235 East 42nd Street
New York, NY 10017-5755
Tel 212 733 4802 Fax 212 573 1853
Margaret M. Foran
Corporate Governance and Assistant Secretary
December 21, 1999
Office of the Chief Counsel
Division of Corporation Finance
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Shareholder Proposal of James McRitchie and Myra K. Young
Securities Exchange Act of 1934 -- Rule 14a-8
Ladies and Gentlemen:
This letter is to inform you that Pfizer, Inc. ("Pfizer" or the "Company"), intends to omit from its proxy statement and form of proxy for its 2000 Annual Meeting of Stockholders (collectively, the "2000 Proxy Materials") a shareholder proposal (the "Proposal") consisting of three recitals, a resolution and a supporting statement received from James McRitchie and Myra K. Young, Pfizer stockholders (collectively, the "Proponent").
The Proposal seeks to require that Pfizer hire a proxy advisory firm, which is to be chosen by stockholder vote, for one year. Under the terms of the Proposal, the stockholders will vote to select the proxy advisory firm at the year 2001 shareowner meeting. Any proxy advisory firm may make itself eligible for election by paying a nominal processing fee to Pfizer according to the Proposal. The proxy advisory firm that is selected by the stockholders then will provide proxy analysis on all issues raised in connection with the year 2002 proxy materials. According to the Proposal, the fee for services provided by the proxy advisory firm, not to exceed $10,000, will be incurred by Pfizer. The Proposal requests that Pfizer take "all necessary steps" to ensure
that the timetable for this process may be attained. The Proponent’s letter dated November 8, 1998, which sets forth the Proposal and Supporting Statement, is attached to this letter as Attachment A.
Pfizer hereby respectfully requests that the staff of the Division of Corporation Finance (the "Staff") concur in its opinion that the Proposal may be excluded from Pfizer’s 2000 Proxy Materials on the bases set forth below.
Pursuant to Rule 14a-8(j), enclosed are six (6) copies of this letter and its attachments. Also in accordance with Rule 14a-8(j), a copy of this letter and its attachments is being mailed on this date to the Proponents, informing them of Pfizer’s intention to omit the Proposal and the Supporting Statement from the 2000 Proxy Materials. Pfizer expects to mail its definitive 2000 Proxy Materials on March 15, 1999. Accordingly, pursuant to Rule 14a-8(j), this letter is being filed with the Commission no later than 80 calendar days before Pfizer files its definitive 2000 Proxy Materials with the Commission.
As discussed more fully below, Pfizer believes the Proposal and the Supporting Statement may properly be excluded from the 2000 Proxy Materials pursuant to the following provisions:
1. Rule 14a-8(i)(7), because the Proposal relates to Pfizer’s "ordinary business operations";
2. Rule 14a-8(i)(8), because the Proposal relates to election for membership to Pfizer’s board of directors;
3. Rule 14a-8(i)(3) and Rule 14a-8(i)(6), because the Proposal is vague and indefinite, it is therefore misleading, and impossible to implement; and
4. Rule 14a-8(i)(l), because the Proposal is not a proper subject for shareholder action under the laws of the State of Delaware.
I. The Proposal May Be Excluded under Rule 14a-8(i)(7) Because It Relates to Pfizer’s Ordinary Business Operations
The Proposal may properly be omitted pursuant to Rule 14a-8(i)(7), which allows a company to exclude shareholder proposals from its proxy materials "if the proposal deals with a matter relating to the company’s ordinary business operations." The express policy rationale underlying Rule 14a-8(i)(7) is to "confine the resolution of ordinary business problems to management and the board of directors, since it is impracticable for shareholders to decide how to solve such problems at an annual shareholders meeting." Exchange Act Release No. 40018 (May 21, 1998).
