Rule 14a-8(e) — former Rule 14a-8(a)(3)

Question 5: What is the deadline for submitting a proposal?

(1) If you are submitting your proposal for the company's annual meeting, you can in most cases find the deadline in last year's proxy statement. However, if the company did not hold an annual meeting last year, or 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 (§ 249.308a of this chapter) or 10-QSB (§ 249.308b of this chapter), or in shareholder reports of investment companies under § 270.30d-1 of this chapter of the Investment Company Act of 1940. In order to avoid controversy, shareholders should submit their proposals by means, including electronic means, that permit them to prove the date of delivery.

(2) The deadline is calculated in the following manner if the proposal is submitted for a regularly scheduled annual meeting.

The proposal must be received at the company's principal executive offices not less than 120 calendar days before the date of the company's proxy statement released to shareholders in connection with the previous year's annual meeting. However, if the company did not hold an annual meeting the previous year, or if the date of this year's annual meeting has been changed by more than 30 days from the date of the previous year's meeting, then the deadline is a reasonable time before the company begins to print and mail its proxy materials. (3) If you are submitting your proposal for a meeting of shareholders other than a regularly scheduled annual meeting, the deadline is a reasonable time before the company begins to print and mail its proxy materials.

§ 11.01 Background of the Exclusion

§ 11.01[A] History of the Exclusion

In 1942 when the rule was first adopted, a proponent was required to provide notice of his intent to make a proposal a "reasonable time" before the meeting at which the proposal would be presented. At that time, the SEC staff's position was that a submission within 30 days before the date that proxy material had been released for the prior year's meeting was not prima facie unreasonable.[fn1] In 1954, the SEC extended the period so that a submission 60 days in advance of the date on which the proxy material had been released for the prior year's meeting was not prima facie unreasonable.[fn2] In 1972, the SEC amended the provision to extend the deadline to 70 days.[fn3] In 1976, the SEC again amended the provision to extend the deadline to 90 days. In addition, the SEC adopted a "reasonable time" deadline for annual meetings whose dates were moved more than 30 days from the corresponding date of the prior year's meeting.[fn4]

In 1983, the SEC amended the provision to extend the deadline to 120 days. The SEC explained the reasoning behind the change as follows:

The Commission believes such changes could benefit both issuers and proponents and make the staff's processing of no-action requests under the rule more efficient. One of the most frequently voiced complaints from issuers is that with the increased number and complexity of security holder proposals and the longer lead time necessary for printing proxy materials, issuers frequently have as little as 10 days between the last date for submission of proposals and the filing date specified in Rule 14a-8(d) for submitting objections to proposals. This limited period of time is proving inadequate for issuers to consider the security holder submissions and to prepare objections where appropriate. Moreover, the increased number of proposals and reductions in the Commission staff available to process contested security holder proposals have made it difficult for the staff to provide timely responses to issuers' letters submitted pursuant to Rule 14a-8(d).[fn5]

[fn1] Exchange Act Release No. 3347, 1942 SEC LEXIS 44 (Dec. 18, 1942).

[fn2] Exchange Act Release No. 4979, 1954 SEC LEXIS 38 (Jan. 6, 1954).

[fn3] Exchange Act Release No. 9784, 1972 SEC LEXIS 155 (Sept. 22, 1972)

[fn4] Exchange Act Release No. 12,999, 10 SEC Dock. 1006, 1008-09 (1976).

[fn5] Exchange Act Release No. 20,091, 1983 SEC LEXIS 1011 (Aug. 16, 1983).

§ 11.01[B] Purpose of the Exclusion

The SEC imposes a submission deadline because companies need sufficient time to seek no-action relief and still be able to print and deliver proxy statements and conduct their shareholders' meetings in accordance with the timetables for delivering meeting notices set by state law.[fn6] As individual share ownership has proliferated and proposals have also become more complex, the logistics of delivering proxy materials have become more difficult. The SEC recognized this difficulty by lengthening the deadline several times between 1972 and 1983.

