SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Proxy Statement Pursuant to Section 14(a) of the Securities
Exchange Act of 1934 (Amendment No. )
Filed by the Registrant [ ]
Filed by a Party other than the Registrant [X]
Check the appropriate box:
[X] Revised Preliminary Proxy Statement
[ ] Confidential, for Use of the Commission Only (as permitted by
[ ] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to Section 240.14a-12
(Name of Registrant as Specified In Its Charter):
The Walt Disney Company
(Name of Person(s) Filing Proxy Statement, if other than the Registrant):
Payment of Filing Fee (Check the appropriate box):
[X] No fee required.
[ ] Fee computed on table below per Exchange Act
Rules 14a-6(i)(1) and 0-11.
1) Title of each class of securities to which transaction applies:
2) Aggregate number of securities to which transaction applies:
Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 11 (set forth the amount on which the
filing fee is calculated and state how it was determined):
4) Proposed maximum aggregate value of transaction:
5) Total fee paid:
<R>SECOND</R> REVISED PRELIMINARY PROXY STATEMENT
464 S. Lucas Avenue, #201
Los Angeles, CA 90017
Tel: (213) 481-8530
Fax: (213) 481-0352
First released to shareholders:
January [__________], 2011
RE: ANNUAL SHAREHOLDERS MEETING OF THE WALT DISNEY COMPANY (NYSE: DIS)
Meeting Date and Time: Wednesday, March 23rd, 2011, 10:00 a.m.
Location: [___________, Salt Lake City, UT]
STOCKHOLDER PROPOSALS WILL BE PRESENTED TO RECOMMEND:
the Board of Directors seek shareholder approval of severance
agreements with senior executives that contain a tax gross-up provision.
the Company only use one test to assess performance in determining
eligibility for awards of stock in the Long Term Incentive Plan for
To Fellow Walt Disney Company Shareholders:
write to seek your support for two shareholder proposals that will be
presented at the Annual Meeting of our Company. Both resolutions
recommend reforms to improve our Company's governance practices,
particularly as they relate to aspects of executive compensation. We
also urge our fellow shareholders to vote to give themselves an annual
advisory vote on our Company's executive compensation policies
<R> and to vote against the ratification of our Company's
existing executive compensation.</R>
believe that these measures will improve our Company by better linking
executive compensation to the Company's performance, and therefore
aligning the interests of top executives with ours as shareholders.
Unfortunately, some of our Company's current executive compensation
practices violate this principle, and have come under criticism from
reputable authorities such as RiskMetrics Group, as will be described
in greater detail below. The proposed resolutions will help to fix
ACCORDINGLY, WE URGE SHAREHOLDERS TO VOTE FOR OUR PROPOSALS RECOMMENDING THE BOARD DO THE FOLLOWING:
1. Seek shareholder approval of severance agreements with senior executives that contain a tax gross-up provision.
Adopt a policy of only using one test to assess performance in
determining eligibility for awards of stock in the Long Term Incentive
Plan for senior executives.
Below is the full text of both of our proposals, along with supporting statements for each proposal.
RESOLUTION ON SHAREHOLDER APPROVAL OF SEVERANCE AGREEMENTS:
that the shareholders of The Walt Disney Company (the "Company") urge
the Board of Directors to seek shareholder approval of severance
agreements with senior executives that contain a tax gross-up provision
for excise taxes on "excess parachute payments" (as defined by Internal
Revenue Code sections 280G and 4999 when the severance benefits equal
or exceed three times the executive's average W-2 compensation over the
preceding five years).
policy shall apply to existing severance agreements only if they can be
legally modified by the Company, and will otherwise apply to all new
severance agreements and renewals of existing agreements. This policy
shall require that after the material terms of a severance agreement
containing a tax gross-up are agreed upon, the Company shall submit the
agreement for approval by shareholders in a separate resolution at the
subsequent annual meeting of shareholders.