The instant Proposal is inexorably tied to Pfizer’s ordinary business operations. Four aspects of the Proposal particularly impact the manner in which Pfizer conducts its business:
(1) it restricts the ability of Pfizer’s management to decide how best to use corporate funds;(2) it undermines Pfizer’s authority to provide strategic and operational advice; (3) it requires Pfizer to make supplemental disclosures in its proxy materials that relate to ordinary business matters; and (4) it limits Pfizer’s ability to manage the scheduling and mailing of the Company’s proxy materials.
A. The Proposal Impedes Pfizer’s Authority to Decide How Best to Use Corporate Funds.
The Proposal, if adopted, mandates that Pfizer hire a proxy advisory firm, which may establish its fee for services, not to exceed $10,000. Pfizer therefore would be required to pay a fee to the proxy advisory firm for the firm’s services. In addition, the Proposal provides that if the proxy advisory firm does not include its analysis in the Company’s proxy materials, then the analysis is to be "widely distributed" and Pfizer is "to take all necessary steps" to ensure this occurs. Accordingly, Pfizer will be required to incur additional costs in the event it has to "widely distribute" the proxy advisory firm’s analysis. Moreover, the additional materials contemplated by the Proposal, including information necessary to describe the proxy advisory firms on the ballot in 2001, will make the proxy materials more lengthy and, as a result, more costly. The cost incurred due to the volume of the additional materials also will be borne by the Company.
Furthermore, because the advisory firm will not have a "business relationship" with the Company’s stockholders and will be paid by the Company, the advisory firm will not qualify for the exemption from the Commission’s proxy rules under Rule 14a-2(b)(3). Therefore, if the proxy advisory firm supports the recommendations of Pfizer’s directors, then the proxy advisory firm may be deemed a participant in the proxy solicitation pursuant to Schedule 14A, Item 4 of the Commission’s rules, requiring disclosure of the additional information required of participants under Item 4 and other provisions of Schedule 14A. If the proxy advisory firm disagrees with the recommendations of Pfizer’s directors, the proxy advisory firm will be making a separate solicitation and will have to prepare and file its own proxy statement since the Company will not accept responsibility or liability for the advisory firm’s analysis or recommendations.1 In such cases, Pfizer would be forced to incur the substantial cost of printing and mailing the proxy advisory firm’s own solicitation and ensuring it is "widely distributed." Therefore, the Proposal mandates that Pfizer incur an additional $10,000 expenditure in relation to the proxy materials, plus costs incurred in relation to distributing the proxy firm’s analysis when the firm decides not to include its analysis in the proxy materials, costs incurred for printing the more voluminous proxy materials and costs incurred in relation to the proxy advisory firm’s own solicitation when warranted by the Commission’s rules.
Decisions about how to use corporate funds, including how a company decides to communicate with its stockholders, are quintessential ordinary course business decisions. See generally Sonat, Inc. (Jan. 19, 1998) (finding a proposal that directed the use of corporate funds to educational institutions excludable under Rule 14a-8(i)(7)). More specifically, the manner in which Pfizer expends, distributes, invests and otherwise deploys corporate funds in relation to the solicitation of proxy materials is an important, ongoing responsibility of Pfizer’s management, under the direction of the Company’s board of directors. Indeed, the Staff has consistently found that decisions relating to the manner in which a company communicates with its shareholders are matters that squarely relate to the registrant’s ordinary business operations. See, e.g., Nalco Chemical Co. (May 6, 1997) (finding a proposal designed to reduce printing and distribution costs by offering stockholders the option of receiving their reports on-line, rather than in hard copy format was properly excludable as a matter related to the company’s ordinary business operations); Montana Power Co. (January 28, 1991) (finding a proposal to distribute a company’s 10-K in lieu of the annual report excludable "since it deals with a matter relating to the conduct of the Company’s ordinary business operations (i.e., decisions made with respect to the cost and preparation techniques for the Company’s reports to shareholders)."). Accordingly, because the Proposal proscribes Pfizer’s authority to decide how best to use corporate funds to communicate with stockholders, the Proposal may properly be omitted under Rule 14a-8(i)(7).
