SIDLEY CORPORATE GOVERNANCE REPORT

Overview ...... 1 Proxy Access Momentum in 2016 Proxy Access Will Likely Become a Majority Practice Among Large The SEC’s 2010 Proxy Public Companies Within the Next Year Access Rule ...... 3 June 27, 2016 Recent Uptick in Shareholder Proxy Access Proposals ...... 3 Through the collective efforts of large institutional investors, including public and private pension funds, and other shareholder proponents, Companies Targeted for 2016 ...... 4 shareholders are increasingly gaining the power to nominate a Institutional Investor Support for portion of the board without undertaking the expense of a proxy Proxy Access ...... 4 solicitation. By obtaining proxy access (the ability to include shareholder nominees in the company’s own proxy materials), Proxy Advisory Firm Policies on shareholders will have yet another tool to influence board decisions. Proxy Access ...... 7 Approximately 40% of companies in the S&P 500 have now adopted Grounds for Exclusion of proxy access. We expect that proxy access will become a majority Shareholder Proxy Access Proposals ...... 10 practice among S&P 500 companies within the next year.

SEC Guidance on Excludability of As a follow-up to our previous reports on proxy access, this update Directly Conflicting Shareholder reflects recent developments on the topic, including: Proposals ...... 11 • changes to institutional investor policies on proxy access, such as SEC Grants of No-Action Relief for Vanguard lowering the ownership threshold for likely support from Substantially Implemented Proxy 5% to 3%, Access Proposals ...... 12 • the willingness of the Securities and Exchange Commission (SEC) Voting Results on Proxy Access to grant no-action relief on the basis of “substantial implementation” Proposals ...... 12 to companies seeking to exclude proxy access proposals so long as the 3% for 3 years ownership threshold in the company’s proxy Adoption of Proxy Access Provisions access bylaw is consistent with the proposal, and even if the bylaw And Typical Parameters ...... 15 otherwise deviates from the proposal’s terms (e.g., nominating A Moving Target – Amendments to group size limit or the percentage of proxy access board seats), Previously Adopted Provisions ...... 16 • voting results on proxy access proposals so far in 2016 and • the steady pace of proxy access bylaw adoptions and the Potential Impact of Proxy Access on convergence toward standard key parameters (most commonly 3% Corporate Governance ...... 20 for 3 years for up to 20% of the board (at least 2 directors) with a International Perspectives on Proxy nominating group size limit of 20). Access ...... 21 We have also updated the Appendix which highlights, on a company- Practical Considerations ...... 21 by-company basis, various terms of proxy access provisions adopted Appendix – Select Terms of Proxy by 241 companies in 2015 and so far in 2016, including the terms Access Provisions Adopted Since adopted by 123 companies since we published our last Sidley January 1, 2015 Corporate Governance Report on proxy access on January 14, 2016.

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© 2016 Sidley Austin LLP and Affiliated Partnerships. All rights reserved. The firm claims a copyright in all proprietary and copyrightable text in this article. Sidley Austin provides this information as a service to clients and other friends for educational purposes only. It should not be construed or relied on as legal advice or to create a lawyer-client relationship. Attorney Advertising - For purposes of compliance with New York State Bar rules, our headquarters are Sidley Austin LLP, 787 Seventh Avenue, New York, NY 10019, 212.839.5300; One South Dearborn, Chicago, IL 60603, 312.853.7000; and 1501 K Street, N.W., Washington, D.C. 20005, 202.736.8000. Page 2

Snapshot of Proxy Access Provisions Adopted Since January 1, 2015 (See the Appendix for these and additional provisions, presented on a company-by-company basis)

Proxy Advisory Firm Policies Prevalence of Shareholder and Council of Institutional Selected Alternatives Viewpoints* Investors (CII) Position

• 3% / 3 years – 232/241 • Nearly all favor 3% • ISS and Glass Lewis Ownership (96%); included in SEC • Shareholder proposals support 3% Threshold and vacated rule Duration more likely if company • CII supports 3% and views 5% as • 5% / 3 years – 9/241 (4%) adopts at 5% “troublesome”

• Greater of 2 or 20% – • ISS and Glass Lewis 151/241 (63%) support 25% Proxy Access • 20% cap – 57/241 (24%) • If adopted after majority-supported Nominee Limit • Most favor 20-25% shareholder proposal, ISS may issue • Greater of 2 or 25% – (Max. % of negative vote recommendations Board) 12/241 (5%) against directors if less than 20% • 25% cap – 21/241 (9%); • CII favors ability to nominate at least included in SEC vacated rule two candidates • No limit – 6/241 (2%); included in SEC vacated rule • 50 – 1/241 (0%) • ISS favors minimal or no limits • General consensus that • 30 – 2/241 (1%) limit of 20 is reasonable • If adopted after majority-supported Nominating • 25 – 8/241 (3%) shareholder proposal, ISS may issue Group Size Limit • Possibility of shareholder negative vote recommendations • 20 – 215/241 (89%) proposals seeking against directors if less than 20 removal of limits • 15 – 3/241 (1%) • CII views any limit as “troublesome” • 10 – 5/241 (2%) • 5 – 1/241 (0%) * Derived from publicly available voting policies as well as preferences expressed through engagement and voting results.

While proxy access has been the subject of shareholder proposals for several years, 2015 was a tipping point, following the private ordering pattern of majority voting in uncontested director elections. The proposals request that the board amend the bylaws to allow large, long-standing shareholders (or groups of shareholders) to nominate directors and include those nominees in the company’s own proxy statement and related materials. The 2015 proxy season saw a significant increase in the number of shareholder proxy access proposals and shareholder support for such proposals (see box below), as well as an increased frequency of negotiation and adoption of proxy access via board action—including an accelerating trend towards board adoption without receipt of a shareholder proposal. This trend continued into the first half of 2016.

Proxy access initiatives had limited levels of success prior to 2015. However, shareholder support started to increase in 2014 as proponents began to focus on the 3% for 3 years ownership requirement adopted by the SEC in its 2010 rulemaking efforts (as described below).

Key Highlights of Shareholder Proxy Access Proposal Voting Results* Shareholder Proposals 2014 2015 2016 (through June 24) • Voted On 18 91 76 • Passed 5 55 38 • Average Support 34% 55% 51% * Data points in this report with respect to proxy access proposals are derived from SharkRepellent.net, last accessed on June 24, 2016. All voting results in this report are calculated on the basis of votes cast “for” the proposal divided by the sum of votes cast “for” and “against” that proposal (not taking into account abstentions).

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In 2015, with a major initiative from public pension funds led by New York City Comptroller Scott M. Stringer and with encouragement from major investors, such as TIAA, and the large institutional investor industry group, the Council of Institutional Investors (CII), proxy access took hold. Adding to the momentum was the SEC’s removal beginning in 2015 of a key defense in the form of no-action relief in situations in which a company intends to put forward its own competing proposal. Proxy advisory firm policies that support proxy access and discourage efforts to defend against proxy access proposals added to the momentum. Moreover, in August 2014, the CFA Institute published a report discussing the potential economic benefits of proxy access; this report has been cited by Comptroller Stringer, CalPERS and other proponents in their proposals.1 In early 2016, a business law professor published a policy brief criticizing the CFA Institute report as being “deeply flawed” and urging that it not be used as support for mandatory proxy access.2

The broad-based shareholder campaign for proxy access on a company-by-company basis, and the momentum that continues to accelerate among targeted companies and other leading companies to respond by taking action to adopt proxy access (with or without first receiving a shareholder proposal), is reminiscent of the campaign several years ago for companies to replace plurality voting with majority voting in the uncontested election of directors. Both issues relate to the ability of shareholders to influence the composition of the board, and both campaigns show the power of concerted efforts at private ordering.

THE SEC’S 2010 PROXY ACCESS RULE

The SEC has unsuccessfully sought to adopt a market-wide proxy access rule for decades. Most recently, in 2010, the SEC adopted a proxy access rule (Exchange Act Rule 14a-11) that would have given shareholders the ability to nominate candidates through the company’s proxy materials if a shareholder (or a group of shareholders without any limit on the size of the nominating group) held 3% of the company’s shares for at least three years. Under the rule, a nominating shareholder (or group of shareholders, with no limit on the size of the group) could nominate one proxy access director, or 25% of the board, whichever is greater. Rule 14a-11 was adopted shortly after Section 971 of the Dodd-Frank Act confirmed the SEC’s authority to promulgate a proxy access rule. The SEC issued final rules mandating proxy access in August 2010, which were scheduled to become effective in November 2010. In addition, the SEC also amended Exchange Act Rule 14a-8(i)(8) to allow shareholder proposals relating to proxy access and certain other director election mechanisms.3

In September 2010, Business Roundtable and the U.S. Chamber of Commerce challenged Rule 14a-11. In 2011, the U.S. Court of Appeals for the District of Columbia Circuit vacated Rule 14a-11 on the grounds that the SEC had acted “arbitrarily and capriciously” in promulgating the rule and failing to adequately assess its economic impact.4 The SEC did not appeal the court’s decision and has not re-proposed any proxy access rule since that decision; however, the amendment to Rule 14a-8 described above became effective in September 2011, thereby opening the door to shareholder proposals seeking proxy access.5

RECENT UPTICK IN SHAREHOLDER PROXY ACCESS PROPOSALS

In public comments on the SEC’s proposed Rule 14a-11, several commenters expressed the view that the matter should be left to shareholders and companies to decide on a company-by-company basis through private ordering.6 Private ordering may take place, for example, pursuant to Section 112 of the Delaware General Corporation Law.7

Fifteen companies adopted proxy access prior to 2015, including a few large companies, such as Hewlett- Packard Company (now known as HP Inc.), The Western Union Company and Verizon Communications Inc., which each adopted proxy access after receiving a shareholder proposal on the topic, as well as some companies that have since gone private. In addition, proxy access with a 5% for two years ownership threshold has been mandatory for companies incorporated in North Dakota since 2008; and we are aware of one public company that reincorporated to North Dakota several years ago with the stated purpose of taking advantage of this and other

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“shareholder-friendly” provisions.8 To date, no shareholder has included a director nominee in the proxy materials of a U.S. company pursuant to a proxy access right.9

The private ordering effort is now in full swing. Shareholder proposals seeking proxy access have been the defining feature of the 2015 and 2016 proxy seasons. 115 shareholder proxy access proposals were submitted for the 2015 proxy season, which was more than four times the number submitted for the 2014 proxy season. Based on the success of private ordering efforts in 2015, more than 200 shareholder proxy access proposals were filed for the 2016 proxy season, well surpassing prior-year levels.

The New York City Pension Funds, with approximately $160 billion under management, accounted for the majority of the proxy access proposals submitted for the 2015 proxy season. In November 2014, Comptroller Stringer announced the “Boardroom Accountability Project,” targeting 75 companies with non-binding shareholder proxy access proposals.10 The proposals request that the board adopt a bylaw to give shareholders who meet a threshold of owning 3% of the company’s stock for three or more years the right to include their director candidates, representing up to 25% of the board, in the company’s proxy materials, with no limit on the number of shareholders that could comprise a nominating group. According to Comptroller Stringer, the targeted companies were selected due to concerns about the following three priority issues:

• Climate change (i.e., carbon-intensive coal, oil and gas and utility companies). • Board diversity (i.e., companies with little or no gender, racial or ethnic diversity on the board). • Excessive executive compensation (i.e., companies that received significant opposition to their 2014 say- on-pay votes).

COMPANIES TARGETED FOR 2016 On January 11, 2016, Comptroller Stringer announced that the New York City Pension Funds expanded the “Boardroom Accountability Project” by submitting proxy access proposals at 72 companies for the 2016 proxy season.11 36 companies that had received proxy access proposals from Comptroller Stringer’s office in 2015 were targeted again for 2016 because they had not yet adopted proxy access at a 3% ownership threshold (two companies that had adopted a 5% proxy access bylaw received a binding proposal for 201612). Another 36 companies were newly targeted for 2016, with a focus on the New York City Pension Fund’s largest portfolio companies, coal-intensive utilities and companies selected due to concerns about board diversity and excessive CEO pay. The form of proxy access proposal submitted by Comptroller Stringer for the 2016 proxy season did not differ substantively from the template submitted for the 2015 proxy season except that it no longer specifically sought shareholder approval of proxy access bylaws. As of June 24, 2016, 56 of the 72 companies targeted for 2016 have adopted proxy access.13 Companies that were targeted by the New York City Pension Funds for 2016 are identified by an + in the Appendix.

INSTITUTIONAL INVESTOR SUPPORT FOR PROXY ACCESS

Proxy access is supported by many institutional investors, including the following:

• BlackRock – will review proxy access proposals on a case-by-case basis and generally support them provided that their parameters are not “overly restrictive or onerous” and “provide assurances that the mechanism will not be subject to abuse by short-term investors, investors without a substantial investment in the company, or investors seeking to take control of the board.”14 • California Public Employees’ Retirement System (CalPERS) – indicated that proxy access was one of its strategic priorities for the 2015 proxy season and supported proxy access proposals at 100 companies in 2015.15 In February 2016, CalPERS announced that proxy access will continue to be a strategic priority in 2016 and that it will continue to support shareholder proposals at the 3% for 3 years

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threshold and will issue adverse votes against director nominees at companies where proxy access proposals passed in 2015 and that implemented provisions that restrict or limit the use of proxy access.16 Finally, CalPERS updated its Global Governance Guidelines in March 2016 to recommend that companies adopt proxy access at the 3% for 3 years threshold to nominate up to 25% of the board.17 • California State Teachers’ Retirement System (CalSTRS) – supports proxy access at the 3% for 3 years threshold, capped at a minority of board seats.18 • State Street Global Advisors – will review proxy access proposals on a case-by-case basis evaluating the company’s specific circumstances and the proposal’s potential effect on shareholder value, taking into account “the ownership thresholds and holding duration proposed in the resolution, the binding nature of the proposal, the number of directors that shareholders may be able to nominate each year, company governance structure, shareholder rights and board performance.”19 • TIAA (formerly TIAA-CREF) – wrote to the 100 largest companies in which it invests in February 2015, encouraging them to adopt proxy access at the 3% for 3 years threshold. 20 In addition, TIAA submitted proxy access proposals at some companies for the 2016 proxy season. • T. Rowe Price – supports proxy access proposals at the 3% for 3 years threshold and opposes “significant impediments” to a proponent’s ability to aggregate holdings with other shareholders to qualify for proxy access. For the 2016 proxy season, T. Rowe Price added to its Proxy Voting Policies that it will generally recommend votes against shareholder proposals to amend existing proxy access bylaws if the company’s bylaw meets the 3% for 3 years threshold and does not impede aggregation.21 • United Brotherhood of Carpenters – sent letters to 50 companies in late 2015 seeking a proxy access right in the event that the board refuses to accept the resignation of an incumbent director who fails to receive majority support.22 The letters were sent to companies with a majority voting standard and a director resignation policy and that had shareholder proxy access proposals on the ballots for their 2015 annual meetings, whether or not those proposals received majority support. • Vanguard – announced in February 2016 that it amended its proxy voting guidelines to decrease the ownership threshold for likely support from 5% to 3%. Vanguard stated that the policy change was informed by engagement over the past year and “the critical mass of access adoption at the 3 percent ownership level by an increasingly wide range of companies.” Vanguard will continue to evaluate proxy access proposals on a case-by-case basis but will now generally support proposals at the 3% for 3 years threshold, capped at 20% of board seats.23 Fidelity generally votes against management and shareholder proposals to adopt proxy access.24

Several institutional investors have recently adopted proxy access, shedding light on the terms they presumably find acceptable.25 The table below shows the key parameters of the proxy access provisions adopted by major institutional investors since late 2015. All were adopted by the board by unilateral bylaw amendment, except where otherwise indicated.

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Ownership Threshold Nominee Limit Nominating Group Institution and Duration (Max % of Board) Size Limit The Bank of New York Mellon Corp. 20% 3% for 3 years 20 (adopted on 10/13/15) (at least 2 directors) BlackRock, Inc. (approved by 3% for 3 years 25% 20 shareholders and adopted on 5/25/16) The Goldman Sachs Group, Inc. 20% 3% for 3 years 15 (adopted on 10/23/15) (at least 2 directors) JPMorgan Chase & Co. 20% 3% for 3 years 20 (adopted on 1/19/16) (at least 2 directors) Morgan Stanley 20% 3% for 3 years 20 (adopted on 10/29/15) (at least 2 directors) State Street Corporation 3% for 3 years 20% 20 (adopted on 10/15/15) T. Rowe Price Group, Inc. 20% 3% for 3 years 20 (adopted on 12/10/15) (at least 2 directors)

CII has long supported proxy access, favoring a broad-based SEC rule imposing proxy access. Absent such a rule, Section 3.2 of CII’s Corporate Governance Policies states that a company should provide access to management proxy materials for an investor or a group of investors that have held in the aggregate at least 3% of the company’s voting stock for at least two years, to nominate less than a majority of the directors.26

In August 2015, CII issued guidelines setting forth what it considers best practices for companies adopting proxy access provisions. The guidelines highlight seven provisions that CII finds “troublesome” in that they could “significantly impair shareowners’ ability to use proxy access, or even render access unworkable.”27 The provisions that are of most concern to CII are:

• An ownership threshold of 5%. • The percent or number of board members that may be elected could result in fewer than two proxy access nominees. • Aggregation of shareholders to form a nominating group is limited to a specified number. • Not counting loaned shares (that meet certain conditions with respect to recall and voting) toward the ownership threshold during the holding period. • A requirement for a nominating shareholder to continue to hold the requisite percentage of shares after the annual meeting. • Re-nomination restrictions in the event a proxy access nominee fails to receive a specified minimum percentage of votes. • Prohibitions on third-party compensation arrangements with proxy access nominees (although CII supports disclosure of such arrangements). When the guidelines were issued, the interim executive director of CII stated that every proxy access provision in effect at the time included at least one of these “troublesome” provisions.28

Some institutional investors that favor proxy access coordinated their efforts during the 2015 proxy season in an attempt to increase investor support for the proxy access proposals they sponsored. Specifically, the New York City Pension Funds, CalPERS and other large labor-affiliated pension funds each filed Form PX14A6Gs with the SEC enabling them to communicate in support of their proxy access proposals (but not collect actual proxies)

Sidley Austin LLP Page 7 without such communications being subject to the proxy solicitation rules. The New York City Pension Funds partnered with CalPERS again in 2016 to conduct exempt solicitations in support of proxy access proposals.

According to a report on the 2015 proxy season by Broadridge and PricewaterhouseCoopers, institutional investors are four times more likely to support proxy access than are individual investors: 61% of votes cast by institutional investors were in favor of proxy access in the first half of 2015, compared with only 15% of those cast by individual retail investors.29 The report also indicated that retail investors voted only 28% of the shares they own. These findings suggest that companies facing a proxy access vote should seek out opportunities to engage with retail investors and encourage them to vote.

PROXY ADVISORY FIRM POLICIES ON PROXY ACCESS

Both Institutional Shareholder Services (ISS) and Glass, Lewis & Co. generally favor proxy access for significant, long-term shareholders.

ISS Shareholder and Management Proxy Access Proposals

ISS generally recommends in favor of shareholder and management proxy access proposals with all of the following features:

• An ownership threshold of not more than 3% of the voting power. • A holding period of no longer than 3 years of continuous ownership for each member of the nominating group. • Minimal or no limits on the number of shareholders that may form a nominating group. • A cap on the number of available proxy access seats of generally 25% of the board.30 ISS will review any additional restrictions for reasonableness. ISS will generally recommend a vote against proposals that are more restrictive than the ISS guidelines. ISS policy does not specifically address how it evaluates competing shareholder and management proposals. In 2016, ISS recommended votes in favor of the shareholder proposals and for the management proposals with 3% ownership thresholds but against the management proposals with 5% ownership thresholds. In 2015, ISS recommended in favor of the shareholder proposals and against the management proposals, as described below.

Board Responsiveness to a Majority-Supported Shareholder Proposal31

ISS issued FAQs in December 2015 clarifying when it may issue negative vote recommendations against directors of companies that do not implement a majority-supported shareholder proxy access proposal substantially in accordance with its terms.32 In evaluating a board’s response to a majority-supported proposal, ISS will examine:

• Whether the major points of the shareholder proposal were implemented. • Additional provisions that were not included in the shareholder proposal in order to assess whether such provisions unnecessarily restrict the use of a proxy access right. ISS may recommend votes against individual directors, nominating/governance committee members or the entire board if the proxy access provision implemented or proposed by management contains material restrictions more stringent than those included in the shareholder proposal with respect to the following:

• Ownership thresholds above 3%. • Ownership duration longer than 3 years.

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• Aggregation limits below 20 shareholders. • Cap on proxy access nominees set at less than 20% of the board.

ISS may issue negative vote recommendations against directors if the aggregation limit or cap on proxy access nominees differs from the terms of the shareholder proposal and the company has not disclosed its shareholder outreach efforts and engagement.

If the proxy access provision contains restrictions or conditions on proxy access nominees, ISS will review it on a case-by-case basis and consider the following restrictions as “potentially problematic,” particularly when used in combination:

• Prohibitions on resubmission of failed nominees in subsequent years. • Restrictions on third-party compensation of proxy access nominees. • Restrictions on the use of proxy access and proxy contest procedures for the same meeting. • How long and under what terms an elected shareholder nominee will count towards the maximum number of proxy access nominees. • When the right will be fully implemented and accessible to qualifying shareholders. ISS views the following restrictions as “especially problematic” in that they “effectively nullify the proxy access right”:

• Counting individual funds within a mutual fund family as separate shareholders for purposes of an aggregation limit. • The imposition of post-meeting shareholding requirements for nominating shareholders.

ISS policy does not address the unilateral adoption or amendment of proxy access bylaws.

Proxy Access Nominees

The FAQs ISS issued in December 2015 also clarify that when evaluating proxy access nominees, it will take into account any relevant factors, including:

• Nominee/nominator specific factors: - Nominators’ rationale. - Nominators’ critique of management/incumbent directors. - Nominee’s qualifications, independence and overall fitness for directorship. • Company specific factors: - Company performance relative to its peers. - Background to the contested situation (if applicable). - Board’s track record and responsiveness. - Independence of directors/nominees. - Governance profile of the company. - Evidence of board entrenchment. - Current board composition (skill sets, tenure, diversity, etc.). - Ongoing controversies, if any.

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• Election specific factors: - Whether the number of nominees exceeds the number of board seats. - Vote standard for the election of directors.

Beginning in November 2015, ISS’ QuickScore governance ratings product has tracked, on a “zero-weight” basis, whether a company has adopted proxy access. In particular, ISS tracks the minimum ownership threshold and holding period, the maximum number of shareholders that can comprise a nominating group and the maximum percentage or number of board seats open to proxy access nominees.33

Glass Lewis Glass Lewis’ proxy voting policies for 2016 provide that it will review on a case-by-case basis shareholder proxy access proposals and the company’s response, including whether the company offers its own proposal in place of, or in addition to, the shareholder proposal. Glass Lewis will consider:

• Company size. • Board independence and diversity of skills, experience, background and tenure. • The shareholder proponent and the rationale for the proposal. • The percentage of ownership requested and the holding period requirement (although note that Glass Lewis policy does not specify a preferred percentage). • The shareholder base in both percentage of ownership and type of shareholder (such as a hedge fund, activist investor, mutual fund or pension fund). • Board and management responsiveness to shareholders, as evidenced by progressive shareholder rights policies (such as majority voting or board declassification) and reaction to shareholder proposals. • Company performance and steps taken to improve poor performance (such as appointing new executives or directors or engaging in a spin-off). • Existence of anti-takeover protections or other entrenchment devices. • Opportunities for shareholder action (such as the ability to act by written consent or the right to call a special meeting). Beginning with the 2016 proxy season, Glass Lewis considers the following factors when making vote recommendations with respect to conflicting management and shareholder proposals:

• The nature of the underlying issue. • The benefit to shareholders from implementation of the proposal. • The materiality of the differences between the terms of the conflicting proposals. • The appropriateness of the provisions in the context of a company’s shareholder base, corporate structure and other relevant circumstances. • A company’s overall governance profile and, specifically, its responsiveness to shareholders as evidenced by its response to previous shareholder proposals and its adoption of “progressive shareholder rights provisions” (which Glass Lewis has not defined).34

Sidley Austin LLP Page 10 GROUNDS FOR EXCLUSION OF SHAREHOLDER PROXY ACCESS PROPOSALS

Under the SEC’s proxy rules, a company may exclude a shareholder proxy access proposal from its proxy materials if the proposal fails to meet any of the procedural and substantive requirements of Exchange Act Rule 14a-8. A company may seek no-action relief from the Staff of the SEC’s Division of Corporation Finance (SEC Staff), pursuant to which the company can exclude the proposal from its proxy materials. Two substantive grounds that have been relied on by companies seeking to exclude a shareholder proxy access proposal are that the proposal directly conflicts with a management proposal (Rule 14a-8(i)(9)) or has already been substantially implemented by the company (Rule 14a-8(i)(10)). However, as discussed below, the SEC Staff issued guidance in the Fall of 2015 that has made it more difficult for a company to obtain no-action relief under Rule 14a-8(i)(9) on the grounds that a shareholder proxy access proposal directly conflicts with a management proxy access proposal. Therefore, companies that have adopted proxy access have argued “substantial implementation” when seeking to exclude proxy access proposals from their 2016 proxy statements and have generally been successful as discussed below.