We believe our Company should adopt
a policy of either limiting the use of senior executive severance
agreements that contain tax gross-ups or else submit these agreements
for shareholder approval. We are concerned that severance agreements -
commonly known as golden parachutes - may reward a senior executive's
underperformance leading up to his or her termination, and that our
Company should not provide tax gross-ups to executives.
golden parachutes can have negative tax implications. Internal Revenue
Code section 280G limits the tax deductibility of golden parachutes
following a change in control if the severance payments equal or exceed
three times the executive's average W-2 compensation over the preceding
five years. In addition, under Internal Revenue Code section 4999,
golden parachutes that exceed this level are subject to an "excess
parachute payment" excise tax.
our Company's CEO Robert Iger had been terminated at the end of fiscal
2009 by the Company pursuant to its termination rights, or had Mr. Iger
resigned with good reason, he would have received a total of $48.6
million. This amount would have consisted of a cash payment of $18.6
million, stock options valued at $3.3 million, and restricted stock
valued at $26.7 million. Although the Company estimated that
this amount would not have resulted in a tax gross-up, the Company has
agreed to pay Mr. Iger a tax gross-up if the amount received exceeds
the maximum amount that can be paid without incurring an excise tax by
at least 10 percent.
payment of tax gross-ups for golden parachute excise taxes can be very
costly. Michael Kesner of Deloitte Consulting has estimated that
gross-up payments for executives' golden parachute excise taxes can
reach 8 percent of the total cost of a merger. Moreover, we believe
that it is inappropriate for our Company to reimburse executives for
their tax liabilities.
a letter dated Dec. 29, 2010, Mr. Alan Braverman, the Company's General
Counsel and Secretary, states that "the Compensation Committee has
adopted a policy that it will not, without shareholder approval,
include reimbursement for excise taxes payable by an executive upon
termination following a change in control in any future agreements with
executive officers or in any material amendments or extensions of
agreements." Mr. Braverman asserts that this action "effectively
implements" our proposal regarding severance agreements.
disagree. While we applaud the Compensation Committee's decision, it
does little to implement the proposal because it only covers
terminations following a change in control of the Company, which we
believe is highly improbable in the foreseeable future. The Committee's
decision does not cover the far more likely scenarios in which
executives may be terminated for other reasons.</R>
We urge all shareholders to vote FOR this proposal.
information about our Company's executive compensation policies is
contained in the Company's proxy statement at p. __and incorporated
herein by reference.
RESOLUTION TO DISALLOW RE-TESTING OF PERFORMANCE FOR DETERMINING ELIGIBILITY OF SENIOR EXECUTIVES FOR STOCK AWARDS:
that shareholders recommend that the Company's Compensation Committee
adopt a policy to only use one test to assess performance in
determining eligibility for awards of stock in the Long Term Incentive
Plan for senior executives, rather than allowing re-tests that increase
the likelihood of executives receiving the awards.
fiscal years 2008 and 2009, Disney's Compensation Committee allowed
senior executives re-tests to determine whether they received
performance-based "restricted stock units" under the company's Long
Term Incentive Plan. Such a practice delinks executive compensation
from company performance because it allows senior executives multiple
opportunities under different criteria to receive awards and
de-emphasizes company performance as a factor in receiving them.
Compensation Committee modified the plan prior to the 2009 annual
meeting to give top executives three tests in order to receive stock
units granted in fiscal year 2008. RiskMetrics Group (RMG), noted that
"if performance units do not vest under the first criteria, the second
criteria would apply. If the performance units do not vest under the
second criteria, the third criteria would apply." A May 11, 2009 MarketWatch
article notes that "re-testing like this means executives are more
likely to eventually get their shares, making performance a less
important part of the outcome."
This arrangement was not approved by shareholders.
criticized the re-testing practice, noting in February 2009 that "the
company's disclosure on the various performance tests is convoluted and
not transparent to shareholders... RMG believes that companies should
not retest their performance conditions and if they fail to meet the
performance requirements, the awards should be forfeited."
2010 proxy statement notes that only one re-test was allowed for stock
units granted in calendar year 2010. Crucially, however, there is
currently no guarantee that Disney will not introduce more re-testing
opportunities in future years.
re-testing practice shines an unfavorable spotlight on director Fred
Langhammer who became the Compensation Committee Chairman before the
2008 annual meeting. Mr. Langhammer was a director of AIG from January
2006 until his November 2008 resignation, and sat on AIG's
"Compensation and Management Resources Committee" and "Finance
Committee." During this period, AIG endured criticism for showering
large bonuses and lavish junkets on top executives as the company
should better tie compensation to performance by implementing a policy
disallowing re-tests for assessing performance to determine eligibility
We urge all shareholders to vote FOR this proposal.
