CompanyName: Lear Corp.
Public Availability Date: January 25, 2008
Document Sections:INQUIRY LETTER
APPENDIX 1
APPENDIX 2
INQUIRY LETTER
STAFF REPLY LETTER
[INQUIRY LETTER]
January 16, 2008
BY FEDERAL EXPRESS
U.S. Securities and Exchange Commission
Division of Corporation Finance
Office of Chief Counsel
100 F Street, N.E.
Washington, D.C. 20549
Re: Lear Corporation; Commission File No. 1-11311 Exclusion of Shareholder
Proposals Pursuant to Rules 14a-8(e)(2) and/or 14a-8(i)(11)
Ladies and Gentlemen:
Our firm serves as counsel for Lear Corporation, a Delaware corporation ("Lear"
or the "Company"). The Company presently intends to file its definitive 2008
proxy statement and form of proxy (together, the "2008 Proxy Materials") on or
about March 17, 2008 and expects to post on the internet and/or mail the 2008
Proxy Materials to its stockholders on or about March 17, 2008. The Company's
annual meeting (the "2008 Annual Meeting") will be held on May 8, 2008.
Accordingly, pursuant to Rule 14a-8(j)(1) under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), we are submitting this letter on behalf
of Lear to the staff of the Division of Corporation Finance (the "Staff"). Given
the tardiness of the submission of the shareholder proposals discussed herein,
we would very much appreciate a response from the Staff on this no-action
request as soon as practicable, and in all cases no later than January 31, 2008,
so that Lear can meet its timetable in preparing the 2008 Proxy Materials.
On January 11, 2008, Lear received (i) a stockholder proposal regarding the
adoption of a majority vote requirement (the "Majority Vote Proposal") on behalf
of the Comptroller of the City of New York, William C. Thompson, Jr. (the
"Comptroller"), as the custodian and a trustee of the New York City Fire
Department Pension Fund and custodian of the New York City Board of Education
Retirement System, (ii) a stockholder proposal regarding the adoption of global
human rights standards (the "Rights Proposal") on behalf of the Comptroller, as
the custodian and a trustee of the New York City Employees' Retirement System
and (iii) a stockholder proposal regarding the adoption of procedures relating
to shareholder proposals supported by a majority of votes cast at an annual
meeting of shareholders (the "Majority Vote Protocol Proposal" and together with
the Majority Vote Proposal and the Rights Proposal, the "Proposals") on behalf
of the Comptroller, as the custodian and a trustee of the New York City
Teachers' Retirement System and the New York City Police Pension Fund. A copy of
(i) the Majority Vote Proposal and accompanying cover letter is attached as
Exhibit A, (ii) the Rights Proposal and accompanying cover letter is attached as
Exhibit B and (iii) the Majority Vote Protocol Proposal and accompanying cover
letter is attached as Exhibit C.
Subject to the Staff's response, Lear intends to exclude from its 2008 Proxy
Materials (i) the Proposals pursuant to Rule 14a-8(e)(2) of the Exchange Act, on
the basis that the Proposals were not submitted by the Company's properly
determined deadline for submitting shareholder proposals and/or (ii) the
Majority Vote Proposal pursuant to Rule 14a-8(i)(11) of the Exchange Act, on the
basis that the Majority Vote Proposal substantially duplicates another proposal
previously submitted to the Company by another proponent that will be included
in the 2008 Proxy Materials. We hereby request the Staff's concurrence that Lear
may exclude the Proposals and supporting statement pursuant to Rules 14a-8(e)(2)
and/or 14a-8(i)(11).
Rule 14a-8(j)(1) provides, "If the Company intends to exclude a proposal from
its proxy materials, it must file its reasons with the Commission no later than
80 calendar days before it files its definitive proxy statement and form of
proxy with the Commission.... The Commission staff may permit the company to
make its submission later than 80 days before the company files its definitive
proxy statement and form of proxy, if the company demonstrates good cause for
missing the deadline." Because Lear did not receive the Proposals from the
Comptroller until January 11, 2008, Lear is submitting this letter fewer than 80
calendar days before it plans to file the 2008 Proxy Materials. Once Lear
received the Proposals, it acted promptly to prepare and submit this letter to
the Staff. Accordingly, we respectfully request that the Staff, in the exercise
of its discretion under Rule 14a-8(j)(1), permit the Company to submit this
letter less than 80 calendar days before the anticipated filing date of its 2008
Proxy Materials.
