United States Securities and Exchange Commission
Washington, D.C. 20549

NOTICE OF EXEMPT SOLICITATION
Pursuant to Rule 14a-103

United States Securities and Exchange Commission

Washington, D.C. 20549

NOTICE OF EXEMPT SOLICITATION

Pursuant to Rule 14a-103

Name of the Registrant: Caterpillar Inc.

Name of persons relying on exemption: The Shareholder Commons, Inc.

Address of persons relying on exemption: PO Box 7545, Wilmington, Delaware 19803-7545

Written materials are submitted pursuant to Rule 14a-6(g) (1) promulgated under the Securities Exchange Act of 1934. Submission is not required of this filer under the terms of the Rule but is made voluntarily in the interest of public disclosure and consideration of these important issues.

SHAREHOLDER REBUTTAL TO CATERPILLAR INC.

The Shareholder Commons urges you to vote FOR Proposal 6 on the proxy, the shareholder proposal requesting the Board to convert Caterpillar Inc. (“Caterpillar” or the “Company”) from a conventional corporation to a public benefit corporation (PBC).

The Shareholder Commons is a non-profit organization that seeks to shift the paradigm of investor thinking away from a narrow and harmful focus on individual company value towards a systems-first approach to investing that better serves investors and their beneficiaries.

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To see the need for the Company to convert to a PBC, one need look no further than the other proposals being made by shareholders at the annual meeting.

For example, the proponent of Proposal 4 rightly notes that Caterpillar’s climate-related targets only cover its Scope 1 and 2 emissions, leaving unaddressed a significant proportion of greenhouse gas (GHG) emissions for which the company is responsible. Furthermore, the company’s GHG emissions reduction targets for 2030 are entirely ambiguous, and are not remotely designed to contemplate and work toward the elimination of costs that threaten the value of the portfolios of its diversified shareholders. Similarly, the proponent of Proposal 5 rightly points to the corporate puffery behind Caterpillar’s lofty yet empty statements on diversity and inclusion.

Proposals 4 and 5 reveal the urgent need for Caterpillar to convert to a PBC. Despite the severity of the climate crisis, Caterpillar remains focused only on its own financial returns and thus fails to adequately prioritize the reduction of GHG emissions that threaten global well-being and the critical systems that support all the investments of its shareholders. In like fashion, despite the serious erosion of social stability and economic value arising from racial inequality and exclusion, Caterpillar is not meaningfully addressing its role in that problem.

The reason is clear: While Caterpillar may endeavor to slow its emissions and promote a diverse workplace, it only does so within the confines of company-first shareholder primacy: all its efforts with respect to environmental and social impact are restricted by the mandate to grow its own profits and increase its own financial returns to shareholders, even at the expense of those shareholders’ broader portfolio value.

For 21^st Century investors, this is a terrible trade. If the search for higher returns prevents Caterpillar from reducing its carbon footprint and advancing diversity and inclusion, that is bad for the planet, bad for people, and bad for the Company’s own diversified shareholders, who rely on a stable climate and healthy economy to support their many investments and overall prosperity. As a PBC, Caterpillar would be able to reprioritize its goals, and pursue profits solely within the planetary and societal boundaries necessary to preserve the critical systems that undergird the global economy.

We explain in more detail below.

Summary

Proposal

The Proposal requests the Board to take steps necessary to convert Caterpillar to a PBC. A PBC operates just like a conventional corporation, except that it can make decisions that promote the interests of stakeholders, such as employees and communities, without having to justify those decisions based on increasing financial returns.

If successful, the Proposal would require the Board to adopt an amendment to the Caterpillar’s certificate of incorporation. The amendment would require the Company to balance three considerations: 

The amendment would then be presented to shareholders for a vote and, if approved, filed in Delaware. From that point forward, Caterpillar would be operated as a PBC.

Management Misses the Point

As a conventional corporation, Caterpillar is subject to a legal requirement that the Board privilege its own financial return to shareholders over all other concerns, including the value of those same shareholders’ diversified portfolios. The Proposal is intended to remove that requirement and instead require the Board to account for the Company’s impact on society and the environment—and by extension the economy—as well for financial return. This would allow Caterpillar to authentically account for all its impacts, even if it meant deprioritizing internal financial returns in some cases. This broader perspective would protect diversified shareholders, who absorb the Company’s negative impacts through their other investments.

