Pacholder High Yield Fund, Inc.

January 18, 2013

Frank J. Nasta

Pacholder High Yield Fund, Inc.

270 Park Avenue

New York, NY 10017

Re: Pacholder High Yield Fund, Inc. (“Fund”)

Incoming Letter dated November 19, 2012

Dear Mr. Nasta:

The proposal would require that certain information be included in the annual and quarterly

reports of the Fund.

There appears to be some basis for your view that the Fund may exclude the proposal under

rule 14a-8(f) under the Securities Exchange Act of 1934 (the “Exchange Act”). We note that the

proponent appears to have failed to supply, within 14 calendar days of receipt of the Fund’s request:

(1) documentary support sufficiently evidencing that he satisfied the minimum ownership requirement

for the one-year period required by rule 14a-8(b) under the Exchange Act; and (2) a written statement

that the proponent intends to hold the requisite amount of the Fund’s securities through the date of the

shareholder meeting as required by rule 14a-8(b) under the Exchange Act. Accordingly, we will not

recommend enforcement action to the Commission if the Fund omits the proposal from its proxy

materials in reliance on rules 14a-8(b) and 14a-8(f) under the Exchange Act.

Attached is a description of the informal procedures the Division follows in responding to

shareholder proposals. If you have any questions or comments concerning this matter, please call me

at (202) 551-6773.

Sincerely,

Kieran G. Brown

Senior Counsel

Office of Disclosure and Review

Attachment

cc: Gil Marchand

DIVISION OF INVESTMENT MANAGEMENT

INFORMAL PROCEDURES REGARDING SHAREHOLDER PROPOSALS

The Division of Investment Management believes that its responsibility with

respect to matters arising under Rule 14a-8 [17 CFR 240. 14a-8], as with other matters

under the proxy rules, is to aid those who must comply with the rule by offering informal

advice and suggestions and to determine, initially, whether or not it may be appropriate in

a particular matter to recommend enforcement action to the Commission. In connection

with a shareholder proposal under Rule 14a-8, the Division's staff considers the

information furnished to it by an investment company in support of its intention to

exclude the proposals from the investment company's proxy material, as well as any

information furnished by the proponent or the proponent's representative.

The staff will always consider information concerning alleged violations of the

statutes administered by the Commission, including argument as to whether or not

activities proposed to be taken would be violative of the statute or rule involved. The

receipt by the staff of such information, however, should not be construed as changing the

staff's informal procedures and proxy review into a formal or adversary- procedure.

The determination reached by the staff in connection with a shareholder proposal

submitted to the Division under Rule 14a-8 does not and cannot purport to "adjudicate"

the merits of an ihvestment company's position with respect to the proposal. Only a

court, such as a U.S. District Court, can decide whether an investment company is

obligated to include shareholder proposals in its proxy material. Accordingly a

discretionary determination not to recommend or take Commission enforcement action,

does not preclude a proponent, or any shareholder of an investment company, from

rights he or she may have against the investment company in court, should

pursuing

the management omit the proposal from the investment company's proxy material.

any

Pacbo ldcr High Yicld Fu nd, Inc.

270 Park Avenue

New York, NY 10017

November 19. 2012

Via Elcctronic Mail (IMshareholderproposa ls@sec.gov)

U.S. Securities and Exchange Conunission

Division of Investment Management

Office of Disclosure and Review

100 F Street, N.E.

Washington, D.C. 20549·8626

Re:

Pacholder High Yield Fund. Inc.- Stockholder Proposal Submitted bv Gil Marchand

Ladies and Gentlemen:

The Pacholder High Yield Fund, Inc., a closed-end investment company listed on the

NYSE MKT (the "Fund"), is filing this letter under Rule 14a-8(j) of the Securities Exchange Act

of 1934, as amended (the "Exchange Ace) to notify the Securities and Exchange Comm ission

(the "Commission'") of the Fund's intention to exclude a stockholder proposal from the proxy

materials for the Fund's 2013 annual meet ing of stockholders. Mr. Gil Marchand (the

"Proponent") submitted a stockholder proposal on March 30, 2012 (the '·Proposal"). A copy of

the Proponent's letter and Proposal is attached hereto as Exhibit A

The Fund respectfull y requests that the Commission's Division of Investment

Managcment staff (the "StafT') not recommend that enforcement action be taken by the

Commission against the Fund if the Fund excludes the Proposal from its 2013 proxy materials

for the reasons set forth be low.

The Fund intends to file its definitive proxy materials for its 20 13 annual meeting on or

about March I, 2013. This letter and its exhibits are being subm itted via e-mail to

IMshareholderproposals@sec.gov. A copy of this letter and its exhibits will also be sent to the

Proponent.

I.

BAC KGRO UND

On March 30, 2012, the Fund recei ved a letter from the Proponent that included the

Proposal. The letter stated that the Proponent was "a qualified shareholder under Rule 14a-8 of

the Act" but did not include any further information about the Proponent, such as a written

statement that the Proponent intends to continue to hold the securities through the date of the

shareho lder's meeting Or proof of ownership. The Fund has eonfinned that the Proponent is not

a shareholder of record .

On April 11, 20 12, in accordance with Rul e 14a-8(f), the Fund sent a letter (the

" Response Letter") via Federal Express to the Proponent I notifyi ng him that he did not comp ly

with the eligibility and procedural requirements of Rule 14a-8. The Response Letter set forth

the eligibility and procedural requirements, included a copy of Rule 14a-8 and also stated that the

Proponent had 14 calendar days from receipt to provide the req uisite information. A copy of the

Response Letter is attached hereto as Exhibit B.