Directly Conflicting Proposals In December 2014, the SEC Staff granted no-action relief to Whole Foods Market, Inc. on the basis that a 3% for 3 years shareholder proxy access proposal directly conflicted with a 9% for 5 years management proposal.35 When Whole Foods filed its preliminary proxy statement with the SEC after this relief was granted, the ownership threshold in the management proposal was reduced from 9% to 5%.

In the wake of the no-action relief granted to Whole Foods, it was broadly expected that companies would counter shareholder proxy access proposals by putting forward management proxy access proposals with higher minimum ownership thresholds, and obtain no-action relief on the basis that the proposals were conflicting and therefore excludable. However, following the grant of no-action relief to Whole Foods, James McRitchie, the proponent of the Whole Foods proposal, appealed the grant to the full SEC and a letter-writing campaign by incensed institutional investors followed.

In January 2015, SEC Chair Mary Jo White reversed course. In an unusual development, Chair White directed the SEC Staff to review Rule 14a-8(i)(9) as a basis for exclusion. As discussed in a previous Sidley Update,36 following Chair White’s direction, the Division of Corporation Finance announced that it would express no view on the application of Rule 14a-8(i)(9) for the remainder of the 2015 proxy season in connection with all shareholder proposals—not just those seeking proxy access—and withdrew the no-action relief previously granted to Whole Foods.37

Business Roundtable and other commentators expressed concern that the SEC’s approach forced companies faced with a shareholder proxy access proposal that are considering a management proposal to either include the shareholder proposal in the proxy materials, even though it will compete with the similar management proposal and possibly lead to confusion, or omit the shareholder proposal, creating a heightened risk of litigation and negative targeting by certain pension funds and proxy advisory firms. As described below, seven companies included competing shareholder and management proxy access proposals on the ballot in 2015 and five companies have done so in 2016 to date. In a speech in June 2015, SEC Chair White noted that, notwithstanding concerns that shareholders would be confused by two competing proposals, “shareholders were able to sort it all out and express their views.”38

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SEC GUIDANCE ON EXCLUDABILITY OF DIRECTLY CONFLICTING SHAREHOLDER PROPOSALS On October 22, 2015, the SEC Staff issued Staff Legal Bulletin No. 14H (CF) (SLB No. 14H)39 which provided new guidance on the excludability of shareholder proposals that “directly conflict” with management proposals under Rule 14a-8(i)(9). As discussed in a previous Sidley Update,40 after reviewing the history and intended purpose of Rule 14a-8(i)(9) per SEC Chair White’s request, the SEC Staff announced in SLB No. 14H that it will interpret the rule more narrowly than it has in the past. The SEC Staff will permit a company to exclude a shareholder proposal as directly conflicting with a management proposal only “if a reasonable shareholder could not logically vote in favor of both proposals, i.e., a vote for one proposal is tantamount to a vote against the other proposal.” A non-binding shareholder proposal seeking proxy access on terms different from management’s proxy access proposal will generally not be excludable under Rule 14a-8(i)(9). Proposals seeking a similar objective (e.g., proxy access) but on different terms (i.e., a different means of accomplishing the same objective) would not “directly conflict,” as a reasonable shareholder could logically vote in favor of both proposals.

SEC Staff Example of Proxy Access Proposals That Do Not Directly Conflict Management proposal with a 5% for 3 years ownership Shareholder proposal with a 3% for 3 years ownership threshold and limit on nominees of 10% of the board threshold and limit on nominees of 20% of the board

The SEC Staff does not believe that a reasonable shareholder would logically vote for two binding shareholder and management proposals that contain two mutually exclusive mandates. In the case of such a “direct conflict,” the SEC Staff could, in its no-action response, allow a shareholder proponent to revise its proposal to make it non-binding rather than binding, and therefore potentially not excludable under Rule 14a-8(i)(9). In light of the new guidance, competing proxy access proposals continued to appear on ballots during the 2016 proxy season. In a situation where both the management and shareholder proposals are approved by shareholders, the board may have to consider the effects of both proposals; the SEC Staff does not consider such a decision to represent the kind of “direct conflict” the rule was designed to address. In SLB No. 14H, the SEC Staff noted that, to minimize concerns about shareholder confusion, any company that includes shareholder and management proposals on the same topic on its ballot can include proxy statement disclosure explaining the differences between the two proposals and how the company would expect to consider the voting results.

Substantially Implemented Proposals Companies that adopt proxy access can seek to omit a shareholder proxy access proposal on the grounds that it has been “substantially implemented” by the company. In March 2015, the SEC granted General Electric Company no-action relief allowing it to exclude a shareholder proxy access proposal on these grounds. The shareholder proposal had sought an ownership threshold of 3% for 3 years, for up to 20% of the board’s seats but was silent on the number of shareholders that could comprise a nominating group. General Electric adopted a provision with the same 3% for 3 years threshold for up to 20% of board seats, but limited to 20 the number of shareholders that could compromise a nominating group.41

Substantial implementation under Rule 14a-8(i)(10) has been the primary basis of exclusion being asserted by companies when seeking no-action relief to exclude shareholder proxy access proposals received for their 2016 annual meetings. A number of companies that adopted proxy access on relatively standard terms sought to exclude proposals filed by John Chevedden arguing that their proxy access bylaws implement the “essential objectives” of his proposal even though his proposal contains (i) a higher percentage of board seats available to proxy access nominees (25%), (ii) no limit on the size of the nominating group and (iii) no restrictions on proxy access nominees that are not also applicable to other director candidates.

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SEC GRANTS OF NO-ACTION RELIEF FOR SUBSTANTIALLY IMPLEMENTED PROXY ACCESS PROPOSALS

In the first half of 2016, the SEC Staff has granted no-action relief to 35 companies that sought to exclude shareholder proxy access proposals from their 2016 proxy statements on the grounds that they had been substantially implemented by the company. Each of the companies had adopted a proxy access bylaw with a 3% for 3 years ownership threshold mirroring the threshold requested by the proponent, even though the company- adopted proxy access bylaw deviated from the specific terms of the shareholder proxy access proposal in various other respects. In February 2016, the SEC Staff denied no-action relief to three companies that implemented proxy access with a different ownership threshold (5%) than that sought by the proponent (3%). See our previous Sidley Update for more information.42 The SEC Staff’s responses provide clarity to companies concerning their ability to exclude shareholder proxy access proposals by adopting their own proxy access provisions. It suggests that companies have some flexibility to adopt proxy access bylaws tailored to their particular circumstances so long as they track the ownership threshold and duration set forth in the proposal. Based on the recent SEC Staff determinations, no-action relief will be available even if the company’s proxy access bylaw (i) includes a limit on the number of shareholders that may aggregate to form a nominating group (e.g., 20 versus an unlimited number per the terms of the proposal) or (ii) includes a lower percentage or number of board seats available to proxy access nominees than specified in the proposal (e.g., 20% (rounding down) versus “the greater of 25% of the board or two” per the terms of the proposal). Even the companies that were granted no-action relief this year should bear in mind that shareholders may submit proposals in the future seeking to modify the terms of their proxy access bylaws. For example, James McRitchie, the proponent at Whole Foods and several other companies that have since adopted proxy access, has expressed his disappointment with the recent SEC response letters, specifically the SEC Staff’s apparent conclusion that the provision in his template proposal explicitly providing for no nominating group size limit is not an “essential element” of the proposal. He has vowed to file binding bylaw resolutions in the future at companies that have adopted what he considers to be “proxy access lite bylaws” in an effort to “obtain the same robust proxy access promised under vacated Rule 14a-8(i)(10).”43 McRitchie’s initial attempts to reform “proxy access lite” saw a setback when his proposal failed to receive majority support at Apple’s annual meeting in February 2016 (it received 33% support). His proposal had sought to amend Apple’s existing proxy access bylaw to remove the group size limit of 20 and increase the number of board seats applicable to proxy access nominees from 20% to the greater of 25% or two directors. It is possible that others will join McRitchie in submitting future shareholder proposals that specifically seek removal of the nominating group size limit or other modifications. The public pension funds led by New York City Comptroller Stringer have also expressed concerns about certain “unworkable” proxy access provisions adopted to date, including provisions which limit the number of shareholders who can aggregate to form a nominating group.44 Comptroller Stringer’s template proxy access proposals for 2015 and 2016 do not limit the number of shareholders that can comprise a nominating group.

VOTING RESULTS ON PROXY ACCESS PROPOSALS

Key Highlights of Shareholder Proxy Access Proposal Voting Results Shareholder Proposals 2014 2015 2016 (through 6/24) • Voted On 18 91 76

• Passed 5 55 38

• Average Support 34% 55% 51%

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Shareholder Proposals Seventy-six shareholder proxy access proposals have been voted on so far in 2016, averaging support of approximately 50.5% of votes cast. Half of the proposals received majority support, while half did not pass. The decline in average support in 2016 compared to 2015 reflects the fact that several targeted companies had adopted proxy access prior to their 2016 annual meetings. Average support at the 38 companies where proxy access proposals passed was 69%. ISS supported all but one of the shareholder proposals. ISS recommended against the shareholder proposal at CSP, Inc. because its “greater of 20% or two directors” provision would have enabled a shareholder to gain control of 40% of the company’s five-member board. Management recommended against all but five of the shareholder proposals.45

Ninety-one shareholder proxy access proposals were voted on in 2015, averaging support of approximately 55% of votes cast; 55 proposals (60%) received majority support while 36 (40%) did not pass. Management opposed all but four of the proposals; it supported three of the proposals and provided no recommendation with respect to one proposal. ISS supported all of the shareholder proposals, most of which included a 3% for 3 years ownership threshold (such as Comptroller Stringer’s proposals).46

Voting results on shareholder proxy access proposals appear to have been influenced by various factors:

Factors Increasing Shareholder Support Factors Decreasing Shareholder Support • No competing management proxy access proposal • Competing management proxy access proposal on on the ballot the ballot • Company did not adopt proxy access prior to the • Company adopted proxy access prior to the meeting meeting; significantly lower support if previously adopted at 3% ownership threshold • Less insider ownership • Greater degree of insider ownership

• Less voting retail shareholders • More voting retail shareholders

• Combative tone of corporate disclosure around • More conciliatory/open tone of corporate disclosure proxy access concept around proxy access concept

• Concerns relating to corporate performance, • Lack of concern relating to corporate performance, shareholder rights and/or compensation shareholder rights and/or compensation

Management Proposals Twenty management proxy access proposals have been voted on so far in 2016, averaging support of 87% of votes cast. Sixteen proposals (80%) passed while four (20%) did not pass. Of the four management proposals that failed, two were competing with shareholder proposals with 3% (rather than 5%) ownership thresholds that passed and one received majority support but fell short of the company’s 80% supermajority vote requirement. ISS recommended votes in favor of 17 of these proposals (which followed the 3% for 3 years formulation) and against three of these proposals (two of which included a 5% for 3 years ownership threshold and one of which specified an aggregation limit of only 10 shareholders).

Twelve management proxy access proposals were voted on in 2015, averaging support of 62% of votes cast. Seven proposals (58%) passed while five (42%) did not pass (including one that received majority support but fell short of the company’s supermajority vote requirement). ISS recommended votes in favor of five of these proposals (which followed the 3% for 3 years formulation) and against seven of these proposals (six of which included a 5% for 3 years ownership threshold; one included a 3% for 3 years threshold (as discussed below)).

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Competing Shareholder and Management Proposals So far in 2016, shareholders have voted on competing proxy access proposals at five companies, including two companies (Chipotle Mexican Grill Inc. and SBA Communications Corporation) where competing proposals were also on the ballots for the 2015 annual meeting. As shown in the table below, in 2016 the management proposal passed at three companies and the shareholder proposal passed at two companies. At three companies ISS recommended votes in favor of both proxy access proposals indicating that the “proposals are not mutually exclusive” and that “strong support for the shareholder proposal could convey to the board a preference for a proxy access right without a limit on share aggregation, and one that does not contain added restrictions.”

2016 Competing Proposals Shareholder Proposals Management Proposals ISS % % Subsequent Company Parameters Parameters ISS Rec. Rec. Support Support Adoptions Chipotle 5% • 3 years • 20% cap • Mexican Grill, 57.4 Against 23.7 N/A limit of 20 (Binding) Inc. • 3% 3% • 3 years • 25% cap (at Cummins Inc. • 3 years 31.6 least 2) • limit of 20 For 97.1 N/A (Advisory) • 25% cap For 3% • 3 years • 20% cap (at Adopted on 5/19/16 Kate Spade & • No limit 22.6 least 2) • limit of 20 For 81.8 3% • 3 years • 20% cap Company on size of (Binding) (at least 2) • limit of 20 nominating Knight group 3% • 3 years • 20% cap (at Adopted on 5/12/16 Transportation, 22.3 least 2) • limit of 20 For 93.7 3% • 3 years • 20% cap Inc. (Binding) (at least 2) • limit of 20 Amend bylaw to reduce 5% Previously adopted on SBA to 3%, Approval of existing bylaw: 7/28/15 Communications increase cap For 67.6 5% • 3 years • 20% cap (at Against 29.4 5% • 3 years • 20% cap Corporation to 25% and least 1) • limit of 10 (at least 1) • limit of 10 eliminate limit of 10 Average % 40.3 65.1 Support

At seven companies shareholders voted on two proxy access proposals at the 2015 annual meeting—a shareholder proposal with a 3% ownership threshold and a management proposal with an ownership threshold of 5% (at six companies) or 3% (at one company). ISS recommended in favor of all seven shareholder proposals. ISS recommended against all seven management proposals, including at the one company which proposed a 3% for 3 years threshold but imposed more restrictive terms than the shareholder proposal. Specifically, the management proposal at that company included a cap of 20% of board seats (compared with a 25% cap in the shareholder proposal) and a limit of 20 shareholders in the nominating group (compared with no limit in the shareholder proposal).

As shown in the table below, the management proposal passed at three companies, the shareholder proposal passed at three companies, neither proposal passed at one company and there were no instances where both proposals passed. As noted above, SEC Chair White stated in June 2015 that, despite the concerns of some commentators, there did not appear to be shareholder confusion with respect to competing proposals.

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2015 Competing Proposals Shareholder Proposals Management Proposals ISS % % Subsequent Company Parameters Parameters ISS Rec. Rec. Support Support Adoptions 5% • 3 years • 20% cap • Adopted on 11/25/15 The AES monitoring peers and 66.4 36.2 3% • 3 years • 20% cap Corporation soliciting shareholder input • limit of 20 when fixing limit (Advisory) Chipotle 5% • 3 years • 20% cap • Mexican Grill, 49.9 34.7 N/A limit of 20 (Binding) Inc. Adopted on 10/20/15 Cloud Peak 5% • 3 years • 10% cap • 71.1 25.9 3% • 3 years • 20% cap Energy Inc. • 3% limit of 1 (Binding) (at least 1) • limit of 20 • 3 years Adopted on 4/26/16 Exelon 5% • 3 years • 20% cap • • 25% cap 43.6 52.6 3% • 3 years • 20% cap Corporation For limit of 20 (Advisory) Against All All (at least 2) • limit of 20 • No limit Expeditors on size of Adopted on 5/13/16 3% • 3 years • 20% cap • International of nominating 35.0 70.3 3% • 3 years • 20% cap limit of 20 (Advisory) Washington, Inc. group • limit of 20 SBA Adopted on 7/28/15 5% • 3 years • 20% cap • Communications 46.3 51.7 5% • 3 years • 20% cap limit of 10 (Advisory) Corporation (at least 1) • limit of 10 5% • 3 years • 20% cap • Adopted on 6/10/16 Visteon monitoring peers and 3% • 3 years • 20% cap 75.7 21.2 Corporation soliciting shareholder input (or 25% if <10 when fixing limit (Advisory) directors) • limit of 20 Average % 55.4 41.8 Support

ADOPTION OF PROXY ACCESS PROVISIONS AND TYPICAL PARAMETERS

Since January 1, 2015, 241 companies have adopted proxy access, and they have done so in a range of circumstances as described in the Appendix. All companies adopted proxy access in their bylaws except for one company, which incorporated it into the certificate of incorporation upon its spin-off, and another company that amended both its certificate of incorporation and bylaws to provide for proxy access.

Approximately 40% of companies in the S&P 500 have now adopted proxy access. Sixty-one companies adopted proxy access without having received a known shareholder proxy access proposal—this trend is accelerating. The uptick in adoptions is also attributable to negotiated settlements with shareholder proponents and board responsiveness to majority-supported shareholder proposals in light of the ISS FAQs discussed above.

Pace of Proxy Access Adoptions 80 70 60 50 50 40 71 68 30 56 56 20 32 32 31 10 2021 1515 11 11 5 11 11 0 5 3 3 PrePre-2015-2015 Jan/FebJan/Feb Mar/AprMar/Apr May/Jun May/Jun Jul/Aug Jul/Aug Sep/Oct Sep/Oct Nov/Dec Nov/Dec Jan/Feb Jan/FebMar/Apr Mar/AprMay/Jun 20152015 20152015 20152015 2015 2015 2015 20152015 20152016 20162016 20162016

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The Appendix highlights the key parameters of the proxy access provisions adopted since January 1, 2015, including the minimum ownership threshold, maximum percentage of board seats open to proxy access nominees and maximum number of shareholders that can comprise a nominating group. While market practice continues to develop, the proxy access provisions adopted by companies since January 1, 2015 include several elements that have emerged as typical, although there are some variations. The majority of proxy access provisions adopted in the first half of 2016 include the following terms: 3% for 3 years for up to 20% of the board (at least 2 directors) with a nominating group size limit of 20.

The Appendix also highlights select terms relating to the treatment of loaned shares, post-meeting ownership requirements, third-party compensation arrangements, nomination deadlines, exclusion of proxy access nominees if a director has been nominated under the advance notice provision, “creeping control” limitations and re-nomination restrictions. In addition, proxy access provisions delineate various procedural and informational requirements, proxy access nominee eligibility conditions and circumstances in which a company will not be required to include a proxy access nominee in its proxy materials.

A MOVING TARGET – AMENDMENTS TO PREVIOUSLY ADOPTED PROVISIONS At three companies that adopted a proxy access bylaw in 2015 prior to the annual meeting, their respective boards subsequently amended the bylaws after shareholder proxy access proposals with less restrictive terms passed at the annual meetings. Specifically, CF Industries Holdings, Inc., Marathon Oil Corporation and The Priceline Group Inc. amended their proxy access bylaws to (i) decrease the required ownership percentage from 5% to 3% and (ii) change the maximum percentage of board seats available to proxy access nominees from 20% to 25%. Amendments to The Priceline Group Inc.’s bylaw also eliminated the 20 shareholder limit on forming a group for purposes of meeting the required ownership percentage and made other modifications. Several other companies have amended their proxy access bylaws in recent months, including Cloud Peak Energy, Inc., Hasbro, Inc., HCP, Inc., Honeywell International Inc., Monsanto Company, Northrop Grumman Corporation, NVR, Inc., Pioneer Natural Resources Company and Regency Centers Corporation. Some of the companies stated that the amendments resulted from shareholder outreach and evolving market practices, but they were presumably also in response to ISS’s new policy with respect to board responsiveness to a majority- supported proxy access proposal which could have impacted director elections at 2016 annual meetings. Several of the amendments directly addressed provisions that ISS views as “problematic” by: • Clarifying that certain related funds will count as one shareholder for purposes of the applicable shareholder group size limit. • No longer requiring the requisite number of shares to be held for one year after the annual meeting. • Explicitly counting loaned shares toward the 3% ownership threshold or extending the time by which loaned shares can be recalled in order to count toward the threshold from 3 to 5 business days. • Requiring disclosure of third-party compensatory arrangements but no longer prohibiting them. • No longer restricting the re-nomination of a proxy access nominee who failed to receive at least 25% support in the past two years. • No longer including a creeping control limitation which would have banned a successful nominating shareholder from using proxy access for two years. The amendments by HCP, Inc. and NVR, Inc. also decreased the required ownership percentage from 5% to 3%. Cloud Peak Energy, Inc.’s amendments to its proxy access bylaw in May 2016 increased the maximum number of proxy access nominees to 25% and eliminated several restrictions and conditions on the proxy access right, including removing the cap on the number of shareholders which may aggregate their shares to meet the 3% ownership threshold.

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Typical Provisions

Nomination Deadline; Limited to Annual Meetings Requests to include proxy access nominees in the company’s proxy materials typically must be received within a window of 120 to 150 days before the anniversary of (i) the date on which the company released its proxy statement for the previous year’s annual meeting (183 out of 241 companies (76%)) or (ii) the previous year’s annual meeting (16 out of 241 companies (7%)). Less commonly, the deadline is a window of 90 to 120 days before the anniversary of the previous year’s mailing date (5 out of 241 companies (2%)) or annual meeting date (16 out of 241 companies (7%)). Nine out of 241 companies (4%) require that requests be received prior to the date that is 120 days before the date the company released its proxy statement to shareholders in connection with the previous year’s annual meeting (i.e., the same as the deadline for shareholder proposals under Exchange Act Rule 14a-8, which does not incorporate a window). Proxy access provisions typically specify that proxy access may only be used with respect to director elections at annual meetings (but not special meetings) of shareholders. Several companies that adopted proxy access later in 2015 or early in 2016 specify that the right cannot be used until 2017.

Net Long Beneficial Ownership of 3% or 5% 3% for 3 years is by far the most common ownership threshold (232 out of 241 companies (96%)), although a small number of companies have adopted a 5% for 3 years threshold (9 out of 241 companies (4%)). As discussed above, five companies that initially adopted proxy access at a 5% ownership threshold subsequently amended their bylaws to decrease the required ownership percentage to 3%.

A nominating shareholder is typically deemed to own only those outstanding common shares of the company as to which the shareholder possesses both the full voting and investment rights pertaining to the shares, and the full economic interest in such shares. For example, shares subject to any derivative arrangement entered into by the shareholder or any of its affiliates would not qualify as eligible ownership for proxy access purposes. Loaned shares explicitly count as “owned” for purposes of meeting the ownership threshold in most of the proxy access provisions (221 out of 241 companies (92%)), subject to certain conditions. Where loaned shares count toward ownership, most provisions require that the nominating shareholder has the power to recall the loaned shares within a specified time frame (most commonly, on three or five business days’ notice). Several provisions require that the nominating shareholder has actually recalled the loaned shares within a specified time frame or prior to a specified time (e.g., by the record date or prior to submission of the nomination notice).

Holding Period All of the proxy access provisions adopted since January 1, 2015 provide that the nominating shareholder must own the requisite amount of shares for at least 3 years. A nominating shareholder is typically required to continue to own the requisite amount of shares until the nomination date, the record date and annual meeting date and, at 84 out of 241 companies (35%), is required to represent that it intends to, or in some cases will, continue to own the requisite shares for at least one year after the annual meeting.

Nominee Limit and Procedure for Selecting Candidates if Nominee Limit is Exceeded Many companies have limited the number of board seats available to proxy access nominees to 20% of the board (57 out of 241 companies (24%)), 11 of which provide for a minimum of one proxy access nominee. Later in 2015 and into 2016, companies are increasingly limiting the number of board seats available to proxy access nominees to the greater of two or 20% of the board (151 out of 241 companies (63%)). Some companies have adopted a 25% cap (33 out of 241 companies (14%)), 12 of which provided for a minimum of two proxy access nominees. In most cases, if the calculation of the maximum number of proxy access nominees does not result in a whole number, the maximum number of proxy access nominees that the company would be required to include in its proxy materials would be the closest whole number below the applicable percentage (e.g., 20% or 25%).

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Nearly all proxy access provisions provide that, if a vacancy occurs on the board after the nomination deadline but before the date of the annual meeting, and the board decides to reduce the size of the board in connection with the vacancy, the nominee limit would be calculated based on the reduced number of directors. Any proxy access nominee who is either subsequently withdrawn or included by the board in the proxy materials as a board- nominated candidate typically would count against the nominee limit (including, in some cases, for a specified number of future years). Many proxy access provisions provide that the maximum number of proxy access nominees that the company would be required to include in its proxy materials will be reduced by the number of director candidates nominated by any shareholder pursuant to the company’s advance notice provisions (62 out of 241 companies (26%)).

