applied materials, inc.; december 19, 2008; rule 14a-8 no ... › divisions › corpfin ›...

~~ UNITED STATESSECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549-3010

DIVISION OFCORPORATION FINANCE

December 19,2008

Joseph J. SweeneySenior Vice PresidentGeneral Counsel and Corporate Secretar

Applied Materials, Inc.P.O. Box 58039Santa Clara, CA 95052-8039

Re: Applied Materials, Inc.Incoming letter dated November 5, 2008

Dear Mr. Sweeney:

This is in response to your letters dated November 5, 2008 andDecember 12, 2008 concerng the shareholder proposal submitted to Applied Materialsby Mark Filberto. Our response is attched to the enclosed photocopy of yourcorrespondence. By doing ths, we avoid having to recite or sumarze the facts set fort

in the correspondence. Copies of all of the correspondence also will be provided to theproponent.

In connection with ths matter, your attention is directed to the enclosure, whichsets fort a brief discussion of the Division's informal procedures regarding shareholderproposals.

Sincerely,

---------Heather L. MaplesSenior Special Counsel

Enclosures '

cc: John Chevedden------------------------------------ --------------------------------- *** FISMA & OMB Memorandum M-07-16 ***

December 19, 2008

Response of the Office of Chief CounselDivision of Corporation Finance

Re: Applied Materials, Inc.Incoming letter dated November 5, 2008

The proposal requests that the board take the steps necessar so that eachshareholder voting requirement in the company's charer and bylaws that calls for agreater than simple majority vote be changed to a majority of

the votes cast for andagainst related proposals in compliance with applicable laws.

There appears to be some basis for your view that Applied Materials may excludethe proposal under rule 14a-8(i)(10). In this regard, we note your representation thatApplied Materials will provide shareholders at Applied Materials' 2009 Anual Meetingwith an opportty to approve amendments to Applied Materials' Certificate ofIncorporation that would eliminate all supermajority voting requirements. Accordingly,we will not recommend enforcement action to the Commssion if Applied Materialsomits the proposal from its proxy materials in reliance on rule 14a-8(i)(10). In reachigths position, we have not found it necessar to address the alternative basis for omissionupon which Applied Materials relies.

------------ ------ Julie F. BellAttorney-Adviser

APPLIED MATE~IALS,

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Sàr\ia L:tr~, èA 9;iûS2:'ß039Decemher 12. 2008

Via Electronic Mail sharelioltlerprnposal'i(iy/;ec.g()v

U.S. Securities and Exchange Commission Di vision òf Corporatiott Finance Office oJ Chief Counsel 100 F Street, N.R WaslÜngton D.C, 20549

Re: Applied .MàteriaLv". Înc.- Stockholter PropqSlilSttbmilted byMt. Mark Piliberf(

Dear Sir or Madam:

This lettet lipclates andsuppler1ênts thë letter dated Novemher 5, 2008 (the "Notice Letter''') submitted by Applied Materials, Inc., a Delaware corporation (the "Company"'), to theStaft øf the Division òf Corporation Finance (the ~'Stafr') of the Securities and.Exchatlgc Comrnissiön (the "Conmìssion"). In the Notice Letter, the CotHpany stated that Ü intended to ømÌt fÌ'omIts proxy statement (the "2009 Pr()xy8tat~ment") fÖ:t theCompany"s 2009 Ann:lial Meeting of StockhO'ldtts(the"2009 Anu,ual Meeting"") a stockholder propòsal (the "Ptoposal"J submitted

by Mr. Mark Filberto (the "PrO'ponrnt") :under cò\1etoHetter dated October 2, 2008 and received by the Company on October 3, 2008. Tlie Notice L.etterstated further that at 'is nièetiiigöti December 8-9, 2008, the Company's Board otDirectors (the "Board") would consider, and was expected to approve, amendments to the CompanY's Certificate of Incorporation "Certificate") and .Bylaws (collectively, the "Amendments") that \Vöûld(the

substantially implement the ProposaL.

We now Wlite to ìrtfönnýoùtlät oft Monday, DecemberS, 200&, the Board did Ìn ta~tappi:()ve' the Amendments. The Amendments :íncltide revisions töthe c~rtt1cate et1tttpahng all supermajority voting requirements ftomthe Certifcate (the "Certificate An)~ndments")i siinjeçt tostoçkholder approval at tbe 2009 Ail1ilâ1 Meeting. The Amendments also include an amendment to the CompanY's llylaws to' löwet the vote reqüitedtö approve stockholdersponsöredametidmetits tö the BylàWs (the "Bylaw Amendment'). This Bylaw Amel$nient becarceffecti ve immediately upon ,approval by the. Board on December 8, 2008 and WaS

reported on a Current Rep()rt on Form8-K filed withth~ Commission on December 1 Q, 2008,å copy of which. is 'available at htt://WW.sec.gov/Archives/edgar/data6951tÔOQ) 19~ l2508251331/cI8k.htl1. For the $4ifrs reference, Bxhibit A. to this lettercoiitainsatable $etting forth the ØU1enland proposed Tãnguage of the Certiucateatid the lamgp.age (If thc Bylaws as mod1tìed by the Amendments.

U.S. SeeuritiesanclExchange Commission Division of Corporation .Finance

Offce of ChiefCo\lnsel Decemi:er 12, 20ØR Page 2

Àmendments to th~ CertHìcate require stockholclèt appröväl. Aèeorclingly, in addition to approving the, Amendments, the Board also approved resolutions to: (a) submit the CertificateAmendments to stockholders for approval at tbe20Ü9AnnuaI Meetil1gscheduled for March 10; 2009, and stockholders of the Colnpany vote in favor of the Ce.riHcate Amendments at the 2009 Annual Meeting. These Certifcate Amendmells and the Hoards recommendation wil be included in the 2009 Proxy Statement.

(b) recommend that the

With its apptöval òfthe Amendments, and its resolntÌons to seek stoÇkholder âpprøval of the. Cërtificate Amendments and to recomm~ndthat síoclmölders vote in favor: 'thereof, the Boar.dhas nowtaken an steps within its power to eHminate all ,supetmajofIty votÜig requirements in the Certi ficate and the Bylaws. Theretbre1 the Company subtiÌtsthat it has achieved the ..essential objective" of änd"subsuintiälly implemented" the Pto.posal and, accordingly, that the l)roposal should be excluded from the 20D9Ptoxy Statement pursuant to 'Rule 14a-R(i)(l0) Qfide.r'the proxy rules.