Conversion to a public benefit corporation has been celebrated by Leo Strine, the leading corporate commentator of his generation and the former Chief Justice of Delaware, the state in which Caterpillar is incorporated. Chief Justice Strine has argued that conversion to PBC status could resolve the contradiction between the company-first shareholder primacy of conventional corporation law and the need for corporations to account for the full impact of their business operations:

So how to resolve this legal impasse? A recent innovation offers a sensible answer. … [T]he benefit corporation — [] puts legal force behind the idea that a business should have a positive purpose, commit to do no harm, seek sustainable wealth creation, and treat all its stakeholders with equal respect.²

Yet, in its opposition statement, Caterpillar demonstrates that it has not even considered the gap between what it can do to address stakeholder interests in its current, conventional corporate form and what it would be able to do as a PBC. It simply argues that it “believes that focusing on the needs of all of its stakeholders is essential to achieving our strategy and driving long term profitable growth.” It does not address the question the Proposal presents: could Caterpillar do more to protect vital social and environmental systems if it converted to a PBC? We answer that question below with a resounding “yes.”

Why You Should Support this Resolution

Many Caterpillar shareholders are diversified investors who depend on an economy that succeeds for everyone over the long term. Indeed, its three largest shareholders, who collectively own more than 22% of the outstanding shares, are large asset managers who generally manage large, diversified pools of assets. The beneficiaries of these diversified portfolios rely on overall market performance far more than the success of any single company. 

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¹ 8 Del. C. §365.

² Robert G. Eccles, Leo E. Strine, and Timothy Youmans, 3 Ways to Put Your Corporate Purpose into Action, Harvard Business Review (May 13, 2020), available at https://hbr.org/2020/05/3-ways-to-put-your-corporate-purpose-into-action.

As a PBC, Caterpillar will be able to account directly for the long-term risks created by corporate decisions that affect multiple stakeholders and the overall economy, something it cannot do now. This flexibility will allow the Company to protect these diversified investors by limiting activities that undermine the healthy systems necessary for a successful economy, even if such limits have not been justified based on its anticipated impact on the Company’s own long- or short-term rates of return.

Why the PBC structure is better for Caterpillar shareholders

Conventional corporate law is interpreted to require corporations to prioritize the interests of their shareholders in financial returns from the company. As a leading Delaware law firm explained, “If the interests of the stockholders and the other constituencies conflict… the board’s fiduciary duties require it to act in a manner that furthers the interests of the stockholders.”³ This rule, called “shareholder primacy,” has been interpreted by the courts to require a company to optimize long-term financial returns to shareholders, ultimately received through dividends, buybacks, and stock appreciation. But this company-first approach fails to recognize that an individual company may profit from activity that undermines the social and environmental fabric upon which the vast majority of diversified shareholders depend. It is this approach that limits corporations like Caterpillar from pursuing the level of sustainability required to preserve a healthy future, and the overall value of diversified portfolios.

The Problem with Company-First Shareholder Primacy

The tension between company-first shareholder primacy and the needs of diversified investors is demonstrated by a recent study, which determined that publicly listed companies imposed impose social and environmental costs on the economy equal to more than half of their profits. Those costs—$2.2 trillion annually—equal more than 2.5% of global GDP.⁴ From the point of view of a diversified shareholder, these companies are only half as valuable as their income statements would indicate. This is especially true for a widely held company like Caterpillar. Diversified shareholders are already paying a high price for GHG emissions and noxious inequality. It is estimated that by 2050, climate change will reduce GDP by 3%⁵; gender and racial gaps created $2.9 trillion in losses to U.S. GDP in 2019,⁶ and racial disparities are projected to cost the U.S. economy $5 trillion over the next five years.⁷ This reduces the value of a diversified portfolio, which bears a linear relationship to GDP. 

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³ https://www.sec.gov/divisions/corpfin/cf-noaction/14a-8/2021/harringtonjpmorgan020121-14a8.pdf

⁴ Andrew Howard, SustainEx: Examining the social value of corporate activities, Schroders (April 2019), available at https://www.schroders.com/en/sysglobalassets/digital/insights/2019/pdfs/sustainability/sustainex/sustainex-short.pdf.