[fn6] See Exchange Act Release No. 19,135 1982 SEC LEXIS 691 (Oct. 14, 1982).

§ 11.02 Application of the Exclusion

§ 11.02[A] Identifying the Key Issues

In most cases, the application of this exclusion is straightforward since the SEC staff applies the 120-day deadline strictly. Interpretive issues usually arise only if the meeting date is moved and the deadline becomes a more subjective "reasonableness" test.

§ 11.02[B] Disclosure of Deadline in SEC Filings

Under Rule 14a-5(e), a company must disclose in its proxy statement the date by which proposals must be submitted to the company to be considered for inclusion in connection with the next annual meeting. If the company changes the date of its next shareholders' meeting by more than 30 calendar days from the date of the annual meeting to which the proxy statement relates, Rule 14a-5(f) requires the company to disclose the new proposal submission deadline in Item 5 of its next quarterly report on Form 10-Q or Form 10-QSB, or, if this is impracticable, by any means reasonably calculated to inform shareholders.

EXAMPLE:

In 3Com Corporation,[fn7] the company disclosed in its proxy statement a submission deadline that was two months later than the true deadline calculated in accordance with Rule 14a-8(e)(2). As a result, the company received several shareholder proposals after the provision's 120-day deadline but before the deadline erroneously disclosed by the company. The staff required the company to include the proposals because the company had been responsible for the error.

[fn7] 2000 SEC No-Act. LEXIS 802 (Aug. 15, 2000).

§ 11.02[C] Applicability of Advance Notice Bylaw Provisions

The deadlines required by advance notice provisions of a company's bylaws or charter do not affect the deadlines for proposals submitted under Rule 14a-8. Companies should take care to disclose clearly in their proxy statements how these deadlines differ.

EXAMPLE:

In CNS, Inc.,[fn8] the company successfully excluded a proposal despite a dispute over the disclosure in the company's proxy materials regarding the deadline. The proponent stated that he had relied on the information that the company disclosed under a caption of "Stockholder Proposals" in which the company provided both the deadlines for shareholder proposals and for proposals received outside Rule 14a-8. This disclosure stated: "[S]uch proposal, in order to be included in the proxy statement, must be received at the Company's office at P.O. Box 39802, Minneapolis, Minnesota, 55439 by November 19, 1999. In addition, if the company receives notice of a stockholder proposal after January 15, 2000, such proposal will be considered untimely pursuant to rules 14a-4 and 14a-5(e) and the persons named in the proxies solicited by the Board of Directors of the Company may exercise discretionary voting power with respect to such proposal."

[fn8] 2000 SEC No-Act. LEXIS 403 (Mar. 9, 2000).

§ 11.02[D] Different Methods to Submit Proposals

Until 1998, the SEC recommended in a Note to Rule 14a-8 — but did not require — that proponents submit their proposals by certified mail-return receipt requested. In 1998, the SEC deleted this Note in recognition that electronic communications have become more popular, particularly the submission of proposals by facsimile.

Today, nearly all proposals are submitted by paper or facsimile to companies, probably because the disclosure in proxy statements provides this contact information. However, proposals increasingly are in the form of e-mail, particularly if the proponent is an employee, since employees have access to the e-mail address of the person within a company that handles proposals. The risk for proponents using e-mail addresses is that there might be some uncertainty as to whether they are considered properly received if an e-mail address is not provided in the proxy statement as a means to submit proposals. For an example of a proposal submitted by e-mail, see Anheuser-Busch Companies.[fn8.1]

[fn8.1] 2001 SEC No-Act. LEXIS 870 (Dec. 31, 2001).

§ 11.02[E] Adding a Co-Proponent

If a proponent wishes to add a co-proponent, the submission to the company to accomplish this must be made before the deadline under Rule 14a-8(e). Since the company can exclude identifying information about each co-proponent from its proxy statement, a company may not care whether a co-proponent is added and may waive the deadline for this purpose. However, the addition of co-proponents does indicate that a proposal is more widely supported, which, if disclosed or publicized, may convince other shareholders to vote for the proposal.

