Company Name: Vishay Intertechnology, Inc.
Public Availability Date: February 19, 2008
Document Sections:
INQUIRY LETTER
APPENDIX
STAFF REPLY LETTER
[INQUIRY LETTER]
January 24, 2008
By Federal Express
Office of the Chief Counsel
Division of Corporation Finance
Securities and Exchange Commission
100 F Street NE
Washington, D.C. 20549
Re: Shareholder proposal of Robert. B. Lennox
Ladies and Gentlemen:
Our client, Vishay Intertechnology, Inc. (the "Company"), has received from
Robert B. Lennox a shareholder proposal and supporting statement for inclusion
in the Company's proxy statement and form of proxy for its 2008 Annual Meeting
of Shareholders. The Company believes that it properly may omit the proposal
from its 2008 proxy materials for the reasons discussed in this request letter.
On behalf of the Company, we respectfully request confirmation that the staff of
the Division of Corporation Finance will not recommend any enforcement action to
the Securities and Exchange Commission if the Company excludes the proposal from
its 2008 proxy materials, in reliance on those provisions of Rule 14a-8 under
the Securities Exchange Act of 1934, as amended, discussed below.
Pursuant to Rule 14a-8(j) under the Exchange Act, we have enclosed, on behalf of
the Company, six (6) copies of this request letter and its attachments. As also
required by Rule 14a-8(j), we are sending today a copy of this letter and its
attachments to the proponent as notice of the Company's intention to omit the
proposal from its 2008 proxy materials.
A copy of the proponent's letter of December 11, 2007 and related correspondence
are attached as Appendix I.
The Proposal
The proposal requests that the Company award "increases to its pensioners in
amounts at the discretion of its management to compensate for increases in the
cost-of-living during the past many years when no such awards were made."
Bases for Exclusion of Proposal from the 2008 Proxy Materials
1. The proposal may be properly excluded because the proponent failed to meet
the deadline for submitting a shareholder proposal.
Rule 14a-8(e)(2) under the Exchange Act states that shareholder proposals "must
be received at the company's principal executive offices not less than 120
calendar days before the date of the company's proxy statement released to
shareholders in connection with the previous year's annual meeting." The date of
the Company's proxy statement released to shareholders in connection with the
Company's 2007 annual meeting was April 16, 2007. Accordingly, the deadline for
submitting a proposal for inclusion in the 2008 proxy materials was December 17,
2007, which was clearly set forth in the Company's 2007 Proxy Statement. The
Company received the proposal on December 18, 2007. Because the proponent failed
to timely submit the proposal, the Company believes it may properly exclude the
proposal from the 2008 proxy materials.
The Staff has consistently granted no-action relief with respect to the omission
of a proposal when a proponent has failed to meet the deadline for submitting
shareholder proposals as required by Rule 14a-8(e)(2). See, e.g., the Staff's
letters to Wendy's International, Inc. (January 6, 2003) (finding a proposal
excludable when received one day after the deadline); International Business
Machines Corporation (December 26, 2002); The Coca-Cola Company (December 24,
2002); SBC Communications Inc. (December 24, 2002) (finding a proposal
excludable when received one day after the deadline); UGI Corporation (November
20, 2002) and Guest Supply Inc. (October 20, 1998) (same).
The Company believes that, consistent with the Staff's positions in the letters
cited above, the proposal may be excluded from its 2008 proxy materials under
Rule 14a-8(e) because the proponent failed to submit the proposal prior to the
Company's deadline for shareholder proposals.
2. The proposal is excludable under Rule 14a-8(i)(4) because it relates to the
redress of a personal grievance and is designed to result in a benefit to the
proponent.
Rule 14a-8(i)(4) permits exclusion of a shareholder proposal if "the proposal
relates to the redress of a personal claim or grievance against the company or
any other person, or if it is designed to result in a benefit to [the
proponent], or to further a personal interest, which is not shared by the other
shareholders at large." The Rule is designed to prevent shareholders from using
the shareholder proposal process to achieve person ends that may not be in the
interest of other shareholders.
The proponent is a retiree of who receives pension benefits from the Company. As
the proponent states in introducing his proposal:
"During my twenty years as a General Instrument/Vishay retiree I have not seen
an increase of my pension and surely am not the only one. Needless to say this
is not a correct way to treat its pensioners most of whom receive small monthly
amounts."
The proposal appears designed to benefit the proponent and other retirees by
virtue of their status as retirees rather than the Company's shareholders at
large.
The Staff has consistently permitted the exclusion of proposals submitted by
retirees relating to changes in pension benefits pursuant to Rule 14a-8(i)(4).