Any nominating shareholder that submits more than one nominee would be required to provide a ranking of its proposed nominees. If the number of proxy access nominees from all nominating shareholders exceeds the nominee limit, the highest ranking qualified person from the list proposed by each nominating shareholder, beginning with the nominating shareholder with the largest qualifying ownership and proceeding through the list of nominating shareholders in descending order of qualifying ownership, would be selected for inclusion in the proxy materials, with the process repeating until the nominee limit is reached.

Limitation on the Size of the Nominating Group All but six companies limit the number of shareholders that are permitted to comprise a nominating group. A nominating group size limit of 20 is by far the most common (215 out of 241 companies (89%)); however, nine companies set a lower limit (e.g., 5, 10 or 15) and eleven companies set a higher limit (e.g., 25, 30 or 50). Proxy access provisions often also provide that a shareholder cannot be a member of more than one nominating group. Many companies require that one group member be designated as authorized to act on behalf of all other group members. It is typical to provide that members of the same fund family count as one shareholder for purposes of this limit, particularly in light of current ISS policy which would deem “especially problematic” a provision that would treat such individual funds as separate shareholders.

Information Required of All Nominating Shareholders Each nominating shareholder is typically required to provide certain information to the company, including:

• Verification of, and information regarding, the stock ownership of the shareholder as of the date of the submission and the record date for the annual meeting (including in relation to derivative positions). • The Schedule 14N filed by the shareholder with the SEC. • Information regarding each proxy access nominee, including biographical and stock ownership information. • The written consent of each proxy access nominee to (i) be named in the proxy statement, (ii) serve as a director if elected and (iii) the public disclosure of the information provided by the shareholder regarding the proxy access nominee. • A description of any arrangement with respect to the nomination between the shareholder and any other person. • Any other information relating to the shareholder that is required to be disclosed pursuant to Section 14 of the Exchange Act, and the rules and regulations promulgated thereunder. • The written consent of the shareholder to the public disclosure of the information provided to the company. Nominating shareholders are generally permitted to include in the proxy statement a 500-word statement in support of their nominees. The company may omit any information or statement that it, in good faith, believes would violate any applicable law or regulation.

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Nominating shareholders are also typically required to make certain written representations to and agreements with the company, including in relation to:

• Lack of intent to change or influence control of the company. • Intent to maintain qualifying ownership through the annual meeting date and, at 84 out of 241 companies (35%), for a specified timeframe (e.g., one year) beyond the meeting date. • Refraining from nominating any person for election to the board other than its proxy access nominees. • Intent to be present in person or by proxy to present its nominees at the meeting. • Not participating in any solicitation other than that relating to its nominees or board nominees. • Not distributing any form of proxy for the annual meeting other than the form distributed by the company. • Complying with solicitation rules and assuming liability and providing indemnification relating to the nomination, if required. • The accuracy and completeness of all information provided to the company.

Information Required of All Proxy Access Nominees Each proxy access nominee is typically required to make certain written representations to and agreements with the company, including in relation to:

• Acting in accordance with his or her duties as a director under applicable law. • Not being party to any voting agreements or commitments as a director that have not been disclosed to the company. • Not being party to any compensatory arrangements with a person or entity other than the company in connection with such proxy access nominee’s candidacy and/or service as a director that have not been disclosed to the company. • Complying with applicable laws and stock exchange requirements and the company’s policies and guidelines applicable to directors. • The accuracy and completeness of all information provided to the company.

Proxy access nominees are also typically required to submit completed and signed D&O questionnaires.

Several companies have adopted a provision requiring each proxy access nominee to submit an irrevocable resignation to the company in connection with his or her nomination, which would become effective upon the board determining that certain information provided by the proxy access nominee in connection with the nomination is untrue or misleading or that the nominee or the nominating shareholder breached any obligations to the company.

Exclusion or Disqualification of Proxy Access Nominees It is typical for proxy access provisions to permit exclusion of proxy access nominees from the company’s proxy statement if any shareholder (or at some companies, specifically the nominating shareholder) has nominated any person (or at some companies, one or more of the proxy access nominees) to the board pursuant to the company’s advance notice provisions (188 out of 241 companies (78%)).

In addition, the company is typically not required to include a proxy access nominee in the company’s proxy materials if any of the following apply:

• The nominee withdraws, becomes ineligible or does not receive at least a specified percentage (most commonly 25%) of the votes cast at his or her election. Such person is typically ineligible to be a proxy access nominee for the two annual meetings following such vote.

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• The nominating shareholder participates in the solicitation of any nominee other than its nominees or board nominees. • The nominee is or becomes a party to a compensatory arrangement with a person or entity other than the company in connection with such nominee’s candidacy or service as a director that has not been disclosed to the company or, at 39 out of 241 companies (16%), under any circumstances, whether or not disclosed. • The nominee is not independent under any applicable independence standards. Some companies require nominees to meet heightened standards of independence applicable to audit committee and/or compensation committee members under SEC, stock exchange and/or IRS rules. • The election of the nominee would cause the company to violate its charter or bylaws, any stock exchange requirements or any laws, rules or regulations. • The nominee has been an officer or director of a competitor (often as defined in Section 8 of the Clayton Antitrust Act of 1914) within the past three years. • The nominee is the subject of a pending criminal proceeding or has been convicted in a criminal proceeding within the past 10 years. • The nominee is subject to any order of the type specified in Rule 506(d) of Regulation D promulgated under the Securities Act. • The nominee or the nominating shareholder has provided false or misleading information to the company or breached any obligations under the proxy access provision.

Proxy access provisions at 196 out of 241 companies (81%) include “creeping control” limitations which take various forms. A proxy access nominee elected by shareholders will typically count towards the proxy access nominee limit in future years (often two or three years after election). In addition, the limit is often reduced by the number of director candidates that will be included in the proxy statement as unopposed as a result of an agreement, arrangement or other understanding between the company and a shareholder. At some companies, if a nominating shareholder’s nominee is elected to the board, then such nominating shareholder may not utilize proxy access for the following two or three annual meetings (other than with respect to the nomination of the previously elected proxy access nominee).

The board or the chairman of the annual meeting may declare a director nomination by a shareholder to be invalid, and such nomination may be disregarded, if the proxy access nominee or the nominating shareholder breaches any obligations under the proxy access provision or the nominating shareholder does not appear at the annual meeting in person or by proxy to present the nomination. Many proxy access provisions grant the board authority to interpret the proxy access provision and make related determinations in good faith.

POTENTIAL IMPACT OF PROXY ACCESS ON CORPORATE GOVERNANCE

It remains to be seen what impact proxy access will have on corporate governance. At companies where proxy access has been adopted, boards and management may become more focused on the quality of shareholder relations, communications and engagement, in an effort to avoid a contested election against one or more proxy access nominees.

One of the benefits of the board self-determination that occurs absent a proxy contest or proxy access situation is the ability of the board to ensure that its composition is aligned with its view of what the company needs for effective oversight. This is not a simple matter given the mosaic of skill sets, experience and diversity that is needed on a board.

An elected proxy access director will owe the same fiduciary duties as the other directors, though some may view proxy access directors as potentially having an allegiance to the nominating shareholder’s interests. Depending

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Concerns about how proxy access may impact board dynamics include:

• Board fragmentation. The board may become dominated by factions that are aligned with particular segments of the shareholding body rather than the shareholding body as a whole.

• Board dysfunction. Distrust among directors may develop and lead to board dysfunction with an associated negative impact on the quality of board oversight.

Concerns about how proxy access may impact a company in general include: • A higher risk of legal challenges. Disagreement among directors may lead to a greater risk of legal challenges, including challenges in contexts that lack business judgment rule protection, subjecting transactions to heightened standards of review. • Joint shareholder action. Special interest shareholders could coordinate to increase their representation on the board without the shareholding body at large understanding the potential for joint action.

• Increased costs and distractions. Proxy access can lead to increased costs and distractions without delivering improvements in company or board performance.

• Potential withdrawal of existing directors. Incumbent directors may choose to resign rather than serve alongside a particular proxy access director.

INTERNATIONAL PERSPECTIVES ON PROXY ACCESS In considering how proxy access may impact corporate governance in the U.S., it may be helpful to consider international experiences. The CFA Institute Report on Proxy Access indicates that proxy access has historically been used sparingly to elect directors in countries that have adopted proxy access, including Canada, the UK, Australia, France, Germany, the Netherlands, Norway, Switzerland and Brazil. For example, the report cites to a 2009 finding that proxy access nominations at Canadian companies are often withdrawn prior to a vote because companies are “more willing and more likely to reach agreements with investors to avoid a vote.”47 The CFA Institute Report on Proxy Access also evaluates the relationship between company returns and proxy access elections in Canada, the UK and Australia, and states that “[t]o the extent that proxy access provides governance benefits from a policy perspective, a preliminary analysis suggests that adverse financial impacts are negligible.”48

PRACTICAL CONSIDERATIONS

Notwithstanding the concerns outlined above, proxy access will inevitably soon play a larger role in corporate governance as a result of private ordering. Proxy access will likely follow the pattern of majority voting in uncontested director elections and, given the current rate of adoption, become a majority practice among S&P 500 companies within the next year.

Companies have several alternatives when considering whether and when to adopt proxy access. Companies with a majority-supported proxy access proposal should consider proxy advisor policies (including the ISS FAQs discussed above) when implementing proxy access—specifically, the likelihood of negative vote recommendations on director elections if the board has “failed to act” on a majority-supported shareholder proposal.

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We expect that many companies will continue to follow a “wait and see” approach, particularly if they have not previously received a shareholder proxy access proposal; however, the trend towards adopting proxy access without receipt of a shareholder proposal is accelerating. Some companies may choose to proactively adopt a proxy access bylaw by board action or by requesting shareholder approval of a bylaw (or charter) amendment at the next annual meeting, in either case with or without a prior public commitment to adopt proxy access. This may help position the company as a governance leader—particularly if no shareholder proposal has been received— and, depending on the specific provisions, may minimize the likelihood of receiving a future shareholder proxy access proposal. A company taking this approach should ensure that it can justify any proxy access provision with thresholds that differ from the following terms which have become standard: 3% for 3 years for up to 20% of the board (at least 2 directors) with a group size limit of 20 (e.g., by disclosing preferences of its shareholders as communicated to the company through engagement).

If faced with a shareholder proxy access proposal, counsel should be prepared to help the board and management consider the full range of options available given the company’s circumstances. A proxy access proposal with a 3% for 3 years ownership threshold is likely to receive majority shareholder support at a company that has not previously adopted proxy access. Therefore, a company may consider adopting proxy access on its own terms rather than putting the shareholder proposal up for a vote. Doing so may enable a company to negotiate a withdrawal from the proponent. Alternatively, in light of the SEC’s recent grants of no-action relief on the basis of “substantial implementation,” a company will likely be able to exclude the shareholder proposal so long as the company’s proxy access bylaw tracks the proposal’s 3% for 3 years ownership threshold.

As companies are considering these alternatives, they should:

• Follow developments in this area and keep the nominating and corporate governance committee and the full board generally apprised. • Know the preferences of their shareholder base (as evidenced in proxy voting policies and other public statements, and voting history on proxy access proposals) and engage with shareholders with respect to proxy access. • Keep abreast of proxy advisory firm policies and guidance relating to proxy access. • Stay apprised of the key parameters and other terms upon which companies are adopting proxy access. • Be aware of the SEC Staff’s position with respect to requests to exclude shareholder proxy access proposals. • Review the advance notice and director qualification provisions in their bylaws and consider whether and, if so, how such provisions may be aligned with a proxy access provision if implemented. In addition, companies that have cumulative voting in place may wish to consider eliminating cumulative voting or requiring cumulative voting to be suspended if a proxy access nominee is included in the company’s proxy materials.

If you have any questions regarding this Sidley Update, please contact the Sidley lawyer with whom you usually work, or

Holly J. Gregory John P. Kelsh Thomas J. Kim Partner Partner Partner [email protected] [email protected] [email protected] +1 212 839 5853 +1 312 853 7097 +1 202 736 8615 Rebecca Grapsas Claire H. Holland Counsel Special Counsel [email protected] [email protected] +1 212 839 8541 +1 312 853 7099

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SIDLEY CORPORATE GOVERNANCE AND EXECUTIVE COMPENSATION PRACTICE Lawyers in Sidley’s Corporate Governance and Executive Compensation practice regularly advise corporate management, boards of directors and board committees on a wide variety of corporate governance matters, including shareholder activism and engagement, fiduciary duties, board oversight responsibilities, board investigations and special committees, SEC disclosure, legal compliance, corporate responsibility, board evaluation, board and committee structures and issues arising under Sarbanes-Oxley and Dodd-Frank. Our advice relates to the procedural aspects as well as the legal consequences of corporate and securities transactions and other corporate actions, including takeover defenses, proxy contests, SEC filings and disclosure issues, stock option issues and general corporate law matters. Our broad client base allows us to provide advice regarding best practices and trends in such matters as directors’ and officers’ responsibilities, board and committee practices, disclosure controls and procedures, internal controls, executive compensation and other matters.

ENDNOTES

1 Proxy Access in the United States: Revisiting the Proposed SEC Rule, CFA Institute (Aug. 2014) (the “CFA Institute Report on Proxy Access”), available here. 2 R Street Shorts: Critiquing the CFA Institute’s Report on Proxy Access, Bernard S. Sharfman (Mar. 2016), available here. 3 SEC Release No. 33-9136, Facilitating Shareholder Director Nominations (Aug. 25, 2010) (the “SEC Proxy Access Release”), available here. 4 Business Roundtable and Chamber of Commerce v. Securities and Exchange Commission (D.C. Cir. Jul. 22, 2011), available here. 5 In response to questions from U.S. House of Representatives Democrats during a congressional hearing in March 2015, SEC Chair White testified that the SEC has no “current intention” to adopt a mandatory proxy access rule. Chair White pointed to the success of the current shareholder proposal process and indicated that the SEC is very closely monitoring the private ordering process to see the direction it takes. Hearing entitled “Examining the SEC’s Agenda, Operations and FY 2016 Budget Request” before the Committee on Financial Services of the United States House of Representatives (Mar. 24, 2015), available here. In July 2015, the SEC posted to its website a working paper relating to proxy access by two economists in the SEC’s Division of Economic and Risk Analysis and a Penn State professor. The study found that the private ordering process for proxy access increases shareholder value (as indicated by such increases at firms targeted by Comptroller Stringer’s proxy access campaign) but that it “may lead to a second best outcome” as compared to universally mandated proxy access—in other words, private ordering may not efficiently deliver proxy access at the companies that need it most. The paper identifies three key findings: • Shareholder proponents do not disproportionately target the companies that the market expects to benefit most from proxy access (as measured by stock price returns at the time the SEC announced that it would stay the effectiveness of the now-vacated 2010 proxy access rule). • Management is more likely to resist shareholder proposals at companies that stand to benefit more from proxy access. • Shareholder proposals have been converging to standard terms (e.g., the 3% for 3 years terms of the SEC’s 2010 rule), which suggests that the private ordering process is not tending towards the delivery of customized, company-specific solutions. Tara Bhandari, Peter Iliev and Jonathan Kalodimos, Public versus Private Provision of Governance: The Case of Proxy Access (Jul. 24, 2015), available here. 6 SEC Proxy Access Release at 17. 7 “The bylaws may provide that if the corporation solicits proxies with respect to an election of directors, it may be required, to the extent and subject to such procedures or conditions as may be provided in the bylaws, to include in its proxy solicitation materials (including any form of proxy it distributes), in addition to individuals nominated by the board of directors, 1 or more individuals nominated by a stockholder.” Excerpted from Section 112 of the Delaware General Corporation Law. 8 North Dakota Publicly Traded Corporations Act, N.D. Cent. Code § 10-35-08, available here. See American Railcar Industries, Inc., Definitive Proxy Statement (filed Apr. 30, 2009); Carl Icahn owned a controlling interest at the time of reincorporation in June 2009. 9 In the event that a company was required to include a proxy access nominee on its ballot, Broadridge has indicated in preliminary conversations that its systems would handle such a ballot in the same manner as a universal proxy card. In this situation, Broadridge can configure Internet voting so that a voter can only vote “for” the number of directors that corresponds to the number of board seats up for election. Paper ballots are processed manually. Telephone voting is not available. There are open issues for the SEC and others to consider with respect to the order of nominees and whether dissident nominees can be highlighted or differentiated in some way on the proxy card (e.g., in the event that the nominees are listed in alphabetical order). 10 Comptroller Stringer, NYC Pension Funds Launch National Campaign to Give Shareowners a True Voice in How Corporate Boards Are Elected, news release (Nov. 6, 2014), available here. 11 Comptroller Stringer, New York City Funds, Announce Expansion of Boardroom Accountability Project, news release (Jan. 11, 2016), available here. 12 These binding proposals failed to receive majority support at Cabot Oil & Gas Corporation and Noble Energy, Inc. 13 Comptroller Stringer, New York City Funds: Boardroom Accountability Enters Next Phase as Campaign Achieves Critical Mass, news release (Apr. 26, 2016), available here. 14 BlackRock, 2015 Proxy Voting Guidelines for U.S. Securities (Feb. 2015) at 7, available here.

Sidley Austin LLP Page 24

15 CalPERS Highlights Outcome of Proxy Voting Initiatives, news release (Jul. 22, 2015), available here. 16 CalPERS, Global Governance 2016 Proxy Voting Priorities (Feb. 16, 2016) at 12, available here. 17 CalPERS, Global Governance Principles (last updated Mar. 14, 2016) at 8, available here. 18 CalSTRS, Corporate Governance Principles (Apr. 3, 2015) at 13, available here. 19 State Street Global Advisors, US Proxy Voting and Engagement Guidelines (Mar. 2016) at 4, available here. 20 See Remarks by Bess Joffe of TIAA-CREF, Proxy Access: The Halftime Show; webcast panel hosted by TheCorporateCounsel.net (Mar. 24, 2015). 21 T. Rowe Price, Proxy Voting Policies, available here. 22 Carpenters Suggests Zombie Director Trigger for Using Proxy Access, CII Governance Alert (Oct. 15, 2015). 23 Vanguard, Proxy Voting Guidelines (last updated Feb. 2016), available here. 24 Fidelity, Corporate Governance and Proxy Guidelines, available here. 25 Despite JPMorgan Chase & Co.’s adoption of proxy access at the 3% for 3 years ownership threshold, J.P. Morgan Asset Management voted against 3% for 3 years shareholder proxy access proposals in 2015 consistent with its Global Proxy Voting Procedures and Guidelines (Apr. 1, 2016), available here, which indicate that it will generally support proposals at the 5% for 3 years level. 26 Council of Institutional Investors, Corporate Governance Policies (last updated Apr. 1, 2015), available here. 27 Council of Institutional Investors, Proxy Access: Best Practices (Aug. 2015), available here. 28 Investor Group Challenges Access to Companies’ Boards, Wall Street Journal (Aug. 4, 2015), available here. 29 Broadridge Financial Solutions and PricewaterhouseCoopers, 2015 Proxy Season Wrap-up (3rd ed. 2015), available here. 30 ISS, 2016 U.S. Summary Proxy Voting Guidelines (last updated Feb. 23, 2016) at 22, available here. 31 ISS launched its annual policy survey (available here) in August 2015 asking: If a board adopts proxy access with material restrictions not contained in a majority-supported shareholder proposal, which types of restrictions should be viewed as problematic enough to call into question the board’s responsiveness and potentially warrant “withhold” or “against” votes against directors? See Sidley Update, ISS 2016 Proxy Voting Policy Formulation Underway (Aug. 13, 2015), available here. ISS provided the following examples of “potentially problematic” restrictions: • Ownership thresholds in excess of 3% or 5%. • Ownership duration greater than three years. • Aggregation limit of less than 20 shareholders. • Cap on proxy access nominees set at less than 20% of the existing board (rounded down). • More restrictive advance notice requirements. • Information disclosures that are more extensive than those required of the company’s nominees, by the company, the SEC or relevant exchanges. • Re-nomination restrictions in the event a proxy access nominee fails to receive a stipulated level of support or withdraws his or her nomination. • Restrictions on compensation of proxy access nominees by nominating shareholders. In September 2015, ISS published the results of its annual policy survey. ISS, 2015-2016 ISS Global Policy Survey – Summary of Results (Sep. 28, 2015) at 8 and 19, available here. A majority of investor respondents were of the view that ISS should issue negative vote recommendations against directors if the ownership threshold exceeds 3% (72% of investor respondents) or 5% (90%), if the holding period exceeds 3 years, if the size of the nominating group is fewer than 20 and/or if the cap on the number of proxy access nominees is less than 20% of the current board size. Company respondents generally did not agree that directors should be penalized for imposing restrictions on proxy access after shareholders had approved a shareholder proxy access proposal, although a slight majority agreed that votes against directors could be warranted if the company established an ownership threshold greater than 5%. 32 ISS, U.S. Proxy Voting Policies and Procedures (Excluding Compensation-Related) – Frequently Asked Questions (last updated Mar. 14, 2016) at 19 and 28, available here. 33 ISS, ISS Governance QuickScore 3.0 (last updated Oct. 30, 2015), available here. 34 Glass Lewis, 2016 Proxy Season Proxy Paper Guidelines: United States at 21 and 22, available here, and Glass Lewis, 2016 Proxy Season Proxy Paper Guidelines: Shareholder Initiatives at 3 and 6, available here. 35 Whole Foods Market, Inc., SEC No-Action Letter (Dec. 1, 2014), available here. 36 No-Action Relief Regarding Conflicting Proposals to Be Unavailable During 2015 Proxy Season, Sidley Update (Jan. 21, 2015), available here. 37 Statement from Chair White Directing Staff to Review Commission Rule for Excluding Conflicting Proxy Proposals (Jan. 16, 2015), available here, and Letter from the SEC’s Division of Corporation Finance to James McRitchie (Jan. 16, 2015), available here. Prior to its annual meeting (which it postponed to September 2015), effective June 26, 2015, Whole Foods’ Board of Directors approved bylaw amendments giving an eligible shareholder, or group of up to 20 shareholders, owning 3% or more of the company’s stock for at least three years the right to nominate and include in the company’s proxy materials directors constituting up to 20% of the board seats (but not less than one director). McRitchie withdrew his proposal, even though he had sought a 25% cap on the number of board seats and no limit on the number of participants comprising a nominating group.

Sidley Austin LLP Page 25

38 Building Meaningful Communication and Engagement with Shareholders, Speech by SEC Chair Mary Jo White to the Society of Corporate Secretaries and Governance Professionals (Jun. 25, 2015), available here. 39 SEC Staff Legal Bulletin No. 14H (CF), Shareholder Proposals (Oct. 22, 2015), available here. 40 SEC Issues New Guidance on Excludability of Shareholder Proposals, Sidley Update (Oct. 23, 2015), available here. 41 General Electric Company, SEC No-Action Letter (Mar. 3, 2015), available here. 42 SEC Grants No-Action Relief for “Substantially Implemented” Shareholder Proxy Access Proposals–With Some Exceptions, Sidley Update (Feb. 19, 2016), available here. 43 “Substantial Implementation” Will Backfire, blog post by James McRitchie (Mar. 21, 2016), available here. 44 Remarks by Michael Garland, Assistant Comptroller for Corporate Governance and Responsible Investment, New York City Office of the Comptroller, at a meeting of the SEC Investor Advisory Committee (Jul. 16, 2015). 45 Management made no recommendation at NRG Energy, Inc. and Nasdaq, Inc. and recommended that shareholders vote in favor of the shareholder proposals at Marlin Business Services Corp., PTC Therapeutics, Inc. and Urban Outfitters, Inc. 46 In 2014, 18 shareholder proxy access proposals were voted on and averaged support of approximately 34% of votes cast. Five proposals passed, each of which included a 3% for three years ownership requirement. The eight proposals that deviated from that formulation received average support of only 9% of votes cast. 47 CFA Institute Report on Proxy Access at Appendix D, citing a study by Jun Yang, Zengxiang Wang, and Yunbi An, An Empirical Analysis of Canadian Shareholder Proposals (Jul. 20, 2009), available here. 48 CFA Institute Report on Proxy Access at 17-21.