EXAMPLE:

In Coca-Cola Company,[fn9] the company successfully prevented a co-proponent from being added to a proposal because the proponent sought to add the co-proponent after the deadline.

[fn9] 2001 SEC No-Act. LEXIS 37 (Jan. 10, 2001).

§ 11.02[F] Company as Cause for Missing Deadline

If a proponent can show that a company's employee or agent contributed to missing a deadline, it may be able to convince the SEC staff to include a proposal. For example, if a proponent calls the company and an employee incorrectly informs the proponent where the company's principal executive offices are, the proponent may have a good case for inclusion.

EXAMPLE

In First Fidelity Bancorporation,[fn10] the company's proxy statement specified an address to which proposals should be sent, but an employee instructed the proponent in a telephone conversation to submit all of his correspondence with the company via facsimile to a telephone number provided by the employee. The facsimile machine to which the number corresponded was in a company office, but not in its principal executive office. The proponent used the facsimile number to submit a proposal. When the company wanted to exclude the propsal, the staff would not permit it to do so, noting that the company had provided the facsimile number to the proponent for the express purpose of permitting him to communicate with the company.

[fn10] 1990 SEC No-Act. LEXIS 595 (Mar. 29, 1990).

§ 11.03 Calculation of Deadline for Annual Meetings

§ 11.03[A] Normal Deadline

Under Rule 14a-8(e)(2), if the proponent intends for its proposal to be voted upon at an annual meeting, it must ensure that the company receives the proposal at its principal executive offices not less than 120 days before the date on which the company's proxy statement was released to shareholders for the previous annual meeting.

According to the SEC staff, companies should calculate the deadline for submitting proposals as follows[fn11]:

start with the release date disclosed in the previous year's proxy statement;

increase the year by one; and

count back 120 calendar days.

The following examples have been provided by the SEC staff:[fn12]

If a company is planning to have a regularly scheduled annual meeting in May of 2003 and the company disclosed that the release date for its 2002 proxy statement was April 24, 2002, how should the company calculate the deadline for submitting Rule 14a-8 proposals for the company's 2003 annual meeting?

The release date disclosed in the company's 2002 proxy statement was April 14, 2002.

Increasing the year by one, the day to begin the calculation is April 14, 2003.

"Day one" for purposes of the calculation is April 13, 2003.

"Day 120" is December 15, 2002.

The 120-day deadline for the 2003 annual meeting is December 15, 2002.

A rule 14a-8 proposal received after December 15, 2002 would be untimely.

If the 120th calendar day before the release date disclosed in the previous year's proxy statement is a Saturday, Sunday or federal holiday, does this change the deadline for receiving Rule 14a-8 proposals?

No. The deadline for receiving Rule 14a-8 proposals is always the 120th calendar day before the release date disclosed in the previous year's proxy statement. Therefore, if the deadline falls on a Saturday, Sunday or federal holiday, the company must disclose this date in its proxy statement, and Rule 14a-8 proposals received after business reopens would be untimely.

[fn11] See Division of Corporation Finance, Staff Legal Bulletin No. 14 (July 13, 2001) Item C3(b) (available at www.sec.gov/interps/legal/cfslb14.htm).

[fn12] Id., Item C3(b).

§ 11.03[B] Deadline Is Bright-Line Rule

Unlike other circumstances in which the SEC staff allows proponents to cure deficiencies, the staff applies the deadline requirement strictly. The staff is so strict that even proposals received one hour late are excludable.

EXAMPLES:

One day late — Hewlett-Packard Company;[fn13] Hewlett-Packard Company;[fn14] Chevron Corporation;[fn15] Norfolk Southern Corp.[fn16]
Two days late — Aetna Inc.[fn17]

[fn13] 2000 SEC No-Act. LEXIS 964 (Nov. 27, 2000).

[fn14] 1999 SEC No-Act. LEXIS 891 (Nov. 9, 1999).

