SLB 14H

During the most recent proxy season, questions arose about the Division’s interpretation of Rule 14a-8(i)(9). In light of these questions, Chair Mary Jo White directed the Division to review the proper scope and application of the rule.2 As part of this review, we reviewed, among other things, Commission and Division statements and other materials, and considered approaches suggested by commenters.

In 1976, the Commission renumbered and amended the exclusion. As adopted, Rule 14a-8(c)(9) provided that management could omit a proposal and any statement in support thereof from its proxy statement and form of proxy “[i]f the proposal is counter to a proposal to be submitted by the management at the meeting.”4 The Commission stated in the adopting release that “subparagraph (c)(9) of the revised rule merely restates a ground for omission already set forth in the existing rule. That is, a proposal that is counter to a proposal to be presented by the management may be omitted from an issuer’s proxy materials.”5

In 1982, the Commission characterized the exclusion as one of the substantive bases under Rule 14a-8 designed to permit omission of a shareholder proposal that “constitute[s] an abuse of the security holder proposal process.”6

In 1998, the Commission revised Rule 14a-8 into its current Q&A, plain English format. In connection with these amendments, the Commission replaced the language in Rule 14a-8(c)(9) with Rule 14a-8(i)(9)’s current language, which allows the exclusion of a proposal that “directly conflicts with one of the company’s own proposals to be submitted to shareholders at the same meeting.”7 The Commission also added a note to the rule stating that a “company’s submission to the Commission under this section should specify the points of conflict with the company’s proposal.”8 In proposing this revision, the Commission stated that the amended rule would “reflect the Division’s long-standing interpretation permitting omission of a shareholder proposal if the company demonstrates that its subject matter directly conflicts with all or part of one of management’s proposals.”9 At adoption, the Commission clarified that “by revising the rule we do not intend to imply that proposals must be identical in scope or focus for the exclusion to be available.”10

Many of the Division’s response letters granting no-action relief under the exclusion have expressed the view that a shareholder proposal was excludable if including it, along with a management proposal, could present “alternative and conflicting decisions for the shareholders” and create the potential for “inconsistent and ambiguous results.”13 The response letters have used variations of this language for decades to articulate when a shareholder proposal may be excluded.14 This language focused on the potential for shareholder confusion and inconsistent mandates, instead of more specifically on the nature of the conflict between a management and shareholder proposal.

After reviewing the history of Rule 14a-8(i)(9) and based on our understanding of the rule’s intended purpose, we believe that any assessment of whether a proposal is excludable under this basis should focus on whether there is a direct conflict between the management and shareholder proposals. For this purpose, we believe that a direct conflict would exist if a reasonable shareholder could not logically vote in favor of both proposals, i.e., a vote for one proposal is tantamount to a vote against the other proposal. While this articulation may be a higher burden for some companies seeking to exclude a proposal to meet than had been the case under our previous formulation, we believe it is most consistent with the history of the rule and more appropriately focuses on whether a reasonable shareholder could vote favorably on both proposals or whether they are, in essence, mutually exclusive proposals.15

In considering no-action requests under Rule 14a-8(i)(9) going forward, we will focus on whether a reasonable shareholder could logically vote for both proposals. For example, where a company seeks shareholder approval of a merger, and a shareholder proposal asks shareholders to vote against the merger, we would agree that the proposals directly conflict. Similarly, a shareholder proposal that asks for the separation of the company’s chairman and CEO would directly conflict with a management proposal seeking approval of a bylaw provision requiring the CEO to be the chair at all times.

We will not, however, view a shareholder proposal as directly conflicting with a management proposal if a reasonable shareholder, although possibly preferring one proposal over the other, could logically vote for both. For example, if a company does not allow shareholder nominees to be included in the company’s proxy statement, a shareholder proposal that would permit a shareholder or group of shareholders holding at least 3% of the company’s outstanding stock for at least 3 years to nominate up to 20% of the directors would not be excludable if a management proposal would allow shareholders holding at least 5% of the company’s stock for at least 5 years to nominate for inclusion in the company’s proxy statement 10% of the directors. This is because both proposals generally seek a similar objective, to give shareholders the ability to include their nominees for director alongside management’s nominees in the proxy statement, and the proposals do not present shareholders with conflicting decisions such that a reasonable shareholder could not logically vote in favor of both proposals.

Similarly, a shareholder proposal asking the compensation committee to implement a policy that equity awards would have no less than four-year annual vesting would not directly conflict with a management proposal to approve an incentive plan that gives the compensation committee discretion to set the vesting provisions for equity awards. This is because a reasonable shareholder could logically vote for a compensation plan that gives the compensation committee the discretion to determine the vesting of awards, as well as a proposal seeking implementation of a specific vesting policy that would apply to future awards granted under the plan.