Sidley Austin LLP Appendix – Select Terms of Proxy Access Provisions Adopted Since January 1, 2015

Proxy Access Other Ownership Nomination Deadline Key Parameters Unavailable if Advance Requirements (Annual Meeting) Restrictions Notice Nomination Prohibition on Renom- Must State on Third- inating Intention Days Depends Party Proxy Access Owner- as to Prior to on # of Creeping Control Circumstances Company Cap Loaned Comp- Days Prior Nominees ship Group Ownership Ann’y of Advance Limitations of Adoption (Max. Shares ensation to Annual Blanket Based on % Thres- Size Beyond Proxy Notice % of Count as Arrange- Mtg. Exclusion Support and hold Limit Mtg. Date Date / Nominees Board) “Owned” ments Ann’y Other (3 years) (1 Year Filing / For That Freeze-Outs Unless Release Election Noted)

> of 2 Overall: Overall: or 20%: 203 38 (16%) 151 (84%) (63%) <20: Of the 38: 3%: 9 (4%) Yes: Yes: Yes: Yes: Yes: Of the 232 20%: 221 84 39 196 174 203: 90-120: TOTALS (96%) 57 20: 215 (92%) (35%) (16%) (81%) (72%) 16 (42%) (out of 241 (24%) (89%) 188 (78%) 62 (26%) Varied 120-150: companies) 5%: No: No: No: No: No: 183 120-150: 9 > of 2 >20 and 20 157 202 45 67 (90%) 16 (42%) (4%) or 25%: None: (8%) (65%) (84%) (19%) (28%)

12 (5%) 17 (7%) Other: Other:

20 (10%) 6 (16%) 25%:

21 (9%)

Yes, No, neither required disclosure Yes, must statement nor SEC Vacated Nominating be of intent prohibition Exchange Act SH 3% 25% None recalled to of comp. 120-150 None None N/A Rule 14a-11 nominates to count continue arrgmts. (for reference) any nominee as owned ownership was after included in election 14a-11

Sidley Austin LLP Page 24 Appendix – Select Terms of Proxy Access Provisions Adopted Since January 1, 2015

Nomination Proxy Access Other Ownership Key Parameters Deadline Unavailable if Advance Requirements Restrictions (Annual Meeting) Notice Nomination Prohibition on Renom- Must State on Third- inating Intention Days Days Depends Party Proxy Access Owner- as to Prior to Prior on # of Circumstances Company Cap Loaned Comp- Creeping Control Limitations Nominees ship Group Ownership Ann’y of to Advance of Adoption (Max. Shares ensation Blanket Based on % Thres- Size Beyond Proxy Ann- Notice % of Count as Arrange- Exclusion Support and hold Limit Mtg. Date Date / ual Nominees Board) “Owned” ments Other (3 years) (1 Year Filing / Mtg. For That Freeze-Outs Unless Release Ann’y Election Noted) * Denotes companies that adopted proxy access pursuant to a shareholder-approved bylaw. + Denotes one of 72 companies that received a shareholder proxy access proposal from the New York City Pension Funds for the 2016 proxy season.

• Successful proxy access nominees count vs. cap (2 years after board nom.) Adopted and 1. 3M Company+ 20% Yes if Reduces 3% 20 No No 90 – 120 • Nominees pursuant to None shareholder proposal (11/10/15) (≥2) recalled board cap agreement count vs. cap (2 was withdrawn years after board nom.) but not <1

• Successful proxy access • 25% (2 nominees count vs. cap (2 years) years after board nom.) • Nom’g SH • Nominees pursuant to may not 2. Abbott 20% Yes – silent 90 – Reduces agreement count vs. cap (2 nominate Laboratories 3% 20 No No Other/Unknown (≥1) on recall 120 board cap years after board nom.) but if nominee (12/11/15) not <1 received • Successful nominating <25% shareholder may not support (1 nominate (2 years) year)

Yes if recallable • Successful proxy access (5 BDs) Any SH nominees count vs. cap (2 Adopted and 3. AbbVie Inc.+ and 120 – nominates years) 25% 3% 25% 20 Yes No shareholder proposal (2/18/16) recalled by 150 any • Nominees pursuant to (2 years) was withdrawn date of nominee agreement count vs. cap (3 nom. years) notice

Sidley Austin LLP Page 25 Appendix – Select Terms of Proxy Access Provisions Adopted Since January 1, 2015

Nomination Proxy Access Other Ownership Key Parameters Deadline Unavailable if Advance Requirements Restrictions (Annual Meeting) Notice Nomination Prohibition on Renom- Must State on Third- inating Intention Days Days Depends Party Proxy Access Owner- as to Prior to Prior on # of Circumstances Company Cap Loaned Comp- Creeping Control Limitations Nominees ship Group Ownership Ann’y of to Advance of Adoption (Max. Shares ensation Blanket Based on % Thres- Size Beyond Proxy Ann- Notice % of Count as Arrange- Exclusion Support and hold Limit Mtg. Date Date / ual Nominees Board) “Owned” ments Other (3 years) (1 Year Filing / Mtg. For That Freeze-Outs Unless Release Ann’y Election Noted) • Successful proxy access • 25% (2 nominees count vs. cap (3 years) years) • Nom’g SH Any SH • Nominees pursuant to may not 4. Accenture plc* Yes if 20% 120 – nominates agreement count vs. cap (3 nominate (Ireland) 3% 20 recallable No No Other/Unknown (≥2) 150 any years) if nominee (2/3/16) (3 BDs) nominee • Proxy access unavailable if received successful advance notice <10% nominee remains in office (3 support (2 years) years) Adopted after • Successful proxy access shareholder proposal Any SH 5. The AES Yes if nominees count vs. cap (2 passed in 2015 and 120 – nominates 25% Corporation+ 3% 20% 20 recallable Yes No years) competing proposal 150 any (2 years) (11/25/15) (5 BDs) • Nominees pursuant to failed; adopted and nominee agreement count vs. cap shareholder proposal was withdrawn Yes if recallable • Successful proxy access Any SH 6. Aflac (3 BDs) nominees count vs. cap (2 120 – nominates 25% Incorporated 3% 20% 20 and agrees Yes No years) Other/Unknown 150 any (2 years) (11/10/15) to recall • Nominees pursuant to nominee upon agreement count vs. cap notice Yes if recallable Any SH 7. Alaska Air (3 BDs) Adopted and 20% 120 – nominates 25% Group, Inc. 3% 20 and agrees Yes No None shareholder proposal (≥2) 150 any (2 years) (12/9/15) to recall was excluded nominee upon notice

Sidley Austin LLP Page 26 Appendix – Select Terms of Proxy Access Provisions Adopted Since January 1, 2015

Nomination Proxy Access Other Ownership Key Parameters Deadline Unavailable if Advance Requirements Restrictions (Annual Meeting) Notice Nomination Prohibition on Renom- Must State on Third- inating Intention Days Days Depends Party Proxy Access Owner- as to Prior to Prior on # of Circumstances Company Cap Loaned Comp- Creeping Control Limitations Nominees ship Group Ownership Ann’y of to Advance of Adoption (Max. Shares ensation Blanket Based on % Thres- Size Beyond Proxy Ann- Notice % of Count as Arrange- Exclusion Support and hold Limit Mtg. Date Date / ual Nominees Board) “Owned” ments Other (3 years) (1 Year Filing / Mtg. For That Freeze-Outs Unless Release Ann’y Election Noted) • Successful proxy access nominees count vs. cap (2 8. Alexion Yes if years after board nom.) Adopted and Pharmaceuticals 20% revocable Reduces + 3% 20 No No 90 – 120 • Nominees pursuant to None shareholder proposal , Inc. (≥2) at any board cap agreement count vs. cap (2 was withdrawn (1/8/16) time years after board nom.) but not <1 Yes if recallable (3 BDs) and has Adopted after 9. Alliance Data recalled as Any SH majority-supported Systems 20% of date of 120 – nominates 20% shareholder proposal 3% 20 No No None Corporation+ (≥2) nom. 150 any (2 years) in 2015; adopted and (1/26/16) notice or nominee shareholder proposal agrees to was withdrawn promptly recall upon notice • Successful proxy access 10. Allison Any SH nominees count vs. cap (2 Transmission 25% Yes if 120 – nominates 20% 3% 20 No No years) Other/Unknown Holdings, Inc. (≥2) recallable 150 any (2 years) • Nominees pursuant to (3/11/16) nominee agreement count vs. cap Any SH 11. The Allstate Yes if • Successful proxy access 120 – nominates 10% Corporation 3% 20% 20 recallable No No nominees count vs. cap (2 Other/Unknown 150 any (2 years) (11/19/15) (5 BDs) years) nominee Any SH Yes if • Successful proxy access 12. Altria Group, Inc. 20% 120 – nominates 3% 20 recallable No No nominees count vs. cap (2 None Other/Unknown (10/28/15) (≥2) 150 any (3 BDs) years) nominee

Sidley Austin LLP Page 27 Appendix – Select Terms of Proxy Access Provisions Adopted Since January 1, 2015

Nomination Proxy Access Other Ownership Key Parameters Deadline Unavailable if Advance Requirements Restrictions (Annual Meeting) Notice Nomination Prohibition on Renom- Must State on Third- inating Intention Days Days Depends Party Proxy Access Owner- as to Prior to Prior on # of Circumstances Company Cap Loaned Comp- Creeping Control Limitations Nominees ship Group Ownership Ann’y of to Advance of Adoption (Max. Shares ensation Blanket Based on % Thres- Size Beyond Proxy Ann- Notice % of Count as Arrange- Exclusion Support and hold Limit Mtg. Date Date / ual Nominees Board) “Owned” ments Other (3 years) (1 Year Filing / Mtg. For That Freeze-Outs Unless Release Ann’y Election Noted) Yes if • Successful proxy access recallable nominees count vs. cap (2 (5 BDs) Any SH years) Adopted and 13. Amazon.com, and 120 – nominates 25% 3% 20% 20 Yes No • Nominees pursuant to shareholder proposal Inc. (2/24/16) recalled 150 any (2 years) agreement count vs. cap (2 was excluded within 5 nominee years after board nom.) but BDs of not <1 notice Yes if recallable Any SH 14. Ameren (3 BDs) • Successful proxy access Adopted and 20% 120 – nominates 25% Corporation+ 3% 20 and agrees No No nominees count vs. cap (3 shareholder proposal (≥2) 150 any (2 years) (12/11/15) to recall years) was withdrawn nominee upon notice Yes if recallable • Successful proxy access (5 BDs) Any SH nominees count vs. cap (3 15. American Adopted and 20% and agrees 120 – nominates years) 25% Airlines Group 3% 20 Yes No shareholder proposal + (≥2) to 150 any • Nominees pursuant to (2 years) Inc. (3/9/16) was withdrawn promptly nominee agreement count vs. cap (3 recall upon years) notice 16. American Any SH Adopted after Yes if • Successful proxy access Electric Power 20% 120 – nominates majority-supported 3% 20 recallable No No nominees count vs. cap (2 None Company, Inc. (≥2) 150 any shareholder proposal (5 BDs) years) (10/20/15) nominee in 2015 Yes if 17. American recallable Any SH (5 BDs) and • Successful proxy access International 20% 120 – nominates 3% 20 recalled by Yes No nominees count vs. cap (2 None Other/Unknown Group, Inc. (≥2) 150 any date of years) (11/16/15) nom. nominee notice

Sidley Austin LLP Page 28 Appendix – Select Terms of Proxy Access Provisions Adopted Since January 1, 2015

Nomination Proxy Access Other Ownership Key Parameters Deadline Unavailable if Advance Requirements Restrictions (Annual Meeting) Notice Nomination Prohibition on Renom- Must State on Third- inating Intention Days Days Depends Party Proxy Access Owner- as to Prior to Prior on # of Circumstances Company Cap Loaned Comp- Creeping Control Limitations Nominees ship Group Ownership Ann’y of to Advance of Adoption (Max. Shares ensation Blanket Based on % Thres- Size Beyond Proxy Ann- Notice % of Count as Arrange- Exclusion Support and hold Limit Mtg. Date Date / ual Nominees Board) “Owned” ments Other (3 years) (1 Year Filing / Mtg. For That Freeze-Outs Unless Release Ann’y Election Noted) No, OK if Yes if disclosed recallable • Successful proxy access but must (5 BDs) Any SH nominees count vs. cap (2 18. American Tower agree not to Adopted and and agrees 120 – nominates years) 20% Corporation+ 3% 25% 20 Yes accept an shareholder proposal to 150 any • Successful nominating (2 years) (2/12/16) increase in was withdrawn promptly nominee shareholder may not comp. if recall upon nominate (3 years) elected as notice director Any SH Adopted prior to vote 19. AmerisourceBer Yes if 20% 120 – nominates 25% on shareholder gen Corporation 3% 20 recallable No No None (≥2) 150 any (2 years) proposal (and (11/12/15) (3 BDs) nominee proposal failed) Yes if recallable Any SH (5 BDs) Yes (fees for Adopted and 20. Amgen Inc.+ 20% 120 – nominates 20% 3% 20 and No service None shareholder proposal (2/15/16) (≥2) 150 any (2 years) recalled by prohibited) was withdrawn nominee record date • Successful proxy access Any SH nominees count vs. cap (2 21. Amphenol 20% Yes if 120 – nominates years) 25% Corporation 3% 20 No No Other/Unknown (≥2) recallable 150 any • Nominees pursuant to (2 years) (3/21/16) nominee agreement count vs. cap (2 years) Yes if recallable 22. Anadarko Any SH Adopted after (5 BDs) and • Successful proxy access Petroleum 20% 120 – nominates 25% majority-supported 3% 20 recalled Yes No nominees count vs. cap (2 Corporation (≥2) 150 any (2 years) shareholder proposal within 5 years) (9/15/15) BDs of nominee in 2015 notice

Sidley Austin LLP Page 29 Appendix – Select Terms of Proxy Access Provisions Adopted Since January 1, 2015

Nomination Proxy Access Other Ownership Key Parameters Deadline Unavailable if Advance Requirements Restrictions (Annual Meeting) Notice Nomination Prohibition on Renom- Must State on Third- inating Intention Days Days Depends Party Proxy Access Owner- as to Prior to Prior on # of Circumstances Company Cap Loaned Comp- Creeping Control Limitations Nominees ship Group Ownership Ann’y of to Advance of Adoption (Max. Shares ensation Blanket Based on % Thres- Size Beyond Proxy Ann- Notice % of Count as Arrange- Exclusion Support and hold Limit Mtg. Date Date / ual Nominees Board) “Owned” ments Other (3 years) (1 Year Filing / Mtg. For That Freeze-Outs Unless Release Ann’y Election Noted)

• Successful proxy access Adopted and 23. Anthem, Inc. 20% Yes if 3% 20 No No 90 – 150 nominees count vs. cap (3 None shareholder proposal (2/19/16) (≥2) recallable years) was excluded

Any SH Adopted after 24. Apache Yes if • Successful proxy access 120 – nominates 25% majority-supported Corporation 3% 25% 20 recallable No No nominees count vs. cap (2 150 any (2 years) shareholder proposal (2/3/16) (5 BDs) years after board nom.) nominee in 2015 Yes if recallable Adopted after 25. Apartment • Successful proxy access (5 BDs) Any SH majority-supported Investment and nominees count vs. cap (3 20% and agrees 120 – nominates 10% shareholder proposal Management 3% 20 Yes No years) (≥2) to 150 any (2 years) in 2015; adopted and Company+ • Nominees pursuant to promptly nominee shareholder proposal (1/26/16) agreement count vs. cap recall upon was withdrawn notice Yes if Adopted after recallable • Successful proxy access shareholder proposal (5 BDs) nominees count vs. cap (2 failed at 2015 annual 26. Apple Inc. and 120 – Reduces years after board nom.) 25% 3% 20% 20 No No meeting; another (12/21/15) recalled 150 board cap • Nominees pursuant to (2 years) shareholder proposal within 5 agreement count vs. cap (2 failed at 2016 annual BDs of years after board nom.) meeting notice Yes if recallable Any SH Adopted prior to vote 27. Applied (5 BDs) • Successful proxy access 20% 120 – nominates 20% on shareholder Materials, Inc. 3% 20 and agrees Yes No nominees count vs. cap (2 (≥2) 150 any (2 years) proposal (and (12/8/15) to recall years) nominee proposal failed) upon notice

Sidley Austin LLP Page 30 Appendix – Select Terms of Proxy Access Provisions Adopted Since January 1, 2015

Nomination Proxy Access Other Ownership Key Parameters Deadline Unavailable if Advance Requirements Restrictions (Annual Meeting) Notice Nomination Prohibition on Renom- Must State on Third- inating Intention Days Days Depends Party Proxy Access Owner- as to Prior to Prior on # of Circumstances Company Cap Loaned Comp- Creeping Control Limitations Nominees ship Group Ownership Ann’y of to Advance of Adoption (Max. Shares ensation Blanket Based on % Thres- Size Beyond Proxy Ann- Notice % of Count as Arrange- Exclusion Support and hold Limit Mtg. Date Date / ual Nominees Board) “Owned” ments Other (3 years) (1 Year Filing / Mtg. For That Freeze-Outs Unless Release Ann’y Election Noted) Any SH Adopted prior to vote nominates 28. Arch Coal, Inc. 120 – 25% on shareholder 5% 20% 20 No Yes No such proxy None (2/26/15) 150 (2 years) proposal (and access proposal failed) nominee

29. Archer-Daniels- Any SH • Successful proxy access Midland 120 – nominates 25% 3% 20% 20 No Yes No nominees count vs. cap (2 Other/Unknown Company 150 any (2 years) years) (11/5/15) nominee

Yes if recallable Any SH (5 BDs) • Successful proxy access 30. AT&T Inc. 20% 120 – nominates 25% 3% 20 and will No No nominees count vs. cap (2 Other/Unknown (12/18/15) (≥2) 150 any (2 years) recall by years) nominee meeting date Yes if recallable 31. AvalonBay (3 BDs) Any SH • Successful proxy access Adopted after Communities, 20% and 120 – nominates 3% 20 No No nominees count vs. cap (2 None majority-supported Inc. (≥2) recalled by 150 any years) shareholder proposal (11/12/15) date of nominee nom. notice Adopted after Nominating majority-supported Yes if SH 32. Avon Products, 20% 120 – 20% shareholder proposal 3% 20 recallable No No nominates None Inc.+ (3/1/16) (≥2) 150 (2 years) in 2015; adopted and (5 BDs) any shareholder proposal nominee was withdrawn

Sidley Austin LLP Page 31 Appendix – Select Terms of Proxy Access Provisions Adopted Since January 1, 2015

Nomination Proxy Access Other Ownership Key Parameters Deadline Unavailable if Advance Requirements Restrictions (Annual Meeting) Notice Nomination Prohibition on Renom- Must State on Third- inating Intention Days Days Depends Party Proxy Access Owner- as to Prior to Prior on # of Circumstances Company Cap Loaned Comp- Creeping Control Limitations Nominees ship Group Ownership Ann’y of to Advance of Adoption (Max. Shares ensation Blanket Based on % Thres- Size Beyond Proxy Ann- Notice % of Count as Arrange- Exclusion Support and hold Limit Mtg. Date Date / ual Nominees Board) “Owned” ments Other (3 years) (1 Year Filing / Mtg. For That Freeze-Outs Unless Release Ann’y Election Noted)

33. Bank of America Yes if • Successful nominating Adopted and 120 – Reduces 20% Corporation 3% 20% 20 recallable Yes No shareholder may not shareholder proposal 150 board cap (2 years) (3/17/15) (3 days) nominate (2 years) was withdrawn

Yes if recallable 34. The Bank of New Any SH (3 BDs) • Successful proxy access York Mellon 20% 120 – nominates 3% 20 and No No nominees count vs. cap (2 None Other/Unknown Corporation (≥2) 150 any recalled by years) (10/13/15) nominee meeting date Yes if recallable Any SH 35. Baxter (3 BDs) nominates • Successful proxy access Adopted and International 20% 120 – 25% 3% 20 and agrees Yes No a proxy nominees count vs. cap (3 shareholder proposal Inc. (≥2) 150 (3 years) to recall access years) was excluded (12/18/15) upon nominee notice Yes (candidacy Adopted after 36. Big Lots, Inc.* fees and 120 – 25% majority-supported 3% 25% None No No None (4/14/15) fees for 150 (2 years) shareholder proposal service in 2014 prohibited)

Unavail- Any SH able if Yes (fees for nominates • Successful proxy access Adopted and 37. Biogen Inc. 25% 120 – ≥50% of 25% 3% 20 No Yes service such proxy nominees count vs. cap (3 shareholder proposal (3/27/15) (≥1) 150 directors (2 years) prohibited) access years) was withdrawn up for nominee election

Sidley Austin LLP Page 32 Appendix – Select Terms of Proxy Access Provisions Adopted Since January 1, 2015

Nomination Proxy Access Other Ownership Key Parameters Deadline Unavailable if Advance Requirements Restrictions (Annual Meeting) Notice Nomination Prohibition on Renom- Must State on Third- inating Intention Days Days Depends Party Proxy Access Owner- as to Prior to Prior on # of Circumstances Company Cap Loaned Comp- Creeping Control Limitations Nominees ship Group Ownership Ann’y of to Advance of Adoption (Max. Shares ensation Blanket Based on % Thres- Size Beyond Proxy Ann- Notice % of Count as Arrange- Exclusion Support and hold Limit Mtg. Date Date / ual Nominees Board) “Owned” ments Other (3 years) (1 Year Filing / Mtg. For That Freeze-Outs Unless Release Ann’y Election Noted) Yes if recallable (5 BDs) Any SH • Successful proxy access 38. BlackRock Inc.* and agrees 120 – nominates 25% 3% 25% 20 No No nominees count vs. cap (2 Other/Unknown (5/25/16) to 150 any (2 years) years) promptly nominee recall upon notice

Yes if • Successful proxy access recallable nominees count vs. cap (3 39. The Boeing (5 BDs) Adopted and 20% 120 – Reduces years) 25% Company+ 3% 20 and No No shareholder proposal (≥2) 150 board cap • Successful nominating (2 years) (12/14/15) recalled by was withdrawn shareholder may not record nominate (2 years) date Yes if recallable • Successful proxy access (5 BDs) Any SH Adopted prior to vote nominees count vs. cap (2 40. BorgWarner, Inc. and agrees 120 – nominates on shareholder 5% 20% 10 Yes No years) None (2/10/16) to 150 any proposal (and • Nominees pursuant to promptly nominee proposal passed) agreement count vs. cap recall upon notice

Any SH Adopted prior to vote 41. Boston Yes (fees for • Successful proxy access nominates 25% on shareholder Properties, Inc. 3% 25% 5 No No service 120 nominees count vs. cap any (2 years) proposal (and (2/24/15) prohibited) (indefinitely) nominee proposal failed)

Sidley Austin LLP Page 33 Appendix – Select Terms of Proxy Access Provisions Adopted Since January 1, 2015

Nomination Proxy Access Other Ownership Key Parameters Deadline Unavailable if Advance Requirements Restrictions (Annual Meeting) Notice Nomination Prohibition on Renom- Must State on Third- inating Intention Days Days Depends Party Proxy Access Owner- as to Prior to Prior on # of Circumstances Company Cap Loaned Comp- Creeping Control Limitations Nominees ship Group Ownership Ann’y of to Advance of Adoption (Max. Shares ensation Blanket Based on % Thres- Size Beyond Proxy Ann- Notice % of Count as Arrange- Exclusion Support and hold Limit Mtg. Date Date / ual Nominees Board) “Owned” ments Other (3 years) (1 Year Filing / Mtg. For That Freeze-Outs Unless Release Ann’y Election Noted) Any SH 42. Brandywine Yes if 25% 120 – nominates 25% Realty Trust 3% 25 recallable No No None Other/Unknown (≥2) 150 any (2 years) (5/24/16) (5 BDs) nominee Any SH Adopted prior to vote 43. The Brink’s Yes if • Successful proxy access 20% nominates 25% on shareholder Company 3% 20 recallable No No 120 nominees count vs. cap (2 (≥2) any (2 years) proposal (and (3/19/16) (3 BDs) years) nominee proposal failed)

44. Bristol-Myers Yes if • Successful proxy access 20% 120 – Reduces 25% Squibb Company 3% 20 recallable No No nominees count vs. cap (3 Other/Unknown (≥2) 150 board cap (2 years) (2/12/16) (5 BDs) years)

Unavail- 45. Broadridge Any SH able if Yes if Yes (fees for • Successful proxy access Adopted and Financial 120 – nominates ≥30% of 25% 3% 25% 20 recallable No service nominees count vs. cap (3 shareholder proposal Solutions, Inc. 150 any directors (2 years) (3 BDs) prohibited) years) was withdrawn (7/2/15) nominee up for election

Yes if recallable 46. Brocade Any SH (5 BDs) Adopted and Communications 20% nominates 3% 30 and No No 45 – 75 None None shareholder proposal Systems, Inc. (≥2) any recalled by was withdrawn (1/26/16) nominee record date

Sidley Austin LLP Page 34 Appendix – Select Terms of Proxy Access Provisions Adopted Since January 1, 2015