Pursuant to Rule 14a-8(j), enclosed are six copies of this letter, together with
all attachments. By copy of this letter to the proponent in accordance with Rule
14a-8(j), Lear notifies the Comptroller of its intention to exclude the
Proposals (including the supporting statements) from its 2008 Proxy Materials.
I. Background
A. Annual Meetings and Deadlines
The Company opened its 2007 annual meeting of shareholders (the "2007 Annual
Meeting") on July 12, 2007, adjourned the 2007 Annual Meeting, and reconvened it
on July 16, 2007. Although the Company typically holds its annual meeting in May
each year, the 2007 Annual Meeting was held in July due to the consideration by
the Company's shareholders of a proposed merger of the Company with a subsidiary
of American Real Estate Partners, L.P. The Company plans to hold the 2008 Annual
Meeting on May 8, 2007. This date is more than 30 days from the date of the 2007
Annual Meeting. Pursuant to Rule 14a-8(e)(2), if the annual meeting of
shareholders "has been changed by more than 30 days from the date of the
previous year's meeting, then the deadline [for submitting shareholder
proposals] is a reasonable time before the company begins to print and mail its
proxy materials." Rule 14a-8(e)(1) further states that if a company "has changed
the date of its meeting for this year more than 30 days from last year's
meeting, you can usually find the deadline in one of the Company's quarterly
reports on Form 10-Q...."
In the 2007 proxy statement mailed to shareholders (the "2007 Proxy Statement"),
the Company stated the following with respect to the deadline for shareholder
proposals for the 2008 Annual Meeting:
"If the merger agreement is not adopted, stockholders who intend to present
proposals at the Annual Meeting of Stockholders in 2008 pursuant to Rule 14a-8
under the Securities Exchange Act of 1934 must send notice of their proposal to
us so that we receive it no later than January 24, 2008, assuming this proxy
statement is first released to stockholders on May 23, 2007. If the date of the
2008 Annual Meeting of Stockholders is changed by more than 30 days from the
date of the 2007 Annual Meeting, such notice must be received a reasonable time
before we begin to print and mail our proxy materials for the 2008 Annual
Meeting. Stockholders who intend to present proposals at the Annual Meeting of
Stockholders in 2008 other than pursuant to Rule 14a-8 must comply with the
notice provisions in our by-laws. The notice provisions in our by-laws require
that, for a proposal to be properly brought before the Annual Meeting of
Stockholders in 2008, proper notice of the proposal be received by us not less
than 120 days or more than 150 days prior to the first anniversary of the
mailing date of this proxy statement or, if the date of the 2008 Annual Meeting
of Stockholders is changed by more than 30 days from the date of the 2007 Annual
Meeting of Stockholders, proper notice must be received within ten days after we
publicly disclose the date of the 2008 meeting. Stockholder proposals should be
addressed to Lear Corporation, 21557 Telegraph Road, Southfield, Michigan 48033,
Attention: Corporate Secretary."
Section 2.4 of the By-Laws of the Company (the "By-Laws") provide the following:
"At an Annual Meeting of the stockholders, only such business shall be conducted
as shall have been brought before the meeting (i) by or at the direction of the
Board of Directors or (ii) by any stockholder of the Corporation who complies
with the notice procedures set forth in this Article II, Section 2.4. For
business to be properly brought before an Annual Meeting by a stockholder, the
stockholder must deliver written notice to, or mail such written notice so that
it is received by, the Secretary of the Corporation, at the principal executive
offices of the Corporation, not less than 120 or more than 150 days prior to the
first anniversary of the date of the Corporation's consent solicitation or proxy
statement released to stockholders in connection with the previous year's
election of directors or meeting of stockholders, except that if no Annual
Meeting of stockholders or election by consent was held in the previous year or
if the date of the Annual Meeting has been changed by more than 30 days from the
date of the previous year's meeting, a proposal shall be received by the
Corporation within 10 days after the Corporation has "publicly disclosed" the
date of the meeting in the manner provided in Article II, Section 2.3. above."