⁵ Global economy will be 3 percent smaller by 2050 due to lack of climate resilience, The Economist Intelligence Unit (November 20, 2019), available at https://www.eiu.com/n/global-economy-will-be-3-percent-smaller-by-2050-due-to-lack-of-climate-resilience/.

⁶ Shelby R. Buckman et al., The Economic Gains from Equity, Federal Reserve Bank of San Francisco (January 19, 2021), available at https://www.frbsf.org/our-district/files/economic-gains-from-equity.pdf.

⁷ Dana M. Peterson and Catherine L. Mann, Closing the Racial Inequality Gaps: The Economic Cost of Black Inequality in the U.S., Citi GPS (September 2020), available at http://citi.us/3olxWH0.

As a conventional corporation, Caterpillar is bound to participate in this shell game, making profits that optimize its long-term profitability even while engaging in activities that put the global economy at risk. To the extent that Caterpillar’s carbon footprint and role in ongoing inequality create economic costs that lower GDP, the value of shareholders’ portfolios is reduced. Thus, by requiring Caterpillar to prioritize financial return to shareholders above all else, the fiduciary requirements of conventional corporation law threaten the Company’s own shareholders, the vast majority of whom are diversified.⁸ In other words, while Caterpillar may increase its isolated return to shareholders by applying the company-first shareholder primacy model and neglecting the costs that its GHG emissions and other environmental and social impacts externalize, its diversified shareholders will ultimately pay these costs.

The PBC Form Creates Obligations that Protect Diversified Shareholders

In contrast to a conventional corporation, which must operate under the company-first shareholder primacy model, a PBC is expected to operate in a “responsible and sustainable manner,”⁹ and to balance three considerations:

This new obligation would allow Caterpillar to prioritize the interests of its diversified shareholders and other stakeholders, who can be affected by externalized costs. This change in focus would permit Caterpillar, as a PBC, to reduce its negative impacts in a manner that is optimized for healthier systems and better financial returns for diversified shareholders, rather than optimizing for its own internal rate of return. 

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⁸ Indeed, as of December 31, 2020, Caterpillar’s top three holders of its shares were mutual fund companies with indexed or otherwise broadly diversified portfolios.

⁹ 8 Del. C. §362.

¹⁰ 8 Del. C. §365.

How the New Obligations Could Affect Caterpillar

Caterpillar’s business model promotes the use of carbon-intensive fossil fuels, both in the equipment it produces and the industries that its machinery serves. The consequences of climate change—of which GHG emissions from fossil-fuel combustion are a primary driver—are well established and include property destruction, forced migration, worsened global health and increased mortality, food system disruption, and more. These outcomes harm communities, customers, employees, suppliers, and shareholders, and degrade many of the social and environmental systems upon which thriving economies depend. According to The Economist Intelligence Unit’s Climate Change Resilience Index, climate change could directly cost the world economy $7.9 trillion and shave off 3% of global GDP by 2050.¹¹ This drag on GDP directly reduces the return on a diversified portfolio over the long term.¹²

Indeed, a separate shareholder proposal to be presented at the 2021 Annual Meeting of Shareholders (Item 4) raises this issue. The proposal asks that Caterpillar report how its “climate policies, performance, and improvement targets” are aligned with the Paris Agreement’s GHG emissions reduction objectives, “or any rationale for failure to adopt such metrics.” Such a goal is absolute, and not dependent on increasing the Company’s financial return to shareholders. Caterpillar recommends against the proposal, arguing that it already takes steps to reduce GHG emissions. But this is insufficient—in order to preserve the planetary climate system, large companies must do their part, and only compete for profits within such limits. PBC conversion would make it easier for Caterpillar to make the commitment contemplated by Proposal 4, which is necessary to protect the environmental systems that support the value of diversified portfolios.

The Company’s disclosures of emissions and policy positions do not rise to the challenge of climate change. As Proposal 4 highlights, climate change presents a broad spectrum of risks to investors as a class. As a conventional corporation, Caterpillar limits its responses to those that require no financial sacrifice.