These letters are consistent with and not affected by the Staffs position recently enunciated in Johnson Controls, Inc. (Oct. 26, 1999). In Johnson Controls, the Staff announced that henceforth it will analyze proposals requesting that information be included in SEC filings by looking at the underlying subject matter of the proposals. Here, the underlying subject matter relates to the expenditure of corporate funds. The Proposal also implicates the nature of the Company’s communications with its stockholders. Thus, the Proposal is excludable because each of these matters relates to ordinary business, regardless of whether the advisory firm’s analysis is disseminated through the Company’s proxy statement or otherwise "widely distributed."
B. The Proposal Undercuts the Authority of Pfizer’s Management and Board of Directors to Provide Advice on Strategic and Operational Decisions.
The Proposal, if implemented, mandates the hiring of a proxy advisory firm to provide advice to stockholders with respect to all proxy questions. Proponent posits that this Proposal will "increase the likelihood that shareowners add to Pfizer’s knowledge base and its ability to generate wealth." Yet, for Pfizer, a corporation operating under Delaware law, the responsibility for the day-to-day management of a corporation lies with its board of directors and management. See Delaware General Corporation Law § 141(a); see also Exchange Act Release No. 40018 (May 21, 1998) (noting that ordinary business operations comprise those tasks that "are so fundamental to management’s ability to run a company on a day-to-day basis that they could not, as a practical matter, be subject to direct shareholder oversight"). The hiring of the proxy advisory firm itself, which is mandated by the Proposal, thus runs counter to Delaware law and impinges on the authority of Pfizer’s directors to govern the business and affairs of the Company.
More particularly, because the Proposal will allow the proxy advisory firm to provide advice with respect to all proxy questions, it follows that the proxy advisory firm will offer advice on issues related to business strategy and operation. Again, however, under Delaware law, it is the board of directors’ responsibility to determine the "long-term strategic, financial and organizational goals of the corporation" and "to approve formal or informal plans for the achievement of these goals." C.L. Grimes v. Donald, 20 Del. J. Corp. L. 757 (Del. Ch. 1995).
Matters related to general strategic and operational decisions are well within the parameters of Pfizer’s ordinary business operations. Indeed, in analogous situations, the Staff has repeatedly taken the position that the registrant’s board of directors is in the best position to make recommendations with respect to general business strategy and operational issues and excluded proposals that impinge on this authority. For instance, in Novametrix Medical Systems, Inc. (June 12, 1996), the Staff considered a proposal to retain an investment bank that would be tasked with evaluating the market valuation of the company and suggesting a course of action based on this analysis. The Staff concluded the proposal was properly excludable under the ordinary business exclusion because it related to general business strategy – a matter more appropriately handled by the company’s management and board of directors. See also Bel Fuse, Inc. (April 24, 1991) (finding that a proposal to retain an investment bank to explore strategic options for the registrant properly excludable because it related to the company’s ordinary business operations); Integrated Circuits, Inc. (December 27, 1988) (finding a proposal to hire an investment bank to analyze the company and make recommendations to enhance shareholder value excludable because it related to the company’s ordinary business operations). Because the Proposal, if implemented, allows a proxy advisory firm to issue advice on general business strategy and operational issues, it impinges on the responsibility of Pfizer’s directors to manage the business and affairs of the Company. Therefore, consistent with the Staffs repeated guidance, the Proposal plainly may be omitted from Pfizer’s 2000 proxy materials pursuant to Rule 14a-8(i)(7).
C. The Proposal Is Excludable under Rule 14a-8(i)(7) Because It Requires Pfizer to Make Supplemental Disclosures in Its Proxy Materials that Involve Matters of Ordinary Business.
The Proposal, if adopted, will require the Company to include in its 2001 Proxy Materials a ballot with all proxy advisory firms that seek to advise Pfizer stockholders on proxy issues. As a practical matter, this will require inclusion of more than just a list of proxy firms; it will require Pfizer to make supplemental disclosures in its proxy materials that are related to ordinary business matters.
