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Substantially implemented
Rule 14a-8(i)(10)
Regulatory History
2007 - 2008 No-Action Letters
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 Excludable
- Jerry Tomasovic
- That director meeting attendance records be
displayed in the "Notice of Annual Meeting of Stockholders' report."
- Kenneth Steiner
- That company adopt simple majority voting in its
charter and by-laws
- John Chevedden
- To remove supermajority vote requirements
- William Steiner
- Amend by-laws to give holders of at least 25% of
the outstanding common shares the power to call a special shareholder meeting
- Nick Rossi
- Require that any future poison pill be subject to
a shareholder vote as soon as possible
- Excludable per Rule 14a-8(i)(10)
- Company also invoked Rule 14a-8(i)(3)
- That
the company engage an investment bank to explore opportunities to
increase shareholder value, including the sale of the company
- Excludable per Rule 14a-8(i)(10)
- Proposal that the board disclose information on
the companys relationship with its executive compensation consultants was
excludable because the company was required to provide such information under
the compensation committee disclosure requirements of Item 407e of Regulation
S-K
- A demonstration that a proposal has been adopted but then could not be
implemented will not render the proposal moot under this provision
Not
excludable
- Chris Rossi
- Requests that by-laws be amended to recoup all
unearned incentive bonuses or other incentive payments to senior executives to
the extent that their corresponding performance targets were later reasonably
determined not to have been achieved or have resulted from error
- Not excludable per Rule 14a-8(i)(10)
- John Chevedden
- Redeem the company's poison pill or subject it to
a shareholder vote
- Not excludable per Rule 14a-8(i)(10)
- Company did not file its statement of objections
to including the proposal at least 80 days before the date on which it will file
definitive proxy material as required by rule 14a-8(j)(1)
- Staff wouldn't waive the 80-day requirement
- Establish a board committee to review the
company's policies on human rights in the U.S. and
worldwide
- Not excludable per Rule
14a-8(i)(3), Rule 14a-8(i)(10) nor Rule 14a-8(i)(7)
- Implement policies to
help protect freedom of access to the Internet
- Not excludable per Rule 14a-8(i)(3), Rule
14a-8(i)(6), Rule 14a-8(i)(7) nor Rule 14a-8(i)(10)
Withdrawn
- Sisters of Charity, et al
- Adopt principles for comprehensive health care
reform
- Trinity Health
- Adopt principles for comprehensive health care
reform
- Free Enterprise Action Fund
- Re: political contributions
- Thomas Strobhar
- Re: charitable contributions
- Company invoked Rule 14a-8(i)(10)
- New York City Pension Funds
- Re: sustainability report
- Company also invoked Rule 14a-8(i)(10)
- New York City Employees' Retirement System
- Adopt a
revised code of conduct based on International Labor Organization's (ILO) principles
- Company invoked Rule 14a-8(i)(7) and
Rule 14a-8(i)(10)
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Select No-Action Letters
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Excludable
- Proposal that the board add a provision to the
companys charter or bylaws to redeem any current or future poison pill unless
submitted to a stockholder vote could be omitted as being substantially
implemented under Rule 14a-8i10 due to a similar policy that had been adopted by
the board in May 2006 when the company had terminated its existing stockholder
rights agreement
- Proposal requesting that the company disclose
social, environmental and economic performance by issuing annual sustainability
reports could be excluded, because the company had successfully demonstrated
that it published a Corporate Responsibility Report that was updated annually
and provided information and addressed company performance in the areas
requested in the proposal
- Proposal that requested that the board seek
shareholder approval for future "golden parachute" arrangements with senior
executives was allowed to be omitted
- Proposal to establish a subcommittee to develop
criteria for the acceptance and execution of military contracts was moot where
company represented that the proposal had been "substantially implemented" by
existing committees
- Proposal to require report of officer and
director indemnification payments moot where no payments were made
- The staff reconsiders its position taken in a
letter publicly available 7.22.87, which stated that a shareholder
proposal, relating to the indemnification of the company and its directors, may
not be omitted in its entirety under rules 14a-8(c)(1), 14a-8(c)(2),
14a-8(c)(3), 14a-8(c)(6), 14a-8(c)(7), 14a-8(c)(9) and (c)(13). The staff, in
the July 22.87 letter, stated that certain parts of the proposal and
supporting statement may be omitted under certain of the rules. The staff, after
considering the company's representation that it is preparing to disclose in its
proxy statement the amount of all indemnification payments made by the company
and its principal subsidiary during 1986 and the first half of 1987, states that
the proposal may be omitted under rule 14a-8(c)(10)
- Proposal to require submission of auditors