But as Olivier Elamine, CEO of the German REIT Alstria, recently explained, companies must make trade-offs to adequately address climate change:

If reaching the goals of the Paris Agreement was a good business opportunity, Elamine continues, it would be happening at a much faster pace already: “We need to acknowledge that somewhere along the line, it stops being about the business opportunity - that good business decisions alone won’t get us there - and we need to accept, collectively, that it will come at a cost. Only then will we be able to achieve it.”¹³ 

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¹¹ Ibid n. 5.

¹² Richard Mattison et al., Universal Ownership: Why environmental externalities matter to institutional investors, Appendix IV (demonstrating linear relationship between GDP and a diversified portfolio) (2011), UNEP Finance Initiative and PRI, available at https://www.unepfi.org/fileadmin/documents/universal_ownership_full.pdf.

¹³ Sophie Robinson-Tillett, The CEO’s perspective: ‘Surely it’s more responsible to tell the truth than to come up with Net Zero claims,’ Responsible Investor (March 29, 2021), available at https://www.responsible-investor.com/articles/the-ceo-s-perspective-surely-it-s-more-responsible-to-tell-the-truth-than-to-come-up-with-net-zero-claims.

Elamine subsequently argued:

We believe not only that the question [of sacrificing individual company returns] should be asked, but this is the only question that matters. We understand the answer is difficult to come by, and the process might trigger conversations that one would rather avoid. We had those same conversations within alstria before we decided to pursue the idea. It is easier to assume that someone else, somewhere else, will make the call and that this will solve the problem. This is unfortunately not how it works. We have a responsibility as management to alert our shareholders on the fact that achieving the Paris Accord target will come at a cost, and, in the absence of political action (a proper carbon tax, for example) we have collectively the responsibility to agree on who, if anyone will and to what extend [sic] this cost will be borne. [emphasis added] ¹⁴

As a PBC, Caterpillar would have the option to make decisions that are consistent with the decisions that must be made by any company with a significant carbon footprint in order to constrain average global warming to 1.5 degrees Celsius, even if the steps cannot be justified by the Board as necessarily optimizing the Company’s long-term financial return. Using its business judgment, the Board would have greater discretion to participate in authentic long-term solutions to constrain climate change and minimize the associated impacts to diversified shareholders.

More generally, as a PBC, Caterpillar could take actions that reduce any number of externalities in order to improve local and global economies and returns to diversified shareholders even if the actions reduced its long-term internal rate of return. Such actions might involve unilateral reduction of products that were environmentally costly or increases in compensation, an authentic political and public influence program that supported limits on GHG emissions and promoted greater equality, or following extra-legal guardrails mediated by shareholders, industry groups, or others. As a PBC, Caterpillar would not be obligated to take these actions, but it would have the option to do so, expanding the range of choices available to the Board and management to authentically protect the broad interests of its diversified shareholders and other stakeholders.

Signing the BRT Statement alone does not address company-first shareholder primacy

Caterpillar’s Commitment under the BRT Statement

In August 2019, the Company made a commitment to stakeholders by signing the Business Roundtable Statement on the Purpose of a Corporation (the BRT Statement).¹⁵ That commitment will remain an empty promise unless Caterpillar becomes a PBC.

Specifically, the statement says, “While each of our individual companies serves its own corporate purpose, we share a fundamental commitment to all of our stakeholders,” including customers, employees, suppliers, and the communities in which companies work. Were Caterpillar able to authentically adhere to the BRT Statement, it could address some of the problems created by company-first shareholder primacy. However, as explained above, the legal rules that govern Caterpillar have been authoritatively interpreted to require it to subordinate important stakeholder and diversified shareholder interests when they diverge from a narrow definition of shareholder interests linked entirely to internal financial returns. 

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¹⁴ Olivier Elamine, A CEO’s response to its proxy advice: why clinging to narrow ideas of fiduciary duty and risk/return is holding us back, Responsible Investor (May 18, 2021), available at https://www.responsible-investor.com/articles/a-ceo-s-response-to-its-proxy-advice-why-clinging-to-narrow-ideas-of-fiduciary-duty-and-risk-return-is-holding-us-back.

¹⁵ https://system.businessroundtable.org/app/uploads/sites/5/2021/02/BRT-Statement-on-the-Purpose-of-a-Corporation-Feburary-2021-compressed.pdf

As a conventional corporation, Caterpillar cannot shake the specter of company-first shareholder primacy and the constant concern that any significant decision it makes must be consistent with optimizing its financial return. Thus, the BRT Statement accomplishes little, but it does leave Caterpillar vulnerable to charges of hypocrisy and violation of trust, because it has publicly made a pledge that it cannot adhere to consistently when profits and systemic risks collide.