Section 2.3 of the By-Laws provides, "For purposes of these By-Laws, `publicly
disclosed' or `public disclosure' shall mean disclosure in a press release
reported by the Dow Jones News Service, Associated Press, or a comparable
national news service or in a document publicly filed by the Corporation with
the Securities and Exchange Commission."
Consistent with the disclosure contemplated by Rule 14a-8(e)(1), the Company
first publicly disclosed the date of the 2008 Annual Meeting and the deadline
for submitting shareholder proposals in its Form 10-Q for the quarterly period
ended September 29, 2007 (the "Form 10-Q"), which was filed with the Commission
on November 7, 2007. The Form 10-Q stated the following with respect to the 2008
Annual Meeting and submitting shareholder proposals:
"Deadline for Submission of Stockholder Proposals for 2008 Annual Meeting of
Stockholders: Lear currently expects to hold its 2008 Annual Meeting of
Stockholders on or about May 8, 2008, although such date has not yet been
formally approved by our board of directors. Stockholders who intend to present
proposals at that meeting pursuant to Rule 14a-8 under the Securities Exchange
Act of 1934 must send notice of their proposal to us so that we receive it in a
reasonable time before we begin printing and mailing the proxy statement and no
later than November 26, 2007. Stockholders who intend to nominate directors or
present proposals at that meeting other than pursuant to Rule 14a-8 must comply
with the notice provisions in our by-laws. Stockholder proposals should be
addressed to Lear Corporation, 21557 Telegraph Road, Southfield, Michigan 48033,
Attention: Secretary."
Despite the notice regarding the deadline for shareholder proposals provided by
the Company to shareholders in its 2007 Proxy Statement and the Form 10-Q and
the provisions of the By-Laws governing the submission of shareholder proposals,
the Comptroller submitted the Proposals to the Company on January 11, 2008,
which is 46 calendar days after the deadline for shareholder proposals disclosed
in the Form 10-Q.
B. Shareholder Proposal Regarding Majority Voting Previously Received by Lear
The Company received a shareholder proposal from Mr. John Chevedden on December
9, 2007 (the "Prior Proposal"), a copy of which, along with the accompanying
cover letter is attached as Exhibit D. The Company intends to include the Prior
Proposal in its 2008 Proxy Materials.
The Prior Proposal requests that Lear shareholders adopt the following
resolution:
"RESOLVED, Shareowners urge our company to take all steps necessary, in
compliance with the applicable law, to fully adopt simple majority vote
requirements in our Charter and By-laws. This includes an special solicitations
needed for adoption."
The broad language of this proposal requests that the Company remove
super-majority voting provisions from its Articles and By-Laws, which would
include such provisions applicable to the election of directors.
The Majority Vote Proposal received by the Company on January 11, 2008 requests
that Lear shareholders adopt the following resolution:
"Resolved: That the shareholders of Lear Corporation ("Company") hereby request
that the Board of Directors initiate the appropriate process to amend the
Company's governance documents (certificate of incorporation or bylaws) to
provide that director nominees shall be elected by the affirmative vote of the
majority of votes cast at an annual meeting of shareholders, with a plurality
vote standard retained for contested director elections, that is, when the
number of the director nominees exceeds the number of board seats."
II. Analysis
A. The Proposals were received after the deadline for submission of shareholder
proposals.
Rule 14a-8(e)(2) provides that if a company's annual meeting of shareholders
"has been changed by more than 30 days from the date of the previous year's
meeting, then the deadline [for submission of shareholder proposals] is a
reasonable time before the company begins to print and mail its proxy
materials." As described above in Section I of this letter, the Company's 2008
Annual Meeting will be held more than 30 days from the date of the previous
year's meeting. The Company established November 26, 2007 as the deadline for
shareholder proposals for the 2008 Annual Meeting, which the Company believes is
a reasonable deadline in accordance with Rule 14a-8(e)(2). The Company
calculated this date by assuming that it will file, print and mail such
materials approximately 45 days before the 2008 Annual Meeting. The Company then
used the normal deadline calculation of 120 calendar days before the date of the
Company's proxy statement release per Rule 14a-8(e)(2). The Company considers
this calculation reasonable. This date is consistent with the deadline for
submission of a shareholder proposal for a regularly scheduled annual meeting of
shareholders. This date provides (i) the Company with adequate time to review
and consider proposals submitted by shareholders, (ii) shareholders with an
opportunity to cure defects, (iii) the Company with the opportunity to timely
file no-action letter requests with the Staff and (iv) the opportunity for the
Staff to review and comment on such no-action requests. See, e.g., Ford Motor
Company (February 11, 2004).