[fn15] 1998 SEC No-Act. LEXIS 217 (Feb. 10, 1998).

[fn16] 1998 SEC No-Act. LEXIS 295 (Feb. 23, 1998).

[fn17] 2000 SEC No-Act. LEXIS 185 (Feb. 7, 2000).

§ 11.03[C] Receipt Date Counts

Submission occurs when a company actually receives the proposal, not when the proponent mails or otherwise delivers it. In other words, if a proponent deposits a proposal in the mailbox before the deadline but the company does not receive it until after the deadline, the proposal is late and the SEC staff will allow the company to exclude it. In Rule 14a-8(e), the SEC encourages proponents to submit their proposals by means — including electronic means — which permit them to prove the date of delivery.

EXAMPLES:

In United National Bancorp.,[fn18] the company was permitted to exclude a proposal that had been received one day late according to the company's mailroom log. The company asserted that it had every reason to believe that its log was accurate and offered to show it to the SEC staff.
In Sara Lee Corporation,[fn19] the company was allowed to exclude a proposal because the proponent's initial letter had not been timely received. Although the transmittal letter sent with the proposal had been dated May 22, 2001, the company noted that the letter, which was sent certified mail, return receipt requested, was postmarked May 23, 2001, and received May 30, 2001, seven days after the company's submission deadline.

[fn18] 2000 SEC No-Act. LEXIS 182 (Feb. 7, 2000).

[fn19] 2001 SEC No-Act. LEXIS 656 (June 27, 2001).

§ 11.03[D] Deadline Moved Up if Falls on Weekend or Holiday

The SEC staff consistently takes the position that if the deadline for submission of a shareholder proposal falls on a weekend or holiday, the proposal must be received by the prior Friday to be considered timely. This is because this exclusion states that proposals must be received "not less than 120 days."

EXAMPLE:

In Delta Airlines, Inc.,[fn20] the company successfully excluded a proposal because the proponent did not timely respond to its notice of deficiency. The company argued that the proponent had originally submitted multiple proposals and was subsequently given 14 days to select one proposal for inclusion. The company noted that it had received a revised proposal after the 14-day deadline because the proponent waited until a holiday weekend to mail his letter, so the company did not receive it until the 15th day. The proponent responded that a reasonable person would assume that a "14 day deadline" meant 14 business days and would take weekends and holidays into account.

[fn20] 1993 SEC No-Act. LEXIS 844 (July 9, 1993).

§ 11.03[E] Amended Proposals

A proponent cannot substantively amend an otherwise timely proposal unless the amendment is submitted before the deadline; in such cases the SEC staff reasons that the amendment turns the proposal into a new proposal. The definition of a "substantive" change is the primary interpretive issue in this area. This is a facts and circumstances determination that depends on a variety of factors, including the nature and extent of the revisions. The staff normally considers changes that are minor in nature and do not alter the substance of the original proposal as not "substantive."

EXAMPLES:

In Sears, Roebuck and Co.,[fn21] the SEC staff allowed the company to omit an amended proposal on the ground that it was so different that it was a new proposal. The original proposal requested that the company hire an investment banking firm to arrange for the "sale of all or parts of the company" because "new effective business plans are needed for the company." In the supporting statement, the proponent stated that it believed that "one of the fastest ways" to develop such plans "would be for the company to be put up for sale either in whole or in part." The so-called second proposal requested that the company hire an investment banking firm to arrange for the "sale of all of the company." The company argued that the proponent had altered the original proposal so much that the amended proposal was tantamount to a new proposal. The company noted that the proponent had deleted references to the new effective business plans as well as all references to ordinary business matters in connection with the second proposal. The proponent argued that the amended proposal was simply a modification of the original proposal.
In United States Banknote Corp.,[fn22] the staff did not support the company's claim that the revisions made to the proponent's original proposal constituted a new proposal which could be deemed untimely. The company argued that the proponent had submitted a completely new proposal after the 120-day deadline and that this submission was not the result of a request by the company. The proponent argued that the proposal had originally contained three proposals, and that, after initiating a dialogue with the company, the first two proposals had been dropped. The proponent went on to state that, although the wording of the revised proposal was different, the substance was the same as the original proposal.
In Pacific Enterprises,[fn23] the SEC staff permitted exclusion of a proposal on the basis that a wholly new paragraph amounted to a new and untimely proposal. The company argued that the proponent, in addition to making the revisions that the company had requested, had included a new paragraph relating to the tactics that the company had allegedly used in dealing with its shareholders, and that this paragraph was so material that it should be considered a new proposal. The proponent responded that the new proposal was submitted only after an agreement for revision had been struck with the company, and that the revision was only made to change the proposal from a mandate to a recommendation.

