Question 10:  What procedures must the company follow if it intends to exclude my proposal?

• 1. 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 company must simultaneously provide you with a copy of its submission. 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.
  
• 2. The company must file six paper copies of the following:
  
  i. The proposal;
  
  ii. An explanation of why the company believes that it may exclude the proposal, which should, if possible, refer to the most recent applicable authority, such as prior Division letters issued under the rule; and
  
  iii. A supporting opinion of counsel when such reasons are based on matters of state or foreign law.                                                                    

SLB 14B - Section D  2004

• Text

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• SLB 14B provides that if a company fails to comply with the 80-day requirement and does not receive a waiver from the SEC staff, the staff will not require the company to wait the full 80-day period following submission of the no-action request. In those instances, the SEC staff generally will consider the merits of a request to exclude and will communicate its conclusions to the company and the shareholder proponent, while simultaneously advising the parties of its view that the company has not followed the appropriate procedures under Rule 14a-8.
• SLB 14B makes it clear that the SEC staff reserves the right to decline to respond to a Rule 14a-8 request if the company does not comply with the 80-day requirement and cannot demonstrate "good cause" for a waiver of the requirement.
• The bulletin also provides that the most common basis for a companys showing of "good cause" and securing a waiver of this requirement is where the shareholder proposal was not submitted timely and the company did not receive the proposal until after the 80-day deadline had passed.

SEC granted waiver

• CV Therapeutics  5.24.04

• Waivers were granted per Rule 14a-8(j) where the proposal was received by the company less than 80 days prior to the planned filing date

• Company request   SEC response

• Time Warner  3.22.04

• Waivers were granted per Rule 14a-8(j) where the proposal was received by the company less than 80 days prior to the planned filing date

• Company request   SEC response

• Intel  3.05.04

• Waivers were granted per Rule 14a-8(j) where the proposal was received by the company less than 80 days prior to the planned filing date
• Company request   SEC response

• Continental Airlines   1.27.04

• Waiver granted where the company moved the date of its annual shareholders meeting forward but decided not to change the proposal deadline even though the date was within the 80-day window
• Company request   SEC response

• Monsanto Company  11.26.03

• Waiver granted where company changed its fiscal year, notified the shareholders of the new proposal submission deadline, and received the proposal less than 80 days prior to the new filing deadline
• Company request   SEC response

• Mentor Income Fund  9.07.00

• Waiver granted where a company rescheduled meeting
• Company request   SEC response

• Phillips-Van Heusen  4.21.00

• Company missed the deadline because its compensation committee could not consider the proposal and related compensation matters without rescheduling to a time when relevant data would not be available
• Company request   SEC response

SEC didn't grant waiver

• Oshkosh Truck  11.29.07 

• 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
• Company request   SEC response

• Fonix  11.27.07

• Andrew Marowitz
• Proposal to nominate an individual to the board of directors
• Excludable per Rule 14a-8(i)(8) as relating to an election to the company's board
• Company also invoked Rule 14a-8(i)(3)
• 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

• Company request   SEC response

• SciClone Pharmaceuticals   4.14.05

• Staff wouldn't waive the 80-day requirement
• Company request   SEC response

• Walgreen 11.02.99

• Waiver not granted
• A shareholder proposal, which recommends that this company's board implement a confidential voting policy, may not be omitted from this company's proxy material in reliance upon rule 14a-8(i)(10)

• Company request   SEC response

• Georgia Pacific  3.05.99

• Waiver not granted
• A revised shareholder proposal, which requests that this companys board of directors redeem the shareholder rights previously issued unless their issuance is approved by shareholders, may not be omitted from the companys proxy material under rule 14a-8(e)(2)
• Company request   SEC response

Shareholder Access - Rule 14a8