As noted earlier, the Staff recently determined in Johnson Controls, Inc. (Oct. 26, 1999), that proposals requiring additional disclosures in Commission-prescribed documents will not automatically be omitted under Rule 14a-8(i)(7). Instead, the Staff "will consider whether the subject matter of the additional disclosure sought in a particular proposal involves a matter of ordinary business; where it does, [the Staff] believe[s] it may be excluded under Rule 14a-8(i)(7)." Johnson Controls, Inc. (Oct. 26, 1999).
Here, Pfizer will be required to make supplemental disclosures as a result of the Proposal. For instance, as part of the 2001 Proxy Materials, Pfizer will be forced to include statements and appropriate disclosures about the fee the proxy advisory firm will receive. Disclosures about the processing fees that the proxy advisory firms pay to be placed on the ballot will also have to be included in the 2001 Proxy Materials. In the year 2002 Proxy Materials, the Proposal will require Pfizer to include the proxy advisor’s analysis on all proxy questions. As a result, the Proposal will require Pfizer to include disclosures to make clear that the analysis provided by the proxy advisory firms is not that of management and does not constitute the recommendations of Pfizer’s board of directors. Therefore, the Proposal, if implemented, will require Pfizer to make supplemental disclosures in its proxy materials that would not otherwise be required by any applicable laws or regulations.
Applying the Johnson Controls analysis, the Proposal may be omitted because the subject matter underlying the supplemental disclosures described above relates to Pfizer’s ordinary business. First, Pfizer will have to make satisfactory disclosures to clarify which recommendations are those of its board of directors and which are those of the proxy advisory firm. As described above in Section I.B., the proxy advisory firm’s ability under the Proposal to offer advice on all proxy questions impinges on the responsibility of Pfizer’s directors to provide recommendations to Pfizer stockholders and, hence, impedes the ordinary business operations of the Company.
Second, the Proposal will require Pfizer to include disclosures about the fee paid to the proxy advisory firm and the processing fees paid by the firms to be placed on the ballot. Again, decisions about how a company decides to use corporate funds, especially in relation to solicitation of proxies, are quintessential ordinary business decisions. See Section I.A. Accordingly, because the subject matter underlying the supplemental disclosures that will have to be made if the Proposal is adopted relate to ordinary business matters, the Proposal may be omitted under Johnson Controls and Rule 14a-8(i)(7).
D. The Proposal Limits Pfizer’s Authority to Manage the Scheduling and Mailing of the Company’s Proxy Materials.
As a practical matter, if the Proposal is implemented, Pfizer would have to accommodate the advisory firm's review and analysis in setting its own schedule. The Proposal states that "[t]he proxy advisory’s analysis is to be included with Pfizer’s proxy materials for the year 2002 meeting or be otherwise widely distributed." If implemented, this aspect of the Proposal raises a host of practical considerations. For example, will Pfizer be able to set a deadline in which to receive all proxy analysis from the advisory firm? If so, assuming the advisory firm is delinquent in providing its report, will Pfizer be able to proceed with the Company’s printing and distribution schedule for its proxy materials notwithstanding the absence of the advisory report? Who will incur the distribution costs if the advisory firm decides to distribute its analysis in a manner other than through the vehicle of the proxy materials?
These unanswered, as well as other unknowable, practical considerations raised by the Proposal plainly will impact the printing and mailing schedule for the 2002 Proxy Materials and potentially even the 2001 Proxy Materials. The impact of the Proposal in this respect runs counter to the Staff's concurrence that a company’s board of directors and management is in the best position to determine the printing and mailing schedule of proxy materials. See, e.g., Knight-Ridder, Inc. (February 5, 1991) (finding a proposal that impacted the scheduling and mailing of proxy materials properly omitted under the ordinary business exception). Therefore, the Proposal may be excluded because its inevitable impact on the printing and mailing schedule for the proxy materials would interfere with Pfizer’s ordinary business operations.