As stated in the Notice Letter, numerous Staffuo.,action letters have been issued where companies have so\.ight to exclude from their proxy materials stockholder proposals requesting eliinInation ofsupetinajotity voting provisIons Üi:der Rule 14-80)(10) as "substantiaUy In1ple11ënted" when the company's boardofdircetors has approved the necessary a01crntrents toitsëertificate of incorporationelirninating, supermajorÌty ,proviSCions contained in the ce.rtmCätc of incorporation, and represents ihat it will reCommend that stockholders approve $ìich aiendmemsat the next anl1ual meeÛng. See: e;g;i.d8unMi(yto,fy~ttems. Inc. (avaiL. August 28, 2008); H.J.l:ëin.~ Company (avaiL. May 20~ 2008); NiSoutce. Inc. (avaiL March 10, 20(8);l'he Dòw Chemk:al COffipatly (avaL. i:êbrtiaty 26,2007); Chevron Corp. (avaiL. February 15,20(7); .!Öhnson & Johnson (avaiL. February 13~ 2Ö(6); Bristol-Myers Squibb Co. (avaiL Feb. 14,2(10$): Electronic Data Systems Corp; (avaiL .Jan. 24,2005); The Home Depot. Inc. (avaiL. March 28, 20(2) (in each case, granting nO-a.ctìoii relieftoacl)mpály that inteiided foomit fromits prùxy materials a stockliolder proposal that wassub'stantiaUysirnilar to the company's. proposal, based on the actions by ¡the cøtnpa.y's board of ditectol'st-ö approve the necèSsary amendments and rec.ö:imend.that thestôckhólders approve such amendments at the company's nextamma.l meeting).

Lf yoiihave anY questions or require anyadditionaI infotn1atioa please. ôall me at (408) 748., 5420. If the Staff is unable to .agtëë with oUr cÒnclusÌoÎlsWIthoiit additional information or discussions, we respectfully request theoPPortiJnity to confer witb members of the Staff prior toissuance arany written respone to this letterol' the NoÜce Letter.

U $. Securities and Exchange CommissionDivisiotiof GorpÖtatIon FinanceOflicê ôf GhiefêounsclDecember 12,2008Page 3

Please acknowledge receipt of this letter by replying tothee~mail to which this lctttt is attached.. . '. --'\SÎricerely,

cc: Mr. Mark Filiberto (via Federal Express)

Mr. John Chevedden (via Electronic Mail.~ o-------------------------------- and F acsitnile-(3------------------

*** FISMA & OMB Memorandum M-07-16 ***


'Exhihii A

Amendments to theCertititate .oflncorporation and ßy.~ws

CUrrent Proyision

CCIlüncate of IncotporatiQh, Actiòlé NINtH (ín p~rtinelit part):

"NINTH: The affr¡'l1atÎve vote of the holders of hot less than sixty~six ånd $ixty~seYeri hundredths percent (66.67%) of the outstahdírigsMres of"Voting Stock" (as hereinafter deÍined) shall be requiri;d forthe apptoval or allthQrizalÍol1 of any "Business Ç()lUbinatiön" (as hereinafterdcfiiied) of

this corporation .or any sUb,'idiat'öf this c.orporatÌoI' with .any ¡'Related Person" (a'S hereinafter defined), l1otwithsl'al1ding the fact that

no vote may be required or that a Jèfi$érpetcciitage may be specifieø Oy law, many agreement with ftl1ynational securities exchang~ or otherwise; provided, hO\'\evet, that the sixty-six and si~tyseven hundredths perct'ht (66.67%) voting requitcltìeilt shaH not be applicable and such Business Combinatiôn shall reqllÍ1e only such affirmative Vùtéas is required by Illw, atìy agreement with any national securities exchan~e br ()fu~rw¡se if ,;

Certifiçat~ ofhicorporatJoli, Article TWEL.FTH:

"TWELFlH: The corporation reserves the tight to amend, alter, chMgeqr repeal any provision

çoiitâined in thIs Certifcate ofIOCQtpotat1óü, in the

mannet'Ï)gw Of h~tëafti;r presoribed ~y statut~;alîd aiidghtscon~rreq bll: stóckhöldëtšhereinare gtahteûsubject to this te$~rv~tiQti. Nótwitbstal)dìl1g the foregoin~,.the .provìsjotl$- si;t förth in Articles NINTH, TENTH,. ELEVENTH

TWELFTH may not pe amended or repealed in any respect unless Such amendment or rePeal is approved by the .affitrative Vote otrtt less: than

and

Amendments

-~

Certifiêatë of Incorporation, Article Nl'NTI-l:

I Emite Artkh! N1NV IØ be deleted

I

I

Certificate ofIncoí'oratiöti, Article TWELFTH:

'fá b(trevised aildrenumbered to reild Ln its entiretyayft)llows:

"ELI.1YENTH: The corporation reseJ"esthe riglit to amend, alter,chaiigt or tepeà.lai1Y :provisloii çQI1tained iothisCertificateofincQtJøtatjon~¡t1 the

mannernnw (jr b~rëaftêr prëscfibedby staute~ iGq all rights eonferted oll'stØlkholdei'Sherein are: granted sui,ject to this reseJ"afìoll. Nötwitbsta.JQÌrtg tbe för-egoing, the prbvisiöns set

forth Íti thlsCertifcate of Incorporation, includiiig: AtiçleBLBVENTH, may not be amel1dëdör i repealed in l\n)1 r~spectiinle$s such ainendmentor repeal is approved bv the à.'ttiPJitivf.tyateof not

Current Provision -;m...1 sixty-six andsíxty-seven hundredths !:etcent less thim a inìiØtity ofthetotaí ~(\iingp¿lWetötall (66.67%) of the tötal voting power of all outstanding shares of stock in this EQrporatiol1outstanding sha.resofswçk iii this co.rporatioii eiititled tq vote thereon."

_J.~f1e4WYiMer.? ~ Bylaws, Section 8, I:

I BYlaws, Section &.1:

.. .. iI To be revised to read in its enUrety äs.fbllows.: "8.1 Amendments. The bylaws of the I 4'8.1 Amendments, The bylaws ofthe

cottotätíön mäy be altered, amended orrept¡iJed or i corporation may bealtere(l, illlicnded or repealed or new hylaws may be a9QPtea by eítI1et(i) the board new bylaws maybe adopted by eitherfi) the. I)òatd i)rdIt~tQ:rs or (ÌÎ) stochoiders Upotî the Qfdirectors or (in thëstotkholdersu.pon :the affirmative voteofthe liølàers ofiiot Jess than a afffl1atlve Vøteoftbe hoJdersofnotJessd!á:ù.a majority oftl1e total voting pow.er QfaH issued and ma,ority ofthcStöck issued and outstanding whiøb outstandí ng s!Ültes of stock in thiscorporatIon . is present in person or I'epresented by proxy and

_ suchactlQI11S taken.' ..__.~m.__.___m_~ I entitled to vo theren." e..ntítled. ~o v?~ther:onattheineetìngà.twhjch .....

.~. APPLIED MATERIALS....~" J -- 1--''

¡, . \ .

3050 Sowers Avp.nue

Santa Clara. CA 950';4- 3299r-' ~ "'... i' ( rhone: (408) 727.5555r-,' -'. "......' ;, ,¡ F/i.x: iA08) 748-51l9

Mailing Address;-';. ¡ , '..' ~.:

Applied Matciials. Inc. Po. 80x 58039November 5, 2008 Santa Clar2. CA. 95052-8039

Via Courier

U.S. Securities and Exchange Commission Division of Corporation Finance Office of Chief Counsel 100 F Street, N.E. Washington D.C. 20549

Re: Applied Materials, Inc. - Stockholder Proposal Submitted by Mr. Mark Filiberto

Dear Sir or Madam:

In accordance with Rule 14a-8(j) under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), Applied Materials, Inc., a Delaware corporation (the "Company"), hereby gives notice of the Company's intention to omit from its proxy statement (the "2009 Proxy Statement") for its 2009 anual meeting of stockholders (the "2009 Annual Meetig") a stockholder proposal (the "Proposal") submitted Mr. Mark Filiberto (the "Proponent") under cover ofletter dated October 2, 2008 and received by the Company on October 3,2008. A copy of the Proposal, together with Proponent's statement, is attached hereto as Exhibit A.