Conversion to a PBC would allow Caterpillar to follow through on the BRT Statement, improve the lives of its stakeholders, and increase the long-term value of the portfolios of its diversified shareholders. It will be able to focus on the creation of real value for all stakeholders and reject profits that come from the exploitation of vulnerable populations and common resources. Indeed, because it will be able to give full weight to diversified shareholder and other stakeholder concerns, Caterpillar will earn their trust and loyalty in a manner not available to companies that follow a company-first shareholder primacy model.¹⁶

Reaction to the BRT Statement Confirms the Advisability of Converting to a PBC

The reaction to the BRT Statement’s issuance revealed a degree of skepticism that turned out to be well placed. One skeptical commentator noted that “For many of the BRT signatories, truly internalizing the meaning of their words would require rethinking their whole business.”¹⁷ Others noted the importance of the change, but also that it was meaningless without ending shareholder primacy:

Ensuring that our capitalist system is designed to create a shared and durable prosperity for all requires this culture shift. But it also requires corporations, and the investors who own them, to go beyond words and take action to upend the self-defeating doctrine of shareholder primacy.¹⁸

Still others viewed the entire exercise as a PR stunt, and one that ultimately could harm the very stakeholders the BRT Statement purported to support. “The statement is largely a rhetorical public relations move rather than the harbinger of meaningful change,” asserted a Harvard Law School article, noting that the incentives CEOs face had not changed, so neither would their behavior.¹⁹ 

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¹⁶ See Frederick Alexander, Benefit Corporation Law and Governance: Pursuing Profit with Purpose p. 48 (2018) (“The Paradox of the Value of Commitment: The Concession that Isn’t”).

¹⁷ Andrew Winston, Is the Business Roundtable Statement Just Empty Rhetoric?, Harvard Business Review (August 30, 2019), available at https://hbr.org/2019/08/is-the-business-roundtable-statement-just-empty-rhetoric.

¹⁸ Jay Coan Gilbert, Andrew Kassoy, and Bart Houlahan, Don’t believe the Business Roundtable has changed until its CEOs’ actions match their words, Fast Company (August 22, 2019), available at https://www.fastcompany.com/90393303/dont-believe-the-business-roundtable-has-changed-until-its-ceos-actions-match-their-words.

¹⁹ Lucian Bebchuk and Roberto Tallarita, The Illusory Promise of Stakeholder Governance, Harvard Law School Forum on Corporate Governance (March 2, 2020), available at https://corpgov.law.harvard.edu/2020/03/02/the-illusory-promise-of-stakeholder-governance/.

Sadly, evidence of the false promise of the BRT Statement has begun to emerge. For example, Wharton management professor Tyler Wry compiled data on signatories’ behavior through the early stages of the COVID-19 pandemic to see if they were “living up to their word.” He found quite the reverse, as a recent article explains:

As COVID-19 spread in March and April, did signers give less of their capital to shareholders (via dividends and stock buybacks)? No. On average, signers actually paid out 20 percent more of their capital than similar companies that did not sign the statement. Then, as the coronavirus swept the country, did they lay off fewer workers? On the contrary, in the first four weeks of the crisis, Wry found, signers were almost 20 percent more prone to announce layoffs or furloughs. Signers were less likely to donate to relief efforts, less likely to offer customer discounts, and less likely to shift production to pandemic-related goods.²⁰

Unlike the empty promise of the BRT Statement, PBC conversion represents a concrete step with real effect, as Justice Strine noted in the article quoted earlier in this document.

Caterpillar’s opposition statement

The Company’s opposition statement to the Proposal does not address the underlying question of whether converting to PBC status will benefit its shareholders.

Caterpillar’s claim that its existing commitments and practices already address the proposal’s underlying objectives is misleading because it can only consider diversified shareholders and other stakeholders as part of a company-first analysis.

Caterpillar’s claim that there is no need to become a PBC because it already focuses on the needs of all its stakeholders misses the critical difference between PBCs and conventional corporations. Any such consideration by a conventional corporation like Caterpillar must be in service of financial return. In contrast, PBC directors can consider the ultimate effect of their decisions on stakeholders as ends in themselves.