As o f the date of submission of thi s letter, the Fund has not received any further

correspondence from the Proponent.

II.

BASIS FOR EXCLUS ION

Rule 14a·8(f)(I) a nd Rule 14a-8(b)(2) - The Proposa l May Be Excluded Pursuant to Rule

14n-8(f)( I) Becnuse the Proponent Did Not Provide the Required Proof of Eligibility and a

Written Statement that the Proponent Intends to Continue to Hold the Securities Through

the Date of the Shareholder 's Meeting.

Rul e 14a-8(b)(2) provides that in submitting a proposal, if a shareholder is not a

registered holder of the securities, he or she must provide proof of beneficial ownership of the

securities to the co mpany in one of two ways. The shareho lder can either: (i) submit a written

statement fro m the "record" holder of the securities veri fying that, at the time the proposal was

submitted, the shareholder continuously held the securities for at least one year; or (ii) submi t a

copy ofa fil ed Schedule l3D, Schedule 13G, Fonn 3, Fonn 4, Fonn 5, or amendments to those

documents or updated fomls, filed with the Commi ssion reflecting ownership of securities for

the one year period as of the date of the statement. In addition, the shareholder is requi red to

include hi s or her own written Slatement that he or she intends to continue to ho ld the securities

through the date of the shareholder's meetin g.

The Proponent's letter stated that he was a "qualified shareholder under Rule 14a-8 of the

Act", but did not include proof of beneficial ownership nor did it include a statement that the

Proponent intends to continue to hold the securities through the date of the shareholder's

meeting.

Under Rul e 14a-8(f)(I), a company may exclude a shareholder proposal if the proponent

is not the record owner and fails to provide appropri ate proo f of eligibility in accordance with the

eligibility requirements of Rule 14a-8(b)(2), prov ided that the company timely notifies the

proponent of the deficiency and the proponent fails to correct the deficiency within the required

time period. The Staff has previously pennitted the exclusion of shareholder proposals pursuant

to Rule 14a-8(1) w hen the proponent has fai led to provide sufficient documentary support of

eli gibility under Rule 14a-8(b)(2).'

The Fund sent the Response Letter, which notified the Proponent of the various

procedural defects, to the Proponent within the required time period.) The Proponent did not

I The Proponent did not inc lude any COlltact infonnatioo in his !cU"f. The Fund mailed the Response Leuer to the fCturn address listed on the

envelope in which the Proponent's letter was sent.

l See, e.g .. Guggenheim Enhanced Equity Strategy Fund (pub. HVHil. Mar. 21 , 20(2) (pennining exclusion whcre "thc proponent failed to supply

documentary support sufficiently evidencing thal. he satisfied the minimum ownership requirement for the one·yeaT period required by rule

14a-8(b)"); Walgreen Co. (pub. 8\·ail. Oct. I, 2012) (pcnniuing exclusion where the "the propon"nt appcar!i to have failed 10 supply, within 14

days of receipt of Walgreen's request. documentary support sufficiently evidencing that he satis fied the minimum ownership requirement for

the one·yellr period required by rule 14a·8(b)").

Included in Exhibit B is a delivery confirmation from Federal Express.

respond to the Response Letter within the 14 calendar response deadline, as required by Rule

14a-8(f)(1). Any further verification the Proponent might now submit would be untime ly under

the Commission's rules. Therefore, the Proposal is excludable pursuant to Rule 14a-8(f) because

the Proponent did not remedy the eli gibility deficiency on a timely basis after notification by the

Fund.

III .

CONCLUSION

Based on the foregoing analysis, the Fund hereby respectfully requests that the Staff

confirm that it will not recommend enforcement action be taken by the Commission against the

Fund if the Fund excludes the Proposal from its 2013 proxy materials. We would be happy to

provide any additional information and answer any questions that the Staff may have regarding

this submission.

If we can be of any further assistance in the matter, please do not hesitate to contact me at

212-684-0894 or via e-mail atfrank.j.nasta@jpmorgan.com. Please acknowledge receipt of this

letter by return e-mail. Thank you for your attention to this matter.

Very truly yours,

~r~

Frank J. Nasta, Secretary

cc:

Gil Marchand

Exhibit A

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Mr. Frank Na sta

Secretary. Pacholder High yield Fund Inc.

270 Pa rk Ave.

New York. NY 10017

Re : Shareholder Proposal

Dear Mr. Nasta,

I am a qualified shareho lder under Rule 14a-8 of the Act. I would like included in the 2013 proxy of the

closed end fu nd listed above, the following proposal :

The Company describe in its quarterly and annual reports a) downgrades and upgrades during the most

recent report period b) realized gains and losses of more than 10% during the most rece nt report period

c) defa ults experienced in the most recent reporting period d) any recoveries experienced during the

most recent reporting period e) any cumulative hold ings in a borrower that is more than 3% of net

asset s. the current marks on the security or securities of each borrower over 3% of net assets as of the

end of the reporting period and a very brief description of the manager's view of the borrower or

borrowers.

11 dS/

Re~r~

GQ

archand

Exhibit B

P:u.'holdc r High Yield Fund, ln c.