Further, the Company clearly disclosed the deadline for submitting shareholder
proposals in the Form 10-Q, the manner expressly contemplated by Rule
14a-8(e)(1). The Company's disclosure of the date of the 2008 Annual Meeting and
deadline for submitting shareholder proposals contained in the Form 10-Q
provided the Company's shareholders with adequate notice and a reasonable time
to submit proposals to the Company. See, e.g., Ford Motor Company (February 11,
2004). Additionally, even if the Comptroller were not submitting his proposal
pursuant to Rule 14a-8, his timing would be inconsistent with the deadline
required by the Company's By-Laws for submission of shareholder proposals other
than Rule 14a-8 proposals. Although the provisions of the By-Laws are not
dispositive in this case, they further support the reasonableness of the
deadline selected by the Company and the concept that shareholders had notice of
what is a reasonable time for submissions to the Company in addition to the
express notice provided in the Form 10-Q.
Each of the Proposals is dated January 7, 2008 and was received by the Company
on January 11, 2008. Consequently, the Comptroller did not submit the Proposal
to the Company in a timely manner.
In no-action letters, the Staff has strictly construed the deadline for receipt
of shareholder proposals under Rule 14a-8 and has consistently taken the
position that it would not recommend enforcement action where registrants have
proposed to omit untimely shareholder proposals from their proxy materials. See,
e.g., Ford Motor Company (February 11, 2004); Smithfield Foods, Inc. (June 4,
2007); International Business Machines Corporation (December 5, 2006); American
Express Company (December 21, 2004). Although several of the no-action letters
cited in the preceding sentence involve deadlines for the submission of
shareholder proposals for regularly scheduled meetings (i.e., meetings scheduled
within 30 days of the prior year's meeting), the position established by the
Staff should remain the same in cases where an annual meeting has changed by
more than 30 days from the annual meeting held the previous year. The Company
clearly disclosed in the Form 10-Q the deadline for shareholder proposals for
the 2008 Annual Meeting, and the Company did not receive the Proposals by this
deadline. Thus, the Company should be permitted to omit the Proposals from its
2008 Proxy Materials in accordance with Rule 14a-8(e)(2) and the Staff's
long-standing position requiring timely submission of shareholder proposals.
B. The Majority Vote Proposal substantially duplicates the Prior Proposal, which
will be included in the 2008 Proxy Materials.
The Company believes that the Majority Vote Proposal is substantially
duplicative of the Prior Proposal, which will be included in the 2008 Proxy
Materials. Rule 14a-8(i)(11) provides that a company may exclude a shareholder
proposal "[i]f the proposal substantially duplicates another proposal previously
submitted to the company by another proponent that will be included in the
company's proxy materials for the same meeting." The Staff previously has stated
that a company cannot select between duplicate proposals but must include the
proposal first received in its proxy materials. See Constellation Energy Group,
Inc. (February 19, 2004); Wells Fargo & Company (February 5, 2003). Further,
Rule 14a-8(i)(11) was adopted, in part, to eliminate the possibility that
stockholders would have to consider two or more substantially identical
proposals submitted by proponents acting independently of each other. See
Release No. 34-12999 (November 22, 1976).
Rule 14a-8(i)(11) does not require that the Majority Vote Proposal be identical
to the Prior Proposal in order for the Company to exclude it from the 2008 Proxy
Materials. Rather, the Staff has indicated that proposals may be duplicative if
they share the same "principal thrust or focus" even if such proposals differ as
to terms and scope. See Qwest Communications International Inc. (March 8, 2006)
(proposal requesting that the company amend its governance documents to provide
for a majority voting standard in director elections, with a plurality vote
standard retained in the case of contested director elections was substantially
duplicative of a proposal to amend the company's corporate governance documents
to provide for a majority vote standard in director elections); Time Warner Inc.