Nomination Proxy Access Other Ownership Key Parameters Deadline Unavailable if Advance Requirements Restrictions (Annual Meeting) Notice Nomination Prohibition on Renom- Must State on Third- inating Intention Days Days Depends Party Proxy Access Owner- as to Prior to Prior on # of Circumstances Company Cap Loaned Comp- Creeping Control Limitations Nominees ship Group Ownership Ann’y of to Advance of Adoption (Max. Shares ensation Blanket Based on % Thres- Size Beyond Proxy Ann- Notice % of Count as Arrange- Exclusion Support and hold Limit Mtg. Date Date / ual Nominees Board) “Owned” ments Other (3 years) (1 Year Filing / Mtg. For That Freeze-Outs Unless Release Ann’y Election Noted) • While board is classified, number of proxy access nominees may not >50% of Any SH directors to be elected 47. Brunswick Yes if 20% 120 – nominates • Successful proxy access 25% Corporation 3% 20 recallable No No Other/Unknown (≥2) 150 any nominees count vs. cap (2 (2 years) (5/4/16) (5 BDs) nominee years) • Directors in office or nominees pursuant to agreement count vs. cap

Adopted prior to vote Any SH 48. Cabot Oil & Gas Yes (fees for on shareholder 120 – nominates 25% Corporation+ 5% 20% 10 No Yes service None proposal (and 150 any (2 years) (3/11/15) prohibited) proposal failed); 2016 nominee proposal also failed

Yes • Successful proxy access 49. Capital One Any SH Yes if (through nominees count vs. cap (3 Adopted and Financial 20% 120 – nominates 25% 3% 20 recallable term of No years) shareholder proposal Corporation (≥2) 150 any (2 years) (3 BDs) director’s • Nominees pursuant to was excluded (10/5/15) nominee service) agreement count vs. cap

• Successful proxy access Yes if nominees count vs. cap (2 recalled by years after board nom.) 50. CarMax, Inc. 120 – Reduces 3% 20% 20 date of No No • Nominees pursuant to None Other/Unknown (12/8/15) 150 board cap nom. agreement count vs. cap (2 notice years after board nom.) but not <1

Sidley Austin LLP Page 35 Appendix – Select Terms of Proxy Access Provisions Adopted Since January 1, 2015

Nomination Proxy Access Other Ownership Key Parameters Deadline Unavailable if Advance Requirements Restrictions (Annual Meeting) Notice Nomination Prohibition on Renom- Must State on Third- inating Intention Days Days Depends Party Proxy Access Owner- as to Prior to Prior on # of Circumstances Company Cap Loaned Comp- Creeping Control Limitations Nominees ship Group Ownership Ann’y of to Advance of Adoption (Max. Shares ensation Blanket Based on % Thres- Size Beyond Proxy Ann- Notice % of Count as Arrange- Exclusion Support and hold Limit Mtg. Date Date / ual Nominees Board) “Owned” ments Other (3 years) (1 Year Filing / Mtg. For That Freeze-Outs Unless Release Ann’y Election Noted) Any SH Yes if Adopted and 51. Caterpillar Inc.+ 20% 120 – nominates 25% 3% 20 recallable No No None shareholder proposal (12/9/15) (≥2) 150 any (2 years) (5 BDs) was withdrawn nominee Yes if recallable (5 BDs) 52. CBL & Associates • Successful proxy access Adopted after 25% and 120 – Properties, Inc. 3% 20 Yes No nominees count vs. cap (2 None majority-supported (≥2) recalled 150 (2/11/16) years) proposal in 2015 within 5 BDs of notice 20% Yes if • Successful proxy access (≥2) recallable nominees count vs. cap (3 (≤1/3 (5 BDs) 53. Celanese years) at 2017 and 120 – Reduces 25% Corporation 3% 20 No No • Nominees pursuant to Other/Unknown and recalled by 150 board cap (2 years) (2/8/16) agreement count vs. cap (3 2018 date of years after board nom.) but annual nom. not <1 mtgs.) notice Yes if Unavail- recallable able if 54. Cerner (5 BDs) and • Successful proxy access Adopted and 120 – ≥50% of 15% Corporation+ 3% 20% 20 agrees to Yes No nominees count vs. cap (3 shareholder proposal 150 directors (2 years) (2/25/16) promptly years) was withdrawn recall upon then in notice office

55. CF Industries Any SH Adopted prior to vote Holdings, Inc. Yes if • Successful proxy access 120 – nominates 25% on shareholder (2/4/15 and 3% 25% 20 recallable Yes No nominees count vs. cap (2 150 any (2 years) proposal (and amended as of (5 BDs) years) nominee proposal passed) 10/14/15)

Sidley Austin LLP Page 36 Appendix – Select Terms of Proxy Access Provisions Adopted Since January 1, 2015

Nomination Proxy Access Other Ownership Key Parameters Deadline Unavailable if Advance Requirements Restrictions (Annual Meeting) Notice Nomination Prohibition on Renom- Must State on Third- inating Intention Days Days Depends Party Proxy Access Owner- as to Prior to Prior on # of Circumstances Company Cap Loaned Comp- Creeping Control Limitations Nominees ship Group Ownership Ann’y of to Advance of Adoption (Max. Shares ensation Blanket Based on % Thres- Size Beyond Proxy Ann- Notice % of Count as Arrange- Exclusion Support and hold Limit Mtg. Date Date / ual Nominees Board) “Owned” ments Other (3 years) (1 Year Filing / Mtg. For That Freeze-Outs Unless Release Ann’y Election Noted)

Any SH 56. Chemed Yes if Adopted and 20% 120 – nominates 25% Corporation 3% 20 recallable No No None shareholder proposal (≥2) 150 any (2 years) (2/19/16) (3 BDs) was excluded nominee

Yes if recallable Any SH Adopted after 57. Cheniere Energy, (5 BDs) • Successful proxy access 20% 120 – nominates 25% majority-supported Inc. 3% 20 and agrees No No nominees count vs. cap (2 (≥2) 150 any (2 years) shareholder proposal (12/9/15) to recall years) nominee in 2015 upon notice Yes if recallable Yes (3 BDs) (candidacy Any SH Adopted after 58. Chevron 20% and fees OK but 120 – nominates 25% majority-supported Corporation 3% 20 No None (≥2) recalled fees for 150 any (2 years) shareholder proposal (9/30/15) within 3 service nominee in 2015 BDs of prohibited) notice

Any SH 59. The Children’s Yes if • Successful proxy access 20% 120 – nominates 25% Place, Inc. 3% 20 recallable No No nominees count vs. cap (2 Other/Unknown (≥2) 150 any (2 years) (2/12/16) (5 BDs) years) nominee

Yes if • Successful proxy access recallable nominees count vs. cap (3 Adopted after (5 BDs) years after board nom.) 60. Cimarex Energy 90 – Reduces 20% majority-supported 3% 25% 20 and No No • Nominees pursuant to Co. (11/11/15) 120 board cap (2 years) shareholder proposal recalled by agreement count vs. cap (3 in 2015 date of years after board nom.) but nom. not <1

Sidley Austin LLP Page 37 Appendix – Select Terms of Proxy Access Provisions Adopted Since January 1, 2015

Nomination Proxy Access Other Ownership Key Parameters Deadline Unavailable if Advance Requirements Restrictions (Annual Meeting) Notice Nomination Prohibition on Renom- Must State on Third- inating Intention Days Days Depends Party Proxy Access Owner- as to Prior to Prior on # of Circumstances Company Cap Loaned Comp- Creeping Control Limitations Nominees ship Group Ownership Ann’y of to Advance of Adoption (Max. Shares ensation Blanket Based on % Thres- Size Beyond Proxy Ann- Notice % of Count as Arrange- Exclusion Support and hold Limit Mtg. Date Date / ual Nominees Board) “Owned” ments Other (3 years) (1 Year Filing / Mtg. For That Freeze-Outs Unless Release Ann’y Election Noted) notice • Successful advance notice nominees count vs. cap (2 years)

• Successful proxy access Any SH Yes if Yes (fees for nominees count vs. cap (2 61. CIT Group Inc. 20% 120 – nominates 25% 3% 20 recallable No service years) Other/Unknown (3/15/16) (≥2) 150 any (2 years) (5 BDs) prohibited) • Nominees pursuant to nominee agreement count vs. cap Adopted after Yes if • Successful proxy access 62. Citigroup Inc. 20% 120 – Reduces majority-supported 3% 20 recallable No No nominees count vs. cap (3 None (10/22/15) (≥2) 150 board cap shareholder proposal (3 BDs) years) in 2015 • Successful proxy access nominees count vs. cap (2 Any SH 63. The Clorox Yes if years after board nom.) Adopted and 120 – nominates 20% Corporation 3% 20% 20 recallable No No • Nominees pursuant to shareholder proposal 150 any (2 years) (8/28/15) (5 BDs) agreement count vs. cap (2 was withdrawn nominee years after board nom.) but not <1 Yes if 64. Cloud Peak recallable Any SH Adopted after Energy Inc. (3 BDs) and nominates shareholder proposal 120 – (10/20/15 and 3% 25% None recalled by No No such proxy None None passed in 2015 and 150 amended as of date of access competing proposal 5/2/16) nom. nominee failed notice

Sidley Austin LLP Page 38 Appendix – Select Terms of Proxy Access Provisions Adopted Since January 1, 2015

Nomination Proxy Access Other Ownership Key Parameters Deadline Unavailable if Advance Requirements Restrictions (Annual Meeting) Notice Nomination Prohibition on Renom- Must State on Third- inating Intention Days Days Depends Party Proxy Access Owner- as to Prior to Prior on # of Circumstances Company Cap Loaned Comp- Creeping Control Limitations Nominees ship Group Ownership Ann’y of to Advance of Adoption (Max. Shares ensation Blanket Based on % Thres- Size Beyond Proxy Ann- Notice % of Count as Arrange- Exclusion Support and hold Limit Mtg. Date Date / ual Nominees Board) “Owned” ments Other (3 years) (1 Year Filing / Mtg. For That Freeze-Outs Unless Release Ann’y Election Noted)

Any SH 65. CMS Energy Yes if • Successful proxy access Adopted and 20% 120 – nominates 25% Corporation+ 3% 20 recallable Yes No nominees count vs. cap (2 shareholder proposal (≥2) 150 any (2 years) (2/4/16) (5 BDs) years) was withdrawn nominee

Adopted after Any SH shareholder proposal 66. The Coca-Cola Yes if 20% 120 – nominates 25% failed at 2015 annual Company 3% 20 recallable No No None (≥2) 150 any (2 years) meeting; adopted and (9/2/15) (3 BDs) nominee shareholder proposal was withdrawn

67. Cognizant Technology Yes if Adopted and 25% 120 – • Nominees pursuant to Solutions 3% None recallable No No None shareholder proposal (≥2) 150 agreement count vs. cap Corporation (5 BDs) was excluded (1/28/16)

• Successful proxy access nominees count vs. cap (2 68. Colgate- Yes if years) Adopted and Palmolive 20% 120 – Reduces 10% + 3% 20 recallable Yes No • Nominees pursuant to shareholder proposal Company (≥2) 150 board cap (2 years) (5 BDs) agreement count vs. cap (2 was withdrawn (1/14/16) years after board nom.) but not <1

Yes if recallable • Successful proxy access Any SH Adopted after (5 BDs) Yes (fees for nominees count vs. cap (3 69. ConocoPhillips 20% 120 – nominates majority-supported 3% 20 and agrees Yes service years) None (10/9/15) (≥2) 150 any shareholder proposal to recall prohibited) • Nominees pursuant to nominee in 2015 upon agreement count vs. cap notice

Sidley Austin LLP Page 39 Appendix – Select Terms of Proxy Access Provisions Adopted Since January 1, 2015

Nomination Proxy Access Other Ownership Key Parameters Deadline Unavailable if Advance Requirements Restrictions (Annual Meeting) Notice Nomination Prohibition on Renom- Must State on Third- inating Intention Days Days Depends Party Proxy Access Owner- as to Prior to Prior on # of Circumstances Company Cap Loaned Comp- Creeping Control Limitations Nominees ship Group Ownership Ann’y of to Advance of Adoption (Max. Shares ensation Blanket Based on % Thres- Size Beyond Proxy Ann- Notice % of Count as Arrange- Exclusion Support and hold Limit Mtg. Date Date / ual Nominees Board) “Owned” ments Other (3 years) (1 Year Filing / Mtg. For That Freeze-Outs Unless Release Ann’y Election Noted)

• Successful proxy access nominees count vs. cap (2 Yes if 70. Corning years) 20% revocable 120 – Reduces 10% Incorporated 3% 20 No No • Nominees pursuant to Other/Unknown (≥2) at any 150 board cap (2 years) (12/7/15) agreement count vs. cap (2 time years after board nom.) but not <1

Nominating SH nominates 71. Corrections any Yes if Corporation of 25% 60 – nominee or 20% 3% 20 recallable No No None Other/Unknown America (≥2) 90 any SH (1 year) (3 BDs) (1/8/16) nominates a proxy access nominee

Yes if recallable (5 BDs) Any SH • Successful proxy access 72. Crown Holdings, 20% and 120 – nominates 10% 3% 20 No No nominees count vs. cap (3 Other/Unknown Inc. (1/29/16) (≥2) recalled 150 any (2 years) years) within 5 nominee BDs of notice

Sidley Austin LLP Page 40 Appendix – Select Terms of Proxy Access Provisions Adopted Since January 1, 2015

Nomination Proxy Access Other Ownership Key Parameters Deadline Unavailable if Advance Requirements Restrictions (Annual Meeting) Notice Nomination Prohibition on Renom- Must State on Third- inating Intention Days Days Depends Party Proxy Access Owner- as to Prior to Prior on # of Circumstances Company Cap Loaned Comp- Creeping Control Limitations Nominees ship Group Ownership Ann’y of to Advance of Adoption (Max. Shares ensation Blanket Based on % Thres- Size Beyond Proxy Ann- Notice % of Count as Arrange- Exclusion Support and hold Limit Mtg. Date Date / ual Nominees Board) “Owned” ments Other (3 years) (1 Year Filing / Mtg. For That Freeze-Outs Unless Release Ann’y Election Noted)

Any SH Yes if • Successful proxy access 73. CSX Corporation 20% nominates 25% 3% 20 recallable No No 120 nominees count vs. cap (2 Other/Unknown (10/7/15) (≥2) any (2 years) (3 BDs) years) nominee

• Successful proxy access Yes if nominees count vs. cap (2 recallable years) (5 BDs) • Nominees pursuant to 74. CVS Health 20% and 120 – agreement count vs. cap (2 25% Corporation 3% 20 Yes No Other/Unknown (≥2) recalled 150 years after board nom.) but (2 years) (1/21/16) promptly not <1 upon • Successful advance notice notice nominees count vs. cap (2 years) but not <1 Yes if recallable • Successful proxy access (5 BDs) Any SH Adopted prior to vote 75. Dana Holding nominees count vs. cap (3 and agrees 120 – nominates 25% on shareholder Corporation 3% 25% 20 Yes No years) to 150 any (2 years) proposal (and (1/26/16) • Nominees pursuant to promptly nominee proposal failed) agreement count vs. cap recall upon notice • Successful proxy access or Yes (fees for Any SH 76. DCT Industrial advance notice nominees candidacy 120 – nominates 25% Trust Inc. 3% 20% 20 No No being nominated for re- Other/Unknown and service 150 any (2 years) (5/4/16) election by the board count prohibited) nominee vs. cap

Sidley Austin LLP Page 41 Appendix – Select Terms of Proxy Access Provisions Adopted Since January 1, 2015

Nomination Proxy Access Other Ownership Key Parameters Deadline Unavailable if Advance Requirements Restrictions (Annual Meeting) Notice Nomination Prohibition on Renom- Must State on Third- inating Intention Days Days Depends Party Proxy Access Owner- as to Prior to Prior on # of Circumstances Company Cap Loaned Comp- Creeping Control Limitations Nominees ship Group Ownership Ann’y of to Advance of Adoption (Max. Shares ensation Blanket Based on % Thres- Size Beyond Proxy Ann- Notice % of Count as Arrange- Exclusion Support and hold Limit Mtg. Date Date / ual Nominees Board) “Owned” ments Other (3 years) (1 Year Filing / Mtg. For That Freeze-Outs Unless Release Ann’y Election Noted) Yes if Adopted after recallable majority-supported 77. Devon Energy (5 BDs) • Successful proxy access 20% 120 – Reduces shareholder proposal Corporation+ 3% 20 and agrees No No nominees count vs. cap (2 None (≥2) 150 board cap in 2015; adopted and (1/26/16) to recall years) shareholder proposal upon was withdrawn notice

Yes if recallable Any SH 78. Dominion (5 BDs) Yes (fees for nominates • Successful proxy access Adopted and 20% 120 – 25% Resources, Inc.+ 3% 20 and agrees No service such proxy nominees count vs. cap (3 shareholder proposal (≥2) 150 (2 years) (12/17/15) to recall prohibited) access years) was withdrawn upon nominee notice

Yes if recallable (3 BDs) Any SH 79. Domtar • Successful proxy access and 120 – nominates 25% Corporation 3% 20% 20 No No nominees count vs. cap (3 Other/Unknown recalled by 150 any (2 years) (2/23/16) years) date of nominee nom. notice

Yes if recallable • Successful proxy access (5 BDs) Any SH Adopted prior to vote 80. Dover nominees count vs. cap (3 20% and agrees 120 – nominates 25% on shareholder Corporation 3% 20 Yes No years) (≥2) to 150 any (2 years) proposal (and (2/11/16) • Nominees pursuant to promptly nominee proposal failed) agreement count vs. cap recall upon notice

Sidley Austin LLP Page 42 Appendix – Select Terms of Proxy Access Provisions Adopted Since January 1, 2015

Nomination Proxy Access Other Ownership Key Parameters Deadline Unavailable if Advance Requirements Restrictions (Annual Meeting) Notice Nomination Prohibition on Renom- Must State on Third- inating Intention Days Days Depends Party Proxy Access Owner- as to Prior to Prior on # of Circumstances Company Cap Loaned Comp- Creeping Control Limitations Nominees ship Group Ownership Ann’y of to Advance of Adoption (Max. Shares ensation Blanket Based on % Thres- Size Beyond Proxy Ann- Notice % of Count as Arrange- Exclusion Support and hold Limit Mtg. Date Date / ual Nominees Board) “Owned” ments Other (3 years) (1 Year Filing / Mtg. For That Freeze-Outs Unless Release Ann’y Election Noted) Any SH Adopted after 81. DTE Energy Yes if • Successful proxy access 20% 120 – nominates majority-supported Company 3% 20 recallable No No nominees count vs. cap (2 None (≥2) 150 any shareholder proposal (9/17/15) (5 BDs) years) nominee in 2015 Yes if recallable Adopted after (5 BDs) Any SH majority-supported 82. Duke Energy • Successful proxy access 20% and 120 – nominates 25% shareholder proposal Corporation+ 3% 20 No No nominees count vs. cap (2 (≥2) recalled by 150 any (2 years) in 2015; adopted and (1/4/16) years) date of nominee shareholder proposal nom. was withdrawn notice Yes if recallable • Successful proxy access 83. The Dun & (5 BDs) Any SH nominees count vs. cap (2 Adopted and Bradstreet 20% and 120 – nominates 25% 3% 20 No No years) shareholder proposal Corporation (≥2) recalled 150 any (2 years) • Nominees pursuant to was excluded (12/3/15) within 5 nominee agreement count vs. cap BDs of notice Yes if recallable 84. Eastman (3 BDs) Adopted and Chemical 20% and 120 – Reduces 25% 3% 20 No No None shareholder proposal Company (≥1) recalled 150 board cap (2 years) was excluded (2/18/16) within 3 BDs of notice

Sidley Austin LLP Page 43 Appendix – Select Terms of Proxy Access Provisions Adopted Since January 1, 2015

Nomination Proxy Access Other Ownership Key Parameters Deadline Unavailable if Advance Requirements Restrictions (Annual Meeting) Notice Nomination Prohibition on Renom- Must State on Third- inating Intention Days Days Depends Party Proxy Access Owner- as to Prior to Prior on # of Circumstances Company Cap Loaned Comp- Creeping Control Limitations Nominees ship Group Ownership Ann’y of to Advance of Adoption (Max. Shares ensation Blanket Based on % Thres- Size Beyond Proxy Ann- Notice % of Count as Arrange- Exclusion Support and hold Limit Mtg. Date Date / ual Nominees Board) “Owned” ments Other (3 years) (1 Year Filing / Mtg. For That Freeze-Outs Unless Release Ann’y Election Noted)

• Successful proxy access Adopted after nominees count vs. cap (2 Any SH majority-supported Yes if years) 85. eBay Inc.+ 20% 90 – 120 nominates shareholder proposal 3% 20 recallable No No • Nominees pursuant to None (3/15/16) (≥2) any in 2015; adopted and (5 days) agreement count vs. cap (2 nominee shareholder proposal years after board nom.) but was withdrawn not <1 Yes if recallable (5 BDs) Any SH Adopted prior to vote • Successful proxy access 86. Ecolab Inc. 20% and agrees 120 – nominates 25% on shareholder 3% 20 Yes No nominees count vs. cap (3 (12/3/15) (≥2) to 150 any (2 years) proposal (and years) promptly nominee proposal failed) recall upon notice

Any SH Adopted prior to vote 87. Edison Yes if • Successful proxy access 20% 120 – nominates on shareholder International 3% 20 recallable Yes No nominees count vs. cap (2 None (≥2) 180 any proposal (and (12/10/15) (5 BDs) years) nominee proposal failed)

Yes if recallable • Successful proxy access 88. Edwards (5 BDs) Any SH nominees count vs. cap (2 Lifesciences 20% and agrees 120 – nominates 25% 3% 30 No No years) Other/Unknown Corporation (≥2) to 150 any (2 years) • Nominees pursuant to (2/25/16) promptly nominee agreement count vs. cap recall upon notice

Sidley Austin LLP Page 44 Appendix – Select Terms of Proxy Access Provisions Adopted Since January 1, 2015

Nomination Proxy Access Other Ownership Key Parameters Deadline Unavailable if Advance Requirements Restrictions (Annual Meeting) Notice Nomination Prohibition on Renom- Must State on Third- inating Intention Days Days Depends Party Proxy Access Owner- as to Prior to Prior on # of Circumstances Company Cap Loaned Comp- Creeping Control Limitations Nominees ship Group Ownership Ann’y of to Advance of Adoption (Max. Shares ensation Blanket Based on % Thres- Size Beyond Proxy Ann- Notice % of Count as Arrange- Exclusion Support and hold Limit Mtg. Date Date / ual Nominees Board) “Owned” ments Other (3 years) (1 Year Filing / Mtg. For That Freeze-Outs Unless Release Ann’y Election Noted) Yes if recallable • Successful proxy access Adopted after (5 BDs) Any SH nominees count vs. cap (2 majority-supported 89. Electronic Arts 20% and 120 – nominates years) 25% shareholder proposal 3% 20 No No Inc.+ (5/13/16) (≥2) recalled 150 any • Directors in office or (2 years) in 2015; adopted and within 5 nominee nominees pursuant to shareholder proposal BDs of agreement count vs. cap was withdrawn notice

Adopted after 90. EOG Resources Yes if • Successful proxy access Reduces 10% majority-supported Inc. 3% 20% 20 recallable No No 90 – 120 nominees count vs. cap (2 board cap (2 years) shareholder proposal (9/22/15) (3 BDs) years) in 2015

• Successful proxy access nominees count vs. cap (2 Yes if Adopted after years after board nom.) 91. EQT Corporation 20% recallable 120 – Reduces majority-supported 3% 20 No No • Nominees pursuant to None (10/14/15) (≥2) at any 150 board cap shareholder proposal agreement count vs. cap (2 time in 2015 years after board nom.) but not <1 Any SH Yes if • Successful proxy access Adopted and 92. Equinix, Inc. 20% 120 – nominates 25% 3% 20 recallable Yes No nominees count vs. cap (2 shareholder proposal (3/28/16) (≥2) 150 any (2 years) (5 BDs) years) was excluded nominee Yes if recallable (3 BDs) Any SH Adopted after 93. Equity • Successful proxy access and 120 – nominates majority-supported Residential 3% 20% 20 No No nominees count vs. cap (2 None recalled by 150 any shareholder proposal (10/1/15) years) date of nominee in 2015 nom. notice

Sidley Austin LLP Page 45 Appendix – Select Terms of Proxy Access Provisions Adopted Since January 1, 2015