270 Park A venue

New York, NY 10017

April 11, 2012

Vila Overn igh l Mail

Attn: Gil Marchand

Kni ghts of Columbus

I Co lumbus Plaza

New Haven, CT 06510-3326

Re:

Shareholder Report Proposal - Pacholdcr Hi gh Yield Fund. Inc. (the "Fund")

Dear Mr. Marchand:

I am writing in responsc to your lettcr we received on Friday, March 30, 2012 in wh ich

you request we include a proposal in the Fund ' s 2013 proxy statement to require certain

information in the Fund's shareholder reports. We appreciate your proposal and have carefully

considered it. However. after reviewing the information co ntained in the current reports against

the information requested in yo ur proposal, we kindl y ask that you consider withdrawing the

proposa l in light of the robust disclosure already contained in the Fund's repons and elsewhere.

which we believe addresses much of you r proposal (as we detail further below). If, aCier

considering this letter, YOll would like to continue with yOllr proposal, we ask that you resllbmit

your proposal to comply with a number of securities law procedural requirements described

below.

The Securities and Exchange Commission (SEC) requires that registered management

investment companies, such as the Fund. make available 10 shareholders and/or file with the SEC

certain reports, and that the COnlent of these reports contain certain infonnation. The infonnation

contained in the Fund 's reports is designed to comply with these care fully constructed SEC

requiremen ts, which, for semi-annual and annual reports, require the inclusion of:

•

•

•

•

Financial statements;

A lisl of portfolio ho ldings;

A chart depicti ng the portfolio holdings by a reasonably identifiable category

(e.g., industry sector); and

Financial highlights. including certain per share operating performance data.

For quarterly reporting, the SEC requires that the Fund file <l list of its portfo li o holdings

with the SEC for its first and third fiscal quarters. The Fund complies with this and, although not

required by the SEC, it al so cllrrenlJy mails ils quarterly list of portfolio holdings to shareholders

and al so typically includes additional infonllation in these quarterly mail ings, such as general

market commentary and a brief discussion of which sectors contributed to tbe Fund' s

performance for the period (and similar infonnation is also included in the Fund 's semi-annual

and annual rcports). We currently do so to make the portfo lio holdings and the additional

infonnation more <lccessible to shareholders.

In additio n to the above , the Fund 's website (",'WW.pacholder.com) regularly contains

additional information, such as the most recent monthly fact sheet, which typically inchldes,

among other things, the Fund 's NA V, premium/discount to NA V, dividend yield, total relum

info rmation for the Fund, the yield to maturity of the Fund 's holdings, the average life of the

Fund's holdings. the credit quality of the Fund 's holdings, the Fund's top ten holdings and the

top 5 sectors in which the Fund is invested. These monthly fact sheets al so arc not required by

the SEC, bu t the Fund currentl y produces them <IIlci makes them available because we believe it

is infonnalion that may be useful to shareholders.

We believe thaI, in substance, this infonnation satisfies a number of the requests you

raised in your proposal. For example, the list of portfolio holdings as of the reporting period

includes the value of each investment, the percentage of nct assets of the Fund each investment

constitutes and marks eac h investment that is in default. Moreover, the statement of operations

in the financial statement s includes aggregate net reali zed gains and losses for the reporting

period and the monthly fact sheet typically includes a list of the Fund's top ten holdings and a

percentage brC<lkdowo of the portfolio by crcdit quality (i.e., what percentage of the pon folio is

A, 131313, BB, 13, CCC or lower or not rated) .

As far as the procedural requirements, Ru le 14a-8 of the Securities Exchangc Act of

1934 requi res that you be an eligible sharehol der in order to make use of the ru le and subm it a

proposal. In particular, you must have continuously held at least $2,000 in market vulue, or 1%,

of the Fund's securi ties entitled to be voted on the proposal at the meet ing for at least one year

by the date you subm it the proposal. You must continue to hold those securities Ihrough the date

of the meeting. Eligibility can be documented by submitting to the Fund either: (i) a written

statemcnt fro m the "record" hol der of yo ur securities (usuall y a broker or bank) verifying that, at

the time you submi llcd your proposal , YOll continuously held the securities for at least one year;

or Oi) a copy ofa filed Schedu le 130, Schedule IJG, Fono J, Form 4, Fo nn 5, oramendmenls to

those documents or updated fonns. refl ecting your ownership of shares as of or before the date

on which the one-year eligibil ity period begins and your written statement that you continuously

held the required number of shares for the one-year period as of the date of the statement. In

addition , you arc al so required to include your own wriuen statement that yo u intend to continue

to hold the securities through tbe date of the shareholder's meeting. Rule 14a-8(f) afford s you

another opportun ity to comply with these procedural requirements, but provides Ihat you must

transmit your response to thi s letter 10 the Fund within 14 calendar days of its recei pt by you. A

copy of Rulc 14a-8 is attac hed for yo ur co nveniencc.

Please note th<1t the Fund reserves the right to cballenge the inc lusion of your propos<1l

with the SEC. However, we hope that you wil l consider withdrawing your proposal in li ght of

the above so that we ean avoid do ing so and also avoid any costs to the Fund associated with

such a challenge.

If you would like 10 withdraw your proposal after consideration of thc information in this

ICHcr, please sign the e nclosed duplicate copy of the leIter where indicated below and return it to

mc in the self-addressed stamped enve lope.

Please do not hesitate to contact me with any questions.

Very truly yours,

~,/>~_-t?TFrank J. Nasta. Secretary

I hercby withdraw the shareholder report proposal for Pacholdcr High Yield Fund, Inc.

