Rule text

• If I have complied with the procedural requirements, on what other bases may a company rely to exclude my proposal?
  
  ***
  
  12. Resubmissions:
  
  If the proposal deals with substantially the same subject matter as another proposal or proposals that has or have been previously included in the company's proxy materials within the preceding 5 calendar years, a company may exclude it from its proxy materials for any meeting held within 3 calendar years of the last time it was included if the proposal received:
  
  i. Less than 3% of the vote if proposed once within the preceding 5 calendar years;
  
  ii. Less than 6% of the vote on its last submission to shareholders if proposed twice previously within the preceding 5 calendar years; or
  
  iii. Less than 10% of the vote on its last submission to shareholders if proposed three times or more previously within the preceding 5 calendar years; and
                                                                    

1998 rule changes

• All of Rule 14a-8 was rewritten in a Plain English Q&A format
• Former Rule 14a-8(c)(12) was redesignated as
  Rule 14a-8(i)(12)

• Final release 34-40018 II
• Proposal release 34-39093 III.A

• SEC proposed to increase the resubmission thresholds under  former Rule 14a-8(c)(12) but didn't

• Final release 34-40018 §VI
• Proposal release 34-39093 III.E

For prior versions of the rule, see
Rule 14a-8 Historic Rule Changes

For summary and SEC releases, see
Rule 14a-8 Regulatory History and SEC Releases

SLB 14

• F.2   How does rule 14a-8i12 operate?
• F.3   Determining calendar years
• F.4   Counting votes
  _______________
• SLB includes examples where the submissions are not in consecutive years. It also provides that only votes for and against count in determining the percentages. Broker non-votes and abstentions do not count. There are rarely arguments as to the percentage of votes received with respect to a proposal, but often there is an argument as to whether a proposal is in fact substantially the same.

Excludable

• General Electric (Mahar)  12.20.07

• Kevin Mahar
• Adopt a policy to nominate one director candidate who is a non-executive retiree of the company
• Excludable per Rule 14a-8(i)(12)(ii)

Substantially different

• Republic New York Corp.  3.08.83

• Proposal to report on involvement in South Africa different from prior proposal to discontinue loans to Government of South Africa

• General Dynamics Corp.  3.13.85
• General Electric Co.  1.14.86
• Emerson Electric Co.  10.24.89

Not substantially different

• Merck  12.15.06  14a-8(i)(12)(ii)

• ...A shareholder proposal, which requests a report on the feasibility of amending this company's animal welfare policies to extend to contract laboratories, may be omitted from the company's proxy material under rule 14a-8(i)(12)(ii)

• Pilgrim's Pride  11.06.06  14a-8(i)(12)(i)

• ...A shareholder proposal, which requests that this company's board make available to shareholders details of its evaluation of controlled-atmosphere killing, may be omitted from the company's proxy material under rule 14a-8(i)(12)(i).
• Ethical treatment of animals PETA
• SEC concurs

• Barr Pharmaceuticals Inc.  9.25.06

• ...A shareholder proposal, which requests that this company's board adopt and post an animal welfare policy addressing the company's commitment to reducing, refining and replacing its use of animals in testing and research, and its commitment to implementing acceptable standards of care for animals used by the company and its independently retained laboratories, may be omitted from the company's proxy material under rule 14a-8(i)(12)(i).

• General Motors Corporation  3.01.04

• Proposal relating to board nominations was excludable because the issue had been submitted in previous proposals that were included in proxy materials and received less than 6% of the vote. Similarly, the staff allowed exclusion of a proposal requesting that the board amend the companys supplier code and purchase contracts to reflect implementation of a code of conduct based on ILO human rights standards because it had also been previously submitted and included in proxy materials, and had received less than 6% of the vote

• Lowes Companies  3.01.04

• A similar proposal to that in Saks Incorporated was found to be excludable because it had been submitted three times within the last five years and had received less than 10% of the vote. The staff also permitted exclusion of a proposal recommending that Dow Jones proxy statement contain information regarding its charitable donations program because it had received less than 3% of the vote when proposed once within the five previous calendar years

• Saks Incorporated  3.01.04

• Proposal urges this company's board to amend the company's supplier code and purchase contracts to reflect implementation of a code of conduct based on ILO human rights standards, establish an independent monitoring process to adhere to those standards, and report annually on adherence to that code

• Dow Jones & Company, Inc.  1.12.04

• Proposal recommends that company's proxy statement contain information regarding the company's charitable donations program

• Tyco International Ltd.  12.05.02

• Staff did not allow the company to exclude a proposal requesting that the board of directors adopt a policy of phasing out the manufacture of PVC-containing or phthalate-containing medical supplies where safe alternatives were available. The company claimed that substantially similar proposals had been voted on three times within the past five years and its last submission had received less than 10% of the vote. However, the first two proposals had been submitted for a vote in the same calendar year for the same annual meeting. Thus, the similar proposals had only been submitted twice in the past five years, and the second proposal had received more than 6% of the vote
• intention to co-sponsor the current proposal.

• Niagara Mohawk Holdings, Inc.  3.20.00

• The staff has ruled that a vote held at a predecessor company could not exclude a proposal where the successor company failed to demonstrate that the two entities were substantially identical

• General Electric Co.  1.29.99

• Proposal to withdraw from and decommission nuclear facilities was not substantially different
• A shareholder proposal, which requests a report examining the feasibility of this companys withdrawal from the promotion and production of new nuclear power reactors and the decommissioning of the companys reactors currently on line, may be omitted from the companys proxy material under rule 14a-8(i)(12)(ii). The staff particularly notes that the proposals submitted to votes in 1995 and 1996, when viewed together with their supporting statements, appear to focus on decommissioning reactors and halting the companys promotion of nuclear power.

• Great Lakes Chemical Corp.  2.22.96

• Proposal requesting that the board provide a comprehensive report on methyl bromide production was not substantially different
• Five shareholder proposals, requesting that this company's board of directors provide a comprehensive report on methyl bromide production, may be omitted from the company's proxy material under rule 14a-8(c)(12) as dealing with substantially the same subject matter as prior proposals, submitted at two meetings during the last five years, which received at the time of its latest submission less than 6% of the total number of votes cast.

• American Electric Power Co.  1.20.88

• Proposal appointing an acid rain review committee was not substantially different
• A shareholder proposal, which relates to this company's appointing an acid rain review committee of the board of directors to initiate hearings on acid rain, may be omitted from the company's proxy material under rule 14a-8(c)(12) where the proposal deals with substantially the same subject matters as proposals included in the company's 1987, 1986 and 1985 proxy material, and where the company represents that the 1987 proposal received 9.411% of the votes cast, which is less than the 10% required for resubmission under the rule.

Shareholder Access - Rule 14a8