The Company requests confirmation that the staff of the Division of Corporation Finance the Securities and Exchange Commission (the "Commission") wil not(the "Staff') of

recommend any enforcement action if the Company omits the Proposal from the 2009 Proxy Statement on the grounds that (i) the Company has substantially implemented the Proposal within the meaning of Rule 14a-8(i)(l0), and (ii) the Proposal is contrary to the proxy rules of the Commission within the meaning of Rule 14a-8(i)(3).

The Company expects to file its definitive 2009 Proxy Statement with the Commission on or about January 26, 2009, and this letter is being filed with the Commission more than 80 calendar days before such date in accordance with Rule 14a-8(j). Pursuant to Rule 14a-8(j), we are enclosing six copies of each of this letter and the accompanying attachments. In accordance with Rule 14a-8(j) and the instructions contained in the letter accompanying the Proposal, a copy of this submission is being forwarded simultaneously to the Proponent and to Mr. John Chevedden. This letter constitutes the Company's statement of the reasons it deems the omission of the Proposal from the 2009 Proxy Statement to be proper.

U.S. Securities and Exchange Commission Division of Corporation Finance Offce of Chief Counsel

November 5, 2008 Page 2

I. The Proposal

The full text of the Proposal and supporting statement is as follows:

"3- Adopt Simple Majority Vote

RESOLVED, Shareholders request that our board take the steps necessar so that each shareholder voting requirement in our charter and bylaws, that calls for a greater than simple majority vote, be changed to a majority of the votes cast for and against related proposals in compliance with applicable laws.

Statement of Mark Filberto

Currently a 1 %-minority can frstrate the wil of our 66%-shareholder majority. Also our supermajority vote requirements can be almost impossible to obtain when one considers abstentions and broker non-votes. Supermajority requirements are arguably more often used to block initiatives supported by most shareowners but opposed by management.

The Council of Institutional Investors ww.eii.org recommends adoption of simple majority voting. This proposal topic won up to 89% support at the following companies in 2008:

Eli Lilly Lowe's McGraw-Hil Amgen FirstEnergy

(LL Y) (LOW) (MHP) (AMON) (FE)

64% 70% 74% 79% 79%

Whirlpool (WHR) 79% Lear Corp.

Liz Claiborne (LEA) (LIZ)

88% 89%

The merts of this Simple Majority Vote proposal should also be considered in the context of the need to initiate improvements in our company's corporate governance and in individual director performance. For instance in 2008 the following governance and performance issues were identified:

· Three directors held no stock: Charles Liu Thomas Ianotti Aar de Oeus



· Two directors had more than 31-years tenure - independence concern.

· Thee directors were insiders or insider-related - independence concern.

· One of the three directors on our Audit Committee had 32-years tenure - independence concern.

· James Rogers, relatively new to our Board, served I3-years on the Fifth Third Bancorp (FITB) board rated "D" by The Corporate Library, ww.thecmoratelibrar.com.an independent investment research firm.

Additionally:

· We had no shareholder right to: 1) Call a special shareholder meeting.

2) Cumulative voting.

3) Act by written consent.

· Plus we had a poison pill, which unfortnately could ward off a profitable offer for our stock, and which could be reinstituted soon.

· Thus future shareholder proposals on the above topics by other proponents could obtain significant support.

The above concerns shows there is need for improvement. Please encourage our board to respond positively to this proposal.

Adopt Simple Majority Vote Yes on 3"

II. The Proposal May Be Excluded Under Rule 14a-8(i)(10) As Substantially

Implemented

Rule 14a-8(i)(lO) permits a company to exclude a stockholder proposal from its proxy materials if the company has substantially implemented the proposal. Moreover, no-action relief under this rule has been granted where a company represents that its board of directors is expected to take action that will substantially implement the proposal, and then supplements its request for no-action relief by notifying the Staff after that action has been taken by the board.

U.S. Securities and Exchange Commission Division of Corporation Finance Office of Chief Counsel November 5,2008

Page 4

At its upcoming meeting on December 8-9,2008, the Company's Board of DirectOfs (the "Board") wil consider, and is expected to approve, amendments to the Company's Certificate

of Incorporation (the "Certificate") and Bylaws (collectively, the "Proposed Amendments") that wil substantially implement the ProposaL. Therefore, the Company respectfully submits that it may exclude the Proposal from the 2009 Proxy Statement on this ground.

A. Expected Board Action

At or before its December 8-9, 2008 meeting, the Board is expected to approve amendments to the Certificate eliminating all supermajority voting requirements from the Certificate, as well as an amendment to the Company's Bylaws to lower the vote required to approve stockholder-sponsored amendments to the Bylaws. For the Staffs reference, Exhibit B to this letter contains a table setting forth the current and proposed language of the Certificate and the Bylaws to be modified by the Proposed Amendments. The Corporate Goverance and Nominating Committee of the Board, as well as the Company's executive management, have already approved the Proposed Amendments and wil recommend that the Board approve them.

In paricular, the proposed Certificate amendments would (i) amend the Certificate to reduce the threshold required to approve certain amendments to the Certificate from 66.67% of the outstanding shares to a majority of the outstanding shares, and (ii) amend the Certificate to eliminate the requirement that the holders of 66.67% of the outstanding shares approve certain "Business Combinations" with any "Related Person" (each as defined in the Certificate). The Board also is expected to submit the proposed Certificate amendments to the Company's stockholders at the 2009 Annual Meeting and to recommend that the stockholders approve the same.!

The Company's Bylaws do not contain any supermajority voting requirement and therefore technically fall outside the scope of

the Proposal. However, in the spirit of theProposal it is anticipated that, at its December meeting, the Board will also amend the Bylaws to reduce the vote required for stockholders to approve a stockholder-proposed amendment to the Bylaws from a majority of the total voting power of all issued and outstanding shares of stock of

i The Board canot unilaterally eliminate supermajority provisions from the Certificate, but rather

must seek stockholder approval in order to do so, under Delaware General Corporation Law ("DGeL") Section 242(b)_



the Company entitled to vote thereon to a majority of the shares entitled to vote at the meeting at 2

which the proposed amendment is considered.

Importantly, the Proposed Amendments are in compliance with applicable law. DGCL Section 242(b)(1) requires that amendments to a certificate of incorporation be approved by not less than a majority of the outstanding stock entitled to vote thereon. Section 109(a) ofthe DGCL simply requires that bylaw amendments be approved by the stockholders entitled to vote.3

B. The Proposed Amendments Substantially Implement the Proposal Within the Meaning of Rule 14a-8(i)(lO)

Interpreting the predecessor to Rule 14a-8(i)( 10), the Commission has stated that the rule was "designed to avoid the possibility of shareholders having to consider matters which have already been favorably acted upon by the management." Exchange Act Release No. 12598

(July 7, 1976). When a company can demonstrate that it already has taken actions to address each element of a stockholder proposal, the Staffhas concurred that the proposal has been "substantially implemented" and may be excluded as moot. See, e.g., Exxon Mobil Corp. (avaiL. Januar 24, 200l); The Gap, Inc. (avaiL. March 8,1996); Nordstrom, Inc. (avaiL. February 8, 1995). Moreover, a proposal need not be "fully effected" by the company in order to be excluded as substantially implemented. See Exchange Act Release No. 40018 at n.30 and accompanying text (May 21, 1998); Exchange Act Release No. 20091 at § fl£. 6. (August 16, 1983). The Staffhas noted that "a deterination that the (c)ompany has substantially

implemented the proposal depends upon whether (the company's) paricular policies, practices and procedures compare favorably with the guidelines of the proposaL" Texaco. Inc. (avaiL.

