Securities Exchange Act of 1934 - Rule 14a-8(i)(3) and 14a-9 Tri-Continental-Laukat
March 15, 2004
Donald R. Crawshaw, Esquire
Re: Tri-Continental Corporation - Intention to Omit Supporting Statement of Mr. Robert P. Laukat
Dear Mr. Crawshaw:
In a letter received on January 21, 2004, you notified the Securities and Exchange Commission of the intent of Tri-Continental Corporation to exclude from its proxy materials for its 2004 annual meeting the supporting statement ("Supporting Statement") to a shareholder proposal submitted by Robert P. Laukat. The proposal states:
RESOLVED: That the shareholders of Tri-Continental Corporation, assembled in Annual Meeting in person and by proxy, hereby request the Board of Directors to take the necessary steps to provide for cumulative voting in the election of directors, which means each shareholder shall be entitled to as many votes as shall equal the number of shares he or she owns multiplied by the number of directors to be elected, and he or she may cast all of such votes for a single candidate or any two or more candidates as he or she may see fit.
We note that you do not seek to exclude the proposal from Tri-Continental's proxy materials. Rather, you requested our assurances that we would not recommend enforcement action if Tri-Continental omits the Supporting Statement in its entirety or, if we disagree that the entire Supporting Statement may be excluded under Rule 14a-8(i)(3) under the Securities Exchange Act of 1934, that certain portions may be excluded pursuant to that rule.1 You assert that the Supporting Statement includes specific statements that are false and misleading or are otherwise vague, indefinite or incomprehensible.
We are unable to concur with your view that Tri-Continental may omit the entire Supporting Statement under Rule 14a-8(i)(3). Further, although there may be some basis for your belief that portions of the Supporting Statement may violate Rule 14a-9, we believe that Mr. Laukat may cure the potential violations by amending his Supporting Statement. In our view, he should:
Accordingly, unless Mr. Laukat provides Tri-Continental with a supporting statement revised to reflect these concerns within seven calendar days after receiving this letter, we will not recommend enforcement action to the Commission if Tri-Continental omits only these portions of the Supporting Statement from its proxy materials in reliance on Rule 14a-8(i)(3).2
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) 942-0653.
Christian T. Sandoe
cc: Robert P. Laukat
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