ANNUAL ADVISORY VOTE ON EXECUTIVE COMPENSATION:
we urge our fellow shareholders to ensure that they have the greatest
possible say in the compensation paid to top executives of our Company.
year, Congress passed the Wall Street Reform and Consumer Protection
Act which gives shareholders a voice in the executive compensation
policies of the companies they are invested in. For this reason, there
will be two votes taken at our Company's Annual Meeting:
1.An advisory shareholder vote on our Company's executive compensation.
vote to determine the frequency of such votes in the future. Under the
Act, companies must have such advisory votes either: a) annually; b)
every 2 years, or; c) every 3 years.
believe that it is in the best interests of our Company's shareholders
to have an ANNUAL vote, and we urge our fellow shareholders to vote for
this option. The
Company's Board of Directors also plans to recommend an annual advisory
vote, according to a December 29, 2010 letter from Mr. Alan Braverman,
the Company's General Counsel and Secretary.
further note that shares representing a majority of outside
shareholders voted for a resolution at the last Annual Meeting that
proposed an annual advisory vote on executive compensation.
should have such annual input because our Company's recent executive
compensation practices have been criticized by reputable governance
example, take Mr. Iger's current employment agreement. Our Company's
Compensation Committee voted in January 2008 to approve an enormously
lucrative, new agreement (including a grant of 3 million Disney stock
options, worth more than $25 million at the time of award), even though
the existing agreement did not expire until September 31, 2010. A May
11, 2009 Marketwatch article cites executive compensation
expert Graef Crystal, a consultant to our Company's Compensation
Committee from 1984 - 1996, who notes that "since the contract had some
time to run, and since total return performance at that point was poor,
why renew something then when you could have waited for a better
time... For merely average performance, as Disney defines it, Mr. Iger
stands to earn $21 million under his new employment agreement."
RiskMetrics Group (RMG), in its Jan. 25, 2009 report on our Company,
notes that "RMG finds several aspects of Mr. Iger's contract and
compensation terms to be concerning. The increases in his target bonus
and long-term incentive levels are high and the justification is
lacking. The retesting of performance conditions would eventually
result in vesting of performance based awards. A renewal of an
employment agreement should not result in mega stock options grant, if
the executive has been receiving annual long-term equity awards. The
high level of security benefits with continued limited disclosure. The
continuation of death benefits, even though they do not align with the
company's pay for performance philosophy. Mr. Iger's multiple pay
increases do not seem to align with the company's mediocre
performance... we remain concerned about the committee's adherence to
the company's pay for performance philosophy, evidenced by the
concerning aspects of Iger's pay components, retesting of performance
awards and the use of gross-up provisions, as noted above. RMG strongly
urges the committee to reconsider the use of excise tax gross-ups and
retesting provisions, in particular, and to provide shareholders in the
future with assurance that such provisions will not be included in any
new or amended contracts." RMG continued its criticism in its Jan. 11th,
2010 report, noting that "the company can improve on certain aspects of
the compensation disclosure - a sizable bonus opportunity for Mr. Iger
related to potential excessive risk taking, high security benefit for
Mr. Iger and the timing of the bonus plan modification."
recently as Sept. 2, 2010, The Corporate Library - a well respected
authority on corporate governance - issued a Governance Profile of our
Company. It states that, "after a review of Walt Disney's recent annual
filing of its proxy statement for fiscal 2009, The Corporate Library is
affirming the company's D rating. This is a reflection of high
governance risk due to continued concerns related to executive
compensation. In spite of a 25% decrease in net income from fiscal 2008
to fiscal 2009, total realized compensation (TRC) for CEO Robert A.
Iger increased by more than 12% over the same period (2008 $
21,499,727, 2009 $24,119,556). A large chunk of this is related to
value realized on the vesting of restricted stock units ($9,736,350) as
well as non equity plan compensation awards ($9,260,000). Previously,
we expressed concerns about the level of the CEO's base salary,
employment agreement, and target incentives. We continue to have these
concerns, among others. For example, the continued granting of market
priced stock options without the requirement of additional performance
measures exemplifies a compensation program that is not well aligned
with shareholder interest."
urge our fellow shareholders to vote for an ANNUAL advisory vote on
executive compensation. <R>We also urge a vote against ratifying existing
at our Company, given the criticisms outlined above.</R>
I. VOTING PROCEDURES:
USE THE ENCLOSED BLUE PROXY CARD TO VOTE FOR THE PROPOSALS. YOU SHOULD
ALSO HAVE RECEIVED A PROXY CARD FROM MANAGEMENT. IF YOU SUPPORT OUR
PROPOSALS, DO NOT SEND BACK MANAGEMENT'S CARD. ANY PROXY CARD YOU HAVE
SIGNED IS CANCELLED OUT BY SUBMITTING A LATER-DATED PROXY CARD.
corporate elections, simply submitting a new proxy card with a later
date on it revokes your prior card. A proxy vote may be revoked any
time prior to the tally at the shareholders meeting by signing and
submitting a new proxy card, by sending written notice of revocation to
the proxy holder, or by appearing at the meeting and voting in person.
intend to solicit at least a majority of the voting power of the
outstanding stock. In order to vote for this proposal, you will need to
return our proxy card unless management gives you the specific
opportunity to vote for or against this proposal on its proxy card.