Date: _ _ __ _ __

Gil Marchand

Regulations 14A, 14C, a nd 14N (I)roxy Rules)

Rule 1 4.'1-~

Rule 14a-8 ,

5728

Shurcho lde r !'roposals.·

llu~ section addresses when a com pany m ust illClutle a !o.h an:holOcr's proposal in its pro:o;y

statement and identify the proposal in il~ form of proll:)' when the cornp:my holds :In annUlll or

~pecilll meeting of shareholdcr1i. In summary. in order 10 ha\'e your sh;m:holder propo!IIIl iocludt:d

(1(\ a compuny's pro'\;)' card. and inclu,k:d along wi th nny supporting statement in its proxy stllte­

ment, )'ou mn"" he ellgihle and follow certain pmcedure.~. Under B fe\\,' spoc:inc drcumSl.:mccs. the

C(mlpotny i, rermiU"d UJ exclude your I'TOpOsal. Out only after submrUrng Il' re:t.~'n.~ 10 the

COlllnlL~sion . We structured this section in a quc.qkm-{lnd-answer fomUlI !l0 that II LS easier to

undC'r1iland. The references to "you" ;Lre to a shareholder ....."C ~ ing 10 ~ubmi t lhe proposal.

(a) Q uestion I : W h:1I is >I Pro IMJSaI?

A !J\:lrehold",- propos:lI is YOILr recommendation or rcqu ircmcOlt hat the f;OI'np;:my and/or illl boon!

of diT1l(.1(>I"li take action, ..... hith you intend \0 present at a mccling uftl-.e eomJlll n y'~ sh.:m:holdellO, Your

proposal should stnle (l.~ e lenr ly as possihle lhe COUl'llC of actiOn Ih:1t yo u be lieve the t'Olnpany should

fnllow. If your Jlffil'ns:t..I is placed o n the COTllP:U1Y'~ proxy can!. the CU1ll pnny m llst liiso provitle in lhe

form of lm);\y mellllS for siJ;lreh"ldcn; to ~pcdry by boxes M cho ice bt'lwee:n aPl"rlIvnl or disa l}('fOvUI, or

nbsteminn. Unle.~s N hcrwisc indicu!OO. (he word "proposal" I~~ w.ed in (hi s ..:celion refers boIh !O your

propot-al. (md 10 your corn.:~I'(){ldi ng st3temcnl in support of your propos;1l (if any).

(h) Qu(';;tloll 2: Who is eli~i hl e 10 s u b mi t II p r o posa l, Imd Imw do I dCllluIIsln tl r 10 lite

l'omprillY IIUlt t lim eligi ble?

(I) In order tn be eligible to submi t a proposal, ylMI must have tounli nuollsly hel d :lt leas!

S2,uno ill Inmet value, nr 1%. of the compa ny's scc urilie.~ entitled 10 be \ntf,.'{] on the proposal 01.1

the meeting for al leasl one year by the dale you submit tile proposal. You must continue to hold

I~ ~u(ilies through the date of the mccting,

(2) If you an: the registered holtler of your securi ties. wh ich means that your name :Ippear5 in

lhe company's rt."\.ouros as a shar\:hoIdcr, lhe company ea n verify your eitgibi lity on ils own.

:Illhough you will Slill run'e to provide the COtnp;llly wit h a written statement that you inlend \0

contmue 10 hold the sccurilic.~ Ihrough Ihe dale of lhe meeling o f shmoolders. Huwever. if tile

many shareholders yOIl are not a regislered holder, the eOmp.1rly likely does nO! know Ihal you are a

shareholder. or how many sh3res you own. In Ihis case. allhe. Ijn~ yoo suhmit your proposal. you

must pnwe )'our eligihilily to the etlrnl'any in one of 1.....0 wa)~:

(i)'Ibt: lir1it way b to ~ubmil 10 the company a wrillen ~Iatemcnt from the "1'1Xord" holder of

)'our "I.'Curitie.~ (usulllly a hroter Of bantl ven fying that, at the tllne you SUhlllitted your proposal.

)CM1 emmnu()LJsly held the securilies for allea.q onc year. Ynu mUM also incluUe your OIN" written

Malemem Ihal you rntend 10 conlinue 10 huld lilt., secUrilLe.~ through the dme of the meeting nf

sh:u'eholdcl'~: or

( ii) TIle second way 10 prove oINllCrsh ip nppl iCti only if you have nJcd a Schedu le 130,

Schedule IlG. Form 3, Fonn 4 and/or Fonn 5. or amend lm:n ls 10 thulIC doc ume nls or updated

fonns. renr:cli ng yOLir ownersh ip of the sh;!fCS as of or be fu~ lhe dale CII\ whieh the onc-ycar

+1'..HL'Clivc ScptClnocr 20, WI I , Rule 141.-8 WlL' 3nICndild by n::vi~i l!lI poILrngraph (1){111 as p:m of the

amendments f:lCilila1inll !ih:utbuJller dirc<.1ur IMlm inaci,)lu. Sec SEC Relc:L'i<: N~, 33·9259; 34-6534,1; Ie·

1975II; Scpieml!er 15, ;:01 J. Sec al,.., SEC ReJca.-;c Nus. 3J-91J6: ).1-62764 : IC·2I)384 (AuS. 25, 2(10): SEC

Relt:al\l: N•• ,U.9149: M-63031: [C-29456 (Ocl. 4. 20W); SEC Relcnse Nn<.. ))·<)151: ).4-63109; IC·2Q.l62

(Oct 14,20(0).

Uff«u\'C April 4. 2011. Rule 14a·8 was ;uncnlk.-d hy Ikklmll N,,'t'" Paru&rtll'ir II)(IOJ "-' p!I.rt o( rule

IUlICndnw:nll< implementing chi: pro"1JIk>ns of !be DudtJ_F.....,k /1.,\ ,."'"rina \0 """'""hol~ approVAl of e~eru\i\"l.'