Caterpillar’s claims that the PBC form is virtually unprecedented and presents uncertainties that could be detrimental to shareholders are false and ignore a growing trend.

The opposition statement implies that becoming a PBC is uncharted territory. In fact, scholars have tracked hundreds of privately held companies that have raised billions of dollars as PBCs,²¹ and the form is becoming increasingly popular in the public markets.

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²⁰ Jerry Useem, Beware of Corporate Promises: When firms issue statements of support for social causes, they don’t always follow through, The Atlantic (August 6, 2020), available at https://www.theatlantic.com/ideas/archive/2020/08/companies-stand-solidarity-are-licensing-themselves-discriminate/614947/.

²¹ Dorff, Michael B. and Hicks, James and Davidoff Solomon, Steven, The Future or Fancy? An Empirical Study of Public Benefit Corporations (February 4, 2020), Harvard Business Law Review, Forthcoming, European Corporate Governance Institute - Law Working Paper, 495/2020, Southwestern Law School Research Paper No. 2019/10, Available at SSRN: https://ssrn.com/abstract=3433772 or http://dx.doi.org/10.2139/ssrn.3433772.

For example, Amalgamated Financial (AMAL) and Veeva Systems (VEEV) recently became PBCs after obtaining the vote of their shareholders. Novus Capital (NOVSU) was a publicly traded SPAC that converted to a PBC when it acquired an operating company, and now trades as AppHarvest (APPH). There have been six IPOs of PBCs: Laureate Education (LAUR), Vital Farms (VITL), Lemonade Insurance (LMND), Sustainable Development Acquisition I (SDACU), Coursera (COUR), and Zymergen (ZY). In early 2020, the shareholders of Avon Products, a conventional U.S.-based public corporation, received ADRs of Natura (NTCO), a Brazilian corporation with a fiduciary structure similar to a PBC. That transaction was approved by the Avon shareholders. In another example, Danone, the multinational food products corporation, which has ADRs that trade in the United States over the counter (DANOY), obtained the vote of its shareholders in April of 2020 to become the French equivalent of a PBC. Other significant PBCs include Allbirds, Guild Education, Danone North America, Beta Bionics, and Lung Biotechnology PBC (whose publicly traded parent corporation, United Therapeutics (UTC), has announced plans to become a PBC in the autumn of this year).

The PBC statute is extremely clear in providing directors with wider discretion than conventional corporation directors have. The absence of case law is no reason for Caterpillar to surrender the opportunity to take a leadership position. Moreover, the change to the statute can actually protect companies when they account for systemic costs, which may reduce the risk of certain litigation.

Conclusion

Please vote FOR Proposal 6

By voting FOR Proposal 6, shareholders can urge Caterpillar to become a PBC, as hundreds of companies have already done. Becoming a PBC will permit Caterpillar to better serve the needs of its diversified shareholders and directly account for the critical social and environmental systems upon which a thriving economy depends. The stakeholder orientation permitted by the PBC form is more likely to create value for diversified shareholders than the prevailing “profit at any cost” approach that imposes substantial costs on those same shareholders.

Simply signing the BRT Statement is not sufficient to create the type of corporation that can authentically serve the needs of all stakeholders and prevent the dangerous implications of company-first shareholder primacy.

The Shareholder Commons urges you to vote FOR Proposal 6 on the proxy, the Shareholder Proposal requesting the Board to convert Caterpillar to a Public Benefit Corporation at the Caterpillar Inc. Annual Meeting on June 9, 2021. 

For questions regarding United Parcel Service Inc., Proposal 6 – submitted by Myra K. Young, please contact Sara E. Murphy, The Shareholder Commons at +1.202.578.0261 or via email at sara@theshareholdercommons.com.

THE FOREGOING INFORMATION MAY BE DISSEMINATED TO SHAREHOLDERS VIA TELEPHONE, U.S. MAIL, E-MAIL, CERTAIN WEBSITES, AND CERTAIN SOCIAL MEDIA VENUES, AND SHOULD NOT BE CONSTRUED AS INVESTMENT ADVICE OR AS A SOLICITATION OF AUTHORITY TO VOTE YOUR PROXY.

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