(March 3, 2006) (proposal requesting that the company amend its organizational
documents to remove certain provisions requiring an 80% shareholder vote to
amend such company's bylaws was substantially duplicative of a proposal to
implement a simple majority voting standard on all issues submitted to a
shareholder vote); Comcast Corporation (March 22, 2005) (proposal requesting
that the company's board of directors amend its charter to require that the
chairman of the board be an independent director who has not previously served
as an executive officer of the company was substantially duplicative of a
proposal requesting that the company's board of directors adopt a resolution
requiring that the chairman of the board serve in that capacity only and have no
management duties, titles or responsibilities); The Home Depot (February 28,
2005) (proposal requesting that the company's compensation committee adopt a
policy that a significant portion of restricted stock and deferred stock units
granted to senior executives require the achievement of performance goals as a
prerequisite to vesting was substantially duplicative of a proposal requesting
that the compensation committee adopt a performance and time-based restricted
share grant program for senior executives that included specific time- and
performance-based vesting features). Further, while Rule 14a-8(i)(11) protects
shareholders from the confusion caused by substantially duplicative proposals,
it also protects a company's board of directors from being placed in a position
where it cannot effectively consider or implement the shareholders' intent
because the relevant proposals request different actions by the Company. See,
e.g., Monsanto Company (February 7, 2000) (allowing the exclusion of a
substantially duplicative proposal to de-classify the board of directors, the
Staff stated that "approval of both proposals would require the board to choose
between an annual and triennial timetable for election of candidates" if
shareholders approved both proposals).
The Majority Vote Proposal substantially duplicates the Prior Proposal because
the principal thrust and focus of each proposal is to adopt a majority voting
standard. The language of the Prior Proposal is broader than the Majority Vote
Proposal as it would apply a majority voting standard to all matters where a
super-majority voting standard currently exists in the Company's certificate of
incorporation (the "Certificate") and By-Laws, including director elections.
Further, the supporting statement included in the Prior Proposal indicates that
the proponent intends for director elections to be included in the scope of the
Prior Proposal. Although the Majority Vote Proposal applies only to director
elections, the principal goal of the Majority Vote Proposal would be
accomplished if shareholders were to adopt the Prior Proposal.
While the Majority Vote Proposal includes a provision that would allow plurality
voting in the case of contested directions, the Staff previously has found
proposals duplicative when one proposal requests the implementation of a
majority voting standard in director elections and retains plurality voting in
the case of contested elections and another proposal requests the implementation
of majority voting without such provision for plurality voting in contested
elections. See, e.g., Allegheny Energy, Inc. (December 20, 2006); Qwest
Communications International Inc. (March 8, 2006). Regardless of this minor
difference in the scope of the proposals, the principal thrust and focus of both
proposals, with respect to director elections, is to implement majority voting.
Additionally, inclusion of both the Majority Vote Proposal and the Prior
Proposal in the 2008 Proxy Materials could result in requiring contradictory
action by the Company's board of directors. For example, if the Company were to
include both proposals and shareholders adopted one proposal but rejected the
other, the board of directors of the Company would be unable to implement the
shareholders' intent with respect to director elections because in one instance
shareholders would have approved majority voting for director elections and in
the other they would have rejected it.
With respect to the differences in the implementation procedures included in the
Majority Vote Proposal and the Prior Proposal, these minor differences do not
change the principal thrust and focus of the two proposals. The Prior Proposal
requests that the Company "take all steps necessary... to fully adopt simple
majority vote requirements in our Charter and By-laws." The Majority Vote
Proposal requests that the Company "initiate the process to amend the Company's
governance documents (certificate of incorporation or bylaws)" to provide a
majority voting standard in director elections. Regardless of these minor
differences in implementation, the result would be to include a majority voting
standard in the Certificate and/or By-Laws.
Consistent with the Staff's previous interpretation of Rule 14a-8(i)(11), the
Company believes the Majority Vote Proposal is duplicative of the Prior
Proposal, which the Company will include in its 2008 Proxy Materials.
III. Conclusion
For the reasons cited above, we respectfully request that the Staff confirm, at
its earliest convenience, that it will not recommend any enforcement action if
Lear excludes the Proposals from its 2008 Proxy Materials for the 2008 Annual
Meeting in reliance on Rule 14a-8(e)(2) (proposal not submitted by reasonably
determined deadline) and/or, with respect to the Majority Vote Proposal only,
Rule 14a-8(i)(11) (proposal substantially duplicative of a proposal that will be
included in the proxy materials). Given the tardiness of the submission of the
Proposals, we would very much appreciate a response from the Staff on this
no-action request as soon as practicable, and in all cases no later than January
31, 2008, so that Lear can meet its timetable in preparing the 2008 Proxy
Materials.