~nsaclO<I and ,olden parxhutc oom[lCllSlItion lUTlIngcmCntl.. See sr:e RdcaJe N.., 3)..9178; 34-637b!1:

J:un.o;uy 25, 2011 C""'!,/itI",." D<,u: April 4. lOll. r..,.. othr:r tompli.-.ncc daI~'lI f'\.'laLod 1<1 thil release, soc SEC

Rd,,:l.<C No. 1:>·9178,

(HUU.lmN No, 26 1, 10- 14-11)

Rule 14a-8

Regulations 14A, H e, and J4N (Proxy Rules)

5729

eligibility period beghL~. If you h.'IYe: filed one. of these documents with tiM! SEC. you may dem·

Onstnlle ynur eligibility by subrnilling 10 the company:

(A) A copy of the scbc:dule aod/or form. and any sui>scQuent amendme nts reporting I!. ch~nge

in your ownership level;

(8) Your wrillell SlalCfI)cm lhm you L'Oflti lllJO\J.<dy held [nc required numocr of AAJf"CS for the

one-year period I!.~ of the da[e of [he SI.:nement; and

(C) Your wriuen ~latement [hn[ yOU intend to con[inue.' ownership of the share,; through the

dale of the company's annual ur specil,1 meeting.

(c) Questiun 3: How lllallY proposnl.~ may I suhmit ?

l!:tch shareholder may sl.Ihmil no more th.an ooe proposal \0 a com p.my for a particul"r

~hnreholden;' lIleeting.

(d) Q ueslion 4; lI ow 101IJ;: l'all m y pro pos:ll he?

The PlOpos:1l. including any acL"Ompanying supponing ~tatemenl. may not ellcccd j()(} words.

(e) Q uestion 5: What is the dClidline for submitting a proposal?

( 1) If you are submi tting yonr prupos:!1 for the company's annual meeti ng. yOl.I can in most

ea.'iC» find the deadline III la.'ll year's prolly SlalCmenL However. if the com pon y did !lOt hold all

annual meeting la.~t year. or hilS changed the date of itS meeting for this year I\lore than 30 days

from Ia.~t year's meeting. you can usually lind the deadline in one of the compo1ny's quanerly

reports OIl Fonn IO-Q (§ 249.30& of this e hal~er), or in sharcholdcT n:pons of in'lCSfment com­

panies under § 270.3Od-1 of t h ;~ ch:l pter of the Investment Comp.1ny Act of 1940. In order 10 avoid

controversy. shareholders should 'lIbrnit their proposals by lIlCMS. including electronic means, lhat

permit them to pro\'e the date of delivery.

(2) The c\c:lIdline i~ calculated in the followi ng manner if lhe proflOSItl is sul>miued for a

regut:U'ly scheduled annual meeting. The pmp0i'i:I! must be n:eeived at the company's princip,'!1

ellecolive offices not Ie.~s lhan 120 calen<lar dnys before the dale of the compH Il Y's pm"y ~lIHemcm

relCll."l:d to shareholden in conlM!CUon wit h the previou.~ year's annual meet ing. Howe ver, If lhe

company did not hold an annual mcelillg the previous year. 01' if !he date of this year's annual

meeting ha..~ been changed by more Ihan 30 days from !he do,le of the prcviOl1.'l year's meeting. then

the deadline i~ II reasonable lime beJore the company begins to print and send its pro... y malenals.

(3) If yOU ilf'C submitting your proposal for a meeting of shareholdcn other [han a regularly

!lCheduled annual meeting. the de:KiJine is a reasooabJe time before the company begins to print and

send its proxy malerials.

(f) Question 6: What if I fail 10 folio '" ont' or the eligihility or prncedllr.d reclui rellle llt~

expl:liIl L'(1 in :m swerli to Questions I throll:!,h 4 of this Rul e 14a-8?

( 1) n,c comp,lny mlly exclude your proposal, but only afler it has I'IOtified you of the problem.

and you ha\e failed l1Jequatc:Jy to correct il. Within 14 calendar days of Ta"Civing your proposal. the

company must notify you in wriling of any proc.xlurnl or eligibility deliciencie.~. as well a.~ of lhe

ume fmme for )'uur resptllLo;e, Your response must be postmarketl. or U"dllsmilled electronic.ll1y. no

latcr than 14 duys from the. date you nx:cived the complllly's notification. A company IloI:ed nOI

provicle you such notice of Ddeficieocy if the deficiency cannot be remodied. such as if you fail to

submit a proposal by the C(lmpany's properly delennined deadline. If the rom pan y intends to

e"cludc the proposal. it will laler have to make a submission under Rule 14:1-8 lInd provide you whh

a copy under Quc~tion 10 below, Rule 14:1-8(j).

(2) If you F:lil in your prollli:;c to hold the required number of securi tie.~ through tOe dllle of the

meeting of AAnreholdc:rs, lhen the company witl be penniued to exclude all of your proposals from

il~ proll y materials for ally meeting held in the following t .....o calendar yeaJ1i.

(II UI.U :T1N No. 261. 10· 14-11)

Rule 1~ "8

Regulations 14A, 14C, and 14N (Proxy Rules)

5730

(g) Queslion 7: Who ha.~ Ihe hurdell 0( ~n;u:'ding Ihe Commis...lon or lIS s tl,rr Ilml my

prollOSll l ~III be e:~:cJudl-"(!~

E.otcept :u otherwise noted. the bunJen is on the company to demonStrate that it ill entitled Itl

exdude II proposal.

(h) Queslion H: M us! I 1I111Je3r personally HI lite slmrehulders' 'nC'elin lt 10 Ilrese nl lhe

proptJS:ll?