selection for shareholder ratification rendered moot where policy had already
been adopted by directors
Not
excludable
- Proposal to report on
the practicality of requiring suppliers to phase in controlled atmosphere
killing was not excludable, even though PETA had withdrawn the proposal two
years in a row
- Proposal to create a report on issues related to
political contributions was not excludable
- Proposal to recoup all unearned incentive bonuses of senior executives
was not excludable, where the company had argued that a variety of its
compensation structures, including vesting provisions, already had the
same effect
- Proposal that the CEO's salary must be approved by at least three-quarters
of the independent directors was not excludable, in spite of the companys
arguments that its compensation committee was substantially the same
- Proposal to separate the roles of the CEO and
chairman in order to allow for an independent director to serve was not
excludable, despite the companys requirement that it must have either an
independent chairman or an independent lead director
- Proposal re: executive compensation
- Company already ties bonuses to targets
- SEC fails to concur
- 2006 proxy statement
- Proposal re: executive compensation
- Vague, hence materially false or misleading
- SEC fails to concur
-
2006 proxy statement
- Proposal requesting board to prepare a report on
the potential environmental damage that would result from drilling for
hydrocarbons in certain protected areas, despite companys arguments that it had
substantially implemented this proposal through its existing practices as
disclosed in its Corporate Citizenship Report and new material on its website
responsive to the subject matter of the proposal
- Proposal that board of directors take necessary
steps for a simple majority vote to apply on all issues subject to a shareholder
vote was found to be not excludable, despite companys arguments that the only
supermajority voting provision in its governing documents was for a series of
preferred stock which had been fully redeemed
- 2006 proxy statement:
Proposal
3 Majority vote
- Proposal to amend
company's by-laws to require redemption of any future or current poison pill
unless it is approved by the company's shareholders, may not be omitted from the
company's proxy material under rule 14a-8(i)(10)
- Proposal for majority voting
- The staff determined that the company could not
exclude a proposal seeking to establish majority voting for the election of
directors. The company argued that it had substantially implemented the proposal
to initiate the appropriate process to amend the Companys corporate documents
certificate of incorporation or bylaws to provide that directors shall be
elected by the affirmative vote of the majority of votes cast at an annual
meeting of shareholders. The staff declined to concur on the basis of Hewlett-
Packards existing voluntarily-adopted Pfizer-like policy requiring that a
director-nominee submit his or her resignation if he or she receives more votes
withheld than votes in favor of his or her election
- 2006 proxy statement: Proposal 4
- Shareholder proposal in question provided that
any future poison pill adopted by the companys board of directors be either
redeemed or put to a shareholder vote within 4 months of its adoption. Counsel
for the company argued that the company did not then have, and had never had, a
shareholder rights plan. Also, as a result of a prior years shareholder
proposal submitted and voted upon by the companys shareholders at its annual
meeting in 2004, the board had adopted a Rights Plan Policy, which stated that
no shareholder rights plan would be adopted unless approved by shareholders in
advance or a majority of the independent directors determines that it is in the
best interests of the companys shareholders to adopt the plan without a
shareholder vote. Despite these arguments, the staff stated that the proposal
could not be omitted from the companys proxy statement under Rule 14a-8i10
- Proposal to tie stock compensation awards granted
to senior executives to achievement of performance goals
- Proposal that a committee of independent directors oversee committee
examining AIGs sales practices and report its findings to shareholders
- Proposal that the board of directors prepare a
report for shareholders describing progress made toward the development and
implementation of a human rights policy
- Proposal urging the board to adopt a policy
recognizing the cost of employee and director stock options could not be
excluded, despite the companys contentions that it had substantially
implemented the proposal since the Financial Accounting Standards Board had
planned to require companies to expense stock options in the near future
- Proposal requesting that the company implement
rules to end animal testing for pet foods was not excludable despite arguments
that two of the four actions requested had already been implemented by the
company
- Proposal requesting that the board adopt a policy
that a significant portion of future stock option grants to senior executives be
performance-based was not excludable
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Related Topics
SEC_CODE_REF_0090001192884
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