2 The Board may amend the Bylaws without stockholder approval in accordance with DGCL

Section 109 and the provisions of the Company's Bylaws. This Bylaw amendment wil not be conditioned upon stockholder approval of the proposed Certificate amendments.

3 The Proposed Amendments are also consistent with the recommendations of

the Council of Institutional Investors ("eii"), cited approvingly by Proponent. The Proposal states that "(t)he Council of Institutional Investors www.eii.org recommends adoption of simple majority voting." According to section 3.6 of the Corporate Governance Policies ofCII (available at: http://www.cii.org/serFi1es/fie/counci1%20policies/CII%20Coro%20Gov%20Policies%20 1 0- 7 -08. pdt): "(a) majority of common shares outstanding should be suffcient to amend company bylaws or take other action requiring or receiving a shareowner vote." The Company's proposed Bylaw amendment is even more favorable than this CII policy since the Company would require only a majority of the shares represented and entitled to vote at the stockholders' meeting, rather than CII's majority of the outstandingshares, to approve stockholder-proposed bylaw amendments.



March 28, 1991). In other words, substantial implementation under Rule 14a-8(i)(10) requires that a company's actions satisfactorily address the underlying concerns of the proposal and that the "essential objective" of the proposal has been addressed. See. e.g., Anheuser-Busch Cos., Inc. (avaiL. Januar 17,2007); ConAgra Foods. Inc. (avaiL. July 3,2006); Johnson & Johnson (avaiL. February 17, 2006); The Talbots. Inc. (avaiL. April 5, 2002); Masco Corp. (avaiL. March 29, 1999).

With respect to the elimination of supermajority voting requirements in paricular, numerous Staff no-action letters have been issued where companies have sought to exclude from their proxy materials stockholder proposals requesting such action when the company's board of directors has approved the necessary amendments to its certificate of incorporation and/or bylaws eliminating supermajority provisions and represents that it wil recommend that the stockholders approve such amendments to the certificate of incorporation at the next anual meeting. See. e.g., Sun Microsystems. Inc. (avaiL. August 28,2008); HJ Heinz Company (avaiL. May 20,2008); NiSource. Inc. (avaiL. March 10,2008); The Dow Chemical Company (avaiL. February 26,2007); Chevron Corp. (avaiL. February 15,2007); Johnson & Johnson (avaiL. Februar 13, 2006); Bristol-Myers Squibb Co. (avaiL. Februar 14, 2005); Electronic Data Systems Corp. (avaiL. January 24, 2005); The Home Depot, Inc. (avaiL. March 28, 2002) (in each case, granting no-action relief to a company that intended to omit from its proxy materials a stockholder proposal that was substantially similar to the company's proposal, based on the actions by the company's board of directors to approve the necessary amendments and recommend that the stockholders approve such amendments at the company's next anual meeting).

Moreover, the Staff has consistently granted no-action relief under Rule l4a8(i)(10)where a company intends to omit a stockholder proposal on the grounds that the board of directors is expected to take certain action that wil substantially implement the proposal, and then supplements its request for no-action reliefby notifyng the Staff after that action has been taken by the board of directors. See. e.g., Sun Micro::ystems, Inc. (avaiL. August 28, 2008); Johnson & Johnson (avaiL. February 19, 2008 and February 13,2006), The Dow Chemical Co.

(avaiL. February 26,2007); General Motors Corp. (avaiL. March 3, 2004); Intel Corp. (avaiL. March 11,2003) (each granting no-action rcliefwhere the company notified the Staff of its intention to omit a stockholder proposal under Rule 14a-8(i)( 1 0) because the board of directors was expected to take action that would substantially implement the proposal, and the company supplementally notified the Staff of the board action).

As stated above, on or before December 8-9,2008, the Board is expected to approve the Proposed Amendments, which wil eliminate all supermajority provisions in the Certitìcate and reduce the vote required to approve stockholder-sponsored Bylaw amendments to a majority of



the shares entitled to vote at the meeting at which the proposed amendment is considered, in compliance with the DGCL. In addition, the Board will recommend that the stockholders approve the proposed Certificate amendments at the 2009 Anual Meeting. The Company undertakes to supplementally notify the Staff after the Board acts on the Proposed Amendments.

In short, upon Board approval of the Proposed Amendments, the Board wil have taken all steps within its power to eliminate all supennajority vote requirements contained in the Certificate and the Bylaws and thereby will have achieved the "essential objective" of, and "substantially implemented," the Proposal. Accordingly, the Company respectfully submits that it may omit the Proposal from its 2009 Proxy Statement in accordance with Rule 14a-8(i)(10).

III. The Proposal May Be Excluded or Modified Under Rule 14a-8(i)(3) Because It

Includes Statements that Are False or Misleading

Rule 14a-8(i)(3) provides that a proposal or supporting statement may be excluded if it is contrary to any of the Commission's proxy rules, including Rule 14a-9, which prohibits materially false or misleading statements with respect to any material fact in proxy soliciting materials. See, e.g., Farmer Bros. Co. (avaiL. November 28,2003); Monsanto Co. (avaiL. November 26,2003); Sysco Corp. (avaiL. August 12,2003); Siebel Systems, Inc. (avaiL. April

15,2003). Specifically, the Staffhas stated that companies may rely "on Rule 14a-8(i)(3) to exclude or modify a statement where. . . rea)) statements directly or indirectly impugn character, integrty, or personal reputation, or directly or indirectly make charges concerning improper, ilegal, or immoral conduct or association, without factual foundation; r(b)) the company demonstrates objectively that a factual statement is materially false or misleading..." Staff Legal Bulletin No. l4B (September 15,2004).

As to the Proposal, Proponent has made various assertions in support of the Proposal that the Company considers to be materially false and misleading. Proponent states, for example, that "Currently, a 1 %-minority can stil frstrate the will of our 66% shareholder majority." This statement is false and misleading. Under a supermajority requirement, it is mathematically impossible for the holder of i % of Applied Materials' outstanding shares to "frstrate the wil"

of the holders of 66% of outstanding shares. Rather, it would take a minimum of 34% of outstanding shares to defeat a proposal that requires a 66.67% supermajority vote of the outstanding shares. Not only is Proponent's statement objectively false, it may mislead stockholders into believing that such a small percentage of minority stockholders has more power than they actually do.