In the preceding examples, the board of directors may have to consider the effects of both proposals if both the company and shareholder proposals are approved by shareholders. We do not believe, however, that such a decision represents the kind of “direct conflict” the rule was designed to address.16

Commenters generally agreed that Rule 14a-8(i)(9) is designed to ensure that Rule 14a-8 is not used as a means to circumvent the Commission’s proxy rules governing solicitations,17 and suggested several alternatives for administering the exclusion going forward. We agree that proponents should not be able to use Rule 14a-8 to circumvent the proxy rules governing solicitations and believe that focusing on whether a reasonable shareholder could logically vote for both proposals effectively addresses such concerns.

Some commenters suggested that the Division should take the view that precatory proposals do not directly conflict with management proposals because they are not binding.18 We believe that a precatory shareholder proposal, while not binding, may nevertheless directly conflict with a management proposal on the same subject if a vote in favor is tantamount to a vote against management’s proposal. Other commenters suggested that the exclusion should not apply when a shareholder submits his or her proposal before the company approves its proposal.19 This approach would not necessarily prevent a shareholder from submitting a proposal opposing a management proposal, in contravention of the proxy rules governing solicitations. Finally, other commenters suggested that the Division either continue its historic application of the exclusion20 or adopt a broader, subject matter exclusion.21 We believe that these approaches do not take full account of the language of the exclusion because they may allow the exclusion of proposals that propose different means of accomplishing an objective, but do not directly conflict. In our view, granting no-action relief only if a reasonable shareholder could not logically vote in favor of both proposals is more appropriately rooted in the exclusion’s intended purpose and language, and better helps companies, proponents and the staff determine when two proposals “directly conflict.”22

In analyzing whether the proposal was excludable under Rule 14a-8(i)(7), the Third Circuit concluded that the proposal’s subject matter related to Wal-Mart’s ordinary business operations - specifically, “a potential change in the way Wal-Mart decides which products to sell.” This conclusion was the same as our conclusion when responding to Wal-Mart’s no-action request. We believe our analysis in this matter is consistent with the views the Commission has expressed on how to analyze proposals under the ordinary business exclusion, i.e., the analysis should focus on the underlying subject matter of a proposal’s request for board or committee review regardless of how the proposal is framed.26

The panel also considered whether the significant policy exception to the ordinary business exclusion applied. The majority opinion employed a new two-part test, concluding that “a shareholder must do more than focus its proposal on a significant policy issue; the subject matter of its proposal must ‘transcend’ the company’s ordinary business.”27 The majority opinion found that to transcend a company’s ordinary business, the significant policy issue must be “divorced from how a company approaches the nitty-gritty of its core business.”28 This two-part approach differs from the Commission’s statements on the ordinary business exclusion and Division practice.

In contrast, the concurring judge analyzed Rule 14a-8(i)(7) in a manner consistent with the approach articulated by the Commission and applied by the Division, including in Wal-Mart’s no-action request. Summarizing the Commission’s history on this exclusion, the judge noted that “whether a proposal focuses on an issue of social policy that is sufficiently significant is not separate and distinct from whether the proposal transcends a company’s ordinary business. Rather, a proposal is sufficiently significant ‘because’ it transcends day-to-day business matters.”29 The judge also explained that the Commission “treats the significance and transcendence concepts as interrelated, rather than independent.”30

Although we had previously concluded that the significant policy exception does not apply to the proposal that was submitted to Wal-Mart, we are concerned that the new analytical approach introduced by the Third Circuit goes beyond the Commission’s prior statements and may lead to the unwarranted exclusion of shareholder proposals. Whereas the majority opinion viewed a proposal’s focus as separate and distinct from whether a proposal transcends a company’s ordinary business, the Commission has not made a similar distinction. Instead, as the concurring judge explained, the Commission has stated that proposals focusing on a significant policy issue are not excludable under the ordinary business exception “because the proposals would transcend the day-to-day business matters and raise policy issues so significant that it would be appropriate for a shareholder vote.”31 Thus, a proposal may transcend a company’s ordinary business operations even if the significant policy issue relates to the “nitty-gritty of its core business.” Therefore, proposals that focus on a significant policy issue transcend a company’s ordinary business operations and are not excludable under Rule 14a-8(i)(7).32 The Division intends to continue to apply Rule 14a-8(i)(7) as articulated by the Commission and consistent with the Division’s prior application of the exclusion, as endorsed by the concurring judge, when considering no-action requests that raise Rule 14a-8(i)(7) as a basis for exclusion.