This excerpt taken from the AMAT DEF 14A filed Jan 27, 2009.
We are asking stockholders to amend Applieds Certificate of Incorporation (the Certificate) to eliminate the supermajority voting provisions contained in the Certificate. The proposed Certificate of Amendment reflecting these amendments is attached as Appendix A.
The Board is firmly committed to ensuring effective corporate governance, and although a significant number of American corporations have supermajority voting provisions, many in the investment community have begun to view these provisions as inconsistent with principles of good corporate governance. While supermajority voting provisions can be beneficial in some circumstances, the Board nevertheless has determined that there are compelling arguments for the elimination of the supermajority voting provisions. For example, a supermajority voting provision essentially provides veto power to a large minority of stockholders regarding those matters to which it applies. The Board believes that providing a lower threshold for stockholder votes can increase the ability of stockholders to participate more effectively in Applieds corporate governance and, in addition, increase the Boards accountability to stockholders.
Accordingly, upon reviewing the supermajority voting provisions in the Certificate, both the Board and the Boards Corporate Governance and Nominating Committee have concluded that it is in the best interests of Applieds stockholders to eliminate the supermajority voting provisions in the Certificate.
This excerpt taken from the AMAT 8-K filed Jul 13, 2007.
10.1 Participation by Affiliates. One or more Affiliates may become participating Employers by adopting the Plan and obtaining approval for such adoption from the HRCC. By adopting the Plan, an Affiliate is deemed to agree to all of its terms, including (but not limited to) the provisions granting exclusive authority to the HRCC to amend the Plan and the provisions granting exclusive authority to the Committee to administer and interpret the Plan. Any Affiliate may terminate its participation in the Plan at any time. The liabilities incurred under the Plan to the Participants employed by each Employer will be solely the liabilities of that Employer, and no other Employer will be liable for any benefits accrued by a Participant during any period when he or she was not employed by such Employer.
10.2 Inalienability. In no event may any Participant, former Participant, Beneficiary, spouse or estate sell, transfer, anticipate, assign, hypothecate, or otherwise dispose of any right or interest under the Plan; and such rights and interests will not at any time be subject to the claims of creditors nor be liable to attachment, execution or other legal process. Notwithstanding the foregoing, a Participant may, in a manner specified by the Committee, transfer all or any portion of his or her Account balance to the Participants spouse, former spouse or dependent pursuant to a court-approved domestic relations order which relates to the provision of child support, alimony payments or marital property rights.
10.3 Rights and Duties. Neither the Employers nor the Committee will be subject to any liability or duty under the Plan except as expressly provided in the Plan, or for any action taken, omitted or suffered in good faith.
10.4 No Enlargement of Employment Rights. Neither the establishment or maintenance of the Plan, the making of any deferrals under the Plan nor any action of any Employer or the Committee, will be held or construed to confer upon any individual any right to be continued as an employee of the Employer nor, upon dismissal, any right or interest in any specific assets of the Employers other than as provided in the Plan. Each Employer expressly reserves the right to discharge any employee at any time.
10.5 Applicable Law. The Plan is intended to comply with the provisions of section 409A of the Code. Notwithstanding any contrary Plan provision, the Plan will be construed, administered and enforced in a manner that is consistent with such intent. The provisions of the Plan also will be construed, administered and enforced in accordance with the applicable provisions of ERISA, and to the extent not preempted by ERISA, with the applicable laws of the State of California (other than its conflict of laws provisions).
10.6 Apportionment of Costs and Duties. All acts required of the Employers under the Plan may be performed by the Company for itself and its Affiliates, and the costs of the Plan will be equitably apportioned by the Committee among the Company and the other Employers. Whenever an Employer is permitted or required under the terms of the Plan to do or perform any act, matter or thing, it will be done and performed by any officer or employee of the Employer who is thereunto duly authorized by the board of directors of the Employer.
10.7 Deferrals Not Counted Under Other Employee Benefit Plans. Deferrals under the Plan will not be considered for purposes of contributions or benefits under any other employee benefit plan sponsored by the Employers, except to the extent specifically provided in any such plan.
10.8 Tax Withholding. Notwithstanding any contrary Plan provision, the Company will have the right to deduct from a Participants Account and/or any payments due to a Participant (or his or her Beneficiary) under the Plan any and all taxes determined by the Committee to be applicable with respect to such benefits. In the discretion of the Committee, the Company and the
Participants Employer may accept payment by the Participant (or Beneficiary) of the amount of any applicable taxes in lieu of deducting such amount from the Participants Account or payments due under the Plan.
10.9 Severability. If any provision of the Plan is held invalid or unenforceable, its invalidity or unenforceability will not affect any other provisions of the Plan, and in lieu of each provision which is held invalid or unenforceable, there will be added as part of the Plan a provision that will be as similar in terms to such invalid or unenforceable provision as may be possible and be valid, legal, and enforceable.
10.10 Captions. The captions contained in and the table of contents prefixed to the Plan are inserted only as a matter of convenience and for reference and in no way define, limit, enlarge or describe the scope or intent of the Plan nor in any way will affect the construction of any provision of the Plan.
10.11 No Guarantees Regarding Tax Treatment. Participants (or their Beneficiaries) will be responsible for all taxes with respect to any benefits under the Plan. The Committee, the Company and the other Employers make no guarantees regarding the tax treatment to any person of any deferrals or payments made under the Plan.