Proponent also states that "Thee Directors owned no stock:

Charles Liu

Thomas Iannotti Aart de Geus "

This statement similarly is false and misleading at this time because Messrs. Liu and Ianotti and Dr. de Geus do in fact own shares of the Company's common stock and are expected to continue to own these shares through the date of the 2009 Annual Meeting. Pursuant to Section 16 of the Exchange Act, members of the Board are required to report the information related to their holdings in the Company's securities to the Commission. This information is publicly available on the Commission's web site. Pursuant to the most recent Form 4s fied by Messrs. Iannotti and Liu on October 31,2008, copies of which are attached hereto as Exhibit C, Mr. Iannotti directly owns 2,500 shares, and Mr. Liu directly owns 2,143 shares, of Applied Materials common stock. In addition, pursuant to a Form 5 filed by Dr. de Geus on October 31,2008, a copy of which is attached hereto as Exhibit D, Dr. de Geus directly owns 5,000 shares of Applied Materials common stock.

In summary, we believe that the Proposal should be excluded from the 2009 Proxy Statement under Rule 14a-8(i)(3), or at least modified, because it contains materially false and misleading statements in violation of Rule 14a-9.

iv. Conclusion

For the foregoing reasons, the Company respectfully requests that the Staff confirm that it would not recommend enforcement action if the Company omits the Proposal from its 2009 Proxy Statement.

If you have any questions or require any additional information, please do not hesitate to call me at (408) 748-5420. If the Staff is unable to agree with our conclusions without additional information or discussions, we respectfully request the opportunity to confer with members of the Staff prior to issuance of any written response to this letter.

U.S. Securities and Exchange Commission Division of Corporation Finance Office of Chief Counsel November 5,2008 Page 9

Please acknowledge receipt of this letter and its attachment by date-stamping the enclosed copy of the first page of this letter and returning it in the enclosed se - ddressedstamped envelope. /

Enclosures

cc: Mr. Mark Filiberto Mr. John Chevedden

Exhibit A

16/03/20Ø8 13:5 I"AG eii il3

Ma FilGe PI

Pa GI P.. LP1981 MII A~. SD Cl 14La ~ NY 11042

Mr, Ia c. MøClai of ~ BOiA ÜQ~ ID. (AMt)iólo BoAwSai CJ CA 95054

De Mr. Ma11s Rul 14t-3 pt is rqy &Utt m ~ of1b 10D-ti ~ ofuur coi:. tb pi is fO tI DQIl slif=, Ri 14&-1~. lfini- fi he,mi im1h co oCtb reui ~"llue uD cllb'di of~ ~ ~ ti md 1h ...-....... otflpr-l It iæ lIlI Jb. Th su ~ 1' tI sIl4eHc c:pffg i~ to be us fo dave pra puWioD. Ths is th pr:q fa Jah ~imor m'de!lD1O &: oiui:o- benp 1I R1 148-8 pr Ibnbe .lmf~ .a bdoø dliimd af ih fOlm. slJdi ia. rJCQ diaU ~'COimcaom 10 101m Chim (P: 310

lD f d fa cr 1 r th Cl1lCloihave -ilIl

Ru 14..1 ~

Your ~ ai cbCUder41fib Bau ofDirs is~id iD~ of~1cita~ of_~. Pl åDleaercoftbli~..¡i,~ am

Silly,~~Â..l.~k4) /ôJ,-!p~Mak Fibc'" Da'

Ci; Jns 1. Sw=~ScPh 401 127-55S'Fix 408 7433S~ 1'i, ~l-.. Tirvl~IÜwft-i.I. ~

L. .-i. ~lIb .Ior::u... -lInJ ~ cC' .C~ C:U';t(;='_OG\_ I îlì


*** FISMA & OMB Memorandum M-07-16 ****** FISMA & OMB Memorandum M-07-16 ***

10/a3/28aB 13: 55 PAG 02/1l3

(AM T: Rule i 4a-8 Prupv:i, Octobe 3, 2008)3 - Adopt Simple Majority Vote

RESOLVED, Shareholder request that cur boild ta th~ stps neca so tbt coh

shabolder voti requirement in our Q):uer and bylawS £h cals for a greate than 8Îml"Ie

majority voie, be chaged to a majority of th votes ca for and against related proposas In,compliace with appJicnlç la.ws.

Stareinent of Mark ll'iJibertuCurrently a 1 %..minorlty ca fratc; the wil of ow 66%-shaehoJder maori. Also our~'lerlljority voii: reaUÏemønts ean be almost impossible: to obta when wil; ~n5Ïdt:rsiibstentioii and brker lln-votes. Supcrajority requiements are arguly most oft used toblock intiatves suppored by most shaeownas bu Opped by ll18g~ment.

The Comicil ofIDStutiona Inves WW.çii.org reçmmcnds adopton of simple majorityvoti. This proposal toc won up to 89"A sUppc;rt at the following compaies in 2008:

Eli Lilly (LL Y) 64%Lowe's (LOW) 70%MeGr-Hil (MA) 74%Amgen (AMON) 79%FírtEnergy (FE) 79%Whirlpool (WH) 79%Lea (;orp. (LEA) 88%Liz Claiborne (LIZ) 89%

The merits oftbis Simple Majority Vote proposal should also be comdcred in th conæxt of

thneed to initiate improvents in our com.rny'!' c.crprate gcwemacc: II in individual diecorperformance. For inta in 2009 tbe followi govcmimce and perfrmance issues wee

identied:· Thr directors held no stock:

Charles LiuThoma. Ianotti

Aa de Geus. Two direc.orn had more than 31-yea te.rur - i.lldøice conc.

· Thee diecors were insidc or iosid",r-relatc - indendence concer.. On of the thee direttos on our Audit Coittee had 32.year tenu _ indel'endenceconcern· James Rogers, relatvely new to our Board, served t 3-YeJ5 o~ the Fifh Thd Banc.o:r(FITB) board rii:iid "D" by The Corpora Libra, ww.thcemotaelibra.com.anindeendent investent resarh firm

AddtionaJly:. We had no shaeholda right to;

1) Ca a special sharçholde meeting.

2) Cumulative vota.

3) A¡,i by writt const.

· PI US we ha a poison pill, wbIch unortuely could ward off a profitable offer for our

~t(\k, and which eod be reintued 6Oon.· Thus fu shareholder proposids OD the above: topics by oth prponents could obt

sigrficat suortThe above Concer shows thare is need for ÎmprvcmenL Pleas encoure OUf boarcl torespond positively to this proposal:

¡",C':;¡Be~RÇlb :110J-l q~ :h~ R~Çl?-RR- I ~


lß)ß3/20S8 13:55 F'AGE: 03/0'3

Adopt Siple Majori Vote

YE;on3

Notes:Mark Filbeo. Gener Parer, Palm Garden Parers LP, 1981 MlIus Ave., Suite C114, Lae

Succcss, NY 11042 :ipOJlSQL'I:Ù ili~ prpo,

The Ahn"fl fonuat is requested for publication without re.èdtig, rc-fonnattng or dimiriiiion of

LeAl, including bcginning and ~oncluding tct, unles pnor ageeent is reached. It is

respectfly requesed that ths proposal be proofrea before it is l'blish in the definitiveproxy to ensure thiit the integrty of the submitted ronnat is reü~ed in the proxy materials.Pi~sc advise if thre is any tygraphica queson.

PlelUe note that the title of the proposa is J' oftl cgwnent in favor of the proposa. In theinti:t' of clarty .ad to avoid confusion tho title of this and each other ballot item is rcqUC5ltlil Lv

be consistnt thoughout all the proxy material.