If the Staff disagrees with the conclusions in this letter regarding the
exclusion of the Proposals and respective supporting statements, or if any
additional submissions are desired in support of the positions set forth above,
I would appreciate an opportunity to speak with you by telephone prior to the
issuance of a written response. If you have any questions regarding this
request, or need any additional information, please call the undersigned at
(312) 558-5723.
Please acknowledge receipt of this letter and its enclosures by date-stamping
one of the enclosed copies of this letter and returning it to me in the enclosed
envelope.
Sincerely,
/s/
Bruce A. Toth
cc: Kenneth B. Sylvester, Assistant Comptroller for Pension Policy, The City of
New York Officer of the Comptroller, Bureau of Asset Management (w/encl.) (via
email and federal express)
Terrence B. Larkin, Senior Vice President, General Counsel and Corporate
Secretary of Lear Corporation (w/encl.)
[APPENDIX 1]
January 7, 2008
Mr. Daniel A. Ninivaggi
Senior Vice President, Secretary and General Counsel
Lear Corporation
21557 Telegraph Road
Southfield, MI 48034
Dear Mr. Ninivaggi:
I write to you on behalf of the Comptroller of the City of New York, William C.
Thompson, Jr. The Comptroller is the custodian and a trustee of the New York
City Fire Department Pension Fund, and custodian of the New York City Board of
Education Retirement System (the "Systems"). The Systems' boards of trustees
have authorized the Comptroller to inform you of their intention to present the
enclosed proposal for the consideration and vote of stockholders at the
company's next annual meeting.
I, therefore, offer the enclosed proposal for the consideration and vote of
shareholders at the company's next annual meeting. It is submitted to you in
accordance with Rule 14a-8 of the Securities Exchange Act of 1934, and I ask
that it be included in the company's proxy statement.
Letters from The Bank of New York certifying the Systems' ownership, for over a
year, of shares of Lear Corporation, Inc. common stock are enclosed. Each System
intends to continue to hold at least $2,000 worth of these securities through
the date of the company's next annual meeting.
We would be happy to discuss the proposal with you. Should the Board of
Directors decide to endorse its provision as corporate policy, we will withdraw
the proposal from consideration at the annual meeting. If you have any questions
on this matter, please feel free to contact me at (212) 669-2013.
Very truly yours,
/s/
Kenneth B. Sylvester
Enclosures
[APPENDIX 2]
Director Election Majority Vote Standard Proposal
Submitted by William C. Thompson, Jr., Comptroller, City of New York, on behalf
of the Boards of Trustees of the New York City Fire Department Pension Fund and
New York City Board of Education Retirement System
Resolved: That the shareholders of Lear Corporation ("Company") hereby request
that the Board of Directors initiate the appropriate process to amend the
Company's governance documents (certificate of incorporation or bylaws) to
provide that director nominees shall be elected by the affirmative vote of the
majority of votes cast at an annual meeting of shareholders, with a plurality
vote standard retained for contested director elections, that is, when the
number of director nominees exceeds the number of board seats.
Supporting Statement:
In order to provide shareholders a meaningful role in director elections, our
company's director election vote standard should be changed to a majority vote
standard. A majority vote standard would require that a nominee receive a
majority of the votes cast in order to be elected. The standard is particularly
well- suited for the vast majority of director elections in which only board
nominated candidates are on the ballot. We believe that a majority vote standard
in board elections would establish a challenging vote standard for board
nominees and improve the performance of individual directors and entire boards.
Our Company presently uses a plurality vote standard in all director elections.
Under the plurality vote standard, a nominee for the board can be elected with
as little as a single affirmative vote, even if a substantial majority of the
votes cast are "withheld" from the nominee.
In response to strong shareholder support for a majority vote standard in
director elections, companies are increasingly adopting a majority vote standard
in company by-laws. Additionally these companies have adopted director
resignation policies in their bylaws or corporate governance policies to address
post-election issues related to the status of director nominees that fail to win
election. Other companies have responded only partially to the call for change
by simply adopting post-election director resignation policies that set
procedures for addressing the status of director nominees that receive more
"withhold" votes than "for" votes. At the time of the submission of this
proposal, our Company and its board had not taken either action.