[fn21] 2000 SEC No-Act. LEXIS 158 (Feb. 7, 2000).

[fn22] 1995 SEC No-Act. LEXIS 375 (Mar. 8, 1995).

[fn23] 1993 SEC No-Act. LEXIS 313 (Feb. 25, 1993).

§ 11.03[F] Withdrawals and Resubmissions

Once a proponent withdraws a proposal, it is no longer considered received by the company for purposes of the deadline requirement. If a proponent decides to resubmit the proposal after withdrawal, the company must receive the resubmitted proposal by the deadline. Under these circumstances, the timeliness of the original proposal is irrelevant.

EXAMPLE:

In Duke Energy Corporation,[fn24] the company successfully excluded a proposal that had originally been timely submitted but was then withdrawn and resubmitted after the deadline. After the company wrote to the proponent arguing that duplicative proposals had been received and that one would be excluded, the proponent wrote to the company stating that "if you persist in the view that both mine & Mr. Bailey's proposals are in effect, submitted by a single person . . ., then this is to state that I withdraw my proposal." The company responded by affirming that its position had not changed and acknowledged the proponent's withdrawal. After the board took action that appeared to moot the remaining proposal, the other proponent withdrew his proposal but wrote that the proponent's proposal should be "reinstated." The company refused to do so since the deadline had passed.

[fn24] 2001 SEC No-Act. LEXIS 242 (Feb. 20, 2001).

§ 11.03[G] Notice of Intention to Submit

A proposal must actually be received before the deadline. A communication from a proponent that it intends to submit a proposal is not sufficient to render the proposal timely. The SEC staff has indicated that a company may exclude a proposal if it receives notice of a proposal prior to the deadline, but does not receive the actual proposal until after the deadline. Even more important, sending an envelope that does not contain the proposal does not count as "receipt" of the proposal. Companies are not obligated to inform proponents that their attempts to submit proposals were unsuccessful.

EXAMPLES:

In Duke Energy Corporation,[fn25] the company was allowed to exclude a proposal that did not arrive until after the deadline. Before the deadline, the proponent sent a cover letter by facsimile to the company indicating that it was submitting a proposal and that the proposal was "enclosed." A few days later, the company received by mail a paper copy of the same letter. However, neither the facsimile nor the envelope included the proposal referenced in the cover letter nor did they include any other enclosure or attachment. In its request for no-action relief, the company included an affidavit from the executive assistant to the company's executive vice president, general counsel and secretary, stating that no enclosure or attachment had been included with either the facsimile or the paper copy.
In IBP, Inc.,[fn26] the company successfully excluded a proposal that was not complete until after the deadline. The company noted that it had received a fax cover letter prior to its deadline that indicated that a proposal would be submitted but no proposal or supporting statement was included with the fax cover letter. One day after the deadline, the company received a paper copy of the cover letter along with the proposal and its supporting statement. In its response, the staff noted that the company could exclude the proposal because "IBP first received an entire proposal after its November 18, 1999 deadline."

[fn25] 2001 SEC No-Act. LEXIS 177 (Feb. 9, 2001).

[fn26] 2000 SEC No-Act. LEXIS 68 (Jan. 19, 2000).