(1) Either you. or yuur represcnlalh·c woo is qualifi<-"<l under ~tatc I:,w to pre."':nI the p~1

on )tOUt behalf. must aLlenc.l the meeting to prescnl the Ilropollo'l. Whether you alle nd the m~:cting

~oursclf or !;end a qualified represcnlati~c 10 the meeling ;n your place. you ~hould muke sure thaI

you. or your repreloCnUn;\·c. fnllow the proper sta te 11Iw proco..'tIures for tutending the mccting and/or

presenting your proposal.

(2) If the !;:OIIlp;1n y holds its shareholder mccting in whol e nr in pan via electmnic media. and

the cOlll pan y permits yotl or yonr rcpn::;tllllalive to prc.:",:nt your prvposal \ ' 1:1 5u!;:h medi:l. then you

may JPlIC;J.r through ele!;:tronie media l"J.lher lh:ln lmveling 10 Ihe mccting tn appe:lr in pcrson.

(3 ) Ir ~ou {II' your qllulified represenlalive f;dll<) appear alld prtlscnlthc proposal. without gO(ld

cnusc. Ihc cOlll1);tny will be pcnnined 10 clIclude :tll of you r prol){)~nls fmlll its pmll)' nw!crial~ for

any meetings held in Ihc following two c:llclldar ye:tfl\.

(il Q IIL"!li llll 9: Ir I IIIIH) cl)mplil:d wi th the procedural r~'<l uin;IIHmls. 011 wlml olher b;~'iC\S

maya " Ol1lp;lIlY re ly to exc lude m~' prnposal'?

(I) 1"'J1r.1~r Ulldt!r SI/Ite IAII'; If Ihe pl'OpO!Ull is !lOt:l prolJer wbjocl for aelion by share­

hoillcrs ulwJer lh" 1:.ws of the jurisdiction of the company's otg:lIl i~.atiOll:

,v0l<, w "(Ir.l$:fapJI (iX' ): DcpendingOfllhe sub~1 maUer. some prupnS3ls arc not considered

proper urKkr Male law if they would be hindingoo tho: company if approVQI.I hy ~harchllldt-1'lI. In our

experiencc, most proposals that are ClL~1 as recomlllcndatilln..~ Of requc...u (hai the board of directors

take specified action are proper uoo...... Slale law. l\CCQrt!ing!y. we will W'."llme th:n a propos:1l

dl"oI.l\ed as 0. l\'COIltmend.1lioo or suggestion i~ proper unless the company demOrNI"JI(;l; OIho..TWisc..

(2 ) ViolatlOll 0/ JA " ': If the proposal would. if implemcnle<J. cause tiJC (.'()mpany 10 violate any

~tate. fe<lcral. <If foreig n law to which it is subject:

NtJlr In Pll mgt1J/Hr (i)(2): We will nOlllpply th,~ basis for ellelusion 10 pennit eltclusion of

a proposal on grouoos Ihal il would viol;.te foreign law ir compliance wilh the foreign law

would re.~ull in a violation of any Slale or fedeml law.

(3) ~/il'(Qlj()1I of I'rox] Rulu: If the p~'1 or s upportillB stalement ill contrary to un y of the

Cur11lni s.~ion·s proxy rules, including Rule

14a-9. which prohibit:. materially rulse or Inislcooing

statementll in prolty ~Iidti ng rnlllcria!s;

(4) " "r:wuaJ ( ;rie\'Ol/clI; Specifil l"leresl: If lhe proposal rclalc~ 10 lhe rcun;.....~ of a pcrsunal

claim or gricv;lOcC :Igllinst lhe company or allY other person. or if it ill' dc~igned to resul t in u benefil

to you. or 10 f(ln her (I pel'1Wnal interest. wh ich is m it ~hared by Ihe olher .~hnreho lders al large;

(5) Relm'" I/clI: If Ihe Ilropos:d n:latc..~ 10 opcr.uions which ru;counl for Ic.~s Ihan 5 pcn.:enl of the

c{lrnpun {~ lotal :I~SCIS althe coo or iL~ mosl recent fi~ul year, and for less Ihnn S pet(."ent of ils llet

carnin gs nnd gro~s ).3Jc.~ for its Il)();(t recent fisc:.il year. llnd i.~ not olherwi~ significantly related 10

the t,()nlp,'nis hu~rnc~,:

(6) Ahs'llee /1/ PO .... llrJAulllOrU),: If the t'Olllp.:l ny would Inel: the power nr autho rity 10 im­

plement the propo~ll:

(7) Mmra1:lImt!ll1 f'llIIctiolls: If the propo;;a! deal ... with a mailer rclutln g to the co mp:UlY's

unlimll')' bu~inc\., opcr.uions;

(n ULI.lITtN No. 261. 10-14· 11)

Rule 14a-8

Regulations 14A, 14(;, and J4N ( Proxy Rules)

5731

·(11) J)irrclllr 1:.'/«1;0/11;: If the prollosal:

Ci} Would disqu:til(y II nominee who is Sl a nding roc election;

Oi ) Would rernoye 3 diroctor (rom o(fice before hi.~ or her (e m l ex pired:

(i ii) Quest iOns the competence. business judgment. or chul1ll:ter of one or more nomillcc.~ or

directors:

(iy) Seeks to inc lude a spec.:ifil: individual ill !he: CQl11P;u\y'~ proxy materials (01" clOClion 10lhe

MinI o( directors: or

(y) OIherwise could affoctlhc oulcome of the upcoming electioo of din:ctoo..