The company is requested to asign a propo number (represented by "3" above) bas on thechronologica order in which proposas are submitt. The reuested designation of")" or

higher number BlJOWS for ratiflcation of auditors to be ite 2.

Thi, propai:al i¡ believed to confonn with StdLegal Dtilctin No. 14B (CP), Sc:ptc:oor 1',2004 including:Accrdigly, goì. forw we believe tht it wnuld not 'h Rppropriate for compaes toe:iclude supportng sttement languae and/or an entiM proposal in reliance on rue J 4a.8(i)(3) inthe followin cicumstaces:

· the çampany ohjects to facal aserions bec:use they are not suored;· the compan objects to factua aserons that, while not materaly false or misleading, maybii diutød or CQuutcrçd;

· the company objects to factual asserions because those aserioris may be interpreted by

sharehoLders in a ma thi iN wifavorahle to the comJUY, its dirctors, or its offcer;and/or. the company objects to statements beU! they .rre~ent the opÍDon Qf the shareholderprponent or a retètnce source, but the statements ar not identified spifcay as SlIh.

See also: Si. Micro3yám". Inc. (July 21, 2005).

Stock will ba held until aftr thl' ~imualllel!tin8 iu the proposa will be prc$Onl.d iit the C11Jiimeeg.

Please acknwledge this proposa promptly by ernil.

L L. ::u:i: iQr"" ~UJn.J.J aC!CQ O~~~_OQ_lîn


Exhibit B

Proposed Amendments to the Certificate of Incorporation and Bylaws

Current Proviion

Certificate of Incorporation, Aricle NINTH (in pertinent part):

"NITH: The affirmative vote of the holders of not less than sixty-six and sixty-seven hundredths percent (66.67%) of the outstanding shares of "Voting Stock" (as hereinafter defined) shall be required for the approval or authorization of any "Business Combination" (as hereinafter defined) of this corporation or any subsidiary of this corporation with any "Related Person" (as hereinafter defined), notwithstanding the tàct that no vote may be required or that a lesser percentage may be specified by law, in any agreement with any national securities exchange or otherwise; provided, however, that the sixty-six and sixtyseven hundredths percent (66.67%) voting requirement shall not be applicable and such Business Combination shall require only such affirmative vote as is required by law, any agreement with any national securities exchange or otherwise if . . . .".

Certificate of Incorporation, Aricle TWELFTH:

"TWELFTH: The corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred on stockholders herein are granted subject to this reservation. Notwithstanding the foregoing, the provisions set forth in Aricles NITH, TENTH, ELEVENTH and TWELFTH may not be amended or repealed in

i any respect uness such amendment or repeal is

approved by the affrmative vote of not less than sixty-six and sixty-seven hundredths percent

the total voting power of all outstanding shares of stock in this corporation (66.67%) of

Proposed Amendments

Certificate of Incorporation, Aricle NINH:

Entire Article NINTH to be deleted.

Certificate of Incorporation, Article TWELFTH:

To be revised and renumbered to read in its entirety asfollows:

"ELEVENTH: The corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred on stockholders herein are granted subject to this reservation. Notwithstanding the foregoing, the provisions set forth in this Certificate of Incorporation, including this Aricle ELEVENTH, may not be amended or repealed in any respect unless such amendment or repeal is approved by the affirmative vote of not

B-1

Cur~nt Proviion

entitled to vote thereon."

Bylaws, Section 8.1 :

"8.1 Amendments. The bylaws of the corporation may be altered, amended or repealed or new bylaws may be adopted by either (i) the board of directors or (ii) stockholders upon the affrmative vote of the holders of not less tha a majority ofthe total voting power of all issued and outstanding shares of stock in this corporation entitled to vote thereon. "

Propose Amendments

less than a majority of the total voting power of all outstanding shares of stock in this corporation entitled to vote thereon."

Bylaws, Section 8.1:

To be revised to read in its entirety as follows:

"8.1 Amendments. The bylaws of the corporation may be altered, amended or repealed or new bylaws may be adopted by either (i) the board of directors or (ii) the stockholders upon the affinative vote of the holders of not less than a

majority of the stock issued and outstanding which is present in person or represented by proxy and entitled to vote thereon at the meeting at which such action is taken. "

B-2

Exhibit C

.

2011

SEC FORM 4 Page i of2

SEC Fonn 4

FORM 4 UNITED STATES SECURITIES AND EXCHANGE OMB APPROVAL

COMMISSION OMS Washington. D.C. 20549 Number: 3235-0287

February 28,Expires:STATEMENT OF CHANGES IN BENEFICIALCheck this box if no longer Estimated average burden

OWNERSHIP hours per 0,5or Form 5 obligations may

O subjec to Section 16, Form 4 responsecontinue. See Instruction 1 (b), Filed pursuant to Section 16(a) of the Securities Exchange Act of 1934, Section 17(a) of

the Public Utilty Holding Company Act of 1935 or Section 30(h) of the Investment Company Act of 1940

1, Name and Address of Reporting Person 2. Issuer Name and Ticker or Trading Symbol 5. Relationship of Reporting Person(s) to

APPLLED.JÆAIERIALS_INC./DE Issuer IJlnnQtti_Th.QnJ¡l~ J

(Check all applicable)------_..._-----_._-_..._..,--._---------- ( AMA T J X Director 10% Owner

(Last) (First) (Middle) OtherOffcer (giveCIO APPLIED MATERIALS, INC. (specify3, Date of Earliest Transaction (Month/DaylYear) title below)

below)P.O. BOX 58039, 3050 BOWERS A V, 10/29/2008 MIS 2023 -'~-------"---'-~.._-----. -'--"--'-"~-'-'"'---~--'~"--'

4, If Amendment, Date of Original Filed 6. Individual or JoinUGroup Filng (Check (Street) (Month/DaylYear) Applicable Line)

SANTA Form fied by One ReportingXCA 95054 PersonCLARA Form filed by More than One____._~_.____h_._.._._.__....__.__...,_.._._._., .._............- ...._..._.__.._,- Reporting Person

(City) (State) (Zip)

Table I - Non-Derivative Securities Acquired, Disposed of, or Beneficially Owned

1. Title of Security (Instr. 3) 2. Transaction 2A. Deemed 3. 4. Securities 5. Amount 6. 7. NatureDate Execution Date, Transaction Acquired (A) or of Ownership of Indirect(Month/DayfYear) ifany Code (Instr. Disposed Of (D) Securities Fonn: Beneficial

(Month/DayNear) 8) (Instr. 3, 4 and 5) Beneficially Direct (D) OwnershipOwned or Indirect (Instr. 41Following (I) (Instr. 4) Reported

(A) TransactionCode V Amount or Price (s) (Instr. 3

(D) and 4)

10,000 D

Common Stock (i I

Table II - Derivative Securities Acquired, Disposed of, or Beneficially Owned (e.g., puts, calls, warrants, options, convertible securities)

1. Title of Derivative Security (Instr. 3)

2. Conversion or Exercise Price of Derivalive Security

3. Transaction Date (Month/DayN earl

3A. Deemed Execution Date, ¡fany (Month/DayfYear)

4. Transaction Code (Instr. 81

5. Number of Derivative Securities Acquired (A) orDisposed of (D)

6. Date Exercisable and Expiration Date (Month/DayNear)

7. ritle and Amount of Securities Underlying Derivative Security (Instr. 3 and 4)

8. Price of Derivative Security (fnstr. 5)

9. Numbe of derivativE Securitiei Beneficia Owned Following Reported Transactl

(Instr. 3, 4and 5) (s) (Instr.