The record date for eligibility to vote is __________. We
are not nominating candidates to the Board, nor will we seek any
discretionary voting authority for the meeting for any issues that do
not appear on the enclosed proxy card, meaning that we will vote all
proxy cards strictly as you direct on the proxy card (if you neglect to
check any of the boxes we will vote as indicated on the card), and if
new matters come up on which you did not have an opportunity to give us
instructions, we will not vote your shares on those matters. We do not
anticipate any matters to be raised at the meeting other than what are
already in the Company's proxy statement, as the Company's bylaws
require advance notice be given management of any matters to be raised
at the meeting. We incorporate by reference all information concerning
the board of directors, number of outstanding shares and voting
procedures contained in management's proxy statement at pages ____.
II. INFORMATION ON PARTICIPANTS IN THIS SOLICITATION:
participants in this solicitation are UNITE HERE and its staffer Andy
Lee, located at 464 S. Lucas Avenue #201, Los Angeles, CA 90017.
Interests of the Participants:
UNITE HERE represents approximately 250,000 members throughout North
America. UNITE HERE owns 120 shares of common stock in the Walt Disney
Company. Dozens of UNITE HERE members who work for the Company are also
shareholders by virtue of the Company stock plan. We have no
information as to the total number of such holders or their holdings.
UNITE HERE and its affiliates have engaged in shareholder solicitations
on corporate governance issues at several companies over the past
decade. It is an active member of the Council of Institutional
Investors (CII), an association of 130 public, labor, and corporate
pension funds with assets exceeding $3 trillion which advocates for
good corporate governance practices.
Lee is a research analyst employed by UNITE HERE and based in the
union's Los Angeles office. He has no direct or indirect material
interests in the Walt Disney Company and is not a shareholder in the
HERE Affiliates represent workers at two of the Company's theme parks:
Disneyland in Anaheim, CA and Walt Disney World in Orlando, FL. UNITE
HERE's affiliates in Los Angeles and Orlando currently have contract
disputes at both theme parks.
do not seek your support in labor matters, and do not believe that
enactment of the proposal would have any impact on such matters.
Developments in labor matters will not lead UNITE HERE to refrain from
presenting its proxy cards at the meeting: we are committed to
following through with conveying shareholders' views at the meeting.
have been several instances of written correspondence between the
Company and UNITE HERE related to the shareholder proposals in this
24: 2010: UNITE HERE sends the Company's Secretary, Mr. Alan Braverman,
a shareholder resolution pursuant to Rule 14a-8 by UPS and email.
1, 2010: The Company's Managing Vice President, Mr. Roger Patterson,
sends a letter confirming receipt of the UNITE HERE 14a-8 shareholder
1, 2010: UNITE HERE sends a letter to Mr. Alan Braverman outlining
several governance-related concerns that it urges the Company to
address, and stating that UNITE HERE reserves the right to submit
additional (Rule 14a-4) shareholder resolutions if the Company does not
18, 2010: Mr. Braverman sends a letter confirming receipt of the Nov. 1
letter, and noting that the letter was forwarded to the Company's
Nov. 5, 2010: The Company's Mr. Roger Patterson sends a letter to the
SEC, CCed to UNITE HERE, requesting no action on the 14a-8 shareholder
Nov. 23, 2010: UNITE HERE legal counsel Mr. Andy Kahn sends a letter to the SEC defending the UNITE HERE 14a-8 resolution.
6, 2010: Mr. Patterson sends a second letter to the SEC requesting no
action on the UNITE HERE 14a-8 shareholder resolution, and responding
to arguments raised in Mr. Andy Kahn's Nov. 23 letter to the SEC.
9, 2010: UNITE HERE sends a notice (as required under the Company's
Bylaws) to Mr. Braverman via UPS and email describing its intended
shareholder communications under Rule 14a-4 to the Company's
29, 2010: Mr. Braverman sends UNITE HERE a letter stating that: 1) the
Company's board plans to recommend an annual advisory vote on executive
compensation, and 2) that its Compensation Committee has adopted a
policy to not include reimbursement for excise taxes payable by
executives upon terminations following a change in control of the
Company, without shareholder approval.