II. The Proposal May Be Excluded Because It Relates to Election for Membership on Pfizer’s Board of Directors
The Proposal may be omitted from Pfizer’s proxy materials pursuant to Rule 14a-8(i)(8), which allows a company to exclude a stockholder proposal where the proposal "relates to an election for membership on the company’s board of directors or analogous governing body." The Commission has stated that "the principal purpose of [paragraph (i)(8)] is to make clear, with respect to corporate elections that Rule 14a-8 is not the proper means for conducting campaigns or effecting reforms in elections of that nature, since the proxy rules, including Rule 14a-11, are applicable." SEC Release No. 34-12598 (July 7, 1976).
By the terms of the Proposal, the proxy advisory firm that is chosen by Pfizer stockholders will be asked to provide analysis on all proxy-related issues between the 2001 and 2002 annual shareholder meeting. In this period, assuming the number of directors constituting our board of directors remains at fifteen, Pfizer will ask its stockholders to elect, or re-elect, at least five individuals to its board. The Proposal, if implemented, therefore requires the proxy advisory firm to provide an opinion on the election of specific nominees to Pfizer’s board of directors. Indeed, the Proposal even contemplates this role for the proxy advisory firm chosen by the stockholders, suggesting in its supporting statement that the Proposal "is designed to… stimulate shareholders to nominate board members…" While the Staff has not defined what constitutes a "contest" for these elections, even if the advisory firm is not supporting another candidate, but is recommending a "no" vote or an abstention, the advisory firm will be engaged in a solicitation in opposition to management. As noted above, solicitations will not be exempt under Rule 14a-2(b), nor, because there is no business relationship between the advisory firm and the Company, for example under Rule 14a-2(b)(1).
The Staff consistently has permitted the omission of shareholder proposals that seek to establish procedures that might affect or influence the nomination or election of individual directors. For instance, in Amoco Corporation (February 14, 1990), the Staff considered a proposal for a common ballot procedure, wherein any stockholder with shares representing over $100,000 in market value of the registrant’s shares could nominate an individual for election to the registrant’s board of directors. Notwithstanding the general applicability of the proposal, the Staff concluded it was properly excludable under Rule 14a-8(i)(8) because it could result in contested elections for individual director slots.
Likewise here, the Proposal establishes a procedure that is contemplated to result in solicitations both in favor and against Pfizer’s proposed directors. The Proposal requires the proxy advisory firm elected by Pfizer stockholders the opportunity to offer advice with respect to all proxy questions, including the election of directors. It is entirely possible that the opinions provided by the proxy advisory firm with respect to the election of individual directors will be contrary to the recommendations offered by Pfizer’s board of directors, thereby setting up a contested election. As the Staff has repeatedly held, however, there already is a mechanism under Rule 14a-11 of the proxy rules to administer proxy contests.2 Accordingly, because the Proposal, if implemented, provides for a proxy advisory firm to give advice with respect to the election of individual Pfizer directors, it may be excluded pursuant to Rule 14a-8(i)(8).
Furthermore, if other questions related to a Pfizer director’s suitability for office arise during the applicable period, the proxy advisory firm is also required under the terms of the Proposal to offer an opinion on this issue. The Staff consistently views proposals that raise such director-related issues as inextricably linked to the election of directors and therefore properly excludable under Rule 14a-8(i)(8). See Great Atlantic & Pacific Tea Company, Inc. (March 8, 1996) (omission of a proposal recommending that the board of directors censure the chief executive); UAL Corporation (January 18, 1991) (omission of a proposal calling for a vote of "no confidence" in the company’s board of directors); Time-Warner, Inc. (March 23, 1990) (omission of a proposal seeking to censure the company’s directors). For these reasons also, the instant Proposal may be excluded under Rule 14a-8(i)(8).