Amount or

Number

Code V (A) (0) Date

Exercisable Expiration

Date Title of

Shares Explanation of Responses: i Thi~ \'oluntm)' Fümi.l IS h~ing tiled ~;old:l to rcflCtt t:lt' vC5tlng of 2.51)() pertmllancc shar~s (restrict~d slock wiltSJ on IO/~t)/OX. \\oliich \'i.'sting is c:xempt from repol1ing. pursuant to R uk I (¡a..1If~ J II i)i B, Upon vesting. these performance shares hecamc oUbt~nding shares of Applied \1aterials, Inc CÚJlIlOll stock held uii\:rily by.' the reporting. pcp..nn ~har(." ..hiiWtl as henetltiallv OVdltU incllH.k 7,500 p~rtorman..c ::harès prc-viously rcpmtt'd thtll in tht flHure \\ ill be ,'OI1\'tlicJ on a oni.-lÓr-üne basi!' inlO shares üf AppllcJ \l:ncriab. Inr i.:nfTrthlO ~tC)rJ. upon \'öting, \\'hich \'tsting IS SI.:Ii~úuh..d 10 OtrlLr In (hrc.: equal annii.JI iiisi:illmc-lls htginllllg (O,."1YiUtJ (suliJe(t (0 (Ol1llnUt-u ~~rvrC~ il$ a ùm.:c.wr through ~a('h vesting date')

I.sir harmainc. MtS-l.!1iI,

http://www.sec.gov/Archives/edgar/data/69511000l 181431 0805923l/xslF345X03/rrd2220... 1l/4/2008

SEC FORM 4 Page 2 of2

A.ttoflley-in-Façt !O/31/~OOS .. Signature of Reporting

DatePerson Reminder: Report on a separate line for each class of securities beneficially owned directly or indirectly.

. If the form is filed by more than one reporting person, see Instruction 4 (b)(v).

.. Intentional misstatements or omissions of facts constitute Federal Criminal Violations See 18 U.S,C, 1001 and 15 U,S.C. 78ff(a).

Note: File three copies of this Form, one of which must be manually signed, If space is insuffcient. see Instruction 6 for procedure,

Persons who respond to the collection of information contained in this form are not required to respond unless the form displays a currently valid OMS Number.

http://www.scc.gov/Archives/edgar/datai695l/000l 18 i 4310805923 l/xslF345X03/rrd2220... 1l/4/2008

2011

SEC FORM 4 Page I of2

SEe Form 4

FORM 4 UNITED STATES SECURITIES AND EXCHANGE OMS APPROVAL

COMMISSION OMSWashington, D,C. 20549 3235-0287Number:

February 28,Expires:STATEMENT OF CHANGES IN BENEFICIALCheck this box if no longer Estimated average burden

OWNERSHIP hours per 0,5or Form 5 obligations may

O subject to Section 16. Form 4 responsecontinue, See Instruction 1 (b). Filed pursuant to Section 16(a) of the Securities Exchange Act of 1934, Section 17(a) of

the Public Utility Holding Company Act of 1935 or Section 30(h) of the Investment Company Act of 1940

2, Issuer Name and Ticker or Trading Symbol1, Name and Address of Reporting Person 5, Relationship of Reporting Person(s) to AllL.lEOMAIERIALS.INÇiDE Issuer

lia Clwrlts_'yS (Check all applicable)._--~---,._...~.._------_._---,.._-_._~_..._---_..--- '---.-. ---- ( AMAT)

X Director 10% Owner (Last) (First) (Middle)

OtherOffcer (giveCIO APPLIED MATERIALS, INC. (specify3. Date of Earliest Transaction (Month/DaylYear) title below)

below)P.O. BOX 58039, 3050 BOWERS A V, 10/29/2008 MIS 2023 - --- ----.---~.__.____.____.__.u..__.._._______..____...__..___.__.__

4, If Amendment. Date of Onginal Filed (Street) (MonthlDaylYear) Applicable Line)

6. Individual or Joint/Group Filng (Check

SANTA Form filed by One ReportingXCA 95054 PersonCLARA Form filed by More than One Reporting Person

'.._""_n'__." . ",_._- '.'---_.__..---,,-, ...__.._-- ..._._---_.........__.--"--_.-..


Table i - Non-Derivative Securities Acquired, Disposed of, or Beneficially Owned

1. Title of Security (Instr.31 2. Transaction 2A. Deemed 3. 4. Securities Acquired 5. Amount 6. 7. Nature Date Execution Date, Transaction (A) or Disposed Of (D) of Ownership of Indirect(Month/DayN ear) Ifany Code (Instr. (Instr. 3,4 and 5) Securities Form: Beneficial(MonthIDayNear) 8) Beneficially Direct (D) Ownership

Owned or Indirect (Instr.4)Following (II (Instr. 4)Reported

(A) TransactionCode V Amount or Price (5) (Instr. 3

(D) and 4)

Common Stock 10/29/2008 357 F

(I) D $ I i. 98 9,643 ( " ) D

Table II - Derivative Securities Acquired, Disposed of, or Beneficially Owned (e.g., puts, calls, warrants, options, convertible securities)

1. Title of Derivative Security (Instr. 3)

2. Conversion or Exercise Price of Derivative Security

3. Transaction Date (Month/DayNear)

3A. Deemed Execution Date, if any

(MonthIDayNear)

4. Transaction Code (Instr. 8)

5. Number of Derivative Securities Acquired

6. Date Exercisable and Expiration Date (MonthIDayNear)

7. Title and Amount of Securities Underlying Derivative Security

8. Price of Derivative Security (Instr. 5)

9. Numbe of derivativE Securitie! Beneficia Owned

(AI or Disposed of (D)

(Instr. 3, 4and 5)

(Instr. 3 and 4) Following Reported Transacti (5) (Instr.

Amount or

Number

Code V (AI (0) Date

Exercisable Expiration

Date Title of

Shares Explanation of Responses: I Rcliri~~i.'IlS shares that \\.cri~ JUlpmalil.¡.lIlY withh~Jd UPOIl h..stllg Ilfpi:rli)l1KUh.'C: :-hart~ (reslrii'kd slock unii:-) to (o\'~r lax ,vithholding ohJlg¡jtliin~ In a transacllon tXC'llpt under Rule 16h~3

2. !\wTlhtr \)tr,harc.'s incliid~s 7..ino ptl'fnrin;1!li.'ç shan.'s If('strict~d stock UOlts) rm.:viously rep()rtcd that in t1h.' fUtlrè \vill he cOI1\''r'1d on:t ()n~-f(H.qnt. basi~ mto ~hart.:- ü( J\pplltJ \'latcriab. lrii' (t\niniol\ SIO!.'' upon \. ~:\tint~. \'vhicli \.'l'i1irig 1$ sIo..hcduled to O(\.'UJ' in ihrcl. tqual :uln1l31lnsl3llrrtllb hegllfliig i 0.: ~t).n9 1 ~ubJI"Ll tl LolltllW.:J '\t't'vict. as a din:t:inr through \.':h."h "~SUllg Jute)

/s/OianJlaillCMesin~,

http://wwvv.sec.gov/Archives/cdgar/data/695 i 1000 i 18 i 431 08059232/xslF345X03/rrd2220... i l/4/2008


Attprney--il1~façt lQ¡:U.L2008 .. Signature of Reporting

DatePerson Reminder: Report on a separate line for each class of securities beneficially owned directly or indirectly,

. If the form is filed by more than one reporting person, see Instruction 4 (b)(v),

.. Intentional misstatements or omissions of facts constitute Federal Criminal Violations See 18 U ,S ,C, 1001 and 15 U ,S.C. 78ff(a),

Note: File three copies of this Form, one of which must be manually signed, If space is insuffcient, see Instruction 6 for procedure.

