May 9, 2014
Via email to: shareholderproposals@sec.gov
U.S. Securities and Exchange Commission
Division of Corporation Finance
Office of Chief Counsel
100 F Street, NE
Washington, DC 20549-2736
Re: Shareholder
Proposal of Jing Zhao for Inclusion in NetApp 2014 Proxy
Statement
Ladies and Gentlemen:
It is a
surprise that rather than communicating with its shareholders on important
corporate policy issues, NetApp wasted company’s resource to hire outside
lawyers against its own shareholders. This
is just another indication that NetApp need improve its public policy and
testifies the importance to respect shareholders’ right to request company’s
policy change.
There is no
need to use common sense to rebut the impermissibly irrelevant and
materially false and misleading statements in the May 6, 2014 letter to the SEC
by Wilson Sonsini Goodrich & Rosati Professional Corporation. However, to
prevent the company’s Board from repeating the same misleading statements from
the letter in their predictable Opposition Statement against my proposal in the
proxy material, I would like to provide some basic facts here.
The letter
listed many irrelevant cases to justify the company’s attempt to exclude my
proposal, but it does not mention the most similar proposal I submitted to the
Goldman Sachs Group, Inc. in 2013. Net
App should compare its public policy with the public policies of those
companies, which were listed in the letter, to demonstrate that the company has
substantially implemented public policy properly than others, but the letter
did nothing to compare.
There are
many materially false and misleading statements in the letter. For example, it utilized the EICC (Electronics Industry Citizenship Coalition) lengthily in section 3(a) (pages 5 and 8) as a shelter
to cover NetApp’s Code of Conduct reality. However, we know that the EICC (and
other corporate sponsored entities citied in the letter) never conducted any
independent verification whether its members follow the IECC code. NetApp should proudly cite Apple Inc. and
Foxconn as its EICC fellow members, which may have received more “awards” than
NetApp from various corporate sponsored entities. But here is one independent research of their
conducts: Jenny Chan, Ngai Pun and Mark Selden, "The politics of global
production: Apple, Foxconn and China's new working class," The
Asia-Pacific Journal, Vol. 11, Issue 32, No. 2, August 12, 2013. The letter failed to show that NetApp performs
better than Apple Inc. or Foxconn. If NetApp
is willing to improve its policy, at least it should learn from better EICC
fellow member Hewlett-Packard: HP respected shareholders’ right to vote on my
similar proposal in 2013 and also changed its supplier chain policy.
The letter’s
section 3(b) attacking my proposal “impermissibly vague and indefinite”
repeated some same misleading statements in section 3(a). It is also logically
absurd because through section 3(a) the letter shows that the company knows
clearly that my proposal is neither vague nor indefinite. The board should be smart enough to implement
the proposal that there is no need to dictate the details in the proposal. In fact, because my proposal is so clear to
the company, NetApp is determined to exclude it.
Finally, I
will respect the result of my fellow shareholders after the voting of my
proposal, and will continue to hold the company’s shares until the company learns
to respect shareholder’s right to submit a proposal to be voted at the annual
shareholders meeting.
Should you have any questions,
please contact me at 925-643-xxxx (phone/fax)
or zhao.cpri@gmail.com.
Respectfully,
Jing Zhao
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