See, e.g., the Staff's letters to International Business Machines Corp. (January
20, 1998) (finding a proposal by a retiree requesting that company increase the
minimum pension benefit to retirees excludable pursuant to Rule 14a-8(i)(4));
General Electric Co. (January 25, 1994) (finding a proposal by a retiree
requesting the board of directors to increase the pensions of retirees
excludable pursuant to Rule 14a-8(c)(4)); and International Business Machines
Corp. (January 25, 1994) (same).
Consistent with the Staff's positions in these letters, the Company believes
that the proposal may be excluded from the 2008 proxy materials under Rule
14a-8(i)(4) as related to the redress of a personal grievance and designed to
result in a benefit to the proponent that is not shared by all of the Company's
shareholders.
3. The proposal is excludable under Rule 14a-8(i)(7) because it deals with
matters relating to the Company's ordinary business operations.
Rule 14a-8(i)(7) permits a company to exclude from its proxy materials
shareholder proposals that relate to the conduct of the ordinary business
operations of the company. In Exchange Act Release No. 34-40018 (May 21, 1998),
the Commission explained that the policy underlying the ordinary business
operations exclusion is to confine the resolution of ordinary business problems
to management and the board of directors.
The Staff has consistently allowed companies to exclude from their proxy
statements shareholder proposals relating to the conduct and maintenance of
retirement plans because the subject matter of such proposals relate to the
ordinary business operations of the company. See, e.g., the Staff's letters to
Honeywell International, Inc. (September 28, 2001); DTE Energy Co. (January 22,
2001); International Business Machines Corp. (January 2, 2001); International
Business Machines Corp. (December 30, 1999); Avery Dennison Corp. (November 29,
1999); Bell Atlantic Corp. (October 18, 1999); United Technologies Corp.
(January 25, 1999); General Electric Co. (January 25, 1999); and CIGNA Corp.
(December 21, 1998). In each of these letters, the Staff confirmed that
proposals to change retiree benefits fell within the scope of a company's
ordinary business operations and indicated that it would not recommend
enforcement action if the proposals were omitted from proxy materials.
Consistent with the Staff's positions in the cited letters, the proposal may be
excluded from the 2008 proxy materials under Rule 14a-8(i)(7) because the
subject matter of the proposal, an increase in pension benefits, relates to the
ordinary business operations of the Company.
Conclusion
We respectfully submit, for the foregoing reasons, that the proposal may be
omitted in accordance with Rules 14a-8(e), 14a-8(i)(4) and 14a-8(i)(7). We
respectfully request that the Staff confirm that it will not recommend any
enforcement action if the proposal is omitted in its entirety from the Company's
2008 proxy materials.
If you have any questions regarding this request or require additional
information, please contact the undersigned at (212) 715-9280 or fax (212)
715-8000.
Very truly yours,
/s/
Abbe L. Dienstag
cc: Robert B. Lennox
William Clancy, Corporate Secretary, Vishay Intertechnology, Inc.
Avner Lahat, Director of Legal Services, Vishay Intertechnology, Inc.
[APPENDIX]
December 11, 2007
REGISTERED WITH RETURN RECEIPT
US Social Security:
No. 317-30-9091
Mr. William J. Spires
Vice President and Secretary
Vishay Intertechnology Inc.
63 Lincoln Highway
Malvern, PA 19355-2143
U.S.A.
Dear Mr. Spires:
During my twenty years as a General Instrument/ Vishay retiree I have not seen
an increase of my pension and surely am not the only one. Needless to say this
is not a correct way to treat its pensioners most of whom receive small monthly
amounts.
Therefore, as a shareholder (see Merrill Lynch statement attached showing my
holdings) I propose a shareholder resolution to be presented at your next annual
meeting as follows:
"Resolved that Vishay Intertechnology awards increases to its pensioners in
amounts at the discretion of its managements to compensate for increases in the
cost-of-living during the past many years when no such awards were made."
Sincerely yours,
/s/ Robert B. Lennox
[Attachment]
[STAFF REPLY LETTER]
February 19, 2008
Response of the Office of Chief Counsel Division of Corporation Finance
Re: Vishay Intertechnology, Inc. Incoming letter dated January 24, 2008
The proposal provides that Vishay shall award increases to its pensioners to
compensate for increases in the cost-of-living during the years in which awards
were not made.
There appears to be some basis for your view that Vishay may exclude the
proposal under rule 14a-8(i)(7), as relating to Vishay's ordinary business
operations (i.e., employee benefits). Accordingly, we will not recommend
enforcement action to the Commission if Vishay omits the proposal from its proxy
materials in reliance on rule 14a-8(i)(7). In reaching this position, we have
not found it necessary to address the alternative bases for omission upon which
Vishay relies.
Sincerely,
/s/
William A. Hines
Special Counsel |