(9) Cmiflicl:r willf COlllpaIlY '~ Propo.(tI/: If lhe proposal di~ll y COIlnicl.~ with nne of lhe

~'o!l1PJ l1 y'lI own prnposals to be submilled 10 ~hareholdcrn ut Ihe s-arne meet ing:

Noll' I() I'ar(l}/rnph (iN9); A e<)mpJny'~ submis.... iOll 10 Ihe COmmis.~iOl1 under this Rule

148-11 s hould spec ify the poinu. of con n iC1 with tnc e()rnpany'~ pmpos.al.

(10) SlIb1ita lltiall, ImplllnlUIll'd: [f Ihe C<l/llpany hali already subst;anlially implemented lhe

[m>pI,-'" i1 ;

UNIltf' I/> PI,mgnw" (iX /0); A ~(l!l1pa ny mny c\c!ude a sha rehold~r prop()sal thai would

an mlvi.""lry \'OIe or seck future lldyi .<ol)' YOIeS 10 lLpprol'e Ihc Ctl ll\[lCIlS,I!iClIl o f

e:tl.'CUIIYCS as disclosed porsu:Jnl to Ileul 402 of Regu lOllioll S- K (§ 229.4()2 of Ihi~ ehJpter ) or

any SIIccc..·'.'lor In Item 402 (J "s.:J.y-on-pay yotc") ')!"thal relalc.~ 10 the freqlL~ney of ."Ily·tm-pay

\'OIC.~. pro~iUcd that in the most recent ~hareholdcr \Llte requ ired hy §2.ffi. 14a·2I(b) of Ihis

chapter a sin&lc ycolr (il!.. OIlC. two. ()( Ihree ycar:s) received approval of a majority of votes

cast on Ihe mailer and lhe company Msadopted a policy on the fn:qllellCyof!i:l.y -on-pay \nt.es

thaI is ,:onsiSlcm with the c hoice o( the majority of vote.~ ea...t in Ihe mo.~1 recent s h:trehnldcr

Yote f"C(luircd by § 240.14lt-2I(b) of thi" c haplet".

prClYid~

( I J) Olip/iC(llhlll; If Ihe proposal sub."I:mtililly duplio;:'lcs another pl"OfJO"IlI preYiou...ly .'tI LI>­

miued to the cnrnl,any by allOl.hcr proponcnlthal will be incl uded in the ooll1p;\n y'~ pru~y malerials

for the s.:J.rnc meeting:

(12 ) R~:mbmi.uiOl'S; If the ~I deals with subst.1ntially the samc subjC(:1 nUUlcr as

another pmposltl (lr prupos:tls that hUll or have been previously included ill lhe COlllpany's proxy

ntllteriu.i< wilbin the precedillg 5 calendar year.;, a ("lIIlpi1ny may c.>oclude it fmlll it5 prollY

m3tcriil.l~ for any meeting held within 3 calendar )'cars of Ihe 1n.(1 lime it was induOcd if the

propn<al n..'Ce;Yed:

0 ) I .e.~s !h;lLl 3% of lhe YOle if proposed once within the preceding.:'> calendar ye ars:

(ii) l..ess than 6% of the yote on its Iw;t submission 10 ~hareholdcrs if I'roposctl twice preyiously

within the pn.:ceding S calendar yean: Of

·Effocl; ve September 20.2011 . I(ule 1.la-8 was arllendcd hy revi.ing p:ln.grnph (i)(M) as pat! or lho:

ulIlcndmcnts f:M:ilil:uillll shllrcholder di,eclor n"rninaLI(>n~. Sec SI;C Release Nos. 31·92.~9: 34-tiSJ4J: IC·

29?K8: September ".2011. See also SEC Rcle:\.'\C No,;. .13-9136: 34-621fl4: [C-29384 (Aull. 25. 2(10): SEC'

Release NO'. 3)-9 [49: 34-6.303t: lC·29-t.s6 (<XI. 4. :roID): SEC Rclca.\C Noa. 33·9151: 34-631{ll): IC-29462

(Oct. 14.20(0).

UEffeeti\'t! April 4. 2011. Rule 14:,-)1 was :uncntled by 3dtjin, NI){~ II/ I'liruNroJ/h (iN /OJ :L'i pan or rule

amcndmen1~ inlplcmcnlintt Lhe pruvH.K>M 0( lho: Dodd- r'1"1U\t Ac! "'t:U'n, 10 llhareholder lIpproval of execuli,'e

"'''''l'''llSaIion ~nd ",Iokn pnrochutc eOlnp;!1UaIi •.., atrMgcmcnlll. Sec SEC Rde""" NO&. 3.\-91111: 1-1..(>3168;

bnu:ory 25. 201 t. ("","j",~.(' IAUf': ,\prH 4. 2011 . For other rompU= dale!' ",[mcd CO lhi~ relc~. '" SEC

Iklcasc N". )3'11111.

( n LII.t.Y.TIN No. 261 , 10. [4- ( 1)

Rule 14:1-8

Reguhttions 14A, J4C, a nd 14N (proxy Rules)

5732

(iii) Le!>.~ th:ln 10% of the vote nn ils III~I ~ lIbl1l i~sion to shareholders if proposed three limes or

more previously lVithin the preceding 5 !;nlendur y~rs; :Uld

( 13) Spt!cific A//Imlllf of l)jfid~lIds: If the proposal relates 10 slX-'Cifi e amounts of cas/lor stnd

dIvide nds.