§ 11.03[H] Meeting Date Must Be Set

A company cannot exclude a proposal for untimeliness if the company cannot show that it properly set a submission deadline.

Such a lapse most often occurs if a firm meeting date has not been set or if the company mistakenly disclosed an incorrect deadline in its proxy statement.

EXAMPLE:

In Captec Net Lease Realty, Inc.,[fn27] the SEC staff denied no-action relief because the company could not adequately show that it had set a proper meeting date. After the company moved the meeting date, the company argued that the proponent provided complete proof of ownership 47 days after the deadline that would have applied if the annual meeting had occurred on or before the date within 30 days of the date of the last annual meeting. The company noted that its annual meeting was scheduled to occur 22 days after this date so that the deadline for submitting a proposal should be deemed extended for not more than 22 days. The company also noted that "as of the date hereof, the Annual Meeting has not been scheduled. It is the Company's intention to hold the 2000 Annual Meeting on or before July 1, 2000 (which is the last business day which is not more than 30 days after the date of the 1999 Annual Meeting). If, due to timing issues with respect to the Special Meeting, the 2000 Annual Meeting is not held on or before July 1, 2000, it is presently the Company's intention that the 2000 Annual Meeting will be held as expeditiously thereafter as is reasonably possible and on or before August 17, 2000, which is 47 days (the number of days by which the Proposal was submitted late based on the otherwise applicable deadline) after July 1, 2000. The Company typically mails its proxy materials for its annual meeting to stockholders approximately 30 days prior to the date of the meeting." The proponent's rebuttal did not address this basis.

[fn27] 2000 SEC No-Act. LEXIS 687 (June 15, 2000).

§ 11.04 Calculation Of Special Meeting And Changed Meeting Deadlines

§ 11.04[A] Deadline if No Annual Meeting in Prior Year

Under Rule 14a-8(e)(2), if a company did not hold an annual meeting in the prior year — or the date of the upcoming annual meeting has been changed by more than 30 calendar days from the date of the previous year's shareholders' meeting — the proponent must ensure that the company receives the proposal a "reasonable time" before the company begins to print and mail its proxy materials. In either case, this calculation does not depend on the date that the company's proxy statement was released to shareholders for the previous year's meeting. The key issue is what constitutes a "reasonable time" before a solicitation. This is a facts and circumstances test.

§ 11.04[B] Deadline for Special Meetings

Under Rule 14a-8(e)(3), if a proponent wishes to submit a proposal for presentation at a special meeting, the company must receive the proposal a "reasonable time" before the company makes its solicitation. This is a similar standard to the one used when an actual meeting date is changed by more than 30 days. Here too the central issue is the determination of what is a "reasonable time" before a solicitation, which is a facts and circumstances test.

EXAMPLE:

In Bendix Corp.,[fn28] the company successfully excluded a proposal submitted for presentation at a special meeting because it had not been received within a reasonable amount of time before the company sent its proxy materials. The company stated that the proponent had been informed through several different media of the timetable for the special meeting, and was specifically attempting to delay the meeting through the untimely submission. The proponent did not submit a rebuttal.

[fn28] 1982 SEC No-Act. LEXIS 2828 (Sept. 10, 1982).

§ 11.04[C] Changing the Deadline

If a company sets a new date for the annual shareholders' meeting, the company can set a new deadline for the submission of proposals so long as shareholders are provided with sufficient notice.

The new deadline cannot be fewer than 120 days in advance of the distribution of proxy materials.

This rule accommodates companies that need to move the meeting date by more than 30 days from the date of the prior year's meeting. Under Rule 14a-5(f), if the company changes the date of its next meeting after mailing the proxy statement that discloses the deadline related to that meeting, the company must disclose the new submission deadline in Item 5 of its next quarterly report on Form 10-Q or Form 10-QSB, or, if this is impracticable, by a "reasonable time before the company begins to print and mail its proxy materials."