Nomination Proxy Access Other Ownership Key Parameters Deadline Unavailable if Advance Requirements Restrictions (Annual Meeting) Notice Nomination Prohibition on Renom- Must State on Third- inating Intention Days Days Depends Party Proxy Access Owner- as to Prior to Prior on # of Circumstances Company Cap Loaned Comp- Creeping Control Limitations Nominees ship Group Ownership Ann’y of to Advance of Adoption (Max. Shares ensation Blanket Based on % Thres- Size Beyond Proxy Ann- Notice % of Count as Arrange- Exclusion Support and hold Limit Mtg. Date Date / ual Nominees Board) “Owned” ments Other (3 years) (1 Year Filing / Mtg. For That Freeze-Outs Unless Release Ann’y Election Noted) Adopted after Yes if management recallable Any SH proposal passed in 94. Exelon (5 BDs) • Successful nominating 20% 120 – nominates 25% 2015 and competing Corporation+ 3% 20 and agree Yes No shareholder may not (≥2) 150 any (2 years) shareholder proposal (4/26/16) to recall by nominate (2 years) nominee failed; adopted and record shareholder proposal date was withdrawn Adopted after • Successful proxy access management 95. Expeditors Any SH nominees count vs. cap (3 proposal passed in Yes if International of 120 – nominates years) 2015 and competing 3% 20% 20 recallable No No None Washington, 150 any • Successful nominating shareholder proposal (5 days) Inc.* (5/3/16) nominee shareholder may not failed; 2016 nominate (2 years) management proposal also passed Yes if recallable • Successful proxy access 96. Express Scripts (5 BDs) Reduces nominees count vs. cap (2 Adopted and Holding 20% and 120 – 20% 3% 20 Yes No board cap years) shareholder proposal Company+ (≥2) promptly 150 (2 years) but not <1 • Nominees pursuant to was withdrawn (3/9/16) recalls agreement count vs. cap upon notice

Adopted after 97. FedEx Yes if • Successful proxy access 20% 120 – Reduces majority-supported Corporation 3% 20 recallable No No nominees count vs. cap (1 None (≥2) 150 board cap shareholder proposal (3/7/16) (5 BDs) year) in 2015

Sidley Austin LLP Page 46 Appendix – Select Terms of Proxy Access Provisions Adopted Since January 1, 2015

Nomination Proxy Access Other Ownership Key Parameters Deadline Unavailable if Advance Requirements Restrictions (Annual Meeting) Notice Nomination Prohibition on Renom- Must State on Third- inating Intention Days Days Depends Party Proxy Access Owner- as to Prior to Prior on # of Circumstances Company Cap Loaned Comp- Creeping Control Limitations Nominees ship Group Ownership Ann’y of to Advance of Adoption (Max. Shares ensation Blanket Based on % Thres- Size Beyond Proxy Ann- Notice % of Count as Arrange- Exclusion Support and hold Limit Mtg. Date Date / ual Nominees Board) “Owned” ments Other (3 years) (1 Year Filing / Mtg. For That Freeze-Outs Unless Release Ann’y Election Noted) Yes if recallable Adopted after Nominating (5 BDs) majority-supported 98. Fidelity National SH • Successful proxy access 20% and agrees shareholder proposal Financial, Inc.+ 3% 25 No No 120 nominates nominees count vs. cap (2 None (≥2) to in 2015; adopted and (2/3/16) any years) promptly shareholder proposal nominee recall upon was withdrawn notice • Successful nominating 99. FirstMerit Any SH shareholder may not Corporation* nominates Adopted and nominate if >20% of board 25% (4/15/15) 3% 20% 20 No Yes No 90 a proxy shareholder proposal consists of candidates (2 years) access was withdrawn previously submitted by it or nominee its affiliates Yes if recallable Any SH Adopted prior to vote (5 BDs) • Successful proxy access 100. Fiserv, Inc. 20% 120 – nominates 25% on shareholder 3% 20 and Yes No nominees count vs. cap (2 (2/19/16) (≥2) 150 any (2 years) proposal (and recalled years) nominee proposal failed) upon of notice Unavail- Any SH able if Adopted prior to vote 101. Flowserve Yes if Yes (fees for nominates 20% 120 – ≥50% of 25% on shareholder Corporation 5% 20 recallable Yes service a proxy None (≥2) 150 directors (2 years) proposal (and (12/14/15) (3 BDs) prohibited) access up for proposal failed) nominee election Yes if • Successful proxy access nominees count vs. cap (2 recallable Any SH 102. Fluor (5 BDs) and Yes (fees for years) Adopted and 20% 120 – nominates 25% Corporation 3% 20 recalled Yes service • Nominees pursuant to shareholder proposal (≥2) 150 any (2 years) (2/4/16) within 5 prohibited) agreement count vs. cap (2 was excluded nominee BDs of years after board nom.) but notice not <1

Sidley Austin LLP Page 47 Appendix – Select Terms of Proxy Access Provisions Adopted Since January 1, 2015

Nomination Proxy Access Other Ownership Key Parameters Deadline Unavailable if Advance Requirements Restrictions (Annual Meeting) Notice Nomination Prohibition on Renom- Must State on Third- inating Intention Days Days Depends Party Proxy Access Owner- as to Prior to Prior on # of Circumstances Company Cap Loaned Comp- Creeping Control Limitations Nominees ship Group Ownership Ann’y of to Advance of Adoption (Max. Shares ensation Blanket Based on % Thres- Size Beyond Proxy Ann- Notice % of Count as Arrange- Exclusion Support and hold Limit Mtg. Date Date / ual Nominees Board) “Owned” ments Other (3 years) (1 Year Filing / Mtg. For That Freeze-Outs Unless Release Ann’y Election Noted) Yes if recallable (5 BDs) Any SH 103. Freeport • Successful proxy access Adopted and 20% and 120 – nominates 15% McMoRan Inc.*+ 3% 20 Yes No nominees count vs. cap (2 shareholder proposal (≥2) recalled 150 any (2 years) (6/8/16) years) was withdrawn within 5 nominee BDs of notice

Yes if recallable 104. General (5 BDs) Any SH • Successful proxy access Adopted and Dynamics and 120 – nominates 25% 3% 20% 20 Yes No nominees count vs. cap (3 shareholder proposal Corporation recalled by 150 any (2 years) years) was excluded (12/2/15) date of nominee nom. notice

Any SH 105. General Electric Yes if Adopted and 120 – nominates 25% Company 3% 20% 20 recallable Yes No None shareholder proposal 150 any (2 years) (2/6/15) (3 BDs) was excluded nominee

• Successful proxy access nominees count vs. cap (2 Any SH Yes if years) 106. General Mills, 20% 120 – nominates 3% 20 recallable Yes No • Nominees pursuant to None Other/Unknown Inc. (3/8/16) (≥2) 150 any (3 BDs) agreement count vs. cap (2 nominee years after board nom.) but not <1

Sidley Austin LLP Page 48 Appendix – Select Terms of Proxy Access Provisions Adopted Since January 1, 2015

Nomination Proxy Access Other Ownership Key Parameters Deadline Unavailable if Advance Requirements Restrictions (Annual Meeting) Notice Nomination Prohibition on Renom- Must State on Third- inating Intention Days Days Depends Party Proxy Access Owner- as to Prior to Prior on # of Circumstances Company Cap Loaned Comp- Creeping Control Limitations Nominees ship Group Ownership Ann’y of to Advance of Adoption (Max. Shares ensation Blanket Based on % Thres- Size Beyond Proxy Ann- Notice % of Count as Arrange- Exclusion Support and hold Limit Mtg. Date Date / ual Nominees Board) “Owned” ments Other (3 years) (1 Year Filing / Mtg. For That Freeze-Outs Unless Release Ann’y Election Noted) Yes if recallable (3 BDs) Nominating 107. General Motors and SH • Successful proxy access Adopted and 20% 120 – 25% Company 3% 20 recalled by Yes No nominates nominees count vs. cap (2 shareholder proposal (≥2) 180 (2 years) (3/4/16) time the any years) was excluded nom. nominee notice is submitted

Yes if recallable (5 BDs) Any SH 108. Gilead Sciences, • Successful proxy access 20% and agrees 120 – nominates 25% Inc. 3% 20 No No nominees count vs. cap (2 Other/Unknown (≥2) to recall 150 any (2 years) (12/23/15) years) within 5 nominee BDs of notice

Yes if 109. The Goldman recallable Any SH Adopted after • Successful nominating Sachs Group, 20% and agrees 120 – nominates 20% shareholder proposal 3% 15 Yes No shareholder may not Inc. (≥2) to recall by 150 any (2 years) failed at 2015 annual nominate (2 years) (10/23/15) meeting nominee meeting date 110. H&R Block, Inc. Any SH Yes if Adopted and (7/14/15) 90 – nominates Reduces 25% 3% 20% 20 recallable No No None shareholder proposal 120 any board cap (1 year) (3 BDs) was withdrawn nominee Nominating 111. Hasbro, Inc. Adopted after Yes if SH (10/1/15 and 20% 90 – 25% majority-supported 3% 20 recallable No No nominates None amended as of (≥2) 120 (2 years) shareholder proposal (5 BDs) any 12/10/15) in 2015 nominee

Sidley Austin LLP Page 49 Appendix – Select Terms of Proxy Access Provisions Adopted Since January 1, 2015

Nomination Proxy Access Other Ownership Key Parameters Deadline Unavailable if Advance Requirements Restrictions (Annual Meeting) Notice Nomination Prohibition on Renom- Must State on Third- inating Intention Days Days Depends Party Proxy Access Owner- as to Prior to Prior on # of Circumstances Company Cap Loaned Comp- Creeping Control Limitations Nominees ship Group Ownership Ann’y of to Advance of Adoption (Max. Shares ensation Blanket Based on % Thres- Size Beyond Proxy Ann- Notice % of Count as Arrange- Exclusion Support and hold Limit Mtg. Date Date / ual Nominees Board) “Owned” ments Other (3 years) (1 Year Filing / Mtg. For That Freeze-Outs Unless Release Ann’y Election Noted) Adopted prior to vote on shareholder 112. HCP, Inc.+ Any SH • Successful proxy access proposal (and (2/8/15 and 20% 120 – nominates 10% 3% 25 Yes No No nominees count vs. cap (2 proposal passed); amended as of (≥2) 150 any (2 years) years) adopted and 1/28/16) nominee shareholder proposal was withdrawn

Adopted after 113. Hess • Successful proxy access 20% Yes if Reduces majority-supported Corporation 3% 20 No No 90 nominees count vs. cap (2 None (≥2) recallable board cap shareholder proposal (11/4/15) years after board nom.) in 2015

114. Hewlett Packard Any SH In connection with Enterprise 120 – nominates 25% spin-off from parent 3% 20% 20 No No No None Company 150 any (2 years) company that had (11/1/15) nominee adopted

Yes if • Successful proxy access recallable Any SH nominees count vs. cap (2 115. The Home (5 BDs) Adopted and 20% 120 – nominates years) Depot, Inc.+ 3% 20 and recalls Yes No None shareholder proposal (≥2) 150 any • Directors in office and (3/3/16) within 5 was withdrawn nominee nominees pursuant to BDs of agreement count vs. cap notice 116. Honeywell Any SH International Yes if • Successful proxy access Adopted and 20% 120 – nominates 25% Inc.+ (12/11/15 3% 20 recallable Yes No nominees count vs. cap (2 shareholder proposal (≥2) 150 any (2 years) and amended as (5 BDs) years) was withdrawn nominee of 2/12/16)

Sidley Austin LLP Page 50 Appendix – Select Terms of Proxy Access Provisions Adopted Since January 1, 2015

Nomination Proxy Access Other Ownership Key Parameters Deadline Unavailable if Advance Requirements Restrictions (Annual Meeting) Notice Nomination Prohibition on Renom- Must State on Third- inating Intention Days Days Depends Party Proxy Access Owner- as to Prior to Prior on # of Circumstances Company Cap Loaned Comp- Creeping Control Limitations Nominees ship Group Ownership Ann’y of to Advance of Adoption (Max. Shares ensation Blanket Based on % Thres- Size Beyond Proxy Ann- Notice % of Count as Arrange- Exclusion Support and hold Limit Mtg. Date Date / ual Nominees Board) “Owned” ments Other (3 years) (1 Year Filing / Mtg. For That Freeze-Outs Unless Release Ann’y Election Noted) Yes if recallable • Successful proxy access 117. Huntington (5 BDs) Any SH nominees count vs. cap (2 Adopted and Ingalls 25% and agrees 120 – nominates 3% 20 No No years) None shareholder proposal Industries, Inc. (≥2) to 150 any • Nominees pursuant to was excluded (1/28/16) promptly nominee agreement count vs. cap recall upon notice

• Successful proxy access nominees count vs. cap (2 118. Illinois Tool years after board nom.) Adopted and 25% Yes if 90 – Reduces Works Inc. 3% 20 No No • Nominees pursuant to None shareholder proposal (≥2) revocable 120 board cap (12/11/15) agreement count vs. cap (2 was excluded years after board nom.) but not <1

• 25% (2 years) (also • Successful proxy access applies to nominees count vs. cap (2 advance years) notice Any SH • Successful advance notice Yes if nominees) 119. Ingersoll-Rand 20% 120 – nominates nominees count vs. cap (2 3% 20 recallable No No • Nom’g SH Other/Unknown plc* (6/2/16) (≥2) 150 any years) (3 BDs) may not nominee • Nominees pursuant to nominate agreement count vs. cap (2 if nominee years) received

<10% support (2 years)

Sidley Austin LLP Page 51 Appendix – Select Terms of Proxy Access Provisions Adopted Since January 1, 2015

Nomination Proxy Access Other Ownership Key Parameters Deadline Unavailable if Advance Requirements Restrictions (Annual Meeting) Notice Nomination Prohibition on Renom- Must State on Third- inating Intention Days Days Depends Party Proxy Access Owner- as to Prior to Prior on # of Circumstances Company Cap Loaned Comp- Creeping Control Limitations Nominees ship Group Ownership Ann’y of to Advance of Adoption (Max. Shares ensation Blanket Based on % Thres- Size Beyond Proxy Ann- Notice % of Count as Arrange- Exclusion Support and hold Limit Mtg. Date Date / ual Nominees Board) “Owned” ments Other (3 years) (1 Year Filing / Mtg. For That Freeze-Outs Unless Release Ann’y Election Noted) Yes if recallable • Successful proxy access (5 BDs) nominees count vs. cap (2 and Any SH 120. Intel years) Adopted and 20% recalled 120 – nominates 25% Corporation+ 3% 20 Yes No • Nominees pursuant to shareholder proposal (≥2) within 5 150 any (2 years) (1/21/16) agreement count vs. cap (2 was withdrawn BDs of nominee years after board nom.) but date of not <1 nom. notice Yes if • Successful proxy access recallable Any SH nominees count vs. cap (1 121. Intercontinental (5 BDs) Adopted and 20% 120 – nominates year) 20% Exchange, Inc.+ 3% 20 and No No shareholder proposal (≥2) 150 any • Successful nominating (2 years) (5/6/16) recalled by was withdrawn nominee shareholder may not record nominate (2 years) date Yes if recallable 122. International Any SH (5 BDs) • Successful proxy access Flavors & 90 – nominates 25% 3% 20% 20 and No No nominees count vs. cap (2 Other/Unknown Fragrances Inc. 120 any (2 years) recalled years) (12/15/15) nominee upon notice Any SH 123. International Yes if • Successful proxy access Adopted and 20% 120 – nominates 25% Paper Company 3% 20 recallable Yes No nominees count vs. cap (2 shareholder proposal (≥2) 150 any (2 years) (2/9/16) (5 BDs) years) was excluded nominee • Successful proxy access Any SH nominees count vs. cap (2 Yes if 124. Intuit Inc. 20% 105 – nominates years) 25% 3% 20 recallable No No Other/Unknown (5/5/16) (≥2) 135 any • Directors in office or (2 years) (5 BDs) nominee nominees pursuant to agreement count vs. cap

Sidley Austin LLP Page 52 Appendix – Select Terms of Proxy Access Provisions Adopted Since January 1, 2015

Nomination Proxy Access Other Ownership Key Parameters Deadline Unavailable if Advance Requirements Restrictions (Annual Meeting) Notice Nomination Prohibition on Renom- Must State on Third- inating Intention Days Days Depends Party Proxy Access Owner- as to Prior to Prior on # of Circumstances Company Cap Loaned Comp- Creeping Control Limitations Nominees ship Group Ownership Ann’y of to Advance of Adoption (Max. Shares ensation Blanket Based on % Thres- Size Beyond Proxy Ann- Notice % of Count as Arrange- Exclusion Support and hold Limit Mtg. Date Date / ual Nominees Board) “Owned” ments Other (3 years) (1 Year Filing / Mtg. For That Freeze-Outs Unless Release Ann’y Election Noted) Yes if recallable (5 BDs) Any SH 125. iRobot Adopted and 25% and 90 – nominates Corporation 3% None No No None None shareholder proposal (≥2) recalled by 120 any (3/7/16) was withdrawn date of nominee nom. notice Yes if recallable (3 BDs) Nominating and SH • Successful proxy access Adopted and 126. ITT Corporation 20% recalled 120 – Reduces 3% 20 Yes No nominates nominees count vs. cap (3 None shareholder proposal (2/19/16) (≥2) within 3 150 board cap any years) was excluded BDs of nominee date of nom. notice 20% Any SH 127. Johnson & (≥2 if Yes if Yes (fees for • Successful proxy access Adopted and 120 – nominates 20% Johnson+ 3% board 20 recallable No service nominees count vs. cap (2 shareholder proposal 150 any (2 years) (1/26/16) size (5 BDs) prohibited) years) was withdrawn <10) nominee

Yes if recallable (5 BDs) Any SH and • Successful proxy access 128. JPMorgan Chase 20% 120 – nominates 20% 3% 20 recalled by Yes No nominees count vs. cap (2 Other/Unknown & Co. (1/19/16) (≥2) 150 any (2 years) record years) nominee date and meeting date

Sidley Austin LLP Page 53 Appendix – Select Terms of Proxy Access Provisions Adopted Since January 1, 2015

Nomination Proxy Access Other Ownership Key Parameters Deadline Unavailable if Advance Requirements Restrictions (Annual Meeting) Notice Nomination Prohibition on Renom- Must State on Third- inating Intention Days Days Depends Party Proxy Access Owner- as to Prior to Prior on # of Circumstances Company Cap Loaned Comp- Creeping Control Limitations Nominees ship Group Ownership Ann’y of to Advance of Adoption (Max. Shares ensation Blanket Based on % Thres- Size Beyond Proxy Ann- Notice % of Count as Arrange- Exclusion Support and hold Limit Mtg. Date Date / ual Nominees Board) “Owned” ments Other (3 years) (1 Year Filing / Mtg. For That Freeze-Outs Unless Release Ann’y Election Noted) • Successful proxy access nominees count vs. cap (2 Adopted prior to vote 129. Kansas City Yes if years after board nom.) 20% 120 – Reduces on shareholder Southern 3% 20 recallable No No • Nominees pursuant to None (≥2) 150 board cap proposal (and (2/26/16) (5 days) agreement count vs. cap (2 proposal failed) years after board nom.) but not <1 Yes if Adopted after recallable • Successful advance notice management 130. Kate Spade & 20% and 120 – Reduces nominees count vs. cap proposal passed and Company* 3% 20 No No None (≥2) recalled 150 board cap • Nominees pursuant to competing (5/19/16) upon agreement count vs. cap shareholder proposal notice failed • Successful proxy access nominees count vs. cap (3 131. Kellogg Yes if 20% 120 – Reduces years) 25% Company 3% 20 recallable No No Other/Unknown (≥2) 150 board cap • Successful nominating (2 years) (2/19/16) (5 BDs) shareholder may not nominate (2 years) • Successful proxy access Yes if nominees count vs. cap (2 recallable 132. Kimberly-Clark years after board nom.) Adopted and 20% and 75 – Reduces Corporation 3% 20 No No • Nominees pursuant to None shareholder proposal (≥2) recalled by 100 board cap (12/14/15) agreement count vs. cap (2 was withdrawn notice years after board nom.) but deadline not <1 Yes if 20 (25 recallable 133. Kindred • Successful proxy access Adopted and 20% if mkt. and 120 – Reduces Healthcare, Inc. 3% No No nominees count vs. cap (2 None shareholder proposal (≥2) cap > recalled 150 board cap (10/29/15) years) was withdrawn $2.5B) upon notice

Sidley Austin LLP Page 54 Appendix – Select Terms of Proxy Access Provisions Adopted Since January 1, 2015

Nomination Proxy Access Other Ownership Key Parameters Deadline Unavailable if Advance Requirements Restrictions (Annual Meeting) Notice Nomination Prohibition on Renom- Must State on Third- inating Intention Days Days Depends Party Proxy Access Owner- as to Prior to Prior on # of Circumstances Company Cap Loaned Comp- Creeping Control Limitations Nominees ship Group Ownership Ann’y of to Advance of Adoption (Max. Shares ensation Blanket Based on % Thres- Size Beyond Proxy Ann- Notice % of Count as Arrange- Exclusion Support and hold Limit Mtg. Date Date / ual Nominees Board) “Owned” ments Other (3 years) (1 Year Filing / Mtg. For That Freeze-Outs Unless Release Ann’y Election Noted) Adopted after management 134. Knight • Successful proxy access 20% Yes if 120 – 25% proposal passed and Transportation, 3% 20 No No nominees count vs. cap (2 (≥2) recallable 150 (2 years) competing Inc.* (5/12/16) years) shareholder proposal failed Yes if recallable (5 BDs) Any SH Adopted after 135. Kohl’s • Successful proxy access 20% and agrees 120 – nominates 25% majority-supported Corporation 3% 20 No No nominees count vs. cap (2 (≥2) to 150 any (2 years) shareholder proposal (11/11/15) years) promptly nominee in 2015 recall upon notice Any SH Yes if • Successful proxy access Adopted and 136. Leidos Holdings, 20% 120 – nominates 25% 3% 20 recallable Yes No nominees count vs. cap (2 shareholder proposal Inc. (4/12/16) (≥2) 150 any (2 years) (5 BDs) years) was excluded nominee Any SH Adopted after 137. Level 3 nominates • Successful proxy access 20% 120 – 25% shareholder proposal Communications 3% 20 No No No such proxy nominees count vs. cap (2 (≥1) 150 (2 years) failed at 2015 annual , Inc. (11/12/15) access years) meeting nominee Yes if recallable (3 BDs) Any SH Adopted prior to vote 138. Lowe’s and • Successful proxy access 20% 120 – nominates 25% on shareholder Companies, Inc. 3% 20 recalled by No No nominees count vs. cap (2 (≥2) 150 any (2 years) proposal (and (3/18/16) time the years) nominee proposal failed) nom. notice is submitted

Sidley Austin LLP Page 55 Appendix – Select Terms of Proxy Access Provisions Adopted Since January 1, 2015

Nomination Proxy Access Other Ownership Key Parameters Deadline Unavailable if Advance Requirements Restrictions (Annual Meeting) Notice Nomination Prohibition on Renom- Must State on Third- inating Intention Days Days Depends Party Proxy Access Owner- as to Prior to Prior on # of Circumstances Company Cap Loaned Comp- Creeping Control Limitations Nominees ship Group Ownership Ann’y of to Advance of Adoption (Max. Shares ensation Blanket Based on % Thres- Size Beyond Proxy Ann- Notice % of Count as Arrange- Exclusion Support and hold Limit Mtg. Date Date / ual Nominees Board) “Owned” ments Other (3 years) (1 Year Filing / Mtg. For That Freeze-Outs Unless Release Ann’y Election Noted)

• Successful proxy access nominees count vs. cap (2 Any SH 139. The Macerich Yes if years) Adopted and 20% 60 – nominates 25% Company+ 3% 20 recallable No No • Nominees pursuant to shareholder proposal (≥2) 90 any (2 years) (4/21/16) (5 BDs) agreement count vs. cap (2 was withdrawn nominee years after board nom.) but not <1 • Successful proxy access Any SH nominees count vs. cap (2 Yes if Yes (fees for 140. Macy’s, Inc. 20% 120 – nominates years) 25% 3% 20 recallable No service Other/Unknown (2/26/16) (≥2) 150 any • Successful nominating (2 years) (3 BDs) prohibited) nominee shareholder may not nominate (2 years) Unavail- 141. Marathon Oil Any SH able if Adopted prior to vote Corporation Yes (fees for nominates • Successful nominating ≥50% of 25% on shareholder (4/9/15 and 3% 25% 20 No Yes service 90 – 120 such proxy shareholder may not directors (2 years) proposal (and amended as of prohibited) access nominate (2 years) up for proposal passed) 9/1/15) nominee election

• Successful proxy access nominees count vs. cap (3 years) 142. Marathon Yes if • Successful advance notice Adopted prior to vote Petroleum 20% recallable 120 – Reduces nominees count vs. cap (2 on shareholder 3% 20 No No None Corporation (≥2) at any 150 board cap years) proposal (and (2/24/16) time • Nominees pursuant to proposal failed) agreement count vs. cap (3 years after board nom.) but not <1

Sidley Austin LLP Page 56 Appendix – Select Terms of Proxy Access Provisions Adopted Since January 1, 2015