(jl Q Ul'!Sl io n 10: \"h;It pfiloCed u rt'S mus l thl' comp.my follow if It intends 10 exdool' my

p ro lJOSaI?

(I) If the compan y mteoos 10 exclude II proposnl from tl~ proxy lllatCfillL~, it must file itll rcason.~

wi th the Cnmmission no Imer than 80 ealendoJr days before it fill'S it ~ definitive proxy slIltcmenl and

form o f pro"y wlIh Inc COlllmi~sion. 11te company mu.~t ~inlUl lancousl y provide )"ou wi th II copy of iL~

submission. The Commis..\ion s(aff rna)" permit the ~'OIlljXUly 10 mili il$ IiUbmi.'lS1on lata thall 80 day~

before the company files ilS definiti' e proxy statement and foml o f proxy. if the company dcmOllslr,ilCS

good cause for mis.'1ing lhe deadline.

(2) The conlp~ ny must file siJo. pilper ooPlc.~ of the follo wing:

(il 1ltc proposal:

(ij) An expl;mll tio n of why the cOIl1p:tny bclieve~ th:1I it may excl ude the ptopOS.:ll, whi ch

should, if pos..~ible. refcr to the mo~t rece nt uppli cllble authority. soch Il~ prior Divillion letters is.~llcd

unOcr tbe rule:; .illd

(iii) A supponing OIli nion of cotm seJ when such rca....>IlS are ba.~ on matten. or stilte or

foreign law.

( k) Queslion I J: May I s ubmit III)' 0\0"0 s t:d e ment to the COl11l11is.'iiOiI reslK)udillj! to the

t'olllfla IlY's ar"l:u llle nt.~·!

Yes, you lIIay submit a response. but it is ont r<Xjuired. You shou ld try to !\lIbmit :lny re.'rxmsc:

to Ull. with a copy to the company. a.~ SOOtI as possible after th<! company malcs iL~ su bmis.~inn. 11ti ~

way, the COlllmil'Sion ~I arr will have time 10 coosilier fully yoor ~ubmiS$iOl"l bef~ il is.~lICS iL~

response. You s hould ~ubmil sill: paper copies of your re."POnsc.

(I) Q u C!>1.ion IZ: Ir Ihe com pan), includes my s hare holder Jlroposal io i t.~ proxy mate rial'!.

what information lIhout me ,IIlL'> ' iI incl ude alo ng with Ihe pro lM.s;\I itwlr!

( I ) The company '~ P'Uxy slutemcut mus t include your nllme and a(k1res.~. as well M the

number or the c(lll1p:m y's voting scc urit il!!i [hat you hold. j·loW\:ve r. itL"te:ld of providing tlt'll

inf'nlllation. Ihe comp;LJiy m"y instead include It .~tatcmentthat il ", ill provide the infonnat ion to

.~ hllT1.'holdcrs promptly up",n receiving an oral Of writt en requeSl.

cn The company is nOi l"C..«pon..ible for the contcnL~ of your proposal Of supporting SI.:llemCni.

(m) Q ueslion 13. W hal ca n J dn if the COlllllao Y ind n des in illl Il roxy slatement rt'asons

why il hel il'n's s hnreh"Jdf.'n> s hould nut \'o le In f,I\'<lr of my I'rullOSll l, and J disllgrt~ wil.h smu t'

o r lis slal e ments'!

( I) Th e I'tJlupuuy n'~y c lect 10 incluUc in il~ proxy statement fClI!iOllS why il bclieve.~ shareholders

should vOlt' ag:llnst your propct;a1. TIle com pauy is alJow.:d to make arguments reflecting its own poinl

or view, JUS! Illl you may express your own poim of view in your propOS:ll's supporting Slatemenl.

(2) HOWl'VCf. if you be lie"e thatlhc oom pany·.~ Of1I"JO&il inn 10 )'our propos:lJ contnins m.1lerillJl y

false or misleading slatements that may violate our anti- rmud mle. Ru le 14a· 9. you should promptl y

SI:nd to the CornrllillSiuo staff and the. com p:rny a leiter explaini ng the reasons for your view, along

with a copy of the company's SLaterncnts opposi ng your p~l . Tn the eX len! pm.~ible. your leller

!ohould include iIpI..'Cilic fa.::tuul infonll<ltioll demon.~trJting the inaccuracy o f the compan y's claims.

Time penninin/;. you lII:!y wis h to try to work nu t your d iffercocCII with the eompany hy yO\lrself

before cont:lcling the Conmli~sinn staff.

Ohll.U -:TIN No. 261, 100 14-JI)

R~ulations 14.'\., J4C, and 14N (Proxy Rules)

5733

(3) We require the com~lIly 10 send you II copy of its ~1:lIemt:n(i opposing your proposal

before il £ends its prox y materials. so Ihal you may bring 10 our attention any materially flll~ or

misleading st:lIements, under the followi ng limr:::framcs:

0 ) If our no-actioo !'espouse fecju ires that you make fevision~ 10 your proposal Of supponing

St:UC!nCnt lIS II condition to requiring the company to include it in its proxy materials. then the

r;Q1l1pany must provi de you with a copy of its o pposition statements no llller than 5 calendar dllY~

after the co mpany rlX'eive~ 11 copy of your revised propoS3.l: o r

(ii) In all olher CI\:iC.', the company must provide you with p copy of its oppoosition statcme nts

no later thnn 30 calendar days before: it filc~ definitivc copie$ of its prox y statement and roml of

proxy under Rule 14a-6.

Lekstutis. Carm ine

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Barbato, Christine M

Thursday, April 12, 2012 10:48 AM

Lekstutis , Carmine

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