We believe the critical first step in establishing a meaningful majority vote
policy is the adoption of a majority vote standard in Company governance
documents. Our Company needs to join the growing list of companies that have
taken this action. With a majority vote standard in place, the board can then
consider action on developing post election procedures to address the status of
directors that fail to win election. A combination of a majority vote standard
and a post-election director resignation policy would establish a meaningful
right for shareholders to elect directors, while reserving for the board an
important post- election role in determining the continued status of an
unelected director. We feel that this combination of the majority vote standard
with a post-election policy represents a true majority vote standard.
[INQUIRY LETTER]
January 24, 2008
BY FEDERAL EXPRESS
U.S. Securities and Exchange Commission
Division of Corporation Finance
Office of Chief Counsel
100 F Street, N.E.
Washington, D.C. 20549
Re: Lear Corporation; Commission File No. 1-11311; Withdrawal of Shareholder
Proposals submitted on behalf of the Comptroller of the City of New York
Ladies and Gentlemen:
In a letter dated January 16, 2008 (the "No-Action Request"), our firm, on
behalf of Lear Corporation, a Delaware corporation ("Lear" or the "Company"),
requested that the staff of the Division of Corporation Finance of the United
States Securities and Exchange Commission concur that pursuant to Rules
14a-8(e)(2) and/or 14a-8(i)(11) Lear could properly exclude from its proxy
materials for its 2008 annual meeting of shareholders (i) a stockholder proposal
regarding the adoption of a majority vote requirement (the "Majority Vote
Proposal") submitted on behalf of the Comptroller of the City of New York,
William C. Thompson, Jr. (the "Comptroller"), as the custodian and a trustee of
the New York City Fire Department Pension Fund and custodian of the New York
City Board of Education Retirement System, (ii) a stockholder proposal regarding
the adoption of global human rights standards (the "Rights Proposal") submitted
on behalf of the Comptroller, as the custodian and a trustee of the New York
City Employees' Retirement System and (iii) a stockholder proposal regarding the
adoption of procedures relating to shareholder proposals supported by a majority
of votes cast at an annual meeting of shareholders (the "Majority Vote Protocol
Proposal" and together with the Majority Vote Proposal and the Rights Proposal,
the "Proposals") submitted on behalf of the Comptroller, as the custodian and a
trustee of the New York City Teachers' Retirement System and the New York City
Police Pension Fund.
Attached as Exhibit A is a letter submitted on behalf of the Comptroller to Lear
dated January 23, 2008 stating that the Comptroller voluntarily withdrawals the
Proposals on behalf of the shareholders listed above. In reliance on this
letter, we hereby withdrawal the No-Action Request. If you have any questions
regarding this matter, or need any additional information, please call the
undersigned at (312) 558-5723.
Sincerely,
/s/
Bruce A. Toth
cc: Kenneth B. Sylvester, Assistant Comptroller for Pension Policy, The City of
New York Office of the Comptroller, Bureau of Asset Management (w/encl.)
Millicent Budhai, Director of Corporate Governance, The City of New York Office
of the Comptroller
Terrence B. Larkin, Senior Vice President, General Counsel and Corporate
Secretary of Lear Corporation (w/encl.)
[STAFF REPLY LETTER]
January 25, 2008
Bruce A. Toth
Winston & Strawn LLP
35 West Wacker Drive
Chicago, IL 60601-9703
Re: Lear Corporation
Dear Mr. Toth:
This is in regard to your letter dated January 24, 2008 concerning the
shareholder proposals submitted by the New York City Fire Department Pension
Fund, the New York City Board of Education Retirement System, the New York City
Employees' Retirement System, the New York City Teachers' Retirement System, and
the New York City Police Pension Fund for inclusion in Lear's proxy materials
for its upcoming annual meeting of security holders. Your letter indicates that
the proponents have withdrawn the proposals, and that Lear therefore withdraws
its January 16, 2008 request for a no-action letter from the Division. Because
the matter is now moot, we will have no further comment.
Sincerely,
/s/
Heather L. Maples
Special Counsel
cc: Millicent Budhai
Director of Corporate Governance
The City of New York
Office of the Comptroller
1 Centre Street
New York, NY 10007-2341
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