Nomination Proxy Access Other Ownership Key Parameters Deadline Unavailable if Advance Requirements Restrictions (Annual Meeting) Notice Nomination Prohibition on Renom- Must State on Third- inating Intention Days Days Depends Party Proxy Access Owner- as to Prior to Prior on # of Circumstances Company Cap Loaned Comp- Creeping Control Limitations Nominees ship Group Ownership Ann’y of to Advance of Adoption (Max. Shares ensation Blanket Based on % Thres- Size Beyond Proxy Ann- Notice % of Count as Arrange- Exclusion Support and hold Limit Mtg. Date Date / ual Nominees Board) “Owned” ments Other (3 years) (1 Year Filing / Mtg. For That Freeze-Outs Unless Release Ann’y Election Noted) • Successful proxy access nominees count vs. cap (2 Adopted after 143. McDonald’s Yes if years after board nom.) 20% 90 – Reduces majority-supported Corporation 3% 20 recallable No No • Nominees pursuant to None (≥2) 120 board cap shareholder proposal (10/26/15) (5 BDs) agreement count vs. cap (2 in 2015 years after board nom.) but not <1 Any SH 144. McKesson Yes if Adopted and 120 – nominates 25% Corporation* 3% 20% 20 recallable No No None shareholder proposal 150 any (2 years) (7/29/15) (3 BDs) was withdrawn nominee Any SH 145. Merck & Co., Yes if Yes (fees for • Successful proxy access 120 – nominates 25% Inc. 3% 20% 20 recallable Yes service nominees count vs. cap (3 Other/Unknown 150 any (2 years) (7/22/15) (3 BDs) prohibited) years) nominee • Successful proxy access Yes if nominees count vs. cap (2 recallable Any SH years) (3 BDs) 146. MetLife, Inc. 20% 120 – nominates • Nominees pursuant to 25% 3% 20 and recalls Yes No Other/Unknown (12/8/15) (≥2) 150 any agreement count vs. cap (2 years) within 3 nominee • Successful nominating BDs of shareholder may not notice nominate (2 years) Nominating 147. MGC Diagnostics SH 120 – Corporation 3% 20% None No No No nominates None None Other/Unknown 150 (2/2/16) any nominee 148. MGM Resorts Any SH International Yes if 20% 120 – nominates Reduces 25% (1/13/16) 3% 20 recallable No No None Other/Unknown (≥2) 150 any board cap (2 years) (3 BDs) nominee

Sidley Austin LLP Page 57 Appendix – Select Terms of Proxy Access Provisions Adopted Since January 1, 2015

Nomination Proxy Access Other Ownership Key Parameters Deadline Unavailable if Advance Requirements Restrictions (Annual Meeting) Notice Nomination Prohibition on Renom- Must State on Third- inating Intention Days Days Depends Party Proxy Access Owner- as to Prior to Prior on # of Circumstances Company Cap Loaned Comp- Creeping Control Limitations Nominees ship Group Ownership Ann’y of to Advance of Adoption (Max. Shares ensation Blanket Based on % Thres- Size Beyond Proxy Ann- Notice % of Count as Arrange- Exclusion Support and hold Limit Mtg. Date Date / ual Nominees Board) “Owned” ments Other (3 years) (1 Year Filing / Mtg. For That Freeze-Outs Unless Release Ann’y Election Noted) 149. Microsoft Any SH Corporation • Successful proxy access Adopted and 20% 120 – nominates 25% (8/7/15) 3% 20 Yes No No nominees count vs. cap (2 shareholder proposal (≥2) 150 any (2 years) years) was withdrawn nominee

150. Mondelēz Any SH Yes if • Successful proxy access International, 20% nominates 25% 3% 20 recallable No No 120 nominees count vs. cap (2 Other/Unknown Inc. (≥2) any (2 years) (3 BDs) years) (10/1/15) nominee

Unavail- 151. Monsanto Any SH Yes if able if Adopted after Company nominates revocable 120 – ≥50% of majority-supported (6/5/15 and 3% 20% 20 No No such proxy None None at any 150 directors shareholder proposal amended as of access time up for in 2015 1/11/16) nominee election

Yes if recallable Any SH 152. Monster (5 BDs) • Successful proxy access 25% nominates 25% Worldwide, Inc. 3% 20 and recalls No No 45 – 75 nominees count vs. cap (3 Other/Unknown (≥2) any (2 years) (3/16/16) within 5 years) nominee BDs of notice Yes if recallable Nominating (3 BDs) SH • Successful proxy access 153. Morgan Stanley 20% and agrees 120 – Reduces 25% 3% 20 No No nominates nominees count vs. cap (2 Other/Unknown (10/29/15) (≥2) to 150 board cap (2 years) any years) promptly nominee recall upon notice

Sidley Austin LLP Page 58 Appendix – Select Terms of Proxy Access Provisions Adopted Since January 1, 2015

Nomination Proxy Access Other Ownership Key Parameters Deadline Unavailable if Advance Requirements Restrictions (Annual Meeting) Notice Nomination Prohibition on Renom- Must State on Third- inating Intention Days Days Depends Party Proxy Access Owner- as to Prior to Prior on # of Circumstances Company Cap Loaned Comp- Creeping Control Limitations Nominees ship Group Ownership Ann’y of to Advance of Adoption (Max. Shares ensation Blanket Based on % Thres- Size Beyond Proxy Ann- Notice % of Count as Arrange- Exclusion Support and hold Limit Mtg. Date Date / ual Nominees Board) “Owned” ments Other (3 years) (1 Year Filing / Mtg. For That Freeze-Outs Unless Release Ann’y Election Noted) Yes if recallable (5 BDs) Any SH 154. The Mosaic • Successful proxy access 20% and agrees 120 – nominates 25% Company 3% 20 Yes No nominees count vs. cap (3 Other/Unknown (≥2) to 150 any (2 years) (3/3/16) years) promptly nominee recall upon notice

Adopted after Any SH majority-supported 155. Murphy Oil Yes if Yes (fees for • Successful proxy access 20% 120 – nominates 10% shareholder proposal Corporation+ 3% 20 recallable Yes service nominees count vs. cap (2 (≥2) 150 any (2 years) in 2015; adopted and (2/3/16) (5 BDs) prohibited) years) nominee shareholder proposal was withdrawn

Yes if • Successful proxy access recallable nominees count vs. cap (2 156. National Fuel and Yes (fees for 120 – Reduces years) Gas Company 3% 20% 20 recalled by No service None Other/Unknown 150 board cap • Nominees pursuant to (3/10/16) date of prohibited) agreement count vs. cap (2 nom. years after board nom.) notice

Any SH Yes if • Successful proxy access 157. NETGEAR, Inc. 20% 120 – nominates 3% 50 recallable No No nominees count vs. cap (2 None Other/Unknown (4/19/16) (≥2) 150 any (5 BDs) years) nominee

Sidley Austin LLP Page 59 Appendix – Select Terms of Proxy Access Provisions Adopted Since January 1, 2015

Nomination Proxy Access Other Ownership Key Parameters Deadline Unavailable if Advance Requirements Restrictions (Annual Meeting) Notice Nomination Prohibition on Renom- Must State on Third- inating Intention Days Days Depends Party Proxy Access Owner- as to Prior to Prior on # of Circumstances Company Cap Loaned Comp- Creeping Control Limitations Nominees ship Group Ownership Ann’y of to Advance of Adoption (Max. Shares ensation Blanket Based on % Thres- Size Beyond Proxy Ann- Notice % of Count as Arrange- Exclusion Support and hold Limit Mtg. Date Date / ual Nominees Board) “Owned” ments Other (3 years) (1 Year Filing / Mtg. For That Freeze-Outs Unless Release Ann’y Election Noted) Adopted prior to vote 158. New York Any SH on 2015 shareholder • Successful proxy access Community 20% Yes – silent 120 – nominates 25% proposal (and 5% 10 No No nominees count vs. cap (3 Bancorp, Inc. + (≥1) as to recall 150 any (2 years) proposal failed); 2016 years) (3/17/15) nominee shareholder proposal passed

159. Newell Brands Inc. (f/k/a Yes if • Successful nominating Adopted and 20% 90 – Reduces 25% Newell 3% 20 recallable No No shareholder may not shareholder proposal (≥1) 120 board cap (2 years) Rubbermaid (3 BDs) nominate (2 years) was excluded Inc.) (2/11/16)

• Successful proxy access 160. Newmont nominees count vs. cap (2 Yes if Mining 20% 120 – Reduces years after board nom.) 3% 20 recallable No No None Other/Unknown Corporation (≥2) 150 board cap • Nominees pursuant to (5 days) (2/12/16) agreement count vs. cap (2 years after board nom.)

Yes (if Any SH Adopted and 161. NiSource Inc.+ 20% recallable 120 – nominates • Nominees pursuant to 3% 20 No No None shareholder proposal (1/29/16) (≥2) and 150 any agreement count vs. cap was withdrawn recalled) nominee

Sidley Austin LLP Page 60 Appendix – Select Terms of Proxy Access Provisions Adopted Since January 1, 2015

Nomination Proxy Access Other Ownership Key Parameters Deadline Unavailable if Advance Requirements Restrictions (Annual Meeting) Notice Nomination Prohibition on Renom- Must State on Third- inating Intention Days Days Depends Party Proxy Access Owner- as to Prior to Prior on # of Circumstances Company Cap Loaned Comp- Creeping Control Limitations Nominees ship Group Ownership Ann’y of to Advance of Adoption (Max. Shares ensation Blanket Based on % Thres- Size Beyond Proxy Ann- Notice % of Count as Arrange- Exclusion Support and hold Limit Mtg. Date Date / ual Nominees Board) “Owned” ments Other (3 years) (1 Year Filing / Mtg. For That Freeze-Outs Unless Release Ann’y Election Noted) Adopted after 162. Noble Energy, Any SH shareholder proposal Yes (fees for Inc. + 120 – nominates 25% failed at 2015 annual 5% 20% 20 No Yes service None (10/20/15) 150 any (2 years) meeting; 2016 prohibited) nominee shareholder proposal also failed

Yes if 163. Northrop recallable Grumman (5 BDs) Any SH Yes (fees for • Successful proxy access Adopted and Corporation 20% and agrees 120 – nominates 3% 20 No service nominees count vs. cap (2 None shareholder proposal (12/4/15 and (≥2) to 150 any prohibited) years) was excluded amended as of promptly nominee 2/17/16) recall upon notice

164. NVR, Inc. Any SH Adopted after Yes if Yes (fees for (11/6/15 and 120 – nominates 25% shareholder proposal 3% 20% 20 recallable Yes service None amended as of 150 any (2 years) failed at 2015 annual (5 BDs) prohibited) 3/17/16) nominee meeting

Yes if recallable • Successful proxy access or 165. Occidental (5 BDs) Any SH Adopted after Yes (fees for advance notice nominees Petroleum 20% and agrees 120 – nominates 25% majority-supported 3% 20 Yes service count vs. cap (3 years) Corporation (≥2) to 150 any (2 years) shareholder proposal prohibited) • Nominees pursuant to (10/8/15) promptly nominee in 2015 agreement count vs. cap recall upon notice

Sidley Austin LLP Page 61 Appendix – Select Terms of Proxy Access Provisions Adopted Since January 1, 2015

Nomination Proxy Access Other Ownership Key Parameters Deadline Unavailable if Advance Requirements Restrictions (Annual Meeting) Notice Nomination Prohibition on Renom- Must State on Third- inating Intention Days Days Depends Party Proxy Access Owner- as to Prior to Prior on # of Circumstances Company Cap Loaned Comp- Creeping Control Limitations Nominees ship Group Ownership Ann’y of to Advance of Adoption (Max. Shares ensation Blanket Based on % Thres- Size Beyond Proxy Ann- Notice % of Count as Arrange- Exclusion Support and hold Limit Mtg. Date Date / ual Nominees Board) “Owned” ments Other (3 years) (1 Year Filing / Mtg. For That Freeze-Outs Unless Release Ann’y Election Noted) Yes if recallable (5 BDs) Any SH • Successful proxy access Adopted and 166. Omnicom Group 20% and agrees 120 – nominates 3% 20 No No nominees count vs. cap (2 None shareholder proposal Inc. (3/14/16) (≥2) to 150 any years) was excluded promptly nominee recall upon notice Yes if recallable (5 BDs) Any SH Adopted after 167. Oracle 20% and agrees 120 – nominates majority-supported Corporation 3% 20 No No None None (≥2) to 150 any shareholder proposal (6/15/16) promptly nominee in 2015 recall upon notice Yes if recallable Any SH Adopted prior to vote 168. Oshkosh • Successful proxy access 20% (5 BDs) 120 – nominates 25% on shareholder Corporation 5% 20 Yes No nominees count vs. cap (2 (≥2) and recalls 150 any (2 years) proposal (and (11/13/15) years) upon nominee proposal failed) notice • Successful proxy access Majority-approved 169. PayPal Holdings, nominees count vs. cap (2 shareholder proposal 90 – Reduces 10% Inc. 3% 20% 15 No No No years) but not <1 at prior parent 120 board cap (2 years) (7/17/15) • Nominees pursuant to company annual agreement count vs. cap meeting • Successful proxy access Yes if nominees count vs. cap (2 170. Peabody Energy years after board nom.) Adopted and + 20% revocable 90 – Reduces 10% Corporation 3% 20 No No • Nominees pursuant to shareholder proposal (≥2) at any 120 board cap (2 years) (12/10/15) agreement count vs. cap (2 was withdrawn time years after board nom.) but not <1

Sidley Austin LLP Page 62 Appendix – Select Terms of Proxy Access Provisions Adopted Since January 1, 2015

Nomination Proxy Access Other Ownership Key Parameters Deadline Unavailable if Advance Requirements Restrictions (Annual Meeting) Notice Nomination Prohibition on Renom- Must State on Third- inating Intention Days Days Depends Party Proxy Access Owner- as to Prior to Prior on # of Circumstances Company Cap Loaned Comp- Creeping Control Limitations Nominees ship Group Ownership Ann’y of to Advance of Adoption (Max. Shares ensation Blanket Based on % Thres- Size Beyond Proxy Ann- Notice % of Count as Arrange- Exclusion Support and hold Limit Mtg. Date Date / ual Nominees Board) “Owned” ments Other (3 years) (1 Year Filing / Mtg. For That Freeze-Outs Unless Release Ann’y Election Noted) Yes if recallable Any SH + (5 BDs) • Successful nominating Adopted and 171. PepsiCo, Inc. 20% 120 – nominates 3% 20 and agrees Yes No shareholder may not None shareholder proposal (1/11/16) (≥2) 150 any to recall nominate (2 years) was withdrawn nominee upon notice Yes if recallable • Successful proxy access (5 BDs) Any SH nominees count vs. cap (2 Adopted and 172. Pfizer Inc.+ 20% and agrees 120 – nominates 25% 3% 20 Yes No years) shareholder proposal (12/14/15) (≥2) to 150 any (2 years) • Nominees pursuant to was withdrawn promptly nominee agreement count vs. cap recall upon notice

Any SH 173. PG&E Yes if Adopted and 20% 120 – nominates Corporation 3% 20 recallable No No None None shareholder proposal (≥2) 150 any (2/17/16) (5 BDs) was excluded nominee

174. Philip Morris Any SH Yes if • Successful proxy access International 120 – nominates 25% 3% 20% 15 recallable Yes No nominees count vs. cap (3 Other/Unknown Inc. 150 any (2 years) (3 BDs) years) (9/16/15) nominee

175. Pioneer Natural Yes if Resources recallable Company Any SH Adopted after (5 BDs) • Successful proxy access or (11/19/15 and 20% 120 – nominates 25% shareholder proposal 3% 20 and recalls Yes No advance notice nominees amended as of (≥2) 150 any (2 years) failed at 2015 annual within 5 count vs. cap (2 years) 5/19/16) nominee meeting BDs of

notice

Sidley Austin LLP Page 63 Appendix – Select Terms of Proxy Access Provisions Adopted Since January 1, 2015

Nomination Proxy Access Other Ownership Key Parameters Deadline Unavailable if Advance Requirements Restrictions (Annual Meeting) Notice Nomination Prohibition on Renom- Must State on Third- inating Intention Days Days Depends Party Proxy Access Owner- as to Prior to Prior on # of Circumstances Company Cap Loaned Comp- Creeping Control Limitations Nominees ship Group Ownership Ann’y of to Advance of Adoption (Max. Shares ensation Blanket Based on % Thres- Size Beyond Proxy Ann- Notice % of Count as Arrange- Exclusion Support and hold Limit Mtg. Date Date / ual Nominees Board) “Owned” ments Other (3 years) (1 Year Filing / Mtg. For That Freeze-Outs Unless Release Ann’y Election Noted) • Successful proxy access nominees count vs. cap (3 years after board nom.) Yes if • Nominees pursuant to Adopted and 176. PPG Industries, 20% recallable 120 – Reduces agreement count vs. cap (3 3% 20 No No None shareholder proposal Inc. (12/10/15) (≥2) at any 150 board cap years after board nom.) but was excluded time not <1 • Successful advance notice nominees count vs. cap (2 years) Adopted after Any SH majority-supported Yes if 177. PPL Corporation+ 20% 120 – nominates shareholder proposal 3% 25 recallable No No None None (12/18/15) (≥2) 150 any in 2015; adopted and (5 BDs) nominee shareholder proposal was withdrawn

Any SH + Yes if • Successful proxy access Adopted and 178. Praxair, Inc. 20% 120 – nominates 3% 20 recallable Yes No nominees count vs. cap (2 None shareholder proposal (1/26/16) (≥2) 150 any (5 BDs) years) was withdrawn nominee

Nominating SH 179. The Priceline nominates any Adopted prior to vote Group Inc. Yes if Yes (no Yes (fees for 120 – nominee or 25% on shareholder (3/18/15 and 3% 25% None recallable timeframe service None 150 any SH (2 years) proposal (and amended as of (5 BDs) specified) prohibited) 7/23/15 and nominates proposal passed) 11/4/15) such proxy access nominee

Sidley Austin LLP Page 64 Appendix – Select Terms of Proxy Access Provisions Adopted Since January 1, 2015

Nomination Proxy Access Other Ownership Key Parameters Deadline Unavailable if Advance Requirements Restrictions (Annual Meeting) Notice Nomination Prohibition on Renom- Must State on Third- inating Intention Days Days Depends Party Proxy Access Owner- as to Prior to Prior on # of Circumstances Company Cap Loaned Comp- Creeping Control Limitations Nominees ship Group Ownership Ann’y of to Advance of Adoption (Max. Shares ensation Blanket Based on % Thres- Size Beyond Proxy Ann- Notice % of Count as Arrange- Exclusion Support and hold Limit Mtg. Date Date / ual Nominees Board) “Owned” ments Other (3 years) (1 Year Filing / Mtg. For That Freeze-Outs Unless Release Ann’y Election Noted) Shareholder proposal was on 2015 ballot 180. The Procter & Yes if Yes (fees for 20% 120 – Reduces but was not voted on Gamble 3% 20 recallable Yes service None None (≥2) 150 board cap because proponent Company (3 BDs) prohibited) (4/8/16) failed to appear at the meeting • Successful proxy access nominees count vs. cap (2 years after board nom.) Yes if 181. The Progressive • Nominees pursuant to 20% recallable Reduces 25% Corporation 3% 20 No No 120 agreement count vs. cap (2 Other/Unknown (≥1) and board cap (2 years) (8/7/15) years after board nom.) recalled • Successful nominating shareholder may not nominate (2 years) Any SH 182. Prudential Yes if 120 – nominates 25% Financial, Inc. 3% 20% 20 recallable Yes No None Other/Unknown 150 any (2 years) (3/10/15) (3 BDs) nominee 183. Public Service Nominating Enterprise Yes if SH Adopted and 120 – Group 3% 25% 20 recallable No No nominates None None shareholder proposal 150 Incorporated (3 BDs) any was excluded (12/15/15) nominee Any SH Yes if • Successful proxy access 184. Qorvo, Inc. 20% 120 – nominates 25% 3% 20 recallable No No nominees count vs. cap (2 Other/Unknown (5/13/16) (≥2) 150 any (2 years) (5 BDs) years) nominee Yes (fees for Any SH Adopted prior to vote 185. QUALCOMM • Successful nominating candidacy 120 – nominates 25% on shareholder Incorporated 3% 20% 20 No Yes shareholder may not and service 150 any (2 years) proposal (and (12/7/15) nominate (2 years) prohibited) nominee proposal failed)

Sidley Austin LLP Page 65 Appendix – Select Terms of Proxy Access Provisions Adopted Since January 1, 2015

Nomination Proxy Access Other Ownership Key Parameters Deadline Unavailable if Advance Requirements Restrictions (Annual Meeting) Notice Nomination Prohibition on Renom- Must State on Third- inating Intention Days Days Depends Party Proxy Access Owner- as to Prior to Prior on # of Circumstances Company Cap Loaned Comp- Creeping Control Limitations Nominees ship Group Ownership Ann’y of to Advance of Adoption (Max. Shares ensation Blanket Based on % Thres- Size Beyond Proxy Ann- Notice % of Count as Arrange- Exclusion Support and hold Limit Mtg. Date Date / ual Nominees Board) “Owned” ments Other (3 years) (1 Year Filing / Mtg. For That Freeze-Outs Unless Release Ann’y Election Noted) Nominating 186. Quest Yes if SH Adopted and Diagnostics 20% 120 – 25% 3% 20 recallable No No nominates None shareholder proposal Incorporated (≥2) 150 (2 years) (5 BDs) any was excluded (2/25/16) nominee

Yes if recallable • Successful proxy access (10 BDs) Any SH 187. Range Resources nominees count vs. cap (2 Adopted after 20% and agrees 120 – nominates 25% Corporation 3% 20 Yes No years) majority-supported (≥2) to 150 any (2 years) (2/29/16) • Nominees pursuant to proposal in 2015 promptly nominee agreement count vs. cap recall upon notice Yes if recallable Adopted prior to vote 188. Raytheon (5 BDs) 20% 120 – Reduces 25% on shareholder Company 3% 20 and recalls No No None (≥2) 150 board cap (2 years) proposal (and (3/23/16) within 5 proposal failed) BDs of notice 189. Regency Centers Any SH Corporation Yes (fees for • Successful proxy access nominates 25% (7/15/15 and 3% 25% 20 No No service 120 nominees count vs. cap Other/Unknown any (2 years) amended as of prohibited) (indefinitely) nominee 4/21/16)

Any SH 190. Reliance Steel & Yes if Yes (fees for • Successful proxy access Adopted and 25% 120 – nominates 25% Aluminum Co. 3% 20 recallable No service nominees count vs. cap (2 shareholder proposal (≥2) 150 any (2 years) (2/16/16) (3 BDs) prohibited) years) was excluded nominee

Sidley Austin LLP Page 66 Appendix – Select Terms of Proxy Access Provisions Adopted Since January 1, 2015

Nomination Proxy Access Other Ownership Key Parameters Deadline Unavailable if Advance Requirements Restrictions (Annual Meeting) Notice Nomination Prohibition on Renom- Must State on Third- inating Intention Days Days Depends Party Proxy Access Owner- as to Prior to Prior on # of Circumstances Company Cap Loaned Comp- Creeping Control Limitations Nominees ship Group Ownership Ann’y of to Advance of Adoption (Max. Shares ensation Blanket Based on % Thres- Size Beyond Proxy Ann- Notice % of Count as Arrange- Exclusion Support and hold Limit Mtg. Date Date / ual Nominees Board) “Owned” ments Other (3 years) (1 Year Filing / Mtg. For That Freeze-Outs Unless Release Ann’y Election Noted) Yes if recallable Any SH Yes (fees for 191. Republic (5 BDs) nominates • Successful proxy access Adopted after action as a 120 – Reduces 25% Services, Inc. 3% 25% 20 and agrees No such proxy nominees count vs. cap (2 majority-supported director 150 board cap (2 years) (5/6/16) to recall access years) proposal in 2015 prohibited) upon nominee notice Any SH Adopted prior to vote 192. Rite Aid • Successful proxy access 120 – nominates 25% on shareholder Corporation 3% 20% 20 No Yes No nominees count vs. cap (2 150 any (2 years) proposal (and (4/15/15) years) nominee proposal failed) • Successful proxy access Yes if 193. Rockwell nominees count vs. cap (2 20% revocable 120 – 10% Automation, Inc. 3% 20 No No years) Other/Unknown (≥2) at any 150 (2 years) (6/8/16) • Nominees pursuant to time agreement count vs. cap Adopted after Any SH majority-supported 194. Roper Yes if • Successful proxy access 20% 120 – nominates 25% shareholder proposal Technologies, 3% 20 recallable No No nominees count vs. cap (2 (≥2) 150 any (2 years) in 2015; adopted and Inc.+ (3/9/16) (5 BDs) years) nominee shareholder proposal was withdrawn • Successful proxy access nominees count vs. cap (2 Yes if Adopted and 195. Ryder System, 20% 120 – years after board nom.) 3% 25 recallable No No None shareholder proposal Inc. (2/22/16) (≥2) 150 • Nominees pursuant to (5 days) was withdrawn agreement count vs. cap (2 years after board nom.) 196. S&P Global Inc. Any SH Yes if • Successful proxy access Adopted and (f/k/a McGraw 20% 120 – nominates 3% 20 recallable Yes No nominees count vs. cap (2 None shareholder proposal Hill Financial, (≥2) 150 any (5 BDs) years) was excluded Inc.) (1/27/16) nominee