III. The Proposal May Be Omitted under Rule 14a-8(i)(3) as It Is Vague and Indefinite, and Therefore Misleading and, As A Result, under Rule 14a-8(i)(6) Because It Is Beyond Pfizer’s Authority To Effectuate
The Proposal may be omitted pursuant to Rule 14a-8(i)(3) as false and misleading because it is vague. A shareholder proposal or supporting statement may be omitted under Rule 14a-8(i)(3) where it is "contrary to any of the Commission’s proxy rules, including [Rule] 14a-9, which prohibits materially false or misleading statements in proxy soliciting materials." A proposal is sufficiently vague and indefinite to justify its exclusion where "neither the shareholders voting on the proposal, nor the Company in implementing the proposal (if adopted), would be able to determine with any reasonable certainty exactly what actions or measures the proposal requires." Philadelphia Electric Co. (July 30, 1992). See also Bristol-Myers Squibb Co. (Feb. 1, 1999) (proposal that Bristol-Myers Squibb Company adopt policy "not to test its products on unborn children or cannibalize their bodies, but pursue preservation, not destruction, of their lives" sufficiently vague to justify exclusion).
In addition, the Proposal may be omitted pursuant to Rule 14a-8(i)(6) because the Proposal is vague, with the result that Pfizer "would lack the power or authority to implement" it. A company "lack[s] the power or authority to implement" a proposal where the proposal "is so vague and indefinite that [the company] would be unable to determine what action should be taken." Int’l Business Machines Corp. (Jan. 14, 1992) (proposal stating, without more, that "[i]t is now apparent that the need for representation has become a necessity" could be excluded under Rule 14a-8(i)(6) due to its vagueness). The Proposal is so vague and indefinite in its application and outcome that Pfizer would be unable to determine what action should be taken to implement it.
The Proposal is vague in a number of respects, such that Pfizer’s stockholders, when voting on the Proposal, may have differing views as to how the Proposal would be implemented, and, if Pfizer were to seek to implement the Proposal, the Company would not be certain what actions to take. At the time of voting on the Proposal, neither Pfizer nor its stockholders will know the nature of the advisory services that are to be provided. Proxy advisory firms provide a range of advisory services; sometimes voting advice may be based on parameters and guidelines provided by their clients, while other advice may be more generally provided to all of the firm’s clients based on standards the advisory firm developed internally. Some firms will provide either form of assistance but will charge different amounts for their services. The Proposal here fails to specify the manner in which the proxy advisory firm will be asked to provide services. Not until after approval of the Proposal, when the proxy advisory firms are asked to submit their nomination proposals, would shareholders know the type of services the advisory firm would provide under the Proposal. Even then, the Company would not be able to determine whether a specific proxy advisory firm’s proposal to provide services actually implements the Proposal. Nor does the Proposal, on its face, address the scope of advice to be provided by a firm. Instead, the advisory firm must "make its proxy analysis on Pfizer freely available." Because of the vague reference to "proxy analysis on Pfizer," neither the stockholders nor the Company will know whether the advisory firm would be required to analyze a proposal initiated and solicited by a third party in a proxy contest. For these reasons, the Proposal is vague and therefore misleading and, as a result, is impossible for the Company to implement.
Moreover, as noted above in Section I.D., the Proposal impacts several practical considerations, yet provides no ready answers for these concerns. For example, will Pfizer be able to set a deadline in which to receive all proxy analysis from the advisory firm? If so, assuming the advisory firm is delinquent in providing its report, will Pfizer be able to proceed with the Company’s printing and distribution schedule for its proxy materials notwithstanding the absence of the advisory report? Who will incur the distribution costs if the advisory firm decides to distribute its analysis in a manner other than through the vehicle of the proxy materials? The Staff has consistently omitted proposals as vague and misleading when they fail to address essential aspects of how the proposal is to be implemented. See, e.g. Houston Industries, Inc. (March 28, 1990) (proposal relating to annual election of directors vague because it fails to specify a time period in which the proposal is to be implemented). Accordingly, because the Proposal is so vague that it leaves a host of unanswered questions regarding its implementation, it may be omitted pursuant to Rule 14a-8(i)(3) and Rule 14a-8(i)(6).