EXAMPLE:

In Capstead Mortgage Corporation,[fn29] the SEC staff permitted exclusion of a proposal even after the company changed its deadline. The company noted that it promptly disclosed the new deadline in the first Form 10-Q that it had filed after it decided to move its annual stockholders' meeting ahead by more than 30 days. The company noted that even though it had moved the date of its stockholder meeting ahead by more than 30 days, it continued to give its stockholders the requisite 120 days from the mailing of the previous year's proxy to submit proposals.

[fn29] 2000 SEC No-Act. LEXIS 215 (Feb. 21, 2000).

§ 11.05 Definition Of "Principal Executive Offices"

§ 11.05[A] What Are "Principal Executive Offices"

In Rule 14a-8(e)(2), the SEC makes clear that a proposal must be received by a company at its "principal executive offices." Although there is no definition of "principal executive offices" in Rule 14a-8, Item 1 of Schedule 14A requires companies to disclose the address of their principal executive offices in their proxy statement. If a proponent sends a proposal to any other location, even if it is to an agent of the company or to another company location, this does not satisfy the requirement.[fn30] However, a proponent may want to call the company to verify that the address from last year's proxy statement is still valid since the staff strictly applies the requirement that a proposal must be received at the company's principal executive offices by the deadline.

[fn30] Staff Legal Bulletin, supra note 11, Item C3(c).

§ 11.05[B] Good Faith Efforts Irrelevant

A proponent's good faith attempts to submit a proposal to the company's principal executive offices by the deadline will not excuse the proponent's failure to comply with the deadline. A proponent cannot avoid exclusion by explaining that it used an incorrect address or forgot to place a stamp on an envelope. As a result, a proponent may want to submit its proposal using several methods to ensure that the company timely receives it, and should call the principal executive office to confirm that the proposal was indeed received.

EXAMPLES:

In General Motors Corporation,[fn31] the SEC staff granted no-action relief with respect to a proposal that had not been delivered because the proponent had used an incorrect zip code. The company pointed out that on the cover letter for the proposal, part of the address was covered by a copy of the receipt for certified mail and that the zip code in the address on the cover letter also was incorrect. The company stated, "The post office may have been at fault for delivering the letter according to the zip code rather than the city and state, or in not returning the materials to Mr. Seidenberg, but the Receipt demonstrates that the proposal was sent to Columbus, Ohio and through no fault of General Motors not received by the registrant as required under Rule 14a-8(e)."
In WorldCom, Inc.,[fn32] the company successfully excluded a proposal because it had been was routed to the wrong offices. The proponent argued that it had sent the identical proposal to the same address the prior year. In the meantime, the company had moved its principal executive offices 15 miles away. The proponent noted that the proposal was late because the company took five days to redirect the proposal to the new offices. Since the new offices were nearby and the proposal should have been redirected on the same day (thus making it timely), the proponent argued, the company had waived its right to argue that the proposal was late. The proponent stated that it had a "reasonable expectation" that the proposal would be redirected on the same day and that the company did not act with due care. It also noted that the company had not shown any evidence that it did not indeed forward the proposal on the same day.
In Coca-Cola Company,[fn33] the company successfully excluded a proposal that was late because it had been e-mailed through the company's Web site to the company's transfer agent, who did not forward it to the company until one day after the deadline. Before the transfer agent forwarded it, the company had been unaware of the proposal. The company noted that a section of its Web site identified its transfer agent, explained the transfer agent's function, and provided the transfer agent's name, mailing address, Web site address, e-mail address, and telephone number. The company noted that the Web pages relating to its transfer agent did not mention shareholder proposals, nor did anything else on the company's Web site suggest that proposals should be submitted to the transfer agent. The company pointed out that the same proponent had successfully submitted a similar proposal to the company in the prior year, and had done so with an e-mail to the office of the company's corporate secretary.

[fn31] 2000 SEC No-Act. LEXIS 537 (Apr. 7, 2000).

[fn32] 2001 SEC No-Act. LEXIS 328 (Mar. 7, 2001).

[fn33] 2001 SEC No-Act. LEXIS 60 (Jan. 11, 2001).

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