Sidley Austin LLP Page 67 Appendix – Select Terms of Proxy Access Provisions Adopted Since January 1, 2015

Nomination Proxy Access Other Ownership Key Parameters Deadline Unavailable if Advance Requirements Restrictions (Annual Meeting) Notice Nomination Prohibition on Renom- Must State on Third- inating Intention Days Days Depends Party Proxy Access Owner- as to Prior to Prior on # of Circumstances Company Cap Loaned Comp- Creeping Control Limitations Nominees ship Group Ownership Ann’y of to Advance of Adoption (Max. Shares ensation Blanket Based on % Thres- Size Beyond Proxy Ann- Notice % of Count as Arrange- Exclusion Support and hold Limit Mtg. Date Date / ual Nominees Board) “Owned” ments Other (3 years) (1 Year Filing / Mtg. For That Freeze-Outs Unless Release Ann’y Election Noted) • Successful proxy access nominees count vs. cap (2 Yes if years) Adopted and 197. salesforce.com, 20% 120 – Reduces 25% + 3% 20 recallable No No • Nominees pursuant to shareholder proposal Inc. (3/21/16) (≥2) 150 board cap (2 years) (5 BDs) agreement count vs. cap (2 was withdrawn years after board nom.) but not <1 Adopted after management • Successful proxy access proposal passed in nominees count vs. cap (3 2015 and competing 198. SBA Any SH years) shareholder proposal Communications 20% nominates 25% + 5% 10 No No No 120 • While board is classified, failed; in 2016, Corporation (≥1) any (3 years) number of proxy access management (7/28/15) nominee nominees may not >50% of proposal failed and directors to be elected competing shareholder proposal passed Yes if recallable 199. Science (3 BDs) Any SH Applications • Successful proxy access Adopted and 25% and 120 – nominates 25% International 3% 20 Yes No nominees count vs. cap (2 shareholder proposal (≥2) recalled by 150 any (2 years) Corporation years) was excluded date of nominee (2/2/16) nom. notice Yes if recallable Any SH (5 BDs) • Successful proxy access 200. Sempra Energy 20% 120 – nominates 25% 3% 20 and recalls No No nominees count vs. cap (2 Other/Unknown (12/15/15) (≥2) 150 any (2 years) within 5 years) nominee BDs of notice

Sidley Austin LLP Page 68 Appendix – Select Terms of Proxy Access Provisions Adopted Since January 1, 2015

Nomination Proxy Access Other Ownership Key Parameters Deadline Unavailable if Advance Requirements Restrictions (Annual Meeting) Notice Nomination Prohibition on Renom- Must State on Third- inating Intention Days Days Depends Party Proxy Access Owner- as to Prior to Prior on # of Circumstances Company Cap Loaned Comp- Creeping Control Limitations Nominees ship Group Ownership Ann’y of to Advance of Adoption (Max. Shares ensation Blanket Based on % Thres- Size Beyond Proxy Ann- Notice % of Count as Arrange- Exclusion Support and hold Limit Mtg. Date Date / ual Nominees Board) “Owned” ments Other (3 years) (1 Year Filing / Mtg. For That Freeze-Outs Unless Release Ann’y Election Noted) Yes if recallable • Successful proxy access (5 BDs) Any SH nominees count vs. cap (2 Adopted and 201. SL Green Realty 20% and agrees 120 – nominates 25% 3% 20 Yes No years) shareholder proposal Corp.+ (3/23/16) (≥2) to 150 any (2 years) • Nominees pursuant to was withdrawn promptly nominee agreement count vs. cap recall upon notice Any SH nominates • Successful proxy access Adopted after 202. SLM 25% 90 – Reduces 25% 3% 20 No No No such proxy nominees count vs. cap (2 majority-supported Corporation* (≥1) 120 board cap (2 years) (6/25/15) access years) shareholder proposal nominee Yes if 20% (≥1 recallable if class- (5 BDs) Any SH Adopted prior to vote 203. Sonoco Products • Successful proxy access ified or and 120 – nominates 25% on shareholder Company 3% 20 No No nominees count vs. cap (2 2 if not recalled by 150 any (2 years) proposal (and (2/10/16) years) class- date of nominee proposal failed) ified) nom. notice

Sidley Austin LLP Page 69 Appendix – Select Terms of Proxy Access Provisions Adopted Since January 1, 2015

Nomination Proxy Access Other Ownership Key Parameters Deadline Unavailable if Advance Requirements Restrictions (Annual Meeting) Notice Nomination Prohibition on Renom- Must State on Third- inating Intention Days Days Depends Party Proxy Access Owner- as to Prior to Prior on # of Circumstances Company Cap Loaned Comp- Creeping Control Limitations Nominees ship Group Ownership Ann’y of to Advance of Adoption (Max. Shares ensation Blanket Based on % Thres- Size Beyond Proxy Ann- Notice % of Count as Arrange- Exclusion Support and hold Limit Mtg. Date Date / ual Nominees Board) “Owned” ments Other (3 years) (1 Year Filing / Mtg. For That Freeze-Outs Unless Release Ann’y Election Noted)

Any SH nominates any Yes if nominee • Successful proxy access recallable so that the nominees count vs. cap (2 204. The Southern (5 BDs) Adopted and 20% 120 – # of years) 20% Company*+ 3% 20 and recalls No No shareholder proposal (≥2) 150 nominees • Directors in office or (2 years) (5/25/16) within 5 was withdrawn would nominees pursuant to BDs of exceed the agreement count vs. cap notice # of dirs. up for election

Yes if recallable • Successful proxy access (5 BDs) Any SH Adopted after nominees count vs. cap (3 205. Southwestern 20% and agrees 120 – nominates 25% majority-supported 3% 20 Yes No years) Energy Company (≥2) to 150 any (2 years) shareholder proposal • Nominees pursuant to (11/9/15) promptly nominee in 2015 agreement count vs. cap recall upon notice

Yes if recallable Any SH (3 BDs) Yes (fees for nominates • Successful proxy access 206. Spectra Energy and agrees 90 – Reduces 25% 3% 20% 20 No service such proxy nominees count vs. cap (3 Other/Unknown Corp. (11/4/15) to 120 board cap (2 years) prohibited) access years) promptly nominee recall upon notice

Sidley Austin LLP Page 70 Appendix – Select Terms of Proxy Access Provisions Adopted Since January 1, 2015

Nomination Proxy Access Other Ownership Key Parameters Deadline Unavailable if Advance Requirements Restrictions (Annual Meeting) Notice Nomination Prohibition on Renom- Must State on Third- inating Intention Days Days Depends Party Proxy Access Owner- as to Prior to Prior on # of Circumstances Company Cap Loaned Comp- Creeping Control Limitations Nominees ship Group Ownership Ann’y of to Advance of Adoption (Max. Shares ensation Blanket Based on % Thres- Size Beyond Proxy Ann- Notice % of Count as Arrange- Exclusion Support and hold Limit Mtg. Date Date / ual Nominees Board) “Owned” ments Other (3 years) (1 Year Filing / Mtg. For That Freeze-Outs Unless Release Ann’y Election Noted) Yes if 20% if recallable board 20 (25 (5 BDs) Yes (no • Successful proxy access Adopted and 207. Splunk Inc. size if ann. and 120 – Reduces 3% timeframe No nominees count vs. cap (3 None shareholder proposal (3/10/16) ≥10 or revs. recalled 150 board cap specified) years) was withdrawn 25% if >$4B) within 5 ≤9 (≥1) BDs of notice Yes if recallable (5 BDs) Any SH Adopted and 208. Staples, Inc. 20% and agrees 90 – nominates 15% 3% 25 No No None shareholder proposal (12/1/15) (≥2) to 120 any (2 years) was withdrawn promptly nominee recall upon notice Nominating SH nominates any 209. State Street Yes if 120 – nominee or Reduces 25% Corporation 3% 20% 20 recallable No No None Other/Unknown 150 any SH board cap (2 years) (10/15/15) (3 BDs) nominates such proxy access nominee • Successful proxy access Any SH Adopted prior to vote Yes if nominees count vs. cap (2 210. Stericycle, Inc. 20% 120 – nominates 25% on shareholder 3% 20 recallable No No years) (2/10/16) (≥2) 150 any (2 years) proposal (and (5 BDs) • Nominees pursuant to nominee proposal failed) agreement count vs. cap

Sidley Austin LLP Page 71 Appendix – Select Terms of Proxy Access Provisions Adopted Since January 1, 2015

Nomination Proxy Access Other Ownership Key Parameters Deadline Unavailable if Advance Requirements Restrictions (Annual Meeting) Notice Nomination Prohibition on Renom- Must State on Third- inating Intention Days Days Depends Party Proxy Access Owner- as to Prior to Prior on # of Circumstances Company Cap Loaned Comp- Creeping Control Limitations Nominees ship Group Ownership Ann’y of to Advance of Adoption (Max. Shares ensation Blanket Based on % Thres- Size Beyond Proxy Ann- Notice % of Count as Arrange- Exclusion Support and hold Limit Mtg. Date Date / ual Nominees Board) “Owned” ments Other (3 years) (1 Year Filing / Mtg. For That Freeze-Outs Unless Release Ann’y Election Noted)

Yes if recallable Any SH 211. T. Rowe Price (3 BDs) Yes (fees for • Successful proxy access 20% 120 – nominates 25% Group, Inc. 3% 20 and No service nominees count vs. cap (2 Other/Unknown (≥2) 150 any (2 years) (12/10/15) recalled by prohibited) years) nominee record date

Any SH 212. Target Yes if Yes (fees for • Successful proxy access Adopted and 20% 120 – nominates 25% Corporation 3% 20 recallable No service nominees count vs. cap (2 shareholder proposal (≥2) 150 any (2 years) (11/11/15) (3 BDs) prohibited) years) was excluded nominee

Any SH Adopted after 213. TCF Financial Yes (fees for • Successful proxy access 120 – nominates majority-supported Corporation 3% 25% 20 No Yes service nominees count vs. cap (2 None 150 any shareholder proposal (10/19/15) prohibited) years) nominee in 2015

Any SH Yes if • Successful proxy access Adopted and 214. Time Warner 20% 150 – nominates 25% 3% 20 recallable No No nominees count vs. cap (2 shareholder proposal Inc. (1/28/16) (≥2) 180 any (2 years) (5 BDs) years) was excluded nominee

Yes if Any SH 215. The Timken recalled by • Successful proxy access 20% 120 – nominates Company* 3% 20 date of No No nominees count vs. cap (2 None Other/Unknown (≥2) 150 any (5/10/16) nom. years) nominee notice

Sidley Austin LLP Page 72 Appendix – Select Terms of Proxy Access Provisions Adopted Since January 1, 2015

Nomination Proxy Access Other Ownership Key Parameters Deadline Unavailable if Advance Requirements Restrictions (Annual Meeting) Notice Nomination Prohibition on Renom- Must State on Third- inating Intention Days Days Depends Party Proxy Access Owner- as to Prior to Prior on # of Circumstances Company Cap Loaned Comp- Creeping Control Limitations Nominees ship Group Ownership Ann’y of to Advance of Adoption (Max. Shares ensation Blanket Based on % Thres- Size Beyond Proxy Ann- Notice % of Count as Arrange- Exclusion Support and hold Limit Mtg. Date Date / ual Nominees Board) “Owned” ments Other (3 years) (1 Year Filing / Mtg. For That Freeze-Outs Unless Release Ann’y Election Noted)

Yes if recallable • Successful proxy access Any SH (5 BDs) nominees count vs. cap (2 216. UDR, Inc. 120 – nominates 10% 3% 20% 20 and recalls No No years) Other/Unknown (5/12/16) 150 any (2 years) within 5 • Nominees pursuant to nominee BDs of agreement count vs. cap notice

Yes if recallable • Successful proxy access Any SH 217. Union Pacific (5 BDs) nominees count vs. cap (2 Adopted and 20% 120 – nominates 25% Corporation+ 3% 20 and recalls No No years) shareholder proposal (≥2) 150 any (2 years) (11/19/15) within 5 • Nominees pursuant to was withdrawn nominee BDs of agreement count vs. cap notice

• Successful proxy access 218. United Any SH Yes if nominees count vs. cap (2 Adopted and Continental 20% 120 – nominates 25% 3% 20 recallable No No years) shareholder proposal Holdings, Inc. (≥2) 150 any (2 years) (5 BDs) • Nominees pursuant to was excluded (2/18/16) nominee agreement count vs. cap

Yes if Reduces • Successful proxy access recallable board cap nominees count vs. cap (3 (3 BDs) Any SH and years after board nom.) 219. United Natural and Yes (fees for nominates unavail- • Nominees pursuant to Adopted and 120 – 25% Foods, Inc. 3% 20% 20 recalled by Yes service such proxy able if agreement count vs. cap (3 shareholder proposal 150 (2 years) (10/23/15) time the prohibited) access ≥50% of years after board nom.) was withdrawn nom. nominee directors • Successful nominating notice is up for shareholder may not submitted election nominate (2 years)

Sidley Austin LLP Page 73 Appendix – Select Terms of Proxy Access Provisions Adopted Since January 1, 2015

Nomination Proxy Access Other Ownership Key Parameters Deadline Unavailable if Advance Requirements Restrictions (Annual Meeting) Notice Nomination Prohibition on Renom- Must State on Third- inating Intention Days Days Depends Party Proxy Access Owner- as to Prior to Prior on # of Circumstances Company Cap Loaned Comp- Creeping Control Limitations Nominees ship Group Ownership Ann’y of to Advance of Adoption (Max. Shares ensation Blanket Based on % Thres- Size Beyond Proxy Ann- Notice % of Count as Arrange- Exclusion Support and hold Limit Mtg. Date Date / ual Nominees Board) “Owned” ments Other (3 years) (1 Year Filing / Mtg. For That Freeze-Outs Unless Release Ann’y Election Noted) • Successful proxy access nominees count vs. cap (2 220. United Yes if years after board nom.) Technologies 20% revocable 120 – Reduces 3% 20 No No • Nominees pursuant to None Other/Unknown Corporation (≥1) at any 150 board cap agreement count vs. cap (2 (9/9/15) time years after board nom.) but not <1 Yes if recallable 221. United (3 BDs) Any SH • Successful proxy access 20% Adopted and Therapeutics and 120 – nominates nominees count vs. cap (if 25% 3% (25% if 20 No No shareholder proposal Corporation recalled by 150 any mid-term and not up for (2 years) <10) was withdrawn (4/29/15) date of nominee election) nom. notice Nominating SH Yes if nominates recallable 222. UnitedHealth any (3 BDs) Yes (fees for • Successful proxy access Adopted and Group 120 – nominee or Reduces 25% 3% 20% 20 and No service nominees count vs. cap (3 shareholder proposal Incorporated 150 any SH board cap (2 years) recalled by prohibited) years) was excluded (2/9/16) nominates record such proxy date access nominee Yes if recallable • Successful proxy access (5 BDs) Any SH nominees count vs. cap (2 Adopted and 223. Unum Group+ 20% and 120 – nominates years) 25% 3% 20 Yes No shareholder proposal (2/24/16) (≥2) recalled by 150 any • Successful nominating (2 years) was withdrawn date of nominee shareholder may not nom. nominate (2 years) notice

Sidley Austin LLP Page 74 Appendix – Select Terms of Proxy Access Provisions Adopted Since January 1, 2015

Nomination Proxy Access Other Ownership Key Parameters Deadline Unavailable if Advance Requirements Restrictions (Annual Meeting) Notice Nomination Prohibition on Renom- Must State on Third- inating Intention Days Days Depends Party Proxy Access Owner- as to Prior to Prior on # of Circumstances Company Cap Loaned Comp- Creeping Control Limitations Nominees ship Group Ownership Ann’y of to Advance of Adoption (Max. Shares ensation Blanket Based on % Thres- Size Beyond Proxy Ann- Notice % of Count as Arrange- Exclusion Support and hold Limit Mtg. Date Date / ual Nominees Board) “Owned” ments Other (3 years) (1 Year Filing / Mtg. For That Freeze-Outs Unless Release Ann’y Election Noted) Any SH Yes if Adopted and 224. U.S. Bancorp+ 20% 120 – nominates 3% 20 recallable No No None None shareholder proposal (1/19/16) (≥2) 150 any (5 BDs) was withdrawn nominee Yes if recallable (3 BDs) Any SH Adopted after • Successful proxy access 225. VCA Inc. 20% and 120 – nominates 25% shareholder proposal 5% 20 Yes No nominees count vs. cap (3 (10/29/15) (≥1) recalled by 150 any (2 years) failed at 2015 annual years) date of nominee meeting nom. notice

226. VEREIT, Inc. Any SH Yes if Yes (fees for • Successful proxy access Adopted and (8/5/15 with nominates 25% 3% 25% 20 recallable No service 120 nominees count vs. cap shareholder proposal 1/1/16 effective any (2 years) (5 BDs) prohibited) (indefinitely) was withdrawn date) nominee

Yes if • Successful proxy access recallable nominees count vs. cap (2 227. Vertex (5 BDs) Any SH Adopted after years) Pharmaceuticals 20% and agrees nominates 10% majority-supported + 3% 20 No No 90 • Nominees and directors in Incorporated (≥2) to any (2 years) shareholder proposal office pursuant to (4/26/16) promptly nominee in 2015 agreement count vs. cap (2 recall upon years after board nom.) notice Yes if recallable • Successful proxy access Any SH (3 BDs) nominees count vs. cap (2 228. Visa Inc. 120 – nominates 25% 3% 20% 20 and recalls Yes No years) Other/Unknown (10/30/15) 150 any (2 years) within 3 • Nominees pursuant to nominee BDs of agreement count vs. cap notice

Sidley Austin LLP Page 75 Appendix – Select Terms of Proxy Access Provisions Adopted Since January 1, 2015

Nomination Proxy Access Other Ownership Key Parameters Deadline Unavailable if Advance Requirements Restrictions (Annual Meeting) Notice Nomination Prohibition on Renom- Must State on Third- inating Intention Days Days Depends Party Proxy Access Owner- as to Prior to Prior on # of Circumstances Company Cap Loaned Comp- Creeping Control Limitations Nominees ship Group Ownership Ann’y of to Advance of Adoption (Max. Shares ensation Blanket Based on % Thres- Size Beyond Proxy Ann- Notice % of Count as Arrange- Exclusion Support and hold Limit Mtg. Date Date / ual Nominees Board) “Owned” ments Other (3 years) (1 Year Filing / Mtg. For That Freeze-Outs Unless Release Ann’y Election Noted) Any SH nominates such proxy access Yes if nominee; Adopted after recallable nominating shareholder proposal • Successful proxy access 229. Visteon 20% (5 BDs) SH that passed in 2015 and 120 – nominees count vs. cap 15% Corporation+ 3% (25% if 20 and recalls No No nominates competing proposal 150 (indefinitely) (2 years) (6/10/16) <10) within 5 proxy failed; adopted and

BDs of access shareholder proposal notice nominee was withdrawn may not also use advance notice Any SH Adopted after 230. Walgreens Boots Yes if 120 – nominates 25% shareholder proposal Alliance, Inc. 3% 20% 20 recallable Yes No None 150 any (2 years) failed at 2015 annual (10/14/15) (5 BDs) nominee meeting

Any SH 231. Wells Fargo & Yes if • Successful proxy access Adopted and 20% 120 – nominates Company+ 3% 20 recallable No No nominees count vs. cap (2 None shareholder proposal (≥2) 150 any (12/17/15) (5 BDs) years after board nom.) was withdrawn nominee Yes if • Successful proxy access recallable Any SH nominees count vs. cap (2 232. The Wendy’s 20% (5 BDs) Adopted and 120 – nominates years) Company* 3% (25% if 25 and recalls No No None shareholder proposal 150 any • Nominees pursuant to (5/26/16) <10) by was excluded nominee agreement count vs. cap (2 meeting years after board nom.) date

Sidley Austin LLP Page 76 Appendix – Select Terms of Proxy Access Provisions Adopted Since January 1, 2015

Nomination Proxy Access Other Ownership Key Parameters Deadline Unavailable if Advance Requirements Restrictions (Annual Meeting) Notice Nomination Prohibition on Renom- Must State on Third- inating Intention Days Days Depends Party Proxy Access Owner- as to Prior to Prior on # of Circumstances Company Cap Loaned Comp- Creeping Control Limitations Nominees ship Group Ownership Ann’y of to Advance of Adoption (Max. Shares ensation Blanket Based on % Thres- Size Beyond Proxy Ann- Notice % of Count as Arrange- Exclusion Support and hold Limit Mtg. Date Date / ual Nominees Board) “Owned” ments Other (3 years) (1 Year Filing / Mtg. For That Freeze-Outs Unless Release Ann’y Election Noted) Yes if Adopted after recallable 10 (25 management 233. Westmoreland (5 BDs) 25% if mkt. 90 – 25% proposal passed in Coal Company* 3% and recalls No No None (≥2) cap 120 (2 years) 2016; shareholder (5/18/16) within 5 >$1B) proposal failed in BDs of 2015 notice Yes if 234. Whiting recallable • Successful proxy access Adopted and Petroleum (5 BDs) 120 – Reduces 25% 3% 25% 25 Yes No nominees count vs. cap (2 shareholder proposal Corporation and recalls 150 board cap (2 years) years) was withdrawn (2/18/16) upon notice Yes if Reduces • Successful proxy access recallable board cap nominees count vs. cap (3 (3 BDs) Any SH and years after board nom.) Adopted prior to vote 235. Whole Foods and Yes (fees for nominates unavail- • Nominees pursuant to 20% 120 – 25% on shareholder Market, Inc. 3% 20 recalled by Yes service such proxy able if agreement count vs. cap (3 (≥1) 150 (2 years) proposal (and (6/26/15) time the prohibited) access ≥50% of years after board nom.) proposal failed) nom. nominee directors • Successful nominating notice is up for shareholder may not submitted election nominate (2 years) Unavail- Any SH able if 236. Windstream Yes (fees for nominates • Successful proxy access 20% Yes if 120 – ≥30% of Holdings, Inc. 3% 20 No service such proxy nominees count vs. cap (2 None Other/Unknown (≥2) recallable 150 directors (11/19/15) prohibited) access years) up for nominee election Any SH + Yes if • Successful proxy access Adopted and 237. Xcel Energy 20% 120 – nominates 3% 20 recallable No No nominees count vs. cap (2 None shareholder proposal (2/17/16) (≥2) 150 any (5 BDs) years) was withdrawn nominee

Sidley Austin LLP Page 77 Appendix – Select Terms of Proxy Access Provisions Adopted Since January 1, 2015

Nomination Proxy Access Other Ownership Key Parameters Deadline Unavailable if Advance Requirements Restrictions (Annual Meeting) Notice Nomination Prohibition on Renom- Must State on Third- inating Intention Days Days Depends Party Proxy Access Owner- as to Prior to Prior on # of Circumstances Company Cap Loaned Comp- Creeping Control Limitations Nominees ship Group Ownership Ann’y of to Advance of Adoption (Max. Shares ensation Blanket Based on % Thres- Size Beyond Proxy Ann- Notice % of Count as Arrange- Exclusion Support and hold Limit Mtg. Date Date / ual Nominees Board) “Owned” ments Other (3 years) (1 Year Filing / Mtg. For That Freeze-Outs Unless Release Ann’y Election Noted) Any SH Yes if • Successful proxy access Adopted and 238. Xylem Inc. 20% 120 – nominates 3% 20 recallable No No nominees count vs. cap (2 None shareholder proposal (2/25/16) (≥2) 150 any (5 BDs) years) was excluded nominee Yes if recallable (5 BDs) Any SH Adopted and 239. Yahoo! Inc. 20% and agrees 120 – nominates 25% 3% 20 No No None shareholder proposal (3/25/16) (≥2) to 150 any (2 years) was withdrawn promptly nominee recall upon notice Yes if recallable Unavail- Any SH (3 BDs) able if Adopted and 240. YUM! Brands Yes (fees for nominates and 120 – ≥50% of 25% shareholder proposal Inc. 3% 20% 20 Yes service such proxy None recalled by 150 directors (2 years) was withdrawn or (9/18/15) prohibited) access date of up for excluded nominee nom. election notice • Successful proxy access nominees count vs. cap (2 Yes if years after board nom.) Adopted and 241. Zoetis Inc.+ 20% 90 – Reduces 3% 20 recallable No No • Nominees pursuant to None shareholder proposal (2/19/16) (≥2) 120 board cap (5 BDs) agreement count vs. cap (2 was withdrawn years after board nom.) but not <1 Note: Data in this Appendix is derived from publicly-available information as of June 24, 2016. Inclusion of a company in this Appendix is not meant to suggest that Sidley Austin LLP advised such company regarding adopting proxy access.

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