IV. The Proposal Is Not a Proper Subject for Action Under the Laws of the State of Delaware
The Proposal may properly be omitted pursuant to Rule 14a-8(i)(1), which permits exclusion of a proposal if it is "not a proper subject for action by shareholders under the laws of the jurisdiction of the company’s organization."
As a preliminary matter, the note to Rule 14a-8(i)(1) provides that proposals cast as recommendations are typically considered proper under state law. In the instant Proposal, the Proponent fashions the resolution as a mandate such that, if implemented, Pfizer must hire an advisory firm for one year. The precatory language is absent and, hence, the presumption of propriety under state law is also absent. More importantly, as described below, the language in the Proposal that requires Pfizer to hire a proxy advisory firm runs counter to Delaware law.
Section 141(a) of the Delaware General Corporation Law provides that "[t]he business and affairs of every corporation … shall be managed by or under the direction of the board of directors …" Under the Proposal, Pfizer must hire the proxy advisory firm chosen by the shareholders, and the proxy advisory firm will then provide advice to all stockholders with respect to all proxy questions. This aspect of the Proposal effectively undermines the ability of Pfizer’s Board of Directors to manage the business and affairs of the company. That is, one component of a director’s role is to provide recommendations to the company’s stockholders. By also allowing a proxy advisory firm the opportunity to provide recommendations, the Proposal places the proxy advisory firm in a quasi-managerial role. As a result, the duty and obligation of Pfizer’s directors to make determinations and recommendations on behalf of the Company would be undermined and potentially contradicted by the advice offered by the proxy advisory firm. See, e.g., Rockwell International Corp. (December 11, 1992) (concluding that a proposal that would require the board to abdicate its fiduciary duty to manage the company was excludable because it was deemed inappropriate for shareholder action under state law). Such a result is plainly contrary to the intent of Delaware law and, hence, is not an appropriate subject for action by Pfizer stockholders.
V. The References to Web Sites In the Supporting Statement May Be Omitted under Rule 14a-8(d)
Finally, the Supporting Statement refers to the Corporate Monitoring website (www.corpmon.com) for articles discussing the company-pay system for proxy advice. Proponent’s citation to the Corporate Monitoring website incorporates by reference the entire text of the site, which subverts the intent of the 500-word limit of Rule 14a-8(d). Furthermore, the citation is misleading because the data incorporated by reference has not been furnished by either Pfizer or Proponent. The reference to the site and its address therefore may also be excluded from the 2000 Proxy Materials pursuant to Rule 14a-8(i)(3). See Templeton Dragon Fund, Inc. (June 15, 1998).
For the reasons set forth in this letter, Pfizer respectfully requests that the Staff concur in its opinion that the Proposal may be excluded from Pfizer’s 2000 Proxy Materials. Pfizer would be happy to provide you with any additional information and answer any questions that you may have regarding this subject. Should you disagree with the conclusions set forth in this letter, we respectfully request the opportunity to confer with you prior to the determination of the Staffs final position. Please do not hesitate to call the undersigned at (212) 733-4802, if you should need further assistance in this matter.
Margaret M. Foran
1 Rule 14a-8(l) allows a company to disclaim responsibility for shareholder proposals, but an issuer is not generally otherwise permitted to disclaim responsibility for statements appearing in its proxy materials.
2 In this sense, because the Proposal potentially runs afoul of the Commission’s rule for administering proxy contests, Rule 14a-11, Pfizer also believes it may omit the Proposal under Rule 14a-8(i)(3), which permits exclusion of a proposal that is contrary to any of the Commission’s proxy rules.