Persons who respond to the collection of information contained in this form are not required to respond unless the form displays a currently valid OMS Number.

http://www.scc.gov/Archives/edgar/data/6951/000 1181431 08059232/xslF345XÛ3/rrd2220... 11/4/2008

Exhibit D

2011


SEC Form 5

FORM 5 UNITED STATES SECURITIES AND EXCHANGE OMS APPROVAL

COMMISSIONCheck this box if no longer OMS subject to Secion 16, Form 4 Number:Washington, D,C. 20549 3235-0362 or Form 5 obligations may

February 28,o continue. See Instruction 1 Expires: (b), ANNUAL STATEMENT OF CHANGES IN

Estimated average burden

BENEFICIAL OWNERSHIP hours pero Form 3 Holdings Reported. 1,0response

Filed pursuant to Section 16(a) of the Securities Exchange Act of 1934, Section 17(a) ofForm 4 Transactions the Public Utility Holding Company Act of 1935 or Section 30(h) of the Investmento Reported,

Company Act of 1940

1. Name and Address of Reporting Person . 2. Issuer Name and Ticker or Trading Symbol 5, Relationship of Reporting Person(s) to APPLlED.MATERIALSJN C ¡D£ IssuerD.E.uEUS_AARI

(Check all applicable)._-_.._...._......~'_'__m.'_ _._._.._._~__ ".'-"-_..... .. _.- '- ..._--..._-......._~..'_.._- '. ( AMA T J X Director 10% Owner

(Last) (First) (Middle) Other3, Statement for Issuer's Fiscal Year Ended Offcer (giveCIO APPLIED MATERIALS, INC.

title below) (specify(Month/DaylYear) below)POBOX 58039. 3050 BOWERS AVE, /0/26/2008MIS 2023 __~'_._A___"___~__"_"_,_,,,,...,____~_,______,,___, .._....____

4, If Amendment, Date of Original Filed 6. Individual or Joint/Group Filing (Check (Street) (Month/DaylY ear) Applicable Line)

SANTA Form filed by One ReportingCA 95054 X PersonCLARA .

._.....0--....._-- ............- ..Æ._...._.._.__.._.. Form filed by More than One"_'_'__"_'''~_'_U'''_.n.._.... ._.. _ _._-_.... Reporting Person


Table I - Non-Derivative Securities Acquired, Disposed of, or Beneficially Owned

1. Title of Security (Instr. 3) 2. Transaction 2A. Deemed 3. 4. Securities Acquired 5. Amount 6. 7. NatureDate Execution Date, Transaction (A) or Disposed Of (D) of Ownership of Indirect(Month/Day/Yearl if any Code (Instr. (Instr. 3, 4 and 5) Sec uritles Fonn: Beneficial(Month/DaylYear) 8) Beneficially Direct (01 OwnershipOwned at or Indirect (Instr.41end of (I) (Instr. 4) Issuer's(A)

Amount or Price Fiscal Year

(D) (Instr. 3and 4)

Common Stock 20,000 ii i D

Table ii - Derivative Securities Acquired, Disposed of, or Beneficially Owned (e.g., puts, calls, warrants, options, convertible securities)

1. Title of 2. 3. Transaction 3A. DeemedDerivative Conversion

4. 5. 6. Date Exercisable and 7. Title and 8. Price ofDate Execution Date, Transaction 9, NumbeNumber Expiration DateSecurity or Exercise Amount of Derivative of(Month/DaylYear) If any Code (Instr. of(Instr.3) Price of (MonthIDaylYear) Securities Security derivativE(Month/DaylYear) 8) DerivativeDerivative Underlying (Instr. 5) Securitie!SecuritesSecurity Derivative BeneficiaAcquired Security Owned

(A) or (Instr.3 and 4) FOllowingDisposed Reportedof (D) Transacti(Instr. 3,4 (sl (Instr.and 51

Amount or

Number Date Expiration of

(A) (D) Exercisable Date Title Shares Explanation of Responses: i Thi." \.t)lunwf) Form =' i: ht'ing Iiled ~()kiy fo rcfll.'L' the vesting of 5,iino p~rfOniialli:c shai-ts tr..stricttu stotll1nir:,) on 71~3:lJS, \\-hieh v\.~sting. i~ e~cmrt froii ICpillllflg pursuant 10 Ruk.. I oa4J¡ ni. I )( i ~ B i Uptln H'''ting. iliÖ-: iicrlornianct ~hJrts hl'i.3I1t Lilils,(¡)ndinß shares uf Applicd :-hJlcrials, Inc. (IHlll1ùll ~.tcd.. ¡will din_'i'tI!' hv tllt rcpiirting r1l'fSti1 Shari's :-Iiiwri a~ henefï(la!l\ n\\"iicd InrltuJè IS,unO pt'rttlnnanct shart'~ prC\'IOlJ,i~.. n~porttd that in fh(.' (Ulln: \\111 he CÜll\'I~r(t-d on a oli~-ljH-on(' basi:, into :~liJrcs or ..\ppllt:d \-latcriab. lt1( Lonimnn s(ü.:k upon v~stin~. ,...hidi vc.;tirig IS ~(Iit.'¡Jukd to ùcrur In (IirC'~ equal annual rn:stallmCllh ht'ginriing 1/2J.-LN t:,uhJ~cr h.\ ((intlnll:J :'Cf\"lCi. as a tll1\.:nor ihrough t..H.h \t:-ung û~iiL~)

~~ Cb¡irn1ai1~ Mç-sll)i,

http://www.sec.gov/Archives/edgar/data/695 1/000 11814Jl 08059234/xsIF345X03/rrd2220... i 1/4I?OOR


Attoniçy-in-Façl I 0131(200.8 .. Signature of Reporting

DatePerson Reminder: Report on a separate line for each class of securities beneficially owned directly or indirectly.

. If the form is filed by more than one reporting person, see Instruction 4 (b)(v).

..Intentional misstatements or omissions of facts constitute Federal Criminal Violations See 18 U,S,C, 1001 and 15 U,S.C. 78ff(a).

Note: File three copies of this Form, one of which must be manually signed. If space is insuffcient, see Instruction 6 for procedure.

Persons who respond to the collection of Information contained In this form are not required to respond unless the form displays a currently valid OMS Number.

http://www.sec.gov/Archives/edgar/data/6951/000i 181431 08059234/xslF345X03/rrd2220... 11/4//00R

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