find that this resolution
cannot be omitted from the company proxy. It is also respectfully requested that
the shareholder have the last opportunity to submit material in support of
including this proposalsince the company had the first opportunity.
Sincerely,
John Chevedden
cc:
Mark Filiberto
Douglas Stewart<doug.a.stewart@intel.com>
Senior Attorney
[STAFF REPLY LETTER]
January 31, 2008
Response of the Office of Chief Counsel Division of Corporation Finance
Re: Intel Corporation Incoming letter dated January 4, 2008
The proposal asks the board to amend the "bylaws and any other appropriate
governing documents in order that there is no restriction on the shareholder
right to call a special meeting, compared to the standard allowed by applicable
law on calling a special meeting."
There appears to be some basis for your view that
Intel may exclude the proposal under rule 14a-8(i)(3) as vague and indefinite.
Accordingly, we will not recommend enforcement action to the Commission if Intel
omits the proposal from its proxy materials in reliance on rule 14a-8(i)(3). In
reaching this position, we have not found it necessary to address the
alternative basis for omission upon which Intel relies.
Sincerely,
/s/
Heather L. Maples
Special Counsel
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