4, 2011: UNITE HERE sends a letter to Mr. Braverman stating that it
intends to continue with an independent solicitation under Rule
UNITE HERE will bear all solicitation costs (anticipated at $_____) and
will not seek reimbursement from the Company. UNITE HERE will solicit
proxies by mail, phone, e-mail, fax and in person using its regular
staff, who shall not receive any additional compensation, but they may
also hire an outside solicitor. They will reimburse banks, brokers, and
other custodians, nominees or fiduciaries for reasonable expenses
incurred in forwarding proxy material to beneficial owners.
III. YOUR RIGHT TO MAKE SHAREHOLDER PROPOSALS:
a shareholder has owned more than $2000 worth of stock for more than a
year and meets the other criteria of SEC Rule 14a-8, he or she then has
a legal right to have a proposal appear in management's proxy statement
and card. The deadline for shareholders to submit proposals for
inclusion in management's proxy statement for the year 2011 is
September 24th, 2010.
IV. EXECUTIVE COMPENSATION/SECURITY OWNERSHIP OF MANAGEMENT AND 5% OWNERS:
We incorporate by reference the information contained in management's proxy statement at pages ___.
IF YOU HAVE ANY QUESTIONS, CALL UNITE HERE AT (213) 400-4283.
PRELIMINARY PROXY CARD
Solicited by UNITE HERE
for Annual Shareholders Meeting of the Walt Disney Company (March 23rd, 2011)
undersigned hereby designates Andy Lee, with full power of
substitution, as the proxy of the undersigned for the sole purpose of
voting all stock of the undersigned in the manner marked below at the
Walt Disney Company annual shareholders meeting for 2011. This proxy
card grants no discretionary voting authority: if matters come before
the meeting other than the items below, the stock of the undersigned
will not be voted on such matters. This proxy card is being solicited
by UNITE HERE and is not from the Company.
1. ELECTION OF DIRECTORS
[ ] FOR ALL NOMINEES.
[ ] WITHHOLD ALL NOMINEES
[ ] WITHHOLD AUTHORITY TO VOTE FOR ANY INDIVIDUAL NOMINEE. WRITE NAME(S) OF NOMINEES BELOW:
UNITE HERE MAKES NO RECOMMENDATION ON THE DIRECTORS ELECTION
TO RATIFY THE APPOINTMENT OF [to be included when named in the Walt
Disney Company proxy statement] AS INDEPENDENT AUDITORS FOR THE 2011
[ ] FOR
[ ] AGAINST
[ ] ABSTAIN
UNITE HERE MAKES NO RECOMMENDATION ON THE RATIFICATION OF THE AUDITOR
3. ADVISORY VOTE ON EXECUTIVE COMPENSATION FOR THE 2011 ANNUAL MEETING OF SHAREHOLDERS
For approval of compensation [ ]
Against [ ]
Withhold [ ]
HERE RECOMMENDS A VOTE AGAINST RATIFICATION OF THE EXISTING EXECUTIVE
COMPENSATION AT THE COMPANY.</R>
4. FREQUENCY OF ADVISORY SHAREHOLDER VOTES ON EXECUTIVE COMPENSATION
[ ] EVERY YEAR
[ ] EVERY 2 YEARS
[ ] EVERY 3 YEARS
[ ] ABSTENTION
UNITE HERE RECOMMENDS REVIEW EVERY YEAR.
5. UNITE HERE SHAREHOLDER PROPOSAL ON SEVERANCE AGREEMENTS:
FOR THIS PROPOSAL:
AGAINST THIS PROPOSAL:
UNITE HERE SHAREHOLDER PROPOSAL RECOMMENDING A POLICY ALLOWING ONLY ONE
TEST TO ASSESS PERFORMANCE IN DETERMINING ELIGIBILITY OF SENIOR
EXECUTIVES FOR AWARDS OF STOCK IN THE LONG TERM INCENTIVE PLAN
FOR THIS PROPOSAL:
AGAINST THIS PROPOSAL:
If instructions are not given above, we will
vote this card FOR the shareholder proposals and annual review of
executive compensation and AGAINST ratification of the existing
executive compensation at the Company, and not vote it on the other
TITLE (if shares not held in above name): _________________
contact information so we can make sure your vote gets counted and
provide you more information about shareholder issues at the Walt
Disney Company (your contact information will not be put to any other
Telephone:__________ . Fax: ____________. Email Address:______________
This card can be returned in the enclosed envelope or faxed to (213) 481-0352.